A 44-year-old caution from the Supreme Court, probably the only silver lining in one of the most controversial decisions of the court during the Emergency era, was ignored when the Delhi High Court refused to protect former Union Minister P. Chidambaram from arrest in the INX Media case on August 20.
Senior advocate Abhishek Manu Singhvi said this in the Supreme Court while arguing Mr. Chidambaram’s appeal against arrest by the Enforcement Directorate (ED) on Tuesday.
He referred to “infamous” Constitution Bench verdict in the ADM Jabalpur case of 1975 vintage, which upheld the State’s right to suspend personal liberty under the draconian Maintenance of Internal Security Act during the Emergency period.
But still, Mr. Singhvi said, the Bench made a point to warn High Courts from tasting the “forbidden fruit” of sealed cover missives handed over by probe agencies behind the back of accused persons.
On Tuesday, Mr. Singhvi criticised the Delhi High Court for taking a bite of this ‘forbidden fruit’ on August 20. He said the High Court judgment refusing protection to the senior Congress leader was solely based on the material enclosed in the sealed envelopes handed over to it by the probe agencies.
To buttress his point, Mr. Singhvi read out the relevant portion of the ADM Jabalpur judgment, which said, “What use can a court make of material which it cannot disclose to the detenu and how can it form a judicial opinion on matters not disclose to a party before it? The High Court, at the highest, could satisfy its curiosity by tasting the forbidden fruit but its secret scrutiny of the grounds and of the file containing the relevant information and material cannot enter into its judicial verdict”.
Senior advocate Kapil Sibal, also for Mr. Chidambaram, said documents and records were placed on record in the High Court behind his client’s back to seek his arrest and interrogation.
Mr. Sibal said an application had been in the Supreme Court seeking a direction to the ED to produce the transcripts of interrogation of Mr. Chidambaram when he was called for questioning thrice during December 2018 and January this year.
“Let them show the transcripts of the questioning done on three former occasions [in December 2018 and January 2019]. We shall see whether they had confronted my client with the documents they showed in sealed covers in the Delhi High Court,” Mr. Sibal submitted.
Mr. Singhvi said the main provisions of law attracted in the INX Media case against Mr. Chidambaram became scheduled offences under the Prevention of Money Laundering Act only in 2009. The alleged transactions, a year after the alleged FIPB approval (cause of action) was granted in 2007-08.
Mr. Singhvi argued that the provisions under which Mr. Chidambaram had been accused of did not exist at the time of the alleged transaction. “You are trying to paint a person ‘kingpin’ on the basis of offences that did not exist at the time,” he submitted.
He then referred to how the probe agencies presented a “distorted version” that Mr. Chidambaram was evasive in his replies during questioning.
“During questioning, they expect you to confess or face questions till midnight till you give them an answer they want… Evasion here means ‘not giving the answer they want’,” Mr. Singhvi said.
He then referred to how the High Court repeatedly used the term ‘gravity of the offence’ in order to deny Mr. Chidambaram protection from arrest.
“Gravity is subjective. Gravity of an offence is not decided by me, Your Lordships or these investigative agencies, but by the legislature in its wisdom. The penal statute punishes a 'grave' offence by death, life imprisonment or seven years' imprisonment. The Delhi High Court judge by repeatedly using 'grave, grave, grave' in his judgment is only adding a subjective adjective,” Mr. Singhvi said.
Courts took a call on anticipatory bail based on the ‘triple test’ of flight risk, non-cooperation and tampering with evidence. “Flight risk virtually never arises in this case. That is not a consideration unless in the case of a terrorist. Non-cooperation does not mean not giving the answer you want. Finally, what can I tamper with in this case which is 11 years old. The documents are already frozen… Besides the man [Chidambaram] was in power till 2014,” Mr. Singhvi said.
Solicitor General Tushar Mehta for the ED will commence his counter-arguments on August 28.
