The Union home ministry’s move to grant sanction for prosecuting Aam Aadmi Party supremo and former Delhi chief minister Arvind Kejriwal by the Enforcement Directorate has brought focus back to the crucial aspect of safeguarding public servants from malicious prosecutions for actions and decisions in discharging official duties.
As far as corruption cases are concerned, where the Prevention of Corruption Act is applicable, there are inbuilt provisions that require prior approval at two stages— first at the time of registration of an FIR against any public servant and the second time when a "previous sanction" is needed for prosecuting a public servant after the investigation is complete.
These provisions have guided the CBI’s investigations but in the case of the Enforcement Directorate, the excise policy case against Kejriwal has brought under scanner whether the anti-money laundering agency requires prior approval or not.
The ED filed a charge sheet (which is called prosecution complaint in the ED parlance) in May last year against Kejriwal in the excise policy case and the court also took cognisance of the charge sheet in July. At that time, the ED did not take sanction to charge Kejriwal or any other public servant as it contended that under the Prevention of Money Laundering Act, it did not require sanction to prosecute public servants. ED officials contend that cases being investigated for the crime of money laundering cannot be equated with the Prevention of Corruption Act as PMLA is invoked based on a predicate offence that has already been registered.
It is only when the Supreme Court, in the case of ED vs Bibhu Prasad Acharya & Others in November 2024 said that prior sanction is needed for prosecuting public servants even in cases tried under PMLA, that the ED sought sanction to prosecute Kejriwal. In December 2024, the Lieutenant Governor of Delhi sent the file to the ministry of home affairs with the recommendation that it may prosecute Kejriwal.
The MHA has given its sanction but the issue of whether the ED needs sanction for prosecution in all PMLA cases going forward is drawing attention.
In the case of a central government employee investigated and tried under the PMLA, the sanctioning authority would be the central government. And it can be reasonably argued that the investigating agency, being a central one, the grant of prosecution sanction from the central government won’t be an issue. However, the ED may find itself in choppy waters when it comes to PMLA cases tried against state government officials. Since their appointing authority would mostly be the state government itself, and in case it is governed by any opposition party who is already up in arms against the ED, the latter can deny sanction to the central agency resulting in the stalling of many PMLA cases.
Already, many opposition-ruled states have withdrawn the ‘general consent’ given to the CBI for operating within their jurisdictions.
For now, with MHA granting the nod to prosecute Kejriwal, the decks have been cleared for the initiation of trial against the AAP supremo. Meanwhile, reacting to the developments, the AAP claimed that the “then sitting chief minister and chief of a national party with two state governments was jailed without a sanction only to be granted bail by courts.”
“The PMLA court clearly noted that there was no evidence against Arvind Kejriwal. It is now coming to light that all of this was being done without a prosecution sanction,” the party said, claiming the public now sees through this act.
