Arvind Kejriwal Arrest: A Three-Pronged Use of Weaponising ED in BJP’s Rulebook

Not just the ED, the political use of agencies such as the CBI has been well-identified and discussed in the media.

Arvind Kejriwal’s arrest last night by the Enforcement Directorate (ED) in connection with the Delhi excise policy case may provide a 'legal’ case in point (via the Prevention of Money Laundering Act [PMLA]) as sufficient ground for the central department to charge and arrest him.

The timing of this 'arrest’, however, and the context behind it, when scoped out in a larger picture, makes this appear more as a political move by the ruling Bharatiya Janata Party (BJP) government, just a few weeks before the national elections.

The Opposition, i.e., the INDIA (Indian National Developmental Inclusive Alliance) bloc has so far suffered from an incohesive national narrative, and the lack of a coordinated, unified electoral strategy to take on the mighty BJP.

But Kejriwal’s arrest (perhaps) may help do what the Bharat Jodo Yatras could not achieve, i.e., help unite the Opposition and strengthen a counter-narrative against a power-hungry BJP government in this election cycle.

Kejriwal’s Arrest as a Calculated Deflection Strategy

The timing of Kejriwal's arrest, something the Aam Aadmi Party (AAP) had foreseen for weeks now (as its CM kept defying the ED summons), may also be seen as a political move by the BJP to deflect national attention on the exposes around the electoral bonds data and the connections drawn between private company donors and the BJP, (which benefited the most from the scheme), and allegations around possible quid pro quo arrangements.

It is now revealed that the donations of the top 10 of the total 487 donors to the BJP account for roughly Rs 2,119 crore, which is 35 per cent of the party’s electoral bond kitty of Rs 6,060 crore encashed since April 2019, the largest amongst all parties. A larger share of bond purchases have come from singular contributions of big private donors. 

This provides more heat and credibility to the allegations made by the Opposition against the BJP on it being a government "of, for, by the private business."

And the way the Supreme Court and the CJI have addressed the electoral bonds issue so far, from a juridical point of view, the BJP seemed desperate to do something to take the attention away from it. 

A Dual-Purpose Use of Weaponising Agencies Against the Opposition

The use of central agencies against the Opposition leaders by the incumbent Union government, including sitting CMs over the last few months, and years, has (by now) also become part of an employed political move to either punish or distract the Opposition and the public’s attention from issues affecting the ruling government incumbency or electoral chances in any way.

Data, sourced from a query responded to in the Rajya Sabha, helps validate this too.

Between 2005-2014, the ED conducted around 112 searches and had 104 plaints, while between 2015-2022, under the BJP Government, ED searches went up to 3010 and plaints up to 888.

There have been more than 100 probes against Opposition leaders since the Modi government came to power, even as accusations against BJP leaders and their allies were ignored. 95% of all cases by the ED are filed against Opposition leaders, making the Modi Government continuously pursue a policy of 'enforcing’ its political will/motive 'by raids’.

It's not just the ED. The political use of CBI (Central Bureau of Investigation) has been well-identified and discussed in mainstream media. Yes, the BJP alone isn’t the first party that’s guilty of doing this. Even Congress governments politicised the intervening role of central agencies from the statutory powers they enjoyed.

However, the volume, frequency, and brutish use of agencies done by an extensive degree and margin against the Opposition by the BJP remains unparalleled to anything seen in the past of India’s political history.

The Emerging Third Purpose of Central Agencies

Also, in BJP’s political rulebook, central agencies for the BJP serve a "dual purpose” (and there seems to be a third emerging now below).

1. It is used to suppress Opposition parties by targeting its key leaders who are put away in jail for long periods without any trial or conviction thus, making the process itself a punishment.

2. The aim has been to break an opposition party by winning over selected leaders to join the BJP by the threat of CBI/ED action to help elected MLAs switch/change sides (see Maharashtra, Himachal Pradesh, Goa, MP as recent cases in point). As the states get more powerful, the party (through the CBI and ED) often targets those either ruled or not ruled by it, making many who have chosen to withdraw general consent for the CBI, which is needed for it to investigate cases within states’ jurisdiction. Among the states that have withdrawn general consent now include states like Chhattisgarh, Jharkhand, Kerala, Mizoram, Punjab, Rajasthan, West Bengal, Meghalaya and Telangana.

3. The motive of a mafia-style governance model of 'enforcement by raids’ too emerging now from closely analysing the electoral bonds purchase patterns mapped with the timing/frequency and interval of central agency raids made against private companies. Read more on this here (this may also help broadly explain a fear psychosis factor in addition to macroeconomic forces playing in the minds of private companies while making or attributing macro-investments while remaining sceptical-cautious of extensive government scrutiny or fearing punitive action).

In 2016, the office of Delhi’s Principal Secretary Rajendra Kumar and Cabinet Minister Satyendar Jain were raided. The CBI questioned Sisodia next. It went on to arrest Gopal Krishna Madhya, an officer on special duty in Sisodia’s office, for supposed corruption related to GST irregularities.

The timing is crucial: it came just before the 2020 Delhi Assembly polls. The BJP lost the election anyway.

Not Just the Opposition Under the ED’s Radar

We see something similar happening before a national election while keeping Kejriwal, an important national Opposition voice away from the public spotlight. It must also be highlighted here that an approver's firm for the Delhi Liquor Case also gave 34 crores via electoral bonds to the BJP, as reported by The Quint.

Unfortunately, it’s not just political opponents but all forms of critics who have been in the sight of action. Recall how the fact-checking website Alt News co-founder Mohammed Zubair was jailed before being released by the Supreme Court. The BBC and Bhaskar media group were raided by the IT department after they were perceived as being critical of the government or its leader.

Last year, the Income Tax Department alleged that three different organisations contravened the laws around foreign funding contributions. Tax officials then raided the offices of Oxfam India, the Independent and Public-Spirited Media Foundation, and the Center for Policy Research.

More NGOs and research think tanks have had their foreign funding and FCRA [Foreign Contribution (Regulation) Act, 2010] licences revoked while academics have been arrested for saying, writing or even projecting a position that’s critical of 'the regime’ or its supreme leader.

Colonial laws, terror acts, and draconian measures of certain acts (giving sweeping powers to the state and the party in power) have unfortunately helped a power-hungry, deeply insecure government use these against anyone the government (or a party) perceives as its enemy. For example, a critical reflection on the content and implications of the PMLA, being used by the ED of late, is a case in point.

(I discuss this and the other exploitative use of legal instruments by the BJP at length in a future analysis.)

(Deepanshu Mohan is Professor of Economics and Director, Centre for New Economics Studies (CNES), at the Jindal School of Liberal Arts and Humanities, OP Jindal Global University. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)