Delhi Lokayukta Must Act On Possible Criminal Misconduct By Arvind Kejriwal

Legal troubles for the activist-turned-politician and Delhi Chief Minister Arvind Kejriwal seem to be rising. Ever since the flamboyant electoral win of the Aam Aadmi Party (AAP) in the local election, the Kejriwal-Manish Sisodia government has been involved in numerous legal battles, often ranging from genuine to downright ridiculous. In the latest constitutional fiasco, the Kejriwal-Sisodia combine, in blatant disregard to institutional propriety, has sought to settle personal legal bills from reputed legal luminary, Ram Jethmalani, from the coffers of the Government of Delhi.

Previously, Finance Minister Arun Jaitley had filed a criminal defamation complaint in the Patiala House Court and civil suit for damages for defamation in the Delhi High Court in 2015 over Kejriwal’s comments about the Delhi District Cricket Association (DDCA) controversy. The civil and criminal defamation cases continued simultaneously with Jethmalani conducting a somewhat personally motivated cross-examination of Jaitley in a packed registrar court room of the Delhi High Court. In all, Jethmalani appeared for Keriwal more than a dozen times, allegedly racking up a bill of Rs 38,600,000. Conspicuously, as per media reports, Jethmalani raised a bill in the name of “Secretary to Hon’ble Chief Minister of Delhi”. This is surprising as it may give a colour of official capacity to the services of Jethmalani.

The subsequent events, which occurred on the orders of Sisodia and perhaps Kejriwal, would shock the conscience of any person who understands the business of government. The deputy chief minister, in order to surreptitiously burden honest taxpayers with the personal legal bill of Kejriwal, ordered the bills to be cleared by the General Administrative Department (GAD). Bound by the Rules of Business, the GAD informed the deputy chief minister that said financial matter cannot be approved without permission from the GAD and the approval of the Lt Governor (LG). In response, Sisodia insisted that the file not be sent to the LG.

In the meanwhile, the Chief Minister also approved said file and further prevailed upon the GAD to approve the bills of Jethmalani from the state coffers. The sequence of events, as reported in the media, if true, present a massive legal battle for Kejriwal and Sisodia if Delhi Lokayukta, Retired Justice Reva Khetrapal, takes note.

Allegations

Section 13(1)(d) of the Prevention of Corruption Act defines ‘criminal misconduct’ on the part of public officials. The section states that a public servant is guilty of criminal misconduct if by

(ii) Abusing his position, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) Obtains for any person any valuable thing or pecuniary advantage without any public interest.

In the present case, after noting the highlights, it is clear that the two conditions required are unequivocally proven. Further, the apex court has held that, apart from the text of the section, “dishonest intention is the gist of the offence under Section 13(1)(d)”. The actions of Sisodia and Kejriwal are not merely an overreach of Rules of Business or other departmental regulations in the complex machinery of Delhi. It is, especially wherein payment to Jethmalani was sought to be made “without sending the file to the LG” after being rejected by the GAD, is a clear attempt to hide the unlawful activity, furthered by abuse of their respective positions in the Government.

The actions of Sisodia and Kejriwal were actuated by a dishonest intention and thus, the ingredients required to be proved under Section 13(1)(d)(ii), prima facie, stand proved.

First, the public servant(s) have abused their position by dishonestly seeking to clear the illegal payments to Jethmalani and hiding the same.

Second, by abusing that position, they have obtained for Jethmalani a clear pecuniary advantage and for Kejriwal a valuable thing in the nature of Jethmalani’s stellar legal services. It is to be noted that of the purposes of the Criminal Procedure Code, only a prima-facie case is required to be proven to frame charges against the accused.

Further, apart from abuse of position, authorities can use the condition under Section 13(1)(d)(iii), which involves establishing the angle of lack of ‘public interest’. This provision has been difficult to prove for the prosecution over the years and rarely have there been convictions under it.

The Law Lexicon defines it as – “Public interest means those interest which concern the public at large”. For proving the offence under Section 13(1)(d)(iii), it is more important to establish what does not constitute public interest. A matter of public interest "does not mean that which is interesting as gratifying curiosity or love of information or amusement".

What is palpably clear is that habitual defamation may be something of an amusement to Kejriwal and the electorate he wishes to please, but said acts and expressions cannot be held to acts done in pursuance of 'public interest'. Therefore, if a complete analysis is carried out after a detailed investigation, the condition under Section 13(1)(d)(iii) involving the lack ‘public interest’, which has rarely been proved in history, may also stand proven.

Another provision that is often pulled out in such cases is Section 409 read with Section 405 of the Indian Penal Code (IPC). It defines criminal breach of trust by a public servant and states that if a public servant dishonestly uses or disposes of government property in violation of any direction of law, they commit “criminal breach of trust”. Said provisions are often tagged along with offences under Section 13(1)(d) along with Section 420 (cheating), 468 (forgery) and so on. The list of criminal breaches which could be framed against Sisodia and Kejriwal is endless and often the Lokayukta, in cases against not-so-high-profile persons, charges public servants with a long list of these offences.

The Defence

The obvious defence that the Sisodia-Kejriwal combine may seek to take shelter under is alleging that the matter was linked to Central Bureau of Investigation raids on the Chief Minister’s office. Further, they may claim, rather ludicrously, that the statement, based on which a defamation suit was filed against Kejriwal, was made in his official capacity. Said position is untenable in law and, in a way, represents the brazenness with which the matter has been dealt with by the Chief Minster’s office.

A defamation suit, as per settled jurisprudence, is personal in nature. According to media reports, Kejriwal has admitted the same as part of his plea before the High Court. Be that as it may, the crux of a defamation suit lies in the injury caused to the person by way of damaging his personal reputation. There is no plausible way by which a suit for defamation can be a matter involving the official capacity of the plaintiff or the defendant. It is clear that both Jaitley and Kejriwal are fighting the case in their respective personal capacities.

Another aspect which has been incorrectly dealt with by the media is the use of Section 80 of the Civil Procedure Code (CPC). It has been wrongly presumed that Kejriwal could have invoked Section 80 to pay the fees of Jethmalani through the state coffers. It is clarified that Sections 79, 80, 81 and Order XXVII of the CPC, which refer to ‘Suits by and against the State’, clearly use the word ‘in their official capacity’ whenever it seeks to use the term public officials. It is inconceivable that public officials could be allowed to use public money to fund litigation concerning personal matters. Imagine what would happen if an Indian Administrative Service officer used state funds to pay for a legal practitioner’s fees in a personal property dispute with his brother through the funds of the department which he heads?

Further, action in the discharge of 'official duties' is a vexed question which has often troubled courts. Broadly speaking, it has been indicated in various decisions of the apex court that an action constituting the offence said to have been committed by the public servant must have a reasonable and rational nexus with the official duties required to be discharged by the public servant. The likelihood of utterances of Kejriwal having a rational nexus with duties of the Chief Minister is slim. Be that as it may, said issue is a matter for trial post-investigation.

Another moonshine defence which Sisodia and Kejriwal may seek to make is that no payments have yet been made to Jethmalani and hence, no 'pecuniary advantage' has been obtained. It is to be noted that when the file was sent to the LG for post-facto approval after the Chief Minister and the GAD had approved the payment. It may be reasonably assumed that the LG has rejected the request as per the file. In essence, this may seem to be a last-ditch attempt on the part of Sisodia and Kejriwal to wriggle out of the criminal misconduct allegations. Unfortunately for them, the lawmakers in 1988 (being the year in which Prevention of Corruption Act was enacted) were up to the task. Section 15 of said Act explicitly punishes public servants for attempts to commit offence under Section 13(1)(d).

Therefore, one thing is clear – Kejriwal and Sisodia must be chargesheeted and tried before the Special Judge after a detailed investigation as per law by the Lokayukta, Delhi. One should refrain from jumping to conclusions in such matters and wait for the due process of law to take its course, even if it is Kejriwal who has shown little respect for the same.

Further, considering that the fangs of Section 120B (conspiracy by more than two persons) and Section 109 (abetment by conspiracy) of the IPC are very wide and often used or misused by Lokayuktas, it is difficult to see how Jethmalani is beyond reproach considering his carefully addressed letter/invoice to the ‘Secretary to the Hon’ble Chief Minister’. In conclusion, if the Lokayukta, Retired Justice Khetrapal, pays heed, this could turn out to be a blockbuster trial under the Prevention of Corruption Act.