New Delhi: With CBI unable to show even a “prima facie” case of corruption to cross the “minimum threshold” of evidence for trial of the accused in the Delhi liquor policy case, the special MP/MLA court on Friday cautioned against probe agencies turning into tools to “influence” political outcomes. Special judge Jitendra Singh said investigations by state police, CBI or ED “cannot be initiated or sustained solely on allegations of election-funding irregularities and excess expenditure”. It noted that the exclusive prerogative to examine such allegations “lies with Election Commission of India (ECI), and the statutory remedy of an election petition under Representation of the People Act, 1951, remains the primary judicial avenue for adjudication.” A key allegation by CBI and ED against politicians in this case was that the liquor policy was tweaked to benefit the “south group” who in turn paid a Rs 100-crore bribe that was then spent on AAP’s Goa election campaign. The court said that criminal law, “particularly the extraordinary and coercive regimes of Prevention of Corruption Act and Prevention of Money Laundering Act (PMLA), cannot be employed as a substitute for election-law remedies, nor as a device to convert political accusations into prosecutable offences, unless a clear, independent, and cognisable criminal offence, wholly distinct from election-law violations, is prima facie disclosed in accordance with law”. The judge warned that if agencies such as CBI or enforcement authorities under PMLA are permitted to enter the electoral arena merely on allegations of “spending of cash”, “illegal funding” or “unaccounted expenditure”, then the “inevitable consequence would be the criminalisation of electoral competition. Such an approach would arm the executive with coercive instruments capable of influencing political outcomes, eroding the level playing field that lies at the heart of free and fair elections.” It pointed out that when such allegations are sought to be re-characterised or “dressed up” as CBI cases or PMLA proceedings, an additional and more serious constitutional concern arises. “To permit CBI to independently assume jurisdiction over election-expenditure allegations would amount to the executive arrogating itself a supervisory role over elections, a role which the Constitution has consciously and expressly denied to it. The position is no different, and indeed more restrictive, under PMLA. The statute cannot be set in motion in a vacuum,” the court stressed, adding that allegations of excess election expenditure, cash usage or undeclared campaign spending “do not, by themselves, constitute scheduled offences under PMLA.” The judge said it is “abundantly clear” that allegations of “hawala” or cash transactions, unaccompanied by independent, legally admissible evidence establishing the illegality of the source and its nexus with a defined offence, “cannot sustain criminal prosecution”. He cited Article 324, which empowers ECI to take a call if and when any matter needs to be referred to investigative agencies. “It is only upon such constitutionally anchored scrutiny, where material discloses a clear, standalone criminal offence, independent of election-law violations, that involvement of agencies like CBI or ED may be contemplated. To permit investigative agencies to act independently, without such referral or without disclosure of a legally cognisable scheduled offence, would be to invert the constitutional hierarchy, reducing EC to a peripheral observer in a domain where it is meant to be supreme,” the court noted.
