Two observations made in different contexts by the Supreme Court of India have raised relevant issues concerning personal liberty. The cases related to actions under the Prevention of Money Laundering Act (PMLA), and the significance of these observations lies in the extent to which courts are inclined to protect personal liberty in the face of a determined government that wants its agencies to have their way. One concerned the question whether an officer arresting a person on money-laundering charges should demonstrate the necessity for arrest for the action to be deemed valid; and the other voiced shock and revulsion at the ease and quickness with which courts were staying reasoned orders granting bail. A Bench headed by Justice Sanjiv Khanna granted interim bail, for the second time since his arrest in March, to Delhi Chief Minister Arvind Kejriwal, in the course of a discussion on the legality of his arrest by the Enforcement Directorate (ED). The 64-page verdict ended with a reference to a larger Bench the question whether the ED would have to prove the need or “necessity to arrest” a person, before effecting an arrest. Section 19 of PMLA speaks of the arresting officer being required to have “reason to believe” that the person is guilty of money-laundering before effecting arrest.

The PMLA casts a statutory obligation on an officer to both record reasons for arrest and convey grounds for arrest to the accused. Whether these obligations include a duty to demonstrate the necessity to arrest the person will have to be decided. It is established that the existence of a power is not sufficient justification for exercising it. The heartening feature of the Court’s order is that it lays down the view that the authorised officer’s decision on arrest ought to be rooted in compliance with statutory requirements, and one that a magistrate or judge can examine. The Court has also done well to reiterate that arrests under the PMLA cannot be on a mere whim; and that decisions during investigation should consider exculpatory material too, and not merely material against the accused. The other issue, regarding another Bench’s shock over courts staying bail orders, touches upon a key aspect of contemporary judicial functioning. The vehemence with which the prosecution argues its case, be it against bail or challenging a court’s order granting it, seems to be a major factor in the approach of higher courts. As the Bench noted, a stay on reasoned orders ought to be rare exceptions based on grounds such as perversity by the lower court, and not done as a matter of routine