INX Media Case: What Chidambaram’s Lawyers Argued In Supreme Court

The Supreme Court on Tuesday extended P Chidambaram’s protection from arrest by the Enforcement Directorate till tomorrow even as it heard arguments from his lawyers against custody granted to the Central Bureau of Investigation.

The former finance minister is in CBI custody till Aug. 30 for his role in the alleged irregularities in approval for foreign investment in INX Media in 2007. Senior Advocates Kapil Sibal and Abhishek Manu Singhvi argued that there are no grounds to warrant his arrest as he cooperated in the investigations and answered all queries put forward to him.

Here are some of the key arguments made by Chidambaram’s legal team:

Objection to documents in sealed cover:

On day one, Solicitor General Tushar Mehta sought to submit certain documents related to the investigation in a sealed cover to the Supreme Court bench. It was opposed by Chidambaram’s lawyers.

Sibal argued that secret submissions in such a manner cannot be relied upon by courts as they take away Chidambaram’s right to respond. The probe agencies have not maintained even a case diary which is mandated by law for all investigations being carried out by the agencies, he argued.

“Handing over document or reports/proceedings for investigation in a sealed envelope is a concept alien to the statutory regime, as applicable in India...,” Chidambaram’s counsel said in the affidavit filed in the Supreme Court. “It is submitted that the Directorate of Enforcement cannot produce any document or any report for the perusal of any court without maintaining a case diary.”

Chidambaram has not been evasive during interrogation:

The probe agencies argued that Chidambaram has not been cooperating in the investigation and instead evaded questions.

Sibal said the agencies have not questioned his client on any of the allegations of foreign properties Chidambaram is alleged to have amassed. Instead, the questions put forward included questions such as “do you have a twitter account”.

The counsel argued that the transcripts of the questions put forward to Chidambaram during the interrogation and his answers must be brought on record to determine if he has been evasive.

Media trial against Chidambaram:

Chidambaram’s counsel argued that he has not been named in any of the first information reports related to the INX media case nor has any charge sheet been filed against the former finance minister.

The probe agency makes unsubstantiated allegations of overseas properties and bank accounts in affidavit in courts and then leaks it to the media, Sibal said. The intention behind the arrest is only to humiliate Chidambaram, Singhvi argued.

Chidambaram’s affidavit said that he “has no account or any property abroad much less 17 accounts and 10 properties, as alleged by the respondent ED. It is further submitted that each and every asset owned by the petitioner has been disclosed in statutory filings and he has no asset other than the assets disclosed therein.”

Chidambaram’s lawyers urged the top court to direct the Enforcement Directorate to submit details of the alleged accounts and properties along with proof of his ownership in court so that the agency becomes liable for proceedings against them if it is found to be false.

Alleging that one such affidavit by the agency made its way to a leading newspaper even before the hearing could take place in court, Sibal said they will withdraw their appeal if even one such allegation can be proved.

The Solicitor General denied any media leaks by the agency.

Alleged offences not recognised as crimes when they were committed:

Singhvi argued that the offences under the Prevention of Money Laundering Act which Chidambaram is alleged to have committed were not even recognised as crimes when they were supposedly committed. The law bars retrospective application of criminal offences, he said.

To substantiate his point, Singhvi referred to. Article 20 of the Constitution that prohibits charging an individual with an offence that was not a crime at the time it’s allegedly committed. “They are painting him as a king pin for conduct that wasn’t even a crime at the time.”

Alleged offences not grave enough to warrant arrest:

The Delhi High Court, while denying anticipatory bail to Chidambaram, held that the gravity of offences alleged to have been committed by Chidambaram was one of the reasons to deny bail.

His legal team contested the opinion of the high court on the grounds that the term “grave offences” is not subjective and has a very specific meaning in law and is defined in the Code of Criminal Procedure.

Singhvi argued that an offence cannot be considered grave only because a lawyer argues so and even the judge has a limited role in holding an offence to be grave. “For some people, rape is the most-grave offence, for some murder is the most serious crime, for others it may be sedition.”

In law, offences which carry a punishment of more than seven years are considered to be grave, he contented, adding that offences alleged to have been committed by Chidambaram carry a prison term of less than seven years.

The Enforcement Directorate, represented by Solicitor General Mehta, will present the probe agency’s version on Wednesday.