It is both timely and necessary to reflect on the conduct of investigative agencies over the past year, particularly in their use of arrest powers. These agencies, vested with the responsibility of ensuring justice, often find themselves at the crossroads of legal authority and constitutional accountability.
Among the contentious issues that dominated discussions last year was the emerging concept of “insurance arrests” - a practice criticised for prioritising prolonged detentions over legitimate investigative needs, thereby undermining the constitutional guarantees of liberty and dignity.
The term “insurance arrest” came into the spotlight during the legal defense of former Delhi Chief Minister Arvind Kejriwal in the Delhi liquor policy case. Senior Advocate Dr. Abhishek Manu Singhvi, representing Kejriwal, argued that such arrests serve as a preemptive strategy to frustrate bail or extend incarceration unnecessarily, with little regard for their actual necessity. This practice has drawn sharp criticism for its potential misuse of investigative powers, particularly in politically sensitive cases, where the line between ensuring justice and exercising undue control appears increasingly blurred.
This article critically analyses the newly emerged concept of “insurance arrest” as introduced by Dr. Singhvi. It provides a critical appraisal of the Delhi High Court judgment and also the judgement of Justice Ujjal Bhuyan while granting bail to Kejriwal. It also explores the broader implications of the role of special investigation agencies, which seem to have deviated from their assigned tasks.
Though the term ‘insurance arrest’ is not defined in law and has also not been subject to judicial interpretation, its recent use in Kejriwal’s case challenging his arrest by the Central Bureau of Investigation (CBI) has sparked significant debate. Insurance arrest, as referred to by Dr. Singhvi, can be understood to be a practice where an investigating agency continues to keep an individual in detention for extended periods under the guise of safeguarding ongoing investigations. In many instances, this form of arrest continues without any clear justification to warrant such prolonged detention. This serves as an ‘insurance policy’ for the agencies, allowing them to exercise control over the accused, while purporting to continue the investigation of the case to gather evidence. Unfortunately, this practice appears to prioritise convenience for investigation agencies over the accused’s fundamental rights of life, liberty and fair trial.
The recognition of insurance arrest reflects a growing trend of prosecution tactics, particularly in politically sensitive cases such as the Delhi liquor policy case, where detention is sought to be extended without substantive justification. It can be said to oppose the established principles of law, including the presumption of innocence and the right to personal liberty, which are integral to the ideals of justice and fairness. As a consequence, insurance arrests seek to incarcerate accused persons for an indefinite period without a clear legal foundation.
The conundrum which gave rise to the term ‘insurance arrest’ came about when on June 26, 2024, the CBI arrested Kejriwal in the Delhi liquor policy case. This led to the filing of writ petitions before the Delhi High Court challenging the said arrest and seeking the grant of bail.
The High Court, while upholding the legality of the arrest of Kejriwal, rejecting his bail application, observed that continued detention was required to safeguard the integrity of the ongoing investigation, given the complexity of the case. This was premised on the ground that Kejriwal can tamper with the evidence and influence witnesses, in his capacity as the Chief Minister of Delhi and Convener of the Aam Aadmi Party. However, the judgment of the High Court raised concerns regarding the question of whether sufficient grounds existed to justify such prolonged detention. By focusing primarily on the compliance of the provisions of an arrest under the Code of Criminal Procedure, 1973 (CrPC), the High Court has simply brushed away the concerns that the arrest of Kejriwal was an insurance arrest. '
It is interesting to note that the High Court did not take into account the fact that since documentary evidence was already in the possession of the prosecution, there cannot be any question of tampering with the witnesses. Moreover, with respect to the witnesses being influenced, it could have been dealt with by imposing strict conditions when granting bail. These questions were succinctly dealt with and answered by the Supreme Court a few days later in the case of Manish Sisodia v. Enforcement Directorate.
The High Court’s judgment was challenged before the Supreme Court in Arvind Kejriwal v. CBI. The Supreme Court bench comprising Justices Surya Kant and Ujjal Bhuyan delivered a split opinion on key aspects of the arrest as regards the timing, power and the necessity. While both judges agreed on the final relief to grant bail to Kejriwal, their reasoning, particularly regarding the necessity of arrest and judicial intervention at different stages, diverged significantly. This analysis examines the key points of divergence and convergence in their judgments.
While Kant J upheld the legality, timing and necessity of the arrest, Bhuyan J's opinion, though not holding the arrest illegal, provides a crucial critique on the misuse of arrest powers, directly resonating with the concerns surrounding insurance arrest.
Bhuyan J expressed significant reservations about both the timing and the necessity of Kejriwal’s arrest by the CBI, observing that for 22 months, it did not arrest him and that it did so only after he was granted bail in the ED case. Thus, he observed, “a view may be taken that such an arrest by the CBI was perhaps only to frustrate the bail granted to the appellant in the ED case.” It can be said that the arrest by the CBI was not a step genuinely required for further investigation, and Bhuyan J opined that the power to arrest must not be exercised arbitrarily or as a means of control by investigative agencies, particularly when the case lacks an urgent need for custodial interrogation.
His judgment emphasised the principle that evasive responses or perceived non-cooperation during questioning are insufficient justifications for prolonged detention. It reinforces the protection of personal liberty, holding that arrest should be justified by clear, legitimate grounds, rather than as a strategy to delay an individual's release. At the same time, it highlights the balance between the state’s authority to arrest and the fundamental rights of the individual, reflecting on the perils of insurance arrest as a form of unwarranted and indefinite detention that undermines justice.
While discussing the Delhi Liquor policy case, it is of prime significance to delve into the role of the special investigation agencies such as CBI and ED. These agencies, which are entrusted with investigating complex criminal cases, have come under scrutiny for their approach to arrests and detentions, often leading to extended legal battles over bail. While their mandate is to ensure justice by tackling corruption and financial wrongdoing, questions have arisen about the potential misuse of their powers, particularly in politically sensitive cases. Several recent instances highlight the role of the CBI and the ED, where individuals facing serious charges have eventually been granted bail. In consonance with the same, various observations have been made by the Supreme Court in such cases, while granting bail. Recently, in Arvind Kejriwal’s case, Justice Bhuyan opined that:
"32. …… It is in public interest that CBI must not only be above board, but must also be seen to be so. …… Every effort must be made to remove any perception that the investigation was carried out fairly and that the arrest was made in a highhanded and biased manner. 33. In a functional democracy governed by the rule of law, perception matters. Like Caesar's wife, an investigating agency must be above board. Not long ago, this court castigated the CBI comparing it to a caged parrot. It is imperative that CBI dispels the notion of it being a caged parrot. Rather, the perception should be that of an uncaged parrot."
It is pertinent to note that the critical examination by Bhuyan J has nipped the practice of insurance arrest in the bud itself. His insights not only challenge the legitimacy of such arrests, but also criticise the role of investigative agencies. The strict approach and rationale serve as a critical reminder that the authority to arrest must always be balanced by the necessity of the arrest, and prolonged detentions must be subject to rigorous judicial scrutiny to prevent the erosion of fundamental rights. By underscoring the difference between the power to arrest and the need for arrest of investigative agencies, the Supreme Court has reaffirmed the sanctity of personal liberty in the Indian criminal justice system. As we move forward it is imperative that legal frameworks evolve to uphold these principles safeguarding against arbitrary actions that threaten the basic foundation of personal liberty.
Prachi Tripathi and Rushan Salim Suri are Law Students at Faculty of Law, Jamia Millia Islamia.