Supreme Court defers order on bail plea of Kejriwal

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Supreme Court decided to mull over the question of granting interim bail to Delhi Chief Minister Arvind Kejriwal to enable him to campaign as an Aam Aadmi Party (AAP) leader for the ongoing Lok Sabha election. | Photo Credit: Sushil Kumar Verma

The Supreme Court on May 7 decided to mull over the question of granting interim bail to Delhi Chief Minister Arvind Kejriwal to enable him to campaign as an Aam Aadmi Party (AAP) leader for the ongoing Lok Sabha election.

The Directorate of Enforcement (ED) objected, saying that bail for a "criminal" politician to canvas votes was hardly a fundamental right. For the "real aam aadmi", it would be a luxury, the ED said.

The day-long hearing wound up without an order on the question of interim bail. A Bench of Justices Sanjiv Khanna and Dipankar Datta said it may tentatively list the case on May 9, as the next week would be a tight squeeze, being the last week before the court closed for a nearly two-month-long summer holiday.

'No official duties'

The ED arrested Mr. Kejriwal on March 21 in the Delhi excise policy case, a few days after the Model Code of Conduct came into force. On May 3, the top court had made a surprise announcement that it was considering interim bail for Mr. Kejriwal due to the election. The Chief Minister had actually moved the Supreme Court against the Delhi High Court's refusal to quash his arrest and remand to custody. While the Supreme Court hearing was going on, a trial court remanded the Chief Minister to judicial custody for the sixth time till May 20.

The Bench, however, said that it would be wrong on the part of Mr. Kejriwal, assuming he got interim bail, to exercise his official duties or sign files. "Such a development would have a cascading effect," Justice Khanna observed.

Senior advocate A.M. Singhvi, appearing for Mr. Kejriwal, pleaded that such a stricture would be "humiliating" for a sitting Chief Minister. The excise policy was chucked long ago, he pointed out. The senior lawyer argued that Mr. Kejriwal had been functioning in office from August 2022, when the FIR in the case was registered. "There was no scandal," Mr. Singhvi said.

'Only due to polls'

Justice Datta said that the court was considering interim bail only on account of the election. "Otherwise, we would have reserved our judgment on your petition seeking to quash your arrest and pronounced our judgment after summer vacations," Justice Datta addressed Mr. Singhvi.

Acquiescing, Mr. Singhvi said that the Chief Minister would himself give a statement to stay away from official duties if given bail, rather than the court passing an order to that effect.

Solicitor General Tushar Mehta, along with Additional Solicitor General S.V. Raju, for the ED, attempted to punch holes in the very suggestion of bail to Mr. Kejriwal, saying that the "heavens would not fall if he did not campaign". He said that the court would send a wrong message.

Justice Khanna reasoned that Mr. Kejriwal was an elected Chief Minister and not a habitual offender. The judge said that interim bail could be granted in "exceptional circumstances".

Separate class

"But how is an elected Chief Minister any different from the real aam aadmi, the kirana owner or the agriculturist, the barber or the mazdoor… The message must not go out that all are equal but some are more equal," Mr. Mehta objected.

The top law officer questioned whether interim bail for Mr. Kejriwal would mean that politicians in jail would be treated as a separate class on the ground of election campaigning. He noted that there were a large number of MPs and MLAs facing criminal charges.

Justice Khanna said that general elections came only once in five years unlike the harvesting season, which arrived annually. "And we certainly do not want politicians accused of crimes to be treated as a separate class," the judge clarified.

Mr. Mehta said that harvesting was a necessity, as it meant food for the nation. Bail for campaigning, on the other hand, was a luxury, especially for someone who had evaded nine ED summons from October 2023. "He went for meditation. He wasted time. Maybe he would not have been arrested or would have got bail if he had a strong case. He chose not to cooperate. Now, when the High Court denies him relief and he gets arrested, he says, 'I have to campaign for elections'," the Solicitor-General contended.

Arrest timing

Justice Khanna retorted that Mr. Kejriwal was equally "entitled to argue that the arrest came just before the elections though, according to your [ED's] own arguments, his name had cropped up way back in February-March 2023".

"This case is not about kirana or agriculturist or George Orwell, who wrote that big brother is always watching. Is the Chief Minister a hardened criminal or a terrorist? By giving him interim bail, would the court enhance any kind of threat on the society? Since when did not responding to ED summons become a ground for arrest?" Mr. Singhvi asked.