The Supreme Court on Tuesday decided to mull over the question of granting interim bail to Delhi Chief Minister Arvind Kejriwal to enable him to campaign for the Lok Sabha elections.
The Directorate of Enforcement (ED) objected on the front foot, saying bail for a “criminal” politician to canvas votes was hardly a fundamental right, but a luxury a “real aam aadmi” could not even dream of.
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 next week would be a tight squeeze, being the last one 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 apex court had made a surprise announcement that it was considering interim bail for Kejriwal owing to the elections. The Chief Minister had actually moved the Supreme Court against the Delhi High Court’s refusal to quash his arrest and remand. 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 it would be wrong on the part of 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 AM Singhvi, appearing for Kejriwal, pleaded such a stricture would be “humiliating” for a sitting Chief Minister. The excise policy was chucked long ago. The senior lawyer argued that Kejriwal had been functioning in office from August 2022, when the FIR in the case was registered. “There was no scandal,” Singhvi contested.
‘Only due to polls’
Justice Datta said the court was considering interim bail only on account of the elections.
“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 Singhvi.
Acquiescing, Singhvi said 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 SV Raju, for the ED, attempted to punch holes in the very suggestion of bail to Kejriwal, saying “heavens would not fall if he did not campaign”. He said the court would send a wrong message.
Justice Khanna reasoned Kejriwal was an elected Chief Minister and not a habitual offender. The judge said interim bail could be granted in “exceptional circumstances”.
“But how is an elected Chief Minister any different from the real aam aadmi, the khirana 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 if interim bail for Kejriwal would mean politicians in jail would be treated as a separate class on the ground of election campaigning. He said there were 5,000-odd MPs and MLAs facing criminal charges.
Justice Khanna said general elections came 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.
Mehta said harvesting was a necessity. It meant food for the nation. Bail for campaigning 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.
Justice Khanna retorted Kejriwal was equally “entitled to argue that the arrest came just before the elections though, according to your (ED) own arguments, his name had cropped up way back in February-March 2023”.
“This case is not about khirana 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?” Singhvi asked.