On May 10, the Supreme Court bench of Justices Sanjiv Khanna and Dipankar Datta granted interim bail to Delhi Chief Minister Arvind Kejriwal till June 1. Kejriwal was arrested by the Enforcement Directorate (ED) in the Delhi Liquor Policy case on March 21, just days after the Election Commission announced the Lok Sabha election schedule. The Supreme Court bench heard arguments from lawyers representing Kejriwal and the ED, respectively, before making their decision. It was not an easy ruling, as the court had to balance Kejriwal’s right to campaign for his party in the ongoing Lok Sabha elections against the ED’s stance that Kejriwal should not receive differential treatment from a common accused under judicial custody in order to uphold the rule of law.
On May 7, the Supreme Court had expressed an inclination to grant Kejriwal interim bail to ensure a level playing field during the Lok Sabha election campaign. In response, the ED sought to dissuade the court by submitting a fresh affidavit to the Supreme Court Registry after the conclusion of arguments—a departure from usual practice that Kejriwal’s legal team vehemently objected to, as they were deprived of an opportunity to respond to the ED’s new contentions before the bench delivered its order on May 10.
Ultimately, the bench remained uninfluenced by the ED’s belated affidavit and granted Kejriwal interim bail, consistent with its earlier oral observations favouring this outcome during the hearing.
In its affidavit, the ED argued that the right to campaign for an election is neither a fundamental nor a constitutional right, and not even a legal right. The ED relied on the Delhi High Court’s 2017 decision in Election Commission vs Mukthar Ansari to support this position. However, in that case, while the trial court had released the accused Ansari on custody-parole for the purpose of campaigning in the Uttar Pradesh Assembly election, the High Court found his release on custody-parole was illegal because he was an undertrial, not a convict. Nonetheless, the High Court conceded that Ansari had the right to seek bail for the purpose of campaigning.
In this file photo from March 28, 2024, Delhi Chief Minister and AAP Convenor Arvind Kejriwal leaves the Rouse Avenue Court in the excise policy-linked money laundering case in New Delhi. | Photo Credit: ATUL YADAV
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Justice Mukta Gupta, who authored the High Court judgment, had observed: “The legal right of a candidate to contest an election does not translate into a legal right to canvass for his candidature. Further, the requirement of a candidate to canvass in an election for himself is always subservient to the larger public interest i.e. the Constitutional mandate of holding a free and fair election. No candidate can be permitted to do any act which interferes with the process of a free and fair election.”
The two cases
The differences between the Ansari case and that of Kejriwal are too obvious. First, Kejriwal is not merely a candidate contesting the Lok Sabha elections but the head of the political party as well as the State government, and one of the star campaigners of the party in the ongoing election. Secondly, unlike in the Ansari case, the Election Commission has not alleged that Kejriwal’s release would interfere with the process of a free and fair election. Denying interim bail to a contesting candidate in custody for their own campaigning is different from denying the same to the head of a political party, especially an opposition party, for the purpose of campaigning for elections.
In the Delhi High Court case, Justice Mukta Gupta concedes that interim bail for campaigning is a relevant factor but adds that it cannot be granted outside the parameters for granting bail laid down by the Supreme Court. However, the fact that no political leader has been granted interim bail for campaigning cannot be grounds for denying it to Kejriwal if he otherwise satisfies the parameters for granting bail per the Court’s decisions.
The Supreme Court bench, which heard the ED’s arguments on May 7, appeared to understand this difference. When the Solicitor General Tushar Mehta, representing the ED, cautioned that granting interim bail to Kejriwal would send a wrong message to other accused politicians who may then seek interim bail on the grounds of campaigning if in custody, Justice Khanna quipped: “General elections happen once in five years.”
AAP leaders Saurabh Bhardwaj, Gopal Rai and Atishi Singh during a press conference after the Supreme Court granted interim bail to Delhi Chief Minister and AAP convenor Arvind Kejriwal till June 1, at party office, in New Delhi on May 10, 2024. | Photo Credit: PTI
The ED’s affidavit in the case states, “No political leader has been granted interim bail for campaigning even though he is not the contesting candidate. Even a contesting candidate is not granted interim bail if he is in custody for his own campaigning”.
Justice Khanna told the Solicitor General that he did not appreciate the argument that granting Kejriwal interim bail would militate against denying bail to other accused, who may be small farmers or traders, as it would seem discriminatory and violate the rule of equality, since work/business/profession is equally important to every citizen. The bench appeared to give due weight to Kejriwal’s submission that denying interim bail would irreversibly setback his party’s campaign and ability to persuade the electorate, thereby compromising free and fair elections, considered a basic Constitutional feature by the Apex Court.
The ED submitted that a politician can claim no special status higher than an ordinary citizen and is equally liable for arrest and detention for committing offences. However, the Supreme Court is yet to fully hear Kejriwal’s challenge to his arrest, and this is not even one of the grounds cited by him for interim bail. Therefore, the ED’s submission does not answer the Court’s question on why it could not grant Kejriwal interim bail due to the ongoing election.
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The ED argued that treating the right to campaign as a basis for interim bail would breach Article 14 principles, as harvesting would be equally important for a farmer or a board meeting for a company director who commits a crime, as these are their respective vocations. Justice Khanna responded by pointing out that if a farmer-accused misses a harvest due to denial of bail, it is not irreversible as he can prepare for the next harvest. However, general elections held once every five years belong to a different category, as a rival party may suffer an irreversible setback if its president is denied the opportunity to campaign.
Question of propriety
Justice Khanna, however, made it clear that during the period of interim bail, Kejriwal should not sign any official files as the Chief Minister of Delhi, as it would clearly lead to a conflict of interest and have a cascading effect, unless it is required and necessary for obtaining clearance/approval of the Lieutenant Governor of Delhi. Also, he would not make any comment regarding his role in the present case, and he would refrain from interacting with any witnesses or accessing official files connected with the case.As Justice Khanna put it, this prohibition is imperative from the perspective of propriety, although Kejriwal might have decided not to resign as Chief Minister for his own reasons.
The bench’s decision to grant Kejriwal interim bail, despite the ED’s vehement opposition, shows that it was more concerned about keeping the leader of a prominent political party out of custody during the elections than immediately determining the legality of his arrest. A prolonged process to determine the arrest’s legality could have defeated the very rationale of ensuring free and fair elections in the meantime. The bench observed: “While examining the question of grant of interim bail/release, the courts always take into consideration the peculiarities associated with the person in question and the surrounding circumstances. In fact, to ignore the same would be iniquitous and wrong.” The bench clearly conveyed to the ED that the general elections provide the vis viva (vital force) to a democracy.
V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues.
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