ED files affidavit against Kejriwal’s interim bail for campaigning

The Directorate of Enforcement filed a sharply-worded affidavit in the Supreme Court on Thursday against the possibility of granting interim bail to Delhi Chief Minister Arvind Kejriwal in the liquor policy case, saying 123 elections happened in the last five years alone and if politicians are given bail for campaigning, none of them can be even arrested as elections in India are an “all-year-round-phenomenon”.

The filing of the affidavit coincided with an announcement made in open court by Justice Sanjiv Khanna, who headed the two-judge Bench which heard the Kejriwal case, that the court would pronounce its order on the question of interim bail to the Chief Minister on May 10.

Grant of interim bail to Kejriwal to campaign for Lok Sabha elections would be anathema to the rule of law, equality and create a precedent which would permit “all unscrupulous politicians to commit crimes, avoid investigation under the garb of one election or the other, be it municipal election or panchayat elections or assembly or general elections, and thereafter, upon being arrested, seek interim bail to campaign for one election or the other”. In a federal structure, one election was as good as another.

Giving the Chief Minister interim bail would create two separate classes of people in the country. “The ordinary people who are bound by the rule of law and politicians who can seek exemption from laws with the hope of securing interim bail to campaign for elections,” the ED argued.

• Read: ED to file chargesheet against Kejriwal on Friday in liquor policy case

No political leader has ever been granted interim bail to campaign. A contesting candidate in custody is not granted bail for campaigning. Even the right to vote is curtailed while in judicial custody under the Representation of People Act. Kejriwal was remanded to judicial custody for the sixth time till May 20. He was arrested on March 21.

An interim bail for Kejriwal to canvas votes for Aam Aadmi Party (AAP) as a “star campaigner” would incentivise every criminal to be a politician and be in campaign mode throughout the year while committing rampant offences. Politicians can claim no special status higher than that of an ordinary citizen. They are as much liable to be arrested and detained for committing offences as any ordinary person, the Central agency reasoned.

Bharat Rashtra Samithi leader J Kavitha and Kejriwal’s AAP colleague and former Delhi Deputy Chief Minister Manish Sisodia, both accused in the excise policy case, were denied interim relief by the apex court, the ED reminded.

‘NO PLEA FILED’

Even AAP leader Sanjay Singh was asked to try for regular bail in the liquor policy case. Kejriwal, on the other hand, had not even filed any plea for regular or interim bail before the Supreme Court or any other court.

If the right to campaign was a ground for interim bail, it would be a breach of the fundamental right to equality if a farmer was denied the same relief for harvest season or a director of a company to attend a board meeting or annual general meeting, respectively.

“There is absolutely no principle which justifies giving a differential treatment to a politician for campaigning over a farmer or a businessman who wishes to pursue his vocation,” the affidavit pointed out.

‘NOT A LEGAL right’

The right to campaign is not a fundamental right or a constitutional right or a legal right.

“There are many politicians in judicial custody under the Prevention of Money Laundering Act. Their cases were examined by competent courts which upheld their custody. There are also several political leaders in judicial custody throughout the country in non-PMLA offences… If the court extends any interim relief to Kejriwal, there is no gain saying that all of them would claim similar treatment claiming that politicians are a class of their own,” ED contended.

Bail to Kejriwal after avoiding multiple summons and on the ground of campaigning for elections would give a “judicial imprimatur” to the claim that politicians were a separate class.

The ED said Kejriwal had skipped summons in October 2023 citing elections in five States. He had ducked summons in December last year referring to the Rajya Sabha elections. He had eschewed summons in January 2024 claiming his presence was required for the Goa polls.

‘red herring’

“His argument that the timing of his arrest before the general elections would render the arrest bad is a complete red-herring and self-contradictory for the reason that for the past six months he had cited one election after another for not complying with the law which an ordinary citizen would be otherwise obliged to follow,” the Central agency noted.

The ED said the court reserved its order on interim bail after hearing Kejriwal for three days without giving the Central agency an equal opportunity to lay out its case.

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