ED opposes bail again on Kejriwal verdict eve
NEW DELHI: Arguing against interim bail for Delhi chief minister Arvind Kejriwal in the excise policy case, the Enforcement Directorate (ED) on Thursday filed an affidavit in the Supreme Court vehemently opposing any “special treatment” for political figures due to the ongoing general elections, while adding that bail for the purpose of poll campaigning would set a dangerous precedent, undermining the rule of law and equality before the law.
If bail were to be granted to politicians for the purpose of election campaigning, the agency asserted, it would create a loophole where no politician could ever be arrested or remain incarcerated in a country like India where elections are a recurrent phenomenon throughout the year.
“It is pertinent to note that around 123 elections have taken place in the last five years and if interim bail is to be granted for the purpose of campaigning in an election, then no politician can be arrested and kept in judicial custody since elections are round the year phenomenon,” said the agency in its affidavit filed a day before the court is likely to announce its decision on Kejriwal’s interim bail.
In response, Kejriwal’s legal team wrote to the Supreme
Court registry on Thursday evening, raising strong objections to the ED’s affidavit. The letter urged the registrar not to accept ED’s affidavit and take it on record because the top court has already reserved its order on the issue of interim bail and that the agency did not have the court’s permission to file any additional document.
The Aam Aadmi Party (AAP) said it has “raised strong objection to ED’s affidavit”.
“A formal complaint has been lodged his with the Supreme Court’s registry denouncing ED’s affidavit as a blatant disregard of legal procedures, especially considering that the matter is already slated for a final decision in the SC tomorrow and the affidavit was submitted without taking the SC’s approval,” the party said in a statement.
Justice Sanjiv Khanna, who leads the bench that had earlier this week reserved its verdict on the temporary bail issue, mentioned on Wednesday that the court is expected to deliver its ruling on Friday. During previous hearings, the top court signalled a potential interim bail for Kejriwal considering the ongoing general elections but expressed reservations about allowing him to perform his offi
cial duties as the CM during the bail period, citing possible conflicts.
In its affidavit on Thursday, ED highlighted that the principle of equality should apply uniformly to all citizens regardless of their political status, contending that granting bail to Kejriwal on the grounds of political expediency would not only be detrimental to the rule of law but also unfair to other individuals, such as poor farmers or small-time businessmen, whose livelihoods depend on their freedom. Solicitor general Tushar Mehta and additional solicitor general SV Raju appeared for ED in the case.
“Such an approach would incentivise every criminal to become a politician and being in campaign mode throughout the year while committing rampant offences and violations of laws in the country... right to campaign for an election is neither a fundamental right nor a constitutional right and not even a legal right,” stated the agency. It pointed out that no political leader has been granted interim bail for campaigning in past elections, and even contesting candidates are not granted bail for their campaign activities while in custody.
“Any special concession in favour of the arrestee (Kejriwal) enlarging him on interim bail for campaigning in general election would amount to anathema to the rule of law and 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 and thereafter upon being arrested, seek interim bail to campaign,” said ED.
Imploring the top court to resist the temptation to accord special treatment to Kejriwal for the sake of political campaigns, ED cautioned that interim bail to the Delhi CM would end up carving out politicians as a “class of their own” favouring unscrupulous politicians over ordinary citizens, undermining equality before the law.
“Such an approach would violate the cherished values of the Constitution which upholds the rule of law as a basic feature meaning thereby that howsoever high you might be you are not above the law... A politician can claim no special status higher than that of an ordinary citizen and is as much liable to be arrested and detained for committing offences as any other citizen,” stated ED’s affidavit.
Drawing attention to the judiciary’s consistent stance on bail, the affidavit cited previous instances where bail petitions from politicians have been rejected, emphasising the need for consistency and uniformity in judicial decisions.
“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... There are numerous examples where politicians contested elections in judicial custody, and some have even won but were never granted interim bail on this ground,” said the agency, pressing for dismissal of Kejriwal’s plea.
The affidavit rebutted the CM’s claims of political victimisation, arguing Kejriwal skipped nine summonses citing state polls during six months before he was arrested on March 21. It further referred to the Supreme Court’s previous stance on bail, citing the rejection of bail plea by co-accused Manish Sisodia and K Kavitha in the same case, underscoring the principle of equal treatment under the law for all citizens.
The developments come amid the ongoing general elections, with polling in Delhi scheduled for May 25 and in Punjab on June 1. The court’s decision on interim bail for Kejriwal is awaited. The results of the elections are set to be announced on June 4.
The case stems from allegations of irregularities in Delhi’s excise policy, which the Central Bureau of Investigation (CBI) began probing following a recommendation by Delhi’s LG in July 2022. Kejriwal, who is in judicial custody, is the third AAP leader arrested in this connection. Sisodia has been in jail since February 2023, and Rajya Sabha MP Sanjay Singh was granted bail by the top court in April this year after six months of custody.
A bench comprises justices Khanna and Dipankar Datta on Tuesday indicated willingness to grant interim bail to Kejriwal but expressed reservations about allowing him to discharge his official functions as the CM during the period of interim bail, saying it “will lead to conflict” and may have a “cascading effect”.
While ED urged the court not to release Kejriwal on bail by treating politicians as a class different from ordinary citizens, the court acknowledged Kejriwal’s unique position as both the CM and the convener of the Aam Aadmi Party (AAP) during the ongoing polls, describing it as an “extraordinary situation” warranting consideration for interim bail.
At the same time, the court raised concerns about the potential ramifications of allowing Kejriwal to sign off on official files while on interim bail. “We don’t want you to be performing your official duties. It would lead to conflict. You have continued (as the CM) and that’s your choice. We are not dealing with that issue. But today, it’s not a question of legality but propriety... We don’t want any interference in the working of the government. It will have a cascading effect,” the bench had on the day told senior counsel Abhishek Manu Singhvi, who appeared for Kejriwal in the case.
The AAP, in its statement, said Kejriwal’s arrest was an “assault on democracy”.
“ED has not only been opaque and dictatorial in its approach but also guilty of suggestio falsi (suggesting falsehood) and suppressio veri (suppressing truth)... Kejriwal’s arrest constitutes an unprecedented assault on the tenets of democracy based on ‘free and fair elections’ and ‘federalism’ both of which form significant constituents of the basic structure of the Constitution,” said the party.