Bail to Kejriwal to campaign will end arrests of politicians as elections are year-round phenomenon in India, ED tells Supreme Court

The Directorate of Enforcement (ED) on Thursday cautioned the Supreme Court against granting interim bail to Delhi Chief Minister Arvind Kejriwal in the liquor policy case, saying that if “unscrupulous” politicians are given bail for campaigning, none of them can ever be arrested, as elections are an “all-year-round phenomenon” in India.

There were 123 elections across the country in the last five years alone, the ED said in a 44-page affidavit.

The affidavit coincided with an announcement made in open court by Justice Sanjiv Khanna, who heads 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. The case is listed as item 50 before Justices Khanna and Dipankar Datta on Friday.

‘Will create two classes’

Grant of interim bail to Mr. Kejriwal to campaign for the ongoing Lok Sabha election would be 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, 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”, the ED said. In a federal structure, one election is as good as another, it noted.

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.

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. Mr. Kejriwal, who was arrested on March 21, was remanded to judicial custody for the sixth time till May 20.

‘Bad precedent’

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

‘Differential treatment’

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 the director of a company to attend a board meeting or annual general meeting.

“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, adding that 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 Mr. Kejriwal, there is no gainsaying that all of them would claim similar treatment claiming that politicians are a class of their own,” the ED contended.

‘Skipped summons for polls’

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

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

“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 claimed that the court had reserved its order on interim bail after hearing Mr. Kejriwal for three days without giving the Central agency an equal opportunity to lay out its case.