Delhi liquor 'scam': Right to campaign in elections not a fundamental right, ED in fresh affidavit against Arvind Kejriwal's bail plea

The Bench had on May 7 hinted at Kejriwal’s release on interim bail even as it said he would not be allowed to function as CM

Delhi Chief Minister Arvind Kejriwal in ED custody. PTI file

Tribune News Service

Satya Prakash

New Delhi, May 9

The Enforcement Directorate on Thursday opposed the proposed grant of interim bail by the Supreme Court to Delhi Chief Minister Arvind Kejriwal in a money-laundering case linked to the Delhi excise policy scam, asserting that the right to campaign in elections was not a fundamental, constitutional or even a legal right.

In a fresh affidavit filed in the top court ahead of May 10 crucial hearing on interim bail to the Aam Aadmi Party national convener, the ED vehemently opposed Kejriwal’s possible release to campaign in the ongoing Lok Sabha polls, pointing that Kejriwal has not filed any plea for regular or interim bail before any court.

“It is relevant to note that the right to campaign for an election is neither a fundamental right nor a constitutional right and not even a legal right… 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,” the ED submitted.

“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,” the probe agency said in the affidavit.

“If the right to campaign is treated as a basis for grant of interim bail it would breach the principles of Article 14 for the reason that harvesting for a farmer would be an equally important factor seeking interim bail as would a board meeting or an annual general meeting for a director of a company who commits a crime as these are their respective vocations or professions,” it said.

“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,” the probe agency contended.

The ED urged the Bench to deny interim bail to Kejriwal, saying “it would not only be against the settled principles of law but (also) violate the rule of law which is a basic feature of the Constitution.”

Arrested on March 21, Kejriwal is currently lodged in Tihar Jail in the national capital. He has challenged the Delhi High Court’s April 9 verdict upholding his arrest in the case.

On Tuesday, a Delhi Special Court sent him to judicial custody till May 20.

A Bench of Justice Sanjiv Khanna and Justice Dipankar Datta – which had on May 7 hinted at granting interim bail to Kejriwal to enable him campaign in the Lok Sabha polls – is likely to pronounce its order on Friday.

However, noting that around 123 elections have taken place in the last five years, the ED on Thursday said, “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 all year round phenomena.”

The agency contended that “Even the right to vote while in judicial custody which is considered by this court as a statutory/constitutional right, is curtailed by statute by virtue of Section 62(5) of the Representation of People Act and upheld in Anukul Chandra Pradhan versus Union of India (1997).”

“Grant of interim bail merely for political campaigning would militate against and would be discriminatory to the rule of equality as work/business/ profession or activity of every citizen is equally important to him or her. It would not be possible to hold that the work of a small farmer or a small trader is any less important than political campaigning of a political leader who admittedly is not contesting,” the ED submitted.

Quoting from the top court’s verdict rejecting former Delhi Deputy Chief Minister and co-accused Manish Sisodia’s bail plea, the ED said, “Rule of law means that laws apply equally to all citizens and institutions, including the State. Rule of law requires an equal right to access to justice for the marginalised. The rule also mandates objective and fair treatment to all.”

Seeking parity with Kejriwal in terms of time granted to argue his case, the ED said, “This Court would take the call about grant/refusal of interim bail/release after 3-day long arguments of the petitioner. As against this, the respondents (ED) have just begun. On this ground also this court may take a final view about the petition after fully hearing the respondent particularly when there is no medical urgency which requires consideration of interim release without fully hearing the respondents.”

The Bench had on May 7 hinted at Kejriwal’s release on interim bail even as it said he would not be allowed to function as Delhi Chief Minister and sign official files.

“He (Kejriwal) is an elected Chief Minister of Delhi. The elections are around the corner. These are extraordinary situations. He is not otherwise a habitual offender...or somebody who has been involved in many other cases,” the top court had said.

“What an example we are setting… Are other people less important than a chief minister? Are we carving out an exception for politicians? Would campaigning for elections be more important than a farmer sowing seeds in his farms?” Solicitor General Tushar Mehta had told the Bench, opposing his interim bail on behalf of the ED.

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