Nothing ‘exceptional’ in bail to Arvind Kejriwal: Supreme Court

The Supreme Court on Thursday firmly refuted the Enforcement Directorate’s (ED) contention that granting interim bail to Delhi chief minister Arvind Kejriwal and agreeing to examine the legality of his arrest in the excise policy case was an “exceptional” exercise, emphasising that all individuals, irrespective of their status, are entitled to pursue the same legal recourse and remedies.

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Stating that the right to seek judicial review of an arrest are fundamental legal entitlements available to every citizen, a bench of justices Sanjiv Khanna and Dipankar Datta maintained that the Constitution gave people the right to approach constitutional courts directly assailing arbitrary or illegal detention.

At the same time, the bench reiterated its May 10 order, clarifying that Kejriwal will have to surrender on June 2 after the completion of the 21-day interim bail granted to him for political campaigning due to the ongoing general elections.

“Our order is very clear. We have fixed a timeline and that’s the direction of the apex court. If the rule of law is to be followed, it has to be followed in compliance with the order. And our order is very clear. We make it clear that we have not made any exception in favour of anyone when we passed this order [of interim bail],” said the bench.

The court was responding to a complaint by solicitor general (SG) Tushar Mehta, appearing for ED, highlighting a statement by Kejriwal on May 12 during his roadshows in the Capital that he would not have to go back to jail if Delhi chose to vote for the Aam Aadmi Party (AAP).

While the SG compared Kejriwal’s statement to a “slap on the system”, the bench retorted that what the CM said could be his “assumptions” since the May 10 order of the court is “very clear” about the period of the temporary bail. It also told Mehta that Kejriwal’s statement may not breach the other stipulation of his bail that restrained him from speaking about his role in the case.

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Senior counsel Abhishek Manu Singhvi, representing the AAP chief, took umbrage at the SG’s mentioning of Kejriwal’s statement, terming it an attempt to prejudice the court. Singhvi said that if ED were to put his client’s statement on record, he was also willing to adduce a statement by a senior minister of the central government commenting upon the bail order.

Although Singhvi did not name the minister and the court interjected to reiterate its order, it was clear that the senior lawyer was referring to union home minister Amit Shah’s interview with ANI in which the BJP leader said that the interim bail granted to the Delhi CM was not a “routine judgment”, adding that many people believe “special treatment” has been given to Kejriwal.

The bench had on May 10 granted Kejriwal temporary bail till June 1, rejecting ED’s argument that the CM’s release for political campaigning would imply preferential treatment for politicians, and highlighting the significance of elections in a democracy. Kejriwal was arrested by ED on March 21 in connection with a money laundering probe pertaining to alleged irregularities in the now-cancelled Delhi excise policy 2021-22. After his challenge to the ED arrest was nixed by the Delhi high court on April 9, the CM moved the Supreme Court, painting a picture of a politically motivated witch hunt orchestrated by the ruling BJP at the Centre and emphasising the wider implications of his arrest for democratic governance and the rule of law in India.

Kejriwal was the third AAP leader arrested in the case. Former Delhi deputy CM Manish Sisodia was arrested in this case on February 23, 2023, and remains incarcerated. AAP MP Sanjay Singh was released on bail on April 2 after the top court asked ED why Singh should be kept behind bars after serving six months in jail, considering that there doesn’t appear to be any concrete evidence against him, and no money has been recovered linking him to the alleged money laundering offence.

On Thursday, when the bench resumed hearing Kejriwal’s petition, SG Mehta urged the top court to refrain from laying down a precedent where a man (Kejriwal) says he is too big to go to the trial court and approached a constitutional court directly.

But the bench replied that it cannot completely oust the jurisdiction of a person to move a high court challenging his arrest and remand even though the judges exercise a “self-imposed judicial restraint” in entertaining such a plea at first instance. “There can be cases of grave irregularities and violation of rights,” said the bench.

Mehta said that his submission was not that nobody can move the high court, but he was more concerned about the “gate” that has been opened for one person which will prompt others to also ask for such a relief.

The bench, however, retorted: “Gates are already open for everyone... and every ordinary citizen already gets it. We have recently heard more than 300 cases challenging arrests under the GST Act.”

It also said that when a person arrested under the Criminal Procedure Code can file a writ petition under Article 226 before a high court against arrest, there seemed no rationale why a person arrested under the PMLA could not do so.

“Therefore, where is the question of differentiating between a common man and others? Don’t compare and say ordinary case and this case are any different,” said the bench, adding it would examine the contours of Section 19 of the PMLA under which an accused is arrested, and the scope of judicial scrutiny.

During the day-long hearing, the bench raised key questions about the fairness of the investigative process and the weight accorded to exculpatory materials, questioning whether the investigating officer (IO) can disregard exculpatory evidence entirely while exercising arrest powers.

Also representing ED, additional solicitor general SV Raju defended the subjective nature of the IO’s satisfaction under Section 19, arguing that not all materials need to be reflected in the arrest reasons. The bench, however, cautioned that withholding exculpatory materials could prevent the accused from effectively seeking bail.

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The bench also delved into the sufficiency of evidence in Kejriwal’s case, with the ASG asserting the existence of evidence supporting the arrest, including allegations of bribery and misuse of funds. To this, the bench emphasised the need for a stringent examination of the evidence preceding the arrest, adding that post-arrest materials may not influence the decision unless related to the complaint.

Moreover, the bench said that it would not substitute the agency’s “reason to believe” about the guilt of an accused with its own while adding that any quashing of arrest would be based on relevant materials not considered. The hearing in the case remained inconclusive and is expected to continue tomorrow afternoon.