Supreme Court hints at interim bail to Kejriwal, sets no-work condition
Supreme Court acknowledged Kejriwal’s unique position as both CM and convener of AAP during the ongoing polls, describing it as an “extraordinary situation”.
The Supreme Court on Tuesday indicated willingness to grant interim bail to Delhi chief minister Arvind Kejriwal in the excise policy case amid the ongoing general elections 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 the Enforcement Directorate (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.
However, the bench of justices Sanjiv Khanna and Dipankar Datta 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 told senior counsel Abhishek Singhvi, who appeared for Kejriwal in the case.
At first, Singhvi objected to the proposed condition citing some judicial precedents and his client’s democratic and political rights and added that it would be “very embarrassing” for him to be a CM without the power to run government. But after the court stressed that the temporary arrangement with a “balance of convenience” was considered only due to the Lok Sabha polls and not on the merits of the arguments in the case that may go on until July, Singhvi agreed that Kejriwal will not sign off on any official file. “However, there must be a fair arrangement that the lieutenant governor (LG) will not stall any proposal of the cabinet on this ground alone that the CM has not signed a file,” he added.
Responding, the bench told Singhvi that it was not for Kejriwal’s legal team to put conditions and that the “larger public interest” may require him to refrain from performing any official duties as CM.
Even as the court did not indicate any date for delivering the order on the interim bail, it turned down ED’s plea to defer consideration of the issue until the arguments in the case are complete. ED was on May 3 told by the bench that it is contemplating interim bail for Kejriwal, asking the agency to come back with potential bail conditions on Monday (May 6).
Arguing through solicitor general (SG) Tushar Mehta and additional solicitor general (ASG) SV Raju, the agency opposed the plea for interim bail, cautioning against creating a separate class for political leaders who want to campaign during elections while a common man like a farmer or a small store owner remains incarcerated for want of extraordinary consideration.
Mehta underlined that Kejriwal skipped nine ED summonses in a period of six months before he was finally arrested on March 21, and therefore he cannot argue that the timing of his arrest was to disable him from campaigning for his party during the elections. “This would send a very wrong message and demoralise a common man. If you are holding a high position, you will get bail for the luxury of campaigning whereas a farmer for whom harvesting is a matter of livelihood will not get the same liberty,” the SG added.
Responding to Mehta’s arguments, the bench tried to clarify that the court does not want to create a separate standard for politicians, but then it cannot lose sight of the fact that general elections happen once every five years and that Kejriwal was not a habitual offender or had other criminal antecedents.
“We are not going by whether he is a politician or not. Every individual involved will have some peculiar case or exceptional circumstances. We are only considering whether this person falls under exceptional circumstance since elections are there. We are not saying there is a different law for politicians,” the bench told Mehta.
The bench reserved its order on interim bail, saying it needs to “formulate an opinion” on the issue, adding that it also needs to go through the case files that contain pertinent entries by ED officers before Kejriwal and former Delhi deputy CM Manish Sisodia were arrested. Sisodia was arrested in the same case on February 23, 2023.
The bench also indicated that it would continue hearing ED’s submissions opposing Kejriwal’s plea to declare his arrest and remand as illegal on May 9.
The polling in Delhi is scheduled for May 25 while voting in Punjab, where AAP is in power in the state assembly, will be conducted on June 1. The results for the general elections will be announced on June 4.
During the hearing on Tuesday, ASG Raju disclosed that Kejriwal was not initially under scrutiny when the investigation commenced, adding the CMs involvement surfaced during the investigation following the statements of some key witnesses.
As the bench questioned the ED’s delay in investigating Kejriwal after CBI registered the case in 2022, Raju expressed concerns over the perception of malafides if Kejriwal was arrested at an early investigative stage. At this point, the court demanded to review the case files before and after the arrest of Kejriwal, Sisodia and P Sarath Reddy (the person whose statement linked Kejriwal with the alleged crime of money laundering).
The court emphasised that it would scrutinise ED’s compliance with Section 19 of PMLA during Kejriwal’s arrest, observing the provision required the agency to have adequate grounds of arrest and reasons to believe that the CM was guilty of the offence of money laundering.
“Legislature says arresting officer can arrest when he has ‘material’ and we have to read the legislative mandate in a way to promote liberty. Materials for arrest in PMLA cases is much higher than normal cases,” said the court.
Pressing for interim bail, Singhvi cited Kejriwal’s track record. “Kejriwal’s case is distinct. He’s not steeped in crime...He responded to ED’s summons,” he asserted.
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, whop is in judicial custody, is the third AAP leader arrested in this connection. Sisodia has been behind bars since February 2023, and Rajya Sabha MP Sanjay Singh was granted bail by the top court on April 2.
The Delhi CM had hurried to the Supreme Court on April 10, less than 24 hours after the Delhi high court rejected his plea against ED arrest on March 21 while holding that the agency possesses adequate evidence at this stage to suggest Kejriwal’s involvement in money laundering related to the excise policy case. The question of interim bail was raised in the previous hearing by the top court itself.
