New Delhi: Granting interim bail to Delhi Chief Minister Arvind Kejriwal, the Supreme Court on Friday said he is a CM, a leader of one of the national parties and no doubt, serious accusations have been made, but he has not been convicted. The apex court stressed that he does not have any criminal antecedents and also not a threat to the society.
A bench comprising Justices Sanjiv Khanna and Dipankar Datta, in an eight-page order, said: “Once the matter is subjudice and the questions relating to legality of arrest are under consideration, a more holistic and libertarian view is justified, in the background that the 18th Lok Sabha General Elections are being held”.
The bench said prosecution has rightly pointed out that Kejriwal had failed to appear in spite of nine notices/summons, first of which was issued in October 2023 and this is a negative factor, but there are several other facets which we are required to take into consideration. “The appellant – Arvind Kejriwal is the Chief Minister of Delhi and a leader of one of the national parties. No doubt, serious accusations have been made, but he has not been convicted. He does not have any criminal antecedents. He is not a threat to the society”, the bench said.
The bench said the investigation in the present case has remained pending since August 2022 and Kejriwal was arrested on March 21, 2024. “More importantly, legality and validity of the arrest itself is under challenge before this court and we are yet to finally pronounce on the same. The situation cannot be compared with harvesting of crops or plea to look after business affairs”, said the bench.
Opposing interim bail to Kejriwal, the ED, in its affidavit, had argued that 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 ED had said if the right to campaign is treated as a basis for grant of interim bail it would breach the principles of Article 14. The ED had said that around 123 elections have taken place in the past 3 years and if interim bail is to be granted for election campaigning, then no politician can be arrested and kept in judicial custody since elections happen all year round.
The apex court, in its order, said power to grant interim bail is commonly exercised in a number of cases and interim bail is granted in the facts of each case and this case is not an exception.
The apex court said that Lok Sabha election is the most significant and an important event this year. It noted that between 650-700 million voters out of an electorate of about 970 million will cast their votes to elect the government of this country for the next five years.
“General Elections supply the vis viva to a democracy. Given the prodigious importance, we reject the argument raised on behalf of the prosecution that grant of interim bail/release on this account would be giving a premium of placing the politicians in a beneficial position compared to ordinary citizens of this country”, said the apex court.
The apex court said as the appeal is pending before it, “we do not think it would be proper for us to direct the appellant – Arvind Kejriwal to approach the trial court for interim bail/release”.
The bench said while examining the question of grant of interim bail/release, the courts always take into consideration the peculiarities associated with the person in question and the surrounding circumstances, and, in fact, to ignore the same would be iniquitous and wrong.
The bench noted that there are decisions of this court that advert to the importance of elections in democracy, described as the barometer and lifeline of the parliamentary system and its setup.
The apex court rejected the argument that the reasoning recorded by it, while considering interim bail to Kejriwal, results in grant of privilege or special status to politicians.
Citing the order passed by the apex court in former Andhra Pradesh CM Nara Chandra Babu Naidu case, the bench said: “A coordinate Bench of this court in State of Andhra Pradesh v. Nara Chandra Babu Naidu, in an appeal filed by the State, by an interim order has deleted the condition restraining the respondent therein from organising or participating in public rallies and meetings, thereby permitting him to participate in the political process. This petition seeking special leave to appeal is still pending”.
While granting interim bail to Kejriwal till June 1, the bench imposed five conditions: “(a) he shall furnish bail bonds in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the Jail Superintendent; (b) he shall not visit the Office of the Chief Minister and the Delhi Secretariat; (c) he shall be bound by the statement made on his behalf that he shall not sign official files unless it is required and necessary for obtaining clearance/ approval of the Lieutenant Governor of Delhi; (d) he will not make any comment with regard to his role in the present case; and (e) he will not interact with any of the witnesses and/or have access to any official files connected with the case”.
The bench ordered Kejriwal to surrender on June 2 and clarified that, “the grant of interim bail will not be treated as an expression of opinion on the merits of the case or the criminal appeal which is pending consideration before us”.
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