Why SC Gave Arvind Kejriwal Interim Bail — Top Arguments In Delhi CM's Favour

The Supreme Court on Friday allowed interim release for Delhi Chief Minister Arvind Kejriwal who has been under judicial custody in connection to the Delhi Liquor Policy case.

The Supreme Court on Tuesday observed that Arvind Kejriwal is an elected representative and not a habitual offender.

Source : PTI

Arvind Kejriwal Bail: The Supreme Court on Friday allowed interim release for Delhi Chief Minister Arvind Kejriwal who had been under judicial custody in connection with the Delhi Liquor Policy case since March 21. The top court, after hearing senior advocate Abhishek Manu Singhvi and Enforcement Directorate (ED) counsel ASG SV Raju, allowed Kejriwal to be released for the purpose of election campaigning for the ongoing Lok Sabha Polls. The Delhi CM has been asked to surrender on June 2.

Here are the top arguments since his arrest that made a case for Delhi CM Kejriwal's interim release.

1) Timing of Arrest:

Out of the several arguments maid in the Supreme Court, the most prominent factor that apparantly went into Kejriwal's favour was the "timing of arrest" by the Enforcement Directorate. Senior Advocate AbhisheK Manu Singhvi appearing for Kejriwal had questioned the timing of arrest by ED after one and a half years of investigation in the case. Kejriwal had contended that his arrest was an attempt to dismantle the Aam Aadmi Party (AAP). He had also called his arrest by the ED illegal and submitted in court that the ED “illegally picked up” a sitting Chief Minister five days after the general elections were notified and the Model Code of Conduct was put in place. 

Kejriwal has called his arrest in the alleged Delhi Liquor Policy scam a prime example of the Centre's misuse of agencies like the ED to suppress "its “biggest political opponent,” the Aam Aadmi Party and its leaders.

The court had asked ED to file its reply explaining the timing of arrest. On Tuesday, the Enforcement Directorate placed a note in the Supreme Court saying that when it began investigations in the alleged Delhi Liquor Policy Scam, its investigation was not directly against Delhi Chief Minister Arvind Kejriwal and his role came up during investigation. 

The probe agency had earlier told the court that Kejriwal skipped 9 summons and his conduct led the investigation officer to form the satisfaction that he is guilty of money laundering in the alleged Delhi Liquor Policy scam. The probe agency further said that Kejriwal was only arrested after Delhi High Court refused interim relief to him.

Justice Khanna, however questioned that why ED did not start investigating his role at the outset when CBI filed first case in August 2023. The ED said they had no reason at that time as they had to investigate where the money went and build up investigation.

On hearing ED's submissions, Justice Sanjiv Khanna reminded ED that at present, the issue before the court is on compliance of Section 19 of PMLA and the court wants answer on that from the ED.

Section 19 of the PMLA empowers ED officials to arrest persons based on the material in their possession, providing a reasonable basis to suspect that an individual has committed an offence punishable under the law.

The court said that it has to examine two primary questions -- whether the arrest was made in compliance of Section 19 and why the agency took two years to arrest Kejriwal.

Justice Khanna said, "it is not good for any investigating agency to say that it takes 2 years to unearth role."

On Friday, while pronouncing the short order, Justice Khanna said that "21 days will not make any difference. Let us not draw parallels with any other case. ECIR was registered in 2022. He was arrested in March 2024... For 1.5 years he was there... he could have been arrested before or after also. Whatever it is... 21 days here or there should not make any difference" 

The court is yet to complete hearing on the legality of Kejriwal's arrest by ED. 

In the detailed order, the top court noted,  "The investigation in the present case has remained pending since August 2022. Arvind Kejriwal was arrested, as noted above, on 21.03.2024. 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."

2) Arvind Kejriwal An Elected CM And 'Not A Habitual Offender'

The Supreme Court on Tuesday observed that Arvind Kejriwal is an elected representative and not a habitual offender. The court called it an exceptional as well as an extra-ordinary case. 

The top court while hearing arguements in Kejriwal's petition challenging his arrest asked ASG SV Raju appearing on behalf of the ED, if they can complete arguing on legality of Kejriwal's arrest by 1 PM. 

ASG Raju said that he needs at least a day. The top court then said that they are here only till 2:30 PM and then there is a special bench. As the court is going into vacation and arguments on legality of arrest would take time, the bench deemed it was appropriate to hear arguments on Interim bail.

"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 top court said in its order

3) General Elections Come Once In Five Years

The Supreme Court on Tuesday said that it will hear arguments on whether an interim bail should be given to Arvind Kejriwal in light of upcoming elections. Singhvi at the outset had made a case about ensuring a level-playing field in elections.

"The election is coming and he is the elected chief minister of Delhi and this is an extraordinary case. He is not involved in any other case and is not a habitual offender," the bench headed by Sanjiv Khanna observed.

Solicitor General Tushar Mehta appearing however vehemently opposed and appealed to the top court to hear the matter fully and said that the court should consider what example it is setting by giving bail to Kejriwal. Mehta told the court that a chief minister should not be treated differently from a common man. "If a farmer cannot be granted bail to harvest crops in harvest season, how can a CM be granted bail for elections?" SG Mehta argued

The top court said that the political executives cannot be treated separately and it agrees. However, the top court observed interim bail is granted even in henious crimes and Kejriwal is an elected chief minister and national elections come only once in five years.

In the detailed order, the apex court said, "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 premium of placing the politicians in a benefic position compared to ordinary citizens of this country. 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. In
fact, to ignore the same would be iniquitous and wrong."

Justice Sanjiv Khanna while hearing arguments said, "we are in Supreme Court and we can say arrest was correct and still grant interim bail and then correct ourselves. we can." 

"At this stage, it is not possible for us to either conclude the arguments or finally pronounce the judgment. However, there is an intervening factor which has prompted us to consider and pass the present order, namely, 18th Lok Sabha General Elections, which are in progress. As the appeal is pending before us, 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. This may not be apt in view of the legal issues and contentions that are under examination and consideration before us," the order said.

The court further said in the detailed order that it is no gain saying that General Elections to Lok Sabha is the most significant and an important event this year, as it should be in a national election year.

"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 premium of placing the politicians in a benefic position compared to ordinary citizens of this country." 

The Supreme Court however made it clear that Kejriwal cannot perform any official duty as a Chief Minister as it can have a cascading effect on the case. The court has only granted bail to Kejriwal til June 1 for election campaign. The top court has directed Kejriwal to surrender to Jail authorities on June 2.