The Supreme Court of India on 10th May granted Interim bail to Aam Admi Party supremo Arvind Kejriwal till 1st of June allowing him to campaign for the Lok Sabha elections. However, the court set 5 conditions on its bail order for the AAP Chief, who was arrested in the Delhi Liquor Policy scam case by the ED. The court has barred him from visiting the CM’s office or signing any files, except where his signature is necessary for obtaining approval from the Lieutenant Governor of Delhi. He is also barred from visiting the Delhi secretariat in the bail period.
Additionally, he has also been ordered not to make any comments on the current case, not to meet any witnesses in the excise policy case, and to surrender himself on 2nd June. Notably, the court, in its order, found his case to be special as he is a sitting CM and needed to do campaigning for his party. The court categorically noted that it did not grant him Interim bail based on the merits of the case but solely for “campaigning” in the ongoing Lok Sabha elections.
During the hearing, Solicitor General Tushar Mehta, representing the ED, argued that the right to campaign for an election is neither a fundamental right nor a constitutional right and not even a legal right. He argued that there can’t be any deviation only because Kejriwal is the Chief Minister. He stressed that this violates Article 14 of the constitution which underscores the need to treat everyone equally before the eyes of the law. He asked if the Supreme Court is carving out exceptions for politicians.
Granting Interim bail to Kejriwal, the court turned out SG Mehta’s objections claiming that bail to Kejriwal does not amount to privilege for politicians and that bails are determined as per the merit of individual cases.
However, there are concerns that this could set a precedent for lawyers to seek bail for their clients during the election period. Incidentally, elections in India are a regular affair, with some parts of the country going to the polls every few months.
Evidently, Khalistani separatist and “Waris Punjab De” chief Amritpal Singh had recently sought similar relief from the Punjab and Haryana High Court. The Khalistani terrorist, who is currently lodged in Assam’s Dibrugarh Jail, had approached the high court on Thursday. His lawyer appealed to the court to temporarily release Singh for seven days to file his nomination. Singh is contesting as an independent candidate from Punjab’s Sri Khadoor Sahib constituency that goes to poll on 1st June.
Responding to his plea for relief citing polls and nomination, the Punjab government on Friday informed the High Court that it had facilitated the Khalistani terrorist to file his nomination to contest the Lok Sabha polls from jail. Accordingly, his nomination was filed from Khadoor Sahib constituency in Punjab after his signatures were obtained on necessary documents in the jail, and his bail plea was dismissed as it became infructuous.
However, he can now cite the example of Keriwal’s bail to seek bail to campaign for the elections. And, his claim will be stronger, as he is a candidate himself, while Arvind Kejriwal is not contesting the Lok Sabha polls. Moreover, he can argue that while he was able to file nomination from jail, campaigning from jail will not be possible and he should be granted bail like Kejriwal.
Increasing an extra ground for politicians or individuals guised as politicians to seek bail for campaigning or be a part of the electoral process could set a dangerous precedence
It is pertinent to note that rulings of High Courts and the Supreme Court have an overarching impact on the judiciary, with their rulings used as well-established precedents in law. The Supreme Court’s acceptance of campaigning as a ground for granting bail could open Pandora’s box for lawyers representing more politicians and criminals posed as politicians to exploit this loophole. They may use the election period and the pretense of campaigning in elections to any of the three-tier system – Centre, state, or local level elections as a fatal flaw to avoid a jail term.
The newly carved-out ground for bail has raised apprehensions that hardcore criminals could infiltrate elections and seek relief from the court based on this ground, which has now been deemed one of the legitimate grounds for relief by the court. While it may not be a clinching ground for courts to grant bail, it may establish it as an extra ground to seek relief and cast aspersions on the trial process and tilt the balance of scale in favour of the appellant.
It could trigger a wave of new litigations from jailed politicians, including incarcerated AAP leader Manish Sisodia and JMM leader and former Jharkhand CM Hemant Soren, among others. While the courts have generally inclined to adjudicate cases based on individual merits, the judiciary especially the subordinate judiciary may lean towards granting bail for the campaigning/electoral process during the early phases of several cases. This could occur in cases where agencies, constrained by time since the commencement of the investigation, fail to gather conclusive evidence, in time, to outweigh this newly established ground for relief.
Incidentally, even when considering individual cases, jailed politicians such as AAP leader Manish Sisodia, JMM leader Hemant Soren, and TMC leaders Sheikh Shahjahan and Partha Chatterjee, among others, have not been proven guilty in a court of law and stand on equal footing with their colleague Arvind Kejriwal. They too may seek temporary relief during the election period, as bypassing the merits of the case renders every defense of the probing agency futile in preventing relief or bail on grounds of campaigning.
Strikingly, AAP leader Sisodia is behind bars in exactly the same case as Arvind Kejriwal, and the same litigation process and arguments can be juxtaposed in both AAP leaders’ cases. On applying the same yardsticks, the counsel of Sisodia may also achieve success in getting temporary relief. However, in this regard, jailed Khalistani terrorist Amritpal Singh, now a candidate in the political fray, stands a step higher on the pedestal as he needs to campaign for himself. While AAP is an established party that is in government in two states, Singh, being an independent has limited people to campaign for himself.
केजरीवाल चुनाव नहीं लड़ रहे हैं। अमृतपाल चुनाव लड़ रहा है। ऐसे में प्रचार के लोग अमृतपाल को इंटरिम बेल लॉजिकल होगी।
— Shiv Mishra (@shivkmishr) May 11, 2024
Furthermore, this could create a new category of litigation, as both ordinary citizens and hardened criminals may be inclined to contest elections. They might then include an additional argument in their bail pleas, which is often challenging for ordinary citizens due to limited resources and for criminals due to stringent laws. Needless to say, if hardcore politicians happen to exploit this loophole, it may end up hampering the merits of the case permanently including putting influence on witnesses, evidence tampering and quid-pro-quo.
