Kejriwal bail an interim order, may not set legal precedent: Senior Advocates

Delhi Chief Minister Arvind Kejriwal

The Supreme Court (SC) judgment granting interim bail to Delhi Chief Minister (CM) Arvind Kejriwal so that he can campaign in the ongoing Lok Sabha elections, may not become a legal precedent as it is only an interim order, senior advocates told Moneycontrol.

“It is only an interim order which does not decide on any proposition of law, much less upset any element of criminal jurisprudence. It doesn’t declare or make politicians a separate class,” said Senior Advocate and former Additional Solicitor General (ASG) Sanjay Jain.

Jain further noted that the apex court has not had the occasion to go into the question as to whether the profession or professional needs of a person can be recognised as a ground for grant or refusal of bail. He said, “Not much should be read into this order. It is just like many orders, passed every day by the Hon’ble Supreme Court under Article 142 of the constitution, using its extra ordinary powers to fill up vacuums.”

Echoing a similar view, Senior Advocate Gopal Sankaranarayan noted that the SC has ordered interim — not regular — bail. A regular bail is one where a court orders the release of a person from custody, on getting a bond and an undertaking that the person will not obstruct the course of justice. However, an interim bail is one which is granted for a limited period of time and is only a temporary measure.

“Additionally, the court has considered Kejriwal's past conduct and whether he would abscond or be a threat to society, and decided he could be permitted to join campaigning only till June 1, after which he goes back into custody,” explained Sankaranarayan. The Senior Advocate noted that this order could be a limited precedent to similarly placed persons, but only for the purpose of interim bail.

Senior Advocate Percival Billimoria noted that in 2009, the apex court had ruled that democracy is part of the basic structure of the constitution and that free and fair elections are essential. “The question is whether releasing someone on the grounds that he wants to campaign will ensure free and fair elections.”

According to Billimoria, the principle that ‘justice must be seen to be done’ has weighed heavily on the SC. In 1924, the chief justice of England, Lord Hewart, had famously said that, “Justice must not only be done, but must also be seen to be done.”

“Mr Kejriwal, on his part, should also ensure the spirit of free and fair elections by not using the verdict to pontificate about dictatorship or democracy being in danger. If democracy was indeed in danger, he would not have been able to say it in the first place and would not have been released as well. Such a narrative only gives the country a bad name and is far from the reality,” asserted Billimoria.

Senior Advocate and former ASG Vikas Singh noted that while the Enforcement Directorate (ED) had sent Kejrwal nine summonses between October 2023 and March 2024, they chose to arrest him after the last one, once the elections were announced.

“Why did they (ED) not arrest him after the first or second notice? Do they show the same indulgence to anybody else? They treated him like a special case, waited for the elections to be announced, and only then arrested him,'' said Singh. He noted that such things weighed with the court while granting Kejriwal interim bail, and added: “Although this is an interim bail, according to me, this case deserved regular bail.”

On May 10, the apex court granted interim bail to Kejriwal till June 1, to allow him to campaign for the Lok Sabha elections. The court noted that, “Kejriwal has no criminal antecedents and is not a threat to society.”

On May 9, the ED filed an affidavit opposing relief to Kejriwal. The agency, which investigates economic offences, said that on grounds of equality, we cannot hold the work of a small farmer or a small trader at a lower pedestal than Kejriwal's profession. Hence, it would not be appropriate to grant him interim bail, especially when he is not contesting the election.

The Delhi CM was arrested on May 21 by the ED in connection with the liquor policy case.