Jailed Delhi Chief Minister Arvind Kejriwal, who has sought 'relief' from the Supreme Court to enable him to campaign for the Lok Sabha polls, faced opposition from the Enforcement Directorate (ED), which is probing the AAP leader's role in a multi-crore excise policy.
In a fresh affidavit filed on Thursday in the apex court, the ED opposed interim bail for Kejriwal, stating that the right to campaign for elections was "not fundamental" and that no political leader has ever been granted interim bail for campaigning, even if they are not contesting polls.
The move comes a day before the Supreme Court is set to hear Kejriwal's interim bail plea in the case on Friday. Sources also said the ED is preparing to file a chargesheet in the liquor scam in which Kejriwal has been named as the kingpin.
Interestingly, the ED said such an approach would incentivise every criminal to become a politician and being in campaign mode throughout the year while committing rampant offences and violations of laws in the country.
"Around 123 elections have taken place in the past three years and if interim bail is granted for election campaigning then no politician could be arrested and kept in judicial custody since elections take place all year round," the ED said.
It said there are numerous examples where politicians contested elections in judicial custody and some have even won but were never granted interim bail on this ground.
"It is relevant to note that the right to campaign for an election is neither a fundamental right nor a constitutional right and not even a legal right," the agency said.
It said to its knowledge, "no political leader has been granted interim bail for campaigning even though he is not the contesting candidate. Even a contesting candidate is not granted interim bail if he is in custody for his own campaigning".
"In light of the above, any special concession in favour of the arrestee enlarging him on interim bail for campaigning in general election would, in the humble submission of the respondent, amount to anathema to the rule of law and equality and create a precedent which would permit all unscrupulous politicians to commit crimes, avoid investigation under the garb of one election or the other be it municipal election, or panchayat election or Assembly election or general election and thereafter upon being arrested, seek interim bail to campaign for one election or the other thereby creating two separate classes in the count viz. ordinary people who are bound by the rule of law as well as the laws of the country and politicians who can seek exemption from the laws in the hope of securing interim bail to campaign for elections. In this regard, it may be noted that in the past five years, 123 elections have been held in various states in India," it said.
The ED said in a federal structure, no set of election is more significant than another and therefore, every politician at every level would argue that if he is not let out on interim bail, he would suffer irreversible consequences.
"Under the Prevention of Money Laundering Act alone presently there are many politicians who are in judicial custody and their cases are examined by competent courts upholding their custody.
“There must be several political leaders in judicial custody throughout the country in non-PMLA offences.
“There is no reason why a special prayer for a special treatment by the petitioner be acceded to".
"Grant of interim bail merely for political campaigning would militate against and will be discriminatory to the rule of equality as work/business/ profession or activity of every citizen is equally important to him or her. It would not be possible to hold that work of a small farmer or a small trader is any less important than political campaigning of a political leader who admittedly is not contesting.
"This court would take the call about grant, refusal of interim bail/release after three-day long arguments of the petitioner. As against this, the respondents have just begun. On this ground also this court may take a final view about the petition after fully hearing the respondent particularly when there is no medical urgency which requires consideration of interim release without fully hearing the respondents," the affidavit said.
"If the petitioner is extended any interim relief on account of him being a politician for the purposes of campaigning in general elections for his part there is no gain saving that all politicians incarcerated in some case or the other would not seek a similar treatment claiming that politicians are a class of their own," the ED said.
On Wednesday, Justice Sanjiv Khanna, who headed the bench that heard Kejriwal's petition against his arrest in the case, said, "We will pronounce the interim order (on bail) on Friday. The main matter related to the challenge to arrest will also be taken up on the same day."
The Aam Aadmi Party (AAP) leader was arrested on March 21 and is currently lodged in Tihar Jail under judicial custody.
