'Neither fundamental, nor constitutional, not even legal right', ED opposes in SC interim bail for Kejriwal to campaign in election

NEW DELHI: No political leader has been granted interim bail for campaigning even though he is not the contesting candidate, the Enforcement Directorate on Thursday told the Supreme Court, opposing any special concession for Delhi Chief Minister Arvind Kejriwal in the form of interim bail in the liquor policy scam case.

"The right to campaign in election is neither a fundamental right nor a constitutional right and not even a legal right," it said, citing Election Commission Vs Mukhtar Ansari (2017).

In an affidavit, the central agency said granting any special concession to Kejriwal would amount to anathema to the rule of law and equality.

It would 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, the agency said.

This would also be creating two separate classes in the country 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 under the with the hope of securing interim bail to campaign for elections, it added.

"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. Even the right to vote while in judicial custody which is considered by this court as a statutory/constitutional right, is curtailed by statute by virtue of section 62(5) of the Representation of Peoples Act," it said.

Kejriwal was arrested by the Enforcement Directorate on March 21 in the liquor policy scam case.

A bench of Justices Sanjiv Khanna and Dipankar Datta would take up his plea against the arrest on Friday. The court had earlier hinted to grant him interim bail for campaigning during the elections.

In a written response, the ED said, "It is pertinent to note that around 123 elections have taken place in last five years and if interim bail is to be granted for the purpose of campaigning in an election then no politician can be arrested and kept in judicial custody since elections are all year round phenomena."

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, it said.

"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," it 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, 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," the ED asserted.

The agency also said the court may take a final view in the matter as there is no medical urgency here as arguments have already been heard for three days.

It also pointed out from the petitioner's own replies, it is evident that the timing of arrest before elections would render the arrest as bad is a complete red-herring and self-contradictory for the reason that for the past six months the petitioner has cited one election or the other, be it state elections, or Rajya Sabha Elections, as the reason for not complying with the law which an ordinary citizen would be otherwise obliged to follow.

"A politician can claim no special status higher than that of an ordinary citizen and is as much liable to be arrested and detained for committing offences as any other citizen. If the right to campaign is treated as a basis for grant of interim bail it would breach the principles of Article 14 for the reason that harvesting for a farmer would be an equally important factor seeking interim bail as would a board meeting or an annual general meeting for a director of a company who commits a crime as these are their respective vocations or professions," it said.

"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," it added.

The agency also highlighted that the petitioner has not filed any regular bail or interim bail before this court or any other court.