You can’t perform official duties if we give bail: Top court to Arvind Kejriwal

The Supreme Court on Tuesday said that if jailed Delhi Chief Minister Arvind Kejriwal is released on interim bail, he won’t be allowed to perform official duties as it “may have a cascading effect”.

The top court also told the Enforcement Directorate that it would hear arguments for interim bail as Kejriwal is “the sitting Chief Minister of Delhi and needs to campaign for the Lok Sabha elections”.

A two-judge bench of Justices Sanjiv Khanna and Dipankar Datta made the remarks while hearing the jailed Chief Minister’s petition challenging his March 21 arrest by the Enforcement Directorate linked to the Delhi liquor policy case. A verdict is expected by 2.30 pm.

“This is an extraordinary situation. It is not like he is a habitual offender. Elections happen once in five years. It’s not like harvesting a crop that will happen every four to six months. We need to consider on priority whether he should be released in the interim,” the bench said.

However, the ED refused the court’s suggestion, saying it would set a “wrong precedent”.

“A politician has no special rights as compared to normal citizens. Should all MPs and MLAs facing prosecution be released on bail?” it asked.

The court then asked senior lawyer Abhishek Manu Singhvi, appearing for the Aam Aadmi Party (AAP) supremo, to respond to the issues raised by the Enforcement Directorate.

“Can a politician get pecial treatment compared to a common man. There are 5,000 facing prosecution what if all of them say they want to campaign; nine summons over 6 six months, the ED cannot be blamed for choosing time; and they haven’t yet gone into evidence, so can interim bail be granted at this stage.”

During the hearing, the top court also asked Additional Solicitor General SV Raju, representing the ED, about the delay to question and probe the Aam Aadmi Party (AAP) supremo.

“When we began the investigation, our investigation was not directly against him (Kejriwal). His role came up during the investigation. That’s why, in the beginning, not a single question was put regarding him. The investigation was not focused on him,” SV Raju said.

To this, the bench replied, “This is an unusual case… Why did you take so long, and why were the questions not asked? We take it that no question was asked about him. The only issue was why were you delaying?”

The Additional Solicitor General said if he “started asking about Kejriwal at the outset, it would have been called malafide”. “It takes time to understand. We can’t put it overnight. Things have to be confirmed.”

The court also told SV Raju that it wanted to see the file before AAP leader Manish Sisodia was arrested and after the former Delhi Deputy Chief Minister was taken into custody.

“There is one prosecution complaint after Manish Sisodia’s bail was rejected, Rs 1,100 crore attached,” he said.

To this, the court asked, “Mr Raju, how did it become 1,100 crore in two years? You said the proceeds of crime were 100 crore earlier.”

“It’s because of the benefits of the policy,” SV Raju replied, to which Justice Khanna said the “whole entire profit is not proceeds of crime”.

The court also asked for the files before and after Kejriwal’s arrest, as well as those of Sarath Reddy, the Hyderabad-based businessman who was arrested in November 2023 but later turned approver in the Delhi liquor policy case.

“We can show that Kejriwal demanded 100 crore. At the nascent stage, he was not the focus and the investigating agency (ED) was not looking at that. The role became clearer only when the investigation progressed,” SV Raju said.

Tuesday’s hearing came days after the Supreme Court on May 3 indicated that it may decide to grant interim bail to Kejriwal because of the ongoing Lok Sabha elections.

Arvind Kejriwal, who is currenly lodged at the Tihar Jail, approached the Supreme Court a day after his petition challenging his arrest and remand was rejected by the Delhi High Court on April 9.

The AAP national convenor’s petition also states that his arrest was made “in a motivated manner” and was solely based on subsequent, contradictory and “highly belated statements of co-accused” who have now turned approvers.

It has sought his release and to declare the arrest “illegal”.