ED opposes Kejirwal relief

NEW DELHI: The Enforcement Directorate on Thursday filed a detailed affidavit in the Supreme Court opposing interim relief to Delhi chief minister Arvind Kejriwal, arrested in the excise policy-linked money laundering case, to campaign in the ongoing parliamentary polls, saying the right to campaign in an election is neither fundamental nor constitutional. The apex court is scheduled to pass an order on the issue of interim bail to Mr Kejriwal on Friday.

According to sources, the ED is also likely to file its first chargesheet against Mr Kejriwal in connection with the ongoing money laundering probe on Friday. If the chargesheet against the AAP national convener is filed, this will be the first occasion when he will be named as an accused in the case and is likely to be called a key conspirator in the now-scrapped Delhi liquor policy "scam".

Calling the ED chargesheet, which is likely to be filed soon in a city court, the "BJP's chargesheet", the AAP alleged the party in power at the Centre only intends to defame Mr Kejriwal.

Also, Mr Kejriwal's legal team registered a strong objection to the ED's affidavit opposing interim bail in the apex court. It made the complaint to the top court registry, countering the affidavit submitted after the hearing was completed and just before the decision was to be announced on Friday.

The AAP denounced the ED's affidavit as a "blatant disregard of legal procedures", as the affidavit was submitted without taking the apex court's approval.

In its affidavit opposing the interim bail plea of Mr Kejriwal in the Supreme Court, the ED said no political leader has ever been granted interim bail for campaigning, even if he is contesting polls.

"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," reads the ED’s affidavit.

The ED said that, to its knowledge, "no political leader has been granted interim bail for campaigning. 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 the top court to be a statutory or constitutional right, is curtailed by statute by virtue of Section 62(5) of the Representation of Peoples Act.

“It is pertinent to note that around 123 elections have taken place in the last 5 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,” the agency said.

It further said: “In a Federal structure, no set of elections is more significant than another and therefore, every politician at every level will argue that if he is not let out on interim bail, he will suffer irreversible consequences.”

Under the Prevention of Money Laundering Act alone, there are many politicians who are in judicial custody at present and their cases are examined by competent courts upholding their custody. There must be several political leaders in judicial custody throughout the country for non-PMLA offences. “There is no reason why a special prayer for special treatment by the petitioner be acceded to,” the ED said. .

“Granting interim bail merely for political campaigning will militate against and be discriminatory to the rule of equality, as work/business/profession or activity of every citizen is equally important to him or her. It will not be possible to hold that the work of a small farmer or a small trader is any less important than the political campaigning of a political leader who admittedly is not contesting,” it said.

Citing that the top court will take the call about the grant or refusal of interim bail or release after three days of arguments by the petitioner, the ED affidavit said it has just begun.

“On this ground also, this court may take a final view about the petition after fully hearing the respondent (the ED) particularly when there is no medical urgency, which requires consideration of interim release without fully hearing the respondents,” the affidavit said.

The ED said: “If the petitioner is extended any interim relief on account of him being a politician for the purposes of campaigning in the general election for his party, there is no gain in saying that all politicians incarcerated in some case or another will not seek a similar treatment, claiming that politicians are a class of their own.”

The apex court in a larger bench in Vijay Madanlal Chaudhary versus Union of India & Others 2022 has held that "social and economic offences stand on a graver footing as they not only involve an individual victim but harm society as a whole,"  the ED said, adding that it does not agree with the observations suggesting that the offence of money laundering is a less heinous offence than the terrorism sought to be tackled under TADA or that there is no compelling state interest in tackling the offence of money-laundering.

In his reply dated November 2, 2023, to summons dated October 30, 2023, the petitioner (Mr Kejriwal), in order to avoid the summons, had used the same excuse of state elections in five states and during the arguments on interim bail, the petitioner is setting up the same ground of campaigning in the Lok Sabha elections to seek relief, the agency said.

The ED said if the apex court grants interim bail to Mr Kejriwal, it will give judicial imprimatur to the actions of the petitioner -- firstly to avoid summons citing the reason of campaigning in state elections as being a "star campaigner" of the AAP and secondly, to seek interim bail for campaigning for the party AAP in the general election, thereby carving out a separate class in favour of politicians who wish to campaign for their respective political parties.

“Such an approach would violate the cherished values of the Constitution, which upholds the rule of law as a basic feature, meaning that no matter how high you might be, you are not above the law,” it said.

Likewise, Mr Kejriwal also chose to avoid the summons dated December 22, 2023, as evident from his reply dated January 3, citing his preoccupation with the Rajya Sabha elections to avoid the summons.

The top court, the ED said, has repeatedly frowned upon the grant of bail to a person only on the consideration that he is a political leader of some prominent political party.

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, the affidavit said.

“If the right to campaign is treated as a basis for the grant of interim bail, it would breach the principles of Article 14 for the reason that harvesting for a farmer will be an equally important factor seeking interim bail as will 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,” the ED said, adding, “There is absolutely no principle that justifies giving a differential treatment to a politician for campaigning over a farmer or a businessman who wishes to pursue his vocation.”

On Wednesday, Justice Sanjiv Khanna, who headed the bench that heard Mr 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 AAP leader was arrested on March 21 and is currently lodged in Tihar Jail under judicial custody.