11/05/2024, 20:30 SC Arvind Kejriwal bail ruling could set precedent for political detainees

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News / Explained / Supreme Court's Arvind Kejriwal bail ruling could set precedent for political detainees
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Supreme Court’s Arvind

Kejriwal bail ruling could set
precedent for political
detainees
In its order Friday, a bench of Justices Sanjiv Khanna and Dipankar Datta,
while granting bail to Kejriwal, underlined the significance of participatory
democracy saying, “General Elections supply the vis viva (force that moves)
to a democracy”.

Written by Apurva Vishwanath

New Delhi | Updated: May 11, 2024 15:24 IST

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11/05/2024, 20:30 SC Arvind Kejriwal bail ruling could set precedent for political detainees

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Delhi Chief Minister Arvind Kejriwal reaches his residence in New Delhi on Friday. (Express Photo by
Amit Mehra)

In granting interim bail to Delhi Chief Minister Arvind Kejriwal to campaign for
elections, the Supreme Court has made an unprecedented intervention to ostensibly
ensure a level playing field in elections — a move that potentially opens the door
for other political detainees.

In its order Friday, a bench of Justices Sanjiv Khanna and Dipankar Datta, while
granting bail to Kejriwal , underlined the significance of participatory
democracy saying, “General Elections supply the vis viva (force that moves) to a
democracy”.

“It is no gain saying that the General Elections to Lok Sabha is the most significant
and an important event this year… Between 650-700 million voters out of an
electorate of about 970 million will cast their votes to elect the government of this
country for the next five years,” the bench said.

The top court’s reasoning in effect affirmed the argument made by Kejriwal’s
counsel, Abhishek Manu Singhvi, that a level playing field during elections was part
of the basic structure of the Constitution. “Democracy is part of basic structure, free
and fair elections are part of basic structure and a level-playing field is also part of
basic structure,” Singhvi had argued on May 7.

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11/05/2024, 20:30 SC Arvind Kejriwal bail ruling could set precedent for political detainees

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Chief Minister Arvind Kejriwal hugs his mother after arriving at his Civil Lines residence, Friday evening.
(Express Photo)

But the Supreme Court’s order sets a new precedent for political exigencies during
elections. Until now, the top court’s intervention to confirm bail granted to political
leaders by High Courts were in instances where regular bail was granted during the
course of the trial — and not interim bail necessitated by special circumstances.

This is also evident in the cases cited by the Supreme Court itself in the Kejriwal
order.

In January, the top court confirmed bail to TDP chief and former Andhra Pradesh
CM N Chandrababu Naidu, and then in March to Odisha BJP leader Siba Sankar Das.
In both the cases, the SC underlined the right to make political speech which, it said,
cannot be fettered through bail conditions.

Last September, the Calcutta High Court held that the ED cannot take any coercive
steps against TMC leader Abhishek Banerjee until the elections were over. In
March, the ED told the SC that it will abide by the “no coercive steps” refrain by the
High Court.

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What Arvind Kejriwal Said Moments After Getting Out Of Jail

In the Kejriwal order, the top court said interim bail is granted on the basis of the
“facts of each case” and that “this case is “not an exception”, although it did
acknowledge the high political stakes, noting that “the appellant, Arvind Kejriwal, is
the Chief Minister of Delhi and a leader of one of the national parties.”

This is significant as it leaves the door open for more such interventions, vis a vis
the elections. Former Jharkhand Chief Minister Hemant Soren, who was arrested
on January 31 in a money laundering case, has a bail application pending in the
High Court. The state will vote in the last four phases of the Lok Sabha elections
starting May 13.

Apart from allowing him to campaign, the top court’s order also partially ring-
fences Kejriwal’s role as Chief Minister.

In one of its five bail conditions, the Supreme Court allowed Kejriwal to sign official
files that are “required and necessary for obtaining clearance/ approval of the
Lieutenant Governor of Delhi.”

As a chief minister without a portfolio, Kejriwal’s primary role in the government is

to officially communicate on all matters with the L-G.

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