How Supreme Court’s Arvind Kejriwal bail ruling could set precedent for political detainees

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.

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.

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.