Kejriwal's Bail Order Sets A Dangerous Precedent

Arvind Kejriwal’s arrest by the Enforcement Directorate (ED) on 21 March, 2024 right before the General Elections to the Lok Sabha created ripples. 

While AAP, and the I.N.D.I. Alliance that AAP is part of, cried foul, the courts consistently denied bail to the embattled Delhi Chief Minister. 

That changed on 10th May, 2024 with the Supreme Court granting Kejriwal interim bail until June 1. In an eight-page order, the Supreme Court granted bail to Kejriwal but imposed multiple conditions on the Delhi Chief Minister, while (as is standard in such cases) stating that the order has no bearing on the final order or judgement in related cases. 

Why Grant Bail?

The order doesn’t have extensive reasoning for why the bail was granted. 

The rationale for bail is that the court takes into consideration “the peculiarities associated with the person in question and the surrounding circumstances”.  Here, the specific set of circumstances, as the court itself notes, is the conduct of the elections to the 18th Lok Sabha and that Kejriwal is the leader of a national party.  

The obvious counter question that emerges is what the ED had presented: Is this not a special privilege being granted for someone merely due to their station in life? 

The Court has done all the hand wringing it can in the order to deny it, but it is quite obvious to any observer that the bail has been granted merely because of the person that Kejriwal is rather than anything else. 

The ED rightly pointed out that the grant of bail would be a bad precedent, virtually treating politicians as a whole category in itself as opposed to other ordinary citizens. The Court’s argument dismissing this is that in all cases of interim bail being granted, it is the specific circumstances associated with the person that are under consideration and therefore, grant of would not set a bad precedent. 

This may work as a legal justification, but in the public perspective this justification from a critical lens is unlikely to find many takers. 

Even more so because the only real activity that the Delhi Chief Minister is expected to do is to campaign for the Lok Sabha elections. He has been precluded from functioning as the Chief Minister of Delhi as a condition of bail; his bail itself will come to an end on June 1, the last day of polling for the election. The only reason that he has gotten bail therefore is because it is elections; and that he is a political functionary. 

A Dangerous Precedent

Amusingly, the same set of circumstances are true for Hemant Soren, though he had the grace not to be arrested while serving as Chief Minister. That he only leads a regional party, the Jharkhand Mukti Morcha, vis-a-vis the ‘national’ Aam Aadmi Party cannot be the only differentiator, right? Since Kejriwal technically isn’t functioning as Delhi Chief Minister at all in the interim period, that Hemant Soren isn’t the sitting Chief Minister of Jharkhand is also immaterial. Then, if we extend this privilege to Soren, why shouldn’t it extend to other politicians behind bars? 

The fact is that the Supreme Court has exercised extraordinary power in granting Kejriwal bail, based on a subjective reasoning. If there were no elections in this time period and the accused was not the leader of a national party, he would not have been granted bail. 

That it is no carte blanche for political leaders is legal sophistry. The public impression on such issues is not formed by technicalities. And the rationale can very well be used by Soren and others. 

This decision would not come across as a surprise though, for anyone who followed the live feed of the arguments. The court tries to dispel the notion that there is a special law for politicians, accepting the ED’s submissions: 

However, the unfortunate reality is that the Supreme Court is following its own precedent by privileging political classes over the citizenry. The Court had in 2017 directed that special courts be set up for the trial of criminal cases against MPs and MLAs. Though ostensibly this was to ‘cleanse’ politics, it only creates more gulf between the common citizen and the political class. Kejriwal’s bail order is an extension of the same reasoning.

A Larger Danger

The larger danger with the Court's decision-making in these cases is how it affects public trust in the Supreme Court as an institution. 

There is not an insignificant section of public ‘intellectuals’ and the political opposition that is viewing the Supreme Court as an organ that can ‘counter’ the BJP’s rise in national politics. Senior Advocates such as Dushyant Dave explicitly say that the Supreme Court is responsible for India ‘turning into an authoritarian state’, clearly for the reasons that it has not made judgments to Dave’s liking. This order then, seems to be for that gallery that has been advocating a more explicit role for the Court against the political power of the BJP.  

Actions that are more about public perception of the Court rather than the law, weaken public credibility in institutions. To favour the powerful in such situations can be explained politically by the opposition, of course, but does not seem credible if one were not to buy into the ‘authoritarian Centre’ narrative. 

Keep in mind of course, that the Court has not gone into the merit of the case against Kejriwal whatsoever; it has not considered or made comments about the supposed illegality of the arrest either. 

This order is one that creates a new form of law for those in positions of power and authority. You can slice and dice it a hundred different ways, but that is what Kejriwal’s bail order boils down to.