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The right to campaign in an election is neither a fundamental nor a constitutional right, the Enforcement Directorate told the Supreme Court on Thursday, a day ahead of the scheduled pronouncement of the court's order on grant of interim bail to Delhi Chief Minister Arvind Kejriwal in a money laundering case.
In a fresh affidavit filed in the top court to thwart the release of the embattled Aam Aadmi Party national convenor, the central probe agency said there were numerous examples where politicians contested elections while in judicial custody, and some even won, but were never granted interim bail for campaigning.
"No political leader has been granted interim bail for campaigning even though he is not the contesting candidate. Even a contesting candidate is not granted interim bail if he is in custody for his own campaigning," the ED said.
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," it said.
On Wednesday, Justice Sanjiv Khanna, who headed the bench that heard 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.
The agency in its affidavit said, "In light of the above factual and legal submissions, the prayer for interim bail deserves to be rejected as it would not only be contrary to settled principles of law but violate the rule of law which is a basic feature of the Constitution."
It underscored that grant of any special concession to the Delhi chief minister and enlarging him on interim bail for campaigning in the general elections would be "anathema to the rule of law and equality and create a precedent".
"Grant of interim bail merely for political campaigning would militate against and will be discriminatory to the rule of equality as work/business/ profession or activity of every citizen is equally important to him or her," it said, adding it would not be possible to hold that the work of a small farmer or trader is any less important than campaigning by a political leader who admittedly is not contesting.
It said, "This Court would take the call about grant/refusal of interim bail/release after 3-day long arguments of the petitioner. As against this, the respondents (ED) have just begun. On this ground also this court may take a final view about the petition after fully hearing the respondent particularly when there is no medical urgency which requires consideration of interim release without fully hearing the respondents."
The agency said if Kejriwal is extended any interim relief on account of him being a politician for campaigning in the Lok Sabha polls for his party, there is no gainsaying that all jailed politicians would seek similar treatment claiming they are in a class of their own.
"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," it said in its 44-page affidavit.
The agency submitted that there is absolutely no principle which justifies giving a differential treatment to a politician for campaigning over a farmer or a businessman who wishes to pursue his vocation.
"If the right to campaign is treated as a basis for grant of interim bail it would breach the principles of Article 14 for the reason that harvesting for a farmer would be an equally important factor seeking interim bail as would 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," it said.
Pointing out that Kejriwal has not filed petitions for regular or interim bail before the apex court or any other court, the ED said the consistent approach of this court has been to relegate parties to the remedy of bail under CrPC when they had challenged their arrest claiming it to be illegal.
It referred to the orders passed by the court in the cases of former deputy chief minister Manish Sisodia, AAP leader Sanjay Singh and Bharat Rashtra Samithi leader K Kavitha, where the court asked them to move bail petitions in the money laundering case related to the Delhi excise policy scam.
The agency said such an approach would violate the cherished values of the Constitution which upholds the rule of law as a basic feature meaning thereby that "howsoever high you might be you are not above the law".
On May 7, the bench, also comprising Justice Dipankar Datta, had reserved its verdict on whether or not to grant Kejriwal interim bail in the money laundering case linked to the alleged excise scam.
A Delhi court had, the same day, extended Kejriwal's judicial custody in the case till May 20.
The Delhi high court had last month upheld the AAP leader's arrest, saying there was no illegality and the ED was left with "little option" after he skipped repeated summonses and refused to join the investigation.
The matter relates to alleged corruption and money laundering in the formulation and execution of the Delhi government's now-scrapped excise policy for 2021-22.