Kejriwal's Bail Over Right to Campaign: Will Soren Be Kept on the Same Pedestal?

On 10 May, a bench of Justices Sanjiv Khanna and Dipankar Datta of the Supreme Court granted bail to the Delhi CM.

For the first time in India's history, a sitting chief minister — Arvind Kejriwal of the Aam Aadmi Party — was arrested and then granted interim bail by the Supreme Court to campaign for the ongoing Lok Sabha elections across the country. On that note, the chief minister of Jharkhand, Hemant Soren, was also arrested in similar fashion, but the only difference is that he resigned from his post just before the arrest.

On 10 May, a bench of Justices Sanjiv Khanna and Dipankar Datta of the Supreme Court granted bail to Kejriwal, who spent approximately fifty days in prison. While granting interim bail, the Supreme Court restricted him from visiting the Chief Minister's Office and discharging any “official duties” as the chief minister of Delhi, and then invented the right to “campaign”.  

The central theme of this interim relief was the “right to campaign” for the general election. In paragraph 8 of the said order, the Supreme Court observed:

It is no gain saying that General Elections to Lok Sabha is the most significant and an important event this year, as it should be in a national election 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. General Elections supply the vis viva to a democracy. Given the prodigious importance; we reject the argument raised on behalf of the prosecution that grant of interim bail/release on this account would be giving premium of placing the politicians in a benefic position compared to ordinary citizens of this country. While examining the question of grant of interim bail/release, the courts always take into consideration the peculiarities associated with the person in question and the surrounding circumstances. In fact, to ignore the same would be iniquitous and wrong. 

Supreme Court on granting Kejriwal interim bail

In a nutshell, the Supreme Court rejected the state's argument that granting interim bail to Kejriwal would place politicians in a beneficial position compared to an ordinary citizen.  

The right to campaign in India is a fundamental aspect of the democratic process, but it's important to note that the Supreme Court doesn't explicitly grant this right. Instead, the right to campaign is derived from various constitutional provisions such as the right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. 

Comparing Arvind Kejriwal and Hemant Soren's Cases

Delhi Chief Minister and prominent opposition leader Arvind Kejriwal was arrested by India’s financial crime agency, the Enforcement Directorate, in connection with corruption allegations related to the city’s liquor policy case, i.e., a liquor policy implemented by the Delhi government in 2022, which ended its control over the sale of liquor in the capital and allegedly gave undue advantages to private retailers. It is not that any chief minister has never been arrested, but it was probably the first time that a sitting one was arrested.

Former Chief Minister Hemant Soren of the Jharkhand Mukti Morcha (JMM), on the other hand, was arrested by the ED on 1 February and was also accused of corruption. The case against Soren relates to a piece of land he allegedly owns in Ranchi, the capital of Jharkhand. The ED claims that he bought the property through "proceeds of crime", i.e., by illegally selling land owned by the Indian army. 

Soren said, "If they have the courage, let them show the documents on the ownership of 8.5 acres of land in the name of Hemant Soren. If they have it, then I will quit politics…forget resignation, I will leave Jharkhand."

If we go by the reasoning of the Supreme Court’s order in Arvind Kejriwal’s case, then the same benefit of “campaigning” should be given to the Hemant Soren, who was arrested by the ED on 31 January but the only difference was that he resigned from his post before the arrest. 

In this regard, it is pertinent to point out what Senior Advocate Kapil Sibal submitted before the Supreme Court when the matter was taken up for consideration on 13 May. He told the Supreme Court that “Soren was not concerned about not being able to come out of jail. There was no doubt that he would come out, but the question was about the timing.” The matter has now been posted for 17 May, after Sibal’s request for urgent intervention or else it would be of no use, because the Lok Sabha elections will be over by the time Soren would be let out of jail.  

Democracy is a part of the basic structure of our Constitution. Rule of law, and free and fair elections are basic features of a democracy, a system of governance that postulates that there should be periodical elections so that people may be in a position either to re-elect the same representatives or choose new representatives. The pre-requisite of this is that the elections are not manipulated, and that candidates or their agents don't resort to unfair means and malpractices. These are, in substance, the observations made by Justice HR Khanna in his concurring judgment in Smt. Indira Nehru Gandhi v. Shri Raj Narain and another.

While granting relief to Kejriwal, the Supreme Court also laid emphasis on the judgment of Anukul Chandra Pradhan v. Union of India and Others, in which the Supreme Court rejected the constitutional challenge to sub-section (5) to Section 62 of the Representation of the People Act, 1951, observing that the right to vote is not a constitutional right, and it can be curtailed.

Interestingly, however, the proviso to the said sub-section states that a person subjected to preventive detention can vote. The prohibition was upheld on several grounds, including, inter alia, that it promotes the object of free and fair elections. Indeed, there are decisions of this Court that highlight the importance of elections in a democracy, described as the barometer and lifeline of the parliamentary system and its setup.

Let us hope that Hemant Soren is also kept on the same pedestal, and the Supreme Court may grant him relief in furtherance of the right to campaign which was recognised in Kejriwal’s case. The only consideration would be Soren’s resignation, i.e., would it make any difference to the case concerned? We hope that it doesn’t. The matter is likely to be listed on 17 May and the elections for Jharkhand are scheduled for the last four phases.

(Areeb Uddin Ahmed is an advocate practicing at the Allahabad High Court. He writes on various legal developments. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)