Two questions to Their Lordships

Amalendu Upadhyaya
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By Justice Markandey Katju

Two questions to Their Lordships

A bench of the Indian Supreme Court has granted bail to Arvind Kejriwal till 1st June, but ordered him to surrender on 2nd June.

Since parliamentary elections are going on, the Court felt it necessary for the sake of democracy to release Kejriwal to do canvassing

Two questions arise in this connection :

1. On what principle was such a conditional bail order passed ?

The Court ordered Kejriwal not to visit the Chief Minister's office or the Delhi Secretariat, obviously because it had apprehension that he may tamper with the evidence.

But if the Court had that apprehension it should have denied him bail altogether. I am not aware of any legal principle that bail should be granted to enable an accused to canvass in elections. Either the bail should have been granted to Kejriwal unconditionally, or rejected unconditionally.

2. If bail is to be granted to enable an accused to canvass for elections, then on the same principle bail should also be granted to former Chattisgarh Chief Minister Hemant Soren, and also to all politicians in jail, because obviously they would all like to canvass for some candidate or the other

The Enforcement Directorate has strongly opposed bail to Hemant Soren

But how can he be denied bail to enable him to canvass when it has been granted to Kejriwal? Why this discriminatory treatment ? This question has been elaborately asked by Gautam Bhatia in this article

I respectfully submit that the whole problem arises when judges start introducing novel and unheard of principles unknown to law in their judgments.

(Justice Katju is a retired judge of the Supreme Court. These are his personal views.)

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