What is Arvind Kejriwal’s path to securing bail?

Since Delhi Chief Minister Arvind Kejriwal was arrested by the Enforcement Directorate in the liquor policy scam case in March, his pursuit of bail has played out in several courts – from district courts in Delhi all the way up to the Supreme Court.

The latest hurdle in his quest came on July 10 when the Delhi High Court rejected Kejriwal’s request for an urgent hearing of his bail matter. Earlier, on June 25, the High Court had stayed an order by a district court granting him bail. Adding to the complexity of the case, the Central Bureau of Investigation on June 26 arrested the Aam Aadmi Party leader from Tihar jail in a related case.

What will it take for Kejriwal to get bail?

As has been evident from Kejriwal’s own legal struggles as well as the battles of his jailed former cabinet colleague Manish Sisodia at all three levels of the judiciary, a protracted legal battle awaits the Delhi chief minister.

Enforcement Directorate case

The Delhi liquor scam case in which Kejriwal has been arrested has been under investigation for over two years. It relates to the sweeping changes made to Delhi’s liquor policy by the Aam Aadmi Party government in November 2021, granting licences not to individual shops but to entire geographical zones.

The Aam Aadmi Party government has been accused of tailoring the policy to suit a select group of businessmen and giving them licences in exchange for kickbacks. Kejriwal and others have been accused of laundering the proceeds and using them for an assembly election campaign in Goa.

Satyender Jain and Manish Sisodia, who were ministers in the Delhi government at the time, have also been arrested in connection with this alleged scam. They are still in prison. Another Aam Aadmi Party leader, Rajya Sabha member Sanjay Singh, had been arrested in October but was granted bail in April.

On April 9, Kejriwal’s plea challenging his arrest was rejected by the Delhi High Court on the grounds that there was a prima facie case against him. The court reasoned that he is the convenor and manager of the Aam Aadmi Party that benefitted from the proceeds of the alleged crime.

On May 10, while the Supreme Court was hearing his challenge to the Delhi High Court order, it took the unprecedented step of granting Kejriwal interim bail till June 1 to lead the Aam Aadmi Party’s Lok Sabha election campaign.

A week later, the Supreme Court reserved its order to Kejriwal’s plea challenging the Delhi High Court verdict and his arrest by the Enforcement Directorate. It is not known when this order will be pronounced.

Bail immediately stayed

However, even as Supreme Court reserved its order on Mary 17, it gave Kejriwal permission to approach a lower court for bail. The district court in Delhi that heard his petition granted the Aam Aadmi Party leader bail in the money-laundering case on June 20.

The court found that there was no direct evidence produced against Kejriwal linking him to the alleged proceeds of the crime. The judge also observed that the Enforcement Directorate was acting with bias against Kejriwal.

However, the very next day, the Enforcement Directorate filed a petition in the Delhi High Court challenging the bail order. The directorate also applied for an interim stay on the order while its petition was being heard.

On the morning of June 21, even before the lower court had published its bail order, the Delhi High Court admitted the Enforcement Directorate’s petition and heard its application for an interim stay.

Later that day, the Delhi High Court stayed the lower court’s bail decision until it pronounced its own order – which it reserved.

On June 22, the Supreme Court heard a petition by Kejriwal challenging the Delhi High Court’s order from the previous day but refused to pass any order. Instead, it chose to await the the Delhi High Court’s reserved order. However, the judges on the bench remarked that the High Court’s decision to reserve the stay order was “a bit unusual” since such orders are usually pronounced as soon as a hearing concludes.

It was only three days later, on June 25, that the Delhi High Court issued its order staying bail for Kejriwal. The High Court said that the lower court had decided the matter without properly going through the arguments and material presented by the Enforcement Directorate.

On June 26, Kejriwal withdrew his petition from the Supreme Court challenging the June 21 stay by the Delhi High Court. His legal team said it would instead challenge in the Supreme Court the High Court’s interim stay order pronounced on June 25.

CBI arrest

Earlier that day, Kejriwal was arrested by the Central Bureau of Investigation in the liquor policy case.

The Central Bureau of Investigation had launched an inquiry into financial irregularities and corruption in Delhi’s liquor licensing regime in July 2022. It had arrested Manish Sisodia, who was Delhi deputy chief minister, in the matter in February 2023.

While remanding Kejriwal to Central Bureau of Investigation custody, a Delhi court noted that the timing of his arrest, though not illegal, “was circumspect”.

On June 29, a Delhi court remanded Kejriwal to judicial custody till July 12 in the Central Bureau of Investigation case.

On July 1, Kejriwal moved the Delhi High Court against his arrest and remand by the Central Bureau of Investigation.

What next?

Kejriwal’s challenge to his arrest by the Enforcement Directorate has been heard by the Supreme Court. It has reserved its order.

It is not clear whether Kejriwal’s legal team has approached the Supreme Court yet to challenge the Delhi High Court’s interim stay order from June 25 on his bail plea.

If it does, the Supreme Court is likely to wait until the Delhi High Court decides on the Enforcement Directorate’s petition challenging the bail order on merits. The High Court’s interim stay on the lower court decision awarding Kejriwal bail had been passed, after all, based on on prima facie procedural faults in the bail order.

If the Supreme Court does rule in Kejriwal’s favour in the order it reserved in May, the petition before the Delhi High Court would be rendered nugatory or inconsequential.

However, even if the Supreme Court or the Delhi High Court rule favourably for Kejriwal in the Enforcement Directorate arrest, he will not walk out of jail.

This is because of he has also been arrested by the Central Bureau of Investigation.

While Kejriwal has challenged this arrest before the Delhi High Court, those proceedings are not likely to proceed expeditiously.

He will also have to commence separate proceedings in the lower courts to be granted bail in the Central Bureau of Investigation case.

The Delhi legislative assembly elections are scheduled to be held before or in February. It remains to be seen whether Kejriwal will be freed before then.