The Enforcement Directorate also pointed out that Mr Kejriwal is not contesting the elections.
With the Supreme Court set to decide on interim bail for Delhi Chief Minister Arvind Kejriwal on Friday to allow him to campaign for the ongoing Lok Sabha elections, the Enforcement Directorate has filed an affidavit opposing his petition and said that laws are equal for all and that campaigning is not a fundamental, constitutional or even a legal right.
The probe agency, which arrested the AAP chief in the liquor policy case on March 21, has also pointed out that no political leader has ever been granted bail for campaigning and said that letting Mr Kejriwal out of jail to canvas for his party candidates would set a wrong precedent.
Hearing the petition on Tuesday, the Supreme Court had said Mr Kejriwal is the elected chief minister of Delhi and is not a habitual offender. "There are elections... these are extraordinary circumstances and he is not a habitual offender," the bench of Justice Sanjiv Khanna and Justice Dipankar Datta had said.
In its affidavit filed in the Supreme Court on Thursday, the Enforcement Directorate (ED) pointed out that, while hearing the bail plea of former Delhi deputy chief minister Manish Sisodia - a co-accused in the case - the court had said that the laws apply equally to all citizens and institutions, including the State.
Stating that Mr Kejriwal had sought interim bail primarily for campaigning in the Lok Sabha elections, the agency submitted, "It is relevant to note that the right to campaign is neither a fundamental right nor a constitutional right and not even a legal right."
The agency has argued that 123 elections have taken place in the past five years and if interim bail is granted for campaigning, then no politician can be kept in judicial custody since polls take place around the year.
Repeating an argument it had made during the last hearing, the ED said that campaigning is part of a politician's job and, following the rule of equality, small farmers or small traders can also seek interim bail to carry out the demands of their work. It also stressed that Mr Kejriwal is not even contesting the ongoing elections.
"If the petitioner (Arvind Kejriwal) is extended any interim relief on grounds of him being a politician for the purposes of campaigning in the general elections for his party, there is no gain saying that all politicians incarcerated in one case or the other would not seek similar treatment that all politicians are a class of their own," the affidavit states
It said that granting bail to Mr Kejriwal would set a precedent which would permit "all unscrupulous politicians" to commit crimes and then evade investigation citing campaigning for one election or the other.
Exceptional Circumstance?
In the last hearing, the Supreme Court had said it could pass an order for interim bail and was not going by whether the petitioner is a politician or not. The focus, the bench said, was on whether there was an exceptional circumstance which necessitated interim bail.
The bench also asked the agency why it took them two years to act against the chief minister and his party. "The issue is that it has taken two years for this. It is not good for any investigating agency to say that it takes two years to unearth... now when will the trial start," it asked.
All seven seats in Delhi will vote in the sixth phase of the Lok Sabha elections on May 25.