Delhi High Court dismisses plea challenging Kejriwal's arrest

The high court said the direction sought in the petition to the Centre to provide information of the arrest of a political party leader or a candidate to the Election Commission of India (ECI) when the model code of conduct (MCC) is in force belies the petitioner's legal understanding with respect to the rule of law.

This court is of the view that the present writ petition which effectively challenges the arrest of the national convenor of AAP is not maintainable as the said person is in judicial custody in pursuance to judicial orders, which are not a subject matter of the present petition. The petition conspicuously fails to name the person though the identity is apparent due to the references made to his political standing/position, a bench of acting Chief Justice Manmohan and Justice Manmeet PS Arora said.

While the order was passed on May 1, the detailed verdict was made available on Friday.

The high court said there was no merit in the petition and it was frivolous and appeared to have been filed with the intent of garnering publicity.

The bench dismissed the petition, saying petitioner Amarjeet Gupta, a law student, has no locus standi to seek the reliefs in favour of the arrested person.

It said earlier also a similar public interest litigation (PIL) was dismissed with costs by this court after observing that the petitioner had no locus standi to approach the court for seeking relief with respect to criminal proceedings initiated against Kejriwal.

The high court further said every person who is arrested by a law enforcement agency is required by law to be produced before the nearest magistrate within 24 hours of his arrest and the further incarceration of the arrested person is permissible only after obtaining orders of the magistrate.

In the facts alleged in the petition similarly, the concerned person (referring to Kejriwal) after his arrest was duly produced before the competent court and continues to remain in judicial custody in pursuance to the orders of the court. Therefore, the direction seeking separate information to ECI has no rationale or basis and undermines the safeguards which exist in law, it said.

Regarding the direction sought to ECI for framing a policy for permitting arrested undertrial political leaders or candidates to carry on campaigning through virtual mode during elections, the bench said it was in ignorance of the existing rules in the jail manual which govern the rights of undertrials.

It is a settled law that courts do not issue directions which are legislative in nature unless there is a vacuum. The petition has been filed in ignorance of the doctrine of separation of powers and seeks directions which are legislative in nature and therefore, outside of the power of judicial review. Even otherwise, the ECI does not have any jurisdiction with respect to the rights of undertrials, who are in judicial custody, the bench said.

The high court said though it was inclined to impose costs on the petitioner, however, his counsel prayed that Gupta was a student and the costs be exempted.

The high court, while dismissing the petition seeking to allow arrested political leaders to campaign through the virtual mode for the Lok Sabha polls, had observed that this would lead to dreaded criminals, even Dawood Ibrahim, to register themselves with political parties and canvass.

The petitioner had said he was aggrieved by the timing of the arrest of politicians, particularly the AAP national convener after the MCC came into force with the EC announcing the scheduled of the Lok Sabha polls on March 16.

Kejriwal was arrested by the Enforcement Directorate in a Delhi excise policy-linked money laundering case on March 21.

The petition claimed that Gupta was aggrieved by the fact that electors are deprived of their fundamental right to get information under Article 19(1)(a) of the Constitution from politicians in custody by way of being spectators and listeners of election campaigning.

"The leaders of political parties are also deprived of their constitutionally guaranteed fundamental and legal right to campaigning during the election," it said.