Why Delhi High Court held PIL against arrest of Arvind Kejriwal is not maintainable

The Delhi High Court recently observed that Delhi Chief Minister and Aam Aadmi Party (AAP) National Convener Arvind Kejriwal is under judicial custody in jail because of court orders and, therefore, a public interest litigation (PIL) petition challenging his arrest is not maintainable [Amarjeet Gupta v Election Commission of India & Ors]..A Division Bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora said that Kejriwal has the means and wherewithal to approach the court and file appropriate proceedings, which he has done before the Delhi High Court as well as the Supreme Court of India.“This Court is of the view that the present writ petition which effectively challenges the arrest of the National Convenor of AAP on 16th March, 2024 is not maintainable as the said person is in judicial custody in pursuance to the 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 in the petition. The said person admittedly has the means and wherewithal to approach the Court and file appropriate proceedings which in fact he has so done before this Court as well as the Apex Court,” the Court observed.It further said that every person who is arrested by the law enforcement agency is required by law to be produced before the nearest magistrate within 24 hours of arrest and Kejriwal too was produced before the Court.“Every person who is arrested by a law enforcement agency is required by law to be produced before the nearest Magistrate within a period of 24 hours of such 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 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,” the High Court said. .The Court made these observations while dismissing a PIL filed by a law student, one Amarjeet Gupta, seeking directions to Election Commission of India (ECI) to develop a mechanism to ensure that arrested undertrial political party leaders or candidates are allowed to campaign through virtual conference.Gupta had also sought a direction to the Union of India to provide information about the arrest of a political party leader or a candidate immediately to the ECI when the model code of conduct (MCC) is in force.He was aggrieved by the timing of arrest of Kejriwal and said that electors of Delhi have been deprived of their rights to get information from Kejriwal by listening to him during the ongoing election campaign.The plea further said that Kejriwal has also been deprived of his legal right to campaign during elections.Notably, the plea did not name Kejriwal but only referred to him as National Convenor of AAP..The Court considered the case and dismissed the plea.During the hearing of the case on May 1, the Bench had also remarked that if the plea is allowed, even Dawood Ibrahim will contest elections through VC and every criminal, rapist or murderer will float a political party.In a detailed order published on the website of the Court on May 2, the Bench said that the direction sought to Central government to provide information of the arrest of a political party leader or a candidate to ECI when MCC is in force belies the petitioner’s legal understanding with respect to the rule of law.“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 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 Court added that the PIL is frivolous and filed with the intent of garnering publicity.“Though we were inclined to impose costs, however, learned counsel for the Petitioner has prayed that since the Petitioner is a student the costs be exempted. This petition is, therefore, without any merit is dismissed,” the Bench finally said..Advocates Imran Ahmad, Gufran Khan and Ariana Ahluwalia appeared for petitioner Amarjeet Gupta.Standing Counsel Ankit Agarwal with advocates Ashish Shukla, Atul Raj and Jayant Rao represented the Election Commission of India.Additional Solicitor General Chetan Sharma, Central Government Standing Counsel (CGSC) Apoorv Kurup along with advocates Amit Gupta, Vinay Yadav, Saurabh Tripathi, Vikramaditya Singh, Akhil Hasija and Nidhi Mittal represented the Union of India..[Read Judgment]