Even Dawood...: HC rejects plea for virtual campaigning by arrested politicians

The Delhi high court on Wednesday dismissed a petition seeking to allow arrested political leaders to campaign through the virtual mode for the Lok Sabha polls, observing this would lead to dreaded criminals, even Dawood Ibrahim, to register themselves with political parties and canvass.

Terming the petition as "highly adventurous" and against the fundamental principles of the law, a bench of Acting Chief Justice Manmohan and Justice Manmeet PS Arora said courts do not make policy decisions and that it is for Parliament to decide on such issues.

"You want all the people who are in jail should be allowed to virtually campaign... I'm telling you all the dreaded criminals will register themselves with political parties. And, Dawood Ibrahim who is not convicted, he will be campaigning. Virtual mode will allow him... Someone is in custody by virtue of a judicial order," the bench said.

"We cannot allow someone who is in custody to go on a campaign, otherwise all rapists, murderers will start floating political parties prior to the elections and the Model Code of Conduct (MCC) coming into force," it said.

The high court warned the petitioner of imposing costs but later agreed not to do so as the arguing counsel pleaded that the petitioner was a student.

"Okay, we will not impose costs but you (the petitioner's counsel) must teach him (petitioner) about separation of powers," the bench said, adding that the petitioner was not familiar with the long-term realities.

The court was hearing a petition by Amarjeet Gupta, a law student, who was aggrieved by the timing of the arrest of politicians, particularly AAP national convener and Delhi Chief Minister Arvind Kejriwal after the MCC came into force with the Election Commission (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.

During the hearing, the bench told the petitioner's lawyer, "You are being adventurous. This is highly adventurous. The petition is against the fundamental principles of law. You are asking us to act contrary to the law. We don't legislate, we don't make policy decisions."

Justice Manmohan further said the more judges want to stay away from politics, the more they are being pushed into it.

"We want to stay away from politics and today more and more people are involving us in politics. You are pulling us more into politics. Today a campaign is taking place outside but it seems that it is happening more in the court. Why are you involving us into the political thicket?" the bench said.

"Everyone has a problem. Someone says put him (apparently referring to Kejriwal) in custody. Someone says take him out of custody. Courts are applying their minds and the accused is exercising his right. The matter is being heard," it said.

The bench said that "this is all a little bit of propaganda and publicity involved in this" and added it is "very very clear of what is happening".

"The attempt is to involve the court in politics. We want to stay away from it and you are putting us more in a political thicket. It has now become some part of strategy," it said.

As the petitioner's counsel contended no one can be arrested since the MCC was in force, the court said, "If a candidate is contesting in election and he commits murder, because of MCC being in force, does it mean he won't be arrested".

"What are you doing? Please understand. People involved in murder and rape will start floating political parties before elections. It's not for us to interfere in this. We cannot make law," the bench said.

Justice Manmohan said, "I don't know what he (petitioner) is studying. What is he doing? I am really at my wits' end. I want to educate you more but that is not our domain. Let your teachers do it. I don't think you're attending your classes. Some people think we are not bound by the law. We are bound by the law. Some people have a very aggravated notion about us..."

"Can we say that someone who is arrested and is in jail by virtue of a judicial order be allowed to campaign? Can we do that? We are bound by the law," he said.

The court said how can it decide how the campaigning is to be done and how can it say that an incarcerated leader will be allowed to indulge in a virtual campaign.

"Would that not amount to legislation? Would that not amount to a change of law? Would that not amount to giving a facility which is not envisaged by the law? See that is not our domain," it said.

The petition, filed through advocate Md Imran Ahmad, 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.