Arvind Kejriwal SC hearing: Lawyer cites ’triple test’ for bail in CBI case, says ’nowadays Trump is a dangerous word’

The Supreme Court heard two separate pleas filed by Delhi Chief Minister Arvind Kejriwal on Thursday—one challenging the legality of his arrest by the Central Bureau of Investigation (CBI) and a second seeking bail in connection with the Delhi Excise Policy case.

During the hearing, senior advocate Abhishek Singhvi, appearing for Arvind Kejriwal, told the bench of Justices Surya Kant and Ujjal Bhuyan that Kejriwal was a constitutional functionary and not a flight risk. Singhvi also called the arrest by the CBI an “insurance arrest”.

Advocate Singhvi resorted to wordplay to conclude his argument. Bar and Bench quoted him as saying, “Article 21 of the Constitution will trump... Nowadays, Trump is a dangerous word.” He was seemingly referring to former US President Donald Trump.

Arvind Kejriwal's Supreme Court hearing on September 5: What we know so far

1. Abhishek Singhvi told the Supreme Court that the CBI did not serve notice to Arvind Kejriwal before the arrest and that the ex-parte arrest order was passed by the trial court. He said the “illegal [CBI] arrest” entitles Kejriwal to bail, and so the two cases being argued in court on Thursday are overlapping.
2. Contending against the arrest of Kejriwal by the CBI, advocate Singhvi said on Thursday that the CBI did not arrest the Delhi CM for nearly two years in the alleged excise policy scam. He said an 'insurance arrest' was made on June 26 after he got bail in the “harsher” money laundering case filed by the Enforcement Directorate (ED). The ED arrested Kejriwal on March 24 this year, and the CBI arrested him on June 25. The CBI arrested him even while he was still in the judicial custody.
3. Singhvi said that the CBI arrested Kejriwal between May 10, when the Supreme Court granted him bail for the Lok Sabha elections, and the Supreme Court's verdict of July 12. Kejriwal returned to jail on June 2, and the next judgment was on July 12. “Then, on June 25, this arrest took place in the CBI case even though no arrest ever happened in three years. This was a case of insurance arrest,” the lawyer was quoted by Bar and Bench as saying.
4. “This person was found fit for release twice, once by the Supreme Court too, even under the higher threshold of 45 (PMLA),” Singhvi added.
5. Singhvi said the CBI arrested Kejriwal without complying with Sections 41 and 41A of CrPc. Seeking bail for Kejriwal, Singhvi said, "...in an illegal predicate offence case, bail was denied" by the Delhi High Court. “The only ground mentioned to arrest him in an arrest memo is that his answers are evasive and he is not cooperative,” he added.
6. Singhvi said there are 13 Supreme Court judgments which hold that you cannot be sent back to jail in such cases. In his first point, the advocate said that Kejriwal “is a constitutional functionary and not a flight risk.”
7. Referring to a “triple test,” Kejriwal's counsel said, “This triple test is a salutary test and is based on the presumption of innocence, and trial may acquit you or find you guilty and long incarceration cannot be there, and the basic object is to secure your attendance. One is you should not be a flight risk and this man is a constitutional functionary, and there cannot be any such risk.”
8. Singhvi reiterated that Kejriwal's case is unique and peculiar: “Where you have got multiple orders of release, but you have not got (bail in a case where only) triple test (applies). He is not a threat to society, not a hardened criminal.”
9. Singhvi said a total of 13 chargesheets have been filed in the case so far—four in the CBI case and nine in the ED case. He said there are “thousands of pages of documents, so no evidence can be tampered with.”
10. Singhvi said that every other possible co-accused in the excise policy case has been released. “I am taking about same (alleged exam), Vijay Nair, Manish Sisodia, B Babu, Sanjay Singh and more,” he explained.