A week after his arrest by the Enforcement Directorate, Delhi chief minister Arvind Kejriwal has continued to run his government from jail, becoming the first sitting chief minister to do so. With no legal bar restricting him from doing this, questions have been raised on the practicality of his move.
Kejriwal was arrested on March 21, in connection with the liquor excise policy case. The arrest came hours after the Delhi high court refused to provide him with interim protection from any coercive action. The arrest also took place shortly after the Election Commission of India published on its website all details released by the State Bank of India on the electoral bonds.
Since 2022, several top AAP leaders have been arrested in the case including former deputy chief minister Manish Sisodia who was arrested in February 2023 and former health minister Satyendar Jain, who was arrested on June 1, 2022
But unlike his former colleagues Sisodia and Jain, Kejriwal has not not given up his constitutional post and in the last week has issued two orders from jail.
In his first order read out by Delhi minister Atishi – who holds the Education, P.W.D, Culture and Tourism portfolios – on March 24, Kejriwal issued directions to address water scarcity in the national capital.
दिल्ली के मुख्यमंत्री अरविंद केजरीवाल जी ने ED custody में होते हुए, बतौर जल मंत्री मेरे लिये निर्देश भेजे हैं- कि दिल्ली वालों को हो रही पानी और सीवर की समस्याओं का तुरंत समाधान हो, और गर्मियों में पर्याप्त पानी के टैंकरों का इंतज़ाम किया जाये।
जब मैंने यह निर्देश पढ़े तो मेरी… https://t.co/hLazGfYba6
— Atishi (@AtishiAAP) March 24, 2024
In his second order, read out by AAP MLA Saurabh Bharadwaj who holds the Health portfolio, Kejriwal directed the government to address the shortage of medicines and diagnostic tests at Mohalla Clinics in Delhi.
“I want to ensure the people of Delhi that even though your chief minister is in jail, he is only thinking about you, the people of Delhi,” he said.
‘There is no bar’
While the AAP has sought to show how Kejriwal is continuing to act in the interest of the people of Delhi despite being behind bars, legal experts say practicality remains a question.
Under the Representation of the Peoples Act, 1951 an MLA can be disqualified from holding office upon conviction.
“The constitutional position is that there is no bar as continuing as chief minister even after arrest because arrest does not change status as chief minister,” said former Lok Sabha secretary general P.D.T Achary to The Wire.
“But the practical problem arises [in such a situation] because how can he function as chief minister from jail? A chief minister has to preside over cabinet meetings, take decisions on files and then, he has to consult the officials including the chief secretary and other secretaries before taking decisions-and all this requires the presence of these officials. How will you conduct cabinet meetings which is by nature confidential? How will he maintain confidentiality in jail?”
Achary said that while the jail authorities could provide office facilities to Kejriwal, that matter too will have to be decided by the court.
“Perhaps the court has a responsibility to do it as Kejriwal as the chief minister has a right to perform as chief minister.”
Former Supreme Court judge Ajay Rastogi said to The Wire that while there is no constitutional bar, apart from the issues of practicality, Kejriwal must step down in the interest of “public morality.”
“There is no line in the constitution that restricts him but the fact is that as a government servant, if he is in custody for over 48 hours, he is deemed suspended. And Kejriwal being a public servant, representing the public if you are in custody for such a long time now is it not befitting for you to leave and get someone else to come? Public morality says one must quit so that the clean image of the institution which is expected by the people at large can continue,” he said.
Under Rule 10 (2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 a government servant shall be deemed to have been placed under suspension by an order of appointing authority with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours.
‘Government won’t run from jail’
On Wednesday, Delhi Lieutenant-Governor V.K. Saxena said that the government “won’t be run from jail”, further fuelling speculation about the possibility of the imposition of President’s rule in Delhi.
Responding to Saxena’s statement, Kejriwal said to reporters on Thursday outside a Delhi court that it was a “political conspiracy.”
“It is a political conspiracy and the people will give a befitting reply,” he said.
Earlier on Wednesday, Atishi said that if President’s rule is imposed in Delhi it will be clear that it is “political vendetta.”
“The law of the land is very clear – President’s Rule can only be imposed when there is no other choice. The issue of Article 356 has gone to the Supreme Court multiple times and SC has repeatedly ruled that President’s Rule can only be imposed when there is no other choice left for governance of the state,” she said in an interview to Press Trust of India.
“If today President’s Rule is imposed, it will be very clear that it is political vendetta.”
Under Article 356 of the Constitution, President’s rule can be imposed on any state on the grounds of failure of the constitutional machinery.
However, Delhi as the national capital enjoys special status under Article 239AA which provides for a democratically elected legislature with all the powers of a state legislature except the excluded subjects (land, police and public order) and a representative government responsible to the legislature with all the executive powers to the exclusion of the executive powers of the Union.
According to Achary, Article 239AA is different from Article 356 in describing how the President may step in.
“Article 239AA is slightly different from Article 356 as there are two alternative grounds under 239AB where the President steps where there is failure of constitutional machinery and there is an additional ground given in that for the proper administration of the union territory. Now that is a condition which is not available in Article 356 which is imposed on states. Since its a union territory under the overall control of the President they have this precondition under 239AB. It is actually for the President to take a view on it. But any such decision of the President will be reviewed by the court,” he said.
Under Article 239AB, the President upon receipt of a report from the LG can suspend the operation of any provision of article 239AA “for the proper administration of the National Capital Territory it is necessary or expedient so to do.”
‘Government will run efficiently from jail’
On Thursday, the Delhi high court rejected a PIL that sought to remove Kejriwal as chief minister.
“If there is a constitutional failure, President or Governor will act on it…Is there any scope for judicial interference in this? The LG is examining the issue. It will go to the President. It belongs to a different wing. There is no scope for judicial interference in this,” the bench was quoted as saying by LiveLaw.
Meanwhile the BJP has filed a complaint against with the Police Commissioner Sanjay Arora against the “illegal” orders issued by Kejriwal from jail. Delhi BJP chief Virendra Sachdeva, who filed the complaint has sought an investigation into the orders.
The Delhi BJP unit has also been holding counter protests in the national capital demanding Kejriwal’s resignation, in response to the AAP’s protests against Kejriwal’s arrest.
Keeping the pressure on the AAP which has reiterated that Kejriwal will continue to remain chief minister, the BJP has said that only “gangs are run from jail”.
“Those who are repeatedly saying they will run the government from jail, then remember, we have seen gangs being run from jail and not the government,” BJP MP Manoj Tiwari said.
The AAP has however, maintained that Kejriwal will continue to remain chief minister and run the government “efficiently” from jail.
Speaking to The Wire, AAP’s chief national spokesperson Priyanka Kakkar said that the party will not “buckle” under pressure from the BJP and continue to run the government “efficiently from jail”.
“Kejriwal has repeatedly won in Delhi with a historical mandate each time and people love him for his schemes,” she said.
“He has always done things to uplift the living standards of the people of Delhi.”
“Kejriwal is a fast paced government. Had the Lieutenant Governor (LG) and the central government not created as many obstacles we would have completed the work we did in 10 years in 5-6 years. There is no bar in the Constitution,” she said citing the Representation of the Peoples Act, 1951.
“In this case if the BJP is pressurising us in this manner why should we buckle? Is the BJP competent to run the government? What moral right, legal right does the central government have to remain in power. We have consistantly performed and we will be running the government even more efficiently,” she said.
