Legal experts on Delhi CM Arvind Kejriwal’s arrest, working out of ED custody

New Delhi: Delhi chief minister Arvind Kejriwal’s insistence on running the Government from jail, if prolonged, could lead to imposition of President’s rule as an elected chief minister has multifold tasks, all of which cannot be practically performed while in custody, said legal experts. At the same time, since the arrest of a sitting chief minister is unprecedented, should arrest alone force him to resign is an aspect that could come up for consideration before courts, they added.

The crisis was triggered last Thursday when Kejriwal was taken into custody by the Enforcement Directorate (ED) in connection with the Delhi excise policy case. He is the third leader of the Aam Aadmi Party (AAP) to be arrested in this case, after former Delhi deputy chief minister Manish Sisodia and AAP MP Sanjay Singh. The ED in its remand application filed before the trial court claimed that Kejriwal played a crucial role in formulating the now-scrapped Delhi excise policy of 2021-22 to favour some persons and was involved in demanding kickbacks from liquor businessmen in exchange of favours. According to the federal agency, a bribe of ₹100 crore was paid to AAP of which, ₹45 crore was spent by the party during the Goa assembly elections in 2022.

A city court on March 22 ordered Kejriwal to remain in custody of ED till March 28. He has challenged his arrest and subsequent remand before the Delhi high court which is expected to take up the matter on Wednesday. On Sunday, a “written note” was purportedly sent by Kejriwal to Delhi minister Atishi on tackling the issue of water scarcity in the Capital, sending out a clear message that he has no intention to step down for the present.

Meanwhile, legal experts weighed in on the developing situation by sharing their views on the legality of CM functioning from jail, a possible constitutional crisis, and the options available for the AAP government in such a scenario.

Former Lok Sabha secretary general PDT Achary said, “Arrest does not disqualify a chief minister from functioning. He continues to be CM but since he is a prisoner, he can do only what is permitted under the Jail Manual. There are practical problems that can arise as CM has to preside over the Cabinet. Files must be brought to him and he has to consult and even meet officers. Unless he is permitted by the Court such freedom that is not available to other prisoners, for him to function as CM will be practically difficult.”

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Under the Representation of Peoples Act, 1951, Section 8(3) disqualifies a sitting member of Parliament or state legislature on being convicted of any offence and is sentenced to imprisonment for not less than two years. The disqualification will incur from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. Since Kejriwal is not a convict, this law does not apply to him.

Senior advocate and noted constitutional expert Rakesh Dwivedi further pointed out that the Constitutional scheme envisages the elected government to be responsible to the Assembly and CM forms an essential cog in the governance of a state or union territory. “Chief minister is not an ordinary minister. He is the lynchpin of governance who recommends appointment of other ministers. If CM is arrested, he cannot run the government which is responsible to the House. This creates a situation where the government cannot be run in terms of the Constitution.”

Dwivedi additionally pointed out that the CM is also the head of the national capital civil service authority (NCCSA) that deals with transfer and posting of bureaucrats serving under Delhi government. “This creates a situation of non-participation by elected government in transfer and posting of officers which it is controlling,” he said.

Faced with practical difficulties, Dwivedi said that there are precedents galore when legislators holding public office as ministers, MPs or chief ministers have resigned or nominated someone in their place after allegations cropped up against them. He gave the recent example of former Jharkhand chief minister Hemant Soren, former Bihar chief minister Lalu Prasad who nominated his wife as CM, and BJP leader LK Advani who resigned as MP after his name cropped up in the Hawala scam in 1996.

“Efficient functioning of government requires CM should not be in jail but outside jail, at least on bail. Public morality and constitutional morality requires that CM should resign. If he (Kejriwal) prolongs this state of affairs then Government of India will be entitled to impose President’s Rule,” Dwivedi said.

Achary agreed, “I am not discounting the possibility of President’s Rule. Arrest itself is not an infirmity to seek President’s Rule but if rules of Jail Manual do not allow him to function freely, the Union can conclude that the chief minister has become non-functional and there is a crisis as the government (work) in Delhi is not being carried out in accordance with Article 239AA (special provisions for Delhi providing for an elected Assembly).”

Article 239AB of the Constitution provides for such a recommendation by the President. It states, “If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied that a situation has arisen in which the administration of the NCT cannot be carried on in accordance with the provisions off Article 239AA or of any law made in pursuance of that article or that for the proper administration of the NCT it is necessary or expedient so to do.”

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Senior advocate and Supreme Court lawyer Jaideep Gupta said, “I do not see the President’s Rule being imposed as the Delhi government enjoys absolute majority. Such a scenario has not been tested in Courts before and any decision to impose President’s Rule will be affecting the electoral mandate of citizens of Delhi.”

Gupta added: “There is also no apparent chaos in governance as it is always open for AAP legislative party to elect another CM. There is no justification in upsetting a legislative party enjoying majority just because a CM is not stepping down. On the legal question though on whether he should remain in office, any party – the Union government, AAP or a PIL litigant can approach the Court.”

However, Dwivedi pointed out that President’s Rule does not necessarily require dissolving an elected government in place. “Even if Union is to impose President’s Rule, it will certainly not take over and dissolve the House. It can even ask the AAP government to elect somebody in place of the present CM to run the government. So long as they are unable to nominate someone as CM, the central rule will continue. Once they nominate, the person will be sworn in. The complication will arise only if you say I will not appoint somebody else and I will invite President’s Rule.”

Pointing to the order passed by CM while in custody, he added, “You are trying to show to the world that CM is passing orders from jail. That is all he can do as CM. Doing that one bit of job is not performance of function as CM has various other functions.”

Given the backdrop of the upcoming Lok Sabha polls, experts are uncertain whether the Centre would impose President’s Rule. Dwivedi said that taking such a decision is best left to the political wisdom of the Central government. “Why will Government create a bad image for itself by rushing into something? We also need to wait and see what the high court will do.”

Gupta said that the issue of arrest and bail of Kejriwal is bound to reach the top court. “Recently the Supreme Court told ED not to disturb Trinamool Congress MP Abhishek Banerjee during elections. So the Court is capable of passing such orders. But Kejriwal is already arrested, and he must follow the legal process till Court finally decides the question of his arrest and bail,” he added.

Opposition parties have sought to challenge the arrest of Kejriwal before the Election Commission. The matter has also attracted global attention with Germany and the US governments taking note of the development and asking the Indian government to render “fair, transparent and timely” legal process to Kejriwal. Achary said, “While the EC has enormous powers to ensure free and fair elections, so far as criminal law is concerned, it is above that. The criminal process cannot be hobbled by the poll panel.”