It will be unprecedented and counterproductive if Delhi Chief Minister (CM) Arvind Kejriwal decides to run the government while he is in the custody of the Enforcement Directorate (ED) or jail, senior advocate and constitutional expert Rakesh Dwivedi told Moneycontrol.
Dwivedi said, “A CM running the government from custody was not something contemplated by the framers of the Constitution. If you read the document between the lines you will find many things which are implied. However, this situation is not contemplated anywhere in the Constitution.”
According to the senior advocate, an elected government is responsible for running the affairs of the legislative assembly, and when a CM is in custody he/she cannot discharge this responsibility. “He cannot come out of the jail at his beck and call to monitor the affairs of the House. Coming out of custody will depend on the jail rules and court orders. This will create a big problem,” Dwivedi said.Obligations under the Delhi services law
Dwivedi noted that since Kejriwal is in the ED custody now he will not be able to meet his obligation under the Delhi services law.
The contentious Government of National Capital Territory of Delhi (Amendment) Act, 2023, was passed by the parliament in the monsoon session of 2023 and obtained presidential assent in August 2023. The law entails the creation of an authority for the transfer and posting of Group-A officers in the national capital.
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All transfers and postings of senior officers in the Delhi government will be done by a three-member committee headed by the Delhi chief minister and comprising the chief secretary and the principal secretary (Home) of the Government of National Capital Territory of Delhi. However, the final say on transfers lies with the Lieutenant Governor (LG) of Delhi.
Though the law has been challenged in the apex court, there is no explicit stay on its operation, thus Dwivedi noted Kejriwal is under obligation by law to lead the committee. He said, “Now, how will the Chief Minister discharge this function if he decides to run the government from jail? Then obviously, the two persons outside will be deciding. So, there will be huge conflict.”
Constitutional morality
“Now, the third thing is that there is something called constitutional morality or public morality. Looking at the past, whenever a situation arose where some minister or a chief minister was charged with serious offences, they have resigned and nominated somebody else to run the government,” Dwivedi said.
In February 2024, Jharkhand Mukti Morcha (JMM) leader and then CM Hemant Soren was arrested by the ED in a money-laundering case. Soren resigned as CM after his arrest, and Seraikela MLA Champai Soren replaced him.
Similarly, in 2001 when Tamil Nadu CM J Jayalalithaa was arrested in a disproportionate assets case, she picked O Paneerselvam to be the CM till she obtained bail. This was repeated in 2014 when she was convicted and arrested in the same case. Paneerselvam resigned both in 2001 and 2014, after she obtained bail and stay on her conviction, respectively.
Citing the above instances, Dwivedi noted that Kejriwal can choose this option and it would also be in the interest of the party itself if he does so. Dwivedi said, “It will be counterproductive if he doesn't resign.”
Dwivedi is a designated senior advocate who practices mainly in the Supreme Court of India. He has appeared in many key cases in the recent past including challenges to the abrogation of Article 370, same-sex marriage, and the Aligarh University minority status case among others.
Kejriwal’s arrest
On March 21, hours after the Delhi High Court refused to protect Kejriwal from arrest, the ED arrested him in the Delhi liquor policy case. Though the Delhi CM moved the Supreme Court challenging his arrest, he withdrew it after deciding to challenge his remand by the ED.
On March 22, a Delhi court remanded Kejriwal to ED custody till March 28. Kejriwal has challenged the order of remand in the Delhi HC, however, his legal team was unable to get an urgent hearing. Following this, the case is now likely to be heard by the HC on March 27. The HC is on Holi vacation till March 27.
The Representation of People Act (RP Act), 1951, deals with elections, qualification and disqualification of lawmakers. According to the Act, an MP or an MLA stands disqualified if he/she is convicted for an offence. However, since Kejriwal has not been convicted yet, there is no bar on him from continuing as CM.