Can the CM run the government from jail? Experts weigh in

Delhi chief minister Arvind Kejriwal’s insistence on running the government from jail may eventually lead to the 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 and constitutional experts.They added that because the arrest of a sitting chief minister is unprecedented, the issue of whether arrest alone (as distinct from conviction) should force a resignation is something that may well end up before the courts.Kejriwal was taken into custody last week by the Enforcement Directorate (ED) in connection with the Delhi excise scam. 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. ED, in its remand application filed before the trial court, claimed that Kejriwal played a crucial rule in formulating the now-scrapped Delhi excise policy of 2021-22 to favour some persons and companies . 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.Kejriwal and the AAP have denied all charges.A city court on March 22 ordered Kejriwal to remain in ED’s custody 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, he reportedly sent a “written note” to Delhi minister Atishi on tackling water scarcity in the Capital, sending out a clear message that he has no intention of stepping down. But what do experts have to say about the legality of a CM functioning from jail? And what are the options available to the AAP should push come to shove?Former Lok Sabha secretary general PDT Achary suggested that Kejriwal’s hand may be forced by practical difficulties.“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 the 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 is not available to other prisoners -- it will be practically difficult for him to function as CM ,” Achary said.Under Section 8(3) of the Representation of Peoples Act, 1951, a sitting member of Parliament or state legislature is disqualified for six years when convicted of any offence and sentenced to imprisonment for not less than two years. But Kejriwal is yet to be convicted.Senior advocate and constitutional expert Rakesh Dwivedi pointed to a brewing constitutional crisis in the 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 said.He added that, in this case, the chief minister is also the head of the national capital civil service authority (NCCSA) that deals with transfer and posting of bureaucrats serving the Delhi government. “This creates a situation of non-participation by theelected government in transfer and posting of officers which it is controlling.”There are precedents where CMs resigned and nominated someone in their place when confronted with such difficulties, he added, referring to former Jharkhand chief minister Hemant Soren and former Bihar chief minister Lalu Prasad, who nominated his wife Rabri Devi as CM.And if Kejriwal doesn’t resign, the Union government could seek President’s Rule, Dwivedi said.“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.”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 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 (National Capital Territory) 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.”Senior advocate and Supreme Court lawyer Jaideep Gupta said it isn’t quite so straightforward.“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.”He 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.”Much will depend on what the AAP chooses to do.“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,” said Dwivedi . “Even if Union is to impose President’s Rule, it will certainly not take over and dissolve the House. It can 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.”The context also matters, experts say.The country is in the middle of a general elections, and the Centre may not want to rush in and impose President’s Rule. “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,” said Dwivedi.Gupta said that the issue 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 has already been arrested, and he must follow the legal process till Court finally decides the question of his arrest and bail.”Opposition parties have also sought to challenge the arrest of Kejriwal before the Election Commission, although there is little role for the statutory body in this aspect according to Achary. “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.”

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Can the CM run the government from jail? Experts weigh in

Kejriwal was taken into custody last week by the Enforcement Directorate (ED) in connection with the Delhi excise scam.

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Can the CM run the government from jail? Experts weigh in

Kejriwal was taken into custody last week by the Enforcement Directorate (ED) in connection with the Delhi excise scam.