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No legal bar: HC rejects plea for Kejriwal’s removal as Delhi CM
Delhi High Court dismisses petition seeking Kejriwal's removal as CM over ED arrest, says no legal bar against his continuation.
The Delhi high court on Thursday dismissed a petition seeking Kejriwal’s removal as chief minister over his arrest by the Enforcement Directorate (ED), saying it failed to show any legal bar against his continuation in the post. It added that, if any “constitutional failure” exists due to the arrest of a sitting chief minister, it is for the President to act on it rather than the court.
“Let the executive branch examine it, whatever they have to do, they will do. We should not be getting into this political thicket,” said a bench headed by acting chief justice Manmohan while dismissing a public interest litigation (PIL) filed social activist Surjit Singh Yadav.
Yadav sought Kejriwal’s removal from the post of chief minister following his arrest by ED on March 21 over his alleged involvement in the now-scrapped 2021-22 state excise policy. A city court on Thursday allowed ED to retain the CM’s custody till April 1.
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“If there is a constitutional failure, the President will act on it or the [lieutenant] governor will act on it. We will not act on it. Article 239AB (Provision in case of failure of constitutional machinery) is not to be exercised by the high court. It is to be exercised by the Governor. Governor will exercise and it will go to the President. Whether it (government) will function or not function, that is something we can’t comment on,” said the bench also comprising justice Manmeet Pritam Singh Arora.
Yadav’s petition said that the CM, while being in jail, was incapable of transacting any business that the law enjoined upon him. It added that any material, irrespective of its secretive nature, would have to be scanned thoroughly by the prison authorities before it reaches the hands of Kejriwal. Yadav also submitted that the continuation of Kejriwal as Delhi’s CM would lead to obstruction of due process of law, disrupt the course of justice, and result in the breakdown of constitutional machinery in the state.
The plea sought a response from the Centre, the Delhi government, and the principal secretary to the lieutenant governor (LG) to answer the authority under which Kejriwal is holding the post of CM.
The bench told the petitioner that the situation is being examined by LG VK Saxena and that the executive may take some time to arrive at a conclusion. “We have read today’s newspaper. LG is examining this issue. It will go to the President for examination and that is up to them. That belongs to a different wing. They’ll take their time and arrive at a conclusion. It may take some time. Probably this situation was not envisaged, whatever it was,” the bench said.
The court further underscored that Yadav failed to put forth any legal bar that prevented Kejriwal from continuing as CM, and was only pointing out to the practical difficulties that could be incurred by the latter while running the government from prison.
“There may be difficulties, we accept all those. There may be practical difficulties but the question is, is there any legal bar? Any prohibition. You show us any legal bar, you are pointing out practical difficulties and Article 239AB is not something that we will consider. That the LG has to consider, the President of India has to consider, the council of ministers have to consider. Why should we pass [an order]?” the court remarked.
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The order passed by the high court later said, “Having heard the counsel for the petitioner, this court is of the view that there is no scope for judicial interference vis a vis the relief for removal of Respondent No 4 (Arvind Kejriwal) from the post of chief minister. It is for the other wings of the government to examine in accordance with law. This court clarifies that it has not commented on the merits of the case.”
Kejriwal was arrested on March 21 by ED after the Delhi high court denied his request for interim protection from arrest. Hours after his arrest, Delhi Cabinet minister Atishi had said that Kejriwal would continue as the chief minister and run the city government from prison if needed. Since then, Kejriwal has issued two “orders” to his ministers from the federal agency’s custody -- one on water supply and the other on mohalla clinics.
