Can Arvind Kejriwal run govt from jail? Experts have different opinions

NEW DELHI: Can Arvind Kejriwal run Delhi from behind bars? The answer to the hottest political question in the national capital depends on, as was clear from many experts TOI spoke to, where the emphasis lies.
If the emphasis is on the letter of constitutional provisions, the answer will tend to be yes. If constitutional convention and practicality are the emphasis, the answer is likely no.However, even some of those emphasising the letter of constitutional provisions agree running a govt from jail is not a sustainable solution. There are nuanced views on imposition of President’s Rule as well – some experts argued a CM-in-jail situation is a valid ground, while others said LG can explore options before giving such a recommendation.
According to the Representation of Peoples Act, 1951, an MLA is disqualified post-conviction. So, he/she can’t be minister either post-conviction. Therefore, and although unprecedented, it is technically possible for Kejriwal to function from jail, former secretary general of Lok Sabha, PDT Achary, said.

Senior advocate Rakesh Dwivedi, taking a different view, said “Kejriwal must respect constitutional convention”. “A CM facing arrest or after being arrested should nominate someone else from his party for the post…as was done in case of Lalu Yadav and recently by Hemant Soren,” he pointed out.

“In the eyes of the law, Kejriwal is CM of Delhi with a brute majority. How will you stop him from discharging the responsibilities of a duly elected CM? If the court decides to send him to judicial custody, it will have to look at this aspect as well,” Achary added. Echoing him, constitution expert and former Vidhan Sabha secretary SK Sharma said there was no specific provision in the law that a CM has to necessarily resign and pass on the baton to somebody else if he or she gets arrested.
Senior advocate Maninder Singh, taking a different line, said since it was impossible for a CM to run the govt from jail and since a constitutional breakdown can’t be allowed to happen, president’s rule is an option. Dwivedi, agreeing, said the Centre has the option to dismiss the AAP govt “if AAP fails to nominate someone else”. Singh added there are several aspects of a CM’s job – dealing with officers, chairing cabinet meetings, committees – that can’t be performed if he’s in jail. These are daily job requirements, he said, and vital for proper govt functioning.
Constitution expert SN Sahu asked how a govt can be run from inside a jail? “Governance is serious business. Govt servants are suspended when they are jailed. Even elected representatives are like govt servants. The spirit of law should be applicable on them too,” Sahu said, arguing Kejriwal should resign.
Dwivedi, going further, argued that recent orders “purportedly” passed by Kejriwal from custody are a “joke” and a “fraud”. “It is not the way a CM passes the order. An order is passed on a file where a CM puts his signature. Files cannot be taken to jail and secretaries cannot go inside. It is not an effective constitutional order. There is a limit to this absurdity,” he said.

Were Kejriwal to continue as CM when incarcerated, what happens next depends largely on the LG, experts said. If he takes the view that the administration of the union territory was getting affected due to CM’s judicial custody, he may prepare a report and send it to central govt for a decision — and the Centre may recommend President’s Rule. Article 239AB of the Constitution deals with the situation of a breakdown in constitutional machinery. Article 239AA defines proper constitutional functioning.

Taking a somewhat different view, senior advocate Sanjay Ghosh argued LG has one more option before writing a report. “LG enjoys the prerogative to advise his chief minister,” he said. "LG can advise CM to tender his resignation. Without exploring that option…and without awaiting CM’s response, recommending President’s Rule will be premature and illegal,” he said.
Senior advocate Jaideep Gupta also questioned whether Kejriwal being a CM-in-jail is necessarily a ground for President’s Rule. “In my opinion, so long as there is a majority legislature party and there is no threat to governance, it would not be constitutional to declare President’s Rule. At best, the lieutenant governor can call for a new leader to be elected by the majority party and the legality of such a direction can be tested in court.”
Experts also pointed out AAP has the option of approaching the Supreme Court in case President’s Rule is imposed. The defining case in this matter is the 1994 SR Bommai case. The apex court may strike down the proclamation of President’s Rule if it finds the grounds to be mala fide.
Delhi situation doesn’t call for President’s Rule: AAP
Amid noises that Delhi may witness President’s Rule if AAP govt persisted with Arvind Kejriwal as chief minister despite his arrest in the excise policy case, minister Atishi claimed there was no provision in Representation of the People Act, 1951 and Government of NCT of Delhi Act that barred governance from jail.
“Representation of the People Act, 1951, clearly states about the disqualification of a chief minister or a legislator. A person convicted of an offence and sentenced to two years or above shall be disqualified from the date of such conviction. This does not apply to a person who is only accused and has not been adjudged as guilty by a court of law,” said Atishi.
“GNCTD Act is also very clear that one cannot continue serving as chief minister if he has lost the majority in the House. In this case, none of these conditions are met. Under what conditions will President’s Rule be imposed?” she asked.
The principle of “presumption of innocence until proven guilty” mandates that mere arrest can’t be the basis of the removal of a constitutional functionary and that’s why disqualification only takes place upon conviction, the minister pointed out.
Atishi added that first Kejriwal was arrested in a fake ca se and then his resignation was demanded disrespecting people’s mandate. “And if one doesn’t resign, you threaten to impose President’s Rule. This is a political conspiracy.”
Atishi said the law of the land was very clear and President’s Rule could only be proclaimed when no other option was left. She said the issue of Article 356 — imposition of President’s Rule in states — has gone to Supreme Court multiple times. “If President’s Rule is imposed in Delhi today, it will be very clear that it is a political vendetta,” she said.
The minister said Kejriwal commanded the support of an overwhelming majority of Delhi’s legislators, which gave him the constitutional and moral authority to run govt.
Atishi alleged Centre had been using central agencies such as CBI, ED and income-tax department to attack Aam Aadmi Party.
She also said President might exercise the power enshrined under Article 239AB only if she was satisfied that a situation had arisen in which the administration of Delhi couldn’t be carried on in accordance with GNCTD Act, or it was “necessary or expedient” to exercise the power “for the proper administration of National Capital Territory”. “But neither condition is met in this case,” she claimed.
Delhi BJP spokesperson Praveen Shankar Kapoor, however, said Kejriwal’s continuance as chief minister was “neither morally good nor legally appropriate”. “Above all, it does not reflect good on Delhiites. People feel ashamed that the conduct of their CM is most anarchic,” Kapoor claimed.