Justice Markandey Katju: Can Kejriwal continue as Chief Minister while in jail?

Justice Markandey Katju

By Justice Markandey Katju–

(Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman of Press Council of India. The views expressed are his own)

Arvind Kejriwal, chief minister of Delhi, was arrested on March 21 by India’s Enforcement Directorate (ED), in connection with an alleged liquor scam, and since then he is in custody. The question is whether he can continue as the Chief Minister, and run the government from jail?

Theoretically, there is no bar. There is nothing in India’s Constitution which says that a person in police custody or in jail cannot remain as a Chief Minister (of course, if convicted for two years or more, he becomes disqualified to contest elections, but Kejriwal has not been convicted).

Article 239AA, the special provision for Delhi in the Constitution, says in clause (4):

“There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions”

Clause (6) of the Article states:

“The Council of Ministers shall be collectively responsible to the Legislative Assembly.”

In other words, Kejriwal can remain chief minister as long as he has the support of the majority of members in the Delhi Legislative Assembly. There is nothing in Article 239AA, or in any other provision in the Constitution, which says that a person in police custody or in jail cannot continue as the Chief Minister, and run the government from there.

 

Aam Aadmi Party, led by Delhi state minister Atishi began its protests on Sunday.

Atishi Marlena, a minister in the Delhi government, and a close confidante of Kejriwal, has said he will remain chief minister. But that is only the theoretical aspect, and is pure rhetoric. From a practical point of view, it is virtually impossible for a chief minister to run a government from jail.

This is because the chief minister has to hold cabinet meetings, meet numerous Ministers and officials to discuss various issues, give instructions, go through hundreds of files while sitting with the bureaucrats, sign documents, meet delegations of the people to discuss various problems, confer with the Lt. Governor, etc

A jail is not a dharmashala or town hall, with access to all and sundry. In there, the jail rules and practices strictly apply. There is limited access to outsiders, and in place are many restrictions as per the jail manual.

Delhi Chief Minister Arvind Kejriwal’s wife, Sunita Kejriwal addresses a press conference over the arrest of the Delhi CM in an alleged Delhi Excise policy scam case, in New Delhi on Wednesday, March 27

In Kejriwal’s case, jail authorities have granted him the right to meet only four persons twice a week — two of his lawyers, and two persons of his choice. He has nominated his wife Sunita and his private secretary as his choice.

Through his wife, he has been issuing statements meant for the public, which she reads out in press conferences. But how can a government be run in this manner? The Lt Governor of Delhi has said that the government cannot be run from jail.

Kejriwal would be well advised to resign as chief minister, and either ask the MLAs of AAP in the Delhi Legislative Assembly to elect a new leader, who would function until, and if, Kejriwal is released, or himself designate someone as his successor. He knows that once ensconced as CM, the successor may build his or her own base, and refuse to relinquish the post even if Kejriwal is set free.

Therefore, Kejriwal seems to have decided to hand over the responsibility to his wife (who is not even a member of Delhi’s Legislative Assembly), following the precedent set by Lalu Yadav, who installed his wife Rabri Devi as CM of Bihar when he was sent to jail in the fodder scam.

Kejriwal’s resignation is awaited.

This is indeed a piquant situation in Delhi, one that reminds of Mad Hatter’s Tea Party in Alice in Wonderland.

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