Can Arvind Kejriwal continue as Delhi CM from jail?

Experts say that while legally and constitutionally it is acceptable for Kejriwal to continue, practical problems may arise.

New Delhi: Can Arvind Kejriwal continue as the Delhi Chief Minister after being arrested by the Enforcement Directorate (ED) in the excise policy scam? Experts say there is no constitutional or legal provision which demands that a chief minister will have to step down if they go to jail, but adherence to the jail manual might make it difficult for him to carry out his duties. The situation, however, is “unprecedented”, as Kejriwal’s arrest comes in the ‘pre-conviction’ phase. 

Former Secretary General PDT Achary said there is no Constitutional or legal provision preventing him from continuing. As per the rules, he loses the position only in these scenarios – if he loses the majority in the House, his party tells him to step down, he resigns from the position, or if the President intervenes. “He enjoys the majority of the House and his party has affirmed their faith in him,” said Achary. 

However, President's Rule could be imposed as the term 'proper administration' in Article 339 (AB)(b) remains undefined. Article 339(AB) (b) states that in the National Capital Territory of Delhi, President's Rule can be applied if the President deems “for the proper administration of the National Capital Territory it is necessary or expedient to do so”.

While legally and constitutionally it is fine for Kejriwal to continue, there can be practical problems because he will need to preside over Cabinet meetings, discuss decisions with his colleagues and have to go through minutes to approve them. “In a jail, he will be governed by the jail manual and it will not be possible for him to do any of these,” Achary said. “He can, however, authorise someone else to perform on his behalf.”

Supreme Court lawyer Gopal Sankaranarayanan said that in Kejriwal’s case, this is the first time in 75 years that a sitting chief minister has been arrested in the preliminary stage of a case, where convictions are yet to be framed. 

“The law is clear – Section 8 of the Representation of the People Act 1951 only bars due to disqualification – and so we saw disqualifications in the cases of Rahul Gandhi, Lalu Prasad Yadav and J Jayalalitha. In Kejriwal’s case, that is not the issue,” Sankaranarayanan said, adding that practical problems of administration will come into play. 

He adds that a decade ago, the Law Commission recommended disqualification of an MP or an MLA if charges were framed against them in any such case. “But these recommendations were never accepted by the government or put in place,” he said.

Sankaranarayanan also holds the view that President’s Rule does not apply in this case because there is no breakdown of the constitutional machinery.