Can Arvind Kejriwal run the Delhi government while in custody? Legal experts weigh in

Though AAP leaders have said that Kejriwal himself will call the shots from custody, how far is this possible, both legally and practically?
Can Arvind Kejriwal run the Delhi government while in custody? Legal experts weigh in

After Delhi Chief Minister and Aam Aadmi Party (AAP) National Convenor Arvind Kejriwal was remanded to the custody of the Enforcement Directorate (ED) till March 28, the question that looms large is - who will run the Delhi government?

Kejriwal is the second opposition Chief Minister to face arrest by the ED in recent times after Jharkhand Chief Minister Hemant Soren, who faced a similar fate in January due to allegations in a graft case. In that case, Champai Soren took over the decision-making duties of the Chief Minister.

Delhi Finance Minister Atishi Marlena has repeatedly said that Kejriwal himself will call the shots even from behind bars. But how far is this legally and practically possible?

The Representation of the People Act, 1951 bars legislators who are convicted for certain offences from remaining in office for six years.

Article 239 AB of the Constitution allows the Lieutenant Governor (LG) to recommend President's Rule in the National Capital Territory of Delhi if there is a 'breakdown of constitutional machinery,' among other factors.

Delhi LG Vinai Saxena - on the basis of whose complaint the Delhi Excise Policy case was initiated against the AAP leaders - could very well invoke this provision if Kejriwal chooses to and insists on running the Chief Minister's Office from custody.

Justice Ajay Rastogi, Senior Advocate Mukul Rohatgi, Senior Advocate Amit desai
Senior Advocate Arvind datar, Senior Advocate Aabad Ponda, PDT Achary
Justice Ajay Rastogi, Senior Advocate Mukul Rohatgi, Senior Advocate Amit desai Senior Advocate Arvind datar, Senior Advocate Aabad Ponda, PDT Achary

Bar & Bench's Debayan Roy spoke to legal experts to find out what happens next.

Justice Ajay Rastogi, Former Supreme Court judge

Justice Ajay Rastogi
Justice Ajay Rastogi

I do not find any legal barrier [on Kejriwal running the government from custody]. But it is difficult to continue as a public representative when you are in custody. The law will take its course when there is some kind of restriction or prohibition for persons in custody to continue their work as a public representative. I do not know of any provision, and if there is none, then courts will interfere.

Public morality is always advisable (in terms of continuing in office from custody). Ultimately, you are elected by the public, so first is to have a clean image and represent them. You may hand over (Chief Ministership) to whoever, that is the party's choice and decision.

Let us see practically - every matter and document has go through the jail superintendent's permission. Otherwise, he (Kejriwal) cannot sign. You cannot call a cabinet meeting there. If you are adamant, you can do it, but it is not advisable.

If I resign, and someone grabs my CM chair is another thought...but purely on a legal basis whether it would be befitting for such a CM to continue from custody, in my opinion, no.

Senior Advocate Mukul Rohatgi

Mukul Rohatgi
Mukul Rohatgi

Obviously (there is a bar). A Chief Minister is supposed to meet his Ministers, sign his files. How will he do that? The jail rules only allow two visits a week, how will you deal with that? That is the legal bar. I am sure they will have to appoint someone else.

Neither legally, practically or constitutionally is it possible for a Chief Minister to run a government from the confines of a jail.

If the government is headless, then it will (make a case for President's Rule). Even Mr Soren had appointed someone else.

Senior Advocate Amit Desai

Amit Desai
Amit Desai

Until you are convicted, there is no disqualification as an MLA, and it can even be suspended pending appeal. If an MP/MLA is in custody, they even have a right to vote; they can even come to the assembly from custody. There is a presumption of innocence.

The issue that arises is that since the person is in custody, the court will have the power to permit such activities. You cannot effectively run the government without the permission of the court. He will need permission to sign files, meet ministers etc. 

In Subrata Roy’s case, he was allowed to negotiate (for selling Sahara properties) from Tihar Jail under orders of the Supreme Court; conference facilities were set up in Tihar. 

Last year, in West Bengal, when the Narada Scam broke out, some of the Trinamool Congress ministers were arrested and placed under house arrest. Under orders of the High Court, they were allowed to continue to function as ministers and files were allowed to be brought to their houses for examination and signing. 

So from a practical point, it is difficult but possible.

Senior Advocate Arvind Datar

Arvind Datar
Arvind Datar

He is not a convict, only an accused, Otherwise, anybody can be put in jail to be stripped of his power. Even when Lalu Prasad was in jail, his wife took power. Hemant Soren also appointed someone. There will be restrictions on managing day-to-day administration and meeting MLAs from jail.

Senior Advocate Aabad Ponda

Senior Advocate Aabad Ponda
Senior Advocate Aabad Ponda

It is not practical to run a government from jail. Your movements are restricted. There is even a PIL to remove the Chief Minister because he cannot run the government. His idea is he is not wrong, so he cannot be bullied into resigning.

This is all politics. Nobody has the intentions of running the government...the idea is to get and stay in power.

Jayalalithaa was the only other Chief Minister who was arrested while in power. Hemant Soren was sent out. These are all niceties the court will have to get into. But till he is convicted, there will be a big public wave in his favour.

He is in ED custody, not even jail. How will he attend meetings, chair important discussions? It is like muzzling power.

PDT Achary, Former Secretary General of Lok Sabha

PDT Achary
PDT AcharyMinistry of Parliamentary Affairs

Constitutionally speaking, there is no bar on it. He continues to be the Chief Minister unless he resigns or is thrown out. He has not been convicted, it is only an investigation. This does not settle anything. The person loses his membership only when convicted, and thus cannot be CM. As long as he is a member, he can be Minister or CM, that is the position.

Practically, there may be difficulty, like running government from jail as in attending cabinet meetings, meeting officials, tending to files.

Courts can create a situation where his position as CM may not be affected. That is for the court to take note of and it can make such arrangements while he is in detention for him to function as CM.

If the President thinks that there is a need to take over the administration because it is not being done as per 239AA, then they can take over the administration, but that is liable to be challenged in court.

The common thread that emerges from the viewpoints is that although there is no legal bar on Kejriwal continuing his affairs as Chief Minister from custody, it would seem impractical given the restrictions on meeting people to hold cabinet meetings, among other things.

Whether the LG will initiate the process for President's Rule even as Kejriwal runs his government from custody, is something to wait and watch for.

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