The biggest arrest made by ED in Delhi liquor scam has created a stir across the country. Arvind Kejriwal is the only politician in the history of independent India who has been arrested while being a Chief Minister. He has not resigned yet. His party leaders and ministers are saying that Kejriwal will run the government from jail but will not resign. We talked to some well-known constitutional expert-lawyers of the country on the awkward situation that has arisen in Delhi.
Former SC Judge Santosh Kumar Hegde
On the current crisis arising in Delhi, former Supreme Court judge Santosh Kumar Hegde told a media house – I am completely disappointed. I thought that the Aam Aadmi Party (after coming to power) would maintain administrative impartiality which is not the case. And this is indicative of the fact that power corrupts and absolute power corrupts absolutely.” “Parties in the opposition allege that the ruling party is doing this only to destroy the opposition, I do not believe it. Yes, they are doing this selectively. But it is not a crime at all. Because it is a criminal in jurisprudence, there is no Article 14…. ‘And one day when they come to power, they will go against BJP. So, ultimately there will be complete justice, right? At least 50 percent jus tice is being done now.”
Constitutional Expert Ashwani Dubey
Senior advocate Ashwani Kumar Dubey, an expert in constitutional matters, says that despite being arrested and jailed, there is no constitution al obstacle to Arvind Kejriwal continuing as Chief Minister. Because he is the Chief Minister of an elected government and under the RP Act 1951, he can continue in his post until any public representative is punished. Jail manuals can be come a hindrance in running the government and taking cabinet decisions while in jail. According to the jail manual, the prisoner can be met only three-four days a week. There is a time limit for talking on the telephone also. The signatures of any undertrial prisoner in the jail must be verified by the jailer or the jailsuperintendent. Now if Arvind Kejriwal calls a cabinet meeting inside the jail in his capacity as Chief Minister, then signatures of all the cabinet ministers will be required on it, the signature of Arvind Kejriwal will not be valid without the verification of the jailer. If the jailer verifies the signatures of Chief Minister Arvind Kejriwal on the cabinet notes, then the decisions will go to the third party. Thus, propriety is not in favour of Arvind Kejriwal in this case. It is not practical to run the government while sit ting in jail. Recent example is Hemant Soren, he resigned be fore being arrested, Uma Bharti resigned before being sentenced and jailed in the Hubli case. Jai Lalitha also had to go to jail in 2001 and 2014. Both times he resigned from the post of Chief Minister. When Lalu Yadav had to go to jail, he gave up the post of Chief Minister. All these people resigned from the post of Chief Minister be cause running the government from jail and taking important administrative, public interest and confidential decisions is neither practical nor possible. Under Article 239 B, the Governor has the powers to suspend the government or dismiss the government, but this happens in circumstances when the government does not have the numerical strength. The government may not be in a position to pass financial proposals or the government’s allies may leave the government or the law and order situation in the state may be a matter of concern. In Delhi, law and order is under the LG. The numerical strength is more than enough with Arvind Kejriwal, so generally there is less possibility that the Governor will activate Article 239. Yes, it is certain that if PMLA does not grant bail to the court, then Arvind Kejriwal should resign keeping in mind morality and practicality.
Constitutional Expert Advocate KC Kaushik
Supreme Court advocate KC Kaushik says on the constitutional crisis arising in Delhi that the law is silent in such circumstances. Ministers and Chief Ministers take salaries from the government treasury, government officials also take salaries from the government treasury. When government officers and Babu can be suspended if they stay inside the jail for 24 hours, then why can’t the Chief Minister i.e. the government be suspended. Advocate Kaushik said that by using the powers of not only Article 239 B but also Article 239 AB and Article 239 AA, the Lieutenant Governor can recommend the suspension of the government to the Home Ministry.
Constitutional Expert Shailendra Pratap Singh
Shailendra Pratap Singh, an other lawyer of the Supreme Court, said that in any state, not only the Chief Minister can be considered the head of the government but also the government itself. In any state, if only the Chief Minister is appointed, then the formation of the government is considered constitutional. The Chief Minister is arrested in Delhi. He is in ED custody. There is a constitutional crisis in Delhi. Before being arrested by ED, Arvind Kejriwal had not transferred his powers to any of his cabinet members. Shailendra Pratap Singh told another constitutional aspect that the place of running the government is also notified. He raised the question whether the notification to run the government from Tihar Jail has been issued. Even if Kejriwal had issued this notification, under the Government of National Capital Territory of Delhi Act, the notification would still have to be approved by the Home Minis try. If all these are considered exceptions, then does the jail manual allow the government to be run from Tihar Jail? The Jail Manual is for the accommodation and care of prisoners and undertrials. A note written in the jail premises is considered constitutional only if the jailer signs it. So will the decisions of Kejriwal cabinet be passed not with the signature of the Chief Minister but with the signature of the jailer?
Co-Chairman BCD Himal Akhtar
BCD co-chairman Advocate Himal Akhtar says that un der the Representation of the People Act (RPACT) 1951, no public representative can be considered disqualified unless he is punished. Delhi Chief Minister Arvind Kejriwal has just been arrested by ED un der the PMLA Act. No court in India has found him guilty. Therefore, he is the Chief Min ister and will remain the Chief Minister until he resigns or his tenure is completed. Himal Akhtar also said that if LG ac tivates any part of Article 239, it will be unconstitutional.
