Delhi’s Chief Minister, Arvind Kejriwal, has been arrested by the Enforcement Directorate (ED) and will remain in six-day custody following his arrest in the Liquor Policy scam case against the officials of the Delhi government.
There have been a lot of speculations and questions over who will run the Delhi government now. According to the Aam Aadmi Party, there will be no change and Arvind Kejriwal will remain the Chief Minister and run his government from jail. He has denied any wrongdoing and opposition leaders of INDIA bloc say his arrest is politically motivated.
The party has also staged protests demanding Kejriwal’s release and alleging the agency of using a high-handed approach in dealing with the case.
The Liquor Policy Scam
In 2021, the Delhi government introduced the Excise Policy 2021-2022, a move aimed at boosting government revenues, eliminating black marketing, breaking the liquor mafia, and enhancing customer service. However, the policy faced significant opposition from various sectors, leading to its withdrawal in July 2022. The chief secretary then accused the Aam Aadmi Party (AAP) of irregularities, prompting a CBI probe as recommended by Lieutenant Governor V.K. Saxena. This chain of events ultimately led to an FIR being filed by the CBI, followed by questioning and the subsequent arrest of Manish Sisodia and Sanjay Singh in February 2023 and the subsequent arrest of Delhi Chief Minister Arvind Kejriwal. The ED had issued over 9 summons to Kejriwal to appear for questioning in the excise policy case, and Kejriwal skipped all of them.
The Arrest And The Aftermath
The arrest came after the Delhi High Court refused to grant Kejriwal any interim protection from coercive action. He was reportedly arrested under the Prevention of Money Laundering Act, 2002.
Minutes after his arrest, AAP leader Atishi said the party has moved the Supreme Court for quash his arrest. She claimed on X that the Aam Aadmi Party’s office in the capital city has been “sealed off from all sides.”
“How can access to a national party office be stopped during the Lok Sabha election? This is against the ‘level playing field’ promised in the Indian Constitution,” she posted on X. Atishi also called it the death of democracy in a statement to the press.
In a show of solidarity and unity, INDIA bloc leaders have registered their support and announced a mega protest rally against the arrest of Arvind Kejriwal in tandem with the AAP.
A Legal Question
Since the Enforcement Directorate (ED) issued summons to Kejriwal in November, the leaders of the Aam Aadmi Party (AAP) have been stating that he will not resign and will instead continue to govern from behind bars. However, it is unclear whether an arrested Chief Minister can effectively run the government from prison.
It is impractical to run an office from behind bars, but there is no law that prevents a Chief Minister from doing so.
According to the law, a Chief Minister can only be disqualified or removed from office if He/She is convicted in a case. In the case of Arvind Kejriwal, he has not yet been convicted.
The Representation of the People Act, 1951 includes disqualification provisions for certain offenses, and conviction of anyone holding the office is mandatory. As for the Chief Minister, there are only two conditions under which they can lose their job – loss of majority support in the assembly or through a successful no-confidence motion against the government.
Article 361 of the Indian Constitution that grants legal immunity in both criminal and civil cases to the President and Governors. However this protection is not extended to Prime Ministers and Chief Ministers.
They are not disqualified just by an arrest despite being treated as equals in front of the Constitution that advocates Equality before the law. It means they can be tried in court like a common man.
A conviction is necessary for disqualification of a Chief or Prime minister which in this case is yet to be seen.
Historical Precedents
There have been several instances where Chief Ministers have been arrested. In fact, Kejriwal is the second Chief Minister to be arrested within two months. Some Chief Ministers resigned either before or soon after their arrest.
However, Arvind Kejriwal has refused to step down and intends to run his government from prison.
- A recent example is Hemant Soren, who resigned before getting arrested by the ED on January 31 this year. He was later replaced by Champai Soren.
- Back in 1997, Lalu Prasad Yadav, the then Chief Minister of Bihar, was convicted of corruption in the fodder scam and was sentenced to prison. He subsequently resigned from his post and appointed his wife, Rabri Devi, as his successor.
- J Jayalalithaa, the Chief Minister of Tamil Nadu, was arrested in a corruption case in 1996. In 2014, she was convicted in the Disproportionate Assets case and sentenced to four-year imprisonment. She was the first Chief Minister of India to be convicted while in office. As a result, she was disqualified as the Chief Minister and resigned, with O Panneerselvam taking over as the new Chief Minister of Tamil Nadu.
Lieutenant Governor’s Role in Delhi’s Polity
Delhi has a unique power structure, with an elected Chief Minister and a Lieutenant Governor (LG) who is appointed by the Centre.
Currently, Arvind Kejriwal, the Chief Minister, is in jail and needs to be released in order to continue his role. If he is not released, the LG VK Saxena can involve the President of India to suspend the operation of Article 239 AA, which is the Constitutional provision dealing with the National Capital Territory of Delhi. If the CM is behind bars, the L-G can claim that the Delhi administration under him cannot fulfill its duties.
According to Article 239AB of the Indian Constitution, the Lieutenant Governor (LG) can declare “failure of constitutional machinery in the state” as a valid reason for the imposition of President’s rule in Delhi. This could lead to the resignation of Arvind Kejriwal and the national capital being brought under the direct control of the Union government.
It remains to be seen what will become of this saga and if Kejriwal can run his office from jail until his conviction. With Lok sabha polls nearby, this is only going to harm his political image.
The best move would be stepping down untill the inquiry is complete and han over the baton to someone else.
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