Even after his arrest, Kejriwal did not resign from his position as Chief Minister, and his cabinet announced that they would govern from jail and make decisions from there
Niraj Krishna
In a democratic society, the role of a chief minister is crucial in governing a state, ensuring its development, and protecting the interests of its citizens. However, what happens when someone entrusted with such responsibilities finds themselves behind bars?
The sight of a Chief Minister serving time in jail is not merely fictional; it has occurred in various democracies around the world. It presents a unique set of challenges and raises serious concerns about governance, legality, and public trust.
The scenario of an elected representative fulfilling official duties while in jail is not entirely fictional. Instances have arisen where elected officials have continued to discharge their responsibilities remotely, despite facing legal action or serving a sentence. While this can lead to controversy and debate, there are arguments suggesting that, under certain circumstances, such actions could be considered ethical.
First and foremost, the mandate of a public representative is not solely dependent on physical freedom but also on their ability to effectively serve their constituents. In a democratic framework, elected officials are tasked with representing the interests of the people who elected them. Therefore, as long as they can fulfill their duties competently without compromising their physical presence, the moral principle of serving the public remains intact.
Primarily and most importantly, an investigation into the legal implications of governing from jail should be conducted. In many jurisdictions, an individual may become ineligible to hold public office due to incarceration. However, the specifics vary across different countries, and the legal frameworks governing such situations depend on various factors. Some legal systems may permit a Chief Minister to remain in office until proven guilty, while others may mandate immediate resignation upon arrest.
The investigation into the liquor scam has now reached Chief Minister Kejriwal. Kejriwal is appearing increasingly embroiled in this case. In recent days, the ED has issued summonses for questioning, and since then, there have been speculations. After ignoring several summons, on March 21, the ED arrested the Chief Minister of Delhi.
Even after his arrest, Kejriwal did not resign from his position as Chief Minister, and his cabinet announced that they would govern from jail and make decisions from there. Party legislators said that whether the government is run from police custody or jail, Arvind Kejriwal will still lead Delhi as the Chief Minister because the votes were cast in his name, and he will remain the CM. Before this, Manish Sisodia, Satyendra Jain, and Sanjay Singh had also been arrested in various cases. During this time, all legislators said that the BJP is afraid of Arvind Kejriwal and wants him removed from power in Delhi.
Now the question arises whether Chief Minister Arvind Kejriwal can run the government from jail or not. There is no provision in the constitutional rules regarding this. However, there hasn’t been any such case in the past where a prime minister or chief minister has run the government while in jail.
In India, the powers of the Chief Ministers and Prime Ministers are somewhat less than those of the President and Governors in this matter. Because even though the President and Governors cannot be arrested or detained while holding office, the Prime Minister and Chief Ministers do not have such immunity.
According to Article 361 of the Constitution, the President and Governors are granted immunity. They cannot be arrested or detained while holding office, nor can any court issue orders against them. Both the president and governors are immune to both civil and criminal cases. However, they can be arrested or detained after leaving office.
Under Section 135 of the Code of Civil Procedure, Prime Ministers, Central Ministers, Members of Parliament (MPs), Members of Legislative Assemblies (MLAs), Chief Ministers, and Members of Legislative Assemblies and Councils are exempted from arrest. This exemption is only applicable to civil cases, not criminal cases.
According to this section, if any member of Parliament, Legislative Assembly, or Legislative Council is to be arrested or detained, approval from the Speaker or Chairman of the House is necessary. The section also states that no member can be arrested or detained 40 days before or after a session. Additionally, no member can be arrested or detained from within the precincts of Parliament, Legislative Assembly, or Legislative Council without the order of the Speaker or Chairman. Since prime ministers are members of Parliament and chief ministers are members of legislative assemblies or legislative councils, the same rule applies to them. This exemption is only applicable to civil cases, not criminal cases. This means members can be arrested or detained in criminal cases, but the information must be provided to the Speaker or Chairman.
If a Chief Minister is being arrested, Arvind Kejriwal won’t be the first Chief Minister to face jail time; there have been instances in the history of Indian politics where sitting Chief Ministers have been sent to jail. Two notable names include former Bihar Chief Minister Lalu Prasad Yadav and the late Chief Minister of Tamil Nadu, Jayalalithaa. Both of these chief ministers were arrested while in office. Recently, the former Chief Minister of Ranchi was also arrested while holding office. Jayalalithaa was the first Chief Minister to be arrested.
Once a person is arrested, there’s no legal barrier to them continuing as Chief Minister, but administratively, it would be nearly impossible. Under the Representation of the People Act, a legislator can be deemed ineligible after conviction, and therefore, they may not have the right to become a minister. However, it’s unprecedented, and technically, working from jail is possible.
However, it’s important to note that arrest doesn’t mean conviction, and in such cases, the position of Chief Minister cannot be immediately vacated. This same principle applies to CM Kejriwal as well. Even if he were to be arrested, he would continue to be the CM, but it’s essential for him to maintain his independence and integrity to run the government.
The practicality of governing from jail should also be considered. It includes taking important decisions under the responsibility of the Chief Minister, overseeing administrative tasks, and representing the interests of the state on various platforms. Active participation and access are necessary for these duties, which can be severely limited within the confines of a jail cell. Communication barriers, restricted access to resources, and limited voice can hinder the Chief Minister’s ability to effectively fulfill their responsibilities.
Furthermore, the ethical and moral dimensions of the issue cannot be overlooked. Leadership by a Chief Minister isn’t just about exercising authority; it involves setting an example, upholding ethical standards, and earning people’s trust. Serving in jail can erode public trust in the government’s integrity and reliability, leading to widespread disillusionment and unrest.
Additionally, the impact on governance and administration can be profound. In the absence of effective leadership, decision-making processes may be delayed or compromised, leading to administrative inefficiency and incompetence. This could have far-reaching consequences for the state’s functioning, from economic stability to social unrest.
Moreover, the validity of policies and decisions made by a Chief Minister in jail can be questioned. Critics may argue that such decisions are influenced by personal agendas or external forces rather than being in the best interests of the state and its citizens. This could undermine trust in democratic processes and weaken the rule of law. Allowing individuals accused of crimes to hold public office from afar sets a dangerous precedent and undermines the credibility of the political system. It could send the wrong message to society and diminish the deterrent effect of the law.
The idea of governing one’s state from jail is not unheard of; it raises serious legal, practical, ethical, and governance-related concerns. The ability of a Chief Minister to effectively fulfill their duties and uphold democratic principles while incarcerated is highly controversial. Ultimately, clear guidelines and mechanisms within legal frameworks are necessary to address such situations to ensure the integrity of governance and maintain public trust.
While it is a legal requirement to suspend a government official upon their imprisonment, there is no such constraint on politicians. However, since Delhi is not a full state, if the Chief Minister refuses to resign, the President can impose President’s Rule in Delhi. Justice (retired) Sudhir Agrawal, Judicial Member NGT
Section 8(3) of the Representation of the People Act relates to disqualification and states that a person convicted of an offense and sentenced to imprisonment for two years or more shall be disqualified from the date of such conviction.
Resigning as a sitting CM can be a moral option. Additionally, a Chief Minister can still govern from jail with some permissions, such as conducting cabinet meetings and signing files as per the jail manual.
Legally, Arvind Kejriwal is not compelled to resign from the CM post until convicted. The Representation of the People Act, 1951, outlines the eligibility provisions, but conviction is necessary for removal from office. Lieutenant Governors under Article 239AB can declare ‘failure of constitutional machinery’ for President’s Rule, potentially forcing Kejriwal’s resignation and directing the Delhi government under the control of the central government.
