Arvind Kejriwal arrested: Can he continue as Delhi chief minister from jail?

As a cavalcade of cars made their way to the Enforcement Directorate office after arresting Delhi chief minister Arvind Kejriwal in connection with the Delhi liquor policy case, his party leader Atishi declared that he would not resign from his post and, if needed, will run the government from jail.

Wednesday night (21 March) turned into a spectacle when a team of 10 ED officials arrived at the Delhi chief minister’s official residence and after two hours arrested Arvind Kejriwal after confiscating his phones and other gadgets.

With this development, Kejriwal has become the third senior leader from the Aam Aadmi Party (AAP) to be arrested in this case and the first sitting chief minister to be arrested in independent India.

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But the question that many are now asking is — Can Kejriwal run the government from jail? Is there a law that states otherwise?

We explore this and get you the answers.

‘Kejriwal to remain CM’

Following Kejriwal ’s arrest and him being taken away to the ED office, the AAP held a press conference post-midnight, asserting that Kejriwal “is and will remain the chief minister of Delhi”.

Delhi minister Atishi speaking at the presser said, “He will continue as the chief minister of Delhi. If need be, he will run the government from jail. There is no rule that stops him from running the government from jail since he has not been convicted.”

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Delhi Assembly Speaker Ram Niwas Goel, earlier, had also said that Kejriwal will run the Delhi government “from jail” if arrested. “The party and all MLAs have decided that CM Kejriwal will not resign after the arrest. The government will be run from the jail,” Ram Niwas Goel had said.

The AAP also alleged a “huge conspiracy” behind Kejriwal’s arrest ahead of the Lok Sabha polls.

ये लोकतंत्र की हत्या करने का प्रयास हुआ है।

2 साल की जाँच में एक पैसा भी, ना CBI को मिला है, ना ED को मिला है। फिर भी चुनाव से ठीक पहले, CM @ArvindKejriwal को गिरफ़्तार कर लिया जाता है।

क्योंकि प्रधानमंत्री @NarendraModi जी को पता है कि कोई नेता है जो उन्हें Challenge कर सकता… pic.twitter.com/VHBM5ehgQR

— AAP (@AamAadmiParty) March 21, 2024

What the law says

As per the Constitution, the President of India and governors of states and Union territories are exempt from civil and criminal proceedings until his/her term ends, as per the law. Article 361 of the Constitution says that the President of India and Governors of states are not answerable to any court of law for “any act done in discharge of their official duties”.
However, this does not extend to the prime minister or chief minister of a state.

It’s important to note that there is no law until now that stops a chief minister from running the administration of a state from behind bars. As per Representation of the People Act, 1951, an MLA or MP is only disqualified when convicted. As of now, Kejriwal has not been convicted, meaning he can technically and legally continue in office.

Constitution expert SK Sharma told the Times of India there was no specific provision in the law that a chief minister had to necessarily resign and pass on the baton to somebody if he or she was arrested.

Challenges from governing behind bars

But while there’s no law that stops Kejriwal from continuing to run the Delhi government from jail, it is easier said than done. There are many practical and even constitutional problems to running a state administration from prison. Imagine the practical problems in getting files to jail for Kejriwal to sign off on. Calling cabinet meetings in jail or review meetings with officials in his cell does not seem practical,” Sharma said to Times of India.

As per an NDTV report, Tihar jail officials, where Kejriwal will eventually be taken to, said that there was no precedent to a chief minister working from jail. “There is no mention of it in the jail manual and everything will be done according to the jail manual,” a source told NDTV.

As per the current jail rules, an inmate can meet family, friends, or associates only twice a week. In such a situation, it will be difficult for him to govern.

There are also constitutional ramifications to Kejriwal running Delhi from jail. A chief minister governing from jail indicates a “failure of constitutional machinery in state”, the Indian Express reported, which could be used to argue for the imposition of President’s Rule.

Article 239 AB gives powers to lieutenant governors to recommend to the President of India to suspend the operation of Article 239 AA. Thus, the LG could recommend the imposition of President’s Rule if he believes that there is a breakdown of constitutional machinery in Delhi. And if done so, the consequences of it would be grave for the AAP.

Replacing Kejriwal

While the AAP may insist that Kejriwal will continue as CM, it is clear that its feasibility is difficult. In a such a situation, there are rumours circulating that the AAP may pick a successor from the party to replace Kejriwal. This is exactly what former chief minister of Jharkhand, Hemant Soren, had done before he was arrested; his colleague Champai Soren took the oath of office. Similarly, in the past, former Bihar CM Lalu Prasad Yadav made Rabri Devi the CM before he was arrested in the fodder scam.

Speculation is swirling that either Saurabh Bharadwaj or Atishi could succeed Kejriwal as chief minister. However, at the time of this report, both of them had been detained as they participated in a protest against Kejriwal’s arrest.

An Economic Times report quoting sources said that Kejriwal’s wife, Sunita, could also be elected.

It is left to be seen what happens next, but stay tuned to Firstpost for more updates and explainers on this matter.

With inputs from agencies