 "Delhi cabinet leader Atishi Marlena later claimed that Kejriwal gave her instructions to address issues with water and sewage in certain areas of the city. PTI/File Image")
Delhi chief minister Arvind Kejriwal has been sent to judicial custody till 15 April in the alleged excise policy scam case. The Aam Aadmi Party (AAP) supremo, who was arrested on 21 March, is accused by the Enforcement Directorate (ED) of being the “kingpin and key conspirator of the scam.”
For the next two weeks, the CM will be housed in Tihar’s jail number two . The same jail houses key AAP leaders like Manish Sisodia, Satyendar Jain, and Sanjay Singh.
Kejriwal, who has not yet tendered his resignation as chief minister, has maintained that he will continue running the government even while imprisoned. The leaders of the party echoed the same sentiments.
On 24 March, the 55-year-old even issued his first order as CM from behind bars. Reportedly, he had given an order to the government of Delhi’s water department.
Delhi cabinet leader Atishi Marlena later claimed that Kejriwal gave her instructions to address issues with water and sewage in certain areas of the city.
But whether Kejriwal can run Delhi from behind bars continues to be the most hotly debated topic in the Capital. How does he plan to do that?
Let’s take a closer look.
Running government from jail
The AAP government plans to argue in court that a part of the Tihar Central Jail complex be designated as “prison” in order to provide Kejriwal with access to video conferencing and other office facilities necessary for managing the government.
Impact Shorts
More ShortsAccording to The Economic Times which quoted party insiders, the party’s legal staff is working hard to get the court to grant their plea, citing earlier instances in which under trails were let to run their offices out of Tihar jail.
An unnamed senior AAP functionary told ET, “The most high-profile precedent is that of Sahara group’s Subrata Roy who got permission from court to use office facility inside Tihar jail to negotiate sale of his luxury hotels in New York and London to raise his bail money. In 2014, the special court complex inside Tihar was declared ‘jail’ by director-general (prisons).”
The official cited Unitech promoters Sanjay Chandra and Ajay Chandra’s example where they were found to be running an illegal office from Tihar jail.
The Representation of Peoples Act, 1951, states that an MLA is disqualified after being convicted. Thus, following conviction, he or she is also ineligible to serve as a minister. Therefore, it is theoretically feasible for Kejriwal to work from jail, even though this is unheard of, former secretary general of Lok Sabha, PDT Achary, told The Times of India.
“In the eyes of the law, Kejriwal is CM of Delhi with a brute majority. How will you stop him from discharging the responsibilities of a duly elected CM? If the court decides to send him to judicial custody, it will have to look at this aspect as well,” he said.
In agreement with him, former Vidhan Sabha secretary and constitutional expert SK Sharma stated that there is no legal requirement for a CM to resign and hand over power to someone else in the event of an arrest.
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Why it is not a sustainable option
If considered, running a government from jail is practically difficult.
Contrary to the AAP’s assertion that it could govern Delhi from behind bars, former Tihar Jail PRO Sunil Kumar Gupta stated that it would be extremely difficult and would necessitate breaking several rules.
Sunil Kumar Gupta told ANI that governing entails more than just signing documents; it involves numerous tasks that are practically impossible to carry out from within a jail.
“It would be extremely challenging. There has to be a personal staff with the CM. As of now, there are 16 jails and there is no such facility in any of them where a chief ministership can run from. All the rules have to be broken for it. No one would allow the breaking of so many rules.”
“Running a government does not mean simply signing the files. To run a government, cabinet meetings are called, ministers are consulted, and there is a lot of staff, there are meetings or telephone conversations with the LG. The jail does not have a telephone facility. The public comes to meet a CM for the redressal of their grievances. It is impossible to create a CM office in a jail,” he added.
Designating a place as a jail
Yet while imprisoned, Gupta offered a simpler solution for managing the government.
Citing jail rules, the former Tihar Jail PRO stated that administrators had the power to declare their home or workplace to be a jail. If put into action, this permits signing documents and performing other formal activities.
“But in that place, there will have to be a superintendent and the staff will also have to be kept there. There is a lot of hindrance in that too. Prisoners in jail can speak to their families every day for five minutes and all of it is recorded. All this is not practical at his house,” he said, according to TOI.
Also read: How Arvind Kejriwal’s wife Sunita is stepping up amid his absence
Other possible options
Multiple experts have expressed different views regarding the imposition of the President’s Rule. While some contend that a situation involving a CM jailed is justified, others contend LG should consider other options before making such a recommendation.
Senior advocate Maninder Singh told the newspaper that the President’s rule is an option because a chief minister cannot lead the government while in jail and because a constitutional collapse cannot be allowed to happen.
He highlighted that a CM’s duties, which include interacting with officers, presiding over cabinet sessions, and leading committees, cannot be carried out while they are incarcerated. He claimed these are essential for the day-to-day operations of the government and daily job requirements.
Senior advocate Rakesh Dwivedi asserted, “Kejriwal must respect constitutional convention. A CM facing arrest or after being arrested should nominate someone else from his party for the post… as was done in case of Lalu Yadav and recently by Hemant Soren.”
He also said that the Centre has the option to dismiss the AAP government “if AAP fails to nominate someone else.
Constitution expert SN Sahu told TOI, “Governance is serious business. Government servants are suspended when they are jailed. Even elected representatives are like government servants. The spirit of law should be applicable on them too,” while, arguing that Kejriwal should resign.
Dwivedi went on to say that the new orders that Kejriwal “supposedly” approved are a “joke” and a “fraud.”
“It is not the way a CM passes the order. An order is passed on a file where a CM puts his signature. Files cannot be taken to jail and secretaries cannot go inside. It is not an effective constitutional order. There is a limit to this absurdity,” he told the daily.
Facilities for the CM in 14x8 feet cell
Kejriwal is kept at Tihar jail number two, which houses the bulk of the convicts, in a 14 by eight-feet cell. The cell is situated in the prison’s “general area” and features an attached toilet and TV.
A senior official told TOI that the complex, which houses about 600 people, is chosen to house the Chief Minister because it is less crowded than the cells designated for prisoners awaiting trial.
Kejriwal, who benefits from Z+ security cover, will be staying alone and guarded by four personnel in shifts around the clock. He would always have a CCTV camera watching over him, a jail official said.
On Monday, the CM went to his cell at approximately 6 pm following the completion of the required formalities and a medical examination.
According to media reports, he was given essential items, a notepad and pen beside the books he had asked for, including How Prime Ministers Decide by journalist Neerja Chowdhury, the Gita and Ramayana.
When an offender is brought into custody, his possessions are seized; however, Kejriwal was granted permission to keep a locket that he had asked the court to permit.
When the CM arrived, the Tihar authorities opened a bank account for him, in which his family could put money so he could purchase items from the jail canteen, such as fruits, salad, biscuits, toothpaste, and toothbrushes.
According to a jail insider, to avoid any incidents, Kejriwal would always have one or two jail staff members with him while he receives treatment or makes purchases from the jail canteen.
Regarding his diet, TOI sources suggested that due to his diabetes, Kejriwal might be permitted to eat meals prepared at home rather than the typical jail fare of dal, roti, rice, and veggies. For breakfast and snacks, he’ll get tea, biscuits, and bread.
With inputs from agencies