CAN KEJRIWAL CONTINUE TO BE CM WHILE IN CUSTODY?

THE CONTEXT: After the recent arrest of Delhi Chief Minister, questions are being asked about whether he can continue to occupy a public office that demands a high degree of morality. Aam Aadmi Party leaders have insisted that he will remain the Chief Minister.

ARGUMENTS IN SUPPORT

• Arvind Kejriwal has not tendered his resignation from the post of Chief Minister. The Aam Aadmi Party (AAP) said he will continue as the chief minister of Delhi and will run the government from jail.
• As per the rules, he loses the position only in these scenarios

1. if he loses the majority in the House
2. his party tells him to step down, he resigns from the position
3. if the President intervenes.

• Section 8 of the Representation of the People Act 1951 only bars due to disqualification and in this case, that is not the issue.
• A decade ago, the Law Commission recommended disqualification of an MP or an MLA if charges were framed against them in any such case. But these recommendations were never accepted by the government or put in place.
• They also hold the view that President’s Rule does not apply in this case because there is no breakdown of the constitutional machinery.

WHAT DOES LAW SAY?

• 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.
• Also, there is no law 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, CM of Delhi has not been convicted that means he can technically and legally continue in office. Section 8, Clause 3 of the Representation of the People Act deals with disqualification of a lawmaker and says a person convicted for an offence and sentenced to two years or above shall be disqualified from the date of such conviction. It says the lawmaker shall continue to be disqualified for a further period of six years after his release.
• Also, there is 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.

WHAT ARE CHALLENGES FROM GOVERNING BEHIND BARS?

• Though there is no law that stops Delhi CM from continuing to run the Delhi government from jail but it is difficult to do so in reality.
• There are many practical and even constitutional problems to running a state administration from prison.
• As per jail manual, there is no precedent to a chief minister working from jail. 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.
• The jail manual lays down specifically that an undertrial is allowed meetings only twice a week. Conducting Cabinet meetings and maintaining secrecy of government files would be difficult if carried to the Tihar Central Jail.
• Undwrtrials are allowed only specific documents, including court applications and vakalatnamas.
• There are also constitutional ramifications of these actions. A chief minister governing from jail indicates a “failure of constitutional machinery in state” 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.

JUDGEMENTS: BY THE MADRAS HIGH COURT IN S. RAMACHANDRAN VERSUS V. SENTHIL BALAJI

• The judgement referred to arguments made in court on whether a Minister must forfeit his right to occupy a public office that demands a high degree of morality if he is accused of a “financial scandal”.
• A former Tamil Nadu Electricity Minister, was arrested by the ED on money-laundering charges but he continued to be a state minister without portfolio while he was in judicial custody.
• The Madras High Court judgment highlighted discussions by lawyers in court about the practical difficulties of being a Minister while in custody. For example, a Minister sitting in prison cannot ask the Secretary of the State to get the files concerning any of the departments without breaching the oath of office.
• The arguments referred to a 2014 Constitution Bench judgment of the Supreme Court in Manoj Narula versus Union of India, which had held that

1. The basic norm for holding a public office was constitutional morality, that is, to avoid acting in a manner contradictory to the rule of law.

2. The second norm was good governance. It was argued in the Madras High Court that “the government has to rise above narrow private interests or parochial political outlook and aim at doing good for the larger public interest”.

3. The third was constitutional trust, that is, to uphold the high degree of morality attached to a public office.

• The High Court concluded that as minister did not “completely suffer a disqualification as a Member of Legislative Assembly under the Representation of People Act, 1951”. However, the High Court had agreed that citizens expect that persons in power had high standards of moral conduct. Political compulsion cannot outweigh the public morality, requirements of good/clean governance and constitutional morality.

THE CONCLUSION:

Addressing the concerns of federal overreach, political misuse, and ensuring fair investigations requires a multi-pronged approach involving legal reforms, institutional strengthening, and a commitment to transparency and accountability. The practical difficulties can be sorted if L-G exercises powers under the Prison Act to declare any facility as ‘prison’. Judgments in the Supreme Court and High Courts have previously concluded that constitutional morality, good governance, and constitutional trust are the basic norms for holding a public office.

SOURCE: https://www.thehindu.com/news/national/can-kejriwal-can-continue-to-be-cm-while-in-custody-lessons-from-the-senthil-balaji-case/article67981688.ece