Delhi Chief Minister Arvind Kejriwal was arrested yesterday by the Directorate of Enforcement (ED), following his avoidance of nine summons issued by the investigative agency in relation to the Delhi liquor policy case.
The decision to apprehend Kejriwal transpired shortly after the High Court’s denial of protection from arrest. With this development, Kejriwal becomes the second opposition Chief Minister to face arrest by the ED within a span of fewer than two months, following Jharkhand Chief Minister Hemant Soren’s similar fate in January 2024 due to allegations in a graft case. Subsequently, Hemant Soren was replaced by his party colleague, Champai Soren.
Despite ongoing assertions from AAP leaders since the ED’s initial summonses in November, affirming Kejriwal’s refusal to resign and determination to govern while detained, questions loom regarding the practicality of such a scenario.
Delhi government minister Atishi declared shortly after Kejriwal’s arrest that he would not step down from his position. However, the legality and feasibility of a detained Chief Minister continuing to fulfill official duties warrant examination.
CMs not Protected from Arrest?
Constitutionally, only the President of India and Governors of states and Union Territories enjoy immunity from civil and criminal proceedings until the conclusion of their terms. Article 361 of the Constitution stipulates that these officials are not liable to any court for acts performed in the discharge of their official duties.
However, this immunity does not extend to Prime Ministers or Chief Ministers, who are subject to the principle of equality before the law as advocated by the Constitution. Despite this, arrest alone does not warrant disqualification.
Can Kejriwal Run Government from Prison?
While theoretically plausible, governing from detention presents logistical challenges. However, there exists no explicit prohibition against a Chief Minister conducting official responsibilities while under arrest. Disqualification only occurs upon conviction.
The Representation of the People Act, 1951 outlines disqualification provisions for specific offenses, necessitating a conviction for those holding office.
What Constitutional Experts say
Constitution expert SK Sharma told TOI that there exists no specific legal provision mandating the automatic resignation of a state’s Chief Minister upon arrest. He cited the example of former Bihar CM Lalu Prasad Yadav, who appointed his wife Rabri Devi as CM during his arrest. “Former Bihar CM Lalu Prasad Yadav made his wife Rabri Devi the CM of the state when he was arrested. More recently, Hemant Soren in Jharkhand also resigned. Calling cabinet meetings in the jail or review meetings with officials in his cell does not seem practical,” said Sharma.
Sharma further indicated that if AAP persisted in retaining Kejriwal as CM, it could lead to a deadlock, potentially prompting the Centre to impose President’s rule in Delhi.
What May Happen Next: Likely Names for New CM
Despite AAP’s unwavering stance on Kejriwal’s continuation in office, internal sources told TOIat potential successors, including Atishi and health minister Saurabh Bharadwaj. Atishi, known for her extensive portfolio and close ties to Kejriwal, alongside Bharadwaj, a prominent minister with significant responsibilities, emerged as likely contenders. Additionally, sources speculated about the surprise candidacy of Kejriwal’s wife, Sunita, given her background as a revenue services officer and active involvement in party affairs.
However, finding a successor of comparable stature to Kejriwal, a national convener of the party and three-time Delhi CM, presents a formidable challenge for AAP.
Role of Delhi’s Lieutenant Governor
Delhi’s unique power structure, featuring an elected Chief Minister and a Lieutenant Governor appointed by the Centre, presents a complex scenario. Kejriwal’s ability to continue as CM hinges on legal relief, failing which the Lieutenant Governor can seek Presidential intervention, potentially leading to the imposition of President’s rule.
Recent cases demonstrate how denial of bail can compel resignation, highlighting the precarious position of arrested officials.
In light of these developments, the Lieutenant Governor could invoke ‘failure of constitutional machinery’ to justify President’s rule, thereby bringing the national capital under direct Union government control until the end of the current Assembly’s tenure in February 2025.
Historical Precedents of Incumbent CM Arrests
Kejriwal’s arrest adds to a history of Chief Ministers facing legal repercussions. Notably, Hemant Soren’s recent resignation prior to arrest mirrors similar instances, such as Lalu Prasad Yadav’s resignation in 1997 due to corruption charges.
Similarly, J. Jayalalithaa’s conviction in 2014 led to her resignation, marking the first instance of a Chief Minister being convicted while in office.
