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Business News/ Politics / News/  Can Arvind Kejriwal run government from behind the bars? Here is what the law says

Can Arvind Kejriwal run government from behind the bars? Here is what the law says

Arvind Kejriwal arrested: Running office from behind the bars is logistically impractical, but there is no law that stops a Chief Minister from doing so. However, the role of Delhi L-G VK Saxena will be key in days to come.

Delhi CM Arvind Kejriwal. (PTI Photo) (PTI)Premium
Delhi CM Arvind Kejriwal. (PTI Photo) (PTI)

Delhi Chief Minister Arvind Kejriwal was on March 21 arrested by the Directorate of Enforcement (ED) in connection with the Delhi liquor policy case. The arrest came after Kejriwal skipped nine summons by the investigating agency in the case. 

Hours before his arrest, the High Court refused to provide Kejriwal protection from the arrest. Arvind Kejriwal has become the second Opposition Chief Minister to be arrested by ED in less than two months. Before him, Jharkhand Chief Minister Hemant Soren was arrested in January, 2024 by ED in connection with a graft case. Soren was, however, replaced by his party colleague Champai Soren as the new CM of Jharkhand.

Follow all LIVE Updates on Arvind Kejriwal arrest here

Ever since the ED issued summons to Kejriwal in November, the Aam Aadmi Party (AAP) leaders have maintained that he will not resign and instead run the government from behind the bars. But can an arrested Chief Minister run office from behind the bars? 

Delhi government minister Atishi said on Thursday, soon after Kejriwal's arrest, that he will not resign as the Chief Minister of Delhi. Here is what the law says.

Protection from arrest?

President of India and Governors of states and Union Territories are the only constitutional post holders who are immure 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".

But the immunity doesn't cover the Prime Ministers or Chief Ministers who are treated as equals in front of the Constitution that advocates the Right to Equality before the law. Yet, they are not disqualified just by an arrest. 

Can Arvind Kejriwal run his office from prison?

Running office from behind the bars is logistically impractical, but there is no law that stops a Chief Minister from doing so. As per the law, a Chief Minister can only be disqualified or removed from office when he is convicted in any case. In the case of Arvind Kejriwal, he has not been convicted yet. 

Also Read : Arvind Kejriwal arrested: Delhi CM 4th high profile to be arrested in Delhi excise policy case | The list

The Representation of the People Act, 1951 has disqualification provisions for certain offences but a conviction of anyone holding the office is mandatory.

The Chief Minister can lose the top job under only two conditions - loss of majority support in the assembly or through a successful no-confidence motion against the government in power that the Chief Minister leads.

Yet, running government from behind the bars won't be easy for   Kejriwal. Already, two of his former cabinet colleagues Manish Sisodia and Satyendar Jain are behind the bars. Kejriwal, however, doesn't have any portfolio in his cabinet. 

Blast from the past

There have been many cases of Chief Ministers getting arrested. Kejriwal is, in fact, the second Chief Minister to be arrested within two months. 

In some cases, the Chief Minister resigned soon after or before the arrest. The case of Hemant Soren, who was arrested on January 31 this year, is a recent example. Soren resigned before the arrest by the ED, only to be replaced by Champai Soren. The Jharkhand government comprising Hemant Soren's Jharkhand Mukti Morcha and the Congress party, among others, survived.  

Also Read: Arvind Kejriwal arrested. Will he resign as Delhi CM? Atishi says THIS

Way back in 1997, Lalu Prasad Yadav, the then Bihar’s CM, was convicted of corruption in the fodder scam and was sentenced to prison. He resigned from office and appointed his wife Rabri Devi as the Chief Minister.

J Jayalalithaa of Tamil Nadu was arrested in a corruption case in 1996. She was convicted and jailed in 2014 in the Disproportionate Assets case. She was the first Chief Minister of India to be convicted while in office, sentenced to four-year imprisonment and automatically disqualified as the Chief Minister. Eventually she resigned and was replaced by O Panneerselvam as the Chief Minister. 

Other Names

Other chief ministers who have been arrested include Om Prakash Chautala (Haryana) N Chandrababu Naidu (Andhra Pradesh) and Madhu Koda (Jharkhand).

Also Read : Congress' third candidate list: Adhir Chowdhury from Berhampore, Mallikarjun Kharge's son-in-law featured | Full list

Chautala, who served as Haryana Chief Minister of Haryana many times between 1989 and 2005, was convicted in a teachers' recruitment case in 2013. He was sentenced to 10 years in jail.

Chandrababu Naidu, the Andhra Pradesh Chief Minister between 2014 and 2019, was arrested in 2023 in connection with an alleged scam during his tenure as Chief Minister.

Madhu Koda, the Chief Minister of Jharkhand between 2006 and 2008, was arrested in 2009 in a mining scam.

L-G's Key Role

Delhi's power structure is unique having an elected Chief Minister and a Lieutenant Governor (L-G) who is picked by the Centre. Arvind Kejriwal needs to get a relief from jail, if he wants to continue as the CM . Or else, the L-G VK Saxena can involve the President of India seeking to suspend the operation of Article 239 AA,  the Constitutional provision dealing with the National Capital Territory of Delhi.  With CM behind the bars, the L-G can say that the Delhi administration under him cannot discharge its duties.

Also Read : Arvind Kejriwal arrested by ED: BJP hails ‘victory of truth’, Congress calls it ‘unconstitutional'

In recent past, many opposition leaders, arrested in different cases, had their bails denied, thus forcing them to resign. In case of Tamil Nadu Minister Senthil Balaji, arrested by the ED in June 2023, the Madras High Court had questioned how he could continue to be a minister after he was arrested. Balaji had to quit eight months after his arrest. Even Kejriwal's former cabinet colleagues, Manish Sisodia and and Satyendar Jain had to resign since both couldn't get bail.

Thus, the LG can cite 'failure of constitutional machinery in the state,' a strong reason for President’s rule in Delhi under Article 239AB of the Constitution and pave way for Arvind Kejriwal to resign. The President's rule will bring that national capital under Union government's direct control. The current Delhi Assembly’s tenure ends in February 2025.


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Published: 21 Mar 2024, 09:55 PM IST
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