The chief minister’s position is not a ceremonial one and the holder of the post has to be virtually available 24*7 to deal with crises, the Delhi high court held on Monday, adding that while Arvind Kejriwal’s decision to stay on as Delhi’s CM following his incarceration was “personal”, it did not imply that school children’s fundamental rights will be violated while he remains “incommunicado”.
A bench of acting chief justice Manmohan and justice Manmeet PS Arora delivered a harsh indictment of the Aam Aadmi Party (AAP) chief, who has been in jail since March 21 in connection with alleged irregularities in the now-scrapped Delhi liquor policy, and his administration for not providing books and uniforms to more than 200,000 students in city schools.
HT launches Crick-it, a one stop destination to catch Cricket, anytime, anywhere. Explore now!
“A chief minister’s post in any state, leave alone a buzzing capital city like Delhi, is not a ceremonial post. It is a post where the office holder (when in office) has to be virtually available 24×7 to deal with any crisis or natural disaster like flooding, fire, disease etc. National interest and public interest demands that no person who holds this post is incommunicado or absent for a long stretch of time or for an uncertain period time,” said the bench in a 17-page order.
The court also emphasised that Kejriwal’s absence should not force children to start the school year without free textbooks and other writing materials, directing the commissioner of the Municipal Corporation of Delhi (MCD) to make purchases without the constraints of the ₹5 crore spending cap.
“The decision of the chief minister, despite having been arrested, and his petition being dismissed by a learned single judge of this court to continue to hold the position is his personal decision. However, it does not mean that if the chief minister is not available, the fundamental rights of young children would be trampled upon, and they would go through the first term (1st April to 10th May) without free textbooks, writing material and uniform,” underlined the bench.
The court also took note of Delhi government’s counsel Shadan Farasat’s submission that Delhi’s urban development minister Saurabh Bhardwaj had instructed him that in the absence of the standing committee of MCD, further powers could only be delegated with Kejriwal’s consent, who is currently in custody in Tihar jail.
“There is ring of truth in the statement made by the hon’ble minister of urban development, Mr Saurabh Bhardwaj, that any increase in financial power of Commissioner, MCD shall require the chief minister’s approval. It amounts to an admission that the Delhi government, due to absence of the chief minister, is at a standstill,” said the bench.
The order opens the latest frontier in the battle between the Union government led by Bharatiya Janata Party (BJP) which has demanded that Kejriwal resign on the grounds that the state administration cannot be run from behind bars, and the AAP, which has insisted the Kejriwal will continue to be the CM even from jail because his arrest is illegal and politically motivated.
Addressing a press conference, AAP leader Sanjay Singh said: “CM’s decision not to resign is a decision to exercise his rights democratically against the dictatorship of the central government and the BJP Government.”
In an interview this week, Prime Minister Narendra Modi said he was optimistic that Delhi CM’s arrest would not become a precedent in Indian democracy, adding he was sure that, unlike Kejriwal, other politicians would not be lacking in morals.
The court was listening to a public interest litigation filed by non-profit Social Jurist, highlighting the plight of students in MCD schools who were studying without textbooks and in inadequate conditions.
The MCD commissioner revealed that over 200,000 students lacked essential amenities due to the non-formation of standing committees, which are essential for decision-making regarding contracts worth over ₹5 crore. The court was informed that students did not have bank accounts and were given neither notebooks nor cash reimbursement for uniforms, school bags and stationery. The petition, argued through advocate Ashok Agarwal, asked the MCD and department of education to issue directives guaranteeing that children enrolled in their schools had active bank accounts.
While reserving its judgment on April 24, the bench rebuked the AAP government’s focus on “power”, especially highlighting Kejriwal’s failure to resign despite being arrested on a money laundering case. The Delhi CM put his personal interests ahead of the interests of the country by refusing to step down despite being arrested on suspicion of money laundering, the bench had said on the day.
Monday’s verdict came after the Delhi government cited administrative hurdles, including the dispute over the constitution of the MCD standing committee, the absence of the CM’s approval due to his incarceration, and in delegating the financial power of the standing committee to the MCD commissioner for awarding contracts above ₹5 crore.
But the court sharply criticised the government’s stance, asserting that the prolonged absence of a chief minister undermined national interest and governance stability.
It further lambasted the Delhi government for citing a raft of bureaucratic and administrative obstacles, saying that the submission of learned counsel for the GNCTD, Shadan Farasat, blaming other institutions amounted to nothing but “shedding of crocodile tears” and that “the real issue is of ‘power’, ‘control’, ‘turf dominance’ and ‘who takes the credit’.”
“The inability of GNCTD to act with alacrity and respond to the urgency of the issue at hand exhibits its indifference towards the plight of the students enrolled in MCD schools and is a wilful violation of the fundamental rights of the said students…receipt of free textbooks, writing material and uniform by school going children is not only a legal right under the RTE Act and RTE Rules but is a part of the fundamental right under Article 21A of the Constitution,” lamented the court.
It added: “Consequently, this court is of the view that non-availability of chief minister or non-formation of a standing committee or disputes pertaining to appointment of an aldermen by the Hon’ble LG or non-delivery of judgment by a competent court or non-compliance of certain provisions of Delhi Municipal Corporation Act cannot come in the way of the school-going children receiving their free text books, writing material and uniform forthwith.”
The court directed the MCD commissioner to promptly incur the necessary expenses for the procurement of textbooks, writing materials, and uniforms for students in MCD schools. Notably, this directive bypassed the expenditure limit of ₹5crore, ensuring swift action to fulfil the constitutional and statutory rights of students. However, the expenditure incurred will be subject to statutory audit, ensuring financial accountability, said the court.
Kejriwal, arrested by the Enforcement Directorate (ED) on March 21 in connection with the Delhi excise policy case, is presently in judicial custody. Hours after his arrest, Delhi minister Atishi had said that Kejriwal would continue as the CM and run the city government from prison if needed.
ED accused the CM of being the “kingpin” and “key conspirator” of the alleged corruption in the 2021-22 Delhi excise policy, and said that he acted in cahoots with ministers of his cabinet and other AAP leaders while seeking benefit from in the form of a “company”.
A day after his arrest, the CM was sent to ED custody for six days, and on March 23, he approached the high court, alleging that his arrest violated his fundamental rights and that it was politically motivated.
On April 9, the high court rejected his plea saying that ED had “sufficient” materials to justify the arrest of Kejriwal, who could not be allowed to take the plea of political vengeance ahead of the Lok Sabha elections after choosing to skip nine ED summonses over the last six months. This order underscored that the law did not allow any special privilege to a CM or any other person in power.
