AAP workers protest at gate number 4 of Tihar Jail in New Delhi. Photo: X/@AtishiAAP via ANI
The story so far: Delhi Chief Minister Arvind Kejriwal has been lodged in Tihar Jail since April 1 after being arrested by the Enforcement Directorate (ED) on charges of corruption and money laundering in the execution of the Delhi government’s now scrapped excise policy for 2021-22. On May 3, the Supreme Court forewarned the ED that it may “consider” granting interim bail to Mr. Kejriwal due to the Lok Sabha election. Delhi votes on May 25.
What is the Aam Aadmi Party’s strategy?
Foreseeing his arrest, the Aam Aadmi Party in December 2023 ran a “Main Bhi Kejriwal” (I am also Kejriwal) campaign that asked the people of Delhi if Mr. Kejriwal should continue as the Chief Minister of Delhi from jail if arrested. After his arrest, in an unprecedented decision, AAP decided that Mr. Kejriwal would remain the Chief Minister and that he would run the government from behind bars proclaiming it as the “will of the people of Delhi”.
Mr. Kejriwal’s decision has led to a peculiar situation in the capital where various administrative decisions have been stalled. For instance, the election to appoint the Mayor and Deputy Mayor of the Municipal Corporation of Delhi (MCD) scheduled to be held on April 26 was postponed after Lieutenant-Governor Vinai Kumar Saxena refused to appoint a presiding officer to conduct the election saying he “did not deem it appropriate to exercise his power as Administrator to appoint the Presiding Officer in [the] absence of inputs from the Chief Minister.”
Is the Chief Minister meeting his Ministers?
When Mr. Kejriwal was in the custody of the ED from March 21 to April 1, he was sending written instructions to his Ministers on ensuring uninterrupted water supply and medicine as well as messages to the public to be read out by by his wife Sunita Kejriwal.
However, since being lodged in Tihar Jail, communication has been reduced to media bites from those going to visit him. The Tihar Jail Manual says that every interview with a prisoner shall take place in the presence of a prison officer, who shall be positioned at a place from where he can see and hear what passes between the prisoner and his interviewer and he shall prevent any article being passed between the two parties. Since April 1, apart from his family and lawyers, Mr. Kejriwal has met AAP general secretary Sandeep Pathak and Cabinet Ministers Atishi and Saurabh Bharadwaj once and his Punjab counterpart Bhagwant Mann on two occasions. Mr. Pathak said Mr. Kejriwal would meet two Cabinet Ministers every week for 30 minutes each.
How is the government being run?
Mr. Kejriwal does not have any portfolios under him and there have been no cabinet meetings since his arrest. There has also not been a session of the Delhi Assembly since then. Individual Ministers have been looking after their own departments. The party is currently focused on its election campaign. While deferring the MCD elections, the LG said that the circumstances were “peculiar” and “unprecedented” where the serving Chief Minister “cannot discharge his constitutionally obligated functions.”
The Constitution is silent about whether a person can continue as Chief Minister as remand prisoner. Section 8(3) of the Representation of People Act of 1951, states that an MLA or MP can be disqualified when convicted and sentenced to at least two years in prison. Mr. Kejriwal has not yet been convicted in the case.
When can President’s Rule be imposed?
President’s Rule can be imposed in Delhi under Article 239AB of the Constitution. Delhi’s power structure is characterised by a delicate balance between the elected government and the Central government-appointed LG. If Mr. Kejriwal continues to remain in prison, stalling various administrative work, the LG can recommend to the President who can invoke Article 239AB citing “failure of constitutional machinery”. President’s rule under Article 239AB was invoked in Delhi only once, in 2014, subsequent to Mr. Kejriwal’s resignation 49 days into his first tenure as Chief Minister.
What are the challenges going forward?
In a recent order, the High Court censured the AAP government over non-supply of educational material and other statutory benefits to eight lakh students in the MCD-run schools. While noting that it is Mr. Kejriwal’s prerogative whether to continue as the Chief Minister or resign, the High Court said national 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.
What have various petitions, orders from the courts said about the situation in the past month?
Following Mr. Kejriwal’s arrest, several individuals approached the High Court demanding his removal from the Chief Minister’s post claiming breakdown of the constitutional machinery in the capital.
The High Court, however, has rejected each one of the petitions saying there is no scope for judicial intervention in this matter.
The High Court said it cannot remove or dismiss Mr. Kejriwal from the post of Chief Minister or declare the breakdown of constitutional machinery in the capital. The High Court said that Article 239AB is not to be invoked by the court, as the decision to go to the President was to be exercised by the Governor.
