What the law says and what is the possibility of Kejriwal governing from jail: Legal experts speak

NEW DELHI: The inescapable hold of the Enforcement Directorate (ED) as it took the Delhi Chief Minister Arvind Kejriwal into custody on Thursday evening, has left the curious lot with a number of questions answered about the AAP supremo's arrest and what comes next.

Kejriwal, who now stands to be the first sitting Chief Minister arrested from the Opposition INDIA bloc, was questioned at his official residence for more than two hours in connection with the money laundering case related to the alleged excise policy scam before he was taken to the probe agency's office on A.P.J. Abdul Kalam Road at 11 p.m. on Thursday.

The Chief Minister will remain in the ED jail on Thursday night before he will be produced before the Rouse Avenue Court on Friday after a medical examination.

It is highly likely that the federal agency will seek for Kejriwal's remand from the court to question him in the case.

Notably, Kejriwal's name in the matter came up for the first time in the remand application filed by the ED against the Bharat Rashtra Samithi (BRS) MLC K. Kavitha while she was presented in the court on March 16.

It is also important to know that, so far, Kejriwal remains the biggest name to be arrested in the alleged scam, after K. Kavitha, former Delhi Deputy Chief Minister Manish Sisodia and AAP Rajya Sabha member Sanjay Singh, among others.

Well, going back to question one that is if Kejriwal will run the government from behind the jail or will he resign, let's look at what happened when recently Jharkhand's leader Hemant Soren and years ago various former Chief Ministers like Tamil Nadu Chief Minister J. Jayalalithaa, Bihar's Lalu Prasad, Andhra Pradesh's Chandrababu Naidu, Haryana's Om Prakash Chautala and Jharkhand's Madhu Koda were arrested.

Rashtriya Janata Dal National President, Lalu Prasad, was convicted in the fodder scam in 2013 along with former Chief Minister Jagannath Mishra. He and his son Tejashwi Yadav are currently being probed in a land-for-jobs case. Lalu was the Chief Minister of Bihar twice between 1990 and 1997.

Jayalalithaa, who served as the Chief Minister of Tamil Nadu several times between 1991 and 2016, was arrested in a corruption case in 1996. She was convicted and jailed in 2014.

What the legal experts are saying:

"As per the law, Arvind Kejriwal does not need to resign from his post as Delhi Chief Minister. There is no provision in the law by which he can be forced to resign. Resignation can be a moral decision of a sitting Chief Minister. He can also run his government from jail as Chief Minister. He can hold meetings of the cabinet and sign files by taking prior approval from the court as per the jail manual," Advocate Vineet Jindal told IANS.

Of course, running the government from inside the jail sounds absolutely unreal and to back this thought, Advocate Rudra Vikram Singh told us that though the Chief Minister is only an accused at this stage and can't be barred from running the government from inside the jail, technically, it will be very tough as he has to follow the rules of jail and as per the rules, he cannot be available every time for the meetings, to sign the files.

"Some specific time may be allowed to him to do all these work," he said.

Whether a Chief Minister can run a state government from jail largely depends on the legal provisions and constitutional norms of the specific country or state.

"Immunity from criminal or civil proceedings only extends to the President of India and Governors of states as per Article 361 of Constitution of India. However, a Chief Minister can only be disqualified or removed from office in case of conviction," Advocate Adeel Ahmed said.

He added: "The arrest is for furtherance of investigation. It doesn't impede his functioning as an Assembly member and Leader of the House by virtue of which he holds the post of the Chief Minister in our parliamentary democracy."

In many jurisdictions, there are no explicit provisions allowing a Chief Minister to govern from jail if they are under arrest for investigation or any other reason.

However, in some cases, there might be legal loopholes or interpretations that could potentially allow a Chief Minister to continue governing from jail temporarily, such as if they have not been convicted of any crime and are able to delegate their powers to another individual within the government structure.

That being said, Advocate Suresh Choudhary said: "Allowing a Chief Minister to continue governing from jail could raise significant ethical and practical concerns, as it could undermine the rule of law, the principle of accountability, and the public's trust in the government. Therefore, it's crucial for legal systems to have clear guidelines and mechanisms in place to address such situations, ensuring that the governance of the state remains stable and legitimate."

Moreover, the AAP leaders and supporters firmly believe and stand by it that Kejriwal has been running, is running the government and will continue to do so from inside the jail, too.

Scores of people, including the party leaders, supporters and even Congress leaders, gathered outiside the Chief Minister's residence after the ED arrested him on Thursday evening. Senior Aam Aadmi Party leader and Delhi Minister Gopal Rai also announced that AAP will surround BJP headquarters at 10 a.m. on Friday.

Tons of reactions from various political leaders have poured in and protests against his arrest are likely to intensify with time.

Now, while the AAP and the opposition parties, including the Congress, the BRS, the Samajwadi Party, the CPI-M, the DMK, and others, criticised the government over the Chief Minister's arrest, the BJP welcomed it.

The arrest has led to political uproar, with AAP supporters and leaders protesting, and opposition parties accusing the BJP of political vendetta, especially with upcoming Lok Sabha elections.

While several Congress leaders opposed Kejriwal's arrest calling it the "death of democracy" and "unconstitutional", the BJP hailed it as the victory of truth.

BJP leader Manjinder Singh Sirsa said: "Today the truth has won. Delhi's most corrupt CM Arvind Kejriwal has been arrested by the ED. I want to say to the people of the country that this marks the end of corruption in Delhi. He is being punished for his misdeeds."

Calling ED's action against Kejriwal a "process of law", BJP MP Ravi Shankar Prasad said that the arrest has been done with a view to take appropriate action against corruption.

The opposition parties accused the BJP of indulging in vendetta politics, saying that the Chief Minister's arrest shows how "jittery" the ruling BJP at the Centre is with less than a month left for the Lok Sabha polls.

"Clearly, Modi and the BJP are in panic over people's rejection in the ongoing elections," Communist Party of India (Marxist) General Secretary Sitaram Yechury said, adding that he strongly condemns Kejriwal's arrest.

"All opposition leaders who defected and joined the BJP are protected and patronised. They are the 'Satya Harishchandras'! These arrests will only cement people's desire to defeat BJP, defend democracy and Indian Constitution," the Left leader said.

Moving ahead, Kejriwal has sought an urgent hearing on his plea filed before the Supreme Court challenging High Court's order, which had refused to grant any interim protection to him from any coercive action by the ED.

The top court is very likely to hear it on Friday.