Can Kejriwal continue as Chief Minister while in jail?

Markandey Katju

Markandey Katju

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Kejriwal seems to have decided to hand over the post to his wife

ARVIND KEJRIWAL, Chief Minister of Delhi, was arrested on 21st March 2024 by India’s Enforcement Directorate, in connection with a massive liquor scam, and since then he is in custody. The question is whether he can continue as the Chief Minister, and run the government of Delhi from jail?

Theoretically there is no bar. There is nothing in India’s Constitution which says that a person in police custody or in jail cannot remain as a Chief Minister (of course if convicted for 2 years or more he becomes disqualified to contest election, but Kejriwal has not yet been convicted)…

Article 239AA, the special provision for Delhi in the Constitution, says in clause (4):

‘There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions”

Clause (6) of the Article states:

”The Council of Ministers shall be collectively responsible to the Legislative Assembly”.

kejriwalIn other words, Kejriwal can remain as the Chief Minister as long as he has the support of the majority of members in the Delhi Legislative Assembly.

There is nothing in Article 239AA, or in any other provision in the Constitution, which says that a person in police custody or in jail cannot continue as the Chief Minister, and run the government from there.

Atishi Marlena, a Minister in the Delhi Government, and a close confidante of Kejriwal, has said he will remain as Chief Minister.

But that is only the theoretical aspect, and pure rhetoric. From the practical point of view it is virtually impossible for a Chief Minister to run a government from jail.

This is because the Chief Minister has to hold Cabinet meetings, meet numerous Ministers and officials to discuss various issues, give instructions, go through hundreds of files while sitting with the bureaucrats, sign documents, meet delegations of the people to discuss various problems, confer with the Lt. Governor, etc.

But a jail is not a dharmashala or town hall, with access to all and sundry. In jail the jail rules and practices strictly apply, which give limited access to outsiders, and place many restrictions on the prisoners, as per the jail manual.

The jail authorities, as per the jail manual, have granted Kejriwal the right to meet only 4 persons twice a week viz. 2 of his lawyers, and 2 persons of his choice. He has nominated his wife Sunita and his private secretary as his choice.

Sunita Kejriwal

Through his wife he has been issuing statements addressed to the public, which she reads out in press conferences. But how can a government be run in this manner?

The Lt Governor of Delhi has said that the government cannot be run from jail.

Kejriwal would have been well advised to resign as Chief Minister, and either ask the MLAs of AAP in the Delhi Legislative Assembly to elect a new leader, who would function until, and if, Kejriwal is released, or himself designate someone as his successor.

But he also knows that once ensconced as CM the successor may build up his own base, and refuse to relinquish the post even if later Kejriwal is set free.

Hence Kejriwal seems to have decided to hand over the post to his wife (who is not even a member of Delhi’s Legislative Assembly), following the precedent set by Lalu Yadav, who installed his wife Rabri Devi as CM of Bihar when he was sent to jail in the fodder scam.

However, his resignation as CM is still awaited.

A piquant situation is prevailing in Delhi, which reminds one of the Mad Hatter’s Tea Party in Alice in Wonderland. punjab


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Markandey Katju

Markandey Katju

Justice Markandey Katju is former Judge, Supreme Court of India and former Chairman, Press Council of India.

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