What does law say about Kejriwal continuing as Delhi CM even after arrest?

Excise policy case: ED to produce Delhi CM Arvind Kejriwal before court

Delhi Chief Minister (CM) Arvind Kejriwal was arrested on March 21 after questioning by Enforcement Directorate (ED) officials in connection with the excise policy case.

Aam Aadmi Party (AAP) leader and Education Minister of Delhi, Atishi Merlane, claimed that Kejriwal will continue to be the CM, despite his arrest.

What does the law say about ministers continuing to hold their portfolios despite being arrested and the role of Governors/ Lieutenant Governors (LGs) in such a scenario?

While there is no legal bar on Kejriwal continuing as CM, the LG has a very important role to play. The LG can, in fact, recommend the imposition of President's rule.

Moneycontrol explains what the law says about the arrest of a serving minister and the key role constitutional functionaries play under such circumstances.

Representation of People Act, 1951

The Representation of People Act (RP Act), 1951,  deals with elections, qualification and disqualification of lawmakers. According to the Act, an MP or an MLA stands disqualified, if he/she is convicted for an offence. However, since Kejriwal has not been convicted yet, there is no bar on him continuing as CM .

In fact, two ministers in the Kejriwal government itself-- Satinder Jain and Manish Sisodia -- continued to be ministers even after their arrests and resigned only after they were denied bail.

However, the larger question here is how practical is it to administer a region while being in jail. In the past, CMs have resigned immediately after arrest to ensure that the administration is not affected.

In February 2024, Jharkhand Mukti Morcha (JMM) leader and then CM Hemant Soren was arrested by the ED in a money-laundering case. Soren resigned as CM after his arrest, and Seraikela MLA Champai Soren replaced him.

Similarly, in 2001, when Tamil Nadu CM J Jayalalithaa was arrested in a disproportionate assets case, she picked O Paneerselvam to be the CM till she obtained a bail. This repeated in 2014, when she was convicted and arrested in the same case. Paneerselvam resigned in both 2001 and 2014, after she obtained a bail and a stay of her conviction, respectively.

Role of LG

Considering the importance of the National Capital Territory (NCT) of Delhi, it has a unique constitutional scheme wherein there is an elected government and an LG, who is appointed by the central government.

Article 239 AA defines the role of the elected government, the LG and Parliament when it comes to Delhi. The entire power of the elected government and the CM of Delhi have its origin in this provision of the constitution. However, the LG has the powers to recommend the suspension of operation of this provision.

Article 239 AB gives powers to an LG to recommend to the President of India to suspend the operation of Article 239 AA. According to the provision:

If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied-

(a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of Article 239AA or of any law made in pursuance of that article; or

(b) that for the proper administration of the National Capital Territory, it is necessary or expedient so to do,

The President may by order suspend the operation of any provision of Article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions.

Thus, it is very clear that the LG could, if he feels it necessary, recommend the imposition of President’s rule, if he feels there is a breakdown of constitutional machinery in Delhi. However, the consequences of such an order would be grave for both Kejriwal and the AAP, since Lok Sabha elections are set to begin in less than a month.

SC to decide on Kejriwal's bail today

Kejriwal’s arrest comes merely hours after a division bench of the Delhi High Court refused to grant him protection from arrest. The court, after hearing the case for over two hours, asked the ED to file a response to Kejriwal’s plea and adjourned it to April 22.

Kejriwal has moved the Supreme Court by filing a writ petition and the same is expected to be mentioned for an urgent hearing on March 22, after AAP’s legal team did not get a late-night hearing from the top court.