Delhi's government gap

Mr Kejriwal would do well to step down

The National Capital Territory of Delhi is in a strange position of being headed by a chief executive who has been in custody since March 21. He is likely to be there for several more weeks after the Supreme Court issued notices to the Enforcement Directorate (ED) on Arvind Kejriwal’s plea challenging his arrest in connection with alleged irregularities in the state’s liquor policy. The court has set the next hearing in this case beginning April 29. Irrespective of this judgment and the merits of the case, Mr Kejriwal’s continuance as chief minister appears untenable. A day after the bail hearing, the Aam Aadmi Party (AAP) said he would meet two ministers each week in Tihar jail, review the progress of work in their departments, and issue guidelines and directions. He is, in short, exploiting a gap in the jail manual on provisions for serving chief ministers in judicial custody. Still, even assuming the prison authorities permit it, this modus operandi is not quite the same as functioning as a chief minister, which also entails consultation through Cabinet meetings and viewing files.

Though Mr Kejriwal’s legal status allows him to continue as chief minister, the prison guidelines make it difficult for him to function as one. In fact, the jail manual is fairly constrictive in terms of a prisoner’s rights in this respect. For one, an under-trial prisoner is permitted only to write to his or her family members, close relatives and friends and counsel from prison. The only legal documents he can sign can pertain to property matters. Inmates are debarred from signing any documents pertaining to any subject with political implications. This considerably narrows the scope for any chief minister to function effectively in that role. This is why the Jharkhand Mukti Morcha (JMM) appointed a successor after Hemant Soren, then chief minister of Jharkhand, was arrested by the ED in February in connection with an alleged money-laundering case linked to land transactions. Two days later, JMM leader Champai Soren took oath as chief minister. Moreover, the jail manual says a member of the Legislative Assembly (MLA) can communicate only with the Speaker of the House from prison. Mr Kejriwal has, however, not appointed a successor. Instead he has sent messages through his wife, Sunita, who has no formal position in AAP, to party leaders, MLAs, and workers. Ms Kejriwal and Punjab Chief Minister Bhagwant Maan are among a list of six people Mr Kejriwal has said he wants to communicate with while in prison.

Given the multiple anomalies embedded in this situation, it may be possible to argue that the constitutional machinery in Delhi has broken down. The lieutenant governor (LG) should advise AAP to change the chief minister with a warning that President’s Rule could be imposed. The LG can invoke Article 239 AB of the Constitution, inserted in 1991, and recommend imposition of President’s Rule on the pretext that the administration of the National Capital Territory cannot be carried out under the laws governing the special status conferred on Delhi. By choosing to govern in an unorthodox manner, Mr Kejriwal is leaving himself and his party vulnerable to the imposition of President’s Rule just as his party should be focusing on the upcoming parliamentary elections, due in just over a month in Delhi.