Can an imprisoned Kejriwal continue as the Delhi CM?

Is Delhi headed towards a constitutional crisis?

Ever since the AAP came to power in the state, the crux of confrontations between its government and the BJP-ruled Centre has been legal and constitutional issues. With the arrest of Chief Minister Arvind Kejriwal, this contest is at its keenest now.

The AAP insists that Kejriwal will continue to rule Delhi from behind bars. “There is no legal or constitutional bar in governing from jail,” said Somnath Bharti, AAP candidate in New Delhi Lok Sabha constituency. The Delhi High Court also recently rejected a plea seeking the removal of Kejriwal as chief minister, saying, “There may be practical difficulties, but that is something else. Where is the legal bar?” The court ruled that there was no scope for judicial interference, and left it for “the other wing of the government” to examine the matter.

With each passing day, though, doubts are mounting about the longterm practicality of Kejriwal continuing as chief minister. The BJP-led Union government is weighing its options, which include the imposition of President’s rule in Delhi. Lt Governor V.K. Saxena has declared that the government could not be run from jail, while the BJP has been demanding Kejriwal’s resignation saying he cannot be “above the law”.

Former Delhi High Court judge R.S. Sodhi said governing from jail was not an option. “One cannot leave it to the whims and fancies of superintendents in jail, and [rely] on exchanging a piece of paper here and a piece of paper there,” he said. “In such a scenario, you expose matters of state importance to other inmates.”

P.D.T. Achary, former secretary-general of the Lok Sabha, cited issues of practicality. “There certainly are challenges such as presiding over confidential meetings and discussing matters with officials,” he said.

Experts say Kejriwal should resign and nominate a successor. “As a temporary measure,” said Achary, “Kejriwal can nominate one of his ministers to perform the essential function of the chief minister as a short-term arrangement.” Said Sodhi: “He can always be re-chosen once he comes out.”

A second petition has been filed in the Delhi High Court seeking removal of Kejriwal as chief minister. The challenge now for the AAP is to ensure smooth functioning of the government to deny the BJP-led Centre any opportunity to intervene. As per Article 356 of the Constitution, President’s rule can be imposed if the constitutional machinery in a state fails. “If the LG thinks that the Delhi government is no longer being constitutionally run, there is nothing wrong in imposing the President’s rule,” said Sodhi.

According to Balveer Arora, chairman, Centre for Multilevel Federalism, Institute of Social Sciences, New Delhi, the state could be headed for a constitutional crisis “if the Central government wants it”. “In a Union territory, power is already divided between the chief minister and the lieutenant governor. The rule by the Central government is already about 50 to 60 per cent in Delhi. The question is how this impending crisis would be resolved,” said Arora.

For its part, the AAP has been employing the dual strategy of playing the victim card and eliciting sympathy from voters by portraying Kejriwal as a “son” and “brother” who has been wronged. With Kejriwal’s wife, Sunita, becoming the face of this emotional appeal, there is talk that she would replace her husband as CM.

“If that happens, it would be unfortunate,” said Arora. “She is supporting her husband, but the democratic way would be to appoint one of his colleagues, rather than a family member, as chief minister.”