Arvind Kejriwal arrest: Why shouldn’t a lawmaker face action similar to public servants in custody?

New Delhi : Whether Delhi Chief Minister Arvind Kejriwal – who issued two orders from the Enforcement Directorate's custody over water and sewage issues in the national capital – is legally entitled to pass such orders or should he be debarred from holding the office like a public servant?

After his arrest, the Delhi Chief Minister first issued an order to Water Minister Atishi from the custody of the ED on Sunday, another directive was issued on Tuesday to the Health Department on the smooth functioning of the AAP's flagship Mohalla Clinics.

When AAP sources claim that the Chief Minister will continue to operate the government from jail, the two orders raise a significant question of constitutional morality. Undoubtedly, running a government from inside jail is bound to face logistical hurdles and functional limitations, particularly when the Chief Minister has to follow jail norms and would need prior approval from the court every time for the meetings, to sign the files, etc.

Why not a lawmaker get sacked automatically, if he or she is in judicial custody like an IAS officer or a court staffer is arrested and put in judicial custody for over 48 hours, then they are suspended?

The Supreme Court in 2022 had dismissed as withdrawn a PIL seeking a direction to the then Uddhav Thackeray-led MVA government in Maharashtra to sack jailed NCP leader Nawab Malik as a minister as well as seeking a direction to the Delhi government to sack minister Satyendar Jain, who was arrested in connection with criminal cases.

Refusing to entertain the plea, the top court had observed that if the PIL is allowed, then it will completely submerge the principle of separation of power.

“We cannot incorporate disqualification in this manner and send somebody out," the apex court had said, making it clear that it cannot enact a provision which becomes a binding law and an elected representative is thrown out of the House.

Along the same lines, a plea seeking the removal of jailed Tamil Nadu Minister Senthil Balaji from the state Council of Ministers was dismissed by the Supreme Court in January this year. The petitioner questioned the propriety of Balaji continuing in the cabinet even after he was sent to judicial custody in a money laundering case filed by the Enforcement Directorate (ED) in connection with the alleged cash-for-jobs scam.

Though the Madras High Court did not direct his removal, it had observed that the continuance of Balaji as a Minister without Portfolio serves no purpose and does not augur well with the Principles of Constitutional ethos on goodness, good governance and purity in administration.

Chief Minister Kejriwal – who at this stage is only accused of soliciting kickbacks from liquor businessmen in exchange for favours – does not come within the purview of the 2013 Supreme Court decision in the Lily Thomas case, which had laid down that once a member of Parliament or a state legislature is convicted by a court and sentenced for two years, he or she is immediately disqualified from House.

Meanwhile, Bharatiya Janata Party (BJP) MP Manoj Tiwari has cast doubt on the authenticity of the directive allegedly sent by CM Kejriwal to Delhi Minister Atishi, questioning the timing of its issuance.

BJP National Secretary, Manjinder Singh Sirsa, lodged a complaint with Delhi Lieutenant Governor Vinay Kumar Saxena and ED against Delhi Minister Atishi and others.

Sirsa alleged that the AAP leaders presented an illegal order in the name of the Delhi Chief Minister, claiming that the Chief Minister issued it while in ED custody.

Describing this act as entirely illegal, unconstitutional, and an abuse of the office of the Delhi CM, Sirsa asserted that it amounts to a criminal conspiracy. He emphasised that Arvind Kejriwal could not have issued such an order while under ED custody.

Sirsa further claimed that he has urged the Lieutenant Governor of Delhi to investigate the unlawful takeover of the Delhi CM's office and its illegal operation. He called for action to be taken by registering a case against Atishi and other individuals involved in this matter.

The issue of authenticity deepens when there is no permission to the CM by the court to issue orders from ED’s custody and these directives may possibly be aimed at political gains.

Meanwhile, the Delhi government’s Planning Secretary has issued orders that all welfare schemes of the city government will continue to operate and said that schemes and governance are never specific to individuals, but continue in the normal course.

Kejriwal, who was arrested last week and subsequently remanded to ED custody until March 28 by a Delhi court, faces allegations of direct involvement in a conspiracy related to the formulation of excise policy favouring specific individuals.

The ED has said that Kejriwal is the "kingpin and key conspirator" in the now-scrapped excise policy in collusion with AAP ministers, leaders and other persons.

On the other hand, the Aam Aadmi Party (AAP) leader has refuted the accusations levelled against him and has accused the BJP-led Central government of "manipulating investigative agencies for political motives".