New Delhi: Arvind Kejriwal can continue as Delhi chief minister post his arrest by the Enforcement Directorate in an excise policy-linked money laundering case with legal experts on Friday saying there is no bar under the law which prohibits an arrested person from holding the post.
Kejriwal was arrested by the ED on Thursday hours after the Delhi High Court refused to grant him protection from any coercive action by the central probe agency.
While senior advocate Gopal Sankaranarayanan said there is no bar in law on a person continuing as chief minister once arrested, senior advocate Vikas Singh said though legally there is no bar, administratively it will be next to impossible.
Kejriwal has not tender his resignation from the post of the chief minister. The Aam Aadmi Party (AAP) said he will continue as the chief minister of Delhi and if need be, he will run the government from jail.
On being asked about whether Kejriwal can continue as chief minister post his arrest, Sankaranarayanan said, “There is no bar in law on a person continuing as chief minister once arrested.”
“As per the Representation of the People Act, it is only after a conviction that an MLA can be treated as disqualified and therefore disentitled to be a minister. Although unprecedented, it is technically possible for him to function from jail,” he said.
Senior advocate Vikas Singh said, “Legally there’s no bar but administratively it will be next to impossible.”
Section 8 clause 3 of the Representation of the People Act deals with disqualification of a lawmaker and says a person convicted for an offence and sentenced to two years or above shall be disqualified from the date of such conviction.
It says the lawmaker shall continue to be disqualified for a further period of six years after his release.
Under Article 361 of the Constitution only the president and governor are granted immunity from arrest and proceedings before a court. The prime minister or chief minister of a state are not granted any immunity.
Senior advocate Arunabh Chowdhury said there is no prohibition ‘express’ or
‘implied’ under the Constitution prohibiting the appointment or continuance of a chief minister after his arrest or during his custody.
“As the leader of the single largest party, with an overwhelming majority (62 elected MLAs in the House of 70), even after his arrest, Arvind Kejriwal continues to be the leader of the party and also continues to discharge his functions as the chief minister of Delhi. The arrest by an investigating agency does not affect his election or his status as an MLA or his status as the chief minister,” he said.
Chowdhury added that since there is no prohibition or disqualification on the arrest of an elected chief minister to continue in office, there is no impediment in Kejriwal continuing to discharge his functions as CM.
“Having said that, the office of CM is the repository of constitutional trust. Therefore, principles of constitutional morality, constitutional trust and good governance would warrant that a chief minister, who has been arrested, should step down from his office keeping in view the high office he occupies, to maintain the constitutional integrity of his office. However, this decision is best left to the chief minister,” the senior lawyer said.
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