No bar but practically impossible for Arvind Kejriwal to continue as CM from jail: Legal experts

New Delhi: There is no bar either in the Constitution or in law which prohibits jailed Delhi Chief Minister Arvind Kejriwal from continuing in office but running the government from a prison is "practically impossible", the legal experts said on Monday.

Aam Aadmi Party (AAP) national convenor Kejriwal on Monday was remanded to judicial custody till April 15.

The views of the legal experts are in line with the Delhi High Court’s observations on March 28 when it had dismissed a PIL seeking removal of Kejriwal from the post of chief minister following his arrest by the Enforcement Directorate (ED).

The high court had said there was no legal provision prohibiting the AAP leader from running the government post-arrest to warrant any judicial interference and the executive authorities would act in case there is a constitutional failure.

Asked whether Kejriwal can continue as the chief minister post his judicial custody, senior advocate Ajit Sinha said, "There is no specific provision in the Constitution barring a person continuing as the chief minister once incarcerated, but it is practically impossible."

Senior advocate and former SCBA president Vikas Singh echoed the same views saying there are many things which are not written in the Constitution and it will be difficult to run the government from prison. The chief minister will have to seek permission from the court and the authorities for every action which he proposes to take as the head of the administration.

In any case, Kejriwal cannot summon a cabinet meeting in jail, Sinha said, adding that running the government from the prison will be "practically impossible".

Sinha also gave the example of RJD president Lalu Prasad saying that initially he was of the view that the government can be run from the jail. However, later he made his spouse Rabri Devi his successor.

He said it would be impossible to run the day-to-day administration such as making cabinet decisions, signing the official papers and transfer orders as these tasks cannot be completed in the secluded and protected area of the jail.

"Cabinet meetings cannot be summoned in jail and the state would be rendered rudderless in the absence of the CM presiding over these meetings. For every such meeting or administrative task, Kejriwal will have to seek the court’s permission, which is practically impossible," Sinha said.

Sinha further said the makers of the Constitution did not envision a scenario of a sitting CM landing in jail and so there was no provision dealing with it.

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.

Asked whether Kejriwal can continue as chief minister after 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.

Kejriwal was arrested by the ED in an excise policy-linked money laundering case on March 21, hours after the Delhi High Court refused to grant him protection from any coercive action by the central probe agency.

On Monday, a court here sent him to judicial custody till April 15. Kejriwal has not tendered his resignation from the post of the chief minister. The AAP said Kejriwal will continue as the chief minister of Delhi, irrespective of the duration of his term in jail.