Delhi chief minister Arvind Kejriwal has been summoned for questioning by the Enforcement Directorate on November 2 in connection with a liquor scam case. At this time, it is not clear whether the CM will appear before the central agency on Thursday or seek more time. It must be noted that the top brass of the Aam Aadmi Party and Kejriwal’s trusted lieutenants are currently in jail, including those who shouldered the responsibility of the government and the party.
The first to be arrested was AAP minister Satyendar Jain, followed by Vijay Nair who handled the party’s communication strategy, then former deputy chief minister Manish Sisodia, and then Rajya Sabha member Sanjay Singh. And there is a buzz about more arrests, including that of chief minister Arvind Kejriwal. In fact, speaking to the press on Tuesday, Atishi, currently the number 2 in the Delhi cabinet, said that Kejriwal is being summoned not to answer questions but to be arrested. However, he has not been named as an accused in any of the cases either by the ED or by the Central Bureau of Investigation.
So, what are the options for the chief minister who is now under siege? Experts say, constitutionally and legally, there is no bar on Kejriwal continuing as chief minister, if indeed AAP’s worst fears of his arrest come true.
One option on the table is that of Kejriwal continuing as chief minister, in case he is arrested, even though it might create an unprecedented situation in Indian politics and will be questioned on grounds of morality. “From the legal point of view, this applies to all chief ministers, any chief minister, whether of a state or a union territory, can continue to be chief minister while being investigated,” said constitutional expert PDT Achary. Asked specifically, whether the Delhi CM can continue to hold office if he is behind bars, Achary said, “Yes. However, he has to assign another minister the responsibilities of organising cabinet meetings, etc.” According to the law, Achary said, unless there is a conviction of 2 years or more for any crime by any court, no elected member stands to lose his or her membership.
When Satyendar Jain was arrested in May 2022 under sections of the Prevention of Money Laundering Act, he continued as minister without a portfolio until February 28, 2023, or nearly nine months. When repeatedly questioned about the Bharatiya Janata Party’s demand for Jain’s resignation, Kejriwal had strongly defended the jailed minister. The mood within AAP was that one after another, its legislators would be targeted, and if the chief minister started sacking them, there would be no one willing to take responsibility. Jain’s portfolios were given to Sisodia. However, when Sisodia was arrested on February 26, and the Supreme Court denied him bail two days later on February 28, Kejriwal accepted the resignations of both Jain and Sisodia the same day and inducted Saurabh Bhardwaj and Atishi into the cabinet. Sisodia was handling 18 portfolios and his absence from office while continuing as deputy chief minister was untenable as it would have adversely affected the work of the government. The Delhi cabinet can have only seven members, including the chief minister, and with two in jail, the number would have come down to just five.
The second option is that Kejriwal vacates office and appoints someone else to discharge his duties. AAP has been apprehensive about Kejriwal’s arrest since April this year when he was summoned for questioning by the CBI. Speaking to reporters after a marathon 9 hours of examination, Kejriwal said that he was asked 56 questions in all and reiterated that the entire excise policy case is false. According to top sources, AAP has a firm legal and political plan in place in the eventuality of the arrest of its convener and Delhi chief minister Kejriwal. However, it is extremely guarded, not willing to spill out the strategy. On October 16, speaking to reporters along with AAP MLA Amanatullah Khan, a day after the latter was raided by the ED, Kejriwal said, “There have been 170 cases filed against us but judgements in 140 of these cases have been in our favour.” He added that raids and arrests of leaders and ministers are part of the BJP-led central government’s strategy to finish AAP.
Saurabh Bhardwaj has said that if in this way all AAP leaders are put behind bars, then the government will run from jail (sarkar jail se chalegi).
There is no precedent of a serving chief minister being arrested. It must be remembered that Lalu Prasad Yadav resigned as CM when an arrest warrant was issued against him in the fodder scam. His wife Rabri Devi was elected as leader of the Rashtriya Janata Dal’s legislative party in his presence and was sworn in as the chief minister of Bihar before Lalu surrendered the next morning.
In case Kejriwal does decide to vacate his position if arrested, who will step into his shoes? This will be a tough decision for him and is anybody’s guess.
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