Can Chief Ministers continue their duties from jail?

Recently Arvind Kejriwal, the Chief Minister of Delhi was arrested by the Enforcement Directorate (ED) on charges of his alleged connection with the Delhi Excise Policy scam. While he has been remanded to the ED custody till 1st of April, he has clarified that he will not resign and continue to retain the chair of the Chief Minister (CM) . Parallelly, a public interest litigation (PIL) was filed before the Delhi High Court seeking his removal as the CM on account of the arrest. The Delhi High Court rejected this plea stating that there is no legal bar to retaining the office of the CM on grounds of an arrest. In this Weekly, we’ll discuss when can a CM be removed from their position and if Kejriwal can legally continue to discharge his duties while behind the bars?

When can a Chief Minister be removed?

The CM is appointed through legislative assembly elections wherein the members of the party securing majority votes choose among themselves to become the CM. So, a CM is first and foremost a Member of the Legislative Assembly (MLA) and all grounds of disqualification for MLAs apply to the CM as well. Accordingly, a CM may be disqualified if ;

• they are found to be holding an office of profit under the Government of India or any of its branches;
• they are declared to be of unsound mind by a competent court;
• they are charge-sheeted, are bankrupt or insolvent;
• they are not citizens of India or have given up the citizenship of India voluntarily;
• they are found guilty under the Anti-defection Law.

Besides this, a CM can be removed from their chair if they lose the support of the majority of the legislative assembly or the legislative assembly passes a no-confidence motion against them.

With regards to the National Capital Territory of Delhi, the Constitution has two specific provisions;

• Article 239aa, the President appoints the CM and the CM as well the Council of Ministers will hold office during the “pleasure of the President”.
• Article 239ab, the President, upon receiving a report from the Lieutenant Governor, is satisfied that there is a “failure of constitutional machinery” in the administration of the National Capital Region, suspending the operation of the legislative assembly and consequently, removing the CM.

As is clear from the above provisions, mere arrest is not a ground for removal of a CM.

What does the law say about criminal charges against a CM?

According to the Representation of the People Act, 1951 a legislator can only be removed from their positions if they are convicted of specific offences.

Thus in the current context, while there is no constitutional bar to Kejriwal continuing his CM’s duties from jail, it remains to be seen whether the Lieutenant Governor will initiate proceedings under Article 239ab to officially debar him.