Should lawmakers face the same consequences as public servants in custody? The case of Arvind Kejriwal’s arrest.

New Delhi, March 26 (IANS) 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.
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.

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 The Supreme Court in 2022 had dismissed as withdrawn a PIL seeking a direction to the then Uddhav Thackeray-led MVA government in Maharashtra to sack jailed NCP leader Nawab Malik as a minister as well as seeking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.

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.