Arvind Kejriwal has not given up his constitutional post and has already issued two orders from jail.

Nearly two weeks since his arrest, Delhi Chief Minister Arvind Kejriwal continues to run his government from the Tihar jail in the national capital, becoming the first sitting chief minister to do so. He has refused to resign from the post and assured the people of Delhi that “that even though your CM is in jail, he is only thinking about you”.

The Enforcement Directorate had arrested the Delhi CM on March 21 in connection with the liquor excise policy case. Several top AAP leaders have been arrested in the case, including former Delhi Deputy Chief Minister Manish Sisodia, who was arrested in February 2023, and former Health Minister Satyendar Jain, who was arrested in June 2022.

But unlike Sisodia and Jain, Kejriwal has not given up his constitutional post and has already issued two orders from jail.

In his first order on March 24, Kejriwal tasked Delhi minister Atishi with resolving water scarcity concerns in the national capital.

His subsequent order to Saurabh Bharadwaj, responsible for Health portfolio, addressed the shortage of medicines and diagnostic tests at Mohalla Clinics across Delhi.

As a Delhi court extended the Aam Aadmi Party (AAP) chief’s custody till April 15, legal experts confirmed that while there is no bar either in the Constitution or in law which prohibits a chief minister from running a government while in jail, it is “practically impossible” for Kejriwal to continue working from behind bars.

Senior advocate Gopal Sankaranarayanan said, “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.

“The constitutional position is that there is no bar as continuing as chief minister even after arrest because arrest does not change status as chief minister,” former Lok Sabha secretary general PDT Achary told The Wire.

“But the practical problem arises [in such a situation] because how can he function as chief minister from jail? A chief minister has to preside over cabinet meetings, take decisions on files and then, he has to consult the officials including the chief secretary and other secretaries before taking decisions-and all this requires the presence of these officials. How will you conduct cabinet meetings which is by nature confidential? How will he maintain confidentiality in jail?” PDT Achary added.

Senior advocate and former SCBA president Vikas Singh clarified to reporters that Kejriwal will have to seek permission from the court for every action he proposes. The Delhi CM will also not be able to call any cabinet meetings.

The makers of the Constitution did not envision a scenario wherein a sitting CM is in prison, advocate Ajit Sinha said and cited the example of former Bihar Chief Minister and RJD chief Lalu Prasad Yadav. Initially, it was expected that Bihar government could be run from jail, but Yadav made his wife Rabri Devi his successor.

Achary said that while the jail authorities could provide office facilities to Kejriwal, but it will have to be decided by the court.

The opinions of legal experts align with the observation of the Delhi High Court, which said that no provisions can bar Kejriwal from running a government while in custody. The high court further said that executive authorities would act in case there is a constitutional failure.

The Delhi high court bench while rejecting a PIL seeking the removal of Arvind Kejriwal as the chief minister said, “If there is a constitutional failure, President or Governor will act on it…Is there any scope for judicial interference in this? The LG is examining the issue. It will go to the President. It belongs to a different wing. There is no scope for judicial interference in this.”

Former Supreme Court judge Ajay Rastogi said to The Wire that Kejriwal must step down in the interest of “public morality.”

“There is no line in the constitution that restricts him but the fact is that as a government servant, if he is in custody for over 48 hours, he is deemed suspended. And Kejriwal being a public servant, representing the public if you are in custody for such a long time now is it not befitting for you to leave and get someone else to come? Public morality says one must quit so that the clean image of the institution which is expected by the people at large can continue,” he said.

Under Rule 10 (2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 a government servant shall be deemed to have been placed under suspension by an order of appointing authority with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours.

Delhi Lieutenant-Governor VK Saxena last week said that the government “won’t be run from jail”, fuelling speculation about the possibility of the imposition of President’s rule in Delhi.

Responding to Saxena’s statement, Kejriwal told reporters outside a Delhi court, “It is a political conspiracy and the people will give a befitting reply.”

If President’s rule is imposed in Delhi it will be clear that it is “political vendetta”, AAP leader Atishi lamented.

“The law of the land is very clear – President’s Rule can only be imposed when there is no other choice. The issue of Article 356 has gone to the Supreme Court multiple times and SC has repeatedly ruled that President’s Rule can only be imposed when there is no other choice left for governance of the state,” she said in an interview.

However, Delhi as the national capital enjoys special status under Article 239AA which provides for a democratically elected legislature with all the powers of a state legislature except the excluded subjects (land, police and public order) and a representative government responsible to the legislature with all the executive powers to the exclusion of the executive powers of the Union.

According to Achary, Article 239AA is different from Article 356 in describing how the President may step in.

“Article 239AA is slightly different from Article 356 as there are two alternative grounds under 239AB where the President steps where there is failure of constitutional machinery and there is an additional ground given in that for the proper administration of the union territory. Now that is a condition which is not available in Article 356 which is imposed on states. Since its a union territory under the overall control of the President they have this precondition under 239AB. It is actually for the President to take a view on it. But any such decision of the President will be reviewed by the court,” he said.

Under Article 239AB, the President upon receipt of a report from the LG can suspend the operation of any provision of article 239AA “for the proper administration of the National Capital Territory it is necessary or expedient so to do.”

The Delhi BJP unit, which has been demanding Kejriwal’s resignation, filed a complaint against the “illegal” orders issued by Kejriwal from jail. Delhi BJP chief Virendra Sachdeva, who filed the complaint, sought an investigation into the orders.

Meanwhile, the AAP plans to petition the court to designate a section of the Tihar Central Jail complex as “prison” enabling the Delhi CM to access essential facilities like video conferencing for governing the capital. They will cite past instances where undertrials were permitted to conduct official duties from within Tihar jail as precedence for their request.

“The most high-profile precedent is that of Sahara group”s Subrata Roy who got permission from court to use office facility inside Tihar jail to negotiate sale of his luxury hotels in New York and London to raise his bail money. In 2014, the special court complex inside Tihar was declared “jail” by director-general (prisons),” a senior AAP leader told Economic Times.

Unitech promoters Sanjay Chandra and Ajay Chandra were also found to be operating an office from Tihar jail and “if those who have swindled money of the people can run their offices, the court should not have a problem to grant the request of an elected chief minister for similar facilities,” he added.

Under the Prisons Act, the director-general (prisons) or the lieutenant-governor have the powers to declare any facility as a “prison” for security reasons or for ease of operation.

As per Rule 1349 of the Jail Manual, only 10 facilities are extended to an undertrial prisoner – legal defence, interviews with lawyers or family members (for legal purposes), signing vakalatnamas, delegation of power of attorney, execution of will, essential religious necessities as per rules, applications to courts for legal aid at government cost as per provisions of law, other applications to courts, application to legal aid societies for free legal aid and such other facilities as are sanctioned by the government. These do not include video conferencing facilities or signatures on files.