The arrest of Arvind Kejriwal, Chief Minister of the National Capital Territory of Delhi has raised many troubling issues. But what troubles observers the most is whether Kejriwal will continue to be CM if he does not resign on his own, and if he chooses to run his much emasculated government from behind prison bars. The question of innocence of the accused is least discussed and commented upon as after amendment in the Prevention of Money Laundering Act in 2019, the burden of proof of innocence has shifted on the accused, which was hitherto on the prosecution.

The propriety of arrest when General Elections for the 18th Lok Sabha have been announced and the much larger question of quid pro-quo of ‘Chanda and dhandha’ and their nexus with the electoral bonds is little talked about in the mainstream media. The immediate question being debated is whether it is constitutionally permissible to arrest a CM and whether an arrested person can continue to hold the office of the CM? There is no constitutional provision, nor any precedent to buttress the argument either way. So, it calls for deep reflection, a reading between the lines and a revisit to the hallowed parliamentary conventions. In 1997, Lalu Prasad, then CM Bihar, resigned once his wife Rabri Devi was sworn in as CM. But this was after the Central Bureau of Investigation investigated the fodder scam and filed a charge-sheet against him. More recently, Hemant Soren resigned as CM of Jharkhand and Champai Soren was sworn in as the Chief Minister.

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He was then arrested by the Enforcement Directorate on a charge of corruption. The Constitution has no explicit provision making it mandatory for a chief minister to resign from his post if he is arrested. But it must be borne in mind that the Chief Minister is appointed by the Governor and he holds office at the pleasure of the Governor. In the case of NCT, Delhi, the CM is appointed by the President and holds office at the pleasure of the President. After arrest on allegations of corruption and his refusal to step down or to resign, he may lose, ostensibly, the pleasure of the President. Once the President declares want of pleasure, the CM will have to tender resignation or the President may remove him from office unceremoniously.

But, if the constitutional courts grant bail after evaluating the evidence, the question of resignation would become infructuous. However, in case the CM does not get a reprieve from the Court, the question is whether he should tender his resignation or does he enjoy any immunity or exception to the equality clause. A CM, unlike the President and the Governor, does not enjoy immunity. No criminal proceedings can be instituted against the President or the Governor nor can they be arrested in a civil or criminal case during their term of office in view of the provision contained in article 361. Another option available with the President is to send a message to the Speaker of the Legislative Assembly to elect the leader of the House.

Once the Assembly chooses its new leader, the President can appoint a new CM and a new Council of Ministers on the advice of the CM. Under proviso to sub clause (4) of Article 299 AA, in case of difference of opinion between the Lieutenant Governor and the Council of Ministers, the matter shall be referred to the President and the Lieutenant-Governor is duty bound to act according to the decision of the President.

There is yet another possibility. The President, on receipt of a report from the Lieutenant-Governor or otherwise, and if satisfied that a situation has arisen in which the administration of the National Capital Territory of Delhi cannot be carried on in accordance with the provisions of Article 239 AA or of any law made in pursuance of that article, or, that for the proper administration of the National Capital Territory it is necessary and expedient so to do, the President may, by virtue of powers conferred on him by Article 239AB, suspend the operation of any provision of Article 239AA or of any law made in pursuance thereof, make such incidental or consequential provisions as may appear to him to be necessary and expedient for administering the NCT.

So, there is an implicit provision even for keeping the Legislative Assembly in suspended animation for a specified period. Articles 239 AA and 239 AB dealing with the NCT, Delhi were inserted in the Constitution by the 69th Constitutional amendment. A bare perusal of these articles makes it unambiguously clear that the position of the Chief Minister and his Council of Ministers in Delhi is quite tenuous qua the chief Ministers of full-fledged States. The Constitution vests adequate powers in the President to remove the Chief Minister of Delhi, once he loses the pleasure of the President. Besides, a chief minister is administered the oath of office and secrecy.

He swears to safeguard and uphold the Constitution and to discharge his duties conscientiously in accordance with the Constitution. Obviously, an arrested CM cannot discharge his onerous public duties conscientiously and unhindered from behind bars. Constitutional propriety and salutary parliamentary practice demand that the arrested CM resign from office graciously in the best democratic tradition, if he is denied bail. As a general rule of jurisprudence, he cannot be considered guilty unless convicted. The amendment in the Prevention of Money Laundering Act, 2002, through the Finance Act, 2019 confers unbridled powers on the Enforcement Directorate to combat the menace of money laundering.

The burden of proof of innocence has shifted on to the accused from the prosecution. Yet, any gross abuse of such a lethal and draconian measure impinging on the fundamental freedom of life and liberty of citizens, must be viewed by the constitutional courts with great circumspection, sagacity and judicial foresight, being the ultimate bulwark of equality and liberty. Prolonged imprisonment before conviction is anathema to the rule of law and republicanism.

(The writer is ex Addl Secretary, Lok Sabha and a Delhi-based advocate. The views expressed are personal)