Can Kejriwal continue to be CM while in custody? Lessons from the Senthilbalaji case

Questions are being asked about whether Delhi Chief Minister Arvind Kejriwal can continue to occupy a public office that demands a high degree of morality, as the Rouse Avenue Magistrate remanded him to the custody of the Enforcement Directorate (ED) till March 28.

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Aam Aadmi Party leaders have insisted that Mr. Kejriwal will remain the Chief Minister.

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Judgments in the Supreme Court and High Courts have previously concluded that constitutional morality, good governance, and constitutional trust are the basic norms for holding a public office.

‘Virtually forfeited office’

A recent judgment by the Madras High Court in S. Ramachandran versus V. Senthilbalajireferred to arguments made in court on whether a Minister must forfeit his right to occupy a public office that demands a high degree of morality if he is accused of a “financial scandal”. Mr. Balaji, a former Tamil Nadu Electricity Minister, was arrested by the ED on money-laundering charges last year. He continued to be a State Minister without portfolio while he was in judicial custody.

The Madras High Court heard arguments on whether he “has virtually forfeited his office as a Minister on account of being arrested and detained in prison, or in other words by being in judicial custody” and whether he had “disabled himself from performing the duties and responsibilities of being a public servant”.

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The arguments referred to a 2014 Constitution Bench judgment of the Supreme Court in Manoj Narula versus Union of India, which had held that the basic norm for holding a public office was constitutional morality, that is, to avoid acting in a manner contradictory to the rule of law. The second norm was good governance. It was argued in the Madras High Court that “the government has to rise above narrow private interests or parochial political outlook and aim at doing good for the larger public interest”. The third was constitutional trust, that is, to uphold the high degree of morality attached to a public office.

Practical difficulties

The Madras High Court judgment highlighted discussions by lawyers in court about the practical difficulties of being a Minister while in custody. For one, a “Minister sitting in prison cannot ask the Secretary of the State to get the files concerning any of the departments without breaching the oath of office”, it was pointed out. The High Court recorded an argument that even if Mr. Balaji had been allowed to transact official business, the files would have to be “scanned thoroughly” by the prison authorities before it reaches his hands.

On the other hand, should a person be paid salary from the State exchequer while occupying a public office without performing any duty attached to the office he held, it was asked in the High Court.

‘High moral standards’

The High Court agreed that these were arguments based “more on the concern for public morality or constitutional morality” as Mr. Balaji did not “completely suffer a disqualification as a Member of Legislative Assembly under the Representation of People Act, 1951”.

However, the High Court had agreed that citizens expect, and “legitimately so”, that persons in power had high standards of moral conduct. It had described the role of a Chief Minister as “the repository of the people’s faith”.

“Political compulsion cannot outweigh the public morality, requirements of good/clean governance and constitutional morality,” the High Court had observed.