Can Arvind Kejriwal continue to be CM while in custody?
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 after being remanded in judicial custody.
Earlier judgments in the Supreme Court and High Courts have concluded that constitutional morality, good governance, and constitutional trust are the basic norms for holding a public office.
A recent judgment by the Madras High Court in S. Ramachandran versus V. Senthilbalaji referred 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. Senthilbalaji, a former Tamil Nadu Minister, was arrested by the ED on moneylaundering charges last year. He continued to be a Minister without portfolio while he was in judicial custody.
The High Court heard arguments on whether he “has virtually forfeited his office as a Minister on account of being arrested and detained in prison”.
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.
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.
The High Court agreed that these were arguments based “more on the concern for public morality or constitutional morality” as Mr. Senthilbalaji did not “completely suffer a disqualification as an MLA under the Representation of the 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.
“Political compulsion cannot outweigh the public morality, requirements of good/clean governance and constitutional morality,” the High Court had observed.