If Kejriwal doesn't get bail, can he run the government from inside jail?

The Supreme Court has raised an important question which has cast a shadow on the functioning of the Delhi government for the past five months: Is there any order that restrains chief minister Arvind Kejriwal from performing his duties from jail? This comes at a critical time when another bench of the apex court has concluded its hearing on his bail application related to the excise policy case and will soon deliver its verdict. If bail is granted, the question will become redundant.Constitutional experts say Kejriwal should be allowed to perform his constitutional duties since he is an undertrial and not a convict. They say the Supreme Court is required to think “out of the box” and the chief minister should be given the facility to hold meetings and sign files. But, they add, that it is for the petitioner to seek permission from the court. Several important decisions that require approval of the council of ministers or the chief minister’s intervention have continued to pile up.medium nocaption113166160Expressing concern that a file related to the remission of sentences of eligible convicts was getting delayed due to Kejriwal’s incarceration, a two-judge bench of Supreme Court on September 6 said it wanted to examine the matter and exercise its powers under Article 142 of Constitution which empowers Supreme Court to pass any order necessary for doing complete justice in any case.Some of the other important files stuck due to Kejriwal’s incarceration are the appointment of a minister instead of Raaj Kumar Anand. Anand, a former Aam Aadmi Party (AAP) member and ex-Delhi social welfare minister, joined the Bahujan Samaj Party (BSP) earlier this year. Then there is the increase in dearness allowance of daily wagers, appointment of two pro tem member to Delhi Electricity Regulatory Commission (DERC), several cases of transfer and posting and disciplinary action against Group A officials, in addition to many important schemes and policies that require cabinet approval. medium113164661Constitutional experts that TOI spoke to said while running a government from jail was not possible as it was a restricted place and only a few were allowed to meet the inmates after permission from jail authorities, special provisions can be made on the ground that performing constitutional duties for a chief minister was important.“As chief minister of Delhi, Kejriwal should be allowed to perform his duties and fulfill his responsibilities as per provisions of Constitution,” said PDT Achary, former secretary general of Lok Sabha. “The behaviour of a prisoner inside jail is subject to the jail manual. It is now up to Supreme Court to decide whether the manual is more important than the constitutional rights of the chief minister,” said Achary.He added that constitutional rights always took precedence over any other law or regulation, pointing out that it was for the first time a chief minister had been incarcerated and the Supreme Court should be thinking outside the box to deal with the implications on governance. “A guest house can be converted into a temporary jail, allowing Kejriwal to perform his duties as chief minister from there,” he suggested. medium nocaption113165845SN Sahu, another constitutional expert, agreed that the situation was “unique” and there was no provision in the Constitution that made it mandatory for the chief minister to resign and pass the baton to somebody else. “Supreme Court cannot direct the chief minister to resign but it can definitely consider if the petitioner seeks permission to discharge his constitutional duties from jail,” said Sahu.Senior advocate Vikas Singh suggested that Kejriwal should be provided a facility to carry out his duties from jail as he was an undertrial and not a convict. He added that a similar facility was provided to former Bihar chief minister Lalu Prasad Yadav and he could hold meetings inside the premises.“As long as he is in jail, I don’t see why he should not be permitted to meet his officers and sign files from inside. He should be given this facility and the trial court should not have denied it,” Singh asserted.Others prisoners who got special permission to set up offices inside jail are Unitech promoters Sanjay and Ajay Chandra who were allowed to use videoconferencing facilities from a makeshift office inside the prison in October 2017 to arrange a Rs 750-crore deposit for grant of bail. Sahara group chief Subrata Roy and two directors were also allowed to use a temporary office facility within Delhi’s Tihar Jail in August 2014 to negotiate the sale of three hotels abroad to enable them to garner 10,000 crore for release on interim bail.Former senior Tihar Jail official Sunil Gupta concurred but said it was for the court to take a call as far as the permissions were concerned. “The CM is an undertrial and in judicial custody. The jail manual won’t strictly apply to him as he is in the court's custody and not in the state's custody as of now. The court concerned can always allow his plea to sign a particular file, such as that of remission of a convict. Even the jail superintendent can permit it as it relates to the rights of the person seeking remission and delay in signing it is a violation,” Gupta said.Arrested by the Enforcement Directorate on March 21, Kejriwal has been in jail for over five months. Since Delhi Prison Rules, 2018, do not have any provision for a prisoner to have an official meeting or call for any file inside the jail, AAP had earlier referred to the special permission granted to the former Sahara Group chief to run a temporary office from inside the jail and emphasised that Kejriwal should also be allowed to run the government from Tihar.