Constitutional Chaos: NCT of Delhi in Crisis?

Author – Arpit Garg (IMS Unison University, Dehradun)

Co-Author – Aashita Semwal (IMS Unison University, Dehradun)

When the Constituent Assembly discussed the need to incorporate the Article 356 in the Constitution, strong opposition to it was put forth by some members and it was argued that if power was given to the Centre to intervene, there was a possibility of, “being abused or used for political purposes.” But it was hoped by Dr. B.R. Ambedkar that “the occasion for invoking these powers under the relevant Article would be very rare and that they would be remain a dead letter,” but this Article has been invoked many times during the last seven decades. As a result, it is now a subject of controversy and with every invocation of Article 356, the controversy scales new heights.

Arvind Kejriwal, the Chief Minister of Delhi was arrested by the Enforcement Directorate (ED) on 21 March 2024 on the charges of his alleged connection with the Delhi Excise Policy scam. While he was remanded to the ED custody till 1st of April, he has clarified that he will not resign and continue to retain the chair of the Chief Minister (CM). Parallelly, a public interest litigation (PIL) was filed before the Delhi High Court seeking his removal as the CM on account of the arrest. The High Court of Delhi, has three times rejected the PIL filed for the removal of Arvind Kejriwal as the CM of Delhi, Justice Prasad orally asked and said the plea seems to have been filed for “publicity”.

The Chief Minister of a state is determined through legislative assembly elections wherein the members of the party securing majority votes choose among themselves to become the CM. A Chief Minister is therefore, first and foremost a Member of the Legislative Assembly (MLA) and so every ground for the disqualification of MLAs apply to the CM as well. Accordingly, a CM may be debarred if;

• found to be holding an office of profit under the Government of India;
• declared to be of unsound mind by a competent court;
• charge-sheeted, are bankrupt or insolvent;
• no longer the citizens of India or have voluntarily given up the citizenship of India;
• found guilty under the Anti-defection Law.

Apart from this, a Chief Minister can be removed from their chair if they lose the support of the majority of the legislative assembly or the legislative assembly passes a no-confidence motion against them.

• Article 239aa, the President appoints the CM and the CM as well the Council of Ministers will hold office during the “pleasure of the President”.
• Article 239ab, the President, upon receiving a report from the Lieutenant Governor, is satisfied that there is a “failure of constitutional machinery” in the administration of the National Capital Region, suspending the operation of the legislative assembly and consequently, removing the CM.

According to the Representation of the People Act, 1951 a legislator can only be removed from their positions if they are convicted of specific offences. Thus in the current context, while there is no constitutional bar to Kejriwal continuing his CM’s duties from jail, it remains to be seen whether the Lieutenant Governor will initiate proceedings under Article 239ab to officially debar him. If the emphasis is on the letter of constitutional provision the answer will tend to be yes. If constitutional convention and practicality are the emphasis the answer is likely no.

Hemant Soren had resigned and even Lalu Prasad Yadav resigned from the post of chief minister before being arrested but this is the first incident where the sitting incumbent Chief Minister has been arrested and he denied to resign from the post of Chief Minister.

Hawala Scandal –

The Hawala scandal, also known as the Jain Hawala case, was a significant political and financial scandal in India that came to light in 1991. It involved payments allegedly sent by politicians (black money) through hawala brokers, namely the Jain brothers. The scandal was worth US$18 million and implicated some of the country’s leading politicians, including L.K. Advani, who resigned due to the scandal.

The scandal was discovered during an investigation into the funding of militants in Kashmir. A person named Ashfak Hussain Lone, allegedly an official of the terrorist organization Hizbul Mujahideen, was arrested in Delhi. During his interrogation, the police learned that his organization was funded through hawala, using Surendra Kumar Jain and his family as a conduit. Based on this information, the Central Bureau of Investigation (CBI) conducted raids on the premises of Surrender Kumar Jain, his brothers, relatives, and businesses. During the raids, the CBI seized Indian and foreign currency, two diaries, and two notebooks at the premises. These diaries contained detailed accounts of vast payments made to people, identified only by initials, who were high-ranking politicians and bureaucrats.

However, the investigation stopped at the CBI, and neither the Jains nor the contents of their diaries were investigated. Officers of the CBI involved in the investigation were transferred to other places by orders from ruling politicians. The case continued to make headlines in the news media, as it was pursued by a few journalists.

On 4 October 1993, writ petitions were filed in the Supreme court of India, on public interest under Article 32 of the Indian Constitution. They contained allegations that Government agencies like the CBI and the revenue authorities had failed to perform their duties, and that the apprehension of terrorists had led to the discovery of financial support to them by clandestine and illegal means. The Supreme Court proceedings did not relate to the hawala case per se but rather to the suspicious transfer of the CBI. In its judgment, delivered on 18 December 1997, the court, through Judges S.P. Bharucha and S.C. Sen, gave a ruling consisting of a 26 points list of pronouncements, the most important of which made it impossible for politicians in the government to remove the Director of the CBI for 2 years, thus ensuring that the CBI and its officers would have freedom to carry out their work without political interference.

The Hawala scandal highlighted the issue of black money in Indian politics and the use of hawala transactions to bypass formal banking channels for illicit activities. It also led to investigations and the Supreme Court’s intervention, leading to the establishment of guidelines to ensure the independence of the CBI and prevent political interference in its investigations. The scandal also led to the resignation of some of the country’s leading politicians and highlighted the need for transparency and accountability in Indian politics.

In the case when a no confidence motion was initiated against the P.V. Narsimha Rao government in 1993, the name of the Hon’ble Prime Minister P.V. Narsimha Rao was also hauled in the bribery case concerning the no-confidence motion JMM cash for vote case. The aforementioned Prime Minister was summoned to the court from time to time,  but he was never arrested, therefore it was not a matter of failure of constitutional machinery.

The SR Bommai Case :

The turnaround in the view of the Supreme Court came about in S.R. Bommai v. Union of India. It held that the Presidential Proclamation is clearly justiciable. Following the ruling of the Pakistan Supreme Court in the case of Nawaz Sharif wherein the exercise of the Presidential power was held unconstitutional and open to judicial correction, the Indian Supreme Court laid down in Bommai case that the Presidential  Proclamation will have to be scrutinised by the judiciary. The Court also took note of the Sarkaria Commission’s recommendations with regard to invoking of Article 356. Some of the situations which will not warrant resort to Article 356 on the ground of failure of constitutional machinery identified in the Sarkaria Commission Report and the Bommai case are as under:

(1) A situation of maladministration in a State, where a duly constituted Ministry enjoys support of the Assembly.

(2) Where a Ministry resigns or is dismissed on losing majority support and the Governor recommends imposition of President’s Rule without exploring the possibility of installing an alternative government.

(3) Where a Ministry has not been defeated on the floor of the House, the Governor on his subjective assessment recommends supersession and imposition of President’s Rule.

(4) Where in general elections to the Lok Sabha the ruling party in the State has suffered a massive defeat.

(5) Where there is a situation of internal disturbance but all possible measures to contain the situation by the Union in discharge of its duty under Article 355 have not been exhausted.

(6) Where no prior warning or opportunity is given to the State Government to correct itself in cases where directives were issued under Articles 256, 257, etc.

(7) Where the power is used to sort out intra-party problems of the ruling party.

(8) Where there are only allegations of corruption against the Ministry.

(9) Where there are only stringent financial exigencies of the State.

Exercise of the power for a purpose extraneous or irrelevant to those which are permitted by the Constitution would be vitiated by legal mala fide.

Though each of the above situations by itself may not warrant the imposition of President’s Rule, a simultaneous presence of two or more of the conditions or a cumulative assessment of the situation by the President may definitely warrant interference under Article 356. Thus, maladministration by itself may not be a single cause. But serious charges of corruption, arbitrary exercise of power in a manner not permitted by the Constitution and various other facts taken together will certainly warrant imposition of President’s Rule.

According to Legal Luminaries-

Senior advocate Rakesh Dwivedi, taking a different view, said “Kejriwal must respect constitutional convention” “A CM facing arrest or after being arrested should nominate someone else from his party for the post as was done in case of Lalu Yadav and recently by Hemant Soren” he pointed out.

“In the eyes of the law, Kejriwal is CM of Delhi with a brute majority. How will you stop him from discharging the responsibilities  of a duly elected CM? If the court decides to send him to judicial custody, it will have to look at this aspect as well,” P. D. Thankappan Achary added.

“In the eyes of the law, Kejriwal is CM of Delhi with a brute majority. How will you stop him from discharging the responsibilities of a duly elected CM? If the court decides to send him to judicial custody, it will have to look at this aspect as well,” Achary added.

Senior advocate Maninder Singh, taking a different line, said since it was impossible for a CM to run the govt from jail and since a constitutional breakdown can’t be allowed to happen, president’s rule is an option.

Conclusion-

In the order of precedents, the Chief Ministers of the respective states came under the rank 8 but in this situation when the Chief Minister of Delhi in prison, wherein the Jail superintendent and the Jailor of the jail is the competent authority who administers the jail. In the present scenario, the Chief Minister of Delhi is behind the bars and the Jail superintendent and Jailer are directing orders to the Chief Minister which is a clear violation of the order of precedence. It also amounts to a failure of the constitutional machinery. The detainment of the Chief Minister is hindering the duties of his office which he has been bestowed upon by the Constitution itself, this has also obstructed the development of Delhi and the needs of the people of Delhi are not being met so the Judiciary must look into this loop hole and make an interpretation in this matter whether it’s a constitutional machinery failure or not.