Technically, Kejriwal can continue as CM till he is convicted in a case. However, there are other practicalities in administering a state from custody or jail. The jail manual lays down specifically that an undertrial is allowed meetings only twice a week. Conducting Cabinet meetings and maintaining secrecy of government files would be difficult if carried to the Tihar Central Jail. Undwrtrials are allowed only specific documents, including court applications and vakalatnamas.
The practical difficulties, however, can be sorted if L-G Vinai Saxena exercises powers under the Prison Act to declare any facility as ‘prison’. Former law officer of Tihar Central Jail Sunil Kumar Gupta told ET there have been at least two such precedents when earlier L-Gs exercised the power.
The first was in 2000, when PV Narsimha Rao was sentenced in the JMM bribery case. Gupta said, “the former prime minister was undergoing treatment for several health issues. When the special court convicted him, but reserved the sentencing order, Delhi L-G HKL Kapoor directed me to explore any premises which could be declared as a ‘jail’ under the Prisons Act. This was done because Mr Rao could not be lodged in Tihar as he was an SPG protectee. After recce, we found an ITBP mess opposite Batra hospital as a suitable premise to be declared as jail.” Though this was prepared, the need did not arise as the former PM secured bail after he was sentenced to three years’ imprisonment.
In the second instance, Sahara Group chief Subrata Roy was allowed to use the special court facility to negotiate sale of his luxury hotels in New York and London to raise his bail money. “In that second case in 2014, the special court complex inside Tihar was declared a ‘jail’.” Gupta pointed out that these powers can be exercised by the L-G and also director general (prisons) in special cases. However, in the present scenario, Saxena has had several run-ins with Kejriwal since the time former took over in May 2022.
ET spoke to former chief secretaries who pointed out that there may not be practical difficulties in governing from inside the prison but there were propriety issues. Delhi’s first woman chief secretary Shailaja Chandra told ET, “A chief minister is not the chairman of a company board whose job is to see that the agenda is completed. A CM is first and foremost an elected person and his effectiveness majorly depends on public interface. That interface determines how he assigns priorities and steers the organisations and officers into changing track is needed to confront fresh priorities. The process of chairing meetings, clearing proposals and such like can theoretically be done online from anywhere, but for a CM, to be effective, must be visible. That’s certainly not possible from behind bars.”Another former chief secretary, who did not wish to be identified, told ET, “A chief minister is a public representative. Even if we can argue that Mr Kejriwal does not hold a department he still needs to address public grievances. Chief minister’s post is a public post. How does one conduct it in the long run from behind bars?”
