New Delhi, March 27 Two orders issued by Delhi Chief Minister Arvind Kejriwal from the custody of the Enforcement Directorate (ED) over water and sewage issues in the national capital have triggered a controversy about the legitimacy and legality of such a step -- which could potentially multiply legal hassles for the Delhi CM as well as the Aam Aam Party (AAP).
The probe agency is examining the veracity and source of the so-called directives issued by CM Kejriwal to his ministerial colleagues Atishi and Saurabh Bharadwaj.
The ED is very likely to raise the legality of sending such orders before the Rouse Avenue Court when Kejriwal is presented next before the court on the expiry of his existing remand timeline.
After his arrest, CM Kejriwal first issued an order to Water Minister Atishi from the custody of the ED on Sunday, while another directive was issued on Tuesday to the health department on smooth functioning of the AAP's flagship Mohalla Clinics.
The Aam Aadmi Party (AAP) has claimed that CM Kejriwal, despite being remanded to ED custody, is more concerned about the people of the national capital than himself.
However, the issuance of directives by Kejriwal in custody has triggered allegations of illegal operations and unlawful takeover of the Delhi CM's office.
The opposition BJP has questioned the authenticity of the directive allegedly sent by CM Kejriwal to Delhi minister Atishi, questioning the timing of its issuance.
BJP national secretary, Manjinder Singh Sirsa, alleged that the AAP leaders presented an illegal order in the name of the Delhi Chief Minister, claiming that the Chief Minister issued it while in ED custody.
Describing this act as entirely illegal, unconstitutional, and an abuse of the office of the Delhi CM, Sirsa lodged a complaint with Delhi Lt Governor V.K. Saxena and ED, seeking registration of a case against Atishi and other individuals for hatching a criminal conspiracy. Along the same lines, Supreme Court lawyer Vineet Jindal has urged the L-G to initiate an investigation into the "gross violation of legal procedures" by CM Kejriwal.
In his letter, Jindal said that standard legal procedures dictate that any individual, irrespective of his or her post, even a government official in remand, cannot engage in communication with the outside world without explicit court approval.
"In Kejriwal's case, only his spouse and legal counsel have been granted permission to meet him. The court has not granted any permission to Arvind Kejriwal to communicate any formal order or decisions as CM of Delhi from ED custody," he said.
On the contrary, constitutional expert and former Secretary General of Lok Sabha P.D.T. Achary said that since Kejriwal has not resigned and has not been disqualified under operation of law, he continues to remain in the constitutional position as Chief Minister. Achary said that there exists no bar under the Constitution for a person to hold the CM post or discharge his or duties while he or she is in custody, obviously subjected to rules provided under the prison manual.
However, there exist practical problems since the CM has to preside over Cabinet meetings, take decisions on files, consult the Chief Secretary and other officials, he added.
Achary highlighted that Kejriwal is not an ordinary accused but the Chief Minister of Delhi and the courts could allow him to function as a CM within the jail precincts or in custody.
"There is no constitutional infirmity in passing of directives from custody. He can issue orders in custody. He is performing his duties as a Chief Minister," he said. However, the issue of authenticity of these directives is to be dealt with independently, particularly when there was no permission to the CM by the court to issue orders from the ED's custody.
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