Is A Lawmaker Above The Law?

Delhi Chief Minister Arvind Kejriwal has become the first serving CM to be arrested. The Enforcement Directorate (ED) arrested him in connection with the Delhi liquor policy case late on Thursday evening after he evaded nine notices since October. With this development, Kejriwal has become the third senior leader from the Aam Aadmi Party (AAP) to be arrested in this case. Kejriwal and his party, AAP, have maintained that he will continue to govern even from behind bars, but what does the law say?

Well, that is something which the courts need to look into whether a Chief Minister who is facing allegations in a case can run the state government from jail. This is an unprecedented and most impractical thought even if it was a statement made in a emotionally charged situation. Jharkhand Chief Minister who is also facing charges had resigned minutes before he was arrested by the ED. Now, all these issues raise one fundamental question: Are lawmakers above the law?

The rule of law implies that no one is above the law, including the most highly placed official. A division bench of justice SC Dharamadhikari and justice Bharati Dangre of Mumbai High Court in a case in February 2018 directed police to book two corporators — BJP’s Parshuram Mhatre and Shiv Sena’s Anita Patil — for contravening provisions of the Environment (Protection) Act. “Political leaders are not above the law. They are not God, or someone who can claim a right to be in contravention of laws,” the judges said.

But, in the Delhi liquor scam we have seen how BRS MLC K Kavitha had been refraining from appearance before the ED on the grounds that as a legislator she was not available on the particular date given by the ED and hence cannot appear before them. She had even moved the apex court in the issue. Kejriwal, too, in the name of being pre-occupied with several programmes as the Chief Minister skipped appearing before the ED.

I am not going into the merits or demerits of the liquor scam or who is involved in money laundering or what quantum of amount is involved in it. The fundamental question is if a common man can get a similar privilege of skipping notices from probe agencies, whether it be ED or just the area police station.

Kejriwal and Kavitha said they are busy in their official capacities. The common man, too, who is working somewhere, is no less important as far as his profession or his official responsibilities are concerned. Will he be extended the kind of courtesy the law makers get from the law enforcing agencies? He would be bundled into a police vehicle and put behind bars and may even be subjected to third degree.

But when politicians are arrested, it is disconcerting to see politicians of all hues and shapes unite under the umbrella and castigate the central government. I am not giving any clean chit to anyone saying that there is no politics involved in this or whether it is a politically motivated move or something like that.

But what I am surprised is that following the arrest, birds of different feathers came together on Thursday across the political spectrum talking in sync about the issue of ‘erosion of supremacy’ of Parliament, that India being the biggest democracy is a lie as Rahul Gandhi said. All these leaders are trying to establish all is not well with the country. Fact is nothing is well with political parties.

Rahul Gandhi hit out against the BJP, terming PM Modi a “scared dictator” and the BJP a “devilish power who wants to create a dead democracy.” While capturing all the institutions, including the media, breaking up the parties, extorting money from companies, and freezing the accounts of the main opposition party is not enough for the ‘devilish power’, now the arrest of the elected Chief Ministers has also become a common thing. INDIA will give a befitting reply to this,” Gandhi posted on X (formerly Twitter).

But what Rahul needs to answer is what about the money received as bonds from Future Gaming, Megha Engineering, quick supply chain, Vedanta, Jindal Steel, Keventer food park and the long list of companies which the SBI has submitted to the apex court. BJP being the ruling party naturally would have got more money compared to the opposition.

If BJP getting money through bonds is extortion what about INC or any other political party receiving money through the bonds? Every political party got their share of the cake.

Kerala Chief Minister Pinarayi Vijayan criticised the arrest of the AAP leader, saying that the arrest was a part of silencing Opposition voices. “The arrest of Delhi Chief Minister Arvind Kejriwal is outright vicious and part of a callous plot to silence all opposition voices just ahead of the general elections. This exposes the cowardice of those who fear democratic process and calls for collective action to resist abuse of power,” the Kerala CM said.

Samajwadi Party supremo Akhilesh Yadav targeted the BJP, saying that the arrest will ignite a revolution throughout the country. “BJP knows that it will not come to power again, due to this fear, it wants to remove the opposition leaders from the public by any means at the time of elections,” he opined.

Calling the BJP government “Fascist”, Tamil Nadu Chief Minister M K Stalin said that no BJP leader is undergoing scrutiny or facing arrests, and that it is an abuse of power in a democracy. The fascist BJP government sank to despicable depths.

Fine, but what happened to these voices when some ministers of Tamil Nadu government made weird comments on Sanatan Dharma and even went to the extent of saying that India cannot be called a nation. Why none of them did not have the spine to condemn such statements? If we look at the politics of 75 years of Independent India, fascism has been there throughout, and Congress party cannot escape the blame. What was Emergency? Why was it imposed by Indira Gandhi when a court gave verdict against her?

What is more shocking was the claim of AAP leaders that a Chief Minister can run the government from wherever he is.

First and foremost, the issue here which one needs to understand is as per the constitution, President of India and Governors enjoy immunity from civil and criminal proceedings during their term. However, this protection does not extend to Prime Ministers and Chief Ministers.

Even P V Narasimha Rao as Prime Minister appeared before Liberehan Commission in the demolition case of Babri Masjid. So what prevents CMs and legislators from appearing before the probe agencies and prove that there are innocent? That would enhance their prestige among the people and they would emerge as real leaders. But they feel that if they are arrested, they will get sympathy and they can cash in on it during polls.

In Kejriwal’s case, he has not been convicted yet, so he can technically continue in office. But running government from jail is something which is most impractical thought. Once a person is in jail even if he is a remand prisoner, he has to follow the jail manual and the jail manual does not permit holding of meetings, using mobile phones, having access to official and confidential documents etc., which is a routine part of the CM’s activities. As CM, he has to consult the Chief Secretary, officials of various departments, police and his cabinet ministers. He will have to hold cabinet meetings at regular intervals.

Some may argue that the CM’s house can be converted into a jail and he can be kept under house arrest. Well, even then his house has to be treated as jail and jail manual would be applicable there as well. The steadfastness of AAP leaders raises legal and logistical questions. It also raises another question? Is there lack of second line leadership in the party? Cannot someone be the CM till Kejriwal’s case is disposed of by the courts? Leaders like Rahul should answer why the second rung leadership is not allowed to grow.