Context
Recently, the Delhi Chief Minister was arrested by the Enforcement Directorate (ED) on charges of corruption and money laundering in the formulation and execution of the Delhi government’s excise policy for 2021-22, which was later scrapped.
Judicial Custody
- It means the accused is in the custody of the Magistrate.
- On Interrogation: The police officer in charge of the case cannot interrogate the suspect. However, the court may allow the interrogations to be conducted if it opines the interrogation is necessary under the facts produced before the court.
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What Does this Arrest Highlight?
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Delhi CM Arrested Under PMLA
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Delhi CM Arrested: Arising Concerns
- Against the Law: The selective use of the ED to target the Opposition by the Ruling Government.
- As per experts, the summons given to Delhi CM was already being applied in a highly discretionary way.
- Against the Democratic Value: Arrest in the middle of a general election campaign is an unprecedented display of impunity that does not allow the Opposition to mobilize its resources for elections.
- A Politically Motivated Move: It is argued that despite numerous raids and investigations, no evidence of wrongdoing has been found and it is a politically motivated move.
- Need: The judiciary needs to play a significant role by dismantling the instruments of oppression, and the political opposition needs to come together and not treat this issue as merely a legal or administrative battle.
- It needs to mobilise within the bounds of the laws politically. Presenting a Severe Challenge: It underscores the complexities and challenges associated with combating corruption and ensuring transparency within governmental institutions.
- About Corruption:
- Refers: As per Transparency International, corruption is the abuse of entrusted power for private gain.
- India’s Position: Transparency International’s Corruption Perception Index (CPI), 2023 positioned India at 93 out of 180 countries.
| Earlier Such Cases
In February 2024, Jharkhand Mukti Morcha (JMM) leader and then CM Hemant Soren was arrested by the ED in a money-laundering case. Soren resigned as CM after his arrest, and Seraikela MLA Champai Soren replaced him.
Similarly, in 2001, Tamil Nadu CM J Jayalalithaa was arrested in a disproportionate assets case, and O Paneerselvam replaced her till she obtained bail.
This was repeated in 2014, when she was convicted and charged in the same case. Paneerselvam resigned in both 2001 and 2014 after she obtained bail and a stay of her conviction, respectively. |
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- The CPI ranks 180 countries and territories around the globe by their perceived levels of public sector corruption, scoring on a scale of 0 (highly corrupt) to 100 (very clean).
- Concerns: It erodes trust, weakens democracy, hampers economic development and further exacerbates inequality, poverty, social division and the environmental crisis.
About the S. Ramachandran versus V. Senthil Balaji Case
- Background: Balaji, a former Tamil Nadu Electricity Minister, was arrested by the ED on money-laundering charges and he continued to be a State Minister without portfolio while he was in judicial custody.
- Arguments made in the Madras High Court: Whether a minister can virtually forfeit his/her office on account of being arrested and detained in prison or judicial custody and whether he/she may disabled from performing the duties and responsibilities of being a public servant.
- Judgement by the Madras High Court: The Madras HC judgement highlighted the practical difficulties of being a Minister while in custody.
- Ministers in prison cannot ask the Secretary of State to get the files concerning any of the departments without breaching the oath of office.
- The HC asked whether a person should be paid salary from the State exchequer while occupying a public office without performing any duty attached to the office held.
- Moral Values: The citizens “legitimately” expect that persons in power have high standards of moral conduct and described the role of a CM as “the repository of the people’s faith”.
- Political compulsion cannot outweigh public morality, requirements of excellent/clean governance and constitutional morality.
- Arguments Referred to the Supreme Court: The SC in Manoj Narula versus Union of India held three basic public office norms –Constitutional Morality, Good Governance and Constitutional Trust.
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Can a Sitting CM Hold Office While in Jail?
- Arising Question on Continuing to Hold Public Office: There is a question arising can a Chief Minister serve while in Jail?
- Legal Provision: According to experts, there are no constitutional or legal provisions that prohibit a Chief Minister from serving while in Jail.
- Role of LG in Delhi: While there is no legal bar on Kejriwal continuing as CM, the LG has a critical role to play. The LG can recommend the imposition of the President’s rule.
Role of Lieutenant Governor (LG)- A Unique Scheme for Delhi:
- A Territory of India: Considering the importance of the National Capital Territory (NCT) of Delhi, it has a unique constitutional scheme wherein there is an elected government and an LG, who the central government appoints.
- Associated Constitutional Provisions:
- Article 239 AA of the Indian Constitution: It defines the role of the elected government, the LG and Parliament when it comes to Delhi. The entire power of the elected government and the CM of Delhi has its origin in this provision of the constitution. However, LG has the power to recommend suspending the operation of this provision.
- Article 239 AB of the Indian Constitution: It gives powers to an LG to recommend to the President of India to suspend the operation of Article 239 AA.
- Provisions: If the President, on receipt of a report from the LG or otherwise, is satisfied that:
- Difficult to Carry Administration: A situation has arisen in which the administration of the NCT Delhi cannot be carried on in accordance with the provisions of Article 239AA or of any law made in pursuance of that article.
- Proper Administration: For the proper administration of the NCT Delhi.
- Decision by President: The President may by order suspend the operation of any provision of Article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions.
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- According to the rules, the Chief Minister loses position:
- If he/she loses the majority in the House
- His/her party asks to step down
- He/she resigns from the position
- On Disqualification: As per section 8 of the Representation of the People Act, 1951, conviction is required for disqualification.
- Basic Norm for Holding a Public Office: The Supreme Court in Manoj Narula versus Union of India held that the fundamental norm for holding a public office was:
- Constitutional Morality: This means avoiding acting in a manner contradictory to the rule of law.
- Good Governance: The government has to rise above narrow private interests or parochial political outlook and aim at doing good for the larger public interest.
- Constitutional Trust: To uphold the high morality attached to a public office.
- Implication: The outcome of his case could have far-reaching consequences for the political landscape in the entire country.
About Delhi Excise Policy 2021-22
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Implementation of Delhi Excise Policy 2021-22
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- This Delhi Excise Policy 2021-22 is also known as the new liquor policy and was implemented in 2021.
- However, after the controversy around the policy, Delhi reverted to the old excise regime.
- Aim: To improve customer experience and stop black marketing.
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Key Features of Delhi Excise Policy 2021-22
- Process of Bidding: Under the new policy, the city was divided into 32 zones inviting firms to bid on the zones and instead of individual licences, bidding was done zone-by-zone.
- Reduction in Dry Days: For the first time, shops were allowed to offer discounts to retail customers and reduced the number of dry days to 3 from 21.
- Dry days are specific days when the sale of alcohol is not allowed.
- On Drinking Age: The new policy even proposed lowering the drinking age from 25 to 21.
- Provisions: It had a provision for home delivery of liquor.
- It also suggested the opening of shops till 3 am. However, these were not implemented.
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Controversy Surrounding the Delhi Excise Policy of 2021-22:
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- Lapse & Irregularities: Before the implementation, the policy had first to be examined by the Chief Secretary (CS) of Delhi, who found procedural lapses and irregularities in the new policy.
- No Approval: The head of the excise department was accused of making changes to the excise policy without the approval of the Lieutenant Governor.
- Financial Loss: The arbitrary and unilateral decisions taken by then Delhi Deputy CM had resulted in heavy financial losses to the exchequer (more than Rs 580 crore).
- To Influence Elections: It was alleged that kickbacks were received by the Delhi government from owners and operators of alcohol businesses for preferential treatment.
- These kickbacks were used to influence the Assembly elections held in Punjab and Goa in early 2022.
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Way Forward
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For Statutory Institutions:
- Statutory institutions like ED need to be strengthened and accountable by:
- Ensure Functional Autonomy: There is a need to provide Functional independence to ED and also the protection of ED officers from political interference.
- Provide Statutory Backing: Ensuring statutory status by means of adequate legislation will maintain the independence of the Enforcement Directorate and maintain its accountability.
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For Judiciary:
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- The judiciary needs to take their action on filling the loopholes that can be politically misused.
- Example: The Prevention of Money Laundering Act (PMLA), on which the Supreme Court had put its seal of approval (‘Kafka’s Law’, IE, July 29, 2022), that can be politically misused.
- The Court’s need to make amendments in following issues like erratic record on bail, its constant support of the Executive, etc. to maintain Indian constitutional values.
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For Government:
- The Government needs to follow and promote Constitutional and ethical values.
- Kautilya’s views on the importance of promoting ethical conduct and good governance remain relevant today, and efforts to combat corruption continue to be a key priority for governments and international organisations worldwide.
- Kautilya recommended a range of measures to promote transparency, accountability, and ethical conduct in public service.
Also Read: Legislative Decline in India: The Rising Trend of MP Suspensions
March 23, 2024
