Can an arrested person continue to be CM while in custody?

News Excerpt:

Concerns are being raised about whether Delhi's Chief Minister can effectively serve in a public office that demands a high degree of morality, given the recent decision by a metropolitan magistrate to remand him in the custody of the Enforcement Directorate.

Senthil Balaji case:

  • The Madras High Court's recent ruling in the case of S. Ramachandran v V. Senthil Balaji deliberated on the issue of whether a Minister should forfeit his right to occupy a public office that requires a  high degree of  moral standard if they are accused of involvement in a "financial scandal."
  • Mr. Senthil Balaji is a former Tamil Nadu Electricity Minister who was arrested by ED on money laundering charges in 2023.
    • He continued to be a State Minister without portfolio while he was in judicial custody.
  • The Madras High Court heard arguments on whether he “has virtually forfeited his office as a Minister on account of being arrested and detained in prison, or in other words by being in judicial custody” and whether he had “disabled himself from performing the duties and responsibilities of being a public servant.”
  • Arguments in the Madras High Court  referred to a 2014 Supreme Court Constitution Bench ruling in Manoj Narula v Union of India.
    • The SC ruling emphasized that the primary standard for holding a public office is constitutional morality, which entails adhering to the rule of law.
    • Another key aspect highlighted was good governance, suggesting that governments should prioritize the broader public interest over narrow private or political interests.
    • The third was constitutional trust, that is, to uphold the high degree of morality attached to a public office.

Practical difficulties of occupying public office while in jail:

  • A Minister sitting in prison cannot ask the Secretary of the State to get the files concerning any of the departments without breaching the oath of office.
    • The files would have to be “scanned thoroughly” by the prison authorities before it reaches his hands.
  • Should a person be paid salary from the State exchequer while occupying a public office without performing any duty attached to the office he held.

Legal and constitutional position:

  • There is no bar in law on a person continuing as chief minister or minister once he is arrested.
    • Section 8 clause 3 of the Representation of the People Act , 1951 deals with disqualification of a lawmaker and says a person convicted for an offence and sentenced to two years or above shall be disqualified from the date of such conviction.
  • The Law Commission has recommended disqualification of an MP or an MLA if charges were framed against them in any such case.
  • But these recommendations were never accepted by the government or put in place.

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