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Delhi CM Arrested by ED

  • Delhi CM Arvind Kejriwal sent to ED custody for excise policy case.
  • Kejriwal first serving CM arrested nationwide.
  • CBI and ED probe separate cases on excise policy and alleged money laundering.

Arrest of Sitting Chief Minister

No Immunity to CM:

  • Article 361 of the Indian Constitution provides immunity to the President of India and governors but not to Prime Ministers and Chief Ministers.
  • The Administrator or Lt. Governor (LG) of a Union Territory also lacks immunity under Article 361.

Arrest of MLA/CM During Legislative Assembly Session

Exemption from Civil Process:

  • Section 135A of the Criminal Procedure Code (CPC) exempts members of legislative bodies from arrest and detention under civil processes during various legislative proceedings.
  • This exemption applies during the continuance of meetings of Parliament, Legislative Assembly (LA)/Councils, and committees, as well as joint sittings, conferences, or committees.
  • It also extends 40 days before and after such meetings, sittings, or conferences.

No Immunity in Criminal Cases:

  • MPs, MLAs, or MLCs do not enjoy immunity from arrest in criminal cases, whether during legislative sessions or otherwise.

Can a Chief Minister Run for Office from Behind Bars?

Legal Framework:

  • Representation of the People Act, 1951: Section 8 stipulates that a Chief Minister can only be disqualified or removed from office upon conviction in any case.
  • In the case of Arvind Kejriwal, he remains eligible as he hasn’t been convicted yet.
  • A Chief Minister can lose office through loss of majority support, successful No-Confidence Motion, or resignation.

Basic Norms for Holding Public Office:

  • Manoj Narula versus Union of India Case, 2014: SC emphasized constitutional morality, good governance, and trust as basic norms for holding public office.
  • Public officials, especially CMs, are expected to maintain high moral standards to uphold public faith.

Practical Difficulties of Functioning from Jail:

  • Restrictions: Accessing official documents and communicating with officials may be limited.
  • Effectiveness: Questions arise regarding their ability to fulfill duties while in custody.
  • S. Ramachandran versus V. Senthil Balaji Case, 2023: HC raised concerns about legitimacy and effectiveness of leadership from jail.
  • Salary Concerns: HC questioned whether receiving a salary while not performing duties is justified.

President’s Rule in Delhi

Conditions for Suspension of Article 239AA:

  • Article 239AA: Governs Delhi’s administration.
  • Lieutenant Governor’s Authority: Can report to the President to suspend Article 239AA if:
    • Administration cannot proceed as per Article 239AA.
    • Necessary for proper administration of the National Capital Territory.

Reasons for President’s Rule:

  • Failure of Constitutional Machinery: If the LG perceives a breakdown in governance, citing failure of constitutional machinery under Article 239AB.
  • Direct Control: President’s rule places Delhi under direct control of the Union government.

Impact:

  • Union Government’s Authority: Assumes governance responsibilities until normalcy is restored.
  • Temporary Measure: Implemented until a democratically elected government is reinstated.
  • Suspension of Local Governance: Local elected bodies’ functions may be suspended during this period.
Enforcement Directorate (ED)
Investigates money laundering and foreign exchange law violations.
Established in 1956 as an ‘Enforcement Unit’ under the Department of Economic Affairs.
Renamed as ‘Enforcement Directorate’ in 1957.
Administrative Structure:
Headquarters: Based in New Delhi, headed by the Director of Enforcement.
Regional Offices: Located in Mumbai, Chennai, Chandigarh, Kolkata, and Delhi.
Recruitment: Officers recruited directly and from other investigation agencies. Includes IRS, IPS, and IAS officers (e.g., income tax, excise, customs, and police).
Tenure: Two years initially, extendable up to five years with three annual extensions. Amendments to DSPE Act, 1946 (for ED) and CVC Act, 2003 (for CV Commissioners) allow a one-year extension after completing two years.
Functions of the Enforcement Directorate (ED)
1. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA): Empowered to sponsor cases of preventive detention for contraventions of FEMA.
2. Foreign Exchange Management Act, 1999 (FEMA): Responsible for investigating suspected contraventions of foreign exchange laws and regulations.Adjudicates and penalizes those found guilty of contraventions.
3. Prevention of Money Laundering Act, 2002 (PMLA): Conducts investigations to trace proceeds of crime.Provisionally attaches property.Ensures prosecution of offenders.Facilitates confiscation of property by the Special court.
4. Fugitive Economic Offenders Act, 2018 (FEOA): Mandated to attach properties of fugitive economic offenders who have escaped from India, warranting arrest.
Provides for the confiscation of their properties.  

Consider the following statements regarding the immunity of Chief Ministers and Governors:
1. Article 361 of the Indian Constitution provides immunity to Chief Ministers from civil and criminal proceedings.
2. The Administrator or Lt. Governor (LG) of a Union Territory is immune under Article 361.
Which of the statements above is/are correct?

[A] Only Statement 1
[B] Only Statement 2
[C] Both Statement 1 and Statement 2
[D] Neither Statement 1 nor Statement 2