The sense of immunity and sense of impunity with which the Aam Aadmi Party has been functioning – from lose talking to vigilantism to street protests despite being the ruling dispensation in the Capital – received a rude knock on Friday with the Supreme Court issuing notice on two public interest petitions pleading for action against Delhi Chief Minister Arvind Kejriwal for violating the law while holding a constitutional office.
This puts a question mark over Arvind Kejriwal’s continuation in office as the Delhi Police have also filed an FIR against the Chief Minister and supporters of the Aam Aadmi Party for violating Section 144 during his two-day long dharna outside Rail Bhavan, for violence at Raisina Road during this agitation, and for inciting the mob.
The two-day sit-in was organised to demand the suspension of the police officers who refused to obey Law Minister Somnath Bharti’s orders to raid a house in Khirki Extension, following which Bharti and a group of activists nabbed some Ugandan women on charges of drugs and prostitution and forced them to undergo medical tests, which found them to be clean. Rather than apologise and retreat, the AAP went on the offensive to cover up this setback, and it fell upon the Government of India to apologise to Uganda and all African envoys, and save face with the international community.
Since assuming office in Delhi, Arvind Kejriwal and other leaders of the AAP, like Somnath Bharti and Prashant Bhushan (of referendum on Army presence in Jammu & Kashmir and police presence in Maoist areas fame) have been functioning on a presumption of exemption from the adverse consequences of their actions. This is an untenable position, for what Arvind Kejriwal did last Monday and Tuesday by defying prohibitory orders in a sensitive zone, and trying to build a crescendo that would upstage the Republic Day celebrations, was tantamount to a breakdown of the constitutional machinery in the Capital.
The free movement of traffic and people was affected in a major official zone and the functioning of several Government offices affected. Lawyers found it difficult to reach the Supreme Court. This (as also Somnath Bharti’s vigilantism) did not just make a mockery of his august office, but violated the oath of office taken by Kejriwal and his cabinet.
Upholding the contention of the petitioners that a lawmaker cannot simultaneously be a lawbreaker, a bench headed by Justice RM Lodha issued notice to the Centre through the Union Home Secretary and to the Delhi Government, and observed that “there cannot be a dual personality”. This augurs ill for Kejriwal who faced dwindling support after a night in the bitter cold and grabbed a face saver thrown by Lt Governor Najeeb Jung and withdrew his stir under a ‘compromise formula’ that saw two police officers sent on leave.
The question of law that will now hopefully be settled by the Supreme Court is whether constitutional functionaries who violate their oath of office taken under Schedule III of the Constitution cease to hold office from the day when such authority (such as a Union Minister or the Minister of a State Government or an MP, MLA, Judge of the Supreme Court or a High Court) fail to uphold the Constitution. This is an area on which the Constitution itself is silent, but the Supreme Court as the final arbiter and guardian of the Constitution has the right to adjudicate on the matter.
The time has now come for the Supreme Court to do so. There cannot be any tolerance for Ministers of a State Government, much less the Chief Minister himself, taking to the street and inciting disrespect and defiance of established law. What the Capital witnessed on Monday and Tuesday was nothing but the naked dance of anarchy, with the Chief Minister grabbing television attention with cheeky sound-bites, “I am an anarchist”, and bringing a high office into disrepute.
If a new political party is registered by the Election Commission and permitted to allot a uniform symbol to all its candidates, it must appreciate that this is an honour. If such a political party manages to have a respectable number of candidates elected and even forms the government in the national Capital, it cannot begin to dismantle the system it has been elected to serve. Those who take the oath of office under the Third Schedule of the Constitution must respect constitutional proprieties or declare themselves unfit for office and resign.
This was the crux of a petition by social activist Purushottaman Mulloli, who argued that some Central Ministers and a Chief Minister who criticised the Supreme Court ruling on Section 377 IPC had violated their oath of office. The petitioner said that the impugned persons had not merely criticised a judgment (which is permissible) but had attacked the law as upheld by the apex court (on Section 377 IPC), and this amounted to a violation of the oath of office taken under the Third Schedule of the Constitution.
On January 3, 2014, Chief Justice of India P Sathasivam and Justice Ranjan Gogoi concurred that some of the statements made by those accused by Mulloli were “not appreciable” but refused to entertain the petition, without assigning reasons. Possibly the judges felt that the relief sought – dismissal for voicing opposition to the judgment on homosexuality – was too extreme, particularly in view of the sharp sentiments roused by the verdict. But the Bench also ruled, “However, the question of law, is left open”. The conduct of Arvind Kejriwal, his cabinet, and MLAs of the Aam Aadmi Party, is an appropriate occasion to open this question of law.
Niticentral.com, 24 January 2014
