BJP complains to L-G against Delhi CM Arvind Kejriwal, Centre and AAP look at next steps

The Chief Minister’s “directions” and the BJP’s complaint to the Lt Governor have sparked a debate on the next steps and whether the Centre would make the first move before the Lok Sabha elections to seek control of the reins for Delhi’s administration.

This, according to government sources, is being deliberated upon in the Ministry of Home Affairs, the office of the Solicitor General and the Ministry of Law & Justice as each seeks legal opinion on the way forward regarding Delhi.

Sources aware of developments in this regard said Lt Governor Saxena “was yet to have been asked for any report regarding the functioning of Delhi” by the Centre.

The complaint to Saxena, filed by BJP national secretary Manjinder Singh Sirsa, questioned how the letterhead of the Delhi government was “fabricated” to create an order by Kejriwal since he was in ED custody and was not authorised to pass any directions.

“Kejriwal Ji, currently in remand, lacks the legal capacity to issue such directives without court permission, which hasn’t been granted. This order is illegal and unconstitutional; mandating the need for enquiry as to who is misusing CMO and for what personal gains,” Sirsa said.

He also demanded that an FIR regarding the alleged misuse be registered.

In his letter against Kejriwal, he also sought that the L-G issue “necessary orders/instructions” for providing an official mechanism to deal with the “ongoing serious crisis”.

Hitting back, the AAP, in a statement, said, “After illegally arresting CM Kejriwal in a fake case, BJP now doesn’t want him to serve the people of Delhi. BJP can file another 1,000 cases but that won’t stop CM Kejriwal from working for the people of Delhi.”

It alleged that the BJP was trying to “divert attention” from the “money trail” revealed after details of donations to political parties through electoral bonds were made public. “The BJP’s real intent is to divert the attention from the issue of 60 crore money trail from Sarath Reddy, kingpin of alleged liquor scam, to BJP. It was Reddy’s statement that ED relied on to arrest Kejriwal Ji,” the AAP said.

The AAP statement was referring to P Sarath Chandra Reddy, non-executive director on the Aurobindo Pharma board, who was arrested on November 10, 2022 in the excise policy case.

A scrutiny of electoral bond data made public by the Election Commission of India has revealed that Aurobindo Pharma purchased bonds worth Rs 52 crore between April 2021 and December 2023. In the first tranche, it bought Rs 22 crore worth bonds from April 2021 to October 2022; of this, the BRS redeemed bonds worth Rs 15 crore, BJP Rs 4.5 crore and TDP Rs 2.5 crore. On November 15, 2022, five days after Reddy’s arrest, the company purchased Rs 5 crore worth bonds — these were redeemed by the BJP on November 21, 2022.

On April 25, 2023, Reddy recorded a statement with ED, which the agency claimed was key evidence to name Kejriwal as a “kingpin and key conspirator” in the case. On June 1, 2023, Reddy turned an approver. After this, Aurobindo Pharma bought bonds worth Rs 25 crore on November 8, 2023, which were redeemed by the BJP on November 17, 2023.

The AAP has maintained that the Chief Minister will not step down and will continue to administer the city from custody or from jail. Former Delhi Health Minister Satyendar Jain, who was arrested in 2022 in a money laundering case, remained a minister without portfolio for over a year. He finally resigned in February last year, after the arrest of former Deputy Chief Minister Manish Sisodia.

AAP leaders, meanwhile, called Sirsa’s complaint “frivolous”.

“What are the so-called orders about? Is there a Cabinet decision that has been taken? He (CM) has just spoken about the efficient functioning of departments, wherein there are no instructions that are materially new,” a senior AAP leader said.

Sources said that both AAP and the Centre are looking at the Constitutional provisions that could force AAP to either name a new Chief Minister or allow the Centre to greenlight President’s rule.

For the AAP, which has to fight this battle both politically and in courts, imposition of President’s rule would bring a cause of action to move courts apart from possibly generate public support.

Article 239AB which grants the power to impose President’s rule in Delhi is worded in parts, similarly to the power under Article 356 which applies to the other ‘states’ in the country. The President has to be “satisfied” that “a situation has arisen in which the government (administration in the case of Delhi) of the State cannot be carried on in accordance with the provisions of this Constitution (specifically Article 239AA in Delhi’s case)”.

Since Chief Minister Kejriwal does not hold a portfolio and with the Model Code of Conduct in force, it can be argued that the Council of Ministers he heads need not meet for any urgent executive decisions, and there is no interference with day-to-day governance that warrants President’s rule, sources said.

A line of precedents flowing from the 1994 SR Bommai ruling of the Supreme Court state that the Court can strike down a proclamation of President’s rule if it is found to be based on “wholly irrelevant, irrational, discriminatory or mala fide” grounds.

Sources told The Indian Express that AAP could take this opportunity to shift the spotlight from the party, and Kejriwal personally, to a larger Centre-state constitutional crisis.

The Bommai ruling also states that a Presidential proclamation would not find merit in “situations which can be remedied or do not create an impasse, or do not disable or interfere with the governance of the State according to the Constitution…”

For the Centre, it is learnt that there is a line of thinking that Article 356 and 239AB are fundamentally different. Legal experts on the Centre’s side are learnt to be examining if a sub clause, Article 239AB (b), offers a significantly lower threshold for imposing President’s rule in Delhi. The provision states that President’s rule can be imposed when the President is satisfied that it is “necessary and expedient to do so,” for the “proper administration of National Capital Territory.”