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Kejriwal was arrested by the ED on Thursday hours after the Delhi High Court refused to grant him protection from any coercive action by the central probe agency.
While senior advocate Gopal Sankaranarayanan said there is no bar in law on a person continuing as chief minister once arrested, senior advocate Vikas Singh said though legally there is no bar, administratively it will be next to impossible.
Kejriwal has not tender his resignation from the post of the chief minister. The Aam Aadmi Party (AAP) said he will continue as the chief minister of Delhi and if need be, he will run the government from jail.
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”As per the Representation of the People Act, it is only after a conviction that an MLA can be treated as disqualified and therefore disentitled to be a minister. Although unprecedented, it is technically possible for him to function from jail,” he said.
Senior advocate Vikas Singh said, ”Legally there’s no bar but administratively it will be next to impossible.”
Section 8 Clause 3 of the Representation of the People Act deals with the 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.
It says the lawmaker shall continue to be disqualified for a further period of six years after his release.
Under Article 361 of the Constitution, only the President and Governor are granted immunity from arrest and proceedings before a court. The Prime Minister and Chief Minister of a state are not granted any immunity.