The Delhi high court on Monday said the decision of Arvind Kejriwal to continue as the chief minister after his arrest is "personal" but it does not mean that the fundamental rights of school-going children would be trampled upon.
The high court also said that Kejriwal's absence cannot allow students to go through the first term without free textbooks, writing material and uniform in schools run by the Municipal Corporation of Delhi.
The high court observed that a chief minister's post in any state, leave alone a buzzing capital city like Delhi, is not a ceremonial post and that it is a post where the office holder has to be virtually available 24x7 to deal with any crisis or natural disaster like flooding, fire and disease.
"National interest and public interest demands that no person who holds this post is incommunicado or absent for a long stretch of time or for an uncertain period of time. To say that no important decision can be taken during a model code of conduct is a misnomer," a bench of Acting Chief Justice Manmohan and Justice Manmeet PS Arora said.
Kejriwal, who is in judicial custody till May 7, was arrested on March 21 in connection with the excise policy-linked money laundering case.
The court was dealing with a PIL by NGO Social Jurist, represented by advocate Ashok Agarwal, highlighting the non-supply of educational material and other statutory benefits to eight 8 lakh students in the MCD schools even after the commencement of the new academic session.
The MCD commissioner had earlier stated that the non-distribution of the facilities was due to the non-formation of a standing committee which has the power to reward contracts worth more than Rs 5 crore.
The high court said as the students of MCD schools are entitled for free textbooks, writing material and uniform in accordance with their constitutional and statutory rights, and the schools are soon going to close for summer vacations, the MCD Commissioner is directed to incur the expenditure required for fulfilling the obligations forthwith without being constrained by the expenditure limit of Rs 5 crore.
"However, the expenditure incurred by the Commissioner, MCD shall be subject to statutory audit," it added and asked the MCD commissioner to file a fresh status report by May 14.
The high court said there is a ring of truth in the statement made by Delhi's Urban Development Minister Saurabh Bharadwaj that any increase in financial power of MCD commissioner shall require the chief minister's approval and added that it amounts to an admission that the Delhi government is at a standstill due to absence of the chief minister.
"Undoubtedly, no new policy decision can be taken but holders of constitutional posts have to everyday take important as well as urgent decisions. For instance, issuance of free textbooks, writing material and uniform as well as replacement of broken chairs and tables in accordance with the existing policies in the MCD schools is an urgent and immediate decision which brook no delay and which is not prohibited during the model code of conduct," it said.
It said non-availability of chief minister or non-formation of a standing committee or non-compliance of certain provisions of Delhi Municipal Corporation Act cannot come in the way of the school-going children receiving their free textbooks, writing material and uniform forthwith.
"The decision of the Chief Minister, despite having been arrested and his petition being dismissed by a single judge of this court, to continue to hold the position is his personal decision. However, it does not mean that if the Chief Minister is not available, the fundamental rights of young children would be trampled upon and they would go through the first term (April 1 to May 10) without free textbooks, writing material and uniform," the bench said.
The Delhi government's counsel had stated that the issue of constitution of the standing committee was pending consideration before the Supreme Court which had reserved the judgment.
However, to address the void created by the absence of the committee, the MCD has adopted a resolution in January that all functions of the committee shall be carried out by the House until it is duly constituted, he said.
The court took judicial notice of the fact that the current MCD House has 'hardly transacted any business in the last one year.'
It said nothing prevented the Delhi government from moving a suo motu resolution in the MCD House authorising the commissioner to make payment for textbooks, writing material and uniform.
"Consequently, the submission of the Delhi government counsel blaming other institutions amounts to nothing but 'shedding of crocodile tears"," the court said.
It said the argument that taking "House's consent would ensure democratic control" is a red herring as it is not the case of the respondents that such an expenditure should not be incurred.
Their only submission is that the MCD commissioner at his own initiative should not award the contracts for free textbooks, writing material and uniform as it is beyond Rs 5 crore, it noted.
"Consequently, the real issue is 'power', 'control', 'turf dominance' and 'who takes the credit',' the bench said.
It added that receipt of free textbooks, writing material and uniform by school- going children is not only a legal right under the Right to Education Act and RTE rules but is also a part of the fundamental right under Article 21A of the Constitution.
"The inability of Delhi government to act with alacrity and respond to the urgency of the issue at hand, exhibits its indifference towards the plight of the students enrolled in MCD schools and is a wilful violation of the fundamental rights of the students," the court said.
