“Criminalisation of politics is anathema to the sacredness of democracy”

In a landmark verdict the Supreme Court on Wednesday advised the Prime Minister or Chief Minister of a State not to induct chargesheeted persons facing trial for offences involving moral turpitude as Ministers though there was no limitation or restriction in the Constitution which debars any Member of Parliament or Legislative Assembly being included in the Cabinet.

A five-judge Constitution Bench headed by the Chief Justice of India R.M. Lodha said the Prime Minister as the trustee of the Constitution was expected to act in accordance with constitutional propriety and not appoint unwarranted persons as Ministers.

Justice Dipak Misra writing the judgment said “Article 75 of the Constitution does not contain any limitation as to who can or cannot be included in the Council of Ministers" and hence no new disqualification could be added to prevent charge sheeted persons from being appointed as Ministers.

The Bench said criminalisation of politics destroyed people’s faith in democracy and persons, howsoever, high he/she might be could not be exempted from equal treatment. It said constitutional morality, good governance and constitutional trust expected good sense from the Prime Minister and it should be left to his wisdom not to recommend any person with criminal charges from being appointed as a Minister.

The bench said that many things could not be said in the Constitution, but the Constitution could not however be expected to operate in a vacuum. The Prime Minister should act in the interest of national polity and avoid unwarranted persons facing criminal charges to restore people’s faith in democracy.

The Bench asked “whether a person who has come in conflict with law would be in a position to conscientiously discharge his functions as Minister when his integrity is questioned and whether a person with doubtful integrity can be given the responsibility.” It pointed out that a person against whom charges were framed or was facing trial was not appointed in any civil service. While so whether a person who was facing the same disqualification could be appointed as a Minister by the Prime Minister or the Chief Minister of a State, the Bench said.

The Bench was disposing of a public interest litigation petition filed in 2005 by Manoj Narula seeking removal of the then four chargesheeted Ministers — Lalu Prasad, Mohammed Taslimuddin, M.A.A. Fatmi and Jai Prakash Yadav from the Cabinet.

The Centre took the stand that Article 75 did not say that any person who had criminal proceedings pending against him had to be read as disqualification of being appointed as a minister. It would be incorrect to read into the provisions of Article 75 such a disqualification when none existed.

The constitution bench while expressing concern over criminalisation of politics left it to the wisdom of the Prime Minister or the Chief Minister of a State to take a call on this aspect and not appoint such charge sheeted persons as a Minister.

‘Court cannot add new disqualification for Ministers’

The Court refused to add a new disqualification in the Constitution for appointment as Ministers, saying it was the prerogative of the Prime Minister or the Chief Minister of a State to appoint Ministers of his/her choice.

The five-judge Constitution Bench, in its 123-page judgment on a public interest litigation petition filed in 2005 seeking the removal of tainted Ministers from the Cabinet, said, “We are of the convinced opinion that when there is no disqualification for a person against whom charges have been framed in respect of heinous or serious offences or offences relating to corruption to contest the election, by interpretative process, it is difficult to read the prohibition into Article 75(1) or, for that matter, into Article 164(1) to the powers of the Prime Minister or the Chief Minister in such a manner.”

However, the Bench said having regard to the role of a Minister and keeping in view the sanctity of oath he takes, the Prime Minister would consider not choosing a person against whom charges have been framed for heinous or serious criminal offences or charges of corruption. “In a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility,” the Bench said.

Corroding democracy

Justice Dipak Misra, writing the main judgment for himself, the CJI, Justice Bobde, Madan B. Lokur and Kurian Joseph, said “criminalisation of politics is anathema to the sacredness of democracy. It is worth saying that systemic corruption and sponsored criminalisation can corrode the fundamental core of elective democracy and, consequently, the constitutional governance.”

It said: “A democratic republic polity hopes and aspires to be governed by a Government which is run by the elected representatives who do not have any involvement in serious criminal offences or offences relating to corruption, casteism, societal problems, affecting the sovereignty of the nation and many other offences. Corruption has the potentiality to destroy many a progressive aspect and it has acted as the formidable enemy of the nation.”

“The framers of the Constitution left many a thing unwritten. They also expected that the Prime Minster would act in the interest of the national polity of the nation-state. He (PM) has to bear in mind that unwarranted elements or persons who are facing charge in certain category of offences may thwart or hinder the canons of constitutional morality or principles of good governance and eventually diminish the constitutional trust. .”