Edit: Advice vs imposition

It was a close shave for ministers tainted by criminal and corruption charges when the Supreme Court Constitutional Bench left the decision on their disqualification to the “wisdom” of the Prime Minister (PM) and Chief Ministers (CMs). After its judgments disqualifying convicted legislators and another ruling, subsequently set aside, barring jailed leaders from contesting polls, the Supreme Court had appeared to take an activist position on the criminalisation of politics. Seen from that perch, the latest judgment that reaffirms the PM’s and CMs’ prerogative to staff the Council of Ministers appears to be a climbdown for the apex court. “The Constitution reposes immense trust in the PM and Chief Ministers and they are expected to act with responsibility and with constitutional morality... As a trustee of the Constitution, the PM is expected not to appoint unwarranted persons as ministers, no disqualification can be prescribed,” the Bench said. By reminding the PM and CMs of their constitutional responsibilities, rather than imposing the Judiciary’s will on the Executive and the legislature, the Court has shown maturity. 

But the dilemma facing the Constitution Bench, that was clearly fleshed out in the concurring but separate judgments written by Justices Dipak Misra, Kurian Joseph and Madan Lokur, was the experience of 66 years of parliamentary politics. Justice Lokur quoting Law Commission and Parliamentary Standing Committee reports on electoral disqualification said the criminalisation of the polity was now widely acknowledged. Justices Misra and Joseph ruled that the framing of charges by a court pointed to adequate evidence to put an accused politician on trial. Justice Joseph noted that a charged person is essentially in “conflict with the law”, and this had a question mark on his/her integrity. He then asked a rhetorical question: “If so, is it desirable in a country governed by the rule of law to entrust executive power on such a person?” These judgments are a distinct departure from the Constituent Assembly debates which were unwilling to consider, even convictions as a ground for disqualification. 

The experience of the freedom struggle and the Emergency where many politicians landed in jail has undoubtedly influenced the discourse. Unfortunately, civil society organisations campaigning against criminalisation, and the Supreme Court, have not forcefully made this distinction. Without segregating cases registered while undertaking agitational politics and cases of murder, kidnapping, sexual assault and financial corruption, the statistics paint a distorted picture. Politicians leading street protests are often booked under umbrella charges including rioting, disobeying public servants, preventing public servants from discharging duties and even the grave offence of attempt to murder. Ruling on the midnight crackdown against Baba Ramdev’s supporters, the Supreme Court upheld the right to protest as being inherent in the freedom of speech and the freedom to assemble peacefully. Therefore, it is important that cases charged for political agitations be demarcated from other cases of criminality. 

The Association of Democratic Reforms, through analysing election affidavits, has reported that about 44 of the 194 state Cabinet ministers from 13 legislative assemblies and 12 out of 45 Union ministers have criminal cases pending against them. On the campaign trail, Prime Minister Narendra Modi had vowed to jail criminal politicians. In office, he mooted fast-tracking of trials involving MPs, an idea the Supreme Court rejected, pointing to the need to fast-track all trials and criticising the Executive’s failure to allocate adequate resources to the judiciary. In refraining from law-making, the court has repeatedly trusted the PM and CMs to act morally or utilise Parliament to enact the necessary laws. This trust must be reciprocated.