Tainted lawmakers erode public’s faith in state
Through its nuanced and carefully balanced verdict in the Manoj Narula versus the Union of India case on Wednesday, the Supreme Court has offered sage advice to the Government, but without stepping into the executive's domain. The apex court used the opportunity to red-flag the issue of increasing criminalisation of the political establishment and leveraged its position and expertise as the final interpreter of the Constitution to provide valuable context on the appointment of tainted politicians as Ministers. But, having a strong moral argument for keeping those charged with offenses involving moral turpitude away from high office, the apex court left the matter in the hands of the executive. This is as it should be. Two basic issues lie at the crux of this landmark verdict. First is the Prime Minister's right to select his Council of Ministers (and similarly, the Chief Minister's prerogative to pick his colleagues). This revolves around the operability of Articles 75 and 164 of the Constitution of India which lay down that Ministers in the Union and State Governments are to be appointed by the President on the advice of the Prime Minister and the Chief Ministers respectively. The Articles do not mention if the Prime Minister or Chief Ministers can be prohibited from appointing to the ministerial council a politician facing criminal charges — the apex court has decided to keep this as it is. Some may feel that the apex court has shied away from tackling head on the problem of criminalisation in the political sphere but such an argument betrays a shallow understanding of the spirit of the Constitution. The matter of disqualifying tainted individuals from the ministerial pool had come up during the Constituent Assembly debates but BR Ambedkar among others had argued that doing so would undermine the trust and authority that the Constitution had vested in the Prime Minister. It is not as if the they were too idealistic; on the contrary, the leaders were practical enough to know that, as Ambedkar himself observed (and this section was quoted in the verdict as well), “The working of a Constitution does not depend wholly upon the nature of the Constitution... The factors on which the working of those organs of the State depend are the people and the political parties they will set up...” This puts the onus for ensuring probity in public life not just on the executive but society at large. After all, if criminals crowd our Parliament and State Assemblies, it is at least to some extent because the people voted them to power.
The second issue here is the universally accepted principle of jurisprudence that a person is innocent until proven guilty. If a politician facing criminal charges is prevented from holding high office, does that mean he or she is being penalised before being convictedIJ The proposition seems legally untenable, which is another reason why the Supreme Court stopped short of keeping out persons who are under a cloud but not convicted. Moreover, politicians are routinely subjected to false accusations and spurious charges, and, it can be argued, that it is unfair to stunt their career growth on these grounds. However, as the apex court noted, a charge-sheet (unlike, a First Information Report), is prepared by trained judicial minds on the basis of prima facie evidence that point's individual wrongdoing. And the top executive will be well to keep this mind.