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Manoj Narula filed a public interest litigation (PIL) in the Supreme Court of India under Article 32 of the Constitution of India, in 2005 “assailing the appointment of some … Ministers to the Council of Ministers of Union of India despite their involvement in serious and heinous crimes.” During the hearings of the case, a bench presided over by the then Chief Justice passed the following order on March 23, 2006, “A point of great public importance has been raised in this petition. Broadly, the point is about the legality of the person with criminal background and/or charged with offences involving moral turpitude being appointed as ministers in Central and State Governments…Having regard to the magnitude of the problem and its vital importance, it is but proper that the petition is heard by a Bench of five Judges.”

Supreme Court. Reuters

The Supreme Court. Reuters

A five judge constitutional bench of the Supreme Court gave its important judgment in that case today, August 27, 2014. While it is being widely reported that the “Apex court has ruled that ‘Appointment of cabinet ministers with criminal past must be left to the wisdom of PM,’” the judgment is far more nuanced.

In legal terms, the issue revolved around whether any restrictions can be placed on the operation of Article 75 (1) of the Constitution of India which says that “The Prime Minister shall be appointed by
the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.” The “restrictions” would amount to laying down boundaries within which the advice of Prime Minister to the President on whom to appoint as Ministers would have to be restricted. For example, the Supreme Court could lay down that the Prime Minister cannot recommend someone who has a criminal case pending against him in which charges have been framed by a court of law, and even if the Prime Minister does make such a recommendation, the President should be free to reject such an advice given by the Prime Minister and should refuse to appoint such a person as a Minister.

While the Supreme Court has refrained from putting any restrictions or to use legal terminology, refrained from “reading any restrictions into” Article 75(1) respecting the principle of separation of powers, it has left no doubt about what the Constitution expects the Prime Minister to do. To understand, and appreciate, the full import of the Supreme Court judgment, it must be read in full, particularly the first three paragraphs of the Conclusion, namely 85, 86, 87 of the judgment( which, incidentally, seem to contain a numbering mistake. In any case the effective last paragraph of the Conclusion of the leading judgment (because there are actually three concurring judgments, one by the Chief Justice, Justice R.M. Lodha, Justice Dipak Misra who actually wrote the leading judgment, and Justice S.A. Bobde; and one each by Justice Madan Lokur and Justice J. Kurian) is worth reproducing here in full.

“87. Thus, while interpreting Article 75(1), definitely a disqualification cannot be added. However, it can always be legitimately expected, regard being had to the role of a Minister in the Council of Ministers and keeping in view the sanctity of oath he takes, the Prime Minister, while living upto the trust reposed in him, would consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council of Ministers. This is what the Constitution suggests and that is the constitutional expectation from the Prime Minister.Rest has to be left to the wisdom of the Prime Minister. We say nothing more, nothing less.”

A couple of other points from the judgment need to be highlighted. Both refer to Constituent Assembly debates. One reference is to the debate on this very issue. The leading judgment refers to this in paragraph 70 as follows:

“70. Having stated about good governance, we shall proceed to deal with the doctrine of “constitutional trust”. The issue of constitutional trust arises in the context of the debate in the Constituent Assembly that had taken place pertaining to the recommendation for appointment of a Minister to the Council of Ministers. Responding to the proposal for the amendment suggested by Prof. K.T. Shah with regard to the introduction of a disqualification of a convicted person becoming a Minister, Dr. B.R. Ambedkar had replied: -

“His last proposition is that no person who isconvicted may be appointed a Minister of the State. Well, so far as his intention is concerned,it is no doubt very laudable and I do not think any Member of this House would like to differ from him on that proposition. But the whole question is this whether we should introduce all these qualifications and disqualifications in the Constitution itself. Is it not desirable, is it not sufficient that we should trust the Prime Minister, the Legislature and the public at large watching the actions of the Ministers and the actions of the Legislature to see that no such infamous thing is done by either of them? I think this is a case which may eminently be left to the good-sense of the Prime Minister and to the good sense of the Legislature with the general public holding a watching brief upon them. I therefore say that these amendments are unnecessary.”[Emphasis supplied]

The above has been specifically mentioned with approval in the concurring judgment of Justice J. Kurian. That this is critical is shown by the fact that even Justice Madan Lokur mentions exactly the same quote in paragraph 32 of his concurring judgment, also giving the date of Dr. Ambedkar’s speech as 30th December, 1948.

What is important to note that the immediately following paragraph, 33, goes on to say “That a discussion is needed is evident from the material placed by the learned Additional Solicitor General. He referred tothe 18th Report presented to the Rajya Sabha on 15th March, 2007by the Department-Related Parliamentary Standing Committee On Personnel, Public Grievances, Law And Justice on Electoral Reforms(Disqualification Of Persons From Contesting Elections On Framing Of Charges Against Them For Certain Offences). The Report acknowledges the criminalization of our polity and the necessity of cleansing the political climate and had this to say:

“At the same time, the Committee is deeply conscious of the criminalization of our polity and the fast erosion of confidence of the people at large in our political process of the day. This will certainly weaken our democracy and will render the democratic institutions sterile. The Committee therefore feels that politics should be cleansed of persons with established criminal background. The objective is to prevent criminalisation of politics and maintain probity in elections. Criminalization of politics is the bane of society and negation of democracy…”

The very next paragraph, 34, of Justice Lokur’s judgment refers to the 244th Report of the Law Commission of India on “Electoral Disqualifications”presented in February, 2014, which concludes with “Not only do political parties select candidates with criminal backgrounds, there is evidence to suggest that untainted representatives later become involved in criminal activities. The incidence of criminalisation of politics is thus pervasive making its remediation an urgent need.” Justice Lokur’s judgment concludes with “While it may be necessary, due to the criminalization of our polity and consequently of our politics, to ensure that certain persons do not become Ministers, this is not possible through guidelines issued by this Court.”

The other point from Constituent Assembly Debates that finds mention more than once in the three concurring judgments is Dr. Ambedkar’s comments on the future of the working of the Constitution. Justice Lokur is more eloquent on this issue. He says, in paragraph 40 of his judgment, “It is wise to remember the words of Dr. Ambedkar in the Constituent Assembly on 25th November, 1949. He had this to say about the working of our Constitution:

“I feel, however good a Constitution may be,it is sure to turn out bad because those who are called to work it,happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they willset up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their purposes or will they prefer revolutionary methods of achieving them? If they adopt the revolutionary methods, however good the Constitution may be, it requires no prophet to say that it will fail. It is, therefore,futile to pass any judgement upon the Constitution without reference to the part which the people and their parties are likely to play.”

Justice Kurian also quotes part of the same paragraph of Dr. Ambedkar’s speech and concludes with the following:

“12. No doubt, it is not for the court to issue any direction to the Prime Minister or the Chief Minister, as the case may be, as to the manner in which they should exercise their power while selecting the colleagues in the Council of Ministers. That is the constitutional prerogative of those functionaries who are called upon to preserve, protect and defend the Constitution. But it isthe prophetic duty of this Court to remind the key duty holders about their role in working the Constitution. Hence, I am of the firm view, that the Prime Minister and the Chief Minister of the State, who themselves have taken oath to bear true faith and allegiance to the Constitution of India and to discharge theirduties faithfully and conscientiously, will be well advised to consider avoiding any person in the Council of Ministers,against whom charges have been framed by a criminal court in respect of offences involving moral turpitude and also offences specifically referred to in Chapter III of The Representation of the People Act, 1951.”

Based the above, to summarise the judgment into “Appointment of cabinet ministers with criminal past must be left to the wisdom of PM, says SC”, does not appear to reflect a complete understanding of the judgment. The Supreme Court has done what it should have. It cannot be faulted for judicial activism as it has refrained from interfering in the turf of the Executive by not telling the Prime Minister what to do, but it has performed its legitimate role of the final interpreter of the Constitution admirably and with due restraint. In the process of interpreting the Constitution, the Supreme Court has given sage advice to the Executive.

Given the widespread speculation of an ongoing tussle between the Executive and the Judiciary, this judgment comes as a breath of welcome fresh air where all branches of the State can work harmoniously in the interest of the nation and its people.

(Jagdeep S. Chhokar is a former Professor, Dean, and Director In-charge of IIM, Ahmedabad. Views are personal)

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