Yesterday, hearing a petition on tainted ministers, the SC bench of Chief Justice RS Lodha and others, said : The Onus of disqualifying tainted ministers rests on the PM or Prime Minister of India; and the CMs of states.
We may interpret the judgement in many ways, but the fact of the matter is : the Supreme Court can’t order disqualification of tainted ministers. Although it can make its statement vague (open to more than one interpretations), such as one portraying Judiciary’s reluctance to encroach into the Legislature’s territory.
Yesterday, when the SC five judge bench upheld the right of the prime minister and chief ministers to select their councils of ministers, claiming that it was leaving the question of whether to induct tainted politicians as ministers to the wisdom of the prime minister and chief ministers, who it said were repositories of constitutional trust, the SC did exactly that. Instead of saying that there’s no legal provision to disqualify tainted ministers, the Apex court threw the ball in PM’s court.
As said earlier, there are reasons as to why the SC can’t say anything on the disqualification of tainted ministers.
First of all, who is a “tainted minister” or a “Dagi Mantri”?
One can explain these terms as applying to ministers who have a legal case (s) against them. The explanation can be self explanatory, but in the jurisprudence (the philosophy of law) of the country there’s no such word like “Tainted”. The Articles 75 (1) and Article 164 (1) which deal with the appointment of the prime minister and chief ministers and their councils of ministers respectively, don’t have any disqualification on the name of tainted, however you want to define the term. A minister having legal cases against him amounts to nothing in the eyes of Law — A person is innocent unless he is proved guilty by the Court of Law. For this reason, the grounds of disqualification for fighting an election is the conviction in the Court of Law (Proven Guilty) and NOT being an accused. A person can legally become an MP or MLA , with legal cases against him/her. He/she can legally become a minister as well.
For these reasons , Supreme Court can’t say anything on Tainted Ministers, except for what it said in its judgement.
It’s a Moral Question
As said above, the Prime Minister has no legal compulsion to remove ministers with legal cases against them. This obligation is moral.
Right now, about dozen out of 45 ministers in the PM Modi’s cabinet are said to be tainted. The cases against these dozen ministers are not petty but serious criminal charges such as rape, assault, kidnapping, rioting, murder etc. He can use his moral judgement regarding who to remove and who to continue with. Calling all these ministers victims of political vendetta of the rivals, And is not good. Such logic on the part of the Government is akin to making mockery of people’s intelligence , no matter how less it may be.
Although, it’s highly unlikely that PM will remove even those ministers who have cases for crime against women; but still it will be good if he does.
Last Year’s SC verdict
MPs convicted of crimes have customarily continued to hold office simply by filing an appeal in courts. But in a landmark judgement last July, the Supreme Court ruled that MPs sentenced to more than three years in jail should be disqualified regardless of any appeal.