The Hindu : National : ‘Tainted’ ministers issue referred to Constitution Bench

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‘Tainted’ ministers issue referred to Constitution Bench

J. Venkatesan

Six States get four weeks to discuss issues and respond

Bench will examine if constitutional convention exists
Should President/ Governor have residuary power?

NEW DELHI: A five-Judge Constitution Bench of the Supreme Court will examine in July whether the Prime Minister/Chief Ministers can induct a person with a criminal background or charge-sheeted in criminal cases as a minister in the Union/State governments.

A three-Judge Bench, comprising Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran and J.M. Panchal, on Wednesday fixed the hearing by a Constitution Bench soon after the summer vacation.

The Bench granted four weeks to Uttar Pradesh, Rajasthan, Maharashtra, Tamil Nadu, Kerala and Orissa to deliberate on the issues formulated by amicus curiae Rakesh Dwivedi. The Centre and other States had filed their responses.

The Bench will examine several issues, including whether there exists a constitutional convention that a Minister charged with commission of serious offence by a court of law should resign from his office; whether it would logically and necessarily follow that persons so charged cannot, as a matter of convention, be appointed ministers; and whether such a constitutional convention could be enforced by superior courts by issuing a writ of quo warranto.

The other issues to be examined are whether the President of India or Governor, as the case may be, should, per necessity, have a residuary power to act as per their discretion and advise the Prime Minister/Chief Minister to drop such minister or to withdraw his pleasure qua (with reference to) such minister and can he refuse oath to such Minister; and whether the oath of office subscribed by the President and Prime Minister by necessary implication oblige them not to appoint charge-sheeted persons as Ministers.

In focus will also be questions whether attaching presumption of innocence to the accused in trials has any relevance to fitness for the office of minister or other offices under the Constitution; whether provisions of the Representation of the People Act prescribe qualifications/disqualifications only for becoming a member of Houses (of Parliament or State Legislature) or they also have relevance as threshold and final entitlement to be a Minister without reference to criminal charges.

The Bench will also consider whether laying down of parameters necessarily implied would amount to interfering with any parliamentary prerogative and whether Prime Minister’s/Chief Minister’s discretion to appoint a Minister prevents the Court from emphasising that fitness to office and eliminating those charged with crimes amounting to moral turpitude be not appointed as Minister in the interest of democracy and on account of oath to do right to all sections of people.

“No limitation”

The Centre said: “There is no limitation or restriction in the Constitution which debars any Member of Parliament being included in the Cabinet.”

It noted 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.

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