The Supreme Court of India has a reputation for activism and has sometimes even been accused of judicial overreach. However, it needs to be said in defence of the Court that as a repository of public trust it has been wont to step in only in conditions of administrative apathy and legislative stasis to protect basic rights and constitutional values. It has in recent times delivered some significant verdicts to save the purity of the election process. It directed that the ‘none-of-the-above’ option be incorporated in the voting machine, and struck down a clause that saved sitting legislators from immediate disqualification upon conviction. When the question whether a person with a criminal background can be allowed to become a Minister was referred to a Constitution Bench, there could have been the expectation that the Court would expand the existing law to bar the appointment of those against whom serious charges have been framed. However, showing wise restraint, the Constitution Bench has declined to prescribe any fresh ground for disqualification for the appointment of Ministers. Instead, it has advised the Prime Minister, as well as the Chief Ministers, to live up to the trust that the Constitution reposes in them by refraining from advising the President, or the Governors, when it comes to appointing as Ministers those with the taint of criminality.
Even though doctrines such as implied prohibition and constitutional silence were put forward in support of a radical finding that the Prime Minister was impliedly barred from including in the Council of Ministers a person with a criminal record, the Court stopped short of doing so, correctly. Rather, it chose to invoke the principle of constitutional trust, constitutional expectation and the sanctity of the oath taken by the Prime Minister (or Chief Ministers), to counsel them against “choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption” as a Minister. In the ultimate analysis, the judgment may be no more than a learned dissertation on the subject. However, at a time when statistics of pending cases and charges against legislators are cited to assess the extent of criminality in politics, it is a timely reminder to the Prime Minister and Chief Ministers of their constitutional responsibility to preserve purity in public life. The Election Commission has already mooted some reforms to curb the criminalisation of politics, notably an amendment to make framing of charges in serious cases the basis for disqualification, instead of conviction, as it stands now. The message from the latest verdict is that these issues ought to be addressed through legislation rather than the judicial process.