In a landmark judgement on Aug. 27, a five-member Constitutional Bench of the Supreme Court has observed that it is not the prerogative of the Apex court to disqualify ministers facing criminal charges. With this decision Supreme Court has put the ball in Prime Minister’s court as it observed that it’s collective responsibility of the Prime Minister and Chief Ministers to keep those people against whom charges have been framed in criminal and corruption cases, out of their Cabinet.
An ADR and NEW analysis reveals 44 (23 percent) out of 194 State Cabinet Ministers from 13 Assemblies (where elections were conducted in the last two years) and 12 (27 percent) out of 45 Union Ministers have self-declared criminal cases against themselves.
Union Council of Ministers with declared criminal cases: 12 (27 percent) out of 45 Ministers have declared criminal cases against themselves.
Union Council of Ministers with declared serious criminal cases: 7 out of 45 Ministers have declared serious criminal cases against themselves.
Ministers with declared criminal cases: 44 (23 percent) Ministers out of 194 analyzed have declared criminal cases in their affidavits.
Ministers with serious declared criminal cases: 26 (13 percent) Ministers have declared serious criminal cases against themselves.
States with high percentage of Ministers with criminal cases: Among the states analysed, Telangana (90 percent) has the highest percentage of Ministers with criminal cases followed by Andhra Pradesh (56 percent), Karnataka (34 percent) and Odisha (27 percent).
The states of Chhattisgarh, Mizoram, Meghalaya, Nagaland, Tripura and Sikkim have none ministers with criminal cases.
States with high percentage of Ministers with serious criminal cases: Telangana (80 percent) has the highest percentage of Ministers with serious criminal cases followed by Rajasthan (25 percent) and Andhra Pradesh (22 percent).
Chief Ministers with declared criminal cases: K. Chandrasekhar Rao of Telangana and N.Chandrababu Naidu of Andhra Pradesh have declared criminal cases against themselves.
Ideal tenets of polity observed in the judgement
Disqualification of Ministers is not Court’s prerogative: Interpreting Article 75(1), the Supreme Court said that disqualification of Ministers cannot be added to the responsibility of Court as it is the constitutional prerogative of those functionaries who are called upon to preserve, protect and defend the organization. Thus the court cannot issue any direction to PM and CMs as to the manner in which they should exercise their power while selecting their colleagues in the Council of Ministers.
Court’s duty is to remind PM, CMs about their role in working of constitution: The judgement said it is the bounden duty of the Court to remind the Prime Minister and the Chief Minister of the State of their duty to act in accordance with the constitutional aspirations.
Scope and purpose of Articles 74, 75 and 164: Constitutional trust, constitutional morality and good governance are the three fundamental ingredients of Article 74, 75 and 164 and the Prime Minister and Chief Ministers are regarded as the repository of these three fundamental aspects. Thus the office of the Prime Minister is expected to carry the burden of constitutional trust.
Whether any restriction can be placed on the operation of Article 75 (1): The Article 75(1) clearly states that the PM shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the PM. Therefore as a result, such a “restriction” would amount to laying down of boundaries on the advice of PM. In instant judgement, the Apex court has respected the doctrine of “Separation of Powers.”
PM is expected to act with constitutional responsibility: PM is expected that he should act in the interest of national polity of a nation state. He has to bear in mind that “unwarranted elements or persons” who are facing charges in certain category of offences should be prohibited from entering into our constitutional structure.
Constitutional advice on appointment of ministers: The advice given by the Prime Minister is the constitutional advice. Prime Ministerial advice under Article 75 (1) conveys formation of his opinion and trust of people is reposed in him under the constitution. This reposing of faith in the PM by the entire nation has the expectations of good governance which is carried out by Ministers of his choice.
Advice should be considerate, deliberate and informed one: The advice given by the PM to the President in the context of Article 75 (1) has to be considerate, deliberate and informed one. Keeping in view the sanctity of oath, he takes; the PM 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.
Presumption of innocence needs to be treated differently under electoral polity: Presumption of innocence should not be considered for being chosen as a Minister in a stage of “framing of charges.” The reason behind this is that framing of charges is a judicial act by an experienced judicial mind.