Author: Arun Jaitley
Publication: The Indian Express
Date: June 9, 2004
URL: http://www.indianexpress.com:8080/full_story.php?content_id=48564
Introduction: So why doesn't he
get rid of his tainted ministers?
The prime minister of India heads
the largest democracy in the world. He has a huge responsibility and a
high level of public accountability. Amongst his foremost prerogatives
is to choose his council of ministers. If the minister does not enjoy his
confidence or public perception about him does not inspire confidence,
it is incumbent upon the PM to get rid of him.
A coalition government functions
on its own ''dharma''. Prime ministerial authority can get weakened when
coalition partners insist that they will decide the party nominees in the
council of ministers. Such insistence may render nugatory the prime ministerial
prerogative.
Manmohan Singh is an honourable
man. The country expects him to assert himself in order to uphold the principles
of probity in public life.
There has been a debate over whether
persons against whom chargesheets have been filed in the courts should
be inducted in the council of ministers. There is no requirement in the
Constitution seeking to bar persons from holding ministerial office because
a chargesheet is filed against them. Some have argued that under our jurisprudence
there is a presumption of innocence till guilt is proved. The alternative
view has been that for those in public life there must be a presumption
of guilt unless innocence is proved.
The Election Commission has held
that persons against whom chargesheets are pending and charges have been
framed by the appropriate court should be debarred from contesting elections.
The Law Commission has supported this view. The Supreme Court in its judgment
in 2002, however, considered it necessary that persons against whom criminal
cases are filed, must disclose to the voters the facts relating to the
pendency of the charges. As the then law minister, I convened a meeting
of all parties in September 2001 seeking their views on the recommendations
of the EC and Law Commission. The overwhelming opinion was that law and
order being a state subject, there is a possibility of abuse on the eve
of elections. The spectrum of opinion was against such legislation.
Conscious of the fact that there
was a strong public opinion against the criminalisation of politics, the
NDA government in 2002 proposed a legislation wherein a category of ''heinous''
crime was defined. The proposal envisaged that if two chargesheets involving
heinous crimes were filed against a person, it would debar him from contesting
elections. The Congress and Left parties rejected this proposal. It could
not go through.
The legal position is clear. A convicted
person can be debarred from contesting elections but a chargesheeted person
can't be. Most chargesheeted persons after winning elections argue that
they have been vindicated by the "people's court". The people decide the
popularity of a candidate in the first-past-the-post system on several
considerations. They do not decide innocence or guilt in matters of criminal
culpability.
The prime ministerial prerogative
is not bound by the popularity of a candidate. It cannot be circumscribed
by the quota of ministerial representation to a coalition partner. The
PM must weigh whether the popular perception of a particular person and
his own assessment renders him unfit to hold office. The unwritten rule
has been that prime ministers have tended to ignore offences arising out
of political agitations, trade union activities and the like, but serious
offences involving moral turpitude cannot be ignored. Many ministers in
Morarji Desai's cabinet would have been prosecuted for various offences
during the Emergency. Obviously, there is no perception that they are criminals
or tainted. But when ministers were chargesheeted in the hawala case, they
were asked to quit. While defending the continuation of L.K. Advani, M.M.
Joshi and Uma Bharati in the NDA government, we maintained that these offences
emanated from a political agitation and therefore in neither popular perception
nor that of the prime minister's they could be considered as "criminals".
The nation is concerned with the
criminalisation of politics. We are faced with the criminalisation of the
council of ministers. Laloo Prasad Yadav has faced six prosecutions in
the fodder scam and the seventh relates to possession of disproportionate
assets. These are prosecutions under the Prevention of Corruption Act.
He resigned as chief minister of Bihar on account of these cases but has
been inducted into the Central government notwithstanding the pendency
of the cases. Taslimuddin has almost a dozen cases against him involving
offences under the Penal Code, Arms Act etc. He was dropped from the Central
government in 1996 because of them. Jai Prakash Yadav has been chargesheeted
under the Prevention of Corruption Act and the penal law by the Vigilance
Department of the Bihar Government. Shibu Soren faces CBI prosecution for
serious offences under the Penal Code and the Prevention of Corruption
Act. A report was filed against M.A. Fatmi by the Superintendent of Police,
Darbhanga, for involvement in serious offences. A friendly government decided
not to prosecute him. Another minister in the government has been adjudged
guilty for foreign exchange violation. Yet another is perceived to be involved
in the massacre of Sikhs in the 1984 riots. Another was unsuccessfully
prosecuted for harbouring assassins of the late Rajiv Gandhi.
The case for dropping these ministers
is politically and morally strong. Partners of the UPA government who argued
that chargesheets emanating out of the political Ayodhya movement were
enough to drop three NDA ministers, cannot turn around and say that involvement
in hard-core crime still leads to a presumption of innocence. The moral
authority of the government at the Centre has been compromised by the 'Dirty
Dozen'. The position of the Left parties is pathetic. They display formal
disapproval outside the Parliament alongside loud criticism of the demand
for dropping them. They are not concerned with the gross impropriety of
the inclusion of these ministers. They are only concerned with the BJP's
right to question their continuation because L.K. Advani was chargesheeted
in the Ayodhya case.
The PM has the prerogative to include
anyone in his council of ministers. However, if prime ministerial prerogatives
are misused either consciously or by compulsion of coalition politics,
the moral legitimacy of this prerogative is bound to be questioned.
The writer is a spokesperson for
the BJP
