On a petition seeking suspension of Delhi minister and AAP leader Satyendar Jain from the state cabinet, the Delhi High Court Wednesday said it is for Delhi Chief Minister Arvind Kejriwal to act in the best interest of the state and consider whether a person who has been charged with offences involving moral turpitude should be allowed to continue as a minister or not. Jain has been in custody in an alleged money laundering case since May 30.
Observing that while it is not for the court to issue directions to the Chief Minister in this regard, the division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said that it is, however, the duty of the court to remind “key duty holders” about their role with regard to upholding the tenets of the Constitution.
“The Chief Minister exercises his/her discretion in choosing the members of cabinet and to formulate a policy pertaining to appointment of Council of Ministers. The Council of Ministers has a collective responsibility to sustain and uphold integrity of the Constitution of India,” said the court in the order released Wednesday afternoon.
It added, “And it is for the Chief Minister to act in the best interest of the State and consider as to whether a person who has criminal background and/or has been charged with offences involving moral turpitude should be appointed and should be allowed to continue as a minister or not.”
The court also said good governance is only in the hands of good people, but added that though it cannot sit in judgement of what is good or bad, it can remind constitutional functionaries to preserve, protect and promote the ethos of the Constitution. “There is a presumption that the Chief Minister would be well advised and guided by such constitutional principles,” it said.
Quoting a speech of Dr B R Ambedkar from the Constituent Assembly debates, the court said it hopes that the Chief Minister will uphold the trust reposed in him “that forms the foundation of a representative democracy while appointing persons to lead the people”. Ambedkar had said, “… however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.”
The petition filed by Dr Nand Kishore Garg, a former BJP MLA, earlier this month alleged that Jain continues to enjoy the perks and privileges of a minister despite being in custody in a case alleging serious financial irregularities. The plea had also prayed for the issuance of guidelines for resignation or suspension of ministers in case they remain in custody for a period beyond 48 hours, as is followed in the case of a civil servant under the central rules.
Rejecting Garg’s prayers, the division bench in the order said the Supreme Court in 2014 refrained from framing any guidelines on the issue and held that it was not for the court to issue any directions to the Prime Minister or Chief Minister.
“The Supreme Court further noted that deeming a person against whom allegations of criminality have been alleged as a criminal, and thereby, robbing them of their appointment, would go against the basic principle of criminal jurisprudence, i.e. a person is deemed to be innocent until proven guilty,” the bench said.
The court also said the breach of the oath does not entail an automatic termination of the tenure, but requires an independent order by the appointing authority. “A High Court under Article 226 is not competent to issue such orders terminating the appointment of a Minister of the State,” it said.
Holding the prayer for extending the Central Civil Services rules to ministers without any basis, the bench said that they explicitly exclude a minister. “A minister cannot be said to be a government servant as well, as the appointing authority of the ministers, i.e. the governor of the state, does not fall under Clause 2a of the CCS (CCA) Rules, 1965. Therefore, Rule 10 of the 1965 Rules, which stipulates that being arrested for a period of 48 hours or more entails suspension of the government servant, would not apply to a Minister,” reads the ruling.