Common Minimum Propriety

I am deeply distressed at the inclusion of 8216;tainted8217; individuals as ministers in the government of India, contrary to the promise ...

I am deeply distressed at the inclusion of 8216;tainted8217; individuals as ministers in the government of India, contrary to the promise contained in the Common Minimum Programme of the United Progressive Alliance for a 8216;8216;corruption free and transparent Government8217;8217;.

The prime minister has defended such inclusion of individuals charged with the commission of criminal offences by relying on the legal principle that a person is presumed to be innocent till proved guilty. This cardinal principle is, however, merely the doctrine of the burden of proof in criminal trials for ensuring fair trial of the accused in a court of law. Before a person is held guilty, the prosecution has to prove his guilt by rebutting the presumption of his innocence beyond all reasonable doubt. Such a principle cannot be cited to justify appointments to constitutional posts, more so when pendency of criminal proceedings disentitles a person to lesser privileges. For instance, the grant of citizenship by naturalisation, a passport, even service under the Union or state.

As the prosecuting agency as well as the investigation agency is under the control of the state in our federal set-up, central investigation can do little without the active cooperation of the concerned state for collecting credible evidence. The Best Bakery case is a recent illustration. During the prime ministership of Jawaharlal Nehru, two chief ministers facing inquiry before the Commission of Inquiry resigned to enable the Commission to have a free hand in the conduct of inquiry. But the political culture has changed. Now politicians of every hue fallaciously invoke the doctrine of burden of proof to scramble for constitutional posts 8212; witness the scams of Bofors, urea, fodder, personal ledger account or the Tehelka expose.

Such conduct assumes graver importance in cases where, for instance, not only has the governor of a state granted sanction to prosecute the sitting chief minister of that state after being satisfied that there was a prima facie case based on the facts and documents placed before him, but the designated court has also issued warrants of arrest against him. It will be readily agreed that such 8216;detention8217; of a head of state is sufficient evidence of the breakdown of the constitutional machinery in the state. However, what is more disturbing is that the same accused, during the pendency of those criminal proceedings, is now appointed to a constitutional post in the Government of India.

The constitution makes the oath of office an integral part of the provisions relating to the process of election or appointment to such office. It is inconceivable that individuals who prima facie are found to have violated the law of the land are called upon to hold constitutional office. This can happen only in contravention of the constitutional oath of office both by the individuals holding such constitutional posts and those calling upon them to do so.

The writer is a senior advocate, Supreme Court of India