Conviction, not accusation, should be the ground for disqualification: Centre

It was almost an irony that the UPA Government, whose ministers it was that first opened the debate on tainted ministers, was asked by the Supreme Court to furnish its views on the issue, considering the 8220;magnitude of the problem and its vital importance8221;

It wasn8217;t surprising that the UPA government, with ministers like Lalu Prasad Yadav and MAA Fatmi who have criminal cases pending against their names, should have couched their response in defensive words. The government has contended before the Supreme Court that some odd criminal cases pending against a member of Parliament did not 8220;make his/her integrity or honesty doubtful in nature8221;.

8220;It is wrong to say that simply because chargesheets have been submitted against some of the ministers or even charges have been framed that would be sufficient to debar them from becoming a minister,8221; the Centre told the Apex Court in reply to a notice issued by a bench headed by the then Chief Justice Y K Sabharwal in March 2006.

Maintaining there did not exist any statutory provision that debarred appointment of any such MP as a minister, Kewal Krishna Bajaj, under-secretary in the Ministy of Home Affairs, criticised the reasoning that mere pendency of criminal proceedings against a minister violated Articles 75 1 and 75 4 of the Constitution or the oath of office and secrecy taken under the Third Schedule. None of these provision, he said, suggested that any person who has criminal proceedings pending against him/her implied disqualification for being appointed as a minister.

The detailed affidavit filed by the Centre seems to rely heavily on the 8216;safeguards8217; set in place by the Representation of Peoples Act, 1951 and even those by the Election Commission. Pointing to the directions taken by the EC, the Central government stated, 8220;The basic principle is that it is for the voter to make the right choice, that there is full transparency.8221; This shifted the onus of deciding taint on the electorate.

The Centre also referred to the 8216;adequate8217; legal provisions under Article 84 and 102 and 102 e of the Constitution and the statutory provision like, Section 8 of RPA which deals with disqualification on conviction for certain offences. Although the section of RPA has undergone several changes, it remains clear that disqualification is incumbent 8220;only8221; upon conviction of the persons for certain criminal offences. There is no disqualification on the ground that a person is 8220;an accused8221; in a pending criminal trial.

Amidst these apparent justifications for inclusion of ministers with the tainted tag, the Centre also raised a crucial point on the lack of 8220;judicially manageable standards8221; for determining who can be treated as an accused or as a tainted person. It explained, 8220;If mere accusation is considered enough to disqualify a candidate, it would be very easy for destructive elements to exclude bonafide candidates by simply making allegations and instituting false cases.8221;

Thus the rationale for disqualification of a person only after conviction for an offence rests on a much greater ground than 8220;mere political expediency,8221; it said, adding that the principle of innocence is of cardinal importance in the issue. 8220;Presumption of innocence8221; of an accused is a golden strand that runs through the system of criminal justice administration in our country, and, therefore, the Centre deposed, 8220;it has been thought fit and proper to prescribe that a mere accusation in a pending trial would not act as a disqualification for election to Parliament8221;.

Story continues below this ad

In reply to a proposed amendment in the RPA sought by the Law Commission8212;under which persons charged with offences in certain categories would be disqualified for five years8212;the government declined on the ground of lack of unanimity since no reasons are required to be recorded for framing of charges. It was also pointed out that 8220;disqualification affects the valuable rights of a person and if abused, may seriously undermine the democratic fabric of our country8221;.