Criminalisation of Politics: Latest initiative of the Supreme Court and the case for invoking Article 356 in U.P.

Last week, the Supreme Court referred a PIL seeking to prevent ‘tainted’ Ministers (i.e. those who have a criminal background) to a Constitution Bench, and also directed individual state governments to compile and submit reports to the Court on the issue. Yesterday’s Indian Express carries a detailed story about the case, which contain interesting facts, including the following:

“In the ruling UPA, 15 Congress MPs, 10 from the RJD and five NCP MPs have cases against their names. The Opposition is no better: of the NDA’s 37 MPs with criminal antecedents, 26 come from the BJP. The Samajwadi Party and BSP too have 18 such MPs.”

The Express piece focuses on the following issues (it is not clear if these are the actual questions that have been referred to the Constitution Bench):

“* Is there a constitutional convention that a minister charged with commission of serious offence by a court should resign

* Does it follow that people charged by courts cannot be appointed as ministers?

* Should the president or governor have a residuary power to act in their discretion and advise the prime minister or chief minister to sack such a minister? Can the president or governor refuse oath to such a minister?

* Are the president and prime minister obligated by their oath of office not to appoint chargesheeted ministers?

* Not guilty unless proved, so if a person is only accused, does it make him eligible to be appointed as minister or on other offices under the Constitution?

* Do the provisions of the Representation of Peoples Act 1951 apply only to members of Houses or do they also apply to appointment of ministers when the charge is not a criminal charge?

* Would setting down of such parameters amount to interfering with parliamentary prerogative?

* Does the PM’s or CM’s discretion to appoint ministers prevent the court from deciding if somebody should be appointed?”

Since the Supreme Court is now deciding Constitution Bench cases quite quickly (as opposed to the practice a few years ago, when referring a case to a C.B. was an effective delaying tactic), the case promises to be yet another of those decisions which will have an immediate impact on the playing out of everyday politics.

The facts that lie at the heart of this case are also important for setting the context against which one must understand Jayanthi Natarajan’s impassioned Op-Ed in today’s Indian Express, where she espouses the “moral case” for invoking Article 356 against the Mulayam Singh government. She argues:

“There has been a complete breakdown of governance and law and order in UP, over a period of time. Nithari was possibly the lowest depth to which democracy could degenerate. The lack of remorse shown by the state government, the collusion and cynical indifference displayed by the state police and the overwhelming helplessness of the victims’ families are vignettes of government failure. They constitute a blot on the record of our democratic polity. Until the bitter end, the chief minister did not step into Nithari village to condole with the bereaved families. On the contrary, evidence was tampered with, and records allegedly destroyed in order to cover up the collusion of highly placed persons and officials. The truth will never be known now.

The communal violence at Gorakhpur, the alleged involvement of cabinet ministers in murder cases such as the current Kavita Rani case, are all but the latest manifestations of the systemic rot that had permeated the state.”

While her overall argument is persuasive enough, the medium she has chosen allows her to ignore some inconvenient facts and questions about the Congress’ complicit conduct in the series of acts that she details. Her colleague – and fellow-advocate of invoking Article 356 in U.P. – Kapil Sibal had to confront those questions in an interview published in Sunday’s Indian Express:

“COOMI KAPOOR: Your party has been supporting this government for three-and-a-half years. Why?

This has been asked a number of times. This matter was raised on September 4, 2003. People met the Governor in August 2003, and the first petition was filed on September 5, 2003. Even the writ was in 2003. The judgment came in February 14, 2007. How can I take a public position on the issue that hasn’t been proved by court, which is pending with them? And even if I say it is illegal, assuming I withdraw the support mid-term, what happens to Mulayam’s government? It makes no difference to Mulayam’s government at all unless the court and the institutions act in accordance to the Constitution. I cannot take a political stand on it even, because they will say who are you to say it is invalid. What did the other side do last time? I have already given you the background to that. The problem in this country is that when the institutions do not discharge their constitutional functions the Constitution gets subverted.

MANINI CHATTERJEE: But even if you had an inkling that the government is illegal, you should not have supported it.

You asked for my personal opinion I have given you that¿ politically there are other considerations to be taken. You asked for my personal opinion, you did not ask for the Congress party’s decision to support Mulayam’s government. The party’s support or non-support is based on political considerations over and above this. In my answer, I am giving you the Constitutional basis of my stand. There can be no doubt, objection or opposition to this, if there is, I would like to invite them to challenge the basis of my stand. In your hearts you know that Mulayam Singh’s government has little Constitutional basis to continue. Then why should Article 356 not be imposed? That is a decision the party has to take and I am nobody as an individual minister to oppose that.

PAMELA PHILLIPOSE: Isn’t the problem the lack of credibility of the Congress party, given its various experiments with this Article.

Luckily, you cannot have Article 356 in the Central Government. It’s not an issue, I am talking about the underlying Constitutional principle. I am not talking about politics here. If you want to talk politics, we can talk politics, but that’s a separate issue. Which political party has credibility in this area? BJP tried this with Lalu, BJP supported Narendra Modi, and when we said we didn’t think this government should be in power in Gujarat, BJP said that was all politics. Let’s be very clear when we talk about credibility: it’s a common thread that runs through all parties. But we are talking about Mulayam Singh, and Constitutionally it would have been right.”

Given these troubling facts (the high number of criminal-politicians in every major political grouping, and the abuse of Article 356 irrespective of which party is in power), politicians who seek to adopt the high moral ground on these issues should think about how, by doing so, they set themselves up for the obvious charge of hypocrisy, or worse. Arguments hinging on “morality” don’t sound very persuasive when raised by people who turn a blind eye to moral concerns when it suits their interests.

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  • Dear Arun, They were not the actual issues referred to the Constitution Bench. They were formulated by the amicus curiae, and the Bench has sought the states’ responses to those issues.
    Secondly, I read the Express discussion with Kapil Sibal. I am still not convinced how he says Schedule X was violated in U.P. Even the Supreme Court has not said it in the Feb.14 Judgment.
    The Court said the Speaker ought to have decided the disqualification petition against 13 first before recognising the split and merger. This procedural flaw, according to the court, was basic, as it had a bearing on the legality of the split. Now, accoreding to his own analysis, till the Court decided the matter on Feb.14, there was no judicial determination on whether splits are a one-time affair, or a continuous phenomenon. So, if the Speaker chose the latter interpretation, (after all the first 13 and the latter 24 BSP MLAs came out within a reasonable span of just 10 days – will not dissent take time to crystallise?), he could not be faulted.
    Secondly, the Supreme Court did not accept the rebel MLAs plea that they held a split convention on August 26, 2003, a day before the 13 met the Governor, and invited the disqualification clause. Reason: The claim was not supported by any material. The materials that could have satisfied the court were newspaper clippings, a notice of the convention, or the minutes of the split convention etc. Now, one wonders, was it difficult to cook up all these if the splitters were serious to leave evidence for the court? The court agreed that every MLA wore two caps – one as a legislator and another as a party member. Still, the Bench insisted on proof of split in “original political party” as distinct from the legislature party, because the Bench did not want to leave the statutory words redundant. The Bench asked “is the so-called split in BSP comparable to the the Great Congress split in 1969 or the Congress-Trinamul split in West Bengal? No!”
    In my view the Bench was a bit naive in its understanding of Indian politics. A regional party like the BSP, which revolves around a personality like Mayawati, and her authoritarian style of leadership, would most likely witness expression of dissent in subdued form. In other words, secrecy and surprise are elements of splits in such parties. If it is open, noisy, and transparent, giving enough notice and publicity to the in-house opponents, leaving all the evidences for the court, there is fear of violence and intimidation
    over the dissidents, particularly, if the group of dissidents is testing the waters, sensing the degree of support from the would-be dissidents and the fence-sitters. Hence, the experience of Congress, or the birth of Trinamul from the Congress cannot be the basis for testing the character of splits in parties like the BSP.
    Lastly, I am amazed the at the level of ignorance among the lead and editorial writers who complimented the Election Commission for announcing the schedule, and thus preventing the Congress from going ahead with Art.356, even though these two cannot be linked at all, either in theory or in practice. They talked about Constitutional morality, (whatever they meant by that term, one never knows), and claimed using 356, after Elections were announced would be constitutionally immoral. Art.356 would be justified, if there are clear grounds, (as happened in Gujarat in 2002 riots, but it was not exercised)even if the elections schedule was announced. I think the “three wise men” in the E.C., as Mr.Harish Khare called them in The Hindu, are basking in the unexpected glory they find themselves in, thanks to their decision, and illogical linkage which the media sees between it and the use of Art.356.

  • Kapil Sibal makes the valid point that minority Governments should be allowed to continue in office till voted out through a no-confidence motion. In fact, this has been the consistent argument of Dr.Rajeev Dhavan, that asking the incumbent PM or CM to seek a vote of confidence, whenever the majority is in doubt, is not consistent with the Constitutional requirements.
    Therefore, we need to ask how this aberration has taken place in practice. Was it Dr.S.D.Sharma who started it all when Atal Behari Vajpayee was the PM for 13 days. No doubt, he ought not to have been invited to form the Government, as the non-BJP parties after the 1996 eletion results were in the process of coming together, and there was no hurry to extend invitation to Vajpayee. But having invited him, S.D. Sharma was probably embarrassed by the criticism he faced, and asked Vajpayee to seek a vote of confidence on his own. After all, Narasimha Rao’s was a minority Government to start with in 1991. The BJP had decided not to challenge its minority character at the outset, or even later for a few years till 1993 when the first no-confidence motion was moved against it. The confidence enjoyed by the minority Government was implicit by the absence of any challenge, to it. Unfortunately, the unhealthy precedent set by S.D.Sharma was followed by his successor, K.R.Narayanan also, and the Governors in the States. It is time, we put a full stop to this.

  • Dear Mr. Venkatesan,

    Thank you for your comments which provide, as usual, insightful details. Your first comment reminds me that I should read the full decision of the Supreme Court quickly and closely – I hope to do that at the earliest.

    Your second comment also provides food for thought about the way the legitimacy and viability of elected governments has been decided in recent years in India. James Manor, who has written some definitive pieces on the role of the Indian President over time, identifies 1989, and the beginning of President Venkataraman’s tenure as marking a new era for the institution in India, and your analysis is another reason why legal scholars need to focus on changes since that era began.