Under pressure from the opposition on the issue of tainted ministers, the UPA Government on Tuesday seriously disputed the existence of any "convention" requiring ministers to resign after being chargesheeted in a serious criminal/ corruption case.
"Convention can not be implied ... parliament has to say it…We can not assume it," Solicitor General GE Vahanvati told a three-Judge Bench headed by Chief Justice KG Balakrishnan.
"Conventions can not be raised as a question of law," he submitted before the Bench, also comprising Justice RV Raveendran and Justice DK Jain, which is hearing a PIL filed by one Manoj Narula on the issue.
The Solicitor General said since the matter had already been referred to a Constitution Bench let it be decided by the Constitution Bench. The court fixed August 14 to hear the matter.
He was responding to a question raised by Amicus Curiae Rakesh Dwivedi if there was any constitutional convention that persons charge sheeted for serious offences should quit the Cabinet. Vahanvati submitted that conventions play an important role where Constitution is not a written one.
Dwivedi opposed Vahanvati’s submissions pointing out that there had been several instances of politicians resigning after being indicted/convicted by inquiry commissions/courts.
Without naming Lalu Prasad, Dwivedi said a politician who resigned as Chief Minister after being chargesheeted in a corruption case later became a Union Minister and was continuing to hold the post. Despite the apex court refusing to stay his prosecution in a corruption case, Parkash Singh Badal became the Chief Minister of Punjab, he said.
The Chief Justice observed that mostly such resignations were due to political pressure and compulsions.
Justice Jain too observed the resignations were merely "call of conscience" which could not be called conventions. “How many politicians have resigned since Lal Bahadur Shastri resigned (as Railway Minister taking the moral responsibility of a rail accident)?” he sought to know.
Justice Raveendran said the question on convention should be rephrased so as to read - whether there is an implied Constitutional requirement for tainted ministers to resign.
The Centre has maintained that induction of Ministers in the Cabinet is the Prime Minister’s prerogative and that there is no provision in the Constitution debarring the entry of charge sheeted or tainted politicians. There was no judicially manageable standard to determine as to whom could be treated as "tainted", it further contended.
In his petition filed in 2005, Narula has sought quashing of the appointments of at least four ministers in Manmohan Singh’s Cabinet - Railway Minister Lalu Prasad, his RJD colleagues Mohammad Taslimmuddin, MA Fatmi and Jai Prakash Yadav on the ground that they were facing trial in several cases.
While referring the matter to a Constitution Bench, the court had said the important question of law involved was whether there was any prohibition under the oath of office on appointment of a person facing criminal charges as minister.
The court had directed the Centre to clarify why shouldn’t the court take into account the recommendations of the Vohra Committee Report on checking criminalisation of politics while deciding the petition. Vahanvati said the court has already accepted that the material on which the Vohra Committee Report was based could not be made public.
Among the nine issues framed by Dwivedi, important one was if the President/Governor should have “residuary power” to act on their discretion and refuse to act on the advice of the Prime Minister/Chief Minister to administer oath to a tainted ministers or drop him from the Cabinet.
Further, whether the oath of office subscribed to by President and the Prime Minister by necessary implication obliges them not to appoint a charge sheeted persons as minister and whether the apex court had power to enforce such an order on a writ petition.