Can the President or a Governor refuse to administer oath of office and secrecy to a tainted person as a minister?
The Supreme Court on Monday asked the Centre and state governments to articulate within four weeks their response to the controversial issue arising out of a PIL filed by one Manoj Narula in 2005. He has challenged induction of MPs with criminal antecedents as ministers in the Union Cabinet.
After studying the affidavits filed by the Centre and some of the states, Senior Advocate Rakesh Dwivedi, who is Amicus Curiae in the case, has formulated nine questions to be considered by the court. One of the questions was if the President or a Governor has a residuary power under the Constitution to refuse to administer oath of office and secrecy as a minister to a tainted person.
In other words, whether the oath of office subscribed to by the President and Prime Minister by necessary implication oblige them not to appoint chargesheeted persons as ministers.
Further, whether Prime Minister and Chief Ministers’ discretion to form cabinet prevented courts from emphasizing that fitness to office and eliminating those charged with crimes amounting to moral turpitude be not appointed as minister in interest of democracy and on account of oath to do right to all manner people.
The petitioner had contended that persons with dubious track record were being frequently inducted in the government leading to criminalisation of politics as well as council of ministers.
The Bench also asked Solicitor General G E Vahanvati to take instruction from the government whether it could file in a sealed cover the recommendations of the N N Vohra Committee that went into the issue of criminalisation of politics.
The court wanted to know if it could take into account Vohra Committee’s findings in deciding the matter.
The UPA Government has been maintaining that there could not be any judicially manageable standards for determining who can be treated as tainted. It said that mere accusation of having committed an offence would not disqualify a person from being chosen as MP. "...Consequently, there is no legal impediment in appointment of such a MP as Minister for the union," The Centre said.
Other questions included whether laying down of parameters on the issue amounted to interfering with the Parliamentary perogrative and presumption of innocence attaching to the accused in trials has any relevance to fitness for office of minister or other offices under the Constitution.
Further they have to dwell on the provision of the Representation of the People Act prescribing the qualification and disqualification only for becoming member of Houses or they have any relevance as threshold and final entitlement to be a minister without reference to criminal charges.
Dwivedi also raised a question whether there exists a Constitutional convention that a minister charged with commission of serious offence by a court of law should resign his office.