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.