Coming straight to the point, it is immensely satisfying to note that just recently in a landmark judgment against the growing criminalization of politics, the Supreme Court on August 27, 2014 ruled very categorically that as the Constitution reposed great trust in the Prime Minister, he was expected not to appoint a person as minister if a trial court has framed charges against him in a serious criminal or corruption case. Very rightly so! There can be no disputing this!

When a common man is barred from acquiring any government job whether it is being an officer in army or a clerk or even a soldier or a judge or any other post like a peon even though someone may have maliciously named him/her to spoil his/her career then why are politicians involved in heinous crimes like murder, rape, dacoity, terrorism etc allowed to become ministers?

Why this glaring dubious double standards? In fact, not just ministers even an ordinary MP or MLA having criminal cases pending against him/her must be barred from entering Parliament / Assemblies if we really want to stop the growing criminalization of politics just like an ordinary person is stopped from becoming a judge or officer or soldier or clerk or even a peon or any other government job and is given entry only after strict police verification? Why different parameters for politicians and common person?

Why should dacoits, rapists and murderers and worst of all even terrorists be allowed to enter Parliament which is the highest temple of democracy or even our State Assemblies? Why is it that a dacoit like late Phoolan Devi barred from becoming an officer or a clerk or a soldier or a peon but she has been vested with all the right to fight elections even when in jail and become an MP or a MLA and participate fully in all the law making process and become even a minister and decide what kind of law our country should have? Why is it that a person is not allowed to vote while in jail but the same person can contest from jail?

Not surprising that criminals are entering politics and we see how resolutions are passed in favour of terrorists and hostile nations like Pakistan and ceasefire is especially declared for them even as they continue to slaughter our soldiers and take away their heads yet our politicians plead talks, ceasefire and mercy for them! Not stopping here, Pakistani army invaders like former army chief Gen Pervez Musharraf who masterminded Kargil war in which we lost thousands of our soldiers and who entered deep inside Indian territory as he himself admitted about 13-14 km inside our territory to personally supervise slaughtering of our Indian soldiers like Captain Saurav Kalia and 5 soldiers of 4 Jat Regiment after torturing them non-stop for about a month and maiming all their crucial body parts like nose, eyes, ears, private parts and despite all this our politicians of most of the national parties accorded a red carpet welcome to him! For what? Ask our politicians! I guess for sparing us even after catching India by the neck as Musharraf himself confesses!

Anyway, coming back to the main subject, Justice Kurian Joseph while concurring with the majority landmark judgment penned by Justice Dipak Mishra for a five-judge Constitution bench posed a question:
The simple question is – whether a person who has come in conflict with law, and in particular with law on offences involving moral turpitude... would be in a position to conscientiously and faithfully discharge his duties as minister and that too, without any fear or favour.

The Supreme Court came down heavily on politicians who all rush in one go to take refuge behind the famous dictum which advocates innocent till proven guilty. If a common person can be barred from becoming even a peon or a soldier even if somebody falsely implicates him/her and has not been pronounced guilty by a competent court then why should politicians be exempted from everything?

I note with deep appreciation that the Apex Court while reflecting the people's mounting concern over growing criminalization of politics minced no words in stating unambiguously that, It can always be legitimately expected, regard being had to the role of a minister and keeping in view the sanctity of oath he takes, the Prime Minister, while living up to the trust reposed in him, would consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a minister in the council of ministers.

Congress's Rashid Alvi lamented that:
Indirectly, the Supreme Court has advised the PM to drop all these 14-15 ministers who have criminal backgrounds. However, the unpalatable truth is : All parties are united that under no circumstances should politicians be treated on par with common person and barred from entering Parliament or Assembly on being charge sheeted by the police. This is the real rub!

Let me point out here that in this very landmark case, the 5-Judge Constitution bench of CJI RM Lodha and Justices Dipak Misra, Madan B Lokur, Kurian Joseph and Sharad A Bobde also pointed out that:
That is what the Constitution suggests and that is the constitutional expectation from the PM. Rest has to be left to the wisdom of the Prime Minister. We say nothing more, nothing less. Presently, a person convicted in a criminal or corruption case and sentenced to more than two years' jail term is disqualified from being included in the council of ministers chosen by the PM or the chief ministers. The Apex Court said the ethos of the Constitution expected the PM and the CMs not to include persons in their council of ministers if a trial court has framed charges against them.

While craving my readers indulgence, let me point out here that the bench of Apex Court which gave this landmark judgment was deciding on a PIL filed by Manoj Narula, who had highlighted appointment of ministers who had serious criminal and corruption charges pending against them. It must be noted here that the Apex Court took full precautions to ensure that it is not accused of judicial overreach and even while listing the dos and don'ts which would act as suggestions for the PM and the CMs in selecting ministers refused to prescribe this dynamic interpretation to the constitutional ethos as constitutional disqualification for appointment of a minster.

Justice Kurian Joseph referred to the oath taken by a Union minister under the Constitution's Third Schedule, by which he/she swears to bear true faith and allegiance to the Constitution, uphold sovereignty and integrity of India, faithfully and conscientiously discharge duties as minister and do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection and ill-will. Justice Joseph while referring to those against whom charges have been framed in cases involving serious offences minced no words in stating and questioning that, No quarrel, under criminal jurisprudence, a person is presumed to be innocent until he is convicted. But, is there not a stage when a person is presumed to be culpable and hence called upon to face trial, in the court framing charges?

Justice Joseph also posed a few thought provoking questions : Is there not a cloud on his innocence at that stage? Is it not a stage where his integrity is questioned? If so, is it not a stage where the person has come in conflict with law, and if so, is it desirable in a country governed by rule of law to entrust the executive power with such a person who is already in conflict with law?

Personally speaking, I felt very elated to read in 'The Times Of India' newspaper dated August 29, 2014 a news column with the heading Make selection norms for judges, mins same wherein it was pointed out on page 8 that, The Supreme Court has made it amply clear that the yardstick followed in appointments in judiciary and the civil services of not inducting persons with doubtful integrity should also be applied while appointing ministers.

The apex court raised questions on how people with criminal background against whom charges have been framed are made ministers at the Centre and in the states.

Will any reasonably prudent master leave the keys of his chest with a servant whose integrity is doubted?
Justice Kurian Joseph asked. It may not be altogether irrelevant to note that a person even of doubtful integrity is not appointed in the important organ of the State which interprets law and administers justice, then why to speak of questioned integrity! What to say more, a candidate involved in any criminal case and facing trial, is not appointed in any civil service because of the alleged criminal antecedents until acquitted, he said. Justice Kurien was part of the five-judge constitution bench which had, on Wednesday, strongly advised the Prime Minister and chief ministers not to induct in their cabinets people against whom charges had been framed in criminal and corruption cases.

In his judgment, the apex court left it to the wisdom of the PM and CMs not to recommend such names to the President and governors, observing that the nation had reposed faith in them for good governance. Writing a separate but concurring judgment, Justice Kurien also said that it was the prophetic duty of this court to remind the key duty holders about their role in the Constitution's working. The provisions deal with disqualification of membership to Parliament and state legislatures.

I will go a step ahead and at the risk of repetition again advocate strongly that just like for acquiring any government job whether of an officer or a clerk or a soldier or even a peon, there is a proper police verification and even if someone falsely implicates you, you are barred from becoming a judge or officer or getting any other government job, similar very strict parameters must apply for politicians also! Why should a dacoit or rapist or any other criminal be allowed to contest even from jail and enter Parliament?

In fact there should be the strictest parameters for them as they have all the power in their hands and can shunt out IAS, IPS and all government servants at their whims and fancies and as we see also happening when an honest bureaucrats gets 10 transfers in 5 days and so on!

Our whole society will come on track if politicians with criminal background are stopped permanently from entering politics and we will stop seeing criminals killing openly and terrorists being invited for talks and dialogues with our senior bureaucrats and politicians and ceasefire being declared for them which they and hostile nations like Pakistan always exploit for killing innocents!

We have also seen for ourselves how many times politicians even after being elected as MP or MLA misbehave inside Parliament as we saw some time back, try to justify heinous crimes like rape and say that, As long as earth exists, rape cannot be finished. Some go ahead and call their party workers to rape and kill those affiliated with opposition parties as we saw recently in West Bengal! Yet they are allowed to continue as MP and MLA and decide what type of law should govern us!

Finally, on a concluding note, let me cite here the enlightening editorial with the heading 'Criminal Netas' mentioned in 'The Times Of India' newspaper dated August 28, 2014 which rightly points out how Supreme Court exerts moral pressure on PM and CMs to purge history sheeters from ministries and urges Supreme Court to rethink its rejection of fast-track courts for Parliamentarians as our PM Narendra Modi very rightly advocated.

The editorial says that:
The Supreme Court has been at the vanguard of electoral reform since its 1978 judgment which empowered the Election Commission to freely conduct elections. Now, following a series of judgments in 1996, 2002 and 2013 that brought greater transparency into the public domain around elected politicians and their record, it has finally drawn a line under these efforts over criminal netas being appointed as ministers.

A five-member constitution bench stopped short of disqualifying such ministers, leaving it to the wisdom of the PM and various CMs, even as it outlined the constitutional expectation against such appointments and its own displeasure of them. While in legal and constitutional terms, it may have lobbed the ministerial ball into the hands of elected heads of government, the apex court made a strong moral argument. Since the PM and CMs are trustees of the Constitution, constitutional morality requires that those in conflict with law and involved in offences of moral turpitude and corruption should not be allowed to discharge duty as ministers.

The pressure will now be on PM Modi to act. A study of election affidavits filed by ministers themselves shows that 13 (30%) of Modi's ministers have criminal cases against them and 8 (18%) have serious criminal cases including those related to attempt to murder, communal disharmony, kidnapping and electoral violations. Both before being elected PM and after, Modi had promised to end criminalization of politics, asking the Supreme Court to complete pending trials against MPs within a year.

While the Supreme Court declined earlier this month to treat cases against parliamentarians as a separate category, the moral pressure now to act against such mantris will increase. The 16th Lok Sabha has 186 MPs with criminal charges (34%), up from 24% in 2004 and 30% in 2009. While many are serious criminal cases, there is something to the argument that many cases are also political in nature. In that sense, the PM was right that fast-track courts to decide one way or the other are the answer. This will avoid frivolous and motivated FIRs permanently hanging like a Damocles sword over an otherwise honest MP. The Supreme Court needs to rethink its rejection of fast-track courts for parliamentarians, while also working with the executive to speed up the legal system in general.

My humble suggestion here is that fast-track courts should be constituted not just for parliamentarians but all such persons whose career is at stake and who want to secure government job but due to enmity some person registers a false case due to which all doors of employment are closed and he/she roams as jobless due to no fault of theirs! After all, we are a democratic country where everyone ought to be treated as equal then why special exemptions and rules for politicians or ministers alone?

In any case, the landmark judgment of Supreme Court is a welcome beginning and it is high time and now not just ministers having criminal or corruption cases should be barred but even all politicians with tainted record should be barred from entering Assembly and Parliament by parties themselves! A tall order but certainly not impossible!

Still if parties fail to act now, it is the bounden duty of Apex Court led by newly appointed CJI NV Ramana to step in and fill the gap as it has done always and not allow politicians to have the last laugh always as we see usually! Parliament cannot be allowed to become a safe haven for criminals and politicians with criminal antecedents!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut -250001, UP.