While taking a very forthright, firm and final stand in dismissing a PIL seeking suspension of Aam Aadmi Party minister Satyendar Jain who is under judicial custody in a money laundering case, the Delhi High Court in an extremely courageous, commendable, cogent, composed and creditworthy judgment titled Dr Nand Kishore Garg vs Govt of NCT of Delhi and Ors in W.P.(C) 10207/2022 and cited in 2022 LiveLaw (Del) 617 that was pronounced as recently as on July 27, 2022 has observed quite pragmatically that it is for the Chief Minister to act in the best interest of the State and consider as to whether a person who has criminal background or has been charged with offences involving moral turpitude should be appointed and should be allowed to continue as a Minister or not.

A Division Bench comprising of Hon'ble Mr Chief Justice Satish Chandra Sharma and Hon'ble Justice Subramonium Prasad hastened to add that:
It is pertinent to note at this juncture that while it is not for the Court to issue directions to the Chief Minister, it is the duty of the Court to remind these key duty holders about their role with regard to uphold the tenets of our Constitution. The Chief Minister exercises his/her discretion in choosing the Members of Cabinet and to formulate a policy to appointment of Council of Ministers. Very rightly so!

At the outset, this extremely brief, brilliant, bold and balanced judgment authored by Hon'ble Mr Justice Subramonium Prasad for a Division Bench of the Delhi High Court comprising of Hon'ble Mr Chief Justice Satish Chandra Sharma and himself sets the ball rolling by first and foremost putting forth in para 1 that:
The instant writ petition under Article 226 and 227 of the Constitution of India has been filed for issuance of a writ, order or direction in the nature of Mandamus to Respondent No.2/Lieutenant Governor of Delhi for initiating appropriate proceedings for suspension of Health Minister of Delhi Sh. Satyender Jain, who has been in custody since 30.05.2022.

Needless to say, the Division Bench then states in para 2 that:
It is stated that Sh. Satyender Jain, who has been in custody since 30.05.2022, has been enjoying all the perks and privileges of a Cabinet Minister, despite facing allegations of serious financial irregularities, and that this is violative of Article 14 of the Constitution of India inasmuch as a Government Servant, who is in custody for more than 48 hours, is to be put under deemed suspension as per the practice which is being followed relating to the Public/Government Servants in terms of Rule 10 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 (hereinafter referred to as CCS (CCA) Rules, 1965). It is stated that Respondent No.3/Sh. Satyender Jain has also committed breach of oath and he cannot be permitted to hold the office as a Minister.

While stating the facts briefly, the Division Bench discloses in para 3 that, The facts, in brief, are that the Central Bureau of Investigation (CBI) registered an FIR in the month of August 2017 against the Health Minister of Delhi, Sh. Satyender Jain, on the charge of alleged possession of disproportionate assets. The Enforcement Directorate, thereafter, launched a probe into the allegation levelled against Sh. Satyender Jain based on an FIR registered by the CBI and arrested Sh. Satyender Jain on 30.05.2022 in an alleged money laundering case on the grounds of him partaking in hawala transactions in the year 2015-2016 with a Kolkata-based firm.

To put things in perspective, the Division Bench then envisages in para 4 that:
By way of the instant petition, the Petitioner has submitted that the elected representatives/Ministers fall under the definition of a Government servant and are they liable to be kept under deemed suspension in case their custody extends for more than 48 hours, akin to the process that applies to a Government servant defined under provision of Rule 10 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965.

It is submitted that continuance of Sh.Satyender Jain, despite him being under custody, violates Article 164 read with provisions of Schedule-III of the Constitution of India. It is further submitted that the Minister under custody cannot be permitted to access confidential information of the State departments and there is an urgent requirement to formulate strict guidelines pertaining to the resignation/suspension of the Minister in the event of arrest of a Minister. It is further submitted that the Minister in custody (for more than 48 hours) is not entitled to the perks and privileges, including the full salary.

As things stand, the Division Bench then states in para 5 that:
With the consent of both the parties, this case is being taken up for final disposal.

Be it noted, the Division Bench then while referring to relevant case law titled Manoj Narula vs. Union of India, (2014) 9 SCC 1, points out in para 15 that, The Bench of five Judges of the Apex Court decided the issue vide Judgement dated 27.08.2014 passed in Manoj Narula (supra). A perusal of the Judgement demonstrates that the contentions of the Petitioner herein are categorically contrary to what has been held in the said Judgement. In the said Judgment, the Supreme Court refrained from framing any guidelines on the said issue and held that it was not for the Court to issue any directions to the Prime Minister or Chief Minster, as the case may be, with regard to the manner in which they should exercise their power while selecting their colleagues in the Council of Ministers.

More forcefully, the Division Bench then points out further in para 16 that, Furthermore, the Apex Court, while considering the contention of the Petitioner therein as to whether an implied limitation could be read into the conditions that would lead to the disqualification of a Minister, observed that in the presence of categorical reasons for disqualification in Article 164(1B), another condition for disqualification could not be read into the same by the Court. The Supreme Court further noted that deeming a person against whom allegations of criminality have been alleged as a criminal, and thereby, robbing them of their appointment, would go against the basic principle of criminal jurisprudence, i.e. a person is deemed to be innocent until proven guilty.

Most significantly, what truly constitutes the cornerstone of this learned judgment is then summarized in para 17 wherein it is most clearly, cogently and convincingly pointed out by the Division Bench stating that:
Relying on the aforementioned observation of the Apex Court in Manoj Narula (supra), this Court is of the opinion that the Petitioner's reliance on the said Judgement is misplaced as nowhere does the Supreme Court exercise its jurisdiction to either frame guidelines for the disqualification of a Minister or read into Article 164 a condition for disqualification. This Court finds it necessary to reiterate that it is not for the Court to lay down or state who should or who should not be appointed as a legislator or who should be entitled to becoming a Minister in either the Central Government or the State Government. It is solely the prerogative of either the Prime Minister, or the Chief Minister, as the case may be who will act in the best interest of the State and will uphold the spirit of our Constitution.

While continuing in the same vein and referring to most relevant case law, the Division Bench then hastens to add in para 18 that:
The Division Bench of Kerala High Court in Kallara Sukumaran vs. Union of India & Others, (AIR) 1987 Ker 122, has also noted that it is the political wisdom of the Chief Minister to choose his cabinet colleagues, and the same does not command judicial tolerance or even demand judicial scrutiny. The relevant portion of the said judgement reads as under:

25. It is only on the advice of the Chief Minister that the other Ministers are, appointed by the Governor. The choice is, therefore, of the Chief Minister. In choosing the members of his Cabinet, the Chief Minister may be guided by several factors to formulate and pursue a common policy, to provide a cohesive and stable government and for an efficient administration of the State. He may consider the member's standing, his influence in the party, his ability to give valuable advice and to take the lead in the implementation of the avowed policies of the Government and also his utility in the debate and discussion that take place in the Legislative Assembly. In fact, there are no set patterns of conduct or rule which alone should guide the Chief Minister in the choice of his colleagues in the Cabinet and rightly therefore, the constitution has not in express terms prescribed the qualifications of the Ministers. The Chief Minister is answerable to the electorate and the members of the assembly and he makes a wrong choice of personnel of his cabinet at his peril. The political wisdom of the Chief Minister to choose his cabinet colleagues does not command judicial tolerance or even demand judicial scrutiny. The continuance of the Ministers in office is thus only at the pleasure of the Chief Minister, ―at his disposal.

While adding more to it, the Division Bench then deems it apposite to mention in para 19 that:
With regard to whether the breach of oath on the part of the allegedly erring Minister can warrant the interference of the Court under Article 226 of the Constitution, the same has been considered by the Kerala High Court in K.C. Chandy v. R. Balakrishna Pillai, AIR 1986 Ker 116, wherein it was observed as under:

9. Breach of oath requires a termination of the tenure of office. This power can be exercised by the appointing authority under the Constitution, and according to the procedure, if any, prescribed therein. The termination of that tenure is not the function of a Court; and it would not be appropriate to exercise jurisdiction under Art. 226 in such cases. Proceedings under Art. 226 in such cases do not lie. It was Jefferson who said: ―

Our peculiar security is in the possession of a written Constitution; let us not make it a blank paper by construction‖ (Government by Judiciary — Raoul Berger — p. 304).

10. The question as to whether there was breach of oaths of office and of secrecy committed by a Minister is outside judicial review under Art. 226 of the Constitution. It is to be decided in other appropriate forums; and in the case of the Minister in a State, it falls within the discretionary domain of the Chief Minister and/or the Governor. Breach of oath prescribed by the Constitution may, in certain circumstances, attract the penal provisions under the Penal Code, 1860. When the Criminal Law is set in motion, it is of course for the criminal Court to decide whether an offence has been committed or not. That is an independent remedy which does not affect the Constitutional power, of withdrawing the pleasure to continue in office, ingrained in Art. 164(1). As Raoul Berger refers in 'Government by Judiciary' at page 293: 'Judiciary was designed to police constitutional boundaries, not to exercise supra constitutional police making decisions'— (Hamilton).

There can be no gainsaying that the Division Bench then rightly observes in para 20 that:
A perusal of the above Judgment holds that whether a breach of oath fulfils a ground for disqualification of a Minister is not mentioned in Article 164 (1) of the Constitution of India, and it is not for the Court to direct the Governor of Chief Minister to remove a person who is committing said breach of oath. Therefore, breach of oath does not entail an automatic termination of the tenure, but requires an independent order by the appointing authority; a High Court under Article 226 is not competent to issue such orders terminating the appointment of a Minister of the State. The reliance placed by the Counsel for the Petitioner on M. Karunanidhi, (supra) is also irrelevant because the question which arose for consideration before the Court was whether a Chief Minister is a public servant or not within the ambit of the Indian Penal Code, 1860, or the Code of Criminal Procedure, 1973. In the instant case, the issue is whether Rule 10 of the CCS (CCA) Rules, 1965, would apply to a Minister and whether a Minister can be termed to be a government servant by virtue of being a public servant.

It is worth noting that the Division Bench then unambiguously states in para 22 that:
Clause 3 of the CCS (CCA) Rules, 1965, which is an extensive Clause covering a variety of government servants to whom the 1965 Rules are applicable, explicitly excludes from its ambit a Minister. A Minister cannot be said to a government servant as well, as the appointing authority of the Ministers, i.e. the Governor of the State, does not fall under Clause 2a of the CCS (CCA) Rules, 1965. Therefore, Rule 10 of the 1965 Rules, which stipulates that being arrested for a period of 48 hours or more entails suspension of the government servant, would not apply to a Minister.

Most remarkably, the Division Bench then sagaciously holds in para 23 that:
It is pertinent to note at this juncture that while it is not for the Court to issue directions to the Chief Minister, it is the duty of the Court to remind these key duty holders about their role with regard to uphold the tenets of our Constitution. The Chief Minister exercises his/her discretion in choosing the Members of Cabinet and to formulate a policy pertaining to appointment of Council of Ministers. The Council of Ministers has a collective responsibility to sustain and uphold integrity of the Constitution of India, and it is for the Chief Minister to act in the best interest of the State and consider as to whether a person who has criminal background and/or has been charged with offences involving moral turpitude should be appointed and should be allowed to continue as a Minister or not.

Most commendably, the Division Bench then in its collective wisdom deems it apt to hold in para 24 that:
Good governance is only in the hands of good people. Even though the Court cannot sit in judgement of what is good or bad, it certainly can remind constitutional functionaries to preserve, protect and promote the ethos of our Constitution. There is a presumption that the Chief Minister would be well advised and guided by such constitutional principles.

As Dr. B.R. Ambedkar, the father of the Indian Constitution, had stated during the Constituent Assembly Debates:
"…however, good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of Constitution does not depend wholly upon the nature of the Constitution."

Quite rightly and on a positive note, the Division Bench then observes in para 25 that:
This Court wholeheartedly agrees with the observations of Dr. B.R. Ambedkar, and hopes that the Chief Minister upholds the trust reposed in him that forms the foundation of a representative democracy while appointing persons to lead the people.

Finally, the Division Bench then concludes by holding in para 26 that:
With these observations, the instant writ petition is dismissed, along with pending application(s), if any.

To say the least, the Delhi High Court Division Bench comprising of Hon'ble Mr Chief Justice Satish Chandra Sharma and Hon'ble Justice Subramonium Prasad have been forthright in rightly, robustly and rationally clarifying that it is not in their ambit to direct removal of Satyendar Jain as Minister and it is the prerogative of the Chief Minister to act in this direction. It also most commendably made it indisputably clear that it is for the Chief Minister to consider whether to allow persons with criminal background to continue as Minister. We have already discussed this quite in detail as stated hereinabove! No denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh