Tainted ministers

Published November 15, 2014
The writer is an author and a lawyer based in Mumbai.
The writer is an author and a lawyer based in Mumbai.

“THE most elementary qualification demanded of a minister is honesty. It is, however, necessary not only that he should possess this qualification but also that he should appear to possess it.”

But Sir Ivor Jennings did not formulate the sanctions in the event of the breach of this rule. Constitutions as well as electoral laws contain disqualification clauses. The pertinent one unseats a member of parliament if he is convicted of a grave offence which entails imprisonment for a specified term. It doesn’t, however, cover the appearance of honesty. It is lost once a minister comes under a cloud.

So grave has this menace become in India that the Supreme Court took the unprecedented step of charting into a territory not regulated by law. It did so in a public interest litigation.

The court concluded that while the disqualification provision in the constitution cannot be stretched by the court “it can always be legitimately expected … that 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 of the Council of Ministers. This is what the constitution suggests and that is the constitutional expectation from the prime minister. Rest has to be left to the wisdom of the prime minister.”

A little over two months after this ruling was given, Prime Minister Narendra Modi cocked a snook at it. On Nov 9, he reshuffled his cabinet, sworn in on May 16, to induct a whole lot of what are called ‘tainted ministers’. An NGO, the Association for Democratic Reforms, published an objective and thorough exposure of the impropriety.


Many Indian ministers have criminal charges against them.


The number of tainted ministers rose from 12 to 20 in the cabinet’s expansion. About 31pc of the members of the Council of Ministers have criminal charges pending against them. Eight out of the 21 new inductees face criminal cases.

One minister faces 21 charges. Another faces 11. About 92pc of the ministers are crorepatis. Three cases have aroused particular interest.

One minister of state is a top loan defaulter of the Central Bank of India to the tune of Indian Rs3.17 billion.

Another’s wealth inexplicably increased in a little over three months after he became minister. His statutory declaration of assets at the time he became minister was Rs98.8 million crores. It rose to Rs203.5m at the time of the reshuffle. The third’s case was even more curious. He had undervalued the loss due to a theft at his house at Rs50,000. The police recovered Rs12.5m from the thieves.

In the past, tainted ministers have served in cabinets at the centre and in the states. But Modi has put all of them in the shade. His action flouts the pledges made during the election campaign to ensure probity in public life.

It has invited ridicule in view of his campaign for cleanliness in public places. It reeks of an arrogant disdain for the norms of rectitude.

That should occasion no surprise. His confident Amit Shah, who he anointed as the BJP’s president, himself faces criminal cases of a grave nature.

Is the constitution powerless in such cases? The president has every right to refuse to appoint a tainted person as minister and also to sack him, regardless of the wishes of the prime minister. But a president who embarks on such a course incurs risks which might bring his office in political contest. What if the prime minister resigns, calls for dissolution of the Lok Sabha and goes to the polls making the president’s action an issue?

India’s election and law commissions have suggested some amendments. For example, a candidate should be disqualified if a court frames charges against him for an offence which entails five years’ imprisonment. No government took any notice.

Addressing the constituent assembly, B.R. Ambedkar asked: “Is it not desirable, is it not sufficient that we should trust the prime minister, the legislature and the public at large watching the actions of the ministers and the actions of the legislature to see that no such infamous thing is done by either of them?

“I think this is a case which may eminently be left to the good sense of the prime minister and to the good sense of the legislature with the general public holding a watching brief upon them.”

That hope has been belied. But the question continues to nag one. Was it right of a five-member constitution bench of the Supreme Court to go into a question which is manifestly outside the constitution at great expense of the court’s precious time?

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, November 15th , 2014

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