Supreme Court: Deciding on ministers facing criminal charges PM's responsibility - Livemint

Noting that the Prime Minister’s advice to the President is the final word, the judgement said, “In a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility...”. Photo: Mint

New Delhi: The Prime Minister’s powers to choose members of his cabinet cannot be restricted, the Supreme Court ruled on Wednesday but added the “constitutional expectation” is that the head of government will keep out people with criminal backgrounds from his council of ministers.

In a landmark ruling on the legality of people with criminal antecedents being appointed as ministers, a five-judge constitutional bench, headed by chief justice R.M. Lodha , said, “It is also expected that the Prime Minister should act in the interest of the national polity of the nation-state.”

“He has to bear in mind that unwarranted elements or persons who are facing charge in certain category of offences may thwart or hinder the canons of constitutional morality or principles of good governance and eventually diminish the constitutional trust.”

Drawing a line between executive discretion and judicial review, the verdict, written by judge Dipak Misra , emphasized the constitutional trust that is held by the office of the Prime Minister, as also the principle of constitutional responsibility.

The judges said “...it can always be legitimately expected… 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. We say nothing more, nothing less.”

Ministers of the central government are appointed by the President on the advice of the Prime Minister under Article 75(1) of the Constitution. The Prime Minister’s advice is binding on the President.

The case originated as a public interest litigation against the appointment of certain ministers to the cabinet, and was referred to a larger bench on a specific point about the “legality of persons with criminal background and/or charged with offences involving moral turpitude being appointed as ministers in central and state governments”.

Noting that the Prime Minister’s advice to the President is final, the judgement said, “In a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility...”

The 123-page judgement noted that by reposing “immense trust in the Prime Minister”, the framers of the Constitution left many things unsaid. It also considered that “criminal antecedent” was too vague a phrase.

Indian criminal law holds a person innocent until proven guilty.

The opposition Congress party seized upon the judgement to single out Prime Minister Narendra Modi for criticism.

“The observation puts the onus on the Prime Minister to explain why there are 14 cabinet ministers with criminal charges against them...we need to know which direction his moral compass tilts,” Congress spokesperson Rajeev Gowda told reporters.

Asked if Congress party would also ask its chief ministers to remove ministers who have criminal charges against them, Gowda said: “The Prime Minister should set an example... This is an observation for every government and the party will make sure that every chief minister of our party pays attention to it.”

The five-judge bench headed by Lodha comprised justices Misra, Madan B. Lokur , Kurian Joseph and S.A. Bobde .

Anuja contributed to this report.