Temporarily Debar Ministers From Holding Office Upon Being Sent To Judicial Custody – PIL Before SC [Read Petition]

The petition has been filed by Advocate Ashwini Kumar Upadhyay.

The PIL has been filed seeking directions to the Centre –

i) To ensure that the Minister, who is not only a public servant under Section 21 IPC and Section 2(c) of the Prevention of Corruption Act but also a Law Maker and takes constitutional oath under Schedule 3; shall be temporarily debarred from holding the office, after 2 days in judicial custody (like IAS, IPS, Judges and other public servants are suspended from their services);

ii) Alternatively, direct the Law Commission to examine election law of developed countries and prepare comprehensive report to maintain nobility and dignity of Ministers, Legislators, and Public Servants in spirit of Article 14;

iii) Direct Maharashtra Government to sack its Cabinet Minister Nawab Malik arrested on 23.2.2022 and who continues to be in judicial custody in connection with cases of black money, Benami properties, money laundering, and disproportionate assets, linked with Mafia Don Dawood Ibrahim;

iv) Direct Delhi Government to sack its Cabinet Minister Satyendra Jain arrested on 31.5.2022 and who continues to be in judicial custody in connection with black money, Benami properties, ghost companies, money laundering and disproportionate assets.

The Petitioner pleads that though Court has rejected the bail applications of both the Cabinet Ministers, they are still holding constitutional posts.

Further, the Petition states that the injury is large because a Minister is not only a public servant under Section 21 IPC and Section 2(c) of PCA but also a law maker, which is an honourable and noble post, which requires constitutional oath under Schedule 3. Therefore the plea says that Ministers like Nawab Malik and Satyendra Jain are still enjoying constitutional positions even while being in judicial custody for a long time, which is arbitrary and contrary to Article 14.

The Petitioner places reliance on a precedent of the Apex Court where it was held that the pendency of criminal cases may be considered a bar on appointment to important offices such as the CVC. [(2011) 4 SCC 1.]

The Petition states the various duties that a Minister has to discharge while being a protector for people's welfare.

Further, the Petitioner contends that the primary function of an MLA is law-making. The Constitution of India states that the MLAs can exercise their legislative powers on the State List and the Concurrent List. The State List contains subjects of importance to individual State alone, such as trade, commerce, development, irrigation and agriculture, while the Concurrent List contains items of importance to both the and the State Government such as succession, marriage, education, adoption, forests and so on.

The Petition additionally states that If we have to choose between fanatical devotion to the principle of equality and feeble allegiance to it, we would unhesitatingly prefer to err on the side of the former as against the latter. What the equality clause is intended to strike at are real and substantial disparities and arbitrary and capricious actions of the Executive and it would be contrary to the object and intendment of the equality clause to exalt delicate distinctions, shades of harshness & theoretical possibilities of prejudice into legislative inequality/executive discrimination.

The Petitioner also pleads that in the hindsight it can be assumed that an MP who has subscribed to the oath and duties and functions, it be oxymoron to ground realities.

The Petitioner also contends that MLA cannot develop sense of belonging to his Constituency when he is in jail. He hardly has any time to develop his sense of belonging to his constituency. The oath which obliges him to perform only as an item of discharge all their duties can be added in a wish list.

The Petition further states that there is a good reason why the Court must take steps to control the problem of criminalization of politics while referring to Election Commission in its Proposed Electoral Reforms-2004, the Law Commission in its 170^th and 244^th Reports (1999 & 2014), the Consultation Paper on Electoral Reforms issued by the National Commission to Review the Working of the Constitution headed by former Chief Justice of India Sh. M.N. Venkatachaliah (2002), the Second Administrative Reforms Commission (2009) and the Vohra Committee (1993), which draw attention to the severity of the problem and have suggested electoral reforms to stern the tide of criminals flowing into our polity.

However, despite the reports referred to above and the efforts of the Supreme Court, neither Parliament nor Government of India has taken serious action to tackle the problem, the Petitioner pleads.

Additionally, the Petitioner has stated that the percentage of candidates with criminal antecedents and their chances of winning have increased steadily over the years.

The Petitioner has further emphasized on the consequences of permitting criminals to contest elections and become legislators are extremely serious:

• During electoral process itself, not only do they deploy "enormous amounts of illegal money" to interfere with the outcome, they also intimidate voters and rival candidates. (ii) Thereafter, in our weak rule-of-law context, once they gain entry to our system of governance as legislators, they interfere with, and influence, the functioning of the government machinery in favour of themselves and members of their organization by corrupting government officers and, where that does not work, by using their contacts with Ministers to make threats of transfer and initiation of disciplinary proceedings. Some even become Ministers themselves, which only makes the situation worse. (iii) Legislators with criminal antecedents also attempt to subvert the administration of justice and attempt by hook or crook to prevent cases against themselves from being concluded and, where possible, to obtain acquittals. Long delays in disposal of cases against sitting MP's and MLA's and low conviction rates is testimony to their influence.

The Petitioner has pleaded that criminals should not be allowed to become law-givers as permitting them to become legislators would result in the breakdown of the rule of the law both in terms of the government machinery as well as the system of administration of justice.

Thus, the Petitioner prays that the Apex Court must take steps to deter criminals from becoming legislators also to uphold the rule of law inherent in Article 14.

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