Stopping short of prescribing disqualification for tainted people becoming ministers, the Supreme Court today strongly advised Prime Minister and Chief Ministers not to induct in their ministry people against whom charges have been framed in criminal and corruption cases.
The apex court left it to the wisdom of the PM and CMs not to recommend such names to the President and Governor, observing that nation has reposed faith in them for "good governance".
Holding that the Prime Minister is the repository of constitutional trust, a five-judge Constitution bench headed by Chief Justice R M Lodha, hoped the PM would not induct such "unwarranted elements" in his ministry in national interest.
"Thus, while interpreting Article 75(1)(appointment of PM and Ministers), definitely a disqualification cannot be added. However, it can always be legitimately expected, regard being had to the role of a Minister in the Council of Ministers and keeping in view the sanctity of oath he takes, the PM, 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," it said.
"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," the bench said adding that it is wholly applicable also to the Chief Minister.
In its 123-page judgement, the court said that it cannot pass any direction on disqualification as "it would tantamount to crossing the boundaries of judicial review".
Expressing concern over prevalence of corruption at high places, the bench also comprising justices Dipak Misra, Madan B Lokur, Kurian Joseph and S A Bobde said repose of faith in the PM and CMs by people has expectations of good governance.
"A democratic republic polity hopes and aspires to be governed by a government which is run by the elected representatives who do not have any involvement in serious criminal offences or offences relating to corruption, casteism, societal problems, affecting the sovereignty of the nation," it said.
Legal experts said the verdict was "advisory" in nature and not binding.
The apex court said the PM has a great magnitude of constitutional responsibility and he must ensure that morality and good governance are not diminished in any manner.
"It is also expected that the Prime Minster 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," it said.
"The repose of faith in the Prime Minister by the entire nation under the Constitution has expectations of good governance which is carried on by Ministers of his choice. It is also expected that the persons who are chosen as Ministers do not have criminal antecedents, especially facing trial in respect of serious or heinous criminal offences or offences pertaining to corruption," it said.
Justice Misra, who wrote the judgement on behalf of Justice Lodha, himself and Justice Bobde, said in a democracy, people never intend to be governed by persons who have criminal antecedents.
In a separate but concurring verdict, Justice Lokur said that it is for the legislature to pass the law on restricting people with criminal antecedents to become ministers.
"Until then, we must trust the watchful eye of the people of the country that the elected representative of the people is worthy of being a legislator. Thereafter we must trust the wisdom of the Prime Minister and Parliament that the elected representative is worthy of being a Minister in the Central Government," he said.
Justice Joseph also said in his separate verdict that it is the "prophetic duty" of this Court to remind the key duty holders about their role in working of the Constitution.
"Hence, I am of the firm view, that the PM and CM of the State, who themselves have taken oath to bear true faith and allegiance to the Constitution and to discharge their duties faithfully and conscientiously, will be well advised to consider avoiding any person in the Council of Ministers, against whom charges have been framed by a criminal court in respect of offences involving moral turpitude and also offences specifically referred to in Chapter III of The Representation of the People Act, 1951," he said.
The provision deals with disqualification of membership to Parliament and state legislatures.
The apex court said framing of charges against a person is important and a person should not be allowed to be minister after that stage.
"Framing of charge in a trial has its own significance and consequence. Setting the criminal law into motion by lodging of an FIR or charge sheet being filed by the investigating agency is in the sphere of investigation. Framing of charge is a judicial act by an experienced judicial mind," the bench said.
It said that in a democracy, the citizens legitimately expect that the Government of the day would treat the public interest as primary one and any other interest secondary.
"The concept of good governance is not an Utopian conception or an abstraction. It has been the demand of the polity wherever democracy is nourished. The growth of democracy is dependent upon good governance in reality and the aspiration of the people basically is that the administration is carried out by people with responsibility with service orientation," Justice Misra said.
The court passed the order on a PIL seeking its direction restraining the Centre and State governments from appointing people with criminal background as ministers.
The PIL filed by Manoj Narula has challeged the inclusion of Lalu Prasad, Jai Prakash Yadav, M A A Fatmi, Mohd Taslimuddin and K Venkatapathy in the council of ministers in UPA I regime.