Let Spirit Of Law, Not Of People Prevail

Updated: Sep 28 2003, 05:30am hrs
On September 21, 2001, in a historic judgement, the Supreme Court declared, the Constitution prevails over the will of the people as expressed through the majority party. The will of the people as expressed through the majority party prevails only if it is in accord with the Constitution.

Contrast these words with the words of Prime Minister AB Vajpayee. Vajpayee told Parliament, neither the Constitution nor law disqualifies a minister from holding office because of charges filed by the police or charges framed by a court.

Both are correct. The Supreme Court was dealing with the case of a convicted chief minister (J Jayalalithaa). Vajpayee was defending chargesheeted ministers (LK Advani and MM Joshi).

The difference is that while the apex court was drawing a tight circle of constitutional and political correctness, Vajpayee was experimenting with stretching the limits of political expediency. While the court was laying down a principle for observance of rules of good governance in the future, Vajpayee was laying down a proposition that condoned in advance the breach of rules of good governance. While the apex court was firmly re-drawing an old Lakshman rekha, Vajpayee was stealthily obliterating time-honoured rekhas. I wonder how large the original Lakshman rekha was. Lakshman drew a circle around Sita and forbade her to cross the line. That line is a much-used and abused metaphor in many walks of life, but nowhere more than in politics.

In the past, there have been resignations on matters of conscience (John Matthai, RK Shanmugham Chetty). Today, a minister will support a Bill in the Cabinet and his party will direct him to vote against it (or at least speak against the Bill) in Parliament (eg TR Baalu on the proposed Bill to prohibit cow slaughter). He probably does not care whether he or his party is for or against the Bill.

The high watermark on resignations was the case of Lal Bahadur Shastri. He resigned because an express train derailed and plunged into a river at Ariyalur in Tamil Nadu. Today, he would be regarded as an anachronism. Resignations on matters of conscience or upon owning moral responsibility are of a different kind. The men and women who did so also belonged to a different breed. We are now faced with a different kind of problem, the problem arising out of the interplay of politics and law.

A person convicted for certain offences or convicted for two years or more cannot stand as a candidate in an election to a state legislature or Parliament. The law says so. But the law does not say, in so many words, that such a person cannot be appointed as a minister or chief minister. All that the Constitution says is that the chief minister shall be appointed by the governor and shall hold office during the pleasure of the governor.

Jayalalitha decided to test the limits of political correctness. She argued that she had been chosen as leader by a majority of the members of the legislature, she was appointed by the governor, and that she was entitled to hold office during the pleasure of the governor, and the courts better stay away and not enter the political thicket. Justice Bharucha rejected her contention and held, it is permissible for the court to read limitations into the Constitution based on its language and scheme and its basic structure.

Dozens of men and women, who have been charged by competent courts of committing heinous crimes and are facing trial, adorn our legislatures and Parliament. A charge framed by a court follows an FIR or complaint, investigation, submission of a chargesheet and inquiry, and it is the last step before trial. In some cases, a fact-finding inquiry to decide whether the criminal law should be set in motion is entrusted to a high-powered commission of inquiry.

Whether there is a fact-finding inquiry or there is an investigation into an FIR or complaint, the dark shadow of suspicion falls on the accused. If he is a minister, he should resign. That is how the Lakshman rekha should be drawn in a mature democracy.

In our country, ministers have clung to office even when commissions of inquiry were probing their conduct. A current example is George Fernandes. Ministers have continued in high office after FIRs or complaints were registered against them. Even after some of these cases ripened into chargesheets, ministers have remained in office. Now, we have the spectacle of ministers continuing to occupy high offices even when a criminal trial is under way. A little-known example is the case of Ramasubba Reddy, who is accused of offences including section 302 (murder) of IPC. He continues as a minister in Chandrababu Naidus government in Andhra Pradesh.

The case of Murli Manohar Joshi is a test case for Vajpayee. The Prime Minister has not yet revealed his mind. The deputy prime minister, sadly, has spoken his mind. According to him, there is no need for Joshi to resign. So, if Advani had been charged, he would not have resigned. At least we know here Advani stands on issues of political correctness.

Will Vajpayee draw his Lakshman rekha to allow Joshi to stand inside his charmed circle or will he draw it tightly and ask Joshi to face the charges and exonerate himself before returning to government Will he go by the letter of the Constitution or will he perceive the spirit behind the written words Will he take shelter behind the dubious theory of will of the people or will he bow down to the will of the Constitution

In the Jayalalithaa case, Justice Brajesh Kumar observed, it is no doubt true that even in a written Constitution it is not possible to provide each and every detail. Practices and conventions do develop for certain matters. This is how democracy becomes workable.

Vajpayee should weigh those words before he draws his Lakshman rekha. Lord Ram is watching.

(The author is a former Union finance minister)