The arrest of a serving chief minister on an alleged charge of corruption is a legal issue, a political issue and a Constitutional issue. It is also an issue that goes beyond the words of the Constitution; it touches upon Constitutional morality.
Let me clear the way of so-called “facts”. The allegations in the cases against chief ministers are that they received “bribes” in order to do favours to the bribe-giver(s). At the present time, all that can be said is ‘an allegation of corruption’ is not equal to ‘a finding of guilt’. The time-honoured legal principle is that ‘every person is presumed innocent until proven guilty’.
Let’s, therefore, start with the presumption of innocence (the legal aspect). A person is a member of a political party. The political party contests an election, its candidates win a majority of seats in the legislative assembly, the legislature party elects the person as leader, the governor swears in the person as the chief minister, the CM and his ministers assume office, and the new government is in place. The script is familiar and has been played out hundreds of times in the last 75 years. The script is in accordance with the Westminster principles (the political aspect) and the provisions of the Constitution (the Constitutional aspect).
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Unseating a CM
It is self-evident that a chief minister must be a free person to perform his duties. He must advise the governor; he must hold cabinet meetings; he must listen to the views and grievances of the people; he must speak and listen in the legislative assembly; he must vote on motions and Bills; and, above all, since our system of government is based on records or files, everything has to be in writing and signed. No un-free person can perform the functions and duties of a chief minister.
There are many ways to defeat and unseat a chief minister. The electoral way is to defeat a CM and his party at an election that will be held once in five years, or sooner. The parliamentary way is to pass a motion of no confidence in the Assembly or to reject a Finance Bill or an important motion on policy. In either case, the majority will prevail. Besides, political parties have invented wicked ways to unseat a chief minister. Operation Lotus is one such invention under which a certain number of legislators are persuaded to resign from the ruling party or ‘defect’ to another party, and reduce the ruling party to a minority in the Assembly. Defection entails disqualification under the Tenth Schedule; nevertheless, the Tenth Schedule is violated with impunity.
Destabilising a Government
Are there other ways to unseat a chief minister? I cannot find another way to do so, but there are cleverer men and women. They have discovered an apparently legal way to un-free a chief minister: register an FIR or ECIR against him, summon him for questioning, and arrest him. The CBI is somewhat circumspect but the ED is brazen. Once a chief minister is arrested, there is a clamour for his resignation or dismissal by the governor. It is argued that the chief minister, like any other accused, must go through the process of production before the Court, application for bail, police remand, judicial remand, appeals against orders, and finally an order from the Supreme Court granting or refusing bail. Meanwhile, the government is vulnerable. It teeters on the edge and, sooner than later, it will collapse. If an interim leader takes the place of the arrested chief minister, he may face the same threat of arrest. No political party will have the strength or the resilience to put up successive candidates for the post of chief minister. The immediate purpose of the allegations of corruption — to unseat a chief minister — is achieved.
All this is apparently legal. From the political angle, it may be outrageous; from the Constitutional angle, the matter is debatable; but my question has a larger dimension. Is the arrest and detention of a serving chief minister consistent with Constitutional morality in a country that has adopted the Westminster model of government? Can the Constitution be erased by the political powers of the day?
Protecting Parliamentary Democracy
Some countries realised the grave dangers of malicious political rivalries, obliging investigative agencies and conflicting judgements of courts (in the matter of bail). Hence, they incorporated a clause on immunity to the President or chief executive of the government during his term of office. In the cases of judges in India, the Supreme Court has ruled that no investigation may be conducted against a judge without the previous consent of the CJI or the CJ of the High Court, and there is an implied immunity.
What will happen if the roles are reversed? Suppose a state government charges the Prime Minister of committing an offence within its territorial jurisdiction and arrests him, and the magistrate remands the PM to police or judicial custody. The consequences will be nightmarish and catastrophic.
Absent an immunity clause, should the Courts read into the Constitution an implied immunity from arrest to a Prime Minister and a Chief Minister as long as he enjoyed the confidence (majority support) in the Lok Sabha or Legislative Assembly? That is the real issue. The answer will determine whether the Westminster principles of parliamentary democracy will survive and Constitutional morality will prevail in India.
The arrest of a serving chief minister on an alleged charge of corruption is a legal issue, a political issue and a Constitutional issue. It is also an issue that goes beyond the words of the Constitution; it touches upon Constitutional morality.
Let me clear the way of so-called “facts”. The allegations in the cases against chief ministers are that they received “bribes” in order to do favours to the bribe-giver(s). At the present time, all that can be said is ‘an allegation of corruption’ is not equal to ‘a finding of guilt’. The time-honoured legal principle is that ‘every person is presumed innocent until proven guilty’.
Let’s, therefore, start with the presumption of innocence (the legal aspect). A person is a member of a political party. The political party contests an election, its candidates win a majority of seats in the legislative assembly, the legislature party elects the person as leader, the governor swears in the person as the chief minister, the CM and his ministers assume office, and the new government is in place. The script is familiar and has been played out hundreds of times in the last 75 years. The script is in accordance with the Westminster principles (the political aspect) and the provisions of the Constitution (the Constitutional aspect).
Unseating a CM
It is self-evident that a chief minister must be a free person to perform his duties. He must advise the governor; he must hold cabinet meetings; he must listen to the views and grievances of the people; he must speak and listen in the legislative assembly; he must vote on motions and Bills; and, above all, since our system of government is based on records or files, everything has to be in writing and signed. No un-free person can perform the functions and duties of a chief minister.
There are many ways to defeat and unseat a chief minister. The electoral way is to defeat a CM and his party at an election that will be held once in five years, or sooner. The parliamentary way is to pass a motion of no confidence in the Assembly or to reject a Finance Bill or an important motion on policy. In either case, the majority will prevail. Besides, political parties have invented wicked ways to unseat a chief minister. Operation Lotus is one such invention under which a certain number of legislators are persuaded to resign from the ruling party or ‘defect’ to another party, and reduce the ruling party to a minority in the Assembly. Defection entails disqualification under the Tenth Schedule; nevertheless, the Tenth Schedule is violated with impunity.
Destabilising a Government
Are there other ways to unseat a chief minister? I cannot find another way to do so, but there are cleverer men and women. They have discovered an apparently legal way to un-free a chief minister: register an FIR or ECIR against him, summon him for questioning, and arrest him. The CBI is somewhat circumspect but the ED is brazen. Once a chief minister is arrested, there is a clamour for his resignation or dismissal by the governor. It is argued that the chief minister, like any other accused, must go through the process of production before the Court, application for bail, police remand, judicial remand, appeals against orders, and finally an order from the Supreme Court granting or refusing bail. Meanwhile, the government is vulnerable. It teeters on the edge and, sooner than later, it will collapse. If an interim leader takes the place of the arrested chief minister, he may face the same threat of arrest. No political party will have the strength or the resilience to put up successive candidates for the post of chief minister. The immediate purpose of the allegations of corruption — to unseat a chief minister — is achieved.
All this is apparently legal. From the political angle, it may be outrageous; from the Constitutional angle, the matter is debatable; but my question has a larger dimension. Is the arrest and detention of a serving chief minister consistent with Constitutional morality in a country that has adopted the Westminster model of government? Can the Constitution be erased by the political powers of the day?
Protecting Parliamentary Democracy
Some countries realised the grave dangers of malicious political rivalries, obliging investigative agencies and conflicting judgements of courts (in the matter of bail). Hence, they incorporated a clause on immunity to the President or chief executive of the government during his term of office. In the cases of judges in India, the Supreme Court has ruled that no investigation may be conducted against a judge without the previous consent of the CJI or the CJ of the High Court, and there is an implied immunity.
What will happen if the roles are reversed? Suppose a state government charges the Prime Minister of committing an offence within its territorial jurisdiction and arrests him, and the magistrate remands the PM to police or judicial custody. The consequences will be nightmarish and catastrophic.
Absent an immunity clause, should the Courts read into the Constitution an implied immunity from arrest to a Prime Minister and a Chief Minister as long as he enjoyed the confidence (majority support) in the Lok Sabha or Legislative Assembly? That is the real issue. The answer will determine whether the Westminster principles of parliamentary democracy will survive and Constitutional morality will prevail in India.
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