Debating India

Political morality, law and precedents

Friday 29 April 2005

Going by normal standards of political morality, there would be no justification for Lalu Prasad Yadav, against whom charges have been framed in the Bihar fodder scam, remaining Railway Minister. These standards dictate that a Minister facing serious criminal charges should not continue in office. The process of criminal trial would indeed seem incompatible with the accountability and the position of a high public office holder who has sworn to uphold the law. There is in addition the real danger that should a person remain a Minister during the trial, the weight and power of his or her office could be used to intimidate witnesses, influence the prosecution, and generally subvert the trial. Yet it needs to be noted that these issues have been on the table since July 1997 when Mr. Prasad resigned as Chief Minister on being charged in the case, and there is no cause for any sudden political outrage. With the framing of charges, the trial has entered a more active and critical phase, but in substance it does not change the nature of the issues involved. A Minister facing charges and continuing in office will no doubt impair the credibility of the Government, but it is ultimately for the Prime Minister and the United Progressive Alliance to weigh that damage against the political costs of forcing his resignation, which in this case will be enormous.

The presumption of innocence unless convicted is the very foundation of the criminal justice system. While a charge sheet may carry a political taint, it is not a disqualification in the eyes of the law. Strong governments and strong Prime Ministers can take the high moral ground and drop Ministers the moment they are charged with serious offences, but coalition politics dictates compromises and accommodation of allies who are reluctant to conform to the same standards. In essence, it is a political decision. If one were to look for precedents, the National Democratic Alliance Government led by the Bharatiya Janata Party was quick to sacrifice the small fry but firm on retaining the top leaders, including Lal Krishna Advani, Murli Manohar Joshi, and Uma Bharti who were facing charges in the Babri Masjid demolition case. The BJP’s defence that the charges Mr. Advani and others faced related to the Ayodhya movement and were quite different from corruption cases is wholly unconvincing: if anything, the Babri Masjid demolition was a far more heinous offence that wrought incalculable damage to the nation. The Election Commission has suggested that the law should be amended to disqualify persons against whom serious charges have been framed from contesting elections to Parliament and State legislatures. Any such move, however, quite apart from offending the presumption of innocence, would also wreak havoc in a system that vests the prosecuting power in the hands of the political executive and lends itself to misuse against political opponents, as the experience in several States shows. The process of criminal prosecution must be freed from political control and the real danger of targeting political opponents with criminal charges must be eliminated before one can assert, even as an inviolable rule of political practice, that a person facing charges should not remain in office.

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