PM CM Minister resignation (Constitution Amendment Bill 130)

 

Constituent Assembly Debates

Dr. B.R. Ambedkar in the Constituent Assembly on 25.11.1949

…. Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave? Will they uphold constitutional methods of achieving their purposes or will they prefer revolutionary methods of achieving them? If they adopt the revolutionary methods, however good the Constitution may be, it requires no prophet to say that it will fail. It is, therefore, futile to pass any judgment upon the Constitution without reference to the part which the people and their parties are likely to play

Dr. Rajendra Prasad on 26.11.1949:-

―Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it. It is a trite saying that a country can have only the Government it deserves. Our Constitution has provisions in it which appear to some to be objectionable from one point or another. We must admit that the defects are inherent in the situation in the country and the people at large. If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them.

 

 

Supreme Court

In Manoj Narula versus Union of India  , judgement in 2014, seeking disqualification of MPs and MLAs as Ministers, the top court rightly asked, “whether a person who has come in conflict with law would be in a position to conscientiously discharge his functions as Minister when his integrity is questioned and whether a person with doubtful integrity can be given the responsibility.” But stopped short by stating that it was for Parliament to make the change.

 

Supreme Court in the most recent Public Interest Foundation verdict in 2018 talking tall on corruption from the pulpit and leaving it to the ‘wisdom of Parliament’ on prohibiting charge-sheeted candidates from even contesting in elections. Glorious opportunity missed. Is there then a legal argument for the resignation of the CM?

Facts

Resigned Union

1 Lal Bahadur Shashtri Minister Railways

2 V P Singh   Black Money in foreign Banks

3 T T Krishnamchari  Finance Minister

4 Krishna Menon  China War

5 Keshav Dev Malviya  Eng

CM/Ministers  not resigned

1 Arvind Kejriwal Delhi CM Liquor scam 

2 V Senthali  TN Minister   Cash for Post 

3 Nawab Mallik Maharashtra  Minister Money Laundering  

CM Resigned

1 Lalu Yadav  Bihar CM  Fodder scam

2 Jayalalith TN   Corruption

3 Chandra Babu Naidu  Andhra Pradesh  Skill Development Corporation

4O P Chautala  Haryana  Teacher Scam

5 Madhu Koda Jharkhand Mining Scam

6 Hemand Soren Money Laundering

 

Minister resigned and re elected

Lal Krishna Adwani   resigned   Jain Hawala  Trial later relected

 

 

Who were some other ministers/ex-CMs who had met a similar fate or worst? Here is a list:

 

1. Hemant Soren  -The most recent one was Jharkhand Mukti Morcha (JMM) executive president Hemant Soren, who was forced to step down as Jharkhand CM before being arrested by the ED in a money laundering case related to an alleged land scam.

 

The allegations of money laundering against the JMM leader pertain to the alleged illegal possession of certain immovable assets apart from his purported links with members of the 'land mafia'. The investigation is linked to a "huge racket of illegal change of ownership of land by the mafia" in Jharkhand, according to the central probe agency.Soren has been in jail since his arrest.

 

2. J Jayalalithaa

Historically, former Tamil Nadu CM J Jayalalithaa was the first to be arrested in 1996, on charges of corruption in the purchase of TV sets for villagers. She later became the first CM to be convicted in a disproportionate assets case in 2014, as per report from Indian Express.

 

3. M Karunanidhi

In another case of alleged "political vendetta", then DMK chief M Karunanidhi was arrested by the Tamil Nadu police in 2001, leading to the arrest of serving Union ministers Murasoli Maran and T R Baalu  were arrested for obstructing public servants performing their duties.

 

4. Lalu Prasad Yadav

Former Bihar CM Lalu Prasad faced an arrest warrant in the fodder scam in 1997, leading to his resignation and subsequent jail time.

 

The fodder scam refers to illegal withdrawals worth Rs 950 crore from various government treasuries for fictitious expenditure on fodder and other requirements for cattle during Lalu Prasad Yadav's term as Bihar chief minister.

 

He has been in and out of jail six times since then.

 

5. Shibu Soren

JMM chief Shibu Soren, Hemant’s father, was convicted in 2006 for conspiracy to kidnap and murder his private secretary, resulting in his resignation from the Union Cabinet and jail time.

 

However, Shibu Soren was later acquitted by the Delhi High Court in 2018, with the Supreme Court upholding his acquittal due to lack of evidence.

 

With inputs from PTI.

 

 

102. Disqualifications for membership

(1)A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament—

(a)if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder

;(b)if he is of unsound mind and stands so declared by a competent court;

(c)if he is an undischarged insolvent;

(d)if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;

(e)if he is so disqualified by or under any law made by Parliament

.Explanation.-- For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.

(2)A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule

 

Article 191 in Constitution of India

191. Disqualifications for membership

(1)A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State

(a)if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;

(b)if he is of unsound mind and stands so declared by a competent court;

(c)if he is an undischarged insolvent;

(d)if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;

(e)if he is so disqualified by or under any law made by Parliament.

Explanation. For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.

(2)A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.

 

 

Fundamental Duties

51A. It shall be the duty of every citizen of India—

 (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

 (b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

 (c) to uphold and protect the sovereignty, unity and integrity of India;

 (d) to defend the country and render national service when called upon to do so;

 (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

 (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

(i) to safeguard public property and to abjure violence;

 (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement; *

[(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years

Proposed Bill

 

2. In article 75 of the Constitution, after clause (5), the following clause shall be inserted, namely:–– “(5A) A Minister, who for any period of thirty consecutive days during holding the office as such, is arrested and detained in custody, on allegation of committing an offence under any law for the time being in force, which is punishable with imprisonment for a term which may extend to five years or more, shall be removed from his office by the President on the advice of the Prime Minister to be tendered by the thirty-first day, after being taken in such custody:

 Provided that if the advice of the Prime Minister, for the removal of such Minister is not tendered to the President by the thirty-first day, he shall cease to be a Minister, with effect from the day falling thereafter: Provided further that in case of the Prime Minister, who for any period of thirty consecutive days during holding the office as such, is arrested and detained in custody, on allegation of committing an offence under any law for the time being in force, which is punishable with imprisonment for a term which may extend to five years or more, shall tender his resignation by the thirty-first day after such arrest and detention, and if he does not tender his resignation, he shall cease to be the Prime Minister with effect from the day falling thereafter:

 Provided also that nothing in this clause shall prevent such Prime Minister or Minister from being subsequently appointed as the Prime Minister or a Minister, by the President, on his release from custody, as per clause (1).”.

 

 3. In article 164 of the Constitution, after clause (4), the following clause shall be inserted, namely:–– “(4A) A Minister, who for any period of thirty consecutive days during holding the office as such, is arrested and detained in custody, on allegation of committing an offence under any law for the time being in force, which is punishable with imprisonment for a term which may extend to five years or more, shall be removed from his office by the Governor on the advice of the Chief Minister to be tendered by the thirty-first day, after being taken in such custody: Provided that if the advice of the Chief Minister, for the removal of such Minister is not tendered to the Governor by the thirty-first day, he shall cease to be a Minister, with effect from the day falling thereafter: Provided further that in case of a Chief Minister, who for any period of thirty consecutive days during holding the office as such, is arrested and detained in custody, on allegation of committing an offence under any law for the time being in force, which is punishable with imprisonment for a term which may extend to five years or more, shall tender his resignation by the thirty-first day after such arrest and detention, and if he does not tender his resignation, he shall cease to be the Chief Minister, with effect from the day falling thereafter: Provided also that nothing in this clause shall prevent such Chief Minister or Minister from being subsequently appointed as the Chief Minister or a Minister, by the Governor, on his release from custody, as per clause (1).”. 4. In article 239AA of the Constitution, after clause (5), the following clause shall be inserted, namely:—

“(5A) Subject to the provisions of this Constitution, if a Minister, who for any period of thirty consecutive days during holding the office as such, is arrested and detained in custody, on allegation of committing an offence under any law for the time being in force, which is punishable with imprisonment for a term which may extend to five years or more, shall be removed from his office, by the President on the advice of the Chief Minister to be tendered by the thirty-first day, after being taken in such custody:

  Provided that if the advice of the Chief Minister for removal of such Minister is not tendered to the President by the thirty-first day, he shall cease to be a Minister, with effect from the day falling thereafter: Provided further that in case of the Chief Minister, who for any period of thirty consecutive days during holding the office as such, is arrested and detained in custody, on allegation of committing an offence under any law for the time being in force, which is punishable with imprisonment for a term which may extend to five years or more, shall tender his resignation by the thirty-first day after such arrest and detention, and if he does not tender his resignation, he shall cease to be the Chief Minister, with effect from the day falling thereafter

: Provided also that nothing in this clause shall prevent such Chief Minister or Minister from being subsequently appointed as the Chief Minister or a Minister, by the President, on his release from custody, as per clause (5).”.