By Rajeev Dhavan IS THE Bharatiya Janata Party only interested in paralysing Parliament? Or does it really care about 'tainted' Ministers and probity in politics? The party that supported Narendra Modi's actions in Gujarat, invited the return of Kalyan Singh whom the Supreme Court had punished for the Babri Masjid demolition and allowed chargesheeted Ministers to continue in office can hardly be holier than thou.
It is disingenuous to say that the communalism of the Babri Masjid demolition and the riots that followed or Gujarat was political and not criminal in nature.
They were the worst form of criminality India has witnessed in recent years.
There is a distinction between the BJP-raised controversy about Ministers, which is concerned with paralysing Parliament, and the genuine debate about chargesheeted Ministers and MPs.
The BJP wants the new Government to be brought down.
Its stance that its own 'tainted' Ministers were honest politicians, even political heroes, does not further the debate.
When in power, the BJP was strongly opposed to the 'boycott' of Ministers.
Now it is prepared to hold Parliament to ransom.
The debate on MPs accused of serious criminal offences and chargesheeted Ministers is a serious debate.
Section 8 of the Representation of the People Act, 1951 (RPA) laid down the principle that only a person 'convicted' of certain crimes can be disqualified from Parliament and the State Assemblies.
Under the 'conviction' principle, three categories of 'criminals' were disqualified.
Firstly, those found guilty of the 'socio-economic crimes' listed in Section 8 are disqualified for six years from conviction if punished by fine; and for the period of imprisonment and six further years after release if punished by imprisonment.
In the second category of those guilty of hoarding, profiteering, adulteration of food and drugs and dowry offences the disqualification is for the period of imprisonment and six years after release.
Thirdly, those imprisoned for more than two years after conviction are disqualified during imprisonment and for six years after release.
Since the pre-condition for attracting such a disqualification is 'conviction,' many accused of serious criminal offences go scot-free.
Trials in India are slow.
Many accused of serious offences are acquitted.
Increasingly, accused persons enter Indian legislatures or become Ministers or Chief Ministers or Union Ministers.
The two obvious mechanisms to weed out those accused of serious criminal offences from election and office have failed.
A political party always has the option not to give the ticket to such candidates.
Unfortunately, the candidature of such persons is encouraged because they are important to the electoral and political working of India's political parties.
They thrive _ sometimes as heroes to the party faithful.
The second solution is a people's rejection of such candidates.
In 2002, the Supreme Court reposed faith in the people and ordered a new information-disclosure regime so that people should be informed of the assets, qualifications and criminality of candidates.
Against strong political and parliamentary opposition, the Court reiterated its direction in 2003.
But, despite the Supreme Court's endeavours, the people returned a fair number of those accused of serious criminal offences.
Such accused permanently occupy the electoral landscape.
What do we do next? One possible solution suggested by the Law Commission in its 170th Report (1999) as well as the Constitution Commission (2001) is to get rid of the 'conviction' rule and disqualify judicially 'charged' persons _ ready for or undergoing trial.
This seems like a good compromise.
It would be wrong to disqualify people at the investigation stage (after an FIR or when a police report is filed).
The old formula of waiting till the conviction stage has not worked.
The proposed "undergoing trial" test formula would disqualify many existing MPs, MLAs and Ministers.
Oddly, the BJP-led Government accepted this formula in July 2002 during the controversy over disclosure of information.
However, the BJP-led Government wanted the undertrial test to be limited to heinous offences concerning terrorism and war, and serious crimes such as murder, dacoity and kidnapping.
Communal and other anti-social offences did not figure.
But, once the principle is accepted, all we have to do is add a Section 8B in the RPA to the effect that all persons charged with, and undergoing trial for, the listed offences in the RPA should be disqualified.
But, it is likely that our politicians would defeat such a proposal even if partly agreed to in 2002.
A new law would be prospective leaving the present allegedly tainted Ministers unaffected.
Until this law is changed there is no respite _ unless the Supreme Court accepts the Patna High Court's view that all those in jail should be excluded from elections.
But would this include absconders and those on bail? Would such an interpretation be permissible, satisfactory or sufficient? But our present controversy about chargesheeted Ministers is not about legal disqualifications but the moral propriety of appointing them.
But what is the test of unworthiness for office? The strictly legal answer is that a person qualified to be an MP can become a Minister.
Allegedly tainted Ministers protest that until convicted they are innocent victims of the law.
Until the law is changed, no such Minister can be legally 'tainted'.
Analogous to their 'Shining India' campaign, the BJP's 'tainted persons' accused of criminal offences continue to glow as political protesters.
The concept of a 'tainted' Minister is neither a BJP invention nor followed by it.
Earlier, a broad test of public probity was used.
Ministers resigned even if caught in an unbecoming controversy suggesting dereliction of duty, attracting public accountability even if without fault.
This led to Lal Bahadur Shastri's resignation because of a serious railway accident, Krishna Menon's resignation as Defence Minister after the Chinese debacle, T.T.
Krishnamachari's resignation after the Mundhra affair, Prakash Singh Kairon's resignation on charges of corruption.
But this approach disappeared.
By the 1980s, Rajiv Gandhi did not resign during the Bofors accusations but was fortified by a Joint Parliamentary Report in 1987.
Prime Minister Narasimha Rao was eventually acquitted of the charge of bribing MPs but did not demit office.
National Democratic Alliance Ministers such as L.K.
Advani, George Fernandes, Murli Manohar Joshi and Nitish Kumar went through the 'resignation' process but returned to power _ no less because Prime Minister Atal Bihari Vajpayee refused the resignations.
Today, there is no working concept of a 'tainted' Minister other than one invented by Opposition politicians to embarrass those in power.
Ideally, those undergoing trial should be excluded from office until acquitted.
But this requires changes in the law.
In the last Lok Sabha, the Congress directed the weapon of boycott against Mr.
Dicey rightly warns us that 'constitutional conventions' find root if some formal of informal mechanism secures their compliance.
If the Congress' strategy of 'boycott' is such a device, the BJP has lost no time to invoke this weapon.
The BJP's object is not good governance.
It wants to bring down this Government through a disruptive boycott to paralyse Parliament and to force the new Government to fall apart or remove important coalition Ministers.
And, if self-sacrifice is the political metaphor of the day, will the various Ministers undergoing trial, which includes Laloo Prasad Yadav, Jai Prakash Yadav, Taslimuddin and others, entertain such a strategy? On its own showing, the BJP cannot invoke the 'boycott' weapon, which it did not accept as a legitimate weapon against its own Ministers.
Since the 'tainted' Ministers controversy is not to procure wise conventions but precipitate disruptions, it is devoid of public honesty.
Ideally, Ministers should be excluded from office if undergoing trial or where a well-founded belief of corruption is being fairly investigated by a commission or committee of inquiry.
Such an approach conforms to requirements of probity in office and public confidence in governance.
But the halcyon days of the past have gone.
If such broad criteria were applied today, virtually any and everybody could be dragged into controversy and parliamentary boycott.
Eventually, we have to seek recourse in the law to implement the Law Commission and Constitution Commission's recommendation that those undergoing trial for serious offences should be disqualified from elections.
The BJP's campaign against 'tainted' Ministers is itself tainted.
Hoist on its own petard, it cannot use such a campaign to paralyse Parliament and governance.
The issue is important.
The tactic of boycotting Ministers and paralysing Parliament subverts governance.
But, this has never bothered the BJP and the Sangh Parivar's plans to seek power at any cost.
We cannot invoke conventions no one has consistently followed.
Contentious disqualificatory rules should be enacted by law, not left to the travails of disruptive politics.
Meanwhile, let Parliament function.
Paralysing Parliament is not an acceptable convention.