Can't Direct Removal Of Satyendar Jain; It's For Chief Minister To Consider Whether To Allow Persons With Criminal Background To Continue As Minister : Delhi High Court

Dismissing a PIL seeking suspension of Aam Aadmi Party minister Satyendar Jain who is under judicial custody in a money laundering, the Delhi High Court has observed that it is for the Chief Minister to act in the best interest of the State and consider as to whether a person who has criminal background or has been charged with offences involving moral turpitude should be appointed and should be allowed to continue as a Minister or not.

A division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad added:

"It is pertinent to note at this juncture that while it is not for the Court to issue directions to the Chief Minister, it is the duty of the Court to remind these key duty holders about their role with regard to uphold the tenets of our Constitution. The Chief Minister exercises his/her discretion in choosing the Members of Cabinet and to formulate a policy pertaining to appointment of Council of Ministers."

While adding that good governance is only in the hands of good people, it was observed that even though the Court cannot sit in judgement of what is good or bad, it can remind constitutional functionaries to preserve, protect and promote the ethos of our Constitution.

"There is a presumption that the Chief Minister would be well advised and guided by such constitutional principles. As Dr. B.R. Ambedkar, the father of the Indian Constitution, had stated during the Constituent Assembly Debates," said the Bench, in an order uploaded today, while quoting the following:

"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 Constitution does not depend wholly upon the nature of the Constitution."

It thus observed:

"This Court wholeheartedly agrees with the observations of Dr. B.R. Ambedkar, and hopes that the Chief Minister upholds the trust reposed in him that forms the foundation of a representative democracy while appointing persons to lead the people."

Jain is presently under judicial custody in a money laundering case being probed by Enforcement Directorate.

The Court dismissed the plea which was moved by one Dr. Nand Kishore Garg, who has been the Member of Legislative Assembly of Delhi (thrice) from Trinagar constituency.

The petitioner counsel had argued that Jain wS in custody since May this year and must be removed from the post of a Cabinet Minister for the said reason. 

He stated that allowing him to continue, with all perks and privileges, is in violation of Article 14 of the Constitution of India and that any "Government servant" being in custody for more than 48 hours faces suspension and the same analogy must apply to Mr. Satyender Jain also. 

He also submitted that according to Article 164 of the Constitution of India, the appointment of the Cabinet Ministers of the State is done on the advice tendered by the Chief Minister of the State to the Lt. Governor. 

It was thus added that this "advice" is meant to be in consonance with the principles of constitutional morality and good governance, and that it is incumbent upon the Chief Minister to ensure that the Cabinet Ministers appointed are those who inspire confidence in the public at large.

Apart from seeking Jain's suspension from cabinet, the petition also sought issuance of guidelines pertaining to resignation or suspension of the ministers if a minister is arrested beyond stipulated time period of 48 hours as per the practice being followed relating to the public servants in term of Rule 10 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965.

Referring to clause 3 of the CCS (CCA) Rules, 1965, which covers a variety of government servants to whom the 1965 Rules are applicable, the Court said that the clause explicitly excludes from its ambit a Minister.

"A Minister cannot be said to a government servant as well, as the appointing authority of the Ministers, i.e. the Governor of the State, does not fall under Clause 2a of the CCS (CCA) Rules, 1965. Therefore, Rule 10 of the 1965 Rules, which stipulates that being arrested for a period of 48 hours or more entails suspension of the government servant, would not apply to a Minister," the Court observed.

The plea stated that Jain, despite being under custody, is still enjoying the perks and privileges of cabinet minister despite having been allegedly indicted under the serious charges which may entail severe punishment.

"…the preferential treatment for minister under custody strikes to Article 14 of the Constitution of India and several judicial pronouncements including the constitutional bench judgement where Hon'ble Supreme Court had clearly held emphasizing that the Hon'ble Prime Minister or Chief Minister have immense discretionary power to uphold the rule of law and the individual having a criminal record should be made minister under in the interest of public at large," the plea added.

The petition further averred that Jain is neither suspended nor is there any intendment on the part of Chief Minister. It added that the Chief Minister is supporting and giving the clean chit to Jain, which is in violation of the oath for the supremacy of the Constitution of India.

The money laundering case against Jain is based upon an FIR registered by the CBI against the minister and other individuals in the year 2017, under the Prevention of Corruption Act, wherein it was alleged that during the period of February 2015 to May 2017, the minister had acquired assets disproportionate to his known sources of income. The CBI had then filed a chargesheet in December 2018 against Jain.

In a similar development, a PIL has been moved in the Supreme Court seeking direction to Delhi Governmentt to sack its Health Minister Satyendar Jain & to Maharashtra Government to sack its Cabinet Minister Nawab Malik, in connection with money laundering cases being investigated against them.

The vacation bench of Apex Court however told the petitioner that the plea could only be posted after it us placed before the Chief Justice of India.

Case Title: Dr Nand Kishore Garg v. Govt. of NCT of Delhi and Ors

Citation: 2022 LiveLaw (Del) 617

Click Here To Read Order