Weaponising morality: New Bill threatens to upend legal principles

The 130th Constitutional Amendment Bill inverts legal principles

The 130th Amendment Bill of the Constitution weakens the foundations of democracy in a governance architecture in a way that has come to enable governments at the Centre and in the states to capture institutions of law enforcement and investigation. It seeks to provide for the removal of the Prime Minister, a chief minister, or any other minister in the central or state government who is arrested and detained for 30 consecutive days. The apparent purpose of the Bill is to ensure morality in public life. Though this reasoning, reflected in the Bill’s Statement of Objects and Reasons, may sound unexceptionable in theory, it inverts the legal principle of assuming someone innocent until the person is proven guilty. It is also a disingenuous explanation, given the well-established fact of low conviction rates — just 37 per cent for cases under the Prevention of Corruption Act — rendering the law moot in terms of achieving its stated purpose.

 

There is, of course, no argument that ministers should resign once they are in custody. Doing so is not just a question of ethics but also flows from practical concerns. Prison rules make it nearly impossible to conduct government business behind bars. They severely restrict a prisoner’s access to her or his family, relatives, friends, and legal advisors to just twice a week, though they can write any number of letters. But any letters addressed by a prisoner to a member of Parliament or member of the Legislative Assembly has to be routed through the prison superintendent. As a result, important files tend to get held up. The fact is that good practices should not be legislated and, indeed, most executive leaders resign when they are incarcerated, as was done by Jharkhand Chief Minister Hemant Soren. The exception was Delhi Chief Minister Arvind Kejriwal, who continued in his post through five months of incarceration, resigning only after he was released on bail by the Supreme Court.

 

The fear is that the law will be weaponised against ministers and chief ministers in states. The Bill, now before a joint parliamentary committee, appears to ignore the well-established infirmities of the justice system where police and agency investigations can be dragged on either due to their own inefficiency or under political instruction. To ensure that the minister concerned is in jail for 30 days is easy to achieve in the current circumstances. None of this would arise if the judiciary played a more proactive role in protecting the rights of internees. Granting bail as a matter of routine to people who are clearly not flight risks should become the norm. This principle was articulated by the Supreme Court in granting bail to the Aam Aadmi Party’s Manish Sisodia, who had been in jail for 17 months on alleged irregularities in the state’s now-scrapped liquor licensing policy. Granting him bail, the apex court said prolonged incarceration without trial had violated his “right to a speedy trial”. The court also observed bail could not be denied as a matter of punishment and that the courts needed to understand that “bail is a rule and jail is an exception”. Linking probity in public life to punitive threats is the wrong way to ensure a higher standard of governance.