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Synopsis

A Bench of CJI U.U. Lalit, Justices Ravindra Bhat, and J.B. Pardiwala, heard a petition filed by Advocate Ashwini Upadhyay, seeking a declaration that a Minister, should be temporarily debarred from holding office, after spending 2 days in judicial custody. A parallel was drawn with IAS Officers, Judges and other public servants in the manner in which they are suspended in similar circumstances. 

The rationale was, that since a Minister, not only takes a constitutional oath under Schedule III of the Constitution,  but is also a public servant under Section 21 of the IPC and Section 2(c) of the PCA  Act, and is also a Lawmaker.

And on the basis of the same, sought directions against Maharashtra Government to sack its Cabinet Minister Nawab Malik in connection with cases of black money, benami properties, money laundering and disproportionate assets, linked with Mafia Don Dawood Ibrahim. And to Delhi Government to sack Cabinet Minister Satyendra Jain, in connection with cases of black money, benami properties, ghost companies, money laundering and disproportionate assets.

Court after hearing the arguments, asked the Advocate to withdraw the present matter, otherwise the Court shall dismiss it. Advocate Upadhyay sought permission to withdraw with liberty to approach law commission, to which the Court dismissed as withdrawn.

The Bench opined, "Your research is fabulous, but we unfortunately, cannot do that", since doing that would mean the Court transcending the concept of separation of power. And was further of the opinion that holding that would mean personal kind of disqualification. 

It further stated that in such matters, Parliament decides, because otherwise the electorate would stand denied of representation. 

Advocate Upadhay submitted, "I am not seeking disqualification of MPs and MLAs, we are asking for the executive ministers". 

However the Court did note that, "This may perhaps be an ideal situation, but we cannot incorporate a disqualification and send somebody out...".

Advocate to what he said 'in his last effort' read Schedule III of the Constitution of India. To that the Court said, "whenever we are doing something that cause a prejudice, it must have a sanction".

The petition read, “If we have to choose between fanatical devotion to the principle of equality and feeble allegiance to it, we would unhesitatingly prefer to err on the side of the former as against the later. What the equality clause is intended to strike at are real and substantial disparities and arbitrary and capricious actions of Executive and it would be contrary to the object and intendment of the equality clause to exalt delicate distinctions, shades of harshness & theoretical possibilities of prejudice into legislative inequality/executive discrimination”.

CASE TITLE: Ashwini Kumar Upadhyay vs. Union of India and Ors.