Breaking: Candidates cannot be disqualified on framing of charges, SC
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Breaking: Candidates cannot be disqualified on framing of charges, SC

Murali Krishnan

The Supreme Court today ruled that it cannot issue a disqualification to bar those candidates from contesting elections against whom charges have been framed in criminal offences.

The judgment was pronounced by a Constitution Bench presided by Chief Justice Dipak Misra and comprising Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

The Court noted that the Indian Constitution clearly provides that it is the Parliament that has to make the law concerning disqualification of electoral candidates. In this regard, reference was made to Articles 102 and 191 of the Constitution. As observed in the judgment,

On a perusal of both the Articles, it is clear as crystal that as regards disqualification for being chosen as a member of either House of Parliament and similarly disqualification for being chosen or for being a member of the Legislative Assembly or Legislative Council of a State, the law has to be made by the Parliament.

This view has also been endorsed in the case of  Lily Thomas v. Union of Indiawhich the Court today reaffirmed, observing as follows.

We have no hesitation in saying that the view expressed above in Lily Thomas (supra) is correct, for the Parliament has the exclusive legislative power to lay down disqualification for membership.

Accordingly, the Court also noted that the law on disqualification of electoral candidates has been exhaustively laid down by the Parliament in the Representation of Peoples Act 1951. Therefore, the Court concluded that there was no scope for judicial interference on this aspect.

Thus, the prescription as regards disqualification is complete is in view of the language employed in Section 7(b) read with Sections 8 to 10A of the Act.

It is clear as noon day and there is no ambiguity. The legislature has very clearly enumerated the grounds for disqualification and the language of the said provision leaves no room for any new ground to be added or introduced.

However, the Court then proceeded to observe that Indian democracy has seen a steady rise in criminalisation of politics due to which Parliament needs to step in to curb the same.

Keeping this larger interest in mind, the Bench has issued a slew of directions for curbing criminalisation of politics. These include:

– Candidates contesting must declare their criminal antecedents.

– Candidates must inform their political parties about any criminal cases pending against him/her. Political parties must put up criminal antecedents of their candidates on their websites

– Parliament must make law to ensure candidates with criminal antecedents do not enter public life and take part in law making

– Forms of Election Commission which are to be filled up candidates should contain detail about their criminal past and pending cases in bold letters

– Political parties should issue declaration and give wide publicity in electronic media about the antecedents of the candidates

The judgment came in a batch of petitions including those filed by NGO Public Interest Foundation, former Chief Election Commissioner JM Lyngdoh, and advocate Ashwini Kumar Upadhyay.

The petitioner Public Interest Foundation had made the following prayers in its petition:

(a) lay down appropriate guidelines/ framework  to  ensure  that  those  charged  with  serious criminal offences are unable to enter the political arena by contesting elections

b) lay down a time frame of six months during which trial of such persons are  concluded in a time bound manner;

c) direct the Central Government to implement the directions passed by this Court in Dinesh Trivedi and others v. Union of India  (UOI) and others (1997)  4 SCC 306 in letter and spirit;

d) direct the Union of India to consider the feasibility of enacting legislation to deal with the menace of criminalization of politics and debar those  charged with serious offences from contesting elections of any sort;

e) declare the provisions of Section 8(4) of the Representation of People Act as ultra vires.

The Court, in Lily Thomas v. Union of India, had declared Section 8(4) of the Representation of the People Act, 1951 as unconstitutional. This had rendered prayer (e) made by the petitioner infructuous.

Section 8(4) provided sitting MPs and MLAs an additional layer of protection from disqualification in case she is convicted of certain offences.

It provided for a period of 3 months within which the convicted sitting MP/MLA cannot be disqualified. Furthermore, if the sitting MP/MLA were to file an appeal or revision within these three months from the date of conviction, she could not be disqualified until the appeal or revision was disposed.

The question before the Apex Court in the current case was whether such disqualification should run from the date of framing of charge by the court instead of waiting for the conclusion of the trial.

The Court had sought the opinion of the Law Commission on this issue, and the latter had answered the query in the affirmative. It had come to the conclusion that disqualification upon conviction has proved to be incapable of curbing the growing criminalisation of politics, owing to long delays in trials coupled with a low conviction rate.

Senior Advocates Dinesh Dwivedi and Krishnan Venugopal had appeared for the petitioners, while Attorney General KK Venugopal had represented the Union of India. Senior Advocate Meenakshi Arora appeared for the Election Commission of India, while Senior Advocate Sidharth Luthra served as Amicus Curiae.

Read the Judgment:

SC-Public-Interest-Foundation-v-UOI-Sept-25-2018.pdf
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