In the Supreme Court of India Civil Original Jurisdiction Case No. Writ Petition (Civil) no. 536 of 2011 Petitioner Public Interest Foundation Respondent Union Of India Bench Former CJI Dipak Misra, Justice RF Nariman, Justice AM Khanwilkar, Justice DY Chandrachud, Justice Indu Malhotra
This is a landmark case in which the hon’ble Supreme Court of India issued guidelines and directions to curb the criminalization of Politics in India. The petition was filed by a BJP leader Ashwini Upadhyay and an NGO – Public Interest Foundation. The petition was filed to seek directions from the Apex Court of India regarding criminalization of Politics and restrictions on the criminalisation of contesting elections.
1. There were many writ petitions filed in this case but the most important one is the one filed in 2011 to seek directions from the Apex Court of India regarding criminalization of Politics and restrictions on the criminalisation of contesting elections.
2. Earlier a three judge bench was hearing the matter but later under Art 145(3) it was referred to a Constitutional bench.
3. The main prayer was that the people against whom any charges are framed in any court of law should be debarred from contesting elections.
4. In the landmark judgment, on September 25, 2018, the Five-Judge Constitutional Bench of the Supreme Court held that candidates contesting election cannot be disqualified merely because charges have been framed against them in a criminal case. Further, the bench also urged the legislature to consider framing law to ensure decriminalisation of politics.
Whether any disqualification for membership of Parliament can be laid down by the court beyond Article 102(a) to (d) and the law made by the Parliament under Article 102(e)?
- The petitioners suggested that the court may direct the Election Commission to restrain political parties from granting tickets to or accepting support from independent candidates with criminal antecedents. Referring to the Election Symbols (Reservation and Allotment) Order, 1968, it was also argued that the assignment of an election symbol to a recognised political party be rescinded if it is found in violation of such a mandate of the EC.
- It was also argued that the person who break law should not be allowed to become law makers as the right to contest elections is not a Fundamental Right.
- Senior Counsel Dinesh Dwivedi submitted that the presumption of innocence was misplaced, while indicating to sections 227 and 228 of the Cr. P. C., on discharge and the framing of charges respectively. While the former allows the judge to discharge the accused if, after considering the submissions of the prosecution and the records of the case, he believed that there were no sufficient grounds for proceeding, the latter envisaged the framing of the charges only when the Judge was of opinion that there was ground for presuming that the accused had committed an offence.
- The Respondents on the other hand argued that in India, the principle of Separation of Power is followed and that the Court did not have the power to make laws.
- It was also contended that Art. 142 did not give the power to the Court to add words to in the already existing laws.
The five-judge Constitution Bench held that candidates could not be disqualified merely because charges have been framed against them in a criminal case. The bench also gave directions to the legislature to consider framing law to ensure decriminalisation of politics.
- Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.
- It shall state, in bold letters, with regard to the criminal cases pending against the candidate.
- If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.
- The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.
- The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the 98 same shall be done at least thrice after filing of the nomination papers.
The Bench observed that time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream.
Significance and Analysis of the Verdict:-
The Supreme Court limited itself in mandating that all candidates contesting an election having any criminal cases pending against them be accountable to their respective parties and to the public at large. The court assumed that the problem is one of an information gap to the voters. This is either naive or a wistful hope. Although the hon’ble Supreme Court had already mandated the disclosure of criminals’ antecedents in 2003, but the proportion of members of Parliament facing criminal charges and criminal charges of a serious nature, respectively, increased rapidly from 24% and 12% in 2004 to 30% and 15% in 2009 and 34% and 21% in 2014. Indeed, a candidate facing a criminal case was thrice as likely to win in these elections as one without.
The judgment is disappointing as even though the bench shares the concern about the growing criminalisation of polity, as a threat to the basic structure of the constitution, still it expresses its inability to go beyond what it did, on the ground that it is bound by the doctrine of separation of powers between the legislature and the judiciary .