Supreme Court being concerned with increasing criminalisation of politics before itself the following question, in the matter Public Interest Foundation & Ors. vs. UOI & Anr. Writ Petition (Civil) No. 536 of 2011, dated 25.9.2018 [2018 Legal Eagle (SC) 815 : 2018 AIR(SC) 4550 : 2019 (3) SCC 224]

‘Whether disqualification for membership 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 Court said ‘No’

The following is the Case Note:

Petitioners’ submission

That having regard to the rise of persons with criminal antecedents, the fundamental concept of decriminalization of politics should be viewed from a wider spectrum and this Court, taking into consideration the facet of interpretation, should assume the role of judicial statesmanship.

Respondents’ submissions

That there can be no denial that the Supreme Court is the final arbiter of the Constitution and the Constitution empowers this wing of the State to lay down the norms of interpretation and show judicial statesmanship but the said judicial statesmanship should not ignore the fundamental law relating to separation of powers, primary responsibility conferred on the authorities under the respective powers and the fact that no authority should do anything for which the power does not flow from the Constitution. In essence, the submission of Mr. Venugopal is that the Court should not cross the ‘Lakshman Rekha’. Resting on the fulcrum of constitutional foundation and on the fundamental principle that if the Court comes to hold that it cannot legislate but only recommend for bringing in a legislation, as envisaged under Article 102(1)(e) of the Constitution, it would not be appropriate to take recourse to any other method for the simon pure reason that what cannot be done directly, should not be done indirectly.

Held :

Provisions of Articles 102, 191 of Constitution looked into; case law decided in Lily Thomas casewas deliberated upon, and the following observation was made:

‘..the Parliament has the exclusive legislative power to lay down disqualification for membership.’

‘The thrust of the matter is whether any disqualification can be read as regardsdisqualification for membership into the constitutional provisions. Article 102(1)specifies certain grounds and further provides that any disqualification can be addedby or under any law made by the Parliament. Article 191 has the same character.’ (Para 13)

‘The word ‘disqualified’in section 7 of the Representation of the People Act, 1951, clearly states that a person be disqualified from being a member under the provisions of the said Chapter and/or on no other ground. The words ‘no other ground’ are of immense significance. Apart from the grounds mentioned under Article 102(1)(a) to 102(1)(d) and Article 191(1)(a) to 191(1)(d), the other grounds are provided by the Parliament and the Parliament has provided the same under Sections 8, 8A, 9, 9A, 10 and 10A’

‘Apart from these disqualifications, there are no other disqualifications and, as is noticeable, there can be no other ground. Thus, disqualifications are provided on certain and specific grounds by the legislature. In such a state, the legislature is absolutely specific.’

‘It is well settled in law that the Court cannot legislate. Emphasis is laid on the issuance of guidelines and directions for rigorous implementation. With immense anxiety, it is canvassed that when a perilous condition emerges, the treatment has to be aggressive. The petitioners have suggested another path. But, as far as adding a disqualification is concerned, the constitutional provision states the disqualification, confers the power on the legislature, which has, in turn, legislated in the imperative.’ (Para 22)

‘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 1951 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.’ (Para 23)

Criminalization of politics

The Supreme Court observed that,

‘Though we have analyzed the aforesaid aspect, yet we cannot close the issue, for the learned counsel for the petitioners and some of the intervenors have argued with immense anguish that there is a need for rectification of the system failing which there will be progressive malady in constitutional governance and gradually, the governance would be controlled by criminals. The submission has been advanced with sanguine sincerity and genuine agony.’

The Supreme Court focused on the criminalization of politics and proceeded to look into Constituent Assembly debates, proceedings, various Committees’ recommendation like Goswami Committee on Electoral Reforms (1990), and observed the following:

‘Criminalization of politics was never an unknown phenomenon in the Indian political system, but its presence was seemingly felt in its strongest form during the 1993 Mumbai bomb blasts which was the result of a collaboration of a diffused network of criminal gangs, police and customs officials and their political patrons. The tremors of the said attacks shook the entire Nation and as a result of the outcry, a Commission was constituted to study the problem of criminalization of politics and the nexus among criminals, politicians and bureaucrats in India. The report of the Committee, Vohra (Committee) Report, submitted by Union Home Secretary, N.N. Vohra, in October 1993, referred to several observations made by official agencies, including the CBI, IB, R&AW, who unanimously expressed their opinion on the criminal network which was virtually running a parallel government. The Committee also took note of the criminal gangs who carried out their activities under the aegis of various political parties and government functionaries. The Committee further expressed great concern regarding the fact that over the past few years, several criminals had been elected to local bodies, State Assemblies and the Parliament.The Report observed:-

"In the bigger cities, the main source of income relates to real estate - forcibly occupying lands/buildings, procuring such properties at cheap rates by forcing out the existing occupants/tenants etc. Over time, the money power thus acquired is used for building up contacts with bureaucrats and politicians and expansion of activities with impunity. The money power is used to develop a network of muscle-power which is also used by the politicians during elections."

"The nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country. The existing criminal justice system, which was essentially designed to deal with the individual offences /crimes, is unable to deal with the activities of the Mafia; the provisions of law in regard economic offences are weak"’ (Para 28)

Election Commission’s proposals for reforms also looked into.

Parliamentary Committees’ report are also looked into.

‘The 18th Report presented to the Rajya Sabha on 15th March, 2007 by the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on Electoral Reforms (Disqualification of Persons from Contesting Elections on Framing of Charges Against Them for Certain Offences) acknowledged the existence of criminal elements in the Indian polity which hit the roots of democracy.’

244^th Law Commission Report titled ‘Electoral Disqualification’ further looked into and extensively discussed by the Supreme Court and following observation is made:

‘The aforesaid recommendations for proposed amendment never saw the light of the day in the form of a law enacted by a competent legislature but it vividly exhibits the concern of the society about the progressing trend of criminalization in politics that has the proclivity and the propensity to send shivers down the spine of a constitutional democracy.’ (Para 59)

Petitioners submitted that certain directions can be issued to the Election Commission so that the purity of democracy is strengthened. It is urged by petitioners that when the Election Commission has been conferred the power to supervise elections, it can control party discipline of a political party by not encouraging candidates with criminal antecedents.

Role of Election Commission

Role of Election Commission than looked into in detail, deliberating upon Article 324, case laws on the subject, and following observations are made:

‘The aforesaid decisions are to be appositely appreciated. There is no denial of the fact that the Election Commission has the plenary power and its view has to be given weightage. That apart, it has power to supervise the conduct of free and fair election. However, the said power has its limitations. The Election Commission has to act in conformity with the law made by the Parliament and it cannot transgress the same.’ (Para 70)

One of the submissions by petitioners is to the effect that if the Court does not intend to incorporate a prior stage in criminal trial, it can definitely direct the Election Commission to save democracy by including some conditions in the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as ‘the Symbols Order‘). The submission is that a candidate against whom criminal charges have been framed in respect of heinous and grievous offences should not be allowed to contest with the symbol of the party. It is urged that the direction would not amount to adding a disqualification beyond what has been provided by the legislature but would only deprive a candidate from contesting with the symbol of the political party. This submission is vehemently opposed by the Attorney General on the grounds of separation of power and clear constitutional and statutory provisions in the subject matter. Nevertheless the Supreme Court proceeded to analyse the Election Symbols Order.

Analysis of Election Symbol Order

Various clauses are looked into. Clause (4) provides for allotment of symbols, clause (5) ‘classification of symbols’, clause (6) classifies political parties into state parties and national parties. Under clause (17) of the Symbols Order, the Election Commission publishes, by notification in the Official Gazette of India, the national parties, State parties and the symbols reserved for them.Another important provision in the matter of choice of symbols by candidates and restriction on the allotment thereof is clause (8) of the Symbols Order. Clause (13) provides as to when a candidate is deemed to be set up by a political party. Last clause i.e. clause (18) provides for power of Election Commission to issue instructions and directions. Following observation is made, after deliberating upon the said Clauses of the Symbol Order:

‘What comes to the fore is that when a candidate has been set up in an election by a particular political party, then such a candidate has a right under sub-clause (3) of clause (8) to choose the symbol reserved for the respective political party by which he/she has been set up. An analogous duty has also been placed upon the Election Commission to allot to such a candidate the symbol reserved for the political party by which he/she has been set up and to no other candidate.’ (Para 97)

‘Assuming a hypothetical situation, where a particular symbol is reserved for a particular political party and such a political party sets up a candidate in elections against whom charges have been framed for heinous and/or grievous offences and if we were to accept the alternative proposal put forth by the petitioners to direct the Election Commission that such a candidate cannot be allowed to contest with the reserved symbol for the political party, it would tantamount to adding a new ground for disqualification which is beyond the pale of the judicial arm of the State. Any attempt to the contrary will be a colourable exercise of judicial power for it is axiomatic that ?what cannot be done directly ought not to be done indirectly? which is a well-accepted principle in the Indian judiciary.’ (Para 98)

Thereafter case laws on the well accepted legal principle as to that ‘what cannot be done directly ought not to be done indirectly’, looked into and deliberations entered into. Following observations are made:

‘…any direction to the Election Commission in the nature as sought by the petitioners may lead to an anomalous situation and has the effect potentiality to do something indirectly which is not permissible to do directly. A candidate bereft of party symbol is, in a way, disqualified from contesting under the banner of a political party. It is contended that the person concerned can contest the election as an independent candidate but, as we perceive, the impact would be the same. That apart, without a legislation, it may be difficult to proscribe the same. Additionally, democracy that is based on multi-party system is likely to be dented.’ (Para 104)

‘Thus analyzed, the directions to the Election Commission as sought by the petitioners runs counter to what has been stated hereinabove. Though criminalization in politics is a bitter manifest truth, which is a termite to the citadel of democracy, be that as it may, the Court cannot make the law.’(Para 106)

‘Directions to the Election Commission, of the nature as sought in the case at hand, may in an idealist world seem to be, at a cursory glance, an antidote to the malignancy of criminalization in politics but such directions, on a closer scrutiny, clearly reveal that it is not constitutionally permissible. The judicial arm of the State being laden with the duty of being the final arbiter of the Constitution and protector of constitutional ethos cannot usurp the power which it does not have.’ (Para 107)

‘In a multi-party democracy, where members are elected on party lines and are subject to party discipline, we recommend to the Parliament to bring out a strong law whereby it is mandatory for the political parties to revoke membership of persons against whom charges are framed in heinous and grievous offences and not to set up such persons in elections, both for the Parliament and the State Assemblies. This, in our attentive and plausible view, would go a long way in achieving decriminalisation of politics and usher in an era of immaculate, spotless, unsullied and virtuous constitutional democracy.’ (Para 108)

‘In spite of what we have stated above, we do not intend to remain oblivious to the issue of criminalization of politics. This Court has focused on various aspects of the said criminalization and given directions from time to time which are meant to make the voters aware about the antecedents of the candidates who contest in the election.’ (Para 109)

‘…for in a constitutional democracy, criminalization of politics is an extremely disastrous and lamentable situation. The citizens in a democracy cannot be compelled to stand as silent, deaf and mute spectators to corruption by projecting themselves as helpless. The voters cannot be allowed to resign to their fate. The information given by a candidate must express everything that is warranted by the Election Commission as per law. Disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified. It has to be remembered that such a right is paramount for a democracy. A voter is entitled to have an informed choice. If his right to get proper information is scuttled, in the ultimate eventuate, it may lead to destruction of democracy because he will not be an informed voter having been kept in the dark about the candidates who are accused of heinous offences. In the present scenario, the information given by the candidates is not widely known in the constituency and the multitude of voters really do not come to know about the antecedents. Their right to have information suffers.’ (Para 115)

Thereafter, the Supreme Court has issued directions, observing that the same would be in accord with the decisions of the Supreme Court. Following directions are given:

‘(i) 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.

(ii) It shall state, in bold letters, with regard to the criminal cases pending against the candidate.

(iii) 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.

(iv)The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.

(v) 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 same shall be done at least thrice after filing of the nomination papers.’

Following observation is also made:

‘We have issued the aforesaid directions with immense anguish, for the Election Commission cannot deny a candidate to contest on the symbol of a party. A time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation. It is true that false cases are foisted on prospective candidates, but the same can be addressed by the Parliament through appropriate legislation. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism. The country feels agonized when money and muscle power become the supreme power. Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay.’  (Para 118)

‘We are sure, the law making wing of the democracy of this country will take it upon itself to cure the malignancy. We say so as such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it; the sooner the better, before it becomes fatal to democracy. Thus, we part.’ (Para 119)

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