1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 536 OF 2011
Public Interest Foundation Ors. …Petitioner(s)
Versus
Union of India Anr. …Respondent(s)
WITH
CRIMINAL APPEAL NOS. 1714-1715 OF 2007
WRIT PETITION (CRIMINAL) NO. 208 OF 2011
AND
WRIT PETITION (CIVIL) NO. 800 OF 2015
JUDGMENT
Dipak Misra, CJI
In Yogendra Kumar Jaiswal and others v. State of Bihar
and others1, the Court opined:-
Signature Not Verified
Digitally signed by
CHETAN KUMAR
Date: 2018.09.25
11:31:18 IST
Reason:
1 (2016) 3 SCC 183
2“Corruption, a ‘noun’ when assumes all the
characteristics of a Verb’, becomes self-infective and
also develops resistance to antibiotics. In such a
situation the disguised protagonist never puts a
Hamletian question-“to be or not to be”-but marches
ahead with perverted proclivity-sans concern, sans care
for collective interest, and irrefragably without
conscience. In a way, corruption becomes a national
economic terror.”
2. The constitutional functionaries, who have taken the pledge to
uphold the constitutional principles, are charged with the
responsibility to ensure that the existing political framework does not
get tainted with the evil of corruption. However, despite this heavy
mandate prescribed by our Constitution, our Indian democracy, which
is the world’s largest democracy, has seen a steady increase in the
level of criminalization that has been creeping into the Indian polity.
This unsettlingly increasing trend of criminalization of politics, to
which our country has been a witness, tends to disrupt the
constitutional ethos and strikes at the very root of our democratic
form of government by making our citizenry suffer at the hands of
those who are nothing but a liability to our country.
3
3. The issue that emerges for consideration before this Bench is
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). A three-Judge Bench hearing the
matter was of the view that this question is required to be addressed
by the Constitution Bench under Article 145(3) of the Constitution. Be
it stated, a submission was advanced before the three-Judge Bench
that the controversy was covered by the decision in Manoj Narula v.
Union of India2. The said submission was not accepted because of
the view expressed by Madan B. Lokur, J. in his separate judgment.
4. In the course of hearing, the contour of the question was
expanded with enormous concern to curb criminalization of politics in
a democratic body polity. The learned counsel for the petitioners
submitted 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. Mr. K.K. Venugopal, learned Attorney General
2
(2014) 9 SCC 1
4
for India and other learned counsel, per contra, would submit that
there can be no denial that this 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. We shall
advert to the said submission at a later stage.
5. Article 102 reads as follows: –
5
―102. Disqualifications for membership―(1) A
person shall be disqualified for being chosen as,
and for being, a member of either House of
Parliament—
(a) if he holds any office of profit under the
Government of India or the Government of any
State, other than an office declared by
Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared
by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily
acquired the citizenship of a foreign State, or is
under any acknowledgment of allegiance or
adherence to a foreign State;
(e) if he is so disqualified by or under any law
made by Parliament.
Explanation. —For the purposes of this clause a
person shall not be deemed to hold an office of
profit under the Government of India or the
Government of any State by reason only that he is a
Minister either for the Union or for such State.
(2) A person shall be disqualified for being a
member of either House of Parliament if he is so
disqualified under the Tenth Schedule.‖
6. In this context, we may also refer to Article 191 of the
Constitution that deals with disqualifications for membership. It is as
follows: –
6
―191. Disqualifications for membership—(1) A
person shall be disqualified for being chosen as, and
for being, a member of the Legislative Assembly or
Legislative Council of a State
(a) if he holds any office of profit under the
Government of India or the Government of any
State specified in the First Schedule, other than
an office declared by the Legislature of the State
by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared
by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily
acquired the citizenship of a foreign State, or is
under any acknowledgement of allegiance or
adherence to a foreign State;
(e) if he is so disqualified by or under any law made
by Parliament.
Explanation. —For the purposes of this clause, a
person shall not be deemed to hold an office of profit
under the Government of India or the Government of
any State specified in the First Schedule by reason
only that he is a Minister either for the Union or for
such State.
(2) A person shall be disqualified for being a
member of the Legislative Assembly or Legislative
Council of a State if he is so disqualified under the
Tenth Schedule.‖
7. On a perusal of both the Articles, it is clear as crystal that as
regards disqualification for being chosen as a member of either
7
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. In Lily
Thomas v. Union of India and others3, it has been held:-
―26. Articles 102(1)(e) and 191(1)(e) of the
Constitution, on the other hand, have conferred
specific powers on Parliament to make law providing
disqualifications for membership of either House of
Parliament or Legislative Assembly or Legislative
Council of the State other than those specified in sub-
clauses (a), (b), (c) and (d) of clause (1) of Articles
102 and 191 of the Constitution. We may note that no
power is vested in the State Legislature to make law
laying down disqualifications of membership of the
Legislative Assembly or Legislative Council of the
State and power is vested in Parliament to make law
laying down disqualifications also in respect of
Members of the Legislative Assembly or Legislative
Council of the State. For these reasons, we are of the
considered opinion that the legislative power of
Parliament to enact any law relating to
disqualification for membership of either House of
Parliament or Legislative Assembly or Legislative
Council of the State can be located only in Articles
102(1)(e) and 191(1)(e) of the Constitution and not in
Article 246(1) read with Schedule VII List I Entry 97
and Article 248 of the Constitution. We do not,
therefore, accept the contention of Mr. Luthra that the
power to enact sub-section (4) of Section 8 of the Act
is vested in Parliament under Article 246(1) read with
Schedule VII List I Entry 97 and Article 248 of the
3
(2013) 7 SCC 653
8
Constitution, if not in Articles 102(1)(e) and 191(1)(e)
of the Constitution.‖
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.
8. In Manoj Narula (supra), the question centered around the
interpretation of Article 75 of the Constitution. The core issue
pertained to the legality of persons with criminal background and/or
charged with offences involving moral turpitude to be appointed as
ministers in the Central and the State Governments. The majority
referred to the constitutional provisions, namely, Articles 74, 75, 163
and 164, adverted to the doctrine of implied limitation and, in that
context, opined thus:-
―64. On a studied scrutiny of the ratio of the
aforesaid decisions, we are of the convinced
opinion that when there is no disqualification for a
person against whom charges have been framed in
respect of heinous or serious offences or offences
relating to corruption to contest the election, by
interpretative process, it is difficult to read the
prohibition into Article 75(1) or, for that matter, into
Article 164(1) to the powers of the Prime Minister or
the Chief Minister in such a manner. That would
9come within the criterion of eligibility and would
amount to prescribing an eligibility qualification and
adding a disqualification which has not been
stipulated in the Constitution. In the absence of any
constitutional prohibition or statutory embargo, such
disqualification, in our considered opinion, cannot
be read into Article 75(1) or Article 164(1) of the
Constitution.‖
9. There has been advertence to the principle of constitutional
silence or abeyance and, in that context, it has been ruled that it is
not possible to accept that while interpreting the words ―advice of the
Prime Minister‖, it can legitimately be inferred that there is a
prohibition to think of a person as a minister if charges have been
framed against him in respect of heinous and serious offences
including corruption cases under the criminal law. Thereafter, the
majority addressed the concepts of ‗constitutional morality‘,
‗constitutional governance‘ and ‗constitutional trust‘ and analysed the
term ‗advice‘ employed under Article 75(1) and stated that formation
of an opinion by the Prime Minister in the context of Article 75(1) is
expressed by the use of the said word because of the trust reposed in
the Prime Minister under the Constitution and the said advice, to put it
differently, is a constitutional advice. Reference was made to the
10
debate in the Constituent Assembly which had left it to the wisdom of
the Prime Minister because of the intrinsic faith in him. Discussing
further, it has been stated: –
―At the time of framing of the Constitution, the
debate pertained to conviction. With the change of
time, the entire complexion in the political arena as
well as in other areas has changed. This Court, on
number of occasions, as pointed out hereinbefore,
has taken note of the prevalence and continuous
growth of criminalisation in politics and the
entrenchment of corruption at many a level. In a
democracy, the people never intend to be governed
by persons who have criminal antecedents. This is
not merely a hope and aspiration of citizenry but the
idea is also engrained in apposite executive
governance.‖And again: –
―That the Prime Minister would be giving apposite
advice to the President is a legitimate constitutional
expectation, for it is a paramount constitutional
concern. In a controlled Constitution like ours, the
Prime Minister is expected to act with constitutional
responsibility as a consequence of which the
cherished values of democracy and established
norms of good governance get condignly fructified.
The Framers of the Constitution left many a thing
unwritten by reposing immense trust in the Prime
Minister. The scheme of the Constitution suggests
that there has to be an emergence of constitutional
governance which would gradually grow to give rise
to constitutional renaissance.‖
11
10. Lokur, J. opined: –
―132. While it may be necessary, due to the
criminalisation of our polity and consequently of our
politics, to ensure that certain persons do not
become Ministers, this is not possible through
guidelines issued by this Court. It is for the
electorate to ensure that suitable (not merely
eligible) persons are elected to the legislature and it
is for the legislature to enact or not enact a more
restrictive law.‖Proceeding further, the learned Judge stated: –
―137. In this respect, the Prime Minister is, of
course, answerable to Parliament and is under the
gaze of the watchful eye of the people of the
country. Despite the fact that certain limitations can
be read into the Constitution and have been read in
the past, the issue of the appointment of a suitable
person as a Minister is not one which enables this
Court to read implied limitations in the Constitution.‖He had also, in his opinion, reproduced the words of Dr. B.R.
Ambedkar in the Constituent Assembly on 25.11.1949 and the
sentiments echoed by Dr. Rajendra Prasad on 26.11.1949. Dr.
Ambedkar had said:-
―As much defence as could be offered to the
Constitution has been offered by my friends Sir
Alladi Krishnaswami Ayyar and Mr T.T.
Krishnamachari. I shall not therefore enter into the
merits of the Constitution. Because I feel, however
12good a Constitution may be, it is sure to turn out
bad because those who are called to work it,
happen to be a bad lot. However bad a Constitution
may be, it may turn out to be good if those who are
called to work it, happen to be a good lot. The
working of a Constitution does not depend wholly
upon the nature of the Constitution. The
Constitution can provide only the organs of State
such as the Legislature, the Executive and the
Judiciary. The factors on which the working of those
organs of the State depend are the people and the
political parties they will set up as their instruments
to carry out their wishes and their politics. Who can
say how the people of India and their parties will
behave? Will they uphold constitutional methods of
achieving their purposes or will they prefer
revolutionary methods of achieving them? If they
adopt the revolutionary methods, however good the
Constitution may be, it requires no prophet to say
that it will fail. It is, therefore, futile to pass any
judgment upon the Constitution without reference to
the part which the people and their parties are likely
to play.‖
11. The learned Judge reproduced the words of Dr. Rajendra
Prasad, which ring till today, are:-
―Whatever the Constitution may or may not provide,
the welfare of the country will depend upon the way
in which the country is administered. That will
depend upon the men who administer it. It is a trite
saying that a country can have only the Government
it deserves. Our Constitution has provisions in it
which appear to some to be objectionable from one
point or another. We must admit that the defects are
inherent in the situation in the country and the
13people at large. If the people who are elected are
capable and men of character and integrity, they
would be able to make the best even of a defective
Constitution. If they are lacking in these, the
Constitution cannot help the country. After all, a
Constitution like a machine is a lifeless thing. It
acquires life because of the men who control it and
operate it, and India needs today nothing more than
a set of honest men who will have the interest of the
country before them.‖
12. Kurian Joseph, J., concurring with the opinion, has stated:-
―152. No doubt, it is not for the Court to issue any
direction to the Prime Minister or the Chief Minister,
as the case may be, as to the manner in which they
should exercise their power while selecting the
colleagues in the Council of Ministers. That is the
constitutional prerogative of those functionaries who
are called upon to preserve, protect and defend the
Constitution. But it is the prophetic duty of this Court
to remind the key duty holders about their role in
working the Constitution. Hence, I am of the firm
view, that the Prime Minister and the Chief Minister
of the State, who themselves have taken oath to
bear true faith and allegiance to the Constitution of
India and to discharge their duties faithfully and
conscientiously, will be well advised to consider
avoiding any person in the Council of Ministers,
against whom charges have been framed by a
criminal court in respect of offences involving moral
turpitude and also offences specifically referred to in
Chapter III of the Representation of the People Act,
1951.‖
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13. The thrust of the matter is whether any disqualification can be
read as regards disqualification for membership into the constitutional
provisions. Article 102(1) specifies certain grounds and further
provides that any disqualification can be added by or under any law
made by the Parliament. Article 191 has the same character.
14. Chapter III of the Representation of the People Act, 1951 (for
brevity, ‗the Act‘) deals with disqualification for membership of the
Parliament and the State Legislatures. Section 7 deals with
Definitions. It is as follows:-
―7. Definitions.—In this Chapter,—
(a) ―appropriate Government‖ means in relation to
any disqualification for being chosen as or for
being a member of either House of
Parliament, the Central Government, and in
relation to any disqualification for being
chosen as or for being a member of the
Legislative Assembly or Legislative Council of
a State, the State Government;
(b) ―disqualified‖ means disqualified for being
chosen as, and for being, a member of either
House of Parliament or of the Legislative
Assembly or Legislative Council of a State.
under the provisions of this Chapter, and on
no other ground.‖
[Emphasis is ours]
15
15. The word ‗disqualified‘ 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 under Sections 8, 8A, 9, 9A, 10 and 10A which read thus:
―8. Disqualification on conviction for certain
offences.—(1) A person convicted of an offence
punishable under—
(a) section 153A (offence of promoting enmity
between different groups on ground of religion, race,
place of birth, residence, language, etc., and doing
acts prejudicial to maintenance of harmony) or
section 17IE (offence of bribery) or section 17IF
(offence of undue influence or personation at an
election) or sub-section (1) or sub-section (2) of
section 376 or section 376A or section 376B or
section 376C or section 376D (offences relating to
rape) or section 498A (offence of cruelty towards a
woman by husband or relative of a husband) or sub-
section (2) or sub-section (3) of section 505 (offence
of making statement creating or promoting enmity,
hatred or ill-will between classes or offence relating
to such statement in any place of worship or in any
assembly engaged in the performance of religious
worship or religious ceremonies) of the Indian Penal
Code (45 of 1860); or
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(b) the Protection of Civil Rights Act, 1955 (22 of
1955), which provides for punishment for the
preaching and practice of “untouchability‖, and for
the enforcement of any disability arising therefrom; or
(c) section 11 (offence of importing or exporting
prohibited goods) of the Customs Act, 1962 (52 of
1962); or
(d) sections 10 to 12 (offence of being a member of
an association declared unlawful, offence relating to
dealing with funds of an unlawful association or
offence relating to contravention of an order made in
respect of a notified place) of the Unlawful Activities
(Prevention) Act, 1967 (37 of 1967); or
(e) the Foreign Exchange (Regulation) Act, 1973 (46
of 1973); or
(f) the Narcotic Drugs and Psychotropic Substances
Act, 1985 (61 of 1985); or
(g) section 3 (offence of committing terrorist acts) or
section 4 (offence of committing disruptive activities)
of the Terrorist and Disruptive Activities (Prevention)
Act, 1987 (28 of 1987); or
(h) section 7 (offence of contravention of the
provisions of sections 3 to 6) of the Religious
Institutions (Prevention of Misuse) Act, 1988 (41 of
1988); or
(i) section 125 (offence of promoting enmity
between classes in connect ion with the election) or
section 135 (offence of removal of ballot papers from
polling stations) or section 135A (offence of booth
capturing) or clause (a) of sub – section (2) of section
136 (offence of fraudulently defacing or fraudulently
destroying any nomination paper) of this Act; or
(j) section 6 (offence of conversion of a place or
worship) of the Places of Worship (Special Provisions)
Act 1991, or
17
(k) section 2 (offence of insulting the Indian National
Flag or the Constitution of India) or section 3 (offence
of preventing singing of National Anthem) of the
Prevention of Insults to National Honour Act, 1971 (69
of 1971); or
(l) the Commission of Sati (Prevention) Act, 1987 (3 of
1988); or
(m) the Prevention of Corruption Act, 1988 (49 of
1988); or
(n) the Prevention of Terrorism Act, 2002 (15 of
2002),
shall be disqualified, where the convicted person is
sentenced to—
(i) only fine, for a period of six years from the date
of such conviction;
(ii) imprisonment, from the date of such conviction
and shall continue to be disqualified for a further
period of six years since his release.
(2) A person convicted for the contravention of—
(a) any law providing for the prevention of
hoarding or profiteering; or
(b) any law relating to the adulteration of food or
drugs; or
(c) any provisions of the Dowry Prohibition Act,
[1961 (28 of 1961)
and sentenced to imprisonment for not less than six
months, shall be disqualified from the date of such
conviction and shall continue to be disqualified for a
further period of six years since his release.
(3) A person convicted of any offence and sentenced
to imprisonment for not less than two years other than
any offence referred to in sub-section (1) or sub-
18
section (2) shall be disqualified from the date of such
conviction and shall continue to be disqualified for a
further period of six years since his release.
(4) Notwithstanding anything in sub-section (1), sub-
section (2) and sub-section (3) a disqualification under
either sub-section shall not, in the case of a person
who on the date of the conviction is a member of
Parliament or the Legislature of a State, take effect
until three months have elapsed from that date or, if
within that period an appeal or application for revision
is brought in respect of the conviction or the sentence,
until that appeal or application is disposed of by the
court.
Explanation.—In this section—
(a) “law providing for the prevention of hoarding or
profiteering” means any law, or any order, rule or
notification having the force of law, providing for—
(i) the regulation of production or manufacture
of any essential commodity;
(ii) the control of price at which any essential
commodity may be brought or sold;
(iii) the regulation of acquisition, possession,
storage, transport, distribution, disposal, use or
consumption of any essential commodity;
(iv) the prohibition of the withholding from sale
of any essential commodity ordinarily kept for
sale;
(b) “drug” has the meaning assigned to it in the Drugs
and Cosmetics Act, 1940 (23 of 1940);
(c) “essential commodity” has the meaning assigned to
it in the Essential Commodities Act, 1955 (10 of 1955);
(d) “food” has the meaning assigned to it in the
Prevention of Food Adulteration Act, 1954 (37 of
1954).
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8A. Disqualification on ground of corrupt
practices.—(1) The case of every person found guilty
of a corrupt practice by an order under section 99 shall
be submitted, as soon as may be within a period of
three months from the date such order takes effect, by
such authority as the Central Government may specify
in this behalf, to the President for determination of the
question as to whether such person shall be
disqualified and if so, for what period:
Provided that the period for which any person
may be disqualified under this sub-section shall in no
case exceed six years from the date on which the
order made in relation to him under section 99 takes
effect.
(2) Any person who stands disqualified under section
8A of this Act as it stood immediately before the
commencement of the Election Laws (Amendment)
Act, 1975 (40 of 1975), may, if the period of such
disqualification has not expired, submit a petition to the
President for the removal of such disqualification for
the unexpired portion of the said period.
(3) Before giving his decision on any question
mentioned in sub-section (1) or on any petition
submitted under sub-section (2), the President shall
obtain the opinion of the Election Commission on such
question or petition and shall act according to such
opinion.
9. Disqualification for dismissal for corruption or
disloyalty.—(1) A person who having held an office
under the Government of India or under the
Government of any State has been dismissed for
corruption or for disloyalty to the State shall be
disqualified for a period of five years from the date of
such dismissal.
20
(2) For the purposes of sub-section (1), a certificate
issued by the Election Commission to the effect that a
person having held office under the Government of
India or under the Government of a State, has or has
not been dismissed for corruption or for disloyalty to
the State shall be conclusive proof of that fact:
Provided that no certificate to the effect that a
person has been dismissed for corruption or for
disloyalty to the State shall be issued unless an
opportunity of being heard has been given to the said
person.
9A. Disqualification for Government contracts,
etc.—A person shall be disqualified if, and for so long
as, there subsists a contract entered into by him in the
course of his trade or business with the appropriate
Government for the supply of goods to, or for the
execution of any works undertaken by, that
Government.
Explanation.—For the purposes of this section, where
a contract has been fully performed by the person by
whom it has been entered into with the appropriate
Government, the contract shall be deemed not to
subsist by reason only of the fact that the Government
has not performed its part of the contract either wholly
or in part.
10. Disqualification for office under Government
company.—A person shall be disqualified if, and for
so long as, he is a managing agent, manager or
secretary of any company or corporation (other than a
co-operative society) in the capital of which the
appropriate Government has not less than twenty-five
per cent share.
21
10A. Disqualification for failure to lodge account of
election expenses.—If the Election Commission is
satisfied that a person—
(a) has failed to lodge an account of election
expenses, within the time and in the manner
required by or under this Act; and
(b) has no good reason or justification for the
failure,
the Election Commission shall, by order published in
the Official Gazette, declare him to be disqualified and
any such person shall be disqualified for a period of
three years from the date of the order.‖
16. From the aforesaid, it is decipherable that Section 8 deals with
disqualification on conviction for certain offences. Section 8A
provides for disqualification on ground of corrupt practices. Section 9
provides for the disqualification for dismissal for corruption or
disloyalty. Section 9A deals with the situation where there is
subsisting contract between the person and the appropriate
Government. Section 10 lays down disqualification for office under
Government company and Section 10A deals with disqualification for
failure to lodge account of election expenses. Apart from these
disqualifications, there are no other disqualifications and, as is
noticeable, there can be no other ground. Thus, disqualifications are
22
provided on certain and specific grounds by the legislature. In such a
state, the legislature is absolutely specific.
17. The submission of the learned counsel appearing for the
petitioners is that the law breakers should not become law makers
and there cannot be a paradise for people with criminal antecedents
in the Parliament or the State Legislatures. Reference has been
made to the recommendations of the Law Commission which has
seriously commented on the prevalent political atmosphere being
dominated by people with criminal records.
18. It has also been highlighted by the petitioners that
criminalization in politics is on the rise and the same is a documented
fact and recorded by various committee reports. The petitioners also
highlight that the doctrine of fiduciary relationship has been extended
to several constitutional posts and that if members of Public Service
Commission, Chief Vigilance Commissioner and the Chief Secretary
can undergo the test of integrity check and if “framing of charge” has
been recognized as a disqualification for such posts, then there is no
reason to not extend the said test of “framing of charge” to the posts
of Members of Parliament and State Legislatures as well. To further
23
accentuate this stand, the petitioners point out that such persons hold
the posts in constitutional trust and can be made subject to rigours
and fetters as the right to contest elections is not a fundamental right
but a statutory right or a right which must confirm to the constitutional
ethos and principles.
19. The petitioners are attuned to the principle of ―presumption of
innocence‖ under our criminal law. But they are of the opinion that the
said principle is confined to criminal law and that any proceeding prior
to conviction, such as framing of charge for instance, can become the
basis to entail civil liability of penalty. The petitioners, therefore, take
the stand that debarring a person facing charges of serious nature
from contesting an election does not lead to creation of an offence
and it is merely a restriction which is distinctively civil in nature.
20. The intervenor organization has also made submissions on a
similar note as that of the petitioners to the effect that persons
charged for an offence punishable with imprisonment for five years or
more are liable to be declared as disqualified for being elected or for
being a Member of the Parliament as a person chargesheeted in a
crime involving moral turpitude is undesirable for a job under the
24
government and it is rather incongruous that such a person can
become a law maker who then control civil servants and other
government machinery and, thus, treating legislators on a different
footing amounts to a violation of Article 14 of the Constitution.
21. Mr. Venugopal, learned Attorney General for India, refuting the
aforesaid submission, would urge that the Parliament may make law
on the basis of the recommendations of the Law Commission but this
Court, as a settled principle of law, should not issue a mandamus to
the Parliament to pass a legislation and can only recommend. That
apart, submits Mr. Venugopal, that when there are specific
constitutional provisions and the statutory law, the Court should leave
it to the Parliament.
22. 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
25
disqualification, confers the power on the legislature, which has, in
turn, legislated in the imperative.
23. 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.
Criminalization of politics
24. 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. There
have been suggestions as well as arguments with the purpose of
saving the sanctity of democracy and to advance its enduring
26
continuance. To appreciate the same, we will focus on the
criminalization of politics.
25. In the beginning of the era of constitutional democracy, serious
concerns were expressed with regard to the people who are going to
be elected. Dr Rajendra Prasad on the Floor of the Constituent
Assembly, before putting the motion for passing of the Constitution,
had observed:-
“…It requires men of strong character, men of
vision, men who will not sacrifice the interests of
the country at large for the sake of smaller groups
and areas…We can only hope that the country will
throw up such men in abundance.”4
26. An essential component of a constitutional democracy is its
ability to give and secure for its citizenry a representative form of
government, elected freely and fairly, and comprising of a polity
whose members are men and women of high integrity and morality.
This could be said to be the hallmark of any free and fair democracy.
27. The Goswami Committee on Electoral Reforms (1990) had
addressed the need to curb the growing criminal forces in politics in
4 th
Dr Rajendra Prasad, President, Constituent Assembly of India, 26 November, 1949
27
order to protect the democratic foundation of our country. The
Committee stated that:-
“The role of money and muscle powers at elections
deflecting seriously the well accepted democratic
values and ethos and corrupting the process; rapid
criminalisation of politics greatly encouraging evils of
booth capturing, rigging, violence etc.; misuse of
official machinery, i.e. official media and ministerial;
increasing menace of participation of non-serious
candidates; form the core of our electoral problems.
Urgent corrective measures are the need of the hour
lest the system itself should collapse.”
28. 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, RAW, who unanimously expressed their opinion on the
28
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.”
And again:-
“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”
29
29. The Election Commission has also remained alive to the issue of
criminalization of politics since 1998. While proposing reforms to
tackle the menace of criminalization of politics, the Former Chief
Election Commissioner, Mr. T.S. Krishna Murthy, highlighted the said
issue by writing thus:-
“There have been several instances of persons
charged with serious and heinous crimes like murder,
rape, dacoity, etc. contesting election, pending their
trial, and even getting elected in a large number of
cases. This leads to a very undesirable and
embarrassing situation of lawbreakers becoming
lawmakers and moving around under police protection.
The Commission had proposed that the law should be
amended to provide that any person for five years or
more should be disqualified from contesting election
even when trial is pending, provided charges have
been framed against him by the competent court. Such
a step would go a long way in cleansing the political
establishment from the influence of criminal elements
and protecting the sanctity of the Legislative Houses”5
30. In the case of Dinesh Trivedi, M.P. and others v. Union of
India and others6 the court lamented the faults and imperfections
which have impeded the country in reaching the expectations which
5
6
(1997) 4 SCC 306
30
heralded its conception. While identifying one of the primary causes,
the Court referred to the report of N.N. Vohra Committee that was
submitted on 5.10.1993. The Court noted that the growth and spread
of crime syndicates in Indian society has been pervasive and the
criminal elements have developed an extensive network of contacts
at many a sphere. The Court, further referring to the report, found that
the Report reveals several alarming and deeply disturbing trends that
are prevalent in our present society. The Court also noticed that the
nexus between politicians, bureaucrats and criminal elements in our
society has been on the rise, the adverse effects of which are
increasingly being felt on various aspects of social life in India.
31. In Anukul Chandra Pradhan, Advocate Supreme Court v.
Union of India and others7, the Court, in the context of the
provisions made in the election law, observed that they have been
made to exclude persons with criminal background, of the kind
specified therein, from the election scene as candidates and voters
7
(1997) 6 SCC 1
31
with the object to prevent criminalization of politics and maintain
propriety in elections. Thereafter, the three-Judge Bench opined that
any provision enacted with a view to promote the said object must be
welcomed and upheld as subserving the constitutional purpose.
32. In K. Prabhakaran v. P. Jayarajan8, in the context of enacting
disqualification under Section 8(3) of the Act, the Court observed that
persons with criminal background pollute the process of election as
they have no inhibition in indulging in criminality to gain success in an
election. Further, the Court observed:-
“Those who break the law should not make the
law. Generally speaking the purpose sought to
be achieved by enacting disqualification on
conviction for certain offences is to prevent
persons with criminal background from entering
into politics and the house – a powerful wing of
governance. Persons with criminal background
do pollute the process of election as they do not
have many a holds barred (sic) and have no
reservation from indulging into criminality to win
success at an election.”
8
AIR 2005 SC 688
32
33. The Court in Manoj Narula (supra), while observing that
criminalization of politics is an anathema to the sacredness of
democracy, stated thus:-
“A democratic polity, as understood in its
quintessential purity, is conceptually abhorrent to
corruption and, especially corruption at high places,
and repulsive to the idea of criminalization of politics
as it corrodes the legitimacy of the collective ethos,
frustrates the hopes and aspirations of the citizens
and has the potentiality to obstruct, if not derail, the
rule of law. Democracy, which has been best defined
as the Government of the People, by the People and
for the People, expects prevalence of genuine
orderliness, positive propriety, dedicated discipline
and sanguine sanctity by constant affirmance of
constitutional morality which is the pillar stone of
good governance.
And again: –
“…systemic corruption and sponsored criminalization
can corrode the fundamental core of elective
democracy and, consequently, the constitutional
governance. The agonized concern expressed by this
Court on being moved by the conscious citizens, as is
perceptible from the authorities referred to
hereinabove, clearly shows that a democratic republic
polity hopes and aspires to be governed by a
Government which is run by the elected
representatives who do not have any involvement in
serious criminal offences or offences relating to
corruption, casteism, societal problems, affecting the
sovereignty of the nation and many other offences.”
33
34. 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. The Committee observed thus:-
“…the Committee is deeply conscious of the
criminalization of our polity and the fast erosion of
confidence of the people at large in our political
process of the day. This will certainly weaken our
democracy and will render the democratic institutions
sterile. The Committee therefore feels that politics
should be cleansed of persons with established
criminal background. The objective is to prevent
criminalisation of politics and maintain probity in
elections. Criminalization of politics is the bane of
society and negation of democracy.”
35. The Chairman of the Law Commission, in the covering letter of
the 244th Law Commission Report titled “Electoral Disqualifications”,
wrote to the then Minister of Law and Justice stating thus:-
1. “While the Law Commission was working towards
suggesting its recommendations to the Government on
Electoral Reforms, an Order was passed by the
34Hon’ble Supreme Court dated 16.12.2013 in Public
Interest Foundation and Ors. Vs. Union of India and
Anr., vide D.O. No. 4604/2011/SC/PIL(W] dated 21st
December, 2013.
2. In the aforesaid Order, the Hon’ble Supreme Court
noted that Law Commission may take some time for
submitting a comprehensive report on all aspects of
electoral reforms. However, the Hon’ble Court further
mentioned that “the issues with regard to de-
criminalization of politics and disqualification for filing
false affidavits deserve priority and immediate
consideration” and accordingly requested the Law
Commission to “expedite consideration for giving a
report by the end of February, 2014, on the two issues,
namely:
1. Whether disqualification should be triggered upon
conviction as it exists today or upon framing of
charges by the court or upon the presentation of the
report by the Investigating Officer under Section 173 of
the Code of Criminal procedure? [Issue No. 3.1 (ii) of
the Consultation Paper], and
2. Whether filing of false affidavits under Section
125A of the Representation of the People Act, 1951
should be a ground for disqualification? And if yes,
what mode of mechanism needs to be provided for
adjudication on the veracity of the affidavit? [Issue
No.3.5 of the Consultation Paper]”
36. Thereafter, the 244th Law Commission, while accentuating the
need for electoral reforms, observed that a representative
government, sourcing its legitimacy from the People, who were the
ultimate sovereign, was the kernel of the democratic system
35
envisaged by the Constitution. Over the time, this has been held to be
a part of the ‗basic structure‘ of the Constitution, immune to
amendment, with the Supreme Court of India declaring that it is
beyond the pale of reasonable controversy that if there be any
unamendable features of the Constitution on the score that they form
a part of the basic structure of the Constitution, it is that India is a
Sovereign Democratic Republic.
37. The Commission laid stress on the model of representative
government based on popular sovereignty which gives rise to its
commitment to hold regular free and fair elections. The importance of
free and fair elections stems from two factors— instrumentally, its
central role in selecting persons who will govern the people, and
intrinsically, as being a legitimate expression of popular will.
Emphasizing on the importance of free and fair elections in a
democratic polity, reference was made to the decision in Mohinder
Singh Gill v. Chief Election Commissioner9 wherein the Court had
ruled:-
9
AIR 1978 SC 851
36―Democracy is government by the people. It is a
continual participative operation, not a cataclysmic
periodic exercise. The little man, in his multitude,
marking his vote at the poll does a social audit of his
Parliament plus political choice of this proxy. Although
the full flower of participative Government rarely
blossoms, the minimum credential of popular
government is appeal to the people after every term
for a renewal of confidence. So we have adult
franchise and general elections as constitutional
compulsions… It needs little argument to hold that the
heart of the Parliamentary system is free and fair
elections periodically held, based on adult franchise,
although social and economic democracy may
demand much more.‖
38. The Commission addressed the issue pertaining to the extent
of criminalization in politics and took note of the observations made
by Mr. C. Rajagopalachari who, as back as in 1922, had anticipated
the present state of affairs twenty-five years before Independence,
when he wrote in his prison diary:-
―Elections and their corruption, injustice and tyranny of
wealth, and inefficiency of administration, will make a
hell of life as soon as freedom is given to us…‖
39. The Commission also observed that the nature of nexus
changed in the 1970s and instead of politicians having suspected
links to criminal networks, as was the case earlier, it was persons
with extensive criminal backgrounds who began entering politics and
37
this fact was confirmed in the Vohra Committee Report in 1993 and
again in 2002 in the report of the National Commission to Review the
Working of the Constitution (NCRWC). The Commission referred to
the judgment of this Court in Union of India v. Association for
Democratic Reforms10 which had made an analysis of the criminal
records of candidates possible by requiring such records to be
disclosed by way of affidavit and this, as per the Commission, had
given a chance to the public to quantitatively assess the validity of
such observations made in the previous report.
40. As per the extent of criminalization that has pervaded Indian
Politics, the Commission observed that in the ten years since 2004,
18% of the candidates contesting either National or State elections
have criminal cases pending against them (11,063 out of 62,847). In
5,253 or almost half of these cases (8.4% of the total candidates
analysed), the charges are of serious criminal offences that include
murder, attempt to murder, rape, crimes against women, cases under
the Prevention of Corruption Act, 1988 or under the Maharashtra
Control of Organised Crime Act, 1999 which, on conviction, would
10
(2002) 5 SCC 294
38
result in five years or more of jail, etc. 152 candidates had 10 or more
serious cases pending, 14 candidates had 40 or more such cases
and 5 candidates had 50 or more cases against them. Further, the
Commission observed that the 5,253 candidates with serious cases
together had 13,984 serious charges against them and of these
charges, 31% were cases of murder and other murder related
offences, 4% were cases of rape and offences against women, 7%
related to kidnapping and abduction, 7% related to robbery and
dacoity, 14% related to forgery and counterfeiting including of
government seals and 5% related to breaking the law during
elections. The Commission was of the further view that criminal
backgrounds are not limited to contesting candidates, but are found
among winners as well, for, of the 5,253 candidates with serious
criminal charges against them, 1,187 went on to winning the elections
they contested, i.e., 13.5% of the 8,882 winners analysed from 2004
to 2013 and overall, including both serious and non-serious charges,
2,497 (28.4% of the winners) had 9,993 pending criminal cases
against them.
39
41. Elaborating further, the Commission took note of the fact that in
the current Lok Sabha, 30% or 162 sitting MPs have criminal cases
pending against them, of which about half, i.e., 76 have serious
criminal cases and further, the prevalence of MPs with criminal cases
pending has increased over time as statistics reveal that in 2004,
24% of Lok Sabha MPs had criminal cases pending which increased
to 30% in the 2009 elections and this situation is similar across States
with 31% or 1,258 out of 4,032 sitting MLAs with pending cases, with
again about half being serious cases. Not only this, the Commission
also observed that some States have a much higher percentage of
MLAs with criminal records: in Uttar Pradesh, 47% of MLAs have
criminal cases pending and a number of these MPs and MLAs have
been accused of multiple counts of criminal charges, for example, in
a constituency of Uttar Pradesh, the MLA has 36 criminal cases
pending including 14 cases relating to murder. As per the
Commission, it is clear from this data that about one-third of the
elected candidates at the Parliament and State Assembly levels in
India have some form of criminal taint and also that the data
elsewhere suggests that one-fifth of MLAs have pending cases which
40
have proceeded to the stage of charges being framed against them
by a court at the time of their election. What the Commission found to
be more disturbing was the fact that the percentage of winners with
criminal cases pending is higher than the percentage of candidates
without such backgrounds, as the data reveals that while only 12% of
candidates with a ―clean‖ record win on an average, 23% of
candidates with some kind of criminal record win which implies that
candidates charged with a crime actually fare better in elections than
‗clean‘ candidates. This, as per the Commission, has resulted in the
tendency for candidates with criminal cases to be given tickets a
second time and not only do political parties select candidates with
criminal backgrounds, but there is also evidence to suggest that
untainted representatives later become involved in criminal activities
and, thus, the incidence of criminalisation of politics is pervasive
thereby making its remediation an urgent need.
42. The pervasive contact, in many a way, disturbed the political
parties and this compelled the Law Commission to describe the role
of political parties. It said:-
―Political parties are a central institution of our
democracy; ―the life blood of the entire constitutional
41scheme.‖ Political parties act as a conduit through
which interests and issues of the people get
represented in Parliament. Since political parties play a
central role in the interface between private citizens
and public life, they have also been chiefly responsible
for the growing criminalisation of politics.‖
43. Thereafter, reference was made to the observations of the 170th
report which was also quoted in Subhash Chandra Agarwal v.
Indian National Congress and others11 by the Central Information
Commission (―CIC‖). The said observations are very pertinent to
describe the position of political parties in our democracy:-
―It is the Political Parties that form the Government,
man the Parliament and run the governance of the
country. It is therefore, necessary to introduce internal
democracy, financial transparency and accountability
in the working of the Political Parties. A political party
which does not respect democratic principles in its
internal working cannot be expected to respect those
principles in the governance of the country. It cannot
be dictatorship internally and democratic in its
functioning outside.
x x x
Though the RPA disqualifies a sitting legislator or a
candidate on certain grounds, there is nothing
regulating the appointments to offices within the
organisation of the party. Political parties play a central11
(2013) CIC 8047
42role in Indian democracy. Therefore, a politician may
be disqualified from being a legislator, but may
continue to hold high positions within his party, thus
also continuing to play an important public role which
he has been deemed unfit for by the law. Convicted
politicians may continue to influence law -making by
controlling the party and fielding proxy candidates in
legislature. In a democracy essentially based on
parties being controlled by a high-command, the
process of breaking crime-politics nexus extends much
beyond purity of legislators and encompasses purity of
political parties as well.
….It is suggested that political parties should refrain
from appointing or allowing a person to continue
holding any office within the party organisation if the
person has been deemed to lack the qualities
necessary to be a public official. Therefore, the legal
disqualifications that prevent a person from holding
office outside a party should operate within the party
as well.‖
44. Commenting on the existing legal framework, it opined that
legally, the prevention of entry of criminals into politics is
accomplished by prescribing certain disqualifications that will prevent
a person from contesting elections or occupying a seat in the
Parliament or an Assembly and presently, the qualifications of
Members of Parliament are listed in Article 84 of the Constitution,
while the disqualifications can be found under Article 102. The
43
corresponding provisions for Members of the State Legislative
Assemblies are found in Articles 173 and 191.
45. The Law Commission noted the decisions in Association for
Democratic Reforms (supra), Lily Thomas (supra) and People’s
Union for Civil Liberties v. Union of India12 and, after referring to
the previous Reports recommending reforms, recommended:-
―To tackle the menace of wilful concealment of
information or furnishing of false information and to
protect the right to information of the electors, the
Commission recommended that the punishment under
Section 125A of RPA must be made more stringent by
providing for imprisonment of a minimum term of two
years and by doing away with the alternative clause for
fine. Additionally, conviction under Section 125A RPA
should be made a part of Section 8(1)(i) of the
Representation of People Act, 1950.‖
46. Further, the Commission took note of the observations made by
the Justice J.S. Verma Committee Report on Amendments to
Criminal Law (2013) which proposed insertion of Schedule I to the
Representation of the People Act, 1951 enumerating offences under
IPC befitting the category of ‘heinous’ offences and it was also
recommended in the said report that Section 8(1) of the RP Act be
12
(2003) 4 SCC 399
44
amended to cover, inter alia, the offences listed in the proposed
Schedule 1, and this, in turn, would provide that a person in respect
of whose acts or omissions a court of competent jurisdiction has
taken cognizance under Section 190(1)(a),(b) or (c) of the Cr.PC. or
who has been convicted by a court of competent jurisdiction with
respect to the offences specified in the proposed expanded list of
offences under Section 8(1) shall be disqualified from the date of
taking cognizance or conviction, as the case may be. The
Commission also referred to the proposal made in the said Report
which was to the effect that disqualification in case of conviction shall
continue for a further period of six years from the date of release
upon conviction and in case of acquittal, the disqualification shall
operate from the date of taking cognizance till the date of acquittal.
47. The rationale given by the Commission for introducing a
disqualification at the stage of framing of charges was to the following
effect:-
―At the outset, the question that needs to be considered is
whether disqualification should continue to be triggered
only at the stage of conviction as is currently the case
under Section 8 of the RPA. As detailed below, the
current law suffers from three main problems: the rate of
convictions among sitting MPs and MLAs is extremely
45low, trials of such persons are subject to long delays, and
the law does not provide adequate deterrence to political
parties granting tickets to persons of criminal
backgrounds. This has resulted in a massive increase in
the presence of criminal elements in politics, which affects
our democracy in very evident ways.‖
48. Thereafter, the Commission went on to observe in its Reform
Proposal as to why the stage of framing of charge sheet would not be
an appropriate stage for disqualification. The Commission observed
thus:-
―When filing a charge-sheet, the Police is simply
forwarding the material collected during investigation to a
competent Court of law for the Court to consider what
provisions the accused should be charged under. At this
stage, there is not even a remote or prima facie
determination of guilt of the accused by a Court of law. At
the stage of filing or forwarding the charge-sheet to the
Court, the material which is made a part of the charge-
sheet has not even tested by a competent Court of law
and the Judge has clearly not applied his mind to the said
material. Courts have repeatedly held that a charge-sheet
does not constitute a substantive piece of evidence as it
not yet tested on the anvil of cross-examination.No rights
of hearing are granted to the accused at this stage. At the
stage of filing of charge-sheet, before summons are
issued, the accused does not even have a copy of the
charge-sheet or any connected material.
Disqualifying a person therefore, simply on the basis of
something which he has had no opportunity to look into,
or no knowledge of, would be against the principles of
natural justice.
46
Disqualifying a person at this stage would mean that a
person is penalized without proceedings being initiated
against him. This would be tantamount to granting the
judicial determination of the question of disqualification to
the police, who are a prosecuting authority. At the
National Consultation it was agreed by consensus that
this was an inappropriate stage for disqualification of
candidates for elected office.‖
49. The Commission then felt that it was worthwhile to discuss why
the stage of taking of cognizance would be an inappropriate stage for
disqualification and in this regard, the Commission observed that the
taking of cognizance simply means taking judicial notice of an offence
with a view to initiate proceedings in respect of such offence alleged
to have been committed by someone and that it is an entirely different
matter from initiation of proceedings against someone; rather, it is a
precondition to the initiation of proceedings. The Commission took
the view that while taking cognizance, the Court has to consider only
the material put forward in the charge-sheet and it is not open for the
Court at this stage to sift or appreciate the evidence and come to a
conclusion that no prima facie case is made out for proceeding
further in the matter. Further, at the stage of taking cognizance, the
accused has no right to present any evidence or make any
47
submissions and even though the accused may provide exculpatory
evidence to the police, the latter is under no obligation to include such
evidence as part of the charge-sheet. The Commission went on to
conclude that the stages of filing of charge sheet or taking
cognizance would be inappropriate and observed thus:-
―Due to the absence of an opportunity to the accused to
be heard at the stage of filing of charge-sheet or taking of
cognizance, and due to the lack of application of judicial
mind at this stage, it is not an appropriate stage to
introduce electoral disqualifications. Further, in a case
supposed to be tried by the Sessions Court, it is still the
Magistrate who takes cognizance. Introduction of
disqualifications at this stage would mean that a
Magistrate who has been deemed not competent to try
the case still determines whether a person should be
disqualified due to the charges filed.
Because of these reasons, it is our view that the filing of
the police report under Section 173 CrPC or taking of
cognizance is not an appropriate stage to introduce
electoral disqualifications…‖
50. Thereafter, the Commission proceeded to examine why the
framing of charges is an appropriate stage for disqualification. It went
on to make the following observations on this aspect:-
―The Supreme Court, in Debendra Nath Padhi, overruling
Satish Mehra, held that the accused cannot lead any
evidence at charging stage. Thus, the decision of the
judge has to be based solely on the record of the case,
48i.e. the investigation report and documents submitted by
the prosecution. Though the determination of framing of
charges is based on the record of the case, the Supreme
Court jurisprudence on Section 227 also imposes certain
burdens to be discharged by the prosecution:
―If the evidence which the Prosecutor proposes
to adduce to prove the guilt of the accused
even if fully accepted before it is challenged in
cross-examination or rebutted by the defence
evidence; if any, cannot show that the accused
committed the offence then there will be no
sufficient ground for proceeding with the trial.‖
51. The Commission was of the view that additionally, the burden
on the prosecution at the stage of framing of charges also involves
proving a prima facie case and as per the decision in State of
Maharashtra v. Som Nath Thapa13 , a prima facie case is said to be
in existence ―if there is ground for presuming that the accused has
committed the offence.‖ Further, the Commission observed that in
order to establish a prime facie case, the evidence on record should
raise not merely some suspicion with regard to the possibility of
conviction, but a ―grave‖ suspicion and to corroborate its view, the
13
(1996) 4 SCC 659
49Commission referred to the observations in Union of India v.
Prafulla Kumar Samal14 which were to the following effect:-
―If two views are possible and the Judge is satisfied
that the evidence produced before him while giving rise
to some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge
the accused.‖
52. After so analysing, the Commission concluded that since the
stage of framing of charges is based on substantial level of judicial
scrutiny, a totally frivolous charge will not stand such scrutiny and
therefore, given the concern of criminalisation of politics in India,
disqualification at the stage of framing of charges is justified having
substantial attendant legal safeguards to prevent misuse. The
Commission buttressed the said view on the following grounds:-
―As explained above, the Supreme Court has made it
clear that the framing of charges under Section 228 of the
CrPC requires an application of judicial mind to determine
whether there are sufficient grounds for proceeding
against the accused. Further, the burden of proof at this
stage is on the prosecution who must establish a prima
facie case where the evidence on record raises ‗grave
suspicion‘. Together, these tests offer protection against
false charges being imposed.
In addition to the safeguards built in at the stage of
framing of charges, an additional option is available in the14
(1979) 3 SCC 4
50shape of Section 311 of the Code of Criminal Procedure.
Section 311 grants power to the Court to summon or
examine any person at any stage of the trial if his
evidence appears essential to the just decision of the
case. Although this section is not very widely used, and
the Supreme Court has cautioned against the arbitrary
exercise of this power, it grants wide discretion to the
court which may even be exercised suomotu. This
section may be used by the Court to examine additional
evidence before framing charges where the consequence
of such framing may disqualify the candidate.
The framing of charges is therefore not an automatic step
in the trial process, but one that requires a preliminary
level of judicial scrutiny. The provisions in the CrPC
require adequate consideration of the merits of a criminal
charge before charges are framed by the Court. The level
of scrutiny required before charges are framed is
sufficient to prevent misuse of any provision resulting in
disqualification from contesting elections.
Moreover enlarging the scope of disqualifications to
include the stage of framing of charges in certain
offences does not infringe upon any Fundamental or
Constitutional right of the candidate. RPA creates and
regulates the right to contest and be elected as a Member
of Parliament or a State Legislature. From the early years
of our democracy, it has been repeatedly stressed by the
Supreme Court that the right to be elected is neither a
fundamental nor a common law right. It is a special right
created by the statute and can only be exercised on the
conditions laid down by the statute. Therefore, it is not
subject to the Fundamental Rights chapter of the
constitution.‖
53. While addressing the three concerns, namely, misuse, lack of
remedy for the accused and the sanctity of criminal jurisprudence, the
51
Commission stated that none of these concerns possess sufficient
argumentative weight to displace the arguments in the previous
section as although misuse is certainly a possibility, yet the same
does not render a proposal to reform the law flawed in limine. Further,
the Supreme Court has repeatedly pointed out in the context of
statutory power vested in an authority that the possibility of misuse of
power is not a reason to not confer the power or to strike down such
provision. It observed:-
―Similarly a potential fear of misuse cannot provide
justification for not reforming the law per se. It does point
to the requirement of instituting certain safeguards,
circumscribing the conditions under which such
disqualification will operate…Though there is a view that
the accused has limited rights at the stage of framing of
charge, the legal options available to him are fairly
substantial. As the previous section shows, the stage of
framing of charges involves considerable application of
judicial mind, gives the accused an opportunity to be
heard, places the burden of proof on the prosecution to
demonstrate a prima facie case and will lead to discharge
unless the grounds pleaded are sufficient for the matter to
proceed to trial. Thus it is not as if the accused has no
remedy till charges are framed—on the contrary, he has
several legal options available to him prior to this stage.
Finally, though criminal jurisprudence presumes a man
innocent till proven otherwise, disqualifying a person from
contesting elections at the stage of framing of charges
does not fall foul of this proposition. Such a provision has
no bearing on whether indeed the person concerned is
52guilty of the alleged offence or not. On the contrary, it
represents a distinct legal determination of the types of
persons who are suitable for holding representative public
office in India. Given the proliferation of criminal elements
in Parliament and State Assemblies, it is indicative of a
public resolve to correct this situation. Further, the
existing provisions which disqualify persons on conviction
alone have been unable to achieve this task. Thus it is
now strongly felt that it is essential to disqualify those
persons who have had criminal charges framed against
them by a court of competent jurisdiction, subject to
certain safeguards, from contesting in elections. Such a
determination of suitability for representative office has no
bearing on his guilt or innocence which can, and will, only
be judged at the criminal trial. To conflate the two and
thereby argue that the suggested reform is
jurisprudentially flawed would be to make a category
mistake.‖
54. However, the Commission proposed certain safeguards in the
form of limiting the disqualification to operate only in certain cases,
defining cut-off period and period of applicability. The reasons for
ensuring such safeguards as laid out in the report as are follows:
―….Limiting the offences to which this disqualification
applies has two clear reasons, i.e. those offences which
are of such nature that those charged with them are
deemed unsuitable to be people‘s representatives in
Parliament or State Legislatures are included and the list
is circumscribed optimally to prevent misuse to the
maximum extent possible……
…All offences which have a maximum punishment of five
years or more ought to be included within the remit of this
provision. Three justifications support this proposal: first,
53all offences widely recognised as serious are covered by
this provision. This includes provisions for murder, rape,
kidnapping, dacoity, corruption under the Prevention of
Corruption Act and other crimes of a nature that justify
those charged with them being disqualified from holding
public office. Second, the data extracted above
demonstrates that a large portion of offences for which
MPs, MLAs and contesting candidates face criminal
prosecutions relate to such provisions. Thus the reformed
provision will ensure that such candidates are disqualified
thereby creating a significant systemic impact. Third, it
has the benefit of simplicity—by prescribing a standard
five-year period, the provision is uniform and not
contingent on specific offences which may run the risk of
arbitrariness. The uniform five-year period thus makes a
reasonable classification— between serious and non-
serious offences and has a rational nexus with its
object—preventing the entry of significantly criminal
elements into Parliament and State Legislature.‖
55. With regard to laying down the safeguard of defining a cut-off
period, the Commission observed thus:-
―An apprehension was raised that introducing such a
disqualification will lead to a spate of false cases in which
charges might be framed immediately prior to an election
with the sole intention of disqualifying a candidate. This is
sought to be offset by a cut-off period before the date of
scrutiny of nomination for an election, charges filed during
which period, will not attract disqualification. The basis for
this distinction is clear— to prevent false cases being filed
against political candidates.
x x x
54….The cut-off period should be one year from the date of
scrutiny of the nomination, i.e. charges filed during the
one year period will not lead to disqualification. We feel
that one year is an appropriate time-frame. It is long
enough so that false charges which may be filed
specifically to disqualify candidates will not lead to such
disqualification; at the same time it is not excessively long
which would have made such disqualification redundant.
It thus allows every contesting candidate at minimum a
one year period to get discharged. It thus strikes an
appropriate balance between enlarging the scope of
disqualification while at the same time seeks to
disincentivise the filing of false cases solely with the view
to engineer disqualification.‖
56. Another safeguard in the form of period of applicability was also
proposed by the Commission which prescribes a time period or
duration for which the said disqualification applies. It provides as
follows:-
―For convictions under Section 8(1) a person is
disqualified for six years from conviction in case he is
punished only with a fine or for the duration of the
imprisonment in addition to six years starting from his
date of release. For convictions under Section 8(2) and
8(3) he is disqualified simply for the duration of his
imprisonment and six years starting from the date of
release. Given that disqualifications on conviction have a
time period specified, it would be anomalous if
disqualification on the framing of charges omitted to do so
and applied indefinitely. It is thus essential that a time
period be specified….‖
55
57. The rationale provided for fixing the time period as above was
given in the following terms:-
―…170th Law Commission under the Chairmanship of
Justice B P Jeevan Reddy. In this report the specified
period of disqualification was suggested to be five years
from the date of framing of charge, or acquittal, whichever
is earlier.
…We find great merit in this proposal. However it must be
noted that the report did not recommend a cut-off period
before the election, a charge framed during which would
not lead to disqualification. Thus the rationale behind the
five-year period was that the charged person would at
least be disqualified from contesting in one election.
This however will not be the case if a one-year cut off
period is created. This is because if a person has a
charged framed against him six months before an
election, then he will not disqualified from this election
because it is within the protected window. At the same
time, assuming that the next election is five years later
(which is a standard assumption) then he will not be
disqualified from the second election as well because five
years from the date of framing of charge will have lapsed
by then. To take into account the effect of this cut-off
period, it is thus recommended that the period of
disqualification is increased to six years from the date of
framing of charge or acquittal whichever is earlier.
The rationale for this recommendation is clear: if a person
is acquitted, needless to say the disqualification is lifted
from that date. If he is not, and the trial is continuing, then
the six-year period is appropriate for two reasons— first, it
is long enough to ensure that the enlarged scope of
disqualification has enough deterrent effect. A six-year
period would at least ensure that a person will be
disqualified from one election cycle thereby serving as a
56real safeguard against criminals entering politics. At the
same time it is the same as the period prescribed when a
person is disqualified on conviction for certain offences,
which such provision is comparable to. It thus has the
added merit of uniformity. For these reasons, it is
recommended that in the event of a charge being framed
in respect of the enumerated offences against a person,
he will be disqualified from contesting in elections for a
period of six years from the date of framing of charge or
till acquittal whichever is earlier, provided that the charge
has not been framed within the protected window before
an election.‖
58. The eventual recommendations and proposed Sections by the
Law Commission read as follows:-
―1. x x x x x
2. The filing of the police report under Section 173 Cr.PC
is not an appropriate stage to introduce electoral
disqualifications owing to the lack of sufficient application
of judicial mind at this stage.
3. The stage of framing of charges is based on adequate
levels of judicial scrutiny, and disqualification at the stage
of charging, if accompanied by substantial attendant legal
safeguards to prevent misuse, has significant potential in
curbing the spread of criminalisation of politics.
4. The following safeguards must be incorporated into the
disqualification for framing of charges owing to potential
for misuse, concern of lack of remedy for the accused and
the sanctity of criminal jurisprudence:
i. Only offences which have a
maximum punishment of five years or above
ought to be included within the remit of this
provision.
57
ii. Charges filed up to one year
before the date of scrutiny of nominations for an
election will not lead to disqualification.
iii. The disqualification will operate till an
acquittal by the trial court, or for a period of six
years, whichever is earlier.
iv. For charges framed against sitting
MPs/ MLAs, the trials must be expedited so that
they are conducted on a day-to-day basis and
concluded within a 1-year period. If trial not
concluded within a one year period then one of
the following consequences ought to ensue:
– The MP/ MLA may be disqualified at
the expiry of the one-year period; OR
– The MP/ MLA‘s right to vote in the
House as a member, remuneration and other
perquisites attaching to their office shall be
suspended at the expiry of the one-year period.
5. Disqualification in the above manner must apply
retroactively as well. Persons with charges pending
(punishable by 5 years or more) on the date of the
law coming into effect must be disqualified from
contesting future elections, unless such charges are
framed less than one year before the date of
scrutiny of nomination papers for elections or the
person is a sitting MP/MLA at the time of enactment
of the Act. Such disqualification must take place
irrespective of when the charge was framed.
x x x
1. There is large-scale violation of the laws on
candidate affidavits owing to lack of sufficient legal
consequences. As a result, the following changes
should be made to the RPA:
58
i. Introduce enhanced sentence of a
minimum of two years under Section 125A of the
RPA Act on offence of filing false affidavits
ii. Include conviction under Section
125A as a ground of disqualification under
Section 8(1) of the RPA.
iii. Include the offence of filing false affidavit
as a corrupt practice under S. 123 of the RPA.
2. Since conviction under Section 125A is necessary for
disqualification under Section 8 to be triggered, the
Supreme Court may be pleased to order that in all trials
under Section 125A, the relevant court conducts the trial
on a day-to-day basis
3. A gap of one week should be introduced between the
last date for filing nomination papers and the date of
scrutiny, to give adequate time for the filing of objections
to nomination papers.‖
59. 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.
60. Having stated about the relevant aspects of the Law
Commission Report and the indifference shown to it, the learned
counsel for the petitioners and intervenors have submitted that
59
certain directions can be issued to the Election Commission so that
the purity of democracy is strengthened. It is urged by them 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
61. Article 324 of the Constitution lays down the power of the
Election Commission with respect to superintendence, direction and
control of elections and reads thus:-
“324. Superintendence, direction and control of
elections to be vested in an Election
Commission:—(1) The superintendence, direction
and control of the preparation of the electoral rolls for,
and the conduct of, all elections to Parliament and to
the Legislature of every State and of elections to the
offices of President and Vice President held under this
Constitution shall be vested in a Commission (referred
to in this Constitution as the Election Commission).
(2) The Election Commission shall consist of the Chief
Election Commissioner and such number of other
Election Commissioners, if any, as the President may
from time to time fix and the appointment of the Chief
Election Commissioner and other Election
Commissioners shall, subject to the provisions of any
law made in that behalf by Parliament, be made by the
President.
(3) When any other Election Commissioner is so
appointed the Chief Election Commissioner shall act
as the Chairman of the Election Commission.
60
(4) Before each general election to the House of the
People and to the Legislative Assembly of each State,
and before the first general election and thereafter
before each biennial election to the Legislative Council
of each State having such Council, the President may
also appoint after consultation with the Election
Commission such Regional Commissioners as he may
consider necessary to assist the Election Commission
in the performance of the functions conferred on the
Commission by clause (1).
(5) Subject to the provisions of any law made by
Parliament, the conditions of service and tenure of
office of the Election Commissioners and the Regional
Commissioners shall be such as the President may by
rule determine; Provided that the Chief Election
Commissioner shall not be removed from his office
except in like manner and on the like grounds as a
Judge of the Supreme Court and the conditions of
service of the Chief Election Commissioner shall not
be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner
or a Regional Commissioner shall not be removed
from office except on the recommendation of the Chief
Election Commissioner.
(6) The President, or the Governor of a State, shall,
when so requested by the Election Commission, make
available to the Election Commission or to a Regional
Commissioner such staff as may be necessary for the
discharge of the functions conferred on the Election
Commission by Clause (1).‖
62. This Court in a catena of judgments has elucidated upon the role
of the Election Commission and the extent to which it can exercise its
power under the constitutional framework.
61
63. In Election Commission of India and another. v. Dr.
Subramaniam Swamy and another15, this Court ruled that the
opinion of the Election Commission is a sine qua non for the
Governor or the President, as the case may be, to give a decision on
the question whether or not the concerned member of the House of
the Legislature of the State or either House of Parliament has
incurred a disqualification. The Court observed:-
“Then we turn to Clause (2) of Article 192 which reads
as under:
192(2) – Before giving any decision on any such
question, the Governor shall obtain the opinion of
the Election Commission and shall act according
to such opinion.
It is clear from the use of the words ‘shall obtain’
the opinion of the Election Commission, that it is
obligatory to obtain the opinion of the Election
Commission and the further stipulation that the
Governor “shall act” according to such opinion leaves
no room for doubt that the Governor is bound to act
according to that opinion. The position in law is well
settled by this Court’s decision in Brundaban v.
Election Commission, [1965] 3 SCR 53 wherein this
Court held that it is the obligation of the Governor to
take a decision in accordance with the opinion of the15
(1996) 4 SCC 104
62Election Commission. It is thus clear on a conjoint
reading of the two clauses of Article 192 that once a
question of the type mentioned in the first clause is
referred to the Governor, meaning thereby is raised
before the Governor, the Governor and the Governor
alone must decide it but this decision must be taken
after obtaining the opinion of the Election Commission
and the decision which is made final is that decision
which the Governor has taken in accordance with the
opinion of the Election Commission. In effect and
substance the decision of the Governor must depend
on the opinion of the Election Commission and none
else, not even the Council of Ministers. Thus the
opinion of the Election Commission is decisive since
the final order would be based solely on that opinion.
8. The same view came to be expressed in the case of
Election Commission of India v. N.G. Ranga, [1979] 1
SCR2 10, while interpreting Article 103(2) of the
Constitution, the language thereof is verbatim except
that instead of the Governor in Article 192(2), here the
decision has to be made by the President. So also the
language of Articles 192(1) and 103(1) is identical
except for the same change. The Constitution Bench of
this Court reiterated that the President was bound to
seek and obtain the opinion of the Election
Commission and only thereafter decide the issue in
accordance therewith. It other words, it is the Election
Commission’s opinion which is decisive.”
64. In Mohinder Singh Gill (supra), Krishna Iyer J. opined:-
“12. The scheme is this. The President of India
(Under Section 14) ignites the general elections
across the nation by calling upon the People, divided
into several constituencies and registered in the
electoral rolls, to choose their representatives to the
63Lok Sabha. The constitutionally appointed authority,
the Election Commission, takes over the whole
conduct and supervision of the mammoth enterprise
involving a plethora of details and variety of activities,
and starts off with the notification of the time table for
the several stages of the election (Section 30).’ The
assembly line operations then begin. An
administrative machinery and technology to execute
these enormous and diverse jobs is fabricated by the
Act, creating officers, powers and duties, delegation
of functions and location of polling stations. The
precise exercise following upon the calendar for the
poll, commencing from presentation of nomination
papers, polling drill and telling of votes, culminating in
the declaration and report of results are covered by
specific prescriptions in the Act and the rules. The
secrecy of the ballot, the authenticity of the voting
paper and its’ later identifiability with reference to
particular polling stations, have been thoughtfully
provided for. Myriad other matters necessary for
smooth elections have been taken care of by several
provisions of the Act.”
65. Further, the Court observed in Mohinder Singh Gill (supra)
that a re-poll for a whole constituency under compulsion of
circumstances may be directed for the conduct of elections and can
be saved by Article 324 provided it is bona fide and necessary for the
vindication of the free verdict of the electorate and the abandonment
of the previous poll was because it failed to achieve that goal. The
Court ruled that even Article 324 does not exalt the Commission into
64
a law unto itself. Broad authority does not bar scrutiny into specific
validity of a particular order. Having said that, the Court passed the
following directions:-
“2(a) The Constitution contemplates a free and fair
election and vests comprehensive responsibilities of
superintendence, direction and control of the conduct
of elections in the Election Commission. This,
responsibility may cover powers, duties and functions
of many sorts, administrative or other, depending on
the circumstances.
(b) Two limitations at least are laid on its plenary
character in the exercise thereof. Firstly, when
Parliament or any State Legislature has made valid law
relating to or in connection with elections, the
Commission shall act in conformity with, not in violation
of such provisions but where such law is silent Article
324 is a reservoir of power to act for the avowed
purpose of, not divorced from pushing forward a free
and fair election with expedition- Secondly, the
Commission shall be responsible to the rule of law, act
bona fide and be amenable to the norms of natural
justice in so far as conformance to such canons can
reasonably and realistically be required of it as fairplay-
in-action in a most important area of the constitutional
order, viz., elections. Fairness does import an
obligation to see that no wrong-doer candidate benefits
by his own wrong. To put the matter beyond doubt
natural justice enlivens and applies to the specific case
of order for total repoll although not in full panoply but
inflexible practicability. Whether it has been complied
with is left open for the Tribunal adjudication.”
65
66. In the concurring judgment in Mohinder Gill (supra), Goswami,
J., with regard to Article 324, observed thus in para 113:-
―…Since the conduct of all elections to the various
legislative bodies and to the offices of the President
and the Vice-President is vested under Article 324(1)
in the Election Commission, the framers of the
Constitution took care to leaving scope for exercise of
residuary power by the Commission, in its own right,
as a creature of the Constitution, in the infinite variety
of situations that may emerge from time to time in such
a large democracy as ours. Every contingency could
not be foreseen, or anticipated with precision. That is
why there is no hedging in Article 324. The
Commission may be required to cope with some
situation which may not be provided for in the enacted
laws and the rules…‖
67. In A.C. Jose v. Sivan Pillai and others16, this Court held that:-
“It is true that Article 324 does authorise the
Commission to exercise powers of superintendence,
direction and control of preparation of electoral rolls
and the conduct of elections to Parliament and State
legislatures but then the Article has to be read
harmoniously with the Articles that follow and the
powers that are given to the Legislatures under entry
No. 72 in the Union List and entry No. 37 of the State
List of the Seventh Schedule to the Constitution. The
Commission in the garb of passing orders for
regulating the conduct of elections cannot take upon
itself a purely legislative activity which has been
reserved under the scheme of the Constitution only to16
AIR 1984 SC 921
66Parliament and the State legislatures. By no standards
can it be said that the Commission is a third Chamber
in the legislative be process within the scheme of the
Constitution. merely being a creature of the
Constitution will not give it plenary and absolute power
to legislate as it likes without reference to the law
enacted by the legislatures.‖
[Emphasis added]
68. In Association for Democratic Reforms (supra), the Court
opined:-
“Under Article 324, the superintendence, direction and
control of the ‘conduct of all elections’ to Parliament
and to the Legislature of every State vests in Election
Commission. The phrase ‘conduct of elections’ is held
to be of wide amplitude which would include power to
make all necessary provisions for conducting free and
fair elections.”
69. In Kuldip Nayar v. Union of India and others17, this Court
has observed:-
“181. It has been argued by the petitioners that the
Election Commission of India, which under the
Constitution has been given the plenary powers to
supervise the elections freely and fairly, had opposed
the impugned amendment of changing the secret ballot
system. Its view has, therefore, to be given proper
weightage.
17
(2006) 7 SCC 1
67In this context, we would say that where the law on the
subject is silent, Article 324 is a reservoir of power for
the Election Commission to act for the avowed
purpose of pursuing the goal of a free and fair election,
and in this view it also assumes the role of an adviser.
But the power to make law under Article 327 vests in
the Parliament, which is supreme and so, not bound by
such advice. We would reject the argument by
referring to what this Court has already said in
Mohinder Singh Gill (supra) and what bears reiteration
here is that the limitations on the exercise of “plenary
character” of the Election Commission include one to
the effect that “when Parliament or any State
Legislature has made valid law relating to or in
connection with elections, the Commission, shall act in
conformity with, not in violation of, such provisions.”
70. 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.
71. It is submitted by Mr. Krishnan Venugopal, learned senior
counsel appearing for the petitioner in Writ Petition (Civil) No. 800 of
2015 that traditionally, the Court would not breach the principle of
68
separation of powers, however, this cannot prevent this Court from
passing necessary directions to address the systemic growth of the
problem of criminalization of politics and the political system without
breaching the principle of separation of powers and this Court, in
order to discharge its constitutional function, can give directions to the
Election Commission to exercise its powers under Article 324 of the
Constitution to redress violation of the fundamental rights and to
protect the purity of the electoral process. Mr. Venugopal contends
that in the past too, this Court, on several instances, had given
directions to the Election Commission. He has also pointed out that
the reason behind the urgent need for this Court to intervene to tackle
the growing menace of criminalization of politics is that several law
commission reports and other papers have unanimously concluded
that there is widespread criminalization of politics and this Court has
also taken cognizance of this fact in several of its judgments, but
despite the said reports and the efforts of this Court, neither the
Parliament nor the Government of India has taken serious actions to
tackle the problem.
69
72. Further, Mr. Venugopal has drawn the attention of this Court to
the findings in the Report titled ‘Milan Vaishnav, When crime pays:
Money and Muscle in Indian Politics‖18 to highlight that there is an
alarming increase in the number of candidates with criminal
antecedents and their chances of winning have actually increased
steadily over the years and there is ample evidence in the form of
statistical data which reinstates this fact.
73. On that basis, it is contended that the empirical evidence
supports the view that the current legislative framework permits
criminals to enter the electoral arena and become legislators which
interferes with the purity and integrity of the electoral process,
violates the right to choose freely the candidate of the voter’s choice
thereby violating the freedom of expression of a voter and amounts to
a subversion of democracy which is a part of the basic structure and
is, thus, antithetical to the Rule of Law.
74. Mr. Venugopal‘s submission has been supported by Mr. Dinesh
Dwivedi, learned senior counsel appearing for the petitioners in Writ
18
Milan Vaishnav, When crime pays: Money and Muscle in Indian Politics, Yale Press University, New
Haven (2017)
70
Petition (Civil) No. 536 of 2011 and Mr. Sidharth Luthra, learned
Amicus Curiae, 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.
75. The aforesaid submission is seriously opposed by the learned
Attorney General. It is the case of the first respondent that Section
29A of the Act does not permit the Election Commission of India to
deregister a political party. To advance this view, the Union of India
71
has relied upon the decision of this Court in Indian National
Congress (I) v. Institute of Social Welfare and others19.
76. It is also the asseveration of the first respondent that the power
of this Court to issue directions to the Election Commission of India
have been elaborately dealt with in Association for Democratic
Reforms (supra) wherein this Court held that Article 32 of the
Constitution of India only operates in areas left unoccupied by
legislation and in the case at hand, the Constitution of India and the
Representation of the People Act, 1951 already contain provisions for
disqualification of Members of Parliament. Therefore, directing the
Election Commission to (a) deregister a political party, (b) refuse
renewal of a political party or (c) to not register a political party if they
associate themselves with persons who are merely charged with
offences would amount to adopting a colourable route, that is, doing
indirectly what is clearly prohibited under the Constitution of India and
the Representation of the People Act.
77. It is also contended on behalf of the Union of India that adding
a condition to the recognition of a political party under the Symbols
19
(2002) 5 SCC 685
72
Order would also result in doing indirectly what is clearly prohibited.
To buttress this stand, the Union of India has cited the decisions in
Jagir Singh v. Ranbir Singh and another20 and M.C. Mehta v.
Kamal Nath and others21.
78. Further, it has been submitted by the first respondent that
Section 29A(5) of the Act is a complete, comprehensive and
unambiguous provision of law and any direction to the Election
Commission of India to deregister or refuse registration to political
parties who associate themselves with persons merely charged with
offences would result in violation of the doctrine of separation of
powers as that would tantamount to making addition to a statute
which is clear and unambiguous.
79. As per the first respondent, ‘pure law’ in the nature of
constitutional provisions and the provisions of the Act cannot be
substituted or replaced by judge made law. To advance the said
stand, the first respondent has cited the judgments of this Court in
State of Himachal Pradesh and others v. Satpal Saini22 and
20
(1979) 1 SCC 560
21
(2000) 6 SCC 213
22
(2017) 11 SCC 42
73
Kesavananda Bharati v. State of Kerala and another23 wherein the
doctrine of separation of powers was concretised by this Court. It is
the contention of the first respondent that answering the present
reference in the affirmative would result in violation of the doctrine of
separation of powers.
80. The first respondent has also contended that the presumption
of innocence until proven guilty is one of the hallmarks of Indian
democracy and the said presumption attaches to every person who
has been charged of any offence and it continues until the person has
been convicted after a full-fledged trial where evidence is led. Penal
consequences cannot ensue merely on the basis of charge.
81. Drawing support from the judgment of this Court in Amit
Kapoor v. Ramesh Chander and another24, it is averred by the first
respondent that the standard of charging a person is always less than
a prima facie case, i.e., a person can be charged if the facts
emerging from the record disclose the existence of all the ingredients
constituting the alleged offence and, therefore, the consequences of
23
(1973) 4 SCC 225
24
(2012) 9 SCC 460
74
holding that a person who is merely charged is not entitled to
membership of a political party would be grave as it would have the
effect of taking away a very valuable advantage of the symbol of the
political party.
82. It has been further contended by the first respondent that every
citizen has a right under Article 19(l)(c) to form associations which
includes the right to be associated with persons who are otherwise
qualified to be Members of Parliament under the Constitution of India
and under the law made by the Parliament. Further, this right can
only be restricted by law made by the Parliament and any direction
issued by the Election Commission of India under Article 324 is not
law for the purpose of Article 19(l)(c).
83. The first respondent also submits that the Act already contains
detailed provisions for disclosure of information by a candidate in the
form of Section 33A which requires every candidate to disclose
information pertaining to offences that he or she is accused of. This
information is put on the website of the Election Commission of India
and requiring every member of a political party to disclose such
75
information irrespective of whether he/she is contesting election will
have serious impact on the privacy of the said member.
84. Relying upon the decisions in Union of India and another v.
Deoki Nandan Aggarwal25 and Supreme Court Bar Association v.
Union of India and another26, the first respondent has submitted
that Article 142 of the Constitution of India does not empower this
Court to add words to a statute or read words into it which are not
there and Article 142 does not confer the power upon this Court to
make law.
85. As regards the issue that there is a vacuum which necessitates
interference of this Court, the first respondent has contended that this
argument is untenable as the provisions of the Constitution and the
Act are clear and unambiguous and, therefore, answering the
question referred to in the affirmative would be in the teeth of the
doctrine of separation of powers and would be contrary to the
provisions of the Constitution and to the law enacted by the
Parliament.
25
(1992) Supp (1) 323
26
(1998) 4 SCC 409
76
Analysis of the Election Symbols Order
86. In the adverting situation and keeping in view the submissions
on the behalf of the petitioners, it is pertinent to scan and analyse the
relevant provisions of the Symbols Order which deals with allotment,
classification, choice of symbols by candidates and restriction on the
allotment of symbols. Clause (4) of the Symbols Order reads:-
―4. Allotment of symbols – In every contested
election a symbol shall be allotted to a contesting
candidate in accordance with the provisions of this
Order and different symbols shall be allotted to
different contesting candidates at an election in the
same constituency.‖
87. Clause (4) of the Symbols Order makes it clear that in each and
every contested election, a symbol, to each and every contesting
candidate, shall be allotted in accordance with the provisions of this
Symbols Order and in case of an election in the same constituency,
different symbols shall be allotted to different contesting candidates.
Now, we must also dissect clause (5) of the Symbols Order which
reads:-
―5. Classification of symbols – (1) For the purpose of
this Order symbols are either reserved or free.
(2) Save as otherwise provided in this Order, a
reserved symbol is a symbol which is reserved for a
77recognised political party for exclusive allotment to
contesting candidates set up by that party.
(3) A free symbol is a symbol other than a reserved
symbol.‖
88. Sub-clause (1) of clause (5) of the Symbols Order, a priori,
segregates the symbols for the purposes of this Symbols Order into
two simon pure categories, i.e., ‘Reserved’ or ‘Free’. Therefore, a
symbol under the Symbols Order can either be reserved or it can be
free. Before decoding sub-clause (2) of clause (5), we may first
decipher sub-clause (3) which gives a negative definition to a free
symbol. As per sub-clause (3) of clause (5), a symbol is free if is not
reserved under the Symbols Order. Sub-clause (2) of clause (5)
which defines a reserved symbol stipulates that except as otherwise
provided in the Symbols Order, a reserved symbol is one which is
reserved for a recognised political party for exclusive allotment to the
contesting candidates set up by such political party.
89. Thereafter, clause (6) classifies political parties into state
parties and national parties. Clauses (6A) and (6B) stipulate the
conditions for recognition of state and national parties, respectively.
78
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. Clause (17)
reads as under:-
―17. Notification containing lists of political parties
and symbols –
(1) The Commission shall by one or more
notifications in the Gazette of India publish lists
specifying-
(a) the National Parties and the symbols respectively
reserved for them;
(b) the State Parties, the State or States in which they
are State Parties and the symbols respectively
reserved for them in such State or States;
x x x‖
90. 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 which reads thus:-
―8. Choice of symbols by candidates of National
and State Parties and allotment thereof –
(1) A candidate set up by a National Party at any
election in any constituency in India shall choose, and
79shall be allotted, the symbol reserved for that party and
no other symbol.
(2) A candidate set up by a State Party at an election
in any constituency in a State in which such party is a
State Party, shall choose, and shall be allotted the
symbol reserved for that Party in that State and no
other symbol.
(3) A reserved symbol shall not be chosen by, or
allotted to, any candidate in any constituency other
than a candidate set up by a National Party for whom
such symbol has been reserved or a candidate set up
by a State Party for whom such symbol has been
reserved in the State in which it is a State Party even if
no candidate has been set up by such National or
State Party in that constituency.‖
91. For exegesis of clause (8) of the Symbols Order, it is apt that
we refer to clause (13) which provides as to when a candidate is
deemed to be set up by a political party. Clause (13) reads as under:-
―13. When a candidate shall be deemed to be set
up by a political party.―For the purposes of an
election from any parliamentary or assembly
constituency to which this Order applies, a candidate
shall be deemed to be set up by a political party in any
such parliamentary or assembly constituency, if, and
only if,-
(a) the candidate has made the prescribed declaration
to this effect in his nomination paper;
(aa) the candidate is a member of that political party
and his name is borne on the rolls of members of the
party;
80
(b) a notice by the political party in writing, in Form B,
to that effect has, not later than 3 p.m. on the last date
for making nominations, been delivered to the
Returning Officer of the constituency;
(c) the said notice in Form B is signed by the
President, the Secretary or any other office bearer of
the party, and the President, Secretary or such other
office bearer sending the notice has been authorised
by the party to send such notice;
(d) the name and specimen signature of such
authorised person are communicated by the party, in
Form A, to the Returning Officer of the constituency
and to the Chief Electoral Officer of the State or Union
Territory concerned, not later than 3 p.m. on the last
date for making nominations; and
(e) Forms A and B are signed, in ink only, by the said
office bearer or person authorised by the party:
Provided that no facsimile signature or signature by
means of rubber stamp, etc., of any such office bearer
or authorised person shall be accepted and no form
transmitted by fax shall be accepted.‖
92. Clause (13) lays down an elaborate procedure in order for a
candidate to be set up by a political party in both the elections to the
Parliament as well as the Assembly constituencies.
93. Coming back to clause (8) of the Symbols Order, as per sub-
clause (1) of clause (8), a candidate set up by a national party in
terms of clause (13) in any constituency in India shall choose the
symbol reserved for such national party and no other symbol. By
81
using the word ‘shall‘, sub-clause (1) of clause (8) makes it
mandatory for a candidate set up by a national party to choose the
symbol reserved for such national party. Further, sub-clause (1),
again on a second instance, by using the word ‘shall’ in the context of
the Election Commission, makes it obligatory for the Election
Commission to allot to a candidate set up by a national party the
symbol reserved for such national party. Therefore, sub-clause (1) by
casting this duty on the Election Commission, as a natural corollary,
gives birth to a right to the candidate set up by a national party to
contest elections under the symbol reserved for such national party.
94. That apart, the first part of sub-clause (3) of clause (8)
stipulates that a symbol reserved, in terms of clause (5) read with
clause (17) of the Symbols Order, shall neither be chosen by nor
allotted by the Election Commission to any candidate in any
constituency other than a candidate set up by a national party.
95. Sub-clause (2) of clause (8) and the latter part of clause (3) are
corresponding provisions for choice of symbol by candidates of State
82
parties which, for the sake of brevity, we need not delve into. Coming
to the last clause of the Symbols Order, clause (18) reads thus:-
―18. Power of Commission to issue instructions
and directions:—The Commission may issue
instructions and directions-
x x x
x x x
(c) in relation to any matter with respect to the
reservation and allotment of symbols and recognition
of political parties, for which this Order makes no
provision or makes insufficient provision, and provision
is in the opinion of the Commission necessary for the
smooth and orderly conduct of elections.‖
96. In terms of sub-clause (c) of clause 18, the power to issue
instructions and directions, in matters relating to reservation and
allotment of symbols, has been reserved by the Election Commission
itself.
97. 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
83
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.
98. 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.
99. Here we may profit to refer to some authorities wherein the said
principle has been discussed elaborately.
84
100. In Allied Motors Limited v. Bharat Petroleum Corporation
Limited27, reference was made to the celebrated judgment of the
Privy Council in Nazir Ahmad v. King Emperor28 wherein the
principle has been enunciated ―that where a power is given to do a
certain thing in a certain way, the thing must be done in that way, or
not at all.‖ Other methods of performance are necessarily forbidden.
This principle has been reiterated and expanded by the Supreme
Court in several decisions.
101. In D.R. Venkatachalam and others v. Dy. Transport
Commissioner and others29, it was observed:-
―In ultimate analysis, the rule of construction relied
upon by Mr. Chitaley to make the last-mentioned
submission is: “Expression unius est exclusio alterius.”
This maxim, which has been described as “a valuable
servant but a dangerous master” (per Lopes J., in
Court of Appeal in Colquhoun v. Brooks, (1888) 21
QBD 52 finds expression also in a rule formulated in
Taylor v. Taylor (1875) 1 Ch D 426 applied by the Privy
Council in Nazir Ahmad v. King Emperor which has
been repeatedly adopted by this Court. That rule says
that an expressly laid down mode of doing something
27
(2012) 2 SCC 1
28
AIR 1936 PC 253
29
AIR 1977 SC 842
85
necessarily implies a prohibition of doing it in any other
way.‖
102. Similarly, in State through. P.S. Lodhi Colony New Delhi v.
Sanjeev Nanda30, this Court observed thus:-
―It is a settled principle of law that if something is
required to be done in a particular manner, then that
has to be done only in that way or not, at all. In AIR
1936 PC 253 (2) Nazir Ahmad v. King Emperor, it has
been held as follows:
―…. The rule which applies is a different and not less
well recognized rule, namely, that where a power is
given to do a certain thing in a certain way the thing
must be done in that way or not at all….‖
103. Another judgment where this principle has been reiterated is
Rashmi Rekha Thatoi and another v. State of Orissa and others31
wherein it was observed thus:-
―In this regard it is to be borne in mind that a court
of law has to act within the statutory command and
not deviate from it. It is a well-settled proposition of
law what cannot be done directly, cannot be done
indirectly. While exercising a statutory power a
court is bound to act within the four corners thereof.
The statutory exercise of power stands on a
different footing than exercise of power of judicial
review.‖30
AIR 2012 SC 3104
31
(2012) 5 SCC 690
86
104. That apart, 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.
In Shailesh Manubhai Parmar v. Election Commission of India32,
while dealing with the issue of introduction of NOTA to the election
process for electing members of the Council of States, this Court
observed thus:-
―…introduction of NOTA to the election process for
electing members of the Council of States will be an
anathema to the fundamental criterion of democracy
which is a basic feature of the Constitution. It can be32
2018 (10) SCALE 52
87stated without any fear of contradiction that the
provisions for introduction of NOTA as conceived by
the Election Commission, the first respondent herein,
on the basis of the PUCL judgment is absolutely
erroneous, for the said judgment does not say so. We
are disposed to think that the decision could not have
also said so having regard to the constitutional
provisions contained in Article 80 and the stipulations
provided under the Tenth Schedule to the Constitution.
The introduction of NOTA in such an election will not
only run counter to the discipline that is expected from
an elector under the Tenth Schedule to the
Constitution but also be counterproductive to the basic
grammar of the law of disqualification of a member on
the ground of defection. It is a well settled principle that
what cannot be done directly, cannot be done
indirectly. To elaborate, if NOTA is allowed in the
election of the members to the Council of States, the
prohibited aspect of defection would indirectly usher in
with immense vigour.
(Emphasis is ours)
105. Here it is apt to note that this Court refused to allow the
introduction of NOTA for election of members of the Council of
States, for the Court was of the view that if the availibilty of NOTA
option in elections for Rajya Sabha would be allowed, the same
would amount to colourable exercise of power by attempting to
introduce or modify a disqualification for being or becoming a
member, which power falls completely within the domain of the
legislature. Ruling so, the Court further observed:-
88
―The introduction of NOTA in indirect elections may on
a first glance tempt the intellect but on a keen scrutiny,
it falls to the ground, for it completely ignores the role
of an elector in such an election and fully destroys the
democratic value. It may be stated with profit that the
idea may look attractive but its practical application
defeats the fairness ingrained in an indirect election.
More so where the elector‗s vote has value and the
value of the vote is transferrable. It is an abstraction
which does not withstand the scrutiny of, to borrow an
expression from Krishna Iyer, J., the ―cosmos of
concreteness. We may immediately add that the option
of NOTA may serve as an elixir in direct elections but
in respect of the election to the Council of States which
is a different one as discussed above, it would not only
undermine the purity of democracy but also serve the
Satan of defection and corruption.‖
106. 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.
107. 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
89
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.
108. 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.
109. 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. In Association for Democratic Reforms (supra), this
Court held:-
90
“38. If right to telecast and right to view sport games
and the right to impart such information is considered
to be part and parcel of Article 19(1)(a), we fail to
understand why the right of a citizen/voter — a little
man — to know about the antecedents of his candidate
cannot be held to be a fundamental right under Article
19(1)(a). In our view, democracy cannot survive
without free and fair election, without free and fairly
informed voters. Votes cast by uninformed voters in
favour of X or Y candidate would be meaningless. As
stated in the aforesaid passage, one-sided information,
disinformation, misinformation and non-information, all
equally create an uninformed citizenry which makes
democracy a farce. Therefore, casting of a vote by a
misinformed and non-informed voter or a voter having
one-sided information only is bound to affect the
democracy seriously. Freedom of speech and
expression includes right to impart and receive
information which includes freedom to hold opinions.
Entertainment is implied in freedom of ‗speech and
expression‘ and there is no reason to hold that
freedom of speech and expression would not cover
right to get material information with regard to a
candidate who is contesting election for a post which is
of utmost importance in the democracy.‖
110. After the said judgment was delivered, the Representation of
the People (Amendment) Ordinance, 2002 (4 of 2002) was
promulgated and the validity of the same was called in question
under Article 32 of the Constitution of India. The three Judge Bench
in People’s Union for Civil Liberties (PUCL) (supra) held that
Section 33-B which provided the candidate to furnish information only
91
under the Act and the rules is unconstitutional. The said provision
read as follows:-
―33-B. Candidate to furnish information only under
the Act and the rules.—Notwithstanding anything
contained in any judgment, decree or order of any court
or any direction, order or any other instruction issued by
the Election Commission, no candidate shall be liable to
disclose or furnish any such information, in respect of
his election, which is not required to be disclosed or
furnished under this Act or the rules made thereunder.‖
111. P. Venkata Reddy, J. expressed his view as follows:-
―(1) Securing information on the basic details concerning
the candidates contesting for elections to Parliament or
the State Legislature promotes freedom of expression
and therefore the right to information forms an integral
part of Article 19(1)(a). This right to information is,
however, qualitatively different from the right to get
information about public affairs or the right to receive
information through the press and electronic media,
though, to a certain extent, there may be overlapping.
* * *
(3) The directives given by this Court in Union of India v.
Assn. for Democratic Reforms were intended to operate
only till the law was made by the legislature and in that
sense ‗pro tempore‘ in nature. Once legislation is made,
the Court has to make an independent assessment in
order to evaluate whether the items of information
statutorily ordained are reasonably adequate to secure
the right of information available to the voter/citizen. In
embarking on this exercise, the points of disclosure
indicated by this Court, even if they be tentative or ad
hoc in nature, should be given due weight and
92substantial departure therefrom cannot be
countenanced.
* * *
(5) Section 33-B inserted by the Representation of the
People (Third Amendment) Act, 2002 does not pass the
test of constitutionality, firstly, for the reason that it
imposes a blanket ban on dissemination of information
other than that spelt out in the enactment irrespective of
the need of the hour and the future exigencies and
expedients and secondly, for the reason that the ban
operates despite the fact that the disclosure of
information now provided for is deficient and inadequate.
(6) The right to information provided for by Parliament
under Section 33-A in regard to the pending criminal
cases and past involvement in such cases is reasonably
adequate to safeguard the right to information vested in
the voter/citizen. However, there is no good reason for
excluding the pending cases in which cognizance has
been taken by the Court from the ambit of disclosure.‖
112. Dharmadhikari, J., in his supplementing opinion, held thus:-
―127. The reports of the advisory commissions set up
one after the other by the Government to which a
reference has been made by Brother Shah, J., highlight
the present political scenario where money power and
muscle power have substantially polluted and perverted
the democratic processes in India. To control the ill-
effects of money power and muscle power the
commissions recommend that election system should be
overhauled and drastically changed lest democracy
would become a teasing illusion to common citizens of
this country. Not only a half-hearted attempt in the
direction of reform of the election system is to be taken,
as has been done by the present legislation by
amending some provisions of the Act here and there,
93but a much improved election system is required to be
evolved to make the election process both transparent
and accountable so that influence of tainted money and
physical force of criminals do not make democracy a
farce — the citizen‘s fundamental ‗right to information‘
should be recognised and fully effectuated. This
freedom of a citizen to participate and choose a
candidate at an election is distinct from exercise of his
right as a voter which is to be regulated by statutory law
on the election like the RP Act.‖
113. In Resurgence India v. Election Commission of India33,
referring to the precedents, this Court ruled thus:-
―20. Thus, this Court held that a voter has the
elementary right to know full particulars of a candidate
who is to represent him in Parliament and such right to
get information is universally recognised natural right
flowing from the concept of democracy and is an integral
part of Article 19(1)(a) of the Constitution. It was further
held that the voter‘s speech or expression in case of
election would include casting of votes, that is to say,
voter speaks out or expresses by casting vote. For this
purpose, information about the candidate to be selected
is a must. Thus, in unequivocal terms, it is recognised
that the citizen‘s right to know of the candidate who
represents him in Parliament will constitute an integral
part of Article 19(1)(a) of the Constitution of India and
any act, which is derogative of the fundamental rights is
at the very outset ultra vires.‖And again:-
33
(2014) 14 SCC 189
94―27. If we accept the contention raised by the Union of
India viz. the candidate who has filed an affidavit with
false information as well as the candidate who has filed
an affidavit with particulars left blank should be treated
on a par, it will result in breach of fundamental right
guaranteed under Article 19(1)(a) of the Constitution viz.
‗right to know‘, which is inclusive of freedom of speech
and expression as interpreted in Assn. for Democratic
Reforms.‖
114. The Court summarized the directions as under:-
―29.1. The voter has the elementary right to know full
particulars of a candidate who is to represent him in
Parliament/Assemblies and such right to get information
is universally recognised. Thus, it is held that right to
know about the candidate is a natural right flowing from
the concept of democracy and is an integral part of
Article 19(1)(a) of the Constitution.
29.2. The ultimate purpose of filing of affidavit along with
the nomination paper is to effectuate the fundamental
right of the citizens under Article 19(1)(a) of the
Constitution of India. The citizens are supposed to have
the necessary information at the time of filing of
nomination paper and for that purpose, the Returning
Officer can very well compel a candidate to furnish the
relevant information.
29.3. Filing of affidavit with blank particulars will render
the affidavit nugatory.
29.4. It is the duty of the Returning Officer to check
whether the information required is fully furnished at the
time of filing of affidavit with the nomination paper since
such information is very vital for giving effect to the ‗right
to know‘ of the citizens. If a candidate fails to fill the
blanks even after the reminder by the Returning Officer,
the nomination paper is fit to be rejected. We do
comprehend that the power of Returning Officer to reject
95the nomination paper must be exercised very sparingly
but the bar should not be laid so high that justice itself is
prejudiced.
29.5. We clarify to the extent that para 73 of People’s
Union for Civil Liberties case will not come in the way of
the Returning Officer to reject the nomination paper
when affidavit is filed with blank particulars.
29.6. The candidate must take the minimum effort to
explicitly remark as ‗NIL‘ or ‗Not Applicable‘ or ‗Not
known‘ in the columns and not to leave the particulars
blank.
29.7. Filing of affidavit with blanks will be directly hit by
Section 125-A(i) of the RP Act. However, as the
nomination paper itself is rejected by the Returning
Officer, we find no reason why the candidate must be
again penalised for the same act by prosecuting
him/her.‖
115. In People’s Union for Civil Liberties v. Union of India34, the
Court held that the universal adult suffrage conferred on the citizens
of India by the Constitution has made it possible for these millions of
individual voters to go to the polls and thereby participate in the
governance of our country. It has been further ruled that for
democracy to survive, it is essential that the best available men
should be chosen as the people‘s representatives for the proper
governance of the country. The best available people, as is expected
by the democratic system, should not have criminal antecedents and
34
(2013) 10 SCC 1
96the voters have a right to know about their antecedents, assets and
other aspects. We are inclined to say so, 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.
97
116. Keeping the aforesaid in view, we think it appropriate to issue
the following directions which are in accord with the decisions of this
Court :-
(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
98same shall be done at least thrice after filing of the
nomination papers.
117. These directions ought to be implemented in true spirit and right
earnestness in a bid to strengthen the democratic set-up. There may
be certain gaps or lacunae in a law or legislative enactment which
can definitely be addressed by the legislature if it is backed by the
proper intent, strong resolve and determined will of right-thinking
minds to ameliorate the situation. It must also be borne in mind that
the law cannot always be found fault with for the lack of its stringent
implementation by the concerned authorities. Therefore, it is the
solemn responsibility of all concerned to enforce the law as well as
the directions laid down by this Court from time to time in order to
infuse the culture of purity in politics and in democracy and foster and
nurture an informed citizenry, for ultimately it is the citizenry which
decides the fate and course of politics in a nation and thereby
ensures that ―we shall be governed no better than we deserve‖, and
thus, complete information about the criminal antecedents of the
candidates forms the bedrock of wise decision-making and informed
99
choice by the citizenry. Be it clearly stated that informed choice is the
cornerstone to have a pure and strong democracy.
118. 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
100
conceive of the idea of entering into politics. They should be kept at
bay.
119. 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.
120. The writ petitions and the criminal appeals are disposed of
accordingly.
…………………………….CJI.
(Dipak Misra)
……………………………….J.
(Rohinton Fali Nariman)
……………………………….J.
(A.M. Khanwilkar)
…………………….………..J.
(Dr. D.Y. Chandrachud)
….………………….……….J.
New Delhi; (Indu Malhotra)
September 25, 2018
