Name of Author- Sagar Mazumdar, Rabindra Shiksha Sammillani Law College, University of Calcutta

Edited by – Sulesh Choudhary

ABSTRACT / HEADNOTE

The case mainly depicts the growing criminalisation of politics in India. Persons with criminal cases against them kept on increasing in the political field. The petitioners urged the Supreme Court to disqualify members with criminal charges. For this, the main issue revolved around the question of whether the Supreme Court disqualified membership under grounds beyond what is provided for in the Constitution as well as in the Representation of India Act, 1951. The petitioners in this regard advanced many arguments. The first respondent that is the Attorney General of India appearing for the Union of India contended that where the Constitution expressly provides that the Parliament is the sole body to make law on this matter, no other body shall make law other than the Parliament. The Court after referring to many judgements, reports and surveys came to the conclusion that it was the Parliament which was bestowed by the Constitution to make laws on the matter. The Court also went on to the extent of discussing other issues of criminalisation of politics, the role of the Election Commission and Analysing of Election Symbol. The Court also provided guidelines in this regard.

Keywords: Criminalisation of Politics, Judicial Statesmanship, Articles 102 & 191 of the Constitution, Separation of Power, Constitutional Morality, Doctrine of Fiduciary Relationship

CASE DETAILS

FACTS OF THE CASE

Procedural Background of the Case

The case was being heard by a three Judge bench of the Hon’ble Supreme Court which was of the view that it would be better to leave the matter for the Constitutional Bench to decide. Though a submission was made before the Court that the matter was already decided in a previous judgement (Madan Narula v. Union of India), the submission was not accepted on the grounds of the views expressed in the separate judgement by Madan B. Lokur, J.

Factual Background of the Case

The case mainly revolved around the growing number of persons becoming lawmakers who themselves have been accused of several crimes. There have been such persons who have been accused of serious offences which are punishable for a period of up to five years and more. This led to the filing of a suit to determine the grounds for disqualification of membership and whether the Court was entitled to disqualify members on some additional grounds other than what was already mentioned under the Constitution and Representation of People Act, 1951.

LEGAL ISSUES RAISED

• Whether the Court can lay down additional grounds for disqualification of membership beyond the grounds mentioned under Article 102(1)(a) to (d); Article 191(1)(a) to (d) and the law made by the Parliament on that behalf?
• The Court was also asked to decide on three interconnected issues: the Criminalisation of Politics; the Role of the Election Commission and the Analysis of Election Symbol.

PETITIONER / APPELLANT’S ARGUMENTS

The counsels for Petitioner / Appellant submitted that

• Role of Court: The growing number of persons with criminal antecedents must not be viewed narrowly but from a wider perspective. The Court should not act as a mute spectator. Given ‘judicial statesmanship’, it has a major role to play.
• Law Breakers should not be Law Makers: The petitioners cited the recommendations of the Law Commission which stated that the political atmosphere was being dominated by history sheeters.
• Doctrine of Fiduciary Relationship: The petitioners contended that if members of the Public Service Commission, Chief Vigilance Commissioner, and Chief Secretary can undergo the test of integrity check, and if they can be disqualified on the ground of ‘framing of charge’ then why the same not apply to the members of Parliament and State Legislatures as well. The doctrine has been extended to several constitutional posts.
• Right to Contest Election is Not a Fundamental Right: They also argued that if they do not adhere to the Constitutional ethos and principles, such members can be prevented from contesting election as it is not a fundamental right but a statutory right.
• View on Presumption of Innocence: The petitioners believe the theory of innocent until proven guilty of criminal law. Thus, they state that it is more like a civil rule that if any person is charged with any offence, then such person shall be debarred from contesting any election. The intervenor organisation also agreeing with the petitioners held that persons charged with serious offences punishable with imprisonment of 5 years or must be disqualified as being members of Parliament.

RESPONDENT’S ARGUMENTS

The counsels for Respondent submitted that

• Separation of Power: The Attorney General of India agreeing on the role of the court as the final arbiter, also rebutted that it is not the duty of the Court to make law as it can only recommend the Parliament. It will not be proper for the Court to cross the ‘Lakshman Rekha’. If the Court resorts to such means, then it will be an encroachment on the Constitutional principle. Thus, it will be better for the Court to leave the law-making power up to the Parliament especially when Constitutional and Statutory provisions exist. The Attorney General of India for this purpose relied on the judgement in the State of Himachal Pradesh and others v. Satpal Saini and Kesavananda Bharati v. State of Kerala and another which concretised the doctrine of separation of power.
• Innocent Until Proven Guilty: The Attorney General of India appearing for the Union of India contended that every person must be presumed innocent until proven guilty. This has been the hallmark of Indian democracy. Therefore, punishing a person just based on a charge against him cannot be a proper methodology.

RELATED LEGAL PROVISIONS

• Article 102 of the Constitution of India: It deals with the disqualification of membership of either House of Parliament.
• Article 191 of the Constitution of India: It deals with the disqualification of membership of the State Legislature or Legislative Council.
• Section 7, Representation of the People Act, 1951: It deals with the definition of the expressions ‘appropriate government’ and ‘disqualified’.
• Section 8, 8A, 9, 9A, 10, 10A of the Representation of the People Act, 1951: It deals with the specific grounds for disqualification of membership.

JUDGEMENT

RATIO DECIDENDI

• Parliament’s Power to Make Law: The Court referring to the judgement passed in Lily Thomson v. Union of India agreed that the Parliament was the only body which had the power to make law on the matter concerning disqualification as covered under Article 102(1)(e).
• Growing Cases of Criminalisation of Politics: The Supreme Court referring to a plethora of judgements, reports, and surveys was of the view that the nexus of politicians, bureaucrats and criminals was not the only concern, but now new reports suggest that the trend is that criminals are joining the political parties itself and their winning percentage proves that even the political party shows no reluctance in giving them a ticket for the second time.
• No Colourable Exercise of Judicial Power: The Court had while interpreting the provisions of law and considering the arguments advanced by both the parties considered a well-accepted principle in the Indian judiciary that ‘what cannot be done directly should not be done indirectly’. To add weightage to the abovementioned principle, the Court also considered some of the earlier judgements of the Supreme Court itself.

GUIDELINES

The Court held that knowing the details of the candidates including the number of criminal cases pending against him is a fundamental right under Article 19(1). To ensure that the voters receive information about the candidates, the Court has issued the following guidelines:

• Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.
• It shall state, in bold letters, about the criminal cases pending against the candidate.
• If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.
• The concerned political party shall be obligated to put up on its website the aforesaid information about candidates having criminal antecedents.
• The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filing the nomination papers.

OBITER DICTA

• The criminalisation of Politics: The Court while considering the question of the growing criminalisation of politics considered a plethora of judgements and reports. One of the most important of them was the Vohra Committee Report and the 244^th Law Commission Report, which dealt with an important question, whether disqualification shall be triggered on the ground of conviction, framing of charges, or presentation of the report by the Investigating Officer? The Commission held that framing of charges was a good ground for disqualification.
• Role of Election Commission: The Court speaking on the role of the Election Commission discussed its power of superintendence, power and control of elections. It also held that its power was not absolute but only limited. Though it was created by the Constitution, still it did not have legislative power at par with the Parliament.
• Analysis of Election Symbol: Regarding the analysis of election symbols, the Court held that there are two types of election symbols: reserved and free. Reserved election symbols are the election symbols of the political parties. Whereas free election symbols are for the individual candidates. The Court held that it would be a farce to prevent candidates of political parties from contesting elections from the very symbol of their party. Even The Parliament by law was entitled to legislate some proper law on that matter.
• Role of Prime Minister and Chief Minister: Regarding the role of the Prime Minister and Chief Minister in advising the members to be selected as Council of Ministers, the Court referring to the Constituent Assembly Debates especially the speeches by Dr B.R. Ambedhkar and Dr Rajendra Prasad who talked about the ethics and principles of the Prime Minister. The Court observed that something has been left to the Prime Minister for his discretion and it is presumed that he shall discharge his duty with utmost diligence.

CONCLUSION & COMMENTS

The Hon’ble Supreme Court believes that it is only the Parliament which has been vested with the power to legislate on matters related to disqualification. The Parliament also held that every citizen has the right to know about the person he/she is voting for. The Court opined that it would be unhealthy for a democracy to have uninformed or misinformed voters, thus defeating the Constitutional duty. This will make it easy for people with criminal backgrounds to make an easy way into the rooms of Constitutional ethos. It will enable the lawbreakers to become the lawmakers. Keeping these things in mind, the Court issued a guideline containing five points which have enabled the candidates to furnish proper information so that the common man voting for them should be well aware of the identity of such candidates. The Court also opined that it would not be a proper rule to get things done in a way which otherwise has been prohibited. This shall be a proper breach of the doctrine of separation of power. The Court also recommended the Parliament to legislate and introduce proper laws so that people who have been charged with criminal offence are discouraged or rather disqualified from contesting election and thus making way to the legislating wing of the State. This 100-paged judgement shall always act as a torch bearer. It shall always remind the principles of constitutional morality and the doctrine of separation of power. The Court very beautifully maintained the well-accepted principle that “what cannot be done directly, should not be done indirectly”.

REFERENCES

Important Cases Referred

• Yogendra Kumar Jaiswal and others v. State of Bihar and others, (2016) 3 SCC 183
• Manoj Narula v. Union of India, (2014) 9 SCC 1
• Lily Thomas v. Union of India and others, (2013) 7 SCC 653
• Dinesh Trivedi, M.P. and others v. Union of India and others, (1997) 4 SCC 306
• Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and others, (1997) 6 SCC 1
• Prabhakaran v. P. Jayarajan, AIR 2005 SC 688
• Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851
• Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294
• Subhash Chandra Agarwal v. Indian National Congress and others, (2013) CIC 8047
• People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399
• State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659
• Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4
• Election Commission of India and another. v. Dr. Subramaniam Swamy and another, (1996) 4 SCC 104
• State of Himachal Pradesh and others v. Satpal Saini, (2017) 11 SCC 42
• Kesavananda Bharati v. State of Kerala and another, (1973) 4 SCC 225
• Amit Kapoor v. Ramesh Chander and another, (2012) 9 SCC 460
• Union of India and another v. Deoki Nandan Aggarwal, (1992) Supp (1) 323
• Supreme Court Bar Association v. Union of India and another, (1998) 4 SCC 409
• Allied Motors Limited v. Bharat Petroleum Corporation Limited, (2012) 2 SCC 1
• Nazir Ahmad v. King Emperor, AIR 1936 PC 253
• People’s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1
• Brundaban v. Election Commission, [1965] 3 SCR 53

Important Statutes Referred

• Representation of the People Act, 1951
• Code of Criminal Procedure, 1973 (now Bharatiya Nagarik Suraksha Sanhita, 2023)