Public Interest Foundation & Ors. vs Union of India & Anr.

Articles 102 (a) to (d) and (e); 324 – In order to curb criminalization of politics, whether the court can issue mandamus to Parliament to pass a legislation debarring a person facing charges of serious nature from contesting election for Member of Parliament; and whether directions can be issued to the Election Commission to control party discipline of political party by not encouraging candidates with criminal antecedents – Held: In a constitutional democracy, criminalization of politics is extremely disastrous – Though criminalization in politics is a bitter truth , the Court is not competent to make law to curb such menace – Parliament has exclusive legislative power to lay down disqualification for membership – Art. 201(1) specifies certain grounds for disqualification – Any other disqualification can be added by or under any law made by the Parliament – Chapter III of Representation of the People Act deals with disqualification for membership – As per the Act, a person can be disqualified on ‘no other ground’ than under the provisions of Chapter III – Thus, legislature has very clearly enumerated the grounds for disqualification and the language of s.7(b) of the Act leaves no room for any new ground to be added or introduced – Art. 324 lays down the power of the Election Commission to supervise and conduct 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 – A direction by the Supreme Court to the Election Commission that a candidate in election against whom charges have been framed, cannot be allowed to contest with the reserved symbol for a political party is beyond the pale of judicial arm of the State – Such direction will amount to adding a new ground for disqualification – Such attempt would be a colourable exercise of judicial power – It might lead to an anomalous situation and has the effect potentiality to do something indirectly which is not permissible to do directly – The tainted candidate, even if denied party symbol and contests the election as independent candidate, the impact would be same – Therefore, such direction to the Election Commission is not constitutionally permissible – The judicial arm of the State being laden with the duty of constitutional ethos cannot usurp the power, which it does not have – However, the citizens in a democracy cannot be compelled to stand the corruption – Disclosure of antecedents makes the election fair and the exercise of the right of voting by the electorate also gets sanctified – In the present scenario, information given by the candidates is not widely known in the constituency and the multitude of voters do not come to know about the antecedents – Their right to have information suffers – Directions issued to the effect that complete and wide information about the criminal antecedents of the candidates are given – Representation of the People Act, 1951 – ss. 7(b), 8, 8A, 9, 9A, 10 and 10A.

Disposing of the writ petitions and the appeals, the Court

HELD: 1.1 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. Criminalization of politics was never an unknown phenomenon in the Indian political system. [Paras 26 and 28] [167-F; 168-B]

1.2 The Election Commission has also remained alive to the issue of criminalization of politics since 1998. The recommendations of the Law Commission 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. [Paras 29 and 59] [169-A; 187-D-E]

Dinesh Trivedi, M.P. and Others v. Union of India and Others (1997) 4 SCC 306 : [1997] 3 SCR 93 ; Anukul Chandra Pradhan, Advocate, Supreme Court v. Union of India and Others (1997) 6 SCC 1 : [1997] 1 Suppl. SCR 641; K. Prabhakaran v. P. Jayarajan AIR 2005 SC 688 : [2005] 1 SCR 296 ; Manoj Narula v. Union of India (2014) 9 SCC 1 : [2014] 9 SCR 965

– relied on.

Yogendra Kumar Jaiswal and Others v. State of Bihar and Others (2016) 3 SCC 183 ; Mohinder Singh Gill v. Chief Election Commissioner AIR 1978 SC 851 : [1978] 2 SCR 272 ; Union of India v. Association for Democratic Reforms (2002) 5 SCC 294 : [2002] 3 SCR

696 ; 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 : [2003] 2 SCR 1136 ; State of Maharashtra v. Som Nath Thapa (1996) 4 SCC 659 : [1996] 1 Suppl. SCR 189 ; Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 : [1979] 2 SCR 229 – referred to. Goswami Committee on Electoral Reforms (1990) ; Vohra (Committee) Report; 18th Report presented to the Rajya Sabha on 15th March, 2007 by the DepartmentRelated 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); 244th Law Commission Report titled “Electoral Disqualifications”, Report of the National Commission to Review the Working of the Constitution (NCRWC); 170 th Report of Law

Commission; Justice J. S. Verma Committee Report on Amendments to Criminal Law (2013) – referred to.

2.1 As regards disqualification for being chosen as a member of either House of Parliament and similarly disqualification for being chosen or for being a member of the Legislative Assembly or Legislative Council of a State, the law has to be made by the Parliament. The Parliament has the exclusive legislative power to lay down disqualification for membership. [Para 7] [155-B-C, G-H]

2.2 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. Chapter III of the Representation of the People Act, 1951 deals with disqualification for membership of the Parliament and the State Legislatures. [Paras 13 and 14] [159-F-G]

2.3 The word ‘disqualified’ as defined by s. 7(b) of 1951 Act clearly states that a person be disqualified from being a member under the provisions of Chapter III 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. [Para 15][160-C-D]

2.4 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, there can be no other ground. Thus, disqualifications are provided on certain and specific grounds by the legislature. In such a state, the legislature is absolutely specific. [Para 16] [165-B-D]

2.5 It is well settled in law that the Court cannot legislate. As far as adding a disqualification is concerned, the constitutional provision states the disqualification, confers the power on the legislature, which has, in turn, legislated in the imperative. Thus, the prescription as regards disqualification is complete in view of the language employed in Section 7(b) read with Sections 8 to 10A of the Act. 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. [Paras 22 and 23] [166-F, G-H; 167-A]

Manoj Narula v. Union of India (2014) 9 SCC 1 : [2014] 9 SCR 965 ; Lily Thomas v. Union of India and Others (2013) 7 SCC 653 : [2013] 10 SCR 1130 – relied on.

3.1 Article 324 of the Constitution lays down the power of the Election Commission with respect to superintendence, direction and control of elections. 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. [Paras 61 and 70] [187-G; 193-E-F]

3.2 Symbols Order deals with allotment, classification, choice of symbols by candidates and restriction on the allotment of symbols. 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) of Symbol Orders to choose the symbol reserved for the respective political party by which he/she has been set up. An analogous duty has also been placed upon the Election Commission to allot to such a candidate the symbol reserved for the political party by which he/she has been set up and to no other candidate. 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 this Court were 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. [Paras 86, 97 and 98] [197-E-F; 201-E-H]

3.3 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. [Para 104] [203-C]

3.4 Even if the person concerned contests the election as an independent candidate, 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. Therefore, though criminalization in politics is a bitter manifest truth, which is a termite to the citadel of democracy, the Court cannot make the law. [Paras 104 and 106] [203-D; 204-G]

3.5 Directions to the Election Commission, of the nature as sought in the case at hand, may in an idealist world seem to be, at a cursory glance, an antidote to the malignancy of criminalization in politics but such directions, on a closer scrutiny, clearly reveal that it is not constitutionally permissible. The judicial arm of the State being laden with the duty of being the final arbiter of the Constitution and protector of constitutional ethos cannot usurp the power which it does not have. [Para 107] [204-H; 205-A-B]

3.6 In a multi-party democracy, where members are elected on party lines and are subject to party discipline, it is recommended 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 would go a long way in achieving decriminalisation of politics and usher in an era of immaculate, spotless, unsullied and virtuous constitutional democracy. [Para 108] [205-B-C]

Kesavananda Bharati v. State of Kerala and Another (1973) 4 SCC 225 : [1973] Suppl. SCR 1 – followed. A.C. Jose v. Sivan Pillai and Others AIR 1984 SC

921 : [1984] 3 SCR 74; Association for Democratic Reforms (2002) 5 SCC 294 : [2002] 3 SCR 696; Kuldip Nayar v. Union of India and Others (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1; Indian National Congress (I) v. Institute of Social Welfare and Others (2002) 5 SCC 685 : [2002] 3 SCR 1040 ; Jagir Singh v. Ranbir Singh and Another (1979) 1 SCC 560 : [1979] 2 SCR 282 ; M.C. Mehta v. Kamal Nath and Others (2000) 6 SCC 213 : [2000] 1 Suppl. SCR 389; State of Himachal Pradesh and Others v. Satpal Saini (2017) 11 SCC 42 : [2017 1 SCR 658; Allied Motors Limited v. Bharat Petroleum Corporation Limited (2012)

2 SCC 1: [2011] 16 SCR 422 ; Nazir Ahmad v. King Emperor AIR 1936 PC 253 ; D.R. Venkatachalam and Others v. Dy. Transport Commissioner and Others AIR 1977 SC 842 : [1977] 2 SCR 392 ; State through. P.S. Lodhi Colony New Delhi v. Sanjeev Nanda AIR 2012 SC 3104 : [2012] 12 SCR 881; Rashmi Rekha Thatoi and Another v. State of Orissa and Others (2012) 5 SCC 690 : [2012] 5 SCR 674; Shailesh Manubhai Parmar v. Election Commission of India 2018 (10) SCALE 52; Resurgence India v. Election Commission of India (2014) 14 SCC 189 : [2013] 9 SCR 360 ; People’s Union for Civil Liberties v. Union of India (2013) 10 SCC 1 : [2013 ]12 SCR 283 – relied on.

Election Commission of India and Another. v. Dr. Subramaniam Swamy and Another (1996) 4 SCC

104 : [1996] 1 Suppl. SCR 637; Mohinder Singh Gill v. Chief Election Commissioner AIR 1978 SC 851 : [1978] 2 SCR 272 ; Amit Kapoor v. Ramesh Chander and Another (2012) 9 SCC 460 : [2012] 7 SCR 988 ; Union of India and Another v. Deoki Nandan Aggarwal (1992) 1 Suppl. SCC 323 ; Supreme Court Bar

Association v. Union of India and Another (1998) 4 SCC 409 : [1998] 2 SCR 795 – referred to.

4.1 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. Such a right is paramount for a democracy. A voter is entitled to have an informed choice. If his right to get proper information is scuttled, in the ultimate eventuate, it may lead to destruction of democracy because he will not be an informed voter having been kept in the dark about the candidates who are accused of heinous offences. In the present scenario, the information given by the candidates is not widely known in the constituency and the multitude of voters really do not come to know about the antecedents. Their right to have information suffers. [Para 115] [210-B-D]

4.2 It is directed that each contesting candidate shall fill up the form as provided by the Election Commission; it shall state, in bold letters, with regard to the criminal cases pending against the candidate; if a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her; the concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents; the candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media i.e. thrice after filing of the nomination papers. These directions ought to be implemented in true spirit and right earnestness in a bid to strengthen the democratic set-up. [Paras 116 and 117] [210-F-G; 211-A-B]

4.3 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. 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 choice by the citizenry. Informed choice is the cornerstone to have a pure and strong democracy. [Para 117] [211-B-E]

4.4 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. [Para 118] [211-F-G]