26-09-2018-Supreme Court leaves it to Parliament: Bar from polls those who face criminal charges

The Indian Express: 26.09.2018

The Supreme Court Tuesday said it was not within its powers to disqualify politicians facing criminal cases from contesting elections and recommended to Parliament to enact “a strong law” to deal with this since “the nation eagerly waits for such legislation” to “usher in an era of immaculate, spotless, unsullied and virtuous Constitutional democracy”. “Though criminalisation 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,” a five-judge Constitution Bench headed by Chief Justice of India Dipak Misra ruled.

The judgment came on a batch of petitions and applications filed by NGO Public Interest Foundation, former Chief Election Commissioner J M Lyngdoh, Delhi BJP leader and lawyer Ashwini Kumar Upadhyay and others seeking direction to the Election Commission of India to disqualify from polls those candidates against whom charges have been framed in criminal cases.

Citing its limitations in venturing into law-making, the Bench, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said “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 Parliament and the State Assemblies”.

SC however issues directions to candidates & parties. Candidates must state in bold in EC form the criminal cases pending against them. Candidate will also inform their party what cr cases they have against them. Party will upload this on its website.

It said “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. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper Constitutional governance”. Such a law, the judges, said “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”.

The Bench rejected the other suggestion by the petitioners that the Election Commission be directed not to allot party symbols to candidates who have criminal cases pending, saying it was “not Constitutionally permissible” and would amount to “colourable exercise of judicial power”. It said the judiciary cannot usurp the power it did not have.

The judges noted that the country was facing an “increasing trend of criminalisation of politics” which was “unsettling”. It also “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,” the Bench said.

The court, however, said it could not remain oblivious to the issue of criminalisation of politics and came out with a series of guidelines for candidates and parties which, it said, will help citizens make a more informed choice:

• Candidates must fill up forms provided by the Election Commission and state therein in bold letters, details of criminal cases pending against them.
• A candidate contesting on the ticket of a party must inform the party about the criminal cases and the party, in turn, must put this up on its official website.
• The candidate and the party must then give this publicity by publishing it in widely-circulated newspapers in the area and in the electronic media. This must be done at least three times after the nomination is filed.

During the hearing, the Centre had said that according to the country’s criminal law, there was presumption of innocence and, hence, no rule could be made to disqualify a candidate on the mere framing of charges. On this, the Bench, in its judgment, said: “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 lawmaking should be above any kind of serious criminal allegation.”

The Bench took into account the fact that false cases could be foisted on prospective candidates and said this “can be addressed by the Parliament through appropriate legislation”.

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