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2018 (9) TMI 2153 - SC - Indian LawsDoctrine of separation of power - Whether disqualification for membership can be laid down by the Court beyond Article 102 and the law made by the Parliament Under Article 102(e)? - whether any disqualification can be read as regards disqualification for membership into the constitutional provisions? - HELD THAT - It is well settled in law that the Court cannot legislate. Emphasis is laid on the issuance of guidelines and directions for rigorous implementation. With immense anxiety, it is canvassed that when a perilous condition emerges, the treatment has to be aggressive. The Petitioners have suggested another path. But, as far as adding a disqualification is concerned, the constitutional provision states the disqualification, confers the power on the legislature, which has, in turn, legislated in the imperative. hus, 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 - HELD THAT - 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. In ANUKUL CHANDRA PRADHAN ADVOCATE SUPREME COURT VERSUS U.O.I. 1997 (7) TMI 651 - SUPREME COURT , 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 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. Role of Election Commission - HELD THAT - 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 - In ELECTION COMMISSION OF INDIA VERSUS SUBRAMANIAN SWAMY (DR.) 1996 (4) TMI 497 - SUPREME COURT , 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. 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. Analysis of the Election Symbols Order - HELD THAT - 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. What comes to the fore is that when a candidate has been set up in an election by a particular political party, then such a candidate has a right Under Sub-clause (3) of Clause (8) to choose the symbol reserved for the respective political party by which he/she has been set up. An analogous duty has also been placed upon the Election Commission to allot to such a candidate the symbol reserved for the political party by which he/she has been set up and to no other candidate. A time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the Accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation. It is true that false cases are foisted on prospective candidates, but the same can be addressed by the Parliament through appropriate legislation. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism. The country feels agonized when money and muscle power become the supreme power. Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay. Conclusion - The separation of powers doctrine prevents the judiciary from legislating disqualifications for candidates. The Election Commission must operate within the framework of existing laws. Petition disposed off.
1. ISSUES PRESENTED and CONSIDERED The core legal questions considered in this judgment include:
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Disqualification Beyond Article 102
Issue 2: Directions to Election Commission
3. SIGNIFICANT HOLDINGS
The judgment underscores the judiciary's limitations in addressing the criminalization of politics, emphasizing the need for legislative action to introduce reforms. The Court recommended that Parliament enact laws to prevent individuals with serious criminal charges from contesting elections, highlighting the urgency of addressing this issue to uphold the integrity of democratic governance.
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