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TMI Blog2018 (9) TMI 2153X X X X Extracts X X X X X X X X Extracts X X X X ..... perative. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date 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 mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution 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 India (2014) 9 SCC 1. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared 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 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 Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 come 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 majorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strictive 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 good 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 wholl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, 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). 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 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lure 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, disqua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Parliament as a person chargesheeted in a crime involving moral turpitude is undesirable for a job under the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal elements and protecting the sanctity of the Legislative Houses. https://eci.nicJn/eci_main/PROPOSED_ELECTORAL_REFORMS.pdf 30. In the case of Dinesh Trivedi, M.P. and Ors. v. Union of India and Ors. (1997) 4 SCC 306 the court lamented the faults and imperfections which have impeded the country in reaching the expectations which 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 Ors. (1997) 6 SCC 1, the Court, in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 Commissioner AIR 1978 SC 851 wherein the Court had ruled: 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 election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idates 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ors. (2013) CIC 8047 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 central role in Indian democracy. Therefore, a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal Law (2013) which proposed insertion of Schedule I to the Representation of the People Act, 1951 enumerating offences under Indian Penal Code befitting the category of 'heinous' offences and it was also recommended in the said report that Section 8(1) of the RP Act be 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 Code of Criminal Procedure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submissions and even though the Accused may provide exculpatory evidence to the police, the latter is under no obligation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Commission referred to the observations in Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 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 Code of Criminal Procedure requires an applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive 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 Accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehind 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 perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taching 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: 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 Section 123 of the RPA. 2. Since conviction Under Section 125A is necessary for disqualification Under Section 8 to be tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Lok Sabha. The constitutionally appointed authority, the Election Commission, takes over the whole conduct and supervision of the mammo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l's submission has been supported by Mr. Dinesh Dwivedi, learned senior Counsel appearing for the Petitioners in Writ 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 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Anr. (2012) 9 SCC 460, 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 recognised 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 sy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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; (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 Anr. v. State of Orissa and Ors. (2012) 5 SCC 690 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. 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und, 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 transferable. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinions. 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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, but 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 India (2014) 14 SCC 189, referring to the precedents, this Court ruled thus: 20. Thus, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vit 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 the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 same 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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