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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 ..... unctionaries, who have taken the pledge to uphold the constitutional principles, are charged with the responsibility to ensure that the existing political framework does not get tainted with the evil of corruption. However, despite this heavy mandate prescribed by our Constitution, our Indian democracy, which is the world's largest democracy, has seen a steady increase in the level of criminalization that has been creeping into the Indian polity. This unsettlingly increasing trend of criminalization of politics, to which our country has been a witness, 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. 3. The issue that emerges for consideration before this Bench is 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). A three-Judge Bench hearing the matter was of the view that this question is required to be addressed by the Constitution Bench Under Article 145(3) of the Constitution. Be it stated, a submission was advanced before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment 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 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 either House of Parliament if he is so disqualified under the Tenth Schedule. 6. In this context, we may also refer to Article 191 of the Constitution that deals with disqualifications for membership. It is as follows: 191. Disqualifications for membership--(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State: (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, accept the contention of Mr. Luthra that the power to enact Sub-section (4) of Section 8 of the Act is vested in Parliament Under Article 246(1) read with Schedule VII List I Entry 97 and Article 248 of the Constitution, if not in Articles 102(1)(e) and 191(1)(e) of the Constitution. We have no hesitation in saying that the view expressed above in Lily Thomas (supra) is correct, for the Parliament has the exclusive legislative power to lay down disqualification for membership. 8. In Manoj Narula (supra), the question centered around the interpretation of Article 75 of the Constitution. The core issue pertained to the legality of persons with criminal background and/or charged with offences involving moral turpitude to be appointed as ministers in the Central and the State Governments. The majority referred to the constitutional provisions, namely, Articles 74, 75, 163 and 164, adverted to the doctrine of implied limitation and, in that context, opined thus: 64. On a studied scrutiny of the ratio of the aforesaid decisions, we are of the convinced opinion that when there is no disqualification for a person against whom charges have been framed in respect of heinous or serious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te executive governance. And again: That the Prime Minister would be giving apposite advice to the President is a legitimate constitutional expectation, for it is a paramount constitutional concern. In a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility as a consequence of which the cherished values of democracy and established norms of good governance get condignly fructified. The Framers of the Constitution left many a thing unwritten by reposing immense trust in the Prime Minister. The scheme of the Constitution suggests that there has to be an emergence of constitutional governance which would gradually grow to give rise to constitutional renaissance. 10. Lokur, J. opined: 132. While it may be necessary, due to the criminalisation of our polity and consequently of our politics, to ensure that certain persons do not become Ministers, this is not possible through guidelines issued by this Court. It is for the electorate to ensure that suitable (not merely eligible) persons are elected to the legislature and it is for the legislature to enact or not enact a more restrictive law. Proceeding further, the learned Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be objectionable from one point or another. We must admit that the defects are inherent in the situation in the country and the people at large. If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them. 12. Kurian Joseph, J., concurring with the opinion, has stated: 152. No doubt, it is not for the Court to issue any direction to the Prime Minister or the Chief Minister, as the case may be, as to the manner in which they should exercise their power while selecting the colleagues in the Council of Ministers. That is the constitutional prerogative of those functionaries who are called upon to preserve, protect and defend the Constitution. But it is the prophetic duty of this Court to remind the key duty holders about their role in working the Constitution. Hence, I am of the firm v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or Section 17IE (offence of bribery) or Section 17IF (offence of undue influence or personation at an election) or Sub-section (1) or Sub-section (2) of Section 376 or Section 376A or Section 376B or Section 376C or Section 376D (offences relating to rape) or Section 498A (offence of cruelty towards a woman by husband or relative of a husband) or Sub-section (2) or Sub-section (3) of Section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860); or (b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for the preaching and practice of "untouchability", and for the enforcement of any disability arising therefrom; or (c) Section 11 (offence of importing or exporting prohibited goods) of the Customs Act, 1962 (52 of 1962); or (d) Sections 10 to 12 (offence of being a member of an association declared unlawful, offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... victed of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in Sub-section (1) or Sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. (4) Notwithstanding anything in Sub-section (1), Sub-section (2) and Sub-section (3) a disqualification under either Sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court. Explanation.--In this section-- (a) "law providing for the prevention of hoarding or profiteering" means any law, or any order, Rule or notification having the force of law, providing for-- (i) the Regulation of production or manufacture of any essential commodity; (ii) the control of price at which any essential commodity may be brought or sold; (iii) the Regulation of acquisition, posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State shall be conclusive proof of that fact: Provided that no certificate to the effect that a person has been dismissed for corruption or for disloyalty to the State shall be issued unless an opportunity of being heard has been given to the said person. 9A. Disqualification for Government contracts, etc.--A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government. Explanation.--For the purposes of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part. 10. Disqualification for office under Government company.--A person shall be disqualified if, and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtend the said test of "framing of charge" to the posts of Members of Parliament and State Legislatures as well. To further accentuate this stand, the Petitioners point out that such persons hold the posts in constitutional trust and can be made subject to rigours and fetters as the right to contest elections is not a fundamental right but a statutory right or a right which must confirm to the constitutional ethos and principles. 19. The Petitioners are attuned to the principle of "presumption of innocence" under our criminal law. But they are of the opinion that the said principle is confined to criminal law and that any proceeding prior to conviction, such as framing of charge for instance, can become the basis to entail civil liability of penalty. The Petitioners, therefore, take the stand that debarring a person facing charges of serious nature from contesting an election does not lead to creation of an offence and it is merely a restriction which is distinctively civil in nature. 20. The intervenor organization has also made submissions on a similar note as that of the Petitioners to the effect that persons charged for an offence punishable with imprisonment for five years o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of saving the sanctity of democracy and to advance its enduring continuance. To appreciate the same, we will focus on the criminalization of politics. 25. In the beginning of the era of constitutional democracy, serious concerns were expressed with regard to the people who are going to be elected. Dr Rajendra Prasad on the Floor of the Constituent Assembly, before putting the motion for passing of the Constitution, had observed: ...It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas...We can only hope that the country will throw up such men in abundance. Dr Rajendra Prasad, President, Constituent Assembly of India, 26th November, 1949 26. 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. 27. The Goswami Committee on Electoral Reforms (1990) had addressed the need to curb the growing criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , bureaucracy and politicians has come out clearly in various parts of the country. The existing criminal justice system, which was essentially designed to deal with the individual offences/crimes, is unable to deal with the activities of the Mafia; the provisions of law in regard economic offences are weak. 29. The Election Commission has also remained alive to the issue of criminalization of politics since 1998. While proposing reforms to tackle the menace of criminalization of politics, the Former Chief Election Commissioner, Mr. T.S. Krishna Murthy, highlighted the said issue by writing thus: There have been several instances of persons charged with serious and heinous crimes like murder, rape, dacoity, etc. contesting election, pending their trial, and even getting elected in a large number of cases. This leads to a very undesirable and embarrassing situation of lawbreakers becoming lawmakers and moving around under police protection. The Commission had proposed that the law should be amended to provide that any person for five years or more should be disqualified from contesting election even when trial is pending, provided charges have been framed against him by the compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governance. Persons with criminal background do pollute the process of election as they do not have many a holds barred (sic) and have no reservation from indulging into criminality to win success at an election. 33. The Court in Manoj Narula (supra), while observing that criminalization of politics is an anathema to the sacredness of democracy, stated thus: A democratic polity, as understood in its quintessential purity, is conceptually abhorrent to corruption and, especially corruption at high places, and repulsive to the idea of criminalization of politics as it corrodes the legitimacy of the collective ethos, frustrates the hopes and aspirations of the citizens and has the potentiality to obstruct, if not derail, the Rule of law. Democracy, which has been best defined as the Government of the People, by the People and for the People, expects prevalence of genuine orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant affirmance of constitutional morality which is the pillar stone of good governance. And again: ...systemic corruption and sponsored criminalization can corrode the fundamental core of elective democracy and, consequently, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " and accordingly requested the Law Commission to "expedite consideration for giving a report by the end of February, 2014, on the two issues, namely: 1. Whether disqualification should be triggered upon conviction as it exists today or upon framing of charges by the court or upon the presentation of the report by the Investigating Officer Under Section 173 of the Code of Criminal procedure? [Issue No. 3.1 (ii) of the Consultation Paper], and 2. Whether filing of false affidavits Under Section 125A of the Representation of the People Act, 1951 should be a ground for disqualification? And if yes, what mode of mechanism needs to be provided for adjudication on the veracity of the affidavit? [Issue No. 3.5 of the Consultation Paper] 36. Thereafter, the 244th Law Commission, while accentuating the need for electoral reforms, observed that a representative government, sourcing its legitimacy from the People, who were the ultimate sovereign, was the kernel of the democratic system envisaged by the Constitution. Over the time, this has been held to be a part of the 'basic structure' of the Constitution, immune to amendment, with the Supreme Court of India declaring that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report of the National Commission to Review the Working of the Constitution (NCRWC). The Commission referred to the judgment of this Court in Union of India v. Association for Democratic Reforms (2002) 5 SCC 294 which had made an analysis of the criminal records of candidates possible by requiring such records to be disclosed by way of affidavit and this, as per the Commission, had given a chance to the public to quantitatively assess the validity of such observations made in the previous report. 40. As per the extent of criminalization that has pervaded Indian Politics, the Commission observed that in the ten years since 2004, 18% of the candidates contesting either National or State elections have criminal cases pending against them (11,063 out of 62,847). In 5,253 or almost half of these cases (8.4% of the total candidates analysed), the charges are of serious criminal offences that include murder, attempt to murder, rape, crimes against women, cases under the Prevention of Corruption Act, 1988 or under the Maharashtra Control of Organised Crime Act, 1999 which, on conviction, would result in five years or more of jail, etc. 152 candidates had 10 or more serious cases pending, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on found to be more disturbing was the fact that the percentage of winners with criminal cases pending is higher than the percentage of candidates without such backgrounds, as the data reveals that while only 12% of candidates with a "clean" record win on an average, 23% of candidates with some kind of criminal record win which implies that candidates charged with a crime actually fare better in elections than 'clean' candidates. This, as per the Commission, has resulted in the tendency for candidates with criminal cases to be given tickets a second time and not only do political parties select candidates with criminal backgrounds, but there is also evidence to suggest that untainted representatives later become involved in criminal activities and, thus, the incidence of criminalisation of politics is pervasive thereby making its remediation an urgent need. 42. The pervasive contact, in many a way, disturbed the political parties and this compelled the Law Commission to describe the role of political parties. It said: Political parties are a central institution of our democracy; "the life blood of the entire constitutional scheme." Political parties act as a conduit thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try of criminals into politics is accomplished by prescribing certain disqualifications that will prevent a person from contesting elections or occupying a seat in the Parliament or an Assembly and presently, the qualifications of Members of Parliament are listed in Article 84 of the Constitution, while the disqualifications can be found Under Article 102. The corresponding provisions for Members of the State Legislative Assemblies are found in Articles 173 and 191. 45. The Law Commission noted the decisions in Association for Democratic Reforms (supra), Lily Thomas (supra) and People's Union for Civil Liberties v. Union of India (2003) 4 SCC 399 and, after referring to the previous Reports recommending reforms, recommended: To tackle the menace of wilful concealment of information or furnishing of false information and to protect the right to information of the electors, the Commission recommended that the punishment Under Section 125A of RPA must be made more stringent by providing for imprisonment of a minimum term of two years and by doing away with the alternative Clause for fine. Additionally, conviction Under Section 125A RPA should be made a part of Section 8(1)(i) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orwarding the material collected during investigation to a competent Court of law for the Court to consider what provisions the Accused should be charged under. At this stage, there is not even a remote or prima facie determination of guilt of the Accused by a Court of law. At the stage of filing or forwarding the charge-sheet to the Court, the material which is made a part of the charge-sheet has not even tested by a competent Court of law and the Judge has clearly not applied his mind to the said material. Courts have repeatedly held that a charge-sheet does not constitute a substantive piece of evidence as it not yet tested on the anvil of cross-examination. No rights of hearing are granted to the Accused at this stage. At the stage of filing of charge-sheet, before summons are issued, the Accused does not even have a copy of the charge-sheet or any connected material. Disqualifying a person therefore, simply on the basis of something which he has had no opportunity to look into, or no knowledge of, would be against the principles of natural justice. Disqualifying a person at this stage would mean that a person is penalized without proceedings being initiated against him. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Commission proceeded to examine why the framing of charges is an appropriate stage for disqualification. It went on to make the following observations on this aspect: The Supreme Court, in Debendra Nath Padhi, overruling Satish Mehra, held that the Accused cannot lead any evidence at charging stage. Thus, the decision of the judge has to be based solely on the record of the case, i.e. the investigation report and documents submitted by the prosecution. Though the determination of framing of charges is based on the record of the case, the Supreme Court jurisprudence on Section 227 also imposes certain burdens to be discharged by the prosecution: If the evidence which the Prosecutor proposes to adduce to prove the guilt of the Accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence; if any, cannot show that the Accused committed the offence then there will be no sufficient ground for proceeding with the trial. 51. The Commission was of the view that additionally, the burden on the prosecution at the stage of framing of charges also involves proving a prima facie case and as per the decision in State of Maharashtra v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uence of such framing may disqualify the candidate. The framing of charges is therefore not an automatic step in the trial process, but one that requires a preliminary level of judicial scrutiny. The provisions in the Code of Criminal Procedure require adequate consideration of the merits of a criminal charge before charges are framed by the Court. The level of scrutiny required before charges are framed is sufficient to prevent misuse of any provision resulting in disqualification from contesting elections. Moreover enlarging the scope of disqualifications to include the stage of framing of charges in certain offences does not infringe upon any Fundamental or Constitutional right of the candidate. RPA creates and regulates the right to contest and be elected as a Member of Parliament or a State Legislature. From the early years of our democracy, it has been repeatedly stressed by the Supreme Court that the right to be elected is neither a fundamental nor a common law right. It is a special right created by the statute and can only be exercised on the conditions laid down by the statute. Therefore, it is not subject to the Fundamental Rights chapter of the constitution. 53. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a court of competent jurisdiction, subject to certain safeguards, from contesting in elections. Such a determination of suitability for representative office has no bearing on his guilt or innocence which can, and will, only be judged at the criminal trial. To conflate the two and thereby argue that the suggested reform is jurisprudentially flawed would be to make a category mistake. 54. However, the Commission proposed certain safeguards in the form of limiting the disqualification to operate only in certain cases, defining cut-off period and period of applicability. The reasons for ensuring such safeguards as laid out in the report as are follows: ...Limiting the offences to which this disqualification applies has two clear reasons, i.e. those offences which are of such nature that those charged with them are deemed unsuitable to be people's representatives in Parliament or State Legislatures are included and the list is circumscribed optimally to prevent misuse to the maximum extent possible.... ...All offences which have a maximum punishment of five years or more ought to be included within the remit of this provision. Three justifications support this proposal: firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engineer disqualification. 56. Another safeguard in the form of period of applicability was also proposed by the Commission which prescribes a time period or duration for which the said disqualification applies. It provides as follows: For convictions Under Section 8(1) a person is disqualified for six years from conviction in case he is punished only with a fine or for the duration of the imprisonment in addition to six years starting from his date of release. For convictions Under Section 8(2) and 8(3) he is disqualified simply for the duration of his imprisonment and six years starting from the date of release. Given that disqualifications on conviction have a time period specified, it would be anomalous if disqualification on the framing of charges omitted to do so and applied indefinitely. It is thus essential that a time period be specified.... 57. The rationale provided for fixing the time period as above was given in the following terms: ...170th Law Commission under the Chairmanship of Justice B.P. Jeevan Reddy. In this report the specified period of disqualification was suggested to be five years from the date of framing of charge, or acquittal, whichever is earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroduce electoral disqualifications owing to the lack of sufficient application of judicial mind at this stage. 3. The stage of framing of charges is based on adequate levels of judicial scrutiny, and disqualification at the stage of charging, if accompanied by substantial attendant legal safeguards to prevent misuse, has significant potential in curbing the spread of criminalisation of politics. 4. The following safeguards must be incorporated into the disqualification for framing of charges owing to potential for misuse, concern of lack of remedy for the Accused and the sanctity of criminal jurisprudence: i. Only offences which have a maximum punishment of five years or above ought to be included within the remit of this provision. ii. Charges filed up to one year before the date of scrutiny of nominations for an election will not lead to disqualification. iii. The disqualification will operate till an acquittal by the trial court, or for a period of six years, whichever is earlier. iv. For charges framed against sitting MPs/MLAs, the trials must be expedited so that they are conducted on a day-to-day basis and concluded within a 1-year period. If trial not concluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Commission so that the purity of democracy is strengthened. It is urged by them that when the Election Commission has been conferred the power to supervise elections, it can control party discipline of a political party by not encouraging candidates with criminal antecedents. Role of Election Commission 61. Article 324 of the Constitution lays down the power of the Election Commission with respect to superintendence, direction and control of elections and reads thus: 324. Superintendence, direction and control of elections to be vested in an Election Commission:-(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission). (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 192 which reads as under: 192(2)-Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion. It is clear from the use of the words 'shall obtain' the opinion of the Election Commission, that it is obligatory to obtain the opinion of the Election Commission and the further stipulation that the Governor "shall act" according to such opinion leaves no room for doubt that the Governor is bound to act according to that opinion. The position in law is well settled by this Court's decision in Brundaban v. Election Commission, [1965] 3 SCR 53 wherein this Court held that it is the obligation of the Governor to take a decision in accordance with the opinion of the Election Commission. It is thus clear on a conjoint reading of the two clauses of Article 192 that once a question of the type mentioned in the first Clause is referred to the Governor, meaning thereby is raised before the Governor, the Governor and the Governor alone must decide it but this decision must be taken after obtaining the opinion of the Election Commission and the decision which is made final is that deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tters necessary for smooth elections have been taken care of by several provisions of the Act. 65. Further, the Court observed in Mohinder Singh Gill (supra) that a re-poll for a whole constituency under compulsion of circumstances may be directed for the conduct of elections and can be saved by Article 324 provided it is bona fide and necessary for the vindication of the free verdict of the electorate and the abandonment of the previous poll was because it failed to achieve that goal. The Court ruled that even Article 324 does not exalt the Commission into a law unto itself. Broad authority does not bar scrutiny into specific validity of a particular order. Having said that, the Court passed the following directions: 2(a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This, responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances. (b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing orders for regulating the conduct of elections cannot take upon itself a purely legislative activity which has been reserved under the scheme of the Constitution only to Parliament and the State legislatures. By no standards can it be said that the Commission is a third Chamber in the legislative be process within the scheme of the Constitution. merely being a creature of the Constitution will not give it plenary and absolute power to legislate as it likes without reference to the law enacted by the legislatures. 68. In Association for Democratic Reforms (supra), the Court opined: Under Article 324, the superintendence, direction and control of the 'conduct of all elections' to Parliament and to the Legislature of every State vests in Election Commission. The phrase 'conduct of elections' is held to be of wide amplitude which would include power to make all necessary provisions for conducting free and fair elections. 69. In Kuldip Nayar v. Union of India and Ors. (2006) 7 SCC 1, this Court has observed: 181. It has been argued by the Petitioners that the Election Commission of India, which under the Constitution has been given the plenary powers to super ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckle the growing menace of criminalization of politics is that several law commission reports and other papers have unanimously concluded that there is widespread criminalization of politics and this Court has also taken cognizance of this fact in several of its judgments, but despite the said reports and the efforts of this Court, neither the Parliament nor the Government of India has taken serious actions to tackle the problem. 72. Further, Mr. Venugopal has drawn the attention of this Court to the findings in the Report titled 'Milan Vaishnav, When crime pays: Money and Muscle in Indian Politics" Milan Vaishnav, When crime pays: Money and Muscle in Indian Politics, Yale Press University, New Haven (2017) to highlight that there is an alarming increase in the number of candidates with criminal antecedents and their chances of winning have actually increased steadily over the years and there is ample evidence in the form of statistical data which reinstates this fact. 73. On that basis, it is contended that the empirical evidence supports the view that the current legislative framework permits criminals to enter the electoral arena and become legislators which interferes wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with offences would amount to adopting a colourable route, that is, doing indirectly what is clearly prohibited under the Constitution of India and the Representation of the People Act. 77. It is also contended on behalf of the Union of India that adding a condition to the recognition of a political party under the Symbols Order would also result in doing indirectly what is clearly prohibited. To buttress this stand, the Union of India has cited the decisions in Jagir Singh v. Ranbir Singh and Anr. (1979) 1 SCC 560 and M.C. Mehta v. Kamal Nath and Ors. (2000) 6 SCC 213. 78. Further, it has been submitted by the first Respondent that Section 29A(5) of the Act is a complete, comprehensive and unambiguous provision of law and any direction to the Election Commission of India to deregister or refuse registration to political parties who associate themselves with persons merely charged with offences would result in violation of the doctrine of separation of powers as that would tantamount to making addition to a statute which is clear and unambiguous. 79. As per the first Respondent, 'pure law' in the nature of constitutional provisions and the provisions of the Act cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia and requiring every member of a political party to disclose such information irrespective of whether he/she is contesting election will have serious impact on the privacy of the said member. 84. Relying upon the decisions in Union of India and Anr. v. Deoki Nandan Aggarwal (1992) Supp (1) 323 and Supreme Court Bar Association v. Union of India and Anr. (1998) 4 SCC 409, the first Respondent has submitted that Article 142 of the Constitution of India does not empower this Court to add words to a statute or read words into it which are not there and Article 142 does not confer the power upon this Court to make law. 85. 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 86. In the adverting situation and keeping in view the submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Commission publishes, by notification in the Official Gazette of India, the national parties, State parties and the symbols reserved for them. Clause (17) reads as under: 17. Notification containing lists of political parties and symbols- (1) The Commission shall by one or more notifications in the Gazette of India publish lists specifying- (a) the National Parties and the symbols respectively reserved for them; (b) the State Parties, the State or States in which they are State Parties and the symbols respectively reserved for them in such State or States; x x x 90. Another important provision in the matter of choice of symbols by candidates and restriction on the allotment thereof is Clause (8) of the Symbols Order which reads thus: 8. Choice of symbols by candidates of National and State Parties and allotment thereof- (1) A candidate set up by a National Party at any election in any constituency in India shall choose, and shall be allotted, the symbol reserved for that party and no other symbol. (2) A candidate set up by a State Party at an election in any constituency in a State in which such party is a State Party, shall choose, and shall be allotted the symb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Assembly constituencies. 93. Coming back to Clause (8) of the Symbols Order, as per Sub-clause (1) of Clause (8), a candidate set up by a national party in terms of Clause (13) in any constituency in India shall choose the symbol reserved for such national party and no other symbol. By using the word 'shall', Sub-clause (1) of Clause (8) makes it mandatory for a candidate set up by a national party to choose the symbol reserved for such national party. Further, Sub-clause (1), again on a second instance, by using the word 'shall' in the context of the Election Commission, makes it obligatory for the Election Commission to allot to a candidate set up by a national party the symbol reserved for such national party. Therefore, Sub-clause (1) by casting this duty on the Election Commission, as a natural corollary, gives birth to a right to the candidate set up by a national party to contest elections under the symbol reserved for such national party. 94. That apart, the first part of Sub-clause (3) of Clause (8) stipulates that a symbol reserved, in terms of Clause (5) read with Clause (17) of the Symbols Order, shall neither be chosen by nor allotted by the E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple has been discussed elaborately. 100. In Allied Motors Limited v. Bharat Petroleum Corporation Limited (2012) 2 SCC 1, reference was made to the celebrated judgment of the Privy Council in Nazir Ahmad v. King Emperor AIR 1936 PC 253 wherein the principle has been enunciated "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." Other methods of performance are necessarily forbidden. This principle has been reiterated and expanded by the Supreme Court in several decisions. 101. In D.R. Venkatachalam and Ors. v. Dy. Transport Commissioner and Ors. AIR 1977 SC 842, it was observed: In ultimate analysis, the Rule of construction relied upon by Mr. Chitaley to make the last-mentioned submission is: "Expressio unius est exclusio alterius." This maxim, which has been described as "a valuable servant but a dangerous master" (per Lopes J., in Court of Appeal in Colquhoun v. Brooks, (1888) 21 QBD 52 finds expression also in a Rule formulated in Taylor v. Taylor (1875) 1 Ch D 426 applied by the Privy Council in Nazir Ahmad v. King Emperor which has been repeatedly adopted by this Court. That Rule says that an expressly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adiction that the provisions for introduction of NOTA as conceived by the Election Commission, the first Respondent herein, on the basis of the PUCL judgment is absolutely erroneous, for the said judgment does not say so. We are disposed to think that the decision could not have also said so having regard to the constitutional provisions contained in Article 80 and the stipulations provided under the Tenth Schedule to the Constitution. The introduction of NOTA in such an election will not only run counter to the discipline that is expected from an elector under the Tenth Schedule to the Constitution but also be counterproductive to the basic grammar of the law of disqualification of a member on the ground of defection. It is a well settled principle that what cannot be done directly, cannot be done indirectly. To elaborate, if NOTA is allowed in the election of the members to the Council of States, the prohibited aspect of defection would indirectly usher in with immense vigour. 105. Here it is apt to note that this Court refused to allow the introduction of NOTA for election of members of the Council of States, for the Court was of the view that if the availability of NOTA option ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liament and the State Assemblies. This, 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. 109. In spite of what we have stated above, we do not intend to remain oblivious to the issue of criminalization of politics. This Court has focused on various aspects of the said criminalization and given directions from time to time which are meant to make the voters aware about the antecedents of the candidates who contest in the election. In Association for Democratic Reforms (supra), this Court held: 38. If right to telecast and right to view sport games and the right to impart such information is considered to be part and parcel of Article 19(1)(a), we fail to understand why the right of a citizen/voter -- a little man -- to know about the antecedents of his candidate cannot be held to be a fundamental right Under Article 19(1)(a). In our view, democracy cannot survive without free and fair election, without free and fairly informed voters. Votes cast by uninformed voters in favour of X or Y candidate would be meaningless. As stated in the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that sense 'pro tempore' in nature. Once legislation is made, the Court has to make an independent assessment in order to evaluate whether the items of information statutorily ordained are reasonably adequate to secure the right of information available to the voter/citizen. In embarking on this exercise, the points of disclosure indicated by this Court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure therefrom cannot be countenanced. * * * (5) Section 33-B inserted by the Representation of the People (Third Amendment) Act, 2002 does not pass the test of constitutionality, firstly, for the reason that it imposes a blanket ban on dissemination of information other than that spelt out in the enactment irrespective of the need of the hour and the future exigencies and expedients and secondly, for the reason that the ban operates despite the fact that the disclosure of information now provided for is deficient and inadequate. (6) The right to information provided for by Parliament Under Section 33-A in regard to the pending criminal cases and past involvement in such cases is reasonably adequate to safeguard the right t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(a) of the Constitution of India and any act, which is derogative of the fundamental rights is at the very outset ultra vires. And again: 27. If we accept the contention raised by the Union of India viz. the candidate who has filed an affidavit with false information as well as the candidate who has filed an affidavit with particulars left blank should be treated on a par, it will result in breach of fundamental right guaranteed Under Article 19(1)(a) of the Constitution viz. 'right to know', which is inclusive of freedom of speech and expression as interpreted in Assn. for Democratic Reforms. 114. The Court summarized the directions as under: 29.1. The voter has the elementary right to know full particulars of a candidate who is to represent him in Parliament/Assemblies and such right to get information is universally recognised. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. 29.2. The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens Under Article 19(1)(a) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inalization 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. It has to be remembered that 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. 116. Keeping the aforesaid in view, we think it appropriate to issue the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 119. We are sure, the law making wing of the democracy of this country will take it upon itself to cure the malignancy. We say so as such a malignancy is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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