Public Interest Foundation & Ors. Vs. Union of India & ANR.
[Writ Petition (Civil) No. 536 of 2011]
[Criminal Appeal Nos. 1714-1715 of 2007]
[Writ Petition (Criminal) No. 208 of 2011]
[Writ Petition (Civil) No. 800 of 2015]
Dipak Misra, CJI
In Yogendra Kumar Jaiswal and others v. State of Bihar and others1, the Court opined:-
"Corruption, a 'noun' when assumes all the characteristics of a Verb', becomes self-infective and also develops resistance to antibiotics. In such a situation the disguised protagonist never puts a Hamletian question-"to be or not to be"-but marches ahead with perverted proclivity-sans concern, sans care for collective interest, and irrefragably without conscience. In a way, corruption becomes a national economic terror."
2. The constitutional functionaries, 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(a) to (d) 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 the three-Judge Bench that the controversy was covered by the decision in Manoj Narula v. Union of India2. 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 ignore the fundamental law relating to separation of powers, primary responsibility conferred on the authorities under the respective powers and the fact that no authority should do anything for which the power does not flow from the Constitution.
In essence, the submission of Mr. Venugopal is that the Court should not cross the 'Lakshman Rekha'. Resting on the fulcrum of constitutional foundation and on the fundamental principle that if the Court comes to hold that it cannot legislate but only recommend for bringing in a legislation, as envisaged under Article 102(1)(e) of the Constitution, it would not be appropriate to take recourse to any other method for the simon pure reason that what cannot be done directly, should not be done indirectly. We shall advert to the said submission at a later stage.
5. Article 102 reads as follows: -
"102. Disqualifications for membership"
(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament-
(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament 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 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) 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 Parliament. In Lily Thomas v. Union of India and others3, it has been held:-
"26. Articles 102(1)(e) and 191(1)(e) of the Constitution, on the other hand, have conferred specific powers on Parliament to make law providing disqualifications for membership of either House of Parliament or Legislative Assembly or Legislative Council of the State other than those specified in sub-clauses (a), (b), (c) and (d) of clause (1) of Articles 102 and 191 of the Constitution. We may note that no power is vested in the State Legislature to make law laying down disqualifications of membership of the Legislative Assembly or Legislative Council of the State and power is vested in Parliament to make law laying down disqualifications also in respect of Members of the Legislative Assembly or Legislative Council of the State.
For these reasons, we are of the considered opinion that the legislative power of Parliament to enact any law relating to disqualification for membership of either House of Parliament or Legislative Assembly or Legislative Council of the State can be located only in Articles 102(1)(e) and 191(1)(e) of the Constitution and not in Article 246(1) read with Schedule VII List I Entry 97 and Article 248 of the Constitution. We do not, therefore, 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 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 majority addressed the concepts of 'constitutional morality', 'constitutional governance' and 'constitutional trust' and analysed the term 'advice' employed under Article 75(1) and stated that formation of an opinion by the Prime Minister in the context of Article 75(1) is expressed by the use of the said word because of the trust reposed in the Prime Minister under the Constitution and the said advice, to put it differently, is a constitutional advice. Reference was made to the debate in the Constituent Assembly which had left it to the wisdom of the Prime Minister because of the intrinsic faith in him.
Discussing further, it has been stated: - "At the time of framing of the Constitution, the debate pertained to conviction. With the change of time, the entire complexion in the political arena as well as in other areas has changed. This Court, on number of occasions, as pointed out hereinbefore, has taken note of the prevalence and continuous growth of criminalisation in politics and the entrenchment of corruption at many a level. In a democracy, the people never intend to be governed by persons who have criminal antecedents. This is not merely a hope and aspiration of citizenry but the idea is also engrained in apposite 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 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 wholly upon the nature of the Constitution.
The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave? Will they uphold constitutional methods of achieving their purposes or will they prefer revolutionary methods of achieving them? If they adopt the revolutionary methods, however good the Constitution may be, it requires no prophet to say that it will fail. It is, therefore, futile to pass any judgment upon the Constitution without reference to the part which the people and their parties are likely to play."
11. The learned Judge reproduced the words of Dr. Rajendra Prasad, which ring till today, are:-
"Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it. It is a trite saying that a country can have only the Government it deserves. Our Constitution has provisions in it which appear to some to 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 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 relation to any disqualification for being chosen as or for being a member of either House of Parliament, the Central Government, and in relation to any disqualification for being chosen as or for being a member of the Legislative Assembly or Legislative Council of a State, the State Government;
(b) "disqualified" means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. under the provisions of this Chapter, and on no other ground."
[Emphasis is ours]
15. The word 'disqualified' clearly states that a person be disqualified from being a member under the provisions of the said Chapter and/or on no other ground. The words 'no other ground' are of immense significance. Apart from the grounds mentioned under Article 102(1)(a) to 102(1)(d) and Article 191(1)(a) to 191(1)(d), the other grounds are provided by the Parliament and the Parliament has provided under Sections 8, 8A, 9, 9A, 10 and 10A which read thus:
"8. Disqualification on conviction for certain offences.-
(1) A person convicted of an offence punishable under-
(a) section 153A (offence of promoting enmity between different groups on ground of religion, race, 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 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 1991, or
(k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971); or (l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or (m) the Prevention of Corruption Act, 1988 (49 of 1988); or (n) the Prevention of Terrorism Act, 2002 (15 of 2002), shall be disqualified, where the convicted person is sentenced to- (i) only fine, for a period of six years from the date of such conviction; (ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
(2) A person convicted for the contravention of-
(a) any law providing for the prevention of hoarding or profiteering; or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, [1961 (28 of 1961)
and sentenced to imprisonment for not less than six months, 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.
(3) A person convicted 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, possession, storage, transport, distribution, 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 Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), may, if the period of such disqualification has not expired, submit a petition to the President for the removal of such disqualification for the unexpired portion of the said period.
(3) Before giving his decision on any question mentioned in sub-section (1) or on any petition submitted under sub-section (2), the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion.
9. Disqualification for dismissal for corruption or disloyalty.-
(1) A person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal.
20
(2) For the purposes of sub-section (1), a certificate issued by the Election Commission to the effect that a person having held office under the Government of India or under the Government of a State, has or has not been dismissed for corruption or for disloyalty to 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 less than twenty-five per cent share.
10A. Disqualification for failure 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, disqualifications are provided on certain and specific grounds by the legislature. In such a state, the legislature is absolutely specific.
17. The submission of the learned counsel appearing for the petitioners is that the law breakers should not become law makers and there cannot be a paradise for people with criminal antecedents in the Parliament or the State Legislatures. Reference has been made to the recommendations of the Law Commission which has seriously commented on the prevalent political atmosphere being dominated by people with criminal records.
18. It has also been highlighted by the petitioners that criminalization in politics is on the rise and the same is a documented fact and recorded by various committee reports. The petitioners also highlight that the doctrine of fiduciary relationship has been extended to several constitutional posts and that if members of Public Service Commission, Chief Vigilance Commissioner and the Chief Secretary can undergo the test of integrity check and if "framing of charge" has been recognized as a disqualification for such posts, then there is no reason to not extend 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 or more are liable to be declared as disqualified for being elected or for being a Member 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 a disqualification is concerned, the constitutional provision states the disqualification, confers the power on the legislature, which has, in turn, legislated in the imperative.
23. Thus, 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
24. Though we have analyzed the aforesaid aspect, yet we cannot close the issue, for the learned counsel for the petitioners and some of the intervenors have argued with immense anguish that there is a need for rectification of the system failing which there will be progressive malady in constitutional governance and gradually, the governance would be controlled by criminals. The submission has been advanced with sanguine sincerity and genuine agony. There have been suggestions as well as arguments with the purpose 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."4
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 forces in politics in order to protect the democratic foundation of our country. The Committee stated 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 1993, referred to several observations made by official agencies, including the CBI, IB, R&AW, who unanimously expressed their opinion on the criminal network which was virtually running a parallel government. The Committee also took note of the criminal gangs who carried out their activities under the aegis of various political parties and government functionaries.
The Committee further expressed great concern regarding the fact that over the past few years, several criminals had been elected to local bodies, State Assemblies and the Parliament. The Report observed:- "In the bigger cities, the main source of income relates to real estate - forcibly occupying lands/buildings, procuring such properties at cheap rates by forcing out the existing occupants/tenants etc. Over time, the money power thus acquired is used for building up contacts with bureaucrats and politicians and expansion of activities with impunity. The money power is used to develop a network of muscle-power which is also used by the politicians during elections." And again:- "The nexus between the criminal gangs, police, 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 competent court. Such a step would go a long way in cleansing the political establishment from the influence of criminal elements and protecting the sanctity of the Legislative Houses"5
30. In the case of Dinesh Trivedi, M.P. and others v. Union of India and others6 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 others7, the Court, in the context of the provisions made in the election law, observed that they have been made to exclude persons with criminal background, of the kind specified therein, from the election scene as candidates and voters with the object to prevent criminalization of politics and maintain propriety in elections. Thereafter, the three-Judge Bench opined that any provision enacted with a view to promote the said object must be welcomed and upheld as subserving the constitutional purpose.
32. In K. Prabhakaran v. P. Jayarajan8, in the context of enacting disqualification under Section 8(3) of the Act, the Court observed that persons with criminal background pollute the process of election as they have no inhibition in indulging in criminality to gain success in an election. Further, the Court observed:- "Those who break the law should not make the law. Generally speaking the purpose sought to be achieved by enacting disqualification on conviction for certain offences is to prevent persons with criminal background from entering into politics and the house - a powerful wing of 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 constitutional governance. The agonized concern expressed by this Court on being moved by the conscious citizens, as is 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 background. The objective is to prevent criminalisation of politics and maintain probity in elections. Criminalization of politics is the bane of society and negation of democracy."
35. The Chairman of the Law Commission, in the covering letter of the 244th Law Commission Report titled "Electoral Disqualifications", wrote to the then Minister of Law and Justice stating thus:-
1. "While the Law Commission was working towards suggesting its recommendations to the Government on Electoral Reforms, an Order was passed by the Hon'ble Supreme Court dated 16.12.2013 in Public Interest Foundation and Ors. Vs. Union of India and Anr., vide D.O. No. 4604/2011/SC/PIL(W] dated 21st December, 2013.
2. In the aforesaid Order, the Hon'ble Supreme Court noted that Law Commission may take some time for submitting a comprehensive report on all aspects of electoral reforms. However, the Hon'ble Court further mentioned that "the issues with regard to de-criminalization of politics and disqualification for filing false affidavits deserve priority and immediate consideration" 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 beyond the pale of reasonable controversy that if there be any unamendable features of the Constitution on the score that they form a part 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 Commissioner9 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 elections as constitutional compulsions... It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more."
38. The Commission addressed the issue pertaining to the extent of criminalization in politics and took note of the observations made by Mr. C. Rajagopalachari who, as back as in 1922, had anticipated the present state of affairs twenty-five years before Independence, when he wrote in his prison diary:- "Elections and their corruption, injustice and tyranny of wealth, and inefficiency of administration, will make a hell of life as soon as freedom is given to us..."
39. The Commission also observed that the nature of nexus changed in the 1970s and instead of politicians having suspected links to criminal networks, as was the case earlier, it was persons with extensive criminal backgrounds who began entering politics and this fact was confirmed in the Vohra Committee Report in 1993 and again in 2002 in the 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 Reforms10 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, 14 candidates had 40 or more such cases and 5 candidates had 50 or more cases against them.
Further, the Commission observed that the 5,253 candidates 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 that in 2004, 24% of Lok Sabha MPs had criminal cases pending which increased to 30% in the 2009 elections and this situation is similar across States with 31% or 1,258 out of 4,032 sitting MLAs with pending cases, with again about half being serious cases.
Not only this, the Commission also observed that some States have a much higher percentage of MLAs with criminal records: in Uttar Pradesh, 47% of MLAs have criminal cases pending and a number of these MPs and MLAs have been accused of multiple counts of criminal charges, for example, in a constituency of Uttar Pradesh, the MLA has 36 criminal cases pending including 14 cases relating to murder. As per the Commission, it is clear from this data that about one-third of the elected candidates at the Parliament and State Assembly levels in India have some form of criminal taint and also that the data elsewhere suggests that one-fifth of MLAs have pending cases which
have proceeded to the stage of charges being framed against them by a court at the time of their election. What the Commission 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 through which interests and issues of the people get represented in Parliament. Since political parties play a central role in the interface between private 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 others11 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 centralrole in Indian democracy. Therefore, a politician may be disqualified from being a legislator, but may continue to hold high positions within his party, thus also continuing to play an important public role which he has been deemed unfit for by the law. Convicted politicians may continue to influence law -making by controlling the party and fielding proxy candidates in legislature.
In a democracy essentially based on parties being controlled by a high-command, the process of breaking crime-politics nexus extends much beyond purity of legislators and encompasses purity of political parties as well. ....It is suggested that political parties should refrain from appointing or allowing a person to continue holding any office within the party organisation if the person has been deemed to lack the qualities necessary to be a public official. Therefore, the legal disqualifications that prevent a person from holding office outside a party should operate within the party as well."
44. Commenting on the existing legal framework, it opined that legally, the prevention of entry 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 India12 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) of the Representation of People Act, 1950."
46. Further, the Commission took note of the observations made by the Justice J.S. Verma Committee Report on Amendments to Criminal Law (2013) which proposed insertion of Schedule I to the Representation of the People Act, 1951 enumerating offences under IPC 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 Cr.PC. 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 by the Commission for introducing a disqualification at the stage of framing of charges was to the following effect:-
"At the outset, the question that needs to be considered is whether disqualification should continue to be triggered only at the stage of conviction as is currently the case under Section 8 of the RPA. As detailed below, the current law suffers from three main problems: the rate of convictions among sitting MPs and MLAs is extremely low, trials of such persons are subject to long delays, and the law does not provide adequate deterrence to political parties granting tickets to persons of criminal backgrounds. This has resulted in a massive increase in the presence of criminal elements in politics, which affects our democracy in very evident ways."
48. Thereafter, the Commission went on to observe in its Reform Proposal as to why the stage of framing of charge sheet would not be an appropriate stage for disqualification. The Commission observed thus:- "When filing a charge-sheet, the Police is simply forwarding 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. This would be tantamount to granting the judicial determination of the question of disqualification to the police, who are a prosecuting authority. At the National Consultation it 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 to include such evidence as part of the charge-sheet. The Commission went on to conclude that the stages of filing of charge sheet or taking cognizance would be inappropriate and observed thus:- "Due to the absence of an opportunity to the accused to be heard at the stage of filing of charge-sheet or taking of cognizance, and due to the lack of application of judicial mind at this stage, it is not an appropriate stage to introduce electoral disqualifications.
Further, in a case supposed to be tried by the Sessions Court, it is still the Magistrate who takes cognizance. Introduction of disqualifications at this stage would mean that a Magistrate who has been deemed not competent to try the case still determines whether a person should be disqualified due to the charges filed. Because of these reasons, it is our view that the filing of the police report under Section 173 CrPC or taking of cognizance is not an appropriate stage to introduce electoral disqualifications..."
50. Thereafter, 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 b