PUBLIC INTEREST FOUNDATION & ORS. versus UNION OF INDIA & ANR.

[2018] 10 S.C.R. 141

PUBLIC INTEREST FOUNDATION & ORS.

UNION OF INDIA & ANR.

(Writ Petition (Civil) No. 536 of 2011)

SEPTEMBER 25, 2018

[DIPAK MISRA, CJI, R. F. NARIMAN,A. M. KHANWILKAR, DR. D. Y. CHANDRACHUD ANDINDU MALHOTRA, JJ.]

Constitution of India:

Articles 102 (a) to (d) and (e); 324 – In order to curbcriminalization of politics, whether the court can issue mandamusto Parliament to pass legislation debarring person facingcharges of serious nature from contesting election for Member ofParliament; and whether directions can be issued to the ElectionCommission to control party discipline of political party by notencouraging candidates with criminal antecedents – Held: In aconstitutional democracy, criminalization of politics is extremelydisastrous – Though criminalization in politics is bitter truth , theCourt is not competent to make law to curb such menace –Parliament has exclusive legislative power to lay downdisqualification for membership – Art. 201(1) specifies certaingrounds for disqualification – Any other disqualification can beadded by or under any law made by the Parliament – Chapter III ofRepresentation of the People Act deals with disqualification formembership – As per the Act, person can be disqualified on ‘noother ground’ than under the provisions of Chapter III – Thus,legislature has very clearly enumerated the grounds fordisqualification and the language of s.7(b) of the Act leaves noroom for any new ground to be added or introduced – Art. 324 laysdown the power of the Election Commission to supervise andconduct free and fair election – However, the said power has itslimitations – The Election Commission has to act in conformity withthe law made by the Parliament and it cannot transgress the same –A direction by the Supreme Court to the Election Commission that acandidate in election against whom charges have been framed,

Acannot be allowed to contest with the reserved symbol for apolitical party is beyond the pale of judicial arm of the State – Suchdirection will amount to adding new ground for disqualification –Such attempt would be colourable exercise of judicial power – Itmight lead to an anomalous situation and has the effect potentialityto do something indirectly which is not permissible to do directly –BThe tainted candidate, even if denied party symbol and contests theelection as independent candidate, the impact would be same –Therefore, such direction to the Election Commission is notconstitutionally permissible – The judicial arm of the State beingladen with the duty of constitutional ethos cannot usurp the power,Cwhich it does not have – However, the citizens in democracycannot be compelled to stand the corruption – Disclosure ofantecedents makes the election fair and the exercise of the right ofvoting by the electorate also gets sanctified – In the presentscenario, information given by the candidates is not widely known

in the constituency and the multitude of voters do not come to knowDabout the antecedents – Their right to have information suffers –Directions issued to the effect that complete and wide informationabout the criminal antecedents of the candidates are given –Representation of the People Act, 1951 – ss. 7(b), 8, 8A, 9, 9A, 10and 10A.EDisposing of the writ petitions and the appeals, the Court

HELD: 1.1 An essential component of constitutionaldemocracy is its ability to give and secure for its citizenry arepresentative form of government, elected freely and fairly, andcomprising of polity whose members are men and women ofFhigh integrity and morality. This could be said to be the hallmarkof any free and fair democracy. Criminalization of politics wasnever an unknown phenomenon in the Indian political system.[Paras 26 and 28] [167-F; 168-B]

1.2 The Election Commission has also remained alive toGthe issue of criminalization of politics since 1998. Therecommendations of the Law Commission for proposedamendment never saw the light of the day in the form of lawenacted by competent legislature but it vividly exhibits theconcern of the society about the progressing trend ofH

criminalization in politics that has the proclivity and thepropensity to send shivers down the spine of constitutionaldemocracy. [Paras 29 and 59] [169-A; 187-D-E]

Dinesh Trivedi, M.P. and Others v. Union of India andOthers (1997) 4 SCC 306 : [1997] 3 SCR 93 ; AnukulChandra Pradhan, Advocate, Supreme Court v. Unionof India and Others (1997) 6 SCC 1 : [1997] 1 Suppl.SCR 641; K. Prabhakaran v. P. Jayarajan AIR 2005SC 688 : [2005] 1 SCR 296 ; Manoj Narula v. Unionof India (2014) 9 SCC 1 : [2014] 9 SCR 965– relied on.

Yogendra Kumar Jaiswal and Others v. State of Biharand Others (2016) 3 SCC 183 ; Mohinder Singh Gill v.Chief Election Commissioner AIR 1978 SC 851 :[1978] 2 SCR 272 ; Union of India v. Association forDemocratic Reforms (2002) 5 SCC 294 : [2002] 3 SCR696 ; Subhash Chandra Agarwal v. Indian NationalCongress and Others (2013) CIC 8047 ; People’s Unionfor Civil Liberties v. Union of India (2003) 4 SCC399 : [2003] 2 SCR 1136 ; State of Maharashtra v.Som Nath Thapa (1996) 4 SCC 659 : [1996] 1 Suppl.SCR 189 ; Union of India v. Prafulla Kumar Samal(1979) 3 SCC 4 : [1979] 2 SCR 229 – referred to.

Goswami Committee on Electoral Reforms (1990) ;Vohra (Committee) Report; 18[th] Report presented to theRajya Sabha on 15[th] March, 2007 by the Department-Related Parliamentary Standing Committee onPersonnel, Public Grievances, Law and Justice onElectoral Reforms (Disqualification of Persons fromContesting Elections on Framing of Charges AgainstThem for Certain Offences); 244[th] Law CommissionReport titled “Electoral Disqualifications”, Report ofthe National Commission to Review the Working of theConstitution (NCRWC); 170[th] Report of LawCommission; Justice J. S. Verma Committee Reporton Amendments to Criminal Law (2013) – referredto.

A2.1 As regards disqualification for being chosen as amember of either House of Parliament and similarlydisqualification for being chosen or for being member of theLegislative Assembly or Legislative Council of State, the lawhas to be made by the Parliament. The Parliament has theexclusive legislative power to lay down disqualification forBmembership. [Para 7] [155-B-C, G-H]

2.2 Article 102(1) specifies certain grounds and furtherprovides that any disqualification can be added by or under anylaw made by the Parliament. Article 191 has the same character.Chapter III of the Representation of the People Act, 1951 dealsCwith disqualification for membership of the Parliament and theState Legislatures. [Paras 13 and 14] [159-F-G]

2.3 The word ‘disqualified’ as defined by s. 7(b) of 1951 Actclearly states that person be disqualified from being memberunder the provisions of Chapter III and/or on no other ground.DThe words ‘no other ground’ are of immense significance. Apartfrom 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 providedby the Parliament and the Parliament has provided under Sections8, 8A, 9, 9A, 10 and 10A. [Para 15][160-C-D]E

2.4 Section 8 deals with disqualification on conviction forcertain offences. Section 8A provides for disqualification onground of corrupt practices. Section 9 provides for thedisqualification for dismissal for corruption or disloyalty. Section9A deals with the situation where there is subsisting contractFbetween the person and the appropriate Government. Section10 lays down disqualification for office under GovernmentCompany and Section 10A deals with disqualification for failureto lodge account of election expenses. Apart from thesedisqualifications, there are no other disqualifications and, therecan be no other ground. Thus, disqualifications are provided onGcertain and specific grounds by the legislature. In such state,the legislature is absolutely specific. [Para 16] [165-B-D]

2.5 It is well settled in law that the Court cannot legislate.As far as adding disqualification is concerned, the constitutional

provision states the disqualification, confers the power on thelegislature, which has, in turn, legislated in the imperative. Thus,the prescription as regards disqualification is complete in viewof the language employed in Section 7(b) read with Sections 8 to10A of the Act. There is no ambiguity. The legislature has veryclearly enumerated the grounds for disqualification and thelanguage of the said provision leaves no room for any new groundto be added or introduced. [Paras 22 and 23] [166-F, G-H;167-A]

Manoj Narula v. Union of India (2014) 9 SCC 1 :[2014] 9 SCR 965 ; Lily Thomas v. Union of India andOthers (2013) 7 SCC 653 : [2013] 10 SCR 1130 –relied on.

3.1 Article 324 of the Constitution lays down the power ofthe Election Commission with respect to superintendence,direction and control of elections. The Election Commission hasthe plenary power and its view has to be given weightage. Thatapart, it has power to supervise the conduct of free and fairelection. However, the said power has its limitations. The ElectionCommission has to act in conformity with the law madeby the Parliament and it cannot transgress the same.[Paras 61 and 70] [187-G; 193-E-F]

3.2 Symbols Order deals with allotment, classification,choice of symbols by candidates and restriction on the allotmentof symbols. When candidate has been set up in an election by aparticular political party, then such candidate has right undersub-clause (3) of clause (8) of Symbol Orders to choose the symbolreserved for the respective political party by which he/she hasbeen set up. An analogous duty has also been placed upon theElection Commission to allot to such candidate the symbolreserved for the political party by which he/she has been set upand to no other candidate. Where particular symbol is reservedfor particular political party and such political party sets up acandidate in elections against whom charges have been framedfor heinous and/or grievous offences and this Court were to directthe Election Commission that such candidate cannot be allowedto contest with the reserved symbol for the political party, it wouldtantamount to adding new ground for disqualification which is

Abeyond the pale of the judicial arm of the State. Any attempt tothe contrary will be colourable exercise of judicial power for itis axiomatic that “what cannot be done directly ought not to bedone indirectly” which is well-accepted principle in the Indianjudiciary. [Paras 86, 97 and 98] [197-E-F; 201-E-H]

B3.3 Any direction to the Election Commission in the natureas sought by the petitioners may lead to an anomalous situationand has the effect potentiality to do something indirectly which isnot permissible to do directly. [Para 104] [203-C]

3.4 Even if the person concerned contests the election asCan independent candidate, the impact would be the same. Thatapart, without legislation, it may be difficult to proscribe thesame. Additionally, democracy that is based on multi-party systemis likely to be dented. Therefore, though criminalization in politicsis bitter manifest truth, which is termite to thecitadel of democracy, the Court cannot make the law.D[Paras 104 and 106] [203-D; 204-G]

3.5 Directions to the Election Commission, of the natureas sought in the case at hand, may in an idealist world seem tobe, at cursory glance, an antidote to the malignancy ofcriminalization in politics but such directions, on closer scrutiny,Eclearly reveal that it is not constitutionally permissible. Thejudicial arm of the State being laden with the duty of being thefinal arbiter of the Constitution and protector of constitutionalethos cannot usurp the power which it does not have.[Para 107] [204-H; 205-A-B]

3.6 In multi-party democracy, where members are electedon party lines and are subject to party discipline, it isrecommended to the Parliament to bring out strong law wherebyit is mandatory for the political parties to revoke membership ofpersons against whom charges are framed in heinous and grievousGoffences and not to set up such persons in elections, both for theParliament and the State Assemblies. This would go long way inachieving decriminalisation of politics and usher in an era ofimmaculate, spotless, unsullied and virtuous constitutionaldemocracy. [Para 108] [205-B-C]

Kesavananda Bharati v. State of Kerala and Another(1973) 4 SCC 225 : [1973] Suppl. SCR 1 – followed.A.C. Jose v. Sivan Pillai and Others AIR 1984 SC921 : [1984] 3 SCR 74; Association for DemocraticReforms (2002) 5 SCC 294 : [2002] 3 SCR 696;Kuldip Nayar v. Union of India and Others (2006) 7SCC 1 : [2006] 5 Suppl. SCR 1; Indian NationalCongress (I) v. Institute of Social Welfare and Others(2002) 5 SCC 685 : [2002] 3 SCR 1040 ; Jagir Singhv. Ranbir Singh and Another (1979) 1 SCC 560 :[1979] 2 SCR 282 ; M.C. Mehta v. Kamal Nath andOthers (2000) 6 SCC 213 : [2000] 1 Suppl. SCR 389;State of Himachal Pradesh and Others v. Satpal Saini(2017) 11 SCC 42 : [2017 1 SCR 658; Allied MotorsLimited v. Bharat Petroleum Corporation Limited (2012)2 SCC 1: [2011] 16 SCR 422 ; Nazir Ahmad v. KingEmperor AIR 1936 PC 253 ; D.R. Venkatachalam andOthers v. Dy. Transport Commissioner and OthersAIR 1977 SC 842 : [1977] 2 SCR 392 ; State through.P.S. Lodhi Colony New Delhi v. Sanjeev NandaAIR 2012 SC 3104 : [2012] 12 SCR 881; RashmiRekha Thatoi and Another v. State of Orissa and Others(2012) 5 SCC 690 : [2012] 5 SCR 674; ShaileshManubhai Parmar v. Election Commission of India2018 (10) SCALE 52; Resurgence India v. ElectionCommission of India (2014) 14 SCC 189 : [2013] 9SCR 360 ; People’s Union for Civil Liberties v. Unionof India (2013) 10 SCC 1 : [2013 ]12 SCR 283 –relied on.

Election Commission of India and Another. v.Dr. Subramaniam Swamy and Another (1996) 4 SCC104 : [1996] 1 Suppl. SCR 637; Mohinder Singh Gillv. Chief Election Commissioner AIR 1978 SC 851 :[1978] 2 SCR 272 ; Amit Kapoor v. Ramesh Chanderand Another (2012) 9 SCC 460 : [2012] 7 SCR 988 ;Union of India and Another v. Deoki Nandan Aggarwal(1992) 1 Suppl. SCC 323 ; Supreme Court BarAssociation v. Union of India and Another (1998) 4SCC 409 : [1998] 2 SCR 795 – referred to.

A4.1 In constitutional democracy, criminalization of politicsis an extremely disastrous and lamentable situation. The citizensin democracy cannot be compelled to stand as silent, deaf andmute spectators to corruption by projecting themselves ashelpless. The voters cannot be allowed to resign to their fate.The information given by candidate must express everythingBthat is warranted by the Election Commission as per law.Disclosure of antecedents makes the election fair one and theexercise of the right of voting by the electorate also gets sanctified.Such right is paramount for democracy. voter is entitled tohave an informed choice. If his right to get proper information isCscuttled, in the ultimate eventuate, it may lead to destruction ofdemocracy because he will not be an informed voter having beenkept in the dark about the candidates who are accused of heinousoffences. In the present scenario, the information given by thecandidates is not widely known in the constituency and themultitude of voters really do not come to know about theDantecedents. Their right to have information suffers. [Para 115][210-B-D]

4.2 It is directed that each contesting candidate shall fill upthe form as provided by the Election Commission; it shall state,in bold letters, with regard to the criminal cases pending againstEthe candidate; if candidate is contesting an election on the ticketof particular party, he/she is required to inform the party aboutthe criminal cases pending against him/her; the concernedpolitical party shall be obligated to put up on its website theaforesaid information pertaining to candidates having criminalFantecedents; the candidate as well as the concerned political partyshall issue declaration in the widely circulated newspapers inthe locality about the antecedents of the candidate and also givewide publicity in the electronic media i.e. thrice after filing of thenomination papers. These directions ought to be implementedin true spirit and right earnestness in bid to strengthen theGdemocratic set-up. [Paras 116 and 117] [210-F-G; 211-A-B]

4.3 There may be certain gaps or lacunae in law orlegislative enactment which can definitely be addressed by thelegislature if it is backed by the proper intent, strong resolveand determined will of right-thinking minds to ameliorate theH

situation. The law cannot always be found fault with for the lackof its stringent implementation by the concerned authorities.Therefore, it is the solemn responsibility of all concerned toenforce the law as well as the directions laid down by this Courtfrom time to time in order to infuse the culture of purity in politicsand in democracy and foster and nurture an informed citizenry,for ultimately it is the citizenry which decides the fate and courseof politics in nation and thereby ensures that “we shall begoverned no better than we deserve”, and thus, completeinformation about the criminal antecedents of the candidatesforms the bedrock of wise decision-making and informed choiceby the citizenry. Informed choice is the cornerstone to have apure and strong democracy. [Para 117] [211-B-E]4.4 The Parliament must make law to ensure that personsfacing serious criminal cases do not enter into the political stream.It is one thing to take cover under the presumption of innocenceof the accused but it is equally imperative that persons who enterpublic life and participate in law making should be above any kindof serious criminal allegation. It is true that false cases are foistedon prospective candidates, but the same can be addressed bythe Parliament through appropriate legislation. [Para 118][211-F-G]

[2018] 10 S.C.R.

GCIVIL ORIGINAL/APPELLATE JURISDICTION : WritPetition (Civil) No.536 of 2011

Under Article 32 of the Constitution of India.

WITH

Criminal Appeal Nos.1714-1715 of 2007, Writ Petition (Criminal)HNo. 208 of 2011 and Writ Petition (Civil) No. 800 of 2015.

K. K. Venugopal, Attorney General for India, Maninder Singh,ASG, Ms. Aishwarya Bhati, S. S. Shamshery, AAG, A. Mariarputham,Adv. Gen., Sidharth Luthra, Sr. Adv. (AC), Dinesh Dwivedi, KrishnanVenugopal, Ms. Meenakshi Arora, A. K. Srivastava, Prashanto ChandraSen, Sr. Advs., Anoopam N. Prasad, Ms. Mehaak Jaggi, Aroon Menon,K. K. Mohan, Ashish Mohan, Krishnam Mishra, Yasharth Kant, NishantSingh, Shashank Shekhar Singh, Ankit Pandey, Dr. Manish Singhvi (forM/s. AP & J Chambers), Uday Rathore, A.K. Upadhyay (for R. D.Upadhyay) R. Balasubramanian, Rohit Bhatt, Prabhas Bajaj, Ms. KanikaSaran, Ms. Aarti Sharma (for B. Krishna Prasad), Abhay Kumar,Ms. Monisha Handa, Amit Sharma, Baij Nath Patel, Mohit D. Ram,Vishwa Pal Singh, V.N. Raghupathy, V.G. Pragasam, S. PrabuRamasubramanian, S. Manuraj, Tapesh Kumar Singh, Mohd. Waquas,Aditya Pratap Singh, Shuvodeep Roy, Sayooj Mohandas, Rituraj Biswas,Manoj Gorkela, Sahil (for Ms. Shashi Kiran), Saurabh Mishra, MrityunjaiSingh (for S. Udaya Kumar Sagar), Rajesh Srivastava, Amit Sharma,Sandeep Singh, Ankit Raj, Ms. Nidhi Jaswal, Ms. Indira Bhakar,Ms. Ruchi Kohli, Ravi Prakash Mehrotra, Ranjan Mukherjee, DanielStone Lyngdoh, K.V. Kharlyngdoh, Ramesh Babu M. R., Ms. PragatiNeekhra, Parijat Sinha, Nishant Ramakantrao Katneshwarkar, M. YogeshKanna, Mrs. Sujatha Isagadhi, Baij Nath Patel, M. R. Shamshad, KuldipSingh, Krishnayan Sen, Jatinder Kumar Bhatia, Ashutosh Kumar Sharma,Ms. Hemantika Wahi, Guntur Prabhakar, Manish Kumar (for GopalSingh), K. V. Jagdishavaran, Ms. G. Indira, Dinesh Kumar Garg,D.S. Mahra, Ashok Mathur, Ms. Aruna Mathur, Avneesh Arputham,Ms. Anuradha Arputham, Ms. Geetanjali (for M/s. Arputham ArunaAnd Co.), Arjun Garg, Ardhendumauli Kumar Prasad, Anuvrat Sharma,Aniruddha P. Mayee, Adarsh Upadhyay, Abhisth Kumar, AbhishekChaudhary, Pratap Venugopal, Ms. Surekha Ramani, Anuj Sarma,Ms. Niharika (for M/s. K. J. John And Co.), Shibashish Misra, ChandanKumar Mandal, Ms. Jaspreet Gogia, Ms. Mandakini Singh, Ms. TulikaPrakash, Atul Jha, Sandeep Jha, Dharmendra Kumar Sinha, C. K. Sasi,Ms. Nayantara Roy, Mukesh Kumar Maroria, Avijit Bhattacharjee,Ms. Swarupama Chaturvedi, B. N. Dubey, Ms. Vaishali Verma,Ms. Devika Gulati, Ms. Madhvi Kumar Sawant, Hitesh Kumar Sharma,S. K. Rajora (for Milind Kumar), M/s. Corporate Law Group, M. ShoebAlam, Ms. Fauzia Shakil, Ujjwal Singh, Mojahid Karim Khan,Ms. K. Enatoli Sema, Amit Kumar Singh, Z. H. Isaac Haiding, BalajiSrinivasan, Anil Shrivastav, Sudarshan Singh Rawat, Suhaan Mukerji,

AHarsh Hiroo Gursahani, Ms. Kajal Dalal, Abhishek Manchanda,Ms. Astha Sharma (for M/s. PLR Chambers & Co.), LeishangthemRoshmani Kh., Ms. Maibam Babina, Balaji Srinivasan, James P. Thomas,P.S. Sudheer, Rishi Maheshwari, Kaustubh Singh, GopalSankaranarayanan, A. K. Upadhyay, Ms. Shrey Patnaik, Ms. AishwaryaKane, Vikram Gulati (for R. D. Upadhyay), Ashwani Kumar Dubey,BAdvs. for the appearing parties.

Vikram Gulati, Respondent-in-person.

The Judgment of the Court was delivered by

DIPAK MISRA, CJI. 1. In Yogendra Kumar Jaiswal andCothers v. State of Bihar and others[1], the Court opined:-

“Corruption, ‘noun’ when assumes all the characteristics of aVerb’, becomes self-infective and also develops resistance toantibiotics. In such situation the disguised protagonist never putsa Hamletian question-”to be or not to be”-but marches aheadDwith perverted proclivity-sans concern, sans care for collectiveinterest, and irrefragably without conscience. In way, corruptionbecomes national economic terror.”

2. The constitutional functionaries, who have taken the pledge touphold the constitutional principles, are charged with the responsibility toEensure that the existing political framework does not get tainted with theevil of corruption. However, despite this heavy mandate prescribed byour Constitution, our Indian democracy, which is the world’s largestdemocracy, has seen steady increase in the level of criminalizationthat has been creeping into the Indian polity. This unsettlingly increasingtrend of criminalization of politics, to which our country has been aFwitness, tends to disrupt the constitutional ethos and strikes at the veryroot of our democratic form of government by making our citizenry sufferat the hands of those who are nothing but liability to our country.

3. The issue that emerges for consideration before this Bench iswhether disqualification for membership can be laid down by the CourtGbeyond Article 102(a) to (d) and the law made by the Parliament underArticle 102(e). three-Judge Bench hearing the matter was of theview that this question is required to be addressed by the ConstitutionBench under Article 145(3) of the Constitution. Be it stated, submissionwas advanced before the three-Judge Bench that the controversy wasH1 (2016) 3 SCC 183

covered by the decision in Manoj Narula v. Union of India[2]. The saidsubmission was not accepted because of the view expressed by MadanB. Lokur, J. in his separate judgment.

4. In the course of hearing, the contour of the question wasexpanded with enormous concern to curb criminalization of politics in ademocratic body polity. The learned counsel for the petitioners submittedthat having regard to the rise of persons with criminal antecedents, thefundamental concept of decriminalization of politics should be viewedfrom wider spectrum and this Court, taking into consideration the facetof interpretation, should assume the role of judicial statesmanship.Mr. K.K. Venugopal, learned Attorney General for India and other learnedcounsel, per contra, would submit that there can be no denial that thisCourt is the final arbiter of the Constitution and the Constitution empowersthis wing of the State to lay down the norms of interpretation and showjudicial statesmanship but the said judicial statesmanship should not ignorethe fundamental law relating to separation of powers, primaryresponsibility conferred on the authorities under the respective powersand the fact that no authority should do anything for which the powerdoes not flow from the Constitution. In essence, the submission ofMr. Venugopal is that the Court should not cross the ‘Lakshman Rekha’.Resting on the fulcrum of constitutional foundation and on the fundamentalprinciple that if the Court comes to hold that it cannot legislate but onlyrecommend for bringing in legislation, as envisaged under Article102(1)(e) of the Constitution, it would not be appropriate to take recourseto any other method for the simon pure reason that what cannot be donedirectly, should not be done indirectly. We shall advert to the said submissionat later stage.

5. Article 102 reads as follows: -

“102. Disqualifications for membership - (1) person shallbe disqualified for being chosen as, and for being, member ofeither House of Parliament—

(a) if he holds any office of profit under the Government of Indiaor the Government of any State, other than an office declaredby Parliament by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by competentcourt;

2 (2014) 9 SCC 1

A(c) if he is an undischarged insolvent;

(d) if he is not citizen of India, or has voluntarily acquired thecitizenship of foreign State, or is under any acknowledgmentof allegiance or adherence to foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

Explanation. —For the purposes of this clause person shall notbe deemed to hold an office of profit under the Government ofIndia or the Government of any State by reason only that he is aMinister either for the Union or for such State.

C(2) person shall be disqualified for being member of eitherHouse of Parliament if he is so disqualified under the TenthSchedule.”

6. In this context, we may also refer to Article 191 of theConstitution that deals with disqualifications for membership. It is asfollows: -D

“191. Disqualifications for membership—(1) person shallbe disqualified for being chosen as, and for being, member ofthe Legislative Assembly or Legislative Council of State

(a) if he holds any office of profit under the Government of IndiaEor the Government of any State specified in the First Schedule,other than an office declared by the Legislature of the Stateby law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by competentcourt;F

(c) if he is an undischarged insolvent;

(d) if he is not citizen of India, or has voluntarily acquired thecitizenship of foreign State, or is under any acknowledgementof allegiance or adherence to foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

Explanation. —For the purposes of this clause, person shallnot be deemed to hold an office of profit under the Governmentof India or the Government of any State specified in the First

Schedule by reason only that he is Minister either for the Unionor for such State.

(2) person shall be disqualified for being member of theLegislative Assembly or Legislative Council of State if he is sodisqualified under the Tenth Schedule.”

7. On perusal of both the Articles, it is clear as crystal that asregards disqualification for being chosen as member of either Houseof Parliament and similarly disqualification for being chosen or for beinga member of the Legislative Assembly or Legislative Council of State,the law has to be made by the Parliament. In Lily Thomas v. Union ofIndia and others[3], it has been held:-

“26. Articles 102(1)(e) and 191(1)(e) of the Constitution, on theother hand, have conferred specific powers on Parliament to makelaw providing disqualifications for membership of either House ofParliament or Legislative Assembly or Legislative Council of theState other than those specified in sub-clauses (a), (b), (c) and(d) of clause (1) of Articles 102 and 191 of the Constitution. Wemay note that no power is vested in the State Legislature to makelaw laying down disqualifications of membership of the LegislativeAssembly or Legislative Council of the State and power is vestedin Parliament to make law laying down disqualifications also inrespect of Members of the Legislative Assembly or LegislativeCouncil of the State. For these reasons, we are of the consideredopinion that the legislative power of Parliament to enact any lawrelating to disqualification for membership of either House ofParliament or Legislative Assembly or Legislative Council of theState can be located only in Articles 102(1)(e) and 191(1)(e) ofthe Constitution and not in Article 246(1) read with Schedule VIIList I Entry 97 and Article 248 of the Constitution. We do not,therefore, accept the contention of Mr. Luthra that the power toenact sub-section (4) of Section 8 of the Act is vested in Parliamentunder Article 246(1) read with Schedule VII List I Entry 97 andArticle 248 of the Constitution, if not in Articles 102(1)(e) and191(1)(e) of the Constitution.”

We have no hesitation in saying that the view expressed above inLily Thomas (supra) is correct, for the Parliament has the exclusivelegislative power to lay down disqualification for membership.

3 (2013) 7 SCC 653

A8. In Manoj Narula (supra), the question centered around theinterpretation of Article 75 of the Constitution. The core issue pertainedto the legality of persons with criminal background and/or charged withoffences involving moral turpitude to be appointed as ministers in theCentral and the State Governments. The majority referred to theconstitutional provisions, namely, Articles 74, 75, 163 and 164, advertedBto the doctrine of implied limitation and, in that context, opined thus:-

“64. On studied scrutiny of the ratio of the aforesaid decisions,we are of the convinced opinion that when there is nodisqualification for person against whom charges have beenframed in respect of heinous or serious offences or offencesCrelating to corruption to contest the election, by interpretativeprocess, it is difficult to read the prohibition into Article 75(1) or,for that matter, into Article 164(1) to the powers of the PrimeMinister or the Chief Minister in such manner. That would comewithin the criterion of eligibility and would amount to prescribingDan eligibility qualification and adding disqualification which hasnot been stipulated in the Constitution. In the absence of anyconstitutional prohibition or statutory embargo, such disqualification,in our considered opinion, cannot be read into Article 75(1) orArticle 164(1) of the Constitution.”E9. There has been advertence to the principle of constitutionalsilence or abeyance and, in that context, it has been ruled that it is notpossible to accept that while interpreting the words “advice of the PrimeMinister”, it can legitimately be inferred that there is prohibition tothink of person as minister if charges have been framed against himin respect of heinous and serious offences including corruption casesFunder the criminal law. Thereafter, the majority addressed the conceptsof ‘constitutional morality’, ‘constitutional governance’ and ‘constitutionaltrust’ and analysed the term ‘advice’ employed under Article 75(1) andstated that formation of an opinion by the Prime Minister in the contextof Article 75(1) is expressed by the use of the said word because of theGtrust reposed in the Prime Minister under the Constitution and the saidadvice, to put it differently, is constitutional advice. Reference wasmade to the debate in the Constituent Assembly which had left it to thewisdom 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 pertainedto conviction. With the change of time, the entire complexion inthe political arena as well as in other areas has changed. ThisCourt, on number of occasions, as pointed out hereinbefore, hastaken note of the prevalence and continuous growth ofcriminalisation in politics and the entrenchment of corruption atmany level. In democracy, the people never intend to begoverned by persons who have criminal antecedents. This is notmerely hope and aspiration of citizenry but the idea is alsoengrained in apposite executive governance.”

And again: -

“That the Prime Minister would be giving apposite advice to thePresident is legitimate constitutional expectation, for it is aparamount constitutional concern. In controlled Constitution likeours, the Prime Minister is expected to act with constitutionalresponsibility as consequence of which the cherished values ofdemocracy and established norms of good governance getcondignly fructified. The Framers of the Constitution left many athing unwritten by reposing immense trust in the Prime Minister.The scheme of the Constitution suggests that there has to be anemergence of constitutional governance which would graduallygrow to give rise to constitutional renaissance.”

10. Lokur, J. opined: -

“132. While it may be necessary, due to the criminalisation of ourpolity and consequently of our politics, to ensure that certain personsdo not become Ministers, this is not possible through guidelinesissued by this Court. It is for the electorate to ensure that suitable(not merely eligible) persons are elected to the legislature and it isfor the legislature to enact or not enact more restrictive law.”

Proceeding further, the learned Judge stated: -

“137. In this respect, the Prime Minister is, of course, answerableto Parliament and is under the gaze of the watchful eye of thepeople of the country. Despite the fact that certain limitations canbe read into the Constitution and have been read in the past, theissue of the appointment of suitable person as Minister is not

Aone which enables this Court to read implied limitations in theConstitution.”

He had also, in his opinion, reproduced the words of Dr. B.R.Ambedkar in the Constituent Assembly on 25.11.1949 and the sentimentsechoed by Dr. Rajendra Prasad on 26.11.1949. Dr. Ambedkar had said:-

“As much defence as could be offered to the Constitution hasbeen offered by my friends Sir Alladi Krishnaswami Ayyar andMr T.T. Krishnamachari. I shall not therefore enter into the meritsof the Constitution. Because I feel, however good Constitutionmay be, it is sure to turn out bad because those who are called towork it, happen to be bad lot. However bad Constitution maybe, it may turn out to be good if those who are called to work it,happen to be good lot. The working of Constitution does notdepend wholly upon the nature of the Constitution. The Constitutioncan provide only the organs of State such as the Legislature, theExecutive and the Judiciary. The factors on which the working ofthose organs of the State depend are the people and the politicalparties they will set up as their instruments to carry out their wishesand their politics. Who can say how the people of India and theirparties will behave? Will they uphold constitutional methods ofachieving their purposes or will they prefer revolutionary methodsof achieving them? If they adopt the revolutionary methods,however good the Constitution may be, it requires no prophet tosay that it will fail. It is, therefore, futile to pass any judgmentupon the Constitution without reference to the part which thepeople and their parties are likely to play.”

11. The learned Judge reproduced the words of Dr. RajendraPrasad, which ring till today, are:-

“Whatever the Constitution may or may not provide, the welfareof the country will depend upon the way in which the country isadministered. That will depend upon the men who administer it. Itis trite saying that country can have only the Government itdeserves. Our Constitution has provisions in it which appear tosome to be objectionable from one point or another. We mustadmit that the defects are inherent in the situation in the countryand the people at large. If the people who are elected are capableand men of character and integrity, they would be able to make

PUBLIC INTEREST FOUNDATION & ORS. v. UNION OFINDIA & ANR. [DIPAK MISRA, CJI]

the best even of defective Constitution. If they are lacking inthese, the Constitution cannot help the country. After all, aConstitution like machine is lifeless thing. It acquires lifebecause of the men who control it and operate it, and India needstoday nothing more than set of honest men who will have theinterest 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 thePrime Minister or the Chief Minister, as the case may be, as tothe manner in which they should exercise their power whileselecting the colleagues in the Council of Ministers. That is theconstitutional prerogative of those functionaries who are calledupon to preserve, protect and defend the Constitution. But it is theprophetic duty of this Court to remind the key duty holders abouttheir role in working the Constitution. Hence, I am of the firmview, that the Prime Minister and the Chief Minister of the State,who themselves have taken oath to bear true faith and allegianceto the Constitution of India and to discharge their duties faithfullyand conscientiously, will be well advised to consider avoiding anyperson in the Council of Ministers, against whom charges havebeen framed by criminal court in respect of offences involvingmoral turpitude and also offences specifically referred to in ChapterIII of the Representation of the People Act, 1951.”13. The thrust of the matter is whether any disqualification can beread as regards disqualification for membership into the constitutionalprovisions. Article 102(1) specifies certain grounds and further providesthat any disqualification can be added by or under any law made by theParliament. 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 theParliament 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 anydisqualification for being chosen as or for being member ofeither House of Parliament, the Central Government, and in

160SUPREME COURT REPORTS

Arelation to any disqualification for being chosen as or for beinga member of the Legislative Assembly or Legislative Councilof State, the State Government;

(b) “disqualified” means disqualified for being chosen as, and forbeing, member of either House of Parliament or of theBLegislative Assembly or Legislative Council of State. under”the provisions of this Chapter, and on no other ground.

[Emphasis is ours]

15. The word ‘disqualified’ clearly states that person bedisqualified from being member under the provisions of the said ChapterCand/or on no other ground. The words ‘no other ground’ are of immensesignificance. 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 areprovided by the Parliament and the Parliament has provided under Sections8, 8A, 9, 9A, 10 and 10A which read thus:

D“8. Disqualification on conviction for certain offences.—(1) person convicted of an offence punishable under—

(a) section 153A (offence of promoting enmity between differentgroups on ground of religion, race, place of birth, residence,language, etc., and doing acts prejudicial to maintenance ofharmony) 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 orsection 376B or section 376C or section 376D (offences relatingto rape) or section 498A (offence of cruelty towards woman byhusband or relative of husband) or sub-section (2) or sub-section

(3) of section 505 (offence of making statement creating orpromoting enmity, hatred or ill-will between classes or offencerelating to such statement in any place of worship or in anyassembly engaged in the performance of religious worship orreligious ceremonies) of the Indian Penal Code (45 of 1860); or

(b) the Protection of Civil Rights Act, 1955 (22 of 1955), whichprovides for punishment for the preaching and practice of“untouchability”, and for the enforcement of any disability arisingtherefrom; 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 member of an associationdeclared unlawful, offence relating to dealing with funds of anunlawful association or offence relating to contravention of anorder made in respect of 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 andDisruptive Activities (Prevention) Act, 1987 (28 of 1987); or

(h) section 7 (offence of contravention of the provisions of sections3 to 6) of the Religious Institutions (Prevention of Misuse) Act,1988 (41 of 1988); or

(i) section 125 (offence of promoting enmity between classes inconnect ion with the election) or section 135 (offence of removalof ballot papers from polling stations) or section 135A (offence ofbooth capturing) or clause (a) of sub - section (2) of section 136(offence of fraudulently defacing or fraudulently destroying anynomination paper) of this Act; or

(j) section 6 (offence of conversion of place or worship) of thePlaces of Worship (Special Provisions) Act 1991, or

(k) section 2 (offence of insulting the Indian National Flag or theConstitution of India) or section 3 (offence of preventing singingof National Anthem) of the Prevention of Insults to NationalHonour 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—

A(i) only fine, for period of six years from the date of suchconviction;

(ii) imprisonment, from the date of such conviction and shallcontinue to be disqualified for further period of six yearssince his release.

(2) person convicted for the contravention of—

(a) any law providing for the prevention of hoarding orprofiteering; or

(b) any law relating to the adulteration of food or drugs; or

(c) any provisions of the Dowry Prohibition Act, [1961 (28 of1961)

and sentenced to imprisonment for not less than six months, shallbe disqualified from the date of such conviction and shall continueto be disqualified for further period of six years since his release.

(3) person convicted of any offence and sentenced toimprisonment for not less than two years other than any offencereferred to in sub-section (1) or sub-section (2) shall be disqualifiedfrom the date of such conviction and shall continue to bedisqualified for further period of six years since his release.

(4) Notwithstanding anything in sub-section (1), sub-section (2)and sub-section (3) disqualification under either sub-section shallnot, in the case of person who on the date of the conviction is amember of Parliament or the Legislature of State, take effectuntil three months have elapsed from that date or, if within thatperiod an appeal or application for revision is brought in respectof the conviction or the sentence, until that appeal or application isdisposed 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 forceof law, providing for—

(i) the regulation of production or manufacture of any essentialcommodity;

(ii) the control of price at which any essential commodity maybe brought or sold;

(iii) the regulation of acquisition, possession, storage, transport,distribution, disposal, use or consumption of any essentialcommodity;

(iv) the prohibition of the withholding from sale of any essentialcommodity ordinarily kept for sale;

(b) “drug” has the meaning assigned to it in the Drugs and CosmeticsAct, 1940 (23 of 1940);

(c) “essential commodity” has the meaning assigned to it in theEssential Commodities Act, 1955 (10 of 1955);

(d) “food” has the meaning assigned to it in the Prevention ofFood Adulteration Act, 1954 (37 of 1954).

8A. Disqualification on ground of corrupt practices.—(1) The case of every person found guilty of corrupt practice byan order under section 99 shall be submitted, as soon as may bewithin period of three months from the date such order takeseffect, by such authority as the Central Government may specifyin this behalf, to the President for determination of the question asto whether such person shall be disqualified and if so, for whatperiod:

Provided that the period for which any person may bedisqualified under this sub-section shall in no case exceed six yearsfrom the date on which the order made in relation to him undersection 99 takes effect.

(2) Any person who stands disqualified under section 8A of thisAct as it stood immediately before the commencement of theElection Laws (Amendment) Act, 1975 (40 of 1975), may, if theperiod of such disqualification has not expired, submit petition tothe President for the removal of such disqualification for theunexpired 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), thePresident shall obtain the opinion of the Election Commission onsuch question or petition and shall act according to such opinion.

9. Disqualification for dismissal for corruption ordisloyalty.—(1) person who having held an office under theGovernment of India or under the Government of any State hasbeen dismissed for corruption or for disloyalty to the State shallbe disqualified for period of five years from the date of suchdismissal.

(2) For the purposes of sub-section (1), certificate issued by theElection Commission to the effect that person having held officeunder the Government of India or under the Government of aState, has or has not been dismissed for corruption or for disloyaltyto the State shall be conclusive proof of that fact:

Provided that no certificate to the effect that person hasbeen dismissed for corruption or for disloyalty to the State shallbe issued unless an opportunity of being heard has been given tothe said person.

9A. Disqualification for Government contracts, etc.—A person shall be disqualified if, and for so long as, there subsistsa contract entered into by him in the course of his trade or businesswith the appropriate Government for the supply of goods to, orfor the execution of any works undertaken by, that Government.

Explanation.—For the purposes of this section, where contracthas been fully performed by the person by whom it has beenentered into with the appropriate Government, the contract shallbe deemed not to subsist by reason only of the fact that theGovernment has not performed its part of the contract either whollyor in part.

10. Disqualification for office under Government company.—A person shall be disqualified if, and for so long as, he is managingagent, manager or secretary of any company or corporation (otherthan co-operative society) in the capital of which the appropriateGovernment has not less than twenty-five per cent share.

10A. Disqualification for failure to lodge account of electionexpenses.—If the Election Commission is satisfied that aperson—

(a) has failed to lodge an account of election expenses, withinthe 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 OfficialGazette, declare him to be disqualified and any such person shallbe disqualified for period of three years from the date of theorder.”

16. From the aforesaid, it is decipherable that Section 8 deals withdisqualification on conviction for certain offences. Section 8A providesfor disqualification on ground of corrupt practices. Section 9 providesfor the disqualification for dismissal for corruption or disloyalty. Section9A deals with the situation where there is subsisting contract betweenthe person and the appropriate Government. Section 10 lays downdisqualification for office under Government company and Section 10Adeals with disqualification for failure to lodge account of election expenses.Apart from these disqualifications, there are no other disqualificationsand, as is noticeable, there can be no other ground. Thus, disqualificationsare provided on certain and specific grounds by the legislature. In sucha state, the legislature is absolutely specific.

17. The submission of the learned counsel appearing for thepetitioners is that the law breakers should not become law makers andthere cannot be paradise for people with criminal antecedents in theParliament or the State Legislatures. Reference has been made to therecommendations of the Law Commission which has seriouslycommented on the prevalent political atmosphere being dominated bypeople with criminal records.

18. It has also been highlighted by the petitioners that criminalizationin politics is on the rise and the same is documented fact and recordedby various committee reports. The petitioners also highlight that thedoctrine of fiduciary relationship has been extended to severalconstitutional posts and that if members of Public Service Commission,Chief Vigilance Commissioner and the Chief Secretary can undergo thetest of integrity check and if “framing of charge” has been recognizedas disqualification for such posts, then there is no reason to not extendthe said test of “framing of charge” to the posts of Members of Parliamentand State Legislatures as well. To further accentuate this stand, thepetitioners point out that such persons hold the posts in constitutionaltrust and can be made subject to rigours and fetters as the right to contestelections is not fundamental right but statutory right or right whichmust confirm to the constitutional ethos and principles.

A19. The petitioners are attuned to the principle of “presumption ofinnocence” under our criminal law. But they are of the opinion that thesaid principle is confined to criminal law and that any proceeding prior toconviction, such as framing of charge for instance, can become the basisto entail civil liability of penalty. The petitioners, therefore, take the standthat debarring person facing charges of serious nature from contestingBan election does not lead to creation of an offence and it is merely arestriction which is distinctively civil in nature.

20. The intervenor organization has also made submissions on asimilar note as that of the petitioners to the effect that persons chargedfor an offence punishable with imprisonment for five years or more areCliable to be declared as disqualified for being elected or for being aMember of the Parliament as person chargesheeted in crime involvingmoral turpitude is undesirable for job under the government and it israther incongruous that such person can become law maker whothen control civil servants and other government machinery and, thus,Dtreating legislators on different footing amounts to violation of Article14 of the Constitution.21. Mr. Venugopal, learned Attorney General for India, refutingthe aforesaid submission, would urge that the Parliament may make lawon the basis of the recommendations of the Law Commission but thisECourt, as settled principle of law, should not issue mandamus to theParliament to pass legislation and can only recommend. That apart,submits Mr. Venugopal, that when there are specific constitutionalprovisions and the statutory law, the Court should leave it to the Parliament.

22. It is well settled in law that the Court cannot legislate. EmphasisFis laid on the issuance of guidelines and directions for rigorousimplementation. With immense anxiety, it is canvassed that when perilouscondition emerges, the treatment has to be aggressive. The petitionershave suggested another path. But, as far as adding disqualification isconcerned, the constitutional provision states the disqualification, confersthe power on the legislature, which has, in turn, legislated in the imperative.G

23. Thus, the prescription as regards disqualification is completeis in view of the language employed in Section 7(b) read with Sections 8to 10A of the Act. It is clear as noon day and there is no ambiguity. Thelegislature has very clearly enumerated the grounds for disqualification

and the language of the said provision leaves no room for any new groundto be added or introduced.

Criminalization of politics

24. Though we have analyzed the aforesaid aspect, yet we cannotclose the issue, for the learned counsel for the petitioners and some ofthe intervenors have argued with immense anguish that there is needfor rectification of the system failing which there will be progressivemalady in constitutional governance and gradually, the governance wouldbe controlled by criminals. The submission has been advanced withsanguine sincerity and genuine agony. There have been suggestions aswell as arguments with the purpose of saving the sanctity of democracyand to advance its enduring continuance. To appreciate the same, wewill focus on the criminalization of politics.

25. In the beginning of the era of constitutional democracy, seriousconcerns were expressed with regard to the people who are going to beelected. 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 whowill not sacrifice the interests of the country at large for the sakeof smaller groups and areas...We can only hope that the countrywill throw up such men in abundance.”[4]

26. An essential component of constitutional democracy is itsability to give and secure for its citizenry representative form ofgovernment, elected freely and fairly, and comprising of polity whosemembers are men and women of high integrity and morality. This couldbe said to be the hallmark of any free and fair democracy.

27. The Goswami Committee on Electoral Reforms (1990) hadaddressed the need to curb the growing criminal forces in politics inorder to protect the democratic foundation of our country. The Committeestated that:-

“The role of money and muscle powers at elections deflectingseriously the well accepted democratic values and ethos andcorrupting the process; rapid criminalisation of politics greatlyencouraging evils of booth capturing, rigging, violence etc.; misuse

4Dr Rajendra Prasad, President, Constituent Assembly of India, 26th November, 1949

168SUPREME COURT REPORTS

Aof official machinery, i.e. official media and ministerial; increasingmenace of participation of non-serious candidates; form the coreof our electoral problems. Urgent corrective measures are theneed of the hour lest the system itself should collapse.”

28. Criminalization of politics was never an unknown phenomenonBin the Indian political system, but its presence was seemingly felt in itsstrongest form during the 1993 Mumbai bomb blasts which was theresult of collaboration of diffused network of criminal gangs, policeand customs officials and their political patrons. The tremors of the saidattacks shook the entire Nation and as result of the outcry, Commissionwas constituted to study the problem of criminalization of politics andCthe nexus among criminals, politicians and bureaucrats in India. Thereport of the Committee, Vohra (Committee) Report, submitted by UnionHome Secretary, N.N. Vohra, in October 1993, referred to severalobservations made by official agencies, including the CBI, IB, R&AW,who unanimously expressed their opinion on the criminal network whichDwas virtually running parallel government. The Committee also tooknote of the criminal gangs who carried out their activities under theaegis of various political parties and government functionaries. TheCommittee further expressed great concern regarding the fact that overthe past few years, several criminals had been elected to local bodies,State Assemblies and the Parliament. The Report observed:-E

“In the bigger cities, the main source of income relates to realestate - forcibly occupying lands/buildings, procuring suchproperties at cheap rates by forcing out the existing occupants/tenants etc. Over time, the money power thus acquired is usedfor building up contacts with bureaucrats and politicians andFexpansion of activities with impunity. The money power is used todevelop network of muscle-power which is also used by thepoliticians during elections.”

And again:-

“The nexus between the criminal gangs, police, bureaucracy andpoliticians has come out clearly in various parts of the country.The existing criminal justice system, which was essentiallydesigned to deal with the individual offences /crimes, is unable todeal with the activities of the Mafia; the provisions of law in regardeconomic offences are weak”

PUBLIC INTEREST FOUNDATION & ORS. v. UNION OFINDIA & ANR. [DIPAK MISRA, CJI]

29. The Election Commission has also remained alive to the issueof criminalization of politics since 1998. While proposing reforms to tacklethe menace of criminalization of politics, the Former Chief ElectionCommissioner, Mr. T.S. Krishna Murthy, highlighted the said issue bywriting thus:-

“There have been several instances of persons charged withserious and heinous crimes like murder, rape, dacoity, etc.contesting election, pending their trial, and even getting elected ina large number of cases. This leads to very undesirable andembarrassing situation of lawbreakers becoming lawmakers andmoving around under police protection. The Commission hadproposed that the law should be amended to provide that anyperson for five years or more should be disqualified from contestingelection even when trial is pending, provided charges have beenframed against him by the competent court. Such step would goa long way in cleansing the political establishment from theinfluence of criminal elements and protecting the sanctity of theLegislative Houses”[5]30. In the case of Dinesh Trivedi, M.P. and others v. Union ofIndia and others[6]the court lamented the faults and imperfections whichhave impeded the country in reaching the expectations which heraldedits conception. While identifying one of the primary causes, the Courtreferred to the report of N.N. Vohra Committee that was submitted on5.10.1993. The Court noted that the growth and spread of crimesyndicates in Indian society has been pervasive and the criminal elementshave developed an extensive network of contacts at many sphere.The Court, further referring to the report, found that the Report revealsseveral alarming and deeply disturbing trends that are prevalent in ourpresent 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 aspectsof social life in India.

31. In Anukul Chandra Pradhan, Advocate Supreme Court v.Union of India and others[7], the Court, in the context of the provisionsmade in the election law, observed that they have been made to excludepersons with criminal background, of the kind specified therein, from the

5 https://eci.nicJn/eci_main/PROPOSED_ELECTORAL_REFORMS.pdf

6 (1997) 4 SCC 306

7 (1997) 6 SCC 1

Aelection scene as candidates and voters with the object to preventcriminalization of politics and maintain propriety in elections. Thereafter,the three-Judge Bench opined that any provision enacted with view topromote the said object must be welcomed and upheld as subserving theconstitutional purpose.

32. In K. Prabhakaran v. P. Jayarajan[8], in the context of enactingdisqualification under Section 8(3) of the Act, the Court observed thatpersons with criminal background pollute the process of election as theyhave no inhibition in indulging in criminality to gain success in an election.Further, the Court observed:-

C“Those who break the law should not make the law. Generallyspeaking the purpose sought to be achieved by enactingdisqualification on conviction for certain offences is to preventpersons with criminal background from entering into politics andthe house - powerful wing of governance. Persons with criminalbackground do pollute the process of election as they do not haveDmany holds barred (sic) and have no reservation from indulginginto criminality to win success at an election.”

33. The Court in Manoj Narula (supra), while observing thatcriminalization of politics is an anathema to the sacredness of democracy,stated thus:-E

“A democratic polity, as understood in its quintessential purity, isconceptually abhorrent to corruption and, especially corruption athigh places, and repulsive to the idea of criminalization of politicsas it corrodes the legitimacy of the collective ethos, frustrates thehopes and aspirations of the citizens and has the potentiality toFobstruct, if not derail, the rule of law. Democracy, which has beenbest defined as the Government of the People, by the People andfor the People, expects prevalence of genuine orderliness, positivepropriety, dedicated discipline and sanguine sanctity by constantaffirmance of constitutional morality which is the pillar stone ofgood governance.G

And again: -

“...systemic corruption and sponsored criminalization can corrodethe fundamental core of elective democracy and, consequently,

H8 AIR 2005 SC 688

the constitutional governance. The agonized concern expressedby this Court on being moved by the conscious citizens, as isperceptible from the authorities referred to hereinabove, clearlyshows that democratic republic polity hopes and aspires to begoverned by Government which is run by the electedrepresentatives who do not have any involvement in seriouscriminal offences or offences relating to corruption, casteism,societal problems, affecting the sovereignty of the nation and manyother offences.”

34. The 18[th] Report presented to the Rajya Sabha on 15[th] March,2007 by the Department-Related Parliamentary Standing Committee onPersonnel, Public Grievances, Law and Justice on Electoral Reforms(Disqualification of Persons from Contesting Elections on Framing ofCharges Against Them for Certain Offences) acknowledged theexistence of criminal elements in the Indian polity which hit the roots ofdemocracy. The Committee observed thus:-

“...the Committee is deeply conscious of the criminalization ofour polity and the fast erosion of confidence of the people at largein our political process of the day. This will certainly weaken ourdemocracy and will render the democratic institutions sterile. TheCommittee therefore feels that politics should be cleansed ofpersons with established criminal background. The objective is toprevent criminalisation of politics and maintain probity in elections.Criminalization of politics is the bane of society and negation ofdemocracy.”

35. The Chairman of the Law Commission, in the covering letterof the 244[th] 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 suggestingits recommendations to the Government on Electoral Reforms,an Order was passed by the Hon’ble Supreme Court dated16.12.2013 in Public Interest Foundation and Ors. Vs. Union ofIndia and Anr., vide D.O. No. 4604/2011/SC/PIL(W] dated 21[st]December, 2013.

2. In the aforesaid Order, the Hon’ble Supreme Court noted thatLaw Commission may take some time for submitting

Acomprehensive report on all aspects of electoral reforms. However,the Hon’ble Court further mentioned that “the issues with regardto de-criminalization of politics and disqualification for filing falseaffidavits deserve priority and immediate consideration” andaccordingly requested the Law Commission to “expediteconsideration for giving report by the end of February, 2014, onBthe two issues, namely:

1. Whether disqualification should be triggered upon convictionas it exists today or upon framing of charges by the court or uponthe presentation of the report by the Investigating Officer underSection 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 theRepresentation of the People Act, 1951 should be ground fordisqualification? And if yes, what mode of mechanism needs tobe provided for adjudication on the veracity of the affidavit? [IssueNo.3.5 of the Consultation Paper]”

36. Thereafter, the 244[th] Law Commission, while accentuatingthe need for electoral reforms, observed that representativegovernment, sourcing its legitimacy from the People, who were theultimate sovereign, was the kernel of the democratic system envisagedby the Constitution. Over the time, this has been held to be part of the‘basic structure’ of the Constitution, immune to amendment, with theSupreme Court of India declaring that it is beyond the pale of reasonablecontroversy that if there be any unamendable features of the Constitutionon the score that they form part of the basic structure of theConstitution, it is that India is Sovereign Democratic Republic.

37. The Commission laid stress on the model of representativegovernment based on popular sovereignty which gives rise to itscommitment to hold regular free and fair elections. The importance offree and fair elections stems from two factors— instrumentally, its centralrole in selecting persons who will govern the people, and intrinsically, asbeing legitimate expression of popular will. Emphasizing on theimportance of free and fair elections in democratic polity, referencewas made to the decision in Mohinder Singh Gill v. Chief ElectionCommissioner[9]wherein the Court had ruled:-

9 AIR 1978 SC 851H

“Democracy is government by the people. It is continualparticipative operation, not cataclysmic periodic exercise. Thelittle man, in his multitude, marking his vote at the poll does asocial audit of his Parliament plus political choice of this proxy.Although the full flower of participative Government rarelyblossoms, the minimum credential of popular government is appealto the people after every term for renewal of confidence. Sowe have adult franchise and general elections as constitutionalcompulsions… It needs little argument to hold that the heart ofthe Parliamentary system is free and fair elections periodicallyheld, based on adult franchise, although social and economicdemocracy may demand much more.”

38. The Commission addressed the issue pertaining to the extentof criminalization in politics and took note of the observations made byMr. C. Rajagopalachari who, as back as in 1922, had anticipated thepresent state of affairs twenty-five years before Independence, whenhe wrote in his prison diary:-

“Elections and their corruption, injustice and tyranny of wealth,and inefficiency of administration, will make hell of life as soonas freedom is given to us...”

39. The Commission also observed that the nature of nexuschanged in the 1970s and instead of politicians having suspected links tocriminal networks, as was the case earlier, it was persons with extensivecriminal backgrounds who began entering politics and this fact wasconfirmed in the Vohra Committee Report in 1993 and again in 2002 inthe report of the National Commission to Review the Working of theConstitution (NCRWC). The Commission referred to the judgment ofthis Court in Union of India v. Association for Democratic Reforms[10]which had made an analysis of the criminal records of candidates possibleby requiring such records to be disclosed by way of affidavit and this, asper the Commission, had given chance to the public to quantitativelyassess the validity of such observations made in the previous report.

40. As per the extent of criminalization that has pervaded IndianPolitics, the Commission observed that in the ten years since 2004, 18%of the candidates contesting either National or State elections havecriminal cases pending against them (11,063 out of 62,847). In 5,253 or

Aalmost half of these cases (8.4% of the total candidates analysed), thecharges are of serious criminal offences that include murder, attempt tomurder, rape, crimes against women, cases under the Prevention ofCorruption Act, 1988 or under the Maharashtra Control of OrganisedCrime Act, 1999 which, on conviction, would result in five years or moreof jail, etc. 152 candidates had 10 or more serious cases pending, 14Bcandidates had 40 or more such cases and 5 candidates had 50 or morecases against them. Further, the Commission observed that the 5,253candidates with serious cases together had 13,984 serious charges againstthem and of these charges, 31% were cases of murder and other murderrelated offences, 4% were cases of rape and offences against women,C7% related to kidnapping and abduction, 7% related to robbery and dacoity,14% related to forgery and counterfeiting including of government sealsand 5% related to breaking the law during elections. The Commissionwas of the further view that criminal backgrounds are not limited tocontesting candidates, but are found among winners as well, for, of the5,253 candidates with serious criminal charges against them, 1,187 wentDon to winning the elections they contested, i.e., 13.5% of the 8,882 winnersanalysed from 2004 to 2013 and overall, including both serious and non-serious charges, 2,497 (28.4% of the winners) had 9,993 pending criminalcases against them.

41. Elaborating further, the Commission took note of the fact thatEin the current Lok Sabha, 30% or 162 sitting MPs have criminal casespending against them, of which about half, i.e., 76 have serious criminalcases and further, the prevalence of MPs with criminal cases pendinghas increased over time as statistics reveal that in 2004, 24% of LokSabha MPs had criminal cases pending which increased to 30% in theF2009 elections and this situation is similar across States with 31% or1,258 out of 4,032 sitting MLAs with pending cases, with again abouthalf being serious cases. Not only this, the Commission also observedthat some States have much higher percentage of MLAs with criminalrecords: in Uttar Pradesh, 47% of MLAs have criminal cases pendingand number of these MPs and MLAs have been accused of multipleGcounts of criminal charges, for example, in constituency of UttarPradesh, the MLA has 36 criminal cases pending including 14 casesrelating to murder. As per the Commission, it is clear from this data thatabout one-third of the elected candidates at the Parliament and StateAssembly levels in India have some form of criminal taint and also thatH

the data elsewhere suggests that one-fifth of MLAs have pending caseswhich have proceeded to the stage of charges being framed againstthem by court at the time of their election. What the Commissionfound to be more disturbing was the fact that the percentage of winnerswith criminal cases pending is higher than the percentage of candidateswithout such backgrounds, as the data reveals that while only 12% ofcandidates with “clean” record win on an average, 23% of candidateswith some kind of criminal record win which implies that candidatescharged with crime actually fare better in elections than ‘clean’candidates. This, as per the Commission, has resulted in the tendencyfor candidates with criminal cases to be given tickets second time andnot only do political parties select candidates with criminal backgrounds,but there is also evidence to suggest that untainted representatives laterbecome involved in criminal activities and, thus, the incidence ofcriminalisation of politics is pervasive thereby making its remediation anurgent need.42. The pervasive contact, in many way, disturbed the politicalparties and this compelled the Law Commission to describe the role ofpolitical parties. It said:-

“Political parties are central institution of our democracy; “thelife blood of the entire constitutional scheme.” Political parties actas conduit through which interests and issues of the people getrepresented in Parliament. Since political parties play centralrole in the interface between private citizens and public life, theyhave also been chiefly responsible for the growing criminalisationof politics.”

43. Thereafter, reference was made to the observations of the170[th] report which was also quoted in Subhash Chandra Agarwal v.Indian National Congress and others[11] by the Central InformationCommission (“CIC”). The said observations are very pertinent todescribe the position of political parties in our democracy:-

“It is the Political Parties that form the Government, man theParliament and run the governance of the country. It is therefore,necessary to introduce internal democracy, financial transparencyand accountability in the working of the Political Parties. politicalparty which does not respect democratic principles in its internal

working cannot be expected to respect those principles in thegovernance of the country. It cannot be dictatorship internallyand democratic in its functioning outside.

xxx

Though the RPA disqualifies sitting legislator or candidate oncertain grounds, there is nothing regulating the appointments tooffices within the organisation of the party. Political parties play acentral role in Indian democracy. Therefore, politician may bedisqualified from being legislator, but may continue to hold highpositions within his party, thus also continuing to play an importantpublic role which he has been deemed unfit for by the law.Convicted politicians may continue to influence law -making bycontrolling the party and fielding proxy candidates in legislature.In democracy essentially based on parties being controlled by ahigh-command, the process of breaking crime-politics nexusextends much beyond purity of legislators and encompasses purityof political parties as well.

….It is suggested that political parties should refrain fromappointing or allowing person to continue holding any officewithin the party organisation if the person has been deemed tolack the qualities necessary to be public official. Therefore, thelegal disqualifications that prevent person from holding officeoutside party should operate within the party as well.”

44. Commenting on the existing legal framework, it opined thatlegally, the prevention of entry of criminals into politics is accomplishedby prescribing certain disqualifications that will prevent person fromcontesting elections or occupying seat in the Parliament or an Assemblyand presently, the qualifications of Members of Parliament are listed inArticle 84 of the Constitution, while the disqualifications can be foundunder Article 102. The corresponding provisions for Members of theState Legislative Assemblies are found in Articles 173 and 191.

G45. The Law Commission noted the decisions in Association forDemocratic Reforms (supra), Lily Thomas (supra) and People’s Unionfor Civil Liberties v. Union of India[12]and, after referring to the previousReports recommending reforms, recommended:-12 (2003) 4 SCC 399

“To tackle the menace of wilful concealment of information orfurnishing of false information and to protect the right to informationof the electors, the Commission recommended that the punishmentunder Section 125A of RPA must be made more stringent byproviding for imprisonment of minimum term of two years andby doing away with the alternative clause for fine. Additionally,conviction under Section 125A RPA should be made part ofSection 8(1)(i) of the Representation of People Act, 1950.”

46. Further, the Commission took note of the observations madeby the Justice J.S. Verma Committee Report on Amendments to CriminalLaw (2013) which proposed insertion of Schedule I to the Representationof the People Act, 1951 enumerating offences under IPC befitting thecategory of ‘heinous’ offences and it was also recommended in the saidreport 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, wouldprovide that person in respect of whose acts or omissions court ofcompetent jurisdiction has taken cognizance under Section 190(1)(a),(b)or (c) of the Cr.PC. or who has been convicted by court of competentjurisdiction with respect to the offences specified in the proposedexpanded list of offences under Section 8(1) shall be disqualified fromthe date of taking cognizance or conviction, as the case may be. TheCommission also referred to the proposal made in the said Report whichwas to the effect that disqualification in case of conviction shall continuefor further period of six years from the date of release upon convictionand in case of acquittal, the disqualification shall operate from the dateof taking cognizance till the date of acquittal.

47. The rationale given by the Commission for introducing adisqualification at the stage of framing of charges was to the followingeffect:-

“At the outset, the question that needs to be considered is whetherdisqualification should continue to be triggered only at the stageof conviction as is currently the case under Section 8 of the RPA.As detailed below, the current law suffers from three mainproblems: the rate of convictions among sitting MPs and MLAs isextremely 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 hasresulted in massive increase in the presence of criminal elementsin politics, which affects our democracy in very evident ways.”

48. Thereafter, the Commission went on to observe in its ReformProposal as to why the stage of framing of charge sheet would not be anBappropriate stage for disqualification. The Commission observed thus:-

“When filing charge-sheet, the Police is simply forwarding thematerial collected during investigation to competent Court oflaw for the Court to consider what provisions the accused shouldbe charged under. At this stage, there is not even remote orCprima facie determination of guilt of the accused by Court oflaw. At the stage of filing or forwarding the charge-sheet to theCourt, the material which is made part of the charge-sheet hasnot even tested by competent Court of law and the Judge hasclearly not applied his mind to the said material. Courts haverepeatedly held that charge-sheet does not constitute aDsubstantive piece of evidence as it not yet tested on the anvil ofcross-examination.No rights of hearing are granted to the accusedat this stage. At the stage of filing of charge-sheet, beforesummons are issued, the accused does not even have copy ofthe charge-sheet or any connected material.

Disqualifying person therefore, simply on the basis of somethingwhich he has had no opportunity to look into, or no knowledge of,would be against the principles of natural justice.

Disqualifying person at this stage would mean that person ispenalized without proceedings being initiated against him. ThisFwould be tantamount to granting the judicial determination of thequestion of disqualification to the police, who are prosecutingauthority. At the National Consultation it was agreed by consensusthat this was an inappropriate stage for disqualification ofcandidates for elected office.”

G49. The Commission then felt that it was worthwhile to discusswhy the stage of taking of cognizance would be an inappropriate stagefor disqualification and in this regard, the Commission observed that thetaking of cognizance simply means taking judicial notice of an offencewith view to initiate proceedings in respect of such offence alleged to

have been committed by someone and that it is an entirely differentmatter from initiation of proceedings against someone; rather, it is aprecondition to the initiation of proceedings. The Commission took theview that while taking cognizance, the Court has to consider only thematerial put forward in the charge-sheet and it is not open for the Courtat this stage to sift or appreciate the evidence and come to conclusionthat 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 topresent any evidence or make any submissions and even though theaccused may provide exculpatory evidence to the police, the latter isunder no obligation to include such evidence as part of the charge-sheet.The Commission went on to conclude that the stages of filing of chargesheet or taking cognizance would be inappropriate and observed thus:-

“Due to the absence of an opportunity to the accused to be heardat the stage of filing of charge-sheet or taking of cognizance, anddue to the lack of application of judicial mind at this stage, it is notan appropriate stage to introduce electoral disqualifications. Further,in case supposed to be tried by the Sessions Court, it is still theMagistrate who takes cognizance. Introduction of disqualificationsat this stage would mean that Magistrate who has been deemednot competent to try the case still determines whether personshould be disqualified due to the charges filed.

Because of these reasons, it is our view that the filing of thepolice report under Section 173 CrPC or taking of cognizance isnot an appropriate stage to introduce electoral disqualifications...”

50. Thereafter, the Commission proceeded to examine why theframing of charges is an appropriate stage for disqualification. It wenton to make the following observations on this aspect:-

“The Supreme Court, in Debendra Nath Padhi, overruling SatishMehra, held that the accused cannot lead any evidence at chargingstage. Thus, the decision of the judge has to be based solely onthe record of the case, i.e. the investigation report and documentssubmitted by the prosecution. Though the determination of framingof charges is based on the record of the case, the Supreme Courtjurisprudence on Section 227 also imposes certain burdens to bedischarged by the prosecution:

180SUPREME COURT REPORTS

A“If the evidence which the Prosecutor proposes to adduce to provethe guilt of the accused even if fully accepted before it is challengedin cross-examination or rebutted by the defence evidence; if any,cannot show that the accused committed the offence then therewill be no sufficient ground for proceeding with the trial.”

B51. The Commission was of the view that additionally, the burdenon the prosecution at the stage of framing of charges also involves provinga prima facie case and as per the decision in State of Maharashtra v.Som Nath Thapa[13] , prima facie case is said to be in existence “ifthere is ground for presuming that the accused has committed theoffence.” Further, the Commission observed that in order to establish aCprime facie case, the evidence on record should raise not merely somesuspicion with regard to the possibility of conviction, but “grave”suspicion and to corroborate its view, the Commission referred to theobservations in Union of India v. Prafulla Kumar Samal[14]which wereto the following effect:-

D“If two views are possible and the Judge is satisfied that theevidence produced before him while giving rise to some suspicionbut not grave suspicion against the accused, he will be fully withinhis right to discharge the accused.”

52. After so analysing, the Commission concluded that since theEstage of framing of charges is based on substantial level of judicialscrutiny, totally frivolous charge will not stand such scrutiny andtherefore, given the concern of criminalisation of politics in India,disqualification at the stage of framing of charges is justified havingsubstantial attendant legal safeguards to prevent misuse. The CommissionFbuttressed the said view on the following grounds:-

“As explained above, the Supreme Court has made it clear thatthe framing of charges under Section 228 of the CrPC requiresan application of judicial mind to determine whether there aresufficient grounds for proceeding against the accused. Further,Gthe burden of proof at this stage is on the prosecution who mustestablish prima facie case where the evidence on record raises‘grave suspicion’. Together, these tests offer protection againstfalse charges being imposed.

13 (1996) 4 SCC 659H14(1979) 3 SCC 4

In addition to the safeguards built in at the stage of framing ofcharges, an additional option is available in the shape of Section311 of the Code of Criminal Procedure. Section 311 grants powerto the Court to summon or examine any person at any stage ofthe trial if his evidence appears essential to the just decision of thecase. Although this section is not very widely used, and theSupreme Court has cautioned against the arbitrary exercise ofthis power, it grants wide discretion to the court which may evenbe exercised suomotu. This section may be used by the Court toexamine additional evidence before framing charges where theconsequence of such framing may disqualify the candidate.

The framing of charges is therefore not an automatic step in thetrial process, but one that requires preliminary level of judicialscrutiny. The provisions in the CrPC require adequate considerationof the merits of criminal charge before charges are framed bythe Court. The level of scrutiny required before charges are framedis sufficient to prevent misuse of any provision resulting indisqualification from contesting elections.

Moreover enlarging the scope of disqualifications to include thestage of framing of charges in certain offences does not infringeupon any Fundamental or Constitutional right of the candidate.RPA creates and regulates the right to contest and be elected asa Member of Parliament or State Legislature. From the earlyyears of our democracy, it has been repeatedly stressed by theSupreme Court that the right to be elected is neither fundamentalnor common law right. It is special right created by the statuteand can only be exercised on the conditions laid down by thestatute. Therefore, it is not subject to the Fundamental Rightschapter of the constitution.”

53. While addressing the three concerns, namely, misuse, lack ofremedy for the accused and the sanctity of criminal jurisprudence, theCommission stated that none of these concerns possess sufficientargumentative weight to displace the arguments in the previous sectionas although misuse is certainly possibility, yet the same does not rendera proposal to reform the law flawed in limine. Further, the SupremeCourt has repeatedly pointed out in the context of statutory power vested

Ain an authority that the possibility of misuse of power is not reason tonot confer the power or to strike down such provision. It observed:-

“Similarly potential fear of misuse cannot provide justificationfor not reforming the law per se. It does point to the requirementof instituting certain safeguards, circumscribing the conditionsunder which such disqualification will operate…Though there is aview that the accused has limited rights at the stage of framing ofcharge, the legal options available to him are fairly substantial. Asthe previous section shows, the stage of framing of chargesinvolves considerable application of judicial mind, gives the accusedan opportunity to be heard, places the burden of proof on theprosecution to demonstrate prima facie case and will lead todischarge unless the grounds pleaded are sufficient for the matterto proceed to trial. Thus it is not as if the accused has no remedytill charges are framed—on the contrary, he has several legaloptions available to him prior to this stage.

Finally, though criminal jurisprudence presumes man innocenttill proven otherwise, disqualifying person from contestingelections at the stage of framing of charges does not fall foul ofthis proposition. Such provision has no bearing on whether indeedthe person concerned is guilty of the alleged offence or not. Onthe contrary, it represents distinct legal determination of thetypes of persons who are suitable for holding representative publicoffice in India. Given the proliferation of criminal elements inParliament and State Assemblies, it is indicative of public resolveto correct this situation. Further, the existing provisions whichdisqualify persons on conviction alone have been unable to achievethis task. Thus it is now strongly felt that it is essential to disqualifythose persons who have had criminal charges framed against themby court of competent jurisdiction, subject to certain safeguards,from contesting in elections. Such determination of suitabilityfor representative office has no bearing on his guilt or innocencewhich can, and will, only be judged at the criminal trial. To conflatethe two and thereby argue that the suggested reform isjurisprudentially flawed would be to make category mistake.”

54. However, the Commission proposed certain safeguards in theform of limiting the disqualification to operate only in certain cases,

defining cut-off period and period of applicability. The reasons for ensuringsuch safeguards as laid out in the report as are follows:

“….Limiting the offences to which this disqualification applieshas two clear reasons, i.e. those offences which are of such naturethat those charged with them are deemed unsuitable to be people’srepresentatives in Parliament or State Legislatures are includedand the list is circumscribed optimally to prevent misuse to themaximum extent possible……

…All offences which have maximum punishment of five yearsor more ought to be included within the remit of this provision.Three justifications support this proposal: first, all offences widelyrecognised as serious are covered by this provision. This includesprovisions for murder, rape, kidnapping, dacoity, corruption underthe Prevention of Corruption Act and other crimes of naturethat justify those charged with them being disqualified from holdingpublic office. Second, the data extracted above demonstrates thata large portion of offences for which MPs, MLAs and contestingcandidates face criminal prosecutions relate to such provisions.Thus the reformed provision will ensure that such candidates aredisqualified thereby creating significant systemic impact. Third,it has the benefit of simplicity—by prescribing standard five-year period, the provision is uniform and not contingent on specificoffences which may run the risk of arbitrariness. The uniformfive-year period thus makes reasonable classification— betweenserious and non-serious offences and has rational nexus with itsobject—preventing the entry of significantly criminal elements intoParliament and State Legislature.”

55. With regard to laying down the safeguard of defining cut-offperiod, the Commission observed thus:-

“An apprehension was raised that introducing such adisqualification will lead to spate of false cases in which chargesmight be framed immediately prior to an election with the soleintention of disqualifying candidate. This is sought to be offsetby cut-off period before the date of scrutiny of nomination foran election, charges filed during which period, will not attractdisqualification. The basis for this distinction is clear— to preventfalse cases being filed against political candidates.

xxx

A….The cut-off period should be one year from the date of scrutinyof the nomination, i.e. charges filed during the one year periodwill not lead to disqualification. We feel that one year is anappropriate time-frame. It is long enough so that false chargeswhich may be filed specifically to disqualify candidates will notlead to such disqualification; at the same time it is not excessivelyBlong which would have made such disqualification redundant. Itthus allows every contesting candidate at minimum one yearperiod to get discharged. It thus strikes an appropriate balancebetween enlarging the scope of disqualification while at the sametime seeks to disincentivise the filing of false cases solely with theCview to engineer disqualification.”

56. Another safeguard in the form of period of applicability wasalso proposed by the Commission which prescribes time period orduration for which the said disqualification applies. It provides as follows:-

“For convictions under Section 8(1) person is disqualified for sixyears from conviction in case he is punished only with fine orfor the duration of the imprisonment in addition to six years startingfrom his date of release. For convictions under Section 8(2) and8(3) he is disqualified simply for the duration of his imprisonmentand six years starting from the date of release. Given thatdisqualifications on conviction have time period specified, it wouldbe anomalous if disqualification on the framing of charges omittedto do so and applied indefinitely. It is thus essential that timeperiod be specified….”

57. The rationale provided for fixing the time period as above wasFgiven in the following terms:-

“…170[th] Law Commission under the Chairmanship of Justice BP Jeevan Reddy. In this report the specified period of disqualificationwas suggested to be five years from the date of framing of charge,or acquittal, whichever is earlier.

...We find great merit in this proposal. However it must be notedthat the report did not recommend cut-off period before theelection, charge framed during which would not lead todisqualification. Thus the rationale behind the five-year period wasthat the charged person would at least be disqualified fromcontesting in one election.

This however will not be the case if one-year cut off period iscreated. This is because if person has charged framed againsthim six months before an election, then he will not disqualifiedfrom this election because it is within the protected window. Atthe same time, assuming that the next election is five years later(which is standard assumption) then he will not be disqualifiedfrom the second election as well because five years from thedate of framing of charge will have lapsed by then. To take intoaccount the effect of this cut-off period, it is thus recommendedthat the period of disqualification is increased to six years fromthe date of framing of charge or acquittal whichever is earlier.

The rationale for this recommendation is clear: if person isacquitted, needless to say the disqualification is lifted from thatdate. If he is not, and the trial is continuing, then the six-yearperiod is appropriate for two reasons— first, it is long enough toensure that the enlarged scope of disqualification has enoughdeterrent effect. six-year period would at least ensure that aperson will be disqualified from one election cycle thereby servingas real safeguard against criminals entering politics. At the sametime it is the same as the period prescribed when person isdisqualified on conviction for certain offences, which such provisionis comparable to. It thus has the added merit of uniformity. Forthese reasons, it is recommended that in the event of chargebeing framed in respect of the enumerated offences against aperson, he will be disqualified from contesting in elections for aperiod of six years from the date of framing of charge or tillacquittal whichever is earlier, provided that the charge has notbeen framed within the protected window before an election.”

58. The eventual recommendations and proposed Sections by theLaw Commission read as follows:-

“1. x x xxx

2. The filing of the police report under Section 173 Cr.PC is notan appropriate stage to introduce electoral disqualifications owingto the lack of sufficient application of judicial mind at this stage.

3. The stage of framing of charges is based on adequate levels ofjudicial scrutiny, and disqualification at the stage of charging, ifaccompanied by substantial attendant legal safeguards to prevent

Amisuse, has significant potential in curbing the spread ofcriminalisation of politics.

4. The following safeguards must be incorporated into thedisqualification for framing of charges owing to potential for misuse,concern of lack of remedy for the accused and the sanctity ofcriminal jurisprudence:

i. Only offences which have maximum punishment of fiveyears or above ought to be included within the remit of thisprovision.

ii. Charges filed up to one year before the date of scrutiny ofnominations for an election will not lead to disqualification.

iii. The disqualification will operate till an acquittal by the trialcourt, or for period of six years, whichever is earlier.

iv. For charges framed against sitting MPs/ MLAs, the trialsmust be expedited so that they are conducted on day-to-daybasis and concluded within 1-year period. If trial not concludedwithin one year period then one of the following consequencesought to ensue:

- The MP/ MLA may be disqualified at the expiry of the one-year period; OR

- The MP/ MLA’s right to vote in the House as member,remuneration and other perquisites attaching to their office shallbe suspended at the expiry of the one-year period.

5. Disqualification in the above manner must apply retroactivelyFas well. Persons with charges pending (punishable by 5 years ormore) on the date of the law coming into effect must be disqualifiedfrom contesting future elections, unless such charges are framedless than one year before the date of scrutiny of nomination papersfor elections or the person is sitting MP/MLA at the time ofenactment of the Act. Such disqualification must take placeGirrespective of when the charge was framed.

1. There is large-scale violation of the laws on candidate affidavitsowing to lack of sufficient legal consequences. As result, thefollowing changes should be made to the RPA:

i. Introduce enhanced sentence of minimum of two yearsunder Section 125A of the RPA Act on offence of filing falseaffidavits

ii. Include conviction under Section 125A as ground ofdisqualification under Section 8(1) of the RPA.

iii. Include the offence of filing false affidavit as corruptpractice under S. 123 of the RPA.

2. Since conviction under Section 125A is necessary fordisqualification under Section 8 to be triggered, the Supreme Courtmay be pleased to order that in all trials under Section 125A, therelevant court conducts the trial on day-to-day basis

3. gap of one week should be introduced between the last datefor filing nomination papers and the date of scrutiny, to giveadequate time for the filing of objections to nomination papers.”

59. The aforesaid recommendations for proposed amendmentnever saw the light of the day in the form of law enacted by competentlegislature but it vividly exhibits the concern of the society about theprogressing trend of criminalization in politics that has the proclivity andthe propensity to send shivers down the spine of constitutionaldemocracy.

60. Having stated about the relevant —-aspects of the LawCommission Report and the indifference shown to it, the learned counselfor the petitioners and intervenors have submitted that certain directionscan be issued to the Election Commission so that the purity of democracyis strengthened. It is urged by them that when the Election Commissionhas been conferred the power to supervise elections, it can control partydiscipline of political party by not encouraging candidates with criminalantecedents.

Role of Election Commission

61. Article 324 of the Constitution lays down the power of theElection Commission with respect to superintendence, direction andcontrol of elections and reads thus:-

“324. Superintendence, direction and control of electionsto be vested in an Election Commission:—(1) Thesuperintendence, direction and control of the preparation of the

electoral rolls for, and the conduct of, all elections to Parliamentand to the Legislature of every State and of elections to the officesof President and Vice President held under this Constitution shallbe vested in Commission (referred to in this Constitution as theElection Commission).

(2) The Election Commission shall consist of the Chief ElectionCommissioner and such number of other Election Commissioners,

if any, as the President may from time to time fix and theappointment of the Chief Election Commissioner and other ElectionCommissioners shall, subject to the provisions of any law made inthat behalf by Parliament, be made by the President.

(3) When any other Election Commissioner is so appointed theChief Election Commissioner shall act as the Chairman of theElection Commission.

(4) Before each general election to the House of the People andto the Legislative Assembly of each State, and before the firstgeneral election and thereafter before each biennial election tothe Legislative Council of each State having such Council, thePresident may also appoint after consultation with the ElectionCommission such Regional Commissioners as he may considernecessary to assist the Election Commission in the performanceof the functions conferred on the Commission by clause (1).

(5) Subject to the provisions of any law made by Parliament, theconditions of service and tenure of office of the ElectionCommissioners and the Regional Commissioners shall be such asthe President may by rule determine; Provided that the ChiefElection Commissioner shall not be removed from his office exceptin like manner and on the like grounds as Judge of the SupremeCourt and the conditions of service of the Chief ElectionCommissioner shall not be varied to his disadvantage after hisappointment:

Provided further that any other Election Commissioner or aRegional Commissioner shall not be removed from office excepton the recommendation of the Chief Election Commissioner.

(6) The President, or the Governor of State, shall, when sorequested by the Election Commission, make available to the

Election Commission or to Regional Commissioner such staffas may be necessary for the discharge of the functions conferredon the Election Commission by Clause (1).”

62. This Court in catena of judgments has elucidated upon therole of the Election Commission and the extent to which it can exerciseits power under the constitutional framework.

63. In Election Commission of India and another. v. Dr.Subramaniam Swamy and another[15], this Court ruled that theopinion of the Election Commission is sine qua non for the Governoror the President, as the case may be, to give decision on the questionwhether or not the concerned member of the House of the Legislatureof the State or either House of Parliament has incurred disqualification.The Court observed:-

“Then we turn to Clause (2) of Article 192 which reads as under:

192(2) - Before giving any decision on any such question, theGovernor shall obtain the opinion of the Election Commissionand shall act according to such opinion.

It is clear from the use of the words ‘shall obtain’ the opinion ofthe Election Commission, that it is obligatory to obtain the opinionof the Election Commission and the further stipulation that theGovernor “shall act” according to such opinion leaves no roomfor doubt that the Governor is bound to act according to that opinion.The position in law is well settled by this Court’s decision inBrundaban v. Election Commission, [1965] 3 SCR 53 whereinthis Court held that it is the obligation of the Governor to take adecision in accordance with the opinion of the ElectionCommission. It is thus clear on conjoint reading of the two clausesof Article 192 that once question of the type mentioned in thefirst clause is referred to the Governor, meaning thereby is raisedbefore the Governor, the Governor and the Governor alone mustdecide it but this decision must be taken after obtaining the opinionof the Election Commission and the decision which is made finalis that decision which the Governor has taken in accordance withthe opinion of the Election Commission. In effect and substancethe decision of the Governor must depend on the opinion of theElection Commission and none else, not even the Council of

Ministers. Thus the opinion of the Election Commission is decisivesince the final order would be based solely on that opinion.

8. The same view came to be expressed in the case of ElectionCommission of India v. N.G. Ranga, [1979] 1 SCR 210, whileinterpreting Article 103(2) of the Constitution, the language thereofis verbatim except that instead of the Governor in Article 192(2),here the decision has to be made by the President. So also thelanguage of Articles 192(1) and 103(1) is identical except for thesame change. The Constitution Bench of this Court reiteratedthat the President was bound to seek and obtain the opinion of theElection Commission and only thereafter decide the issue inaccordance therewith. It other words, it is the ElectionCommission’s opinion which is decisive.”

64. In Mohinder Singh Gill (supra), Krishna Iyer J. opined:-

“12. The scheme is this. The President of India (Under Section14) ignites the general elections across the nation by calling uponthe People, divided into several constituencies and registered inthe electoral rolls, to choose their representatives to the Lok Sabha.The constitutionally appointed authority, the Election Commission,takes over the whole conduct and supervision of the mammothenterprise involving plethora of details and variety of activities,and starts off with the notification of the time table for the severalstages of the election (Section 30).’ The assembly line operationsthen begin. An administrative machinery and technology to executethese enormous and diverse jobs is fabricated by the Act, creatingofficers, powers and duties, delegation of functions and locationof polling stations. The precise exercise following upon thecalendar for the poll, commencing from presentation of nominationpapers, polling drill and telling of votes, culminating in the declarationand report of results are covered by specific prescriptions in theAct and the rules. The secrecy of the ballot, the authenticity ofthe voting paper and its’ later identifiability with reference toparticular polling stations, have been thoughtfully provided for.Myriad other matters necessary for smooth elections have beentaken care of by several provisions of the Act.”

65. Further, the Court observed in Mohinder Singh Gill (supra)that re-poll for whole constituency under compulsion of circumstances

PUBLIC INTEREST FOUNDATION & ORS. v. UNION OFINDIA & ANR. [DIPAK MISRA, CJI]

may be directed for the conduct of elections and can be saved by Article324 provided it is bona fide and necessary for the vindication of the freeverdict of the electorate and the abandonment of the previous poll wasbecause it failed to achieve that goal. The Court ruled that even Article324 does not exalt the Commission into law unto itself. Broad authoritydoes not bar scrutiny into specific validity of particular order. Havingsaid that, the Court passed the following directions:-

“2(a) The Constitution contemplates free and fair election andvests comprehensive responsibilities of superintendence, directionand control of the conduct of elections in the Election Commission.This, responsibility may cover powers, duties and functions ofmany sorts, administrative or other, depending on thecircumstances.

(b) Two limitations at least are laid on its plenary character in theexercise thereof. Firstly, when Parliament or any State Legislaturehas made valid law relating to or in connection with elections, theCommission shall act in conformity with, not in violation of suchprovisions but where such law is silent Article 324 is reservoirof power to act for the avowed purpose of, not divorced frompushing forward free and fair election with expedition- Secondly,the Commission shall be responsible to the rule of law, act bonafide and be amenable to the norms of natural justice in so far asconformance to such canons can reasonably and realistically berequired of it as fairplay-in-action in most important area of theconstitutional order, viz., elections. Fairness does import anobligation to see that no wrong-doer candidate benefits by hisown wrong. To put the matter beyond doubt natural justice enlivensand applies to the specific case of order for total repoll althoughnot in full panoply but inflexible practicability. Whether it has beencomplied with is left open for the Tribunal adjudication.”

66. In the concurring judgment in Mohinder Gill (supra), Goswami,J., with regard to Article 324, observed thus in para 113:-

“...Since the conduct of all elections to the various legislative bodiesand to the offices of the President and the Vice-President is vestedunder Article 324(1) in the Election Commission, the framers ofthe Constitution took care to leaving scope for exercise of residuarypower by the Commission, in its own right, as creature of the

Constitution, in the infinite variety of situations that may emergefrom time to time in such large democracy as ours. Everycontingency could not be foreseen, or anticipated with precision.That is why there is no hedging in Article 324. The Commissionmay be required to cope with some situation which may not beprovided for in the enacted laws and the rules...”

67. In A.C. Jose v. Sivan Pillai and others[16], this Court held

that:-

“It is true that Article 324 does authorise the Commission to exercisepowers of superintendence, direction and control of preparationCof electoral rolls and the conduct of elections to Parliament andState legislatures but then the Article has to be read harmoniouslywith the Articles that follow and the powers that are given to theLegislatures under entry No. 72 in the Union List and entry No.37 of the State List of the Seventh Schedule to the Constitution.The Commission in the garb of passing orders for regulating theDconduct of elections cannot take upon itself purely legislativeactivity which has been reserved under the scheme of theConstitution only to Parliament and the State legislatures. By nostandards can it be said that the Commission is third Chamber inthe legislative be process within the scheme of the Constitution.Emerely being creature of the Constitution will not give it plenaryand absolute power to legislate as it likes without reference to thelaw enacted by the legislatures.”

[Emphasis added]

68. In Association for Democratic Reforms (supra), the Court

Fopined:-

“Under Article 324, the superintendence, direction and control ofthe ‘conduct of all elections’ to Parliament and to the Legislatureof every State vests in Election Commission. The phrase ‘conductof elections’ is held to be of wide amplitude which would includeGpower to make all necessary provisions for conducting free andfair elections.”

69. In Kuldip Nayar v. Union of India and others[17], thisCourt has observed:-

“181. It has been argued by the petitioners that the ElectionCommission of India, which under the Constitution has been giventhe plenary powers to supervise the elections freely and fairly,had opposed the impugned amendment of changing the secretballot system. Its view has, therefore, to be given proper weightage.

In this context, we would say that where the law on the subject issilent, Article 324 is reservoir of power for the ElectionCommission to act for the avowed purpose of pursuing the goalof free and fair election, and in this view it also assumes the roleof an adviser. But the power to make law under Article 327 vestsin the Parliament, which is supreme and so, not bound by suchadvice. We would reject the argument by referring to what thisCourt has already said in Mohinder Singh Gill (supra) and whatbears reiteration here is that the limitations on the exercise of“plenary character” of the Election Commission include one tothe effect that “when Parliament or any State Legislature hasmade valid law relating to or in connection with elections, theCommission, shall act in conformity with, not in violation of, suchprovisions.”

70. The aforesaid decisions are to be appositely appreciated. Thereis no denial of the fact that the Election Commission has the plenarypower and its view has to be given weightage. That apart, it has powerto supervise the conduct of free and fair election. However, the saidpower has its limitations. The Election Commission has to act inconformity with the law made by the Parliament and it cannot transgressthe same.

71. It is submitted by Mr. Krishnan Venugopal, learned seniorcounsel appearing for the petitioner in Writ Petition (Civil) No. 800 of2015 that traditionally, the Court would not breach the principle ofseparation of powers, however, this cannot prevent this Court frompassing necessary directions to address the systemic growth of theproblem of criminalization of politics and the political system withoutbreaching the principle of separation of powers and this Court, in orderto discharge its constitutional function, can give directions to the Election

ACommission to exercise its powers under Article 324 of the Constitutionto redress violation of the fundamental rights and to protect the purity ofthe electoral process. Mr. Venugopal contends that in the past too, thisCourt, on several instances, had given directions to the ElectionCommission. He has also pointed out that the reason behind the urgentneed for this Court to intervene to tackle the growing menace ofBcriminalization of politics is that several law commission reports andother papers have unanimously concluded that there is widespreadcriminalization of politics and this Court has also taken cognizance ofthis fact in several of its judgments, but despite the said reports and theefforts of this Court, neither the Parliament nor the Government of IndiaChas taken serious actions to tackle the problem.

72. Further, Mr. Venugopal has drawn the attention of this Courtto the findings in the Report titled ‘Milan Vaishnav, When crime pays:Money and Muscle in Indian Politics”[18] to highlight that there is analarming increase in the number of candidates with criminal antecedentsDand their chances of winning have actually increased steadily over theyears and there is ample evidence in the form of statistical data whichreinstates this fact.

73. On that basis, it is contended that the empirical evidencesupports the view that the current legislative framework permits criminalsto enter the electoral arena and become legislators which interferes withEthe purity and integrity of the electoral process, violates the right to choosefreely the candidate of the voter’s choice thereby violating the freedomof expression of voter and amounts to subversion of democracywhich is part of the basic structure and is, thus, antithetical to the Ruleof Law.F

74. Mr. Venugopal’s submission has been supported by Mr. DineshDwivedi, learned senior counsel appearing for the petitioners in WritPetition (Civil) No. 536 of 2011 and Mr. Sidharth Luthra, learned AmicusCuriae, to the effect that if the Court does not intend to incorporate aprior stage in criminal trial, it can definitely direct the Election CommissionGto save democracy by including some conditions in the Election Symbols(Reservation and Allotment) Order, 1968 (hereinafter referred to as ‘theSymbols Order’). The submission is that candidate against whomcriminal charges have been framed in respect of heinous and grievousoffences should not be allowed to contest with the symbol of the party.

18 Milan Vaishnav, When crime pays: Money and Muscle in Indian Politics, Yale PressHUniversity, New Haven (2017)

It is urged that the direction would not amount to adding disqualificationbeyond what has been provided by the legislature but would only deprivea candidate from contesting with the symbol of the political party.

75. The aforesaid submission is seriously opposed by the learnedAttorney General. It is the case of the first respondent that Section 29Aof the Act does not permit the Election Commission of India toderegister political party. To advance this view, the Union of India hasrelied upon the decision of this Court in Indian National Congress (I)v. Institute of Social Welfare and others[19].

76. It is also the asseveration of the first respondent that thepower of this Court to issue directions to the Election Commission ofIndia have been elaborately dealt with in Association for DemocraticReforms (supra) wherein this Court held that Article 32 of theConstitution of India only operates in areas left unoccupied by legislationand in the case at hand, the Constitution of India and the Representationof the People Act, 1951 already contain provisions for disqualification ofMembers of Parliament. Therefore, directing the Election Commissionto (a) deregister political party, (b) refuse renewal of political partyor (c) to not register political party if they associate themselves withpersons who are merely charged with offences would amount to adoptinga colourable route, that is, doing indirectly what is clearly prohibited underthe Constitution of India and the Representation of the People Act.

77. It is also contended on behalf of the Union of India that addinga condition to the recognition of political party under the Symbols Orderwould also result in doing indirectly what is clearly prohibited. To buttressthis stand, the Union of India has cited the decisions in Jagir Singh v.Ranbir Singh and another[20]and M.C. Mehta v. Kamal Nath andothers[21].

78. Further, it has been submitted by the first respondent thatSection 29A(5) of the Act is complete, comprehensive and unambiguousprovision of law and any direction to the Election Commission of India toderegister or refuse registration to political parties who associatethemselves with persons merely charged with offences would result inviolation of the doctrine of separation of powers as that would tantamountto making addition to statute which is clear and unambiguous.

19 (2002) 5 SCC 685

20 (1979) 1 SCC 560

21 (2000) 6 SCC 213

CDE

A79. As per the first respondent, ‘pure law’ in the nature ofconstitutional provisions and the provisions of the Act cannot besubstituted or replaced by judge made law. To advance the said stand,the first respondent has cited the judgments of this Court in State ofHimachal Pradesh and others v. Satpal Saini[22] and KesavanandaBharati v. State of Kerala and another[23]wherein the doctrine ofBseparation of powers was concretised by this Court. It is the contentionof the first respondent that answering the present reference in theaffirmative would result in violation of the doctrine of separation ofpowers.

80. The first respondent has also contended that the presumptionCof innocence until proven guilty is one of the hallmarks of Indiandemocracy and the said presumption attaches to every person who hasbeen charged of any offence and it continues until the person has beenconvicted after full-fledged trial where evidence is led. Penalconsequences cannot ensue merely on the basis of charge.D

81. Drawing support from the judgment of this Court in AmitKapoor v. Ramesh Chander and another[24], it is averred by the firstrespondent that the standard of charging person is always less than aprima facie case, i.e., person can be charged if the facts emergingfrom the record disclose the existence of all the ingredients constitutingEthe alleged offence and, therefore, the consequences of holding that aperson who is merely charged is not entitled to membership of politicalparty would be grave as it would have the effect of taking away veryvaluable advantage of the symbol of the political party.

82. It has been further contended by the first respondent thatFevery citizen has right under Article 19(l)(c) to form associations whichincludes the right to be associated with persons who are otherwisequalified to be Members of Parliament under the Constitution of Indiaand under the law made by the Parliament. Further, this right can onlybe restricted by law made by the Parliament and any direction issued bythe Election Commission of India under Article 324 is not law for theGpurpose of Article 19(l)(c).

83. The first respondent also submits that the Act already containsdetailed provisions for disclosure of information by candidate in the22 (2017) 11 SCC 4223 (1973) 4 SCC 225H24 (2012) 9 SCC 460

form of Section 33A which requires every candidate to discloseinformation pertaining to offences that he or she is accused of. Thisinformation is put on the website of the Election Commission of Indiaand requiring every member of political party to disclose suchinformation irrespective of whether he/she is contesting election willhave serious impact on the privacy of the said member.

84. Relying upon the decisions in Union of India and another v.Deoki Nandan Aggarwal[25]and Supreme Court Bar Association v.Union of India and another[26], the first respondent has submitted thatArticle 142 of the Constitution of India does not empower this Court toadd words to statute or read words into it which are not there andArticle 142 does not confer the power upon this Court to make law.

85. As regards the issue that there is vacuum which necessitatesinterference of this Court, the first respondent has contended that thisargument is untenable as the provisions of the Constitution and the Actare clear and unambiguous and, therefore, answering the question referredto in the affirmative would be in the teeth of the doctrine of separation ofpowers and would be contrary to the provisions of the Constitution andto the law enacted by the Parliament.

Analysis of the Election Symbols Order

86. In the adverting situation and keeping in view the submissionson the behalf of the petitioners, it is pertinent to scan and analyse therelevant provisions of the Symbols Order which deals with allotment,classification, choice of symbols by candidates and restriction on theallotment of symbols. Clause (4) of the Symbols Order reads:-

“4. Allotment of symbols – In every contested election symbolshall be allotted to contesting candidate in accordance with theprovisions of this Order and different symbols shall be allotted todifferent contesting candidates at an election in the sameconstituency.”

87. Clause (4) of the Symbols Order makes it clear that in eachand every contested election, symbol, to each and every contestingcandidate, shall be allotted in accordance with the provisions of thisSymbols Order and in case of an election in the same constituency,

25(1992) Supp (1) 323

26(1998) 4 SCC 409

Adifferent symbols shall be allotted to different contesting candidates.Now, we must also dissect clause (5) of the Symbols Order which reads:-“5. Classification of symbols – (1) For the purpose of this Ordersymbols are either reserved or free.

(2) Save as otherwise provided in this Order, reserved symbol isBa symbol which is reserved for recognised political party forexclusive allotment to contesting candidates set up by that party.

(3) free symbol is symbol other than reserved symbol.”

88. Sub-clause (1) of clause (5) of the Symbols Order, priori,segregates the symbols for the purposes of this Symbols Order into twoCsimon pure categories, i.e., ‘Reserved’ or ‘Free’. Therefore, symbolunder the Symbols Order can either be reserved or it can be free. Beforedecoding sub-clause (2) of clause (5), we may first decipher sub-clause(3) which gives negative definition to free symbol. As per sub-clause(3) of clause (5), symbol is free if is not reserved under the SymbolsOrder. Sub-clause (2) of clause (5) which defines reserved symbolDstipulates that except as otherwise provided in the Symbols Order, areserved symbol is one which is reserved for recognised political partyfor exclusive allotment to the contesting candidates set up by such politicalparty.

89. Thereafter, clause (6) classifies political parties into stateEparties and national parties. Clauses (6A) and (6B) stipulate the conditionsfor recognition of state and national parties, respectively. Under clause(17) of the Symbols Order the Election Commission publishes, bynotification in the Official Gazette of India, the national parties, Stateparties and the symbols reserved for them. Clause (17) reads as under:-

F“17. Notification containing lists of political parties andsymbols –

(1) The Commission shall by one or more notifications in theGazette of India publish lists specifying-

(a) the National Parties and the symbols respectively reservedGfor them;

(b) the State Parties, the State or States in which they are StateParties and the symbols respectively reserved for them in suchState or States;

90. Another important provision in the matter of choice of symbolsby candidates and restriction on the allotment thereof is clause (8) of theSymbols Order which reads thus:-

“8. Choice of symbols by candidates of National and StateParties and allotment thereof –

(1) candidate set up by National Party at any election in anyconstituency in India shall choose, and shall be allotted, the symbolreserved for that party and no other symbol.

(2) candidate set up by State Party at an election in anyconstituency in State in which such party is State Party, shallchoose, and shall be allotted the symbol reserved for that Party inthat State and no other symbol.

(3) reserved symbol shall not be chosen by, or allotted to, anycandidate in any constituency other than candidate set up by aNational Party for whom such symbol has been reserved or acandidate set up by State Party for whom such symbol hasbeen reserved in the State in which it is State Party even if nocandidate has been set up by such National or State Party in thatconstituency.”

91. For exegesis of clause (8) of the Symbols Order, it is apt thatwe refer to clause (13) which provides as to when candidate is deemedto be set up by political party. Clause (13) reads as under:-

“13. When candidate shall be deemed to be set up by apolitical party.¯For the purposes of an election from anyparliamentary or assembly constituency to which this Order applies,a candidate shall be deemed to be set up by political party in anysuch parliamentary or assembly constituency, if, and only if,-

(a) the candidate has made the prescribed declaration to this effectin his nomination paper;

(aa) the candidate is member of that political party and his nameis borne on the rolls of members of the party;

(b) notice by the political party in writing, in Form B, to thateffect has, not later than 3 p.m. on the last date for makingnominations, been delivered to the Returning Officer of theconstituency;

(c) the said notice in Form is signed by the President, theSecretary or any other office bearer of the party, and the President,Secretary or such other office bearer sending the notice has beenauthorised by the party to send such notice;

(d) the name and specimen signature of such authorised personBare communicated by the party, in Form A, to the Returning Officerof the constituency and to the Chief Electoral Officer of the Stateor Union Territory concerned, not later than 3 p.m. on the lastdate for making nominations; and

(e) Forms and are signed, in ink only, by the said office beareror person authorised by the party:

Provided that no facsimile signature or signature by means ofrubber stamp, etc., of any such office bearer or authorised personshall be accepted and no form transmitted by fax shall beaccepted.”

D92. Clause (13) lays down an elaborate procedure in order for acandidate to be set up by political party in both the elections to theParliament as well as the Assembly constituencies.

93. Coming back to clause (8) of the Symbols Order, as per sub-clause (1) of clause (8), candidate set up by national party in termsEof clause (13) in any constituency in India shall choose the symbolreserved for such national party and no other symbol. By using the word‘shall’, sub-clause (1) of clause (8) makes it mandatory for candidateset up by national party to choose the symbol reserved for such nationalparty. Further, sub-clause (1), again on second instance, by using theword ‘shall’ in the context of the Election Commission, makes it obligatoryFfor the Election Commission to allot to candidate set up by nationalparty the symbol reserved for such national party. Therefore, sub-clause(1) by casting this duty on the Election Commission, as natural corollary,gives birth to right to the candidate set up by national party to contestelections under the symbol reserved for such national party.

94. That apart, the first part of sub-clause (3) of clause (8) stipulatesthat symbol reserved, in terms of clause (5) read with clause (17) ofthe Symbols Order, shall neither be chosen by nor allotted by the ElectionCommission to any candidate in any constituency other than candidateset up by national party.

95. Sub-clause (2) of clause (8) and the latter part of clause (3)are corresponding provisions for choice of symbol by candidates of Stateparties which, for the sake of brevity, we need not delve into. Coming tothe last clause of the Symbols Order, clause (18) reads thus:-

“18. Power of Commission to issue instructions anddirections:—The Commission may issue instructions anddirections-

(c) in relation to any matter with respect to the reservation andallotment of symbols and recognition of political parties, for whichthis Order makes no provision or makes insufficient provision,and provision is in the opinion of the Commission necessary forthe smooth and orderly conduct of elections.”

96. In terms of sub-clause (c) of clause 18, the power to issueinstructions and directions, in matters relating to reservation and allotmentof symbols, has been reserved by the Election Commission itself.

97. What comes to the fore is that when candidate has been setup in an election by particular political party, then such candidate hasa right under sub-clause (3) of clause (8) to choose the symbol reservedfor the respective political party by which he/she has been set up. Ananalogous duty has also been placed upon the Election Commission toallot to such candidate the symbol reserved for the political party bywhich he/she has been set up and to no other candidate.

98. Assuming hypothetical situation, where particular symbolis reserved for particular political party and such political party setsup candidate in elections against whom charges have been framed forheinous and/or grievous offences and if we were to accept the alternativeproposal put forth by the petitioners to direct the Election Commissionthat such candidate cannot be allowed to contest with the reservedsymbol for the political party, it would tantamount to adding new groundfor disqualification which is beyond the pale of the judicial arm of theState. Any attempt to the contrary will be colourable exercise of judicialpower for it is axiomatic that “what cannot be done directly ought not tobe done indirectly” which is well-accepted principle in the Indianjudiciary.

A99. Here we may profit to refer to some authorities wherein thesaid principle has been discussed elaborately.

100. In Allied Motors Limited v. Bharat Petroleum CorporationLimited[27], reference was made to the celebrated judgment of the PrivyCouncil in Nazir Ahmad v. King Emperor[28]wherein the principle hasBbeen enunciated “that where power is given to do certain thing ina certain way, the thing must be done in that way, or not at all.”Other methods of performance are necessarily forbidden. This principlehas been reiterated and expanded by the Supreme Court in severaldecisions.

C101. In D.R. Venkatachalam and others v. Dy. TransportCommissioner and others[29], it was observed:-

“In ultimate analysis, the rule of construction relied upon by Mr.Chitaley to make the last-mentioned submission is: “Expressionunius est exclusio alterius.” This maxim, which has been describedDas “a valuable servant but dangerous master” (per Lopes J., inCourt of Appeal in Colquhoun v. Brooks, (1888) 21 QBD 52 findsexpression also in rule formulated in Taylor v. Taylor (1875) 1Ch 426 applied by the Privy Council in Nazir Ahmad v. KingEmperor which has been repeatedly adopted by this Court. Thatrule says that an expressly laid down mode of doing somethingEnecessarily implies prohibition of doing it in any other way.”102. Similarly, in State through. P.S. Lodhi Colony New Delhi v.Sanjeev Nanda[30], this Court observed thus:-

“It is settled principle of law that if something is required to bedone in particular manner, then that has to be done only in thatFway or not, at all. In AIR 1936 PC 253 (2) Nazir Ahmad v. KingEmperor, it has been held as follows:

“.... The rule which applies is different and not less wellrecognized rule, namely, that where power is given to do certainthing in certain way the thing must be done in that way or not atGall....”

27 (2012) 2 SCC 128 AIR 1936 PC 25329 AIR 1977 SC 84230 AIR 2012 SC 3104H

103. Another judgment where this principle has been reiterated isRashmi Rekha Thatoi and another v. State of Orissa and others[31]wherein it was observed thus:-

“In this regard it is to be borne in mind that court of law has toact within the statutory command and not deviate from it. It is awell-settled proposition of law what cannot be done directly, cannotbe done indirectly. While exercising statutory power court isbound to act within the four corners thereof. The statutory exerciseof power stands on different footing than exercise of power ofjudicial review.”

104. That apart, any direction to the Election Commission in thenature as sought by the petitioners may lead to an anomalous situationand has the effect potentiality to do something indirectly which is notpermissible to do directly. candidate bereft of party symbol is, in away, disqualified from contesting under the banner of political party. Itis contended that the person concerned can contest the election as anindependent candidate but, as we perceive, the impact would be thesame. That apart, without legislation, it may be difficult to proscribethe same. Additionally, democracy that is based on multi-party systemis likely to be dented. In Shailesh Manubhai Parmar v. ElectionCommission of India[32], while dealing with the issue of introduction ofNOTA to the election process for electing members of the Council ofStates, this Court observed thus:-“...introduction of NOTA to the election process for electingmembers of the Council of States will be an anathema to thefundamental criterion of democracy which is basic feature ofthe Constitution. It can be stated without any fear of contradictionthat the provisions for introduction of NOTA as conceived by theElection Commission, the first respondent herein, on the basis ofthe PUCL judgment is absolutely erroneous, for the said judgmentdoes not say so. We are disposed to think that the decision couldnot have also said so having regard to the constitutional provisionscontained in Article 80 and the stipulations provided under theTenth Schedule to the Constitution. The introduction of NOTA insuch an election will not only run counter to the discipline that isexpected from an elector under the Tenth Schedule to the

31 (2012) 5 SCC 690

32 2018 (10) SCALE 52

EFG

AConstitution but also be counterproductive to the basic grammarof the law of disqualification of member on the ground ofdefection. It is well settled principle that what cannot be donedirectly, cannot be done indirectly. To elaborate, if NOTA is allowedin the election of the members to the Council of States, theprohibited aspect of defection would indirectly usher in withBimmense vigour.

(Emphasis is ours)

105. Here it is apt to note that this Court refused to allow theintroduction of NOTA for election of members of the Council of States,Cfor the Court was of the view that if the availibilty of NOTA option inelections for Rajya Sabha would be allowed, the same would amount tocolourable exercise of power by attempting to introduce or modify adisqualification for being or becoming member, which power fallscompletely within the domain of the legislature. Ruling so, the Courtfurther observed:-D

“The introduction of NOTA in indirect elections may on firstglance tempt the intellect but on keen scrutiny, it falls to theground, for it completely ignores the role of an elector in such anelection and fully destroys the democratic value. It may be statedwith profit that the idea may look attractive but its practicalEapplication defeats the fairness ingrained in an indirect election.More so where the elector‘s vote has value and the value of thevote is transferrable. It is an abstraction which does not withstandthe scrutiny of, to borrow an expression from Krishna Iyer, J., the¯cosmos of concreteness. We may immediately add that the optionFof NOTA may serve as an elixir in direct elections but in respectof the election to the Council of States which is different one asdiscussed above, it would not only undermine the purity ofdemocracy but also serve the Satan of defection and corruption.”

106. Thus analyzed, the directions to the Election Commission asGsought by the petitioners runs counter to what has been statedhereinabove. Though criminalization in politics is bitter manifest truth,which is termite to the citadel of democracy, be that as it may, theCourt cannot make the law.

107. Directions to the Election Commission, of the nature as soughtin the case at hand, may in an idealist world seem to be, at cursoryH

glance, an antidote to the malignancy of criminalization in politics butsuch directions, on closer scrutiny, clearly reveal that it is notconstitutionally permissible. The judicial arm of the State being ladenwith the duty of being the final arbiter of the Constitution and protectorof constitutional ethos cannot usurp the power which it does not have.

108. In multi-party democracy, where members are elected onparty lines and are subject to party discipline, we recommend to theParliament to bring out strong law whereby it is mandatory for thepolitical parties to revoke membership of persons against whom chargesare framed in heinous and grievous offences and not to set up suchpersons in elections, both for the Parliament and the State Assemblies.This, in our attentive and plausible view, would go long way in achievingdecriminalisation 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 toremain oblivious to the issue of criminalization of politics. This Courthas focused on various aspects of the said criminalization and givendirections from time to time which are meant to make the voters awareabout the antecedents of the candidates who contest in the election. InAssociation for Democratic Reforms (supra), this Court held:-

“38. If right to telecast and right to view sport games and theright to impart such information is considered to be part and parcelof Article 19(1)(a), we fail to understand why the right of citizen/voter — little man — to know about the antecedents of hiscandidate cannot be held to be fundamental right under Article19(1)(a). In our view, democracy cannot survive without free andfair election, without free and fairly informed voters. Votes castby uninformed voters in favour of X or Y candidate would bemeaningless. As stated in the aforesaid passage, one-sidedinformation, disinformation, misinformation and non-information,all equally create an uninformed citizenry which makes democracya farce. Therefore, casting of vote by misinformed and non-informed voter or voter having one-sided information only isbound to affect the democracy seriously. Freedom of speech andexpression includes right to impart and receive information whichincludes freedom to hold opinions. Entertainment is implied infreedom of ‘speech and expression’ and there is no reason tohold that freedom of speech and expression would not cover right

Ato get material information with regard to candidate who iscontesting election for post which is of utmost importance in thedemocracy.”

110. After the said judgment was delivered, the Representation ofthe People (Amendment) Ordinance, 2002 (4 of 2002) was promulgatedBand the validity of the same was called in question under Article 32 ofthe Constitution of India. The three Judge Bench in People’s Union forCivil Liberties (PUCL) (supra) held that Section 33-B which providedthe candidate to furnish information only under the Act and the rules isunconstitutional. The said provision read as follows:-

“33-B. Candidate to furnish information only under the Actand the rules.—Notwithstanding anything contained in anyjudgment, decree or order of any court or any direction, order orany other instruction issued by the Election Commission, nocandidate shall be liable to disclose or furnish any such information,in respect of his election, which is not required to be disclosed orfurnished under this Act or the rules made thereunder.”

111. P. Venkata Reddy, J. expressed his view as follows:-

“(1) Securing information on the basic details concerning thecandidates contesting for elections to Parliament or the StateLegislature promotes freedom of expression and therefore theright to information forms an integral part of Article 19(1)(a).This right to information is, however, qualitatively different fromthe right to get information about public affairs or the right toreceive information through the press and electronic media,though, to certain extent, there may be overlapping.

(3) The directives given by this Court in Union of India v. Assn.for Democratic Reforms were intended to operate only till thelaw was made by the legislature and in that sense ‘pro tempore’in nature. Once legislation is made, the Court has to make anindependent assessment in order to evaluate whether the items ofinformation statutorily ordained are reasonably adequate to securethe right of information available to the voter/citizen. In embarkingon 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 becountenanced.

(5) Section 33-B inserted by the Representation of the People(Third Amendment) Act, 2002 does not pass the test ofconstitutionality, firstly, for the reason that it imposes blanketban on dissemination of information other than that spelt out in theenactment irrespective of the need of the hour and the futureexigencies and expedients and secondly, for the reason that theban operates despite the fact that the disclosure of informationnow provided for is deficient and inadequate.

(6) The right to information provided for by Parliament underSection 33-A in regard to the pending criminal cases and pastinvolvement in such cases is reasonably adequate to safeguardthe right to information vested in the voter/citizen. However, thereis no good reason for excluding the pending cases in whichcognizance has been taken by the Court from the ambit ofdisclosure.”

112. Dharmadhikari, J., in his supplementing opinion, held thus:-

“127. The reports of the advisory commissions set up one afterthe other by the Government to which reference has been madeby Brother Shah, J., highlight the present political scenario wheremoney power and muscle power have substantially polluted andperverted the democratic processes in India. To control the ill-effects of money power and muscle power the commissionsrecommend that election system should be overhauled anddrastically changed lest democracy would become teasing illusionto common citizens of this country. Not only half-hearted attemptin the direction of reform of the election system is to be taken, ashas been done by the present legislation by amending someprovisions of the Act here and there, but much improved electionsystem is required to be evolved to make the election processboth transparent and accountable so that influence of tainted moneyand physical force of criminals do not make democracy farce— the citizen’s fundamental ‘right to information’ should berecognised and fully effectuated. This freedom of citizen toparticipate and choose candidate at an election is distinct from

Aexercise of his right as voter which is to be regulated by statutorylaw on the election like the RP Act.”

113. In Resurgence India v. Election Commission of India[33],referring to the precedents, this Court ruled thus:-

“20. Thus, this Court held that voter has the elementary right toBknow full particulars of candidate who is to represent him inParliament and such right to get information is universallyrecognised natural right flowing from the concept of democracyand is an integral part of Article 19(1)(a) of the Constitution. Itwas further held that the voter’s speech or expression in case ofCelection would include casting of votes, that is to say, voter speaksout or expresses by casting vote. For this purpose, informationabout the candidate to be selected is must. Thus, in unequivocalterms, it is recognised that the citizen’s right to know of thecandidate who represents him in Parliament will constitute anintegral part of Article 19(1)(a) of the Constitution of India andDany act, which is derogative of the fundamental rights is at thevery 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 asEwell as the candidate who has filed an affidavit with particularsleft blank should be treated on par, it will result in breach offundamental right guaranteed under Article 19(1)(a) of theConstitution viz. ‘right to know’, which is inclusive of freedom ofspeech and expression as interpreted in Assn. for DemocraticFReforms.”

114. The Court summarized the directions as under:-

“29.1. The voter has the elementary right to know full particularsof candidate who is to represent him in Parliament/Assembliesand such right to get information is universally recognised. Thus,Git is held that right to know about the candidate is natural rightflowing from the concept of democracy and is an integral part ofArticle 19(1)(a) of the Constitution.

29.2. The ultimate purpose of filing of affidavit along with thenomination paper is to effectuate the fundamental right of thecitizens under Article 19(1)(a) of the Constitution of India. Thecitizens are supposed to have the necessary information at thetime of filing of nomination paper and for that purpose, theReturning Officer can very well compel candidate to furnishthe relevant information.

29.3. Filing of affidavit with blank particulars will render theaffidavit nugatory.

29.4. It is the duty of the Returning Officer to check whether theinformation required is fully furnished at the time of filing of affidavitwith the nomination paper since such information is very vital forgiving effect to the ‘right to know’ of the citizens. If candidatefails to fill the blanks even after the reminder by the ReturningOfficer, the nomination paper is fit to be rejected. We docomprehend that the power of Returning Officer to reject thenomination paper must be exercised very sparingly but the barshould not be laid so high that justice itself is prejudiced.

29.5. We clarify to the extent that para 73 of People’s Union forCivil Liberties case will not come in the way of the ReturningOfficer to reject the nomination paper when affidavit is filed withblank particulars.

29.6. The candidate must take the minimum effort to explicitlyremark as ‘NIL’ or ‘Not Applicable’ or ‘Not known’ in the columnsand not to leave the particulars blank.

29.7. Filing of affidavit with blanks will be directly hit by Section125-A(i) of the RP Act. However, as the nomination paper itselfis rejected by the Returning Officer, we find no reason why thecandidate must be again penalised for the same act by prosecutinghim/her.”

115. In People’s Union for Civil Liberties v. Union of India[34],the Court held that the universal adult suffrage conferred on the citizensof India by the Constitution has made it possible for these millions ofindividual voters to go to the polls and thereby participate in the governanceof our country. It has been further ruled that for democracy to survive, it

Ais essential that the best available men should be chosen as the people’srepresentatives for the proper governance of the country. The bestavailable people, as is expected by the democratic system, should nothave criminal antecedents and the voters have right to know abouttheir antecedents, assets and other aspects. We are inclined to say so,for in constitutional democracy, criminalization of politics is an extremelyBdisastrous and lamentable situation. The citizens in democracy cannotbe compelled to stand as silent, deaf and mute spectators to corruptionby projecting themselves as helpless. The voters cannot be allowed toresign to their fate. The information given by candidate must expresseverything that is warranted by the Election Commission as per law.CDisclosure of antecedents makes the election fair one and the exerciseof the right of voting by the electorate also gets sanctified. It has to beremembered that such right is paramount for democracy. voter isentitled to have an informed choice. If his right to get proper informationis scuttled, in the ultimate eventuate, it may lead to destruction ofdemocracy because he will not be an informed voter having been kept inDthe dark about the candidates who are accused of heinous offences. Inthe present scenario, the information given by the candidates is not widelyknown in the constituency and the multitude of voters really do not cometo know about the antecedents. Their right to have information suffers.

116. Keeping the aforesaid in view, we think it appropriate toEissue the following directions which are in accord with the decisions ofthis Court :-

(i) Each contesting candidate shall fill up the form as provided bythe Election Commission and the form must contain all theparticulars as required therein.F(ii) It shall state, in bold letters, with regard to the criminal casespending against the candidate.

(iii) If candidate is contesting an election on the ticket of aparticular party, he/she is required to inform the party about theGcriminal cases pending against him/her.

(iv) The concerned political party shall be obligated to put up onits website the aforesaid information pertaining to candidates havingcriminal antecedents.

(v) The candidate as well as the concerned political party shallissue declaration in the widely circulated newspapers in thelocality about the antecedents of the candidate and also give widepublicity in the electronic media. When we say wide publicity, wemean that the same shall be done at least thrice after filing of thenomination papers.

117. These directions ought to be implemented in true spirit andright earnestness in bid to strengthen the democratic set-up. Theremay be certain gaps or lacunae in law or legislative enactment whichcan definitely be addressed by the legislature if it is backed by the properintent, strong resolve and determined will of right-thinking minds toameliorate the situation. It must also be borne in mind that the law cannotalways be found fault with for the lack of its stringent implementation bythe concerned authorities. Therefore, it is the solemn responsibility of allconcerned to enforce the law as well as the directions laid down by thisCourt from time to time in order to infuse the culture of purity in politicsand in democracy and foster and nurture an informed citizenry, forultimately it is the citizenry which decides the fate and course of politicsin nation and thereby ensures that “we shall be governed no betterthan we deserve”, and thus, complete information about the criminalantecedents of the candidates forms the bedrock of wise decision-makingand informed choice by the citizenry. Be it clearly stated that informedchoice is the cornerstone to have pure and strong democracy.

118. We have issued the aforesaid directions with immenseanguish, for the Election Commission cannot deny candidate to conteston the symbol of party. time has come that the Parliament mustmake law to ensure that persons facing serious criminal cases do notenter into the political stream. It is one thing to take cover under thepresumption of innocence of the accused but it is equally imperative thatpersons who enter public life and participate in law making should beabove any kind of serious criminal allegation. It is true that false casesare foisted on prospective candidates, but the same can be addressed bythe Parliament through appropriate legislation. The nation eagerly waitsfor such legislation, for the society has legitimate expectation to begoverned by proper constitutional governance. The voters cry forsystematic sustenance of constitutionalism. The country feels agonizedwhen money and muscle power become the supreme power. Substantial

Aefforts have to be undertaken to cleanse the polluted stream of politicsby prohibiting people with criminal antecedents so that they do not evenconceive of the idea of entering into politics. They should be kept atbay.

119. We are sure, the law making wing of the democracy of thisBcountry will take it upon itself to cure the malignancy. We say so assuch malignancy is not incurable. It only depends upon the time andstage when one starts treating it; the sooner the better, before it becomesfatal to democracy. Thus, we part.

120. The writ petitions and the criminal appeals are disposed ofCaccordingly.

Kalpana K. Tripathy

Matters disposed of.