Public Interest Foundation & Ors. v. Union of India & Anr.
DIPAK MISRA, CJI. 1. In Yogendra Kumar Jaiswal and
others v. State of Bihar and others 1, the Court opined:-
“Corruption, a ‘noun’ when assumes all the characteristics of a
Verb’, becomes self-infective and also develops resis tance to
antibiotics. In such a situation the disguised protagonist never puts
a Hamletian question-”to be or not to be”-but marches ahead
with perverted proclivity-sans concern, sans care for collec tive
interest, and irrefragably without conscience. In a way, corruption
becomes a national economic terror.”
2. The constitutional functionaries, who have taken the pledge to
uphold the constitutional principles, are charged with the responsibility to
ensure that the existing political framework does not get tainted with the
evil of corruption. However, despite this heavy mandate prescribed by
our Constitution, our Indian democracy, which is the world’s la rgest
democracy, has seen a steady increase in the level of cri minalization
that has been creeping into the Indian polity. This unsettlingly increasing
trend of criminalization of politics, to which our country has bee n a
witness, tends to disrupt the constitutional ethos and strikes at the very
root of our democratic form of government by making our citizenry suffer
at the hands of those who are nothing but a liability to our country.
3. The issue that emerges for consideration before this Bench is
whether disqualification for membership can be laid down by the Court
beyond Article 102(a) to (d) and the law made by the Parliament under
Article 102(e). A three-Judge Bench hearing the matter was of the
view that this question is required to be addressed by the Consti tution
Bench under Article 145(3) of the Constitution. Be it stated, a submission
was advanced before the three-Judge Bench that the controvers y was
1 (2016) 3 SCC 183
153
covered by the decision in Manoj Narula v. Union of India 2. The said
submission was not accepted because of the view expressed by Madan
B. Lokur, J. in his separate judgment.
4. In the course of hearing, the contour of the questi on was
expanded with enormous concern to curb criminalization of politics in a
democratic body polity. The learned counsel for the petitioners submitted
that having regard to the rise of persons with criminal antecedents, the
fundamental concept of decriminalization of politics should be viewed
from a wider spectrum and this Court, taking into consideration the facet
of interpretation, should assume the role of judicial s tatesmanship.
Mr. K.K. Venugopal, learned Attorney General for India and other learned
counsel, per contra, would submit that there can be no denial that this
Court is the final arbiter of the Constitution and the Constitution empowers
this wing of the State to lay down the norms of interpretation and show
judicial statesmanship but the said judicial statesmanship should not ignore
the fundamental law relating to separation of power s, primary
responsibility conferred on the authorities under the respective powers
and the fact that no authority should do anything for which the p ower
does not flow from the Constitution. In essence, the su bmission of
Mr. Venugopal is that the Court should not cross the ‘Lakshman Rekha’.
Resting on the fulcrum of constitutional foundation and on the fundamental
principle that if the Court comes to hold that it cannot legislate but only
recommend for bringing in a legislation, as envisaged under A rticle
102(1)(e) of the Constitution, it would not be appropriate to take recourse
to any other method for the simon pure reason that what cannot be done
directly, should not be done indirectly. We shall advert to the said submission
at a later stage.
5. Article 102 reads as follows: -
“102. Disqualifications for membership - (1) A person shall
be disqualified for being chosen as, and for being, a member of
either House of Parliament—
(a) if he holds any office of profit under the Government of India
or the Government of any State, other than an office declared
by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent
court;
2 (2014) 9 SCC 1
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgment
of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
Explanation. —For the purposes of this clause a person shall not
be deemed to hold an office of profit under the Government of
India or the Government of any State by reason only that he is a
Minister either for the Union or for such State.
(2) A person shall be disqualified for being a member of eit her
House of Parliament if he is so disqualified under the Tenth
Schedule.”
6. In this context, we may also refer to Article 19 1 of the
Constitution that deals with disqualifications for membership . It is as
follows: -
“191. Disqualifications for membership —(1) A person shall
be disqualified for being chosen as, and for being, a member of
the Legislative Assembly or Legislative Council of a State
(a) if he holds any office of profit under the Government of India
or the Government of any State specified in the First Schedule,
other than an office declared by the Legislature of the State
by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent
court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgement
of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
Explanation. — For the purposes of this clause, a person shall
not be deemed to hold an office of profit under the Government
of India or the Government of any State specified in the Firs t
155
Schedule by reason only that he is a Minister either for the Union
or for such State.
(2) A person shall be disqualified for being a member of the
Legislative Assembly or Legislative Council of a State if he is so
disqualified under the Tenth Schedule.”
7. On a perusal of both the Articles, it is clear as crys tal that as
regards disqualification for being chosen as a member of either House
of Parliament and similarly disqualification for being chosen or for being
a member of the Legislative Assembly or Legislative Council of a State,
the law has to be made by the Parliament. In Lily Thomas v. Union of
India and others 3, it has been held:-
“26. Articles 102(1)( e) and 191(1)( e) of the Constitution, on the
other hand, have conferred specific powers on Parliament to make
law providing disqualifications for membership of either House of
Parliament or Legislative Assembly or Legislative Council of the
State other than those specified in sub-clauses ( a), ( b), ( c) and
(d) of clause (1) of Articles 102 and 191 of the Constitution. We
may note that no power is vested in the State Legislature to make
law laying down disqualifications of membership of the Legislative
Assembly or Legislative Council of the State and power is vested
in Parliament to make law laying down disqualifications also in
respect of Members of the Legislative Assembly or Legi slative
Council of the State. For these reasons, we are of the considered
opinion that the legislative power of Parliament to enact any law
relating to disqualification for membership of either Hou se of
Parliament or Legislative Assembly or Legislative Council of the
State can be located only in Articles 102(1)( e) and 191(1)( e) of
the Constitution and not in Article 246(1) read with Schedule VII
List I Entry 97 and Article 248 of the Constitution. We do not,
therefore, accept the contention of Mr. Luthra that the p ower to
enact sub-section (4) of Section 8 of the Act is vested in Parliament
under Article 246(1) read with Schedule VII List I Entry 97 and
Article 248 of the Constitution, if not in Articles 102(1)( e) and
191(1)( e) of the Constitution.”
We have no hesitation in saying that the view expressed above in
Lily Thomas (supra) is correct, for the Parliament has the exclusive
legislative power to lay down disqualification for membership.
3 (2013) 7 SCC 653
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
8. In Manoj Narula (supra), the question centered around the
interpretation of Article 75 of the Constitution. The core issue pertained
to the legality of persons with criminal background and/or charged with
offences involving moral turpitude to be appointed as mini sters in the
Central and the State Governments. The majority ref erred to the
constitutional provisions, namely, Articles 74, 75, 163 and 164, adverted
to the doctrine of implied limitation and, in that context, opined thus:-
“64. On a studied scrutiny of the ratio of the aforesaid decisions,
we are of the convinced opinion that when there is no
disqualification for a person against whom charges have been
framed in respect of heinous or serious offences or offen ces
relating to corruption to contest the election, by interpretati ve
process, it is difficult to read the prohibition into Article 75(1) or,
for that matter, into Article 164(1) to the powers of the Prime
Minister or the Chief Minister in such a manner. That would come
within the criterion of eligibility and would amount to prescribing
an eligibility qualification and adding a disqualification which has
not been stipulated in the Constitution. In the absence of any
constitutional prohibition or statutory embargo, such disqualification,
in our considered opinion, cannot be read into Article 75(1) or
Article 164(1) of the Constitution.”
9. There has been advertence to the principle of constituti onal
silence or abeyance and, in that context, it has been ruled that i t is not
possible to accept that while interpreting the words “advice of the Prime
Minister”, it can legitimately be inferred that there is a prohibition to
think of a person as a minister if charges have been framed against him
in respect of heinous and serious offences including corrupti on cases
under the criminal law. Thereafter, the majority addressed the concepts
of ‘constitutional morality’, ‘constitutional governance’ and ‘constitutional
trust’ and analysed the term ‘advice’ employed under Article 75(1) and
stated that formation of an opinion by the Prime Minister in the context
of Article 75(1) is expressed by the use of the said word because of the
trust reposed in the Prime Minister under the Constitution and the said
advice, to put it differently, is a constitutional advi ce. Reference was
made to the debate in the Constituent Assembly which had left it to the
wisdom of the Prime Minister because of the intrinsic fait h in him.
Discussing further, it has been stated: -
157
“At the time of framing of the Constitution, the debate pertained
to conviction. With the change of time, the entire complexion in
the political arena as well as in other areas has changed. This
Court, on number of occasions, as pointed out hereinbefore, has
taken note of the prevalence and continuous growth of
criminalisation in politics and the entrenchment of corruption at
many a level. In a democracy, the people never intend to be
governed by persons who have criminal antecedents. This is not
merely a hope and aspiration of citizenry but the idea is al so
engrained in apposite executive governance.”
And again: -
“That the Prime Minister would be giving apposite advice to the
President is a legitimate constitutional expectation, for it is a
paramount constitutional concern. In a controlled Constitution like
ours, the Prime Minister is expected to act with constituti onal
responsibility as a consequence of which the cherished values of
democracy and established norms of good governance g et
condignly fructified. The Framers of the Constitution left many a
thing unwritten by reposing immense trust in the Prime Minister.
The scheme of the Constitution suggests that there has to be an
emergence of constitutional governance which would gradually
grow to give rise to constitutional renaissance.”
10. Lokur, J. opined: -
“132. While it may be necessary, due to the criminalisation of our
polity and consequently of our politics, to ensure that certain persons
do not become Ministers, this is not possible through guidelines
issued by this Court. It is for the electorate to ensure that suitable
(not merely eligible) persons are elected to the legislature and it is
for the legislature to enact or not enact a more restrictive law. ”
Proceeding further, the learned Judge stated: -
“137. In this respect, the Prime Minister is, of course, answerable
to Parliament and is under the gaze of the watchful eye of the
people of the country. Despite the fact that certain limitations can
be read into the Constitution and have been read in the past, the
issue of the appointment of a suitable person as a Minister is not
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
one which enables this Court to read implied limitations in the
Constitution.”
He had also, in his opinion, reproduced the words of Dr. B.R.
Ambedkar in the Constituent Assembly on 25.11.1949 and the sentiments
echoed by Dr. Rajendra Prasad on 26.11.1949. Dr. Ambedkar had said:-
“As much defence as could be offered to the Constitution has
been offered by my friends Sir Alladi Krishnaswami Ayya r and
Mr T.T. Krishnamachari. I shall not therefore enter into the merits
of the Constitution. Because I feel, however good a Constitution
may be, it is sure to turn out bad because those who are called to
work it, happen to be a bad lot. However bad a Constitution may
be, it may turn out to be good if those who are called to work it,
happen to be a good lot. The working of a Constitution does not
depend wholly upon the nature of the Constitution. The Constitution
can provide only the organs of State such as the Legislature, the
Executive and the Judiciary. The factors on which the working of
those organs of the State depend are the people and the political
parties they will set up as their instruments to carry out their wishes
and their politics. Who can say how the people of India and their
parties will behave? Will they uphold constitutional methods of
achieving their purposes or will they prefer revolutionary methods
of achieving them? If they adopt the revolutionary method s,
however good the Constitution may be, it requires no prophet to
say that it will fail. It is, therefore, futile to pass any judgment
upon the Constitution without reference to the part which the
people and their parties are likely to play.”
11. The learned Judge reproduced the words of Dr. Rajendra
Prasad, which ring till today, are:-
“Whatever the Constitution may or may not provide, the welfare
of the country will depend upon the way in which the country is
administered. That will depend upon the men who administer it. It
is a trite saying that a country can have only the Government it
deserves. Our Constitution has provisions in it which appear to
some to be objectionable from one point or another. We mus t
admit that the defects are inherent in the situation in the country
and the people at large. If the people who are elected are capable
and men of character and integrity, they would be able t o make
159
the best even of a defective Constitution. If they are lacking in
these, the Constitution cannot help the country. Aft er all, a
Constitution like a machine is a lifeless thing. It acquires life
because of the men who control it and operate it, and India needs
today nothing more than a set of honest men who will have the
interest of the country before them.”
12. Kurian Joseph, J., concurring with the opinion, has stated:-
“152. No doubt, it is not for the Court to issue any direction to the
Prime Minister or the Chief Minister, as the case may be, a s to
the manner in which they should exercise their powe r while
selecting the colleagues in the Council of Ministers. That i s the
constitutional prerogative of those functionaries who are cal led
upon to preserve, protect and defend the Constitution. But it is the
prophetic duty of this Court to remind the key duty holders about
their role in working the Constitution. Hence, I am of the firm
view, that the Prime Minister and the Chief Minister of the State,
who themselves have taken oath to bear true faith and allegiance
to the Constitution of India and to discharge their duties faithfully
and conscientiously, will be well advised to consider avoiding any
person in the Council of Ministers, against whom charges have
been framed by a criminal court in respect of offences involving
moral turpitude and also offences specifically referred to in Chapter
III of the Representation of the People Act, 1951.”
13. The thrust of the matter is whether any disqualification can be
read as regards disqualification for membership into the constitutional
provisions. Article 102(1) specifies certain grounds and further provides
that any disqualification can be added by or under any law made by the
Parliament. Article 191 has the same character.
14. Chapter III of the Representation of the People Act, 1951
(for brevity, ‘the Act’) deals with disqualification for membership of the
Parliament and the State Legislatures. Section 7 deals with Definitions.
It is as follows:-
“7. Definitions.—In this Chapter,—
(a) “appropriate Government” means in relation to a ny
disqualification for being chosen as or for being a member of
either House of Parliament, the Central Government, and in
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
relation to any disqualification for being chosen as or for being
a member of the Legislative Assembly or Legislative Council
of a State, the State Government;
(b) “disqualified” means disqualified for being chosen as, and for
being, a member of either House of Parliament or of the
Legislative Assembly or Legislative Council of a State. under
the provisions of this Chapter, and on no other ground .”
[Emphasis is ours]
15. The word ‘disqualified’ clearly states that a pe rson be
disqualified from being a member under the provisions of the said Chapter
and/or on no other ground. The words ‘no other ground’ are of immense
significance. Apart from the grounds mentioned under Article 102(1)(a)
to 102(1)(d) and Article 191(1)(a) to 191(1)(d), the other grounds are
provided by the Parliament and the Parliament has provided under Sections
8, 8A, 9, 9A, 10 and 10A which read thus:
“8. Disqualification on conviction for certain offenc es. —
(1) A person convicted of an offence punishable under—
(a) section 153A (offence of promoting enmity between different
groups on ground of religion, race, place of birth, residence ,
language, etc., and doing acts prejudicial to maintena nce of
harmony) or section 17IE (offence of bribery) or section 17IF
(offence of undue influence or personation at an election) or sub-
section (1) or sub-section (2) of section 376 or section 376A or
section 376B or section 376C or section 376D (offences relating
to rape) or section 498A (offence of cruelty towards a woman by
husband or relative of a husband) or sub-section (2) or sub-section
(3) of section 505 (offence of making statement crea ting or
promoting enmity, hatred or ill-will between classes or o ffence
relating to such statement in any place of worship or in any
assembly engaged in the performance of religious worship or
religious ceremonies) of the Indian Penal Code (45 of 1860); or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955), which
provides for punishment for the preaching and pract ice of
“untouchability”, and for the enforcement of any disability arising
therefrom; or
161
(c) section 11 (offence of importing or exporting prohibited goods)
of the Customs Act, 1962 (52 of 1962); or
(d) sections 10 to 12 (offence of being a member of an association
declared unlawful, offence relating to dealing with funds of an
unlawful association or offence relating to contraventi on of an
order made in respect of a notified place) of the Unlawful Activities
(Prevention) Act, 1967 (37 of 1967); or
(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) the Narcotic Drugs and Psychotropic Substances Act, 19 85
(61 of 1985); or
(g) section 3 (offence of committing terrorist acts) or se ction 4
(offence of committing disruptive activities) of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(h) section 7 (offence of contravention of the provisions of sections
3 to 6) of the Religious Institutions (Prevention of Misuse) Act,
1988 (41 of 1988); or
(i) section 125 (offence of promoting enmity between classes in
connect ion with the election) or section 135 (offence of removal
of ballot papers from polling stations) or section 135A (offence of
booth capturing) or clause (a) of sub - section (2) of section 136
(offence of fraudulently defacing or fraudulently destroying any
nomination paper) of this Act; or
(j) section 6 (offence of conversion of a place or worship) of the
Places of Worship (Special Provisions) Act 1991, or
(k) section 2 (offence of insulting the Indian National Flag or the
Constitution of India) or section 3 (offence of preventing singing
of National Anthem) of the Prevention of Insults to Nation al
Honour Act, 1971 (69 of 1971); or
(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or
(m) the Prevention of Corruption Act, 1988 (49 of 1988); or
(n) the Prevention of Terrorism Act, 2002 (15 of 2002),
shall be disqualified, where the convicted person is sentenced to—
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
(i) only fine, for a period of six years from the date o f such
conviction;
(ii) imprisonment, from the date of such conviction and shall
continue to be disqualified for a further period of six y ears
since his release.
(2) A person convicted for the contravention of—
(a) any law providing for the prevention of hoardin g or
profiteering; or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, [1961 (28 of
1961)
and sentenced to imprisonment for not less than six months, shall
be disqualified from the date of such conviction and shall continue
to be disqualified for a further period of six years since his release.
(3) A person convicted of any offence and sentenced to
imprisonment for not less than two years other than any offence
referred to in sub-section (1) or sub-section (2) shall be disqualified
from the date of such conviction and shall continue to be
disqualified for a further period of six years since his release.
(4) Notwithstanding anything in sub-section (1), sub-section (2)
and sub-section (3) a disqualification under either sub-section shall
not, in the case of a person who on the date of the conviction is a
member of Parliament or the Legislature of a State, take e ffect
until three months have elapsed from that date or, if within that
period an appeal or application for revision is brought in respect
of the conviction or the sentence, until that appeal or application is
disposed of by the court.
Explanation .—In this section—
(a) “law providing for the prevention of hoarding or profiteering”
means any law, or any order, rule or notification having the force
of law, providing for—
(i) the regulation of production or manufacture of any essential
commodity;
163
(ii) the control of price at which any essential commodity may
be brought or sold;
(iii) the regulation of acquisition, possession, storage, transport,
distribution, disposal, use or consumption of any essential
commodity;
(iv) the prohibition of the withholding from sale of any essential
commodity ordinarily kept for sale;
(b) “drug” has the meaning assigned to it in the Drugs and Cosmetics
Act, 1940 (23 of 1940);
(c) “essential commodity” has the meaning assigned to it in the
Essential Commodities Act, 1955 (10 of 1955);
(d) “food” has the meaning assigned to it in the Preventi on of
Food Adulteration Act, 1954 (37 of 1954).
8A. Disqualification on ground of corrupt practices .—
(1) The case of every person found guilty of a corrupt practice by
an order under section 99 shall be submitted, as soon as may be
within a period of three months from the date such order takes
effect, by such authority as the Central Government may specify
in this behalf, to the President for determination of the question as
to whether such person shall be disqualified and if so, for w hat
period:
Provided that the period for which any person may be
disqualified under this sub-section shall in no case exceed six years
from the date on which the order made in relation to him under
section 99 takes effect.
(2) Any person who stands disqualified under section 8A of this
Act as it stood immediately before the commencement of the
Election Laws (Amendment) Act, 1975 (40 of 1975), may, if the
period of such disqualification has not expired, submit a petition to
the President for the removal of such disqualification fo r the
unexpired portion of the said period.
(3) Before giving his decision on any question mentioned in sub-
section (1) or on any petition submitted under sub-section (2), the
President shall obtain the opinion of the Election Commission on
such question or petition and shall act according to such opinion.
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
9. Disqualification for dismissal for corruption or
disloyalty .—(1) A person who having held an office under the
Government of India or under the Government of any State has
been dismissed for corruption or for disloyalty to the State shall
be disqualified for a period of five years from the date of su ch
dismissal.
(2) For the purposes of sub-section (1), a certificate issued by the
Election Commission to the effect that a person having held office
under the Government of India or under the Government of a
State, has or has not been dismissed for corruption or for disloyalty
to the State shall be conclusive proof of that fact:
Provided that no certificate to the effect that a person ha s
been dismissed for corruption or for disloyalty to the State shall
be issued unless an opportunity of being heard has been given to
the said person.
9A. Disqualification for Government contracts, etc. —
A person shall be disqualified if, and for so long as, there subsists
a contract entered into by him in the course of his trade or business
with the appropriate Government for the supply of goods to, or
for the execution of any works undertaken by, that Government.
Explanation. —For the purposes of this section, where a contract
has been fully performed by the person by whom it has been
entered into with the appropriate Government, the contract shall
be deemed not to subsist by reason only of the fact t hat the
Government has not performed its part of the contract either wholly
or in part.
10. Disqualification for office under Government company.—
A person shall be disqualified if, and for so long as, he is a managing
agent, manager or secretary of any company or corporation (other
than a co-operative society) in the capital of which the appropriate
Government has not less than twenty-five per cent share.
10A. Disqualification for failure to lodge account of election
expenses.— If the Election Commission is satisfied that a
person—
(a) has failed to lodge an account of election expenses, within
the time and in the manner required by or under this Act; and
(b) has no good reason or justification for the failure,
165
the Election Commission shall, by order published in the Official
Gazette, declare him to be disqualified and any such person shall
be disqualified for a period of three years from the date of the
order.”
16. From the aforesaid, it is decipherable that Section 8 deals with
disqualification on conviction for certain offences. Section 8A provides
for disqualification on ground of corrupt practices. Section 9 provides
for the disqualification for dismissal for corruption or disloyalty. Section
9A deals with the situation where there is subsisting contract between
the person and the appropriate Government. Section 1 0 lays down
disqualification for office under Government company and Section 10A
deals with disqualification for failure to lodge account of election expenses.
Apart from these disqualifications, there are no other disqualifications
and, as is noticeable, there can be no other ground. Thus, disqualifications
are provided on certain and specific grounds by the legislature. In such
a state, the legislature is absolutely specific.
17. The submission of the learned counsel appearing f or the
petitioners is that the law breakers should not become law ma kers and
there cannot be a paradise for people with criminal antec edents in the
Parliament or the State Legislatures. Reference has been m ade to the
recommendations of the Law Commission which has ser iously
commented on the prevalent political atmosphere being dominated by
people with criminal records.
18. It has also been highlighted by the petitioners that criminalization
in politics is on the rise and the same is a documented fact and recorded
by various committee reports. The petitioners also highli ght that the
doctrine of fiduciary relationship has been extende d to several
constitutional posts and that if members of Public Service Commission,
Chief Vigilance Commissioner and the Chief Secretary can undergo the
test of integrity check and if “framing of charge” has been rec ognized
as a disqualification for such posts, then there is no reason to not extend
the said test of “framing of charge” to the posts of Members of Parliament
and State Legislatures as well. To further accentuate this stand, the
petitioners point out that such persons hold the posts in cons titutional
trust and can be made subject to rigours and fetters as the right to contest
elections is not a fundamental right but a statutory right or a right which
must confirm to the constitutional ethos and principles.
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
19. The petitioners are attuned to the principle of “presumption of
innocence” under our criminal law. But they are of the opinion that the
said principle is confined to criminal law and that any proceeding prior to
conviction, such as framing of charge for instance, can become the basis
to entail civil liability of penalty. The petitioners, therefore, take the stand
that debarring a person facing charges of serious nature from contesting
an election does not lead to creation of an offence and it is me rely a
restriction which is distinctively civil in nature.
20. The intervenor organization has also made submissions on a
similar note as that of the petitioners to the effect that persons charged
for an offence punishable with imprisonment for five years or more are
liable to be declared as disqualified for being elected or for being a
Member of the Parliament as a person chargesheeted in a crime involving
moral turpitude is undesirable for a job under the government and it is
rather incongruous that such a person can become a law maker who
then control civil servants and other government machinery and, thu s,
treating legislators on a different footing amounts to a violation of Article
14 of the Constitution.
21. Mr. Venugopal, learned Attorney General for India, refuting
the aforesaid submission, would urge that the Parliament may make law
on the basis of the recommendations of the Law Commission bu t this
Court, as a settled principle of law, should not issue a mandamus to the
Parliament to pass a legislation and can only recommend. Tha t apart,
submits Mr. Venugopal, that when there are specific co nstitutional
provisions and the statutory law, the Court should leave it to the Parliament.
22. It is well settled in law that the Court cannot legislate. Emphasis
is laid on the issuance of guidelines and direction s for rigorous
implementation. With immense anxiety, it is canvassed that when a perilous
condition emerges, the treatment has to be aggressive. The pe titioners
have suggested another path. But, as far as adding a disqualification is
concerned, the constitutional provision states the disqualification, confers
the power on the legislature, which has, in turn, legislated in the imperative.
23. Thus, the prescription as regards disqualification is complete
is in view of the language employed in Section 7(b) read with Sections 8
to 10A of the Act. It is clear as noon day and there is no ambiguity. The
legislature has very clearly enumerated the grounds for disqualification
167
and the language of the said provision leaves no room for any new ground
to be added or introduced.
Criminalization of politics
24. Though we have analyzed the aforesaid aspect, yet we cannot
close the issue, for the learned counsel for the petitioners and some of
the intervenors have argued with immense anguish that there is a need
for rectification of the system failing which there will b e progressive
malady in constitutional governance and gradually, the governance would
be controlled by criminals. The submission has been advance d with
sanguine sincerity and genuine agony. There have been suggestions as
well as arguments with the purpose of saving the sanctity of democracy
and to advance its enduring continuance. To appreciate the same, we
will focus on the criminalization of politics.
25. In the beginning of the era of constitutional democracy, serious
concerns were expressed with regard to the people who are going to be
elected. Dr Rajendra Prasad on the Floor of the Constituent Assembly,
before putting the motion for passing of the Constitution, had observed:-
“...It requires men of strong character, men of vision, me n who
will not sacrifice the interests of the country at large for the sake
of smaller groups and areas...We can only hope that the country
will throw up such men in abundance.” 4
26. An essential component of a constitutional democracy is its
ability to give and secure for its citizenry a represe ntative form of
government, elected freely and fairly, and comprising of a polity whose
members are men and women of high integrity and morality. This could
be said to be the hallmark of any free and fair democracy.
27. The Goswami Committee on Electoral Reforms ( 1990) had
addressed the need to curb the growing criminal forces in p olitics in
order to protect the democratic foundation of our country. The Committee
stated that:-
“The role of money and muscle powers at elections deflecting
seriously the well accepted democratic values and ethos and
corrupting the process; rapid criminalisation of politi cs greatly
encouraging evils of booth capturing, rigging, violence etc.; misuse
4Dr Rajendra Prasad, President, Constituent Assembly of India, 26 th November, 1949
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
of official machinery, i.e. official media and ministerial; increasing
menace of participation of non-serious candidates; form the core
of our electoral problems. Urgent corrective measures ar e the
need of the hour lest the system itself should collapse.”
28. Criminalization of politics was never an unknown phenomenon
in the Indian political system, but its presence was seemingly felt in its
strongest form during the 1993 Mumbai bomb blasts which was the
result of a collaboration of a diffused network of criminal gangs, police
and customs officials and their political patrons. The tremors of the said
attacks shook the entire Nation and as a result of the outcry, a Commission
was constituted to study the problem of criminalization of politi cs and
the nexus among criminals, politicians and bureaucrats in India. The
report of the Committee, V ohra (Committee) Report, submitted by Union
Home Secretary, N.N. Vohra, in October 1993, referred to several
observations made by official agencies, including the CBI, IB, R&AW,
who unanimously expressed their opinion on the criminal network which
was virtually running a parallel government. The Committee also took
note of the criminal gangs who carried out their activiti es under the
aegis of various political parties and government functionari es. The
Committee further expressed great concern regarding the fact that over
the past few years, several criminals had been elected t o local bodies,
State Assemblies and the Parliament. The Report observed:-
“In the bigger cities, the main source of income relates to real
estate - forcibly occupying lands/buildings, procur ing such
properties at cheap rates by forcing out the existing occu pants/
tenants etc. Over time, the money power thus acquired is used
for building up contacts with bureaucrats and politicians and
expansion of activities with impunity. The money power is used to
develop a network of muscle-power which is also used by the
politicians during elections.”
And again:-
“The nexus between the criminal gangs, police, bureaucracy and
politicians has come out clearly in various parts of the c ountry.
The existing criminal justice system, which was essen tially
designed to deal with the individual offences /crimes, is unable to
deal with the activities of the Mafia; the provisions of law in regard
economic offences are weak”
169
29. The Election Commission has also remained alive to the issue
of criminalization of politics since 1998. While proposing reforms to tackle
the menace of criminalization of politics, the Former Chief Election
Commissioner, Mr. T.S. Krishna Murthy, highlighted the said issue by
writing thus:-
“There have been several instances of persons charged w ith
serious and heinous crimes like murder, rape, dacoi ty, etc.
contesting election, pending their trial, and even getting elected in
a large number of cases. This leads to a very undesirable a nd
embarrassing situation of lawbreakers becoming lawmakers and
moving around under police protection. The Commission had
proposed that the law should be amended to provide that any
person for five years or more should be disqualified from contesting
election even when trial is pending, provided charges have been
framed against him by the competent court. Such a step would go
a long way in cleansing the political establishment fro m the
influence of criminal elements and protecting the sanctity of the
Legislative Houses” 5
30. In the case of Dinesh Trivedi, M.P. and others v. Union of
India and others 6the court lamented the faults and imperfections which
have impeded the country in reaching the expectations which heralded
its conception. While identifying one of the primary causes, t he Court
referred to the report of N.N. Vohra Committee that was submitted on
5.10.1993. The Court noted that the growth and spre ad of crime
syndicates in Indian society has been pervasive and the criminal elements
have developed an extensive network of contacts at many a sphere.
The Court, further referring to the report, found that the Report reveals
several alarming and deeply disturbing trends that are prevalent in our
present society. The Court also noticed that the nexus between politicians,
bureaucrats and criminal elements in our society has been on the rise,
the adverse effects of which are increasingly being felt on various aspects
of social life in India.
31. In Anukul Chandra Pradhan, Advocate Supreme Court v.
Union of India and others 7, the Court, in the context of the provisions
made in the election law, observed that they have been made to exclude
persons with criminal background, of the kind specified therein, from the
5 https://eci.nicJn/eci_main/PRO POSED _ELECTORAL_REFORMS.pdf
6 (1997) 4 SCC 306
7 (1997) 6 SCC 1
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
election scene as candidates and voters with the obje ct to prevent
criminalization of politics and maintain propriety in elections. Thereafter,
the three-Judge Bench opined that any provision enacted with a view to
promote the said object must be welcomed and upheld as subserving the
constitutional purpose.
32. In K. Prabhakaran v.P. Jayarajan 8, in the context of enacting
disqualification under Section 8(3) of the Act, the Court observed that
persons with criminal background pollute the process of election as they
have no inhibition in indulging in criminality to gain success in an election.
Further, the Court observed:-
“Those who break the law should not make the law. Generally
speaking the purpose sought to be achieved by enact ing
disqualification on conviction for certain offences is to prevent
persons with criminal background from entering into politics and
the house - a powerful wing of governance. Persons with criminal
background do pollute the process of election as they do not have
many a holds barred (sic) and have no reservation from indulging
into criminality to win success at an election.”
33. The Court in Manoj Narula (supra), while observing that
criminalization of politics is an anathema to the sacredness of democracy,
stated thus:-
“A democratic polity, as understood in its quintessential purity, is
conceptually abhorrent to corruption and, especially corruption at
high places, and repulsive to the idea of criminalization of politics
as it corrodes the legitimacy of the collective ethos, frustrates the
hopes and aspirations of the citizens and has the potentialit y to
obstruct, if not derail, the rule of law. Democracy, which has been
best defined as the Government of the People, by the People and
for the People, expects prevalence of genuine orderliness, positive
propriety, dedicated discipline and sanguine sanctity by constant
affirmance of constitutional morality which is the pillar stone of
good governance.
And again: -
“...systemic corruption and sponsored criminalization can corrode
the fundamental core of elective democracy and, consequently,
8 AIR 2005 SC 688
171
the constitutional governance. The agonized concern expressed
by this Court on being moved by the conscious citizens, as is
perceptible from the authorities referred to hereinabove, clea rly
shows that a democratic republic polity hopes and aspires to be
governed by a Government which is run by the electe d
representatives who do not have any involvement in serious
criminal offences or offences relating to corruption, cast eism,
societal problems, affecting the sovereignty of the nation and many
other offences.”
34. The 18 th Report presented to the Rajya Sabha on 15 th March,
2007 by the Department-Related Parliamentary Standing Committee on
Personnel, Public Grievances, Law and Justice on Electoral R eforms
(Disqualification of Persons from Contesting Elections on Fram ing of
Charges Against Them for Certain Offences) acknowle dged the
existence of criminal elements in the Indian polity which hit the roots of
democracy. The Committee observed thus:-
“...the Committee is deeply conscious of the criminalization of
our polity and the fast erosion of confidence of the people at large
in our political process of the day. This will certainly weaken our
democracy and will render the democratic institutions sterile. The
Committee therefore feels that politics should be cle ansed of
persons with established criminal background. The objective is to
prevent criminalisation of politics and maintain probity in elections.
Criminalization of politics is the bane of society and negation of
democracy.”
35. The Chairman of the Law Commission, in the covering letter
of the 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 suggesting
its recommendations to the Government on Electoral Reforms,
an Order was passed by the Hon’ble Supreme Court da ted
16.12.2013 in Public Interest Foundation and Ors. Vs. Union of
India and Anr., vide D.O. No. 4604/2011/SC/PIL(W] dated 21 st
December, 2013.
2. In the aforesaid Order, the Hon’ble Supreme Court noted that
Law Commission may take some time for submitting a
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
comprehensive report on all aspects of electoral reforms. However,
the Hon’ble Court further mentioned that “the issues with regard
to de-criminalization of politics and disqualification for filing false
affidavits deserve priority and immediate consideration” and
accordingly requested the Law Commission to “expedi te
consideration for giving a report by the end of February, 2014, on
the two issues, namely:
1. Whether disqualification should be triggered upon conviction
as it exists today or upon framing of charges by the court or upon
the presentation of the report by the Investigating Officer unde r
Section 173 of the Code of Criminal procedure? [Issue No. 3.1
(ii) of the Consultation Paper], and
2. Whether filing of false affidavits under Section 125A of the
Representation of the People Act, 1951 should be a ground for
disqualification? And if yes, what mode of mechanism needs to
be provided for adjudication on the veracity of the affidavit? [Issue
No.3.5 of the Consultation Paper]”
36. Thereafter, the 244 th Law Commission, while accentuating
the need for electoral reforms, observed that a rep resentative
government, sourcing its legitimacy from the People, who were the
ultimate sovereign, was the kernel of the democratic system envisaged
by the Constitution. Over the time, this has been held to be a part of the
‘basic structure’ of the Constitution, immune to amendment, wit h the
Supreme Court of India declaring that it is beyond the pale of reasonable
controversy that if there be any unamendable features of the Constitution
on the score that they form a part of the basic str ucture of the
Constitution, it is that India is a Sovereign Democratic Republic.
37. The Commission laid stress on the model of representativ e
government based on popular sovereignty which gives rise to its
commitment to hold regular free and fair elections. The importance of
free and fair elections stems from two factors— instrumentally, its central
role in selecting persons who will govern the people, and intrinsically, as
being a legitimate expression of popular will. Emphasi zing on the
importance of free and fair elections in a democratic polit y, reference
was made to the decision in Mohinder Singh Gill v. Chief Election
Commissioner 9 wherein the Court had ruled:-
9 AIR 1978 SC 851
173
“Democracy is government by the people. It is a cont inual
participative operation, not a cataclysmic periodic exercise. The
little man, in his multitude, marking his vote at the poll does a
social audit of his Parliament plus political choice of this proxy.
Although the full flower of participative Government rarely
blossoms, the minimum credential of popular government is appeal
to the people after every term for a renewal of confidence . So
we have adult franchise and general elections as constitutional
compulsions… It needs little argument to hold that the heart of
the Parliamentary system is free and fair elections per iodically
held, based on adult franchise, although social and economic
democracy may demand much more.”
38. The Commission addressed the issue pertaining to the extent
of criminalization in politics and took note of the observations made by
Mr. C. Rajagopalachari who, as back as in 1922, had anticipate d the
present state of affairs twenty-five years before Indep endence, when
he wrote in his prison diary:-
“Elections and their corruption, injustice and tyranny of wealth,
and inefficiency of administration, will make a hell of life as soon
as freedom is given to us...”
39. The Commission also observed that the nature of n exus
changed in the 1970s and instead of politicians having suspected links to
criminal networks, as was the case earlier, it was persons with extensive
criminal backgrounds who began entering politics and this fac t was
confirmed in the Vohra Committee Report in 1993 and again in 2002 in
the report of the National Commission to Review the Working of the
Constitution (NCRWC). The Commission referred to the judgment o f
this Court in Union of India v. Association for Democratic Reforms 10
which had made an analysis of the criminal records of candidates possible
by requiring such records to be disclosed by way of affidavit and this, as
per the Commission, had given a chance to the public to quantitatively
assess the validity of such observations made in the previous report.
40. As per the extent of criminalization that has pervaded Indian
Politics, the Commission observed that in the ten years since 2004, 18%
of the candidates contesting either National or State elect ions have
criminal cases pending against them (11,063 out of 62,847). In 5,253 or
10 (2002) 5 SCC 294
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
almost half of these cases (8.4% of the total candidates anal ysed), the
charges are of serious criminal offences that include murder, attempt to
murder, rape, crimes against women, cases under the Prev ention of
Corruption Act, 1988 or under the Maharashtra Control of Organi sed
Crime Act, 1999 which, on conviction, would result in five years or more
of jail, etc. 152 candidates had 10 or more serious cases pendi ng, 14
candidates had 40 or more such cases and 5 candidates had 50 or more
cases against them. Further, the Commission observed that t he 5,253
candidates with serious cases together had 13,984 serious charges against
them and of these charges, 31% were cases of murder and other murder
related offences, 4% were cases of rape and offences agains t women,
7% related to kidnapping and abduction, 7% related to robbery and dacoity,
14% related to forgery and counterfeiting including of government seals
and 5% related to breaking the law during elections. The Commissi on
was of the further view that criminal backgrounds are not li mited to
contesting candidates, but are found among winners as well, for, of the
5,253 candidates with serious criminal charges against them, 1,187 went
on to winning the elections they contested, i.e., 13.5% of the 8,882 winners
analysed from 2004 to 2013 and overall, including both serious and non-
serious charges, 2,497 (28.4% of the winners) had 9,993 pending criminal
cases against them.
41. Elaborating further, the Commission took note of the fact that
in the current Lok Sabha, 30% or 162 sitting MPs have criminal cases
pending against them, of which about half, i.e., 76 have serious criminal
cases and further, the prevalence of MPs with criminal cases pending
has increased over time as statistics reveal that in 2004, 24% of Lok
Sabha MPs had criminal cases pending which increased to 30% in the
2009 elections and this situation is similar across States with 31% or
1,258 out of 4,032 sitting MLAs with pending cases, with again about
half being serious cases. Not only this, the Commission also observed
that some States have a much higher percentage of MLAs with criminal
records: in Uttar Pradesh, 47% of MLAs have criminal cases p ending
and a number of these MPs and MLAs have been accused of mult iple
counts of criminal charges, for example, in a constituency of Uttar
Pradesh, the MLA has 36 criminal cases pending including 14 cas es
relating to murder. As per the Commission, it is clear from this data that
about one-third of the elected candidates at the Parliament a nd State
Assembly levels in India have some form of criminal taint and also that
175
the data elsewhere suggests that one-fifth of MLAs have pending cases
which have proceeded to the stage of charges being framed a gainst
them by a court at the time of their election. What the Commission
found to be more disturbing was the fact that the percentage of winners
with criminal cases pending is higher than the percentage of candidates
without such backgrounds, as the data reveals that while only 12% of
candidates with a “clean” record win on an average, 23% of candidates
with some kind of criminal record win which implies that candidates
charged with a crime actually fare better in election s than ‘clean’
candidates. This, as per the Commission, has resulted in the tendency
for candidates with criminal cases to be given tickets a second time and
not only do political parties select candidates with criminal backgrounds,
but there is also evidence to suggest that untainted representatives later
become involved in criminal activities and, thus, the inc idence of
criminalisation of politics is pervasive thereby making its remediation an
urgent need.
42. The pervasive contact, in many a way, disturbed the political
parties and this compelled the Law Commission to describe the role of
political parties. It said:-
“Political parties are a central institution of our democracy; “the
life blood of the entire constitutional scheme.” Political parties act
as a conduit through which interests and issues of the people get
represented in Parliament. Since political parties play a central
role in the interface between private citizens and public life, they
have also been chiefly responsible for the growing criminalisation
of politics.”
43. Thereafter, reference was made to the observations of the
170 th report which was also quoted in Subhash Chandra Agarwal v.
Indian National Congress and others 11 by the Central Information
Commission (“CIC”). The said observations are very p ertinent to
describe the position of political parties in our democracy:-
“It is the Political Parties that form the Government , man the
Parliament and run the governance of the country. It is therefore,
necessary to introduce internal democracy, financial transparency
and accountability in the working of the Political Parties. A political
party which does not respect democratic principles in its internal
11 (2013) CIC 8047
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
working cannot be expected to respect those principles in the
governance of the country. It cannot be dictatorship internall y
and democratic in its functioning outside.
x x x
Though the RPA disqualifies a sitting legislator or a candidate on
certain grounds, there is nothing regulating the appointments to
offices within the organisation of the party. Political parties play a
central role in Indian democracy. Therefore, a politician may be
disqualified from being a legislator, but may continue to hold high
positions within his party, thus also continuing to play an important
public role which he has been deemed unfit for by the law.
Convicted politicians may continue to influence law -making by
controlling the party and fielding proxy candidates in legislature.
In a democracy essentially based on parties being controlled by a
high-command, the process of breaking crime-politics ne xus
extends much beyond purity of legislators and encompasses purity
of political parties as well.
….It is suggested that political parties should ref rain from
appointing or allowing a person to continue holding any offic e
within the party organisation if the person has been deemed to
lack the qualities necessary to be a public official. Therefore, the
legal disqualifications that prevent a person from holding office
outside a party should operate within the party as well.”
44. Commenting on the existing legal framework, it opined that
legally, the prevention of entry of criminals into politics is accomplished
by prescribing certain disqualifications that will prevent a person from
contesting elections or occupying a seat in the Parliament or an Assembly
and presently, the qualifications of Members of Parliament are listed in
Article 84 of the Constitution, while the disqualifications can be found
under Article 102. The corresponding provisions for Members of the
State Legislative Assemblies are found in Articles 173 and 191.
45. The Law Commission noted the decisions in Association for
Democratic Reforms (supra), Lily Thomas (supra) and People’s Union
for Civil Liberties v. Union of India 12 and, after referring to the previous
Reports recommending reforms, recommended:-
12 (2003) 4 SCC 399
177
“To tackle the menace of wilful concealment of information or
furnishing of false information and to protect the right to information
of the electors, the Commission recommended that the punishment
under Section 125A of RPA must be made more stringent by
providing for imprisonment of a minimum term of two years and
by doing away with the alternative clause for fine. Additionally,
conviction under Section 125A RPA should be made a part of
Section 8(1)(i) of the Representation of People Act, 1950.”
46. Further, the Commission took note of the observations made
by the Justice J.S. Verma Committee Report on Amendments to Criminal
Law (2013) which proposed insertion of Schedule I to the Representation
of the People Act, 1951 enumerating offences under IPC befitt ing the
category of ‘heinous’ offences and it was also recommended in the said
report that Section 8(1) of the RP Act be amended to cover, i nter alia,
the offences listed in the proposed Schedule 1, and this, in turn, would
provide that a person in respect of whose acts or omiss ions a court of
competent jurisdiction has taken cognizance under Section 190(1)(a),(b)
or (c) of the Cr.PC. or who has been convicted by a court of competent
jurisdiction with respect to the offences specified i n the proposed
expanded list of offences under Section 8(1) shall be disqualified from
the date of taking cognizance or conviction, as the case m ay be. The
Commission also referred to the proposal made in the said Report which
was to the effect that disqualification in case of conviction shall continue
for a further period of six years from the date of release upon conviction
and in case of acquittal, the disqualification shall operate from the date
of taking cognizance till the date of acquittal.
47. The rationale given by the Commission for introducing a
disqualification at the stage of framing of charges was to the following
effect:-
“At the outset, the question that needs to be considered is whether
disqualification should continue to be triggered only at the stage
of conviction as is currently the case under Section 8 of the RPA.
As detailed below, the current law suffers from thr ee main
problems: the rate of convictions among sitting MPs and MLAs is
extremely low, trials of such persons are subject to long delays,
and the law does not provide adequate deterrence to political parties
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
granting tickets to persons of criminal backgrounds. This has
resulted in a massive increase in the presence of criminal elements
in politics, which affects our democracy in very evident ways.”
48. Thereafter, the Commission went on to observe in its Reform
Proposal as to why the stage of framing of charge sheet would not be an
appropriate stage for disqualification. The Commission observed thus:-
“When filing a charge-sheet, the Police is simply forwarding the
material collected during investigation to a competent Co urt of
law for the Court to consider what provisions the accused should
be charged under. At this stage, there is not even a remote o r
prima facie determination of guilt of the accused by a Cour t of
law. At the stage of filing or forwarding the charge-sheet to the
Court, the material which is made a part of the charge-sheet has
not even tested by a competent Court of law and the Judge has
clearly not applied his mind to the said material. Courts have
repeatedly held that a charge-sheet does not consti tute a
substantive piece of evidence as it not yet tested on the an vil of
cross-examination.No rights of hearing are granted to the accused
at this stage. At the stage of filing of charge-sheet , before
summons are issued, the accused does not even have a copy of
the charge-sheet or any connected material.
Disqualifying a person therefore, simply on the basis of something
which he has had no opportunity to look into, or no knowledge of,
would be against the principles of natural justice.
Disqualifying a person at this stage would mean that a person is
penalized without proceedings being initiated against him. This
would be tantamount to granting the judicial determination of the
question of disqualification to the police, who are a prosecuting
authority. At the National Consultation it was agreed by consensus
that this was an inappropriate stage for disqualifi cation of
candidates for elected office.”
49. The Commission then felt that it was worthwhile to discu ss
why the stage of taking of cognizance would be an inappropriate stage
for disqualification and in this regard, the Commission observed that the
taking of cognizance simply means taking judicial notice of an offence
with a view to initiate proceedings in respect of such offence alleged to
179
have been committed by someone and that it is an entirely dif ferent
matter from initiation of proceedings against someone; rathe r, it is a
precondition to the initiation of proceedings. The Commission took the
view that while taking cognizance, the Court has to consider on ly the
material put forward in the charge-sheet and it is not open for the Court
at this stage to sift or appreciate the evidence and come to a conclusion
that no prima facie case is made out for proceeding further in the matter.
Further, at the stage of taking cognizance, the accused has no r ight to
present any evidence or make any submissions and even though t he
accused may provide exculpatory evidence to the police, the la tter is
under no obligation to include such evidence as part of the charge-sheet.
The Commission went on to conclude that the stages of filing of charge
sheet or taking cognizance would be inappropriate and observed thus:-
“Due to the absence of an opportunity to the accused to be heard
at the stage of filing of charge-sheet or taking of cognizance, and
due to the lack of application of judicial mind at this stage, it is not
an appropriate stage to introduce electoral disqualifications. Further,
in a case supposed to be tried by the Sessions Court, it is still the
Magistrate who takes cognizance. Introduction of disqualifications
at this stage would mean that a Magistrate who has been deemed
not competent to try the case still determines whether a p erson
should be disqualified due to the charges filed.
Because of these reasons, it is our view that the filing o f the
police report under Section 173 CrPC or taking of cognizance is
not an appropriate stage to introduce electoral disqualifications...”
50. Thereafter, the Commission proceeded to examine why the
framing of charges is an appropriate stage for disqualification. It we nt
on to make the following observations on this aspect:-
“The Supreme Court, in Debendra Nath Padhi , overruling Satish
Mehra , held that the accused cannot lead any evidence at charging
stage. Thus, the decision of the judge has to be based solel y on
the record of the case, i.e. the investigation report and documents
submitted by the prosecution. Though the determination of framing
of charges is based on the record of the case, the Supreme Court
jurisprudence on Section 227 also imposes certain burdens to be
discharged by the prosecution:
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
“If the evidence which the Prosecutor proposes to adduce to prove
the guilt of the accused even if fully accepted before it is challenged
in cross-examination or rebutted by the defence evidence; if any,
cannot show that the accused committed the offence then there
will be no sufficient ground for proceeding with the trial.”
51. The Commission was of the view that additionally, the burden
on the prosecution at the stage of framing of charges also involves proving
a prima facie case and as per the decision in State of Maharashtra v.
Som Nath Thapa 13 , a prima facie case is said to be in existence “if
there is ground for presuming that the accused has com mitted the
offence.” Further, the Commission observed that in order to establish a
prime facie case, the evidence on record should raise not merely some
suspicion with regard to the possibility of conviction, but a “grave”
suspicion and to corroborate its view, the Commission ref erred to the
observations in Union of India v. Prafulla Kumar Samal14 which were
to the following effect:-
“If two views are possible and the Judge is satisfied th at the
evidence produced before him while giving rise to some suspicion
but not grave suspicion against the accused, he will be fully within
his right to discharge the accused.”
52. After so analysing, the Commission concluded that since the
stage of framing of charges is based on substantial level of judicial
scrutiny, a totally frivolous charge will not stand such sc rutiny and
therefore, given the concern of criminalisation of poli tics in India,
disqualification at the stage of framing of charges is ju stified having
substantial attendant legal safeguards to prevent misuse. The Commission
buttressed the said view on the following grounds:-
“As explained above, the Supreme Court has made it clear that
the framing of charges under Section 228 of the CrPC requires
an application of judicial mind to determine whether there ar e
sufficient grounds for proceeding against the accused. Fur ther,
the burden of proof at this stage is on the prosecution who must
establish a prima facie case where the evidence on record raises
‘grave suspicion’. Together, these tests offer protection ag ainst
false charges being imposed.
13 (1996) 4 SCC 659
14 (1979) 3 SCC 4
181
In addition to the safeguards built in at the stage of fra ming of
charges, an additional option is available in the shape of Section
311 of the Code of Criminal Procedure. Section 311 grants power
to the Court to summon or examine any person at any stag e of
the trial if his evidence appears essential to the just decision of the
case. Although this section is not very widely used, and the
Supreme Court has cautioned against the arbitrary exerc ise of
this power, it grants wide discretion to the court which may even
be exercised suomotu. This section may be used by the Court to
examine additional evidence before framing charges where the
consequence of such framing may disqualify the candidate.
The framing of charges is therefore not an automatic step in the
trial process, but one that requires a preliminary level of judicial
scrutiny. The provisions in the CrPC require adequate consideration
of the merits of a criminal charge before charges are f ramed by
the Court. The level of scrutiny required before charges are framed
is sufficient to prevent misuse of any provision resul ting in
disqualification from contesting elections.
Moreover enlarging the scope of disqualifications to include the
stage of framing of charges in certain offences does not infringe
upon any Fundamental or Constitutional right of the candidate.
RPA creates and regulates the right to contest and be electe d as
a Member of Parliament or a State Legislature. From the e arly
years of our democracy, it has been repeatedly stressed by the
Supreme Court that the right to be elected is neither a fundamental
nor a common law right. It is a special right created by the statute
and can only be exercised on the conditions laid down by the
statute. Therefore, it is not subject to the Fundamental Rights
chapter of the constitution.”
53. While addressing the three concerns, namely, misuse, lack of
remedy for the accused and the sanctity of criminal jurisprudence, t he
Commission stated that none of these concerns posse ss sufficient
argumentative weight to displace the arguments in the previous section
as although misuse is certainly a possibility, yet the same does not render
a proposal to reform the law flawed in limine. Further, t he Supreme
Court has repeatedly pointed out in the context of statutory power vested
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
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in an authority that the possibility of misuse of power is not a reason to
not confer the power or to strike down such provision. It observed:-
“Similarly a potential fear of misuse cannot provide justification
for not reforming the law per se. It does point to the requirement
of instituting certain safeguards, circumscribing the conditio ns
under which such disqualification will operate…Though there is a
view that the accused has limited rights at the stage of framing of
charge, the legal options available to him are fairly substantial. As
the previous section shows, the stage of framing of ch arges
involves considerable application of judicial mind, gives the accused
an opportunity to be heard, places the burden of proof on the
prosecution to demonstrate a prima facie case and will l ead to
discharge unless the grounds pleaded are sufficient for the matter
to proceed to trial. Thus it is not as if the accused has no remedy
till charges are framed—on the contrary, he has several legal
options available to him prior to this stage.
Finally, though criminal jurisprudence presumes a man innocent
till proven otherwise, disqualifying a person from cont esting
elections at the stage of framing of charges does not fall foul of
this proposition. Such a provision has no bearing on whether indeed
the person concerned is guilty of the alleged offence or not. On
the contrary, it represents a distinct legal determinat ion of the
types of persons who are suitable for holding representative public
office in India. Given the proliferation of criminal eleme nts in
Parliament and State Assemblies, it is indicative of a public resolve
to correct this situation. Further, the existing provisions which
disqualify persons on conviction alone have been unable to achieve
this task. Thus it is now strongly felt that it is essential to disqualify
those persons who have had criminal charges framed against them
by a court of competent jurisdiction, subject to certain safeguards,
from contesting in elections. Such a determination of suitability
for representative office has no bearing on his guilt or innocence
which can, and will, only be judged at the criminal trial. To conflate
the two and thereby argue that the suggested reform is
jurisprudentially flawed would be to make a category mistake.”
54. However, the Commission proposed certain safeguards in the
form of limiting the disqualification to operate only in c ertain cases,
183
defining cut-off period and period of applicability. The reasons for ensuring
such safeguards as laid out in the report as are follows:
“….Limiting the offences to which this disqualification applies
has two clear reasons, i.e. those offences which are of such nature
that those charged with them are deemed unsuitable to be people’s
representatives in Parliament or State Legislatures are included
and the list is circumscribed optimally to prevent misuse to the
maximum extent possible……
…All offences which have a maximum punishment of five years
or more ought to be included within the remit of this provision.
Three justifications support this proposal: first, all offences widely
recognised as serious are covered by this provision. This includes
provisions for murder, rape, kidnapping, dacoity, corruption under
the Prevention of Corruption Act and other crimes of a na ture
that justify those charged with them being disqualified from holding
public office. Second, the data extracted above demonstrates that
a large portion of offences for which MPs, MLAs and contesting
candidates face criminal prosecutions relate to such provis ions.
Thus the reformed provision will ensure that such candidates are
disqualified thereby creating a significant systemic impact. Third,
it has the benefit of simplicity—by prescribing a standa rd five-
year period, the provision is uniform and not contingent on specific
offences which may run the risk of arbitrariness. The unifo rm
five-year period thus makes a reasonable classification— between
serious and non-serious offences and has a rational nexus with its
object—preventing the entry of significantly criminal elements into
Parliament and State Legislature.”
55. With regard to laying down the safeguard of defining a cut-off
period, the Commission observed thus:-
“An apprehension was raised that introducing such a
disqualification will lead to a spate of false cases in which charges
might be framed immediately prior to an election with the sole
intention of disqualifying a candidate. This is sought to be offset
by a cut-off period before the date of scrutiny of nomination for
an election, charges filed during which period, will not at tract
disqualification. The basis for this distinction is clear— to prevent
false cases being filed against political candidates.
x x x
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
….The cut-off period should be one year from the date of scrutiny
of the nomination, i.e. charges filed during the one year period
will not lead to disqualification. We feel that one year is an
appropriate time-frame. It is long enough so that false cha rges
which may be filed specifically to disqualify candidates will not
lead to such disqualification; at the same time it is not excessively
long which would have made such disqualification redundant. It
thus allows every contesting candidate at minimum a one yea r
period to get discharged. It thus strikes an appropriate balance
between enlarging the scope of disqualification while at the same
time seeks to disincentivise the filing of false cases solely with the
view to engineer disqualification.”
56. Another safeguard in the form of period of applicability was
also proposed by the Commission which prescribes a time pe riod or
duration for which the said disqualification applies. It provides as follows:-
“For convictions under Section 8(1) a person is disqualified for six
years from conviction in case he is punished only with a fine or
for the duration of the imprisonment in addition to six years starting
from his date of release. For convictions under Section 8(2) and
8(3) he is disqualified simply for the duration of his imprisonment
and six years starting from the date of release. Gi ven that
disqualifications on conviction have a time period specified, it would
be anomalous if disqualification on the framing of charges omitted
to do so and applied indefinitely. It is thus essential that a time
period be specified….”
57. The rationale provided for fixing the time period as above was
given in the following terms:-
“…170 th Law Commission under the Chairmanship of Justice B
P Jeevan Reddy. In this report the specified period of disqualification
was suggested to be five years from the date of framing of charge,
or acquittal, whichever is earlier.
...We find great merit in this proposal. However it must be noted
that the report did not recommend a cut-off period before t he
election, a charge framed during which would not lead to
disqualification. Thus the rationale behind the five-year period was
that the charged person would at least be disqualifie d from
contesting in one election.
185
This however will not be the case if a one-year cut off period is
created. This is because if a person has a charged framed against
him six months before an election, then he will not disqualified
from this election because it is within the protected window. A t
the same time, assuming that the next election is five years later
(which is a standard assumption) then he will not be disqualified
from the second election as well because five years from t he
date of framing of charge will have lapsed by then. To take into
account the effect of this cut-off period, it is thus recommended
that the period of disqualification is increased to six year s from
the date of framing of charge or acquittal whichever is earlier.
The rationale for this recommendation is clear: if a p erson is
acquitted, needless to say the disqualification is lifted from t hat
date. If he is not, and the trial is continuing, then the six-yea r
period is appropriate for two reasons— first, it is long enough to
ensure that the enlarged scope of disqualification has enoug h
deterrent effect. A six-year period would at least ensure t hat a
person will be disqualified from one election cycle thereby serving
as a real safeguard against criminals entering politics. At the same
time it is the same as the period prescribed when a per son is
disqualified on conviction for certain offences, which such provision
is comparable to. It thus has the added merit of uniformit y. For
these reasons, it is recommended that in the event of a char ge
being framed in respect of the enumerated offences against a
person, he will be disqualified from contesting in elections for a
period of six years from the date of framing of charge or t ill
acquittal whichever is earlier, provided that the charge has not
been framed within the protected window before an election.”
58. The eventual recommendations and proposed Sections by the
Law Commission read as follows:-
“1. x x x x x
2. The filing of the police report under Section 173 Cr.PC is not
an appropriate stage to introduce electoral disqualifications owing
to the lack of sufficient application of judicial mind at this stage.
3. The stage of framing of charges is based on adequate levels of
judicial scrutiny, and disqualification at the stage of charging, if
accompanied by substantial attendant legal safeguards to prevent
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INDIA & ANR. [DIPAK MISRA, CJI]
misuse, has significant potential in curbing the sp read of
criminalisation of politics.
4. The following safeguards must be incorporated in to the
disqualification for framing of charges owing to potential for misuse,
concern of lack of remedy for the accused and the sanctit y of
criminal jurisprudence:
i. Only offences which have a maximum punishment of five
years or above ought to be included within the remit of this
provision.
ii. Charges filed up to one year before the date of scrutiny of
nominations for an election will not lead to disqualification.
iii. The disqualification will operate till an acquittal by the trial
court, or for a period of six years, whichever is earlier.
iv. For charges framed against sitting MPs/ MLAs, the trials
must be expedited so that they are conducted on a day-to-day
basis and concluded within a 1-year period. If trial not concluded
within a one year period then one of the following consequences
ought 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 a member ,
remuneration and other perquisites attaching to their office shall
be suspended at the expiry of the one-year period.
5. Disqualification in the above manner must apply retroactively
as well. Persons with charges pending (punishable by 5 years or
more) on the date of the law coming into effect must be disqualified
from contesting future elections, unless such charges are framed
less than one year before the date of scrutiny of nomination papers
for elections or the person is a sitting MP/MLA at the t ime of
enactment of the Act. Such disqualification must tak e place
irrespective of when the charge was framed.
x x x
1. There is large-scale violation of the laws on candidate affidavits
owing to lack of sufficient legal consequences. As a result, the
following changes should be made to the RPA:
187
i. Introduce enhanced sentence of a minimum of two years
under Section 125A of the RPA Act on offence of filing false
affidavits
ii. Include conviction under Section 125A as a ground of
disqualification under Section 8(1) of the RPA.
iii. Include the offence of filing false affidavit as a cor rupt
practice under S. 123 of the RPA.
2. Since conviction under Section 125A is necessary for
disqualification under Section 8 to be triggered, the Supreme Court
may be pleased to order that in all trials under Section 125A, the
relevant court conducts the trial on a day-to-day basis
3. A gap of one week should be introduced between the last date
for filing nomination papers and the date of scrutiny, t o give
adequate time for the filing of objections to nomination papers.”
59. The aforesaid recommendations for proposed amendment
never saw the light of the day in the form of a law enacted by a competent
legislature but it vividly exhibits the concern of the socie ty about the
progressing trend of criminalization in politics that has the proclivity and
the propensity to send shivers down the spine of a c onstitutional
democracy.
60. Having stated about the relevant —-aspects of t he Law
Commission Report and the indifference shown to it, the learned counsel
for the petitioners and intervenors have submitted that certain directions
can be issued to the Election Commission so that the purity of democracy
is strengthened. It is urged by them that when the Election Commission
has been conferred the power to supervise elections, it can control party
discipline of a political party by not encouraging candidates with criminal
antecedents.
Role of Election Commission
61. Article 324 of the Constitution lays down the power of the
Election Commission with respect to superintendence, direc tion and
control of elections and reads thus:-
“324. Superintendence, direction and control of elec tions
to be vested in an Election Commission:— (1) The
superintendence, direction and control of the preparation of the
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
electoral rolls for, and the conduct of, all elections to Parliament
and to the Legislature of every State and of elections to the offices
of President and Vice President held under this Constitution shall
be vested in a Commission (referred to in this Constitution as the
Election Commission).
(2) The Election Commission shall consist of the Chief Election
Commissioner and such number of other Election Commissioners,
if any, as the President may from time to time fix and the
appointment of the Chief Election Commissioner and other Election
Commissioners shall, subject to the provisions of any law made in
that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the
Chief Election Commissioner shall act as the Chairman of the
Election Commission.
(4) Before each general election to the House of the People and
to the Legislative Assembly of each State, and before the f irst
general election and thereafter before each biennial electi on to
the Legislative Council of each State having such Council, the
President may also appoint after consultation with the Ele ction
Commission such Regional Commissioners as he may consider
necessary to assist the Election Commission in the performance
of the functions conferred on the Commission by clause (1).
(5) Subject to the provisions of any law made by Parliament, the
conditions of service and tenure of office of the E lection
Commissioners and the Regional Commissioners shall be such as
the President may by rule determine; Provided that the Chief
Election Commissioner shall not be removed from his office except
in like manner and on the like grounds as a Judge of the Supreme
Court and the conditions of service of the Chief El ection
Commissioner shall not be varied to his disadvantage after his
appointment:
Provided further that any other Election Commissione r or a
Regional Commissioner shall not be removed from office except
on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a State, shall, when so
requested by the Election Commission, make available to the
189
Election Commission or to a Regional Commissioner such staff
as may be necessary for the discharge of the functions conferred
on the Election Commission by Clause (1).”
62. This Court in a catena of judgments has elucidated upon the
role of the Election Commission and the extent to which it can exercise
its power under the constitutional framework.
63. In Election Commission of India and another. v. Dr.
Subramaniam Swamy and another 15 , this Court ruled that the
opinion of the Election Commission is a sine qua non for the Governor
or the President, as the case may be, to give a decision on the question
whether or not the concerned member of the House of the Leg islature
of the State or either House of Parliament has incurred a 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, the
Governor shall obtain the opinion of the Election Commission
and shall act according to such opinion.
It is clear from the use of the words ‘shall obtain’ the opinion of
the Election Commission, that it is obligatory to obtain the opinion
of the Election Commission and the further stipulation that the
Governor “shall act” according to such opinion leaves no room
for doubt that the Governor is bound to act according to that opinion.
The position in law is well settled by this Court’s deci sion in
Brundaban v. Election Commission, [1965] 3 SCR 53 wherein
this Court held that it is the obligation of the Governor to take a
decision in accordance with the opinion of the Elec tion
Commission. It is thus clear on a conjoint reading of the two clauses
of Article 192 that once a question of the type mentioned in t he
first clause is referred to the Governor, meaning thereby is raised
before the Governor, the Governor and the Governor alone must
decide it but this decision must be taken after obtaining the opinion
of the Election Commission and the decision which is made final
is that decision which the Governor has taken in accordance with
the opinion of the Election Commission. In effect and substance
the decision of the Governor must depend on the opinion of the
Election Commission and none else, not even the Council of
15 (1996) 4 SCC 104
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INDIA & ANR. [DIPAK MISRA, CJI]
Ministers. Thus the opinion of the Election Commission is decisive
since the final order would be based solely on that opinion.
8. The same view came to be expressed in the case of Election
Commission of India v. N.G. Ranga, [1979] 1 SCR 210, while
interpreting Article 103(2) of the Constitution, the language thereof
is verbatim except that instead of the Governor in Article 192(2),
here the decision has to be made by the President. So also t he
language of Articles 192(1) and 103(1) is identical except for the
same change. The Constitution Bench of this Court reiterated
that the President was bound to seek and obtain the opinion of the
Election Commission and only thereafter decide the issue in
accordance therewith. It other words, it is the Ele ction
Commission’s opinion which is decisive.”
64. In Mohinder Singh Gill (supra), Krishna Iyer J. opined:-
“12. The scheme is this. The President of India (Under Secti on
14) ignites the general elections across the nation by calling upon
the People, divided into several constituencies and registere d in
the electoral rolls, to choose their representatives to the Lok Sabha.
The constitutionally appointed authority, the Election Commission,
takes over the whole conduct and supervision of the mammoth
enterprise involving a plethora of details and variety of activities,
and starts off with the notification of the time table for the several
stages of the election (Section 30).’ The assembly line operations
then begin. An administrative machinery and technology to execute
these enormous and diverse jobs is fabricated by the Act, creating
officers, powers and duties, delegation of functions and location
of polling stations. The precise exercise following upo n the
calendar for the poll, commencing from presentation of nomination
papers, polling drill and telling of votes, culminating in the declaration
and report of results are covered by specific prescriptions in the
Act and the rules. The secrecy of the ballot, the authentic ity of
the voting paper and its’ later identifiability with re ference to
particular polling stations, have been thoughtfully provided for.
Myriad other matters necessary for smooth elections have be en
taken care of by several provisions of the Act.”
65. Further, the Court observed in Mohinder Singh Gill (supra)
that a re-poll for a whole constituency under compulsion of circumstances
191
may be directed for the conduct of elections and can be saved by Article
324 provided it is bona fide and necessary for the vindication of the free
verdict of the electorate and the abandonment of the previous poll was
because it failed to achieve that goal. The Court ruled that even Article
324 does not exalt the Commission into a law unto itself. Broad authority
does not bar scrutiny into specific validity of a particular order. Having
said that, the Court passed the following directions:-
“2(a) The Constitution contemplates a free and fair election and
vests comprehensive responsibilities of superintendence, direction
and control of the conduct of elections in the Election Commission.
This, responsibility may cover powers, duties and functions of
many sorts, administrative or other, depending on t he
circumstances.
(b) Two limitations at least are laid on its plenary character in the
exercise thereof. Firstly, when Parliament or any State Legislature
has made valid law relating to or in connection with elections, the
Commission shall act in conformity with, not in violation of such
provisions but where such law is silent Article 324 is a reservoir
of power to act for the avowed purpose of, not divorced from
pushing forward a free and fair election with expedition- Secondly,
the Commission shall be responsible to the rule of law, act bona
fide and be amenable to the norms of natural justice in so far as
conformance to such canons can reasonably and realistically be
required of it as fairplay-in-action in a most important area of the
constitutional order, viz., elections. Fairness does imp ort an
obligation to see that no wrong-doer candidate benefits by hi s
own wrong. To put the matter beyond doubt natural justice enlivens
and applies to the specific case of order for total repoll although
not in full panoply but inflexible practicability. Whether it has been
complied with is left open for the Tribunal adjudication.”
66. In the concurring judgment in Mohinder Gill(supra), Goswami,
J., with regard to Article 324, observed thus in para 113:-
“...Since the conduct of all elections to the various legislative bodies
and to the offices of the President and the Vice-President is vested
under Article 324(1) in the Election Commission, the framers of
the Constitution took care to leaving scope for exercise of residuary
power by the Commission, in its own right, as a creature of the
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
Constitution, in the infinite variety of situations that may emerge
from time to time in such a large democracy as ours. Ev ery
contingency could not be foreseen, or anticipated with precision.
That is why there is no hedging in Article 324. The Commission
may be required to cope with some situation which may not be
provided 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 exercise
powers of superintendence, direction and control of preparation
of electoral rolls and the conduct of elections to Parliament a nd
State legislatures but then the Article has to be read harmoniously
with the Articles that follow and the powers that are given to the
Legislatures 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 the
conduct of elections cannot take upon itself a purely legi slative
activity which has been reserved under the scheme o f the
Constitution only to Parliament and the State legislatures. By no
standards can it be said that the Commission is a third Chamber in
the legislative be process within the scheme of the Constitution.
merely being a creature of the Constitution will not give it plenary
and absolute power to legislate as it likes without reference to the
law enacted by the legislatures. ”
[Emphasis added]
68. In Association for Democratic Reforms (supra), the Court
opined:-
“Under Article 324, the superintendence, direction and control of
the ‘conduct of all elections’ to Parliament and to the Legislature
of every State vests in Election Commission. The phrase ‘conduct
of elections’ is held to be of wide amplitude which would include
power to make all necessary provisions for conducting free and
fair elections.”
16 AIR 1984 SC 921
193
69. In Kuldip Nayar v. Union of India and others 17 , this
Court has observed:-
“181. It has been argued by the petitioners that the Ele ction
Commission of India, which under the Constitution has been given
the plenary powers to supervise the elections freely and fa irly,
had opposed the impugned amendment of changing the secret
ballot system. Its view has, therefore, to be given proper weightage.
In this context, we would say that where the law on the subject is
silent, Article 324 is a reservoir of power for the Election
Commission to act for the avowed purpose of pursuing the goal
of a free and fair election, and in this view it also assumes the role
of an adviser. But the power to make law under Article 327 vests
in the Parliament, which is supreme and so, not bound by suc h
advice. We would reject the argument by referring to what t his
Court has already said in Mohinder Singh Gill (supra) and what
bears reiteration here is that the limitations on the exercise of
“plenary character” of the Election Commission include one to
the effect that “when Parliament or any State Legisl ature has
made valid law relating to or in connection with elections, the
Commission, shall act in conformity with, not in violation of, such
provisions.”
70. The aforesaid decisions are to be appositely appreciated. There
is no denial of the fact that the Election Commission has th e plenary
power and its view has to be given weightage. That apart, it has power
to supervise the conduct of free and fair election. Howeve r, the said
power has its limitations. The Election Commission has to act in
conformity with the law made by the Parliament and it cannot transgress
the same.
71. It is submitted by Mr. Krishnan Venugopal, learned senior
counsel appearing for the petitioner in Writ Petition (Civil) No. 800 of
2015 that traditionally, the Court would not breach the principl e of
separation of powers, however, this cannot prevent this Court from
passing necessary directions to address the systemic growth of the
problem of criminalization of politics and the political system without
breaching the principle of separation of powers and this Court, in order
to discharge its constitutional function, can give directions to the Election
17 (2006) 7 SCC 1
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
Commission to exercise its powers under Article 324 of the Constitution
to redress violation of the fundamental rights and to protect the purity of
the electoral process. Mr. Venugopal contends that in the past too, this
Court, on several instances, had given directions t o the Election
Commission. He has also pointed out that the reason behind the urgent
need for this Court to intervene to tackle the growi ng menace of
criminalization of politics is that several law commissi on reports and
other papers have unanimously concluded that there is w idespread
criminalization of politics and this Court has also taken cogni zance of
this fact in several of its judgments, but despite the said reports and the
efforts of this Court, neither the Parliament nor the Government of India
has taken serious actions to tackle the problem.
72. Further, Mr. Venugopal has drawn the attention of this Court
to the findings in the Report titled ‘Milan Vaishnav, When crime pays:
Money and Muscle in Indian Politics” 18 to highlight that there is an
alarming increase in the number of candidates with criminal antecedents
and their chances of winning have actually increased steadily over the
years and there is ample evidence in the form of statisti cal data which
reinstates this fact.
73. On that basis, it is contended that the empirical ev idence
supports the view that the current legislative framework permits criminals
to enter the electoral arena and become legislators which interferes with
the purity and integrity of the electoral process, violates the right to choose
freely the candidate of the voter’s choice thereby violating the freedom
of expression of a voter and amounts to a subversion of democ racy
which is a part of the basic structure and is, thus, antithetical to the Rule
of Law.
74. Mr. Venugopal’s submission has been supported by Mr. Dinesh
Dwivedi, learned senior counsel appearing for the petitioners in Writ
Petition (Civil) No. 536 of 2011 and Mr. Sidharth Luthra, learned Amicus
Curiae, to the effect that if the Court does not intend to in corporate a
prior stage in criminal trial, it can definitely direct the Election Commission
to save democracy by including some conditions in the Election Symbols
(Reservation and Allotment) Order, 1968 (hereinafter referred to as ‘the
Symbols Order’). The submission is that a candidate agai nst whom
criminal charges have been framed in respect of heinous an d grievous
offences 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 Press
University, New Haven (2017)
195
It is urged that the direction would not amount to adding a disqualification
beyond what has been provided by the legislature but would only deprive
a candidate from contesting with the symbol of the political party.
75. The aforesaid submission is seriously opposed by the learned
Attorney General. It is the case of the first respondent that Section 29A
of the Act does not permit the Election Commission of India to
deregister a political party. To advance this view, the Union of India has
relied 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 tha t the
power of this Court to issue directions to the Election Commi ssion of
India have been elaborately dealt with in Association for Democratic
Reforms (supra) wherein this Court held that Article 32 of the
Constitution of India only operates in areas left unoccupied by legislation
and in the case at hand, the Constitution of India and the Representation
of the People Act, 1951 already contain provisions for disqualification of
Members of Parliament. Therefore, directing the Election Commission
to (a) deregister a political party, (b) refuse renewal of a political party
or (c) to not register a political party if they associate thems elves with
persons who are merely charged with offences would amount to adopting
a colourable route, that is, doing indirectly what is clearly prohibited under
the Constitution of India and the Representation of the People Act.
77. It is also contended on behalf of the Union of India that adding
a condition to the recognition of a political party under the Symbols Order
would also result in doing indirectly what is clearly prohibited. To buttress
this stand, the Union of India has cited the decisions in Jagir Singh v.
Ranbir Singh and another 20 and M.C. Mehta v. Kamal Nath and
others 21 .
78. Further, it has been submitted by the first respondent that
Section 29A(5) of the Act is a complete, comprehensive and unambiguous
provision of law and any direction to the Election Commission of India to
deregister or refuse registration to political part ies who associate
themselves with persons merely charged with offences would result in
violation of the doctrine of separation of powers as that would tantamount
to making addition to a statute which is clear and unambiguous.
19 (2002) 5 SCC 685
20 (1979) 1 SCC 560
21 (2000) 6 SCC 213
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
79. As per the first respondent, ‘pure law’ in the nature of
constitutional provisions and the provisions of the Act cannot be
substituted or replaced by judge made law. To advance the said stand,
the first respondent has cited the judgments of this Court in State of
Himachal Pradesh and others v. Satpal Saini 22 and Kesavananda
Bharati v. State of Kerala and another 23 wherein the doctrine of
separation of powers was concretised by this Court. It is the contention
of the first respondent that answering the present re ference in the
affirmative would result in violation of the doctrine of separ ation of
powers.
80. The first respondent has also contended that the presumption
of innocence until proven guilty is one of the hallmarks o f Indian
democracy and the said presumption attaches to every person who has
been charged of any offence and it continues until the person has been
convicted after a full-fledged trial where evidence is led. Penal
consequences cannot ensue merely on the basis of charge.
81. Drawing support from the judgment of this Court in Amit
Kapoor v. Ramesh Chander and another 24 , it is averred by the first
respondent that the standard of charging a person is always less than a
prima facie case, i.e., a person can be charged if the facts emerging
from the record disclose the existence of all the ingredients constituting
the alleged offence and, therefore, the consequences of ho lding that a
person who is merely charged is not entitled to membership of a political
party would be grave as it would have the effect of taking away a very
valuable advantage of the symbol of the political party.
82. It has been further contended by the first respondent that
every citizen has a right under Article 19(l)(c) to form associations which
includes the right to be associated with persons who are ot herwise
qualified to be Members of Parliament under the Constitution of India
and under the law made by the Parliament. Further, this right can only
be restricted by law made by the Parliament and any direction issued by
the Election Commission of India under Article 324 is not law f or the
purpose of Article 19(l)(c).
83. The first respondent also submits that the Act already contains
detailed provisions for disclosure of information by a candidat e in the
22 (2017) 11 SCC 42
23 (1973) 4 SCC 225
24 (2012) 9 SCC 460
197
form of Section 33A which requires every candidate t o disclose
information pertaining to offences that he or she is accused of. This
information is put on the website of the Election Commission of India
and requiring every member of a political party to disclose such
information irrespective of whether he/she is contesting elect ion will
have 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 that
Article 142 of the Constitution of India does not empower this Court to
add words to a statute or read words into it which are not ther e and
Article 142 does not confer the power upon this Court to make law.
85. As regards the issue that there is a vacuum which necessitates
interference of this Court, the first respondent has contende d that this
argument is untenable as the provisions of the Constitution and the Act
are clear and unambiguous and, therefore, answering the question referred
to in the affirmative would be in the teeth of the doctrine of separation of
powers and would be contrary to the provisions of the Constitution and
to the law enacted by the Parliament.
Analysis of the Election Symbols Order
86. In the adverting situation and keeping in view the submissions
on the behalf of the petitioners, it is pertinent to sca n and analyse the
relevant provisions of the Symbols Order which deals with allotment,
classification, choice of symbols by candidates and restrictio n on the
allotment of symbols. Clause (4) of the Symbols Order reads:-
“4. Allotment of symbols – In every contested election a symbol
shall be allotted to a contesting candidate in accordance with the
provisions of this Order and different symbols shall be allotted to
different contesting candidates at an election in t he same
constituency.”
87. Clause (4) of the Symbols Order makes it clear that in e ach
and every contested election, a symbol, to each and every contest ing
candidate, shall be allotted in accordance with the provision s of this
Symbols Order and in case of an election in the same constit uency,
25 (1992) Supp (1) 323
26 (1998) 4 SCC 409
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
different symbols shall be allotted to different contesting candidates.
Now, we must also dissect clause (5) of the Symbols Order which reads:-
“5. Classification of symbols – (1) For the purpose of this Order
symbols are either reserved or free.
(2) Save as otherwise provided in this Order, a reserved symbol is
a symbol which is reserved for a recognised political par ty for
exclusive allotment to contesting candidates set up by that party.
(3) A free symbol is a symbol other than a reserved symbol.”
88. Sub-clause (1) of clause (5) of the Symbols Order, a pr iori,
segregates the symbols for the purposes of this Symbols Order into two
simon pure categories, i.e., ‘Reserved’ or ‘Free’. Theref ore, a symbol
under the Symbols Order can either be reserved or it can be free. Before
decoding sub-clause (2) of clause (5), we may first decipher sub-clause
(3) which gives a negative definition to a free symbol. As per sub-clause
(3) of clause (5), a symbol is free if is not reserved under the Symbols
Order. Sub-clause (2) of clause (5) which defines a reserv ed symbol
stipulates that except as otherwise provided in the Symbols Or der, a
reserved symbol is one which is reserved for a recognised political party
for exclusive allotment to the contesting candidates set up by such political
party.
89. Thereafter, clause (6) classifies political parties into state
parties and national parties. Clauses (6A) and (6B) stipulate the conditions
for recognition of state and national parties, respectively. Under clause
(17) of the Symbols Order the Election Commission publis hes, by
notification in the Official Gazette of India, the national parties, State
parties and the symbols reserved for them. Clause (17) reads as under:-
“17. Notification containing lists of political par ties and
symbols –
(1) The Commission shall by one or more notifications in the
Gazette of India publish lists specifying-
(a) the National Parties and the symbols respectively re served
for them;
(b) the State Parties, the State or States in which they a re State
Parties and the symbols respectively reserved for them in such
State or States;
x x x”
199
90. Another important provision in the matter of choice of symbols
by candidates and restriction on the allotment thereof is clause (8) of the
Symbols Order which reads thus:-
“8. Choice of symbols by candidates of National and State
Parties and allotment thereof –
(1) A candidate set up by a National Party at any election in any
constituency in India shall choose, and shall be allotted, the symbol
reserved for that party and no other symbol.
(2) A candidate set up by a State Party at an election in any
constituency in a State in which such party is a State Party, shall
choose, and shall be allotted the symbol reserved for that Party in
that State and no other symbol.
(3) A reserved symbol shall not be chosen by, or allotted to, any
candidate in any constituency other than a candidate set up by a
National Party for whom such symbol has been reserved or a
candidate set up by a State Party for whom such symbol h as
been reserved in the State in which it is a State Party ev en if no
candidate has been set up by such National or State Party in that
constituency.”
91. For exegesis of clause (8) of the Symbols Order, it is apt that
we refer to clause (13) which provides as to when a candidate is deemed
to be set up by a political party. Clause (13) reads as under:-
“13. When a candidate shall be deemed to be set up by a
political party.¯ For the purposes of an election from any
parliamentary or assembly constituency to which this Order applies,
a candidate shall be deemed to be set up by a political party in any
such parliamentary or assembly constituency, if, and only if,-
(a) the candidate has made the prescribed declaration to this effect
in his nomination paper;
(aa) the candidate is a member of that political party and his name
is borne on the rolls of members of the party;
(b) a notice by the political party in writing, in Form B, to t hat
effect has, not later than 3 p.m. on the last date for making
nominations, been delivered to the Returning Officer of the
constituency;
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
(c) the said notice in Form B is signed by the Presiden t, the
Secretary or any other office bearer of the party, and the President,
Secretary or such other office bearer sending the notice has been
authorised by the party to send such notice;
(d) the name and specimen signature of such authorised p erson
are communicated by the party, in Form A, to the Returning Officer
of the constituency and to the Chief Electoral Officer of the State
or Union Territory concerned, not later than 3 p.m. on the la st
date for making nominations; and
(e) Forms A and B are signed, in ink only, by the said office bearer
or person authorised by the party:
Provided that no facsimile signature or signature by means of
rubber stamp, etc., of any such office bearer or authorised person
shall be accepted and no form transmitted by fax sh all be
accepted.”
92. Clause (13) lays down an elaborate procedure in order for a
candidate to be set up by a political party in both the ele ctions to the
Parliament as well as the Assembly constituencies.
93. Coming back to clause (8) of the Symbols Order, as per sub-
clause (1) of clause (8), a candidate set up by a national party in terms
of clause (13) in any constituency in India shall choose the sy mbol
reserved for such national party and no other symbol. By using the word
‘shall’, sub-clause (1) of clause (8) makes it mandatory for a candidate
set up by a national party to choose the symbol reserved for such national
party. Further, sub-clause (1), again on a second instance, by using the
word ‘shall’ in the context of the Election Commission, makes it obligatory
for the Election Commission to allot to a candidate set up by a national
party the symbol reserved for such national party. Therefore, sub-clause
(1) by casting this duty on the Election Commission, as a natural corollary,
gives birth to a right to the candidate set up by a national party to contest
elections under the symbol reserved for such national party.
94. That apart, the first part of sub-clause (3) of clause (8) stipulates
that a symbol reserved, in terms of clause (5) read with cla use (17) of
the Symbols Order, shall neither be chosen by nor allotted by the Election
Commission to any candidate in any constituency other than a candidate
set up by a national party.
201
95. Sub-clause (2) of clause (8) and the latter part of cl ause (3)
are corresponding provisions for choice of symbol by candidates of State
parties which, for the sake of brevity, we need not delve into. Coming to
the last clause of the Symbols Order, clause (18) reads thus:-
“18. Power of Commission to issue instructions and
directions:— The Commission may issue instructions and
directions-
x x x
x x x
(c) in relation to any matter with respect to the reser vation and
allotment of symbols and recognition of political parties, for which
this Order makes no provision or makes insufficient provision,
and provision is in the opinion of the Commission necessary for
the smooth and orderly conduct of elections.”
96. In terms of sub-clause (c) of clause 18, the power to is sue
instructions and directions, in matters relating to reservation and allotment
of symbols, has been reserved by the Election Commission itself.
97. What comes to the fore is that when a candidate has been set
up in an election by a particular political party, then such a candidate has
a right under sub-clause (3) of clause (8) to choose the symbol reserved
for the respective political party by which he/she has been set up. An
analogous duty has also been placed upon the Election Commission to
allot to such a candidate the symbol reserved for the political p arty by
which he/she has been set up and to no other candidate.
98. Assuming a hypothetical situation, where a particular symbol
is reserved for a particular political party and such a political party sets
up a candidate in elections against whom charges have been framed for
heinous and/or grievous offences and if we were to accept the alternative
proposal put forth by the petitioners to direct the Election Commission
that such a candidate cannot be allowed to contest with the res erved
symbol for the political party, it would tantamount to adding a new ground
for disqualification which is beyond the pale of the judicial arm of the
State. Any attempt to the contrary will be a colourable exercise of judicial
power for it is axiomatic that “what cannot be done directly ought not to
be done indirectly” which is a well-accepted principle in t he Indian
judiciary.
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
99. Here we may profit to refer to some authorities wherein the
said principle has been discussed elaborately.
100. In Allied Motors Limited v. Bharat Petroleum Corporation
Limited 27 , reference was made to the celebrated judgment of the Privy
Council in Nazir Ahmad v. King Emperor 28 wherein the principle has
been enunciated “ that where a power is given to do a certain thing in
a certain way, the thing must be done in that way, or not at all. ”
Other methods of performance are necessarily forbidden. This principle
has been reiterated and expanded by the Supreme Court in several
decisions.
101. In D.R. Venkatachalam and others v. Dy. Transport
Commissioner 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: “Expression
unius est exclusio alterius.” This maxim, which has been described
as “a valuable servant but a dangerous master” (per Lopes J., in
Court of Appeal in Colquhoun v. Brooks, (1888) 21 QBD 52 finds
expression also in a rule formulated in Taylor v. Taylor (1875) 1
Ch D 426 applied by the Privy Council in Nazir Ahmad v. King
Emperor which has been repeatedly adopted by this Court. That
rule says that an expressly laid down mode of doing something
necessarily implies a 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 a settled principle of law that if something is required to be
done in a particular manner, then that has to be done only in that
way or not, at all. In AIR 1936 PC 253 (2) Nazir Ahmad v. King
Emperor, it has been held as follows:
“.... The rule which applies is a different and not l ess well
recognized rule, namely, that where a power is given to do a certain
thing in a certain way the thing must be done in that way or not at
all....”
27 (2012) 2 SCC 1
28 AIR 1936 PC 253
29 AIR 1977 SC 842
30 AIR 2012 SC 3104
203
103. Another judgment where this principle has been reiterated is
Rashmi Rekha Thatoi and another v. State of Orissa and othe rs 31
wherein it was observed thus:-
“In this regard it is to be borne in mind that a court of law has to
act within the statutory command and not deviate from it. It is a
well-settled proposition of law what cannot be done directly, cannot
be done indirectly. While exercising a statutory power a court is
bound to act within the four corners thereof. The statutory exercise
of power stands on a different footing than exercise of power of
judicial review.”
104. That apart, any direction to the Election Commission in the
nature as sought by the petitioners may lead to an anomalous situation
and has the effect potentiality to do something indirectly whic h is not
permissible to do directly. A candidate bereft of part y symbol is, in a
way, disqualified from contesting under the banner of a political party. It
is contended that the person concerned can contest the ele ction as an
independent candidate but, as we perceive, the impact woul d be the
same. That apart, without a legislation, it may be difficult to proscribe
the same. Additionally, democracy that is based on multi-party system
is likely to be dented. In Shailesh Manubhai Parmar v. Election
Commission of India 32 ,while dealing with the issue of introduction of
NOTA to the election process for electing members of the C ouncil of
States, this Court observed thus:-
“...introduction of NOTA to the election process for electi ng
members of the Council of States will be an anathema to the
fundamental criterion of democracy which is a basic feature of
the Constitution. It can be stated without any fear of contradiction
that the provisions for introduction of NOTA as conceived by the
Election Commission, the first respondent herein, on the basis of
the PUCL judgment is absolutely erroneous, for the said judgment
does not say so. We are disposed to think that the decision could
not have also said so having regard to the constitutional provisions
contained in Article 80 and the stipulations provided under t he
Tenth Schedule to the Constitution. The introduction of NOTA in
such an election will not only run counter to the discipline that is
expected from an elector under the Tenth Schedule t o the
31 (2012) 5 SCC 690
32 2018 (10) SCALE 52
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
Constitution but also be counterproductive to the basic grammar
of the law of disqualification of a member on the groun d of
defection. It is a well settled principle that what cannot b e done
directly, cannot be done indirectly. To elaborate, if NOTA is allowed
in the election of the members to the Council of Sta tes, the
prohibited aspect of defection would indirectly usher in w ith
immense vigour.
(Emphasis is ours)
105. Here it is apt to note that this Court refused to allow the
introduction of NOTA for election of members of the Council of States,
for the Court was of the view that if the availibilty of NOTA option in
elections for Rajya Sabha would be allowed, the same would amount to
colourable exercise of power by attempting to introduce or modify a
disqualification for being or becoming a member, which powe r falls
completely within the domain of the legislature. Ruling so, t he Court
further observed:-
“The introduction of NOTA in indirect elections may on a first
glance tempt the intellect but on a keen scrutiny, it falls to the
ground, for it completely ignores the role of an elector in such an
election and fully destroys the democratic value. It may be stated
with profit that the idea may look attractive but its pra ctical
application defeats the fairness ingrained in an indirect election.
More so where the elector‘s vote has value and the value of the
vote is transferrable. It is an abstraction which does not withstand
the scrutiny of, to borrow an expression from Krishna Iyer, J., the
¯cosmos of concreteness. We may immediately add that the option
of NOTA may serve as an elixir in direct elections but in respect
of the election to the Council of States which is a different one as
discussed above, it would not only undermine the purit y of
democracy but also serve the Satan of defection and corruption.”
106. Thus analyzed, the directions to the Election Commission as
sought by the petitioners runs counter to what has been stated
hereinabove. Though criminalization in politics is a bitter manifest truth,
which is a termite to the citadel of democracy, be that as it may, the
Court cannot make the law.
107. Directions to the Election Commission, of the nature as sought
in the case at hand, may in an idealist world seem to be , at a cursory
205
glance, an antidote to the malignancy of criminalization in politics but
such directions, on a closer scrutiny, clearly revea l that it is not
constitutionally permissible. The judicial arm of the Stat e being laden
with the duty of being the final arbiter of the Constitution and protector
of constitutional ethos cannot usurp the power which it does not have.
108. In a multi-party democracy, where members are elected on
party lines and are subject to party discipline, we recommend t o the
Parliament to bring out a strong law whereby it is mandatory for the
political parties to revoke membership of persons against whom charges
are framed in heinous and grievous offences and not to set up such
persons in elections, both for the Parliament and the State Assemblies.
This, in our attentive and plausible view, would go a long way in achieving
decriminalisation of politics and usher in an era of immaculate, spotless,
unsullied and virtuous constitutional democracy.
109. In spite of what we have stated above, we do not intend to
remain oblivious to the issue of criminalization of politics. This Court
has focused on various aspects of the said criminalizatio n and given
directions from time to time which are meant to make the voters aware
about the antecedents of the candidates who contest in the election. In
Association for Democratic Reforms (supra), this Court held:-
“38. If right to telecast and right to view sport games and the
right to impart such information is considered to be part and parcel
of Article 19(1)( a), we fail to understand why the right of a citizen/
voter — a little man — to know about the antecedents of his
candidate cannot be held to be a fundamental right under Article
19(1)( a). In our view, democracy cannot survive without free and
fair election, without free and fairly informed voters. Votes cast
by uninformed voters in favour of X or Y candidate would be
meaningless. As stated in the aforesaid passage, on e-sided
information, disinformation, misinformation and non-information,
all equally create an uninformed citizenry which makes democracy
a farce. Therefore, casting of a vote by a misinformed an d non-
informed voter or a voter having one-sided information only is
bound to affect the democracy seriously. Freedom of speech and
expression includes right to impart and receive information which
includes freedom to hold opinions. Entertainment is implied in
freedom of ‘speech and expression’ and there is no reason to
hold that freedom of speech and expression would not cover right
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
to get material information with regard to a candidate w ho is
contesting election for a post which is of utmost importance in the
democracy.”
110. After the said judgment was delivered, the Representation of
the People (Amendment) Ordinance, 2002 (4 of 2002) was promulgated
and the validity of the same was called in question under Article 32 of
the Constitution of India. The three Judge Bench in People’s Union for
Civil Liberties (PUCL) (supra) held that Section 33-B which provided
the candidate to furnish information only under the Act and the rules is
unconstitutional. The said provision read as follows:-
“33-B.Candidate to furnish information only under the Act
and the rules .—Notwithstanding anything contained in any
judgment, decree or order of any court or any direction, order or
any other instruction issued by the Election Commissi on, no
candidate shall be liable to disclose or furnish any such information,
in respect of his election, which is not required to be disclosed or
furnished under this Act or the rules made thereunder.”
111. P. Venkata Reddy, J. expressed his view as follows:-
“(1) Securing information on the basic details concerning the
candidates contesting for elections to Parliament or the Sta te
Legislature promotes freedom of expression and therefore the
right to information forms an integral part of Article 19(1)( a).
This right to information is, however, qualitatively different from
the right to get information about public affairs or the rig ht to
receive information through the press and electronic m edia,
though, to a 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 the
law was made by the legislature and in that sense ‘pro tempore’
in nature. Once legislation is made, the Court has to make a n
independent assessment in order to evaluate whether the items of
information statutorily ordained are reasonably adequate to secure
the right of information available to the voter/citizen. In embarking
on this exercise, the points of disclosure indicated by this Court,
even if they be tentative or ad hoc in nature, should be given due
207
weight and substantial departure therefrom cannot b e
countenanced.
* * *
(5) Section 33-B inserted by the Representation of the Peop le
(Third Amendment) Act, 2002 does not pass the test of
constitutionality, firstly, for the reason that it imposes a b lanket
ban on dissemination of information other than that spelt out in the
enactment irrespective of the need of the hour and the future
exigencies and expedients and secondly, for the reason that the
ban operates despite the fact that the disclosure of inf ormation
now provided for is deficient and inadequate.
(6) The right to information provided for by Parliament under
Section 33-A in regard to the pending criminal cases and past
involvement in such cases is reasonably adequate to safeguard
the right to information vested in the voter/citizen. However, there
is no good reason for excluding the pending cases in wh ich
cognizance has been taken by the Court from the amb it of
disclosure.”
112. Dharmadhikari, J., in his supplementing opinion, held thus:-
“127. The reports of the advisory commissions set up one afte r
the other by the Government to which a reference has been made
by Brother Shah, J., highlight the present political scenario where
money power and muscle power have substantially polluted and
perverted the democratic processes in India. To control the ill-
effects of money power and muscle power the commissi ons
recommend that election system should be overhauled and
drastically changed lest democracy would become a teasing illusion
to common citizens of this country. Not only a half-hearted attempt
in the direction of reform of the election system is to be taken, as
has been done by the present legislation by amending some
provisions of the Act here and there, but a much improved election
system is required to be evolved to make the election process
both transparent and accountable so that influence of tainted money
and physical force of criminals do not make democracy a farce
— the citizen’s fundamental ‘right to information’ shou ld be
recognised and fully effectuated. This freedom of a citizen to
participate and choose a candidate at an election is distinct from
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
exercise of his right as a voter which is to be regulated by statutory
law on the election like the RP Act.”
113. In Resurgence India v. Election Commission of India 33 ,
referring to the precedents, this Court ruled thus:-
“20. Thus, this Court held that a voter has the elementary right to
know full particulars of a candidate who is to represent him in
Parliament and such right to get information is uni versally
recognised natural right flowing from the concept of democracy
and is an integral part of Article 19(1)( a) of the Constitution. It
was further held that the voter’s speech or expression in case of
election would include casting of votes, that is to say, voter speaks
out or expresses by casting vote. For this purpose, information
about the candidate to be selected is a must. Thus, in unequivocal
terms, it is recognised that the citizen’s right to kno w of the
candidate who represents him in Parliament will constitute an
integral part of Article 19(1)( a) of the Constitution of India and
any act, which is derogative of the fundamental rights is at the
very outset ultra vires.”
And again:-
“27. If we accept the contention raised by the Union of India viz.
the candidate who has filed an affidavit with false information as
well as the candidate who has filed an affidavit with particula rs
left blank should be treated on a par, it will result in breach of
fundamental right guaranteed under Article 19(1)( a) of the
Constitution viz. ‘right to know’, which is inclusive of freedom of
speech and expression as interpreted in Assn. for Democratic
Reforms .”
114. The Court summarized the directions as under:-
“29.1. The voter has the elementary right to know full particulars
of a candidate who is to represent him in Parliament/Assemblies
and such right to get information is universally recognised. Thus,
it is held that right to know about the candidate is a natural right
flowing from the concept of democracy and is an integral part of
Article 19(1)( a) of the Constitution.
33 (2014) 14 SCC 189
209
29.2. The ultimate purpose of filing of affidavit along with t he
nomination paper is to effectuate the fundamental right of the
citizens under Article 19(1)( a) of the Constitution of India. The
citizens are supposed to have the necessary information at the
time of filing of nomination paper and for that purpos e, the
Returning Officer can very well compel a candidate to furnish
the relevant information.
29.3. Filing of affidavit with blank particulars will render t he
affidavit nugatory.
29.4. It is the duty of the Returning Officer to check whether the
information required is fully furnished at the time of filing of affidavit
with the nomination paper since such information is very vital for
giving effect to the ‘right to know’ of the citizens. If a candidate
fails to fill the blanks even after the reminder by the Returning
Officer, the nomination paper is fit to be rejected . We do
comprehend that the power of Returning Officer to reject the
nomination paper must be exercised very sparingly but the bar
should not be laid so high that justice itself is prejudiced.
29.5. We clarify to the extent that para 73 of People’s Union for
Civil Liberties case will not come in the way of the Returning
Officer to reject the nomination paper when affidavit is filed with
blank particulars.
29.6. The candidate must take the minimum effort to explicitly
remark as ‘NIL’ or ‘Not Applicable’ or ‘Not known’ in the columns
and not to leave the particulars blank.
29.7. Filing of affidavit with blanks will be directly hit by Section
125-A( i) of the RP Act. However, as the nomination paper itself
is rejected by the Returning Officer, we find no reason why the
candidate must be again penalised for the same act by prosecuting
him/her.”
115. In People’s Union for Civil Liberties v. Union of India 34 ,
the Court held that the universal adult suffrage conferred on the citizens
of India by the Constitution has made it possible for these millions of
individual voters to go to the polls and thereby participate in the governance
of our country. It has been further ruled that for democracy to survive, it
34 (2013) 10 SCC 1
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
is essential that the best available men should be chosen as the people’s
representatives for the proper governance of the count ry. The best
available people, as is expected by the democratic syste m, should not
have criminal antecedents and the voters have a right to know about
their antecedents, assets and other aspects. We are inclin ed to say so,
for in a constitutional democracy, criminalization of politics is an extremely
disastrous and lamentable situation. The citizens in a democracy cannot
be compelled to stand as silent, deaf and mute spectators to corruption
by projecting themselves as helpless. The voters cannot be allowed to
resign to their fate. The information given by a candidate must express
everything that is warranted by the Election Commission as p er law.
Disclosure of antecedents makes the election a fair one and the exercise
of the right of voting by the electorate also gets sanctified. It has to be
remembered that such a right is paramount for a democracy. A voter is
entitled to have an informed choice. If his right to get proper information
is scuttled, in the ultimate eventuate, it may lead to de struction of
democracy because he will not be an informed voter having been kept in
the dark about the candidates who are accused of heinous offences. In
the present scenario, the information given by the candidates is not widely
known in the constituency and the multitude of voters really do not come
to know about the antecedents. Their right to have information suffers.
116. Keeping the aforesaid in view, we think it appropriat e to
issue the following directions which are in accord with the decisions of
this Court :-
(i) Each contesting candidate shall fill up the form as provided by
the Election Commission and the form must contain all the
particulars as required therein.
(ii) It shall state, in bold letters, with regard to the criminal cases
pending against the candidate.
(iii) If a candidate is contesting an election on the tick et of a
particular party, he/she is required to inform the party about the
criminal cases pending against him/her.
(iv) The concerned political party shall be obligated to put up on
its website the aforesaid information pertaining to candidates having
criminal antecedents.
211
(v) The candidate as well as the concerned political party s hall
issue a declaration in the widely circulated newspapers in the
locality about the antecedents of the candidate and also give wide
publicity in the electronic media. When we say wide publicity, we
mean that the same shall be done at least thrice after filing of the
nomination papers.
117. These directions ought to be implemented in true spirit and
right earnestness in a bid to strengthen the democratic set -up. There
may be certain gaps or lacunae in a law or legislative enactment which
can definitely be addressed by the legislature if it is backed by the proper
intent, strong resolve and determined will of right-thinking m inds to
ameliorate the situation. It must also be borne in mind that the law cannot
always be found fault with for the lack of its stringent implementation by
the concerned authorities. Therefore, it is the solemn responsibility of all
concerned to enforce the law as well as the directions laid down by this
Court from time to time in order to infuse the culture of purity in politics
and in democracy and foster and nurture an informed citizenry, for
ultimately it is the citizenry which decides the fate and course of politics
in a nation and thereby ensures that “we shall be governed no better
than we deserve”, and thus, complete information about the c riminal
antecedents of the candidates forms the bedrock of wise decision-making
and informed choice by the citizenry. Be it clearly stated that informed
choice is the cornerstone to have a pure and strong democracy .
118. We have issued the aforesaid directions with imm ense
anguish, for the Election Commission cannot deny a candidate to contest
on the symbol of a party. A time has come that the Parl iament must
make law to ensure that persons facing serious criminal cas es do not
enter into the political stream. It is one thing to take cover under the
presumption of innocence of the accused but it is equally imperative that
persons who enter public life and participate in law makin g should be
above any kind of serious criminal allegation. It is true that false cases
are foisted on prospective candidates, but the same can be addressed by
the Parliament through appropriate legislation. The nation eagerly waits
for such legislation, for the society has a legitimate e xpectation to be
governed by proper constitutional governance. The vot ers cry for
systematic sustenance of constitutionalism. The country feels agonized
when money and muscle power become the supreme power. Substantial
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR. [DIPAK MISRA, CJI]
efforts have to be undertaken to cleanse the polluted stream of politics
by prohibiting people with criminal antecedents so that they do not even
conceive of the idea of entering into politics. They should be kept at
bay.
119. We are sure, the law making wing of the democracy of this
country will take it upon itself to cure the malignancy. We say so as
such a malignancy is not incurable. It only depends upon the time and
stage when one starts treating it; the sooner the better, before it becomes
fatal to democracy. Thus, we part.
120. The writ petitions and the criminal appeals are disposed of
accordingly.
Kalpana K. Tripathy Matters disposed of.