Criminalisation of politics of largest democracy is unsettling, says Supreme Court

The Supreme Court on Tuesday left it to Parliament to “cure the malignancy” of criminalisation of politics by making a law to ensure that persons facing serious criminal cases do not enter the political arena as the “polluted stream of politics” needs to be cleansed.

Holding that criminalisation of politics is an “extremely disastrous and lamentable situation”, the apex court said this “unsettlingly increasing trend” in the country has the propensity to “send shivers down the spine of a constitutional democracy".

It said the nation was “eagerly” waiting for such legislation as the society has legitimate expectation to be governed by proper constitutional governance and citizens in a democracy cannot be compelled to stand as “silent, deaf and mute spectators” to corruption by projecting themselves as helpless.

'Fatal'

A five-judge Constitution bench headed by Chief Justice Dipak Misra said malignancy of criminalisation of politics was “not incurable” but the issue was required to be dealt with soon before it becomes “fatal” to the democracy.

Passing a slew of directions aimed at decriminalisation of politics, giving citizens an “informed choice” and infusing a culture of purity in politics, the bench said that increasing trend of criminalisation of politics tends to disrupt constitutional ethos and strikes at the very root of our democratic form of government.

“A time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream,” said the bench, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, in the unanimous 100-page verdict.“We are sure, the law making wing of the democracy of this country will take it upon itself to cure the malignancy,” it said.

It also recommended that Parliament bring out a "strong law" whereby it would be mandatory for the political parties to revoke membership of persons against whom charges were framed in heinous and grievous offences and not to set up such persons in elections for Parliament as also State Assemblies.

The bench directed that each contesting candidate will have to fill up the form provided by the Election Commission of India and he or she will have to state “in bold letters” about the criminal cases pending against the candidate. “If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her,” it said, adding that “the concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents".

The top court directed that candidate and the concerned political party will have to issue a declaration in widely circulated newspapers in the locality and in electronic media about his or her antecedents.“When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers,” it said.

A nation agonised

The bench said that complete information about criminal antecedents of the candidates forms the “bedrock of wise decision-making and informed choice by the citizenry” as informed choice was the cornerstone to have a pure and strong democracy. “The voters cry for systematic sustenance of constitutionalism. The country feels agonised when money and muscle power become the supreme power,” it said.

“Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay,” the bench said.

It was imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation, the bench said.

The apex court also said that criminalisation of politics was never an “unknown phenomenon” in 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.

Taking note of the submissions of Attorney General K K Venugopal that the court should not cross the laxman rekha vis-a-vis the separation of powers, the bench said it cannot enter into legislative arena to provide disqualification for candidates who are facing serious criminal cases. However, it said the nation eagerly waits such legislation and the lawmaking wing of the democracy should take upon itself to come out with a law to address this.

The verdict was pronounced on a batch of pleas raising a question whether lawmakers facing criminal trial can be disqualified from contesting elections at the stage of framing of charges against them.

According to the prevalent law, the lawmakers and candidates are barred under the Representation of Peoples (RP) Act from contesting elections only after their conviction in a criminal case.

The verdict was reserved on August 28.

Divergent views

The Centre had contended that the judiciary should not venture into the legislative arena by creating a pre-condition which would adversely affect the right of the candidates to participate in polls as there was already the RP Act which deals with the issue of disqualification.

Referring to the concept of presumption of innocence until a person is proven guilty, the Centre had argued that depriving a person from contesting elections on a party ticket would amount to denial of the right to vote, which also included the right to contest. It had said that the courts will have to presume innocence in view of the fact that in 70 per cent cases, accused are being acquitted.

Venugopal had said that Parliament has made a distinction between an accused and a convict and there has been a provision for disqualification in the Representation of Peoples Act upon conviction of a lawmaker.

The Election Commission of India had taken a view which was apparently opposite to the Centre and said that the recommendations for decriminalising politics were made by the poll panel and the Law Commission back in 1997 and 1998, but no action was taken on them. It exhorted the court to issue the direction in the matter besides asking Parliament to make the suitable law.

The PILs were filed by NGO ‘Public Interest Foundation’, BJP leader Ashwini Kumar Upadhyay and others.

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