On the final day of the hearing on the plea for disqualifying candidates against whom criminal charges have been framed from contesting elections, the Supreme Court five-judge bench posed tough questions on the feasibility of this proposition.
It may be noted that when on the previous occasions, the bench had been disinclined to issue to a mandamus to the Parliament in this behalf, it was suggested that the court may direct the Election Commission to restrain political parties from granting tickets to or accepting support from independent candidates with criminal antecedents.
Referring to the Election Symbols (Reservation and Allotment) Order, 1968, it was advanced that the assignment of an election symbol to a recognised political party be rescinded if it is found in violation of such a mandate of the EC.
“The Attorney General has argued that going back from conviction to the stage of charges is not acceptable as the presumption of innocence attaches throughout...if there is a recognized political party, the only symbol a candidate of the party can use is the one assigned to the party...the moment we declare that a person charged with a heinous offence cannot stand in the election on that symbol, it is tantamount to creating a new offence from the backdoor that once the candidate is charged, he is disqualified...”, reflected Justice Rohinton Nariman on Tuesday.
Submitting that the presumption of innocence is misplaced, Senior Counsel Dinesh Dwivedi indicated sections 227 and 228 of the Cr. P. C., on discharge and the framing of charges respectively. While the former allows the judge to discharge the accused if, after considering the submissions of the prosecution and the records of the case, he believes that there are no sufficient grounds for proceeding, the latter envisages the framing of the charges only when the Judge is of opinion that there is ground for presuming that the accused has committed an offence.
“You want section 228 to be so interpreted for the entire criminal jurisprudence? In case of a statutory right, can we as a court of law attach such a condition?”, inquired Chief Justice Dipak Misra.
“The states of Madhya Pradesh and Haryana introduced an amendment requiring a candidate to the Panchayat elections to not have more than 2 children...the court held the amended rule to be constitutionally valid because there must be some embodiment to indicate to the populous the candidate’s commitment to population control...when the amendment was subsequently repealed, should the court intrude to say that to contest elections at the grass-root level one must not have more than 2 children?”, continued the Chief Justice.
“Once we have discussed the statutory or civil rights, there can be no presumption...even the right to Association is subject to reasonable restrictions...please see section 29A of the Representation of People’s Act (on the registration of political parties)...the Symbols Order which regulates the grant of symbol is not a legislative instrument but an executive order under Article 324...we understand Your Lordship's reluctance to issue mandamus to the Legislature in view of Articles 245 and 246...”, argued Mr. Dwivedi.
“Suppose we adjourn this case by 2 months and someone who is charged with an offence seeks to contests in the bye-elections. If the EC denies the election symbol, will it stand the test of judicial scrutiny?”, asked the Chief Justice.
“This contention that we are looking to add a disqualification is not correct...but by inserting this conditionality on the political party under the symbols order, Your Lordships are not taking away any right...the right to contest elections is anyway at a lower pedestal than the right to vote...the right to contest an election through a political party is a choice, but if we do not act at this stage, we are interfering in the right to free and fair vote...”, concluded Mr. Dwivedi.
Next, Senior Advocate Krishnan Venugopal reiterated that on account of the tremendous criminalisation of politics, democracy is suffering- “Are Your Lordships supposed to sit back and do nothing as criminals enter into politics and hypothetically, end up controlling the government? Can the principle of Separation of Powers stand in your way?”, he posed.
In view of Article 102 envisaging only such disqualification as transpires under a law of the Parliament and the RPA contemplating conviction as the ground for disqualification, Justice Indu Malhotra repeated that criminality arises only upon conviction- “When the Parliament speaks of conviction, would we not be rewriting the law? How would one contest the election if the symbol is taken away?”
Justice Malhotra also raised the concern regarding malicious prosecution for political vendetta.
Indicating the 2002 decision in the ADR case where, in recognition of the right to an informed choice, the apex court had required all candidates to disclose on affidavit their criminal antecedents, Mr. Venugopal depicted that post the judgment, the proportion of legislators with a criminal record has grown from 24% in 2004, to 30% in 2009 to 34% in 2014.
It was his argument that candidates with a criminal background have a higher winnability quotient by virtue of their purported ability to “bend the law” or in the hope of “goodies” in the case of an ethnic divide.
“Do we hold our legislators, who are supposed to discharge one of the most important functions, to lower standards?”, asked Mr. Venugopal.
“A disclosure (as required in the ADR and PUCL rulings) only enables the voter to make a choice as to suitability...it has no impact on the eligibility”, noted Justice D. Y. Chandrachud.
“Can we let a person get the ticket and have the political party announce that the candidate has been charged with rape or murder? We will see what we can do in context of disclosure...eligibility is different...we cannot be asked to indirectly something we cannot do directly...you are indirectly adding a disqualification by taking away his symbol...it is like saying the whole world is yours but you have no money...”, concurred the Chief Justice.
The bench also noted that most jurisdictions, except Mexico, allow a disqualification only based on conviction.
In his turn, Advocate Gopal Sankaranarayanan sought to advance that there is no constitutional provision which attaches liability to a political party for bringing within its fold an individual against whom charges have been framed.
“This is not like the Vishaka case where it is an open field and we go around passing directions...there is a provision in section 8 of the RPA...we can tweak the disclosure requirements in the affidavit but to say that they cannot contest the elections would be stretching it too far...”, affirmed Justice Malhotra.
On Tuesday, Senior Counsel Meenakshi Arora, appearing on behalf of the ECI, submitted that though the ADR and PUCL judgments envisage a disclosure of criminal antecedents, the same is only on affidavit which is put up on the website of the ECI at the last minute- “it is filed at the time of nominations upon which one proceeds to election...not everybody has the access to the website...”
With the Chief Justice agreeing that the right to Information means proper information, the bench proceeded to reserve its judgment.