Disqualification Of Legislators On Framing Of Charge[Day-1] Can A Person Against Whom Murder Charges Have Been Framed Be Allowed To take Oath: Asks Nariman.J To AG

The five-judge constitution bench commenced hearing on the pleas seeking a ban on candidates from contesting elections against whom charges have been framed.Opening the arguments for the petitioner Public Interest Foundation Senior Counsel Dinesh Dwivedi said;“Your Lordships have held that criminalisation in the Legislatures is a negation of democracy and the basic structure of the Constitution. It has been brought to the attention of the parliament that there is this ever-rising criminalisation of politics which is encroaching on the democratic structure. The Law Commission report is corroborated by the Election Commission as well as the Constitutional Reforms Committee".“The problem is that while at present 34% of the candidates carry this baggage, in another 10 years, it will go upto 45%. The Legislature is deliberately not interfering despite the insistence of the constitutional and statutory bodies. The Select Committee has advanced the presumption of innocence until proven guilty and that any measures in this behalf may be susceptible to abuse. Are the members of the Select Committee scared of their own brothers?”, he continued.He advanced that The Law Commission in its latest report has noted that winnability is a major factor with political parties.Stating that the right to vote is at the heart of a parliamentary democracy, he suggested, “Because of the rapid rise in criminalisation of politics, the courts, since 2005, have been saying that it is more than a mere statutory right. In the First Judges Case, it was observed that we are not bound by what was contemplated by the constitution-framers and can evolve. If not a Fundamental Right, the right to vote is definitely a constitutional right flowing from Articles 325 and 326”Next, Mr. Dwivedi indicated the oaths in Schedule III of the Constitution to which the ministers of the Union, candidates for election to the Parliament and judges of the Supreme Court subscribe. He showed how only the latter pledge to “uphold the Constitution”.“Article 102 (disqualification of MPs) was laid down in 50s. Since then, there have been several pointers that it has failed to serve the purpose it is intended.In as much as sub-clause (e) of Article 102(1) disqualifies for being chosen as or for being a MP any person who is so disqualified under any law made by the Parliament, Chief Justice Dipak Misra reflected that the law so made is the Representation of People’s Act.“A number of judgments from Jyoti Basu (1982) say that the right to elect is a statutory right. Now you want us to say it is a constitutional right flowing from Article 326...what we are dealing with is criminality of legislators and the right to vote is an indirect aspect...you are exhorting us to exhort the parliament to lay down the law that we declare? There is a traditional ‘lakshman rekha’ which cannot be crossed”, weighed in Justice Rohinton Nariman.Indicating the 2002 judgment of the apex court holding the right to be informed to be part of Article 19(1)(a), Mr. Dwivedi submitted that If there is silence of the legislature, the judges can direct the Election Commission to lay down norms for rejection of nomination papers under section 33 of the RPA.“Yes, we evolved the right to be informed and then the option of NOTA. Definitely, criminalisation does not find place in our democratic polity. But you are asking us to issue mandamus to the EC to go against the law and extend disqualification to all stages of the criminal law? Once we direct so, it will become the law. Should we go into those stages where the FIR is lodged or the chargesheet is filed or the charges are framed or should there be a law?”, pointed out the Chief Justice.Chipping in, Justice D. Y. Chandrachud observed that the constitution envisages disqualification, one, for being chosen as, and two, for being a member of the Parliament. “Article 101(3) speaks of a seat falling vacant if a MP becomes ‘subject to any of the disqualification’ mentioned in clauses (2) or (3) of Article 102. This disqualification is provided by the law of parliament. But to introduce a disqualification [unclear]”“A disqualification needs to be laid down by the EC in respect of a person who is chargesheeted by court...Your Lordships have said that such person is presumed to be charged”, replied Mr. Dwivedi. “But he continues to be innocent”, added the Chief Justice.“That innocence is an aspect of criminal law. we are dealing with Fundamental Rights here”, advanced the Senior Advocate.Amicus Curiae Senior Advocate Sidhharth Luthra also indicated that the onus is on the accused, so in case of a charge, there is no presumption of innocence but a reverse burden.Justice Nariman hinted that the court may instead strengthen the offence already provided for, that special courts could be established for persons chargesheeted after filing the nomination papers and that the process between trial and judgment could be fast-tracked.“In case of a person against whom...

Disqualification Of Legislators On Framing Of Charge[Day-1] Can A Person Against Whom Murder Charges Have Been Framed Be Allowed To take Oath: Asks Nariman.J To AG

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