Day 2 Arguments: 21st August, 2018 (Afternoon)
The bench reassembled at 2.00 P.M after the morning session.
CJI asked Mr. Krishnan Venugopal whether, in the event that the court introduced the requirement of an affidavit, the party’s original registration would be taken away. Mr. Venugopal answered in the affirmative but added that, alternatively, the court could ask political parties to have this requirement in their party byelaws. In this way, the onus would be on political parties to exclude such candidates.
Justice Nariman observed that the court should steer clear of introducing additional disqualification provisions. Mr. Venugopal responded that he is not arguing for any disqualification under the Representation of People Act (RP Act), but rather for the amendment of byelaws.
Next, Mr. Venugopal tried to build on the ‘election symbol’ argument. Justice Nariman asked him to clarify whether he is calling for the Election Commission to take away the symbol of a party if it fields candidates with pending criminal charges. Mr. Venugopal replied in the affirmative.
Next, Mr. Siddharth Luthra, the Amicus in the matter, began arguments. He suggested that the court could intervene by relying on a precedent, which considered politics as a profession under Article 19(1)(g), upon which restrictions could be imposed. He also submitted that under Section 33A of the RP Act, a candidate is required to furnish an affidavit of any pending case where a criminal charge is framed and also furnish information about the stage of the court. He submitted that the court could intervene by exploring these provisions.
Next, Mr. Gopal Shankarnarayan, appearing for Bhartiya Matdata Sangathan, began arguments. He submitted that, rather than looking into Section 8 of the RP Act to disqualify candidates with pending criminal charges, the court could look into Section 125 A of the RP Act which deals with candidates furnishing false or concealing information in affidavits. He said that this provision lays down punishment but is not covered by the ambit of Section 8; the court could use this legislative vacuum to bar candidates with a criminal background. The bench did not seem convinced with this line of argument.
Mr. Sharankarnarayan suggested that the court could read Section 8 of the RP Act as “charged” instead of “conviction”. Justice Nariman responded, pointing out that not just the title matters, but also the text of Section 8, which clearly states that disqualification can happen only upon conviction. Mr. Shankarnarayan reiterated that candidates with a serious criminal background are not suitable to be legislators and the court should find a way to prevent their entry.
Mr. Shankarnarayan further suggested that the court could issue directions to the Election Commission; under Section 33 A of the RP Act, the criminal antecedents of candidates must be properly documented and publicized. He cited the court’s intervention in making warnings prominent on tobacco packets to discourage smoking. On the tobacco analogy, Justice Nariman quipped jokingly that the warning - “voting for this person is hazardous to the nation” might actually work.
Mr. Dwivedi made a short intervention by suggesting that the candidate’s nomination form could be modified; the bench asked him to submit the proposal in writing.
Next, Attorney General Mr. K.K. Venugopal began arguments. Starting on a strong note, he said that while he agreed with the petitioner that the criminalisation of politics is a serious issue, he questioned whether it is a matter for the Court or the legislature? Justice Nariman agreed that the Court couldn’t direct the Parliament.
Mr. K.K. Venugopal recalled that the reference order dealt with the question: can this court add to disqualifications beyond those prescribed by the Parliament?
Justice Nariman responded that the court is clear that it can’t prescribe additional disqualifications. Mr. Venugopal responded that then the constitutional question stands settled and the other means that the court is exploring fall within the policy domain.
Mr. K.K. Venugopal said that the principle of what cannot be done directly cannot be done indirectly, should be followed.
CJI intervened to observe that the court is not looking at options of disqualifying candidates, but rather is exploring if candidates’ membership to political parties can be severed. Mr. K.K. Venugopal persisted that this change in the court’s tactics would still amount to judicial legislation.
Justice Indu Malhotra expressed support for sticking to the disqualification upon conviction rule, which is the current law.
Mr. Venugopal submitted that judges are not accountable to votes and should be very careful in breaching the principle of separation of powers. He added, it seems that the court is trying to find a basis to intervene without having the judicial authority to do so.
Justice Nariman questioned what would be wrong with the court nudging the Parliament to address the situation. Until Parliament acts, can the court direct the Election Commission to use its power under Section 33 A of the RP Act to take away the symbol of a party when it fields a candidate with a pending criminal charge?
Mr. K. K. Venugopal responded that such an approach, though novel, would go beyond the Election Commission’s power. He continued that our democracy has opted for a multiplicity of political parties and symbols for political parties are an exclusive and key identity marker. Revoking the symbol based on unproved charges and false accusations on candidates will be an extreme exercise of power.
He further submitted that this is no solution anyway as symbols are only given to recognized parties and not to non-recognized parties. With this, the hearings concluded for the day and the matter has been posted for 28th August.