Day 2 Arguments: 21st August, 2018 (Morning)
Mr. Dinesh Dwivedi began his submissions for the petitioner. He argued that the court should strive to balance two principles of the basic structure doctrine – ensuring fair elections and separation of powers. The court should intervene to fill the legislative silence by disqualifying a candidate upon charge framing.
He read excerpts from the 244th Law Commission Report on Electoral Disqualification: it recommended disqualification at the stage of charge framing and not upon conviction. He added that the Court had directed the preparation of the Report -- due weight must be given to its recommendations.
Mr. Dwivedi pointed out the court’s previous intervention, which made the filing of affidavits by candidates mandatory. He suggested that this was done to secure the full expression of the fundamental rights of voters under Article 19. The court could similarly intervene to address the menace of growing criminalisation in politics. He reiterated that it could frame the question as one of silence in law, where the court could step in.
Justice Rohinton Nariman suggested that it might be difficult to extend the general power vested in the Election Commission under Article 324, to make a law in the sphere of specific disqualification provisions under Article 102 and 191 of the Constitution.
CJI Dipak Misra and Nariman rejected Mr. Dwivedi’s argument on ‘legislative silence’ by observing that Section 8 of the Representation of People Act (RP Act) is clear that disqualification occurs only upon conviction and not before. Mr. Dwivedi reiterated that the court’s intervention is necessary to safeguard the values enshrined in the Constitution.
Justice Nariman asked if he wants the court to issue a writ of mandamus to the Election Commission to disqualify candidates with pending criminal charges. Mr. Dwivedi replied in the affirmative.
Next, Mr. Krishnan Venugopal, appearing for the petitioner, began by placing a book on record for the bench.
The book clearly exposes the link between criminals and politicians, he argued. Mr. Venugopal, via the book, claimed that political parties prioritize a candidate’s winnability factor and vote bank considerations over a candidate’s lack of criminal history. Hence, political parties are unwilling to act against criminal candidates. This close nexus taints electoral politics and harms the foundations of democracy.
Mr. Venugopal argued that, despite the existence of public discourse around the criminalisation of politics since the Malimath Committee Report of 1993, the Parliament has deliberately not taken concrete steps to address this issue.
After mapping legislative disinterest in tackling this issue, he suggested two possible strategies for court intervention – strategies which would not violate separation of powers.
The first option would involve the court in directing the Election Commission to make a new requirement for political parties to not field “such candidates” - the phrase “such candidates” can be explained through the court’s directions. He said that the court is not barred to add new requirements through the Election Commission.
Mr. Venugopal offered a second option that would allow the court to avoid intervening directly, wherein he suggests that the Election Commission could amend the Election Symbols Order, 1968 . The Election Symbols Order provides the basis for political parties to retain their symbol. He suggested that the court could direct the parties to file an affidavit to the effect that they would not give tickets to candidates with criminal charges. If parties failed to do so, the Election Commission could withdraw their party symbol.
Justice Nariman weighed in by suggesting that Section 29A of the RP Act, which gives the Election Commission the power to register political parties, could be the source of power under the RP Act. He suggested that the Election Commission can mandate the existing parties to file an affidavit to the effect that no candidate with pending criminal charges are nominated - if this is not followed, the Commission would cancel their registration. Justice Chandrachud pointed out that specifically Section 29 A(7) could be the source of that power.
At this point, the bench rose for lunch. The hearing was set to continue in the afternoon.