August 9th 2018

The Constitution Bench began hearing this case today at 11.30 A.M.


Today’s hearings focused on two issues: first, whether the basic feature of parliamentary democracy is violated due to the increasing criminalisation of politics; second, whether the court is empowered to issue guidelines for disqualifying legislators faced with serious criminal charges.


Mr. Dinesh Dwivedi, appearing for the petitioner, began his submissions. He argued that allowing for legislators with serious criminal charges is a serious breach of parliamentary democracy. He urged that the bench should consider this as a grave issue, as 34% of legislators are faced with criminal charges.


Mr. Dwivedi submitted that the criminalisation of politics violates tenets of parliamentary democracy, a basic feature of the Constitution.  He pointed out that as there is legislative silence on the issue, the bench can draw authority from the principle of implied limitation.


Mr. Dwivedi continued that democracy is a basic feature of the Constitution. One can deduce from the Constitution an implied limitation on the legislature, namely that the legislature cannot damage this basic feature. If the legislature is silent on the matter of disqualifying candidates with a serious criminal background, the court can step in to safeguard the basic feature of democracy.


Justice Nariman observed that the court’s authority is circumscribed by “lakshman rekha” – separation of powers. The court can at best exhort the Parliament to frame a law for disqualifying legislators with a serious criminal background.


Mr. Dwidevi submitted that since the Parliament is silent on this issue, the court could intervene. CJI spoke about the possible institutional strategies: whether the court should issue a writ of mandamus directing the Election Commission to lay down norms regarding disqualification; or, should it be left to the Parliament’s discretion to frame a law. Justice Nariman weighed in by flagging the difficulty in directing the Election Commission to add more grounds for disqualification beyond prescribed under Section 8 of The Representation of Peoples Act (RP) (Section 8 of RP Act only deals with disqualification upon conviction).


At this point, Attorney General Mr. K.K. Venugopal intervened to object the addition of further disqualifications under Section 8 of the RP Act. He said that adding more grounds is the prerogative of the Parliament; the court should respect the principle of separation of powers.


Justice Chandrachud responded that just as the Constitution speaks about qualifications and disqualifications for legislators, it also lays down Forms of Oath under Schedule III of the Constitution. He rhetorically asked if a legislator facing serious criminal charges is not disqualified to uphold the Oath of Affirmation. Justice Nariman wondered how a person charged with the offence of murder would uphold the Oath of Affirmation.


Mr. Venugopal argued that the presumption of innocence standard does not change for the category of legislators. He further noted that even under Article 21, a person’s liberty cannot be restricted unless he is found guilty in the eyes of the law.


The bench resumed at 2.00 P.M.


The Attorney General, Mr. K.K. Venugopal commenced his arguments. He informed the bench that trials for offences relating to heinous crimes such as murder are usually not kept pending for very long.


CJI invited Mr. Venugopal’s suggestions on the interplay between the RP Act and the Constitution of India. He inquired whether the court would be transgressing into law-making, if it were to direct the disqualification of a legislator facing a criminal trial.


Mr. Venugopal responded by answering that Sections 227 and 228 of the Code of Criminal Procedure ensures that the trial court applies its mind at the stage of discharge and framing of charges.


CJI invited Mr. Venugopal’s attention to Yogendra Kumar Jaiswal (2011) which reads:

“Corruption, a “noun” when assumes all the characteristics of a “verb”, becomes self-infective and also develops resistance to antibiotics.”


Mr. Venugopal replied by stating that while it is important to save democracy and the electoral process, these efforts must adhere to constitutional governance.


Mr. Dwivedi relied on Vishakha to argue that the constitutional framework allows the court to frame guidelines. He further argued that Indian citizens are anguished by the presence of hardened criminals as legislators.


CJI acknowledged that guidelines could indeed be framed but they would have to be within the limits of the Constitution.


Mr. Venugopal resumed his arguments by relying on Resurgence India, where it was held that a voter has the elementary right to know the full particulars of a candidate who is to represent them in the Parliament/Assemblies; such a right is universally recognised.  The Resurgence India ruling is based on the court’s 2002 judgment in Association for Democratic Reforms, where Section 33-A of the RP Act was enacted. Mr. Venugopal points out that the RP Act would have to be amended to provide for automatic disqualification of a legislator upon framing of charges, and making such amendments violates separation of powers.


Next, Mr. Dwivedi submitted that ever since 2002, despite the filing and hearing of several writ petitions by the court, the Parliament has failed to enact suitable legislation to ensure that criminals do not get elected.  He appealed that the Legislature must respond to the collective wisdom of society; law-breakers cannot become law-makers.


CJI enquired again if the court could give directions to the Election Commission of India for disqualification of MPs and MLAs against whom charges had been framed.


The Petitioners responded by suggesting that while such directions may amount to law-making, the court could frame guidelines directing political parties to not take support of or be associated with individuals with criminal charges. Given that political parties can find it favourable to field candidates with criminal antecedents, the Legislature would be unwilling to enact a law for their disqualification. The Petitioners referred to the ‘244th Report of the Law Commission of India on Electoral Disqualifications’, to argue that candidates with a criminal record are more likely to win than candidates with a clean record.


Mr. Dwivedi highlighted the importance of elections and exhaustively quoted from the Association for Democratic Reforms. While it is not possible for the court to give any directions to amend the Act or the statutory Rules, it is equally settled that in cases where the Act or Rules are silent on a particular subject and the authority implementing the same has constitutional or statutory power to implement it, the court can necessarily issue directions or orders on the said subject to fill the vacuum or void, until the suitable law is enacted. Such guidelines had also been issued in Harshad Govardhan Sondagar.


Justice Nariman highlighted that there was a difference between the present case and the earlier cases. In the earlier cases, the law was silent but in the present case there was already a law in place and there was no scope for the Supreme Court to issue guidelines. First, there was already a right under Article 19(1)(a) on the basis of which the court had held that a voter had a right to know about the candidates. Second, there was no balance to be drawn between Article 324 and Article 102 of the Constitution of India, which provides for disqualification of MPs on the basis of a law enacted by the Parliament.


Mr. Dwivedi responded by saying that the law may be present in this case, but it is silent and there is a lacunae in it.  Section 34, 35 and 36 of the RP Act do not provide for disqualification of a legislator.  Criminalisation strikes at the very root of Article 14 of the Constitution of India.  It was necessary for the court to intervene in such a scenario to preserve parliamentary democracy which is a part of the basic structure of the Constitution.


Mr. Dwivedi also referred to the Constitution Assembly Debates, where deliberations had been made to ensure the independence of elections and the right to vote as fundamental rights. Mr. Dwivedi concluded his arguments by stating that the law had to be expanded in the present case to preserve parliamentary democracy, lest the basic structure would fail.


(With contributions from Ms. Anu Shrivastava)