August 28th 2018

The five-judge Constitution Bench began hearing the petition to determine if a legislator can be disqualified at the instance of framing of charge on August 9th, 2018.


In the final day of oral arguments, the counsels for the petitioners tried to show the Court why it should intervene to curb the growing criminalisation of politics. The Court seemed to be convinced that the issue needs to be addressed. However, it once again expressed its inability to issue a mandamus to the Parliament due to the separation of powers principle.


Today’s arguments focused on ways in which the Court can indirectly disqualify legislative candidates with pending criminal charges.


Mr. Dinesh Dwivedi, appearing for the petitioner, suggested that the Election Commission can be directed to take away a party’s symbol if they field a candidate with a criminal background, under Election Symbol Order, 1968.


He submitted that the right to contest is at a lower pedestal than the right to vote, a statutory right, and hence, conditions can be imposed upon the right to contest.


He further submitted that contesting an election is a choice and not a right. A candidate with pending criminal charges may still contest independently, but he may not be allowed to contest through a political party, he submitted.


Next, Mr. Krishnan Venugopal, appearing for the petitioners, argued that allowing the entry of candidates with serious criminal antecedents hollows the basic structure principle of parliamentary democracy. He urged the Court to not strictly adhere to the separation of powers principle. He also submitted that the 2002 Association of Democratic Reforms case  has proved to be ineffective in checking criminalisation. The Act made the disclosure of criminal antecedents on affidavit mandatory. The percentage of candidates with criminal antecedents has grown from 24% in 2004, to 30% in 2009, to 34% in 2014, he submitted. Justice DY Chandrachud observed that the ADR case relied upon the disclosure of criminal antecedents, which is different from imposing an ineligibility criterion.


Next, Ms. Meenakshi Arora representing the Election Commission of India (ECI) submitted that the current mechanism, requiring the mandatory disclosure of criminal antecedents, is poorly implemented and does not act as enough deterrence. The affidavit, which is posted on the Election Commission site, is sometimes posted at the last minute and very few citizens have access to the site.