Judgment in Plain English

Framing of Criminal Charges & Electoral Disqualification

Today, September 25th 2018, the Court delivered its judgement in the Electoral Disqualification case. The five-judge Bench unanimously decided that it cannot disqualify candidates, against whom criminal charges have been framed, from contesting elections. The Court recommended that Parliament make laws to curb the increasing criminalisation of politics. Further, the Court issued directions aimed at combating the criminalisation of politics.


What the petitioners had called for

The petitioner, an NGO called Public Interest Foundation, had requested the following:

  1. Persons, who have criminal charges framed against them, should be disqualified from membership to Parliament and State Legislatures. Section 8 of Representation of Peoples Act 1951 (RP Act) should include disqualification upon framing of charges.
  2. Electoral candidates filing false affidavits regarding their criminal history (see 33A of RP Act) should automatically be disqualified from membership to Parliament and State Legislatures. Section 125A of RP Act should fall within the purview of Section 8.


Respect for the separation of powers

The Bench unanimously ruled that it could not alter the RP Act. It recognized that the separation of powers prevented the Court from engaging in law-making. The Court held that altering Section 8 of the RP Act would amount the law-making, which is a power exclusive to the legislature.


The Bench recognised that it could not alter the laws around disqualification as there is no legislative silence on the matter. Section 8 of the RP Act explicitly states that disqualification is triggered only upon conviction and there is no scope of judicial intervention.


There is no question as to the constitutional validity of Section 8 of the RP Act, which deals with disqualification from membership to Parliament and State Legislature. Articles 102(1)(e) and 191(1)(e) of the Constitution explicitly grant Parliament the power to make laws which define the criteria of disqualification from legislative bodies. The RP Act was passed by Parliament.


The Bench respecting the separation of powers principle, chose not to empower the Election Commission with the power to remove a party’s symbol. The petitioners had argued that the Election Commission may be empowered to revoke a party’s symbol, if it fielded criminal candidates. While the Court recognised the rising criminalisation of politics, it maintained that it must restrict itself to its judiciary role. As AG KK Venugopal argued during the hearings, the Court ought not to attempt that which it may not do directly, indirectly.


The Court did not entertain the petitioner’s second request, which called for Section 125A to fall under the ambit of Section 8. The petitioner had sought to automatically disqualify candidates who file false affidavits. The Court did not entertain the plea citing separation of powers.


Free & fair elections and the fundamental right to know

The Bench recognised that allowing political parties to field candidates with criminal antecedents threatens to destabilize Indian democracy. Further, the Bench recognised that citizens have the fundamental right to know whether an electoral candidate has a criminal history. The Bench emphasised that an informed electorate is essential for a healthy democracy.


The Court cited Association for Democratic ReformsPUCL and Resurgence India to establish that the fundamental “right to know” flows from the fundamental right to free expression under Article 19(1)(a) of the Constitution.


The Bench asked Parliament to make a law that prevents candidates accused of serious crimes from entering politics. The Bench suggested that such laws are necessary to ensure that voters can make informed choices about whom they choose to elect. The Bench concluded that informed choice is a cornerstone of a ‘strong and pure’ democracy.


The Bench took the further step of issuing directions. The Bench hopes that these directions will further effectuate the fundamental right of citizens to know whether candidates have criminal antecedents. It hoped that Parliament would draw inspiration from these directives in drafting future legislation. It issued the following directions (¶116):

  1. Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein
  2. It shall state, in bold letters, with regard to the criminal cases pending against the candidate.
  3. If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.
  4. The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.
  5. The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers.


Note that the Court will not actively monitor the implementation of these directives. The Court has called on the ‘concerned authorities’ to enforce the directions.