Author: Aryan Chaudhary New Law College, BVDU, Pune Editor: Shweta Pandey New Law College, BVDU, Pune
Brief Facts Of The Case
In this landmark case, a petition was filed by BJP leader Ashwini Upadhyay and an NGO- Public Interest Foundation. This petition seeks the help of the Apex court in the matter of criminalisation of Politics and Electoral Disqualification. In 2011, Public Interest Foundation, an NGO filed a writ petition before Supreme court of India, to expand the grounds for disqualification of membership in Parliament/State legislature, under Article 32 of the Constitution. They appealed to the Apex court to disqualify candidates under Representation of people’s Act, 1951 who have serious criminal charges framed against them. In addition to this, they also asked to disqualify people who file false affidavits.
On 8th March 2016, a division bench of three judges referred this matter to a constitutional bench. This bench rejected the matter saying that the constitutional bench has already decided the matter in MANOJ NARULA in 2014. In Manoj Narula, the court chose not to interfere with the Prime Minister’s prudence to choose Minister’s, even though some Minister’s may be undertrial in pending criminal cases.
Parties to the case were: Public Interest Foundation; Common Cause; Transparency International India; Gandhian Seva and Satyagraha Brigade as Petitioner, represented by Adv. Dinesh Dwivedi. And, Union of India; Election Commission of India as Respondent, represented by Adv. K.K. Venugopal
Ajay Manikrao Khanwilkar
Issues Of The Case
Following issues were addressed during this case:
Whether the court can lay down additional disqualifications for beyond Article 102(e) and Section (8) of the RP Act?
Whether the disqualification should be triggered upon conviction because it exists presently or upon framing of charges by the court?
Whether filing of false affidavits under Section 125A of the RP Act should be a ground of disqualification?
Arguments From The Appellant Side
The petitioners suggested that the court may direct the Election Commission to curb political parties from granting tickets to or accepting support from independent candidates with criminal background.
Pertaining to the Election symbols (Reservation and Allotment) Order, 1968, it absolutely was also argued that the assignment of an election symbol to a recognised party be rescinded if it’s found in violation of such a mandate of the EC.
It was also argued that an individual who breaks the law shouldn’t be allowed to become law makers because the right to contest elections isn’t a Fundamental Right.
Section 227 and 228 of Cr. P. C. was also brought into question by the Appealent side.
Arguments From The Respondent Side
On the opposite hand, the respondent side argued that:
In India, the principle of separation of power is followed and according to that the court is not allowed to make laws.
Moreover, Art. 142 did not give the power to the court to add words to the already existing laws.
The Public Interest Foundation case deals with various aspects of the law. The criminalisation of politics has been a major issue that the Indian legal system has been dealing for a long time. This issue was raised on various occasions in past many years, like for example, in the case of Manoj Narula, or Lily Thomas case, etc. As India follows, Principle of separation of power, which distributes various powers or responsibilities among various branches of government and bars each other from exercising different functions that are beyond one’s power.
Over the years, many people have approached the Apex court for the issue of criminalisation of politics and have urged the Apex court to take strict action towards the issue.
In 2002, Union of India vs. Association of Democratic Reforms was the first one that came to light in the matter of criminalisation of politics. This was followed by Peoples Union of Civil Liberties vs. Union of India, or PUCL vs. UOI in 2004, which annulled the judgement in Association of Demerocatic Reforms and provided that contestants need not file affidavit for criminal background/ancestry. Other cases like K. Prabhakarn vs. P. Jayarajan in 2005, Lily Thomas vs. Union of India in 2013, Manoj Narula vs. Union of India in 2014. And the most recent case in subject to criminalisation of politics is Rambabu Singh Thakur vs. Sunil Arora, decided in 2020.
Critical Overview Of The Judgement
The Law Commission in its 244th Report reported that disqualification after conviction had proved worthless in preventing the criminalization of politics. Disqualification at the stage of framing of charges, accompanied by other legal safeguards could be an effective means to curb such criminalization. It also recommended that in case of filling of false affidavits, the punishment must be increased to minimum 2 years imprisonment and such an offence must also be made a ground for disqualification. Accordingly, in all such cases trails must be conducted on a day-to-day basis so as to ensure the necessary conviction that precedes disqualification.
Conclusion and Suggestions
The judgment was meant to safeguard the integrity and democracy of India through providing a check on elected members under Representation of Peoples Act, 1951. And also tried to limit the scope of criminalisation of politics.
The Apex court dealt with the concept of criminalisation of politics and made necessary alterations to the law. The Supreme Court of India restricted itself in requiring that candidates contesting in electoral procedures having criminal charges against them be liable to their parties and public at large. The lack of information provided to the voters was determined as the main problem by the Apex Court.
On the other hand, requiring a candidate to have no criminal charges filed on themselves is something naive or wistful hope. Such hope should be a must, but it can also result in wrongful charges to be filed against a candidate, which would further result in a candidate losing a ticket to the party seat.
Union of India v. Association for Democratic Reforms, 2002
PUCL v. UOI, 2004
K. Prabhakarn vs. P. Jayarajan, 2005
Lily Thomas vs. UOI, 2013
Manoj Narula vs. UOI, 2014
Law Commission 244th report – Electoral Disqualification, 2014