2018 (9) TMI 2153 - SC - Indian Laws

Courts cannot add new disqualification grounds beyond Article 102 and parliamentary law under separation of powers doctrine

Public Interest Foundation and Ors. Versus Union of India (UOI) and Ors.

The SC held that courts cannot legislate disqualifications for membership beyond Article 102 and parliamentary law under Article 102(e), emphasizing the ... Doctrine of separation of power - Whether disqualification for membership can be laid down by the Court beyond Article 102 and the law made by the Parliament Under Article 102(e)? - whether any disqualification can be read as regards disqualification for membership into the constitutional provisions? - HELD THAT:- It is well settled in law that the Court cannot legislate. Emphasis is laid on the issuance of guidelines and directions for rigorous implementation. With immense anxiety, it is canvassed that when a perilous condition emerges, the treatment has to be aggressive. The Petitioners have suggested another path. But, as far as adding a disqualification is concerned, the constitutional provision states the disqualification, confers the power on the legislature, which has, in turn, legislated in the imperative. hus, the prescription as regards disqualification is complete is in view of the language employed in Section 7(b) read with Sections 8 to 10A of the Act. It is clear as noon day and there is no ambiguity. The legislature has very clearly enumerated the grounds for disqualification and the language of the said provision leaves no room for any new ground to be added or introduced. Criminalization of politics - HELD THAT:- Criminalization of politics was never an unknown phenomenon in the Indian political system, but its presence was seemingly felt in its strongest form during the 1993 Mumbai bomb blasts which was the result of a collaboration of a diffused network of criminal gangs, police and customs officials and their political patrons. The tremors of the said attacks shook the entire Nation and as a result of the outcry, a Commission was constituted to study the problem of criminalization of politics and the nexus among criminals, politicians and bureaucrats in India. In ANUKUL CHANDRA PRADHAN ADVOCATE SUPREME COURT VERSUS U.O.I. [1997 (7) TMI 651 - SUPREME COURT], the Court, in the context of the provisions made in the election law, observed that they have been made to exclude persons with criminal background, of the kind specified therein, from the election scene as candidates and voters with the object to prevent criminalization of politics and maintain propriety in elections. Thereafter, the three-Judge Bench opined that any provision enacted with a view to promote the said object must be welcomed and upheld as subserving the constitutional purpose. Role of Election Commission - HELD THAT:- This Court in a catena of judgments has elucidated upon the role of the Election Commission and the extent to which it can exercise its power under the constitutional framework - In ELECTION COMMISSION OF INDIA VERSUS SUBRAMANIAN SWAMY (DR.) [1996 (4) TMI 497 - SUPREME COURT], this Court ruled that the opinion of the Election Commission is a sine qua non for the Governor or the President, as the case may be, to give a decision on the question whether or not the concerned member of the House of the Legislature of the State or either House of Parliament has incurred a disqualification. As regards the issue that there is a vacuum which necessitates interference of this Court, the first Respondent has contended that this argument is untenable as the provisions of the Constitution and the Act are clear and unambiguous and, therefore, answering the question referred to in the affirmative would be in the teeth of the doctrine of separation of powers and would be contrary to the provisions of the Constitution and to the law enacted by the Parliament. Analysis of the Election Symbols Order - HELD THAT:- Sub-clause (1) of Clause (5) of the Symbols Order, a priori, segregates the symbols for the purposes of this Symbols Order into two simon pure categories, i.e., 'Reserved' or 'Free'. Therefore, a symbol under the Symbols Order can either be reserved or it can be free. Before decoding Sub-clause (2) of Clause (5), we may first decipher Sub-clause (3) which gives a negative definition to a free symbol. As per Sub-clause (3) of Clause (5), a symbol is free if is not reserved under the Symbols Order. Sub-clause (2) of Clause (5) which defines a reserved symbol stipulates that except as otherwise provided in the Symbols Order, a reserved symbol is one which is reserved for a recognised political party for exclusive allotment to the contesting candidates set up by such political party. What comes to the fore is that when a candidate has been set up in an election by a particular political party, then such a candidate has a right Under Sub-clause (3) of Clause (8) to choose the symbol reserved for the respective political party by which he/she has been set up. An analogous duty has also been placed upon the Election Commission to allot to such a candidate the symbol reserved for the political party by which he/she has been set up and to no other candidate. A time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the Accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation. It is true that false cases are foisted on prospective candidates, but the same can be addressed by the Parliament through appropriate legislation. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism. The country feels agonized when money and muscle power become the supreme power. Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay. Conclusion - The separation of powers doctrine prevents the judiciary from legislating disqualifications for candidates. The Election Commission must operate within the framework of existing laws. Petition disposed off. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered in this judgment include:Whether the Court can lay down disqualifications for membership in Parliament or State Legislatures beyond those specified in Article 102 of the Constitution of India and the laws made by Parliament under Article 102(e).Whether the Court can direct the Election Commission to prevent candidates with criminal charges from contesting elections using party symbols.Whether the principle of separation of powers limits the Court's ability to impose additional disqualifications on candidates with criminal charges.Whether the Court can issue directions to the Election Commission to address the criminalization of politics without breaching the separation of powers.2. ISSUE-WISE DETAILED ANALYSISIssue 1: Disqualification Beyond Article 102Legal Framework and Precedents: Article 102 and Article 191 of the Constitution specify grounds for disqualification, with additional grounds to be prescribed by Parliament. The Representation of the People Act, 1951, provides specific disqualifications under Sections 8 to 10A.Court's Interpretation and Reasoning: The Court emphasized that disqualifications must be legislated by Parliament and cannot be judicially expanded. The Court referred to precedents, including Lily Thomas v. Union of India, affirming that legislative power to prescribe disqualifications lies with Parliament.Key Evidence and Findings: The Court noted the absence of legislative action despite recommendations from various reports and commissions on electoral reforms.Application of Law to Facts: The Court concluded that it cannot add disqualifications beyond those specified by the legislature, as this would breach the separation of powers.Treatment of Competing Arguments: The Court rejected the petitioners' argument that judicial intervention is necessary to address criminalization in politics, emphasizing the need for legislative action.Conclusions: The Court held that it cannot impose additional disqualifications beyond those legislated by Parliament.Issue 2: Directions to Election CommissionLegal Framework and Precedents: Article 324 of the Constitution empowers the Election Commission to supervise elections. The Court has previously issued directions to the Election Commission in cases like Association for Democratic Reforms.Court's Interpretation and Reasoning: The Court acknowledged the Election Commission's plenary powers but emphasized that these must conform to existing laws. The Court cannot direct the Commission to act beyond its statutory authority.Key Evidence and Findings: The Court examined the Election Symbols (Reservation and Allotment) Order, 1968, and found that it does not provide for disqualification based on criminal charges.Application of Law to Facts: The Court determined that directing the Election Commission to deny party symbols to candidates with criminal charges would effectively add a disqualification, which is beyond judicial power.Treatment of Competing Arguments: The Court considered the petitioners' proposal as a colorable exercise of judicial power, reiterating that legislative action is necessary.Conclusions: The Court declined to issue directions to the Election Commission that would indirectly impose additional disqualifications.3. SIGNIFICANT HOLDINGSVerbatim Quotes: 'The judicial arm of the State being laden with the duty of being the final arbiter of the Constitution and protector of constitutional ethos cannot usurp the power which it does not have.'Core Principles Established: The separation of powers doctrine prevents the judiciary from legislating disqualifications for candidates. The Election Commission must operate within the framework of existing laws.Final Determinations on Each Issue: The Court held that it cannot impose disqualifications beyond those legislated by Parliament and cannot direct the Election Commission to act outside its statutory authority.The judgment underscores the judiciary's limitations in addressing the criminalization of politics, emphasizing the need for legislative action to introduce reforms. The Court recommended that Parliament enact laws to prevent individuals with serious criminal charges from contesting elections, highlighting the urgency of addressing this issue to uphold the integrity of democratic governance.