TaxTMI 
TaxTMI 
2018 (9) TMI 2153
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....ption becomes a national economic terror. 2. The constitutional functionaries, who have taken the pledge to uphold the constitutional principles, are charged with the responsibility to ensure that the existing political framework does not get tainted with the evil of corruption. However, despite this heavy mandate prescribed by our Constitution, our Indian democracy, which is the world's largest democracy, has seen a steady increase in the level of criminalization that has been creeping into the Indian polity. This unsettlingly increasing trend of criminalization of politics, to which our country has been a witness, tends to disrupt the constitutional ethos and strikes at the very root of our democratic form of government by making our citizenry suffer at the hands of those who are nothing but a liability to our country. 3. The issue that emerges for consideration before this Bench is 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). A three-Judge Bench hearing the matter was of the view that this question is required to be addressed by the Constitution Bench Under Article 145(....
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....sound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament. Explanation. --For the purposes of this Clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State. (2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule. 6. In this context, we may also refer to Article 191 of the Constitution that deals with disqualifications for membership. It is as follows: 191. Disqualifications for membership--(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State: (a) if he holds any office of profit under the Government of India or the Government of an....
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....can be located only in Articles 102(1)(e) and 191(1)(e) of the Constitution and not in Article 246(1) read with Schedule VII List I Entry 97 and Article 248 of the Constitution. We do not, therefore, accept the contention of Mr. Luthra that the power to enact Sub-section (4) of Section 8 of the Act is vested in Parliament Under Article 246(1) read with Schedule VII List I Entry 97 and Article 248 of the Constitution, if not in Articles 102(1)(e) and 191(1)(e) of the Constitution. We have no hesitation in saying that the view expressed above in Lily Thomas (supra) is correct, for the Parliament has the exclusive legislative power to lay down disqualification for membership. 8. In Manoj Narula (supra), the question centered around the interpretation of Article 75 of the Constitution. The core issue pertained to the legality of persons with criminal background and/or charged with offences involving moral turpitude to be appointed as ministers in the Central and the State Governments. The majority referred to the constitutional provisions, namely, Articles 74, 75, 163 and 164, adverted to the doctrine of implied limitation and, in that context, opined thus: 64. On a stud....
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....rruption at many a level. In a democracy, the people never intend to be governed by persons who have criminal antecedents. This is not merely a hope and aspiration of citizenry but the idea is also engrained in apposite executive governance. And again: That the Prime Minister would be giving apposite advice to the President is a legitimate constitutional expectation, for it is a paramount constitutional concern. In a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility as a consequence of which the cherished values of democracy and established norms of good governance get condignly fructified. The Framers of the Constitution left many a thing unwritten by reposing immense trust in the Prime Minister. The scheme of the Constitution suggests that there has to be an emergence of constitutional governance which would gradually grow to give rise to constitutional renaissance. 10. Lokur, J. opined: 132. While it may be necessary, due to the criminalisation of our polity and consequently of our politics, to ensure that certain persons do not become Ministers, this is not possible through guidelines issued by th....
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....he country will depend upon the way in which the country is administered. That will depend upon the men who administer it. It is a trite saying that a country can have only the Government it deserves. Our Constitution has provisions in it which appear to some to be objectionable from one point or another. We must admit that the defects are inherent in the situation in the country and the people at large. If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them. 12. Kurian Joseph, J., concurring with the opinion, has stated: 152. No doubt, it is not for the Court to issue any direction to the Prime Minister or the Chief Minister, as the case may be, as to the manner in which they should exercise their power while selecting the colleagues in the Council of Ministers. That i....
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....Parliament has provided Under Sections 8, 8A, 9, 9A, 10 and 10A which read thus: 8. Disqualification on conviction for certain offences.--(1) A person convicted of an offence punishable under-- (a) Section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or Section 17IE (offence of bribery) or Section 17IF (offence of undue influence or personation at an election) or Sub-section (1) or Sub-section (2) of Section 376 or Section 376A or Section 376B or Section 376C or Section 376D (offences relating to rape) or Section 498A (offence of cruelty towards a woman by husband or relative of a husband) or Sub-section (2) or Sub-section (3) of Section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860); or (b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for ....
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.... (a) any law providing for the prevention of hoarding or profiteering; or (b) any law relating to the adulteration of food or drugs; or (c) any provisions of the Dowry Prohibition Act, [1961 (28 of 1961) and sentenced to imprisonment for not less than six months, shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. (3) A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in Sub-section (1) or Sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. (4) Notwithstanding anything in Sub-section (1), Sub-section (2) and Sub-section (3) a disqualification under either Sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the s....
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....on for dismissal for corruption or disloyalty.--(1) A person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal. (2) For the purposes of Sub-section (1), a certificate issued by the Election Commission to the effect that a person having held office under the Government of India or under the Government of a State, has or has not been dismissed for corruption or for disloyalty to the State shall be conclusive proof of that fact: Provided that no certificate to the effect that a person has been dismissed for corruption or for disloyalty to the State shall be issued unless an opportunity of being heard has been given to the said person. 9A. Disqualification for Government contracts, etc.--A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government. Explanation.--Fo....
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....lent political atmosphere being dominated by people with criminal records. 18. It has also been highlighted by the Petitioners that criminalization in politics is on the rise and the same is a documented fact and recorded by various committee reports. The Petitioners also highlight that the doctrine of fiduciary relationship has been extended to several constitutional posts and that if members of Public Service Commission, Chief Vigilance Commissioner and the Chief Secretary can undergo the test of integrity check and if "framing of charge" has been recognized as a disqualification for such posts, then there is no reason to not extend the said test of "framing of charge" to the posts of Members of Parliament and State Legislatures as well. To further accentuate this stand, the Petitioners point out that such persons hold the posts in constitutional trust and can be made subject to rigours and fetters as the right to contest elections is not a fundamental right but a statutory right or a right which must confirm to the constitutional ethos and principles. 19. The Petitioners are attuned to the principle of "presumption of innocence" under our criminal law. But they are of the ....
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....ation and the language of the said provision leaves no room for any new ground to be added or introduced. Criminalization of politics 24. Though we have analyzed the aforesaid aspect, yet we cannot close the issue, for the learned Counsel for the Petitioners and some of the intervenors have argued with immense anguish that there is a need for rectification of the system failing which there will be progressive malady in constitutional governance and gradually, the governance would be controlled by criminals. The submission has been advanced with sanguine sincerity and genuine agony. There have been suggestions as well as arguments with the purpose of saving the sanctity of democracy and to advance its enduring continuance. To appreciate the same, we will focus on the criminalization of politics. 25. In the beginning of the era of constitutional democracy, serious concerns were expressed with regard to the people who are going to be elected. Dr Rajendra Prasad on the Floor of the Constituent Assembly, before putting the motion for passing of the Constitution, had observed: ...It requires men of strong character, men of vision, men who will not sacrifice the interest....
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.... the fact that over the past few years, several criminals had been elected to local bodies, State Assemblies and the Parliament. The Report observed: In the bigger cities, the main source of income relates to real estate-forcibly occupying lands/buildings, procuring such properties at cheap rates by forcing out the existing occupants/tenants etc. Over time, the money power thus acquired is used for building up contacts with bureaucrats and politicians and expansion of activities with impunity. The money power is used to develop a network of muscle-power which is also used by the politicians during elections. And again: The nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country. The existing criminal justice system, which was essentially designed to deal with the individual offences/crimes, is unable to deal with the activities of the Mafia; the provisions of law in regard economic offences are weak. 29. The Election Commission has also remained alive to the issue of criminalization of politics since 1998. While proposing reforms to tackle the menace of criminalization of politics, the Former....
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....romote the said object must be welcomed and upheld as subserving the constitutional purpose. 32. In K. Prabhakaran v. P. Jayarajan AIR 2005 SC 688, in the context of enacting disqualification Under Section 8(3) of the Act, the Court observed that persons with criminal background pollute the process of election as they have no inhibition in indulging in criminality to gain success in an election. Further, the Court observed: Those who break the law should not make the law. Generally speaking the purpose sought to be achieved by enacting disqualification on conviction for certain offences is to prevent persons with criminal background from entering into politics and the house-a powerful wing of governance. Persons with criminal background do pollute the process of election as they do not have many a holds barred (sic) and have no reservation from indulging into criminality to win success at an election. 33. The Court in Manoj Narula (supra), while observing that criminalization of politics is an anathema to the sacredness of democracy, stated thus: A democratic polity, as understood in its quintessential purity, is conceptually abhorrent to corruption and, esp....
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....ister of Law and Justice stating thus: 1. "While the Law Commission was working towards suggesting its recommendations to the Government on Electoral Reforms, an Order was passed by the Hon'ble Supreme Court dated 16.12.2013 in Public Interest Foundation and Ors. v. Union of India and Anr., vide D.O. No. 4604/2011/SC/PIL(W] dated 21st December, 2013. 2. In the aforesaid Order, the Hon'ble Supreme Court noted that Law Commission may take some time for submitting a comprehensive report on all aspects of electoral reforms. However, the Hon'ble Court further mentioned that "the issues with regard to de-criminalization of politics and disqualification for filing false affidavits deserve priority and immediate consideration" and accordingly requested the Law Commission to "expedite consideration for giving a report by the end of February, 2014, on the two issues, namely: 1. Whether disqualification should be triggered upon conviction as it exists today or upon framing of charges by the court or upon the presentation of the report by the Investigating Officer Under Section 173 of the Code of Criminal procedure? [Issue No. 3.1 (ii) of the Consultation....
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....e issue pertaining to the extent of criminalization in politics and took note of the observations made by Mr. C. Rajagopalachari who, as back as in 1922, had anticipated the present state of affairs twenty-five years before Independence, when he wrote in his prison diary: Elections and their corruption, injustice and tyranny of wealth, and inefficiency of administration, will make a hell of life as soon as freedom is given to us... 39. The Commission also observed that the nature of nexus changed in the 1970s and instead of politicians having suspected links to criminal networks, as was the case earlier, it was persons with extensive criminal backgrounds who began entering politics and this fact was confirmed in the Vohra Committee Report in 1993 and again in 2002 in the report of the National Commission to Review the Working of the Constitution (NCRWC). The Commission referred to the judgment of this Court in Union of India v. Association for Democratic Reforms (2002) 5 SCC 294 which had made an analysis of the criminal records of candidates possible by requiring such records to be disclosed by way of affidavit and this, as per the Commission, had given a chance to the....
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.... Not only this, the Commission also observed that some States have a much higher percentage of MLAs with criminal records: in Uttar Pradesh, 47% of MLAs have criminal cases pending and a number of these MPs and MLAs have been Accused of multiple counts of criminal charges, for example, in a constituency of Uttar Pradesh, the MLA has 36 criminal cases pending including 14 cases relating to murder. As per the Commission, it is clear from this data that about one-third of the elected candidates at the Parliament and State Assembly levels in India have some form of criminal taint and also that the data elsewhere suggests that one-fifth of MLAs have pending cases which have proceeded to the stage of charges being framed against them by a court at the time of their election. What the Commission found to be more disturbing was the fact that the percentage of winners with criminal cases pending is higher than the percentage of candidates without such backgrounds, as the data reveals that while only 12% of candidates with a "clean" record win on an average, 23% of candidates with some kind of criminal record win which implies that candidates charged with a crime actually fare better in elec....
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....w. Convicted politicians may continue to influence law-making by controlling the party and fielding proxy candidates in legislature. In a democracy essentially based on parties being controlled by a high-command, the process of breaking crime-politics nexus extends much beyond purity of legislators and encompasses purity of political parties as well. ....It is suggested that political parties should refrain from appointing or allowing a person to continue holding any office within the party organisation if the person has been deemed to lack the qualities necessary to be a public official. Therefore, the legal disqualifications that prevent a person from holding office outside a party should operate within the party as well. 44. Commenting on the existing legal framework, it opined that legally, the prevention of entry of criminals into politics is accomplished by prescribing certain disqualifications that will prevent a person from contesting elections or occupying a seat in the Parliament or an Assembly and presently, the qualifications of Members of Parliament are listed in Article 84 of the Constitution, while the disqualifications can be found Under Article 102. The....
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....d is whether disqualification should continue to be triggered only at the stage of conviction as is currently the case Under Section 8 of the RPA. As detailed below, the current law suffers from three main problems: the rate of convictions among sitting MPs and MLAs is extremely low, trials of such persons are subject to long delays, and the law does not provide adequate deterrence to political parties granting tickets to persons of criminal backgrounds. This has resulted in a massive increase in the presence of criminal elements in politics, which affects our democracy in very evident ways. 48. Thereafter, the Commission went on to observe in its Reform Proposal as to why the stage of framing of charge sheet would not be an appropriate stage for disqualification. The Commission observed thus: When filing a charge-sheet, the Police is simply forwarding the material collected during investigation to a competent Court of law for the Court to consider what provisions the Accused should be charged under. At this stage, there is not even a remote or prima facie determination of guilt of the Accused by a Court of law. At the stage of filing or forwarding the charge-sheet to t....
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.... cognizance would be inappropriate and observed thus: Due to the absence of an opportunity to the Accused to be heard at the stage of filing of charge-sheet or taking of cognizance, and due to the lack of application of judicial mind at this stage, it is not an appropriate stage to introduce electoral disqualifications. Further, in a case supposed to be tried by the Sessions Court, it is still the Magistrate who takes cognizance. Introduction of disqualifications at this stage would mean that a Magistrate who has been deemed not competent to try the case still determines whether a person should be disqualified due to the charges filed. Because of these reasons, it is our view that the filing of the police report Under Section 173 Code of Criminal Procedure or taking of cognizance is not an appropriate stage to introduce electoral disqualifications.... 50. Thereafter, the Commission proceeded to examine why the framing of charges is an appropriate stage for disqualification. It went on to make the following observations on this aspect: The Supreme Court, in Debendra Nath Padhi, overruling Satish Mehra, held that the Accused cannot lead any evidence at c....
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.... for proceeding against the Accused. Further, the burden of proof at this stage is on the prosecution who must establish a prima facie case where the evidence on record raises 'grave suspicion'. Together, these tests offer protection against false charges being imposed. In addition to the safeguards built in at the stage of framing of charges, an additional option is available in the shape of Section 311 of the Code of Criminal Procedure. Section 311 grants power to the Court to summon or examine any person at any stage of the trial if his evidence appears essential to the just decision of the case. Although this Section is not very widely used, and the Supreme Court has cautioned against the arbitrary exercise of this power, it grants wide discretion to the court which may even be exercised suo motu. This Section may be used by the Court to examine additional evidence before framing charges where the consequence of such framing may disqualify the candidate. The framing of charges is therefore not an automatic step in the trial process, but one that requires a preliminary level of judicial scrutiny. The provisions in the Code of Criminal Procedure require ....
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....framed--on the contrary, he has several legal options available to him prior to this stage. Finally, though criminal jurisprudence presumes a man innocent till proven otherwise, disqualifying a person from contesting elections at the stage of framing of charges does not fall foul of this proposition. Such a provision has no bearing on whether indeed the person concerned is guilty of the alleged offence or not. On the contrary, it represents a distinct legal determination of the types of persons who are suitable for holding representative public office in India. Given the proliferation of criminal elements in Parliament and State Assemblies, it is indicative of a public resolve to correct this situation. Further, the existing provisions which disqualify persons on conviction alone have been unable to achieve this task. Thus it is now strongly felt that it is essential to disqualify those persons who have had criminal charges framed against them by a court of competent jurisdiction, subject to certain safeguards, from contesting in elections. Such a determination of suitability for representative office has no bearing on his guilt or innocence which can, and will, only be ju....
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....by a cut-off period before the date of scrutiny of nomination for an election, charges filed during which period, will not attract disqualification. The basis for this distinction is clear-- to prevent false cases being filed against political candidates. x x x ...The cut-off period should be one year from the date of scrutiny of the nomination, i.e. charges filed during the one year period will not lead to disqualification. We feel that one year is an appropriate time-frame. It is long enough so that false charges which may be filed specifically to disqualify candidates will not lead to such disqualification; at the same time it is not excessively long which would have made such disqualification redundant. It thus allows every contesting candidate at minimum a one year period to get discharged. It thus strikes an appropriate balance between enlarging the scope of disqualification while at the same time seeks to disincentives the filing of false cases solely with the view to engineer disqualification. 56. Another safeguard in the form of period of applicability was also proposed by the Commission which prescribes a time period or duration for which the said dis....
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....larged scope of disqualification has enough deterrent effect. A six-year period would at least ensure that a person will be disqualified from one election cycle thereby serving as a real safeguard against criminals entering politics. At the same time it is the same as the period prescribed when a person is disqualified on conviction for certain offences, which such provision is comparable to. It thus has the added merit of uniformity. For these reasons, it is recommended that in the event of a charge being framed in respect of the enumerated offences against a person, he will be disqualified from contesting in elections for a period of six years from the date of framing of charge or till acquittal whichever is earlier, provided that the charge has not been framed within the protected window before an election. 58. The eventual recommendations and proposed Sections by the Law Commission read as follows: 1. x x x x x 2. The filing of the police report Under Section 173 Code of Criminal Procedure is not an appropriate stage to introduce electoral disqualifications owing to the lack of sufficient application of judicial mind at this stage. 3. The stage of ....
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....1) of the RPA. iii. Include the offence of filing false affidavit as a corrupt practice Under Section 123 of the RPA. 2. Since conviction Under Section 125A is necessary for disqualification Under Section 8 to be triggered, the Supreme Court may be pleased to order that in all trials Under Section 125A, the relevant court conducts the trial on a day-to-day basis. 3. A gap of one week should be introduced between the last date for filing nomination papers and the date of scrutiny, to give adequate time for the filing of objections to nomination papers. 59. The aforesaid recommendations for proposed amendment never saw the light of the day in the form of a law enacted by a competent legislature but it vividly exhibits the concern of the society about the progressing trend of criminalization in politics that has the proclivity and the propensity to send shivers down the spine of a constitutional democracy. 60. Having stated about the relevant aspects of the Law Commission Report and the indifference shown to it, the learned Counsel for the Petitioners and intervenors have submitted that certain directions can be issued to the Election Commission so tha....
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....f the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. (6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by Clause (1). 62. 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. 63. In Election Commission of India and Anr. v. Dr. Subramaniam Swamy and Anr. (1996) 4 SCC 104, 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. The Court observed: ....
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....e President of India (Under Section 14) ignites the general elections across the nation by calling upon the People, divided into several constituencies and registered in the electoral rolls, to choose their representatives to the Lok Sabha. The constitutionally appointed authority, the Election Commission, takes over the whole conduct and supervision of the mammoth enterprise involving a plethora of details and variety of activities, and starts off with the notification of the time table for the several stages of the election (Section 30).' The assembly line operations then begin. An administrative machinery and technology to execute these enormous and diverse jobs is fabricated by the Act, creating officers, powers and duties, delegation of functions and location of polling stations. The precise exercise following upon the calendar for the poll, commencing from presentation of nomination papers, polling drill and telling of votes, culminating in the declaration and report of results are covered by specific prescriptions in the Act and the rules. The secrecy of the ballot, the authenticity of the voting paper and its' later identifiability with reference to particular polli....
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.... ...Since the conduct of all elections to the various legislative bodies and to the offices of the President and the Vice-President is vested Under Article 324(1) in the Election Commission, the framers of the Constitution took care to leaving scope for exercise of residuary power by the Commission, in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time in such a large democracy as ours. Every contingency could not be foreseen, or anticipated with precision. That is why there is no hedging in Article 324. The Commission may be required to cope with some situation which may not be provided for in the enacted laws and the rules.... 67. In A.C. Jose v. Sivan Pillai and Ors. AIR 1984 SC 921, this Court held that: It is true that Article 324 does authorise the Commission to exercise powers of superintendence, direction and control of preparation of electoral rolls and the conduct of elections to Parliament and State legislatures but then the Article has to be read harmoniously with the Articles that follow and the powers that are given to the Legislatures under entry No. 72 in the Union List and entry No.....
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....ted. There is no denial of the fact that the Election Commission has the plenary power and its view has to be given weightage. That apart, it has power to supervise the conduct of free and fair election. However, the said power has its limitations. The Election Commission has to act in conformity with the law made by the Parliament and it cannot transgress the same. 71. It is submitted by Mr. Krishnan Venugopal, learned senior Counsel appearing for the Petitioner in Writ Petition (Civil) No. 800 of 2015 that traditionally, the Court would not breach the principle of separation of powers, however, this cannot prevent this Court from passing necessary directions to address the systemic growth of the problem of criminalization of politics and the political system without breaching the principle of separation of powers and this Court, in order to discharge its constitutional function, can give directions to the Election Commission to exercise its powers Under Article 324 of the Constitution to redress violation of the fundamental rights and to protect the purity of the electoral process. Mr. Venugopal contends that in the past too, this Court, on several instances, had given directi....
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....ould not amount to adding a disqualification beyond what has been provided by the legislature but would only deprive a candidate from contesting with the symbol of the political party. 75. The aforesaid submission is seriously opposed by the learned Attorney General. It is the case of the first Respondent that Section 29A of the Act does not permit the Election Commission of India to deregister a political party. To advance this view, the Union of India has relied upon the decision of this Court in Indian National Congress (I) v. Institute of Social Welfare and Ors. (2002) 5 SCC 685. 76. It is also the asseveration of the first Respondent that the power of this Court to issue directions to the Election Commission of India have been elaborately dealt with in Association for Democratic Reforms (supra) wherein this Court held that Article 32 of the Constitution of India only operates in areas left unoccupied by legislation and in the case at hand, the Constitution of India and the Representation of the People Act, 1951 already contain provisions for disqualification of Members of Parliament. Therefore, directing the Election Commission to (a) deregister a political party, (b) re....
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....espondent that the standard of charging a person is always less than a prima facie case, i.e., a person can be charged if the facts emerging from the record disclose the existence of all the ingredients constituting the alleged offence and, therefore, the consequences of holding that a person who is merely charged is not entitled to membership of a political party would be grave as it would have the effect of taking away a very valuable advantage of the symbol of the political party. 82. It has been further contended by the first Respondent that every citizen has a right Under Article 19(1)(c) to form associations which includes the right to be associated with persons who are otherwise qualified to be Members of Parliament under the Constitution of India and under the law made by the Parliament. Further, this right can only be restricted by law made by the Parliament and any direction issued by the Election Commission of India Under Article 324 is not law for the purpose of Article 19(1)(c). 83. The first Respondent also submits that the Act already contains detailed provisions for disclosure of information by a candidate in the form of Section 33A which requires every candid....
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....is Order symbols are either reserved or free. (2) Save as otherwise provided in this Order, a reserved symbol is a symbol which is reserved for a recognised political party for exclusive allotment to contesting candidates set up by that party. (3) A free symbol is a symbol other than a reserved symbol. 88. 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. 89. Thereafter, Clause (6) classifies political parties into ....
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....ary or assembly constituency, if, and only if,- (a) the candidate has made the prescribed declaration to this effect in his nomination paper; (aa) the candidate is a member of that political party and his name is borne on the rolls of members of the party; (b) a notice by the political party in writing, in Form B, to that effect has, not later than 3 p.m. on the last date for making nominations, been delivered to the Returning Officer of the constituency; (c) the said notice in Form B is signed by the President, the Secretary or any other office bearer of the party, and the President, Secretary or such other office bearer sending the notice has been authorised by the party to send such notice; (d) the name and specimen signature of such authorised person are communicated by the party, in Form A, to the Returning Officer of the constituency and to the Chief Electoral Officer of the State or Union Territory concerned, not later than 3 p.m. on the last date for making nominations; and (e) Forms A and B are signed, in ink only, by the said office bearer or person authorised by the party: Provided that no facsimile signature....
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....ub-clause (c) of Clause 18, the power to issue instructions and directions, in matters relating to reservation and allotment of symbols, has been reserved by the Election Commission itself. 97. 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. 98. Assuming a hypothetical situation, where a particular symbol is reserved for a particular political party and such a political party sets up a candidate in elections against whom charges have been framed for heinous and/or grievous offences and if we were to accept the alternative proposal put forth by the Petitioners to direct the Election Commission that such a candidate cannot be allowed to contest with the reserved symbol for the political party, it would tantamount to adding a new ground for disqualificatio....
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....wherein it was observed thus: In this regard it is to be borne in mind that a court of law has to act within the statutory command and not deviate from it. It is a well-settled proposition of law what cannot be done directly, cannot be done indirectly. While exercising a statutory power a court is bound to act within the four corners thereof. The statutory exercise of power stands on a different footing than exercise of power of judicial review. 104. That apart, any direction to the Election Commission in the nature as sought by the Petitioners may lead to an anomalous situation and has the effect potentiality to do something indirectly which is not permissible to do directly. A candidate bereft of party symbol is, in a way, disqualified from contesting under the banner of a political party. It is contended that the person concerned can contest the election as an independent candidate but, as we perceive, the impact would be the same. That apart, without a legislation, it may be difficult to proscribe the same. Additionally, democracy that is based on multi-party system is likely to be dented. In Shailesh Manubhai Parmar v. Election Commission of India 2018 (10) SCALE 5....
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....t is an abstraction which does not withstand the scrutiny of, to borrow an expression from Krishna Iyer, J., the "cosmos of concreteness. We may immediately add that the option of NOTA may serve as an elixir in direct elections but in respect of the election to the Council of States which is a different one as discussed above, it would not only undermine the purity of democracy but also serve the Satan of defection and corruption. 106. Thus analyzed, the directions to the Election Commission as sought by the Petitioners runs counter to what has been stated hereinabove. Though criminalization in politics is a bitter manifest truth, which is a termite to the citadel of democracy, be that as it may, the Court cannot make the law. 107. Directions to the Election Commission, of the nature as sought in the case at hand, may in an idealist world seem to be, at a cursory glance, an antidote to the malignancy of criminalization in politics but such directions, on a closer scrutiny, clearly reveal that it is not constitutionally permissible. The judicial arm of the State being laden with the duty of being the final arbiter of the Constitution and protector of constitutional ethos canno....
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....d judgment was delivered, the Representation of the People (Amendment) Ordinance, 2002 (4 of 2002) was promulgated and the validity of the same was called in question Under Article 32 of the Constitution of India. The three Judge Bench in People's Union for Civil Liberties (PUCL) (supra) held that Section 33-B which provided the candidate to furnish information only under the Act and the Rules is unconstitutional. The said provision read as follows: 33-B. Candidate to furnish information only under the Act and the rules.--Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this Act or the Rules made thereunder. 111. P. Venkata Reddy, J. expressed his view as follows: (1) Securing information on the basic details concerning the candidates contesting for elections to Parliament or the State Legislature promotes freedom of expression and therefore the right to information forms an integral par....
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.... democracy would become a teasing illusion to common citizens of this country. Not only a half-hearted attempt in the direction of reform of the election system is to be taken, as has been done by the present legislation by amending some provisions of the Act here and there, but a much improved election system is required to be evolved to make the election process both transparent and accountable so that influence of tainted money and physical force of criminals do not make democracy a farce -- the citizen's fundamental 'right to information' should be recognised and fully effectuated. This freedom of a citizen to participate and choose a candidate at an election is distinct from exercise of his right as a voter which is to be regulated by statutory law on the election like the RP Act. 113. In Resurgence India v. Election Commission of India (2014) 14 SCC 189, referring to the precedents, this Court ruled thus: 20. Thus, this Court held that a voter has the elementary right to know full particulars of a candidate who is to represent him in Parliament and such right to get information is universally recognised natural right flowing from the concept of democra....
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....eminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that justice itself is prejudiced. 29.5. We clarify to the extent that para 73 of People's Union for Civil Liberties case will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars. 29.6. The candidate must take the minimum effort to explicitly remark as 'NIL' or 'Not Applicable' or 'Not known' in the columns and not to leave the particulars blank. 29.7. Filing of affidavit with blanks will be directly hit by Section 125-A(i) of the RP Act. However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalised for the same act by prosecuting him/her. 115. In People's Union for Civil Liberties v. Union of India (2013) 10 SCC 1, the Court held that the universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for thes....
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....nformation pertaining to candidates having criminal antecedents. (v) 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. 117. These directions ought to be implemented in true spirit and right earnestness in a bid to strengthen the democratic set-up. There may be certain gaps or lacunae in a law or legislative enactment which can definitely be addressed by the legislature if it is backed by the proper intent, strong resolve and determined will of right-thinking minds to ameliorate the situation. It must also be borne in mind that the law cannot always be found fault with for the lack of its stringent implementation by the concerned authorities. Therefore, it is the solemn responsibility of all concerned to enforce the law as well as the directions laid down by this Court from time to time in order to infuse the culture of purity in politics and in democracy and foster and nurture an ....