Court: The Supreme Court of India
Parties: Petitioner: Rambabu Singh Thakur v/s Respondent: Sunil Arora & Ors
Judgment dated: 13th February 2020
Bench:
- Hon’ble Justice R.F. Nariman, Hon’ble
- Justice S. Ravindra Bhat & Hon’ble
- Justice V. Ramasubramanian.
FACTS
This case is associated with the ‘Criminalization of Political Activities In India’, which refers to people having criminal records being allowed to enter into politics. Criminal records of selected candidates are not made available in the public domain. In this case, the apex court notes that in 2004, 24 percent of the members of parliament were facing criminal charges, whereas in 2019, the number jumped to 43 percent. The case centers on the failure to adhere to directives issued by the Supreme Court of India in the matter known as Public Interest Foundation and Others versus Union of India, also referred to as the “Electoral Disqualification Case.”
This case arose from two petitions filed by BJP Leader Ashwini Upadhyay and an NGO named Public Interest Foundation. In the ruling of Public Interest Foundation & Ors. v. Union of India and Anr. [(2019) 3 SCC 224], the Supreme Court of India exercised its constitutional authority under Article 142 and Article 129. The Court issued several directives, including the mandatory requirement for political parties to publish on their official website information concerning candidates facing criminal charges, along with explanations for their selection over candidates without such backgrounds. These explanations must align with the candidate’s achievements, qualifications, and merits. Additionally, the Court mandated the publication of this information in newspapers and on social media within 48 hours of candidate selection or two weeks from the nomination filing date, whichever comes earlier. Furthermore, political parties are required to submit a compliance report to the Election Commission within 72 hours. Failure to comply may result in the matter being brought to the attention of the Supreme Court for noncompliance with the directives. The aim of filing this case was to seek guidance from the Indian Supreme Court regarding the prohibition of criminals from participating in elections and securing seats as Members of Parliament.
ISSUES RAISED
- Whether the Supreme Court of India restrict candidates having criminal backgrounds from participating in the Elections?
- Can the apex court restrain the membership of parliament exceeding Article 102 (a) to Article 102 (e)?
CONTENTION
Petitioner’s Contention:
Counsel for the petitioner argued that while the right to contest elections is statutory rather than fundamental, adherence to constitutional principles is essential for ensuring effective governance and unbiased politics.
Individuals who have previously violated the law should not be permitted to legislate, as this compromises the integrity of the legislative process.
It was asserted that candidates with criminal records should not be given precedence over those with clean backgrounds, as this prioritizes public interest.
The petitioner’s counsel underscored that constitutional principles are designed for the benefit of the general public and that granting tickets to candidates with criminal records undermines this purpose by introducing criminals into the political arena.
Respondent’s Contention:
Counsel representing the respondent contended that the presence of criminal records alone should not disqualify political candidates from participating in elections.
Respondent adheres to the principle of separation of powers, and the basic structure of the constitution remains intact. It was also asserted that Article 142 does not authorize courts to augment existing laws with additional language.
RATIONALE
Observing the significant rise from 24% to 43% in 2019, the apex court issued directions additional to the Public Interest Foundation and Union of India and ors case exercising its power under Article 129 which said that the Supreme Court being a court of record has the power to punish for its contempt in adherence to Article 142 which has a binding value on courts across India. It notes that the aspect of “separation of powers” doesn’t possess any power to exonerate the court on this matter. Additionally, the examination of the “Doctrine of Colorable Legislation,” which asserts that actions that cannot be carried out directly should not be attempted indirectly, was undertaken in this case. Moreover, the Principle of Presumption of Innocence, which stipulates that individuals are presumed innocent until proven guilty, was highlighted. Disqualifying a Member of Parliament or state legislature solely based on pending criminal cases would be prejudicial according to this principle. Therefore, the guidelines referenced in the aforementioned case echoed those of the present case of Rambabu Singh Thakur vs Sunil Arora.
Upon considering the concepts of Colorable Legislation and the Principle of Separation of Powers, and upon examining the limitations regarding the court’s authority to issue an official writ of mandamus to the Election Commissioner for extending disqualification laws regarding candidates with criminal backgrounds, the Supreme Court concluded that the power to enact laws cannot be delegated to the judiciary. However, the court has the power to issue directions or tips as secured below Article 129 and Article 142 of the Constitution.
The Supreme Court mandated that both Central and State-level political parties must accurately disclose on their respective websites the details regarding pending criminal cases against their selected candidates, along with reasons for choosing these candidates over those with no criminal records. Additionally, this information must be published in one local and one national newspaper, as well as on the official social media platforms of the political party, including Facebook and Twitter. These details must be made public within 48 hours of candidate selection or at least two weeks before the first nomination filing date, whichever comes first. Furthermore, all concerned political parties are required to submit a compliance report to the Election Commission of India within 72 hours of candidate selection. Failure to do so will result in the Election Commission reporting the non-compliance to the Supreme Court of India as contempt of the court’s directives
DEFECTS OF LAW
The Indian constitution does not explicitly outline the criteria for disqualifying individuals from contesting elections for Parliament, Legislative assemblies, or other legislative bodies. Instead, the Representation of Peoples Act delineates the grounds for disqualification.
Section 8 of this Act deals with disqualification upon conviction for specific offenses. According to this provision, individuals sentenced to a jail term exceeding two years are ineligible to contest elections for six years following the completion of their sentence. However, the law does not prohibit individuals facing pending criminal cases from running for office. Therefore, the disqualification of candidates with criminal charges hinges on their conviction in these cases.
Due to prolonged legal proceedings, disqualification based on conviction often proves ineffective due to the low rate of convictions. Additionally, candidates with significant criminal histories often succeed in elections due to their financial resources, which allow them to fund their campaigns and provide substantial support to their political parties.
Some voters may support such candidates based on narrow self-interests, believing that these candidates can better represent their community’s interests, regardless of their criminal backgrounds.
In certain instances, voters may find themselves with limited choices, as all competing candidates may have criminal records.
INFERENCE
The Supreme Court of India has underscored in its recent case analysis the concerning trend of increasing criminalization within politics, which poses a threat to the public welfare by undermining the integrity of our political system and restricting opportunities for clean candidates to contest against those with criminal backgrounds. Addressing these challenges, the Supreme Court has outlined various guidelines aimed at improving the overall health of the political landscape.
It is crucial to recognize that individuals with a history of serious criminal offenses such as rape and murder are not suitable candidates for participation in the justice system, as their criminal actions are already established, and they should face appropriate consequences rather than being afforded further opportunities to engage in wrongdoing. While the “Doctrine of Innocence” presumes innocence until proven guilty, individuals facing numerous criminal charges and ongoing investigations cannot reasonably be regarded as innocent in practical terms.
Hence, it is imperative to contextualize the concept of “Innocence” beyond mere textbook definitions. While the directives issued by the apex court may not completely eradicate the criminalization of politics, they serve as a valuable mechanism for addressing these issues. Furthermore, while Article 142 does not permit the addition of new provisions to existing laws, the Supreme Court, empowered under Article 129 and Article 142, can prioritize public interest while upholding constitutional validity.
Amruta Venkatachalam
O. P. Jindal Global University