Criminalisation in Politics: Did the Supreme Court Miss the Wood for the Trees?

The question the apex court did not answer was why it had to appeal to Parliament to make a law, if it felt there was no legislative void, to achieve this purpose.

The Supreme Court’s constitution bench, in its judgment in Public Interest Foundation & Others v Union of India on Tuesday, explains its limitations in preventing those charged with heinous offences from becoming  legislators and finds that Parliament alone is competent to do so. It satisfies itself by appealing to Parliament to make a law for this purpose on priority and issues a few directions to the Election Commission and the political parties to make the disclosure of the criminal antecedents of candidates contesting elections sufficient and clear to the voters, so that the latter could be warned not to vote the candidates, charged with serious offences.

The bench, comprising the Chief Justice of India, Dipak Misra and Justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, in its unanimous judgment, said:

In a multi-party democracy, where members are elected on party lines and are subject to party discipline, we recommend to the Parliament to bring out a strong law whereby it is mandatory for the political parties to revoke membership of persons against whom charges are framed in heinous and grievous offences and not to set up such persons in elections, both for the Parliament and the State assemblies.   This, in our alternative and plausible view, would go a long way in achieving decriminalisation of politics and usher in an era of immaculate, spotless, unsullied and virtuous constitutional democracy.

The bench then directs that the EC’s form to be filled up by each candidate must state in bold letters details of criminal cases pending against him or her; the candidate is required to inform the party about the criminal cases pending against him; the party has an obligation to put up on its website the information pertaining to candidates with criminal antecedents. The candidate as well as the political party shall issue a declaration in the widely circulated newspapers in the locality about the criminal antecedents of the candidate and also give wide publicity in the electronic media. “When we say wide publicity, the same shall be done at least thrice during the campaign”, the bench says.

Clear case of inconsistency

The judgment is disappointing because of its inconsistency and the fact that it misses the woods for the tree. The bench shares the petitioners’ concern about the growing criminalisation of polity, which is a threat to the basic structure of the constitution. Still, it expresses its inability to go beyond what it did, on the ground that it is bound by the doctrine of separation of powers between the legislature and the judiciary not to cross the ‘Lakshman Rekha’. There are enough reasons to believe that the bench not only confounded the issues before it, but ignored the many precedents which it had set to determine what constitutes Lakshman Rekha.

The primary question to be answered is whether the petitioners wanted the Court to cross the Lakshman Rekha, by adding even through the backdoor, an additional ground of disqualification of the legislators. The petitioners and the interveners repeatedly told the bench during the hearing that they did not seek an additional ground of disqualification to be imposed on the legislators, beyond what have been laid down in the Constitution and the law.

Given the sharing of perception between the bench and the petitioners that criminalisation of politics must be eschewed, both implicitly admit that there is a void in law, which has resulted in this malaise and it needs to be filled by a law made by Parliament. However, while the petitioners felt that in the context of Parliament not enacting the requisite law to fill the void for so many years, it was time for the court to step in. The bench, however, found that there was no void in law, which needed to be filled by the Court. The question which it did not answer was why it had to appeal to Parliament to make a law, if it felt there was no legislative void, to achieve this purpose. Clear case of inconsistency?

Did the petitioners’ plea for a direction to the EC to deprive party symbols to candidates with serious criminal charges amount to adding an additional ground of disqualification of legislators to the existing list of grounds of disqualification, as laid down in the Constitution and the law?

The bench cites Section 7 (b) of the Representation of People Act, 1951, which defines ‘disqualified’ as follows:

“disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State, under the provisions of this Chapter, and on no other ground”.

The bench then says that the words ‘no other ground” in Section 7(b) are of immense significance. Section 8 deals with disqualification on conviction for certain offences. Section 8(a) provides for disqualification on ground of corrupt practices. Section 9 provides for the disqualification for dismissal for corruption or disloyalty. Section 9(a) deals with the situation where there is subsisting contract between the person and the appropriate government. Section 10 lays down disqualification for office under government company and section 10(a) deals with disqualification for failure to lodge account of election expenses. Disqualifications are provided on certain and specific grounds by the legislature. Therefore, the bench suggested that the law, as it stood, meant to be exhaustive of all the grounds of disqualification, and nothing more could be added, or contemplated by the law.

While reasoning thus, the bench ignored its own principle, laid down in several previous judgments, that if there is a conflict between two provisions, one statutory and another Constitutional, the latter will prevail over the former.

Petitioners contended 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 recognised 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 Legislature as well. Such persons, they argued, hold the posts in constitutional trust and can be made subject to rigors 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.

In its reasoning, the bench ignored its own principle, laid down in several previous judgments, that if there is a conflict between two provisions, one statutory and another Constitutional, the latter will prevail over the former. Credit: PTI

The bench did not disagree with this proposition.

Interveners in the case argued that persons charged for an offence punishable with imprisonment for five years or more are liable to be declared as disqualified for being elected or for being a Member of Parliament as a person chargesheeted in a crime involving moral turpitude is undesirable for a job under the government and it is rather incongruous that such a person can become a lawmaker who then control civil servants and other government machinery and, thus, treating legislators on a different footing amounts to a violation of Article 14 of the Constitution.

The bench did not disagree with this contention either. Should not Article 14 of the Constitution prevail over Section 7(b) of the RPA? The bench has no answers, because it did not seem to have noticed a conflict between these two.

Confusion confounded and the bench’s naivete

The petitioners did not seek derecognition of a political party under section 29 of RPA. They only sought that the EC must ask a political party not to field a candidate with its party symbol, if he or she is chargesheeted for a serious offence. The bench, however, erroneously agreed with the contention of the Attorney General, K.K. Venugopal, representing the Centre, that denial of symbol to a party candidate is tantamount to derecognition of a political party. Clearly, the option to replace a candidate, charged with serious offences, with a clean candidate, once the facts are brought to the notice of the party leadership, remains with the party.

Worse, by issuing directions to the political parties and the EC to enhance voters’ awareness about the criminal antecedents of the parties, the bench has exposed its naivete that more disclosure can dissuade the voters from voting for a candidate charged with serious criminal offences. In fact, the bench cites the Law Commission study, to show that the opposite is true.

The commission, the bench says, found that candidates charged with a crime actually fare better in elections than clean candidates: 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 elections than ‘clean’ candidates. This, as per the commission, has resulted in the tendency for candidates with criminal cases to be given tickets a second time and not only do political parties select candidates with criminal backgrounds, but there is also evidence to suggest that untainted representatives later become involved in criminal activities and, thus, the incidence of criminalisation of politics is pervasive, thereby making its remediation an urgent need.

The bench noted that the Law Commission’s recommendations for amendment of law never saw the light of the day, but they vividly exhibited the concern of the society about the progressing trend of criminalisation of politics that has the proclivity and the propensity to send shivers down the spine of a constitutional democracy.

Despite all these, does the bench want us to believe that voters vote candidates charged with serious criminal offences because they are unaware of  this fact, and therefore, more and better disclosure of information could help?

The petitioners did not seek the EC to deprive the membership of political party, but only disentitle the candidate charged with criminal offence for the party symbol.  Both are not the same. A party member can continue to be so, but being entitled to a symbol as a candidate requires he or she is free of any criminal charges. Symbol obvious has a very valuable advantage, as the Court puts it. But how does its deprivation on the ground of criminal charge of a candidate, become “grave”, as the bench puts it?  The court does not explain it beyond linking the membership of a party with automatic entitlement to its symbol.  The petitioners’ nuanced distinction between these two did not register on the bench.

Absurd justification

Worse, the Centre justified criminalisation of politics on the ground that parties have a right to be associated with MPs with criminal charges under Article 19(1)(c) and the Supreme Court didn’t disagree with such a view. Even if the Centre’s view, absurd though it is, is correct, the petitioners did not seek any restriction on this right, as those MPs with criminal charges can continue to associated, although they cannot become its candidates fighting on party’s symbols. The Centre as well as the Court confused membership of the party with the right to contest on a symbol.

“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. This right can only be restricted by law made by Parliament and any direction issued by the EC under Article 324 is not law for the purpose of Article 19(1)(c)”, the Centre told the Supreme Court. Fair enough. But the question is whether political parties fighting elections should have the freedom to be associated with those charged with heinous offences. If this is permissible, there can be no legitimate ban on ultra-left parties like the CPI (Maoist), right?

Requiring every member of a political party to disclose information as criminal antecedents irrespective of whether he/she is contesting election will have serious impact on the privacy of the member, the Centre claimed. Clearly, it is tantamount to turning the right to privacy on its head. The bench fortunately did not agree with this contention, as it insisted that the party disclose the details on its website.

Article 142 of the Constitution does not empower the Supreme Court to add words to  a statute or read words into it which are not there and it does not confer the power upon the Court to make law, the Centre told the bench. However, it is well recognised that if there is a legislative void, the Court could fill in till Parliament enacts a law. There are many precedents to this, which the Court could have followed.

The bench concludes that 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. Such a malignancy is not incurable.  It only depends upon the time and stage when one starts treating it; the sooner the better, before it becomes fatal to democracy”, the bench avers. Why then, it gave up its opportunity to address it, and left it to Parliament when the political class has shown no interest to clean the augean stables for decades?