The Supreme Court Seems to Be Vacillating Between Being Progressive and Regressive

A signboard is seen outside the premises of Supreme Court in New Delhi, India, September 28, 2018. Credit: Reuters/Anushree Fadnavis

The Supreme Court of India seems to be vacillating between being progressive and regressive. Of course, the nature of the issue being adjudicated does have the potential to influence the approach of a particular bench. But the phenomenon of vacillation seems particularly pronounced when it comes to cases of a political nature.

The latest judgment that brings this out is in the case of Public Interest Foundation and others versus Union of India and another announced on September 25, 2018, in which the SC ruled against debarring persons with criminal cases pending against them from contesting elections.

The petitioners had asked the SC to debar those persons who have criminal cases pending against them, cases in which charges have been framed by a court of law. The SC declined to do this with the reasoning that the power to make laws rests exclusively with the legislature, and the judiciary can only interpret laws but cannot make them. The operative paragraph of the judgment reads as follows:

“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 criminalisation 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 cannot usurp the power which it does not have.”

Also read: SC Had a Chance to Decriminalise Indian Politics, But Failed to Grab It

This has been done following the doctrine of ‘separation of powers’ which holds that the powers, or areas of responsibility, of the three ‘pillars of the State’ – the legislature, the executive, and the judiciary – are clearly separate, and each pillar should restrict itself to its defined domain and not interfere with the domain of the other two pillars. The intention is to prevent concentration of too much, or all, power in one entity which has potential for misuse.

What the SC seems to have overlooked is that the ‘separation of powers’ doctrine has a concomitant doctrine called ‘checks and balances’. The Encyclopaedia Britannica describes this doctrine as follows:

Checks and balances, principle of government under which separate branches are empowered to prevent actions by other branches and are induced to share power. Checks and balances are applied primarily in constitutional governments. They are of fundamental importance in tripartite governments, … , which separate powers among legislative, executive, and judicial branches” (Italics added).

“The framers of the U.S. Constitution, who were influenced by Montesquieu and William Blackstone among others, saw checks and balances as essential for the security of liberty under the Constitution: ‘It is by balancing each of these powers against the other two, that the efforts in human nature toward tyranny can alone be checked and restrained, and any degree of freedom preserved in the constitution’ (John Adams).”

What this means in simple terms is that while each pillar is indeed independent in the exercise of its functions, if any one pillar does not do what it is supposed to do or does something wrong, the other two pillars are expected to step in to correct the distortions arising out of the inability or unwillingness of the one pillar to perform its responsibility as indicated in the constitution. The implication is that while the authority of each pillar is independent, it is not absolute. It is subject to be ‘checked’ and ‘balanced’ by the other two pillars.

This has given rise to a principle in law which can be called “filling in the gap or vacuum in legislation”, which lays down three conditions under which the judiciary can, actually should, perform a legislative function. The principle can be enunciated thus:

If (a) there is a gap, vacuum, void, or infirmity in legislation, (b) the Legislature and the Executive have not had the time or inclination to fill the gap or correct the infirmity, and most importantly, (c) public interest is suffering, then the Judiciary has a right, nay a duty, to fill the gap or correct the infirmity, till such time as the Legislature or the Executive decide to take appropriate action.

The judiciary’s decision will stand till such time as either the legislature or the executive do what they are expected to do, and will lapse once one or both of the two other pillars have performed their function.

What is really surprising is the SC has overlooked its very own judgment of May 2, 2002, in the case Union of India vs Association for Democratic Reforms which is considered a landmark in the field of de-criminalisation of politics, and which it has quoted with approval in the September 25, 2018, judgment.

Some excerpts from the May 2, 2002 judgment are given below for ready reference:

There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role.”

“Thus, an exercise of this kind by the court is now a well-settled practice which has taken firm roots in our constitutional jurisprudence. This exercise is essential to fill the void in the absence of suitable legislation to cover the field.”

“For deciding the aforesaid questions, we would proceed on the following accepted legal position.”

“At the outset we would say that it is not possible for this Court to give any directions for amending the Act or the statutory Rules. It is for the Parliament to amend the Act and the Rules. It is also established law that no direction can be given, which would be contrary to the Act and the Rules. However, it is equally settled that in case when the Act or Rules are silent on a particular subject and the Authority implementing the same has constitutional or statutory power to implement it, the Court can necessarily issue directions or orders on the said subject to fill the vacuum or void till the suitable law is enacted.”

“Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to sub-serve public interest.”

It is therefore difficult to understand how the highest court in the land could reject the filling in the gap or vacuum in legislation” principle in a perfunctory paragraph:

85. 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.”

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

The SC ends its judgment of September 25 on a pious note:

We are sure, the law-making wing of the democracy of this country will take it upon itself to cure the malignancy. We say so as 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. Thus, we part.”

Will this pious confidence of the judiciary in the “law making wing of democracy of this country” be honoured?

Concrete information about the number of persons with serious criminal cases pending against them, who contest elections, has been available in the public domain since the 2002 decision of the SC. It has been regularly reported on the website of the Association for Democratic Reforms, and has been widely reported in all forms of media.

But the “law making wing of democracy of this country” has not found the time or has not had the inclination to “cure (this) malignancy” for the last 16 years.

As a matter of fact, the “law making wing of democracy of this country” actually tried to obstruct the implementation of the 2002 judgment of the SC by amending the Representation of the People Act, 1951, and the amendment was first issued as an ordinance and then converted into law unanimously by the “law making wing of democracy of this country”.

The amendment was challenged in the Supreme Court and was “held to be illegal, null and void” by the Supreme Court on March 13, 2003.

It is actually astounding that the same Supreme Court now has such a touching faith in the “law making wing of democracy of this country”.

Just in case the reader(s) think this is a lament of a cynical and frustrated civil society actor, the opinions of two former Chief Election Commissioners are worth reproducing.

The 16th CEC (21 April 2009 to 29 July 2010), Navin B. Chawla, writing in the Indian Express on October 1, 2018, said:

“The Supreme Court’s recent decision was disappointing in that it stopped short of disqualifying candidates who have alleged criminal antecedents from contesting polls, although I do understand that the Court was reluctant to step into the executive’s arena. The Supreme Court left it to Parliament to frame suitable laws to decriminalise our body politic to “cure the malignancy” from within…Unfortunately, this is something that our parliamentarians have assiduously refused to do for the last two decades, ever since the Election Commission first approached the government to enact a suitable law in 1997.” 

His successor, Dr. S.Y. Quraishi, who was the 17th CEC from July 30, 2010 to 10 June 2012, wrote in the Indian Express on September 29, 2018:

“I am disappointed, but not surprised. I have, time and again, called the judiciary the guardian angel of democracy in general, and the Election Commission (EC) in particular. But this time, the SC has passed the buck to the EC, even though the Commission has been crying itself hoarse for the apex court’s aid for the past two decades. Parliament is obliged to make a law on the matter according to Article 102 (1) of the Constitution, but if history is anything to go by, that is unlikely to happen” (italics added).

After disappointing two former CECs and a plethora of those working on electoral reforms in general and trying to reduce the impact of criminalisation on politics in particular, the Hon’ble constitution bench tried to salvage the situation by writing, in paragraph 109 of the September 25, 2018 judgment, “In spite of what we have stated above, we do not intend to remain oblivious to the issue of criminalisation of politics.”

This was followed by recalling that “this court has focused on various aspects of the said criminalisation and given directions from time to time which are meant to make the voters aware about the antecedents of the candidates who contest in the election”. It then recounted several cases in which the court has been progressive, beginning with the May 2002 judgment in the Association for Democratic Reforms case. The judgment then issues five ‘directions’, as reproduced below:

(i) Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.

(ii) It shall state, in bold letters, with regard to the criminal cases pending against the candidate.

(iii) If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.

(iv) The concerned political party shall be obligated to put up on its website the aforesaid information 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.”

What is said in the first direction is already happening for the last 16 years, since 2002, under orders of the SC itself! It is nothing short of amazing the court should issue it as a fresh direction, after quoting this earlier in this very judgment.

The second direction seems to indicate a belief that stating something in “bold letters” really materially increases the salience of the information. While this is indeed true in a general sense, what additions impact will putting it “in bold letters” have in the case of criminal antecedents of candidates contesting elections which have been put in big, bold headlines by the media, is debatable at best.

Also read: SC Rules Against Barring Politicians Facing Criminal Charges From Contesting Elections

Asking a candidate to inform the party “about the criminal cases pending against him/her”, is like carrying coal to Newcastle. It makes a facile assumption that political parties do not know all about the persons they give tickets to.

Whether political parties will put the criminal antecedents of their candidates on their websites is a moot point. It is also an open question as to how the implementation of this “direction” will be monitored and by whom. And then the expectations that voters will visit the websites of political parties to check the antecedents of the candidates also seems unrealistic. And of course, how many voters, particularly those in the hinterland, have access to websites and have the capability to look at websites are also issues worth thinking about. 

And lastly, how realistic is it to expect, or even direct, political parties to “issue a declaration in the widely circulated newspapers in the locality … and also give wide publicity in the electronic media … about the antecedents of the candidate,” is an open issue. The former CEC, Dr S.Y. Quraishi says, “The recommendation regarding publicity campaigns about the criminal background of candidates by political parties sounds counter-intuitive. Why would they actively publicise anything that goes against their interests?”

Facts overlooked 

What is most surprising, actually truly unbelievable, is that while issuing these seemingly important ‘directions’, the Hon’ble court seems to completely overlook a few facts. One, the fact that these petitions were filed is evident proof that this data already exists in the public domain. As a matter of fact, the petitions have actually quoted the data.

Two, data about the elections of persons with serious criminal cases pending against them, have figured in several SC judgments such as the Lily Thomas judgment and the Lok Prahari judgments of 2013. This data also finds prominent mention in the Justice J.S. Verma Committee report set up by the government in the aftermath of the unfortunate and tragic Nirbhaya tragedy.

And three, scanned copies of self-sworn affidavits of over 100,000 persons who have contested parliament and state assembly elections since 2002, are available. These scanned affidavits show the pending criminal cases, if any, against all these candidates. This information is widely used by the media, citizens at large, and ironically by candidates contesting elections, to get information about their opponents.

Also read: Modi’s Promise of Decriminalising Politics Is Mere Lip Service

The judgment, of course, follows the five directions with yet another pious declaration:

“These directions ought to be implemented in true spirit and right earnestness in a bid to strengthen the democratic set-up.”

There are many things that “ought to be” done but the reality is that someone has to take responsibility for making sure they are indeed done. And sometimes it may well be necessary to ‘force’ some people or organisations to do certain things. The Supreme Court is not unaware of this because it wrote the following in one of its judgments in 2003, popularly referred to as the NOTA judgment,

“When the political parties will realise that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity” (Emphasis added).

In closing, the judgment makes impassioned pleas:

We have issued the aforesaid directions with immense anguish…”

“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.”

“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 agonised 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.”

These pleas have to be seen in the following context:

  1. The political parties, the parliament, actually anyone who has the slightest desire to know, has known for at least 16 years that persons with serious criminal cases pending against them have been given nominations (tickets) by political parties.
  1. Not only has the Parliament not done anything about it but the entire political establishment has made its best efforts to stop any attempt at preventing such persons from becoming law-makers.
  1. The Supreme Court which has in the past been a harbinger of electoral reforms, “the guardian angel of democracy” in the words of Dr S.Y. Quraishi, has shied away from taking a critical step on the journey of electoral reforms.

It is for the readers to decide if this is naiveté, ignorance, inability/failure/refusal to accept reality, over cautiousness, conservatism, or political correctness.

Jagdeep S. Chhokar is a former professor, dean and director-in-charge of IIM, Ahmedabad. Views are personal.