Supreme Court constitution bench of Chief Justice Dipak Misra and Justices Rohinton Fali Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra on Tuesday (August 28) reserved its verdict on the petition demanding that election candidates against whom criminal cases have been initiated be banned from the beginning.
The demands was a legislator or a potential legislator should be disqualified from contesting elections at the very stage of framing of charges against him by the trial court.
Today Attorney General (AG) K K Venugopal told the court that legislators do not come under judicial review. He cited a judgment which said that democracy means a multiparty system and also independent candidates could contest elections.
He said that the Representation of Peoples Act has specified the right to vote and the right to contest elections. The Election Commission ahd recommended some amendments in the act in respect of criminalities in election and other issues.
He said that whether the recommendations would be accepted or not depends on public policies. In this he quoted another judgment delivered by Justice Chandrachud. It said that the court has no power to review the legislative mandate or on public policy under the article 226 of the constitution.
In this he talked about the separation of powers.
Senior counsel Dinesh Dwivedi said that the elector’s right which, in fact, is not absolute is not taken away if your lordship imposes condition in the symbols order. He said that right now 35 percent of the legislators have criminal records, ten years down the line who knows how high the percentage would go. We should stop it right here and right now.
Coming in, senior counsel Krishnan Venugopal (the AG’s son) said: “It’s a choice, not a right, that the person must contest an election through a political party. A person can contest his right to contest election independently. He who has a criminal antecedent must not be permitted to contest election through a political party.”
Dwivedi said that the rate of conviction of MPs and MLAs is very low. Criminals become come MPs and MLAs and once they become legislators, the basic foundation of law is tainted.
Venugopal said: “It (the number of legislators with criminal antecedents) was 24 percent in 2004, 30 percent in 2009 and post 2014 elections it is now 34 percent. It won’t be wrong to assume that the constitution is comprised if that number reaches 50 percent.”
He added: “We never know what goes on behind the scene. Once a criminal becomes legislator, chances of conviction falls drastically. While a large number of under-trials remain in jail without being convicted, giving the benefit of presumption of innocence to such people as legislators is not correct.”
At that the CJI asked: “Is it beyond us to direct the political parties to disclose criminal antecedents of its candidates on its website?”
Meenakshi Arora for Election commission submitted that the mechanism as suggested by the bench is already in place but poorly implemented, it was even in fact suggested in the 1999 law commission report.
She said that disclosure as of now is only done by way of affidavit which is posted on the election commission website deliberately last moment. Hence the person voting makes an uninformed choice.
The CJI Dipak Misra said: “We can deal with the aspect of disclosure. However we can’t get into directing disqualification.”
—India Legal Bureau