Judges: Dipak Misra, C.J.I., Rohinton Fali Nariman, A.M. Khanwilkar, Dr. D.Y. Chandrachud and Indu Malhotra, JJ.

Facts:

A three-Judge Bench while hearing a matter was of the view that the question related to the disqualification of membership from House of parliament beyond the Article 102 of the Constitution is required to be addressed by the Constitution Bench under Article 145(3) of the Constitution. Hence, the matter has been placed before present bench.

Issues:

(i) Whether disqualification for membership of House of Parliament can be laid down by the Court beyond Article 102 of Constitution and the law made by the Parliament under Article 102(e) of the Constitution?

(ii) Whether the candidate against whom charges had been framed could not be allowed to contest with reserved symbol for political party?

Law:

Constitution of India - Article 102 - Disqualifications for membership-- (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament-- 

1. if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; 
2. if he is of unsound mind and stands so declared by a competent court; 
3. if he is an undischarged insolvent; 
4. 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; 
5. 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.

Constitution of India - Article 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: 

1. if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; 
2. if he is of unsound mind and stands so declared by a competent court; 
3. if he is an undischarged insolvent; 
4. if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; 
5. 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 specified in the First Schedule 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 the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.

Contentions:

Petitioners

(i) Having regard to the rise of persons with criminal antecedents, the fundamental concept of decriminalization of politics should be viewed from a wider spectrum and this Court, taking into consideration the facet of interpretation, should assume the role of judicial statesmanship.

(ii) The law breakers should not become law makers and there cannot be a paradise for people with criminal antecedents in the Parliament or the State Legislatures.

(iii) 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 the 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 law maker 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.

(iv) Certain directions can be issued to the Election Commission so that the purity of democracy is strengthened. When the Election Commission has been conferred the power to supervise elections, it can control party discipline of a political party by not encouraging candidates with criminal antecedents.

(v) A candidate against whom criminal charges have been framed in respect of heinous and grievous offences should not be allowed to contest with the symbol of the party. The direction would 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.

Respondents

(i) There can be no denial that this Court is the final arbiter of the Constitution and the Constitution empowers this wing of the State to lay down the norms of interpretation and show judicial statesmanship but the said judicial statesmanship should not ignore the fundamental law relating to separation of powers, primary responsibility conferred on the authorities under the respective powers and the fact that no authority should do anything for which the power does not flow from the Constitution.

(ii) If the Court comes to hold that it cannot legislate but only recommend for bringing in a legislation, as envisaged Under Article 102(1)(e) of the Constitution, it would not be appropriate to take recourse to any other method for the simple pure reason that what cannot be done directly, should not be done indirectly.

(iii) Parliament may make law on the basis of the recommendations of the Law Commission but this Court, as a settled principle of law, should not issue a mandamus to the Parliament to pass a legislation and can only recommend.

(iv) Section 29A(5) of the Act is a complete, comprehensive and unambiguous provision of law and any direction to the Election Commission of India to deregister or refuse registration to political parties who associate themselves with persons merely charged with offences would result in violation of the doctrine of separation of powers as that would tantamount to making addition to a statute which is clear and unambiguous.

Analysis:

Adding of Disqualification

(i) As regards to disqualification for being chosen as a member of either Houses of Parliament and similarly disqualification for being chosen or for being a member of the Legislative Assembly or Legislative Council of a State, the law has to be made by the Parliament.

(ii) The Parliament has the exclusive legislative power to lay down disqualification for membership.

(iii) It is well established that the Court cannot legislate. Emphasis is laid on the issuance of guidelines and directions for rigorous implementation of Legislature. With immense anxiety, it is canvassed that when a perilous condition emerges, the treatment has to be aggressive. The Petitioners have suggested another path. But, as far as adding a disqualification is concerned, the constitutional provision states the disqualification, confers the power on the legislature, which has, in turn, legislated in the imperative.

(iv) Thus, the prescription as regards disqualification is complete is in view of the language employed in Section 7(b) read with Sections 8 to 10A of the Representation of the People Act, 1951. There is no ambiguity. The legislature has very clearly enumerated the grounds for disqualification and the language of the said provision leaves no room for any new ground to be added or introduced.

Reserved Symbol - contesting of elections

(i) When a candidate had been set up in an election by a particular political party, then such a candidate had a right under Sub-clause (3) of Clause (8) of the symbols order to choose the symbol reserved for the respective political party by which he/she has been set up. An analogous duty had 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.

(ii) Assuming a hypothetical situation, where a particular symbol was reserved for a particular political party and such a political party sets up a candidate in elections against whom charges had been framed for heinous and/or grievous offences and if this court was to accept the alternative proposal put forth by the Petitioners to direct the Election Commission that such a candidate could not be allowed to contest with the reserved symbol for the political party, it would tantamount to adding a new ground for disqualification which is beyond the pale of the judicial arm of the State. Any attempt to the contrary would be a colourable exercise of judicial power for it was axiomatic that what cannot be done directly ought not to be done indirectly which is a well-accepted principle in the Indian judiciary.

(iii) In a multi-party democracy, where members are elected on party lines and were subject to party discipline, this court recommend to the Parliament to bring out a strong law whereby it was 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 would go a long way in achieving decriminalisation of politics and usher in an era of immaculate, spotless, unsullied and virtuous constitutional democracy.

(iv) In a constitutional democracy, criminalization of politics is an extremely disastrous and lamentable situation. The citizens in a democracy cannot be compelled to stand as silent, deaf and mute spectators to corruption by projecting themselves as helpless. The voters cannot be allowed to resign to their fate. The information given by a candidate must express everything that is warranted by the Election Commission as per law. Disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified. It has to be remembered that such a right is paramount for a democracy. A voter is entitled to have an informed choice. If his right to get proper information is scuttled, in the ultimate eventuate, it may lead to destruction of democracy because he will not be an informed voter having been kept in the dark about the candidates who are accused of heinous offences. In the present scenario, the information given by the candidates is not widely known in the constituency and the multitude of voters really does not come to know about the antecedents. Their right to have information suffers.

Conclusion:

Keeping the aforesaid in view, it would be appropriate to issue the following directions which are in accord with the decisions of this Court:

(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.