Heading a five-Judge Constitution bench, the CJI wondered if the courts could enter into the legislation arena reserved for Parliament.
The Supreme Court on Thursday sought to remind Parliament that it had an obligation to do the needful to prevent criminalisation of politics. “There are judgments of this court that it is the duty of the legislature to respond to the collective cry of the citizens. Today the citizens are saying please don’t let such people contest election,” said Chief Justice Dipak Misra heading a five-Judge Constitution bench, wondering if the courts could enter into the legislation arena reserved for Parliament.
Hearing a batch of petitions seeking that people with criminal records be debarred from contesting elections, the bench, which also included Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, observed, “We do not appreciate criminalisation of politics. But question is how to get into this…Can there be judicial rulemaking?… We want to strengthen, but we are looking at a Constitutional way.”
The petitioners submitted that the court could direct the Election Commission, which had the power to register political parties, to lay down in its rules that people with criminal background should not be part of them.
But the bench wondered how it could create a new disqualification in the Representation of People Act, 1951, which only the Parliament was empowered to do.
“Your argument is that we must not just exhort Parliament, but also lay down rules…You must remember the Lakshman Rekha…It is only to the extent we declare law and Parliament makes the law. We cannot make law and Parliament cannot declare law,” Justice Nariman said.
Justice Chandrachud pointed out that the disqualification for people’s representatives was under a law made by Parliament and therefore the court had to tread carefully.
Senior advocate Dinesh Dwivedi, who represented Public Interest Foundation, said the court has said on many occasions that it can occupy that space if the legislature was silent. He contended that Parliamentary democracy was a basic feature of the Constitution and “criminalisation of politics is negation of democracy”. The collective need of the hour was to ensure that lawbreakers did not become lawmakers, he said.
CJI Misra said, “There are judgments of this court that it is the duty of the legislature to respond to the collective cry of the citizens. Today the citizens are saying please don’t let such people contest elections.It can’t be ignored by the legislature. It’s a national thinking.”
Attorney General K K Venugopal told the court that it cannot add to the disqualifications in the Act and only Parliament could do that.
He also opposed suggestions that any direction could be given that a person once chargesheeted should not contest as under Indian law there is a presumption of innocence unless convicted.
Dwivedi said nothing had happened though both the Law Commission and Election Commission had asked the government to act.
Advocate Gopal Sankarnarayanan, representing Bhartiya Matdata Sanghathan, suggested that it could be done by putting the electoral offence under Section 125A of RPA for filing of false affidavit by a candidate on a higher pedestal.
On behalf of Delhi BJP leader Ashwini Upadhyaya, senior counsel Krishnan Venugopal said the Election Commission could be asked to frame guidelines on the issue using its plenary powers under Article 324 of the Constitution with regard to conduct of polls.
with the Express Morning Briefing