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REPORTABLE  

 IN THE SUPREME COURT OF INDIA  

 CIVIL ORIGINAL JURISDICTION  

 WRIT PETITION (CIVIL) NO. 536 OF 2011  

Public Interest Foundation & Ors.    …Petitioner(s)    

Versus    

Union of India & Anr.             …Respondent(s)    

WITH    

CRIMINAL APPEAL NOS. 1714-1715 OF 2007    

WRIT PETITION (CRIMINAL) NO. 208 OF 2011    

AND    

WRIT PETITION (CIVIL) NO. 800 OF 2015    

 J U D G M E N T  

Dipak Misra, CJI    

In Yogendra Kumar Jaiswal and others v. State of Bihar  

and others1, the Court opined:-  

1 (2016) 3 SCC 183

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"Corruption, a 'noun' when assumes all the  characteristics of a Verb', becomes self-infective and  also develops resistance to antibiotics. In such a  situation the disguised protagonist never puts a  Hamletian question-"to be or not to be"-but marches  ahead with perverted proclivity-sans concern, sans care  for collective interest, and irrefragably without  conscience. In a way, corruption becomes a national  economic terror."    

2. The constitutional functionaries, who have taken the pledge to  

uphold the constitutional principles, are charged with the  

responsibility to ensure that the existing political framework does not  

get tainted with the evil of corruption. However, despite this heavy  

mandate prescribed by our Constitution, our Indian democracy, which  

is the world's largest democracy, has seen a steady increase in the  

level of criminalization that has been creeping into the Indian polity.  

This unsettlingly increasing trend of criminalization of politics, to  

which our country has been a witness, tends to disrupt the  

constitutional ethos and strikes at the very root of our democratic  

form of government by making our citizenry suffer at the hands of  

those who are nothing but a liability to our country.  

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3. The issue that emerges for consideration before this Bench is  

whether disqualification for membership can be laid down by the  

Court beyond Article 102(a) to (d) and the law made by the  

Parliament under Article 102(e).  A three-Judge Bench hearing the  

matter was of the view that this question is required to be addressed  

by the Constitution Bench under Article 145(3) of the Constitution.  Be  

it stated, a submission was advanced before the three-Judge Bench  

that the controversy was covered by the decision in Manoj Narula v.  

Union of India2.  The said submission was not accepted because of  

the view expressed by Madan B. Lokur, J. in his separate judgment.   

4. In the course of hearing, the contour of the question was  

expanded with enormous concern to curb criminalization of politics in  

a democratic body polity.  The learned counsel for the petitioners  

submitted that 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. Mr. K.K. Venugopal, learned Attorney General  

2 (2014) 9 SCC 1

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for India and other learned counsel, per contra, would submit that  

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. In essence, the submission of Mr. Venugopal is that  

the Court should not cross the ‗Lakshman Rekha‘.  Resting on the  

fulcrum of constitutional foundation and on the fundamental principle  

that 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 simon pure reason that what  

cannot be done directly, should not be done indirectly. We shall  

advert to the said submission at a later stage.   

5. Article 102 reads as follows: -

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―102. Disqualifications for membership―(1) A  person shall be disqualified for being chosen as,  and for being, a member of either House of  Parliament—   

(a) 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;   

(b)  if he is of unsound mind and stands so declared  by a competent court;   

(c)  if he is an undischarged insolvent;   

(d)  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;   

(e)  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.‖  

6. In this context, we may also refer to Article 191 of the  

Constitution that deals with disqualifications for membership.  It is as  

follows: -

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―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  

(a)  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;  

(b)  if he is of unsound mind and stands so declared  by a competent court;  

(c)  if he is an undischarged insolvent;  

(d)  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;  

(e)  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.‖  

 7. On a perusal of both the Articles, it is clear as crystal that as  

regards disqualification for being chosen as a member of either

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House 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.  In Lily  

Thomas v. Union of India and others3, it has been held:-  

―26. Articles 102(1)(e) and 191(1)(e) of the  Constitution, on the other hand, have conferred  specific powers on Parliament to make law providing  disqualifications for membership of either House of  Parliament or Legislative Assembly or Legislative  Council of the State other than those specified in sub- clauses (a), (b), (c) and (d) of clause (1) of Articles  102 and 191 of the Constitution. We may note that no  power is vested in the State Legislature to make law  laying down disqualifications of membership of the  Legislative Assembly or Legislative Council of the  State and power is vested in Parliament to make law  laying down disqualifications also in respect of  Members of the Legislative Assembly or Legislative  Council of the State. For these reasons, we are of the  considered opinion that the legislative power of  Parliament to enact any law relating to  disqualification for membership of either House of  Parliament or Legislative Assembly or Legislative  Council of the State can be located only in Articles  102(1)(e) and 191(1)(e) of the Constitution and not in  Article 246(1) read with Schedule VII List I Entry 97  and Article 248 of the Constitution. We do not,  therefore, accept the contention of Mr. Luthra that the  power to enact sub-section (4) of Section 8 of the Act  is vested in Parliament under Article 246(1) read with  Schedule VII List I Entry 97 and Article 248 of the  

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Constitution, if not in Articles 102(1)(e) and 191(1)(e)  of the Constitution.‖  

  We have no hesitation in saying that the view expressed above  

in Lily Thomas (supra) is correct, for the Parliament has the  

exclusive legislative power to lay down disqualification for  

membership.  

8. In Manoj Narula (supra), the question centered around the  

interpretation of Article 75 of the Constitution. The core issue  

pertained to the legality of persons with criminal background and/or  

charged with offences involving moral turpitude to be appointed as  

ministers in the Central and the State Governments. The majority  

referred to the constitutional provisions, namely, Articles 74, 75, 163  

and 164, adverted to the doctrine of implied limitation and, in that  

context, opined thus:-  

―64. On a studied scrutiny of the ratio of the  aforesaid decisions, we are of the convinced  opinion that when there is no disqualification for a  person against whom charges have been framed in  respect of heinous or serious offences or offences  relating to corruption to contest the election, by  interpretative process, it is difficult to read the  prohibition into Article 75(1) or, for that matter, into  Article 164(1) to the powers of the Prime Minister or  the Chief Minister in such a manner. That would

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come within the criterion of eligibility and would  amount to prescribing an eligibility qualification and  adding a disqualification which has not been  stipulated in the Constitution. In the absence of any  constitutional prohibition or statutory embargo, such  disqualification, in our considered opinion, cannot  be read into Article 75(1) or Article 164(1) of the  Constitution.‖  

 9. There has been advertence to the principle of constitutional  

silence or abeyance and, in that context, it has been ruled that it is  

not possible to accept that while interpreting the words ―advice of the  

Prime Minister‖, it can legitimately be inferred that there is a  

prohibition to think of a person as a minister if charges have been  

framed against him in respect of heinous and serious offences  

including corruption cases under the criminal law.  Thereafter, the  

majority addressed the concepts of ‗constitutional morality‘,  

‗constitutional governance‘ and ‗constitutional trust‘ and analysed the  

term ‗advice‘ employed under Article 75(1) and stated that formation  

of an opinion by the Prime Minister in the context of Article 75(1) is  

expressed by the use of the said word because of the trust reposed in  

the Prime Minister under the Constitution and the said advice, to put it  

differently, is a constitutional advice.  Reference was made to the

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debate in the Constituent Assembly which had left it to the wisdom of  

the Prime Minister because of the intrinsic faith in him.  Discussing  

further, it has been stated: -  

―At the time of framing of the Constitution, the  debate pertained to conviction. With the change of  time, the entire complexion in the political arena as  well as in other areas has changed. This Court, on  number of occasions, as pointed out hereinbefore,  has taken note of the prevalence and continuous  growth of criminalisation in politics and the  entrenchment of corruption at many a level. In a  democracy, the people never intend to be governed  by persons who have criminal antecedents. This is  not merely a hope and aspiration of citizenry but the  idea is also engrained in apposite executive  governance.‖  

  And again: -  

―That the Prime Minister would be giving apposite  advice to the President is a legitimate constitutional  expectation, for it is a paramount constitutional  concern. In a controlled Constitution like ours, the  Prime Minister is expected to act with constitutional  responsibility as a consequence of which the  cherished values of democracy and established  norms of good governance get condignly fructified.  The Framers of the Constitution left many a thing  unwritten by reposing immense trust in the Prime  Minister. The scheme of the Constitution suggests  that there has to be an emergence of constitutional  governance which would gradually grow to give rise  to constitutional renaissance.‖  

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 10. Lokur, J. opined: -  

―132. While it may be necessary, due to the  criminalisation of our polity and consequently of our  politics, to ensure that certain persons do not  become Ministers, this is not possible through  guidelines issued by this Court. It is for the  electorate to ensure that suitable (not merely  eligible) persons are elected to the legislature and it  is for the legislature to enact or not enact a more  restrictive law.‖  

  Proceeding further, the learned Judge stated: -  

―137. In this respect, the Prime Minister is, of  course, answerable to Parliament and is under the  gaze of the watchful eye of the people of the  country. Despite the fact that certain limitations can  be read into the Constitution and have been read in  the past, the issue of the appointment of a suitable  person as a Minister is not one which enables this  Court to read implied limitations in the Constitution.‖  

 He had also, in his opinion, reproduced the words of Dr. B.R.  

Ambedkar in the Constituent Assembly on 25.11.1949 and the  

sentiments echoed by Dr. Rajendra Prasad on 26.11.1949.  Dr.  

Ambedkar had said:-  

―As much defence as could be offered to the  Constitution has been offered by my friends Sir  Alladi Krishnaswami Ayyar and Mr T.T.  Krishnamachari. I shall not therefore enter into the  merits of the Constitution. Because I feel, however

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good a Constitution may be, it is sure to turn out  bad because those who are called to work it,  happen to be a bad lot. However bad a Constitution  may be, it may turn out to be good if those who are  called to work it, happen to be a good lot. The  working of a Constitution does not depend wholly  upon the nature of the Constitution. The  Constitution can provide only the organs of State  such as the Legislature, the Executive and the  Judiciary. The factors on which the working of those  organs of the State depend are the people and the  political parties they will set up as their instruments  to carry out their wishes and their politics. Who can  say how the people of India and their parties will  behave? Will they uphold constitutional methods of  achieving their purposes or will they prefer  revolutionary methods of achieving them? If they  adopt the revolutionary methods, however good the  Constitution may be, it requires no prophet to say  that it will fail. It is, therefore, futile to pass any  judgment upon the Constitution without reference to  the part which the people and their parties are likely  to play.‖  

 11. The learned Judge reproduced the words of Dr. Rajendra  

Prasad, which ring till today, are:-  

―Whatever the Constitution may or may not provide,  the welfare of the country will depend upon the way  in which the country is administered. That will  depend upon the men who administer it. It is a trite  saying that a country can have only the Government  it deserves. Our Constitution has provisions in it  which appear to some to be objectionable from one  point or another. We must admit that the defects are  inherent in the situation in the country and the

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people at large. If the people who are elected are  capable and men of character and integrity, they  would be able to make the best even of a defective  Constitution. If they are lacking in these, the  Constitution cannot help the country. After all, a  Constitution like a machine is a lifeless thing. It  acquires life because of the men who control it and  operate it, and India needs today nothing more than  a set of honest men who will have the interest of the  country before them.‖  

 12. Kurian Joseph, J., concurring with the opinion, has stated:-  

―152. No doubt, it is not for the Court to issue any  direction to the Prime Minister or the Chief Minister,  as the case may be, as to the manner in which they  should exercise their power while selecting the  colleagues in the Council of Ministers. That is the  constitutional prerogative of those functionaries who  are called upon to preserve, protect and defend the  Constitution. But it is the prophetic duty of this Court  to remind the key duty holders about their role in  working the Constitution. Hence, I am of the firm  view, that the Prime Minister and the Chief Minister  of the State, who themselves have taken oath to  bear true faith and allegiance to the Constitution of  India and to discharge their duties faithfully and  conscientiously, will be well advised to consider  avoiding any person in the Council of Ministers,  against whom charges have been framed by a  criminal court in respect of offences involving moral  turpitude and also offences specifically referred to in  Chapter III of the Representation of the People Act,  1951.‖  

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13. The thrust of the matter is whether any disqualification can be  

read as regards disqualification for membership into the constitutional  

provisions.  Article 102(1) specifies certain grounds and further  

provides that any disqualification can be added by or under any law  

made by the Parliament.  Article 191 has the same character.  

14. Chapter III of the Representation of the People Act, 1951 (for  

brevity, ‗the Act‘) deals with disqualification for membership of the  

Parliament and the State Legislatures. Section 7 deals with  

Definitions.  It is as follows:-  

―7.  Definitions.—In this Chapter,—  

(a)  ―appropriate Government‖ means in relation to  any disqualification for being chosen as or for  being a member of either House of  Parliament, the Central Government, and in  relation to any disqualification for being  chosen as or for being a member of the  Legislative Assembly or Legislative Council of  a State, the State Government;  

(b)  ―disqualified‖ means 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.‖  

     [Emphasis is ours]   

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15. The word ‗disqualified‘ clearly states that a person be  

disqualified from being a member under the provisions of the said  

Chapter and/or on no other ground.  The words ‗no other ground‘ are  

of immense significance.  Apart from the grounds mentioned under  

Article 102(1)(a) to 102(1)(d) and Article 191(1)(a) to 191(1)(d), the  

other grounds are provided by the Parliament and the Parliament has  

provided under Sections 8, 8A, 9, 9A, 10 and 10A which read thus:  

―8. Disqualification on conviction for certain  

offences.—(1) A person convicted of an offence  

punishable under—  

(a) section 153A (offence of promoting enmity  

between different groups on ground of religion, race,  

place of birth, residence, language, etc., and doing  

acts prejudicial to maintenance of harmony) or  

section 17IE (offence of bribery) or section 17IF  

(offence of undue influence or personation at an  

election) or sub-section (1) or sub-section (2) of  

section 376 or section 376A or section 376B or  

section 376C or section 376D (offences relating to  

rape) or section 498A (offence of cruelty towards a  

woman by husband or relative of a husband) or sub-

section (2) or sub-section (3) of section 505 (offence  

of making statement creating or promoting enmity,  

hatred or ill-will between classes or offence relating  

to such statement in any place of worship or in any  

assembly engaged in the performance of religious  

worship or religious ceremonies) of the Indian Penal  

Code (45 of 1860); or

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(b) the Protection of Civil Rights Act, 1955 (22 of  1955), which provides for punishment for the  preaching and practice of  "untouchability‖, and for  the enforcement of any disability arising therefrom; or  

(c) section 11 (offence of importing or exporting  prohibited goods) of the Customs Act, 1962 (52 of  1962); or  

(d) sections 10 to 12 (offence of being a member of  an association declared unlawful, offence relating to  dealing with funds of an unlawful association or  offence relating to contravention of an order made in  respect of a notified place) of the Unlawful Activities  (Prevention) Act, 1967 (37 of 1967); or  

(e) the Foreign Exchange (Regulation) Act, 1973 (46  of 1973); or  

(f) the Narcotic Drugs and Psychotropic Substances  Act, 1985 (61 of 1985); or  

(g) section 3 (offence of committing terrorist acts) or  section 4 (offence of committing disruptive activities)  of the Terrorist and Disruptive Activities (Prevention)  Act, 1987 (28 of 1987); or  

(h) section 7 (offence of contravention of the  provisions of sections 3 to 6) of the Religious  Institutions (Prevention of Misuse) Act, 1988 (41 of  1988); or  

(i) section 125 (offence of promoting enmity  between classes in connect ion with the election) or  section 135 (offence of removal of ballot papers from  polling stations) or section 135A (offence of booth  capturing) or clause (a) of sub - section (2) of section  136 (offence of fraudulently defacing or fraudulently  destroying any nomination paper) of this Act; or  

(j) section 6 (offence of conversion of a place or  worship) of the Places of Worship (Special Provisions)  Act 1991, or

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(k) section 2 (offence of insulting the Indian National  Flag or the Constitution of India) or section 3 (offence  of preventing singing of National Anthem) of the  Prevention of Insults to National Honour Act, 1971 (69  of 1971); or  

(l) the Commission of Sati (Prevention) Act, 1987 (3 of  1988); or  

(m) the Prevention of Corruption Act, 1988 (49 of  1988); or  

(n) the Prevention of Terrorism Act, 2002 (15 of  2002),  

shall be disqualified, where the convicted person is  sentenced to—  

(i) only fine, for a period of six years from the date  of such conviction;  

(ii) imprisonment, from the date of such conviction  and shall continue to be disqualified for a further  period of six years since his release.  

(2) A person convicted for the contravention of—  

(a) any law providing for the prevention of  hoarding or profiteering; or  

(b) any law relating to the adulteration of food or  drugs; or  

(c) any provisions of the Dowry Prohibition Act,  [1961 (28 of 1961)  

and sentenced to imprisonment for not less than six  months, shall be disqualified from the date of such  conviction and shall continue to be disqualified for a  further period of six years since his release.  

(3) A person convicted of any offence and sentenced  to imprisonment for not less than two years other than  any offence referred to in sub-section (1) or sub-

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section (2) shall be disqualified from the date of such  conviction and shall continue to be disqualified for a  further period of six years since his release.  

(4) Notwithstanding anything in sub-section (1), sub- section (2) and sub-section (3) a disqualification under  either sub-section shall not, in the case of a person  who on the date of the conviction is a member of  Parliament or the Legislature of a State, take effect  until three months have elapsed from that date or, if  within that period an appeal or application for revision  is brought in respect of the conviction or the sentence,  until that appeal or application is disposed of by the  court.  

Explanation.—In this section—  

(a) "law providing for the prevention of hoarding or  profiteering" means any law, or any order, rule or  notification having the force of law, providing for—  

(i) the regulation of production or manufacture  of any essential commodity;  

(ii) the control of price at which any essential  commodity may be brought or sold;  

(iii) the regulation of acquisition, possession,  storage, transport, distribution, disposal, use or  consumption of any essential commodity;  

(iv) the prohibition of the withholding from sale  of any essential commodity ordinarily kept for  sale;  

(b) "drug" has the meaning assigned to it in the Drugs  and Cosmetics Act, 1940 (23 of 1940);  

(c) "essential commodity" has the meaning assigned to  it in the Essential Commodities Act, 1955 (10 of 1955);  

(d) "food" has the meaning assigned to it in the  Prevention of Food Adulteration Act, 1954 (37 of  1954).

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8A. Disqualification on ground of corrupt  practices.—(1) The case of every person found guilty  of a corrupt practice by an order under section 99 shall  be submitted, as soon as may be within a period of  three months from the date such order takes effect, by  such authority as the Central Government may specify  in this behalf, to the President for determination of the  question as to whether such person shall be  disqualified and if so, for what period:  

Provided that the period for which any person  may be disqualified under this sub-section shall in no  case exceed six years from the date on which the  order made in relation to him under section 99 takes  effect.  

(2) Any person who stands disqualified under section  8A of this Act as it stood immediately before the  commencement of the Election Laws (Amendment)  Act, 1975 (40 of 1975), may, if the period of such  disqualification has not expired, submit a petition to the  President for the removal of such disqualification for  the unexpired portion of the said period.  

(3) Before giving his decision on any question  mentioned in sub-section (1) or on any petition  submitted under sub-section (2), the President shall  obtain the opinion of the Election Commission on such  question or petition and shall act according to such  opinion.  

 9. Disqualification for dismissal for corruption or  disloyalty.—(1) A person who having held an office  under the Government of India or under the  Government of any State has been dismissed for  corruption or for disloyalty to the State shall be  disqualified for a period of five years from the date of  such dismissal.  

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 (2) For the purposes of sub-section (1), a certificate  issued by the Election Commission to the effect that a  person having held office under the Government of  India or under the Government of a State, has or has  not been dismissed for corruption or for disloyalty to  the State shall be conclusive proof of that fact:     Provided that no certificate to the effect that a  person has been dismissed for corruption or for  disloyalty to the State shall be issued unless an  opportunity of being heard has been given to the said  person.     9A. Disqualification for Government contracts,  etc.—A person shall be disqualified if, and for so long  as, there subsists a contract entered into by him in the  course of his trade or business with the appropriate  Government for the supply of goods to, or for the  execution of any works undertaken by, that  Government.     Explanation.—For the purposes of this section, where  a contract has been fully performed by the person by  whom it has been entered into with the appropriate  Government, the contract shall be deemed not to  subsist by reason only of the fact that the Government  has not performed its part of the contract either wholly  or in part.     10. Disqualification for office under Government  company.—A person shall be disqualified if, and for  so long as, he is a managing agent, manager or  secretary of any company or corporation (other than a  co-operative society) in the capital of which the  appropriate Government has not less than twenty-five  per cent share.    

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10A. Disqualification for failure to lodge account of  election expenses.—If the Election Commission is  satisfied that a person—     

(a) has failed to lodge an account of election  expenses, within the time and in the manner  required by or under this Act; and   (b) has no good reason or justification for the  failure,  

 the Election Commission shall, by order published in  the Official Gazette, declare him to be disqualified and  any such person shall be disqualified for a period of  three years from the date of the order.‖  

 16. From the aforesaid, it is decipherable that Section 8 deals with  

disqualification on conviction for certain offences. Section 8A  

provides for disqualification on ground of corrupt practices.  Section 9  

provides for the disqualification for dismissal for corruption or  

disloyalty. Section 9A 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 10A deals with disqualification for  

failure to lodge account of election expenses.  Apart from these  

disqualifications, there are no other disqualifications and, as is  

noticeable, there can be no other ground. Thus, disqualifications are

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provided on certain and specific grounds by the legislature.  In such a  

state, the legislature is absolutely specific.   

17. The submission of the learned counsel appearing for the  

petitioners is that 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.  Reference has been  

made to the recommendations of the Law Commission which has  

seriously commented on the prevalent political atmosphere being  

dominated by people with criminal records.  

18. It has also been highlighted by the petitioners that  

criminalization in politics is on the rise and the same is a documented  

fact and recorded by various committee reports. The petitioners also  

highlight 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 recognized 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 Legislatures as well. To further

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accentuate this stand, the petitioners point out that such persons hold  

the posts in constitutional trust and can be made subject to rigours  

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.  

19. The petitioners are attuned to the principle of ―presumption of  

innocence‖ under our criminal law. But they are of the opinion that the  

said principle is confined to criminal law and that any proceeding prior  

to conviction, such as framing of charge for instance, can become the  

basis to entail civil liability of penalty. The petitioners, therefore, take  

the stand that debarring a person facing charges of serious nature  

from contesting an election does not lead to creation of an offence  

and it is merely a restriction which is distinctively civil in nature.  

20. The intervenor organization has also made submissions on a  

similar note as that of the petitioners to the effect 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 the Parliament as a person chargesheeted in a  

crime involving moral turpitude is undesirable for a job under the

24    

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.   

21. Mr. Venugopal, learned Attorney General for India, refuting the  

aforesaid submission, would urge that the 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.  That  

apart, submits Mr. Venugopal, that when there are specific  

constitutional provisions and the statutory law, the Court should leave  

it to the Parliament.  

22. It is well settled in law that the Court cannot legislate. Emphasis  

is laid on the issuance of guidelines and directions for rigorous  

implementation. 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

25    

disqualification, confers the power on the legislature, which has, in  

turn, legislated in the imperative.  

23. 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 Act. It is clear as noon day and 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.  

Criminalization of politics  

24. Though we have analyzed the aforesaid aspect, yet we cannot  

close the issue, for the learned counsel for the petitioners and some  

of the intervenors have argued with immense anguish that there is a  

need for rectification of the system failing which there will be  

progressive malady in constitutional governance and gradually, the  

governance would be controlled by criminals. The submission has  

been advanced with sanguine sincerity and genuine agony. There  

have been suggestions as well as arguments with the purpose of  

saving the sanctity of democracy and to advance its enduring

26    

continuance. To appreciate the same, we will focus on the  

criminalization of politics.   

25. In the beginning of the era of constitutional democracy, serious  

concerns were expressed with regard to the people who are going to  

be elected. Dr Rajendra Prasad on the Floor of the Constituent  

Assembly, before putting the motion for passing of the Constitution,  

had observed:-  

"...It requires men of strong character, men of  

vision, men who will not sacrifice the interests of  

the country at large for the sake of smaller groups  

and areas...We can only hope that the country will  

throw up such men in abundance."4  

26. An essential component of a constitutional democracy is its  

ability to give and secure for its citizenry a representative form of  

government, elected freely and fairly, and comprising of a polity  

whose members are men and women of high integrity and morality.  

This could be said to be the hallmark of any free and fair democracy.   

27. The Goswami Committee on Electoral Reforms (1990) had  

addressed the need to curb the growing criminal forces in politics in  

4  Dr Rajendra Prasad, President, Constituent Assembly of India, 26th November, 1949

27    

order to protect the democratic foundation of our country. The  

Committee stated that:-  

"The role of money and muscle powers at elections  deflecting seriously the well accepted democratic  values and ethos and corrupting the process; rapid  criminalisation of politics greatly encouraging evils of  booth capturing, rigging, violence etc.; misuse of  official machinery, i.e. official media and ministerial;  increasing menace of participation of non-serious  candidates; form the core of our electoral problems.  Urgent corrective measures are the need of the hour  lest the system itself should collapse."    

28. Criminalization of politics was never an unknown phenomenon  

in the Indian political system, but its presence was seemingly felt in  

its strongest form during the 1993 Mumbai bomb blasts which was  

the result of a collaboration of a diffused network of criminal gangs,  

police and customs officials and their political patrons. The tremors of  

the said attacks shook the entire Nation and as a result of the outcry,  

a Commission was constituted to study the problem of criminalization  

of politics and the nexus among criminals, politicians and bureaucrats  

in India. The report of the Committee, Vohra (Committee) Report,  

submitted by Union Home Secretary, N.N. Vohra, in October 1993,  

referred to several observations made by official agencies, including  

the CBI, IB, R&AW, who unanimously expressed their opinion on the

28    

criminal network which was virtually running a parallel government.  

The Committee also took note of the criminal gangs who carried out  

their activities under the aegis of various political parties and  

government functionaries. The Committee further expressed great  

concern regarding the fact that over the past few years, several  

criminals had been elected to local bodies, State Assemblies and the  

Parliament. The Report observed:-  

"In the bigger cities, the main source of income  relates to real estate - forcibly occupying  lands/buildings, procuring such properties at cheap  rates by forcing out the existing occupants/tenants  etc. Over time, the money power thus acquired is  used for building up contacts with bureaucrats and  politicians and expansion of activities with impunity.  The money power is used to develop a network of  muscle-power which is also used by the politicians  during elections."    

And again:-  

"The nexus between the criminal gangs, police,  

bureaucracy and politicians has come out clearly in  

various parts of the country. The existing criminal  

justice system, which was essentially designed to  

deal with the individual offences /crimes, is unable to  

deal with the activities of the Mafia; the provisions of  

law in regard economic offences are weak"

29    

29. The Election Commission has also remained alive to the issue of  

criminalization of politics since 1998. While proposing reforms to  

tackle the menace of criminalization of politics, the Former Chief  

Election Commissioner, Mr. T.S. Krishna Murthy, highlighted the said  

issue by writing thus:-  

"There have been several instances of persons  

charged with serious and heinous crimes like murder,  

rape, dacoity, etc. contesting election, pending their  

trial, and even getting elected in a large number of  

cases. This leads to a very undesirable and  

embarrassing situation of lawbreakers becoming  

lawmakers and moving around under police protection.  

The Commission had proposed that the law should be  

amended to provide that any person for five years or  

more should be disqualified from contesting election  

even when trial is pending, provided charges have  

been framed against him by the competent court. Such  

a step would go a long way in cleansing the political  

establishment from the influence of criminal elements  

and protecting the sanctity of the Legislative Houses"5  

30. In the case of Dinesh Trivedi, M.P. and others v. Union of  

India and others6 the court lamented the faults and imperfections  

which have impeded the country in reaching the expectations which  

5 https://eci.nicJn/eci_main/PROPOSED_ELECTORAL_REFORMS.pdf  6 (1997) 4 SCC 306

30    

heralded its conception. While identifying one of the primary causes,  

the Court referred to the report of N.N. Vohra Committee that was  

submitted on 5.10.1993. The Court noted that the growth and spread  

of crime syndicates in Indian society has been pervasive and the  

criminal elements have developed an extensive network of contacts  

at many a sphere. The Court, further referring to the report, found that  

the Report reveals several alarming and deeply disturbing trends that  

are prevalent in our present society. The Court also noticed that the  

nexus between politicians, bureaucrats and criminal elements in our  

society has been on the rise, the adverse effects of which are  

increasingly being felt on various aspects of social life in India.  

31. In Anukul Chandra Pradhan, Advocate Supreme Court v.  

Union of India and others7, the Court, in the context of the  

provisions made in the election law, observed that they have been  

made to exclude persons with criminal background, of the kind  

specified therein, from the election scene as candidates and voters  

7   (1997) 6 SCC 1

31    

with the object to prevent criminalization of politics and maintain  

propriety in elections. Thereafter, the three-Judge Bench opined that  

any provision enacted with a view to promote the said object must be  

welcomed and upheld as subserving the constitutional purpose.  

32. In K. Prabhakaran v. P. Jayarajan8, in the context of enacting  

disqualification under Section 8(3) of the Act, the Court observed that  

persons with criminal background pollute the process of election as  

they have no inhibition in indulging in criminality to gain success in an  

election. Further, the Court observed:-  

 "Those who break the law should not make the  law. Generally speaking the purpose sought to  be achieved by enacting disqualification on  conviction for certain offences is to prevent  persons with criminal background from entering  into politics and the house - a powerful wing of  governance. Persons with criminal background  do pollute the process of election as they do not  have many a holds barred (sic) and have no  reservation from indulging into criminality to win  success at an election."    

8  AIR 2005 SC 688

32    

33. The Court in Manoj Narula (supra), while observing that  

criminalization of politics is an anathema to the sacredness of  

democracy, stated thus:-  

"A democratic polity, as understood in its  quintessential purity, is conceptually abhorrent to  corruption and, especially corruption at high places,  and repulsive to the idea of criminalization of politics  as it corrodes the legitimacy of the collective ethos,  frustrates the hopes and aspirations of the citizens  and has the potentiality to obstruct, if not derail, the  rule of law. Democracy, which has been best defined  as the Government of the People, by the People and  for the People, expects prevalence of genuine  orderliness, positive propriety, dedicated discipline  and sanguine sanctity by constant affirmance of  constitutional morality which is the pillar stone of  good governance.  

And again: -  

"...systemic corruption and sponsored criminalization  can corrode the fundamental core of elective  democracy and, consequently, the constitutional  governance. The agonized concern expressed by this  Court on being moved by the conscious citizens, as is  perceptible from the authorities referred to  hereinabove, clearly shows that a democratic republic  polity hopes and aspires to be governed by a  Government which is run by the elected  representatives who do not have any involvement in  serious criminal offences or offences relating to  corruption, casteism, societal problems, affecting the  sovereignty of the nation and many other offences."

33    

34. The 18th Report presented to the Rajya Sabha on 15th March,  

2007 by the Department-Related Parliamentary Standing Committee  

on Personnel, Public Grievances, Law and Justice on Electoral  

Reforms (Disqualification of Persons from Contesting Elections on  

Framing of Charges Against Them for Certain Offences)  

acknowledged the existence of criminal elements in the Indian polity  

which hit the roots of democracy. The Committee observed thus:-  

"...the Committee is deeply conscious of the  

criminalization of our polity and the fast erosion of  

confidence of the people at large in our political  

process of the day. This will certainly weaken our  

democracy and will render the democratic institutions  

sterile. The Committee therefore feels that politics  

should be cleansed of persons with established  

criminal background. The objective is to prevent  

criminalisation of politics and maintain probity in  

elections. Criminalization of politics is the bane of  

society and negation of democracy."  

35.  The Chairman of the Law Commission, in the covering letter of  

the 244th Law Commission Report titled "Electoral Disqualifications",  

wrote to the then Minister of Law and Justice stating thus:-  

1. "While the Law Commission was working towards  

suggesting its recommendations to the Government on  

Electoral Reforms, an Order was passed by the

34    

Hon'ble Supreme Court dated 16.12.2013 in Public  

Interest Foundation and Ors. Vs. Union of India and  

Anr., vide D.O. No. 4604/2011/SC/PIL(W] dated 21st  

December, 2013.  

2. In the aforesaid Order, the Hon'ble Supreme Court  

noted that Law Commission may take some time for  

submitting a comprehensive report on all aspects of  

electoral reforms. However, the Hon'ble Court further  

mentioned that "the issues with regard to de-

criminalization of politics and disqualification for filing  

false affidavits deserve priority and immediate  

consideration" and accordingly requested the Law  

Commission to "expedite consideration for giving a  

report by the end of February, 2014, on the two issues,  

namely:  

1. Whether disqualification should be triggered upon  

conviction as it exists today or upon framing of  

charges by the court or upon the presentation of the  

report by the Investigating Officer under Section 173 of  

the Code of Criminal procedure? [Issue No. 3.1 (ii) of  

the Consultation Paper], and  

2. Whether filing of false affidavits under Section  

125A of the Representation of the People Act, 1951  

should be a ground for disqualification? And if yes,  

what mode of mechanism needs to be provided for  

adjudication on the veracity of the affidavit? [Issue  

No.3.5 of the Consultation Paper]"    

36. Thereafter, the 244th Law Commission, while accentuating the  

need for electoral reforms, observed that a representative  

government, sourcing its legitimacy from the People, who were the  

ultimate sovereign, was the kernel of the democratic system

35    

envisaged by the Constitution. Over the time, this has been held to be  

a part of the ‗basic structure‘ of the Constitution, immune to  

amendment, with the Supreme Court of India declaring that it is  

beyond the pale of reasonable controversy that if there be any  

unamendable features of the Constitution on the score that they form  

a part of the basic structure of the Constitution, it is that India is a  

Sovereign Democratic Republic.  

37. The Commission laid stress on the model of representative  

government based on popular sovereignty which gives rise to its  

commitment to hold regular free and fair elections. The importance of  

free and fair elections stems from two factors— instrumentally, its  

central role in selecting persons who will govern the people, and  

intrinsically, as being a legitimate expression of popular will.  

Emphasizing on the importance of free and fair elections in a  

democratic polity, reference was made to the decision in Mohinder  

Singh Gill v. Chief Election Commissioner9  wherein the Court had  

ruled:-  

9   AIR 1978 SC 851

36    

―Democracy is government by the people. It is a  continual participative operation, not a cataclysmic  periodic exercise. The little man, in his multitude,  marking his vote at the poll does a social audit of his  Parliament plus political choice of this proxy. Although  the full flower of participative Government rarely  blossoms, the minimum credential of popular  government is appeal to the people after every term  for a renewal of confidence. So we have adult  franchise and general elections as constitutional  compulsions… It needs little argument to hold that the  heart of the Parliamentary system is free and fair  elections periodically held, based on adult franchise,  although social and economic democracy may  demand much more.‖    

38. The Commission addressed the issue pertaining to the extent  

of criminalization in politics and took note of the observations made  

by Mr. C. Rajagopalachari who, as back as in 1922, had anticipated  

the present state of affairs twenty-five years before Independence,  

when he wrote in his prison diary:-  

―Elections and their corruption, injustice and tyranny of  wealth, and inefficiency of administration, will make a  hell of life as soon as freedom is given to us...‖    

39. The Commission also observed that the nature of nexus  

changed in the 1970s and instead of politicians having suspected  

links to criminal networks, as was the case earlier, it was persons  

with extensive criminal backgrounds who began entering politics and

37    

this fact was confirmed in the Vohra Committee Report in 1993 and  

again in 2002 in the report of the National Commission to Review the  

Working of the Constitution (NCRWC). The Commission referred to  

the judgment of this Court in Union of India v. Association for  

Democratic Reforms10  which had made an analysis of the criminal  

records of candidates possible by requiring such records to be  

disclosed by way of affidavit and this, as per the Commission, had  

given a chance to the public to quantitatively assess the validity of  

such observations made in the previous report.   

40. As per the extent of criminalization that has pervaded Indian  

Politics, the Commission observed that in the ten years since 2004,  

18% of the candidates contesting either National or State elections  

have criminal cases pending against them (11,063 out of 62,847). In  

5,253 or almost half of these cases (8.4% of the total candidates  

analysed), the charges are of serious criminal offences that include  

murder, attempt to murder, rape, crimes against women, cases under  

the Prevention of Corruption Act, 1988 or under the Maharashtra  

Control of Organised Crime Act, 1999 which, on conviction, would  

10  (2002) 5 SCC 294

38    

result in five years or more of jail, etc. 152 candidates had 10 or more  

serious cases pending, 14 candidates had 40 or more such cases  

and 5 candidates had 50 or more cases against them. Further, the  

Commission observed that the 5,253 candidates with serious cases  

together had 13,984 serious charges against them and of these  

charges, 31% were cases of murder and other murder related  

offences, 4% were cases of rape and offences against women, 7%  

related to kidnapping and abduction, 7% related to robbery and  

dacoity, 14% related to forgery and counterfeiting including of  

government seals and 5% related to breaking the law during  

elections. The Commission was of the further view that criminal  

backgrounds are not limited to contesting candidates, but are found  

among winners as well, for, of the 5,253 candidates with serious  

criminal charges against them, 1,187 went on to winning the elections  

they contested, i.e., 13.5% of the 8,882 winners analysed from 2004  

to 2013 and overall, including both serious and non-serious charges,  

2,497 (28.4% of the winners) had 9,993 pending criminal cases  

against them.

39    

41. Elaborating further, the Commission took note of the fact that in  

the current Lok Sabha, 30% or 162 sitting MPs have criminal cases  

pending against them, of which about half, i.e., 76 have serious  

criminal cases and further, the prevalence of MPs with criminal cases  

pending has increased over time as statistics reveal that in 2004,  

24% of Lok Sabha MPs had criminal cases pending which increased  

to 30% in the 2009 elections and this situation is similar across States  

with 31% or 1,258 out of 4,032 sitting MLAs with pending cases, with  

again about half being serious cases. Not only this, the Commission  

also observed that some States have a much higher percentage of  

MLAs with criminal records: in Uttar Pradesh, 47% of MLAs have  

criminal cases pending and a number of these MPs and MLAs have  

been accused of multiple counts of criminal charges, for example, in  

a constituency of Uttar Pradesh, the MLA has 36 criminal cases  

pending including 14 cases relating to murder. As per the  

Commission, it is clear from this data that about one-third of the  

elected candidates at the Parliament and State Assembly levels in  

India have some form of criminal taint and also that the data  

elsewhere suggests that one-fifth of MLAs have pending cases which

40    

have proceeded to the stage of charges being framed against them  

by a court at the time of their election. What the Commission found to  

be more disturbing was the fact that the percentage of winners with  

criminal cases pending is higher than the percentage of candidates  

without such backgrounds, as the data reveals that while 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.  

42. The pervasive contact, in many a way, disturbed the political  

parties and this compelled the Law Commission to describe the role  

of political parties. It said:-   

―Political parties are a central institution of our  democracy; ―the life blood of the entire constitutional

41    

scheme.‖ Political parties act as a conduit through  which interests and issues of the people get  represented in Parliament. Since political parties play a  central role in the interface between private citizens  and public life, they have also been chiefly responsible  for the growing criminalisation of politics.‖  

43. Thereafter, reference was made to the observations of the 170th  

report which was also quoted in Subhash Chandra Agarwal v.  

Indian National Congress and others11 by the Central Information  

Commission (―CIC‖).  The said observations are very pertinent to  

describe the position of political parties in our democracy:-  

―It is the Political Parties that form the Government,  man the Parliament and run the governance of the  country. It is therefore, necessary to introduce internal  democracy, financial transparency and accountability  in the working of the Political Parties. A political party  which does not respect democratic principles in its  internal working cannot be expected to respect those  principles in the governance of the country. It cannot  be dictatorship internally and democratic in its  functioning outside.  

x x x     

Though the RPA disqualifies a sitting legislator or a  candidate on certain grounds, there is nothing  regulating the appointments to offices within the  organisation of the party. Political parties play a central  

11  (2013) CIC 8047

42    

role in Indian democracy. Therefore, a politician may  be disqualified from being a legislator, but may  continue to hold high positions within his party, thus  also continuing to play an important public role which  he has been deemed unfit for by the law. Convicted  politicians may continue to influence law -making by  controlling the party and fielding proxy candidates in  legislature. In a democracy essentially based on  parties being controlled by a high-command, the  process of breaking crime-politics nexus extends much  beyond purity of legislators and encompasses purity of  political parties as well.  

….It is suggested that political parties should refrain  from appointing or allowing a person to continue  holding any office within the party organisation if the  person has been deemed to lack the qualities  necessary to be a public official. Therefore, the legal  disqualifications that prevent a person from holding  office outside a party should operate within the party  as well.‖  

44. Commenting on the existing legal framework, it opined that  

legally, the prevention of entry of criminals into politics is  

accomplished by prescribing certain disqualifications that will prevent  

a person from contesting elections or occupying a seat in the  

Parliament or an Assembly and presently, the  qualifications of  

Members of Parliament are listed in Article 84 of the Constitution,  

while the disqualifications can be found under Article 102. The

43    

corresponding provisions for Members of the State Legislative  

Assemblies are found in Articles 173 and 191.  

45. The Law Commission noted the decisions in  Association for  

Democratic Reforms (supra), Lily Thomas (supra) and People’s  

Union for Civil Liberties v. Union of India12 and, after referring to  

the previous Reports recommending reforms, recommended:-  

―To tackle the menace of wilful concealment of  information or furnishing of false information and to  protect the right to information of the electors, the  Commission recommended that the punishment under  Section 125A of RPA must be made more stringent by  providing for imprisonment of a minimum term of two  years and by doing away with the alternative clause for  fine. Additionally, conviction under Section 125A RPA  should be made a part of Section 8(1)(i) of the  Representation of People Act, 1950.‖  

  46. Further, the Commission took note of the observations made by  

the Justice J.S. Verma Committee Report on Amendments to  

Criminal Law (2013) which proposed insertion of Schedule I to the  

Representation of the People Act, 1951 enumerating offences under  

IPC befitting the category of 'heinous' offences and it was also  

recommended in the said report that Section 8(1) of the RP Act be  

12   (2003) 4 SCC 399

44    

amended to cover, inter alia, the offences listed in the proposed  

Schedule 1, and this, in turn, would provide that a person in respect  

of whose acts or omissions a court of competent jurisdiction has  

taken cognizance under Section 190(1)(a),(b) or (c) of the Cr.PC. or  

who has been convicted by a court of competent jurisdiction with  

respect to the offences specified in the proposed expanded list of  

offences under Section 8(1) shall be disqualified from the date of  

taking cognizance or conviction, as the case may be. The  

Commission also referred to the proposal made in the said Report  

which was to the effect that disqualification in case of conviction shall  

continue for a further period of six years from the date of release  

upon conviction and in case of acquittal, the disqualification shall  

operate from the date of taking cognizance till the date of acquittal.  

47. The rationale given by the Commission for introducing a  

disqualification at the stage of framing of charges was to the following  

effect:-  

―At the outset, the question that needs to be considered is  whether disqualification should continue to be triggered  only at the stage of conviction as is currently the case  under Section 8 of the RPA. As detailed below, the  current law suffers from three main problems: the rate of  convictions among sitting MPs and MLAs is extremely

45    

low, trials of such persons are subject to long delays, and  the law does not provide adequate deterrence to political  parties granting tickets to persons of criminal  backgrounds. This has resulted in a massive increase in  the presence of criminal elements in politics, which affects  our democracy in very evident ways.‖  

 48. Thereafter, the Commission went on to observe in its Reform  

Proposal as to why the stage of framing of charge sheet would not be  

an appropriate stage for disqualification. The Commission observed  

thus:-   

―When filing a charge-sheet, the Police is simply  forwarding the material collected during investigation to a  competent Court of law for the Court to consider what  provisions the accused should be charged under. At this  stage, there is not even a remote or prima facie  determination of guilt of the accused by a Court of law. At  the stage of filing or forwarding the charge-sheet to the  Court, the material which is made a part of the charge- sheet has not even tested by a competent Court of law  and the Judge has clearly not applied his mind to the said  material. Courts have repeatedly held that a charge-sheet  does not constitute a substantive piece of evidence as it  not yet tested on the anvil of cross-examination.No rights  of hearing are granted to the accused at this stage. At the  stage of filing of charge-sheet, before summons are  issued, the accused does not even have a copy of the  charge-sheet or any connected material.  

Disqualifying a person therefore, simply on the basis of  something which he has had no opportunity to look into,  or no knowledge of, would be against the principles of  natural justice.

46    

Disqualifying a person at this stage would mean that a  person is penalized without proceedings being initiated  against him. This would be tantamount to granting the  judicial determination of the question of disqualification to  the police, who are a prosecuting authority. At the  National Consultation it was agreed by consensus that  this was an inappropriate stage for disqualification of  candidates for elected office.‖  

49. The Commission then felt that it was worthwhile to discuss why  

the stage of taking of cognizance would be an inappropriate stage for  

disqualification and in this regard, the Commission observed that the  

taking of cognizance simply means taking judicial notice of an offence  

with a view to initiate proceedings in respect of such offence alleged  

to have been committed by someone and that it is an entirely different  

matter from initiation of proceedings against someone; rather, it is a  

precondition to the initiation of proceedings. The Commission took  

the view that while taking cognizance, the Court has to consider only  

the material put forward in the charge-sheet and it is not open for the  

Court at this stage to sift or appreciate the evidence and come to a  

conclusion that no prima facie case is made out for proceeding  

further in the matter. Further, at the stage of taking cognizance, the  

accused has no right to present any evidence or make any

47    

submissions and even though the accused may provide exculpatory  

evidence to the police, the latter is under no obligation to include such  

evidence as part of the charge-sheet. The Commission went on to  

conclude that the stages of filing of charge sheet or taking  

cognizance would be inappropriate and observed thus:-  

―Due to the absence of an opportunity to the accused to  be heard at the stage of filing of charge-sheet or taking of  cognizance, and due to the lack of application of judicial  mind at this stage, it is not an appropriate stage to  introduce electoral disqualifications. Further, in a case  supposed to be tried by the Sessions Court, it is still the  Magistrate who takes cognizance. Introduction of  disqualifications at this stage would mean that a  Magistrate who has been deemed not competent to try  the case still determines whether a person should be  disqualified due to the charges filed.  

Because of these reasons, it is our view that the filing of  the police report under Section 173 CrPC or taking of  cognizance is not an appropriate stage to introduce  electoral disqualifications...‖  

50. Thereafter, the Commission proceeded to examine why the  

framing of charges is an appropriate stage for disqualification. It went  

on to make the following observations on this aspect:-  

―The Supreme Court, in Debendra Nath Padhi, overruling  Satish Mehra, held that the accused cannot lead any  evidence at charging stage. Thus, the decision of the  judge has to be based solely on the record of the case,

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i.e. the investigation report and documents submitted by  the prosecution. Though the determination of framing of  charges is based on the record of the case, the Supreme  Court jurisprudence on Section 227 also imposes certain  burdens to be discharged by the prosecution:  

―If the evidence which the Prosecutor proposes  to adduce to prove the guilt of the accused  even if fully accepted before it is challenged in  cross-examination or rebutted by the defence  evidence; if any, cannot show that the accused  committed the offence then there will be no  sufficient ground for proceeding with the trial.‖    

51. The Commission was of the view that additionally, the burden  

on the prosecution at the stage of framing of charges also involves  

proving a prima facie case and as per the decision in State of  

Maharashtra v. Som Nath Thapa13 , a prima facie case is said to be  

in existence ―if there is ground for presuming that the accused has  

committed the offence.‖ Further, the Commission observed that in  

order to establish a prime facie case, the evidence on record should  

raise not merely some suspicion with regard to the possibility of  

conviction, but a ―grave‖ suspicion and to corroborate its view, the  

13  (1996) 4 SCC 659

49    

Commission referred to the observations in Union of India v.  

Prafulla Kumar Samal14 which were to the following effect:-  

―If two views are possible and the Judge is satisfied  that the evidence produced before him while giving rise  to some suspicion but not grave suspicion against the  accused, he will be fully within his right to discharge  the accused.‖  

52. After so analysing, the Commission concluded that since the  

stage of framing of charges is based on substantial level of judicial  

scrutiny, a totally frivolous charge will not stand such scrutiny and  

therefore, given the concern of criminalisation of politics in India,  

disqualification at the stage of framing of charges is justified having  

substantial attendant legal safeguards to prevent misuse. The  

Commission buttressed the said view on the following grounds:-  

―As explained above, the Supreme Court has made it  clear that the framing of charges under Section 228 of the  CrPC requires an application of judicial mind to determine  whether there are sufficient grounds for proceeding  against the accused. Further, the burden of proof at this  stage is on the prosecution who must establish a prima  facie case where the evidence on record raises ‗grave  suspicion‘. Together, these tests offer protection against  false charges being imposed.  

In addition to the safeguards built in at the stage of  framing of charges, an additional option is available in the  

14  (1979) 3 SCC 4

50    

shape of Section 311 of the Code of Criminal Procedure.  Section 311 grants power to the Court to summon or  examine any person at any stage of the trial if his  evidence appears essential to the just decision of the  case. Although this section is not very widely used, and  the Supreme Court has cautioned against the arbitrary  exercise of this power, it grants wide discretion to the  court which may even be exercised suomotu. This  section may be used by the Court to examine additional  evidence before framing charges where the consequence  of such framing may disqualify the candidate.  

The framing of charges is therefore not an automatic step  in the trial process, but one that requires a preliminary  level of judicial scrutiny. The provisions in the CrPC  require adequate consideration of the merits of a criminal  charge before charges are framed by the Court. The level  of scrutiny required before charges are framed is  sufficient to prevent misuse of any provision resulting in  disqualification from contesting elections.  

Moreover enlarging the scope of disqualifications to  include the stage of framing of charges in certain  offences does not infringe upon any Fundamental or  Constitutional right of the candidate. RPA creates and  regulates the right to contest and be elected as a Member  of Parliament or a State Legislature. From the early years  of our democracy, it has been repeatedly stressed by the  Supreme Court that the right to be elected is neither a  fundamental nor a common law right. It is a special right  created by the statute and can only be exercised on the  conditions laid down by the statute. Therefore, it is not  subject to the Fundamental Rights chapter of the  constitution.‖  

53. While addressing the three concerns, namely,  misuse, lack of  

remedy for the accused and the sanctity of criminal jurisprudence, the

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Commission stated that none of these concerns possess sufficient  

argumentative weight to displace the arguments in the previous  

section as although misuse is certainly a possibility, yet the same  

does not render a proposal to reform the law flawed in limine. Further,  

the Supreme Court has repeatedly pointed out in the context of  

statutory power vested in an authority that the possibility of misuse of  

power is not a reason to not confer the power or to strike down such  

provision. It observed:-  

―Similarly a potential fear of misuse cannot provide  justification for not reforming the law per se. It does point  to the requirement of instituting certain safeguards,  circumscribing the conditions under which such  disqualification will operate…Though there is a view that  the accused has limited rights at the stage of framing of  charge, the legal options available to him are fairly  substantial. As the previous section shows, the stage of  framing of charges involves considerable application of  judicial mind, gives the accused an opportunity to be  heard, places the burden of proof on the prosecution to  demonstrate a prima facie case and will lead to discharge  unless the grounds pleaded are sufficient for the matter to  proceed to trial. Thus it is not as if the accused has no  remedy till charges are framed—on the contrary, he has  several legal options available to him prior to this stage.  

Finally, though criminal jurisprudence presumes a man  innocent till proven otherwise, disqualifying a person from  contesting elections at the stage of framing of charges  does not fall foul of this proposition. Such a provision has  no bearing on whether indeed the person concerned is

52    

guilty of the alleged offence or not. On the contrary, it  represents a distinct legal determination of the types of  persons who are suitable for holding representative public  office in India. Given the proliferation of criminal elements  in Parliament and State Assemblies, it is indicative of a  public resolve to correct this situation. Further, the  existing provisions which disqualify persons on conviction  alone have been unable to achieve this task. Thus it is  now strongly felt that it is essential to disqualify those  persons who have had criminal charges framed against  them by a court of competent jurisdiction, subject to  certain safeguards, from contesting in elections. Such a  determination of suitability for representative office has no  bearing on his guilt or innocence which can, and will, only  be judged at the criminal trial. To conflate the two and  thereby argue that the suggested reform is  jurisprudentially flawed would be to make a category  mistake.‖    

54. However, the Commission proposed certain safeguards in the  

form of limiting the disqualification to operate only in certain cases,  

defining cut-off period and period of applicability. The reasons for  

ensuring such safeguards as laid out in the report as are follows:  

―….Limiting the offences to which this disqualification  applies has two clear reasons, i.e. those offences which  are of such nature that those charged with them are  deemed unsuitable to be people‘s representatives in  Parliament or State Legislatures are included and the list  is circumscribed optimally to prevent misuse to the  maximum extent possible……   

…All offences which have a maximum punishment of five  years or more ought to be included within the remit of this  provision. Three justifications support this proposal: first,

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all offences widely recognised as serious are covered by  this provision. This includes provisions for murder, rape,  kidnapping, dacoity, corruption under the Prevention of  Corruption Act and other crimes of a nature that justify  those charged with them being disqualified from holding  public office. Second, the data extracted above  demonstrates that a large portion of offences for which  MPs, MLAs and contesting candidates face criminal  prosecutions relate to such provisions. Thus the reformed  provision will ensure that such candidates are disqualified  thereby creating a significant systemic impact. Third, it  has the benefit of simplicity—by prescribing a standard  five-year period, the provision is uniform and not  contingent on specific offences which may run the risk of  arbitrariness. The uniform five-year period thus makes a  reasonable classification— between serious and non- serious offences and has a rational nexus with its  object—preventing the entry of significantly criminal  elements into Parliament and State Legislature.‖    

55. With regard to laying down the safeguard of defining a cut-off  

period, the Commission observed thus:-  

―An apprehension was raised that introducing such a  disqualification will lead to a spate of false cases in which  charges might be framed immediately prior to an election  with the sole intention of disqualifying a candidate. This is  sought to be offset by a cut-off period before the date of  scrutiny of nomination for an election, charges filed during  which period, will not attract disqualification. The basis for  this distinction is clear— to prevent false cases being filed  against political candidates.    

x x x  

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….The cut-off period should be one year from the date of  scrutiny of the nomination, i.e. charges filed during the  one year period will not lead to disqualification. We feel  that one year is an appropriate time-frame. It is long  enough so that false charges which may be filed  specifically to disqualify candidates will not lead to such  disqualification; at the same time it is not excessively long  which would have made such disqualification redundant.  It thus allows every contesting candidate at minimum a  one year period to get discharged. It thus strikes an  appropriate balance between enlarging the scope of  disqualification while at the same time seeks to  disincentivise the filing of false cases solely with the view  to engineer disqualification.‖  

56. Another safeguard in the form of period of applicability was also  

proposed by the Commission which prescribes a time period or  

duration for which the said disqualification applies. It provides as  

follows:-  

―For convictions under Section 8(1) a person is  disqualified for six years from conviction in case he is  punished only with a fine or for the duration of the  imprisonment in addition to six years starting from his  date of release. For convictions under Section 8(2) and  8(3) he is disqualified simply for the duration of his  imprisonment and six years starting from the date of  release. Given that disqualifications on conviction have a  time period specified, it would be anomalous if  disqualification on the framing of charges omitted to do so  and applied indefinitely. It is thus essential that a time  period be specified….‖  

55    

57. The rationale provided for fixing the time period as above was  

given in the following terms:-  

―…170th Law Commission under the Chairmanship of  Justice B P Jeevan Reddy. In this report the specified  period of disqualification was suggested to be five years  from the date of framing of charge, or acquittal, whichever  is earlier.  

...We find great merit in this proposal. However it must be  noted that the report did not recommend a cut-off period  before the election, a charge framed during which would  not lead to disqualification. Thus the rationale behind the  five-year period was that the charged person would at  least be disqualified from contesting in one election.  

This however will not be the case if a one-year cut off  period is created. This is because if a person has a  charged framed against him six months before an  election, then he will not disqualified from this election  because it is within the protected window. At the same  time, assuming that the next election is five years later  (which is a standard assumption) then he will not be  disqualified from the second election as well because five  years from the date of framing of charge will have lapsed  by then. To take into account the effect of this cut-off  period, it is thus recommended that the period of  disqualification is increased to six years from the date of  framing of charge or acquittal whichever is earlier.  

The rationale for this recommendation is clear: if a person  is acquitted, needless to say the disqualification is lifted  from that date. If he is not, and the trial is continuing, then  the six-year period is appropriate for two reasons— first, it  is long enough to ensure that the enlarged scope of  disqualification has enough deterrent effect. A six-year  period would at least ensure that a person will be  disqualified from one election cycle thereby serving as a

56    

real safeguard against criminals entering politics. At the  same time it is the same as the period prescribed when a  person is disqualified on conviction for certain offences,  which such provision is comparable to. It thus has the  added merit of uniformity. For these reasons, it is  recommended that in the event of a charge being framed  in respect of the enumerated offences against a person,  he will be disqualified from contesting in elections for a  period of six years from the date of framing of charge or  till acquittal whichever is earlier, provided that the charge  has not been framed within the protected window before  an election.‖  

58. The eventual recommendations and proposed Sections by the  

Law Commission read as follows:-  

―1.  x  x  x  x  x    2. The filing of the police report under Section 173 Cr.PC  is not an appropriate stage to introduce electoral  disqualifications owing to the lack of sufficient application  of judicial mind at this stage.  3. The stage of framing of charges is based on adequate  levels of judicial scrutiny, and disqualification at the stage  of charging, if accompanied by substantial attendant legal  safeguards to prevent misuse, has significant potential in  curbing the spread of criminalisation of politics.  

4. The following safeguards must be incorporated into the  disqualification for framing of charges owing to potential  for misuse, concern of lack of remedy for the accused and  the sanctity of criminal jurisprudence:  

i. Only offences which have a  maximum punishment of five years or above  ought to be included within the remit of this  provision.

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ii.  Charges filed up to one year  before the date of scrutiny of nominations for an  election will not lead to disqualification.  

iii. The disqualification will operate till an  acquittal by the trial court, or for a period of six  years, whichever is earlier.  

iv. For charges framed against sitting  MPs/ MLAs, the trials must be expedited so that  they are conducted on a day-to-day basis and  concluded within a 1-year period. If trial not  concluded within a one year period then one of  the following consequences ought to ensue:  

- The MP/ MLA may be disqualified at  the expiry of the one-year period; OR  

- The MP/ MLA‘s right to vote in the  House as a member, remuneration and other  perquisites attaching to their office shall be  suspended at the expiry of the one-year period.  

5. Disqualification in the above manner must apply  retroactively as well. Persons with charges pending  (punishable by 5 years or more) on the date of the  law coming into effect must be disqualified from  contesting future elections, unless such charges are  framed less than one year before the date of  scrutiny of nomination papers for elections or the  person is a sitting MP/MLA at the time of enactment  of the Act. Such disqualification must take place  irrespective of when the charge was framed.  

  x x x    

1. There is large-scale violation of the laws on  candidate affidavits owing to lack of sufficient legal  consequences. As a result, the following changes  should be made to the RPA:

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i. Introduce enhanced sentence of a  minimum of two years under Section 125A of the  RPA Act on offence of filing false affidavits  

ii.  Include conviction under Section  125A as a ground of disqualification under  Section 8(1) of the RPA.  

iii. Include the offence of filing false affidavit  as a corrupt practice under S. 123 of the RPA.  

2. Since conviction under Section 125A is necessary for  disqualification under Section 8 to be triggered, the  Supreme Court may be pleased to order that in all trials  under Section 125A, the relevant court conducts the trial  on a day-to-day basis  

3. A gap of one week should be introduced between the  last date for filing nomination papers and the date of  scrutiny, to give adequate time for the filing of objections  to nomination papers.‖  

 59. The aforesaid recommendations for proposed amendment  

never saw the light of the day in the form of a law enacted by a  

competent legislature but it vividly exhibits the concern of the society  

about the progressing trend of criminalization in politics that has the  

proclivity and the propensity to send shivers down the spine of a  

constitutional democracy.  

60. Having stated about the relevant aspects of the Law  

Commission Report and the indifference shown to it, the learned  

counsel for the petitioners and intervenors have submitted that

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certain directions can be issued to the Election Commission so that  

the purity of democracy is strengthened. It is urged by them that  

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.  

Role of Election Commission  

61. Article 324 of the Constitution lays down the power of the  

Election Commission with respect to superintendence, direction and  

control of elections and reads thus:-  

"324. Superintendence, direction and control of  elections to be vested in an Election  Commission:—(1) The superintendence, direction  and control of the preparation of the electoral rolls for,  and the conduct of, all elections to Parliament and to  the Legislature of every State and of elections to the  offices of President and Vice President held under this  Constitution shall be vested in a Commission (referred  to in this Constitution as the Election Commission).  (2) The Election Commission shall consist of the Chief  Election Commissioner and such number of other  Election Commissioners, if any, as the President may  from time to time fix and the appointment of the Chief  Election Commissioner and other Election  Commissioners shall, subject to the provisions of any  law made in that behalf by Parliament, be made by the  President.  (3) When any other Election Commissioner is so  appointed the Chief Election Commissioner shall act  as the Chairman of the Election Commission.

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(4) Before each general election to the House of the  People and to the Legislative Assembly of each State,  and before the first general election and thereafter  before each biennial election to the Legislative Council  of each State having such Council, the President may  also appoint after consultation with the Election  Commission such Regional Commissioners as he may  consider necessary to assist the Election Commission  in the performance of the functions conferred on the  Commission by clause (1).  (5) Subject to the provisions of any law made by  Parliament, the conditions of service and tenure of  office of the Election Commissioners and the Regional  Commissioners shall be such as the President may by  rule determine; Provided that the Chief Election  Commissioner shall not be removed from his office  except in like manner and on the like grounds as a  Judge of the Supreme Court and the conditions of  service of the Chief Election Commissioner shall not  be varied to his disadvantage after his appointment:  Provided further that any other Election Commissioner  

or a Regional Commissioner shall not be removed  

from office except on the recommendation of the Chief  

Election Commissioner.   

(6) The President, or the Governor of a State, shall,  

when so requested by the Election Commission, make  

available to the Election Commission or to a Regional  

Commissioner such staff as may be necessary for the  

discharge of the functions conferred on the Election  

Commission by Clause (1).‖  

62. This Court in a catena of judgments has elucidated upon the role  

of the Election Commission and the extent to which it can exercise its  

power under the constitutional framework.

61    

63. In Election Commission of India and another. v. Dr.  

Subramaniam Swamy and another15, this Court ruled that the  

opinion of  the Election Commission is a sine qua non for the  

Governor or the President, as the case may be, to give a decision on  

the question whether or not the concerned member of the House of  

the Legislature of the State or either House of Parliament has  

incurred a disqualification. The Court observed:-  

"Then we turn to Clause (2) of Article 192 which reads  as under:  

192(2) - Before giving any decision on any such  question, the Governor shall obtain the opinion of  the Election Commission and shall act according  to such opinion.  

It is clear from the use of the words 'shall obtain'  the opinion of the Election Commission, that it is  obligatory to obtain the opinion of the Election  Commission and the further stipulation that the  Governor "shall act" according to such opinion leaves  no room for doubt that the Governor is bound to act  according to that opinion. The position in law is well  settled by this Court's decision in Brundaban v.  Election Commission, [1965] 3 SCR 53 wherein this  Court held that it is the obligation of the Governor to  take a decision in accordance with the opinion of the  

15  (1996) 4 SCC 104

62    

Election Commission. It is thus clear on a conjoint  reading of the two clauses of Article 192 that once a  question of the type mentioned in the first clause is  referred to the Governor, meaning thereby is raised  before the Governor, the Governor and the Governor  alone must decide it but this decision must be taken  after obtaining the opinion of the Election Commission  and the decision which is made final is that decision  which the Governor has taken in accordance with the  opinion of the Election Commission. In effect and  substance the decision of the Governor must depend  on the opinion of the Election Commission and none  else, not even the Council of Ministers. Thus the  opinion of the Election Commission is decisive since  the final order would be based solely on that opinion.  

8. The same view came to be expressed in the case of  Election Commission of India v. N.G. Ranga, [1979] 1  SCR2 10, while interpreting Article 103(2) of the  Constitution, the language thereof is verbatim except  that instead of the Governor in Article 192(2), here the  decision has to be made by the President. So also the  language of Articles 192(1) and 103(1) is identical  except for the same change. The Constitution Bench of  this Court reiterated that the President was bound to  seek and obtain the opinion of the Election  Commission and only thereafter decide the issue in  accordance therewith. It other words, it is the Election  Commission's opinion which is decisive."  

 64. In Mohinder Singh Gill (supra), Krishna Iyer J. opined:-  

"12. The scheme is this. The President of India  (Under Section 14) ignites the general elections  across the nation by calling upon the People, divided  into several constituencies and registered in the  electoral rolls, to choose their representatives to the

63    

Lok Sabha. The constitutionally appointed authority,  the Election Commission, takes over the whole  conduct and supervision of the mammoth enterprise  involving a plethora of details and variety of activities,  and starts off with the notification of the time table for  the several stages of the election (Section 30).' The  assembly line operations then begin. An  administrative machinery and technology to execute  these enormous and diverse jobs is fabricated by the  Act, creating officers, powers and duties, delegation  of functions and location of polling stations. The  precise exercise following upon the calendar for the  poll, commencing from presentation of nomination  papers, polling drill and telling of votes, culminating in  the declaration and report of results are covered by  specific prescriptions in the Act and the rules. The  secrecy of the ballot, the authenticity of the voting  paper and its' later identifiability with reference to  particular polling stations, have been thoughtfully  provided for. Myriad other matters necessary for  smooth elections have been taken care of by several  provisions of the Act."  

65. Further, the Court observed in Mohinder Singh Gill (supra)  

that a re-poll for a whole constituency under compulsion of  

circumstances may be directed for the conduct of elections and can  

be saved by Article 324 provided it is bona fide and necessary for the  

vindication of the free verdict of the electorate and the abandonment  

of the previous poll was because it failed to achieve that goal. The  

Court ruled that even Article 324 does not exalt the Commission into

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a law unto itself. Broad authority does not bar scrutiny into specific  

validity of a particular order. Having said that, the Court passed the  

following directions:-  

"2(a) The Constitution contemplates a free and fair  election and vests comprehensive responsibilities of  superintendence, direction and control of the conduct  of elections in the Election Commission. This,  responsibility may cover powers, duties and functions  of many sorts, administrative or other, depending on  the circumstances.  

(b) Two limitations at least are laid on its plenary  character in the exercise thereof. Firstly, when  Parliament or any State Legislature has made valid law  relating to or in connection with elections, the  Commission shall act in conformity with, not in violation  of such provisions but where such law is silent Article  324 is a reservoir of power to act for the avowed  purpose of, not divorced from pushing forward a free  and fair election with expedition- Secondly, the  Commission shall be responsible to the rule of law, act  bona fide and be amenable to the norms of natural  justice in so far as conformance to such canons can  reasonably and realistically be required of it as fairplay- in-action in a most important area of the constitutional  order, viz., elections. Fairness does import an  obligation to see that no wrong-doer candidate benefits  by his own wrong. To put the matter beyond doubt  natural justice enlivens and applies to the specific case  of order for total repoll although not in full panoply but  inflexible practicability. Whether it has been complied  with is left open for the Tribunal adjudication."  

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66. In the concurring judgment in Mohinder Gill (supra), Goswami,  

J., with regard to Article 324, observed thus in para 113:-   

―...Since the conduct of all elections to the various  legislative bodies and to the offices of the President  and the Vice-President is vested under Article 324(1)  in the Election Commission, the framers of the  Constitution took care to leaving scope for exercise of  residuary power by the Commission, in its own right,  as a creature of the Constitution, in the infinite variety  of situations that may emerge from time to time in such  a large democracy as ours. Every contingency could  not be foreseen, or anticipated with precision. That is  why there is no hedging in Article 324. The  Commission may be required to cope with some  situation which may not be provided for in the enacted  laws and the rules...‖    

67. In A.C. Jose v. Sivan Pillai and others16, this Court held that:-  

"It is true that Article 324 does authorise the  Commission to exercise powers of superintendence,  direction and control of preparation of electoral rolls  and the conduct of elections to Parliament and State  legislatures but then the Article has to be read  harmoniously with the Articles that follow and the  powers that are given to the Legislatures under entry  No. 72 in the Union List and entry No. 37 of the State  List of the Seventh Schedule to the Constitution. The  Commission in the garb of passing orders for  regulating the conduct of elections cannot take upon  itself a purely legislative activity which has been  reserved under the scheme of the Constitution only to  

16  AIR 1984 SC 921

66    

Parliament and the State legislatures. By no standards  can it be said that the Commission is a third Chamber  in the legislative be process within the scheme of the  Constitution.  merely being a creature of the  Constitution will not give it plenary and absolute power  to legislate as it likes without reference to the law  enacted by the legislatures.‖  

[Emphasis added]  

68. In Association for Democratic Reforms (supra), the Court  

opined:-  

"Under Article 324, the superintendence, direction and  

control of the 'conduct of all elections' to Parliament  

and to the Legislature of every State vests in Election  

Commission. The phrase 'conduct of elections' is held  

to be of wide amplitude which would include power to  

make all necessary provisions for conducting free and  

fair elections."  

69. In Kuldip Nayar v. Union of India  and others17, this Court  

has observed:-  

 "181. It has been argued by the petitioners that the  Election Commission of India, which under the  Constitution has been given the plenary powers to  supervise the elections freely and fairly, had opposed  the impugned amendment of changing the secret ballot  system. Its view has, therefore, to be given proper  weightage.    

17 (2006) 7 SCC 1

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In this context, we would say that where the law on the  subject is silent, Article 324 is a reservoir of power for  the Election Commission to act for the avowed  purpose of pursuing the goal of a free and fair election,  and in this view it also assumes the role of an adviser.  But the power to make law under Article 327 vests in  the Parliament, which is supreme and so, not bound by  such advice. We would reject the argument by  referring to what this Court has already said in  Mohinder Singh Gill (supra) and what bears reiteration  here is that the limitations on the exercise of "plenary  character" of the Election Commission include one to  the effect that "when Parliament or any State  Legislature has made valid law relating to or in  connection with elections, the Commission, shall act in  conformity with, not in violation of, such provisions."  

70. The aforesaid decisions are to be appositely appreciated. There  

is no denial of the fact that the Election Commission has the plenary  

power and its view has to be given weightage. That apart, it has  

power to supervise the conduct of free and fair election. However, the  

said power has its limitations. The Election Commission has to act in  

conformity with the law made by the Parliament and it cannot  

transgress the same.  

71. It is submitted by Mr. Krishnan Venugopal, learned senior  

counsel appearing for the petitioner in Writ Petition (Civil) No. 800 of  

2015 that traditionally, the Court would not breach the principle of

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separation of powers, however, this cannot prevent this Court from  

passing necessary directions to address the systemic growth of the  

problem of criminalization of politics and the political system without  

breaching the principle of separation of powers and this Court, in  

order to discharge its constitutional function, can give directions to the  

Election Commission to exercise its powers under Article 324 of the  

Constitution to redress violation of the fundamental rights and to  

protect the purity of the electoral process. Mr. Venugopal contends  

that in the past too, this Court, on several instances, had given  

directions to the Election Commission.  He has also pointed out that  

the reason behind the urgent need for this Court to intervene to tackle  

the growing menace of criminalization of politics is that several law  

commission reports and other papers have unanimously concluded  

that there is widespread criminalization of politics and this Court has  

also taken cognizance of this fact in several of its judgments, but  

despite the said reports and the efforts of this Court, neither the  

Parliament nor the Government of India has taken serious actions to  

tackle the problem.  

69    

72. Further, Mr. Venugopal has drawn the attention of this Court to  

the findings in the Report titled 'Milan Vaishnav, When crime pays:   

Money and Muscle in Indian Politics‖18 to highlight that there is an  

alarming increase in the number of candidates with criminal  

antecedents and their chances of winning have actually increased  

steadily over the years and there is ample evidence in the form of  

statistical data which reinstates this fact.   

73. On that basis, it is contended that the empirical evidence  

supports the view that the current legislative framework permits  

criminals to enter the electoral arena and become legislators which  

interferes with the purity and integrity of the electoral process,  

violates the right to choose freely the candidate of the voter's choice  

thereby violating the freedom of expression of a voter and amounts to  

a subversion of democracy which is a part of the basic structure and  

is, thus, antithetical to the Rule of Law.  

74. Mr. Venugopal‘s submission has been supported by Mr. Dinesh  

Dwivedi, learned senior counsel appearing for the petitioners in Writ  

18   Milan Vaishnav, When crime pays: Money and Muscle in Indian Politics, Yale Press University, New  

    Haven (2017)

70    

Petition (Civil) No. 536 of 2011 and Mr. Sidharth Luthra, learned  

Amicus Curiae, to the effect that if the Court does not intend to  

incorporate a prior stage in criminal trial, it can definitely direct the  

Election Commission to save democracy by including some  

conditions in the Election Symbols (Reservation and Allotment)  

Order, 1968 (hereinafter referred to as ‗the Symbols Order‘). The  

submission is that 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. It is urged that 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.   

75. The aforesaid submission is seriously opposed by the learned  

Attorney General. It is the case of the first respondent that Section  

29A of the Act does not permit the Election Commission of India to                     

deregister a political party. To advance this view, the Union of India

71    

has relied upon the decision of this Court in Indian National  

Congress (I) v. Institute of Social Welfare and others19.  

76. It is also the asseveration of the first respondent that the power  

of this Court to issue directions to the Election Commission of India  

have been elaborately dealt with in Association for Democratic  

Reforms (supra) wherein this Court held that Article 32 of the  

Constitution of India only operates in areas left unoccupied by  

legislation and in the case at hand, the Constitution of India and the  

Representation of the People Act, 1951 already contain provisions for  

disqualification of Members of Parliament. Therefore, directing the  

Election Commission to (a) deregister a political party, (b) refuse  

renewal of a political party or (c) to not register a political party if they  

associate themselves with persons who are merely charged with   

offences would amount to adopting a colourable route, that is, doing  

indirectly what is clearly prohibited under the Constitution of India and  

the Representation of the People Act.  

77. It is also contended on behalf of the Union of India that adding  

a condition to the recognition of a political party under the Symbols   

19 (2002) 5 SCC 685

72    

Order  would also result in doing indirectly what is clearly prohibited.  

To buttress this stand, the Union of India has cited the decisions in  

Jagir Singh v. Ranbir Singh and another20 and M.C. Mehta v.  

Kamal Nath and others21.  

78. Further, it has been submitted by the first respondent that  

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.  

79. As per the first respondent, 'pure law' in the nature of  

constitutional provisions and the provisions of the Act cannot be  

substituted or replaced by judge made law. To advance the said  

stand, the first respondent has cited the judgments of this Court in  

State of Himachal Pradesh and others v. Satpal Saini22  and  

20  (1979) 1 SCC 560  

21  (2000) 6 SCC 213  

22  (2017) 11 SCC 42

73    

Kesavananda Bharati v. State of Kerala and another23 wherein the  

doctrine of separation of powers was concretised by this Court. It is  

the contention of the first respondent that answering the present  

reference in the affirmative would result in violation of the doctrine of  

separation of powers.  

80. The first respondent has also contended that the presumption  

of innocence until proven guilty is one of the hallmarks of Indian  

democracy and the said presumption attaches to every person who  

has been charged of any offence and it continues until the person has  

been convicted after a full-fledged trial where evidence is led. Penal  

consequences cannot ensue merely on the basis of charge.  

81. Drawing support from the judgment of this Court in Amit  

Kapoor v. Ramesh Chander and another24, it is averred by the first  

respondent that the standard of charging a person is always less than  

a prima facie case, i.e., a person can be charged if the facts  

emerging from the record disclose the existence of all the ingredients  

constituting the alleged offence and, therefore, the consequences of  

23  (1973) 4 SCC 225  

24  (2012) 9 SCC 460

74    

holding that a person who is merely charged is not entitled to  

membership of a political party would be grave as it would have the  

effect of taking away a very valuable advantage of the symbol of the  

political party.  

82. It has been further contended by the first respondent that every  

citizen has a right under Article 19(l)(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. Further, this right can  

only be restricted by law made by the Parliament and any direction  

issued by the Election Commission of India under Article 324 is not  

law for the purpose of Article 19(l)(c).  

83. The first respondent also submits that the Act already contains  

detailed provisions for disclosure of information by a candidate in the  

form of Section 33A which requires every candidate to disclose  

information pertaining to offences that he or she is accused of. This  

information is put on the website of the Election Commission of India  

and requiring every member of a political party to disclose such

75    

information irrespective of whether he/she is contesting election will  

have serious impact on the privacy of the said member.  

84. Relying upon the decisions in Union of India and another v.  

Deoki Nandan Aggarwal25 and Supreme Court Bar Association v.  

Union of India and another26, the first respondent has submitted  

that Article 142 of the Constitution of India does not empower this  

Court to add words to a statute or read words into it which are not  

there and Article 142 does not confer the power upon this Court to  

make law.  

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.  

25  (1992) Supp (1) 323  

26  (1998) 4 SCC 409

76    

Analysis of the Election Symbols Order  

86. In the adverting situation and keeping in view the submissions  

on the behalf of the petitioners, it is pertinent to scan and analyse the  

relevant provisions of the Symbols Order which deals with allotment,  

classification, choice of symbols by candidates and restriction on the  

allotment of symbols. Clause (4) of the Symbols Order reads:-  

―4. Allotment of symbols – In every contested  

election a symbol shall be allotted to a contesting  

candidate in accordance with the provisions of this  

Order and different symbols shall be allotted to  

different contesting candidates at an election in the  

same constituency.‖  

87. Clause (4) of the Symbols Order makes it clear that in each and  

every contested election, a symbol, to each and every contesting  

candidate, shall be allotted in accordance with the provisions of this  

Symbols Order and in case of an election in the same constituency,  

different symbols shall be allotted to different contesting candidates.  

Now, we must also dissect clause (5) of the Symbols Order which  

reads:-  

―5. Classification of symbols – (1) For the purpose of  this Order symbols are either reserved or free.  

(2) Save as otherwise provided in this Order, a  reserved symbol is a symbol which is reserved for a

77    

recognised political party for exclusive allotment to  contesting candidates set up by that party.  

(3) A free symbol is a symbol other than a reserved  symbol.‖  

88. Sub-clause (1) of clause (5) of the Symbols Order, a priori,  

segregates the symbols for the purposes of this Symbols Order into  

two simon pure categories, i.e., 'Reserved' or 'Free'. Therefore, a  

symbol under the Symbols Order can either be reserved or it can be  

free. Before decoding sub-clause (2) of clause (5), we may first  

decipher sub-clause (3) which gives a negative definition to a free  

symbol. As per sub-clause (3) of clause (5), a symbol is free if is not  

reserved under the Symbols Order. Sub-clause (2) of clause (5)  

which defines a reserved symbol stipulates that except as otherwise  

provided in the Symbols Order, a reserved symbol is one which is  

reserved for a recognised political party for exclusive allotment to the  

contesting candidates set up by such political party.  

89. Thereafter, clause (6) classifies political parties into state  

parties and national parties. Clauses (6A) and (6B) stipulate the  

conditions for recognition of state and national parties, respectively.

78    

Under clause (17) of the Symbols Order the Election Commission  

publishes, by notification in the Official Gazette of India, the national  

parties, State parties and the symbols reserved for them. Clause (17)  

reads as under:-  

―17. Notification containing lists of political parties  

and symbols –  

(1) The Commission shall by one or more  notifications in the Gazette of India publish lists  specifying-   

(a) the National Parties and the symbols respectively  reserved for them;  

(b) the State Parties, the State or States in which they  are State Parties and the symbols respectively  reserved for them in such State or States;  

x    x    x‖  

90. Another important provision in the matter of choice of symbols  

by candidates and restriction on the allotment thereof is clause (8) of  

the Symbols Order which reads thus:-  

―8. Choice of symbols by candidates of National  and State Parties and allotment thereof –  

(1) A candidate set up by a National Party at any  election in any constituency in India shall choose, and

79    

shall be allotted, the symbol reserved for that party and  no other symbol.  

(2) A candidate set up by a State Party at an election  in any constituency in a State in which such party is a  State Party, shall choose, and shall be allotted the  symbol reserved for that Party in that State and no  other symbol.  

(3) A reserved symbol shall not be chosen by, or  allotted to, any candidate in any constituency other  than a candidate set up by a National Party for whom  such symbol has been reserved or a candidate set up  by a State Party for whom such symbol has been  reserved in the State in which it is a State Party even if  no candidate has been set up by such National or  State Party in that constituency.‖  

91. For exegesis of clause (8) of the Symbols Order, it is apt that  

we refer to clause (13) which provides as to when a candidate is  

deemed to be set up by a political party. Clause (13) reads as under:-  

―13. When a candidate shall be deemed to be set  up by a political party.―For the purposes of an  election from any parliamentary or assembly  constituency to which this Order applies, a candidate  shall be deemed to be set up by a political party in any  such parliamentary or assembly constituency, if, and  only if,-  

(a) the candidate has made the prescribed declaration  to this effect in his nomination paper;  

(aa) the candidate is a member of that political party  and his name is borne on the rolls of members of the  party;

80    

(b) a notice by the political party in writing, in Form B,  to that effect has, not later than 3 p.m. on the last date  for making nominations, been delivered to the  Returning Officer of the constituency;  

(c) the said notice in Form B is signed by the  President, the Secretary or any other office bearer of  the party, and the President, Secretary or such other  office bearer sending the notice has been authorised  by the party to send such notice;  

(d) the name and specimen signature of such  authorised person are communicated by the party, in  Form A, to the Returning Officer of the constituency  and to the Chief Electoral Officer of the State or Union  Territory concerned, not later than 3 p.m. on the last  date for making nominations; and  

(e) Forms A and B are signed, in ink only, by the said  office bearer or person authorised by the party:  

Provided that no facsimile signature or signature by  means of rubber stamp, etc., of any such office bearer  or authorised person shall be accepted and no form  transmitted by fax shall be accepted.‖  

92. Clause (13) lays down an elaborate procedure in order for a  

candidate to be set up by a political party in both the elections to the  

Parliament as well as the Assembly constituencies.  

93. Coming back to clause (8) of the Symbols Order, as per sub-

clause (1) of clause (8), a candidate set up by a national party in  

terms of clause (13) in any constituency in India shall choose the  

symbol reserved for such national party and no other symbol. By

81    

using the word 'shall‘, sub-clause (1) of clause (8) makes it  

mandatory for a candidate set up by a national party to choose the  

symbol reserved for such national party. Further, sub-clause (1),  

again on a second instance, by using the word 'shall' in the context of  

the Election Commission, makes it obligatory for the Election  

Commission to allot to a candidate set up by a national party the  

symbol reserved for such national party. Therefore, sub-clause (1) by  

casting this duty on the Election Commission, as a natural corollary,  

gives birth to a right to the candidate set up by a national party to  

contest elections under the symbol reserved for such national party.  

94. That apart, the first part of sub-clause (3) of clause (8)  

stipulates that a symbol reserved, in terms of clause (5) read with  

clause (17) of the Symbols Order, shall neither be chosen by nor  

allotted by the Election Commission to any candidate in any  

constituency other than a candidate set up by a national party.  

95. Sub-clause (2) of clause (8) and the latter part of clause (3) are  

corresponding provisions for choice of symbol by candidates of State

82    

parties which, for the sake of brevity, we need not delve into. Coming  

to the last clause of the Symbols Order, clause (18) reads thus:-  

―18. Power of Commission to issue instructions  and directions:—The Commission may issue  instructions and directions-  

x    x    x  

x    x    x  

(c) in relation to any matter with respect to the  reservation and allotment of symbols and recognition  of political parties, for which this Order makes no  provision or makes insufficient provision, and provision  is in the opinion of the Commission necessary for the  smooth and orderly conduct of elections.‖  

96. In terms of sub-clause (c) of clause 18, the power to issue  

instructions and directions, in matters relating to reservation and  

allotment of symbols, has been reserved by the Election Commission  

itself.  

97. What comes to the fore is that when a candidate has been set  

up in an election by a particular political party, then such a candidate  

has a right under sub-clause (3) of clause (8) to choose the symbol  

reserved for the respective political party by which he/she has been  

set up. An analogous duty has also been placed upon the Election

83    

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.  

98. Assuming a hypothetical situation, where a particular symbol is  

reserved for a particular political party and such a political party sets  

up a candidate in elections against whom charges have been framed  

for heinous and/or grievous offences and if we were to accept the  

alternative proposal put forth by the petitioners to direct the Election  

Commission that such a candidate cannot 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 will be a  

colourable exercise of judicial power for it is axiomatic that ―what  

cannot be done directly ought not to be done indirectly‖ which is a  

well-accepted principle in the Indian judiciary.   

99. Here we may profit to refer to some authorities wherein the said  

principle has been discussed elaborately.

84    

100. In Allied Motors Limited v. Bharat Petroleum Corporation  

Limited27, reference was made to the celebrated judgment of the  

Privy Council in Nazir Ahmad v. King Emperor28 wherein the  

principle has been enunciated ―that where a power is given to do a  

certain thing in a certain way, the thing must be done in that way, or  

not at all.‖  Other methods of performance are necessarily forbidden.  

This principle has been reiterated and expanded by the Supreme  

Court in several decisions.  

101. In D.R. Venkatachalam and others v. Dy. Transport  

Commissioner and others29, it was observed:-  

―In ultimate analysis, the rule of construction relied  

upon by Mr. Chitaley to make the last-mentioned  

submission is: "Expression unius est exclusio alterius."  

This maxim, which has been described as "a valuable  

servant but a dangerous master" (per Lopes J., in  

Court of Appeal in Colquhoun v. Brooks, (1888) 21  

QBD 52 finds expression also in a rule formulated in  

Taylor v. Taylor (1875) 1 Ch D 426 applied by the Privy  

Council in Nazir Ahmad v. King Emperor which has  

been repeatedly adopted by this Court. That rule says  

that an expressly laid down mode of doing something  

27  (2012) 2 SCC 1  

28  AIR 1936 PC 253  

29  AIR 1977 SC 842

85    

necessarily implies a prohibition of doing it in any other  

way.‖  

102. Similarly, in State through. P.S. Lodhi Colony New Delhi v.  

Sanjeev Nanda30, this Court observed thus:-  

―It is a settled principle of law that if something is  

required to be done in a particular manner, then that  

has to be done only in that way or not, at all. In AIR  

1936 PC 253 (2) Nazir Ahmad v. King Emperor, it has  

been held as follows:      ―.... The rule which applies is a different and not less  well recognized rule, namely, that where a power is  given to do a certain thing in a certain way the thing  must be done in that way or not at all....‖  

103. Another judgment where this principle has been reiterated is  

Rashmi Rekha Thatoi and another v. State of Orissa and others31   

wherein it was observed thus:-  

 ―In this regard it is to be borne in mind that a court  of law has to act within the statutory command and  not deviate from it. It is a well-settled proposition of  law what cannot be done directly, cannot be done  indirectly. While exercising a statutory power a  court is bound to act within the four corners thereof.  The statutory exercise of power stands on a  different footing than exercise of power of judicial  review.‖    

30   AIR 2012 SC 3104  

31   (2012) 5 SCC 690

86    

104. That apart, any direction to the Election Commission in the  

nature as sought by the petitioners may lead to an anomalous  

situation  and has the effect potentiality to do something indirectly  

which is not permissible to do directly.  A candidate bereft of party  

symbol is, in a way, disqualified from contesting under the banner of  

a political party.  It is contended that the person concerned can  

contest the election as an independent candidate but, as we  

perceive, the impact would be the same.  That apart, without a  

legislation, it may be difficult to proscribe the same.  Additionally,  

democracy that is based on multi-party system is likely to be dented.   

In Shailesh Manubhai Parmar v. Election Commission of India32,  

while dealing with the issue of introduction of NOTA to the election  

process for electing members of the Council of States, this Court  

observed thus:-  

―...introduction of NOTA to the election process for  electing members of the Council of States will be an  anathema to the fundamental criterion of democracy  which is a basic feature of the Constitution. It can be  

32  2018 (10) SCALE 52  

87    

stated without any fear of contradiction that the  provisions for introduction of NOTA as conceived by  the Election Commission, the first respondent herein,  on the basis of the PUCL judgment is absolutely  erroneous, for the said judgment does not say so. We  are disposed to think that the decision could not have  also said so having regard to the constitutional  provisions contained in Article 80 and the stipulations  provided under the Tenth Schedule to the Constitution.  The introduction of NOTA in such an election will not  only run counter to the discipline that is expected from  an elector under the Tenth Schedule to the  Constitution but also be counterproductive to the basic  grammar of the law of disqualification of a member on  the ground of defection. It is a well settled principle that  what cannot be done directly, cannot be done  indirectly. To elaborate, if NOTA is allowed in the  election of the members to the Council of States, the  prohibited aspect of defection would indirectly usher in  with immense vigour.  

(Emphasis is ours)  

105. Here it is apt to note that this Court refused to allow the  

introduction of NOTA for election of members of the Council of  

States, for the Court was of the view that if the availibilty of NOTA  

option in elections for Rajya Sabha would be allowed, the same  

would amount to colourable exercise of power by attempting to  

introduce or modify a disqualification for being or becoming a  

member, which power falls completely within the domain of the  

legislature. Ruling so, the Court further observed:-

88    

―The introduction of NOTA in indirect elections may on  a first glance tempt the intellect but on a keen scrutiny,  it falls to the ground, for it completely ignores the role  of an elector in such an election and fully destroys the  democratic value. It may be stated with profit that the  idea may look attractive but its practical application  defeats the fairness ingrained in an indirect election.  More so where the elector‗s vote has value and the  value of the vote is transferrable. It is an abstraction  which does not withstand the scrutiny of, to borrow an  expression from Krishna Iyer, J., the ―cosmos of  concreteness. We may immediately add that the option  of NOTA may serve as an elixir in direct elections but  in respect of the election to the Council of States which  is a different one as discussed above, it would not only  undermine the purity of democracy but also serve the  Satan of defection and corruption.‖    

106. Thus analyzed, the directions to the Election Commission as  

sought by the petitioners runs counter to what has been stated  

hereinabove. Though criminalization in politics is a bitter manifest  

truth, which is a termite to the citadel of democracy, be that as it may,  

the Court cannot make the law.  

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 criminalization 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

89    

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.  

108. 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 attentive 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.  

109. In spite of what we have stated above, we do not intend to  

remain oblivious to the issue of criminalization of politics.  This Court  

has focused on various aspects of the said criminalization 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.  In Association for Democratic Reforms (supra), this  

Court held:-

90    

“38. If right to telecast and right to view sport games  and the right to impart such information is considered  to be part and parcel of Article 19(1)(a), we fail to  understand why the right of a citizen/voter — a little  man — to know about the antecedents of his candidate  cannot be held to be a fundamental right under Article  19(1)(a). In our view, democracy cannot survive  without free and fair election, without free and fairly  informed voters. Votes cast by uninformed voters in  favour of X or Y candidate would be meaningless. As  stated in the aforesaid passage, one-sided information,  disinformation, misinformation and non-information, all  equally create an uninformed citizenry which makes  democracy a farce. Therefore, casting of a vote by a  misinformed and non-informed voter or a voter having  one-sided information only is bound to affect the  democracy seriously. Freedom of speech and  expression includes right to impart and receive  information which includes freedom to hold opinions.  Entertainment is implied in freedom of ‗speech and  expression‘ and there is no reason to hold that  freedom of speech and expression would not cover  right to get material information with regard to a  candidate who is contesting election for a post which is  of utmost importance in the democracy.‖  

 110. After the said judgment was delivered, the Representation of  

the People (Amendment) Ordinance, 2002 (4 of 2002) was  

promulgated and the validity of the same was called in question  

under Article 32 of the Constitution of India.  The three Judge Bench  

in People’s Union for Civil Liberties (PUCL) (supra) held that  

Section 33-B which provided the candidate to furnish information only

91    

under the Act and the rules is unconstitutional.  The said provision  

read as follows:-  

―33-B. Candidate to furnish information only under  the Act and the rules.—Notwithstanding anything  contained in any judgment, decree or order of any court  or any direction, order or any other instruction issued by  the Election Commission, no candidate shall be liable to  disclose or furnish any such information, in respect of  his election, which is not required to be disclosed or  furnished under this Act or the rules made thereunder.‖  

  111.  P. Venkata Reddy, J. expressed his view as follows:-  

―(1) Securing information on the basic details concerning  the candidates contesting for elections to Parliament or  the State Legislature promotes freedom of expression  and therefore the right to information forms an integral  part of Article 19(1)(a). This right to information is,  however, qualitatively different from the right to get  information about public affairs or the right to receive  information through the press and electronic media,  though, to a certain extent, there may be overlapping.  

* * *  

(3) The directives given by this Court in Union of India v.  Assn. for Democratic Reforms were intended to operate  only till the law was made by the legislature and in that  sense ‗pro tempore‘ in nature. Once legislation is made,  the Court has to make an independent assessment in  order to evaluate whether the items of information  statutorily ordained are reasonably adequate to secure  the right of information available to the voter/citizen. In  embarking on this exercise, the points of disclosure  indicated by this Court, even if they be tentative or ad  hoc in nature, should be given due weight and

92    

substantial departure therefrom cannot be  countenanced.  

* * *  

(5) Section 33-B inserted by the Representation of the  People (Third Amendment) Act, 2002 does not pass the  test of constitutionality, firstly, for the reason that it  imposes a blanket ban on dissemination of information  other than that spelt out in the enactment irrespective of  the need of the hour and the future exigencies and  expedients and secondly, for the reason that the ban  operates despite the fact that the disclosure of  information now provided for is deficient and inadequate.  

(6) The right to information provided for by Parliament  under Section 33-A in regard to the pending criminal  cases and past involvement in such cases is reasonably  adequate to safeguard the right to information vested in  the voter/citizen. However, there is no good reason for  excluding the pending cases in which cognizance has  been taken by the Court from the ambit of disclosure.‖  

 112. Dharmadhikari, J., in his supplementing opinion, held thus:-  

―127. The reports of the advisory commissions set up  one after the other by the Government to which a  reference has been made by Brother Shah, J., highlight  the present political scenario where money power and  muscle power have substantially polluted and perverted  the democratic processes in India. To control the ill- effects of money power and muscle power the  commissions recommend that election system should be  overhauled and drastically changed lest democracy  would become a teasing illusion to common citizens of  this country. Not only a half-hearted attempt in the  direction of reform of the election system is to be taken,  as has been done by the present legislation by  amending some provisions of the Act here and there,

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but a much improved election system is required to be  evolved to make the election process both transparent  and accountable so that influence of tainted money and  physical force of criminals do not make democracy a  farce — the citizen‘s fundamental ‗right to information‘  should be recognised and fully effectuated. This  freedom of a citizen to participate and choose a  candidate at an election is distinct from exercise of his  right as a voter which is to be regulated by statutory law  on the election like the RP Act.‖  

 113. In Resurgence India v. Election Commission of India33,  

referring to the precedents, this Court ruled thus:-  

―20. Thus, this Court held that a voter has the  elementary right to know full particulars of a candidate  who is to represent him in Parliament and such right to  get information is universally recognised natural right  flowing from the concept of democracy and is an integral  part of Article 19(1)(a) of the Constitution. It was further  held that the voter‘s speech or expression in case of  election would include casting of votes, that is to say,  voter speaks out or expresses by casting vote. For this  purpose, information about the candidate to be selected  is a must. Thus, in unequivocal terms, it is recognised  that the citizen‘s right to know of the candidate who  represents him in Parliament will constitute an integral  part of Article 19(1)(a) of the Constitution of India and  any act, which is derogative of the fundamental rights is  at the very outset ultra vires.‖    

And again:-  

33  (2014) 14 SCC 189

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―27. If we accept the contention raised by the Union of  India viz. the candidate who has filed an affidavit with  false information as well as the candidate who has filed  an affidavit with particulars left blank should be treated  on a par, it will result in breach of fundamental right  guaranteed under Article 19(1)(a) of the Constitution viz.  ‗right to know‘, which is inclusive of freedom of speech  and expression as interpreted in Assn. for Democratic  Reforms.‖  

 114. The Court summarized the directions as under:-    

―29.1. The voter has the elementary right to know full  particulars of a candidate who is to represent him in  Parliament/Assemblies and such right to get information  is universally recognised. Thus, it is held that right to  know about the candidate is a natural right flowing from  the concept of democracy and is an integral part of  Article 19(1)(a) of the Constitution.  

29.2. The ultimate purpose of filing of affidavit along with  the nomination paper is to effectuate the fundamental  right of the citizens under Article 19(1)(a) of the  Constitution of India. The citizens are supposed to have  the necessary information at the time of filing of  nomination paper and for that purpose, the Returning  Officer can very well compel a candidate to furnish the  relevant information.  

29.3. Filing of affidavit with blank particulars will render  the affidavit nugatory.  

29.4. It is the duty of the Returning Officer to check  whether the information required is fully furnished at the  time of filing of affidavit with the nomination paper since  such information is very vital for giving effect to the ‗right  to know‘ of the citizens. If a candidate fails to fill the  blanks even after the reminder by the Returning Officer,  the nomination paper is fit to be rejected. We do  comprehend that the power of Returning Officer to reject

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the nomination paper must be exercised very sparingly  but the bar should not be laid so high that justice itself is  prejudiced.  

29.5. We clarify to the extent that para 73 of People’s  Union for Civil Liberties case will not come in the way of  the Returning Officer to reject the nomination paper  when affidavit is filed with blank particulars.  

29.6. The candidate must take the minimum effort to  explicitly remark as ‗NIL‘ or ‗Not Applicable‘ or ‗Not  known‘ in the columns and not to leave the particulars  blank.  

29.7. Filing of affidavit with blanks will be directly hit by  Section 125-A(i) of the RP Act. However, as the  nomination paper itself is rejected by the Returning  Officer, we find no reason why the candidate must be  again penalised for the same act by prosecuting  him/her.‖  

 115. In People’s Union for Civil Liberties v. Union of India34, the  

Court held that the universal adult suffrage conferred on the citizens  

of India by the Constitution has made it possible for these millions of  

individual voters to go to the polls and thereby participate in the  

governance of our country. It has been further ruled that for  

democracy to survive, it is essential that the best available men  

should be chosen as the people‘s representatives for the proper  

governance of the country. The best available people, as is expected  

by the democratic system, should not have criminal antecedents and  

34  (2013) 10 SCC 1

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the voters have a right to know about their antecedents, assets and  

other aspects.  We are inclined to say so, for 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 do not come to know  

about the antecedents.  Their right to have information suffers.

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116. Keeping the aforesaid in view, we think it 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

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same shall be done at least thrice after filing of the  

nomination papers.  

117. These directions ought to be implemented in true spirit and right  

earnestness in a bid to strengthen the democratic set-up.  There may  

be certain gaps or lacunae in a law or legislative enactment which  

can definitely be addressed by the legislature if it is backed by the  

proper intent, strong resolve and determined will of right-thinking  

minds to ameliorate the situation.   It must also be borne in mind that  

the law cannot always be found fault with for the lack of its stringent  

implementation by the concerned authorities. Therefore, it is the  

solemn responsibility of all concerned to enforce the law as well as  

the directions laid down by this Court from time to time in order to  

infuse the culture of purity in politics and in democracy and foster and  

nurture an informed citizenry, for ultimately it is the citizenry which  

decides the fate and course of politics in a nation and thereby  

ensures that ―we shall be governed no better than we deserve‖, and  

thus, complete information about the criminal antecedents of the  

candidates forms the bedrock of wise decision-making and informed

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choice by the citizenry. Be it clearly stated that informed choice is the  

cornerstone to have a pure and strong democracy.  

118. We have issued the aforesaid directions with immense anguish,  

for the Election Commission cannot deny a candidate to contest on  

the symbol of a party.  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. It is true that  

false cases are foisted on prospective candidates, but the same can  

be addressed by the Parliament through appropriate legislation. 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 agonized 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

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conceive of the idea of entering into politics.  They should be kept at  

bay.   

119. 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.  

120. The writ petitions and the criminal appeals are disposed of  

accordingly.  

…………………………….CJI.         (Dipak Misra)         

……………………………….J.         (Rohinton Fali Nariman)  

……………………………….J.         (A.M. Khanwilkar)               ...………………….………..J.                     (Dr. D.Y. Chandrachud)      

                                                           ....………………….……….J.  New Delhi;       (Indu Malhotra)     September 25, 2018