Court can't enter arena of Parliament forbidden for judiciary: Centre to SC

New Delhi: The Supreme Court on Tuesday asked the Centre whether the Election Commission could be vested with powers to take back the reserved symbol allotted to a recognised political party for fielding persons with criminal antecedents to contest elections.

A five-judge Constitution bench headed by Chief Justice Dipak Misra posed this question to Attorney General K K Venugopal while hearing a batch of petitions raising an important question of law, whether a person facing a criminal case in a heinous crime can be disqualified from contesting Assembly or Parliamentary elections at the stage of filing chargesheet or framing of charges or only after the conviction.

The AG replied that the court could not impose any such condition and it is for the Parliament to provide a ground for disqualification. The court cannot enter the arena of Parliament, which is forbidden for the judiciary, he added. It is the right of the political parties to field candidates on its allotted symbol and this right cannot be denied by the court.

He said vesting any such power on the Election Commission either directly or indirectly would amount to preventing candidates who had done good work in the constituency from contesting the polls merely because the party in power files some case against him on the eve of polls.

The CJI told the AG, “We can always direct the Election Commission that persons from a political party should furnish affidavits about their clean record and in case of a criminal charge, the parties be held responsible. It will lose the status of a recognised political party if it fields persons with criminal antecedents.”

The bench also included Justices Rohinton Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.

Justice Nariman told the AG, “We are only making a proposal that at the time of registration of a political party this condition, viz it should not field candidates with criminal antecedents be imposed. The parties should make sure that the alleged crooks are not qualified. Why can’t we exhort Parliament to amend the law?”

Justice Chandrachud said that for the continuation of registration of political parties, this condition could have a bearing. He said, “We are not preventing the candidates with criminal background from contesting but only imposing a condition on a political party. The candidate can still contest without the reserved symbol.”

The AG said the Parliament in its wisdom would consider the parliamentary standing committee’s report, which had rejected the recommendations of the Law Commission to bar those against whom charges were framed from contesting elections. He said a person is presumed to be innocent till convicted by a court of law.

The AG said, “We all know that on the eve of elections there is a political vendetta and cases are filed against the proposed candidates, left, right and centre. Imposing new conditions will open the fight between political parties. Vesting powers to the EC to deny reserved symbol to a political party will be ultra vires its powers, whether it is by the court or by the EC on its own. This is democracy and any number of political parties can come and fight elections. How can the reserved symbol be denied to them?”

The AG told the court, “You cannot paralyse the political parties by saying that it will lose the symbol for fielding a candidate with criminal antecedent. How can this court deny the right of a political party merely on the basis of an allegation? The presumption of innocence will operate. This will result in serious consequences. The EC cannot introduce a new condition to deny the reserved symbol, which has to be done only on the basis of an enquiry for indulging in anti-national activities or for fraud.”

Senior counsel Dinesh Diwedi, for one of the petitioners, argued that to protect democracy and the institution of the legislature the court should issue a direction to the Centre and the EC to take necessary steps to debar persons convicted in criminal cases from contesting elections, forming a political party and becoming office-bearers of any party.

He argued that lifetime ban was necessary for convicted lawmakers so that they did not enter electoral politics for life and is necessary to curb corruption and criminalization, the greatest menace to our democracy and development.

He pointed out that the Law Commission in its report said “disqualification upon conviction has proved to be incapable of curbing the growing criminalisation politics, owing to long delays in trials and rare convictions. The law needs to evolve to pose an effective deterrence and to prevent subversion of the process of justice. The stage of framing of charges can be a disqualification as it is based on adequate levels of judicial scrutiny”.

Senior counsel Krishnan Venugopal quoting figures of the Association of Democratic Rights said that from 2004 the number of elected representatives to Parliament and State legislatures had witnessed a significant increase and 34 per cent of MPs have criminal records.

He said political parties are attracted to persons with such criminal records as they can subsidise the cost of elections and voters are also not bothered about the criminal antecedents of candidates. As the winning percentage of those with criminal records is increasing, the perception among political parties is that they could win and get things done with their influence.

Counsel said criminalisation of politics had resulted in destroying purity in elections and unless lifetime ban was imposed on convicted persons, this trend could not be remedied. He wanted the court to direct the EC to deny the reserved symbol if a political party fielded a person with a criminal background.

The Attorney General will continue his arguments on August 28.