Supreme Court Rules on Criminalization of Politics: Court Cannot Legislate Disqualification Beyond Parliament’s Mandate

Constitution Bench emphasizes the role of Parliament and Election Commission in tackling criminalization in politics, issues directions for transparency but refrains from judicial overreach

In a landmark judgment dated September 25, 2018, the Supreme Court of India, constituted as a Constitution Bench, delivered a detailed verdict on the pressing issue of criminalization in Indian politics. The case, Public Interest Foundation & Ors. v. Union of India & Anr., addressed whether the judiciary could impose disqualifications on election candidates beyond those prescribed by the Constitution and statutory law.

The Court acknowledged the “bitter manifest truth” of criminalization in politics, describing it as a termite eroding the foundations of democracy. However, the Bench held firmly that the power to legislate disqualifications for members of Parliament and State Legislatures rests exclusively with the Parliament under Articles 102 and 191 of the Constitution. The Court unequivocally stated that it cannot enact or add new disqualifications, emphasizing the principle that what cannot be done directly cannot be done indirectly.

The judgment carefully analyzed constitutional provisions and the Representation of the People Act, 1951, particularly Sections 7 to 10A, which comprehensively enumerate grounds for disqualification on conviction for certain offences, corrupt practices, dismissal for corruption or disloyalty, government contracts, office under government companies, and failure to lodge election expense accounts. The Court noted that the legislature has explicitly provided a complete code regarding disqualifications, leaving no scope for judicial innovation in this domain.

Despite this limitation, the Court expressed grave concern over the growing trend of candidates with criminal antecedents contesting elections and even winning. It referred to various reports, including the Vohra Committee, Law Commission’s 244th Report, and statistical data revealing that a significant percentage of current Members of Parliament and Legislative Assemblies have pending criminal cases, often serious in nature.

In light of these concerns, the Court made several important observations and issued directions aimed at enhancing transparency and enabling informed choice by voters. It mandated that:

1. Every contesting candidate must fill out a form prescribed by the Election Commission disclosing all particulars, including any pending criminal cases, stated in bold letters.

2. Candidates must inform their political parties about any pending criminal charges.

3. Political parties are obliged to publish this information about candidates with criminal antecedents on their official websites.

4. Both candidates and political parties must issue declarations in widely circulated newspapers and give wide publicity in electronic media at least thrice after the filing of nomination papers.

The Court underscored the importance of the electorate’s right to information under Article 19(1)(a) of the Constitution, recognizing that freedom of speech and expression encompasses the right to receive information about candidates. It stressed that disclosure of criminal antecedents is critical to the sanctity of elections and the health of democracy.

The judgment also clarified the role and limits of the Election Commission under Article 324 of the Constitution. While the Commission has plenary powers to supervise, direct, and control elections and may issue instructions for smooth election conduct, it cannot transgress or contravene laws enacted by Parliament. The Court dismissed petitions seeking directions to the Election Commission to deny party symbols to candidates facing criminal charges, holding that such directions would amount to judicial legislation and violate the doctrine of separation of powers.

The Supreme Court appealed to the Parliament to enact stronger laws compelling political parties to disallow persons facing charges for heinous and grievous offences from contesting elections or holding party office. The Court concluded with a solemn reminder that democracy depends on electing representatives of integrity and that the electorate deserves full disclosure to make informed choices.

This judgment reinforces the constitutional balance among the legislature, executive, and judiciary while addressing the urgent need to curb criminalization in politics through legislative reforms and implementation of transparency measures.

Statutory provisions

Articles 102, 191, 324 of the Constitution of India; Sections 7, 8, 8A, 9, 9A, 10, 10A, 125A of the Representation of the People Act, 1951; Representation of the People (Symbols) Order, 1968

Public Interest Foundation v. Union of India (SC)(Constitution Bench) : Law Finder Doc Id # 1246868