Public Interest Foundation v. Union of India (2019 (3) SCC 224)

Public Interest Foundation v. Union of India (2019 (3) SCC 224)

Electoral Disqualification

Court: In the Supreme Court of India (Civil Original Jurisdiction)
Citation: 2019 (3) SCC 224
Case No.: Writ Petition (Civil) no. 536 of 2011
Petitioner: Public Interest Foundation
Respondent: Union Of India
Bench: Former CJI  Dipak  Misra, Justice  RF  Nariman, Justice  AM  Khanwilkar, Justice DY Chandrachud, Justice Indu Malhotra
Public Interest Foundation v. Union of India

Introduction

This case is mainly concerned with the Electoral disqualification and decided by a five-judge bench unanimously on 25th Sept 2018. The criminalization of politics is a dangerous tendency. In the current scenario, the parliament has seen a rise in the number of lawmakers with having criminal cases against them.

Therefore, it leads to threatening the democracy of India. This is a landmark case in which the apex court has given directions to curtail the criminalization of politics in India.

Facts of the case

  • Public Interest Foundation is a Non-Government Organization (NGO). The Public Interest Foundation filed a writ petition under Article 32 of the Constitution asking the court to disqualify the candidates/members who have criminal charges against them.
  •  The intention of this petition filed by the Public Interest Foundation was that the people against whom any charges are framed in any court of law should be disqualified from contesting elections.
  • There were many writ petitions were filed before this case to disqualify those candidates from election who have criminal charges against them.
  • Originally the petition was heard by 3 judge bench and later it was a view that it needs to be addressed by a constitutional bench (5 judge bench).

Issue

  1. Whether any disqualification for membership of parliament can be laid down by the court beyond Article 102(a) to (d) and the law made by the parliament under Article 102(e)?

Rules

Article 102

(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament

  • 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;
  • if he is of unsound mind and stands so declared by a competent court;
  • if he is an undischarged insolvent;
  • 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;
  • 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 any 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

Article 191

(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

  • 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;
  • if he is of unsound mind and stands so declared by a competent court;
  • if he is an undischarged insolvent;
  • 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;
  • 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 any 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

Section 8 to 10A of Representative of people’s Act,1951

Arguments of the Parties

Arguments by Petitioner

  • Petitioner argued that the right to contest an election is not a fundamental right thus the breakers of the law should not be allowed to become lawmakers.
  • The court should prohibit the political parties from issuing tickets to those candidates who have criminal charges framed against them.
  • People with criminal backgrounds in politics may lead to a lower status and also there is chance of domination.
  • As India is a democratic country there is a need to protect the country from the criminalization of politics for the welfare of the state.
  • It is necessary to rectify the system failing which there will be a progressive malady in the constitutional governance and gradually the governance would be controlled by criminals.

Arguments by Respondent

  • Respondent argued that the Principle of Separation of power is followed in India. The power to make laws is a legislative function and the court doesn’t have the power to make laws. If the court makes laws then it would lead to a violation of the separation of powers.
  • Presumption of innocence until proven guilty is one of the hallmarks of Indian democracy. Penal consequences cannot ensure merely on the basis of charge.
  • When there are specific constitutional provisions and the statutory laws, the court should not interfere and leave it to the parliament.
  • Section 8 to 10A of the Representative of people’s Act has clearly enumerated the grounds for disqualification and there is no ambiguity.
  • Article 142 of the Indian Constitution does not give the power to the court to make laws if the court acts beyond their limits it would be contrary to the provisions of the Constitution.

Judgment

The 5 judge bench of Hon’ble Supreme Court held that it cannot disqualify the candidates against whom criminal charges have been framed from contesting elections. The court does not have the power to make, alter, or amend such law or to introduce a new law. The principle of separation of power should be respected. The court suggested the parliament that such laws are necessary to ensure that voters can make their choice to whom they should elect.

Directions issued by the court

  • 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.
  • It shall state, in bold letters, with regard to the criminal cases pending against the candidate
  • 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.
  • The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.
  • The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers.

Precedents

Manoj Narula V. Union of India [1]

This case was related to the appointment of ministers in central as well as state government. In this landmark case, the Supreme Court held that Judiciary cannot read a disqualification which is not contemplated by the statute into Article 75(1). The court also held that as the Prime minister has discretionary powers for the appointment of members it is expected that the members with criminal charges framed against them for serious crime should not be considered.

Lily Thomas V. Union of India [2]

It was held by the apex court that MP, MLA, Legislative council who are convicted of a crime and awarded 2 years of imprisonment then he/she would cease to be a member of the house from the date of sentencing. Once the member becomes disqualified then his seat automatically becomes vacant. The court further held that convicted members given a 3 month time period for appeal against the conviction.

Analysis

In this case, we can see the criminalization of politics. In our democratic country, we follow the separation of powers in which all three organs have their independent powers. Thus, Judiciary cannot interfere with legislative functions. The court doesn’t have the power to disqualify the members/candidates on the ground that they have criminal charges framed against them. The main function of the legislature to make laws and the court can only suggest or give advice to the parliament to make changes in the provision or statute.

Though the court cannot interfere in the legislative function it has issued some directives to be followed by the candidates if he has criminal charges framed against them. This directive will help to provide the details or criminal antecedents of such candidates which would help the voter to select the fair representative.

Conclusion

It can be concluded that the rate of convictions of MP, MLA is very low and their trials are subject to delay. Thus, it threatens the parliamentary democracy and also causes deterioration of democratic value. As the legislature deals with the law-making powers, now the time has come that the parliament must make strict laws relating to the criminalization of politics. The lawbreakers should not become lawmakers.

Court has taken the step by issuing the directives with an aim to fill the gap between candidates/representatives and the voters. Now after the directives issued by the court it is easy for the voters after considering the criminal background of the candidate to select the best representative for the welfare of the state.

References

[1] (2014) 9 SCC 77

[2] (2013) 7 SCC 653


Author: Snehal Tanaji Shirke | College: Parvatibai Jondhale Women’s Law College
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