Supreme Court clarifies Disqualification for Membership of Parliament and State Legislatures: Public Interest Foundation & Ors. vs. Union of India & Anr. (25 September 2018)

Case Background

The case arose from a batch of petitions and appeals highlighting the increasing criminalization of Indian politics. The petitioners argued that individuals with criminal backgrounds should be barred from contesting elections to maintain the integrity of the democratic process. They pointed out that many individuals with serious criminal charges were being elected to Parliament and State Legislatures, undermining the principles of democracy. The petitioners sought a direction from the Supreme Court to expand the grounds for disqualification beyond what is mentioned in Article 102 and Article 191 of the Constitution and the Representation of the People Act, 1951.

Timeline

Legal Framework

The judgment primarily revolves around the interpretation of the following constitutional provisions and statutes:

• Article 102 of the Constitution of India: This article specifies the grounds for disqualification for membership of either House of Parliament. It includes holding an office of profit, being of unsound mind, being an undischarged insolvent, not being a citizen of India, and being disqualified by or under any law made by Parliament.
• Article 191 of the Constitution of India: This article lays down similar grounds for disqualification for membership of the Legislative Assembly or Legislative Council of a State.
• Representation of the People Act, 1951: This Act provides the detailed framework for the conduct of elections in India. Chapter III of the Act deals with disqualifications for membership of Parliament and State Legislatures. Section 7 defines “disqualified,” stating it means disqualified under the provisions of this Chapter and on no other ground. Sections 8, 8A, 9, 9A, 10, and 10A specify various grounds for disqualification, such as conviction for certain offenses, corrupt practices, dismissal for corruption, government contracts, holding office in a government company, and failure to lodge election expenses.

The Court noted that Articles 102(1)(e) and 191(1)(e) of the Constitution confer specific powers on Parliament to make laws providing for disqualifications for membership of either House of Parliament or State Legislatures. The Court emphasized that the power to enact laws regarding disqualifications rests exclusively with Parliament, and not with the State Legislatures.

The Court quoted Section 7(b) of the Representation of the People Act, 1951 which states, “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.

Arguments

Petitioners’ Arguments:

• The petitioners argued that the increasing criminalization of politics is a serious threat to democracy. They contended that lawbreakers should not become lawmakers.
• They highlighted the recommendations of the Law Commission and various committee reports that have expressed concern over the rise of individuals with criminal records in politics.
• They argued that the principle of “presumption of innocence” is confined to criminal law and that civil restrictions, such as debarring a person facing serious charges from contesting elections, are permissible.
• They contended that the right to contest elections is not a fundamental right but a statutory right, and that it must conform to constitutional principles.
• They submitted 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.
• They also submitted that the Election Commission has the power to supervise elections and can control party discipline by not encouraging candidates with criminal antecedents.
• They further submitted that the Court can direct the Election Commission to include conditions in the Election Symbols (Reservation and Allotment) Order, 1968, to prevent candidates with criminal charges from contesting with party symbols.

Respondents’ Arguments (Union of India):

• The respondents argued that the power to make laws on disqualification rests solely with Parliament, and the Court should not interfere with this.
• They contended that the Court cannot issue a mandamus to Parliament to pass a specific legislation and can only recommend it.
• They emphasized that there are specific constitutional provisions and statutory laws regarding disqualification, and the Court should not overstep its boundaries.
• They argued that the Election Commission cannot deregister a political party under Section 29A of the Representation of the People Act, 1951, and that any direction to do so would be a colorable exercise of power.
• They contended that adding conditions to the recognition of political parties would amount to indirectly doing what is prohibited by the Constitution and the Representation of the People Act, 1951.
• They submitted that the presumption of innocence is a hallmark of Indian democracy, and penal consequences cannot ensue merely on the basis of a charge.
• They argued that every citizen has a right under Article 19(1)(c) to form associations, which includes the right to be associated with persons who are otherwise qualified to be Members of Parliament.
• They further submitted that the Representation of the People Act, 1951 already contains detailed provisions for disclosure of information by candidates, and requiring every member of a political party to disclose such information would violate their privacy.

Innovativeness of the Argument: The petitioners innovatively argued for the expansion of disqualification criteria by using the Election Symbols Order, 1968, as a tool to indirectly achieve the same. They contended that while the Court cannot directly disqualify candidates beyond what is in the law, it can direct the Election Commission to prevent candidates with criminal charges from using party symbols, thus indirectly achieving the same objective. The respondents, on the other hand, relied on the principle of separation of powers and the existing legal framework to oppose any judicial intervention.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court framed the following key issues for consideration:

1. Whether the Court can lay down disqualifications for membership beyond what is specified in Article 102(a) to (d) and the law made by Parliament under Article 102(e) of the Constitution.
2. Whether the Court can direct the Election Commission to include conditions in the Election Symbols (Reservation and Allotment) Order, 1968, to prevent candidates with criminal charges from contesting with party symbols.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court relied on the following cases and legal provisions in its judgment:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court relied on Lily Thomas v. Union of India to emphasize that the power to legislate on disqualifications rests solely with the Parliament.
• The Court referred to Manoj Narula v. Union of India to discuss the issue of individuals with criminal backgrounds holding public office, but did not use it to expand the grounds for disqualification.
• The Court cited Mohinder Singh Gill v. Chief Election Commissioner to underscore the importance of free and fair elections, but noted that the Election Commission’s powers are subject to the laws made by Parliament.
• The Court referred to Election Commission of India and another v. Dr. Subramaniam Swamy and another to emphasize the importance of the Election Commission’s opinion.
• The Court cited A.C. Jose v. Sivan Pillai and others to highlight the limitations on the powers of the Election Commission.
• The Court referred to Kuldip Nayar v. Union of India and others to reiterate the limitations on the exercise of “plenary character” of the Election Commission.
• The Court relied on Indian National Congress (I) v. Institute of Social Welfare and others to state that the Election Commission cannot deregister a political party.
• The Court used Jagir Singh v. Ranbir Singh and another and M.C. Mehta v. Kamal Nath and others to reinforce the principle that what cannot be done directly cannot be done indirectly.
• The Court referred to State of Himachal Pradesh and others v. Satpal Saini and Kesavananda Bharati v. State of Kerala and another to state that ‘pure law’ in the nature of constitutional provisions and the provisions of the Act cannot be substituted or replaced by judge made law.
• The Court referred to Amit Kapoor v. Ramesh Chander and another to state that the standard of charging a person is always less than a prima facie case.
• The Court referred to Union of India and another v. Deoki Nandan Aggarwal and Supreme Court Bar Association v. Union of India and another to state 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.
• The Court used Allied Motors Limited v. Bharat Petroleum Corporation Limited, Nazir Ahmad v. King Emperor, D.R. Venkatachalam and others v. Dy. Transport Commissioner and others, State through P.S. Lodhi Colony New Delhi v. Sanjeev Nanda, Rashmi Rekha Thatoi and another v. State of Orissa and others to reiterate the principle 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.
• The Court used Shailesh Manubhai Parmar v. Election Commission of India to state that what cannot be done directly, cannot be done indirectly.
• The Court relied on People’s Union for Civil Liberties v. Union of India and Resurgence India v. Election Commission of India to emphasize the voter’s right to information about candidates.

What weighed in the mind of the Court?

The Court’s decision was primarily influenced by the following factors:

• Separation of Powers: The Court was very conscious of the principle of separation of powers. It recognized that the power to make laws on disqualification rests solely with the Parliament, and the Court cannot encroach upon this legislative domain.
• Constitutional and Statutory Framework: The Court adhered strictly to the existing constitutional provisions and the Representation of the People Act, 1951. It emphasized that it cannot add to the grounds for disqualification laid down in these legal instruments.
• Presumption of Innocence: The Court was mindful of the principle of presumption of innocence, which is a fundamental aspect of the Indian legal system. It held that penal consequences cannot ensue merely on the basis of a charge.
• Limitations on Judicial Power: The Court recognized the limitations on its own powers. It emphasized that it cannot do indirectly what it cannot do directly. It cannot use the Election Commission or other mechanisms to indirectly create additional disqualifications.
• Importance of Free and Fair Elections: While the Court acknowledged the problem of criminalization of politics, it also recognized the importance of free and fair elections. It noted that any intervention must be within the bounds of the law.
• Legislative Intent: The Court respected the legislative intent behind the existing laws. It noted that the Parliament has made detailed provisions for disqualification, and the Court cannot substitute its own judgment for that of the legislature.
• Voter’s Right to Information: The Court acknowledged the voter’s right to information about candidates, but it did not see this as a basis for expanding the grounds for disqualification.

Flowchart of the Decision-Making Process

Ratio Decidendi

The core legal principle established by the Supreme Court in this case is that the Court cannot lay down disqualifications for membership of Parliament or State Legislatures beyond what is specified in the Constitution and the laws made by Parliament. The power to make laws on disqualification rests solely with Parliament, and the Court cannot encroach upon this legislative domain. Additionally, the Court cannot achieve indirectly what it cannot do directly by directing the Election Commission to add conditions to the Election Symbols Order that would indirectly create additional disqualifications.

Ratio Table

Obiter Dicta

While the Court’s main holding was that it cannot add to the disqualifications, it made several important observations:

• The Court acknowledged the serious problem of criminalization of politics and the need to maintain the purity of the electoral process.
• The Court emphasized the importance of free and fair elections in a democratic polity.
• The Court highlighted the voter’s right to information about candidates.
• The Court noted that the Parliament has the power to make laws to address the issue of criminalization of politics and it is the duty of the Parliament to do so.
• The Court observed that the Election Commission has a crucial role in ensuring free and fair elections, but its powers are subject to the laws made by Parliament.

Impact of the Judgment

The judgment had several significant impacts:

• No Immediate Change in Disqualification Criteria: The judgment did not lead to any immediate change in the disqualification criteria for members of Parliament and State Legislatures. The existing laws, as enacted by Parliament, continue to govern the disqualifications.
• Reinforcement of Separation of Powers: The judgment reinforced the principle of separation of powers, emphasizing that the judiciary cannot encroach upon the legislative domain.
• Emphasis on Legislative Action: The judgment placed the onus on Parliament to make laws to address the issue of criminalization of politics. The Court essentially nudged the legislature to take action.
• Continued Debate on Criminalization of Politics: The judgment did not resolve the issue of criminalization of politics. It continues to be a subject of debate and concern in India.
• Voter Awareness: The judgment emphasized the voter’s right to information, which has led to increased awareness among voters about the antecedents of candidates.

Critical Analysis

Strengths of the Judgment:

• Upholding the Constitution: The judgment upheld the constitutional framework and the principle of separation of powers. It ensured that the judiciary does not overstep its boundaries.
• Clarity on Judicial Limits: The judgment provided clarity on the limits of judicial power, particularly in matters of legislation. It reinforced the idea that the Court cannot make laws or indirectly achieve what it cannot do directly.
• Emphasis on Legislative Action: The judgment rightly emphasized the role of Parliament in addressing the issue of criminalization of politics. It nudged the legislature to take action, which is their primary responsibility.

Weaknesses of the Judgment:

• Limited Immediate Impact: The judgment did not provide any immediate solution to the problem of criminalization of politics. It did not expand the grounds for disqualification, which many felt was necessary.
• Missed Opportunity: Some critics argue that the Court missed an opportunity to take a more proactive role in addressing the issue. They believe that the Court could have used its powers to provide some interim relief or guidelines.
• Continued Criminalization: The judgment did not prevent individuals with criminal backgrounds from contesting elections. The problem of criminalization of politics continues to persist.

Potential Implications:

• Legislative Reforms: The judgment may lead to legislative reforms aimed at addressing the issue of criminalization of politics. The Parliament may be compelled to enact stricter laws on disqualification.
• Increased Public Awareness: The judgment has increased public awareness about the issue of criminalization of politics. This may lead to greater public pressure on political parties to field candidates with clean records.
• Continued Judicial Scrutiny: The issue of criminalization of politics is likely to remain under judicial scrutiny. The Court may continue to monitor the situation and may intervene if necessary.

Sentiment Table