Report No. 244

E. Supreme Court Judgments Interpreting this Framework

The judiciary has sought to curb this menace of criminalisation of politics through several seminal judgments and attendant directions to the government and the Election Commission primarily based on the aforesaid provisions. Specifically, orders of the Supreme Court seeking to engender a cleaner polity can be classified into three types: first, decisions that introduce transparency into the electoral process; second, those that foster greater accountability for holders of public office; third, judgments that seek to stamp out corruption in public life.

The discussion below is not meant to be an exhaustive account; it merely illustrates the trends in Supreme Court jurisprudence relating to the question of de-criminalisation of politics.

In Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294 (hereinafter 'ADR') the Supreme Court directed the Election Commission to call for certain information on affidavit of each candidate contesting for Parliamentary or State elections.

Particularly relevant to the question of criminalisation, it mandated that such information includes whether the candidate is convicted/acquitted/discharged of any criminal offence in the past, and if convicted, the quantum of punishment; and whether prior to six months of filing of nomination, the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by a court.

The constitutional justification for such a direction was the fundamental right of electors to know the antecedents of the candidates who are contesting for public office. Such right to know, the Court held is a salient facet, and the foundation for the meaningful exercise of the freedom of speech and expression guaranteed to all citizens under Article 19(1)(a) of the Constitution.

Again in People's Union for Civil Liberties v. Union of India, (2003) 2 SCC 549 (hereinafter 'PUCL') the Supreme Court struck down Section 33B of the Representation of People (Third Amendment) Act, 2002 which sought to limit the ambit of operation of the earlier Supreme Court order in the ADR case. Specifically it provided that only the information that was required to be disclosed under the Amendment Act would have to be furnished by candidates and not pursuant to any other order or direction.

This meant, in practical terms, that the assets and liabilities, educational qualifications and the cases in which he is acquitted or discharged of criminal offences would not have to be disclosed. Striking this down, the Court held that the provision nullified the previous order of the Court, infringed the right of electors' to know, a constituent of the fundamental right to free speech and expression and hindered free and fair elections which is part of the basic structure of the Constitution. It is pursuant to these two orders that criminal antecedents of all candidates in elections are a matter of public record, allowing voters to make an informed choice.

At the same time, the Supreme Court has also sought to foster greater accountability for those holding elected office. In Lily Thomas v. Union of India,(2013) 7 SCC 653 the Court held that Section 8(4) of the RPA, which allows MPs and MLAs who are convicted while serving as members to continue in office till an appeal against such conviction is disposed of, is unconstitutional.

Two justifications were offere.- first, Parliament does not have the competence to provide different grounds for disqualification of applicants for membership and sitting members; second, deferring the date from which disqualification commences is unconstitutional in light of Articles 101(3) and 190(3) of our Constitution, which mandate that the seat of a member will become vacant automatically on disqualification.

Again in People's Union for Civil Liberties v. Union of India, (2013) 10 SCC 1 (hereinafter 'NOTA'), the court held that the provisions of the Conduct of Election Rules, 1961, which require mandatory disclosure of a person's identity in case he intends to register a no-vote, is unconstitutional for being violative of his freedom of expression, which includes his right to freely choose a candidate or reject all candidates, arbitrary given that no analogous requirement of disclosure exists when a positive vote is registered, and illegal given its patent violation of the need for secrecy in elections provided in the RPA and widely recognised as crucial for free and fair elections.

Thus by allowing voters to express their dissatisfaction with candidates from their constituency for any reason whatsoever, the Supreme Court order has a significant impact in fostering greater accountability for incumbent office-holders. When its impact is combined with the decision in Lily Thomas, it is clear that the net effect of these judgments is to make it more onerous for criminal elements entrenched in Parliament from continuing in their positions.

Third, the Supreme Court has taken several steps for institutional reform to sever the connection between crime and politics. In Vineet Narain v. Union of India, (1998) 1 SCC 226 a case concerning the inertia of the Central Bureau of Investigation (CBI) in investigating matters arising out of certain seized documents known as the 'Jain diaries' which disclosed a nexus between politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, the Supreme Court used the power of continuing mandamus to direct large-scale institutional reform in the vigilance and investigation apparatus in the country.

It directed the Government of India to grant statutory status to the Central Vigilance Commission (CVC), laid down the conditions necessary for the independent functioning of the CBI, specified a selection process for the Director, Enforcement Directorate (ED), called for the creation of an independent prosecuting agency and a high-powered nodal agency to co-ordinate action in cases where a politico-bureaucrat-criminal nexus became apparent. These steps thus mandated a complete overhaul of the investigation and prosecution of criminal cases involving holders of public office.

Addressing the problem of delays in obtaining sanctions for prosecuting public servants in corruption cases, Vineet Narain also set down a time limit of three months for grant of such sanction. This directive was endorsed by the Supreme Court in Subramanium Swamy v. Manmohan Singh, (2012) 3 SCC 6 where the Court went on to suggest the restructuring of Section 19 of the Prevention of Corruption Act such that sanction for prosecution will be deemed to have been granted by the concerned authority at the expiry of the extended time limit of four months.

In these and other cases, See, for example, V.S. Achuthanandan v. R. Balakrishna Pillai, (2011) 3 SCC 317 on the issue of delay in trial of corruption cases involving public servants. the Supreme Court has attempted to facilitate the prosecution of criminal activity, specifically corruption, in the sphere of governance.

The Supreme Court, through its interpretation of statutory provisions connected with elections as well as creative use of its power to enforce fundamental rights, has made great strides towards ensuring a cleaner polity, setting up significant barriers to entry to public office for criminal elements as well as instituting workable mechanisms to remove them from office if they are already in power.

The Commission appreciates that these decisions demonstrate the need for the law itself to be reformed on a dynamic basis taking cognizance of latest developments. The same view is echoed by the several committees and commissions in the past which have recommended fundamental changes to laws governing electoral practices and disqualifications. A brief survey of such reports is undertaken in the section below.