The Constitution bench will examine if a legislator facing a criminal trial should be disqualified at the stage of framing of charge.
In 2011, Public Interest Foundation, an NGO filed a writ petition requesting the court to: first, issue guidelines for disqualifying legislators from contesting elections if serious criminal charges are framed against them; second, making filing of false affidavits a ground for disqualifying legislators under the Representation of Peoples Act, 1951 (RP Act). On 16th December 2013, the division bench of the then Chief Justice RM Lodha and Justice Shiva Kirti Singh requested the Law Commission to submit a report on these two issues.
Section 8 of the RP Act deals with disqualification upon conviction for certain offences. Under the Act, a person convicted for any offence under Sections 8(1) (2) and (3) stands disqualified from the date of conviction: but these provisions do not deal with disqualification of candidates on framing of charge.
Two questions emerge in this matter: whether the court is enabled to issue guidelines for disqualification of candidates; or, should it be left to the Parliament’s prerogative.
The Law commission in its 244th report on Electoral Disqualification considered these questions. It observed that disqualification upon conviction has proved to be ineffective in curbing growing criminalization of politics due to delays in trial and rare convictions.
The Law Commission recommended that electoral disqualification should be triggered at the stage of framing of charge rather than upon conviction: there is sufficient application of judicial mind at stage of framing of charge.
However, the Commission suggested certain legal safeguards to prevent its misuse: offences having maximum punishment of 5 or more years should come under the remit of this provision; charges framed up to 1 year before the scrutiny of nominations for an election should not lead to disqualifications; for charges framed against sitting MP/MLAs, the trial should be conducted on a day to day basis and be concluded within a year.
On the question of filing false affidavits, the Law Commission recommended that: the punishment for filing false affidavit under Section 125 A of the RP Act should be increased; and the offence is added as a ground for disqualification under Section 8(1) of the RP Act.
Recognizing the growing menace of criminalization of politics, the Law Commission suggested that disqualification on framing of charge or filing of wrong false affidavits should be applied retrospectively. On 8th March 2016, a three – judge bench of the court headed by Justice Ranjan Gogoi referred the matter to be heard before a Constitution bench. The three-judge bench rejected the Union’s submission that these questions stand settled by the 5 bench judgment in Manoj Narula in 2014.
In Manoj Narula, the court distinguished between judicial review and executive discretion. The court chose not to interfere with the Prime Minister’s discretion to choose his cabinet ministers even though some of the ministers might have had criminal antecedents.
On 9th August, 2018, the Constitution Bench comprising CJI Dipak Misra, Justices DY Chandrachud, AM Kahnwilkar, RF Nariman and Indu Malhotra began hearing the matter.
1) Whether the court can lay down additional disqualifications for beyond Article 102(e) and Section (8) of the RP Act?
2) Whether the disqualification should be triggered upon conviction as it exists presently or upon framing of charges by the court?
3) Whether filing of false affidavits under Section 125A of the RP Act should be a ground of disqualification?