The Constitution Bench will decide whether an electoral candidate should be disqualified when serious charges are framed against them in a criminal trial.
In 2011 Public Interest Foundation, a NGO, filed a writ petition in the Supreme Court, under Article 32 of the Constitution, to expand the grounds for disqualification of election candidates. They asked the Court to disqualify candidates under the Representation of Peoples Act, 1951 (RP Act) from contesting elections if serious criminal charges are framed against them or if they filed false affidavits.
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 upon framing of charge.
On 16th December 2013, a Division Bench of the Court with the then Chief Justice RM Lodha and Justice Shiva Kirti Singh requested the Law Commission to submit a report on these two issues.
The 244th Report of the Law Commission found that due to long delays in the trial process, disqualification at the stage of conviction has been ineffective in curbing the criminalisation of politics. Hence, it recommended that the framing of charges should trigger electoral disqualification as it is judicially supervised and early in the trial process. [Link the Report] Further, it recommended that filing a false affidavit under Section 125 A of the RP Act should be a ground for disqualification under Section 8(1) of the RP Act.
On 8th March 2016, a Division Bench of three-judges referred the matter to be heard by a Constitution Bench. This Bench rejected the Union’s argument that these questions were already settled by the Constitution Bench in Manoj Narula in 2014. In Manoj Narula, the court chose not to interfere with the Prime Minister’s discretion to choose Ministers even where some ministers may be undertrials in pending criminal cases.
On 9th August, 2018, the Constitution Bench 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?