Day 1 Arguments: 9th August 2018


The Constitution Bench began hearing this case today at 11.30 A.M.


Today’s hearings focused on two issues: first, whether the basic feature of parliamentary democracy is violated due to increasing criminalisation of politics; second whether the court is empowered to issue guidelines for disqualifying legislators faced with serious criminal charges.


Mr. Dinesh Dwivedi, appearing for the petitioner, began his submissions. He argued that allowing legislators with serious criminal charges is a serious breach of parliamentary democracy. He urged that the bench should consider this as a grave issue as 34% of legislators are faced with criminal charges.


Mr. Dwivedi submitted that criminalisation of politics violates tenets of parliamentary democracy, a basic feature of the Constitution.  He pointed out that as there is legislative silence on the issue; the bench can draw authority from the principle of implied limitation.


Mr. Dwivedi continued that democracy is a basic feature of the Constitution - there is an implied limitation on the legislature to safeguard this principle. If the legislature is silent on disqualification of a candidate, with serious criminal background, the court can step in to save democracy.


Justice Nariman observed that the court’s authority is circumscribed by “lakshman rekha” - separation of power. The court can at best exhort the Parliament to frame a law for disqualifying legislators with serious criminal background.


Mr. Dwidevi submitted that since the Parliament is silent on this issue, the court could intervene. CJI spoke about the possible institutional strategies: whether the court should issue a writ of mandamus directing the Election Commission to lay down norms regarding disqualification; or, should it be left to the Parliament’s discretion to frame a law. Justice Nariman weighed in by flagging the difficulty in directing the Election Commission to add more grounds for disqualification beyond prescribed under Section 8 of The Representation of Peoples Act (RP) (Section 8 of RP Act only deals with disqualification upon conviction).


At this point, Attorney General Mr. K.K. Venugopal intervened to object the addition of further disqualifications under Section 8 of the RP Act. He said that adding more grounds is the prerogative of the Parliament; the court should respect the principle of separation of power.


Justice Chandrachud responded that just as the Constitution speaks about qualifications and disqualifications for legislators, it also lays down Forms of Oath under Schedule III of the Constitution. He rhetorically asked if a legislator facing serious criminal charges is not disqualified to uphold the Oath of Affirmation. Justice Nariman wondered how a person charged with the offence of murder would uphold the Oath of Affirmation.


Mr. Venugopal argued that the presumption of innocence standard does not change for the category of legislators. He further noted that even under Article 21, a person’s liberty cannot be restricted unless he is found guilty in the eyes of the law.


The bench resumed at 2.00 P.M.


The Attorney General, Mr. K.K. Venugopal commenced his arguments. He informed the bench that the trial for offences relating to heinous crimes such as murder is not kept pending for very long: an endeavour is made to decide these cases expeditiously.


CJI invited Mr. Venugopal’s suggestions on the interplay between the RP Act and the Constitution of India. He inquired whether the court would not be transgressing into law-making if it were to direct the disqualification of a legislator facing criminal trial. 


Mr. Venugopal responded by answering that Sections 227 and 228 of the Code of Criminal Procedure ensures that the trial court applies its mind at the stage of discharge and framing of charges. 


CJI invited Mr. Venugopal’s attention to Yogendra Kumar Jaiswal which reads:

Corruption, a “noun” when assumes all the characteristics of a “verb”, becomes self-infective and also develops resistance to antibiotics.”


Mr. Venugopal replied by stating that while it is important to save democracy and the electoral process, these efforts must adhere to constitutional governance.


Mr. Dwivedi relied on Vishakha to argue that the constitutional framework allows the court to frame guidelines. He further argued that the Indian citizens are anguished by the presence of hardened criminals as legislators.


CJI acknowledged that guidelines could indeed be framed but they have to be within the limits of the Constitution.


Mr. Venugopal resumed his arguments by relying on Resurgence India where it was held that a voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament/Assemblies; such a right is universally recognised.  It was in the background of the court’s earlier judgment in Association for Democratic Reforms, that Section 33-A of the RP Act was enacted. The law would have to be amended to provide for automatic disqualification of a legislator upon framing of charges.


Next, Mr. Dwivedi submitted that ever since 2002, despite filing and hearing of several writ petitions by the court, the Parliament has failed to enact suitable legislation to ensure that criminals do not get elected.  He appealed that the Legislature must respond to the collective wisdom of the society; law-breakers cannot become law-makers.


CJI enquired again if the court could give directions to the Election Commission of India for disqualification of MPs and MLAs against whom charges had been framed.


The Petitioners responded by suggesting that while such directions may amount to law-making, the court could frame guidelines directing the political parties to not take support of or be associated with individuals with criminal charges. The political parties find it favourable to field candidates with criminal antecedents; the Legislature would be unwilling to enact a law for their disqualification. The Petitioners referred to the ‘244th Report of the Law Commission of India on Electoral Disqualifications’ to argue that candidates with a criminal record are more likely to win than candidates with a clean record.


Mr. Dwivedi highlighted the importance of elections and exhaustively quoted from the Association for Democratic Reforms. While it is not possible for the court to give any directions to amend the Act or the statutory Rules, it is equally settled that in case where the Act or Rules are silent on a particular subject and the authority implementing the same has constitutional or statutory power to implement it, the court can necessarily issue directions or orders on the said subject to fill the vacuum or void till the suitable law is enacted. Such guidelines had also been issued in Harshad Govardhan Sondagar .


Justice Nariman highlighted that there was a difference between the present case and the earlier cases. First, there was already a right under Article 19(1)(a) on the basis of which the court had held that a voter had a right to know about the candidates. Second, there was no balance to be drawn between Article 324 and Article 102 of the Constitution of India, which provides for disqualification of MPs on the basis of a law enacted by the Parliament. In the earlier cases, the law was silent but in the present case there was already a law in place and there was no scope for the Supreme Court to issue guidelines.


Mr. Dwivedi responded by saying that the law may be present in this case, but it is silent and there is a lacunae in it.  Section 34, 35 and 36 of the RP Act do not provide for disqualification of a legislator.  Criminalisation strikes at the very root of Article 14 of the Constitution of India.  It was necessary for the court to intervene in such a scenario to preserve parliamentary democracy which is a part of the basic structure of the Constitution.


Mr. Dwivedi also referred to the Constitution Assembly Debates where deliberations had been made to ensure the independence of elections and the right to vote as fundamental rights. Mr. Dwivedi concluded his arguments by stating that the law had to be expanded in the present case to preserve parliamentary democracy lest the basic structure would fail.

                                                                                                (The Report relies on inputs from Ms. Anu Shrivastava)