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The Election Commission is unable to control the misuse of money and muscle power in the forthcoming election. Thousands of crores have been seized but this is only the tip of the iceberg. Former BJP CM Yeddyurappa reportedly spent `1,800 crore to buy tickets for his supporters. Rather than politicians turning crooked, we now have crooks turning to politics. The Supreme Court, acting on a petition by the Public Interest Foundation and others, has stepped in with directions to attempt to halt the increasing criminalisation of politics…

despite the heavy mandate prescribed by our Constitution, Indian democracy, which is the world’s largest democracy, has seen a steady increase in the level of criminalization that has been creeping into the Indian polity.

Petitioners, the Public Interest Foundation, highlighted that criminalization in politics is on the rise and the same is a documented fact and recorded by various committee reports. The petitioners also highlighted the doctrine of fiduciary relationship has been extended to several constitutional posts and that if members of Public Service Commission, Chief Vigilance Commissioner and the Chief Secretary can undergo the test of integrity check and if “framing of charge” has been recognized as a disqualification for such posts, then there is no reason to not extend the said test of “framing of charge” to the posts of Members of Parliament and State Legislatures as well.

The petitioners point out that such persons hold the posts in constitutional trust and can be made subject to rigours and fetters as the right to contest elections is not a fundamental right but a statutory right or a right which must confirm to the constitutional ethos and principles.  Although there is a principle of ―presumption of innocence‖ under our criminal law, petitioners  say that the said principle is confined to criminal law and that any proceeding prior to conviction, such as framing of charge for instance, can become the basis to entail civil liability of penalty. The petitioners, therefore, took the stand that debarring a person facing charges of serious nature from contesting an election does not lead to creation of an offence and it is merely a restriction which is distinctively civil in nature.

The intervenor organisation submitted similarly 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 as a person chargesheeted in a crime involving moral turpitude is undesirable for a job under the government and it is rather incongruous that such a person can become a law maker who then controls civil servants and other government machinery and, thus, treating legislators on a different footing amounts to a violation of Article 14 of the Constitution.

Mr. Venugopal, learned Attorney General for India, refuted the aforesaid submission, saying that Parliament may make law on the basis of the recommendations of the Law Commission but the Court can only recommend. That apart, submits Mr. Venugopal, that when there are specific constitutional provisions and the statutory law, the Court should leave it to the Parliament.

The Supreme Court considered several cases over the years that have spoken of the need to decriminalize politics, the rising statistics of politicians with criminal cases against them, the Goswami Committee on Electoral Reforms (1990) and the NN Vohra Committee report by Home Secretary, NN Vohra, after the 1993 Mumbai blasts.

The Chairman of the Law Commission, in the covering letter of the 244th Law Commission Report titled “Electoral Disqualifications”, wrote to the then Minister of Law and Justice regarding two issues, namely:

1. Whether disqualification should be triggered

a) upon conviction as exists today or b) upon framing of charges by the court or

c) upon the presentation of the report by the Investigating Officer under Section 173 of the Code of Criminal procedure?  and

2. Whether filing of false affidavits under Section 125A of the Representation of the People Act, 1951 should be a ground for disqualification? And if yes, what mode of mechanism needs to be provided for adjudication on the veracity of the affidavit?

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The Law Commission noted case law and observations made by the Justice JS Verma Committee Report on Amendments to Criminal Law (2013) and concluded that the taking of cognizance simply means taking judicial notice of an offence with a view to initiate proceedings in respect of such offence alleged to have been committed by someone and that it is an entirely different matter from initiation of proceedings against someone.

While taking cognizance, the Court has to consider only the material put forward in the charge-sheet and it is not open for the Court at this stage to sift or appreciate evidence. Further, the accused has no right to present any evidence or make any submissions and even though the accused may provide exculpatory evidence to the police, the latter is under no obligation to include such evidence as part of the charge-sheet.

Hence, acting based on the taking of cognizance would be against the principles of natural justice.

However the Commission concluded that since the stage of framing of charges is based on substantial level of judicial scrutiny, a totally frivolous charge will not stand such scrutiny and therefore, given the concern of criminalisation of politics in India, disqualification at the stage of framing of charges is justified having substantial attendant legal safeguards to prevent misuse.

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 Public Interest Foundation & Ors. …Petitioner(s)    V/s

 Union of India & Anr. …Respondent(s)

(Extract of final judgment; Emphasis added)

115.   In People’s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1, the Court held that the universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls and thereby participate in the governance of our country. It has been further ruled that for democracy to survive, it is essential that the best available men should be chosen as the people‘s representatives for the proper governance of the country. The best available people, as is expected by the democratic system, should not have criminal antecedents and the voters have a right to know about their antecedents, assets and other aspects. We are inclined to say so, for in a constitutional democracy, criminalisation of politics is an extremely disastrous and lamentable situation. The citizens in a democracy cannot be compelled to stand as silent, deaf and mute spectators to corruption by projecting themselves as helpless. The voters cannot be allowed to resign to their fate. The information given by a candidate must express everything that is warranted by the Election Commission as per law. Disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified. It has to be remembered that such a right is paramount for a democracy. A voter is entitled to have an informed choice. If his right to get proper information is scuttled, in the ultimate eventuate, it may lead to destruction of democracy because he will not be an informed voter having been kept in the dark about the candidates who are accused of heinous offences. In the present scenario, the information given by the candidates is not widely known in the constituency and the multitude of voters really do not come to know about the antecedents. Their right to have information suffers.

116.   Keeping the aforesaid in view, we think it appropriate to issue the following directions which are in accord with the decisions of this Court :-

(i)      Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.

(ii)     It shall state, in bold letters, with regard to the criminal cases pending against the candidate.

(iii)    If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.

(iv)    The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.

(v)     The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers.

117.   These directions ought to be implemented in true spirit and right earnestness in a bid to strengthen the democratic set-up. There may be certain gaps or lacunae in a law or legislative enactment which can definitely be addressed by the legislature if it is backed by the proper intent, strong resolve and determined will of right-thinking minds to ameliorate the situation. It must also be borne in mind that the law cannot always be found fault with for the lack of its stringent implementation by the concerned authorities. Therefore, it is the solemn responsibility of all concerned to enforce the law as well as the directions laid down by this Court from time to time in order to infuse the culture of purity in politics and in democracy and foster and nurture an informed citizenry, for ultimately it is the citizenry which decides the fate and course of politics in a nation and thereby ensures that ―we shall be governed no better than we deserve‖, and thus, complete information about the criminal antecedents of the candidates forms the bedrock of wise decision-making and informed choice by the citizenry. Be it clearly stated that informed choice is the cornerstone to have a pure and strong democracy.

118.   We have issued the aforesaid directions with immense anguish, for the Election Commission cannot deny a candidate to contest on the symbol of a party. A time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation. It is true that false cases are foisted on prospective candidates, but the same can be addressed by the Parliament through appropriate legislation. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism. The country feels agonized when money and muscle power become the supreme power. Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay.

119.   We are sure, the law making wing of the democracy of this country will take it upon itself to cure the malignancy. We say so as such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it; the sooner the better, before it becomes fatal to democracy. Thus, we part.

120.        The writ petitions and the criminal appeals are disposed of accordingly.

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40.     As per the extent of criminalization that has pervaded Indian Politics, the Commission observed that in the ten years since 2004, 18% of the candidates contesting either National or State elections have criminal cases pending against them (11,063 out of 62,847). In 5,253 or almost half of these cases (8.4% of the total candidates analysed), the charges are of serious criminal offences that include murder, attempt to murder, rape, crimes against women, cases under the Prevention of Corruption Act, 1988 or under the Maharashtra Control of Organised Crime Act, 1999 which, on conviction, would result in five years or more of jail, etc. 152 candidates had 10 or more serious cases pending, 14 candidates had 40 or more such cases and 5 candidates had 50 or more cases against them. Further, the Commission observed that the 5,253 candidates with serious cases together had 13,984 serious charges against them and of these charges, 31% were cases of murder and other murder related offences, 4% were cases of rape and offences against women, 7% related to kidnapping and abduction, 7% related to robbery and dacoity, 14% related to forgery and counterfeiting including of government seals and 5% related to breaking the law during elections. The Commission was of the further view that criminal backgrounds are not limited to contesting candidates, but are found among winners as well, for, of the 5,253 candidates with serious criminal charges against them, 1,187 went on to winning the elections they contested, i.e., 13.5% of the 8,882 winners analysed from 2004 to 2013 and overall, including both serious and non-serious charges, 2,497 (28.4% of the winners) had 9,993 pending criminal cases against them.

41.     Elaborating further, the Commission took note of the fact that in the current Lok Sabha, 30% or 162 sitting MPs have criminal cases pending against them, of which about half, i.e., 76 have serious criminal cases and further, the prevalence of MPs with criminal cases pending has increased over time as statistics reveal that in 2004, 24% of Lok Sabha MPs had criminal cases pending which increased to 30% in the 2009 elections and this situation is similar across States with 31% or 1,258 out of 4,032 sitting MLAs with pending cases, with again about half being serious cases. Not only this, the Commission also observed that some States have a much higher percentage of MLAs with criminal records: in Uttar Pradesh, 47% of MLAs have criminal cases pending and a number of these MPs and MLAs have been accused of multiple counts of criminal charges, for example, in a constituency of Uttar Pradesh, the MLA has 36 criminal cases pending including 14 cases relating to murder. As per the Commission, it is clear from this data that about one-third of the elected candidates at the Parliament and State Assembly levels in India have some form of criminal taint and also that the data elsewhere suggests that one-fifth of MLAs have pending cases which have proceeded to the stage of charges being framed against them by a court at the time of their election. What the Commission found to be more disturbing was the fact that the percentage of winners with criminal cases pending is higher than the percentage of candidates without such backgrounds, as the data reveals that while only 12% of candidates with a ―clean‖ record win on an average, 23% of candidates with some kind of criminal record win which implies that candidates charged with a crime actually fare better in elections than ‗clean‘ candidates. This, as per the Commission, has resulted in the tendency for candidates with criminal cases to be given tickets a second time and not only do political parties select candidates with criminal backgrounds, but there is also evidence to suggest that untainted representatives later become involved in criminal activities and, thus, the incidence of criminalisation of politics is pervasive thereby making its remediation an urgent need.

(Extract from judgment; Emphasis added)

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