Case Briefing:
Case Name: PUBLIC INTEREST FOUNDATION V. UNION OF INDIA Citation: 2018 INSC 862 (25 September 2018) Justices: Chief Justice Dipak Misra, Justice Rohinton F. Nariman, Justice Ajay M. Khanwilkar, Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Indu Malhotra Judgment Author: The judgment was authored by Chief Justice Misra.
Question(s) Presented (Issue)
Whether any additional grounds for disqualification from the membership of Parliament/State Legislature can be laid down by the Supreme Court beyond Article 102(a) to (d) and the Representation of People’s Act 1951.
Factual Background
In 2011, the Public Interest Foundation filed a writ petition under Article 32 of the Constitution highlighting the criminalisation of politics. The petitioner requested the Supreme Court to expand the grounds for disqualification of membership in Parliament/State Legislature to disqualify candidates and legislators having serious criminal charges framed against them by a court. It was also requested by the petitioner that the candidates facing charges for heinous offences should be barred from contesting on any political party’s symbol.
Following initial arguments, the Court requested the Law Commission to submit a report on the criminalisation of politics. In 2014, the 244th Report of the Law Commission was submitted which suggested that the framing of charges should be made a ground for disqualification of membership of the Parliament/State Legislature. Subsequently, the Three-Judge Bench referred the matter to be heard by a Constitution Bench.
Decision and Holding
The Constitution Bench (five-judges) delivered a unanimous verdict on the issue.
The Court declined to add any further ground for disqualification of membership of Parliament/State Legislature.
The Constitution Bench unanimously held that it could not alter grounds for disqualification as that would amount to law-making which was exclusively a legislative function. It further decided against empowering the Election Commission of India to remove a party’s symbol if it fielded candidates having serious criminal record.
Reasons for the Decision (Rationale)
Separation of Powers
The Supreme Court observed that a reading of Article 102 and 199 of the Constitution establishes that the power to enact laws regarding disqualification of a member of Parliament/State Legislature vested exclusively with the legislative (¶7). The Court stated that since the language employed by the legislative under Sections 7-10 of the Representation of Peoples Act 1951 is clear and unambiguous, the Court cannot legislate or add new grounds for disqualification. The legislature has clearly enumerated the grounds for disqualification and the language of the said provision leaves no room for any new ground to be added or introduced (¶¶22-23).
The Court further observed that directing the Election Commission to prohibit such a candidate from contesting with the reserved symbol for the political party, in cases where a particular symbol has been reserved for a political party and that party has fielded a candidate who has been charged for heinous and/or grievous offenses, would amount to indirectly adding a new ground for disqualification. This would be a colourable exercise of judicial power, as it is axiomatic that “what cannot be done directly ought not to be done indirectly,” which is a well-settled principle in the Indian judiciary (¶98).
Right of the Electorate to Know
The Court underscored that the rising criminalisation of politics could potentially destabilise the democratic structure of India. The Court emphasized the need for creating a strong legal framework, mandating political parties to revoke the membership of individuals against whom charges have been framed for heinous and grievous offenses and prohibiting such individuals from being fielded as candidates in elections for Parliament/State Assemblies. The Court observed that such measures would go a long way in realising the electorate’s right to know about their candidates achieving the decriminalisation of politics and ushering in an era of immaculate, spotless, unsullied, and virtuous constitutional democracy (¶¶106-109).
Mandatory Directions
The Court, amid rising criminalisation of politics, emphasized the importance of an informed electorate in safeguarding India’s democracy and issued the following directions:
- 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.
- It shall state, in bold letters, with regard to the criminal cases pending against the candidate.
- 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.
- The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.
- 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.
CASE TITLE: PUBLIC INTEREST FOUNDATION vs UNION OF INDIA W.P.(C) No. 536/2011
