Criminalisation should not enter politics: SC on disqualification of lawmakers

New Delhi: The Supreme Court on Thursday commenced hearing on pleas seeking to bar persons facing serious criminal charges from contesting elections saying “criminalisation” should not enter “our political system”.

A five-judge constitution bench headed by Chief Justice Dipak Misra, also referred to the doctrine of separation of power and said the courts should not cross “lakshman rekha” and venture into the law making power of Parliament.

“It is the lakshman rekha to the extent that we declare the law. We don’t make the law, which is in the domain of Parliament,” the bench also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said.

Attorney General K K Venugopal, appearing for the Centre opposed the petitions saying that the issue squarely fell under the domain of Parliament and moreover there is a concept that a person is innocent till proven guilty.

The bench referred to the constitutional provision relating to oath of a minister and asked whether a person facing a murder charge “can still take the oath that he/she will uphold the Constitution of India”.

“There was nothing in the oath which can establish that a person facing criminal charges will not uphold the Constitution and moreover there are provisions of right to fair trial in the Constitution and a person is presumed to be innocent till proven guilty,” Venugopal said.

At the outset, senior advocate Dinesh Dwivedi, appearing for NGO Public Interest Foundation, claimed there were 34 per cent lawmakers with criminal background in 2014 and it was quite “impossible” that Parliament will make any law to stop criminalisation of politics.

He exhorted the apex court to deal with criminalisation of politics.

The hearing will continue after lunch.

A three-judge bench, on March 8, 2016, had referred the matter to a five-judge Constitution bench.

While referring the issue to the CJI, the court had said the larger bench would deal with the question: “Can a legislator facing criminal trial be disqualified at conviction or at the framing of charges in the case?”

BJP leader and advocate Ashwani Kumar Updhaya has also filed a plea seeking a direction to the Centre and others “to bring in electoral reform and to make rules... and Code of Conduct for de-criminalisation and de-communalisation of politics and for eradication corruption, casteism and nepotism from electoral system.”

Earlier, the apex court had set a deadline of one year for lower courts to complete trial in criminal cases involving sitting MPs and MLAs.

It had also said that all such proceedings involving lawmakers must be conducted on a day-to-day basis.

In order to expedite proceedings against lawmakers who continue to enjoy membership of a legislative body during the pendency of case, the court had also said that lower courts will have to give an explanation to the Chief Justice of the respective high courts if the trial is not completed within a year.

The Law Commission had recommended that such trials be concluded in one year.

The apex court had said that the period of one year can be extended by the chief justice of the high court if he is satisfied with the reason given by the trial judge for not completing the proceedings within the deadline period.

As the trial is kept pending for years, lawmakers continue to enjoy membership of the legislative body despite being charged in a heinous offence, the court had noted.

The court had passed the order on a PIL filed by the Public Interest Foundation, seeking its direction for expeditious trial in cases involving lawmakers.

The NGO contended that MPs and MLAs continue to be Members of Parliament and Assembly for a long time due to delay in proceedings.

The court had taken note of the Law Commission’s report which said that a candidate should be disqualified on framing of charges in cases punishable with a jail term of five years or more as the current criteria of disqualification upon conviction is “incapable” of barring criminals from electoral politics.