New Delhi: The Supreme Court on Monday declined the plea for an urgent hearing a batch of petitions raising an important question of law, whether a person facing a criminal case in a heinous crime can be disqualified from contesting Assembly or Parliamentary elections at the stage of filing chargesheet or framing of charges or only after conviction. CJI J.S. Khehar told counsel Ashiwini Kumar Upadhyaya, “We have already fixed three matters for disposal by a five-judge Constitution bench in summer vacation.”
The counsel told the bench “It is a very important issue for democracy in the country. I was assured by the court that a five-judge bench would be set up.” The CJI told the counsel “You cannot imagine how much time and efforts are needed in writing judgements.” The CJI said it is not possible to set up the Bench in the near future.
A three-judge Bench had in March 2016 referred to a larger bench a batch of PILs filed by Public Interest Foundation in 2011, Delhi BJP spokesperson Ashwini Kumar Upadhyay and others the question ‘Whether disqualification for membership can be laid down by the Court beyond Article 102 (a) to (d) in the Constitution and the law made by Parliament under Article 102(e).”
The issue was initially raised in a PIL by Public Interest Foundation in 2011 seeking a direction to debar charge sheeted persons from contested elections. During the course of hearing the matter was referred to the Law Commission of India. In its report, the Commission said “disqualification upon conviction has proved to be incapable of curbing the growing criminalisation politics, owing to long delays in trials and rare convictions. The law needs to evolve to pose an effective deterrence, and to prevent subversion of the process of justice.”
The Commission said the filing of the police report under Section 173 of the Cr.P.C. (chargesheet) is not an appropriate stage to introduce electoral disqualifications owing to the lack of sufficient application of judicial mind at this stage. The stage of framing of charges is based on adequate levels of judicial scrutiny, and disqualification at the stage of charging, if accompanied by substantial attendant legal safeguards to prevent misuse, has significant potential in curbing the spread of criminalisation of politics.
