During the course of hearing, the matter was referred to the Law Commission of India.
New Delhi: Ahead of the crucial Assembly polls in five states, the Supreme Court indicated on Thursday that it will soon constitute a five-judge bench for determination of 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.
A three-judge bench had in March 2016 referred to a larger bench a batch of PILs filed by Public Interest Foundation in 2011 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)’.
On Thursday, senior counsel Vikas Singh, mentioned before a bench of Chief Justice J.S. Khehar for expediting the hearing. The CJI said he would “soon constitute” a five-judge bench to decide questions like whether people facing trial in serious crime cases can be allowed to contest and at which stage of trial, a lawmaker would stand disqualified.
The CJI said, “We must clarify this matter so that people know the law by next election,” a bench headed by the CJI said, while considering the submission. We can’t give an immediate answer to these questions since there is fear of lodging false cases in elections.”
The issue was raised in a PIL in 2011 seeking a direction to debar chargesheeted persons from contesting elections.
During the course of hearing, the matter was referred to the Law Commission of India. In its report, the commission had 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 added the filing of the police report under Section 173 of the CrPC (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 chargsheet — if accompanied by substantial attendant legal safeguards to prevent misuse — has significant potential in curbing the spread of criminalisation of politics,” it said.
The Election Commission said as early as in 1997 the then Chief Election Commissioner wrote to the then Prime Minister recommending that once charges were framed in a case, the disqualification was attracted as at that stage there was application of judicial mind to the charges. It said those against whom charges were framed and those against whom any Commission of Inquiry had given a finding of guilt of the charges should be barred from contesting elections; these cases should be decided by the trial courts within six months; to prevent misuse only those cases pending six months prior to the declaration of elections would be considered for such disqualification.
The Centre had taken the stand that it was considering the EC’s recommendations and its anxiety was such a provision would be misused. It said the Parliament in its wisdom would consider the parliamentary standing committee’s report which had rejected the recommendations of the EC and the Law Commission to bar those against whom charges were framed from contesting elections.