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Legislature can’t ignore criminalisation of politics, says SC

New Delhi, August 9

Taking serious note of people with criminal antecedents becoming members of Parliament and state assemblies, the Supreme Court on Thursday said the problem can no longer be ignored by the legislature.
“It is the duty of the legislature to respond to the collective cry of the citizens. Today the citizens are saying please don’t let such people contest electionsIt can’t be ignored by the legislature It’s a national thinking,” said a five-judge-Bench headed by Chief Justice of India Dipak Misra.
“Under Article 102 of the Constitution you have an obligation to make law to prevent criminals from entering politics,” the Bench told Attorney General KK Venugopal.
“Corruption is a noun but becomes a verb when it enters the political arena. It is infective and resistant to antibiotics,” Justice Misra commented.
The bench, however, wondered if it could be done by a judicial order in a writ petition as it was a question of adding certain disqualifications in the Representation of People Act, 1951 for candidates to contest elections which fell in the domain of Parliament.
“How to inject that through a writ (petition)?” asked, the bench, which also included Justice Rohinton F Nariman, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra, even as it said something needed to be done.
The bench said in the past when it issued guidelines in cases such as Vishakha or euthanasia, the fields were unoccupied by any law. Here there was a law and adding something would be difficult, it noted.
At one stage Venugopal agreed with the court that something needed to be done but he said at best the court could recommend to Parliament to do the needful.
As Venugopal said it should be left to Parliament to amend the law else it would amount to violating the doctrine of separation of power, the Bench too talked of ‘Lakshman Rekha’.
“It is ‘Lakshman Rekha’ to the extent that we declare the law and Parliament makes the law. We don’t make the law, which is in the domain of Parliament,” said Justice Nariman.
Senior advocate Dinesh Dwivedi – who represented Public Interest Foundation – submitted that the collective need of the hour was to ensure that lawbreakers did not become lawmakers. He sought to emphasise that parliamentary democracy was the most important part of basic structure of the Constitution and the Supreme Court must protect it.
Dwivedi said despite the Law Commission and Election Commission repeatedly asking the government to act on the issue nothing had happened. There were 34% lawmakers with criminal background in 2014 and it was impossible that Parliament would make any law to stop criminalisation of politics, he submitted.
The petitioners wanted the bench do something to debar those against whom charges have been framed by courts in serious criminal cases. Under Representation of People Act, 1951, only conviction leads to disqualification. The bench is considering if prior to conviction at any stage of a criminal trial, a person can be debarred from entering the electoral process to clean up legislature from criminal politicians.
Advocate Gopal Sankarnarayanan, representing Bhartiya Matdata Sanghathan, suggested that it could be done by putting the electoral offence under Section 125A of RPA for filing of false affidavit by a candidate on a higher pedestal. At present, the maximum punishment under this provision is only a jail term of six months which does not lead to any disqualification.
On behalf of Delhi BJP Leader Ashwini Upadhyaya, senior counsel Krishnan Venugopal submitted that the bench could consider directing the political parties not to give tickets to those facing serious criminal charges. He also said the EC could be asked to frame guidelines on the issue using its plenary powers under Article 324 of the Constitution regarding conducting of polls.
As the arguments remained inconclusive, the Bench posted the matter for hearing on August 14.

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