Dubbing criminalisation of politics as "rot", the Supreme Court today asked the government if it can direct the Election Commission to include in the symbol order a clause that a political party is liable to lose its recognition if it fields candidates with criminal antecedents.
The SC said it may consider directing the commission to ask political parties to get their members disclose criminal cases against them so that the electors know how many "alleged crooks" are there in such parties.
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"Why can't we exhort Parliament like the Law Commission does to address the problem? Why can't we take clue from Section 33A of the Representation of People Act and direct the Election Commission to include in Symbol order a stipulation to bar people with criminal antecedents from electoral fray?" the court asked.
The observation by a five-judge constitution bench headed by Chief Justice Dipak Misra came when it was told by the Centre that considering the concept of separation of powers, the issue of disqualification of lawmakers fell under the domain of Parliament.
"Everybody understands that (doctrine of separation of powers among Executive, Legislature and Judiciary). We cannot direct Parliament to make a law. The question is what can we do to contain the rot," the bench, also comprising justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, said.
While hearing PILs seeking to bar persons facing serious criminal charges from electoral politics, the bench took note of the suggestion of senior advocate Krishnan Venugopal, representing lawyer and BJP leader Ashwini Upadhyay who has filed one of the PILs, that the court may ask the poll panel to direct political parties not to give tickets to or take support from independent candidates facing serious criminal charges.
"Criminalisation of politics is antithesis to democracy," the bench said, adding, "We can always direct the Election Commission to ask political parties to get members and to be members to declare on affidavit if there is any criminal case pending against them and such affidavits should be made public so that voters know as to how many alleged crooks are there in a political party".
Referring to the "symbols order" and said if a party gave ticket to a person facing criminal or any other case, then the election symbol of that party would be de-recognised, the court said it was seeking upholding of "democratic ideals" and not "legislating" on the issue.
"Nobody is disqualifying anybody. What we may direct the Election Commission is that the election symbol of a political party be taken away if a person, facing criminal charges, is allowed to contest the election on its ticket," it said.
The bench also said it has to "completely steer clear" of the aspect of disqualification of a lawmaker as it did not fall under its the domain.
Senior advocate Dinesh Dwivedi, appearing for petitioner NGO 'Public Interest Foundation', exhorted the court to venture into the area of barring a person or a lawmaker from entering into electoral politics after the framing charges against them in criminal cases.
He referred to a report of the Law Commission and said it was an "eye opener" document prepared at the instance of the apex court.
The report says that persons, having criminal records, have better chances of winning elections and the court should issue directions as the law is silent on the disqualification of such members or candidates, as was done in the case of Visakha when guidelines were laid on the issue sexual harassment at work place.
"The law is not silent, this is the whole point. The law provides for disqualification very clearly after a lawmaker is convicted," the bench said.
"The law is silent as it provides for disqualification at the stage of conviction only. If a person is charge-sheeted or the court has framed the charges in the case then there was no provision of disqualification. The court can pass the directions in this regard," Dwivedi argued.
The bench also said the Visakha and the anti-ragging guidelines were issued by the court as they related with violation of fundamental rights but this was not the case here.
"Your argument can be encapsulated in one sentence that since you cannot issue mandamus (judicial writ issued as a command) to Parliament, then issue the writ to the election commission," the bench said.
Senior advocate Krishnan Venugopal, who is fighting the case against his father and Attorney General K K Venugopal, suggested that to deal with the issue, either a law may be passed or the court can direct the poll panel to ask political parties not to give tickets to persons with criminal records.
He also suggested that the fixed election symbol of a national or state level recognised political parties may be cancelled if they gave tickets to such candidates.
Venugopal also said that the EC can ask the political parties to insert by-laws in their constitutions that they will not allow persons, who are facing trial in cases where minimum sentence prescribed is five years jail term, to fight elections on their tickets. It would serve the "larger good of the society", he added.
At the fag end of the hearing, Attorney General K K Venugopal vehemently opposed the submissions of his son Krishnan Venugopal and Dinesh Dwivedi, saying they were trying to achieve a "particular result indirectly" which they cannot achieve "directly".
"The question is whether it is the matter to be dealt by the legislature or it can be dealt by the judiciary... can the five judges sitting in the constitution bench decide the disqualification," the top law officer said.
The bench countered him saying it understood the concept of separation of powers and cannot direct Parliament to make a law, but the "question is what can we do to contain the rot".
The advancing of arguments would resume on August 28.
(With inputs from PTI, IANS)