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26.11.2019
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The Supreme Court on Monday asked the Election Commission of India to take a decision on a a plea seeking to restrain political parties from fielding candidates with serious criminal antecedents.

The bench of Chief Justice SA Bobde and Justice BR Gavai further directed the Commission to pass a reasoned order, within three months.

"The petitioner's representation dated 22.01.2019 (Annexure P-2) shall be decided and the order shall be communicated to the petitioner within period of three months from the date this order is produced before concerned authority," they said.

The petition had been filed by BJP leader Ashwini Upadhyay, who contended that preventing parties from fielding candidates with criminal antecedents in election was a "reasonable restriction", keeping in mind the "concessions and privileges" enjoyed by them.

"in our weak rule-of-law context, once they gain entry to the governance as legislators, they interfere with, and influence, the functioning of government machinery in favour of themselves and members of their organization by corrupting government officers," he submitted.

He further submitted that these criminal MPs are usually self-financed and hence cut out the middle man from entering politics. Rather, they use this position to subvert administration of justice and prevent cases against themselves from being concluded or attempt to obtain acquittals.

It was pointed out, on the basis of a report of National Election Watch and Association for Democratic Reforms, that 43% MPs had declared criminal cases against themselves in this Lok Sabha. Moreover, 29% MPs had declared serious criminal cases including cases related to rape, murder, attempt to murder, kidnapping, crimes against women etc.

The Petitioner submitted that MPs who were to be present before courts every now and then, could hardly pay attention to their legislative duties. It was submitted,

"In past years, there has been a decline in the number of sitting days of Parliament and percentage of attendance of MPs. Besides the above facts, the Oath of Affirmation, which a Legislator makes under Third Schedule of the Constitution, obliges him to faithfully discharge the duty upon which he is entering. Needless to say that a chargesheeted MP and MLA cannot faithfully discharge his duty as a legislator if he spends time in Courts."

Stating that allowing criminals to contest elections was violative of a voter's right to freely choose a candidate of his choice and the freedom of expression of the voter under Article 19(1)(a), Upadhyay had prayed that a definition as follows be included in the Election Symbols (Reservation and Allotment) Order, 1968:

"Candidate with criminal antecedents means a person against whom charges have been framed at least one year before the date of scrutiny of nominations for an offence with a maximum punishment of five years or more."

In support of his plea, the Petitioner submitted that a host of reports had already suggested electoral reforms to stem the tide of criminals flowing into our polity. Talking of adverse impact which the presence of such criminals in the legislative body had on Indian laws and policy, Upadhyay said,

"When nearly half (43%) of MP's in the Lok Sabha cutting across all political parties have criminal cases pending against them, it is not surprising that a Parliamentary Standing Committee in 2007 itself simply rejected the recommendation of the Law Commission in its 170 th Report and the Election Commission's "Proposal for Electoral Reforms" to amend the RPA to impose an electoral disqualification on persons against whom charges have been framed for serious offences punishable by sentences of 5 years or more."

The Petitioner was represented by Senior Advocate Basava Prabhu Patil and AOR Ashwani Kumar Dubey.

Earlier, the petitioner Ashwini Upadhyaya had filed a PIL seeking to disqualify those candidates against whom charges have been framed by Courts in serious criminal cases.

But a Constitution Bench headed by then CJI Dipak Misra held on September 25, 2018 that such disqualification cannot be ordered without any statutory backing. The Court expressed anxiety at the increasing criminalization of politics; but left the matter to be addressed by the Parliament.

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