Five-judge bench to take call on tainted in poll fray
At what stage chargesheeted leaders can be debarred to be decided.
New Delhi: With a view to putting an end to criminalisation of politics, the Supreme Court on Tuesday referred to a five-judge Constitution 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 of Justices Ranjan Gogoi, Aun Mishra and Prafulla C. Pant referred 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 by Parliament under Article 102(e)” to the Chief Justice of India T.S. Thakur for placing before a five-judge Constitution Bench.
The issue was 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.
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.
The EC said as early as in 1997 that the then Chief Election Commissioner had written 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.