The Supreme Court of India. Photo: Wikimedia Commons
The Supreme Court of India. Photo: Wikimedia Commons

A five-judge bench of India’s Supreme Court ruled unanimously on Tuesday that the judiciary cannot disqualify politicians facing charges related to serious offenses, or stop them from contesting elections.

The judges said they were bound by constitutional principles and did not possess the power to give such directions, but urged lawmakers to frame rules for punishing such offenders.

“Directions to the Election Commission, of the nature as sought in the case at hand, may in an idealist world seem to be, at a cursory glance, an antidote to the malignancy of criminalization in politics but such directions, on a closer scrutiny, clearly reveal that it is not constitutionally permissible,” Chief Justice Dipak Misra wrote in the judgment. “The judicial arm of the State being laden with the duty of being the final arbiter of the Constitution and protector of constitutional ethos cannot usurp the power which it does not have,” Misra wrote.

The 100-page judgment came in response to petitions filed in 2011 by the Public Interest Foundation, a civil society organization, and was subsequently joined by Supreme Court advocate and Bharatiya Janata Party spokesperson Ashwini Kumar Upadhyay and other intervenors.

The apex court did issue five guidelines in the matter, directing politicians to disclose pending criminal cases against them in their candidacy forms, and to the political parties on whose ticket they will fight elections.

The court also directed political parties to put the information on their websites and issue declarations with the information in newspapers for “wide publicity”. “When we say wide publicity, we mean that the same shall be done at least thrice after the filing of the nomination papers,” the court said.

The bench said it agreed with the court’s 2013 judgment in the Lily Thomas case, which held that only Parliament can make laws to disqualify legislators. Although, in the same judgment the court had ruled that legislators would be disqualified from the date they are convicted for an offense. In doing that, the court had struck down a provision that gave lawmakers time until their appeals against conviction were dismissed.

The judges also affirmatively referred to Carnegie Endowment Senior Fellow Milan Vaishnav’s 2015 report on criminality in Indian politics, and his 2017 book which analyzed how politicians with serious criminal charges against them have a higher probability of winning elections. He had found that voters preferred politicians with a criminal reputation.

The ruling was a contrast to the top court’s earlier judgments, in which it did act as a bulwark against the criminalization of politics.

Mixed reactions

The court’s ruling elicited a mixed response from the legal community. “Here was an opportunity for the court to truly understand the source of the problem of criminalization of politics … Instead, the court passes utterly pointless and vague directions which are going to be freely ignored,” Senior Resident Fellow at Vidhi Centre for Legal Policy Alok Prasanna Kumar told ThePrint.

“The first three [guidelines] simply amount to saying ‘follow the law’ and the last two are simply unenforceable. The judgment is, at best, full of sound and fury, signifying nothing,” Kumar said.

Sanjay Hegde, a senior Supreme Court advocate who has defended several politicians accused of criminal offenses, said the judgment was “not a bold one, because it vested all the power in the legislature, which comprises politicians, most of whom would be loathe to compromise their own interests.”

At the same time, Hegde cautioned that politicians and political parties vehemently press criminal charges against their opponents. He noted that the lower judiciary, which plays a pivotal role in framing charges, is often willing to bend to please the powers-that-be. “This means that many political leaders could be victimized and deprived of a precious constitutional right to contest elections if the apex court directed their disqualification only on basis of charges being framed,” Hegde said.

“I am bitterly disappointed with the judgment. The Supreme Court threw away an excellent opportunity to rid electoral politics of criminal elements. If there are 350,000 under-trials [people facing charges] languishing in prison without a hearing, and without charges being framed, who are not allowed to cast their votes. Why should the right to contest elections be given precedence? Why should the presumption of innocence, which is a doctrine only in criminal law, be allowed only for politicians and not for ordinary citizens?” Association for Democratic Reforms founder Jagdeep S. Chokhar said.

ADR is an election-accountability organization and was one of the intervenors in the case. “In 2002, the Supreme Court held that in cases where public interest demanded, and there was a legislative vacuum, the judiciary must step in to fill the gap till laws are enacted. What prevented the court from doing so now?” Chokhar said.

Meanwhile, BJP spokesperson Ashwini Kumar Upadhyay said he was satisfied with the ruling, as it positively acknowledged his submissions and contentions on criminalization of politics. “Although the court has declined to give directions, it has nonetheless requested Parliament to enact legislative measures at the earliest, and that is a step in the right direction,” Upadhyay told Asia Times.

According to an affidavit filed by the ruling Narendra Modi government before the apex court in March 2018, 36% of its central and state legislators were facing criminal charges in 3,045 cases. A 2014 report by The Hindu also showed that India’s present group of lawmakers have the highest number of people facing criminal charges.

When pointed to this data, Upadhyay said: “I have full faith in Prime Minister’s Narendra Modi’s 2014 promise of cleansing Indian politics of crime and criminals. In the forthcoming 2019 national elections, my party will have a surfeit of candidates with squeaky clean records.”

Former Chief Election Commissioner James Michael Lyngdoh remained unimpressed by the ruling as well. “By lobbing the ball solely in the politicians’ court, the apex court judges have curtailed the powers of the Election Commission to rid politics of the scourge of criminalization – something which it is best suited to do – and that is not a very healthy sign,” Lyngdoh said.