The Constitution Bench of the Supreme Court has started adjudicating the issue concerning the appropriate stage of a criminal trial to disqualify a politician or an aspiring candidate to contest elections when charged with a serious criminal offence. The substantial question of law for the Court’s adjudication and due consideration is, whether a legislator be disqualified if and when a charge-sheet is filed against him or should it be done only upon conviction. The first day of the hearings saw frequent interventions made by the Bench during the arguments and concerns pertaining to the haunting Doctrine of Separation of Powers.
The proceedings commenced with arguments by Dinesh Dwivedi who mooted the idea for the Bench to lay down the principle of implied limitation, since the Legislature is silent on the aspect. He emphasised that the Select Committee rejected the idea of such disqualification on the sole ground that a person is innocent until proven guilty. He stressed on the fact that the criminalization of politics is a negation of democracy, the idea of “one man one vote” – thereby being a direct impairment of the basic structure.
To this, Judge Nariman raised a concern about the Laxman Rekha that the Court needs to keep in mind while adjudicating issues concerning interpretation of the Constitution or other statutes. Chief Justice Dipak Misra too raised a similar query regarding the power of the Court to issue directions to the Election Commission to lay down a norm that all three stages of criminal procedure should form the basis of debarring candidate from contesting elections. He remarked that the Parliament is the competent authority to issue such directions by way of legislating laws instead of the Apex Court.
Misra also emphasised that though the enactment of law to save democracy is the basic ideal of the Constitution, however, “In this case, the Constitution is tight-lipped”. Dwivedi countered by arguing, “Section 36 enlists grounds for disqualification, but the grounds for disqualification from nomination is not considered. Grounds for this rejection can come under this Court and legislation, may come later.”
The Chief Justice was showing concerns about the lack of the Court’s competence to meet the cry of the citizens. He remarked that, “There are judgments of this Court that it is the collective duty of the Legislature to respond to the cry of the citizens. Today, citizens are saying please don’t let such people contest elections. How to inject that through a writ petition?”
To this, Krishnan Venugopal mooted the idea that the Court can pass a specific direction to political parties to disallow such people from contesting elections and this direction can be inserted in their party constitutions. To this, it was immediately pointed out to him that such a practice would not cover independent candidates. Dwivedi re-emphasized on his argument and submitted that if the Doctrine of Silence of Laws is stretched a little, then the directions can be issued to the Election Commission. On an assertion made by one of the Counsels that in Kesavananda Bharati’s case, the doctrine of implied limitation was rejected, Justice Nariman immediately pointed out that the case is an authority on the Doctrine of Basic Structure and not on the aspect of doctrine of implied limitation.