Court Cannot Add Disqualifications for Legislators, but Candidates Must Publicise Criminal Cases: Public Interest Foundation

A three-Judge Bench referred to a Constitution Bench whether the Court can lay down disqualifications for membership beyond Article 102(1)(a) to (d) and laws made by Parliament (para 3). The petitioners sought disqualification of persons charged with serious offences and directions to the Election Commission to deny such candidates party symbols (paras 17-20, 60). Others sought deregistration of parties fielding such candidates, which the Union opposed under Section 29A of the Act (paras 71-78). The Attorney General argued that the Court cannot legislate and may only recommend (para 21). The 244th Law Commission Report on disqualification at the framing of charges had not been enacted (paras 35-59).

Under Articles 102 and 191, disqualifications are laid down by Parliament, and Section 7(b) with Sections 8 to 10A of the Act leaves no room for a new ground; the Court cannot legislate (paras 7, 13, 22-23). Criminalisation of politics strikes at the root of democracy, as several reports show (paras 2, 26-41). The Election Commission's plenary power under Article 324 does not allow it to deny a party symbol to a charged candidate, which would disqualify the candidate indirectly (paras 70, 97-98, 104). What cannot be done directly cannot be done indirectly (paras 100-104). Such directions are not constitutionally permissible, and the Court cannot usurp a power it does not have (paras 106-107). Voters have a right to know the antecedents of candidates under Article 19(1)(a), as earlier decisions held (paras 109-115). Informed choice is the cornerstone of a pure and strong democracy (para 117). Parliament must make a law keeping persons facing serious criminal cases out of politics (para 118). Persons in public life should be above serious criminal allegation, and false cases can be addressed by legislation (para 118).