Supreme Court directs to complete criminal cases against MPs/MLAs in one year

                        IN THE SUPREME COURT OF INDIA


                         CIVIL ORIGINAL JURISDICTION

                    WRIT PETITION (CIVIL) NO. 536 OF 2011

      PUBLIC INTEREST FOUNDATION & ORS.         Petitioner(s)

                                 VERSUS

      UNION OF INDIA & ANR                      Respondent(s)

                                O  R  D  E  R


                 On 16.12.2013, this Court requested the Law  Commission  of
      India (for short, 'Law Commission') to expedite consideration  of  the
      two issues, namely, (1) whether disqualification should  be  triggered
      upon conviction as it exists today or upon framing of charges  by  the
      court or upon the presentation of  the  report  by  the  Investigating
      Officer under Section 173 of the Code of Criminal Procedure [Issue No.
      3.1(ii) of the Consultation Paper] and (2)  whether  filing  of  false
      affidavits under Section 125A of the  Representation  of  People  Act,
      1951 should be a ground of disqualification? and,  if yes,  what  mode
      and mechanism needs to be provided for adjudication on the veracity of
      the affidavit? [Issue No. 3.5 of the Consultation Paper].
      2.         In pursuance of the above order,  the  Law  Commission  has
      prepared its  recommendation  in  the  form  of  244th  Report  titled
      'Electoral  Disqualifications'.  The  report  was  forwarded  by   the
      Chairman, Law Commission to the Minister for Law and Justice.  A  copy
      of the same has been placed on record.
      3.         At the outset, we record our appreciation for the excellent
      work done by the Law Commission in the short time.  The  244th  Report
      shall be of significant use at the time of consideration of  the above
      two questions.
      4.         Insofar  as  the  first  question  is  concerned,  the  Law
      Commission has observed that   disqualification  upon  conviction  has
      proved to be incapable  of  curbing  the  growing  criminalisation  of
      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.   In  the  opinion  of  the  Law
      Commission, the filing of the police report under Section 173  of  the
      Code of Criminal Procedure 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.  Having regard to all this, the Law Commission has suggested
      that  the  following  safeguards  must  be   incorporated   into   the
      disqualification :
           (i) Only offences which have a maximum punishment of five  years
           or  above  ought  to  be  included  within  the  remit  of  this
           provision.
           (ii)  Charges filed up to one year before the date  of  scrutiny
           of   nominations   for   an   election   will   not   lead    to
           disqualification.
           (iii) The disqualification will operate till an acquittal by the
           trial court, or for a period of six years, whichever is earlier.
           (iv) For charges framed against  sitting  MPs/MLAs,  the  trials
           must be expedited so that they are  conducted  on  a  day-to-day
           basis and concluded  within  a  1  year  period.  If  trial  not
           concluded within a one year period then  one  of  the  following
           consequences ought to ensure :
                 - The MP/MLA may be disqualified at the expiry of the  one
                 year period, or
                 - The MP/MLA's right to vote in the  House  as  a  member,
                 remuneration and  other  perquisites  attaching  to  their
                 office shall be suspended at the expiry of  the  one  year
                 period.


      5.         It is suggested by the Law Commission that disqualification
      in the above manner must apply retroactively as well.
      6.         As regards the second  question,  the  Law  Commission  has
      observed that there is large scale violation of the laws on  candidate
      affidavits owing to lack of sufficient legal consequences.    The  Law
      Commission has suggested that the following changes should be made  in
      The Representation of the People Act, 1951 (for short, 'RP Act'):-
           (i) Introduce enhanced sentence of a minimum of two years  under
           Section  125A  of  the  RP  Act  on  offence  of  filing   false
           affidavits.
           (ii) Include conviction  under  Section  125A  as  a  ground  of
           disqualification under Section 8(1) of the RP Act, and
           (iii)  Include the offence  of  filing  false  affidavits  as  a
           corrupt practice under Section 123 of the RP Act.


      7.          It  is  recommended  by  the  Law  Commission  that  since
      conviction under Section 125A is necessary for disqualification  under
      Section 8 to be triggered, the Supreme Court may  order  that  in  all
      trials under Section 125A, the relevant court conducts the trial on  a
      day-to-day basis. It is further recommended that a  gap  of  one  week
      should be introduced between the last date of filing nomination papers
      and the date of scrutiny, to give adequate  time  for  the  filing  of
      objections to nomination papers.
      8.         The Law Commission  has  proposed  legislative  reforms  by
      amendments in the various provisions of the RP Act as well.
      9.         The issues raised  in  the  Writ  Petition   would  require
      detailed  and  elaborate  hearing  particularly  in   light   of   the
      constitutional  provisions  viz.,  Articles  84   and   102   of   the
      Constitution of India for the Members of Parliament and  Articles  173
      and 191 for the Members of Legislative Assemblies.
      10.        One of the questions of constitutional importance that  may
      also  require  consideration  is  :   Whether   disqualification   for
      membership can be laid down by the Court beyond Article 102(a) to  (d)
      and the law made by Parliament under Article 102(e).
      11.        Presently, we feel  that  a  direction  may  be  issued  in
      respect  of  MPs/MLAs  who  have  charges  framed  against  them   for
      conclusion of the trial expeditiously to  ensure  the  maintenance  of
      probity of public office.




      12.        We, accordingly, direct that in relation to sitting MPs and
      MLAs who have charges framed against them for the offences  which  are
      specified in Section 8(1), 8(2) and 8(3) of  the  RP  Act,  the  trial
      shall be concluded as speedily and expeditiously as  may  be  possible
      and in no case later than one year from the date  of  the  framing  of
      charge(s). In such cases, as far  as  possible,  the  trial  shall  be
      conducted  on  a                 day-to-day   basis.   If   for   some
      extraordinary circumstances the concerned court is being not  able  to
      conclude the trial within  one  year  from  the  date  of  framing  of
      charge(s), such court would submit the report to the Chief Justice  of
      the respective High Court indicating special reasons for not  adhering
      to the above time limit and delay in conclusion of the trial.  In such
      situation, the Chief Justice may issue appropriate directions  to  the
      concerned court extending the time for conclusion of the trial.
      13.        List the matter after six months.


                                          .......................J.
                                          ( R.M. LODHA )






      NEW DELHI;                  .......................J.
      MARCH 10, 2014                      ( KURIAN JOSEPH )


ITEM NO.6               COURT NO.2             SECTION PIL

            S U P R E M E   C O U R T   O F   I N D I A
                         RECORD OF PROCEEDINGS

WRIT PETITION (CIVIL) NO(s). 536 OF 2011

PUBLIC INTEREST FOUNDATION & ORS.                 Petitioner(s)

                 VERSUS

UNION OF INDIA & ANR                              Respondent(s)

(With appln(s) for intervention and office report ))

Date: 10/03/2014  This Petition was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE R.M. LODHA
        HON'BLE MR. JUSTICE KURIAN JOSEPH

For Petitioner(s)        Mr. Dinesh Dwivedi, Sr. Adv.
                         Mr. Ashish Mohan, Adv.
                      Mr. K.K. Mohan,Adv.

For Respondent(s)        Mr. Paras Kuhad, A.S.G.
                         Mr. J.S. Attri, Sr. Adv.
                         Mr. T.A. Khan, Adv.
                         Mr. Jitin Chaturvedi, Adv.
                         Mr. Abhinav Mukherji, Adv.
                         Mr. B.V. Balaram Das ,Adv
                         Ms. Swati Vijaywargia, Adv.
                         Ms. Padma Lakshmi Nigam, Adv.

                      Ms. Meenakshi Arora, Sr. Adv.
                         Mr. Mohit D. Ram ,Adv.

                      Mr. Abhay Kumar ,Adv.
                         Ms. Neetu Jain, Adv.
                         Mr. Tenzing Tsering, Adv.

           UPON hearing counsel the Court made the following
                               O R D E R

                 With directions given in the signed order,  the  matter  is
      ordered to be listed after six months.


|(Rajesh Dham)                          | |(Renu Diwan)                          |
|Court Master                           | |Court Master                          |


                         (signed order is placed on the file)


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