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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