# PUBLIC INTEREST FOUNDATION & ORS v. UNION OF INDIA & ANR

- **Citation:** [2018] 10 S.C.R. 141
- **Court:** Supreme Court of India
- **Decided:** 2018-09-25
- **Bench:** Dipak Misra, R. F. Nariman, A. M. Khanwilkar, Dr. D. Y. Chandrachud, Indu Malhotra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/public-interest-foundation-ors-v-union-of-india-anr-32163
- **Pages:** 72

## Headnote

Constitution of India:
Articles 102 (a) to (d) and (e); 324 - In order to curb
criminalization of politics, whether the court can issue mandamus
to Parliament to pass a legislation debarring a person facing
charges of serious nature from contesting election for Member of
Parliament; and whether directions can be issued to the Election
Commission to control party discipline of political party by not
encouraging candidates with criminal antecedents - Held: In a
constitutional democracy, criminalization of politics is extremely
disastrous - Though criminalization in politics is a bitter truth , the
Court is not competent to make law to curb such menace -
Parliament has exclusive legislative power to lay down
disqualification for membership - Art. 201(1) specifies certain
grounds for disqualification - Any other disqualification can be
added by or under any law made by the Parliament - Chapter III of
Representation of the People Act deals with disqualification for
membership - As per the Act, a person can be disqualified on 'no
other ground' than under the provisions of Chapter III - Thus,
legislature has very clearly enumerated the grounds for
disqualification and the language of s.7(b) of the Act leaves no
room for any new ground to be added or introduced - Art. 324 lays
down the power of the Election Commission to supervise and
conduct free and fair election - However, the said power has its
limitations - The Election Commission has to act in conformity with
the law made by the Parliament and it cannot transgress the same -
A direction by the Supreme Court to the Election Commission that a
candidate in election against whom charges have been framed,
 [2018] 10 S.C.R. 141
 141
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SUPREME COURT REPORTS
[2018] 10 S.C.R.
cannot be allowed to contest with the reserved symbol for a
political party is beyond the pale of judicial arm of the State - Such
direction will amount to adding a new ground for disqualification -
Such attempt would be a colourable exercise of judicial power - It
might lead to an anomalous situation and has the effect potentiality
to do something indirectly which is not permissible to do directly -
The tainted candidate, even if denied party symbol and contests the
election as independent candidate, the impact would be same -
Therefore, such direction to the Election Commission is not
constitutionally permissible - The judicial arm of the State being
laden with the duty of constitutional ethos cannot usurp the power,
which it does not have - However, the citizens in a democracy
cannot be compelled to stand the corruption - Disclosure of
antecedents makes the election fair and the exercise of the right of
voting by the electorate also gets sanctified - In the present
scenario, information given by the candidates is not widely known
in the constituency and the multitude of voters do not come to know
about the antecedents - Their right to have information suffers -
Directions issued to the effect that complete and wide information
about the criminal antecedents of the candidates are given -
Representation of the People Act, 1951 - ss. 7(b), 8, 8A, 9, 9A, 10
and 10A.
Disposing of the writ petitions and the appeals, the Court
HELD: 1.1 An essential component of a constitutional
democracy is its ability to give and secure for its citizenry a
representative form of government, elected freely and fairly, and
comprising of a polity whose members are men and women of
high integrity and morality. This could be said to be the hallmark
of any free and fair democracy. Criminalization of politics was
never an unknown phenomenon in the Indian political system.
[Paras 26 and 28] [167-F; 168-B]
1.2 The Election Commission has also remained alive to
the issue of criminalization of politics since 1998. The
recommendations of the Law Commission for proposed
amendment never saw the light of the day in the form of a law
enacted by a competent legislature but it vividly exhibits the
concern of the society about t

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PUBLIC INTEREST FOUNDATION & ORS.
v.
UNION OF INDIA & ANR.
(Writ Petition (Civil) No. 536 of 2011)
SEPTEMBER 25, 2018
[DIPAK MISRA, CJI, R. F. NARIMAN,
A. M. KHANWILKAR, DR. D. Y. CHANDRACHUD AND
INDU MALHOTRA, JJ.]
Constitution of India:
Articles 102 (a) to (d) and (e); 324 - In order to curb
criminalization of politics, whether the court can issue mandamus
to Parliament to pass a legislation debarring a person facing
charges of serious nature from contesting election for Member of
Parliament; and whether directions can be issued to the Election
Commission to control party discipline of political party by not
encouraging candidates with criminal antecedents - Held: In a
constitutional democracy, criminalization of politics is extremely
disastrous - Though criminalization in politics is a bitter truth , the
Court is not competent to make law to curb such menace -
Parliament has exclusive legislative power to lay down
disqualification for membership - Art. 201(1) specifies certain
grounds for disqualification - Any other disqualification can be
added by or under any law made by the Parliament - Chapter III of
Representation of the People Act deals with disqualification for
membership - As per the Act, a person can be disqualified on 'no
other ground' than under the provisions of Chapter III - Thus,
legislature has very clearly enumerated the grounds for
disqualification and the language of s.7(b) of the Act leaves no
room for any new ground to be added or introduced - Art. 324 lays
down the power of the Election Commission to supervise and
conduct free and fair election - However, the said power has its
limitations - The Election Commission has to act in conformity with
the law made by the Parliament and it cannot transgress the same -
A direction by the Supreme Court to the Election Commission that a
candidate in election against whom charges have been framed,
 [2018] 10 S.C.R. 141
 141
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SUPREME COURT REPORTS
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cannot be allowed to contest with the reserved symbol for a
political party is beyond the pale of judicial arm of the State - Such
direction will amount to adding a new ground for disqualification -
Such attempt would be a colourable exercise of judicial power - It
might lead to an anomalous situation and has the effect potentiality
to do something indirectly which is not permissible to do directly -
The tainted candidate, even if denied party symbol and contests the
election as independent candidate, the impact would be same -
Therefore, such direction to the Election Commission is not
constitutionally permissible - The judicial arm of the State being
laden with the duty of constitutional ethos cannot usurp the power,
which it does not have - However, the citizens in a democracy
cannot be compelled to stand the corruption - Disclosure of
antecedents makes the election fair and the exercise of the right of
voting by the electorate also gets sanctified - In the present
scenario, information given by the candidates is not widely known
in the constituency and the multitude of voters do not come to know
about the antecedents - Their right to have information suffers -
Directions issued to the effect that complete and wide information
about the criminal antecedents of the candidates are given -
Representation of the People Act, 1951 - ss. 7(b), 8, 8A, 9, 9A, 10
and 10A.
Disposing of the writ petitions and the appeals, the Court
HELD: 1.1 An essential component of a constitutional
democracy is its ability to give and secure for its citizenry a
representative form of government, elected freely and fairly, and
comprising of a polity whose members are men and women of
high integrity and morality. This could be said to be the hallmark
of any free and fair democracy. Criminalization of politics was
never an unknown phenomenon in the Indian political system.
[Paras 26 and 28] [167-F; 168-B]
1.2 The Election Commission has also remained alive to
the issue of criminalization of politics since 1998. The
recommendations of the Law Commission for proposed
amendment never saw the light of the day in the form of a law
enacted by a competent legislature but it vividly exhibits the
concern of the society about the progressing trend of
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criminalization in politics that has the proclivity and the
propensity to send shivers down the spine of a constitutional
democracy. [Paras 29 and 59] [169-A; 187-D-E]
Dinesh Trivedi, M.P. and Others v. Union of India and
Others (1997) 4 SCC 306 : [1997] 3 SCR 93 ; Anukul
Chandra Pradhan, Advocate, Supreme Court v. Union
of India and Others (1997) 6 SCC 1 : [1997] 1 Suppl.
SCR 641; K. Prabhakaran v. P. Jayarajan AIR 2005
SC 688 : [2005] 1 SCR 296 ; Manoj Narula v. Union
of India (2014) 9 SCC 1 : [2014] 9 SCR 965
- relied on.
Yogendra Kumar Jaiswal and Others v. State of Bihar
and Others (2016) 3 SCC 183 ; Mohinder Singh Gill v.
Chief Election Commissioner AIR 1978 SC 851 :
[1978] 2 SCR 272 ; Union of India v. Association for
Democratic Reforms (2002) 5 SCC 294 : [2002] 3 SCR
696 ; Subhash Chandra Agarwal v. Indian National
Congress and Others (2013) CIC 8047 ; People's Union
for Civil Liberties v. Union of India (2003) 4 SCC
399 : [2003] 2 SCR 1136 ; State of Maharashtra v.
Som Nath Thapa (1996) 4 SCC 659 : [1996] 1 Suppl.
SCR 189 ; Union of India v. Prafulla Kumar Samal
(1979) 3 SCC 4 : [1979] 2 SCR 229 - referred to.
Goswami Committee on Electoral Reforms (1990) ;
Vohra (Committee) Report; 18th Report presented to the
Rajya Sabha on 15th March, 2007 by the DepartmentRelated Parliamentary Standing Committee on
Personnel, Public Grievances, Law and Justice on
Electoral Reforms (Disqualification of Persons from
Contesting Elections on Framing of Charges Against
Them for Certain Offences); 244th Law Commission
Report titled "Electoral Disqualifications", Report of
the National Commission to Review the Working of the
Constitution (NCRWC); 170th Report of Law
Commission; Justice J. S. Verma Committee Report
on Amendments to Criminal Law (2013) - referred
to.
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
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2.1 As regards disqualification for being chosen as a
member of either House of Parliament and similarly
disqualification for being chosen or for being a member of the
Legislative Assembly or Legislative Council of a State, the law
has to be made by the Parliament. The Parliament has the
exclusive legislative power to lay down disqualification for
membership. [Para 7] [155-B-C, G-H]
2.2 Article 102(1) specifies certain grounds and further
provides that any disqualification can be added by or under any
law made by the Parliament. Article 191 has the same character.
Chapter III of the Representation of the People Act, 1951 deals
with disqualification for membership of the Parliament and the
State Legislatures. [Paras 13 and 14] [159-F-G]
2.3 The word 'disqualified' as defined by s. 7(b) of 1951 Act
clearly states that a person be disqualified from being a member
under the provisions of Chapter III and/or on no other ground.
The words 'no other ground' are of immense significance. Apart
from the grounds mentioned under Article 102(1)(a) to 102(1)(d)
and Article 191(1)(a) to 191(1)(d), the other grounds are provided
by the Parliament and the Parliament has provided under Sections
8, 8A, 9, 9A, 10 and 10A. [Para 15][160-C-D]
2.4 Section 8 deals with disqualification on conviction for
certain offences. Section 8A provides for disqualification on
ground of corrupt practices. Section 9 provides for the
disqualification for dismissal for corruption or disloyalty. Section
9A deals with the situation where there is subsisting contract
between the person and the appropriate Government. Section
10 lays down disqualification for office under Government
Company and Section 10A deals with disqualification for failure
to lodge account of election expenses. Apart from these
disqualifications, there are no other disqualifications and, there
can be no other ground. Thus, disqualifications are provided on
certain and specific grounds by the legislature. In such a state,
the legislature is absolutely specific. [Para 16] [165-B-D]
2.5 It is well settled in law that the Court cannot legislate.
As far as adding a disqualification is concerned, the constitutional
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provision states the disqualification, confers the power on the
legislature, which has, in turn, legislated in the imperative. Thus,
the prescription as regards disqualification is complete in view
of the language employed in Section 7(b) read with Sections 8 to
10A of the Act. There is no ambiguity. The legislature has very
clearly enumerated the grounds for disqualification and the
language of the said provision leaves no room for any new ground
to be added or introduced. [Paras 22 and 23] [166-F, G-H;
167-A]
Manoj Narula v. Union of India (2014) 9 SCC 1 :
[2014] 9 SCR 965 ; Lily Thomas v. Union of India and
Others (2013) 7 SCC 653 : [2013] 10 SCR 1130 -
relied on.
3.1 Article 324 of the Constitution lays down the power of
the Election Commission with respect to superintendence,
direction and control of elections. The Election Commission has
the plenary power and its view has to be given weightage. That
apart, it has power to supervise the conduct of free and fair
election. However, the said power has its limitations. The Election
Commission has to act in conformity with the law made
by the Parliament and it cannot transgress the same.
[Paras 61 and 70] [187-G; 193-E-F]
3.2 Symbols Order deals with allotment, classification,
choice of symbols by candidates and restriction on the allotment
of symbols. When a candidate has been set up in an election by a
particular political party, then such a candidate has a right under
sub-clause (3) of clause (8) of Symbol Orders to choose the symbol
reserved for the respective political party by which he/she has
been set up. An analogous duty has also been placed upon the
Election Commission to allot to such a candidate the symbol
reserved for the political party by which he/she has been set up
and to no other candidate. Where a particular symbol is reserved
for a particular political party and such a political party sets up a
candidate in elections against whom charges have been framed
for heinous and/or grievous offences and this Court were to direct
the Election Commission that such a candidate cannot be allowed
to contest with the reserved symbol for the political party, it would
tantamount to adding a new ground for disqualification which is
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
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beyond the pale of the judicial arm of the State. Any attempt to
the contrary will be a colourable exercise of judicial power for it
is axiomatic that "what cannot be done directly ought not to be
done indirectly" which is a well-accepted principle in the Indian
judiciary. [Paras 86, 97 and 98] [197-E-F; 201-E-H]
3.3 Any direction to the Election Commission in the nature
as sought by the petitioners may lead to an anomalous situation
and has the effect potentiality to do something indirectly which is
not permissible to do directly. [Para 104] [203-C]
3.4 Even if the person concerned contests the election as
an independent candidate, the impact would be the same. That
apart, without a legislation, it may be difficult to proscribe the
same. Additionally, democracy that is based on multi-party system
is likely to be dented. Therefore, though criminalization in politics
is a bitter manifest truth, which is a termite to the
citadel of democracy, the Court cannot make the law.
[Paras 104 and 106] [203-D; 204-G]
3.5 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. 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.
[Para 107] [204-H; 205-A-B]
3.6 In a multi-party democracy, where members are elected
on party lines and are subject to party discipline, it is
recommended to the Parliament to bring out a strong law whereby
it is mandatory for the political parties to revoke membership of
persons against whom charges are framed in heinous and grievous
offences and not to set up such persons in elections, both for the
Parliament and the State Assemblies. This would go a long way in
achieving decriminalisation of politics and usher in an era of
immaculate, spotless, unsullied and virtuous constitutional
democracy. [Para 108] [205-B-C]
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Kesavananda Bharati v. State of Kerala and Another
(1973) 4 SCC 225 : [1973] Suppl. SCR 1 - followed.
A.C. Jose v. Sivan Pillai and Others AIR 1984 SC
921 : [1984] 3 SCR 74; Association for Democratic
Reforms (2002) 5 SCC 294 : [2002] 3 SCR 696;
Kuldip Nayar v. Union of India and Others (2006) 7
SCC 1 : [2006] 5 Suppl. SCR 1; Indian National
Congress (I) v. Institute of Social Welfare and Others
(2002) 5 SCC 685 : [2002] 3 SCR 1040 ; Jagir Singh
v. Ranbir Singh and Another (1979) 1 SCC 560 :
[1979] 2 SCR 282 ; M.C. Mehta v. Kamal Nath and
Others (2000) 6 SCC 213 : [2000] 1 Suppl. SCR 389;
State of Himachal Pradesh and Others v. Satpal Saini
(2017) 11 SCC 42 : [2017 1 SCR 658; Allied Motors
Limited v. Bharat Petroleum Corporation Limited (2012)
2 SCC 1: [2011] 16 SCR 422 ; Nazir Ahmad v. King
Emperor AIR 1936 PC 253 ; D.R. Venkatachalam and
Others v. Dy. Transport Commissioner and Others
AIR 1977 SC 842 : [1977] 2 SCR 392 ; State through.
P.S. Lodhi Colony New Delhi v. Sanjeev Nanda
AIR 2012 SC 3104 : [2012] 12 SCR 881; Rashmi
Rekha Thatoi and Another v. State of Orissa and Others
(2012) 5 SCC 690 : [2012] 5 SCR 674; Shailesh
Manubhai Parmar v. Election Commission of India
2018 (10) SCALE 52; Resurgence India v. Election
Commission of India (2014) 14 SCC 189 : [2013] 9
SCR 360 ; People's Union for Civil Liberties v. Union
of India (2013) 10 SCC 1 : [2013 ]12 SCR 283 -
relied on.
Election Commission of India and Another. v.
Dr. Subramaniam Swamy and Another (1996) 4 SCC
104 : [1996] 1 Suppl. SCR 637; Mohinder Singh Gill
v. Chief Election Commissioner AIR 1978 SC 851 :
[1978] 2 SCR 272 ; Amit Kapoor v. Ramesh Chander
and Another (2012) 9 SCC 460 : [2012] 7 SCR 988 ;
Union of India and Another v. Deoki Nandan Aggarwal
(1992) 1 Suppl. SCC 323 ; Supreme Court Bar
Association v. Union of India and Another (1998) 4
SCC 409 : [1998] 2 SCR 795 - referred to.
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
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4.1 In a constitutional democracy, criminalization of politics
is an extremely disastrous and lamentable situation. The citizens
in a democracy cannot be compelled to stand as silent, deaf and
mute spectators to corruption by projecting themselves as
helpless. The voters cannot be allowed to resign to their fate.
The information given by a candidate must express everything
that is warranted by the Election Commission as per law.
Disclosure of antecedents makes the election a fair one and the
exercise of the right of voting by the electorate also gets sanctified.
Such a right is paramount for a democracy. A voter is entitled to
have an informed choice. If his right to get proper information is
scuttled, in the ultimate eventuate, it may lead to destruction of
democracy because he will not be an informed voter having been
kept in the dark about the candidates who are accused of heinous
offences. In the present scenario, the information given by the
candidates is not widely known in the constituency and the
multitude of voters really do not come to know about the
antecedents. Their right to have information suffers. [Para 115]
[210-B-D]
4.2 It is directed that each contesting candidate shall fill up
the form as provided by the Election Commission; it shall state,
in bold letters, with regard to the criminal cases pending against
the candidate; if a candidate is contesting an election on the ticket
of a particular party, he/she is required to inform the party about
the criminal cases pending against him/her; the concerned
political party shall be obligated to put up on its website the
aforesaid information pertaining to candidates having criminal
antecedents; the candidate as well as the concerned political party
shall issue a declaration in the widely circulated newspapers in
the locality about the antecedents of the candidate and also give
wide publicity in the electronic media i.e. thrice after filing of the
nomination papers. These directions ought to be implemented
in true spirit and right earnestness in a bid to strengthen the
democratic set-up. [Paras 116 and 117] [210-F-G; 211-A-B]
4.3 There may be certain gaps or lacunae in a law or
legislative enactment which can definitely be addressed by the
legislature if it is backed by the proper intent, strong resolve
and determined will of right-thinking minds to ameliorate the
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situation. The law cannot always be found fault with for the lack
of its stringent implementation by the concerned authorities.
Therefore, it is the solemn responsibility of all concerned to
enforce the law as well as the directions laid down by this Court
from time to time in order to infuse the culture of purity in politics
and in democracy and foster and nurture an informed citizenry,
for ultimately it is the citizenry which decides the fate and course
of politics in a nation and thereby ensures that "we shall be
governed no better than we deserve", and thus, complete
information about the criminal antecedents of the candidates
forms the bedrock of wise decision-making and informed choice
by the citizenry. Informed choice is the cornerstone to have a
pure and strong democracy. [Para 117] [211-B-E]
4.4 The Parliament must make law to ensure that persons
facing serious criminal cases do not enter into the political stream.
It is one thing to take cover under the presumption of innocence
of the accused but it is equally imperative that persons who enter
public life and participate in law making should be above any kind
of serious criminal allegation. It is true that false cases are foisted
on prospective candidates, but the same can be addressed by
the Parliament through appropriate legislation. [Para 118]
[211-F-G]
Case Law Reference
(2016) 3 SCC 183
 referred to
Para 1
[2014] 9 SCR 965
 relied on
Para 3
[2013] 10 SCR 1130
 relied on
Para 7
[1997] 3 SCR 93
 relied on
Para 30
[1997] 1 Suppl. SCR 641 relied on
Para 31
[2005] 1 SCR 296
 relied on
Para 32
[1978] 2 SCR 272
 referred to
Para 37
[2002] 3 SCR 696
 referred to
Para 39
(2013) CIC 8047
 referred to
Para 43
[2003] 2 SCR 1136
 referred to
Para 45
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
INDIA & ANR.
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[1996] 1 Suppl. SCR 189 referred to
Para 51
[1979] 2 SCR 229
 referred to
Para 51
[1996] 1 Suppl. SCR 637 referred to Para 63
[1984] 3 SCR 74
 relied on
 Para 67
[2002] 3 SCR 696
 relied on
 Para 68
[2006] 5 Suppl. SCR 1 relied on
 Para 69
[2002] 3 SCR 1040
 relied on
 Para 75
[1979] 2 SCR 282
 relied on
 Para 77
[2000] 1 Suppl. SCR 389 relied on
Para 77
[2017 1 SCR 658
 relied on
Para 79
[1973] Suppl. SCR 1
 followed
 Para 79
[2012] 7 SCR 988
 referred to
Para 81
(1992) 1 Suppl. SCC 323 referred to
Para 84
[1998] 2 SCR 795
 referred to
Para 84
[2011] 16 SCR 422
 relied on
Para 100
AIR 1936 PC 253
 relied on
Para 100
[1977] 2 SCR 392
 relied on
Para 101
[2012] 12 SCR 881
 relied on
Para 102
[2012] 5 SCR 674
 relied on
Para 103
2018 (10) SCALE 52
 relied on
Para 104
[2013] 9 SCR 360
 relied on
Para 113
[2013] 12 SCR 283
 relied on
Para 115
CIVIL ORIGINAL/APPELLATE JURISDICTION : Writ
Petition (Civil) No.536 of 2011
Under Article 32 of the Constitution of India.
 WITH
Criminal Appeal Nos.1714-1715 of 2007, Writ Petition (Criminal)
No. 208 of 2011 and Writ Petition (Civil) No. 800 of 2015.
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K. K. Venugopal, Attorney General for India, Maninder Singh,
ASG, Ms. Aishwarya Bhati, S. S. Shamshery, AAG, A. Mariarputham,
Adv. Gen., Sidharth Luthra, Sr. Adv. (AC), Dinesh Dwivedi, Krishnan
Venugopal, Ms. Meenakshi Arora, A. K. Srivastava, Prashanto Chandra
Sen, Sr. Advs., Anoopam N. Prasad, Ms. Mehaak Jaggi, Aroon Menon,
K. K. Mohan, Ashish Mohan, Krishnam Mishra, Yasharth Kant, Nishant
Singh, Shashank Shekhar Singh, Ankit Pandey, Dr. Manish Singhvi (for
M/s. AP & J Chambers), Uday Rathore, A.K. Upadhyay (for R. D.
Upadhyay) R. Balasubramanian, Rohit Bhatt, Prabhas Bajaj, Ms. Kanika
Saran, Ms. Aarti Sharma (for B. Krishna Prasad), Abhay Kumar,
Ms. Monisha Handa, Amit Sharma, Baij Nath Patel, Mohit D. Ram,
Vishwa Pal Singh, V.N. Raghupathy, V.G. Pragasam, S. Prabu
Ramasubramanian, S. Manuraj, Tapesh Kumar Singh, Mohd. Waquas,
Aditya Pratap Singh, Shuvodeep Roy, Sayooj Mohandas, Rituraj Biswas,
Manoj Gorkela, Sahil (for Ms. Shashi Kiran), Saurabh Mishra, Mrityunjai
Singh (for S. Udaya Kumar Sagar), Rajesh Srivastava, Amit Sharma,
Sandeep Singh, Ankit Raj, Ms. Nidhi Jaswal, Ms. Indira Bhakar,
Ms. Ruchi Kohli, Ravi Prakash Mehrotra, Ranjan Mukherjee, Daniel
Stone Lyngdoh, K.V. Kharlyngdoh, Ramesh Babu M. R., Ms. Pragati
Neekhra, Parijat Sinha, Nishant Ramakantrao Katneshwarkar, M. Yogesh
Kanna, Mrs. Sujatha Isagadhi, Baij Nath Patel, M. R. Shamshad, Kuldip
Singh, Krishnayan Sen, Jatinder Kumar Bhatia, Ashutosh Kumar Sharma,
Ms. Hemantika Wahi, Guntur Prabhakar, Manish Kumar (for Gopal
Singh), K. V. Jagdishavaran, Ms. G. Indira, Dinesh Kumar Garg,
D.S. Mahra, Ashok Mathur, Ms. Aruna Mathur, Avneesh Arputham,
Ms. Anuradha Arputham, Ms. Geetanjali (for M/s. Arputham Aruna
And Co.), Arjun Garg, Ardhendumauli Kumar Prasad, Anuvrat Sharma,
Aniruddha P. Mayee, Adarsh Upadhyay, Abhisth Kumar, Abhishek
Chaudhary, Pratap Venugopal, Ms. Surekha Ramani, Anuj Sarma,
Ms. Niharika (for M/s. K. J. John And Co.), Shibashish Misra, Chandan
Kumar Mandal, Ms. Jaspreet Gogia, Ms. Mandakini Singh, Ms. Tulika
Prakash, Atul Jha, Sandeep Jha, Dharmendra Kumar Sinha, C. K. Sasi,
Ms. Nayantara Roy, Mukesh Kumar Maroria, Avijit Bhattacharjee,
Ms. Swarupama Chaturvedi, B. N. Dubey, Ms. Vaishali Verma,
Ms. Devika Gulati, Ms. Madhvi Kumar Sawant, Hitesh Kumar Sharma,
S. K. Rajora (for Milind Kumar), M/s. Corporate Law Group, M. Shoeb
Alam, Ms. Fauzia Shakil, Ujjwal Singh, Mojahid Karim Khan,
Ms. K. Enatoli Sema, Amit Kumar Singh, Z. H. Isaac Haiding, Balaji
Srinivasan, Anil Shrivastav, Sudarshan Singh Rawat, Suhaan Mukerji,
PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF
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Harsh Hiroo Gursahani, Ms. Kajal Dalal, Abhishek Manchanda,
Ms. Astha Sharma (for M/s. PLR Chambers & Co.), Leishangthem
Roshmani Kh., Ms. Maibam Babina, Balaji Srinivasan, James P. Thomas,
P.S. Sudheer, Rishi Maheshwari, Kaustubh Singh, Gopal
Sankaranarayanan, A. K. Upadhyay, Ms. Shrey Patnaik, Ms. Aishwarya
Kane, Vikram Gulati (for R. D. Upadhyay), Ashwani Kumar Dubey,
Advs. for the appearing parties.
Vikram Gulati, Respondent-in-person.
The Judgment of the Court was delivered by
DIPAK MISRA, CJI. 1. In Yogendra Kumar Jaiswal and
others v. State of Bihar and others1, the Court opined:-
"Corruption, a 'noun' when assumes all the characteristics of a
Verb', becomes self-infective and also develops resistance to
antibiotics. In such a situation the disguised protagonist never puts
a Hamletian question-"to be or not to be"-but marches ahead
with perverted proclivity-sans concern, sans care for collective
interest, and irrefragably without conscience. In a way, corruption
becomes a national economic terror."
2. The constitutional functionaries, who have taken the pledge to
uphold the constitutional principles, are charged with the responsibility to
ensure that the existing political framework does not get tainted with the
evil of corruption. However, despite this heavy mandate prescribed by
our Constitution, our Indian democracy, which is the world's largest
democracy, has seen a steady increase in the level of criminalization
that has been creeping into the Indian polity. This unsettlingly increasing
trend of criminalization of politics, to which our country has been a
witness, tends to disrupt the constitutional ethos and strikes at the very
root of our democratic form of government by making our citizenry suffer
at the hands of those who are nothing but a liability to our country.
3. The issue that emerges for consideration before this Bench is
whether disqualification for membership can be laid down by the Court
beyond Article 102(a) to (d) and the law made by the Parliament under
Article 102(e). A three-Judge Bench hearing the matter was of the
view that this question is required to be addressed by the Constitution
Bench under Article 145(3) of the Constitution. Be it stated, a submission
was advanced before the three-Judge Bench that the controversy was
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covered by the decision in Manoj Narula v. Union of India2. The said
submission was not accepted because of the view expressed by Madan
B. Lokur, J. in his separate judgment.
4. In the course of hearing, the contour of the question was
expanded with enormous concern to curb criminalization of politics in a
democratic body polity. The learned counsel for the petitioners submitted
that having regard to the rise of persons with criminal antecedents, the
fundamental concept of decriminalization of politics should be viewed
from a wider spectrum and this Court, taking into consideration the facet
of interpretation, should assume the role of judicial statesmanship.
Mr. K.K. Venugopal, learned Attorney General for India and other learned
counsel, per contra, would submit that there can be no denial that this
Court is the final arbiter of the Constitution and the Constitution empowers
this wing of the State to lay down the norms of interpretation and show
judicial statesmanship but the said judicial statesmanship should not ignore
the fundamental law relating to separation of powers, primary
responsibility conferred on the authorities under the respective powers
and the fact that no authority should do anything for which the power
does not flow from the Constitution. In essence, the submission of
Mr. Venugopal is that the Court should not cross the 'Lakshman Rekha'.
Resting on the fulcrum of constitutional foundation and on the fundamental
principle that if the Court comes to hold that it cannot legislate but only
recommend for bringing in a legislation, as envisaged under Article
102(1)(e) of the Constitution, it would not be appropriate to take recourse
to any other method for the simon pure reason that what cannot be done
directly, should not be done indirectly. We shall advert to the said submission
at a later stage.
5. Article 102 reads as follows: -
"102. Disqualifications for membership - (1) A person shall
be disqualified for being chosen as, and for being, a member of
either House of Parliament-
(a) if he holds any office of profit under the Government of India
or the Government of any State, other than an office declared
by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent
court;
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(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgment
of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
Explanation. -For the purposes of this clause a person shall not
be deemed to hold an office of profit under the Government of
India or the Government of any State by reason only that he is a
Minister either for the Union or for such State.
(2) A person shall be disqualified for being a member of either
House of Parliament if he is so disqualified under the Tenth
Schedule."
6. In this context, we may also refer to Article 191 of the
Constitution that deals with disqualifications for membership. It is as
follows: -
"191. Disqualifications for membership-(1) A person shall
be disqualified for being chosen as, and for being, a member of
the Legislative Assembly or Legislative Council of a State
(a) if he holds any office of profit under the Government of India
or the Government of any State specified in the First Schedule,
other than an office declared by the Legislature of the State
by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent
court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgement
of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
Explanation. -For the purposes of this clause, a person shall
not be deemed to hold an office of profit under the Government
of India or the Government of any State specified in the First
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Schedule by reason only that he is a Minister either for the Union
or for such State.
(2) A person shall be disqualified for being a member of the
Legislative Assembly or Legislative Council of a State if he is so
disqualified under the Tenth Schedule."
7. On a perusal of both the Articles, it is clear as crystal that as
regards disqualification for being chosen as a member of either House
of Parliament and similarly disqualification for being chosen or for being
a member of the Legislative Assembly or Legislative Council of a State,
the law has to be made by the Parliament. In Lily Thomas v. Union of
India and others3, it has been held:-
"26. Articles 102(1)(e) and 191(1)(e) of the Constitution, on the
other hand, have conferred specific powers on Parliament to make
law providing disqualifications for membership of either House of
Parliament or Legislative Assembly or Legislative Council of the
State other than those specified in sub-clauses (a), (b), (c) and
(d) of clause (1) of Articles 102 and 191 of the Constitution. We
may note that no power is vested in the State Legislature to make
law laying down disqualifications of membership of the Legislative
Assembly or Legislative Council of the State and power is vested
in Parliament to make law laying down disqualifications also in
respect of Members of the Legislative Assembly or Legislative
Council of the State. For these reasons, we are of the considered
opinion that the legislative power of Parliament to enact any law
relating to disqualification for membership of either House of
Parliament or Legislative Assembly or Legislative Council of the
State can be located only in Articles 102(1)(e) and 191(1)(e) of
the Constitution and not in Article 246(1) read with Schedule VII
List I Entry 97 and Article 248 of the Constitution. We do not,
therefore, accept the contention of Mr. Luthra that the power to
enact sub-section (4) of Section 8 of the Act is vested in Parliament
under Article 246(1) read with Schedule VII List I Entry 97 and
Article 248 of the Constitution, if not in Articles 102(1)(e) and
191(1)(e) of the Constitution."
We have no hesitation in saying that the view expressed above in
Lily Thomas (supra) is correct, for the Parliament has the exclusive
legislative power to lay down disqualification for membership.
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8. In Manoj Narula (supra), the question centered around the
interpretation of Article 75 of the Constitution. The core issue pertained
to the legality of persons with criminal background and/or charged with
offences involving moral turpitude to be appointed as ministers in the
Central and the State Governments. The majority referred to the
constitutional provisions, namely, Articles 74, 75, 163 and 164, adverted
to the doctrine of implied limitation and, in that context, opined thus:-
"64. On a studied scrutiny of the ratio of the aforesaid decisions,
we are of the convinced opinion that when there is no
disqualification for a person against whom charges have been
framed in respect of heinous or serious offences or offences
relating to corruption to contest the election, by interpretative
process, it is difficult to read the prohibition into Article 75(1) or,
for that matter, into Article 164(1) to the powers of the Prime
Minister or the Chief Minister in such a manner. That would come
within the criterion of eligibility and would amount to prescribing
an eligibility qualification and adding a disqualification which has
not been stipulated in the Constitution. In the absence of any
constitutional prohibition or statutory embargo, such disqualification,
in our considered opinion, cannot be read into Article 75(1) or
Article 164(1) of the Constitution."
9. There has been advertence to the principle of constitutional
silence or abeyance and, in that context, it has been ruled that it is not
possible to accept that while interpreting the words "advice of the Prime
Minister", it can legitimately be inferred that there is a prohibition to
think of a person as a minister if charges have been framed against him
in respect of heinous and serious offences including corruption cases
under the criminal law. Thereafter, the majority addressed the concepts
of 'constitutional morality', 'constitutional governance' and 'constitutional
trust' and analysed the term 'advice' employed under Article 75(1) and
stated that formation of an opinion by the Prime Minister in the context
of Article 75(1) is expressed by the use of the said word because of the
trust reposed in the Prime Minister under the Constitution and the said
advice, to put it differently, is a constitutional advice. Reference was
made to the debate in the Constituent Assembly which had left it to the
wisdom of the Prime Minister because of the intrinsic faith in him.
Discussing further, it has been stated: -
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"At the time of framing of the Constitution, the debate pertained
to conviction. With the change of time, the entire complexion in
the political arena as well as in other areas has changed. This
Court, on number of occasions, as pointed out hereinbefore, has
taken note of the prevalence and continuous growth of
criminalisation in politics and the entrenchment of corruption at
many a level. In a democracy, the people never intend to be
governed by persons who have criminal antecedents. This is not
merely a hope and aspiration of citizenry but the idea is also
engrained in apposite executive governance."
And again: -
"That the Prime Minister would be giving apposite advice to the
President is a legitimate constitutional expectation, for it is a
paramount constitutional concern. In a controlled Constitution like
ours, the Prime Minister is expected to act with constitutional
responsibility as a consequence of which the cherished values of
democracy and established norms of good governance get
condignly fructified. The Framers of the Constitution left many a
thing unwritten by reposing immense trust in the Prime Minister.
The scheme of the Constitution suggests that there has to be an
emergence of constitutional governance which would gradually
grow to give rise to constitutional renaissance."
10. Lokur, J. opined: -
"132. While it may be necessary, due to the criminalisation of our
polity and consequently of our politics, to ensure that certain persons
do not become Ministers, this is not possible through guidelines
issued by this Court. It is for the electorate to ensure that suitable
(not merely eligible) persons are elected to the legislature and it is
for the legislature to enact or not enact a more restrictive law."
Proceeding further, the learned Judge stated: -
"137. In this respect, the Prime Minister is, of course, answerable
to Parliament and is under the gaze of the watchful eye of the
people of the country. Despite the fact that certain limitations can
be read into the Constitution and have been read in the past, the
issue of the appointment of a suitable person as a Minister is not
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one which enables this Court to read implied limitations in the
Constitution."
He had also, in his opinion, reproduced the words of Dr. B.R.
Ambedkar in the Constituent Assembly on 25.11.1949 and the sentiments
echoed by Dr. Rajendra Prasad on 26.11.1949. Dr. Ambedkar had said:-
"As much defence as could be offered to the Constitution has
been offered by my friends Sir Alladi Krishnaswami Ayyar and
Mr T.T. Krishnamachari. I shall not therefore enter into the merits
of the Constitution. Because I feel, however good a Constitution
may be, it is sure to turn out bad because those who are called to
work it, happen to be a bad lot. However bad a Constitution may
be, it may turn out to be good if those who are called to work it,
happen to be a good lot. The working of a Constitution does not
depend wholly upon the nature of the Constitution. The Constitution
can provide only the organs of State such as the Legislature, the
Executive and the Judiciary. The factors on which the working of
those organs of the State depend are the people and the political
parties they will set up as their instruments to carry out their wishes
and their politics. Who can say how the people of India and their
parties will behave? Will they uphold constitutional methods of
achieving their purposes or will they prefer revolutionary methods
of achieving them? If they adopt the revolutionary methods,
however good the Constitution may be, it requires no prophet to
say that it will fail. It is, therefore, futile to pass any judgment
upon the Constitution without reference to the part which the
people and their parties are likely to play."
11. The learned Judge reproduced the words of Dr. Rajendra
Prasad, which ring till today, are:-
"Whatever the Constitution may or may not provide, the welfare
of the country will depend upon the way in which the country is
administered. That will depend upon the men who administer it. It
is a trite saying that a country can have only the Government it
deserves. Our Constitution has provisions in it which appear to
some to be objectionable from one point or another. We must
admit that the defects are inherent in the situation in the country
and the people at large. If the people who are elected are capable
and men of character and integrity, they would be able to make
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the best even of a defective Constitution. If they are lacking in
these, the Constitution cannot help the country. After all, a
Constitution like a machine is a lifeless thing. It acquires life
because of the men who control it and operate it, and India needs
today nothing more than a set of honest men who will have the
interest of the country before them."
12. Kurian Joseph, J., concurring with the opinion, has stated:-
"152.