"Debar Chargesheeted Persons Involved In Serious Offences From Contesting Elections": Plea In SC

A plea has been moved in the Supreme Court seeking a ban on persons against whom serious offences have been framed from contesting elections. 

Filed by Advocate Ashwani Kumar Upadhyay, the plea seeks a writ, in the nature of mandamus by the top court to the Centre and Election Commission to take apposite steps for debarring chargesheeted persons involved in serious offences from contesting elections.

The plea highlights various reforms recommended by Committees over the years such as those by the Jaya Prakash Narayan Committee in 1974, Goswami Committee in 1990 & Vohra Committee in 1993 and states that the suggestions put forth by these them were never implemented.

"....there is no reason why they should be held to lower standards than Judges or Indian Administrative Service officers.Further, it is averred that the Law Commission had also put forth reports on Electoral reforms and decriminalisation of politics but Centre did nothing" - Excerpt of Plea

"On 24.02.2014, the Law Commission submitted its 244th report on decriminalization of politics, but Centre still did nothing. 10. On 12.03.2015, the Law Commission submitted its 255th report on Electoral Reform, but Centre took no steps to implement them. 11. On 05.12.2016, Election Commission again suggested steps for electoral & democratic reform, but Centre did not implement them," the plea reads.

It is stated by Upadhyay that out of 539 winners in the 17th Lok Sabha Elections in 2019, 43% declared criminal cases against themselves. The plea highlights this trend as follows:

"Out of 542 winners analyzed after 2014 Lok Sabha elections, 185 (34%) winners had declared criminal cases against themselves. Out of 543 winners analyzed after 2009 Lok Sabha elections, 162 (30%) winners had declared criminal cases against themselves. There is an increase of 44% in the number of MPs with declared criminal cases since 2009. Similarly, 159 (29%) winners in Lok Sabha 2019 Elections have declared serious criminal cases including cases related to rape, murder, attempt to murder, kidnapping, crimes against women etc. Out of 542 winners analyzed during Lok Sabha elections in 2014, 112 (21%) winners had declared serious criminal cases against themselves. Out of 543 winners analyzed during Lok Sabha elections in 2009, 76 (14%) winners had declared serious criminal cases against themselves..."

In this context, it is stated by the petitioner that the injury caused to people is large because criminalization of politics is at an extreme level. "Political parties are still setting-up candidates with serious criminal antecedents. Therefore, voters find it difficult to cast their vote freely and fairly though it is their fundamental right, guaranteed under Article 19," he adds.

"The consequences of permitting criminals to contest elections and become legislators are extremely serious for our democracy and secularism," the plea reads.

Hinging upon the above, it is averred that when 43% of MP's in the Lok Sabha cutting across all political parties have criminal cases pending against them, it is not surprising that a Parliamentary Standing Committee in 2007 itself simply rejected the recommendation of the Law Commission in its 170th Report and the Election Commission's "Proposal for Electoral Reforms" to amend the RPA to impose an electoral disqualification on persons against whom charges have been framed for serious offences punishable by sentences of 5 years or more. 

The petitioner also states that such a direction, of banning a person chargesheeted of serious offences from contesting elections would not violate the fundamental rights of citizens. The plea goes on to explain this,

"The proposed direction cannot result in a violation of the fundamental right under Article 19(1) to form an association. A candidate with criminal antecedents can become or continue to be a member of the political party. The condition that the political party not give him a ticket as a condition for recognition as a State or National party to guarantee continued usage of the reserved symbol does not impinge on the freedom of association of either the candidate or political party."

Further, it states that even assuming that the debarring does fall under the scope of Article 19(1)(a), proposed direction arguably is a reasonable restriction and can be justified on the ground of public order and morality in Article 19(4) and forms a rational classification under the Article 14 test.

Alternatively, the plea prays for directions to the EC to use its plenary power, conferred under Article 324, to amend to amend the Election Symbols (Reservation & Allotment) Order 1968, so as to insert additional conditions for recognition and continuance as a State or National Party, in order to debar the person from contesting election, against whom charges have been framed in serious offences.