Tag: #Article102

INTRODUCTION

India is one of the largest democracies in the world and in this country we follow the concept of the universal adult franchise which means a person above 18 years of age has a right to vote irrespective of their caste, colour, creed, religion, or gender. We elect our representative by giving a vote but what if we have to choose our representative among the persons with severe criminal records. In India, nowadays criminalization of politics becomes very common which means a person participating in an election is having a criminal record. This is the biggest irony out here where the ‘lawbreakers become the lawmakers’. This disrupts the roots of democracy where it is difficult to become even a peon with criminal records. On the other hand, people become ministers and represent the country with criminal records.

The number of politicians with criminal records is increasing day by day, which is a serious concern for the public. The data was provided by the Association of Democratic reform [ADR] reports in which it was stated that the elected Lok Sabha candidates in the year 2019 out of the 43% had criminal charges against them which is a nearly 26% increase concerning the elections of 2014.

The report by the ADR in collaboration with the national eye watch in which it was published that in the year 2009, 543 members were elected for Lok Sabha elections out of which 162 (30%) of them had criminal charges and 76 i.e 14% had severe criminal charges against them like murder, rape, kidnapping, etc. Also, in the 2014 Lok Sabha elections, 539 candidates were elected out of which 233 (43%) had criminal charges against them and 159 i.e 29% had serious criminal charges against them.

LAWS IN INDIA AGAINST THE CRIMINALISATION OF POLITICS

Some articles in our Indian constitution are against the criminalization of politics and those articles are

• ARTICLE 327
  Article 327 of the Indian constitution gives the right to the parliament to make provisions on the subject matter related to elections for either house of the parliament or for the legislature of a state._¹
• ARTICLE 102
  Article 102 of the Indian constitution deals with the disqualification of members from the elections of either house of the parliament on certain grounds which are mentioned under this article.²
• ARTICLE 191
  Article 191 of the Indian constitution also deals with the disqualification of members from the election but from the legislative assembly or legislative council of the state if they fall under the category mentioned under the article.³

EFFECTS OF CRIMINALISATION OF POLITICS

• AGAINST THE FREE AND FAIR ELECTIONS PRINCIPLE
  The candidates often use their muscle and money power which means they have the ability to finance their own elections and largely due to public image they try to gain votes. This demeans the principle of free and fair election as it limits the choice of electing a deserving candidate.
• AFFECTING GOOD GOVERNANCE
  The main issue is that lawbreakers become lawmakers, which undermines the democratic process’ ability to offer decent government. The structure of India’s state institutions and the quality of its elected representatives are reflected in these undesirable democratic tendencies.
• AFFECTING UPRIGHTNESS AMONG PUBLIC SERVANTS
  Corruption caused during elections due to the circulation of money during and after elections causes disruption in the working of public servants and thus, results in increasing corruption.
• CAUSES SOCIAL DISHARMONY
  Electing representatives who have a criminal record creates a bad precedent for the youth and also causes social disharmony and violence in society. This demeans the meaning of democracy in the eyes of the general public.

REASONS FOR CRIMINALISATION OF POLITICS

• LACK OF POLITICAL WILL
  Political parties don’t show any will or interest in curbing the criminalization of politics. Until now, efforts made towards this issue were made by the supreme court and the election commission of India. However, parliament must revise the Representation of the People (RPA) Act 1951⁴, which governs the disqualification of candidates who have been charged with serious crimes and have been found guilty in court.
• LACK OF ENFORCEMENT
  Making strict laws and regulations or passing judgment will not affect much until and unless implemented properly.
• NARROW SELF INTEREST
  Sometimes general public may focus on caste or religion criteria for casting vote and they may not be interested in checking the history or criminal record of the candidate. So, publishing criminal reports of the candidates is not enough to curb the criminalization of politics.
• USE OF MUSCLE AND MONEY POWER
  Candidates gain votes due to their muscle power and money power, despite having serious criminal records they use their identity and finance their election to gain votes. Furthermore, when all contesting candidates have criminal backgrounds, voters are sometimes left with no options.

CASE LAWS

UNION OF INDIA VS ASSOCIATION FOR DEMOCRATIC REFORMS AND ANR.
The association for democratic reforms filed a petition in the Delhi high court for the recommendations on how to make elections fairer, and transparent. The law commission produced some recommendations which are that the candidates should disclose their criminal history, educational qualifications, financial details, and other personal information on their websites. After this, the union of India challenged the petition in the supreme court of India that the high court voters did not have a right to such information. The court held that the right to know is a derived right from the right to freedom of expression and speech. Because such rights include the right to have opinions and collect information in order to be appropriately educated in formulating and distributing those opinions throughout the election process, the public has a right to know about candidates running for election. The Court elaborated on this argument by stating that a good democracy strives for an “aware citizenry,” and that any kind of misinformation or lack of information will result in a “uniformed citizenry,” rendering democracy a charade.⁵

PEOPLE’S UNION OF CIVIL LIBERTIES [PUCL] V. UNION OF INDIA
The people’s union of civil liberties [PUCL] challenged the validity of section 338 of the representation of people’s act, 1951 which says that a candidate is not allowed to disclose any personal information. The PUCL contended that it was a violation of Article 19(1)(a). the apex court held that the candidates should provide information about themselves to the voters. The basic information provided by the candidates can affect the decision of the voters. Furthermore, freedom of expression encompasses not just verbal and written communication but also voting. The expression of opinion through the final act of casting a ballot is part of the fundamental right of freedom of speech and expression under Article 19(1), even though the right to vote is not a fundamental right in and of itself. The apex court concluded that section 33B of the representation of people act, 1951 was unconstitutional.⁶

LILY THOMAS VS UNION OF INDIA
In this case, a writ petition was filed by the Lily Thomas and an advocate Satya Narain Shukla before the apex court for the purpose of challenging section 8(4) of the Representation of the people’s act which safeguards the convicted politicians from any kind of election disqualification based on pending appeals against their conviction in the appellate court. This petition was not allowed for 9 years and later, in July 2013 the supreme court finally passed a verdict in which it was held that the MP and MLA whether they are elected or not elected would be disqualified if they have criminal allegations against them by the trial court and the saving clause under section 8(4) will not be applicable.⁷

PUBLIC INTEREST FOUNDATION V. UNION OF INDIA
In this case, in the year 2011, the petition was filed by the BJP leader Ashwini Upadhyay and the NGO public interest foundation before the apex court to seek directions regarding the criminalization of politics and debarring them to contesting elections. The issue was whether the court can put any restriction on membership of parliament beyond article 102(a) to (d) and parliament’s legislation under Article 102(e). the court held that the debarring candidate to contest the election solely on the basis that they have a criminal record is wrong. The court directed them to fill out the form circulated by the election commission and the form must contain all the information. The candidate has to notify the party regarding criminal proceedings if he or she has against them while buying a ticket of a specific party. The political party has to update their website and to put regarding any criminal proceedings are pending against them and also make them publish in the newspapers and also to make huge publicity on electronic media.⁸

RECENT DECISION

The supreme court of India passed a judgment related to the criminalization of politics recently in February 2020 in which it was held that the political party has to update their websites regarding criminal history against the candidates and such information has to be published in even local and national newspaper. In October 2020, Bihar was the first election that followed the supreme court guidelines. This was done to preserve the purity of elections in the country and to provide voters with a fair choice to choose.

CONCLUSION

Till today what has been done regarding curbing the criminalization of politics has been done by the supreme court and the election commission. The parliament has to show some interest to make changes in the representation of people’s acts. The alone judiciary will not be enough effective in dealing with this issue.

In conclusion, the information regarding criminal history, financial authority, and educational qualifications of the candidates should be made available to the voters. So, that they can make the right choice and the elections conducted could be fair and transparent and the voters were given fair choice to choose candidates from them. Though information should be provided to the voters and it is important also but there should be a thin line between information provided to the voters and the rights of the candidates.

References:

1. The Indian constitution, 1950, art.327
2. The Indian constitution, 1950, art. 102
3. The Indian constitution, 1950, art. 191
4. The Representation of people act, 1951.
5. Union of India v. Association for democratic reforms and anr, (2002) 5 SCC 294.
6. People’s union of civil liberties V. Union of India, [WP (C) NO. 196/2001]
7. Lily Thomas v. Union of India, [WP (C) NO. 231/2005]
8. Public interest foundation V. Union of India, [WP (C) NO. 536 OF 2011]

This article is written by Prerna Pahwa, a student of Vivekananda Institute of Professional Studies, New Delhi.

Equivalent Citation

[1992 SCR (1) 686, 1992 SCC Supl. (2) 651]

Bench

By Hon’ble Justice Sharma, L.M.,
By Hon’ble Justice Venkatachalliah, M.N.,
By Hon’ble Justice Verma, Jagdish Saran,
By Hon’ble Justice Reddy, K. Jayachandra and
By Hon’ble Justice Agrawal, S.C

Date of Judgment

February 18, 1992

Provisions Involved

Articles 102(2), Article 122(1), Article212(1), Article 368 of Constitution of India

Introduction

A constitution is a written document that contains rules, laws, and regulations for the government of a country. The Indian Constitution is regarded as the country’s supreme or “grundnorm” law. Its preamble speaks of people’s sovereignty, democratic polity, justice, liberty, equality, and brotherhood, all of which ensure the individual’s dignity as well as the nation’s unity and integrity. The Preamble is based on Nehru’s beliefs, which constituted the foundation for the constitution’s construction After the constitution was created, it didn’t take long for political insiders to convince Indian framers. Following Nehru’s death, India experienced a decline in political morals and an unpleasant increase in political corruption. The disorderly floor-crossing was a blow to the electoral system and weakened the government’s three organs. Parliament passed the Constitution (Fifty-Second Amendment) Act in early 1985, making defections illegal.

Factual Observations

The constitutional legitimacy of the Tenth Schedule established by the Constitution (Fifty-Second Amendment) Act, 1985, was challenged in the case of Kihota Hollohon v. Zachilhu and Ors. Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions, and other proceedings presenting common questions were all heard jointly, bringing the petitioners together. The Constitution (Fifty-second Amendment) Act substituted the tenth schedule for four articles of the Constitution, namely 101(3)(a), 102(2), 190(3)(a), and 191(2). In a 3:2 judgment in the case, the Hon’ble Supreme Court upheld the constitutional legitimacy of the Anti-Defection Law. Justices M.N. Venkatachaliah, K.J. Reddy, and S.C. Agrawal made up the majority, while Justices L.M. Sharma and J.S. Verma made up the minority. Simultaneously, the Supreme Court ruled that the speaker’s directives under the law barring an MLA from serving because of defection are subject to judicial review.

Issues Raised

1. Whether the changes made by the 52nd amendment are legally acceptable?
2. Whether the additions made by the 52nd amendment have constitutional validity?

Applicability of Doctrine of Severability

As stated in the definition itself, the doctrine of severability can be applied to a composite amendment that contains amendments that do not require ratification by States as well as amendments that do require such ratification, and the amendment can be upheld in respect of the amendments that do not require ratification and are within the competence of Parliament alone by applying the doctrine of severability. Only the revisions to the proviso’s provisions that require approval must be struck down or declared illegal. The severability test asks the Court to determine whether the legislature would have adopted the legislation at all if the severed element was not a part of it, and if what remains after severance can stand alone and is functional.

The doctrine of severability applies when a piece of otherwise lawful legislation contains a provision that is invalid due to a lack of legislative competence, and the invalid section is severable, leaving the remaining valid provisions intact. This theory does not apply where legislation is invalidly enacted because of non-compliance with a mandatory legislative procedure, such as the mandatory special procedure for exercising constituent power. The theory does not apply to legislation that has not yet been enacted. Even if it may be feasible to keep a stillborn alive by surgical skillfully removing a congenitally faulty portion, it is not possible to infuse life into a stillborn referred in The Bribery Commissioner v. Pedrick Ranasinghe¹.

Laws/Provisions Involved

Schedule 10
The first paragraph begins with definitions, the second with disqualifications, the third with divisions within the party (now deleted by the 2003 amendment to the constitution), the fourth with a few disqualifications that do not apply just in mergers, and the fifth with some exemptions. The sixth and seventh paragraphs state who will resolve disputes and restrict courts from hearing concerns about a member’s disqualification, and finally, the last paragraph allows a speaker to make rules for a House to give effect to the provisions of the Schedule.

Most of these provisions are subject to adjudication and interpretation by the courts of the land. Paragraph 2, which outlines a member’s disqualifications, is perhaps the one provision that has been scrutinized by the courts.

Ratio Decidendi

People’s lifestyles shape the law’s profile, not the other way around. A finality clause is not a magical legislative incantation that prevents Judicial Review from proceeding. A decision’s statutory finality assumes and is dependent on its adherence to the law. The scope of judicial review under Articles 136, 226, and 227 of the Constitution in relation to an order made by the Speaker/Chairman under would be limited to jurisdictional errors, such as infirmities based on constitutional mandate violations, mala fides, non-compliance with natural justice rules, and perversity. The courts follow the notion that, notwithstanding a finality provision, it is open to the court to determine whether the action of the challenged authority is ultra vires the powers conferred on it. An action can be ultra vires if it is carried out in violation of a mandatory provision of the law granting the authority the ability to do so. If the authority’s powers are vitiated by mala fides or a colorable use of power based on extraneous and irrelevant considerations, it will be supra vires.

Case Law Referred

Eight sections of the Bombay Prohibition Act, 1949 were found illegal by the court in State of Bombay v. F.N. Balsara² on the grounds that they were in violation of certain constitutional provisions and essential freedoms. The Supreme Court ruled that the sections of the law that were declared unconstitutional were valid because they were not inextricably linked with the remainder of the Act, they were severable from the rest of it. It was one thing to say that the Legislature would not have enacted the Act, but it was another to say that the Legislature would not have enacted it. It would be impossible to pass the Act without adding the elements that were judged to be illegal.

Likewise, the Supreme Court stated in A.K. Gopalan v. the State of Madras³ that if a law is unconstitutional, just the part that is unconstitutional will be declared void, not the entire law, and every effort should be made to save as much of it as possible. If the invalid part’s omission has no effect on the character or structure of the document, it will be considered a severable legislative object.

Judgment

The minority judges held that the Constitution was violated because the Constitutional scheme for deciding on questions of disqualification of members after being duly elected contemplates adjudication of such disputes by an independent authority outside the House, namely the President or Governor, in accordance with the opinion of the committee, all of whom are high Constitutional functionaries.

The Election Commission came to the same conclusion as the minority judges in this instance. It issued suggestions in 1977, recommending that disqualification for defection be referred to the Election Commission for an opinion to be given to the President or Governor, because the matter might potentially be, and as with other disqualifications alluded to in Articles 102 and 191 of the constitution, the President or the Governor will act on the Election Commission’s recommendation.

As a result, it was determined that paragraph 6 of the Tenth Schedule did not create a non-justiciable territory. The Speaker/power Chairman’s to resolve disagreements could be considered judicial. The ‘finality clause,’ which prepared the way for the majority to prevail in the verdict, is an important construction.

Own Analysis/Opinion

The Anti-Defection Law was enacted to counteract the “evil of political defections.” However, the phrase “voluntarily giving up membership in a political party” must be defined more clearly. The President/Governor should make agreements under the Tenth Schedule based on the Election Commission’s binding advice. Disqualification should be limited to situations in which a member voluntarily resigns from his political party, abstains from voting, or votes against the party whip in a confidence/non-confidence vote.

The law that has prevented individual defections must now be used to prevent mass defections. It’s also necessary to challenge the speaker’s function. For his tenure, the speaker is reliant on the support of the legislature’s majority. As a result, he does not meet the criteria for an ‘individual adjudicatory body.’ It is not practical to repeal the Anti-defection law completely, but the long-term solution is to keep a check on political culture, and legislators who act in contempt or with mala fide intent should be voted out in subsequent elections, as the ultimate agency in the world’s largest democracy rests with the Indian people. That’s why the doctrine of severability has made it easy to combat with kind of issues and help in avoiding any kind of misuse of arbitrary powers.

The president of the parliament, and the governor of the state legislature, may report the subject to the Election Commission under Articles 102 and 192, respectively. This appears to be the only way to avoid the speakers’ political biases in their judgments. If the government wishes to keep the current arrangement, the Supreme Court will have to exercise far more judicial review power over the Speaker’s decision under the Anti-defection law than the Supreme Court is willing to do now under the Kihota Hollohon case.

Concluding Observations

After analyzing the situation in the instant case, it can be concluded that the concerns of construction and severability are distinct because, where more than one reasonable interpretation is available, one upholding the legitimacy of the legislation and the other invalidating it, the former would be accepted, and in the situation that both are possible, the former would be accepted.

If this isn’t practicable, the court has no choice but to decide whether the entire statute should be repealed, stricken down, or the excellent and bad elements can be separated. Also, the Separation of valid and invalid provisions of a statute is not determined by whether the law is enacted in the same section or in distinct parts; what matters is the substance of the matter, which must be determined through a thorough examination of the Act as a whole, as well as the enactment of the applicable provisions. Despite its relative obscurity, the philosophy has far-reaching implications. On the one hand, rejecting entire legislation for one erroneous provision is the most invasive remedy; on the other hand, the Supreme Court is hesitant about amending statutes by removing portions of them. Prior to the passage of the Tenth Schedule, there was no such thing as a “political party” under the Constitution, but their existence is now acknowledged under the Anti-defection Act.

Citations:

1. [1965] AC 172
2. AIR 1951 SC 318.
3. AIR 1950 SC 27.

Analysis by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.