Should netas facing criminal cases contest elections, Supreme Court to decide on Tuesday

Should lawmakers, Member of Parliament (MPs) and Members of Legislative Assembly (MLAs) facing criminal charges be disqualified and barred from contesting elections once a court frames charges against them? Or should this happen, as it does now, only after they are convicted?

A five-judge bench of the Supreme Court is set to decide and deliver its verdict on a bunch of petitions, seeking to set the bar much higher for people in politics, on Tuesday.

In March, the union government said in an affidavit to the Supreme Court that a total of 1,765 representatives, including MPs and MLAs, a little over a third of all representatives in India, face criminal charges.

Expressing concern over the rising criminalisation of politics, a bunch of petitions were filed in 2011, demanding disqualification of lawmakers facing criminal charges. It was argued that the disqualification should take place once the court frames charges against lawmakers. Politicians and parties have always claimed that at least some of these charges are politically motivated and that it would be unfair to act against them on the basis of unproven allegations.

There is already a judgement of the apex court that debars an elected representative from continuing as a member of a house if he or she is convicted in a criminal case and sentenced to a jail term of three years or more.

Earlier in August, when the court was hearing the matter, it observed that people with criminal antecedents becoming members of Parliament and state assemblies is a problem.

“It is the duty of the legislature to respond to the collective cry of the citizens. Today the citizens are saying please don’t let such people contest elections…It can’t be ignored by the legislature. It’s national thinking,” said the five-judge-Bench headed by chief justice of India Dipak Misra.

Petitioners impressed on the court that despite the Law Commission and Election Commission repeatedly asking the government to act on the issue nothing had happened, and that parliamentary democracy is the most important part of the basic structure of the Constitution and needs to be protected by the court.

Opposing the petition, the government submitted to the court that a MP or MLA may be not disqualified on any other grounds other than those specified in the representation of peoples Act.

“The Supreme Court judgement will have a decisive impact on the criminalisation of politics, irrespective of the decision. Either the court will eliminate the legal grey zone many elected officials suspected of criminal activity exploit or they will decide to constrain the presumption of innocence. Either way, the judgment will leave a lasting impression,” said Milan Vaishnav, author of a book on the intersection of crime and politics in India and Senior Fellow at the Carnegie Endowment for International Peace.

Last year, a two-judge bench of the Supreme Court asked the government to set up 12 special courts across 11 states and Delhi to deal with cases related to elected representatives.

First Published: Sep 24, 2018 23:10 IST