The Supreme Court today said the voters have a right to know the antecedents of candidates and the Election Commission could be asked to direct political parties to ensure that persons, facing criminal charges, do not contest on their tickets using their poll symbols.
After making these observations, a five-judge constitution bench headed by Chief Justice Dipak Misra reserved the judgement on a clutch of petitions after the parties including the poll panel and the Centre concluded their arguments.
The top court is dealing with the question whether a legislator facing criminal trial can be disqualified at the stage of framing of charges in a case. Presently, lawmakers are barred at the time of conviction.
The bench's observation on the voters' right to know the candidates came in the backdrop of strong opposition from the Centre that the judiciary should not venture into the legislative arena by creating a pre-condition which would adversely affect the right of the candidates to participate in polls.
"The intention of the Lordships is laudable. But the question is whether the court can do it. The answer is 'no'," Attorney General K K Venugopal, representing the Centre, told the bench, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.
He was responding to a suggestion by the bench that persons, facing criminal charges, would be free to contest, but they cannot do so on party ticket using the party election symbol.
"The voters have the right to know the candidates. Actually, a party can allow a person to contest on its ticket. But a person cannot contest on its ticket if he discloses the criminal antecedent," the bench said, adding that this direction may be given by the Election Commission to the political parties.
"They (people facing criminal charges) can contest elections, but they will not contest on the party ticket because he has this kind of stigma," the bench said.
Referring to the concept of presumption of innocence until a person is proven guilty, Mr Venugopal said depriving a person from contesting elections on a party ticket would amount to denial of the right to vote, which also included the right to contest.
He referred to various judgements and said the expression of criminal antecedent was "extremely vague". Moreover, "presumption of innocence is central to our criminal jurisprudence. A person is innocent until proven guilty."
The courts will have to presume innocence in view of the fact that in 70 per cent cases, accused are being acquitted, he said, adding that the high rate of acquittals could be due to deficiencies in the judicial system.
Parliament has made a distinction between an accused and a convict and there has been a provision for disqualification in the Representation of Peoples Act upon conviction of a lawmaker, he said.
The bench took note of Mr Venugopal's submissions and asked his son and senior advocate Krishnan Vengopal, who is representing a PIL petitioner, to address on the objections raised by the government.
"The arguments (of the Centre), if I understood correctly, is two folds. Going back from the conviction stage to charge framing stage (for disqualifying a lawmaker) is against the concept of presumption of innocence," Justice Nariman said.
The judge also posed whether the court would not be "creating another" kind of disqualification by denying a person facing criminal charges to contest on a party ticket and symbol.
"Can we add or attach more conditions," the bench asked, adding whether the court, expressing concern over rising population, can ask the poll panel to ensure that candidates, having more than two children, do not contest panchayat polls.
Senior advocate Meenakshi Arora, appearing for the poll panel, took a view which was apparently opposite to the Centre and said the recommendations for decriminalising politics were made by the Election Commission and the Law Commission way back in 1997 and 1998, but no action was taken on them.
She exhorted the court to issue the direction in the matter besides asking Parliament to make the suitable law.
"We cannot comment on Parliament," the bench said, while reserving the order.
The bench was hearing the PILs filed by NGO 'Public Interest Foundation' and Upadhyay.
Senior advocate Krishnan Venugopal, appearing for BJP leader Ashwini Upadhyay, said the court may ask the poll panel to ask political parties not to allow tainted candidates to contest on their tickets and symbols. "Can the court allow a person, against whom charges have been framed, to become a judge. The answer is 'no'".
The principle that "Caesar's wife must be above suspicion" should be made applicable in case of politicians also, he said.
The bench responded by saying that due to this, it was contemplating that political parties be asked to disclose the antecedents of their members so that the electors "have the right to informed choice".
"We will see as to what we can do on disclosure," the bench said, adding that the parties may be asked to put the information about their members well in advance before the elections.
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