NEW DELHI The Election Commission and the government of India were at loggerheads in the Supreme Court on Tuesday on the aspect of judicial intervention to ensure decriminalisation of politics.
While the poll panel exhorted a five-judge constitution bench headed by Chief Justice Dipak Misra to issue directions on issues such as disqualification of lawmakers even before conviction, the Centre, through Attorney General K K Venugopal, asked the court to keep off.
Senior advocate Meenakshi Arora, appearing for the poll panel, referred to the reports of the Election Commission and the Law Commission on decriminalisation of politics and said these were out way back in 1998 and 1999 respectively, but no action was taken by the government.
“It is very clear that political parties are fielding candidates with criminal antecedents and the court should pass directions,” the lawyer said, adding, “if Parliament is stonewalling this, then the court has to step in”.
The poll panel, in its report, had referred to section 8 of the Representation of the People Act and said it dealt with disqualification of lawmakers on conviction for certain offences.
“The Election Commission proposed in its set of proposals of 1998 and 2004 that Section 8 of the Representation of the People Act should be amended to disqualify those persons from contesting election who are accused of an offence punishable by an imprisonment of 5 years or more even when trial is pending, given that the Court has framed charges against the person,” the report of the poll panel had said.
It had said some safety measures may be devised to prevent misuse of the provision by the ruling party and suggested “a compromise where only cases led prior to six months before an election would lead to disqualification of a candidate.”
The Law Commission, in its report, had suggested various measures including expeditious trials involving a sitting MP and MLA on a day-to-day basis with an outer limit of completing it within one year.
Arora exhorted the court to issue direction in the matter besides asking Parliament to make the suitable law.
“We cannot comment on Parliament,” the bench said while reserving the verdict on the PILs filed by NGO ‘Public Interest Foundation’ and BJP leader Ashwini Upadhyay.
On the other hand, Venugopal opposed the observation of the bench that the poll panel can be asked to direct political parties to ensure that tainted persons do not contest elections on their ticket and symbols.
He said the judiciary should not venture into the legislative arena by creating a pre-condition which would adversely affect the right to contest of the candidates.
“The intention of the Lordships is laudable. But the question is whether the court can do it. The answer is ‘no’,” the top law officer said.
He was responding to the suggestion of the bench that the persons, facing criminal charges, would be free to contest, but they cannot do so on party ticket using party’s election symbol.
The top court is dealing with the question whether a legislator facing criminal trial can be disqualified at the stage framing of charges in a case. Presently, lawmakers are barred at the time of conviction.
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