SC wants law against criminals entering legislatures, orders parties to give wide publicity

New Delhi, Sep. 25 (IANS): The Supreme Court on Tuesday declined to disqualify candidates against whom cognisance of chargesheet have been taken by courts, saying no further disqualification under the law could be added but urged Parliament to enact a law to address the malaise of criminals entering legislatures.
At the same time, the apex Court directed political parties to post on their websites and widely publicise in the media, both print and electronic, full details of the criminal charges against the candidates they would be fielding in elections.

Pronouncing the judgment, a five-judge Constitution Bench headed by Chief Justice Dipak Misra also said that the law on criminals entering politics should also address fake cases being instituted against political opponents.

The court said that the time had come for Parliament to enact a law to “cleanse the polluted stream of politics” by prohibiting people with criminal antecedents in the political system. “The nation eagerly waits for such legislation … and the sooner the better, before it becomes fatal to democracy,” the court added.

The court directed that the candidate as well as the concerned political party “shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media”, said Chief Justice Misra, speaking for the five-judge Constitution Bench.

“When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers,” said the bench, also comprising Justice Rohinton Fali Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra.

The Constitution Bench said the society had a “legitimate expectation to be governed by proper constitutional governance. The country feels agonized when money and muscle power become the supreme power”, it said.

The apex court called for “substantial efforts” to prohibit people with criminal antecedents so that they do not even “conceive of the idea of entering into politics” and should be “kept at bay”.

It said: “We are sure, the law making wing of the democracy of this country will take it upon itself to cure the malignancy. We say so as such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it.

“It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation,” the court urged Parliament Under the criminal law, an accused person is presumed to be innocent till convicted by the court.

Holding that “informed choice” is the cornerstone to have a “pure and strong democracy”, the court said: “The complete information about the criminal antecedents of the candidates forms the bedrock of wise decision-making and informed choice by the citizens.”

Issuing a slew of directions to the political parties and prospective candidates, the court directed that the candidate contesting elections “shall state, in bold letters”, about the criminal cases pending against him/her in the form provided by the Election Commission at the time of filing nomination papers.

The court directed that a candidate contesting election on the ticket of a political party would inform the party about the criminal cases pending against him/her and that party “shall be obligated to put up on its website” information on criminal antecedents of the candidate fielded by it.

Legislators cannot be debarred from practising as advocates
The Supreme Court on Tuesday said that lawyers-turned-lawmakers, both in Parliament and the state legislatures cannot be barred from practising before the courts during their term as lawmakers.

“To sum up, we hold that the provisions of the Advocates Act of 1961 and the Bar Council of India Rules framed thereunder do not place any restrictions on the legislators to practise as advocates during the relevant period,” said the bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud in their judgment.

The court said this while addressing a limited question whether legislators can be debarred from practising as advocates during the period when they continue to be the members of Parliament or a state Assembly/Council.

The top court judgment refusing to restrict lawmakers from practising as advocates before the courts has come as boost to senior lawyers Kapil Sibal, Abhishek Manu Singhvi, P. Chidambaram, K.T.S. Tulsi, Pinaki Misra, Meenakshi Lekhi and K. Parasaran, who are among the parliamentarians practising as advocates.

While rejecting the plea to bar the lawyer-cum-lawmakers from practising law before the courts, the top court also said that the conferment of power on the members of Parliament to move an impeachment motion against the judge(s) of the constitutional courts does not per se result in conflict of interest or a case of impacting constitutional morality or for that matter institutional integrity.

The court’s verdict came on a plea filed by advocate and Bharatiya Janata Party (BJP) leader Ashwini Kumar Upadhyay, contending that MPs/MLAs practising as advocates pose a conflict of interest under the provisions of the Advocates Act, 1961, and the Bar Council of India Rules.

The plea had sought a ban on legislators practising as advocates for the period that they occupy such positions as lawmakers, contending that the dual role would also amount to professional misconduct when MPs and MLAs, who get salary and other benefits from public funds, appear against the government as lawyers.

The court said that merely because the advocate concerned is an elected people’s representative, it does not follow that he/she has indulged in professional misconduct.