PUBLIC INTEREST FOUNDATION & Ors. v. UNION OF INDIA & Anr.

K. K. Venugopal, Attorney General for India, Maninder Singh, ASG, Ms. Aishwarya Bhati, S. S. Shamshery, AAG, A. Mariarputham, Adv. Gen., Sidharth Luthra, Sr. Adv. (AC), Dinesh Dwivedi, Krishnan Venugopal, Ms. Meenakshi Arora, A. K. Srivastava, Prashanto Chandra Sen, Sr. Advs., Anoopam N. Prasad, Ms. Mehaak Jaggi, Aroon Menon, K. K. Mohan, Ashish Mohan, Krishnam Mishra, Yasharth Kant, Nishant Singh, Shashank Shekhar Singh, Ankit Pandey, Dr. Manish Singhvi (for M/s. AP & J Chambers), Uday Rathore, A.K. Upadhyay (for R. D. Upadhyay) R. Balasubramanian, Rohit Bhatt, Prabhas Bajaj, Ms. Kanika Saran, Ms. Aarti Sharma (for B. Krishna Prasad), Abhay Kumar, Ms. Monisha Handa, Amit Sharma, Baij Nath Patel, Mohit D. Ram, Vishwa Pal Singh, V.N. Raghupathy, V.G. Pragasam, S. Prabu Ramasubramanian, S. Manuraj, Tapesh Kumar Singh, Mohd. Waquas, Aditya Pratap Singh, Shuvodeep Roy, Sayooj Mohandas, Rituraj Biswas, Manoj Gorkela, Sahil (for Ms. Shashi Kiran), Saurabh Mishra, Mrityunjai Singh (for S. Udaya Kumar Sagar), Rajesh Srivastava, Amit Sharma, Sandeep Singh, Ankit Raj, Ms. Nidhi Jaswal, Ms. Indira Bhakar, Ms. Ruchi Kohli, Ravi Prakash Mehrotra, Ranjan Mukherjee, Daniel Stone Lyngdoh, K.V. Kharlyngdoh, Ramesh Babu M. R., Ms. Pragati Neekhra, Parijat Sinha, Nishant Ramakantrao Katneshwarkar, M. Yogesh Kanna, Mrs. Sujatha Isagadhi, Baij Nath Patel, M. R. Shamshad, Kuldip Singh, Krishnayan Sen, Jatinder Kumar Bhatia, Ashutosh Kumar Sharma, Ms. Hemantika Wahi, Guntur Prabhakar, Manish Kumar (for Gopal Singh), K. V. Jagdishavaran, Ms. G. Indira, Dinesh Kumar Garg, D.S. Mahra, Ashok Mathur, Ms. Aruna Mathur, Avneesh Arputham, Ms. Anuradha Arputham, Ms. Geetanjali (for M/s. Arputham Aruna And Co.), Arjun Garg, Ardhendumauli Kumar Prasad, Anuvrat Sharma, Aniruddha P. Mayee, Adarsh Upadhyay, Abhisth Kumar, Abhishek Chaudhary, Pratap Venugopal, Ms. Surekha Ramani, Anuj Sarma, Ms. Niharika (for M/s. K. J. John And Co.), Shibashish Misra, Chandan Kumar Mandal, Ms. Jaspreet Gogia, Ms. Mandakini Singh, Ms. Tulika Prakash, Atul Jha, Sandeep Jha, Dharmendra Kumar Sinha, C. K. Sasi, Ms. Nayantara Roy, Mukesh Kumar Maroria, Avijit Bhattacharjee, Ms. Swarupama Chaturvedi, B. N. Dubey, Ms. Vaishali Verma, Ms. Devika Gulati, Ms. Madhvi Kumar Sawant, Hitesh Kumar Sharma, S. K. Rajora (for Milind Kumar), M/s. Corporate Law Group, M. Shoeb Alam, Ms. Fauzia Shakil, Ujjwal Singh, Mojahid Karim Khan, Ms. K. Enatoli Sema, Amit Kumar Singh, Z. H. Isaac Haiding, Balaji Srinivasan, Anil Shrivastav, Sudarshan Singh Rawat, Suhaan Mukerji, A B C D E F G H 152 SUPREME COURT REPORTS [2018] 10 S.C.R. A B C D E F G H Harsh Hiroo Gursahani, Ms. Kajal Dalal, Abhishek Manchanda, Ms. Astha Sharma (for M/s. PLR Chambers & Co.), Leishangthem Roshmani Kh., Ms. Maibam Babina, Balaji Srinivasan, James P. Thomas, P.S. Sudheer, Rishi Maheshwari, Kaustubh Singh, Gopal Sankaranarayanan, A. K. Upadhyay, Ms. Shrey Patnaik, Ms. Aishwarya Kane, Vikram Gulati (for R. D. Upadhyay), Ashwani Kumar Dubey, Advs. for the appearing parties. Vikram Gulati, Respondent-in-person. The Judgment of the Court was delivered by DIPAK MISRA, CJI. 1. In Yogendra Kumar Jaiswal and others v. State of Bihar and others1, the Court opined:- “Corruption, a ‘noun’ when assumes all the characteristics of a Verb’, becomes self-infective and also develops resistance to antibiotics. In such a situation the disguised protagonist never puts a Hamletian question-”to be or not to be”-but marches ahead with perverted proclivity-sans concern, sans care for collective interest, and irrefragably without conscience. In a way, corruption becomes a national economic terror.”

#2. The constitutional functionaries, who have taken the pledge to uphold the constitutional principles, are charged with the responsibility to ensure that the existing political framework does not get tainted with the evil of corruption. However, despite this heavy mandate prescribed by our Constitution, our Indian democracy, which is the world’s largest democracy, has seen a steady increase in the level of criminalization that has been creeping into the Indian polity. This unsettlingly increasing trend of criminalization of politics, to which our country has been a witness, tends to disrupt the constitutional ethos and strikes at the very root of our democratic form of government by making our citizenry suffer at the hands of those who are nothing but a liability to our country.

#3. The issue that emerges for consideration before this Bench is whether disqualification for membership can be laid down by the Court beyond Article 102(a) to (d) and the law made by the Parliament under Article 102(e). A three-Judge Bench hearing the matter was of the view that this question is required to be addressed by the Constitution Bench under Article 145(3) of the Constitution. Be it stated, a submission was advanced before the three-Judge Bench that the controversy was 1 (2016) 3 SCC 183 PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] 153 covered by the decision in Manoj Narula v. Union of India2. The said submission was not accepted because of the view expressed by Madan B. Lokur, J. in his separate judgment.

#4. In the course of hearing, the contour of the question was expanded with enormous concern to curb criminalization of politics in a democratic body polity. The learned counsel for the petitioners submitted that having regard to the rise of persons with criminal antecedents, the fundamental concept of decriminalization of politics should be viewed from a wider spectrum and this Court, taking into consideration the facet of interpretation, should assume the role of judicial statesmanship. Mr. K.K. Venugopal, learned Attorney General for India and other learned counsel, per contra, would submit that there can be no denial that this Court is the final arbiter of the Constitution and the Constitution empowers this wing of the State to lay down the norms of interpretation and show judicial statesmanship but the said judicial statesmanship should not ignore the fundamental law relating to separation of powers, primary responsibility conferred on the authorities under the respective powers and the fact that no authority should do anything for which the power does not flow from the Constitution. In essence, the submission of Mr. Venugopal is that the Court should not cross the ‘Lakshman Rekha’. Resting on the fulcrum of constitutional foundation and on the fundamental principle that if the Court comes to hold that it cannot legislate but only recommend for bringing in a legislation, as envisaged under Article 102(1)(e) of the Constitution, it would not be appropriate to take recourse to any other method for the simon pure reason that what cannot be done directly, should not be done indirectly. We shall advert to the said submission at a later stage.

#5. Article 102 reads as follows: - “102. Disqualifications for membership - (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament— (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court; 2 (2014) 9 SCC 1 A B C D E F G H 154 SUPREME COURT REPORTS [2018] 10 S.C.R. A (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament. Explanation. —For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State. (2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.”

#6. In this context, we may also refer to Article 191 of the Constitution that deals with disqualifications for membership. It is as follows: - “191. Disqualifications for membership—(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament. Explanation. —For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First B C D E F G H PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] 155 Schedule by reason only that he is a Minister either for the Union or for such State. (2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.” 7. On a perusal of both the Articles, it is clear as crystal that as regards disqualification for being chosen as a member of either House of Parliament and similarly disqualification for being chosen or for being a member of the Legislative Assembly or Legislative Council of a State, the law has to be made by the Parliament. In Lily Thomas v. Union of India and others3, it has been held:- “26. Articles 102(1)(e) and 191(1)(e) of the Constitution, on the other hand, have conferred specific powers on Parliament to make law providing disqualifications for membership of either House of Parliament or Legislative Assembly or Legislative Council of the State other than those specified in sub-clauses (a), (b), (c) and (d) of clause (1) of Articles 102 and 191 of the Constitution. We may note that no power is vested in the State Legislature to make law laying down disqualifications of membership of the Legislative Assembly or Legislative Council of the State and power is vested in Parliament to make law laying down disqualifications also in respect of Members of the Legislative Assembly or Legislative Council of the State. For these reasons, we are of the considered opinion that the legislative power of Parliament to enact any law relating to disqualification for membership of either House of Parliament or Legislative Assembly or Legislative Council of the State can be located only in Articles 102(1)(e) and 191(1)(e) of the Constitution and not in Article 246(1) read with Schedule VII List I Entry 97 and Article 248 of the Constitution. We do not, therefore, accept the contention of Mr. Luthra that the power to enact sub-section (4) of Section 8 of the Act is vested in Parliament under Article 246(1) read with Schedule VII List I Entry 97 and Article 248 of the Constitution, if not in Articles 102(1)(e) and 191(1)(e) of the Constitution.” We have no hesitation in saying that the view expressed above in Lily Thomas (supra) is correct, for the Parliament has the exclusive legislative power to lay down disqualification for membership. 3 (2013) 7 SCC 653 A B C D E F G H 156 SUPREME COURT REPORTS [2018] 10 S.C.R.

#8. In Manoj Narula (supra), the question centered around the interpretation of Article 75 of the Constitution. The core issue pertained to the legality of persons with criminal background and/or charged with offences involving moral turpitude to be appointed as ministers in the Central and the State Governments. The majority referred to the constitutional provisions, namely, Articles 74, 75, 163 and 164, adverted to the doctrine of implied limitation and, in that context, opined thus:- “64. On a studied scrutiny of the ratio of the aforesaid decisions, we are of the convinced opinion that when there is no disqualification for a person against whom charges have been framed in respect of heinous or serious offences or offences relating to corruption to contest the election, by interpretative process, it is difficult to read the prohibition into Article 75(1) or, for that matter, into Article 164(1) to the powers of the Prime Minister or the Chief Minister in such a manner. That would come within the criterion of eligibility and would amount to prescribing an eligibility qualification and adding a disqualification which has not been stipulated in the Constitution. In the absence of any constitutional prohibition or statutory embargo, such disqualification, in our considered opinion, cannot be read into Article 75(1) or Article 164(1) of the Constitution.”

#9. There has been advertence to the principle of constitutional silence or abeyance and, in that context, it has been ruled that it is not possible to accept that while interpreting the words “advice of the Prime Minister”, it can legitimately be inferred that there is a prohibition to think of a person as a minister if charges have been framed against him in respect of heinous and serious offences including corruption cases under the criminal law. Thereafter, the majority addressed the concepts of ‘constitutional morality’, ‘constitutional governance’ and ‘constitutional trust’ and analysed the term ‘advice’ employed under Article 75(1) and stated that formation of an opinion by the Prime Minister in the context of Article 75(1) is expressed by the use of the said word because of the trust reposed in the Prime Minister under the Constitution and the said advice, to put it differently, is a constitutional advice. Reference was made to the debate in the Constituent Assembly which had left it to the wisdom of the Prime Minister because of the intrinsic faith in him. Discussing further, it has been stated: - A B C D E F G H PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] 157 “At the time of framing of the Constitution, the debate pertained to conviction. With the change of time, the entire complexion in the political arena as well as in other areas has changed. This Court, on number of occasions, as pointed out hereinbefore, has taken note of the prevalence and continuous growth of criminalisation in politics and the entrenchment of corruption at many a level. In a democracy, the people never intend to be governed by persons who have criminal antecedents. This is not merely a hope and aspiration of citizenry but the idea is also engrained in apposite executive governance.” And again: - “That the Prime Minister would be giving apposite advice to the President is a legitimate constitutional expectation, for it is a paramount constitutional concern. In a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility as a consequence of which the cherished values of democracy and established norms of good governance get condignly fructified. The Framers of the Constitution left many a thing unwritten by reposing immense trust in the Prime Minister. The scheme of the Constitution suggests that there has to be an emergence of constitutional governance which would gradually grow to give rise to constitutional renaissance.”

#10. Lokur, J. opined: - “132. While it may be necessary, due to the criminalisation of our polity and consequently of our politics, to ensure that certain persons do not become Ministers, this is not possible through guidelines issued by this Court. It is for the electorate to ensure that suitable (not merely eligible) persons are elected to the legislature and it is for the legislature to enact or not enact a more restrictive law.” Proceeding further, the learned Judge stated: - “137. In this respect, the Prime Minister is, of course, answerable to Parliament and is under the gaze of the watchful eye of the people of the country. Despite the fact that certain limitations can be read into the Constitution and have been read in the past, the issue of the appointment of a suitable person as a Minister is not A B C D E F G H 158 SUPREME COURT REPORTS [2018] 10 S.C.R. one which enables this Court to read implied limitations in the Constitution.” He had also, in his opinion, reproduced the words of Dr. B.R. Ambedkar in the Constituent Assembly on 25.11.1949 and the sentiments echoed by Dr. Rajendra Prasad on 26.11.1949. Dr. Ambedkar had said:- “As much defence as could be offered to the Constitution has been offered by my friends Sir Alladi Krishnaswami Ayyar and Mr T.T. Krishnamachari. I shall not therefore enter into the merits of the Constitution. Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave? Will they uphold constitutional methods of achieving their purposes or will they prefer revolutionary methods of achieving them? If they adopt the revolutionary methods, however good the Constitution may be, it requires no prophet to say that it will fail. It is, therefore, futile to pass any judgment upon the Constitution without reference to the part which the people and their parties are likely to play.”

#11. The learned Judge reproduced the words of Dr. Rajendra Prasad, which ring till today, are:- “Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it. It is a trite saying that a country can have only the Government it deserves. Our Constitution has provisions in it which appear to some to be objectionable from one point or another. We must admit that the defects are inherent in the situation in the country and the people at large. If the people who are elected are capable and men of character and integrity, they would be able to make A B C D E F G H PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] 159 the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them.”

#12. Kurian Joseph, J., concurring with the opinion, has stated:- “152. No doubt, it is not for the Court to issue any direction to the Prime Minister or the Chief Minister, as the case may be, as to the manner in which they should exercise their power while selecting the colleagues in the Council of Ministers. That is the constitutional prerogative of those functionaries who are called upon to preserve, protect and defend the Constitution. But it is the prophetic duty of this Court to remind the key duty holders about their role in working the Constitution. Hence, I am of the firm view, that the Prime Minister and the Chief Minister of the State, who themselves have taken oath to bear true faith and allegiance to the Constitution of India and to discharge their duties faithfully and conscientiously, will be well advised to consider avoiding any person in the Council of Ministers, against whom charges have been framed by a criminal court in respect of offences involving moral turpitude and also offences specifically referred to in Chapter III of the Representation of the People Act, 1951.”

#13. The thrust of the matter is whether any disqualification can be read as regards disqualification for membership into the constitutional provisions. Article 102(1) specifies certain grounds and further provides that any disqualification can be added by or under any law made by the Parliament. Article 191 has the same character.

#14. Chapter III of the Representation of the People Act, 1951 (for brevity, ‘the Act’) deals with disqualification for membership of the Parliament and the State Legislatures. Section 7 deals with Definitions. It is as follows:- “7. Definitions.—In this Chapter,— (a) “appropriate Government” means in relation to any disqualification for being chosen as or for being a member of either House of Parliament, the Central Government, and in A B C D E F G H 160 SUPREME COURT REPORTS [2018] 10 S.C.R. relation to any disqualification for being chosen as or for being a member of the Legislative Assembly or Legislative Council of a State, the State Government; (b) “disqualified” means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. under the provisions of this Chapter, and on no other ground.” [Emphasis is ours]

#15. The word ‘disqualified’ clearly states that a person be disqualified from being a member under the provisions of the said Chapter and/or on no other ground. The words ‘no other ground’ are of immense significance. Apart from the grounds mentioned under Article 102(1)(a) to 102(1)(d) and Article 191(1)(a) to 191(1)(d), the other grounds are provided by the Parliament and the Parliament has provided under Sections 8, 8A, 9, 9A, 10 and 10A which read thus: “8. Disqualification on conviction for certain offences.— (1) A person convicted of an offence punishable under— (a) section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 17IE (offence of bribery) or section 17IF (offence of undue influence or personation at an election) or sub- section (1) or sub-section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or sub-section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860); or (b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for the preaching and practice of “untouchability”, and for the enforcement of any disability arising therefrom; or A B C D E F G H PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] 161 (c) section 11 (offence of importing or exporting prohibited goods) of the Customs Act, 1962 (52 of 1962); or A (d) sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or (e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or (f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or (g) section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or (h) section 7 (offence of contravention of the provisions of sections 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or (i) section 125 (offence of promoting enmity between classes in connect ion with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) or clause (a) of sub - section (2) of section 136 (offence of fraudulently defacing or fraudulently destroying any nomination paper) of this Act; or (j) section 6 (offence of conversion of a place or worship) of the Places of Worship (Special Provisions) Act 1991, or (k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971); or (l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or (m) the Prevention of Corruption Act, 1988 (49 of 1988); or (n) the Prevention of Terrorism Act, 2002 (15 of 2002), shall be disqualified, where the convicted person is sentenced to— B C D E F G H 162 SUPREME COURT REPORTS [2018] 10 S.C.R. A (i) only fine, for a period of six years from the date of such conviction; (ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. (2) A person convicted for the contravention of— (a) any law providing for the prevention of hoarding or profiteering; or (b) any law relating to the adulteration of food or drugs; or (c) any provisions of the Dowry Prohibition Act, [1961 (28 of 1961) and sentenced to imprisonment for not less than six months, shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. (3) A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. (4) Notwithstanding anything in sub-section (1), sub-section (2) and sub-section (3) a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court. Explanation.—In this section— (a) “law providing for the prevention of hoarding or profiteering” means any law, or any order, rule or notification having the force of law, providing for— (i) the regulation of production or manufacture of any essential commodity; B C D E F G H PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] 163 (ii) the control of price at which any essential commodity may be brought or sold; A (iii) the regulation of acquisition, possession, storage, transport, distribution, disposal, use or consumption of any essential commodity; (iv) the prohibition of the withholding from sale of any essential commodity ordinarily kept for sale; B (b) “drug” has the meaning assigned to it in the Drugs and Cosmetics Act, 1940 (23 of 1940); (c) “essential commodity” has the meaning assigned to it in the Essential Commodities Act, 1955 (10 of 1955); C (d) “food” has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954 (37 of 1954). 8A. Disqualification on ground of corrupt practices.— (1) The case of every person found guilty of a corrupt practice by an order under section 99 shall be submitted, as soon as may be within a period of three months from the date such order takes effect, by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period: Provided that the period for which any person may be disqualified under this sub-section shall in no case exceed six years from the date on which the order made in relation to him under section 99 takes effect. (2) Any person who stands disqualified under section 8A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), may, if the period of such disqualification has not expired, submit a petition to the President for the removal of such disqualification for the unexpired portion of the said period. (3) Before giving his decision on any question mentioned in sub- section (1) or on any petition submitted under sub-section (2), the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion. D E F G H 164 SUPREME COURT REPORTS [2018] 10 S.C.R. A B C D E F G H

#9. Disqualification for dismissal for corruption or disloyalty.—(1) A person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal. (2) For the purposes of sub-section (1), a certificate issued by the Election Commission to the effect that a person having held office under the Government of India or under the Government of a State, has or has not been dismissed for corruption or for disloyalty to the State shall be conclusive proof of that fact: Provided that no certificate to the effect that a person has been dismissed for corruption or for disloyalty to the State shall be issued unless an opportunity of being heard has been given to the said person. 9A. Disqualification for Government contracts, etc.— A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government. Explanation.—For the purposes of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part. 10. Disqualification for office under Government company.— A person shall be disqualified if, and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than twenty-five per cent share. 10A. Disqualification for failure to lodge account of election expenses.—If the Election Commission is satisfied that a person— (a) has failed to lodge an account of election expenses, within the time and in the manner required by or under this Act; and (b) has no good reason or justification for the failure, PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] 165 the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.”

#16. From the aforesaid, it is decipherable that Section 8 deals with disqualification on conviction for certain offences. Section 8A provides for disqualification on ground of corrupt practices. Section 9 provides for the disqualification for dismissal for corruption or disloyalty. Section 9A deals with the situation where there is subsisting contract between the person and the appropriate Government. Section 10 lays down disqualification for office under Government company and Section 10A deals with disqualification for failure to lodge account of election expenses. Apart from these disqualifications, there are no other disqualifications and, as is noticeable, there can be no other ground. Thus, disqualifications are provided on certain and specific grounds by the legislature. In such a state, the legislature is absolutely specific.

#17. The submission of the learned counsel appearing for the petitioners is that the law breakers should not become law makers and there cannot be a paradise for people with criminal antecedents in the Parliament or the State Legislatures. Reference has been made to the recommendations of the Law Commission which has seriously commented on the prevalent political atmosphere being dominated by people with criminal records.

#18. It has also been highlighted by the petitioners that criminalization in politics is on the rise and the same is a documented fact and recorded by various committee reports. The petitioners also highlight that the doctrine of fiduciary relationship has been extended to several constitutional posts and that if members of Public Service Commission, Chief Vigilance Commissioner and the Chief Secretary can undergo the test of integrity check and if “framing of charge” has been recognized as a disqualification for such posts, then there is no reason to not extend the said test of “framing of charge” to the posts of Members of Parliament and State Legislatures as well. To further accentuate this stand, the petitioners point out that such persons hold the posts in constitutional trust and can be made subject to rigours and fetters as the right to contest elections is not a fundamental right but a statutory right or a right which must confirm to the constitutional ethos and principles. A B C D E F G H 166 SUPREME COURT REPORTS [2018] 10 S.C.R.

#19. The petitioners are attuned to the principle of “presumption of innocence” under our criminal law. But they are of the opinion that the said principle is confined to criminal law and that any proceeding prior to conviction, such as framing of charge for instance, can become the basis to entail civil liability of penalty. The petitioners, therefore, take the stand that debarring a person facing charges of serious nature from contesting an election does not lead to creation of an offence and it is merely a restriction which is distinctively civil in nature.

#20. The intervenor organization has also made submissions on a similar note as that of the petitioners to the effect that persons charged for an offence punishable with imprisonment for five years or more are liable to be declared as disqualified for being elected or for being a Member of the Parliament as a person chargesheeted in a crime involving moral turpitude is undesirable for a job under the government and it is rather incongruous that such a person can become a law maker who then control civil servants and other government machinery and, thus, treating legislators on a different footing amounts to a violation of Article 14 of the Constitution.

#21. Mr. Venugopal, learned Attorney General for India, refuting the aforesaid submission, would urge that the Parliament may make law on the basis of the recommendations of the Law Commission but this Court, as a settled principle of law, should not issue a mandamus to the Parliament to pass a legislation and can only recommend. That apart, submits Mr. Venugopal, that when there are specific constitutional provisions and the statutory law, the Court should leave it to the Parliament.

#22. It is well settled in law that the Court cannot legislate. Emphasis is laid on the issuance of guidelines and directions for rigorous implementation. With immense anxiety, it is canvassed that when a perilous condition emerges, the treatment has to be aggressive. The petitioners have suggested another path. But, as far as adding a disqualification is concerned, the constitutional provision states the disqualification, confers the power on the legislature, which has, in turn, legislated in the imperative.

#23. Thus, the prescription as regards disqualification is complete is in view of the language employed in Section 7(b) read with Sections 8 to 10A of the Act. It is clear as noon day and there is no ambiguity. The legislature has very clearly enumerated the grounds for disqualification A B C D E F G H PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] 167 and the language of the said provision leaves no room for any new ground to be added or introduced. A Criminalization of politics

#24. Though we have analyzed the aforesaid aspect, yet we cannot close the issue, for the learned counsel for the petitioners and some of the intervenors have argued with immense anguish that there is a need for rectification of the system failing which there will be progressive malady in constitutional governance and gradually, the governance would be controlled by criminals. The submission has been advanced with sanguine sincerity and genuine agony. There have been suggestions as well as arguments with the purpose of saving the sanctity of democracy and to advance its enduring continuance. To appreciate the same, we will focus on the criminalization of politics.

#25. In the beginning of the era of constitutional democracy, serious concerns were expressed with regard to the people who are going to be elected. Dr Rajendra Prasad on the Floor of the Constituent Assembly, before putting the motion for passing of the Constitution, had observed:- “...It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas...We can only hope that the country will throw up such men in abundance.”4

#26. An essential component of a constitutional democracy is its ability to give and secure for its citizenry a representative form of government, elected freely and fairly, and comprising of a polity whose members are men and women of high integrity and morality. This could be said to be the hallmark of any free and fair democracy.

#27. The Goswami Committee on Electoral Reforms (1990) had addressed the need to curb the growing criminal forces in politics in order to protect the democratic foundation of our country. The Committee stated that:- “The role of money and muscle powers at elections deflecting seriously the well accepted democratic values and ethos and corrupting the process; rapid criminalisation of politics greatly encouraging evils of booth capturing, rigging, violence etc.; misuse 4Dr Rajendra Prasad, President, Constituent Assembly of India, 26th November, 1949 B C D E F G H 168 SUPREME COURT REPORTS [2018] 10 S.C.R. of official machinery, i.e. official media and ministerial; increasing menace of participation of non-serious candidates; form the core of our electoral problems. Urgent corrective measures are the need of the hour lest the system itself should collapse.”

#28. Criminalization of politics was never an unknown phenomenon in the Indian political system, but its presence was seemingly felt in its strongest form during the 1993 Mumbai bomb blasts which was the result of a collaboration of a diffused network of criminal gangs, police and customs officials and their political patrons. The tremors of the said attacks shook the entire Nation and as a result of the outcry, a Commission was constituted to study the problem of criminalization of politics and the nexus among criminals, politicians and bureaucrats in India. The report of the Committee, Vohra (Committee) Report, submitted by Union Home Secretary, N.N. Vohra, in October 1993, referred to several observations made by official agencies, including the CBI, IB, R&AW, who unanimously expressed their opinion on the criminal network which was virtually running a parallel government. The Committee also took note of the criminal gangs who carried out their activities under the aegis of various political parties and government functionaries. The Committee further expressed great concern regarding the fact that over the past few years, several criminals had been elected to local bodies, State Assemblies and the Parliament. The Report observed:- “In the bigger cities, the main source of income relates to real estate - forcibly occupying lands/buildings, procuring such properties at cheap rates by forcing out the existing occupants/ tenants etc. Over time, the money power thus acquired is used for building up contacts with bureaucrats and politicians and expansion of activities with impunity. The money power is used to develop a network of muscle-power which is also used by the politicians during elections.” And again:- “The nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country. The existing criminal justice system, which was essentially designed to deal with the individual offences /crimes, is unable to deal with the activities of the Mafia; the provisions of law in regard economic offences are weak” A B C D E F G H PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] 169

#29. The Election Commission has also remained alive to the issue of criminalization of politics since 1998. While proposing reforms to tackle the menace of criminalization of politics, the Former Chief Election Commissioner, Mr. T.S. Krishna Murthy, highlighted the said issue by writing thus:- “There have been several instances of persons charged with serious and heinous crimes like murder, rape, dacoity, etc. contesting election, pending their trial, and even getting elected in a large number of cases. This leads to a very undesirable and embarrassing situation of lawbreakers becoming lawmakers and moving around under police protection. The Commission had proposed that the law should be amended to provide that any person for five years or more should be disqualified from contesting election even when trial is pending, provided charges have been framed against him by the competent court. Such a step would go a long way in cleansing the political establishment from the influence of criminal elements and protecting the sanctity of the Legislative Houses”5 30. In the case of Dinesh Trivedi, M.P. and others v. Union of India and others6 the court lamented the faults and imperfections which have impeded the country in reaching the expectations which heralded its conception. While identifying one of the primary causes, the Court referred to the report of N.N. Vohra Committee that was submitted on 5.10.1993. The Court noted that the growth and spread of crime syndicates in Indian society has been pervasive and the criminal elements have developed an extensive network of contacts at many a sphere. The Court, further referring to the report, found that the Report reveals several alarming and deeply disturbing trends that are prevalent in our present society. The Court also noticed that the nexus between politicians, bureaucrats and criminal elements in our society has been on the rise, the adverse effects of which are increasingly being felt on various aspects of social life in India.

#31. In Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and others7, the Court, in the context of the provisions made in the election law, observed that they have been made to exclude persons with criminal background, of the kind specified therein, from the