Paragraph numbers below are the court’s original numbering, recovered from the source text.
64. In Mohinder Singh Gill (supra), Krishna Iyer J. opined:- “12. The scheme is this. The President of India (Under Section 14) ignites the general elections across the nation by calling upon the People, divided into several constituencies and registered in the electoral rolls, to choose their representatives to the Lok Sabha. The constitutionally appointed authority, the Election Commission, takes over the whole conduct and supervision of the mammoth enterprise involving a plethora of details and variety of activities, and starts off with the notification of the time table for the several stages of the election (Section 30).’ The assembly line operations then begin. An administrative machinery and technology to execute these enormous and diverse jobs is fabricated by the Act, creating officers, powers and duties, delegation of functions and location of polling stations. The precise exercise following upon the calendar for the poll, commencing from presentation of nomination papers, polling drill and telling of votes, culminating in the declaration and report of results are covered by specific prescriptions in the Act and the rules. The secrecy of the ballot, the authenticity of the voting paper and its’ later identifiability with reference to particular polling stations, have been thoughtfully provided for. Myriad other matters necessary for smooth elections have been taken care of by several provisions of the Act.”
65. Further, the Court observed in Mohinder Singh Gill (supra) that a re-poll for a whole constituency under compulsion of circumstances may be directed for the conduct of elections and can be saved by Article 324 provided it is bona fide and necessary for the vindication of the free verdict of the electorate and the abandonment of the previous poll was because it failed to achieve that goal. The Court ruled that even Article 324 does not exalt the Commission into a law unto itself. Broad authority does not bar scrutiny into specific validity of a particular order. Having said that, the Court passed the following directions:- “2(a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This, responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances. (b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission shall act in conformity with, not in violation of such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from pushing forward a free and fair election with expedition- Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order, viz., elections. Fairness does import an obligation to see that no wrong-doer candidate benefits by his own wrong. To put the matter beyond doubt natural justice enlivens and applies to the specific case of order for total repoll although not in full panoply but inflexible practicability. Whether it has been complied with is left open for the Tribunal adjudication.”
66. In the concurring judgment in Mohinder Gill (supra), Goswami, J., with regard to Article 324, observed thus in para 113:- “…Since the conduct of all elections to the various legislative bodies and to the offices of the President and the Vice-President is vested under Article 324(1) in the Election Commission, the framers of the Constitution took care to leaving scope for exercise of residuary power by the Commission, in its own right, as a creature of the PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] Constitution, in the infinite variety of situations that may emerge from time to time in such a large democracy as ours. Every contingency could not be foreseen, or anticipated with precision. That is why there is no hedging in Article 324. The Commission may be required to cope with some situation which may not be provided for in the enacted laws and the rules…”
67. In A.C. Jose v. Sivan Pillai and others16, this Court held that:- “It is true that Article 324 does authorise the Commission to exercise powers of superintendence, direction and control of preparation of electoral rolls and the conduct of elections to Parliament and State legislatures but then the Article has to be read harmoniously with the Articles that follow and the powers that are given to the Legislatures under entry No. 72 in the Union List and entry No. 37 of the State List of the Seventh Schedule to the Constitution. The Commission in the garb of passing orders for regulating the conduct of elections cannot take upon itself a purely legislative activity which has been reserved under the scheme of the Constitution only to Parliament and the State legislatures. By no standards can it be said that the Commission is a third Chamber in the legislative be process within the scheme of the Constitution. merely being a creature of the Constitution will not give it plenary and absolute power to legislate as it likes without reference to the law enacted by the legislatures.” [Emphasis added]
68. In Association for Democratic Reforms (supra), the Court opined:- “Under Article 324, the superintendence, direction and control of the ‘conduct of all elections’ to Parliament and to the Legislature of every State vests in Election Commission. The phrase ‘conduct of elections’ is held to be of wide amplitude which would include power to make all necessary provisions for conducting free and fair elections.” 16 AIR 1984 SC 921
69. In Kuldip Nayar v. Union of India and others17, this Court has observed:- “181. It has been argued by the petitioners that the Election Commission of India, which under the Constitution has been given the plenary powers to supervise the elections freely and fairly, had opposed the impugned amendment of changing the secret ballot system. Its view has, therefore, to be given proper weightage. In this context, we would say that where the law on the subject is silent, Article 324 is a reservoir of power for the Election Commission to act for the avowed purpose of pursuing the goal of a free and fair election, and in this view it also assumes the role of an adviser. But the power to make law under Article 327 vests in the Parliament, which is supreme and so, not bound by such advice. We would reject the argument by referring to what this Court has already said in Mohinder Singh Gill (supra) and what bears reiteration here is that the limitations on the exercise of “plenary character” of the Election Commission include one to the effect that “when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions.”
70. The aforesaid decisions are to be appositely appreciated. There is no denial of the fact that the Election Commission has the plenary power and its view has to be given weightage. That apart, it has power to supervise the conduct of free and fair election. However, the said power has its limitations. The Election Commission has to act in conformity with the law made by the Parliament and it cannot transgress the same.
71. It is submitted by Mr. Krishnan Venugopal, learned senior counsel appearing for the petitioner in Writ Petition (Civil) No. 800 of 2015 that traditionally, the Court would not breach the principle of separation of powers, however, this cannot prevent this Court from passing necessary directions to address the systemic growth of the problem of criminalization of politics and the political system without breaching the principle of separation of powers and this Court, in order to discharge its constitutional function, can give directions to the Election 17(2006) 7 SCC 1 PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] Commission to exercise its powers under Article 324 of the Constitution to redress violation of the fundamental rights and to protect the purity of the electoral process. Mr. Venugopal contends that in the past too, this Court, on several instances, had given directions to the Election Commission. He has also pointed out that the reason behind the urgent need for this Court to intervene to tackle the growing menace of criminalization of politics is that several law commission reports and other papers have unanimously concluded that there is widespread criminalization of politics and this Court has also taken cognizance of this fact in several of its judgments, but despite the said reports and the efforts of this Court, neither the Parliament nor the Government of India has taken serious actions to tackle the problem.
72. Further, Mr. Venugopal has drawn the attention of this Court to the findings in the Report titled ‘Milan Vaishnav, When crime pays: Money and Muscle in Indian Politics”18 to highlight that there is an alarming increase in the number of candidates with criminal antecedents and their chances of winning have actually increased steadily over the years and there is ample evidence in the form of statistical data which reinstates this fact.
73. On that basis, it is contended that the empirical evidence supports the view that the current legislative framework permits criminals to enter the electoral arena and become legislators which interferes with the purity and integrity of the electoral process, violates the right to choose freely the candidate of the voter’s choice thereby violating the freedom of expression of a voter and amounts to a subversion of democracy which is a part of the basic structure and is, thus, antithetical to the Rule of Law.
74. Mr. Venugopal’s submission has been supported by Mr. Dinesh Dwivedi, learned senior counsel appearing for the petitioners in Writ Petition (Civil) No. 536 of 2011 and Mr. Sidharth Luthra, learned Amicus Curiae, to the effect that if the Court does not intend to incorporate a prior stage in criminal trial, it can definitely direct the Election Commission to save democracy by including some conditions in the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as ‘the Symbols Order’). The submission is that a candidate against whom criminal charges have been framed in respect of heinous and grievous offences should not be allowed to contest with the symbol of the party. 18 Milan Vaishnav, When crime pays: Money and Muscle in Indian Politics, Yale Press University, New Haven (2017) It is urged that the direction would not amount to adding a disqualification beyond what has been provided by the legislature but would only deprive a candidate from contesting with the symbol of the political party.
75. The aforesaid submission is seriously opposed by the learned Attorney General. It is the case of the first respondent that Section 29A of the Act does not permit the Election Commission of India to deregister a political party. To advance this view, the Union of India has relied upon the decision of this Court in Indian National Congress (I) v. Institute of Social Welfare and others19.
76. It is also the asseveration of the first respondent that the power of this Court to issue directions to the Election Commission of India have been elaborately dealt with in Association for Democratic Reforms (supra) wherein this Court held that Article 32 of the Constitution of India only operates in areas left unoccupied by legislation and in the case at hand, the Constitution of India and the Representation of the People Act, 1951 already contain provisions for disqualification of Members of Parliament. Therefore, directing the Election Commission to (a) deregister a political party, (b) refuse renewal of a political party or (c) to not register a political party if they associate themselves with persons who are merely charged with offences would amount to adopting a colourable route, that is, doing indirectly what is clearly prohibited under the Constitution of India and the Representation of the People Act.
77. It is also contended on behalf of the Union of India that adding a condition to the recognition of a political party under the Symbols Order would also result in doing indirectly what is clearly prohibited. To buttress this stand, the Union of India has cited the decisions in Jagir Singh v. Ranbir Singh and another20 and M.C. Mehta v. Kamal Nath and others21.
78. Further, it has been submitted by the first respondent that Section 29A(5) of the Act is a complete, comprehensive and unambiguous provision of law and any direction to the Election Commission of India to deregister or refuse registration to political parties who associate themselves with persons merely charged with offences would result in violation of the doctrine of separation of powers as that would tantamount to making addition to a statute which is clear and unambiguous. 19 (2002) 5 SCC 685 20 (1979) 1 SCC 560 21 (2000) 6 SCC 213 PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI]
79. As per the first respondent, ‘pure law’ in the nature of constitutional provisions and the provisions of the Act cannot be substituted or replaced by judge made law. To advance the said stand, the first respondent has cited the judgments of this Court in State of Himachal Pradesh and others v. Satpal Saini22 and Kesavananda Bharati v. State of Kerala and another23 wherein the doctrine of separation of powers was concretised by this Court. It is the contention of the first respondent that answering the present reference in the affirmative would result in violation of the doctrine of separation of powers.
80. The first respondent has also contended that the presumption of innocence until proven guilty is one of the hallmarks of Indian democracy and the said presumption attaches to every person who has been charged of any offence and it continues until the person has been convicted after a full-fledged trial where evidence is led. Penal consequences cannot ensue merely on the basis of charge.
81. Drawing support from the judgment of this Court in Amit Kapoor v. Ramesh Chander and another24, it is averred by the first respondent that the standard of charging a person is always less than a prima facie case, i.e., a person can be charged if the facts emerging from the record disclose the existence of all the ingredients constituting the alleged offence and, therefore, the consequences of holding that a person who is merely charged is not entitled to membership of a political party would be grave as it would have the effect of taking away a very valuable advantage of the symbol of the political party.
82. It has been further contended by the first respondent that every citizen has a right under Article 19(l)(c) to form associations which includes the right to be associated with persons who are otherwise qualified to be Members of Parliament under the Constitution of India and under the law made by the Parliament. Further, this right can only be restricted by law made by the Parliament and any direction issued by the Election Commission of India under Article 324 is not law for the purpose of Article 19(l)(c).
83. The first respondent also submits that the Act already contains detailed provisions for disclosure of information by a candidate in the 22 (2017) 11 SCC 42 23 (1973) 4 SCC 225 24 (2012) 9 SCC 460 form of Section 33A which requires every candidate to disclose information pertaining to offences that he or she is accused of. This information is put on the website of the Election Commission of India and requiring every member of a political party to disclose such information irrespective of whether he/she is contesting election will have serious impact on the privacy of the said member.
84. Relying upon the decisions in Union of India and another v. Deoki Nandan Aggarwal25 and Supreme Court Bar Association v. Union of India and another26, the first respondent has submitted that Article 142 of the Constitution of India does not empower this Court to add words to a statute or read words into it which are not there and Article 142 does not confer the power upon this Court to make law.
85. As regards the issue that there is a vacuum which necessitates interference of this Court, the first respondent has contended that this argument is untenable as the provisions of the Constitution and the Act are clear and unambiguous and, therefore, answering the question referred to in the affirmative would be in the teeth of the doctrine of separation of powers and would be contrary to the provisions of the Constitution and to the law enacted by the Parliament. Analysis of the Election Symbols Order
86. In the adverting situation and keeping in view the submissions on the behalf of the petitioners, it is pertinent to scan and analyse the relevant provisions of the Symbols Order which deals with allotment, classification, choice of symbols by candidates and restriction on the allotment of symbols. Clause (4) of the Symbols Order reads:- “4. Allotment of symbols – In every contested election a symbol shall be allotted to a contesting candidate in accordance with the provisions of this Order and different symbols shall be allotted to different contesting candidates at an election in the same constituency.”
87. Clause (4) of the Symbols Order makes it clear that in each and every contested election, a symbol, to each and every contesting candidate, shall be allotted in accordance with the provisions of this Symbols Order and in case of an election in the same constituency, 25(1992) Supp (1) 323 26(1998) 4 SCC 409 PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] different symbols shall be allotted to different contesting candidates. Now, we must also dissect clause (5) of the Symbols Order which reads:- “5. Classification of symbols – (1) For the purpose of this Order symbols are either reserved or free. (2) Save as otherwise provided in this Order, a reserved symbol is a symbol which is reserved for a recognised political party for exclusive allotment to contesting candidates set up by that party. (3) A free symbol is a symbol other than a reserved symbol.”
88. Sub-clause (1) of clause (5) of the Symbols Order, a priori, segregates the symbols for the purposes of this Symbols Order into two simon pure categories, i.e., ‘Reserved’ or ‘Free’. Therefore, a symbol under the Symbols Order can either be reserved or it can be free. Before decoding sub-clause (2) of clause (5), we may first decipher sub-clause (3) which gives a negative definition to a free symbol. As per sub-clause (3) of clause (5), a symbol is free if is not reserved under the Symbols Order. Sub-clause (2) of clause (5) which defines a reserved symbol stipulates that except as otherwise provided in the Symbols Order, a reserved symbol is one which is reserved for a recognised political party for exclusive allotment to the contesting candidates set up by such political party.
89. Thereafter, clause (6) classifies political parties into state parties and national parties. Clauses (6A) and (6B) stipulate the conditions for recognition of state and national parties, respectively. Under clause (17) of the Symbols Order the Election Commission publishes, by notification in the Official Gazette of India, the national parties, State parties and the symbols reserved for them. Clause (17) reads as under:- “17. Notification containing lists of political parties and symbols – (1) The Commission shall by one or more notifications in the Gazette of India publish lists specifying- (a) the National Parties and the symbols respectively reserved for them; (b) the State Parties, the State or States in which they are State Parties and the symbols respectively reserved for them in such State or States; x x x”
90. Another important provision in the matter of choice of symbols by candidates and restriction on the allotment thereof is clause (8) of the Symbols Order which reads thus:- “8. Choice of symbols by candidates of National and State Parties and allotment thereof – (1) A candidate set up by a National Party at any election in any constituency in India shall choose, and shall be allotted, the symbol reserved for that party and no other symbol. (2) A candidate set up by a State Party at an election in any constituency in a State in which such party is a State Party, shall choose, and shall be allotted the symbol reserved for that Party in that State and no other symbol. (3) A reserved symbol shall not be chosen by, or allotted to, any candidate in any constituency other than a candidate set up by a National Party for whom such symbol has been reserved or a candidate set up by a State Party for whom such symbol has been reserved in the State in which it is a State Party even if no candidate has been set up by such National or State Party in that constituency.”
91. For exegesis of clause (8) of the Symbols Order, it is apt that we refer to clause (13) which provides as to when a candidate is deemed to be set up by a political party. Clause (13) reads as under:- “13. When a candidate shall be deemed to be set up by a political party.¯For the purposes of an election from any parliamentary or assembly constituency to which this Order applies, a candidate shall be deemed to be set up by a political party in any such parliamentary or assembly constituency, if, and only if,- (a) the candidate has made the prescribed declaration to this effect in his nomination paper; (aa) the candidate is a member of that political party and his name is borne on the rolls of members of the party; (b) a notice by the political party in writing, in Form B, to that effect has, not later than 3 p.m. on the last date for making nominations, been delivered to the Returning Officer of the constituency; PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] (c) the said notice in Form B is signed by the President, the Secretary or any other office bearer of the party, and the President, Secretary or such other office bearer sending the notice has been authorised by the party to send such notice; (d) the name and specimen signature of such authorised person are communicated by the party, in Form A, to the Returning Officer of the constituency and to the Chief Electoral Officer of the State or Union Territory concerned, not later than 3 p.m. on the last date for making nominations; and (e) Forms A and B are signed, in ink only, by the said office bearer or person authorised by the party: Provided that no facsimile signature or signature by means of rubber stamp, etc., of any such office bearer or authorised person shall be accepted and no form transmitted by fax shall be accepted.”
92. Clause (13) lays down an elaborate procedure in order for a candidate to be set up by a political party in both the elections to the Parliament as well as the Assembly constituencies.
93. Coming back to clause (8) of the Symbols Order, as per sub- clause (1) of clause (8), a candidate set up by a national party in terms of clause (13) in any constituency in India shall choose the symbol reserved for such national party and no other symbol. By using the word ‘shall’, sub-clause (1) of clause (8) makes it mandatory for a candidate set up by a national party to choose the symbol reserved for such national party. Further, sub-clause (1), again on a second instance, by using the word ‘shall’ in the context of the Election Commission, makes it obligatory for the Election Commission to allot to a candidate set up by a national party the symbol reserved for such national party. Therefore, sub-clause (1) by casting this duty on the Election Commission, as a natural corollary, gives birth to a right to the candidate set up by a national party to contest elections under the symbol reserved for such national party.
94. That apart, the first part of sub-clause (3) of clause (8) stipulates that a symbol reserved, in terms of clause (5) read with clause (17) of the Symbols Order, shall neither be chosen by nor allotted by the Election Commission to any candidate in any constituency other than a candidate set up by a national party.
95. Sub-clause (2) of clause (8) and the latter part of clause (3) are corresponding provisions for choice of symbol by candidates of State parties which, for the sake of brevity, we need not delve into. Coming to the last clause of the Symbols Order, clause (18) reads thus:- “18. Power of Commission to issue instructions and directions:—The Commission may issue instructions and directions- x x x x x x (c) in relation to any matter with respect to the reservation and allotment of symbols and recognition of political parties, for which this Order makes no provision or makes insufficient provision, and provision is in the opinion of the Commission necessary for the smooth and orderly conduct of elections.”
96. In terms of sub-clause (c) of clause 18, the power to issue instructions and directions, in matters relating to reservation and allotment of symbols, has been reserved by the Election Commission itself.
97. What comes to the fore is that when a candidate has been set up in an election by a particular political party, then such a candidate has a right under sub-clause (3) of clause (8) to choose the symbol reserved for the respective political party by which he/she has been set up. An analogous duty has also been placed upon the Election Commission to allot to such a candidate the symbol reserved for the political party by which he/she has been set up and to no other candidate.
98. Assuming a hypothetical situation, where a particular symbol is reserved for a particular political party and such a political party sets up a candidate in elections against whom charges have been framed for heinous and/or grievous offences and if we were to accept the alternative proposal put forth by the petitioners to direct the Election Commission that such a candidate cannot be allowed to contest with the reserved symbol for the political party, it would tantamount to adding a new ground for disqualification which is beyond the pale of the judicial arm of the State. Any attempt to the contrary will be a colourable exercise of judicial power for it is axiomatic that “what cannot be done directly ought not to be done indirectly” which is a well-accepted principle in the Indian judiciary. PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI]
99. Here we may profit to refer to some authorities wherein the said principle has been discussed elaborately.
100. In Allied Motors Limited v. Bharat Petroleum Corporation Limited27, reference was made to the celebrated judgment of the Privy Council in Nazir Ahmad v. King Emperor28 wherein the principle has been enunciated “that where a power is given to do a certain thing in a certain way, the thing must be done in that way, or not at all.” Other methods of performance are necessarily forbidden. This principle has been reiterated and expanded by the Supreme Court in several decisions.
101. In D.R. Venkatachalam and others v. Dy. Transport Commissioner and others29, it was observed:- “In ultimate analysis, the rule of construction relied upon by Mr. Chitaley to make the last-mentioned submission is: “Expression unius est exclusio alterius.” This maxim, which has been described as “a valuable servant but a dangerous master” (per Lopes J., in Court of Appeal in Colquhoun v. Brooks, (1888) 21 QBD 52 finds expression also in a rule formulated in Taylor v. Taylor (1875) 1 Ch D 426 applied by the Privy Council in Nazir Ahmad v. King Emperor which has been repeatedly adopted by this Court. That rule says that an expressly laid down mode of doing something necessarily implies a prohibition of doing it in any other way.”
102. Similarly, in State through. P.S. Lodhi Colony New Delhi v. Sanjeev Nanda30, this Court observed thus:- “It is a settled principle of law that if something is required to be done in a particular manner, then that has to be done only in that way or not, at all. In AIR 1936 PC 253 (2) Nazir Ahmad v. King Emperor, it has been held as follows: “…. The rule which applies is a different and not less well recognized rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all….” 27 (2012) 2 SCC 1 28 AIR 1936 PC 253 29 AIR 1977 SC 842 30 AIR 2012 SC 3104
103. Another judgment where this principle has been reiterated is Rashmi Rekha Thatoi and another v. State of Orissa and others31 wherein it was observed thus:- “In this regard it is to be borne in mind that a court of law has to act within the statutory command and not deviate from it. It is a well-settled proposition of law what cannot be done directly, cannot be done indirectly. While exercising a statutory power a court is bound to act within the four corners thereof. The statutory exercise of power stands on a different footing than exercise of power of judicial review.”
104. That apart, any direction to the Election Commission in the nature as sought by the petitioners may lead to an anomalous situation and has the effect potentiality to do something indirectly which is not permissible to do directly. A candidate bereft of party symbol is, in a way, disqualified from contesting under the banner of a political party. It is contended that the person concerned can contest the election as an independent candidate but, as we perceive, the impact would be the same. That apart, without a legislation, it may be difficult to proscribe the same. Additionally, democracy that is based on multi-party system is likely to be dented. In Shailesh Manubhai Parmar v. Election Commission of India32, while dealing with the issue of introduction of NOTA to the election process for electing members of the Council of States, this Court observed thus:- “…introduction of NOTA to the election process for electing members of the Council of States will be an anathema to the fundamental criterion of democracy which is a basic feature of the Constitution. It can be stated without any fear of contradiction that the provisions for introduction of NOTA as conceived by the Election Commission, the first respondent herein, on the basis of the PUCL judgment is absolutely erroneous, for the said judgment does not say so. We are disposed to think that the decision could not have also said so having regard to the constitutional provisions contained in Article 80 and the stipulations provided under the Tenth Schedule to the Constitution. The introduction of NOTA in such an election will not only run counter to the discipline that is expected from an elector under the Tenth Schedule to the 31 (2012) 5 SCC 690 32 2018 (10) SCALE 52 PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] Constitution but also be counterproductive to the basic grammar of the law of disqualification of a member on the ground of defection. It is a well settled principle that what cannot be done directly, cannot be done indirectly. To elaborate, if NOTA is allowed in the election of the members to the Council of States, the prohibited aspect of defection would indirectly usher in with immense vigour. (Emphasis is ours)
105. Here it is apt to note that this Court refused to allow the introduction of NOTA for election of members of the Council of States, for the Court was of the view that if the availibilty of NOTA option in elections for Rajya Sabha would be allowed, the same would amount to colourable exercise of power by attempting to introduce or modify a disqualification for being or becoming a member, which power falls completely within the domain of the legislature. Ruling so, the Court further observed:- “The introduction of NOTA in indirect elections may on a first glance tempt the intellect but on a keen scrutiny, it falls to the ground, for it completely ignores the role of an elector in such an election and fully destroys the democratic value. It may be stated with profit that the idea may look attractive but its practical application defeats the fairness ingrained in an indirect election. More so where the elector‘s vote has value and the value of the vote is transferrable. It is an abstraction which does not withstand the scrutiny of, to borrow an expression from Krishna Iyer, J., the ¯cosmos of concreteness. We may immediately add that the option of NOTA may serve as an elixir in direct elections but in respect of the election to the Council of States which is a different one as discussed above, it would not only undermine the purity of democracy but also serve the Satan of defection and corruption.”
106. Thus analyzed, the directions to the Election Commission as sought by the petitioners runs counter to what has been stated hereinabove. Though criminalization in politics is a bitter manifest truth, which is a termite to the citadel of democracy, be that as it may, the Court cannot make the law.
107. Directions to the Election Commission, of the nature as sought in the case at hand, may in an idealist world seem to be, at a cursory glance, an antidote to the malignancy of criminalization in politics but such directions, on a closer scrutiny, clearly reveal that it is not constitutionally permissible. The judicial arm of the State being laden with the duty of being the final arbiter of the Constitution and protector of constitutional ethos cannot usurp the power which it does not have.
108. In a multi-party democracy, where members are elected on party lines and are subject to party discipline, we recommend to the Parliament to bring out a strong law whereby it is mandatory for the political parties to revoke membership of persons against whom charges are framed in heinous and grievous offences and not to set up such persons in elections, both for the Parliament and the State Assemblies. This, in our attentive and plausible view, would go a long way in achieving decriminalisation of politics and usher in an era of immaculate, spotless, unsullied and virtuous constitutional democracy.
109. In spite of what we have stated above, we do not intend to remain oblivious to the issue of criminalization of politics. This Court has focused on various aspects of the said criminalization and given directions from time to time which are meant to make the voters aware about the antecedents of the candidates who contest in the election. In Association for Democratic Reforms (supra), this Court held:- “38. If right to telecast and right to view sport games and the right to impart such information is considered to be part and parcel of Article 19(1)(a), we fail to understand why the right of a citizen/ voter — a little man — to know about the antecedents of his candidate cannot be held to be a fundamental right under Article 19(1)(a). In our view, democracy cannot survive without free and fair election, without free and fairly informed voters. Votes cast by uninformed voters in favour of X or Y candidate would be meaningless. As stated in the aforesaid passage, one-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Therefore, casting of a vote by a misinformed and non- informed voter or a voter having one-sided information only is bound to affect the democracy seriously. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions. Entertainment is implied in freedom of ‘speech and expression’ and there is no reason to hold that freedom of speech and expression would not cover right PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] to get material information with regard to a candidate who is contesting election for a post which is of utmost importance in the democracy.”
110. After the said judgment was delivered, the Representation of the People (Amendment) Ordinance, 2002 (4 of 2002) was promulgated and the validity of the same was called in question under Article 32 of the Constitution of India. The three Judge Bench in People’s Union for Civil Liberties (PUCL) (supra) held that Section 33-B which provided the candidate to furnish information only under the Act and the rules is unconstitutional. The said provision read as follows:- “33-B. Candidate to furnish information only under the Act and the rules.—Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this Act or the rules made thereunder.”
111. P. Venkata Reddy, J. expressed his view as follows:- “(1) Securing information on the basic details concerning the candidates contesting for elections to Parliament or the State Legislature promotes freedom of expression and therefore the right to information forms an integral part of Article 19(1)(a). This right to information is, however, qualitatively different from the right to get information about public affairs or the right to receive information through the press and electronic media, though, to a certain extent, there may be overlapping. (3) The directives given by this Court in Union of India v. Assn. for Democratic Reforms were intended to operate only till the law was made by the legislature and in that sense ‘pro tempore’ in nature. Once legislation is made, the Court has to make an independent assessment in order to evaluate whether the items of information statutorily ordained are reasonably adequate to secure the right of information available to the voter/citizen. In embarking on this exercise, the points of disclosure indicated by this Court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure therefrom cannot be countenanced. (5) Section 33-B inserted by the Representation of the People (Third Amendment) Act, 2002 does not pass the test of constitutionality, firstly, for the reason that it imposes a blanket ban on dissemination of information other than that spelt out in the enactment irrespective of the need of the hour and the future exigencies and expedients and secondly, for the reason that the ban operates despite the fact that the disclosure of information now provided for is deficient and inadequate. (6) The right to information provided for by Parliament under Section 33-A in regard to the pending criminal cases and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the voter/citizen. However, there is no good reason for excluding the pending cases in which cognizance has been taken by the Court from the ambit of disclosure.”
112. Dharmadhikari, J., in his supplementing opinion, held thus:- “127. The reports of the advisory commissions set up one after the other by the Government to which a reference has been made by Brother Shah, J., highlight the present political scenario where money power and muscle power have substantially polluted and perverted the democratic processes in India. To control the ill- effects of money power and muscle power the commissions recommend that election system should be overhauled and drastically changed lest democracy would become a teasing illusion to common citizens of this country. Not only a half-hearted attempt in the direction of reform of the election system is to be taken, as has been done by the present legislation by amending some provisions of the Act here and there, but a much improved election system is required to be evolved to make the election process both transparent and accountable so that influence of tainted money and physical force of criminals do not make democracy a farce — the citizen’s fundamental ‘right to information’ should be recognised and fully effectuated. This freedom of a citizen to participate and choose a candidate at an election is distinct from PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] exercise of his right as a voter which is to be regulated by statutory law on the election like the RP Act.”
113. In Resurgence India v. Election Commission of India33, referring to the precedents, this Court ruled thus:- “20. Thus, this Court held that a voter has the elementary right to know full particulars of a candidate who is to represent him in Parliament and such right to get information is universally recognised natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. It was further held that the voter’s speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Thus, in unequivocal terms, it is recognised that the citizen’s right to know of the candidate who represents him in Parliament will constitute an integral part of Article 19(1)(a) of the Constitution of India and any act, which is derogative of the fundamental rights is at the very outset ultra vires.” And again:- “27. If we accept the contention raised by the Union of India viz. the candidate who has filed an affidavit with false information as well as the candidate who has filed an affidavit with particulars left blank should be treated on a par, it will result in breach of fundamental right guaranteed under Article 19(1)(a) of the Constitution viz. ‘right to know’, which is inclusive of freedom of speech and expression as interpreted in Assn. for Democratic Reforms.”
114. The Court summarized the directions as under:- “29.1. The voter has the elementary right to know full particulars of a candidate who is to represent him in Parliament/Assemblies and such right to get information is universally recognised. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. 33 (2014) 14 SCC 189 29.2. The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. The citizens are supposed to have the necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information. 29.3. Filing of affidavit with blank particulars will render the affidavit nugatory. 29.4. It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the ‘right to know’ of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that justice itself is prejudiced. 29.5. We clarify to the extent that para 73 of People’s Union for Civil Liberties case will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars. 29.6. The candidate must take the minimum effort to explicitly remark as ‘NIL’ or ‘Not Applicable’ or ‘Not known’ in the columns and not to leave the particulars blank. 29.7. Filing of affidavit with blanks will be directly hit by Section 125-A(i) of the RP Act. However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalised for the same act by prosecuting him/her.”
115. In People’s Union for Civil Liberties v. Union of India34, the Court held that the universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls and thereby participate in the governance of our country. It has been further ruled that for democracy to survive, it 34(2013) 10 SCC 1 PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] is essential that the best available men should be chosen as the people’s representatives for the proper governance of the country. The best available people, as is expected by the democratic system, should not have criminal antecedents and the voters have a right to know about their antecedents, assets and other aspects. We are inclined to say so, for in a constitutional democracy, criminalization of politics is an extremely disastrous and lamentable situation. The citizens in a democracy cannot be compelled to stand as silent, deaf and mute spectators to corruption by projecting themselves as helpless. The voters cannot be allowed to resign to their fate. The information given by a candidate must express everything that is warranted by the Election Commission as per law. Disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified. It has to be remembered that such a right is paramount for a democracy. A voter is entitled to have an informed choice. If his right to get proper information is scuttled, in the ultimate eventuate, it may lead to destruction of democracy because he will not be an informed voter having been kept in the dark about the candidates who are accused of heinous offences. In the present scenario, the information given by the candidates is not widely known in the constituency and the multitude of voters really do not come to know about the antecedents. Their right to have information suffers.
116. Keeping the aforesaid in view, we think it appropriate to issue the following directions which are in accord with the decisions of this Court :- (i) Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein. (ii) It shall state, in bold letters, with regard to the criminal cases pending against the candidate. (iii) If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her. (iv) The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents. (v) 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. When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers.
117. These directions ought to be implemented in true spirit and right earnestness in a bid to strengthen the democratic set-up. There may be certain gaps or lacunae in a law or legislative enactment which can definitely be addressed by the legislature if it is backed by the proper intent, strong resolve and determined will of right-thinking minds to ameliorate the situation. It must also be borne in mind that the law cannot always be found fault with for the lack of its stringent implementation by the concerned authorities. Therefore, it is the solemn responsibility of all concerned to enforce the law as well as the directions laid down by this Court from time to time in order to infuse the culture of purity in politics and in democracy and foster and nurture an informed citizenry, for ultimately it is the citizenry which decides the fate and course of politics in a nation and thereby ensures that “we shall be governed no better than we deserve”, and thus, complete information about the criminal antecedents of the candidates forms the bedrock of wise decision-making and informed choice by the citizenry. Be it clearly stated that informed choice is the cornerstone to have a pure and strong democracy.
118. We have issued the aforesaid directions with immense anguish, for the Election Commission cannot deny a candidate to contest on the symbol of a party. A time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream. 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. It is true that false cases are foisted on prospective candidates, but the same can be addressed by the Parliament through appropriate legislation. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism. The country feels agonized when money and muscle power become the supreme power. Substantial PUBLIC INTEREST FOUNDATION & ORS. v. UNION OF INDIA & ANR. [DIPAK MISRA, CJI] efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay.
119. 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; the sooner the better, before it becomes fatal to democracy. Thus, we part.
120. The writ petitions and the criminal appeals are disposed of accordingly. Kalpana K. Tripathy Matters disposed of.