The Supreme Court Tuesday said it cannot “usurp the power” of law-making which is vested with the legislature, but was burdened with the duty of being the final arbiter of the Constitution and protector of the constitutional ethos.
Though criminalisation of politics is a “bitter manifest truth”, which is a “termite” to the citadel of democracy, the court cannot make a law to check it, a five-judge constitution bench headed by Chief Justice Dipak Misra said.
The bench left it to Parliament to bring in a strong law by which it should be mandatory for political parties to revoke the membership of those against whom charges have been framed in heinous offences.
“In a multi-party democracy, where members are elected on party lines and are subject to party discipline, we recommend to 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 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,” the bench also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.
In its verdict, the bench noted the submission of Attorney General K K Venugopal that the court should not cross the “lakshman rekha” vis-a-vis the separation of powers.
The top court said going by the constitutional framework, it would be inappropriate for the court to take recourse to any other method as it cannot legislate but only recommend bringing in of law.
While referring to the constitutional provisions, the bench said that according to the laws laid down earlier, it was clear that regarding disqualification of lawmakers, “the law has to be made by Parliament”.
“It would not be appropriate to take recourse to any other method for the simon-pure (completely genuine) reason that what cannot be done directly, should not be done indirectly,” the bench said.
The bench said the legislature has very clearly enumerated the grounds for disqualification and the language of the provision under the Representation of the People Act leaves no room for any new ground to be added or introduced.
“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,” it said.
“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,” the bench said.
The verdict by the constitution bench came on a batch of pleas raising a question whether lawmakers facing criminal trial can be disqualified from contesting elections at the stage of framing of charges against them.
According to the prevalent law, the lawmakers and candidates are barred under the Representation of Peoples Act from contesting elections only after their conviction in a criminal case.