Candidates can’t be barred from contesting polls on framing of criminal charges only: SC

Supreme Court has declined to interfere in a plea to debar candidates facing criminal charges from contesting elections and established that the MPs and MLAs could not be disqualified from contesting elections merely at the stage of the framing of charges unless they are proved guilty or convicted.

The five-judge bench headed by Dipak Misra said that the onus lies on the Parliament to make relevant laws to prevent people with serious criminal cases pending against them from entering legislature and be part of lawmaking and furthered that there is no bar under the Bar Council of India (BCI) rules to debar legislators from practising in court.

However, the SC stated that the voters have the right to be informed about the criminal antecedents of their candidates, therefore, keeping this in view SC directed that each candidate shall declare his/her criminal antecedents to the Election Commission before contesting an election.

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Court has directed that criminal records of the candidate should be mentioned in bold letters in nomination forms, and candidates also inform their party about their criminal records if they are contesting from a party ticket. And the political parties should display the information about criminal records of their candidates on their websites.

The court also recommended that the political parties through local media, both print and electronic, should give wide publicity to the criminal cases pending against their candidates after the candidate files his/her nomination to contest the elections so that the voters are well informed before taking their decision. The apex court judgement says that political parties should issue such declarations at three times after filing nomination papers.

Presently, under the Representation of Peoples (RP) Act, the lawmakers who are convicted in a criminal case are barred from contesting elections.

The Centre had previously contended that as the RP Act already deals with the issue of disqualification the judiciary should not venture into the legislative arena by creating a pre-condition which would adversely affect the right of the candidates to participate in polls.

The bench comprising of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud had on 9th July reserved the order on the PIL filed by BJP leader and advocate Ashwini Upadhyay seeking to bar lawyer-lawmakers (MPs, MLAs, MLCs) from practising in courts during their tenure in the legislature.

Attorney General K K Venugopal said such a ban is not correct or justifiable as being an MP/MLA is not a full-time job. The attorney general added that there cannot be any “prohibition” as members of Parliament is not a job under the Government of India.

The full order of the court can be accessed here [PDF].


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