Banning tainted leaders from polls: Supreme Court to set up larger bench

"We must clarify this matter so that people know the law by next election," a bench headed by Chief Justice J S Khehar said while considering the submission that these issues needed to be decided at the earliest as many "dreaded criminals", against whom charges have been framed by courts in serious cases, are planning to contest upcoming Assembly polls.

"We will soon constitute a Constitution bench to decide these issues," the bench, also comprising Justices N V Ramana and D Y Chandrachud, said.

Senior advocate Vikas Singh, appearing for lawyer and Delhi BJP spokesperson Ashwini Kumar Upadhyay, mentioned the PIL on the issue for urgent hearing on grounds including that many people, facing trial in serious cases, may contest and win elections and hence the legal questions needed to be settled.

During the brief meintioning, the bench also said, "We cannot give an immediate answer to these questions since there is fear of lodging false cases in elections." 

A three-judge bench had on March 8 last year, referred various PILs including the one filed by Upadhyay to the CJI saying the questions like can a lawmaker, facing criminal trial, be disqualified at conviction stage or at the framing of charge in a case have to be decided by a larger bench.

At present, a person, convicted in a serious criminal case, is barred from contesting polls and a lawmaker stands disqualified in the event of conviction.

The questions, raised in the petitions, also include whether a person against whom charges are framed be permitted to contest elections.

Singh told the bench that the ban on contesting polls is not sought against those who are facing charges in petty offences.

Besides Upadhyay, former Chief Election Commissioner J M Lyngdoh and NGO 'Public Interest Foundation' had filed PILs raising similar issues. The pleas were referred to the larger bench which is yet to be set up.

Upadhyay, in his application seeking setting up of a larger bench, said, "At present, more than 33 per cent legislators have criminal cases and Election Commission data shows that criminalisation is increasing every subsequent year. This trend is not good for a healthy democracy."

"Assembly elections in five states has been declared in February 2017 and many dreaded criminals, against whom charges have been framed by the competent court in serious cases, are planning to contest the elections. If the five-judge bench is not constituted and the instant matter is not heard on priority, the nation will suffer irreparable loss and injury. Hence the matter is urgent," the plea said.

Earlier, the apex court had set a deadline of one year for lower courts to complete trial in criminal cases involving sitting MPs and MLAs.

It had also said that all such proceedings involving lawmakers must be conducted on a day-to-day basis.

To expedite proceedings against lawmakers who continue to enjoy membership of a legislative body during the pendency of a case, the court had also said that lower courts will have to give explanation to the chief justice of the respective high court if the trial is not completed within a year.

The Law Commission had recommended that such trials be concluded in one year.

"We direct in cases of sitting MPs and MLAs who have been charged for offences under Sections 8(1), 8(2), 8(3) of Representation of People Act, the trial is to be conducted as expeditiously as possible but not later than one year from the date of framing of charges," it had said.

The apex court had said that the period of one year can be extended by the chief justice of the high court if he is satisfied with the reason given by the trial judge for not completing the proceedings within the deadline.

As the trial is kept pending for years, lawmakers continue to enjoy membership of the legislative body despite being charged in a heinous offence, the court had noted.

The court had taken note of the Law Commission's report which said that a candidate should be disqualified on framing of charges in cases punishable with a jail term of five years or more as the current criteria of disqualification upon conviction is 'incapable' of barring criminals from electoral politics.