Overview

In Public Interest Foundation v. Union of India (2018), a Constitution Bench of the Supreme Court held it cannot add disqualification grounds for legislators beyond Articles 102/191 and the Representation of the People Act, 1951, since Parliament has exhaustively occupied the field. It also refused to direct the Election Commission to deny party symbols to candidates facing criminal charges, calling this an indirect disqualification. However, it mandated strict disclosure of candidates’ criminal antecedents by candidates, parties, and media, and urged Parliament to legislate against criminalization of politics.

Facts

The petitioners, Public Interest Foundation and others, filed writ petitions raising concern over the rising criminalization of Indian politics, citing data showing a significant and growing proportion of sitting MPs, MLAs, and election candidates with pending criminal cases, including serious offences such as murder and rape. A three-Judge Bench hearing the matter referred the core constitutional question to a Constitution Bench under Article 145(3), since a submission that the issue was already covered by Manoj Narula v. Union of India (2014) 9 SCC 1 was not accepted due to a dissenting view expressed by Madan B. Lokur, J. During the hearing, the scope of the matter was expanded beyond its original framing to address whether courts could intervene to curb the entry of persons with serious criminal charges into legislatures. The petitioners urged the Court to either read an additional disqualification into the Constitution or direct the Election Commission of India (ECI) to deny party symbols to such candidates. The Union of India, represented by Attorney General K.K. Venugopal, opposed both routes as impermissible incursions into the legislature’s exclusive domain.

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Issue

  1. Whether the Supreme Court can, through interpretation, add a ground of disqualification for membership of Parliament or State Legislatures beyond those specified in Articles 102(1)(a)-(d) and 191(1)(a)-(d) of the Constitution and the law made by Parliament under Articles 102(1)(e) and 191(1)(e) — specifically, disqualification upon framing of criminal charges rather than conviction.
  2. Whether, in the alternative, the Court can direct the Election Commission of India to deny a candidate against whom criminal charges have been framed for heinous/grievous offences the right to contest using a political party’s reserved symbol.

Held

The Constitution Bench unanimously held that the Court cannot add a ground for disqualification beyond what is provided in Articles 102(1)(e) and 191(1)(e) read with Sections 7(b) and 8 to 10A of the Representation of the People Act, 1951, since the legislature has exhaustively and unambiguously occupied this field, and the words “no other ground” in Section 7(b) foreclose judicial supplementation. The Court further held that directing the Election Commission to withhold a party’s reserved election symbol from candidates facing criminal charges would amount to indirectly achieving a disqualification that cannot be imposed directly — invoking the settled principle that “what cannot be done directly ought not to be done indirectly” (citing Nazir Ahmad v. King Emperor and subsequent authorities) — and would therefore breach the separation of powers. However, the Court exercised its power under Article 32 to issue binding disclosure directions: every candidate must fully disclose pending criminal cases in the prescribed form in bold letters; must inform their political party of such cases; the party must publish this information on its website; and the candidate and party must issue public declarations in widely circulated newspapers and electronic media at least three times after filing of nominations. The Bench declined to strike down or read down any provision but recommended that Parliament enact a strong law making it mandatory for political parties to revoke membership of, and refuse to field, persons facing charges for heinous and grievous offences.

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Conclusion

This case reaffirmed that only Parliament can decide the qualifications and disqualifications of elected representatives, not the judiciary.Although the Court expressed serious concern over the rapid growth of the criminalisation of politics, the Supreme Court strengthened voters’ right to know under Article 19(1)(a) by directing greater disclosure of candidates’ criminal antecedents. The judgment built upon Union of India v. Association for Democratic Reforms (2002), PUCL v. Union of India (2003), and Resurgence India v. Election Commission of India (2014), and later influenced Rambabu Singh Thakur v. Sunil Arora (2020), where political parties were directed to publish reasons for selecting candidates with criminal antecedents.

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Editorial Note: This article has been reviewed by the LegalRath Editorial Team to ensure legal accuracy, editorial quality, and clarity before publication.