Before getting in to the depth of our case it is necessary to know the root
cause of the case and problems associated it. Major Root of our case lies in
matter of criminalization of politics. When it comes to political issues we are
well aware of the fact that in the world of politics there is no white surface
The concept of criminalization of politics is rising day by day and
with the increase in these aspects in order to cope up with the coming
consequence and issues in political field the Supreme Court of India is
empowered to issue various guidelines under Article 142 and Article 129 for
stoppage of involving politicians having criminal records to participate in
elections as from the view that such criminal candidature allowance can be
detrimental to public interest.
The role of Supreme Court is to avoid candidates
having criminal background over candidates having clean background. Current case
is the picture as to how our Supreme court has dealt with these affairs and how
the Fundamental rights differs from statutory rights.
Case Commentary: On: Rambabu Singh Thakur v/s Sunil Arora & Ors
In the supreme court of India:
Contempt Pet (C) No. 428 of 2019 in W.P (C) No. 536 of 2011 & Contempt Pet. (C)
No. 464 of 2019 in W. P (C) NO. 536 of 2011
Rambabu Singh Thakur v/s
Sunil Arora & Ors
Judgment dated on:
13th February, 2020 -
Facts Of The Case
- Hon'ble Justice R.F. Nariman, Hon'ble
- Justice S. Ravindra Bhat & Hon'ble
- Justice V. Ramasubramanian.
The present case is relating to the concept which highlights criminalization of
politics in India. Criminalization of politics refers to an act whereby person
having criminal records in past wants to enter in to politics. Which is
detrimental to public interest as criminals enter in to political world by the
support of politicians and it gives political parties undue benefits at large.
The case focuses on disregard of directions issued by Supreme Court of India in
case of Public Interest Foundation and ors vs Union of India
also known as
"Electoral Disqualification Case
". Wherein two petitions were filed by BJP
Leader Ashwini Upadhyay and an NGO - Public Interest Foundation.
The intention of bringing this petition was to seek directions from Supreme
Court of India regarding prohibition of criminals from contesting the polls and
getting elected as Member of Parliament.
Whether the Supreme Court of India can restrict candidates having criminal
background to participate in the Elections or whether by making additional laws
can the apex court restrain the membership of parliament exceeding Article 102
(a) to Article 102 (e)?
Highlight On Advanced Arguments
The contention made from the petitioner side was that the right to contest
elections is not a fundamental right but a statutory right. One cannot be given
a chance to make law who has already break the law earlier, he should be
disallowed to participate in elections and being a part of legislature.
person having criminal past cannot be prioritized over candidate having clean
background in order to keep public interest at first place. Furthermore the
constitutional principles are set out for benefit of people at large. Granting
tickets to candidatures would be allowing criminals in the political world.
The Arguments made by the respondent was that - Just by criminal allegations on
political candidates cannot debar them to participate in elections. Focusing on
the principle of separation of powers, the respondent contented that basic
structure was enshrined under the constitution. Also there was no scope of
addition words by the apex court in the existing statute under Art 142.
The Supreme Court of India has created a very crucial impact in the present case
by observing the rising criminalization of politics as in the year 2004 it was
24% which came to 43% in the year 2019. The apex court issued additional
directions to what was issued earlier in its judgment in the case of Public
Interest Foundation & Union of India and ors
, trying its power under Article
The article lays down that Supreme Court being a court of record has the
power to punish for its contempt and Article 142 which states that the decrees
or orders passed by the Supreme Court in exercise of its jurisdiction are
binding on all courts within the territory of India.
requirement for all the politicians interested to participate in elections to
upload their details stating criminal charges on them or the number of criminal
cases pending against them, if any with reasons mentioning as to why they should
be selected over candidate having no criminal antecedents.
Relying on those
merits only then the candidates are allowed to be a part of legislature. Making
it compulsory for all candidates to publish the details in the newspaper and on
social media within 48 hours of selection or within the span of 2 weeks from the
date of filing nomination, whichever is earlier also report to Election
commission of India failing to which notice shall be brought to the apex court.
While adjudicating the case of Public Interest Foundation & Union of India & Ors
various Principles and statutory provisions were taken in to consideration.
Looking at the aspect of "Separation of powers" the court noted that it does not
possess any power to exonerate on the matter. But at the same time it was very
much essential to bring a standard law with respect of banning of extreme level
of criminalization of politics.
Also, the "Doctrine of colorable Legislation
which states that what can't be done directly can't also be done indirectly was
pointed while looking in to the matter. Further the Principle of presumption of
Innocence- provides that an Individual is considered to be innocent unless
proven guilty and hereby the disqualification by Member of Parliament or state
legislature for the reason that there are pending criminal cases against him/
her would be prejudicial. So the guidelines referred in this aforesaid case
reiterated the current case of Rambabu Singh Thakur vs Sunil Arora.
On February 13, 2020.
Bench: Hon'ble justice R.F- Nariman, Hon'able justice S. Ravindra Bhat and
Hon'able Justice Ramasubramanian.
The Supreme Court once taking under consideration the school of thought of
Colorable Legislation, the principle of Separation of Powers and scrutinizing
the shortcoming of the court to issue official document of writ of mandamus to
the Election Commissioner regarding the extension of law of disqualification for
the explanation of a candidate having criminal background, the court came to the
conclusion that the facility of constructing laws can't be extended to the
judiciary. However the court has power to issue directions or tips as secured
below Article 129 and Article 142 of the Constitution.
With this the Supreme Court of India in order to cure ongoing disease laid down
following additional directions with created a protection layer to the political
system. So the guidelines referred in this case of Public Interest Foundation
and ors vs Union of India reiterated the current case of Rambabu Singh Thakur
vs Sunil Arora.
It shall be the duty of the central and state-level political parties to
furnish elaborate info regarding the criminal antecedents of the chosen
candidates. Further, the knowledge regarding the criminal antecedents should
contain- the character of offence, what charges are framed against them, what's
the case variety, during which court the case is filed, etc. what is more, the
organization shall make a case for the explanations on why the candidate with
criminal antecedents was elite over the qualified candidate with no criminal
The reason for such choice shall be primarily based upon the deserving,
qualification and action of the candidate instead of mere "win ability" at the
The elaborate data concerning the criminal antecedents of the candidates shall
wide be revealed within the native further as national newspaper alongside the
message on the social media platforms as well as Twitter, Facebook, etc.
This information shall be published in either of the two-time frames, whichever
is earlier within 48 hours of the selection of the candidate or within not less
than 2 weeks before the first date of filing for nomination.
The political party concerned shall submit a report of compliance with the
Election Commission by following all the aforesaid directions and such
submission has to be done within 72 hours of the selection of the concerned
In case of failure of submission of such compliance, the Election Commission
shall put forward non-compliance by the political party to the SC of India by
way of contempt of this court orders/directions.
In the present case commentary, the Supreme Court of India has emphasized widely
on growing criminalization of politics which is deleterious to the welfare of
public it not only damages the root cause of our political system but also
restricts the innocent candidates to get opportunity over criminal candidates.
The Apex court have analyzed these issues and for the betterment of political
health issued various guidelines.
It is prudent to know that one having
background of criminal cases pertaining to Rape, Murder etc cannot be given a
chance to be part of justice as they had already set their criminal positions
are bound to be punished instead of giving them further chance to proceed with
other criminal activities. Though the "Doctrine of Innocence
" works on the
mechanism that no one is guilty unless convicted but the fact that cannot be
denied is that a person on which several criminal complaints are filled and who
is under charged cannot be stated as an innocent in common parlance.
it is essential to differentiate the meaning of "Innocence
" by not just relying
on book definitions. Directions issued by the apex court would not completely
swap the criminalization of politics but these guidelines would be an effective
mechanism to resolve this issues. Further, Article 142 does not additional words
in existing law but still Supreme Court is empowered under Article 129 and
Article 142 it keep public interest as top priority without breaking
Through this landmark judgment, the court verified few procedures within the
already existing directions issued by the court. The wide promotional material
of the contesting candidate in several platforms together with newspaper &
social media would permit the voters to settle on a right representative for
Additionally the directions place an obligation on the organization to
offer tickets to such candidates having no criminal antecedents and if any
organization violates these directions then itought to face consequences for
- Constitution of India.
- Law Times Journal
- The Legal Alpha
- Supreme Court Observer
- Center of Academic Legal Research
Written By: Vanshika.M.Jain
- Thakur Ramnarayan College Of Law Affiliated To University Of Mumbai.