Sadhvi Pragya Singh Thakur, who will be the BJP candidate against Digvijaya Singh of the Congress in the Bhopal Lok Sabha constituency, has been chargesheeted in the 2008 Malegaon blast case and is currently out on bail. The legal bar on contesting applies only to individuals who have been convicted by a court.
In September 2018, a five-judge Constitution Bench of the Supreme Court said that it was not within its powers to disqualify politicians facing criminal cases from contesting elections.
“Though criminalization in politics is a bitter manifest truth, which is a termite to the citadel of democracy, be that as it may, the Court cannot make the law,” the Bench, headed by then Chief Justice of India Dipak Misra, said. (Public Interest Foundation & Ors vs Union of India & Anr, September 25, 2018)
The judgment came on a batch of petitions and applications filed by the NGO Public Interest Foundation, former Chief Election Commissioner J M Lyngdoh, the Delhi BJP leader and lawyer Ashwini Kumar Upadhyay, and others seeking directions to the Election Commission of India to disqualify from elections those candidates against whom charges have been framed in criminal cases.
“Directions to the Election Commission, of the nature as sought in the case at hand, may in an idealist world seem to be, at a cursory glance, an antidote to the malignancy of criminalization in politics but such directions, on closer scrutiny, clearly reveal that it is not constitutionally permissible.
“The judicial arm of the State being laden with the duty of being the final arbiter of the Constitution and protector of constitutional ethos cannot usurp the power which it does not have,” the order said.
The Bench, also comprising Justices Rohinton F Nariman, A M Khanwilkar, D Y Chandrachud, and Indu Malhotra, however, recommended 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 the Parliament and the State Assemblies”.
This, “in our attentive and plausible view”, the court said, “would go a long way in achieving decriminalisation of politics and usher in an era of immaculate, spotless, unsullied and virtuous constitutional democracy”.
“A time has come that the Parliament must make a law to ensure that persons facing serious criminal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation,” said the order.
“It is true that false cases are foisted on prospective candidates, but the same can be addressed by the Parliament through appropriate legislation. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism,” the order further said.