Quick answer
No, not by the courts. In Public Interest Foundation v. Union of India (25 September 2018), a five-judge Constitution Bench held that the Supreme Court cannot add a new disqualification for candidates against whom charges have been framed. Parliament alone can lay down disqualifications, under Articles 102(1)(e) and 191(1)(e) and the Representation of the People Act, 1951. To protect voters' right to know, the Court instead directed candidates and political parties to publicise pending criminal cases. It also recommended that Parliament make a strong law.
The case
Public Interest Foundation v. Union of India, (2019) 3 SCC 224. Supreme Court of India, 25 September 2018. Bench: Dipak Misra, C.J., R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, JJ.; judgment by Dipak Misra, C.J. The question referred was whether the Court could lay down disqualifications for membership of Parliament or a State Legislature beyond those in Articles 102 and 191 and the law made by Parliament.
What the Court held
- No judicial disqualification: under Section 7 of the Representation of the People Act, 1951, a person is disqualified only on the grounds in that Chapter and "on no other ground". The grounds in Sections 8 to 10A are exhaustive, and the Court "cannot legislate".
- Legislature's field: adding a new ground of disqualification is beyond the judicial arm and falls completely within the domain of the legislature. The Court noted that the Law Commission's 244th Report (Electoral Disqualifications) had proposed amendments that were never enacted.
- Informed voting: relying on Union of India v. Association for Democratic Reforms, the Court held that democracy needs "fairly informed voters".
- Recommendation: the Court called criminalisation of politics "a termite to the citadel of democracy". It recommended that Parliament "bring out a strong law" requiring parties to remove persons charged with heinous or grievous offences and not field them.
The disclosure directions
- Every candidate must fill in the Election Commission's form completely.
- Pending criminal cases must be stated in bold letters.
- A party candidate must inform the party of pending criminal cases.
- The party must put details of such candidates on its website.
- The candidate and the party must publish a declaration in widely circulated local newspapers and give wide publicity in electronic media, at least three times after the nomination papers are filed.
Disqualification and disclosure compared
| Stage | Consequence | Source |
|---|---|---|
| Conviction for specified offences | Disqualification | Section 8, Representation of the People Act, 1951 |
| Charges framed, trial pending | No disqualification; full public disclosure | Public Interest Foundation (2018) |
Example
Farhan is facing trial for a serious offence and files his nomination as a party candidate. The returning officer cannot reject his nomination merely because charges are pending. Farhan must state his cases in bold in the form and tell his party, and both must publicise the cases in newspapers and electronic media at least three times. The voters, including Zoya, then decide with full information.
Later orders
In Rambabu Singh Thakur v. Sunil Arora (13 February 2020), a three-judge bench used Articles 129 and 142 to strengthen these directions. Parties must publish the details of each candidate with pending cases (offences, stage of the case, court and case number), and the reasons for choosing that candidate over others without criminal records. The reasons must rest on qualifications, achievements and merit, not mere "winnability". The details must appear on the party website, in a local vernacular newspaper, in a national newspaper and on the party's social media. Publication was due within 48 hours of selecting the candidate or at least two weeks before the first date for filing nominations, whichever was earlier, and a compliance report had to reach the Election Commission within 72 hours of selection. In Brajesh Singh v. Sunil Arora (10 August 2021), a two-judge bench found several parties in contempt and kept the 48-hour publication requirement. It held that the alternative of publishing two weeks before nominations could not work under the statutory election timeline. For the parallel ruling on Ministers, see Manoj Narula v. Union of India.
Exam point
Public Interest Foundation (2018): courts cannot add disqualifications. Only Parliament can, under Articles 102(1)(e) and 191(1)(e). The Court protected the voter's right to know through mandatory disclosure and publicity of criminal antecedents.
