How can a murder or rape accused become a legislator, asks judge

“Something has to be done to keep criminals at bay and prevent them from contesting elections,” Chief Justice of India Dipak Misra said on Thursday, voicing the Supreme Court’s anguish at the helplessness of society to prevent criminalisation of politics at the very entry-point.

The Chief Justice is presiding over a five-judge Constitution Bench hearing petitions to bar politicians facing charges of heinous crimes, like murder, rape and kidnapping, from contesting elections and transforming themselves into parliamentarians and legislators in State Assemblies.

But at the same time, the Supreme Court said it could not legislate for Parliament. “The court declares the law, the Parliament makes the law,” Justice Rohinton Nariman observed.

The court is mulling over what it said was its “genuine concern about criminal politics”. Under the Representation of People Act, only convicted lawmakers are disqualified, not those accused.

“Can we make such a law disqualifying persons against whom charges of heinous crimes have been framed by courts of law or should we tell the Parliament that by not laying down such a law, you are really giving criminals encouragement and hope? This is the question bothering us,” Chief Justice Misra told the petitioners, including advocate Ashwini Kumar Upadhyay, represented by senior advocates Dinesh Dwivedi, Siddharth Luthra and Gopal Sankaranarayanan.

Fast track courts

Attorney-General K.K. Venugopal submitted that fast track courts to try accused politicians were “the only solution”. Mr. Venugopal said charges in such cases are kept pending for long as witnesses don’t testify as the Whistleblowers Protection Act, which protects informers, is too weak to protect them or their families from repercussions.

Justice D.Y. Chandrachud asked how a murder and rape accused can become a legislator. Mr. Venugopal replied that a person is presumed innocent until he is proven guilty.

The Constitution Bench even considered asking the Election Commission to frame guidelines to prevent an accused from becoming a member of a political party. But Mr. Dwivedi countered that such a person can even contest as an independent. Mr. Dwivedi said the court should intervene as lawmakers may not bring a fresh law, considering that 35% to 45% of them have criminal records or face charges.

“We share your concern. We will think of a constitutional remedy… the Parliament has an obligation under Article 102 (1) (e) to make a law. As conscience-keepers of the Constitution, we (Supreme Court) can ask you (Parliament) to do it,” Chief Justice Misra observed.

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