Constitution Bench begins hearing on criminalisation of politics – Live Updates from SC [Day1]

Can a legislator be disqualified if and when a charge sheet is filed against him or should it be done only upon conviction? The Supreme Court had referred this question to a Constitution Bench..The case is now being heard by a Constitution Bench presided by Chief Justice Dipak Misra, along with Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra..Here are the Live Updates:.Constitution Bench begins hearing the petition seeking to debar political leaders charged with serious offences from contesting elections.Senior Counsel Dinesh Dwivedi begins making his submissions for the petitioners.Is it possible for the Legislature to intervene and disqualify legislators with a criminal background, Dwivedi. “Should the Court not lay down the principle of implied limitation since the legislature is silent on it?”The select committee rejects this idea solely on the ground of criminal jurisprudence of ‘innocent until proven guilty’. We are faced with this of Legislature’s silence due to 34% of the legislators with criminal background: DwivediCriminalisation of politics is a negation of democracy, it is a negation of one man one vote, it is a direct breach of Basic Structure: DwivediDwivedi reading out the text of the oath of office administered upon legislators and emphasizes on the words “uphold sovereignty and Integrity of India”Disqualification based on conviction was laid down in the 1950s. Yet, the ‘winnability factor’ is considered important. Law Commission in its report says categorically that the ‘winnability factor’ detracts the political parties.Nariman J: Your submission basically is that we should safeguard the rights of all citizens. You want us to exhort parliament to lay down generally that such a law should exist which prevents criminality among legislators.It is a Laxman Rekha that we declare the law and exhort parliament to make law, Nariman J. Dwivedi says this may be done when the legislature is silent on an issue.You are asking us to issue a mandamus to the election commission to lay down a norm that all three stages of criminal procedure should form the basis for debarring candidates from contesting elections. But should we go into this or the Parliament should make a Law: CJI MisraNariman J says that it is difficult to direct a body to add the grounds for disqualification. “The moment someone has charges filed against him and he files his nomination, some sort of fast-track procedure should be put in place.”CJI Misra adds “Proceed with the trial and once the judgment is delivered pronouncing him guilty, he is automatically disqualified.”Gopal Sankaranarayanan weighs in “The question I want the court to consider is whether an individual in violation of Section 125 be disqualified from participating in the electoral process.”“The Election Commission can direct that framing of charges be considered differently from conviction. 125A can be considered separately from 125”, Gopal SankaranarayananAG KK Venugopal says Nothing can be added by way of disqualification. I’m prepared to argue on the point of separation of powers and on the point that 122 will not apply.Chandrachud J says Constitution speaks about qualifications and disqualification only and asks if a person charged with a serious offence is capable of upholding the oath of affirmation under Schedule III. So will not a person charged with a serious offence stand disqualified?Nariman J adds, “Suppose a person is facing murder charge and charges have been framed against him, then is he capable of upholding the oath of affirmation?”AG stresses on the presumption of innocence and says that Article 21 says that no person can be denied his liberty until he has been pronounced guilty by the Courts of Law.Bench rises for lunch. Hearing to continue after 2 PM.Bench continues to hear the matter. AG continues to make his submissions.AG says that often there are instances when during trials of such individuals, witnesses often don’t appear and there are inadvertent delays in the trial.CJI Misra says that while a criminal procedure is a whole different issue, the AG, at the moment, should make suggestions regarding the case at hand.CJI Misra says, “Corruption is a noun but becomes a verb when it enters the political arena. It is infective and resistant to antibiotics.”AG Venugopal reads out the same quote from CJI Misra’s previous judgment passed in 2016. Dwivedi says the only antibiotic that will work is this Court.“Enacting law to save democracy, as Dwivedi rightly said, is the basic ideal of the Constitution. There are two-three cases where we have issued guidelines like Vishakha etc. Those were constitutional concerns. But here, the constitution is tight-lipped”, CJI MisraDwivedi says, section 36 enumerates grounds for disqualification but the grounds for disqualification from filing nominations is not considered. Grounds for this rejection can come under this Court, legislation will come later.“There are judgments of this court that it is the duty of the legislature to respond to the collective cry of the citizens. Today the citizens are saying please don’t let such people contest elections. How to inject that through a writ?” asks CJI MisraDwivedi argues that the collective need right now is that lawbreakers cannot be made lawmakers.CJI Misra concedes that the citizenry demands this but says that the question bothering the Court is whether they can make such a law.Krishnan Venugopal suggests that the Court can pass a specific direction to the political parties that they cannot allow such individuals from contesting elections and this direction can be inserted in their party constitutions.Dwivedi says that the Election Commission, which is the repository of all parties, can impose this requirement upon political parties when they are registered that no person facing a trial can file his/her nomination.CJI asks if the Courts can pass an order directing the EC to insert such a provision.The question of independent candidates is posed before the Court who will not be bound by any party’s mandate. Venugopal suggests that parties can be directed to refrain from taking support from such independent candidates.Krishnan Venugopal suggests that the Court can issue a directive to the EC to incorporate such a provision till a legislation in made in that regard.Dwivedi continues to read out his submissionsIf the Doctrine of silence of laws is stretched a little, the Court can issue directions to the EC, DwivediOn the one side there is the basic structure of separation of power and on the other, there is the basic structure of Parliamentary democracy, DwivediThere were cases like Vishakha where depending on the contingency, this Court has issued guidelines.CJI Misra reminds the Counsel of J Jayalalitha’s case where she was disqualified only after she was convicted.Don’t forget the Kesavananda Bharti case, an implied limitation was rejected. Basic structure and implied limitation are not the same, Justice Khanna made that clear and refused it, Nariman J.“Kesavananda Bharti is an authority only on Basic structure, not on implied limitation. Read it carefully”, Nariman JBench rises for the day. Matter to continue on Tuesday, August 14