Criminalisation of Politics: Parties should ensure that crooks are not qualified, Nariman J [Day 2]

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..Read a summary of the arguments on Day 1 here..Live updates follow:.Submissions of Senior Advocate Dinesh Dwivedi.The Constitution Bench begins hearing the matter to decriminalize Politics on Day 2 of this caseThere is a breach of fundamental rights in case of negation of the principle of free and fair election, DwivediA person who has some taint in his background cannot be appointed for a positionUnder the Constitutional scheme, election is a subject under both centre and State. The provisions impose a restriction on the State legislature to legislate only when it comes to disqualifications for contestingPlaces a Law Commission report before the BenchQuoting from a judgement, Dwivedi says “Those who break the law, should not make the lawThe principle of “innocent until proven guilty” will not apply here because the question is not about conviction but that of exercise of civil rightsWe’re saying Law is silent on the subject and speaks about disqualification only after conviction and not before it. Please treat it like silence of law and in case of silence of Law, Courts have taken steps in the past like in Vishakha guidelines caseNariman J points out that A. 324 is a general power not specific; and A.102 gives specific power for laying down disqualification only to the ParliamentDwivedi says, “the silence of law has to be considered” CJI Misra says, “the law is not silent, that is the whole point.” Nariman J agrees, “law is not silent, it says conviction is a ground for disqualification very clearly.”Nariman J says Dwivedi’argument can be encapsulated in one sentence – Since we can’t give a mandamus to the legislature, give one to the Election Commission.Submissions of Krishnan Venugopal.The big problem when people with criminal antecedents come into politics is that a lot of money with underworld nexus is brought into playThe no of candidates with serious criminal charges contesting and elected has only gone high over the yearsFast track courts were set up only for sitting MLAs and MPs. But this will not solve the problemVenugopal makes 3 suggestions. 1. A Law be passed 2. Court directs the ECI to direct the political parties not to give tickets to or take support from independent candidates with criminal charge 3. Symbols OrderJust divorcing the possibility of independent candidates with criminal charge extending support to political parties will help in cleansing the system. They will have no incentive to contest if they can’t join hands with a partyWe can always direct the ECI that persons from a political party should furnish affidavits about their clean record and in case of a criminal charge, the parties be held responsible, CJI Misra contemplatesNariman J, taking a cue from 29A which is about registration of political parties. We’re making a proposal that at the time of registration this condition be imposed. The parties should make sure that the crooks are not qualifiedChandrachud J says that for continuation of registration of political parties, this condition can have a bearingThe bench rises for lunch. Will continue hearing at 2PMSymbols order prescribes the manner in which political parties function. It lays down that candidates are assigned symbols for contesting elections. Reserved symbols are for recognised parties and their candidates