Wednesday, February 18, 2015

Barring candidate from fighting polls before conviction will threaten democracy, says SC

Barring a candidate from contesting election before conviction in a criminal case will pose a “great danger to the polity of the Indian democracy”, the Supreme Court said Tuesday.
A bench led by Chief Justice H L Dattu observed that it may not be right in law and also in a democracy like India to restrain a person from running for a political office on the ground that he or she has been charged with serious offences.
“It will be a great danger to the polity of our democracy. This can be employed to keep a political opponent out of election,” said the bench, expressing its disinclination towards an idea that persons charged with serious offences should not be allowed to contest.
The bench was hearing a PIL by NGO Public Interest Foundation, which cited recommendations by the Election Commission as well as the Law Commission, which had suggested the prohibition on those charged with grave offences.
The argument was that since charges are framed only after a court has applied its mind after perusal of the evidence, the stage was reached where the person concerned could be barred from contesting election.

The bench however raised serious doubts over this principle, citing various illustrations where a magistrate scrutinises the evidence produced by a private complainant before ordering an FIR.
“Now there is an application of mind by a court at the time of registration of an FIR. So should we say that in such a case, the person should be barred at this stage? There will be plenty of examples where evidence is examined before taking a cognizance of an offence by an alleged offender. We cannot be keeping all of them out,” responded the bench.
The court asserted that there was a presumption of innocence in favour of everyone till he or she is convicted and hence it was inappropriate to presume a person to be a probable convict only on the basis of framing of charges.
“There is already a legislation (Representation of the People Act) in place and it says a person will be disqualified after conviction. It is not a case where there is no law and we are not here to make laws. It is not our job to legislate. We will be re-writing the Act if we add anything to what the legislation has stipulated,” added the bench. The Act disqualifies a lawmaker upon being convicted, and further restrains him or her from contesting elections for the next six years.
It further discarded a contention that the interest of some people will require to be sacrificed in the larger interest of a cleaner polity. “We cannot be taking away such a precious right from even a single person when the legal principle talks about a presumption of innocence unless held guilty,” it said.
While hearing this PIL last year, the court had ordered that trials against MPs and MLAs be completed within a year of charges being framed, observing a speedy trial will ensure consequences come about “sooner than later”.

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