Judgment Ravi S.Dhavan, J. 1. The reports as were published in the media that criminals are in politics brought an application on behalf of the petitioner (Bihar Rajya Panchayat Parishad) that the court considers the phenomenon of criminals in politics in the forthcoming elections to the Bihar Legislative Council, 24 seats are vacant to be filled from candidates representing self-government institutions. The circumstances of criminals in politics is fortified as correct on the information as has been received by the Additional Advocate General Mr. S.K. Ghosh from the district of Bhojpur, Muzaffarpur, Lakhisarai, Nawada, Rohtas-Kaimur, Gaya-Jehanabad, Arwal, Patna, Nalanda, Begusarai, Vaishali, Gopalganj, Aurangabad, Bettiah (West Champaran) and Bhagalpur. The Additional Advocate General states that complete information has yet to be received by him. The Additional Advocate General also confirms that absconders have filed nomination papers and certain Returning Officers have rejected such nomination papers filed by absconders seeking election. 2. Criminalization of politics is a subject which is freely discussed within the confines of sitting rooms of the leisured class every evening, with no result. Much concern has been expressed over threats to democracy by persons who violate the law with impunity. There is no doubt in anybodys mind that such persons are to be cooked. But in India, politics has a back door for such persons. This back door entry is an unseen danger to the very pedestal on which the Constitution of India stands. 3. Liberty, Equality and Fraternity are ringing expressions, right out of the French Revolution. These words are imbedded like jewels in the Preamble to the Constitution of India. Before anyone ventures to go to the Freedom clauses of the Constitution, the exercise to protect Freedom and Democracy will have to keep in sight the Preamble itself. The spirit of Democracy in the Indian Constitution, particularly the Preamble, the Chapter on Fundamental RightsPart 3, and the Directive Principles of State Policy-Part 4, is a concept born out of four revolutions. The first debunked the superiority of kingship and subjected it to the collective rule of Parliament in the conflict between the Stuart kings and Parliament, which brought in Oliver Cromwell as one of the greatest leaders of the time. He was a person who was offered a crown and declined. The first debunked the superiority of kingship and subjected it to the collective rule of Parliament in the conflict between the Stuart kings and Parliament, which brought in Oliver Cromwell as one of the greatest leaders of the time. He was a person who was offered a crown and declined. The American, French and Russian Revolutions all contributed to the concept which today people in the free world recognize as their inspiration, the image of a democracy based on orderly foundations of equality and law. 4. The debate often takes place that unless the law specifically debars a candidate he may participate in Democracy. The logic is good, and put to the best advantage of those who violate the law. But in India, if legislation may be lacking, then there is an answer in the Constitution of India to protect and nurture this new-found democracy, as it came into being in 1950. The Court is not going into any aspect of how old Democracy in India is, dating back to ancient times and perhaps one of the oldest Democracies in the world; this is not the subject before the Court. But some concepts must be very clear as to how the Constitution of India frames our Democracy at present. Very often forgotten and rarely read is the Preamble to the Constitution which declares : WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure to all its citizens ; JUSTICE, Social economic and political; Liberty of thought, expression, belief, faith and worship; EQUALITY of status and opportunity; and to promote among them all; FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY THIS TWENTY SIXTH DAY OF NOVEMBER, 1949, DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. 5. The Preamble is short but each word is pregnant with meaning. The reference to "sovereign" is sovereignty which has to be protected from forces within and without. The reference to "socialism" is clear that no one is tied to any bound of a feudal system and the citizens shall share in the means of production and distribution and the benefits which the State shall provide. The reference to "secular" marks India as a State which is not Theocratic. The reference to "socialism" is clear that no one is tied to any bound of a feudal system and the citizens shall share in the means of production and distribution and the benefits which the State shall provide. The reference to "secular" marks India as a State which is not Theocratic. The expressions "Democratic" and "Republic" are best read together as the culmination of independence from colonial rule. But then there is more to the Preamble. Preceded by the expressions "liberty, equality and fraternity" which come out of the French Revolution, is the word "justice". On social equality, citizens will be on an equal plain, they will have equal rights and responsibilities, equal protection by Law and duty to obey it. The three expressions have been explained in the Preamble itself. LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and the integrity of the nation. The Constitution so enacted with this Preamble, the Republic was formed. This Republic has to be preserved and protected. And, thus all laws have to be understood under this guidance and theme. 6. When the first Parliament met after the general elections, and along with it the State Legislatures, it was a significant event for the world. Parliamentary democracy in the Republic of India had been firmly entrenched, and a spirit of federalism was allpervading between the Union Parliament and the State Legislatures. There were no issues that criminals were in politics at that point. There were great leaders from different parts of the nation, different creeds and with ideologies that may have differed, but all were law-abiding citizens. They got together for the world to see that Parliamentary Democracy in its best form was possible in India, and that it functioned within the rules of the game. 7. But no sooner had two decades passed, than a new phenomenon was being witnessed known as the toppling game in politics. Getting rid of the party voted into power became more important than participating in governing. Democracy has a broad base, like a pyramids, for it must stand on the strength of the people at the grass roots. The next phase in bad politics was superceding this grass roots level of democracy. Getting rid of the party voted into power became more important than participating in governing. Democracy has a broad base, like a pyramids, for it must stand on the strength of the people at the grass roots. The next phase in bad politics was superceding this grass roots level of democracy. Some States even passed legislation to give sanction to supercede self government institutions. This was a dangerous phase. It was shaking up the newfound Democracy and the Republic itself, leaving the voters distanced from the process and feeling powerless in the political arena. 8. Toppling governments voted to govern and making grass root Democracy disappear brings in an element of syndicalism. It is leaving the door wide open for the mafia to enter politics, while the average citizen feels powerless. Thus the issue before the Court that there may be criminals in politics, is a price which the Indian citizen has paid for the toppling game in politics and gagging grass root Democracy. 9. If Democracy is based on "fraternity" then fraternity as mentioned in the Constitution insures the dignity of the individual, and this dignity of the citizen is to be read with the unity and integrity of the nation. If dignity and criminality can coexist, then "fraternity" has no meaning. If unity and integrity is to be a bond between the citizen and the nation then the integration of the criminal is an antithesis. Equality between citizens cannot be an equality between the law-abiding and the certified criminal. All must equally obey the law. Citizens who abide by the rule of law cannot be equated with bail-jumpers, absconders hiding from warrants of arrest and running away from orders on attachment. This is not democracy. This is also not the harmonious blending of "justice, liberty, equality and fraternity" all words used in the Preamble. Democracy as ordained in the Constitution of India is meant to keep the law-abiding citizen and the law-breaker apart. In grass roots politics, a man with a conviction on his record is to be kept out of local government. Would different standards apply in representing the people in State Legislature and the Parliament? 10. The issue before the Court arises on the eve of elections to certain seats in the Bihar Legislative Council, that is, the Vidhan Parishad. In grass roots politics, a man with a conviction on his record is to be kept out of local government. Would different standards apply in representing the people in State Legislature and the Parliament? 10. The issue before the Court arises on the eve of elections to certain seats in the Bihar Legislative Council, that is, the Vidhan Parishad. There are seats which will be filled after election and are referred to in Article 171 of the Constitution; seats of persons elected by electorates consisting of members of Municipalities, district boards and such other local authorities in the State. 11. in theory no one denies that politics must be cleansed of all shades of criminality. The Law does not encourage criminals in politics, but perhaps suffers them. Why is that? The election to the Legislative Councils are governed by the Manual of Election Law, containing enactments dealing with the conduct of elections to the Parliament and the State Legislatures framed under the Representation of the People Act (1951), and the rules that have been framed under this Act. Upon the elections being announced, the nomination paper is Form 2E in the context of Rule 4 of the Conduct of Election Rules (1961). In the context of the present issue, a clause which a candidate has to fill and be conscious of is clause 1D in the form, which says : "That to the best of my knowledge and belief I am qualified and also not disqualified, for being chosen to fill the seat in the Legislative Council of......" Other qualifications apart for instance, age and being a citizen of India-the rest has been left to the morality of politics. What ought to be cause for disqualification has become more theory, but not practice. 12. The law does provide for disqualification on conviction for offences. Learned Additional Advocate General joins the court in pointing out to the provisions of the Act. Section 8 provides for disqualification. The disqualification is subject to sub-section (4) to take effect after three months and if within that period an appeal or a revision is filed, it will be subject to the result of such an appeal or revision. 13. A false declaration in a nomination paper by a candidate or his proposer, by failing to give information as required under section 33A, provides for penalty under section 125A. This penalty may be imprisonment or fine. 13. A false declaration in a nomination paper by a candidate or his proposer, by failing to give information as required under section 33A, provides for penalty under section 125A. This penalty may be imprisonment or fine. Section 125A speaks of a false affidavit. This is perjury, punishable under the Indian Penal Code, 1860. This is disqualification and debars a candidate from entering an election arena. Democracy rests on the Rule of Law. It is not a heaven for perjurers. A nomination carrying a false declaration is liable for rejection when the nomination is subject to scrutiny under section 36. A false declaration is an inherent disqualification. The law of election as was enacted half a century ago had been tailored for gentlemen in politics. It had not postulated that absconders would also stand for election and in their declaration, the nomination, would suppress information that a warrant of arrest is being evaded or that they have jumped bail. Failure to furnish such information makes the nomination papers liable to rejection when subjected to scrutiny under section 36. 14. The Representation of People Act saw amendments by an Act of Parliament, Act 72 of 2002. These Amendments came, as is relevant in this context, as Section 33A amongst other provisions. The Subject is "Right to Information". The Section which was inserted as Section 33 A reads: 33. A. Right to information. (1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) of Section 33, also furnish the information as to whether (i) he is accused of any offence punishable with imprisonment for two years or more in pending case in which a charge has been framed by the court of competent jurisdiction; (ii) he has been convicted of an offence other than any offence referred to in sub-section (1) or sub-section (2) or covered in sub-section (3), of section 8 and sentenced to imprisonment for one year or more. (2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the Returning Officer the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1). (2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the Returning Officer the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1). (3) The Returning Officer shall, as soon as may be after the furnishing of information to him under sub-section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under sub-section (2), at a conspicuous place at his office for the information of the elector relating to a constituency for which the nomination paper is delivered. 15. Thus, Section 33A obliges a person filing a nomination paper to give all information about the person standing for election should he be an accused, the details of offences and conviction as referred to in section 33A. A sentence of imprisonment of one year or more has to be declared. Insofar as the Court is concerned, if there be morality in politics, evenif the sentence is of a lesser period, it ought to be revealed. Yesterday, a feeble plea was raised at the Bar that this information which has to be declared by a candidate, may not be so declared as a nomination form may also be presented by an agent. No sooner than the submission was made, it was retracted when the Court pointed out that the agent has no more authority than the principal and if the Law were to be seen (Section 33A) the obligation to truthfully declare is both on the candidate and the proposer, thus there is no escape. If a person has been an accused before entering the election arena, the information has to be provided to the public. This section itself says the people have a right to receive this information. 16. Not only this, after such information of criminals intending to enter politics is received, there is a duty on the Election Commission of India and or the State to display and advertise this information. This job has been left to the Returning Officer, to display the information at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is filed. The Court will even go further. This job has been left to the Returning Officer, to display the information at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is filed. The Court will even go further. Once the information becomes public information, then access to this information is the freedom of the people, who have the right to know. And the Returning Officer must make this information available at more conspicuous places so that the electorate is made aware of criminals in politics and may decide their options to utilize their adult, considered franchise in casting their vote with due diligence. Any rival candidate would have the right to utilize this information in a campaign by publication or otherwise. 17. Then, there is the other aspect and this does not relate to criminals and convicts. There are persons who have been put under summons to appear in Courts and will not appear. There are persons who face warrants of arrest to compel their attendance before the Court which issued them summons to appear. There are persons who have jumped Bail and have violated their Bail Bonds. There are absconders who have been declared as such by Courts of competent jurisdiction. These persons baulk the Law; they laugh at the Law Courts, they mock the Laws of the nation that they cannot be subjected to distress and obedience to appear before the Court that has issued them notice. Their conduct is subversive to the rule of Law on which Democracy must rest. These persons are the "mafia" who laugh at the Public Justice system and Courts which have been constituted under the laws of the nation and the Constitution of India. At the Patna High Court, a person may not file a criminal revision challenging his sentence or conviction unless he surrenders in Court first. Can there be any duality of standards, or two sets of Laws, that before a person applies for Bail he must surrender to the Court and the Bail application will be considered subsequently? Then, what confidence will people have in their Democracy if an absconder and a Bail jumper will not appear before the Court that calls him, but will still be standing for election, for all the world to see? How can candidates not be subject to the law of the land, equally with all other citizens? Then, what confidence will people have in their Democracy if an absconder and a Bail jumper will not appear before the Court that calls him, but will still be standing for election, for all the world to see? How can candidates not be subject to the law of the land, equally with all other citizens? Such persons are obliged to appear before the Court that has issued warrants of arrest against them, declaring them absconders. The liberty of such persons is curtailed. They have to honour the rules of law first, to stand for election is only a licence which a Democracy grants. There is a difference between the class of persons who violate the law, and those who abide by it. Those who break the law are not in equality with the law abiding. The Preamble to the Constitution itself makes it amply clear that those who violate the law and have been certified as having violated the law are not on terms of equality so as to claim "justice, liberty, equality and fraternity." 18. In short, absconders and those who have jumped their bail, cannot enter the election arena. Such persons cannot cook a snook at the Law and have the luxury of displaying their powers in politics. They must first surrender to the Court in any terms which the Court may set upon them. Of criminals in politics in the context of Section 33A, their criminal background is public information which the public has a right of access to. The spirit of this right of information, in the present context, is clear that the criminal background of such persons standing for election is to be advertised widely so as to make the electorate aware of the choices they have to make between citizens who lived by the law and criminals who have violated it. 19. This Court thus orders that those who come within the Section 33A, are obliged to reveal the offences which they have been convicted or charged with, and these must receive the widest publicity to make the electorate aware. 19. This Court thus orders that those who come within the Section 33A, are obliged to reveal the offences which they have been convicted or charged with, and these must receive the widest publicity to make the electorate aware. Further, of those who have been declared as absconders and have not surrendered, these persons also violate the rule of law and they cannot make a mockery of the law and the Courts and their candidatures must be cancelled by the Returning Officers concerned because even on the eve of elections they have shown scant respect of the law of the land. 20. So ordered. 21. Thus, the Interlocutory Application No. 2598 of 2003 receives orders as above. 22. Let a copy of this order be handed over to the counsel for the petitioner, the State, the State Election Commission and the Election Commission of India.