New Delhi, Aug 10 (ILNS) The Supreme Court today imposed fines on political parties for failure to comply with the judgment of disclosing criminal antecedents of candidates contesting polls in Bihar and directed the Election Commission to create a dedicated mobile application containing information published by candidates regarding their criminal antecedents so that at one stroke, each voter gets such information on his/her mobile phone.
A bench comprising of Justice Rohinton Fali Nariman and Justice B.R. Gavai imposed a fine of Rs 5 lakh on CPI(M) & NCP and Rs 1 lakh fine on BJP, INC, Janta Dal, RJD, CPI & LJP on political parties for failure to comply with the judgment of disclosing criminal antecedents of candidates contesting.
The Court also directed that the Political parties must publish criminal antecedents of candidates within 48 hours of the selection of the candidate and not prior to two weeks before the first date of filing of nominations.
“We reiterate that if such a political party fails to submit such compliance report with the ECI, the ECI shall bring such noncompliance by the political party to the notice of this Court as being in contempt of this Court’s Orders/directions,” said bench of Justice Rohinton Fali Nariman and Justice B.R. Gavai.
The Court clarified that ECI cannot be said to be in contempt and directed it to create a dedicated mobile application containing information published by candidates regarding their criminal antecedents, so that at one stroke, each voter gets such information on his/her mobile phone. It also mandated an awareness campaign.
The bench delivered its judgment in contempt case of “Brajesh Singh v. Sunil Arora & Ors.” This contempt petition was filed on the backbone of the judgment delivered on February 13, 2020 titled as ‘Rambabu Singh Thakur v. Sunil Arora and Ors.’ whereby directions were passed in the judgment delivered on September 25, 2018 in Public Interest Foundation and Ors. v. Union of India and Anr. (2019) 3 SCC 224. The judgment was delivered by Justice Rohinton Fali Nariman.
The Apex Court found Janata Dal United, Rashtriya Janta Dal, Lok Janshakti Party, Indian National Congress, Bharatiya Janata Party, Communist Party of India in contempt and directed them to deposit an amount of Rs. 1 Lakh each in an account created by the ECI within a period of 8 weeks from the date of the judgment. Further, observing that Communist Party of India (Marxist) and Nationalist Congress Party had not at all complied with the directions, they were directed to deposit an amount of Rs. 5 Lakh each in the above mentioned account. With regards others, the court took a lenient view.
The Court said, In furtherance of the directions issued by the Constitution Bench in Public Interest Foundation and our Order passed on February 13, 2020, in order to make the right of information of a voter more effective and meaningful, we find it necessary to issue the following further directions:
(i) Political parties are to publish information regarding criminal antecedents of candidates on the homepage of their websites, thus making it easier for the voter to get to the information that has to be supplied. It will also become necessary now to have on the homepage a caption which states “candidates with criminal antecedents”;
(ii) The ECI is directed to create a dedicated mobile application containing information published by candidates regarding their criminal antecedents, so that at one stroke, each voter gets such information on his/her mobile phone;
(iii) The ECI is directed to carry out an extensive awareness campaign to make every voter aware about his right to know and the availability of information regarding criminal antecedents of all contesting candidates. This shall be done across various platforms, including social media, websites, TV ads, prime time debates, pamphlets, etc. A fund must be created for this purpose within a period of 4 weeks into which fines for contempt of Court may be directed to be paid;
(iv) For the aforesaid purposes, the ECI is also directed to create a separate cell which will also monitor the required compliances so that this Court can be apprised promptly of non-compliance by any political party of the directions contained in this Court’s Orders, as fleshed out by the ECI, in instructions, letters and circulars issued in this behalf;
(v) We clarify that the direction in paragraph 4.4 of our Order dated February 13, 2020 be modified and it is clarified that the details which are required to be published, shall be published within 48 hours of the selection of the candidate and not prior to two weeks before the first date of filing of nominations; and
(vi) We reiterate that if such a political party fails to submit such compliance report with the ECI, the ECI shall bring such non- compliance by the political party to the notice of this Court as being in contempt of this Court’s Orders/directions, which shall in future be viewed very seriously.”
The contempt petition was filed by Adv. Brajesh Singh against the Chief Election Commissioner and leaders of political parties for letting ‘dreaded criminals’ contest in the Bihar Assembly polls that were held in October/November of 2020. The petitioner had also submitted that blood relatives of the convicted persons had contested elections as ‘proxy’. According to the petitioner who was concerned specifically with the non-adherence to the directions of the Court by the political parties stated that the issue concerns itself with the larger public interest in the exercise of the constitutional right of ‘right to vote’.
Judicial notice of the necessity for electoral reforms with regard to unsettling criminalization of politics was taken by the Supreme Court in a PIL filed by Public Interest Foundation in 2011 seeking expansion of grounds for disqualification of membership in the legislatures to include disqualification of candidates and legislators facing serious criminal charges. In a unanimous judgment passed in Public Interest Foundation and Ors. v. Union of India and Anr. (2019) 3 SCC 224 the constitution bench of the Supreme Court held that it did not have the power to disqualify candidates from legislative bodies upon framing charges. It had declined to add further criteria for disqualification under section 8 of the Representation of Peoples Act, 1951. However, the Court did mandate dissemination of information in public interest.
The judgment passed on February 13, 2020 passed by the Supreme Court in Rambabu Singh Thakur v. Sunil Arora and Ors. Contempt Pet. observed that there has been an alarming increase in the incidence of criminals in politics. It was noted that in 2004, 24% of the members of Parliament had criminal cases pending which had gone up to 30% in 2009, 34% in 2014, and 43% in 2019.
Therefore, the Court in the exercise of powers under Articles 129 and 142 of the Constitution, passed the directions to the effect that it shall be mandatory for political parties to upload the pending criminal cases along with details of the offenses and relevant particulars on their websites. The information was also supposed to be published in one local newspaper and one national newspaper and on social media platforms of the political party within 48 hours of the selection of the candidate and not less than two weeks before the first date for filing of nominations, whichever was earlier. The compliance with these directions was to be reported to the Election Commission within 72 hours of the selection of the candidate. It mandated the Election Commission to bring non-compliance on the part of the political party to the notice of the. It further directed that selection of candidates shall be with reference to qualifications, achievements, and merit and not mere winnability.
The Court had vided the judgment in Public Interest Foundation and Ors. had observed that “the law making wing of the democracy of this country will take it upon itself to cure the malignancy.” Considering Section 8 of the RP Act and the 244th Law Commission Report titled ‘Electoral Disqualifications’ of February 2014, it had passed directions whereby information as regards criminal cases of the candidates were to be put in the public domain and the onus was placed on political parties to put up such details on its website and a declaration by the candidate and the political party about antecedents were to be published in newspapers and given wide publicity (at least thrice after filing of nomination papers) in electronic media.
Criminalization of politics
Political parties owing to the sentiments of the public in a democratic country have time and again chosen candidates who are popular regardless of the criminal antecedents. The directions of the Supreme Court are undoubtedly laudable. However, it is worth mentioning that it is near impossible to put fetters on a political party in choosing a candidate in the absence of provisions made in this regard by the legislature. In the Public Interest Foundation and Ors. case, the Supreme Court had rightly put the ball in the court of the legislatures to amend the Representation of Peoples Act, 1951.
This year, the National Election Watch and Association of Democratic Reforms had analyzed the self-sworn affidavits of 6318 out of 6792 candidates who contested in the recent Assembly elections in Assam, Kerala, Tamil Nadu, and West Bengal, and Pondicherry. It found that 18% of the candidates had declared criminal cases and 10% had declared serious criminal charges. The issue of criminalization of politics has myriad issues which also involve a debate on the relation of crime and society. The interplay between criminals and politics is not novel. It is reasonable to assume that given the power wielded by the politicians over the bureaucracy especially the lower echelons of the administrative structure, those who have criminal cases pending against them are able to drag the cases and interfere with the investigation thereby hindering the judicial process.
It is imperative that the courts be vigilant and expeditious with regards to disposing of the pending cases against the politicians. This assumes importance as a conviction in a criminal case is the safeguard against unscrupulous elements entering politics. Section 8 of the Representation of Peoples Act, 1951 provides for disqualification on conviction for certain offenses. Vide Section 8(3) of the Act, it is mandated that a person convicted for an offense and sentenced to imprisonment for not less than two years be disqualified to be a member of the legislature from the date of conviction to a period of six years, therefore in effect rendering him incapable of contesting one subsequent election also.
Today, in another important decision on a petition filed by Ashwini Kumar Upadhyay seeking speedy trial in cases against the legislators, a three-judge bench of the Supreme Court comprising of Chief Justice of India NV Ramana and Justices Surya Kant and Vineet Saran passed an order holding that the High Courts were to examine the withdrawal of cases against the MPs and MLAs.
Recently in the case of State of Kerala v. K. Ajith 2021 SCC OnLine SC 510, the Supreme Court had the opportunity to deal with the issue of Kerala State Assembly ruckus in 2015 where the property of the House was destroyed and the State wanted to withdraw the prosecution. It was held that the Chief Judicial Magistrate was justified in declining consent for withdrawal. The Court considered Section 321 of the Code of Criminal Procedure, 1973 which deals with the withdrawal of prosecution, and held that it is only with the consent of the Court that prosecution may be withdrawn. After deliberating on the issues of immunities and privileges of legislators under Articles 105 and 194 of the Constitution, the Court observed that they are ‘not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen.’ This case serves as a stellar example where the judiciary acts as a guardian of the cherished sentiment of the public that regardless of power politics, crime should not be condoned.
India is the world’s largest democratic country. The faith of the citizenry in its institutions should not be shaken due to the conduct of persons who have criminal antecedents. Therefore, apart from the judicial and legislative sanctions against the criminalization of politics, there is a pressing need for communicating the true facts concerning those who seek to represent the public. In this regard, the judgments of the Supreme Court and directions issued subsequently should be adhered to in letter and spirit./ILNS/KR/SNG