On ‘alarming increase of criminals in politics’, SC rules records must go online
Both the Bharatiya Janata Party (BJP) and the Congress welcomed the verdict, and said it will help deal with the criminalisation of politics.
Noting an “alarming increase of criminals in politics”, the Supreme Court (SC) ruled on Thursday that all political parties must publicise, on their respective party websites, social media handles, and in newspapers, the details of candidates with criminal backgrounds who have been fielded to contest elections within a specified time period. It also said that parties must explain the reasons for selecting the candidate, and why someone without a criminal record was been selected instead.
Both the Bharatiya Janata Party (BJP) and the Congress welcomed the verdict, and said it will help deal with the criminalisation of politics.
The SC order was passed in response to contempt petitions, which, among other things, pointed out that despite directions given by court in an order on September 25, 2018, for decriminalisation of politics, the government and the Election Commission of India (EC) failed to take concrete steps on the issue.
The Supreme Court, in its 2018 judgment, asked for an enactment of a law to decriminalise politics, instructed candidates to fill in details of pending criminal cases against them in the form provided by EC, and ordered the disclosure by parties of the background of the candidates on public platforms.
Thursday’s order, delivered by a bench of justices Rohinton Nariman and S Ravindra Bhat, strengthens the 2018 order, in the backdrop of the complaints about its weak implementation, in four ways.
One, the SC has now ruled that the details to be provided by the parties should include the nature of the offences, relevant details such as whether charges have been framed, the concerned court in which the case is pending, and the case number.
Two, the SC has directed the parties to furnish reasons for selecting the concerned candidate with a criminal record. Such reasons for selection, the court said, should be regarding the qualifications, achievements and merit of the candidate, and not mere “winnability” in the polls.
The judgment said: “It shall be mandatory for political parties [at the central and state level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned Court, the case number etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.”
The court said the information will have to be published in one local vernacular newspaper and one national newspaper, and on the official social media platforms of the political party, including Facebook and Twitter.
The third principle added to the 2018 jurisprudence on the matter is that these details must be published within 48 hours of the selection of the candidate, or at least two weeks before the first date for filing of nominations, whichever is earlier.
And four, the top court has said that political parties should submit, before EC, a report of compliance with the court’s directions within 72 hours of the selection of a candidate with criminal cases. If a political party fails to submit such a compliance report, the court said the EC should bring the non-compliance to the notice of the Supreme Court so that a contempt case can be initiated.
Political parties have welcomed the order.
“Orders of the Supreme Court have to be complied with. It strengthens the electoral and democratic process in enabling voters to make a choice keeping all factors in mind,” said BJP spokesperson Nalin Kohli.
Congress spokesperson Jaiveer Shergill said that the order was an important step towards decriminalising politics. He claimed that it was also a vindication of party leader Rahul Gandhi’s fight against criminalisation of politics. The main opposition party also accused the BJP of tearing the order to shreds by appointing a tainted minister in the Karnataka government.
The Samajwadi Party (SP)?welcomed the directive. “If there are cases against our party leaders, then those cases are related to dharna/demonstrations... In fact, SP?national president Akhilesh Yadav is a rare leader in the country. He fought against criminal elements in the party and cleansed the party,”?said party?leader Ram Govind Chaudhary.
The Rashtriya Janata Dal’s (RJD) Mritunjay Tiwary said: “We will abide by the SC ruling, but it is natural for political leaders associated with movements to face such cases. Many of the cases faced by legislators are due to conspiracies.”
The Bahujan Samaj Party (BSP) and the Aam Aadmi Party (AAP) refused to comment on the top court’s ruling
At the root of the SC’s order is the weak implementation of the 2018 order.
Ashwini Kumar Upadhyay, one of the petitioners, submitted that EC had, in line with the court directive, issued directions to political parties and candidates to publish criminal antecedents. But EC did not make the necessary amendments to the rules governing this field — election symbols order and model code of conduct — and hence its directions did not have any legal sanction. Further, EC did not publish a list of leading newspapers and news channels wherein criminal antecedents of the contesting candidates had to be publicised. Upadhyay claimed that political parties took advantage of the same and published criminal antecedents in unpopular newspapers and news channels and at odd hours when people don’t watch TV.
The election commission, too, during the hearing on January 24, acknowledged that the SC’s directions to give wide publicity to the criminal antecedents of candidates contesting elections failed to yield the desired results.
The court, in its judgment on Thursday, noted that there has been an alarming “increase in criminals in politics”. In 2004, 24% of the members of Parliament (MPs) had criminal cases pending against them; in 2009, it went up to 30%; in 2014, this spiked to 34%. In 2019, 43% of MPs had criminal cases pending against them.
Senior counsel Gopal Sankaranarayanan, who represented the petitioner, welcomed the verdict and said he hoped this serves as a “wake-up call” to parties to be careful about their choices. He highlighted two key features of the order. “One is that it lets the public know that there is a conscious choice made by the party to select such a candidate. It is a bit embarrassing for the party to try and explain why they chose such a candidate. The second is that if they don’t publish these details, then they will liable for contempt.” If a party was liable for contempt, Sankarnarayanan added, a possible outcome was the loss of the party symbol.
Experts believe that a lot will hinge on compliance.
“It would be interesting to watch the compliance by political parties and the action taken by the EC thereafter in the event of non-compliance. The potential loss of election symbol should ensure that political parties are forced to comply and at least think twice before nominating candidates with extreme criminal records,” said senior counsel Sanjay Hegde.
Supreme Court advocate Sriram Parakkat said the court’s order meant that any case filed by anyone against a candidate will have to be disclosed and publicised. “The contempt judgment as well as the main judgment [of 2018] strike at the root of presumption of innocence, which, in my view, is what separates a society having rule of law from the other.”
There have been concerns that the order could end up undermining the reputation and image of many candidates, who may face charges, possibly arising out of political motives, and have not been convicted.
Sankarnarayan argues this is not true. “There might be false cases or frivolous cases but it will be for the political party to explain why they chose that person with those cases... Even as per the Representation of People Act, a candidate has to disclose details of cases in which charges have been framed. If charges have been framed, it means the court has stepped in and taken a view.”