“The nation continues to wait, and is losing patience. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government.”
Supreme Court: A Division Bench comprising of R.F. Nariman and B.R. Gavai, JJ. found several political parties guilty of contempt of court for non-compliance of directions given by the Supreme Court in Rambabu Singh Thakur v. Sunil Arora, (2020) 3 SCC 733 in connection with disclosure of information of candidates with criminal antecedents. Penalties have been imposed on the political parties found guilty. The Court also issued further directions in order to make the right of information of a voter more effective and meaningful.
The instant contempt petition arose out of elections held to the Bihar Legislative Assembly in October/November 2020. Brajesh Singh, Advocate registered with the Bar Council of Delhi, filed the contempt petition bringing to the Court’s notice that its directions given vide Rambabu Singh Thakur, (2020) 3 SCC 733 were being flouted.
Earlier Directions
It is seemly to note that the Constitution Bench in Public Interest Foundation v. Union of India, (2019) 3 SCC 224 had issued several directions to the effect that the candidates and political parties were obligated to disclose information pertaining to criminal antecedents of candidates. As a sequel, following directions were issued in Rambabu Singh Thakur, (2020) 3 SCC 733:
(i) It shall be mandatory for political parties (at the Central and State election 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 Court concerned, 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.
(ii) The reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls.
(iii) This information shall also be published in: (a) one local vernacular newspaper and one national newspaper; (b) on the official social media platforms of the political party, including Facebook and Twitter.
(iv) These details shall be published within 48 hours of the selection of the candidate or not less than two weeks before the first date for filing of nominations, whichever is earlier.
(v) The political party concerned shall then submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate.
(vi) If a political party fails to submit such compliance report with the Election Commission, the Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of the Court’s orders/directions.
Pursuant to the order in Rambabu Singh Thakur, (2020) 3 SCC 733, the Election Commission of India (“ECI”) issued a letter to all National and State level recognised political parties asking them to comply with the directions of the Supreme Court, and also issued a new Form C-7 in which the political parties have to publish the reason for selection of candidates with criminal antecedents in addition to all other relevant information. Also, in Form C-8, the political parties were then to report compliance of the Supreme Court’s order and the directions contained therein within 72 hours of selection of the candidate.
Bihar Legislative Assembly Elections, 2020
Assembly Elections in Bihar were held in October/November 2020. As per the report issued by Association for Democratic Reforms, it was found that 32% contesting candidates had criminal antecedents. Further, 68% of winning candidates had criminal antecedents. Out of these winning candidates who had criminal antecedents, 51% had serious criminal cases against them including cases related to murder, kidnapping, attempt to murder, crime against women including rape, etc.
ECI filed a report in the Supreme Court informing that out of 10 recognised political parties which contested general elections to the Bihar Legislative Assembly in 2020, 8 political parties submitted information about criminal antecedents of the contesting candidates and only 2 political parties, namely Communist Party of India (Marxist ) and Nationalist Congress Party that fielded 4 and 26 candidates respectively with criminal antecedents, did not furnish the requisite information.
Political parties found in contempt of Supreme Court directions
Senior Advocate K.V. Viswanathan, acting as Amicus Curiae, prepared a chart (appended as Annexure I to the judgment) to show how all the political parties have been flouting the Court’s directions, and fielding persons whose criminal antecedents show that they have been charge-sheeted or charged with serious offences, with no real reason as to why such person has been preferred over other more deserving candidates. In addition, he also brought to Court’s notice that in the concluded Bihar Assembly Elections, 2020, the required forms were either not filled by the political parties or were filled without disclosing particulars.
Foremost, the Supreme Court referred to provisions of the Representation of the People Act, 1951 including Section 33-A (Right to information). Then, after recording the evolution of law on the subject through several judicial pronouncements, the Court stated:
“The nation continues to wait, and is losing patience. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government.”
The Court considered the facts pointed out by the petitioner in the instant contempt petition and found several political parties to be in contempt of the order in Rambabu Singh Thakur, (2020) 3 SCC 733. The reasons for such finding is indicated below:
Janta Dal (United): Reasons given by the party for the nomination of a candidate from the Belaganj Assembly were inadequate and not in consonance with the Supreme Court directions. Further, the party filled Form C-1 and C-2, which specifies the format for publication of criminal antecedents of candidates in newspapers, in a vague and mechanical manner.
Rashtriya Janta Dal: The party cited ‘winnability’ as the only reason for selection of candidates, which is in the teeth of the Supreme Court directions.
Lok Janshakti Party: The party gave identical reasons for selection of 5 of its candidates and had also filled Form C-2 in a mechanical manner.
Indian National Congress: Criminal antecedents were published in newspapers of low circulation and the forms in which details of criminal antecedents have to be published were filled in a mechanical manner. The party gave reasons along the lines of ‘winnability’ for selection of candidates accused of serious offences. Supreme Court’s were directions not followed in letter and spirit.
Bharatiya Janata Party: The party failed to submit Form C-7 in respect of one of its candidates without acceptable reason and the party did not provide reasons for selection of its candidates which were in line with Supreme Court directions.
Communist Party of India (Marxist): The party was one of the two parties that did not submit Form C-7 or C-8 for any of its candidates and, therefore, was fully non-compliant with Supreme Court directions. An oversight on part of the State Committee of the party cannot be a ground for non-compliance of the directions.
Nationalist Congress Party: The party was one of the two parties that did not submit Form C-7 or C-8 for any of its candidates and, therefore, was fully non-compliant with Supreme Court directions. The dissolution of the State Committee of the party a few months prior to the election in the State of Bihar cannot be a ground for non-compliance of the directions.
Communist Party of India: Criminal antecedents were published in newspapers of low circulation and the forms in which details of criminal antecedents have to be published were filled in a mechanical manner. The party justified selection of some candidates accused of serious offences by stating that the cases “do not have any substance”. The party did not follow Supreme Court directions in letter and spirit.
Rashtriya Lok Samta Party: The party gave same reason for selection of 5 of its candidates in a stereotyped manner.
Penalty
Taking into consideration that these were the first elections which were conducted after issuance of the directions in Rambabu Singh Thakur, (2020) 3 SCC 733, the Supreme Court was inclined to take a lenient view in the matter. It, however, warned the political parties that they should be cautious in future and ensure that the directions issued by the Supreme Court as well as ECI are followed in letter and spirit.
Since Communist Party of India (Marxist) and Nationalist Congress Party did not at all comply with the directions, the Court ordered them to deposit an amount of Rs 5 lakh each in a specified account. All other parties found in contempt were ordered to deposit an amount of Rs 1 lakh each.
It may be noted that the Court found in all 9 parties to be guilty of contempt; but as per the direction, penalty was levied only on 8 parties. No penalty was specified for Rashtriya Lok Samta Party (Respondent 12).
Caution to the Election Commission of India
The Court accepted ECI’s argument that it cannot be said to have committed any contempt of the directions in Rambabu Singh Thakur, (2020) 3 SCC 733 as ECI did bring flouting of directions to Court’s notice. The Court, however, cautioned ECI to do so as promptly as possible in future so that prompt action may be taken by the Court.
Incidental Discussion
Political party’s freedom to select candidate of choice
Recapitulating the directions given in Rambabu Singh Thakur, (2020) 3 SCC 733, the Court said that the directions were given so as to enable the voter to have an informed choice while exercising his right to vote. What had been directed, was only to provide information to the voter so that his right to have information as to why a particular political party has chosen a candidate having criminal antecedents and as to why a political party has not chosen a candidate without criminal antecedents, is effectively guaranteed. The Court was of the view that such a requirement would only enable the voter to have complete information and exercise his right to vote effectively.
It was clarified that a political party can always give a reason that a candidate with criminal antecedents is found to be more suitable than a person who does not have criminal antecedents. What was directed is that the reasons should not be with regard to “mere winnability at the polls”. The Court observed:
“The directions in no way impinge upon the right of a political party to choose a candidate of its own choice.”
Court cannot direct ECI to invoke powers under Clause 16-A of Symbols Order
The Amicus Curiae strenuously submitted that Supreme Court should issue a direction to ECI to invoke powers under Clause 16-A of the Election Symbols (Reservation and Allotment) Order, 1968 and take requisite action under the said clause to suspend, subject to terms and conditions, or withdraw recognition of political party that flouts the directions given by the Court in Rambabu Singh Thakur, (2020) 3 SCC 733.
The Court followed the law laid down in Public Interest Foundation, (2019) 3 SCC 224 wherein it was held that the prescription as regards disqualification is complete in view of provisions of the Representation of the People Act, 1951. The Constitution Bench had said that it is clear as noon day and that there is no ambiguity. It had further held that the legislature has very clearly enumerated the grounds for disqualification and the language of the said provision leaves no room for any new ground to be added or introduced.
Opining that the Court could not accede to the submission of the Amicus Curiae, it was reiterated that:
“The court cannot legislate”
Further Directions
Before concluding, the Court said that no one can deny that the menace of criminalisation in the Indian political system is growing day by day. Also, no one can deny that for maintaining purity of political system, persons with criminal antecedents and who are involved in criminalisation of political system should not be permitted to be the law-makers. It was observed:
“This Court, time and again, has appealed to the law-makers of the Country to rise to the occasion and take steps for bringing out necessary amendments so that the involvement of persons with criminal antecedents in polity is prohibited. All these appeals have fallen on the deaf ears. The political parties refuse to wake up from deep slumber.”
It was added that though the Court desired that something urgently requires to be done in the matter, its hands are tied and it cannot transgress into the area reserved for the legislative arm of the State. The Court commented:
“We can only appeal to the conscience of the law-makers and hope that they will wake up soon and carry out a major surgery for weeding out the malignancy of criminalisation in politics.”
In furtherance of the directions issued in Public Interest Foundation, (2019) 3 SCC 224 and Rambabu Singh Thakur, (2020) 3 SCC 733, in order to make the right of information of a voter more effective and meaningful, the Court found it necessary to issue 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, ECI is also directed to create a separate cell which will also monitor the required compliances so that the Supreme Court can be apprised promptly of non-compliance by any political party of the directions contained in the Court’s orders, as fleshed out by ECI, in instructions, letters and circulars issued in this behalf;
(v) The direction in paragraph 4.4 of the order in Rambabu Singh Thakur, (2020) 3 SCC 733 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) If such a political party fails to submit such compliance report with ECI, ECI shall bring such non-compliance by the political party to the notice of the Supreme Court as being in contempt of the Court’s orders/directions, which shall in future be viewed very seriously.
The contempt petition was disposed of in above terms. [Brajesh Singh v. Sunil Arora, 2021 SCC OnLine SC 571, decided on 10-8-2020]
