The Supreme Court recently penalized eight political parties including the BJP & Congress for flouting its orders related to disclosure of pending criminal cases against party candidates. The court also issued a slew of fresh guidelines in this regard.
The Supreme Court of India (SCI) has recently imposed a penalty on major political parties in its judgment on 10 August 2021, including the BJP and Congress, for not making public, the pending criminal cases of the candidates they had fielded in the Bihar Assembly polls held in 2020. The Bihar elections were the first major election held after the apex court’s directions on 13 February 2020 aimed at decriminalization of politics. The directions have been modified by the Supreme Court in its judgement on 10 August 2021 in response to a plea of contempt filed by advocate Brajesh Singh against ten political parties for flouting its orders regarding disclosing criminal antecedents of candidates in the 2020 Bihar Assembly elections.
SC issued orders to make criminal antecedents of contesting candidates public in 2020
On 13 February 2020, noting the increasing criminalization of politics in India and the lack of information about such criminalization among the citizens, the SCI directed that political parties must publish detailed information about the pending criminal cases against the party candidates such as the nature of offences, whether charges have been framed, concerned Court, and case number, along with reasons of selection of the candidate, and why other candidates without criminal antecedents were not selected. The reasons should be based on the qualifications, merit, and achievements of the candidates. All these details were supposed to be uploaded on the websites of the political parties, published in the local vernacular newspaper and a national newspaper, and on the official social media platforms of the party including Facebook and Twitter. We had written a detailed story on this judgment earlier.
In the recent judgement, the 2020 order has been re-interpreted and modified
Further to the directions issued in 2020, the SC bench of Justices R F Nariman and B R Gavai issued additional directions to make “the right of information of a voter more effective and meaningful”. The measures which aim to make access to the information easier and ensure compliance with the SC’s orders are the following.
- Political parties must publish the information regarding criminal antecedents of candidates on the homepage of their websites. Henceforth, political parties must have a caption on the homepage stating, “candidates with criminal antecedents.” This is in addition to the mandatory publication of criminal antecedents of candidates on social media handles and newspapers as cited in the 2020 order, making access to the information for the public easier.
- The Election Commission of India (ECI) must create a dedicated mobile application that contains information published by candidates regarding their criminal antecedents. This move enables voters to get the information easily on their mobile phones.
- The ECI must carry out an extensive awareness campaign across various platforms including television advertisements, social media, websites, prime time debates, pamphlets, etc. to make every voter aware of their right to information regarding criminal antecedents of the contesting candidates and how to access the same. The Court added that a separate fund created through the deposition of fines by political parties shall be utilized for this purpose.
- The ECI must also create a separate cell for monitoring the required compliance. With the creation of such a cell, non-compliance to the SC’s orders by any political party can be promptly raised to the Court.
- The details which are required to be published as mentioned in the 2020 Order, should be published within 48 hours of the selection of the candidate. In the February 2020 judgment, the SC had ordered that the 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. This has been modified in the recent judgement noting the difficulty in publishing the details prior to two weeks before the first date of filing of nominations because of the existent statutory provisions.
- The February 2020 order mandated that the political party must submit a compliance report with the ECI in the specified formats within 72 hours of the selection of the candidate. Suppose a political party fails to submit such a compliance report with the ECI, the ECI can raise the non-compliance with the SC as being in contempt of this Court’s orders, which will be viewed seriously.
1 in 3 candidates in Bihar elections had criminal antecedents
The new directions were issued by the SC having noted the subversion of the February 2020 orders in the Bihar Legislative Assembly Elections which were held in October and November 2020, eight months after the issuance of directions in February 2020. According to the Association for Democratic Reforms’ reports on the Bihar Assembly Elections, it was found that in Phase I of elections, 31% of the candidates had criminal antecedents of which 23% had serious criminal cases against them. Serious criminal cases refer to cases related to murder, kidnapping, attempt to murder, crime against women including rape, etc. Similarly, in Phase II, 34% of total candidates had criminal antecedents and 27% had serious criminal cases against them. In Phase III, 31% of total candidates had criminal antecedents with 24% having serious criminal cases against them. Overall, 32% of the candidates which is 1201 out of 3733, had criminal antecedents.
Among the winning candidates, 68% of those who won as MLAs in 2020 (163 out of 241), had criminal antecedents, up from 58% in 2015. In 2020, 51% of winning candidates had serious criminal cases against them.
Most parties flouted the SC’s order in 2020 during the Bihar elections
In the contempt plea, it was brought to the notice of the SC that two parties had not submitted Form C7 or C8 for any of its candidates completely violating the SC’s Orders from February 2020. Further, it was also commonly observed among political parties that forms were filled in a vague and mechanical manner, or the criminal antecedents were published in newspapers that were of low circulation. It was also observed that ‘winnability’ was specifically provided as a reason for selection by one party and identical reasons for selection were provided for all candidates by another. Also, the forms were not filed for all the candidates from the political party. The SC noted the non-compliance and partial non-compliance to its 2020 Orders and imposed fines on the parties, ranging from Rs. 1 lakh to Rs. 5 lakhs. The Court also added that “these were the first elections which were conducted after issuance of our directions, we are inclined to take a lenient view in the matter. However, we warn them that they should be cautious in future and ensure that the directions issued by this Court as well as the ECI are followed in letter and spirit”. The Court also urged the lawmakers to rise to the occasion and take steps for bringing out necessary amendments so that the involvement of persons with criminal antecedents in the polity is prohibited.
SC directs that cases against sitting legislators cannot be withdrawn without HC’s sanction
In September 2020, the SC asked the High Courts to formulate an action plan to rationalize the disposal of these pending criminal cases against sitting MPs and MLAs. The number of criminal cases pending against the sitting MPs and MLAs was 4,122 in December 2018 which increased to 4,859 in October 2020, according to the report filed by the amicus curiae Vijay Hansaria in the Supreme Court.
On 10 August 2021, the SC ordered that Judges hearing the criminal cases against sitting or former MPs and MLAs should continue in their current posts until further orders of the Supreme Court, subject to retirement/death. Furthermore, the Court also ruled that states cannot withdraw cases against MPs and MLAs without the corresponding high court’s sanction since states could misuse the power conferred under Section 321 of CrPC 1973 which allows for withdrawal of prosecution after obtaining written permission from the state government. The Bench also directed the Registrar General of all High Courts to provide information including details of names of judges, place & date of posting, cases disposed of during posting, etc. as given in the table.
