A push for reforms in electoral politics

Print edition : March 13, 2020
In a bid to cleanse electoral politics, the Supreme Court directs political parties to publish the reasons for selecting candidates with pending criminal cases.

Electoral reform in India has always required a push from the Supreme Court. Therefore, when the Supreme Court on February 13 made it mandatory for political parties to upload on their websites detailed information regarding candidates with pending criminal cases, along with the reasons for their selection and non-selection of others without criminal antecedents, it raised hopes that it had taken the much-needed step to cleanse electoral politics.

As a watchdog of democracy, the Supreme Court has had several successes in reforming India’s electoral process despite the government and the political parties proving intransigent in taking the initiative to adopt long-pending recommendations to cleanse the system. In 2002, the Supreme Court made it mandatory for candidates to disclose their criminal background, if any, along with their financial and educational background so as to enable the Election Commission (E.C.) to publish such information on its website. The court justified it as part of the right to information of the voter.

Thanks to the Supreme Court’s direction in 2013, the E.C. inserted the None Of The Above (NOTA) button in the electronic voting machines (EVMs) for the first time during the 2014 Lok Sabha elections.

In 2013, the court held that if a sitting MP or MLA was convicted, then he or she would be disqualified immediately and the seat held by him or her would be declared vacant, setting aside a legal provision that enabled such legislators to hold the office if they filed an appeal in a higher court against the conviction within three months. In 2018, the court directed that rules be amended to mandatorily require candidates and their associates to declare their sources of income. The court also directed setting up a permanent institutional mechanism to periodically collect the income data of legislators and their associates, and recommend action in cases where their assets had increased disproportionately.

S.C. directive

On February 13, the Supreme Court bench of Justices Rohinton Fali Nariman and S. Ravindra Bhat in Rambabu Singh Thakur vs Sunil Arora and others directed national and State political parties to disclose the reasons for the selection of candidates with reference to their qualifications, achievements and merit and not merely their “winnability”. The bench directed parties to publish such information in one local vernacular newspaper and one national newspaper, and on the official social media platforms of the political party, including Facebook and Twitter.

“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 nominations, whichever is earlier,” the bench held. The political party concerned shall then submit a report of compliance with these directions with the E.C. within 72 hours of the selection of the said candidate, the bench added.

“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 this court’s orders/directions,” the bench held categorically.

The bench issued these directions when the petitioners in this case brought to its attention the instance of a party disregarding the directions of a Constitution Bench of the Supreme Court in Public Interest Foundation and Others vs Union of India (2019).

In this 2019 judgment, the Supreme Court took cognisance of the increasing criminalisation of politics and the lack of information about such criminalisation amongst the citizenry. In order to remedy this information gap, the court held that each contesting candidate shall state in bold letters all the particulars with regard to the criminal cases pending against him or her while filling up the form provided by the E.C.

If a candidate was contesting an election on the ticket of a particular party, he/she was required to inform the party about the criminal cases pending against him or her; the political party concerned shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents, the court held.

“The candidate as well as the political party concerned shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filling of the nomination papers,” the court clarified.

On February 13, the court revisited its judgment in Public Interest Foundation and noted with concern that over the past four general elections, there had been an alarming increase in the number of criminals in politics. In 2004, 24 per cent of the MPs had criminal cases pending against them; in 2009, this number went up to 30 per cent; in 2014 to 34 per cent; and in 2019, as many as 43 per cent of the MPs had criminal cases pending against them.

On February 13, the court expressed its concern over an aberration which went unnoticed in Public Interest Foundation. “We have also noted that the political parties offer no explanation as to why candidates with pending criminal cases are selected as candidates in the first place,” the bench said and issued the necessary directions to remedy it in exercise of its powers under Articles 129 and 142 of the Constitution.

In Public Interest Foundation, the Constitution Bench, comprising the then Chief Justice of India, Dipak Misra, and Justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, in its unanimous judgment, recommended to Parliament the enactment of a robust law to make it mandatory for political parties to revoke membership of persons against whom charges were framed in heinous and grievous offences and to see that they are not fielded in parliamentary or Assembly elections. This, the bench believed, would go a long way in achieving decriminalisation of politics and usher in an era of immaculate, spotless, unsullied and virtuous constitutional democracy.

The Constitution Bench chose to recommend to Parliament, rather than read down the Representation of the People Act, 1951, for the purpose, because it felt it could not add to the list of grounds for disqualification of a legislator already provided by the law.

In Public Interest Foundation, the petitioners sought a direction to the E.C. to require a political party not to field a candidate with its party symbol if he or she is charge-sheeted for a serious offence. The court was also conscious of the Law Commission’s finding that candidates charged with crimes actually fared better in elections than “clean” candidates. Yet, the court’s insistence on disclosure of information regarding criminal antecedents of a candidate as a remedy surprised observers.

In Public Interest Foundation, the Centre contended that political parties should have the freedom to be associated with those charged with heinous offences under Article 19(1)(c) of the Constitution, which guarantees the fundamental right to form associations. The Centre also claimed that disclosure of such information in the public domain would compromise the right to privacy of the member concerned, which has been declared as a fundamental right by the Supreme Court. Perhaps these concerns dissuaded the Centre from enacting a law as recommended by the court even though the court did not find them valid. It remains to be seen whether the February 13 directions of the Supreme Court will make it see reason and take the next logical step to cleanse electoral politics.

Given the role of public perception in the consolidation of support for a political party, it is difficult for any party not to publicly hail the Supreme Court’s February 13 directive. The Bharatiya Janata Party (BJP), which had no qualms in fielding Pragya Singh Thakur, charged with a heinous offence such as terrorism, as its candidate for the Lok Sabha election from Bhopal, has welcomed the Supreme Court’s directive.

“It has stirred the moral conscience of political parties,” the BJP’s spokesperson, Vivek Reddy, told a television channel. He added that the directive asking political parties to disclose the merits of such candidates has shifted the issue from mere tokenism. “It has pushed the agenda to the edge and left it to the process of democracy to decide. It is a big stepping stone to bring more purity,” he said.

The BJP’s response is understandable given that one of the lead petitioners in the case is Ashwini Kumar Upadhyay, a BJP leader who has the reputation of filing public interest litigation cases in the Supreme Court espousing every conceivable cause.

The Congress, however, was quick to expose the hypocrisy of the BJP. Its chief spokesperson, Randeep Singh Surjewala, tweeted: “Modi ji & BJP again come to the rescue of ‘Bellary Gang’! S.C. says give reasons for giving tickets to tainted Netas or contempt! Modiji says make tainted Netas not MLAs alone, but Ministers of the ministry, which has been allgedly looted! Will SC issue contempt of PM and Knt CM?”

Surjewala’s tweet was in response to the BJP’s decision to swear in Anand Singh, a four-time MLA from the iron-ore rich Ballari district of Karnataka with business interests in mining and transportation, as the new Minister for Forest, Environment and Ecology in the six-month-old B.S. Yediyurappa government in Karnataka. Anand Singh is reportedly facing several cases of illegal mining and forest-related crimes.

Civil society is not very optimistic. Jagdish Chokkar of the Association of Democratic Reforms, an intervener in the case, feels that the Supreme Court’s directive will be observed in letter and not in spirit. The former Chief Election Commissioner, S.Y. Qureshi, observed that it would be as much a deterrent as the warning against smoking on a cigarette pack. He urged the Supreme Court to go beyond tokenism and bar those facing charges for heinous offences from contesting elections as the right to contest an election is not a fundamental right.

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