Listen to this articleBrajesh
singh versus Sunil Arora and ors.
Contempt Petition (Civil) No.656 OF 2020
Decided on August 10, 2021
BENCH- R F Nariman and B R Gavai, JJ.
FACTS– Assembly
Elections to the Bihar were held in October/November 2020, and 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 attempt to murder, kidnapping, murder, crime against women
including rape, etc. Election Commission of India (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.
Pursuant to the order in Rambabu Singh Thakur, the 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. Importantly, it was made clear by
the ECI that any non-compliance or failure to abide by the directions of the
Supreme Court would be treated as a failure to follow directions as
contemplated under Clause 16-A of the Election Symbols (Reservation and Allotment)
Order, 1968 (Symbols Order). Clause 16-A
states about the Power of Commission to suspend or withdraw
recognition of a recognised political party for its failure to observe Model
Code of Conduct or follow lawful directions and instructions of the Commission.
The present 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 Supreme Court’s notice
that its directions given vide Rambabu Singh Thakur, (2020) 3
SCC 733 were being flouted in connection with disclosure of information of
candidates with criminal antecedents.
Following directions were issued in Rambabu Sigh
Thakur Case:
1. 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.
2. 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.
3. This information shall also be published in: (I) one local vernacular newspaper
and one national newspaper; (II) on the official social media platforms of the
political party, including Facebook and Twitter.
4. 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.
5. 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.
6. 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.
ISSUES–
1.
Is mere publication of criminal antecedents of
candidate in the newspaper in consonance with the directions of the Supreme
Court?
Held- Supreme Court answered this issue in negative and held that mere
publication of criminal antecedents in newspapers does not suffice the
purpose for which the guidelines were given by the Supreme Court unless the
newspaper is of large circulation, well known and reaches to the public at
large. Hence, the publication should be made on one local vernacular newspaper
and one national newspaper; on the official social media platforms of the
political party, including Facebook and Twitter. In
the instant case, after perusal of all the documents and evidences shown by the
respective parties, the Supreme Court is of opinion that the criminal records
of the candidates were published in a newspaper of low circulation and the
forms (C-7, C-8) in which details of criminal antecedents have to be published
were filled in a vague and mechanical manner just for the sake of contesting
elections and nothing else. The Supreme Court states that parties justified
selection of some candidates accused of serious offences by stating that the
cases “do not have any substance”. The parties did not follow Supreme Court
directions in letter and spirit.
2.
Whether “winnability” is a valid ground for
selection of candidates accused of serious offences?
Held- The Supreme Court answered this issue in negative again and directed that
the reasons as to the selection shall be with reference to qualifications,
achievements and merits of the candidate concerned and not mere “winnability” at the polls. Further, the Supreme Court directed as to enable the voter to
have an informed choice while exercising his right to vote referring to provisions of the Representation of the
People Act, 1951 including Section 33-A (Right to information). By
the directions (as stated in case of Rambabu Sigh Thakur), what has been
directed by the Supreme Court is 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 Supreme Court is of the view that such a requirement would only
enable the voter to have complete information and exercise his right to vote
effectively. As such, though a political party would have the freedom of
selecting candidates of its choice, though having criminal antecedents, what
would be required is to give reasons in support of such selection, and the
reasons could be dependent on various factors including qualifications,
achievements and other merits. At the cost of repetition, such a direction is
only to enable a voter to have all the necessary information, so that he can
exercise his right to franchise in an effective manner. The directions in no
way impinge upon the right of a political party to choose a candidate of its
own choice.
3.
Whether Supreme Court can direct ECI to invoke
power under clause 16-A of Symbols Order?
Held- While answering this issue the Supreme Court
followed the law
laid down in Public Interest Foundation, wherein
it was held that the prescription as regard to disqualification is complete in
view of provisions of the Clause 16-A, Representation of the People Act, 1951.
The Supreme Court said that it is clear as noon day and that there is no
ambiguity and therefore, Supreme Court cannot direct ECI to invoke power under
the provisions of Symbols Order 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. It
further states 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. Supreme Court held that it 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
as the Supreme Court cannot legislate.
Further
in order to make the right of information of a voter more effective and
meaningful, the Supreme Court found it necessary to issue following further
directions:
(1)
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”.
(2)
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;
(3)
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;
(4)
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;
(5)
The direction
in Rambabu, to 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
(6)
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.
Cases referred: Rambabu Singh Thakur v Sunil Arora, (2020) 3 SCC 733; Public Interest
Foundation and ors v Union of India, (2019) 3 SCC 224.