Brajesh 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 , 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 , (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: () 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.
Is mere publication of criminal antecedents of candidate in the newspaper in consonance with the directions of the Supreme Court?
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.
Whether “winnability” is a valid ground for selection of candidates accused of serious offences?
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 (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. )
Whether Supreme Court can direct ECI to invoke power under clause 16-A 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.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
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 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.