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Monday, November 30, 2020

SC plays party monitor: List candidates facing cases, explain choice

Winnability can’t be only factor, give reasons for selection: Bench to parties

Written by Ananthakrishnan G | New Delhi | Updated: February 14, 2020 7:17:12 am
sc peititioner criminal cases election candidates Ashwini Kumar Upadhyay, one of the petitioners, shows the victory sign after the Supreme court order on Thursday. (Express photo/Tashi Tobgyal)

Flagging “an alarming increase in the incidence of criminals in politics” and questioning parties for offering “no explanation” on “why candidates with pending criminal cases are selected as candidates in the first place”, the Supreme Court Thursday made it mandatory for political parties to publish, including on official social media pages, details of cases against their candidates and the reasons for selecting them over others.

Saying “winnability” of a candidate cannot be the only reason for selection, the bench of Justices R F Nariman and S Ravindra Bhat directed all parties to comply with its order, and told the Election Commission to bring to its notice any instance of non-compliance “in contempt of this Court’s orders/directions”.

Read | Candidates facing criminal cases: Parties question need to explain their election choice

Disposing contempt petitions against political parties for allegedly disregarding the September 25, 2018 directions of a five-judge Constitution Bench, Justice Nariman (he was one of the five judges on that Bench) and Justice Bhat, exercising powers under Articles 129 and 142 of the Constitution which deal with the contempt power of the Supreme Court and enforcement of its decrees and orders, ruled:

> “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 concerned Court, 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.

> 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.

> This information shall also be published in one local vernacular newspaper and one national newspaper; 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 of nominations, whichever is earlier.

> 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.

>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 order underlined: “On a perusal of the documents placed on record and after submissions of counsel, it appears that over the last four general elections, there has been an alarming increase in the incidence of criminals in politics. In 2004, 24% of the Members of Parliament had criminal cases pending against them; in 2009, that went up to 30%; in 2014 to 34%; and in 2019 as many as 43% of MPs had criminal cases pending against them. 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.”

Read | Rising trend in number of MPs, MLAs and candidates who face cases of crime against women

The order came on contempt petitions which said the September 2018 directions of the Supreme Court had not been complied with. That judgment had come on petitions filed, among others, by NGO Public Interest Foundation and Delhi BJP leader and lawyer Ashwini Kumar Upadhyay.


43% in LS have cases pending

A report by NGO Association for Democratic Reforms (ADR) said 233 of 539 (43%) elected to Lok Sabha in 2019 had declared pending criminal cases in affidavits. This was its break-up of winning MPs with cases: BJP: 116/301 (39%); Congress: 29/51 (57%); DMK: 10/23 (43%); Trinamool 9/22 (41%); JD(U): 13/16 (81%).

In that order, the Constitution Bench, while saying it could not disqualify candidates with criminal cases pending against them from contesting elections, had left it to Parliament to make a law to ensure that people with serious criminal charges did not enter public life.

The Bench said it “was cognisant of the increasing criminalisation of politics in India and the lack of information about such criminalisation amongst the citizenry” and “to remedy this information gap”, it made the following directions:

> “Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.

> It shall state, in bold letters, with regard to the criminal cases pending against the candidate.

> If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.

> The political party concerned shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.

> 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 filing of the nomination papers.”

The Bench had underlined: “A time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation. It is true that false cases are foisted on prospective candidates, but the same can be addressed by the Parliament through appropriate legislation. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism. The country feels agonized when money and muscle power become the supreme power. Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay.”

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