By Divyanshi Singh Choudhary ~ Symbiosis Law School, Hydrabad

  • CITATION: 2020 SCC Online SC 178

Facts of the Case

The present matter is a petition of contempt that poses critical concerns relating to the criminalization of India’s politics. This also aims to draw attention to the neglect of the guidelines set out by the Supreme Court’s constitutional bench in Public Interest Foundation & Ors v. Union of India & Anr[1].

The lawsuit was filed by a BJP leader Ashwini Upadhyay and an NGO called “Public Interest Foundation” in the case mentioned above, to seek clarification from SC of India on the criminalization of politics and abolishment of candidates from contesting elections. The petitioner’s key point was that the people opposing it were; whoever has been convicted in any court of law is barred from contesting the polls, and this is for the good of the general public. They were of the impression that wrongdoers should be discouraged from being legislators because the principles and principles of politics in India have been reduced by such individuals.

The right to compete in elections is not a fundamental right, but instead a legislative right which must be exercised in order to maintain optimal governance and legitimate politics in accordance with democratic ideals. In view of the above points, the SC offered some guidelines for a stable democratic culture that had to be practiced.

Issues of the Instant Case

The question posed here is whether the court is willing to exercise the suspension of members of parliament by adopting new legislation that would go outside Article 102(a) to (e).

Judgement of the Court

Justice Nariman acknowledged that the petition for contempt posed some major issues. After taking into account the concept of separation of power, the principle of Colorable Law and the analysis as to the incapacity of the court to give a writ of mandamus to the Election Commission concerning the enhancement of the legislation on disbarment based on the candidate’s criminal proceedings, the SC concluded that it had no legislative power. Instead, by upholding its authority under Articles 129 and 142 of the Indian Constitution, the court has the power to provide various directions to resolve certain matters

SC offered different ways to fill the knowledge gap, bearing in mind the growing criminalization of politics and the lack of information about such criminalization. These instructions are as follows:

  • Any candidate contesting an election must fill in a form issued by the Electoral Commission incorporating all the relevant details.
  • In bold print, the criminal proceedings pending against the nominee must be explicitly specified in the form.
  • If the nominee is challenging the ticket of a specific party, he or she must tell the party to which he relates to the ongoing criminal cases.
  • The political party must place all such data and details on its main site regarding the pending criminal proceedings of its members.
  • The candidate and the specific political party to which the candidate belongs shall issue a statement concerning the candidate’s history in the most widely published local newspaper. They shall also be advertised in digital media, i.e. they shall be advertised at least three times after the filing of the nomination document.

It was found that there has been a troubling increase in criminal activity in politics over the last 4 general elections after going through the records put on record and representations of counsel. It was also stated that when they are challenged as to why the candidates with such criminal occurrences have even been chosen, the political party fails to give any response, leaving aside several qualified candidates who have no criminal cases against them. The court issued several guidelines for the above purposes, which are as described in the following:

  • Comprehensive data on the chosen candidates, including those on current criminal proceedings, compulsory for both central and state political parties. Details on pending criminal proceedings should include the nature of the crime, whether or not charges have been filed, the court involved, the number of the case, etc. The political party shall also give reasons for such selection, along with the factors why other candidates with no criminal record could not get selected for the same.
  • The reasoning for the appointment must be centered on the candidate’s credentials, successes, and accomplishments and not just their winning potential at the ballots.
  • Rigorous candidate details will be circulated in one local dialect newspaper and one national newspaper, together with the political party’s social media websites, namely Facebook and Twitter.
  • This knowledge is written in one of the two time periods, whichever is the case Earlier—
  • Under 48 hours of the nominee being picked.
  • In no less than 2 weeks of the first date of filing for the appointment.
  • The political party responsible shall send a confirmation letter to the Election Commission in accordance with all the above orders, which shall be submitted within 72 hours of the process of recruitment concerned.
  • Thereupon, in the event that such adherence has not been submitted, the Election Commission shall, by way of disregard of these court orders/instructions, carry forward to the SC of India the default of the political party to comply.

Critical Analysis

  • In the case of Union of India v. Association for Democratic Reforms[1], where it was stated that every elector has a fundamental right to know the contestant’s criminal background in the election to hold a public office,  is precisely when the issue of criminalization of politics was first dealt with.  The court went on to rule that the right to freedom of expression and speech encompasses the right to be informed. It is in this case that the election commission was instructed to collect affidavits submitted by candidates which, together with the nature of such cases, must necessarily consist of the previous and ongoing criminal charges of such applicants. Pertinently, the affidavit must also comprise information as to the amount of the penalty if sentenced and whether such allegations were brought previously to the six-month application period.
  • Consequently, by introducing Section 33B, the third amendment was made to the Representation of Citizens Act, 1951[2], which provided that it is not necessary for candidates to file an affidavit containing the details ordered by the court in the original ruling about criminal records.
  • This amendment negated the court’s ruling explicitly. At this stage, this amendment was contested by the People’s Union for Civil Liberties (PUCL)[3] in the Supreme Court, where it was declared to be unconstitutional because it violated the basic right that was upheld in the previous ruling. After that judgment, the criminal records of the electoral candidates have been found to be significant to the public record.
  • Afterward, in a judgment of 2005 in the case of K. Prabhakaran v. P. Jayarajan[4]  the court clarified the intent of Section 8(3) of the Representation of Peoples Act, 1951[5]. This clause forbids candidates or elected officials from contesting elections for a period of six years if, with some exceptions, they are sentenced to any felony punishable by at least two years in prison. The court noted that this revocation guarantees the purity and transparency of elections by prohibiting the entry into the governance of contestants with a criminal record. Eventually, Section 8(3) was held to be appropriate to the members of Parliament, Legislative Assembly, and Council in the country in Lily Thomas v. UOI[6], which was decided in 2013 and the exception of the 3 months granted to those members for appeal was struck down, resulting in immediate termination.
  • In the meantime, the 244th Law Commission report observed that dismissal under section 8(3) of the RPA does not seem to be an effective method for curbing the entry of offenders into politics and proposed that revocation, along with certain protections, should be carried out at the time of charge-framing. It also suggested that the sentence be raised to at least 2 years in prison for fraudulent filing affidavits.
  • Furthermore, in 2018, along with some guidelines provided to the Parliament and Election Commission, the Public Interest Foundation v. UOI [7]case, which was filed in 2011, was voted in favor of the respondent. This created considerable public interest, also known as the Electoral Disqualification Case, as the petitioner disputed that the members of any legislative body against whom criminal charges are lodged must be excluded from that body.
  • Consequently, the court noted that owing to separation of powers, it has no such power to exonerate on the matter at hand. At the same time, however, the court required Parliament to pass a standard law aimed at banning those facing allegations of extreme and heinous offenses from contesting elections. The five-judge Bench expected that knowledge about the candidates would be well known to the electorate, ensuring that they make wise choices that in turn reinforce. The guidelines referred to in the aforementioned case are reiterated in the current case, along with other directions to be addressed in the subsequent sections.

Conclusory Remarks: Author’s Point of View

To sum up, all the arguments presented, the author contends that Politics performs a crucial role in the lives of all, and its integrity and efficacy are therefore of paramount importance. To ensure equality in politics, the very rudimentary thing needed is to have a possibly the best-qualified set of political representatives who will take our country to high altitudes.

Therefore, by this judgment, by requiring few measures, the court improved the present guidelines. Most notably, the widespread coverage of criminal charges brought against candidates across multiple channels would place voters in an advanced position to choose the best candidate.

In addition, as this judgment also orders with regard to the requirements of the job by political parties that offer tickets to such candidates, no person will be exempt from these instructions as the larger organization, i.e. the party would have to deal with consequences for any such error. Hence, this decision, if transformed by the legislature as a statute, would lead to strengthening the foundations of democracy.

Moreover, the consequence, enforceability, and impact of legislation are far more than that of any court’s direction. In subjects of high interest and for the good of the general public, the SC should have the authority to pass laws and even add comments to existing legislation created by parliament. As an exception to the principle of separation of powers, this authority must be granted to the courts. For the advancement of our nation, the prominence of judicial oversight and judicial review on certain important issues has to be taken ahead.

[1] Union of India v. Association of Democratic Reforms, AIR 2002 SC 2112.

[2] The Representation of Peoples Act, 1951.

[3] People’s Union of Civil Liberties v. Union of India, MANU/SC/0234/2003.

[4] K. Prabhakaran v. P. Jayarajan, MANU/SC/0025/2005.

[5] Section 8(3) of Representation of People’s Act, 1951.

[6] Lily Thomas v. Union of India & Ors, MANU.SC/0687/2013.

[7] Supra note 1.

[1] Public Interest Foundation & Ors v. Union of India & Anr, (2019) 3 SCC 224.

Rambabu Singh Thakur v. Sunil Arora

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