All that the announcement does is to follow exactly what several judgments of the Supreme Court have ordered.
The announcement of the schedule for elections for five state assemblies was a much anticipated event. What attracted attention of some observers was the inclusion of requirements for disclosure of criminal antecedents by candidate and political parties who sponsor them. A tweet by someone with over 8,500 followers is representative:
“Candidates with criminal antecedents will have to publish their crime records in newspapers etc. 3 times before the poll: CEC
Also, political parties will have to give a list of candidates with criminal antecedents in home page of their websites. Also, reasons of their selection.”
This appears at pages 21 to 24 of the 92-page press note issued by the Election Commission of India (ECI) and is numbered as items 21 and 22. As the press note correctly mentions, this is in compliance of three judgements/orders of the Supreme Court on February 16, 2018, September 25, 2018 and August 10, 2021. These cases were filed in 2011, 2015 and 2018.
This long and continuing saga started with the filing of a PIL by the Association for Democratic Reforms (ADR) in the Delhi high court in 1999, requesting that candidates contesting elections to parliament and state assemblies who have criminal cases pending against them be required to disclose these while filing their nomination papers. The high court, in a judgement given on November 2, 2000, accepted the request and ordered that all candidates contesting MP and MLA elections will be required to file a sworn affidavit as a necessary part of their nomination papers, declaring criminal cases pending against them.
The high court’s decision seemed unacceptable to the government of the day, so the Union of India filed a Special Leave Petition (SLP) against the high court’s judgment in the Supreme Court. Several political parties became interveners to the case in support the government, claiming that it was a legislative matter and the judiciary has no jurisdiction to interfere in the matter. The Supreme Court in its judgment delivered on May 2, 2002 upheld the high court judgment, saying:
“Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest.”
Even this was not acceptable to the political establishment. An all-party meeting was held in which it was decided that the high court and Supreme Court judgments will not be allowed to be implemented and the Representation of the People Act (RP Act) will be amended, in that very session of parliament, for this purpose. A draft Bill for this was prepared but could not be introduced in the parliament because of disruptions and then an adjournment due to what came to be known as the petrol pump scam. The cabinet then decided to promulgate an ordinance to achieve the same purpose. The ordinance was sent to the president for signature, but the president returned the ordinance without signing it. The cabinet then sent it to the president again, exactly in the same form, and following the established convention, the president had to sign it. The RP Act, thus, stood amended and the Supreme Court judgment was rendered ineffective.
Three PILs were filed in the Supreme Court challenging the constitutional validity of the amendment of the RP Act. The Supreme Court, in a landmark judgment delivered on March 13, 2003, declared that the amendment of the RP Act “does not pass the test of constitutionality” and “has resulted in the violation of guarantee under Article 19(1)(a)”. Article 19(1)(a) is the Fundamental Right “to freedom of speech and expression”.
This is how criminal antecedents of candidates contesting elections to parliament and state assemblies came to be known to voters.
How it evolved further
The next stage in this saga began in 2011, when a civil society organisation called Public Interest Foundation filed another PIL in the Supreme Court seeking decriminalisation of politics and requesting the Supreme Court to “(a) lay down appropriate guidelines/ framework to ensure that those charged with serious criminal offences are unable to enter the political arena by contesting elections; and (b) lay down a time frame of six months during which trial of such persons are concluded in a time bound manner;” among some other requests.
The Supreme Court issued an order on March 10, 2014, directing that cases against MPs and MLAs be tried “as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s)”.
In the meanwhile, a PIL filed in 2005 came to be decided on August 27, 2014. The case was Manoj Narula vs Union Of India. It was filed “assailing the appointment of some of the original respondents as Ministers to the Council of Ministers of Union of India despite their involvement in serious and heinous crimes”. Originally, the PIL was heard by a three-judge bench headed by the then chief justice, and on March 24, 2006, it was decided that “Having regard to the magnitude of the problem and its vital importance, it is but proper that the petition is heard by a Bench of five Judges.”
Thus, it is the five-judge bench that gave the judgment in August 2014. The majority judgment of three judges left it “to the wisdom of the Prime Minister”, while saying that the prime minister “can always be legitimately expected (to) consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council of Ministers”, and also adding that it “is the constitutional expectation from the Prime Minister”.
There were two other separate but concurring judgments in which one of the judges considered it “…the prophetic duty of this Court to remind the key duty holders about their role in working the Constitution,” and the advice given was that “the Prime Minister and the Chief Minister of the State, …will be well advised to consider avoiding any person in the Council of Ministers, against whom charges have been framed by a criminal court in respect of offences involving moral turpitude and also offences specifically referred to in Chapter III of The Representation of the People Act, 1951”.
Now, to the current situation
Then came an important judgment on September 25, 2018, again in a Public Interest Foundation case. There are two important features of this judgment. One, despite overwhelming evidence, the court shied away from saying that candidates who had criminal cases pending against them for some specified heinous offences be barred from contesting elections, subject to some safeguards, and two, this was the judgment that put the system on the path of candidates and political parties advertising pending criminal cases. Both these issues have been commented on in detail in The Wire on September 25, 2018, and on October 12, 2018.
To reiterate, it was pointed out, especially in the piece on October 12, 2018, that (a) the directions requiring candidates and parties putting out advertisements in newspaper disclosing pending criminal case were not likely to be of much help, and (b) the only way to reduce, if not eliminate, criminals getting into legislatures was to bar such people from contesting elections, which the Court declined to do citing jurisdictional issues. In the process it ignored its own ruling of 2002 wherein it said:
“Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to sub-serve public interest.”
While stopping short of doing what actually requires to be done, the judgment seems to have a lot faith in its own wishes and desires. Following are just two samples of its expectations:
“117. These directions ought to be implemented in true spirit and right earnestness in a bid to strengthen the democratic set-up. There may be certain gaps or lacunae in a law or legislative enactment which can definitely be addressed by the legislature if it is backed by the proper intent, strong resolve and determined will of right-thinking minds to ameliorate the situation. It must also be borne in mind that the law cannot always be found fault with for the lack of its stringent implementation by the concerned authorities. Therefore, it is the solemn responsibility of all concerned to enforce the law as well as the directions laid down by this Court from time to time in order to infuse the culture of purity in politics and in democracy and foster and nurture an informed citizenry, for ultimately it is the citizenry which decides the fate and course of politics in a nation and thereby ensures that ―”we shall be governed no better than we deserve”, and thus, complete information about the criminal antecedents of the candidates forms the bedrock of wise decision-making and informed choice by the citizenry. Be it clearly stated that informed choice is the cornerstone to have a pure and strong democracy” (Emphases added).
“118. We have issued the aforesaid directions with immense anguish, for the Election Commission cannot deny a candidate to contest on the symbol of a party. 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” (Emphases added).
After expressing all its hopes and aspirations, the judgement ends on a pious note:
“We are sure, the law-making wing of the democracy of this country will take it upon itself to cure the malignancy. We say so as such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it; the sooner the better, before it becomes fatal to democracy. Thus, we part.”
The denouement of all the pious hopes started on November 27, 2018, when a contempt petition was filed by one Rambabu Singh Thakur against the then chief election commissioner and several others raising “grave issues regarding the criminalisation of politics in India” and bringing to the attention of the court “a disregard of the directions of a Constitution Bench of this Court in” the judgment on September 25, 2018.
The judgment in this case was announced on February 13, 2020, wherein the court noted that “the political parties offer no explanation as to why candidates with pending criminal cases are selected as candidates in the first place” and issued detailed directions on the way (a) political parties, giving tickets to candidates with criminal cases pending against them, should give reasons for giving tickets to such persons; (b) how parties should publish these explanations in the mass media, including social media; and most importantly, (c) ) “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.”
Where are we now?
It fell to a public-spirited advocate practising in Delhi but originally hailing from Nalanda district of Bihar to take this activity forward. Brajesh Singh filed a contempt petition on November 6, 2020, also against the then chief election commissioner and several others, bringing “to the notice of this Court the flouting of its directions given vide Order dated 13.02.2020”. The contempt petition was based on state assembly elections held in October/November 2020. The judgement of this petition came on August 10, 2021. It is quite amazing to see that the court took another significant step forward but refrained from dealing with the issue properly, for which there is only one way, as we shall see a little later.
First the step forward. The court held eight political parties guilty of contempt of court and fined six of those parties Rs 1 lakh each, and the remaining two Rs 5 lakh each. The cause of the contempt was that the parties had given (a) tickets to persons who had criminal cases pending against them, and (b) flimsy and non-convincing reasons for giving tickets to such persons. Parties fined Rs 1 lakh each were Janata Dal United, Rashtriya Janta Dal, Lok Janshakti Party, Indian National Congress, Bharatiya Janata Party, and the Communist Party of India. Parties fined Rs 5 lakh each were the Communist Party of India (Marxist) and the Nationalist Congress Party.
While fining political parties must be commended, it is worth reflecting on whether the amounts of money levied as fine would (a) have any adverse financial impact on the parties, and (b) the amounts will work as deterrents enough to encourage parties not to indulge in such blatant defiance of the orders of the highest court in the land.
While we do commend the court for the act of levying fines on political parties, the practicability of the implementation of the directions of the court, and more importantly, monitoring the implementation, must be given very serious thought. The judgment itself refers to it, almost in passing, when it says that “Arguments have been advanced before us with regard to the practicability of implementation of the direction contained in paragraph 4.4” (Para 30).
Some of the factors that make satisfactory monitoring, even on the part of the Election Commission, extremely difficult, if not impossible, are also described in the piece published in The Wire on October 12, 2018 which has been referred to earlier.
Avoiding the obvious
The following excerpts from the judgment deserve careful reading:
“The nation continues to wait, and is losing patience. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government” (Para 17).
“The Constitution Bench therefore observes that though criminalisation in politics is a bitter manifest truth, which is a termite in the citadel of democracy, the Court cannot make law.” (Para 50).
“In paragraph 107, the Constitution Bench recommends that Parliament bring out a strong law whereby it is mandatory for the political parties to revoke membership of persons against whom charges are framed in heinous and grievous offences and not to set-up such persons in elections.” (Para 51).
“No one can deny that the menace of criminalisation in the Indian political system is growing day by day. Also, no one can deny that for maintaining purity of political system, persons with criminal antecedents and who are involved in criminalisation of political system should not be permitted to be the law-makers” (Para 71).
“This Court, time and again, has appealed to the law-makers of the Country to rise to the occasion and take steps for bringing out necessary amendments so that the involvement of persons with criminal antecedents in polity is prohibited. All these appeals have fallen on the deaf ears. The political parties refuse to wake up from deep slumber” (Para 72).
The reader would recall that very similar sentiments were expressed by the court in its judgment of September 25, 2018, mentioned above, including some pious hopes.
The above statements need to be read with or contrasted with the following:
“… The Constitution Bench after elaborately considering the said issue, held that issuing such a direction would amount to entering into the legislative arena and as such, such a direction could not be issued. In our view, in the teeth of the observations made by the Constitution Bench in paragraph 96, though some suggestions made by Shri Viswanathan are laudable, it will not be possible for us to accede to them” (Para 53).
“The only question is, whether this Court can do so by issuing directions which do not have foundation in the statutory provisions” (Para 71).
“However, in view of the constitutional scheme of separation of powers, though we desire that something urgently requires to be done in the matter, our hands are tied and we cannot transgress into the area reserved for the legislative arm of the State. We 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” (Para 72).
At the risk of crossing a Lakshman Rekha, it must be said that it is beyond comprehension that a court which can be so sagacious and perceptive as to write that “The political parties refuse to wake up from deep slumber”, is not able to discern that it, itself, seems to be in deep slumber by repeatedly ignoring a settled principle in law “filling in the gap or vacuum in legislation” which has been very well elaborated in a judgment of this very court, of May 2, 2002.
The last word
Finally, to come back to the announcement of the Election Commission of India that we started with. All that the announcement does is to follow exactly what several judgments of the Supreme Court have ordered. It must, however, be noted that all the judgments referred to (a) do not seem to be on a firm footing as far as implementation is concerned; (b) will be very difficult, if not impossible, to implement; and (c) in the light of (a) and (b), do not, and cannot, achieve the objective of at least reducing, if not completely eliminating the adverse impact of criminality on the political and electoral systems in the country.