By Sanjay Raman Sinha
In its latest move, the Association for Democratic Reforms (ADR) has asked the Election Commission to issue show cause notices to parties, deregister those found guilty, publish a list of defaulting parties and report any contempt to the Supreme Court. It has also asked for imposing a fine on defaulters. The problem of elected representatives with criminal charges are serious and hits at the root of democratic set up in India.
Speaking to India Legal, Major General (retd) Anil Verma, president, ADR, said: “The percentage of sitting MLAs with criminal cases in the top five state assemblies is—Kerala: 70% with criminal cases, 27% with serious criminal cases; Bihar: 67% and 50%, respectively; Delhi 63% and 53%, respectively; Maharashtra: 62% and 42%, respectively; and Telangana: 61% and 39%, respectively. In the 2019 Lok Sabha, 43% MPs had criminal records and even 22 ministers out of 56 had criminal cases.
Despite serious concern expressed by the Supreme court, Law Commission, civil society organisations, and various high profile reports submitted over the years, the percentage of candidates and winners with criminal cases is increasing after every election. Political parties give tickets mainly to candidates with money and muscle power, keeping in mind the winnability factor. The voter seems to be immune to the fact that electing such people leads to greater corruption and poor governance, and hence, this is a matter of serious concern as it weakens our democracy and institutions.”
ADR is seeking strict action against the defaulting political parties which had contested the 2023 assembly elections held in Tripura, Meghalaya, Nagaland and Karnataka; the 2022 assembly elections held in Gujarat, Himachal Pradesh, Uttar Pradesh, Uttarakhand, Goa, Manipur and Punjab; and the 2021 assembly elections held in West Bengal, Tamil Nadu, Kerala, Assam and Puducherry. On November 9, 2022, ADR filed a contempt petition in the Supreme Court seeking contempt proceedings against the erring political parties.
On March 17, 2023, the Supreme Court had asked ADR “to pursue its remedies before the Election Commission”. The ADR’s letter to the Election Commission said: “On the other hand, a few political parties that did have a website link, had not bothered to maintain this crucial information and/or had inaccessible web pages. While giving reasons for fielding candidates with criminal cases, the political parties had just copy-pasted the same reasons for different candidates. There were yet other parties which had a separate section on election information, but they either failed to upload necessary documents or had dysfunctional website tabs.” ADR has shown that several parties did not have a functional website to publish details.
On January 11, 2022, the Election Commission had issued instructions to chief electoral officers of all states/Union Territories, wherein it stated, inter alia: “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’.”
This was further to the Supreme Court judgment, dated August 10, 2021, in contempt petition titled Brajesh Singh vs Sunil Arora. But, there has been a total disregard of this instruction and it has been followed in breach. For defaulters, the provision of fine had also been included. The note from the poll body also states: “In compliance of the Hon’ble Supreme Court directions, the Election Commission of India has created a Fund in which fines for contempt of court can be deposited.”
In August 2021, the Supreme Court had directed all political parties to publish the criminal history, if any, of their election candidates on the homepage of their party websites under the caption “candidates with criminal antecedents” within 48 hours of their selection. The right of a voter to know about the criminal antecedent of a candidate is part of the fundamental rights. This was brought out in the Lok Prahari vs Union of India case, wherein the bench clearly stated: “…Voter speaks out or expresses by casting vote and such a speech is part of the fundamental right under Article 19(1)(a). This Court after taking into consideration various aspects of the matter… held that for the effective exercise of his fundamental right, the voter is entitled to have all relevant information about the candidates at an election…”
From this verdict, it flows that the right to know the antecedents (criminal or otherwise) is a part of the fundamental rights of the voter. In light of this fact, the courts have taken a stand for transparency in background of candidates.
In Lok Prahari vs Union of India, the bench was very strict on candidates giving wrong information about their assets. The bench of Justice J Chelameswar and Justice S Abdul Nazeer held: “I issue a writ, order or direction, in the nature of mandamus to consider suitable amendment in the Representation of the People Act, 1951, to provide for rejection of nomination papers of the candidates and disqualification of MPs/ MLAs/MLCs deliberately furnishing wrong information about their assets in the affidavit in Form 26 at the time of filing of the nomination.”
The Election Commission in exercise of its power under Article 324 of the Constitution can call upon the candidates to furnish the necessary information.
The conflict between the executive and the judiciary on the issue of disqualification of candidates is not new. In Lily Thomas vs Union of India (along with Lok Prahari vs Union of India), the Supreme Court had ruled that any member of Parliament, member of legislative assembly or member of legislative council who is convicted of a crime and given a minimum of two-year imprisonment, loses membership of the House with immediate effect. The UPA government of the day made an attempt to stymie the verdict and brought the Representation of the People (Second Amendment and Validation) Bill, 2013, in the Rajya Sabha. On August 30, the then Law Minister Kapil Sibal proposed the amendment that elected representatives would not be disqualified immediately after conviction. The UPA government also filed a review petition, which the Supreme Court dismissed.
A few days before the fodder scam verdict on September 24, the government tried to bring the Bill into effect as an ordinance. However, Rahul Gandhi, who was then the vice-president of the Congress party, opposed the ordinance and tore it publicly in a party meeting.
Clearly, political parties have cocked a snook at the 2021 verdict of the Supreme Court, which is hailed as a landmark judgment and thought to have the potential to curb the influx of tainted candidates in the political fray. The Court has done its part. The ball is now in the court of the executive to clear the murky waters of electoral politics.