By Vivek K Agnihotri
On January 31, the Supreme Court endorsed a suggestion from the Election Commission (EC) that political parties be directed to publish the credentials, achievements and criminal antecedents of their candidates in newspapers, social media platforms and the party’s website along with the reasons for preferring a candidate facing criminal charges. It was felt that embarrassment over having to justify the criminal record of a candidate may deter a political party from nominating him and make it more discriminating in its choice of candidates. This judgment should be seen against the fact that 43 percent of MPs have criminal records.
The Court, however, turned down the EC’s request to empower it to take action against the political party and the candidate under Article 324, including cancellation of the nomination in case of non-compliance. The bench took into account opponents resorting to malicious litigation to get a candidate’s selection disallowed.
The two-judge bench, led by Justice Rohinton P Nariman, also asked its counsel, senior advocate Singh and Gopal Sankaranarayanan (senior advocate appearing on behalf of the petitioner, Ashwini Kumar Upadhyay), to come up with a joint proposal on how it can be ensured that parties do not sponsor the candidature of such politicians.
Incidentally, in 2018, the Supreme Court had directed political parties to publish online pending criminal cases of their candidates and urged Parliament to bring a strong law to cleanse the parties of those facing trial for serious crimes. It directed that in the form to be prescribed by the EC, each contesting candidate would declare criminal cases pending against him/her. Insertions of the table recording criminal cases would be made in print and audiovisual media by the candidate and his political party, if any.
The purpose is to help the voters make an informed choice.
Accordingly, the EC revised the format for the poll affidavit to be filed by the candidate along with the nomination paper. This will now include a table recording full details of his criminal antecedents. Candidates are also required to publish the details in newspapers of wide circulation on three different dates after the last date of withdrawal. The declarations will also have to be aired on television channels on three different dates. The matter must be published in font size of not less than 12. Copies of these insertions have to be supplied to the EC along with the account of poll expenses.
The Supreme Court’s crusade against criminalisation of politics is a long-drawn out one. It all began in 2002 (Association for Democratic Reforms vs. Union of India), when the Court mandated the disclosure of information relating to criminal antecedents, educational qualifications and personal assets of candidates contesting elections. Seeking this information, it said, was part of the fundamental right of the voter to be informed of all relevant details about a contestant; it was extension of the freedom of expression [Article 19 (1) (a)].
In 2013, on a petition filed by Lily Thomas and Lok Prahari, an NGO, the Supreme Court stated that if a sitting MP/MLA is convicted in a case, punishment for which is more than two years’ imprisonment, then he will be diqualified immediately and the seat declared vacant, setting aside clause 8(4) of the Representation of People Act, 1951. Clause 8(4) had provided special privilege to MPs/MLAs to hold office even after conviction if an appeal had been filed in a higher court within a period of three months of the conviction. In 2013 again, in the case of People’s Union for Civil Liberties vs Union of India and Anr, the Supreme Court recognised negative voting as a constitutional right of a voter and directed the government to provide the NOTA (none of the above) option in EVMs (electronic voting machines). Further, on a petition filed by Subramanian Swamy, the Supreme Court directed the EC to introduce Voter Verifiable Paper Audit Trail (VVPAT).
In 2014, in Public Interest Foundation vs. Union of India, based on the recommendations of the Law Commission, the Supreme Court ordered that criminal trial pending against any MP or MLA must be disposed of within one year from the date of framing of the charge. Taking it from there, in 2017, the Supreme Court directed that the government should set up special courts to exclusively conduct time-bound trials of law-makers accused of corruption and criminality. The government accordingly set up 12 special courts.
In 2018, the Supreme Court emphasised the need for 70 special courts to hear and decide criminal cases against legislators as the 12 courts were grossly inadequate in view of a large number of cases (over 3,900) pending in courts. Subsequently, the Court decided to consider a request to designate a court in each district to take up pending cases against law-makers on a priority basis.
As an extension of its order of 2002 relating to declaration of assets by the contesting candidates, in 2018, the Supreme Court also ruled that candidates at the time of filing of nomination should disclose the sources of their income. Non-disclosure would amount to a corrupt practice, according to Section 123 of the Representation of People Act, 1951.
The Court further directed the government to set up a permanent mechanism to monitor the accumulation of wealth of sitting MPs and MLAs and their spouses and associates in order to maintain the purity of the electoral process and the integrity of the democratic system.
There are several other matters relating to electoral reforms which are pending before the Supreme Court. In 2018, the Court decided to consider a life ban on contesting elections for persons convicted in criminal cases by declaring Section 8 of the Represent – ation of Peo ple Act, 1951 ultra vires the Constitution.
Section 8 imposes only a six year ban on contesting elections for politicians serving a sentence of two years or more in jail in criminal cases.
In 2018, the Supreme Court found ambiguity in the appointment of Election Commissioners and referred the question to a Constitution bench to consider the request of the petitioner who said that the appointments be made under a “collegium system”.
Another PIL has been filed for clarity on the procedure for removal of the two Election Commissioners. It said that they should be provided the same protection (removal through impeachment as in the case of a Supreme Court judge) as the Chief Election Commissioner [first proviso to Article 324 (5)].
In its affidavit, the EC requested the Supreme Court that it should be vested with the power to make rules under election laws, instead of the government. Several decisions of the Supreme Court have come against the backdrop of some significant reports of committees and commissions.
In 1990, the Goswami Committee on Electoral Reforms highlighted the crippling effect of money and muscle power in elections. In 1993, the NN Vohra Committee (in the context of the 1993 serial bomb blasts in Mumbai) concluded that agencies, including the CBI, IB and RAW, had unanimously expressed their opinion that the criminal network was virtually running a parallel government. Money power was being used to develop a network of muscle power, which was also used by politicians during elections. In 2007, the 18th Report presented by a parliamentary committee to the Rajya Sabha said that politics should be cleansed of persons with an established criminal background. “Criminalisation of politics is the bane of society and negation of democracy,” the Report said. T he Law Commission, in its 244th Report, put it succinctly: “Instead of politicians having suspected links to criminal networks, as was the case earlier, it was persons with extensive criminal background who began entering politics.”
These judgments of the Supreme Court, as well as reports of committees, make it amply clear that there is no dearth of wisdom coupled with guidelines and instructions for improving the electoral ecosystem.
The exhortations of the Supreme Court and the parliamentary committee notwithstanding, the will to cleanse the system is missing among those who have to act. The million-dollar question, as usual, is: “Who will bell the cat?”Two senior advocates have been entrusted with the responsibility of detailing the framework of putting the Supreme Court’s direction into practice.
It is time parties explain why they have chosen to nominate persons with criminal antecedents and suggest an appropriate proforma for filing the nomination paper along with a sample dummy form. After all, the devil lies in the details. But naming and shaming, will it work? It is a billion-dollar question now.
—The writer is a former Secretary-General, Rajya Sabha