Outing the Criminals

The Supreme Court (SC) on February 13 directed political parties to furnish justification for choosing candidates with criminal antecedent in elections and expressed grave concern over the “alarming increase” in the number of those with pending criminal cases.

Incidentally, as per the Election Commission (EC), 43 percent of members of the 17th Lok Sabha have pending criminal cases against them as compared to 34 percent in 2014.

The top court observed that political parties don’t offer explanations as to why candidates with pending criminal cases are selected. Exercising its constitutional powers under Articles 129 and 142, the apex court directed all political parties to publish the criminal history of their candidates on their websites, newspapers and social media platforms along with reasons for choosing them over others without a criminal background within 48 hours of their selection.

“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 order said.

In a bid to hold the political parties accountable, the SC also directed them to furnish the reasons for the selection based on merit, educational qualification and not mere “winnability”. It held that winnability cannot be the sole reason for selecting a candidate with a criminal background. It directed the parties to send the same to the EC within 72 hours of the candidate’s selection. “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 said.

The petitioner in the case, Advocate Ashwini Kumar Upadhyay, who is also the BJP’s national spokesperson, said: “It is a landmark judgement. It will root out corruption, criminalisation, casteism and communalism from politics.”

Speaking to India Legal, the BJP’s national spokesperson and senior counsel Nalin Kohli echoed Upadhaya. “The orders of the Supreme Court have to be complied with. It strengthens the electoral and democratic process in enabling voters to make a choice keeping all factors in mind,” he said. However, contrary to this stand, the BJP appointed Anand Singh, an MLA accused of illegal mining and forest crimes in 16 cases as Karnataka minister for forest, environment and ecology in the BJP-led government of BS Yediyurappa.

Although the apex court judgment seeks to address the long-standing demands of electoral reforms, the pertinent question is whether there is a penal provision in the IPC to actually bar candidates with criminal antecedents from contesting elections. As per Section 8 (3) of The Representation of the People Act, 1951, if a person is convicted of any offence and sentenced to an imprisonment of two years or more, he will be disqualified from contesting elections.

This followed a July 10, 2013 judgment of the SC in Lily Thomas vs Union of India case (along with Lok Prahari vs Union of India), stating that a Member of Parliament, a Member of the Legislative Assembly or a Member of a Legislative Council who is sentenced for a crime and granted at least two years of imprisonment will lose his membership of the concerned House with immediate effect. The then government had attempted to overrule the order by introducing a bill in the Rajya Sabha on August 30, the Representation of the People (Second Amendment and Validation) Bill, 2013. However, it didn’t succeed.

In 2018, the Supreme Court in Public Interest Foundation & Ors vs Union of India & Anr, laid down a set of directives, asking each candidate to fill up a separate form and state in bold letters the pending criminal cases against him. It also asked political parties to publish the same on their websites and in all forms of media in a bid to curb the criminalisation of politics.

Reacting to this order, AAP’s national spokesperson Dr Ajoy Kumar said: “It is a step in the right direction. However, unless it is backed by a penal provision, it would be nothing but a cosmetic exercise. Instead, the SC should have asked the centre to frame laws taking into consideration other aspects of political reforms such as putting a cap on expenditure incurred during elections by political parties, etc.”

Other Opposition parties voiced the same concern.

Leader of the Opposition in the Lok Sabha and Congress leader Adhir Ranjan Chowdhury wondered if the apex court had transgressed boundaries. “The Election Commission is an autonomous body. It has laid down rules for prohibiting candidates with criminal backgrounds. A candidate provides every information to the EC,” he said.

In the 17th Lok Sabha, 57 percent of Congress members have criminal cases against them, the highest among all parties, followed by the BJP with 39 percent, according to the Association of Democratic Reforms.

Chowdhury also questioned the quantum of crime in the cases filed against political leaders, stressing that many of them were due to political rivalry. “I have 20 cases pending against myself. Most of them are cases filed by political opponents. Can I stop people from filing cases? They have the right to file, so do I have to defend myself. If I chose to protest against a government policy, I will be charged with a case,” added Chowdhury.

The Left parties, which have taken up the issue of electoral reforms time and again, also didn’t welcome the SC judgment. CPI(M)’s Politburo member and former party General Secretary Prakash Karat told India Legal that the SC had seen the issue of pending cases against candidates in isolation with the ground reality. “While lauding the larger cause of electoral reforms, this SC judgment is impractical in real terms. A large number of cases are filed against political activists. Even a case registered under Section 144 of the IPC is considered a criminal offence. Nowadays, sedition cases are being filed against a number of Opposition leaders,” he said.

He added: “Left leaders in trade unions face a number of cases as they are in continuous conflict with the management. They can’t be equated with criminals. The judicial system has its fallacies. Thousands of serious criminal cases are pending before courts. This judgment should not be seen in isolation from the ground reality.”

The Election Commission seems to have a tough job on its hands.