DECRIMINALISING THE ELECTORAL SYSTEM IN INDIA: REFORMS BY THE JUDICIARY
DECRIMINALISING THE ELECTORAL SYSTEM IN INDIA: REFORMS BY THE JUDICIARY
Vivek K. Agnihotri is a
former SecretaryGeneral of Rajya Sabha at the Parliament of India.
On 13 February 2020, the Supreme Court of India directed that political parties should upload on their websites detailed information regarding individuals with pending criminal cases, who have been selected as candidates, along with reasons for such selection. The parties were also ordered to explain as to why other individuals without criminal antecedents could not be found for nomination. The reasons for selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere ‘winnability’ at the polls. The Court issued these directions in exercise of its constitutional powers under Articles 129 and 142 of the Constitution of India, while delivering a judgment in a Contempt Petition filed against the Election Commission. The Court further enjoined that information regarding the selected candidate’s criminal antecedents should be published in one local vernacular newspaper and one national newspaper, as well as official social media platforms of the political party, including Facebook and Twitter. These details shall be published within 48 hours of the selection of the candidate or not less than two weeks before the first date of filing of nominations, whichever is earlier. The political party concerned shall then submit a report of compliance to the Election Commission within 72 hours of the selection of the
said candidate. If a political party fails to submit such compliance report, the Election Commission shall bring it to the notice of the Supreme Court as being in contempt of the Court’s direction. The Court also noted that over the last four general elections there had been an alarming increase in the incidence of criminality in politics. In 2004, 24% of the Members of Parliament had criminal cases pending against them; in 2009, it went up to 30%; in 2014 to 34%; and in 2019 as many as 43% of MPs had criminal cases pending against them. For the Apex Judicial Court of the country to issue such detailed Executive instructions is by itself an expression of its anguish and frustration at the failure of the political ecosystem, in general, and the Parliament, in particular, to take adequate steps to keep persons with established criminal backgrounds away from the sacred portals of the country’s legislative bodies, in spite of the Court having nudged them, from time to time, in this regard in the past. The Contempt Petition in relation to which the Supreme Court delivered the aforementioned order, relates to its judgment delivered on 25 September 2018 (Public Interest Foundation & Ors Vs Union Of India & Anr) in which the Court had issued the following directions: • Each contesting candidate shall fill up the form as
252 | The Parliamentarian | 2020: Issue Three | 100 years of publishing 1920-2020
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provided by the Election Commission and the form must contain all the particulars as required therein. It shall state, in bold letters, the criminal cases pending against the candidate. If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her. The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents. The candidate as well as the concerned political party shall issue a declaration in widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that it shall be done at least thrice after the filing of the nomination papers.
It cannot be more specific than that, as far as a Court’s directions can go; but still compliance did not follow. In all fairness, it must be mentioned that the five-judge Constitution Bench also held that a candidate cannot be disqualified merely because charges have been framed against him / her in a criminal case. The Bench also observed
