The SC Judgement
On 13thFebruary 2020,the Supreme Court bench of Justices R F Nariman and S Ravindra Bhat ordered political parties to publish the criminal antecedents of their candidates for Assembly and Lok Sabha polls.
The parties should also publish detailed reasons that made them choose those with criminal records over other candidates, within 48 hours of the selection of the candidates.
Information to be disclosed
- What crime is the candidate accused of?
- How many cases? What kind of case?
- Case details –case no., name of court
- What stage has the criminal case reached –
FIR, Investigation, Charge-sheet or trial
- Why other individuals without criminal antecedents could not be selected as candidates?
** “Winnability” of a candidate cannot be the only reason for selection.
The information must be uploaded on
•Website of party
•Social media platforms like Facebookand Twitter
•One local vernacular
•One national newspaper
Right now, political parties offer no explanation on why candidates with pending criminal cases are selected as candidates.
Contempt of court
- The political party concerned shall submit a report of compliance with these directions with 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 such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of the Court’s orders.
- Articles 129 and 142 of the Constitution which deal with the contempt power of the Supreme Court and enforcement of its decrees and orders
- Contempt case will be filed against Party president.
September 2018 verdict
Supreme court passed the recent orders on a contempt plea which raised the issue of criminalization of politics claiming that directions given by the apex court in its September 2018 verdict given by a five-judge Constitution Bench, relating to disclosure of criminal antecedents by candidates are not being followed.
In 2018 too, SC issued directives to ensure that
•The voters are aware of the antecedents of candidates.
•Political parties will have to upload details of criminal cases pending against their candidates on their websites.
•The candidates will have to furnish such information in their election affidavit and also publish it in a “widely-circulated newspaper”.
Aren’t criminals banned from fighting elections already?
- Section 8 of the Representation of People Act, 1951
- An individual punished with a jail term of more than two years cannot stand in an election for six years after the jail term has ended.
- But those facing trial, no matter how serious the charges, are free to contest elections
- The fact that cases drag on in courts for years makes this provision virtually ineffective.
- A 2014 report of the Law Commission pointed out that “disqualification upon conviction has proved to be incapable of curbing the growing criminalisation of politics, owing to long delays in trials and rare convictions.”
- An affidavit submitted to the Supreme Court in 2018 by the Centre also testifies to the shortcomings of the RPA’s disqualification clause.
- There are more than 3,800 criminal cases against 1,765 MPs and MLAs across the country, of which 3,045 cases are pending, the affidavit said.
Criminalisation of Politics
- It began in late 1970s
- No law barring criminal candidates.
- Alarming increase in criminalisation of politics in the last four general elections.
Association for Democratic Reforms (ADR)
The % of Members of Parliament who had criminal cases pending against them
Law to bar criminal candidates?
SC Judgement –
“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.”
Judicial activism OR overreach?
- Over reach by judiciary?
- Guidelines would have sufficed
- Use of Contempt power wrong?
- Suitability of candidates is a subjective matter.
- The Representation of the People Act (RPA) does not bar individuals who have criminal cases pending against them from contesting elections.