Can Political Parties Be De-Recognized For Failing To Publish Candidates' Criminal Antecedents Candidates? Supreme Court Discusses

"Are we to just put up our hands?", Justice Rohinton Nariman asked on Tuesday when Senior Advocate Kapil Sibal, for the Nationalist Congress Party, attempted to dissuade the Court against the invocation by the ECI of its power to suspend or withdraw recognition of a recognised political party for its failure to observe Model Code of Conduct or follow lawful directions and instructions of the Commission (under Paragraph 16A of the Symbols Order)

Although several political parties are arrayed as alleged contemnors for wilful disobedience during the Bihar Legislative Assembly Election of 2020 of the Court's judgement of February 13, 2020, primarily, the NCP and the CPI(Marxist) are in the docks for failing to comply at all. In the said judgment, the Court, while exercising its power under Article 129 read with Article 142, has directed, inter alia, that it shall be mandatory for political parties to upload on their website detailed information regarding individuals with pending criminal cases who have been selected as candidates.

Mr. Sibal had sought to submit that when a candidate is found guilty of a criminal offence, the Representation of People's Act stipulates that the person is disqualified and stands debarred from contesting elections.

"And how long does that take? There are Law Commission reports that the stage when a candidate must be debarred from contesting elections is the framing of charges. Unfortunately, we can't legislate! That is why we have called upon the Legislative Department repeatedly! But nothing is done, nothing at all! Are we to just put up our hands?", asked Justice Nariman.

Responding that he is not suggesting that the Court "put its hands up", Mr. Sibal explained that he is only submitting that the course of action through Paragraph 16A not be taken recourse to. "Your Lordships may say that if a charge has been framed for an offence punishable with more than 7 years, that person may not contest elections", he advanced.

Justice B. R. Gavai remarked that the same would amount to an encroachment in the domain of the Legislature."Your Lordships may give this power to the ECI under Article 324 (Superintendence, direction and control of elections to be vested in an Election Commission)! The EC can ensure that where the charges have been framed for an offence punishable with more than 7 years, that person will not contest elections!", responded Mr. Sibal.

Justice Nariman pointed out that a Constitution Bench of the Supreme Court has already considered all these propositions in 2018 and held that it cannot be done by the Court. "Then please refer it to 7 judges! But please don't do it through 16A, not in this fashion! It would create too many problems for us!", urged Mr. Sibal.

"Political parties are monoliths. The right hand does not know what the left hand is doing. There are many people at different levels and the party does not always know who is doing what and where- there are Panchayat elections, municipal elections, state elections! In the instant case, it was in the Bihar elections that the ECI's directions were not followed. Can that be the basis for cancelling the symbol of a national party and affecting its rights at elections across the country?", Mr. Sibal had argued.

At this, Justice Nariman indicated to Mr. Sibal that Paragraph 16A allows the ECI to either suspend, subject to such terms as the Commission may deem appropriate, or withdraw the recognition of such party as the National party or, as the case may be, the State party. "They can always suspend. Then, as a national party, you will not be jeopardised", observed the judge.

The judge noted that the suspension or withdrawal is of the recognition, and that it has nothing to do with any election.

"Even though the power is there, it has to be carefully exercised so it does not affect the polity of the country. If you give a hammer in the ECI's hands, it could be misused. Please read 16A with 324 to ensure the purity of the elections. To give the ECI the power to de-recognise would be dangerous! We know that leaders of some political parties are acted against immediately, while those of some parties are not dealt with at all! There are false cases foisted on some leaders!", concluded Mr. Sibal.

Justice Gavai asked Senior Advocate K. V. Vishwanathan, the Amicus Curiae in the matter, "National political parties run throughout the country. If a folly is committed by the party in Bihar, should the party be punished in the entire country?"

"How should the ECI deal with a party like the BJP or the INC? Can the suspension be state-wise for them? That they are recognised in the rest of the country but not, say, in Kerala? We have to take into consideration the ground realities in a country with so many states, where you don't know where the office bearers are. If in some small Panchayat elections, the directions are not followed, you cannot suddenly throw the entire party out", asked Justice Nariman.

The Amicus took the bench through the conditions for recognition of a political party as a national party, as provided in the Symbols Order. It is required that the candidates set up by the party (which seeks to be so recognised), in any four or more States, at the last general election to the House of the People, or to the Legislative Assembly of the State concerned, have secured not less than six percent of the total valid votes polled in those States, and in addition, it has returned at least four members to the House of the People from any State or States;

or At the last general election to the House of the People, the party has won at least two percent of the total number of seats in the House of the People, and the party 's candidates have been elected to that House from not less than three States;

or The party is recognised as a State party in at least four States.

"So you are recognised in every state as a national party. Because of your non-compliance, in a manner which is proportionate, your recognition to contest as a national party qua the state where you are not complying can be affected. This is proportionate and an order in your favour. Suspension is available, and suspension comes with terms. In a gross case, there is withdrawal", explained Mr. Vishwanathan.

It was further shown that even if a national party fails to fulfil the aforesaid conditions for recognition as such at the next election (following the election when it was so recognised), it shall continue to be treated as recognised National Party until the subsequent election.

Mr. Vishwanathan also indicated Paragraph 9(a) of the Order to advance that a state party in Maharashtra will still have a right to not have its symbol treated as a free symbol in another state and that it has a right to that symbol even in the state in which it is not recognised.

"Power under 16A is there to suspend and to impose terms, or to withdraw the recognition which is a time-bound order and which means that the party will have to wait out the period and fulfil the requirements and seek the recognition again. And once it is withdrawn, it will be amenable to judicial review", he submitted.

Justice Nariman inquired, "But in a given case, what are the types of terms and conditions which the Commission may impose?"

Mr. Vishwanathan replied that the benefits under the Symbols Order, which envisages the candidates of a political party, which is unrecognised at present but was a recognised National or State party earlier, to be allotted the symbol reserved earlier for that party, or for the allotment of a common symbol, may not be available as that would tantamount to "giving with the left hand what you have taken away with the right". He indicated that the suspension could also be made time-bound.

"So in case of a non-egregious violation, you can perhaps say that we suspend time-wise, so that you cover a particular violation. And in the case of an egregious violation, like these two parties who say we don't give a hoot and we will not fill up the form, you can suspend till the next election", observed Justice Nariman.

"Is it so alarming a consequence for a party which violates the Model Code of Conduct or the lawful directions of the ECI in one state to have its symbol suspended or withdrawn? If there is distribution of money or liquor or bribery and there is evidence to show that the MCC has been violated by a party in one state election, what is so alarming if they are made to pay the price by withdrawal or suspension, subject to terms, of the status either as the national party or the state party? They cannot ask that if a form is not filed, can I be penalised throughout the nation? Or if there is one violation in one constituency, should I attract penal action? They can't say that it is only in one election that they have not done the needful and so they can't be visited with this consequence. They have got a standing in three or four states and that is how they got the benefits of recognition of a national party. These are important safeguards of democracy. It will be a deterrent. The parties will then publish the data, the people will come to know and they will vote accordingly. That is how democracy is sustained. There are 302, 376, extortion cases against these candidates- all you want them to do is to submit forms and for the details to get publicity. What Your Lordships have asked is not extraordinary! This is the least to which the public is entitled, the right to know! Let the parties face the consequences! Let them fight one election without their symbol!", urged the Amicus.

"Unless this deterrent is there, they will not comply. They will completely violate the order. It is proportional to suspend them. Let them forfeit their recognition as a national party if they are distributing liquor in one segment of an election constituency. How else to enforce the directions? Why should the EC be toothless? The election commission is very conscientious and they will not not act in a whimsical manner, and if they do, then Your Lordships will correct them by judicial review. Possible abuse is not the manner to test the provision. 16A should not be diluted. As to how they exercise the power, the Election Commission is the highest authority and it can be presumed that they will exercise it with caution and circumspection", he concluded

The bench of Justices Rohinton Nariman and B. R. Gavai was considering a contempt petition filed by advocate Brajesh Singh where he claims to be aggrieved by the conduct of the respondents during the Bihar Legislative Assembly Election of 2020, alleging wilful disobedience of the Court's judgement of February 13, 2020. In the said judgment, it was held it shall be mandatory for political parties at the Central and state election level to upload on the website detailed information regarding individuals with pending criminal cases (including the nature of the offences and the 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 incidents could not be selected as candidates. Further, the court had required these details to be published within 48 hours of the selection of the candidate or not less than 2 weeks before the first date for filing of nomination, whichever is earlier. It may be noted that the February 13, 2020 judgement of the Court further required the political party concerned to submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate. The Court had provided that if a political party fails to submit such a compliance report, the commission shall bring such non-compliance to the notice of the Supreme Court as being in contempt of the Court's directions.

It was the case of the contempt-petitioner that all of the parties contesting the Bihar elections deliberately defied the orders of the Court by choosing to publish their criminal antecedents by and large in one newspaper which did not have wide circulation in the state as compared to other prominent newspapers. Further, all prominent political parties had given a common reason for selecting candidates with criminal antecedents- their being more popular than any other candidate and the greater probability of winning- which is against the Court's direction Which had specifically required the reasons to be in terms of the qualifications, achievement and merit of the candidate and not winnability at the polls. Besides, it is contended that only an incomplete description of the offences with which the candidates are charged had been given.