Decriminalization Of Indian Politics: 13 Key Observations Made By Supreme Court Today

The Supreme Court delivered a significant judgment today emphasizing the need to decriminalize Indian politics. The following are key observations made by the bench of Justices RF Nariman and BR Gavai in its judgment today:

Candidates with criminal antecedents should not be permitted to be the law-makers.

No one can deny that the menace of criminalisation in the Indian political system is growing day by day. Also, no one can deny that for maintaining purity of political system, persons with criminal antecedents and who are involved in criminalisation of political system should not be permitted to be the law-makers. The only question is, whether this Court can do so by issuing directions which do not have foundation in the statutory provisions. (Para 71)

But our hands are tied; We can only appeal to the conscience of the law-makers

However, in view of the constitutional scheme of separation of powers, though we desire that something urgently requires to be done in the matter, our hands are tied and we cannot transgress into the area reserved for the legislative arm of the State. We can only appeal to the conscience of the law-makers and hope that they will wake up soon and carry out a major surgery for weeding out the malignancy of criminalisation in politics. (Para 72)

 All these appeals have fallen on the deaf ears

This Court, time and again, has appealed to the law-makers of the Country to rise to the occasion and take steps for bringing out necessary amendments so that the involvement of persons with criminal antecedents in polity is prohibited. All these appeals have fallen on the deaf ears. The political parties refuse to wake up from deep slumber. (Para 72)

The nation continues to wait, and is losing patience

The nation continues to wait, and is losing patience. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government. (Para 17)

Voter has a right to vote a candidate of his choice, a political party have the discretion to choose a candidate of its choice.

There are various factors which a political party takes into consideration while selecting a candidate. As a citizen who possesses requisite qualifications and is not disqualified under any of the provisions of the Constitution or the Act of 1951, has a right to contest an election and a voter has a right to vote a candidate of his choice, a political party would also have the discretion to choose a candidate of its choice. (Para 27)

A political party can give a reason that a candidate with criminal antecedents is found to be more suitable than a person who does not have it

A possibility of a rival implicating someone falsely, as a political vendetta, is not unknown in the country. Take a situation wherein otherwise a highly meritorious candidate has been falsely implicated in some criminal matters by his rivals. As against this, a person who has a clean record, but totally unknown to the electorate in that area, applies for a ticket of a political party. In such a situation, a political party can always give a reason that a candidate with criminal antecedents is found to be more suitable than a person who does not have criminal antecedents. The reasons could be many. If the political party is of the prima facie opinion that such a candidate has been falsely implicated, it can say so. (Para 28)

Reasons should not be with regard to "mere winnability at the polls"

What has been provided by us in paragraph 4.2 of the Order dated 13.02.2020 is that the reasons should not be with regard to "mere winnability at the polls". As such, though a political party would have the freedom of selecting candidates of its choice, though having criminal antecedents, what would be required is to give reasons in support of such selection, and the reasons could be dependent on various factors including qualifications, achievements and other merits. At the cost of repetition, such a direction is only to enable a voter to have all the necessary information, so that he can exercise his right to franchise in an effective manner. The directions in no way impinge upon the right of a political party to choose a candidate of its own choice. (Para 28)

On suggestion that the political parties could be directed to finalise their candidates before a substantial period 

In our view, unless the competent legislature takes a call on the issue and makes suitable statutory provisions, it will not be permissible for this Court to lay down such a guideline. (Para 35)

It is a ground reality that in most of the cases the candidates are finalised by the political parties between the period commencing from the date of notification till the last date of withdrawal. Direction No. 4.4 requires the details to be published within 48 hours of the selection of the candidate or not less than two weeks before the first date for filing of nominations, whichever is earlier. There should be no difficulty insofar as requirement to publish the details within 48 hours from the selection of candidate is concerned..It could thus be seen that in the light of the statutory provision as it exists, it would not be possible to follow the direction to publish the details prior to two weeks before the first date of filing of nomination. (Para 33-34)

On Suggestion To Bar Candidates With Criminal Antecedents From Contesting Elections

It could thus clearly be seen that the Constitution Bench has specifically rejected the alternative proposal made by the counsel for the petitioners and the learned Amicus Curiae therein with regard to a direction to the ECI to the effect that a candidate against whom charges have been framed for heinous and/or grievous offences cannot be allowed to contest with the reserved symbol for the political party. The Constitution Bench thus observed that it would tantamount to adding a new ground for disqualification which is beyond the pale of the judicial arm of State. It observed that any attempt to the contrary would be a colourable exercise of judicial power for it is axiomatic that 'what cannot be done directly ought not to be done indirectly' which is a well-accepted principle in the Indian Judiciary. (Para 48)

The Constitution Bench therefore observes that though criminalisation in politics is a bitter manifest truth, which is a termite in the citadel of democracy, the Court cannot make law. It observes that the directions to the ECI, of the nature as sought in the case at hand, may in an idealistic world, seem, at a cursory glance, to be an antidote to the malignancy of criminalisation in politics, but such directions, on a closer scrutiny, clearly reveal that it is not constitutionally permissible. It goes on to say that as the protector of the constitutional ethos, it cannot usurp the power which it does not have. (Para 50)

it will not be permissible for this Court to read any implied limitations and issue directions which would indirectly provide for disqualification of a candidate.

On Political Parties Flouting Earlier Order

We are of the view an oversight on part of the State Committee of the party cannot be a ground for non-compliance of the directions passed by this Court (Para 64)\

Lenient View Taken Since These Were First Elections After Issuance Of Directions

Though we have held the Respondent No. 3 to 9, 11 and 12 guilty of having committed contempt of our Order dated 13.02.2020, taking into consideration that these were the first elections which were conducted after issuance of our directions, we are inclined to take a lenient view in the matter. However, we warn them that they should be cautious in  future and ensure that the directions issued by this Court as well as the ECI are followed in letter and spirit. (Para 69)

ECI must by itself take prompt action in accordance with the directions 

Insofar as the ECI is concerned, we accept the argument of Shri Vikas Singh that they cannot said to have committed any contempt of our Order dated 13.02.2020 as the circumstances pointed out by him clearly show that the ECI did bring to our notice the flouting of our directions contained in the said order. We must, however, caution the ECI to do so as promptly as possible in future so that prompt action may be taken by this Court, it being understood that the ECI must by itself take prompt action in accordance with the directions contained in this Order. (Para 70)

Directions Issued 

(i) Political parties are to publish information regarding criminal antecedents of candidates on the homepage of their websites, thus making it easier for the voter to get to the information that has to be supplied. It will also become necessary now to have on the homepage a caption which states "candidates with criminal antecedents"

(ii) The ECI is directed to create a dedicated mobile application containing information published by candidates regarding their criminal antecedents, so that at one stroke, each voter gets such information on his/her mobile phone;

(iii) The ECI is directed to carry out an extensive awareness campaign to make every voter aware about his right to know and the availability of information regarding criminal antecedents of all contesting candidates. This shall be done across various platforms, including social media, websites, TV ads, prime time debates, pamphlets, etc. A fund must be created for this purpose within a period of 4 weeks into which fines for contempt of Court may be directed to be paid;

(iv) For the aforesaid purposes, the ECI is also directed to create a separate cell which will also monitor the required compliances so that this Court can be apprised promptly of non-compliance by any political party of the directions contained in this Court's Orders, as fleshed out by the ECI, in instructions, letters and circulars issued in this behalf;

(v) We clarify that the direction in paragraph 4.4 of our Order dated 13.02.2020 be modified and it is clarified that the details which are required to be published, shall be published within 48 hours of the selection of the candidate and not prior to two weeks before the first date of filing of nominations; and

(vi) We reiterate that if such a political party fails to submit such compliance report with the ECI, the ECI shall bring such noncompliance by the political party to the notice of this Court as being in contempt of this Court's Orders/directions, which shall in future be viewed very seriously.