Plea In SC To Debar Persons With Criminal Antecedents From Contesting Elections On Party Ticket [Read Petition]

Keeping in view the menace of criminalization in politics, BJP leader Ashwini Kumar Upadhyay has moved the Supreme Court, seeking direction to ECI to publish criminal antecedents of candidates and restrict political parties to setup candidates against whom charges have been framed in serious cases.

As per the plea, a candidate with criminal antecedents means a person against whom charges have been framed at least one year before the date of scrutiny of nominations for an offence with maximum punishment of 5 years or more.

It states that permitting criminals to contest and become legislators interferes with the purity and integrity of the electoral process and violates the right to choose freely the candidate of the voter's choice and, therefore, the freedom of expression of the voter under Article 19(1)(a). It further states that this leads to "subversion" of democracy, which is is antithetical to the rule of law and Article 14 of the Constitution.

The Petitioner has contended that permitting criminals to contest and become legislators has serious consequences on our democracy and secularism. He submitted:

During electoral process itself, not only do these criminals "deploy enormous amounts of illegal money to interfere with the outcome but also intimidate voters and rival candidates." Thereafter, once they gain entry to the governance as legislators, they interfere with, and influence, the functioning of government machinery in favour of themselves and members of their organization by corrupting government officers. He further alleged that legislators with criminal antecedents attempt to subvert the administration of justice by preventing cases against themselves from being concluded and, where possible, obtain acquittals.

He also said that "it is impossible for a person to look after the nation on one hand religiously and involved in serious criminal cases."

In support of his case, he said, a host of reports including the ECI's Proposed Electoral Reforms (2004), Law Commission's 170^th and 244^th Reports (1999 and 2014), the NCRWC's Proposals (2002), the Second Administrative Reforms Commission (2009) and the Vohra Committee (1993) have drawn attention to the severity of the problem and have suggested electoral reforms to stem the tide of criminals flowing into our polity.

The Petitioner pointed out that presently 29% MPs had declared serious criminal cases pending against them, including cases related to rape, murder, attempt to murder, kidnapping, crimes against women etc. in this regard he said,

"What is alarming is that the percentage of candidates with criminal antecedents and their chances of winning have actually increased steadily over the years. In fact, empirical analysis shows that, where the charges against a candidate are serious, it slightly increases the statistical probability of his winning the election."

It has been submitted that the ECI is empowered to fill this lacunae in law, under its powers entailed in Article 324 of the Constitution. Reliance was placed on Kanhiya Lal Omar v. R.K. Trivedi, (1985) 4 SCC 628.

The Petitioner also contended that the proposed direction will not result in a violation of Article 19(1)(c) to form association inasmuch as the direction will only prevent them from obtaining election ticket and not from becoming /continuing to be a member of the party. In fact, he submitted, the affected candidates will still be eligible to stand for election as an independent candidate.

He also submitted that the proposed direction does not impinge upon the principle of "presumption of innocence" inasmuch as it does not have the effect of convicting the candidate or subjecting him to imprisonment. Moreover, it does not impose any serious disability on the candidate to the extent that he can always stand as an independent candidate.

In order to effectively implement the proposed direction of debarring persons with criminal antecedents from contesting elections from a party, the Petitioner has prayed that the ECI should:

1. take steps to ensure that every political party puts up complete details of the contesting candidates on the home page of its website, and publish criminal antecedents in three most watched news channels between 9 am to 9 pm and three most circulated newspapers, two days before the day of polling;
2. take steps to ensure that every candidate publishes his criminal antecedents in three most watched news channels between 9 am to 9 pm and three most circulated newspapers, two days before the day of polling.

The petition has been drawn by Advocate Ashwani Kumar Dubey.

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