[BREAKING] Politicians With Criminal Antecedents Cannot Be Permitted To Be Law-Makers; But Our Hands Are Tied: Supreme Court

Sending a stern message to decriminalize politics, the Supreme Court observed that persons with criminal antecedents cannot be permitted to become law-makers. However, the Court refrained from issuing any directions to that effect, saying that such directions cannot be issued in the absence of a statutory foundation.

"Our hands are tied, we can only appeal to the conscience of the law-maker" remarked the Supreme Court while refusing to issue a direction that persons with criminal antecedents should not be permitted to be the law-makers.

"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", a bench comprising Justices RF Nariman and BR Gavai said.

"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", the Court added.

The bench said it hopes that the political parties "will wake up soon and carry out a major surgery for weeding out the malignancy of criminalisation in politics'. The Court, observing that the menace of criminalisation in the Indian political system is growing day by day, also opined 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.'

These observations were made while disposing the contempt petition filed by Advocate Brajesh Singh by issuing directions to 'make the right of information of a voter more effective and meaningful'.

The court was considering a request made by Amicus Curiae Sr. Adv K.V. Viswanathan that it should issue a direction to the ECI to invoke powers under Clause 16-A of the Symbols Order and take requisite action under the said clause to suspend, subject to terms and conditions, or withdraw recognition of such political party, who flout the directions issued by the Court in this regard.  However, the bench noted that a Constitution Bench of the Supreme Court in 2018 in the case  Public Interest Foundation and others v. Union of India, had refused to pass such directions saying that it will amount to a transgression into the legislative domain.

"A suggestion similar to one which is made to us with regard to directing the ECI for suspending or withdrawing the recognition of political parties which flout the directions, was made before the Constitution Bench by the learned counsel for the petitioner and the Amicus Curiae therein..... Constitution Bench after elaborately considering the said issue, held that issuing such a direction would amount to entering into the legislative arena and as such, such a direction could not be issued. In our view, in the teeth of the observations made by the Constitution Bench in paragraph 96, though some suggestions made by Shri Viswanathan are laudable, it will not be possible for us to accede to them"

Possibility of a rival implicating someone falsely, as a political vendetta, is not unknown in the country.

The court observed that the 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. 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 32 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 bench made the following observations in the judgment

Political parties refuse to wake up from deep slumber

72.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. 

Major surgery for weeding out the malignancy of criminalisation in politics

72....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

Menace of criminalisation in the Indian political system is growing day by day

71.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 Court has issued a slew of directions to ensure that complete information regarding the criminal antecedents of the candidates area available to the voters through adequate publication in the official websites and social media handles of the political parties and print media.

The Court also imposed fine on political parties for failure to comply with the judgment of disclosing criminal antecedents of candidates contesting polls in Bihar. ₹5 lakh fine imposed on CPI(M) & NCP and ₹1 lakh fine on BJP, INC, Janta Dal, RJD, CPI & LJP.

Also from the judgment:

Political Parties Must Publish Criminal Antecedents Of Candidates Within 48 Hours Of Their Selection : Supreme Court Modifies Earlier Direction

Political Parties Have To Publish Information On 'Candidates With Criminal Antecedents' On Their Website Homepage: Supreme Court