Preventing Criminalization of Politics: Rambabu Singh Vs. Sunil Arora - 2020
Introduction: It is an established fact that fair election is one of the cornerstones of democracy and in order to have fair elections it is necessary for the same to be transparent. As observed by SC in the famous Civil liberties case (2003) that “The universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls and thereby participate in the governance of our country. It has been further ruled that for democracy to survive, it is essential that the best available men should be chosen as the people‘s representatives for the proper governance of the country.”
The courts in its various rulings have emphasized on the fact that choosing the best individual as people’s representative is mandatory for proper governance. However, this important democratic process was largely jeopardized by political parties through making the whole process only about winning tactics i.e. the parties choose to induct individuals only on the basis of their popularity which could increase their “winnability” in the election and not on merits. In addition to the above, political parties generally tend not to disclose all information about the candidate to the public. Therefore, casting of a vote by a misinformed and non-informed voter or a voter having one-sided information only is bound to affect the democracy seriously.
Facts: The current judgment arises out of contempt proceeding filed by various litigants including BJP spokesperson Ashwini Upadhyay against Sunil Arora the 23rd Election commissioner of India. The petitioners through this petition charged against Election Commission for not monitoring the fact that ‘Whether political parties were complying with the directions issued by SC in the 2018 judgment of Public Interest Foundation.Vs Union of India’. SC’s 5 Judge Bench in 2018 issued five-point directives for legislature and election commission to make rules to curb criminalization of politics. The court in its earlier judgment directed parliament and commission to enforce rules on political parties forcing them to disclose all criminal antecedents of their election candidates. Petitioners brought to court’s attention on the fact that the decision of the court’s constitution bench has been openly disregarded by respondents.
Holding: The court on perusal of facts before it, acknowledged that political parties generally fail to offer an explanation on the reason for selecting a candidate to contest the election. Parties while opting for popularity rather than merit inclines to choose candidates with pending criminal cases. Therefore, in order to prevent the same court under Art 129 & 142 of the Constitution of India issued the following directions:
1) PUBLIC DISCLOSURE OF CRIMINAL HISTORY: Court made mandatory for all the political parties at the Central and State election level to upload on their website detailed information regarding individuals with pending criminal cases including the nature of the offences, and 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 history could not be selected as candidates.
2) REASON FOR SELECTION: Court ordered parties to also state the reasons for selection of a candidate in order to assure that same is done on basis of individual qualifications, achievements and merit of the candidate, and not merely because the candidate increases the chance of winning election due to his popularity.
3) PUBLICATION: The above information was also needed to be published in one local vernacular newspaper and one national newspaper along with on the official social media platforms of the political party, including Facebook & Twitter.
4) TIME LIMIT FOR COMPLIANCE OF ABOVE: The above details should be published by parties accordingly either within 48 hours of the selection of the candidate or not later than two weeks before the first date for filing of nominations. The political party concerned should also then submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate.
5) FAILURE: The court directed Election commission that if a political party fails to submit such compliance report with the Commission, then it shall bring such non-compliance by the political party concerned to the notice of the Supreme Court in order to initiate contempt proceeding against such political party.
Background or Discussion of Prior Law: The alarming increase in the incidence of criminals in politics and the mute spectator like the attitude of executive towards the same led the SC towards this decision. The data representing the percentage of Members of parliament having pending criminal cases against them in last four general elections: was 24% in 2004; which increased to 30% in 2009; further rising to 34% in 2014 and finally reaching at 43% by 2019 elections. This substantial increase in candidates with a history of criminal cases pointed towards the high criminalization of politics.
The SC in Public Interest Foundation. Vs Union of India (2018) also took cognizant of the increasing criminalization and lack of information about such criminal history of candidates to the ordinary public who vote for those candidates. The court in order to bridge this gap issued directory guidelines to prevent this and advised parliament to legislate on similar lines which remained futile. The court earlier directed that:-
1. Each contesting candidate shall fill-up the form as provided by the Election Commission and the form must contain all the particulars with regard to the criminal cases pending against the candidate.
2. If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.
3. The political party concerned shall also be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.
4. The candidate as well as the political party concerned shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. Here wide publicity meant that the same shall be published at least thrice after filing of the nomination papers.
The petitioner in Public Foundation case argued before the court to declare that the persons who have criminal charges framed against them should be disqualified from membership to Parliament and State Legislatures. Hence, Section 8 of Representation of Peoples Act 1951 should include framing of criminal charges as a ground for disqualification. Further, Electoral candidates filing false affidavits regarding their criminal history should also be automatically disqualified from membership to Parliament and State Legislatures. However, the court refused to issue such directions by observing that it could not alter the RP Act. It recognized that under the separation of powers law-making is a power exclusive to the legislature and therefore, denied to alter RP act as there is no scope for judicial intervention under same.
CONCLUSION: In the current India, where governments due to constitution machinery cannot directly encroach upon citizens right generally opt for an indirect method to curtail the same. Hence, in such tough time, the informed citizens and public organizations should take up the duty fight for basic rights of the citizens and ensure that the basic pillars of democracy should not be destroyed for the personal benefit of governing power. In the present case, the court effectively strengthened the free and fair election system of our country and prevented damage to the representative system on which governance of our country run.
ABOUT THE AUTHOR:
Jayant Upadhyay is a 4th Year student of BA.LLB course currently studying in K.L.E. Society’s law college, Bangalore. As he writes this post, Jayant is interning with us.
You can contact him at https://www.linkedin.com/in/jayant-upadhyay-731856131/
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