In a most welcome judgment with far reaching implications, the Supreme Court just recently while exercising its inherent jurisdiction in a noteworthy judgment titled Rambabu Singh Thakur Vs Sunil Arora & Ors. in Contempt Pet. (C) No. 2192 of 2018 in W.P. (C) No. 536 of 2011 along with others has taken serious note of the increase in the number of tainted candidates facing criminal cases entering politics. It has issued a slew of directions in this latest, landmark and extremely laudable judgment which we shall discuss later. It is heartening to note that the political parties now would be bound to give reasons for fielding tainted candidates over non tainted candidate to contest an election which is certainly a positive step forward in the right direction.

Before proceeding ahead, let us have a cursory look at the way the developments proceeded that led to this historic order.

They are as follows:
2011 November 18: NGO Public Interest Foundation approaches Supreme Court and seeks disqualification of candidates with serious criminal charges pending against them.

2013 December 16: Centre informs Apex Court that the Law Commission of India is considering de-criminalisation of politics and electoral reforms and will submit a report.

2014 February: Law Commission of India in its 244th report dealing with  Electoral Disqualifications  recommends disqualification of candidates against whom charges have been framed with respect to offences punishable with imprisonment of five years or more.

2016 March 8: A three-Judge Bench of the Apex Court headed by Justice Ranjan Gogoi refers the matter to a Constitution Bench of five Judges.

2018 August 9: The Constitution Bench headed by then CJI Dipak Mishra begins hearing the matter.

2018 September 25: Constitution Bench orders that candidates contesting elections should disclose details of pending criminal cases against him/her in the form provided by the Election Commission.

A political party should publish on its website information pertaining to candidates with criminal antecedents. Such details should be published in widely circulated newspapers and electronic media.

2019 March 11: Advocate and BJP national spokesperson Ashwini Kumar Upadhyay files a contempt petition in the Supreme Court, which among other things, points out that despite repeated directions, the government and Election Commission have failed to take steps for decriminalization of politics.

2020 January 24: During the hearing of the contempt petitions, the Election Commission agrees to suggestion that all parties should upload on their website details of candidates with criminal antecedents.

2020 January 31: Apex Court reserves its verdict in the contempt petition.

2020 February 13: Finally the Apex Court delivers the landmark judgment issuing further directions to curb criminalization of politics.

To start with, Justice RF Nariman who authored this commendable judgment for himself and Justice S Ravindra Bhatt of the Bench of Supreme Court sets the ball rolling right at the outset by first and foremost observing in para 1 that,  This contempt petition raises grave issues regarding the criminalisation of politics in India and brings to our attention a disregard of the directions of a Constitution Bench of this Court in Public Interest Foundation and Ors. v. Union of India and Anr. (2019) 3 SCC 224.

While queering the pitch further, it is then eloquently and elegantly observed in para 2 that,  In this judgment, this Court was cognisant of the increasing criminalization of politics in India and the lack of information about such criminalization amongst the citizenry.

In order to remedy this information gap, this Court issued the following directions:

• 116. Keeping the aforesaid in view, we think it appropriate to issue the following directions which are in accord with the decisions of this Court.
• 116.1. Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.
• 116.2. It shall state, in bold letters, with regard to the criminal cases pending against the candidate.
• 116.3. 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.
• 116.4. The political party concerned shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.
• 116.5. 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. When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers.

To put things in perspective, the Bench then observes in para 3 that,  On a perusal of the documents placed on record and after submissions of counsel, it appears that over the last four general elections, there has been an alarming increase in the incidence of criminals in politics. In 2004, 24% of the Members of Parliament had criminal cases pending against them; in 2009, that went up to 30%; in 2014 to 34% and in 2019 as many as 43% of MPs had criminal cases pending against them.

While pooh-poohing the political parties for fielding tainted candidates with criminal background, the Bench then minces no words in para 4 to convey in simple and straight language that,  We have also noted that the political parties offer no explanation as to why candidates with pending criminal cases are selected as candidates in the first place.

We therefore issue the following directions in exercise of our constitutional powers under Articles 129 and 142 of the Constitution of India:

1. It shall be mandatory for 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 antecedents could not be selected as candidates.
2. The reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned and not mere  winnability  at the polls.
3. This information shall also be published in:
   (a) One local vernacular newspaper and one national newspaper;
   (b) On the official social media platforms of the political party, including Facebook & Twitter.
4. These details shall 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.
5. The political party concerned shall then submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate.
6. If a political party fails to submit such compliance report with the Election Commission, the Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of this Court's orders/directions.
7. Lastly, it is then held in the last para 5 that,  With these directions, these Contempt Petitions are accordingly disposed of.

No doubt, words cannot be adequate to express our profuse happiness and unstinted support to this daring and durable judgment authored by Justice RF Nariman for himself and Justice S Ravindra Bhat comprising the Bench of the Apex Court which has compelled even political parties who are worst affected by this latest, landmark and extremely laudable judgment to admire, appreciate and applaud it to the fullest! It will certainly now become difficult for political parties to field easily tainted candidates! There can be no denying or disputing it!

Having said this, it must be added that there should be no room for criminals in politics! It is politicians who are the lawmakers of this country and if rapists and dacoits and other criminals decide on what the law shall be then be rest assured as we have seen till now that no rapists will be hanged and it is only once in 16 years that a poor rapist like Dhananjay Chatterjee will be hanged and that too because he didn't had the money to spend on lawyers and whose petition was drafted by none other than the prisoners of Tihar jail as was pointed out by senior Supreme Court advocate Colin Gonsalves which is nothing but the biggest  miscarriage of justice  and who was hanged on circumstantial evidence alone! In last more than 40 years we see only 3 rapists being hanged! Why?

It is because our law makers have ensured that the  discretion bomb  enshrined in IPC in various Sections of 376 in rape laws are never defused as many of them can be affected in future by defusing them and even for repeated offenders there is no mandatory death penalty nor for child rapists! Can on earth there be anything more unfortunate than this?

What a shame that more than 3000 Sikhs were killed in Delhi alone during anti-Sikh riots in 1984 and yet not a single offender has been hanged. Even life imprisonment to a few was handed out after more than 3 decades of that ghastly and dastardly crimes!

There are many more such cases! Who ensures this? It is our lawmakers with criminal background who ensure that there are so many loopholes in our law that the offenders are rarely ever punished! It is our lawmakers who decide who will be appointed as Judges of High Court and Supreme Court! They have their share of pie in virtually everything! Then still why they alone should not be subjected to serious scrutiny? We are a democratic country and not dictator country!

It is a national tragedy that for getting even a very small job there is proper police verification and even if one case is found that debars one from getting any job! On the contrary, if that same debarred person wants to contest elections to become an MP or an MLA then even after committing dacoities, rapes, murders and what not they are still eligible as long as the case is not finally decided! Why only MP and MLAs are given a blank cheque?

Why all politicians are united that tainted politicians should not be barred as the cases can be false or frivolous but for getting other jobs there should be strictest scrutiny in all matters and even if someone just lodges a case then the person concerned must be promptly debarred from getting any job? Why Supreme Court never dares to remove this inequality between politicians and people? It is politicians and not people who rule this country and there must be strictest rules for them which we don't see in our country!

No prizes for guessing that this alone is the major reason why during election rallies we hear provocative slogans of the worst kind which may shame even a criminal! Why is shouting in Parliament and State Assemblies tolerated? Why are there no strict rules for MPs and MLAs? Why many of them get away even after abusing anyone or even slapping anyone or even beating anyone as we have seen many times in news channels? All this must stop by imposing on them the same rules as are imposed on a common man who after getting selected in any job is expected to behave with utmost civility! All this must end now by treating politicians on par with people and rather imposing more strict conditions on the way they conduct themselves in Parliament and Assemblies and even outside!

As per a 2019 report of the Association of Democratic Reforms (ADR) which analysed 4845 out of 4896 election affidavits of incumbent MPs and MLAs, 1765 MPs and MLAs or 36% were facing criminal trial in 3,045 cases. In Maharashtra, 62% of MLAs are facing criminal cases. 43 out of 70 MLAs who won the Delhi Assembly polls have declared criminal cases against them. The percentage of tainted MLAs in West Bengal, Uttar Pradesh and Tamil Nadu Assemblies in 37%, 36% and 34% respectively!

A report by NGO Association for Democratic Reforms said that 233 of 539 (43%) elected to Lok Sabha in 2019 had declared pending criminal cases in their affidavits. This was its break-up of cases: BJP: 116/301 (39%); Congress: 29/51 (57%); DMK: 10/23 (43%); Trinamool: 9/22 (41%); JD(U): 13/16 (81%). It is most shuddering to see that those who are themselves accused of illegal crimes like mining, violation of forest laws and even face rape and murder charges become senior Cabinet ministers in not just State Government but also in Centre! All this hogwash in the name of  innocent till proven guilty  must end once and for all just like is the case in other services and jobs!

It goes without saying that it is high time and now there must be a final and ruthless strike on the deep roots of crime in politics! The Apex Court in this notable judgment has certainly taken the first step in the right direction! As BJP spokesperson Nalin Kohli says that:
 It strengthens the electoral democratic process in enabling the voters to make a choice keeping all factors in mind.  But a lot more needs to be done! A good beginning, however has been made which must be continued further! This historic order certainly paves the way for transparency in a very significant topic: Candidate selection and credentials of the political spectrum which forms the bedrock of our democracy and must be preserved in its pure form. It brooks no more delay!

Let me now conclude by finally quoting SY Quraishi who is the former Chief Election Commissioner whom I truly adore, admire and appreciate and who most elegantly and eloquently points out most rightly in his editorial titled  Verdict prioritises morals over myth of winnability  in Hindustan Times dated February 14, 2020 that,  Political parties have been at the vanguard of opposition against any attempt to cleanse the Indian political arena. The most common argument posed by them has been the misuse of vendetta politics – ironically reflecting the nature of their own political play.

They conveniently miss the safeguards suggested by the Election Commission of India:

1. only heinous offences that carry at least five years imprisonment would invite a ban against contesting
2. the case must have been filed at least six months before elections;
3. only when the charges have been framed by a court would a ban be enforced

The other argument put across by the parties is the noble principle in the criminal justice system –  innocent until proven guilty . They have no answers when I help them recall that there are 270,000 under-trial prisoners, not yet convicted, not yet even been tried languishing in jails for years with as many as four fundamental rights (liberty, freedom of movement, freedom of occupation and right to dignity) conveniently taken away, in addition to the right to vote.

At a time when civil liberties to protest peacefully, a fundamental right under the Constitution of India (Article 19), are being infringed upon by the executive of the day, with our judiciary silently watching, all in the name of national interest

• why is the Court shying away from barring criminally charged candidates from contesting in wider national interest?
•  If a fundamental right under Article 19 can be kept aside in wider national interest, why not the right to contest an election, which is not even a fundamental right?

The Supreme Court once upheld the importance of the principle of institutional integrity in a case involving the Central Vigilance Commission (CVC). So where is the institutional integrity of the supreme institution of democracy, our parliament, with 43% of its honourable members tainted with criminal cases? This upsetting reality has been reflected in the Democracy Index 2019 by the Economist wherein the world's largest democracy has recorded the sharpest fall since 2006 to find itself at 51st rank, with the tag of a flawed democracy. If the trend continues, we are not too far from the tag of hybrid democracy, the next ladder of the Index, while we continue to protect our honourable tainted politicians under the legal maxim  innocent till proven guilty.

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.