Issue of penalising political parties, candidates needs to be dealt with carefully, says SC

The Supreme Court Friday said the issue of penalising political parties or candidates for not disclosing criminal antecedents has to be dealt with carefully as allegations of sedition and anti-national are often made with "political overtones".

The apex court was dealing with a contempt plea which has raised the issue of criminalisation of politics claiming that directions given by the top court in its September 25, 2018 verdict, relating to disclosure of criminal antecedents by candidates, were not being followed.

"Now, charges with political overtones are brought in. It is easy to frame charges on this....it is very easy to frame charges in cases which may be filed by political opponent including of sedition and anti-national. We have to be very careful," a bench of Justices R F Nariman and S Ravindra Bhat said.

 

The Election Commission told the court that increase in number of MPs having pending criminal cases was "disturbing" and as per the statistics, there were 43 per cent MPs in the current Parliament who have criminal cases against them.

"The number (of MPs having pending criminal cases) has gone up and that is the disturbing part," said senior lawyer Vikas Singh, appearing for the poll panel.

Singh said the EC has agreed with the suggestions of senior lawyer Gopal Sankaranarayanan, representing BJP leader and petitioner Ashiwini Upadhyay, including that all political parties should mandatorily upload on their website details of candidates with criminal antecedents along with the reasons as to why those without any criminal record could not be selected.

However, the EC said it was not agreeable to the suggestion regarding penalising the political party or its candidates under Article 324 of the Constitution for their failure to disclose criminal antecedents, as it does not have this power.

Sankaranarayanan told the bench that the Constitution bench judgement of September 2018 should be complied with and without penalty or sanction, the political parties or their candidates would not act accordingly as mandated by the top court.

"Let the political process take care of itself. Let us be practical," he said.

He then referred to section 33-A of the Representation of the People Act, 1951 which stipulates that a candidate has to furnish details, including as to whether he is accused of any offence punishable with jail term of two years or more in a pending case in which charges has been framed, in his nomination paper.

The bench, which had earlier asked the EC and petitioner to sit together and come up with suggestions, said it would pass order in the matter.

At the fag end of hearing, Singh, while referring to rise in number of lawmakers having pending criminal case, said: "There is no debate today on this. Nobody is bothered."

He said that EC has agreed with the suggestion that political parties may be asked to furnish details on its website regarding criminal antecedents of candidates and give reasons as to why he or she has been given the ticket.

"The reasons shall have to be justifiable with reference to qualifications, achievements and merit of the candidate concerned and 'winnability' shall not be a sufficient justification," the suggestion said.

"The above information shall also be published in: one local vernacular newspaper and one national newspaper; on the official social media platforms of the political party including Facebook and Twitter," it said.

It further said that these details shall be published within 48 hours of setting up of the candidate and allowing usage of symbol reserved for the political party.

"The political party shall submit a report to the Election Commission regarding the above publications within 24 hours of the nomination of the candidate," it said.

Last week, the EC had told the top court that direction asking poll candidates to declare their criminal antecedents in the media has not helped curb criminalisation of politics, and political parties should be asked not to give tickets to those with criminal background.

On March 29 last year, the apex court had sought response from the Centre and EC on Upadhaya's plea seeking initiation of contempt proceedings for alleged violation of its judgment directing all candidates to declare their criminal antecedents to the poll panel before contesting elections.

On October 10, 2018, the EC had issued notification regarding the amended Form-26 and directions to political parties and candidates for publication of criminal antecedents.

However, the plea filed by Upadhyay alleged that the EC neither amended the Election Symbol Order, 1968 nor the model code of conduct (MCC) so the said notification has no legal sanction.

In September 2018, five-judge Constitution bench had unanimously held that all candidates will have to declare their criminal antecedents to the EC before contesting polls and called for a wider publicity, through print and electronic media about antecedents of candidates.

It had left it to Parliament to "cure the malignancy" of criminalisation of politics by making a law to ensure that persons facing serious criminal cases do not enter the political arena as the "polluted stream of politics" needs to be cleansed.