New Delhi: A two-judge bench of the Supreme Court led by Justice Rohinton Fali Nariman has directed all political parties to publish within 48 hours of selection of the candidate or within two weeks of nomination, whichever is earlier, the criminals records of candidates in Assembly and Parliament polls.
SC also directed parties to publish reasons for selection of candidates with criminal records, besides mere winnability.
“There has been an alarming increase in number of candidates with criminal background in the last four general elections,” the court observed.
The top court also directed that information to be shared by political parties will also include information as available on social media.
Parties have also been directed to give reasons for selection of candidates with criminal antecedents. SC said winnability can’t be the only justification. The EC will also be provided with details.
There shall be contempt of court if there is no compliance with this verdict, the SC said while directing that information be published in local newspapers and social media too.
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2018 Supreme Court judgment
The judgment was delivered on a batch of contempt petitions which pointed out that despite repeated directions by the apex court in 2018, the government and election commission had failed to take steps for decriminalisation of politics.
The verdict draws it’s genesis from an earlier 25 September 2018 judgment where the SC had urged Parliament to bring a “strong law” to cleanse political parties of leaders facing trial for serious crimes.
The ruling by a five-judge bench led by the then Chief Justice of India Dipak Misra concluded that rapid criminalisation of politics cannot be arrested by merely disqualifying tainted legislators but should begin by “cleansing” the political parties.
One of the petitioners, BJP leader Ashwini Kumar Upadhyay, in his contempt plea before the top court argued that by not implementing the SC order of 2018, the government had committed contempt of court.
The court in 2018 had suggested that Parliament frame a law that makes it obligatory for political parties to remove leaders charged with “heinous and grievous” crimes like rape, murder and kidnapping, only to name a few, and refuse ticket to offenders in both parliamentary and Assembly polls.
Election Commission of India was served notice during the hearing of this plea by the BJP leader and it agreed with the suggestions of senior lawyer Gopal Sankaranarayanan, representing petitioner Ashiwini Upadhyay, including 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.
However, the EC had 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.
The plea said that the consequences of permitting criminals to contest elections and become legislators are extremely serious.
“During the electoral process itself, not only do they deploy enormous amounts of illegal money to interfere with the outcome, they also intimidate voters and rival candidates. Thereafter, in our weak rule-of-law context, once they gain entry to our system of governance, they interfere with and influence functioning of Government in favour of themselves”, the petition stated.
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.
Later, EC during the hearing on January 24, 2019, acknowledged that the directions issued by the Supreme Court in 2018 to give publicity to the criminal antecedents of candidates contesting elections failed to yield the desired result of decriminalising politics.
Upadhyay had submitted that pursuant to the judgment, the EC issued directions to political parties and candidates to publish criminal antecedents.
However, EC did not publish a list of leading newspapers and news channels wherein criminal antecedents of the contesting candidates had to be publicised. Upadhyay argued that political parties took advantage of the same and published criminal antecedents in unpopular newspapers and news channels and at odd hours when people don’t watch TV.
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