The Supreme Court of India v. The Politics

In a single day, August 10, 2021, the apex court of the country passed three judgements in the context of the political machinery in the country; the first being a decision by a three-judge divisional bench of Justice N. V. Ramana, Justice Vineet Saran and Justice Surya Kant in a petition filed by Mr Ashwini Kumar Upadhyay in 2016 where the petitioner asked for the debarment of convicted individuals from becoming office-bearers in any organ of democracy: the executive, the judiciary and the legislative, including being debarred from not only forming political parties but also contesting elections. The court had sought the assistance of Amicus Curiae: Senior Advocate Vijay Hansaria and Advocate Sneha Kalita in the context of Section 321 of the Code of Criminal Procedure, 197, while discussing the question of withdrawing a case by either a Public Prosecutor or an Assistant Public Prosecutor against either a member of the Union Parliament or a member of the State Legislative Assembly (either sitting or former), wherein the aforementioned advocates observed the several instances of withdrawal of cases against political representatives.

The bench held that any case against an MP/ MLA can be withdrawn if and only if such withdrawal is consented by the High Court of the respective state under Section 321 of the Code of Criminal Procedure, 1973; this condition is nullified in situations where the judge holding the said case either dies or retires.

Within four hours of the aforementioned judgement, a two-judge bench of R. F. Nariman and Justice B. R. Gavai in the case of Brajesh Singh v. Sunil Arora (2021) SC 367, held that individuals with criminal antecedents are barred from becoming legislative office-bearers; however, the bench observed that a direction in the same vein cannot be declared by the court since the same is out of their statutory purview owing to the Doctrine of Separation of Powers within the Constitution of India where the judicial arm is vehemently barred from taking decisions about any topic reserved for the legislative arm of the Indian democracy. The bench opined that the heavy criminalization of the Indian political system deviates the same from its prospective purity, leading to a menace within the political structure of India. The bench held that the Election Commission of India can either suspend or withdraw the recognition of political parties with active, criminal members; additionally, the court asked the incumbent lawmakers in the country to make necessary amendments to remove persons with criminal antecedents from the Indian political system, wherein the bench held that the political machinery, including the political parties, need to rise to the occasion of clearing the politics of India. The bench directed the political parties to publish complete information regarding any criminal antecedents of any of their members on the party’s official website and social media handles while publishing the same in newspapers for informing the prospective voters, wherein the website must have a tab titled ‘Candidates with Criminal Antecedents.’

The bench outlined six directions to make the information available to every voter more transparent:

  1. All political parties must publish information regarding the criminal antecedents of their members on the official website of the party under a separate heading called ‘Candidates with Criminal Antecedents.’
  2. The Election Commission of India must make a mobile application that represents the aforementioned information from all possible political parties at the touch of a button for the prospective voter.
  3. The Election Commission of India conduct awareness campaigns for every voter on various platforms: print media, television advertisements, social media, pamphlets, etcetera to let the voter know about the electoral candidates from their respective locality.
  4. The Election Commission of India must have a separate cell to monitor the compliance of the different political parties with the aforementioned directions, where the said cell can inform the court of law about the said non-compliance by a particular political party.
  5. Within 48 hours of selecting a candidate into a political party, their criminal antecedents, if any, should be published by their respective political party via the aforementioned modalities.
  6. Upon the reception of a non-compliance report by the cell of the Election Commission of India about a particular political party, the court of law may issue a “Contempt of the Court’s Directions/ Orders’ to the said political party.

In the third case, the two-judge bench levied a Rs. 5 lakh rupees fine on two political parties: Communist Party of India (Marxist) and Nationalist Congress Party while levying Rs. 1 lakh rupees fine on six political factions: Bharatiya Janta Party, Indian National Congress, Janta Dal, Rashtriya Janata Dal (United), Communist Party of India and Lok Janshakti Party for violating the directions released by the Supreme Court of India in January-February 2020 during the Bihar Legislative Assembly elections in October-November 2020:

  1. The form filled by every contesting candidate with the Election Commission of India must elucidate all particulars as required in the form.
  2. If the said candidate has any pending criminal matters against it, then the same must be mentioned in capital letters in the aforementioned form.
  3. The candidate under point 2 is required to inform its respective political party about the pending criminal cases against it.
  4. The political party is obligated to put all such information about pending criminal matters of any of its members on the official website of the party.
  5. The political party and the said candidate must mention the said information in the widely circulated newspapers in the area of the candidate, including the channels of electronic circulation (ex: social media, etcetera).

The bench after listening to the contentions of the respondents held that the directions must be complied with under any circumstances, and the violation of the same is the liable responsibility of not only the candidate but also the political party it is affiliated to.

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