BY-PRAKHAR SINGH[1]
IN THE SUPREME COURT OF INDIA
| NAME OF THE CASE | Rambabu Singh Thakur vs. Sunil Arora & others |
| CITATION | Contempt Petition (c) No. 2192 of 2018 |
| DATE OF THE JUDGEMENT | 13 February, 2020 |
| APPELANT | Rambabu Singh Thakur |
| RESPONDANT | Sunil Arora & Ors. |
| BENCH/JUDGE | Rohinton Fali Nariman, S. Ravindra Bhat, jj |
| STATUTES/CONSTITUTION INVOLVED | Constitution of India |
| IMPORTANT SECTIONS/ARTICLES | Constitution of India, Article 129 and 142 |
ABSTRACT
The Supreme Court of India received a contempt petition in the current case, which draws attention to issues with the “criminalization of politics” in India. Before moving on, it’s important to understand the concept of “criminalization of politics,” which describes the act of someone with a criminal history seeking to enter into politics by running for office and winning the election. By obtaining tickets and winning elections with the help of politicians, criminals get enter into politics.
The Supreme Court of India stated in its final order that it would be mandatory for all political parties running in the central and state elections to post detailed information about individuals with pending criminal cases on their websites (including the nature of the offences, case type, and any other relevant information). The person who was chosen as candidate, along with the explanations for their selection, also explained why other people without a criminal history could not have been chosen.
These details must be published within 48 hours of the candidate’s selection or at least two weeks prior to the opening date for nominations, whichever comes first. Within 72 hours of choosing the said candidate, the political party in question must submit to the Election Commission a report of compliance with these instructions.
INTRODUCTION
In this case, a contempt petition is brought up, and contempt petitions are taken into consideration on both a civil and criminal level. “Civil contempt has been defined under Section 2(b) of contempt of court act, 1971 as wilfully disobedience to any judgement, decree, direction, order, writ or other process of a court or wilfully breach of an orders given by the court”.
“Whereas the criminal contempt is defined under Section 2(c) of contempt of court act, 1971 as the publication whether by words, spoken or written or by visible representation or by signs of any matter or the doing of any other act what so ever which lowers the authority of any court or try to interfere any judicial proceedings.”
In this case, the “criminalization of politics” is the primary contributing factor to the case. Which means that the participation of criminals in politics that person with criminal backgrounds contest the election and get selected as a member of parliament or state legislature. The idea of criminalization of politics is growing day by day and issues in the political field, and as a result, the Supreme Court of India issued several guidelines under Articles 142 and 129 of the constitution to stop the involvement of politicians with criminal records in elections because such criminal candidates’ benefits could be harmful to the public interest.
The Supreme Court has a responsibility to favour candidates with clean backgrounds over those candidates who have criminal records. The current case raises concerns about how our Supreme Court has handled with these matters.
FACTS OF THE CASE
The current case is associated with the idea that shows how political activity is criminalised in India. “Criminalization of politics refers to the person having criminal records in pasts wants to enter into the politics.” It is harmful for the public interest because criminals enter into politics with the help of politicians, that gives political parties more benefits at large. The criminal histories of the selected candidates are not made public on the websites of the political parties.
This case focuses on disregarding the directions of the Constitution bench of the Supreme Court of India in case of Public Interest Foundation and ors. Vs. Union of India[2], which is also known as the “Electoral Disqualification Case,” wherein two petitions were filled by BJP leader Ashwani Upadhyay and an NGO-Public Interest Foundation.
Following counsel’s testimony and a review of the records, it appears that the prevalence of criminals in politics has alarmingly increased over the course of the last four general elections. In 2004, 24% of lawmakers had criminal proceedings outstanding against them in 2009, that number increased to 30% in 2014, it increased to 34% and in 2019, it reached as high as 43% of lawmakers had criminal cases pending against them..
The purpose of filing this case was to request guidance from the Indian Supreme Court about the ban on criminals from contesting the election and being elected as Members of Parliament.
ISSUE RAISED BEFORE THE COURT
- Why political parties offer no explanation as to why candidates with pending criminal cases are selected as candidates in the first place ?
- Whether the Supreme court of India can restrict the participation of candidates with pending criminal cases to participate in the elections ?
- Whether the Supreme court by making additional laws can disqualify the membership of Parliament exceeding Article 102(a) to Article 102(e) ?
ARGUMENTS FROM THE APPELANT SIDE
- Learned counsel for the petitioner submitted that the right to contest the elections is a statutory right but not a fundamental right but it has to be followed by the pursuance of the constitutional principles in order to maintain complete governance and unprejudiced politics.
- Learned counsel for the petitioner also stated that not to give the chance to the person to make law who has already break the law earlier, he should not to be allowed to participate in elections and not the part of legislature.
- It is also expressed that the persons having criminal record should not be prioritized over the candidates who have clean background in order to keep public interest at the first place.
- Learned counsel for the petitioner stated that the constitutional principles are set for the benefit of public at large. Giving tickets to the candidates who have criminal records would allow the criminals in political world.
ARGUMENTS FROM THE RESPONDENT SIDE
- Learned counsel representing the respondent stated that just because of criminal records on political candidates cannot exclude them to participate in elections.
- Learned counsel representing the respondent express that on the basis of principle of separation of powers, the respondent satisfied the basic structure was enshrine under the constitution.
- It is also stated that under Article 142 there is no scope of adding the words by courts in the already existing laws.
RELATED PROVISIONS
- Constitution of India
- Article 129:- Supreme Court to be a court of record. The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.[3]
- Article 142:- Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc.
- Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe
- Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.[4]
JUDGEMENT
The Hon’ble court noted that “after taking into the consideration the school of thought of colourable legislation, the principle of separation of powers and examine carefully the defect of the court to issue official documents of writ of mandamus to the election commissioner regarding the extension of law of disqualified for the explanation of a candidate having criminal records, the Hon’ble court came to the conclusion that facility for constructing the laws cannot be extended in the judiciary”. According to the Article 129 and 142 of the constitution, the court has the authority to issue directions or orders.
The court was aware of the growing criminalization of politics in India as well as the lack of awareness of this criminalization among the general public. In order to close this information gap Political parties at the national and state election levels shall be required to upload on their websites detailed information regarding individuals with pending criminal histories, including the nature of the offences, case variety, etc. who have been selected as candidates, along with the reasons for selection. Political parties shall also be required to explain why other individuals without criminal antecedents could not be selected as candidates.
Selection criteria must take into account a candidate’s qualifications, accomplishments, and deservingness rather than only their electoral “winability” at the polls. “The detailed information concerning the criminal antecedents of the candidates shall be revealed within native further as one local vernacular newspaper and national newspaper and on the official social media platforms of the political party as well as twitter, facebook, etc”.
“These details shall be published in either of the two-time frames, which ever is earlier: within 48 hours of the selection of the candidate or not less than two weeks before the first date of filing for nomination.” “The political party concerned shall then submit a report of compliance with the election commission by following all the directions, and such submission has to be done within 72 hours of the selection of the said candidate.” “If the political party fails to submit such a compliance report to the election commission shall put forward non-compliance by the political party concerned to the notice of the Supreme Court of India by way of contempt of this court orders or directions.”
CONCLUSION
According to me, the voters would be able to choose the best representative for them with the help of the extensive promotional materials that the competing candidates were using across a variety of platforms, including newspapers and social media. The political party has a responsibility to provide tickets to such candidates with clean histories not any single criminal records to them, and if they fail to follow this direction, they will be held accountable.
It is wise to be aware that someone with a criminal background in cases involving rape, murder, or other crimes cannot be given a chance to participate in the justice system because their criminal records have already indicated that they will be punished rather than given the opportunity to engage in additional criminal activity.
The Supreme Court has determined that criminalization of politics not only undermines the foundation of our democratic system but also limits the potential for innocent candidates to get opportunity over criminal candidates.
[1] Author is 3rd semester student of Amity Law School, Lucknow.
[2] INDIAN KANOON, https://indiankanoon.org/doc/18199059/ (last visited Jun. 30, 2022).
[3] INDIA CONST. art. 129.
[4] INDIA CONST. art. 142.
