Brajesh Singh Vs Sunil Arora & Ors (2021): SC Imposes Fine On Eight Political Parties For Non-Compliance Of Its Directions

Date of Judgement:
10th August 2021

Coram:
Justice Rohinton Fali Nariman and Justice B. R. Gavai

Parties:
Petitioner: Brajesh Singh
Respondents: Sunil Arora & Ors.

Subject

The judgement deals with the non-compliance of the Supreme Court’s directions regarding the disclosure of the criminal records of the candidates.

Overview

• Persons with criminal records have been increasingly made candidates to State Elections by almost all the political parties. The reasons may vary from their dedication to the party, the popularity that they have earned within the party, or some personal influence therein which makes their removal almost impossible.
• However, one of the most important factors that enables such persons to stand in the elections is the provision provided under Section 8 of the Representation of People Act, 1951. This Section disqualifies persons from contesting elections if they are convicted of certain offences. However, it bars only those who are convicted for at least two for offences, apart from some serious offences.
• This gives a small loophole to these people as they continue to stand in elections on the pretention of being under trials and not convicts.
• Similarly, there is no way of letting the voters know about the history of the candidates’ criminal records. So, the Supreme Court, in Union of India v. Association for Democratic Reforms and Anr. (2002), gave the Election Commission of India (ECI) the power to call for such records in the form of an affidavit.
• As an aftermath, an amendment was made to the Representation of People Act that added Sections 33A and 33B. However, following several criticisms and petitions against the Sections, the Supreme Court, in People's Union for Civil Liberties (PUCL) v. Union of India and Anr. (2003), struck down Section 33B.
• In Public Interest Foundation & Ors v. Union of India & Anr (2019), the Supreme Court issued certain directions regarding the conduct of elections. Later, in Rambabu Singh Thakur v. Sunil Arora & Ors. (2020), some additional guidelines were issued.
• Accordingly, the ECI had issued an order directing all the political parties to reveal the reasons for the selection of candidates with criminal antecedents and other relevant information. It also prescribed timelines for the same, and stated that in case of non-compliance, the ECI may submit it to the Supreme Court.
• The announcement regarding the Bihar polls was made thereafter, and the parties had submitted their affidavits in this respect. These reports revealed that the persons with criminal antecedents shared a considerable percentage which witnessed a rise after results.
• It was contented by the petitioner that the political parties had disregarded the directions issued by the Supreme Court in February 2020.

Issues Involved

• Can courts issue directions on matters that do not have any foundation in the statutory provisions?
• Whether it is mandatory for political parties to adhere to the guidelines prescribed by the Supreme Court with regards to the conduct of elections?

Important Provisions

1. Section 8, Representation of People Act, 1951: This Section prohibits persons with criminal records from contesting the elections. However, it states that, apart from some grievous and serious offences, a person should be barred only if s/he has been convicted of an offence that is punishable with minimum two years of imprisonment.
2. Rambabu Singh Thakur v. Sunil Arora and Ors. (2020): The Supreme Court had issued the following important directions in its order dated 13. 02. 2020-

1. Contesting candidate should fill the form provided by the Election Commission that must contain all the required particulars.
2. It shall also state, in bold letters, about the criminal cases pending against the candidate.
3. If a candidate is contesting an election under a particular party, he/she has to inform the party about the criminal cases pending against him/her.
4. The political party concerned must put up on its website the aforesaid information pertaining to candidates having criminal antecedents.
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.

Judgement Analysis

• The Supreme Court had affirmed that the political parties have not followed the directions in its order dated 13. 02. 2020, and imposed a fine on the concerned eight parties for committing contempt of court.
• The Court also observed that the Communist Party of India (Marxist) and the Nationalist Congress Party have completely ignored its guidelines, and therefore, a fine of Rs. Five Lakhs each have been imposed.
• The other six parties, namely, Bharatiya Janata Party, Indian National Congress, Janta Dal, Rashtriya Janata Dal(United), Communist Party of India and Lok Janshakti Party were directed to pay Rs. One lakh as fine.
• With respect to the question on Courts’ power to issue directions in absence of any legal provision, the Court stated that the judiciary only has a guiding power in this respect, and further, it appealed to the law makers to make the necessary amendments to curb the involvement of persons with criminal records in the law-making procedures.
• Furthermore, in addition to the previous directions, the Court issued further guidelines:

1. Political parties are to publish information regarding criminal antecedents of candidates on their websites’ homepage, which will enable the voter to get notice of the information. It is necessary to have a caption on the homepage which states “candidates with criminal antecedents”.
2. The ECI must create a mobile application containing information published by candidates regarding their criminal antecedents.
3. The ECI should to carry out awareness campaigns to make voters aware about their right to know and the availability of information regarding criminal antecedents of all contesting candidates. This shall be done across various platforms, including social media, websites, TV ads, prime time debates, pamphlets, etc. A fund, for this purpose, must be created within four weeks into which fines for contempt of court may be directed to be paid.
4. The ECI shall also create a separate cell which will also monitor the required compliances so that this Court can be apprised promptly of non-compliance by any political party of the directions contained in this Court’s Orders.
5. The direction contained in paragraph 4.4 of the Order dated 13.02.2020 shall be modified and the details which are required to be published, shall be published within 48 hours of the selection of the candidate and not prior to two weeks before the first date of filing of nominations.
6. If a political party fails to submit such compliance report with the ECI, the ECI shall bring such non-compliance to the knowledge of this Court as being in contempt of this Court’s orders/directions.

Conclusion

Persons who are influenced by the political nuances of the country are often found to have some criminal history. However, this emerges as a major problem when they get the nod to contest in elections, and further disappointment arises when such candidates win the elections. It is important for voters to know about the candidates’ previous records, be it an achievement or crime. This would allow us to examine the merits and demerits of electing them. The same has been emphasized by the Supreme Court in its various orders. The present case is yet another addition to the plethora of guidelines of the Top Court. Despite the directions, it is the government authorities that work for its enforcement. The two-judge Bench’s decision to penalize parties in case of non-compliance with its directions is expected to make the authorities and political parties more responsible.

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