On Thursday, the Supreme Court reserved its judgement on a batch of petitions challenging the appointment process of election commissioners, the officers who comprise the Election Commission – the body responsible for conducting national and state elections.

Scroll.in spoke to Jagdeep Chhokar, co-founder of the non-governmental organisation Association for Democratic Reforms and one of the petitioners in the case, about why he filed the petition and what he hopes to achieve.

Edited excerpts from the interview below.

What are the problems in how the election commissioners are appointed today? Does the process have any checks and balances?

According to Article 324(2) of the Constitution, they are appointed by the president subject to any law made by the parliament in this regard.

Then there are other articles in the Constitution that say that the president will work under the advice and guidance of the cabinet. So effectively, what it means is that the cabinet appoints the election commissioners.

And there are no checks and balances. The prime minister sends a recommendation to the president on behalf of the cabinet, and then the president appoints. The Union government has the entire discretion.

The other issue is that when the chief election commissioner’s term gets over, there is always a mystery about who will be made the chief election commissioner.

In general, so far, it has always by and large happened that the senior of the two election commissioners gets appointed as the chief election commissioner. But there is always this speculation about who will be made the chief election commissioner.

The other problem is that while the chief election commissioner cannot be removed from his position unless there is a process of impeachment like that of a Supreme Court judge, the other two election commissioners can be removed from their positions merely on the recommendation of the chief election commissioner.

So that is another problem. Because if the two election commissioners have this thing in their mind that the chief election commissioner can recommend my removal, then perhaps they would find it difficult to take a position against the chief election commissioner.

What’s the relief that you want from the court in this particular case?

In this case, we want that the selection of the election commissioner should be done by a collegium consisting of the prime minister, the leader of the Opposition and the chief justice of India.

The second is that election commissioners should be given the same constitutional protection as the chief election commissioner.

And the third is that it should be laid down, specifically, that the senior-most election commissioner will become the chief election commissioner.

These are the things that we have proposed. There would be many more that we will learn over time.

Have there been any controversies in the past regarding the appointment of election commissioners?

There is a checkered history [regarding election commissioners]. Earlier, the election commission used to be a single-member commission. There used to be only one chief election commissioner. Then somewhere down the line, during the time TN Seshan was the chief election commissioner, he was doing a lot of things that the government did not approve of. So to put a check on his power, so to say, the government [in 1989], through the President, created the post of two more election commissioners.

Now the Election Commission was a three-member commission and the decision will be made by the majority, hoping that these two will check the powers [of the third commissioner].

Then, about three or four years ago, there was one election commissioner who dissented from a decision by the other two. And this happened on some issues which had something to do with allegations of violation of the Model Code of Conduct by the prime minister and the home minister.

So then there were reports that this particular election commissioner, his past was being searched with a fine toothcomb. And there were apparently some kind of raids or intimidation of his wife and his son and so on. So this went on for a while, and then it was reported that this gentleman has been appointed as a vice president in a multilateral body. So he resigned from the election commissionership.

Usually, who are the people who are appointed election commissioners?

All retired bureaucrats, by and large, Indian Administrative Service officers. There are very few exceptions, but they are all also bureaucrats from other central services.

Are there any appointments that raise a suspicion about them being close to the Union government?

A lot of them. I would not like to name anyone. But this is all circumstantial evidence. There could be people from a particular state cadre, who might have a preponderance [towards the government]. And then somebody who has worked with some senior-level politician in the past very closely.

These kinds of things often happen.

One of the reasons why these things are brought up is because how these appointments are made is not known to anybody. So out of the blue, you have an announcement that so and so has been made election commissioner.

For example, this appointment that was made a few days ago – the post had been vacant for something like six months. And the hearing in the court started and an application was filed that there is a vacancy that should not be filled until the case is decided.

And the very next day, a serving Indian Administrative Service officer who was the secretary to the government of India took voluntary retirement from service. He was given voluntary retirement, and the next day he was appointed as an election commissioner.

It could be a sheer coincidence, but when things happen, sometimes it defies that it is a coincidence. So that creates doubts. Actually, a lot of it is a lack of transparency.

If there was a process of selecting election commissioners that was transparent, such doubts will not be raised.

What instances have been there recently where there have been allegations of the election commission acting in a way that distorts free elections?

So there are mysterious things that happen and when not reasonable explanations are coming forth, then one wonders what is going on. Electronic voting machines are found in strange places. There are constituencies where a large number of voters are not found on their voters’ list.

Some people do insinuate that people of particular categories are found to be missing from the electoral rolls. The Election Commission has to answer for it.

Then, there are violations of the Model Code of Conduct. Somebody makes a speech that can be considered to be seeking votes on religious grounds. And that is ignored. Whereas another member of another party says something similar in a slightly different context and that person is given a notice.

So similar kinds of infractions by people of different parties being treated seemingly differently.

Take, for example, on November 7, the Finance Ministry issued a notification that in a year when there is an Assembly election, an additional window of 15 days for the sale of electoral bonds will be available.

But elections are still happening in Himachal Pradesh and Gujarat, and the Model Code of Conduct is in force. And the Model Code of Conduct says that the government cannot introduce any new policy which may have a bearing on the result of the election without taking permission from the Election Commission of India.

So this announcement is a violation of the Model Code of Conduct. And people have written to the Election Commission and there has been no response.

There is also the thing about the announcement of dates. For example, even this time, for Gujarat and Himachal Pradesh elections, the dates when the result will be declared were announced. And dates of polling for Himachal Pradesh were announced, but the dates of polling for Gujarat were not announced.

So some people have felt that this is not the right thing to do and perhaps leeway was being given to a particular political party to do some announcements before the dates of polling are announced. So these kinds of things keep happening, and they create misgivings about the impartial role that the Election Commission should be playing.

Sometimes in a small state, elections are held in seven phases and [other times], in a similar sized state, it is held in one phase. There are rumors that this is being done so that particular people can campaign in every phase, and so on.

A similar process exists for the appointment of the Central Bureau of Investigation director. But still, there have been allegations of unfairness about these appointments also. So will this panel help with bringing fairness to the appointment of election commissioners or will it only be slightly better than the current position?

It will be significantly better. If you recall, in the appointment of the CBI director a year ago, the then chief justice did not agree with what was being proposed and then names were changed.

See, the process is finally managed by three or four people. But if each of them is true to their jobs, then they will do what they think is the best for the country as a whole.

And then if one of them finds that the other two are in collusion, then it would be that person’s responsibility to bring it out in the public domain.

Allegations also exist for state election commissions. For instance, like in West Bengal, there were allegations that the Panchayat polls were influenced in favor of the state’s ruling party. What do you think about the reforms in state election commissions?

State election commissions are a totally different ballgame.

Because there is only one state election commissioner in most places, and the appointment is done by the governor at the recommendation of the state government. And in most places, these are retired officers who are not direct recruits to the Indian Administrative Service but who have been departmentally promoted to the Indian Administrative Services.

So they are sort of supposed to be more malleable than the direct entry Indian Administrative Service officers. And are perhaps amenable to greater pressure than the central Election Commission.

So that is a very different activity. Our petition does not cover the state Election Commissions.

The article was originally published on Scroll.in.

Promises fly thick and fast during election time. Political parties seek to outdo one another in getting the attention of voters. In the heat of the moment, mostly anything goes and voters are none the wiser about how some of those promises will be fulfilled — for instance, where will the money come for that scheme or subsidy.

Can this runaway situation be reined in? Is it possible to make parties and political leaders more accountable even as election promises are being drummed up rather than later when they have failed to deliver on fanciful ideas? Does an answer to the pernicious culture of freebies lie in stricter rules at election time?

The Election Commission of India has proposed that parties spell out their promises in a form that will go along with their manifestoes. The financial implications of every promise, the commission contends, will then be known so that there is a level playing field during elections. No one will be able to promise the moon and get away with it, as often happens now.

The idea was floated by the commission on October 4 in a letter to parties and laid open to discussion, but it has met with protests that the commission is exceeding its mandate, which is to hold free and fair elections, and instead getting into how governments run.

If the commission’s proposal goes through, parties would have to spell out before an election what a promise is going to cost and how this expense will be met. They will have to state whether it will be through rationalizing expenditure, non-tax revenue, additional taxes or loans. To this end, the commission has further suggested that chief secretaries of states provide the budget estimate (BE) and revised estimate (RE) to show what funds are available.

Knowledgeable and impartial activists who have for long been demanding transparency in the running of political parties are baffled by the commission’s proposal. They don’t think it can be seriously implemented. In fact, they fear that such rules will curtail democracy rather than enrich it.

Jagdeep Chhokar of the Association for Democratic Reforms (ADR), which has been campaigning for cleaner elections and accountable parties, says: “I see this with scepticism. Many things in the commission’s letter are less than clear. The entire scheme aseems to be unimplementable and an exercise in showing a lot is being done. My apprehension is that on the ground nothing may happen.”

Chhokar points out the commission had earlier shied away from taking up the issue of freebies, saying it would be an “overreach of powers.” It told the Supreme Court on March 2 that the giving of freebies was a matter of policy, to be decided by the party concerned, and that it was for voters to judge whether the freebies were economically viable or not.

Chhokar quotes the commission as saying in court: “… offering any mass distribution of freebies either before or after the election” was a “policy decision of the party concerned and whether such policies are financially liable or it has an adverse effect on the economic health of the state, is a question that has to be considered and decided by the voters of the state.”

The commission said it could not regulate “such policies” which “may be taken by the winning party when they form the government. Such an action without enabling provisions in the law will be an overreach of powers.”

Chhokar wonders what has changed between March and October for the commission to now say that it “cannot overlook the undesirable impact of some of the promises/offers on the conduct of free and fair elections in maintaining a level playing field for all parties and candidates.”

Chhokar argues the electoral bonds would be a better issue for the commission to take up if what it is concerned about is providing a level playing field. At present, parties don’t need to disclose from whom they have received political donations by way of bonds, it is only the amounts that are known. The matter is in court.

“Now, the promises made by political parties in their manifestoes are of great concern, but, according to the Election Commission, something like electoral bonds does not distort the political field at all. There are many other specifics in this letter I can point to. But, let me add, between March 2 and October 4 there was a significant event. On July 16, the prime minister talked about what is called the ‘revdi culture’ of the country. I don’t know if there is any correlation in these three days,” elaborates Chhokar.

“But for the Election Commission to change its view from March 2 to October 4 without giving any justification for this change is surprising, to say the least, and trying to provide a level playing field only on the basis of what has been said in election manifestoes and not something as glaring as the electoral bonds raises weighty issues. Weighty is the Supreme Court’s word, not mine,” he says.

The issue of unsustainable freebies underlines the much larger question of distinguishing between party and government. The responsibility for executive actions devolves on the government, which when it comes into office has wide responsibilities to those who voted for it or didn’t.

“So, the government that is formed as a result of the elections, is not the party which contested the election and this distinction has got blurred very, very badly. Everyone seems to assume the government is the party and the party is the government. There should be a difference between party and government,” explains Chhokar.

Promises also aren’t only made in manifestoes, Chhokar points out. They are made in speeches during election time and before election time. He refers to a judgment mentioned in the Election Commission’s October 4 letter — S. SubramaniamBalaji versus the state of Tamil Nadu and others on July 5, 2013. In this, the Supreme Court says, strictly speaking, the Election Commission will not have the authority to regulate any act which is done before the announcement of the date of elections.

“This is a fundamental mistake we seem to make — that elections happen only from the date of the announcement of the election till the date of counting of votes. Election is not a process confined to those two to three weeks. Election is a process that goes on 24/7 around the year,” says Chhokar.

“Aren’t the advertisements one sees in national newspapers by governments in one state or the other in the country related to elections?” he asks. “Elections may be two years away but every action that a political party takes has an impact on the election. To assume that the Election Commission should act only after the announcement of the date, is a fallacy.”

Chhokar says holding of political parties accountable is long overdue. But it can’t be restricted to the promises they make at election time. Political parties should be made accountable under the law, which they aren’t at present.

“I have specific instances where so-called leading political parties have got together to amend the law so that the prosecution of parties is avoided. They have come on record saying otherwise there would have been no choice but to prosecute parties. Why shouldn’t political parties be prosecuted if they violate the law? So political parties must be held accountable for all their actions,” he says.

Chhokar’s big fear is that there is an attempt to reduce the electoral exercise to a mechanical process. He worries about talk of reducing the expenditure on elections. So also the Election Commission’s suggestion of BE and RE figures within which promises can be made. “What we are being told is that within this limited area you can do whatever you like and then there will be elections. That is not how a representative democracy works. People choose their representatives and political parties have to represent them,” he says. “Somebody has found it very useful to use this term ‘revdi culture’. And, therefore, the whole country is getting behind it. To me there appears to be a systematic attempt to undermine the entire electoral process,” he cautions.

The article was originally published on Civil Society Online.

The announcement of the schedule for elections for five state assemblies was a much anticipated event. What attracted attention of some observers was the inclusion of requirements for disclosure of criminal antecedents by candidate and political parties who sponsor them. A tweet by someone with over 8,500 followers is representative:

“Candidates with criminal antecedents will have to publish their crime records in newspapers etc. 3 times before the poll: CEC

Also, political parties will have to give a list of candidates with criminal antecedents in home page of their websites. Also, reasons of their selection.”

This appears at pages 21 to 24 of the 92-page press note issued by the Election Commission of India (ECI) and is numbered as items 21 and 22. As the press note correctly mentions, this is in compliance of three judgements/orders of the Supreme Court on February 16, 2018, September 25, 2018 and August 10, 2021. These cases were filed in 2011, 2015 and 2018.

The origins

This long and continuing saga started with the filing of a PIL by the Association for Democratic Reforms (ADR) in the Delhi high court in 1999, requesting that candidates contesting elections to parliament and state assemblies who have criminal cases pending against them be required to disclose these while filing their nomination papers. The high court, in a judgement given on November 2, 2000, accepted the request and ordered that all candidates contesting MP and MLA elections will be required to file a sworn affidavit as a necessary part of their nomination papers, declaring criminal cases pending against them.

The high court’s decision seemed unacceptable to the government of the day, so the Union of India filed a Special Leave Petition (SLP) against the high court’s judgment in the Supreme Court. Several political parties became interveners to the case in support the government, claiming that it was a legislative matter and the judiciary has no jurisdiction to interfere in the matter. The Supreme Court in its judgment delivered on May 2, 2002 upheld the high court judgment, saying:

“Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest.”

Even this was not acceptable to the political establishment. An all-party meeting was held in which it was decided that the high court and Supreme Court judgments will not be allowed to be implemented and the Representation of the People Act (RP Act) will be amended, in that very session of parliament, for this purpose. A draft Bill for this was prepared but could not be introduced in the parliament because of disruptions and then an adjournment due to what came to be known as the petrol pump scam. The cabinet then decided to promulgate an ordinance to achieve the same purpose. The ordinance was sent to the president for signature, but the president returned the ordinance without signing it. The cabinet then sent it to the president again, exactly in the same form, and following the established convention, the president had to sign it. The RP Act, thus, stood amended and the Supreme Court judgment was rendered ineffective.

Three PILs were filed in the Supreme Court challenging the constitutional validity of the amendment of the RP Act. The Supreme Court, in a landmark judgment delivered on March 13, 2003, declared that the amendment of the RP Act “does not pass the test of constitutionality” and “has resulted in the violation of guarantee under Article 19(1)(a)”. Article 19(1)(a) is the Fundamental Right “to freedom of speech and expression”.

This is how criminal antecedents of candidates contesting elections to parliament and state assemblies came to be known to voters.

How it evolved further

The next stage in this saga began in 2011, when a civil society organisation called Public Interest Foundation filed another PIL in the Supreme Court seeking decriminalisation of politics and requesting the Supreme Court to “(a) lay down appropriate guidelines/ framework to ensure that those charged with serious criminal offences are unable to enter the political arena by contesting elections; and (b) lay down a time frame of six months during which trial of such persons are concluded in a time bound manner;” among some other requests.

The Supreme Court issued an order on March 10, 2014, directing that cases against MPs and MLAs be tried “as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s)”.

In the meanwhile, a PIL filed in 2005 came to be decided on August 27, 2014. The case was Manoj Narula vs Union Of India. It was filed “assailing the appointment of some of the original respondents as Ministers to the Council of Ministers of Union of India despite their involvement in serious and heinous crimes”. Originally, the PIL was heard by a three-judge bench headed by the then chief justice, and on March 24, 2006, it was decided that “Having regard to the magnitude of the problem and its vital importance, it is but proper that the petition is heard by a Bench of five Judges.”

Thus, it is the five-judge bench that gave the judgment in August 2014. The majority judgment of three judges left it “to the wisdom of the Prime Minister”, while saying that the prime minister “can always be legitimately expected (to) consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council of Ministers”, and also adding that it “is the constitutional expectation from the Prime Minister”.

There were two other separate but concurring judgments in which one of the judges considered it “…the prophetic duty of this Court to remind the key duty holders about their role in working the Constitution,” and the advice given was that “the Prime Minister and the Chief Minister of the State, …will be well advised to consider avoiding any person in the Council of Ministers, against whom charges have been framed by a criminal court in respect of offences involving moral turpitude and also offences specifically referred to in Chapter III of The Representation of the People Act, 1951”.

Now, to the current situation

Then came an important judgment on September 25, 2018, again in a Public Interest Foundation case. There are two important features of this judgment. One, despite overwhelming evidence, the court shied away from saying that candidates who had criminal cases pending against them for some specified heinous offences be barred from contesting elections, subject to some safeguards, and two, this was the judgment that put the system on the path of candidates and political parties advertising pending criminal cases. Both these issues have been commented on in detail in The Wire on September 25, 2018, and on October 12, 2018.

To reiterate, it was pointed out, especially in the piece on October 12, 2018, that (a) the directions requiring candidates and parties putting out advertisements in newspaper disclosing pending criminal case were not likely to be of much help, and (b) the only way to reduce, if not eliminate, criminals getting into legislatures was to bar such people from contesting elections, which the Court declined to do citing jurisdictional issues. In the process it ignored its own ruling of 2002 wherein it said:

“Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to sub-serve public interest.”

While stopping short of doing what actually requires to be done, the judgment seems to have a lot faith in its own wishes and desires. Following are just two samples of its expectations:

“117. These directions ought to be implemented in true spirit and right earnestness in a bid to strengthen the democratic set-up. There may be certain gaps or lacunae in a law or legislative enactment which can definitely be addressed by the legislature if it is backed by the proper intent, strong resolve and determined will of right-thinking minds to ameliorate the situation. It must also be borne in mind that the law cannot always be found fault with for the lack of its stringent implementation by the concerned authorities. Therefore, it is the solemn responsibility of all concerned to enforce the law as well as the directions laid down by this Court from time to time in order to infuse the culture of purity in politics and in democracy and foster and nurture an informed citizenry, for ultimately it is the citizenry which decides the fate and course of politics in a nation and thereby ensures that ―”we shall be governed no better than we deserve”, and thus, complete information about the criminal antecedents of the candidates forms the bedrock of wise decision-making and informed choice by the citizenry. Be it clearly stated that informed choice is the cornerstone to have a pure and strong democracy” (Emphases added).

“118. We have issued the aforesaid directions with immense anguish, for the Election Commission cannot deny a candidate to contest on the symbol of a party. A time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation. It is true that false cases are foisted on prospective candidates, but the same can be addressed by the Parliament through appropriate legislation. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism. The country feels agonized when money and muscle power become the supreme power. Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay” (Emphases added).

After expressing all its hopes and aspirations, the judgement ends on a pious note:

“We are sure, the law-making wing of the democracy of this country will take it upon itself to cure the malignancy. We say so as such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it; the sooner the better, before it becomes fatal to democracy. Thus, we part.”

Reality unfolds

The denouement of all the pious hopes started on November 27, 2018, when a contempt petition was filed by one Rambabu Singh Thakur against the then chief election commissioner and several others raising “grave issues regarding the criminalisation of politics in India” and bringing to the attention of the court “a disregard of the directions of a Constitution Bench of this Court in” the judgment on September 25, 2018.

The judgment in this case was announced on February 13, 2020, wherein the court noted that “the political parties offer no explanation as to why candidates with pending criminal cases are selected as candidates in the first place” and issued detailed directions on the way (a) political parties, giving tickets to candidates with criminal cases pending against them, should give reasons for giving tickets to such persons; (b) how parties should publish these explanations in the mass media, including social media; and most importantly, (c) ) “the reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls.”

Where are we now?

It fell to a public-spirited advocate practising in Delhi but originally hailing from Nalanda district of Bihar to take this activity forward. Brajesh Singh filed a contempt petition on November 6, 2020, also against the then chief election commissioner and several others, bringing “to the notice of this Court the flouting of its directions given vide Order dated 13.02.2020”. The contempt petition was based on state assembly elections held in October/November 2020. The judgement of this petition came on August 10, 2021. It is quite amazing to see that the court took another significant step forward but refrained from dealing with the issue properly, for which there is only one way, as we shall see a little later.

First the step forward. The court held eight political parties guilty of contempt of court and fined six of those parties Rs 1 lakh each, and the remaining two Rs 5 lakh each. The cause of the contempt was that the parties had given (a) tickets to persons who had criminal cases pending against them, and (b) flimsy and non-convincing reasons for giving tickets to such persons. Parties fined Rs 1 lakh each were Janata Dal United, Rashtriya Janta Dal, Lok Janshakti Party, Indian National Congress, Bharatiya Janata Party, and the Communist Party of India. Parties fined Rs 5 lakh each were the Communist Party of India (Marxist) and the Nationalist Congress Party.

While fining political parties must be commended, it is worth reflecting on whether the amounts of money levied as fine would (a) have any adverse financial impact on the parties, and (b) the amounts will work as deterrents enough to encourage parties not to indulge in such blatant defiance of the orders of the highest court in the land.

Practicability

While we do commend the court for the act of levying fines on political parties, the practicability of the implementation of the directions of the court, and more importantly, monitoring the implementation, must be given very serious thought. The judgment itself refers to it, almost in passing, when it says that “Arguments have been advanced before us with regard to the practicability of implementation of the direction contained in paragraph 4.4” (Para 30).

Some of the factors that make satisfactory monitoring, even on the part of the Election Commission, extremely difficult, if not impossible, are also described in the piece published in The Wire on October 12, 2018 which has been referred to earlier.

Avoiding the obvious

The following excerpts from the judgment deserve careful reading:

“The nation continues to wait, and is losing patience. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government” (Para 17).

“The Constitution Bench therefore observes that though criminalisation in politics is a bitter manifest truth, which is a termite in the citadel of democracy, the Court cannot make law.” (Para 50).

“In paragraph 107, the Constitution Bench recommends that Parliament bring out a strong law whereby it is mandatory for the political parties to revoke membership of persons against whom charges are framed in heinous and grievous offences and not to set-up such persons in elections.” (Para 51).

“No one can deny that the menace of criminalisation in the Indian political system is growing day by day. Also, no one can deny that for maintaining purity of political system, persons with criminal antecedents and who are involved in criminalisation of political system should not be permitted to be the law-makers” (Para 71).

“This Court, time and again, has appealed to the law-makers of the Country to rise to the occasion and take steps for bringing out necessary amendments so that the involvement of persons with criminal antecedents in polity is prohibited. All these appeals have fallen on the deaf ears. The political parties refuse to wake up from deep slumber” (Para 72).

The reader would recall that very similar sentiments were expressed by the court in its judgment of September 25, 2018, mentioned above, including some pious hopes.

The above statements need to be read with or contrasted with the following:

“… The Constitution Bench after elaborately considering the said issue, held that issuing such a direction would amount to entering into the legislative arena and as such, such a direction could not be issued. In our view, in the teeth of the observations made by the Constitution Bench in paragraph 96, though some suggestions made by Shri Viswanathan are laudable, it will not be possible for us to accede to them” (Para 53).

“The only question is, whether this Court can do so by issuing directions which do not have foundation in the statutory provisions” (Para 71).

“However, in view of the constitutional scheme of separation of powers, though we desire that something urgently requires to be done in the matter, our hands are tied and we cannot transgress into the area reserved for the legislative arm of the State. We can only appeal to the conscience of the law-makers and hope that they will wake up soon and carry out a major surgery for weeding out the malignancy of criminalisation in politics” (Para 72).

At the risk of crossing a Lakshman Rekha, it must be said that it is beyond comprehension that a court which can be so sagacious and perceptive as to write that “The political parties refuse to wake up from deep slumber”, is not able to discern that it, itself, seems to be in deep slumber by repeatedly ignoring a settled principle in law “filling in the gap or vacuum in legislation” which has been very well elaborated in a judgment of this very court, of May 2, 2002.

The last word

Finally, to come back to the announcement of the Election Commission of India that we started with. All that the announcement does is to follow exactly what several judgments of the Supreme Court have ordered. It must, however, be noted that all the judgments referred to (a) do not seem to be on a firm footing as far as implementation is concerned; (b) will be very difficult, if not impossible, to implement; and (c) in the light of (a) and (b), do not, and cannot, achieve the objective of at least reducing, if not completely eliminating the adverse impact of criminality on the political and electoral systems in the country.

राजनीति के अपराधीकरण की पृष्ठभूमि को जानने के लिए बैलेट पेपर के जमाने में जाना होगा. तब बहुत से उम्मीदवार मतदाताओं को डराने-धमकाने के लिए बाहुबलियों का इस्तेमाल करते थे. बाहुबली लोगों को डराने-धमकाने के साथ ही मतदान केंद्र पर लोगों से जबरन किसी खास उम्मीदवार के पक्ष में मत भी डलवाया करते थे. पोलिंग बूथ के स्टाफ को भी ये डराकर रखते थे.

In September 2018, a five-judge Constitution bench that included the Chief Justice of India, pronounced an important verdict on criminals in politics. The Supreme Court was hearing a batch of petitions seeking disqualification of candidates who had pending criminal cases. One of these petitions was a PIL filed by the Public Interest Foundation of India (PIF) in 2011. The director of the PIF had written these words even before the results of the 2014 elections were announced. “The next government will face the challenge of curbing corruption… It must be remembered that the government will be on probation as its performance would be critically tracked by a very vibrant civil society and media.”

That Director was later handpicked to become the principal secretary to the new Prime Minister, Narendra Modi, in 2014. The PIF petition had asked for the removal of criminals from the ballot. This was the petition that was disposed of by the Supreme Court in 2018. But its verdict unfortunately stopped short of disqualifying criminally tainted candidates.

The Central government, which was a defendant in the suit, firmly opposed the petition, saying that legislating a new disqualification was not in the domain of the court. It was for Parliament to pass such a law. Besides, the Centre used the old argument, that a person is innocent until proven guilty and cannot be deprived of the right to vote, or the right to contest elections merely based on criminal charges. The court expressed helplessness, and not for the first time. But the court did ask political parties and candidates to widely publicise their criminal records, “at least three times in newspapers and TV channels” after filing nomination papers.

Two years later, the Supreme Court was again hearing a contempt petition, that its 2018 order was being completely ignored by political parties. This time, even the Election Commission joined the PIL and asked the court to make political parties strictly liable for the disclosure of criminal cases of their candidates. The EC is, of course, itself toothless in disqualifying tainted candidates.

This time too, the apex court passed a harsh order, asking parties and candidates to widely publicise criminal histories in local, as well as national newspapers and on social media, including Twitter and Facebook. The published material needs to list details of the offence, charges framed, etc. And most importantly, the political party has to explain why the candidate was chosen despite the criminal taint. Merely saying that the candidate is winnable is not enough. And all this has to be done within 48 hours after the last date for withdrawal of nominations.
The Bihar assembly election is the first time this 2020 order of the Supreme Court is being tested. In the first phase, where 71 of 243 MLAs will be selected, 1,066 are in the fray. Of these, 31 have criminal cases. If you look at the data party-wise, 73 per cent of the candidates from the RJD, 72 per cent from the BJP, 59 per cent from the the LJP, 57 per cent from the Congress, 43 per cent from the JDU and 31 per cent from the BSP have criminal cases, among the major parties. It looks like the percentages of tainted candidates keeps going up in every successive election, just like the cut-off marks for admissions to Delhi University colleges.

Prima facie, the observance of the Supreme Court order is more in the breach. The EC has specified a format (Form 7) for declaring a candidate’s criminal record: the form must list details why the party chose a criminal candidate. Most parties and candidates have written that chances of winning are higher. On this, the parties might actually be totally truthful. But this shows the impunity with which the Supreme Court and the
EC’s orders are being flouted. There does not seem to be even an iota of effort to give tickets to candidates with a “clean” resume.
Can voters punish the tainted candidates? Unfortunately, this is not so easy. In the first phase of Bihar polls, 61 of 71 constituencies are “red alert” ones, meaning each of these has at least three or more candidates who have criminal records. So, the choice for voters is criminal versus criminal. It has been seen by researchers that criminally tainted candidates win, despite their image, perhaps partly because of their ability to raise resources to fund their own elections. No wonder the parties are quoting “winnability” as the reason in Form 7, to justify their choice of candidate. In this current first phase, more than one-third of all candidates are millionaires. Among the major parties, nearly 80 per cent are crorepatis. Since moneyed “bahubalis” have a higher chance of winning, the ratio of tainted legislators is almost double that among the candidates.
This trend of criminality among lawmakers is relentlessly going up. The share of members of Parliament who have criminal cases against them, has gone up from 24 per cent in 2004, to 30 per cent in 2009, 34 per cent in 2014 and is now at a whopping 43 per cent, as of 2019. These cases are not only about offences like loitering, breaking a curfew or defamation, but even serious cases like rape, murder, theft, kidnapping, assault and extortion. If you consider only serious criminal charges such as these, then 29 per cent of the current members of Parliament carry them, and this proportion is the highest in the past 16 years. Among the elected representatives, the proportion of crorepatis has gone up from 30 per cent in 2004 to 88 per cent in 2019.
The Supreme Court, through its 2020 order, thought that perhaps by shaming the parties, it could put some restraint on the rising trend of criminality among candidates. But this is clearly not visible so far in the Bihar assembly elections. And going by the trend of the past 16 years, it is unlikely to change. The only hope, apart from fast-tracking cases, is to disqualify tainted candidates from contesting. This can be done by amending the Representation of the People Act, 1951. Those who are tainted and desirous of being in public service can surely clear their name in a court of law, before contesting elections. Will the lawmakers take up this challenge to cleanse the political system?

The article was originally published on Free Press Journal.