Violation Of SC Order Directing Declaration Of Criminal Antecedents Of Candidates: SC Issues Notice To Dy. Election Commissioners, Law Secy.

Ahead of the General Elections of 2019, the Supreme Court on Friday issued contempt notices to three Deputy Election Commissioners for the failure of the Election Commission of India to ensure the disclosure of criminal antecedents of candidates, and to the Law Secretary and the Cabinet Secretary for the government of India's omission to bring a law debarring such candidates from contesting elections.

Acting on the plea of an original petitioner and BJP Leader Ashwini Kumar Upadhyay, A bench headed by Justice Rohinton Nariman sought the response of the Union of India and the ECI within one week for their lackness to comply with the constitution bench judgment of the apex court of September 25, 2018.

The five-judge Bench had held that criminalisation of politics is a bitter manifest truth and is a termite to the citadel of democracy, accordingly, thought it appropriate to issue the following directions-

(i) Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.

(ii) It shall state, in bold letters, with regard to the criminal cases pending against the candidate.

(iii) If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him / her.

(iv) The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.

(v) The candidate as well as the concerned political party 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 same shall be done thrice after filing of nomination papers", the bench had stressed.

"While 17% candidates in 2014 elections had criminal charges framed against them, eventually the House had 33% of such individuals. Hence, 'prima facie' criminal antecedents did not deter them being placed in Parliament. Numbers of such elected individuals has risen thrice from 2009 elections...It cannot probably be presumed that the electorates of India are deliberately choosing those who are suspected criminals to be their legislative representatives. It could only be that true information of their backgrounds (qualification, criminal antecedents and total assets) and the contents of their affidavits have not been made known to the public. This is despite the Article 19(1) right that is available to a voter at the time of voting. It may be noted that in Krishnamurthy, (2015) 3 SCC 467, this Hon'ble Court has concluded that non-disclosure of antecedents amounts to 'undue influence' and hence the election can be set aside", Upadhyay avers in his contempt pleas.

He points out that on August 10, 2018, the ECI issued a direction to political parties and candidates for publication of criminal antecedents without amending the Election Symbol Order & the Model Code of Conduct, as a result of which the direction has no legal sanction. It had also not released a list of leading Newspapers and News Channels, so the candidates published their criminal antecedents on unpopular platforms. The ECI had also not clarified the timing of the publication, so the criminal history came to be displayed at odd hours with hardly any viewers. The Political parties had neither published the details on their website nor in the newspapers/news channels during the Assembly Elections, but the ECI took no action.

Finally, on March 10, the ECI announced the dates of the Lok Sabha Elections again without amending the Election Symbol Order & Model Code of Conduct.

As an interim relief, Upadhyay has prayed for direction to the ECI "to insert the additional condition: 'political party shall not setup candidate with criminal antecedents' in Paragraph 6A 'Conditions for recognition as a State Party', Paragraph 6B 'Conditions for recognition as a National Party' and Paragraph 6C 'Conditions for continued recognition as National or State Party' of the Election Symbols (Reservation & Allotment) Order, 1968, by using its plenary power conferred under Article 324 of the Constitution"

Further, it shall also "introduce a definition: 'candidate with criminal antecedents means a person against whom charges have been framed at least one year before the date of scrutiny of nominations for an offence with a maximum punishment of five years or more' in paragraph 2 of the Election Symbols (Reservation & Allotment) Order 1968"