The right to vote, which was recently declared as a fundamental right by the Manipur High Court, has become a well-accepted part of the Indian constitutional jurisprudence. Through a developing jurisprudence on electoral reforms, today, a citizen’s right to vote carries with itself the right to know the candidate that they are choosing to represent them. A series of landmark judgments by our Constitutional Courts has established the right of the voter to know the criminal antecedents of the candidates that contest the elections.
A few days ago, the right to know the criminal antecedents of candidates was upheld by the Manipur High Court in its judgment. The High Court was hearing a plea filed against election petitions urging for the dismissal of election of Bharatiya Janata Party (BJP) Member of Legislative Assembly (MLA) Thounaojam Shyamkumar from Andro Assembly Constituency during the 2022 Legislative Assembly polls. The challenge to his election was on the ground of non-disclosure of information regarding the pendency of a criminal case against Shyamkumar.
In its judgment, the High Court had stated that “Voter’s right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The voter may think over before making his choice of electing law breakers as law makers” (Para 35)
Political parties are playing a very important role in the democratic structure of India. In the interest of larger public interest and for the smooth functioning of India’s democratic structure, it is necessary for there to be a certain level of transparency. Through its judgments, the Supreme Court has made it mandatory for political parties contesting elections with candidates with criminal antecedents to publish information about the criminal charges filed against them. It is crucial to note here that based on these judgments, in January 2022, the Election Commission of India (ECI) had issued guidelines on the requirement of disclosure of criminal antecedents by candidates and political parties who sponsor them.
As per the said notification by the ECI, the criminal antecedents of the candidate must be published by the running political party on its website along with the reason of their selection. The criminal records will also be needed to be published on television channels and newspapers on three occasions before the poll. The ECI notification also mentioned that it is based on three judgements/orders of the Supreme Court, delivered on February 16, 2018, September 25, 2018 and August 10, 2021 (discussed below).
The jurisprudence on the right of voters to criminal antecedents:
- Association of Democratic Reforms v. Union of India (2002)
In the year 1999, a PIL (Public Interest Litigation) had been filed by the Association for Democratic Reforms (ADR) in the Delhi High Court urging for imposing a requirement on the contesting candidates of elections of parliament and state assemblies to disclose the criminal cases pending against them while filing their nomination papers. In November 2000, the Delhi High Court had declared a favourable verdict in the case, requiring the MPs and MLAs to declare the criminal cases pending against them in a sworn affidavit. The Union government had filed a SLP (Special Leave Petition) in the Supreme Court against the judgment of the High Court.
In May 2002, the Supreme Court upheld the judgment of the High Court and established the filing of affidavits by candidates disclosing their criminal antecedents as the right of the voter. The judgment further held that the right to information – the right to know antecedents, including the criminal past, or assets of candidates – was a fundamental right under Article 19 (1) (a) of the Constitution and that the information was fundamental for survival of democracy. It directed the Election Commission to call for information on affidavit from each candidate seeking election to Parliament or the State Legislature as a necessary part of the nomination papers on: whether the candidate has been convicted / acquitted / discharged of any criminal offence in the past – if any, whether the candidate was accused in any pending case of any offenses punishable with imprisonment for two years or more, and in which charge was framed or cognizance taken by the court.
In pursuance of the historic judgment, the Election Commission issued directives to the effect that failure to file an affidavit containing the above mentioned details would result in the nomination paper being deemed incomplete within the meaning of Section 33(1) of the Representation of People’s Act (RP Act) and, therefore, lead to the rejection of candidate’s nomination papers.
Amendment to RP Act: But, the judgment of the High Court and the Supreme Court were circumvented by the Parliament later in the year, who amended the RP Act and added Section 33A and 33B to it. When read together, these sections provided a candidate will not be liable to disclose any information regarding their criminal antecedents. Thus, these amendments basically reversed the judgement of the Supreme Court.
- People’s Union for Civil Liberties v. Union of India (2003)
The amendment made to Section 33B of the RP (Third Amendment) Act was then challenged before the Supreme Court in the year 2003. Notably, the amendment had nullified the decision given by the Supreme Court in the ADR v. UOI case. The Supreme Court had struck down Section 33B of the act by deeming it to be unconstitutional as it aimed to impose a blanket ban on the dissemination of information by the candidate. The Court held it void as it infringed the “right of electors’ to know”, a constituent of the fundamental right to free speech and expression and hindered free and fair elections, which is part of the basic structure of the Constitution. Subsequent to this judgment, the contesting candidates were mandated to furnish information relating to all pending cases in which cognizance has been taken by a Court, their assets and liabilities, and educational qualifications.
- Manoj Narula v Union of India (2014)
In the year 2005, a PIL was filed in the Supreme Court which brought forth the issue of appointment of certain Ministers to the Council of Ministers of Union of India even after having been charged for serious or heinous crimes. A constitutional bench of the Supreme Court had then dealt with the question of whether individuals with criminal backgrounds and antecedents or those accused of heinous crimes were fit to be appointed as Ministers in Central and State Governments. In the said case, the Court recognised the limited powers that the Court had in the matters of appointment of Ministers and held that the judiciary was not empowered to read a disqualification not contemplated by the statute into Article 75(1). 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”.
- Public Interest Foundation v. Union of India (2018)
In the year 2011, a PIL was filed by a civil society organisation called Public Interest Foundation in the Supreme Court seeking expansion of the grounds for disqualification of membership in Union and State legislatures. Additionally, the petition urged the Court to disqualify candidates and legislators under the RP Act who have serious criminal charges framed against them by a court or who file false affidavits.
Through the petition, the Supreme Court had been asked 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”
In regards to the issue of criminalisation of politics, a division bench comprising of former Justices RM Lodha and Shiva Kirti Singh had requested the Law commission to submit a report on the same.
Law commission report on Disqualification (2014): It is crucial to highlight here that while it became mandatory for the candidates to disclose all their criminal antecedents, this resulted in the harmful practice of leaving blank spaces or filling incorrect information in affidavits and nomination papers. This issue was also highlighted by the Law Commission in its Report no. 244 which provided that while the PUCL judgment clarified the obligations of a candidate with respect to the furnishing of information, it was less clear on the consequences if the information provided happened to be false. It held that an officer could not reject nomination papers on the ground that candidate information was false. As a result of this finding, the Election Commission ordered its earlier directive on the rejection of nomination papers non-enforceable. The said report had also held that disqualification upon conviction had proved ineffective in preventing the criminalization of politics.
The issue of non-furnishing of any information on crucial information related to criminal records or any other part of the history of the candidate in an attempt to avoid perjury was also highlighted. In view of this, the Report had recommended a punishment for filing of false affidavits be enhanced to minimum 2 years imprisonment and such an offence must also be made a ground for disqualification. Accordingly, it was also suggested that the trials in all such cases must be conducted on a day-to-day basis so as to ensure the necessary conviction that precedes disqualification.
In order to avoid perjury, candidates would not furnish any information on crucial questions relating to criminal history or assets. This practice was challenged later. As stated in the EC’s Report no. 244 on Electoral Disqualifications, while the 2003 PUCL judgment clarified the obligations of a candidate with respect to the furnishing of information, it was less clear on the consequences if the information provided happened to be false. It held that a Returning Officer could not reject nomination papers on the ground that candidate information was false. As a result of this finding, the Election Commission ordered its earlier directive on the rejection of nomination papers non-enforceable.
Judgment: A unanimous judgment was delivered by the Constitutional bench of the Supreme Court had held that the Court cannot introduce new rules under the RP Act that would disqualify such candidates against whom criminal charges have been framed from contesting elections. The bench had left it to the parliament to make a law that prevents candidates accused of serious crimes from entering politics.
The bench had comprised the then Chief Justice of India Dipak Misra and former Justices RF Nariman, AM Khanwilkar and Indu Malhotra. The current Chief Justice of India DY Chandrachud was also a part of the bench. The bench had stated “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 100 conceive of the idea of entering into politics.”
On the issue of criminal antecedents, the Court directed that the same must be clearly stated by the candidates in the nomination forms. The concerned political party and the candidate were required to give wide publicity to the criminal antecedents by advertising them thrice in widely circulated newspapers of the area and also in electronic media after the filing of nomination papers. The following directions were passed by the Court:
“1. 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.
- It shall state, in bold letters, with regard to the criminal cases pending against the candidate.
- 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.
- The political party concerned shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.
- 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.”
It is also essential to note that in one of its orders of March 2104, the Court had directed for conducting speedy and expeditious trials against those MPs and MLAs against whom charges are framed. In its 2014 order, the court had stated that cases against ministers must be decided as expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s).
- Rambabu Singh Thakur v. Sunil Arora (2020)
In February 2020, a division bench of the Supreme Court comprising of former Justices R F Nariman and Ravindra Bhat had delivered a judgment in the contempt petition arising out of the aforementioned Public Interest Foundation case. The bench was hearing contempt petitions filed by Ashwini Kumar Upadhyay and Rambabu Singh Thakur complaining that Election Commission of India had failed to comply with the directions laid down by the Constitution Bench in 2018 with respect to decriminalization of politics.
The division bench had taken a note of the rising criminalisation of politics and had also directed that all political parties are required to publish the details of criminal antecedents of their candidates in the Lok Sabha and Assembly polls within 48 hours of selection of the candidate or within two weeks of nomination, whichever is earlier. Furthermore, the Supreme Court had also asked the Election Commission to report to the Supreme Court regarding any non-compliance by political parties. In addition to this, the bench had also warned the political parties of contempt action in case of failure to comply with the directions passed by the court.
The Court observed that candidates must be selected on the basis of merit and achievement. The reasons for selecting a candidate must be published by the party. “Winnability cannot be the only reason for selecting a candidate with criminal antecedents”, the bench had pointedly remarked.
- Brajesh Singh vs. Sunil Arora (2021)
The Supreme Court bench comprising former Justice RF Nariman and Justice BR Gavai had heard contempt petitions alleging flouting of Supreme Court directives by eight political parties. The petitions had highlighted that the directives publishing information regarding electoral candidates by political parties were not abided by during the Bihar Legislative Assembly elections of October/November, 2020. In August 2021, the bench had found the said eight parties to have violated the directions of the Supreme Court and imposed fines on them for committing contempt of court.
Notably, a sum of rupees five lakhs had been imposed as fine on Communist Party of India (Marxist) and Nationalist Congress Party each. The court had noted that CPI(M) and NCP were the two parties who has not submitted both the required Form C7 or C8 for any of its candidates and held the two to be fully non-compliant. In addition to this, the court had directed Bharatiya Janata Party (BJP), Indian National Congress, Janta Dal, Rashtriya Janata Dal (United), Communist Party of India and Lok Janshakti Party to pay a fine of rupees one lakh each.
B.L. Santosh v. Brijesh Singh and others (Review Petition): Notably, in February 2023, a special bench of former Justice Dinesh Maheshwari and Justice B.R. Gavai had recalled the fine of Rs 1 lakh on the BJP for contempt of court. In its judgment, the bench had noted that there was no wilful or deliberate disobedience of the court order. The review petition had been allowed by the Supreme Court in November 2021.
- Bhim Rao Baswanth Rao Patil v. K. Madan Mohan Rao & Ors. (2023)
In the said case, a division bench of the Supreme Court comprising former Justice S Ravindra Bhat and Justice Aravind Kumar had held it to be a full right of the voter to be informed about the background of an electoral candidate. In its judgment, the bench had observed that “The elector or voter’s right to know about the full background of a candidate- evolved through court decisions- is an added dimension to the rich tapestry of our constitutional jurisprudence.”
The court had also emphasized the right of a voter to make an informed choice, a right that had been a result of our long fight for India. The Supreme Court stated “the right to vote, based on an informed choice, is a crucial component of the essence of democracy. This right is precious and was the result of a long and arduous fight for freedom, for Swaraj, where the citizen has an inalienable right to exercise her or his right to franchise. This finds articulation in Article 326 of the Constitution.”
In addition to this, the bench had deemed it to be paradoxical that the right to vote has not been held to be a fundamental right, though democracy forms a part of the basic features of the Constitution. Notably, the bench was considering a challenge to the order of the Telangana High Court that dismissed an application seeking rejection of the election petition filed against Bhim Rao Baswanth Rao Patil, the appellant. The election petition had been filed for non-disclosure of certain pending cases against him. The appellant had contended that the election petition did not disclose any cause of action and was liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure.
Disqualification of electoral candidates
Section 8 of the Representation of People Act, 1951 outlines criteria for disqualification of contesting candidates from membership to Parliament and State Legislature. The section elaborates on the criteria for disqualification of an electoral candidate in cases where they are convicted for certain offences such as corruption, rape, terrorism, etc.
If an electoral candidate files false information, conceals information or fails to furnish any of the required information, action against such a candidate can be initiated under Section 125A of the RP Act. The said section specifies the penalty for committing the aforementioned acts, which is “imprisonment for a term which may extend to six months, or with fine, or with both.”
However, it is crucial to highlight here that a punishment granted under Section 125A of the RP Act has not been included in the list of offences under Section 8 of the Act. As penalty for filing a false affidavit does not find itself included in the criteria for disqualification of election candidates, no real consequence can be associated with committing acts under Section 125A. The lack of consequence undermines the value that is associated with the right of a voter to know the criminal antecedents, assets and liabilities of an electoral candidate
Necessary teeth to the law?
Through the developing jurisprudence highlighted above, since 2002 to 2023, the Supreme Court has highlighted the right of a voter to know the criminal antecedents of an electoral candidate, deeming it to be a part of the fundamental rights guaranteed to the citizens. Through its 2018 judgment, the Supreme Court has provided five necessities, in regards to providing information on their criminal record, which the electoral candidate has to abide by while filing their forms. While the electoral candidates have been required to submit details of their criminal cases to the poll panel through an affidavit following the 2002 judgement, the 2018 judgement expanded the scope by making it necessary to publish this information on party website, newspaper and television channel. In the 2020 judgment, the court also specified that the political parties will have to state the reasons for fielding candidates with criminal background other than the issue of ‘winnability’. And yet, there has been no direction by the Supreme Court which provides for the automatic disqualification of candidates who file false affidavits or conceal information. If an act is hampering a citizen’s fundamental right, should there not be any direction by the court that ensures such infringement? As it has been highlighted above, in this regard, the Court cited the doctrine of separation of powers and recommended the parliament to make a law that prevents candidates accused of serious crimes from entering politics. No such law has been formulated by the Parliament, which raises the question on the enforcement of the directions and suggestions given by the top most Court in India. Therefore, while the Supreme Court has taken exceptional steps in increasing accountability and ensuring transparency, issues such as monitoring of filing of affidavits, consequences of filing false affidavits, inclusion of disqualification under Section 125A under Section 8 of the RP Act and prevention of candidates with criminal records from entering politics remain to be addressed adequately.