The decision that reformed Elections like none other: Rambabu Singh Thakur v. Sunil Arora & Ors.

Introduction:

Rambabu Singh Thakur v. Sunil Arora[1] is a contempt petition filed in furtherance of the directions made by the apex court in the case of Public Interest foundation v. UOI[2]. Also known as Criminalisation in politics case, the orders in this judgement have put forth new standards in the league of election laws. The Bench, consisting of Justice R.F. Nariman and Justice S. Ravindra Bhatt mandated six new directions to be followed by the electoral candidates and political parties among which the premiere direction is adding the details of the criminal charges filed upon any candidate in the party’s official website while reiterating the five directions made in the 2018 judgement of Public Interest Foundation case. Under general law, if the accusations of contempt of court are proved, the punishment would be imprisonment extending up to a period of six months and fine. But in this case, the court went on to exercise special powers conferred by the Constitution under Article 129 and Article 142 of the Indian Constitution for giving directions which seem fit for its discretion.


Historical Timeline:

The question of criminalisation of politics was firstly dealt with in the case of Union of India v. Association for Democratic Reforms[3] where it was held that every elector possesses a fundamental right of knowing the criminal history of the contester standing in the election to hold a public office. The court went on to decide that the right to free speech and expression includes the right to be informed. It is in this case where the election commission was ordered to collect affidavits filed by candidates which must mandatorily consist of the past and pending criminal charges of such candidates along with the status of such cases. The affidavit must also specifically consist of the details as to the quantum of punishment, if convicted and whether such charges were made prior to six months of filing nomination.

Subsequently, third amendment was made to the Representation of People Act, 1951[4] by adding Section 33B which provided that it is not mandatory for the candidates to file affidavit containing the information regarding criminal antecedents as ordered by court in the previous decision. This amendment directly nullified the court’s decision. At this point, People Union for Civil Liberties (PUCL)[5] challenged this amendment in Supreme Court where it was held as Unconstitutional as it infringed the fundamental right which was upheld in the previous decision. Since this decision, the criminal records of election contesters have been considered as matters pertinent to public record.

Later, in a 2005 judgement in the case of K.. Prabhakaran v. P. Jayarajan[6], the court explained the purpose of Section 8(3) of the Representation of Peoples Act, 1951.[7] This provision puts bar on candidates or elected members from contesting elections for a period of six years if they are convicted for any crime which is punishable for at least two years of jail along with some exceptions. The court observed that this disqualification ensures sanctity and fairness of elections by avoiding contesters with criminal background to enter governance. Subsequently, in Lily Thomas v. UOI[8] which was decided in 2013, Section 8(3) was held to be applicable to Parliament, Legislative Assembly and Council’s members across the country and the exception of 3 month time period being given to those members for appealing was struck down which results in immediate disqualification.

Meanwhile, 244th Law Commission report noted that the disqualification under section 8(3) of RPA doesn’t seem to be an effective tool in curtailing the criminals to enter politics and suggested that disqualification should be effected at the time of charge-framing along with certain safeguards. It also recommended increasing the punishment to at least 2 years of jail for filing affidavits which are proved to be false.

In 2018, the case Public Interest Foundation v. UOI,[9] which was filed in the year 2011, was decided in favour of respondent along with certain directions given to Parliament and Election Commission. Also known as Electoral Disqualification Case, this caused great public interest as petitioner contested that the members of any legislative body against whom criminal charges are filed must be disqualified from such body. The court observed that it doesn’t have any such power to disqualify on the contested ground because of separation of powers. But at the same time, the court directed Parliament to enact a standard law which aims towards restricting those who face accusations of committing serious and grave crimes from contesting in elections. The five-judge Bench hoped that the voters would become well aware of information regarding the candidates ensuring them to make wise choices which in turn strengthens democracy.

The directions mentioned in the above case are reiterated along with other guidelines in the present case which will be discussed in the following section.


Analysis of the Judgement:

In the first paragraph, Justice Nariman recognised that certain serious issues are raised in the contempt petition pertaining to directions of Public Interest Foundation case[10] and reiterated those directions observing that this court was concerned regarding criminal antecedents in politics and scarcity of such data in public. The five guidelines mentioned in that case are:

  • The forms which are to be given by the Election Commission are to be provided with sufficient information by every contester in elections.

  • Such form must provide for information regarding pending criminal charges against the candidates.

  • The political party upon whose ticket a candidate is competing should be made aware of such cases.

  • The party’s website should display the particulars regarding criminal history of candidates.

  • Both the party and the candidate should publish a declaration consisting of criminal antecedents in popular newspapers and e-media at least three times after nomination is filed.

In third paragraph, the court accepted the submission of certain data by the petitioner relating to surge in criminal incidence in politics. The data provides percentage of parliamentarians with pending criminal charges. Accordingly, this percentage was recorded as 24% in 2004, 30% in 2009, 34% in 2014 and escalated to 43% in 2019 which was observed by the court as an “alarming increase”. Noting that the political institutions don’t provide any proper justification as to why such candidates with criminal background are chosen, the court ordered political parties, candidates and election Commission to stick to following guidelines in case of an election.

The first among them is that the parties which are functional at the centre and state level should compulsorily make available on their official website the details related to criminal cases which are pending against its candidates. Such details must consist of the information regarding nature of offence, case number and circumstances of framing charges etc. The court felt that the parties owe an explanation regarding selection of contesters with charges against them so it also directed the parties to mention the reasons for choosing them over other individuals. In the second direction, the court made it clear that such justification for choosing contester given by the parties must be with regard to merit or qualifications rather than mere winning ability of such candidate. The court also clearly drew a path for publication of such information which consists of platforms like one local and one national newspaper, social media accounts owned by political parties.

In the later directions, the court mandated that the publication of such details should happen before 48 hours of selection or before two weeks from the first date notified for filing nominations, whichever is prior in time. Meanwhile the party must submit a report to Election Commission which confirms that the directions mentioned above are duly complied by them before 72 hours of choosing the candidate. In case such report is not submitted, the issue should be brought as contempt of court’s orders in the Supreme Court.


Conclusion:

Hence, by this judgement the court strengthened the already existing directions by mandating few procedures. Most importantly, the wide publicity of criminal charges filed against candidates through different platforms will put voter in advanced situation for choosing the right candidate. As this decision also orders with respect to the duties to be followed by political parties which give tickets to such candidates, there wouldn’t be escape by any individual from these directions as the larger institution i.e party will have to face consequences for any such mistake. Hence, this ruling, if transformed as a law by the legislature, will evidently contribute to fortify the pillars of democracy.


Footnotes:

[1] Rambabu Singh Thakur v. Sunil Arora, 2020 SCC OnLine SC 178, MANU/SC/0172/2020. [2] Public Interest Foundation & Ors v. Union of India & Anr, (2019) 3 SCC 224. [3] Union of India v. Association of Democratic Reforms, AIR 2002 SC 2112. [4] The Representation of Peoples Act, 1951. [5] People’s Union of Civil Liberties v. Union of India, MANU/SC/0234/2003. [6] K. Prabhakaran v. P. Jayarajan, MANU/SC/0025/2005. [7] Section 8(3) of Representation of People’s Act, 1951. [8] Lily Thomas v. Union of India & Ors, MANU.SC/0687/2013. [9] Supra Note 2. [10] Id Submitted by,

Palreddy Vinay Kumar Reddy,

Symbiosis Law School, Hyderabad.

© 2019 by AmicusX