In a democratic setup, the popular will of people prevails. The citizens of India get to choose their candidates, who in return prioritise the well-being of these people by trying to establish a welfare State. The right to vote as enshrined in the Indian Constitution is an incredible power which is saddled upon every citizen of the country, who is not less than 18 years of age while exercising this power. The responsibility which shadows this right is to choose a representative who will further the well-being of the society and the country at large. The conclusive goal of this universal adult franchise is to maintain transparency in elections and to make them free and fair.
India saw its first election in the year 1951, which was held to the Lok Sabha. At that time, the people of the country were in awe of the fact that they could choose their representatives and these representatives would form a government. The candidates at that time had to resort to door-to-door campaign to spread awareness about the right to vote as well as their candidature. Documentaries were played in cinema halls across the country to promote adult franchise. One of the insurmountable impediments faced at that time was the daunting rate of illiteracy in the country. Use of symbols by political parties was a quick fix to overcome this problem and it helped the citizens remember who they had to vote for. During those times, the criteria for people to select their representatives dominantly circled around the face value of candidates and the promises made by them.
Unlike those times, the citizens nowadays have become vigilant and are conscious about the developments around the world. But the question that arises at this juncture is — whether the citizens are conscious enough about the representatives they choose, who form the Government and run the country?
The expression “criminalisation in politics” comes into spotlight here. This could precisely be defined as participation of candidates in politics, who have criminal antecedents. These candidates can contest elections from different political parties and get elected to the post they are contesting for. The undue influence that these people with criminal antecedents exercise on the public and their fear amongst all as well as existence of casteism, has opened floodgates for them to enter into politics and enlarge their vote bank by resorting to malpractices as well as by using their influence which they have on a particular section/s of people. The political parties hanker on two major requirements: (1) a large enough vote bank and influence over the public for ensuring unprecedented support; and (2) infusing funds in the campaign to make sure the public can see party’s grandeur. Political parties are always on a lookout for such candidates who can aid the parties in fulfilling these requirements. These parties while campaigning for elections, try to portray a clean image of its candidates, regardless of the criminal cases pending against any or all of them. This evident growth in the menace caused by the infiltration by the candidates with criminal antecedents in Indian politics was and is a major concern.
At this very point the Indian judiciary stepped in to uphold the rights of the citizens of the country and also to safeguard the democratic setup. In a recent ruling in Brajesh Singh v. Sunil Arora the Supreme Court of India went on to emphasise the need for maintaining purity in the political system of the country to uphold the democracy and ensure its proper functioning. The Bench comprising of R.F. Nariman and B.R. Gavai, JJ., while hearing a contempt petition in the aforesaid case, deliberated upon the need for a system of checks and balances, and the duty of legislature to bring about necessary amendments in law to prohibit the candidates with criminal antecedents from contesting elections. The Bench referred to a catena of decisions of the Supreme Court to demonstrate how the judiciary had stepped in on various occasions to pass directions and safeguard the democratic set-up of the country. It further delineated the scheme of the Representation of the People Act, 1951 (Act of 1951). The Bench observed that the respondent political parties had flouted the previous directions passed by the Supreme Court while hearing the contempt petition in Rambabu Singh Thakur v. Sunil Arora, which in turn arose out of the case of Public Interest Foundation v. Union of India, wherein the Constitution Bench had passed certain directions for ensuring that a voter is fully aware about the particulars of the candidates, but the political parties had chosen to show disregard to those. While referring to the case of Union of India v. Assn. for Democratic Reforms, the Bench in Brajesh Singh took assistance of the observations made therein which pertain to the requirement of furnishing of information by a candidate as to acquittals, discharge or conviction in relation to criminal offences in the past by way of affidavit so that a voter has the right to know full particulars of the candidate for whom he is going to vote, including whether the candidate has committed criminal offences in the past.
The Bench also adverted to the developments post the amendments which were carried out in the Act of 1951 as well as the Conduct of Election Rules, 1961. The Court in Public Interest Foundation while setting out Section 8 of the Act of 1951 and referring to the 244th Law Commission Report titled “Electoral Disqualifications” of February 2014, issued directions contained in Para 116, which pertain to furnishing of complete information about the criminal antecedents of the candidates. The Court also took the efforts to suggest the Parliament to enact laws to ensure that entry of such candidates with serious criminal history are completely restricted from entering in the field of politics.
The Court in Brajesh Singh expressed its anguish and dissatisfaction for the lack of initiative taken by the legislature to act upon the repetitive suggestions of the Court given through various decisions. Para 21 of the said judgment reads thus:
- 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.
The Court also exhaustively contemplated about instances of false conviction of a candidate or registering a false case against a candidate due to political vendetta. The deliberation with regard to the interests of political parties, balanced with the interests of the voters ended up with the Court observing that, the political party would have the freedom of selecting the candidates of its choice, regardless of the fact that he has criminal antecedents, but what would be required in such a case is to give reasons in support of such selection, and the reasons could be dependent on various factors including qualifications, achievements and other merits but not on “mere winnability at the polls”. The Court made it clear that this was only to enable a voter to have all the necessary information, so that he can exercise his right to franchise in an effective manner, and that this in no way impinge upon the right of a political party to choose a candidate of its own choice.
Separation of powers
The Bench comprising of R.F. Nariman and B.R. Gavai, JJ. adverted to the doctrine of separation of powers, while explaining the inability of the judiciary to pass such directions, which were not supported by any statute or any provisions elsewhere. The concept of separation of powers is not as rigid in India as is under American or Australian Constitution but is needed to be adhered to for effective functioning of democracy.
Montesquieu finds that tyranny pervades when there is no separation of powers: There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.
Separation of powers is a barrier which is restraining the judiciary from going above and beyond by issuing strictures or directions which find no base in any of the existing laws in the country. This is a catch in the present scenario, as the Court has only been able to suggest the legislature to take steps which the judiciary cannot work upon and has been hopeful but ended- up expressing its anguish and helplessness due to the inaction of legislature in making laws to eradicate the criminalisation in politics. The Bench while referring to paras 24 and 25 in Public Interest Foundation, reiterated that the courts cannot legislate and that only legislature can enumerate the grounds for disqualification of a candidate whereas a court cannot add to such grounds.
- … it would tantamount to adding a new ground for disqualification which is beyond the pale of the judicial arm of State. It observed that any attempt to the contrary would be a colourable exercise of judicial power for it is axiomatic that “what cannot be done directly ought not to be done indirectly” which is a well-accepted principle in the Indian judiciary.
Further, the relevancy of the following observations made by the Constitution Bench in Public Interest Foundation is of a greater degree to understand the self-restraint practised by the Supreme Court in the backdrop of separation of powers:
- … Though criminalisation in politics is a bitter manifest truth, which is a termite to the citadel of democracy, be that as it may, the Court cannot make the law.
- Directions to the Election Commission, of the nature as sought in the case at hand, may in an idealist world seem to be, at a cursory glance, an antidote to the malignancy of criminalisation in politics but such directions, on a closer scrutiny, clearly reveal that it is not constitutionally permissible. The judicial arm of the State being laden with the duty of being the final arbiter of the Constitution and protector of constitutional ethos cannot usurp the power which it does not have.
After further fortifying the settled position of law related to the separation of powers, the Court exercised its contempt jurisdiction and held the respondent political parties liable for contempt of court for flouting the directions issued by it in Rambabu Singh Thakur and imposed suitable costs on the contemnors. The Bench went on to express its anguish and helplessness by observing that the hands of the judiciary have been tied by the constitutional scheme of separation of powers and that it is the need of the hour for the legislative arm of the State to carry out a major surgery for weeding out the malignancy of criminalisation in politics. Paras 75 and 76 in Brajesh Singh read thus:
- 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 lawmakers. The only question is, whether this Court can do so by issuing directions which do not have foundation in the statutory provisions.
- This Court, time and again, has appealed to the lawmakers 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. 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 lawmakers and hope that they will wake up soon and carry out a major surgery for weeding out the malignancy of criminalisation in politics.
Exercising its limited jurisdiction, the Supreme Court while departing with the judgment issued some further directions and clarified some previous ones. These directions were issued to the political parties as well as the Election Commission of India (ECI). The political parties were directed to publish information related to criminal antecedents of its candidates on its official website within 48 hours of selection of the candidate. The ECI was directed to create a dedicated mobile application for easy access of information to the voter. The directions included an extensive awareness campaign to be carried out by ECI to make the voter aware of his right to know and creation of a separate cell to monitor and ensure compliance of such directions.
However great the power is, it cannot be exercised if the field, where it is to be exercised, is compromised. The popular will of the people prevails in true sense only when the people are conscious about the representatives, they choose to form the Government and run the country. One major thing that has changed since the first general elections in the country is that the participation of such candidates with criminal antecedents has been on a substantial rise whereas, the level of awareness amongst the citizens has not been able to catch up with that rise. The judiciary since decades has been emphasising upon the purity of political system in the country and how the entry of candidates with criminal antecedents in politics has acted as an impediment in achieving the goal. It has not only hindered the free and fair elections but has shaken the very base of democracy, being the citizens of the country. The judiciary has time and again played the important role of a watchdog to the Indian democracy. The whole purpose of this drill was to ensure that the voter has an informed choice while exercising his right to vote. It is for securing the right to know of a voter which is the very fundamental of the adult franchise as well as the democratic set-up of the country. Though the courts have made their intentions about weeding out the malignancy of criminalisation in politics crystal clear, they cannot transgress into the area reserved for the legislative arm of the State due to the constitutional scheme of separation of powers. It is for the legislature to come up with solutions to such persisting problems once and for all.
† 2019 law graduate, Advocate and Law Clerk-cum-Research Assistant, Supreme Court of India, e-mail: <email@example.com>.