Case BriefsSupreme Court

“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.”

Supreme Court: A Division Bench comprising of R.F. Nariman and B.R. Gavai, JJ. found several political parties guilty of contempt of court for non-compliance of directions given by the Supreme Court in Rambabu Singh Thakur v. Sunil Arora, (2020) 3 SCC 733 in connection with disclosure of information of candidates with criminal antecedents. Penalties have been imposed on the political parties found guilty. The Court also issued further directions in order to make the right of information of a voter more effective and meaningful.

The instant contempt petition arose out of elections held to the Bihar Legislative Assembly in October/November 2020. Brajesh Singh, Advocate registered with the Bar Council of Delhi, filed the contempt petition bringing to the Court’s notice that its directions given vide Rambabu Singh Thakur, (2020) 3 SCC 733 were being flouted.

Earlier Directions

It is seemly to note that the Constitution Bench in Public Interest Foundation v. Union of India, (2019) 3 SCC 224 had issued several directions to the effect that the candidates and political parties were obligated to disclose information pertaining to criminal antecedents of candidates. As a sequel, following directions were issued in Rambabu Singh Thakur, (2020) 3 SCC 733:

(i) It shall be mandatory for political parties (at the Central and State election level) to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the Court concerned, the case number, etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.

(ii) 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.

(iii) This information shall also be published in: (a) one local vernacular newspaper and one national newspaper; (b) on the official social media platforms of the political party, including Facebook and Twitter.

(iv) These details shall be published within 48 hours of the selection of the candidate or not less than two weeks before the first date for filing of nominations, whichever is earlier.

(v) The political party concerned shall then submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate.

(vi) If a political party fails to submit such compliance report with the Election Commission, the Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of the Court’s orders/directions.

Pursuant to the order in Rambabu Singh Thakur, (2020) 3 SCC 733, the Election Commission of India (“ECI”) issued a letter to all National and State level recognised political parties asking them to comply with the directions of the Supreme Court, and also issued a new Form C-7 in which the political parties have to publish the reason for selection of candidates with criminal antecedents in addition to all other relevant information. Also, in Form C-8, the political parties were then to report compliance of the Supreme Court’s order and the directions contained therein within 72 hours of selection of the candidate.

Bihar Legislative Assembly Elections, 2020

Assembly Elections in Bihar were held in October/November 2020. As per the report issued by Association for Democratic Reforms, it was found that 32% contesting candidates had criminal antecedents. Further, 68% of winning candidates had criminal antecedents. Out of these winning candidates who had criminal antecedents, 51% had serious criminal cases against them including cases related to murder, kidnapping, attempt to murder, crime against women including rape, etc.

ECI filed a report in the Supreme Court informing that out of 10 recognised political parties which contested general elections to the Bihar Legislative Assembly in 2020, 8 political parties submitted information about criminal antecedents of the contesting candidates and only 2 political parties, namely Communist Party of India (Marxist ) and Nationalist Congress Party that fielded 4 and 26 candidates respectively with criminal antecedents, did not furnish the requisite information.

Political parties found in contempt of Supreme Court directions

Senior Advocate K.V. Viswanathan, acting as Amicus Curiae, prepared a chart (appended as Annexure I to the judgment) to show how all the political parties have been flouting the Court’s directions, and fielding persons whose criminal antecedents show that they have been charge-sheeted or charged with serious offences, with no real reason as to why such person has been preferred over other more deserving candidates. In addition, he also brought to Court’s notice that in the concluded Bihar Assembly Elections, 2020, the required forms were either not filled by the political parties or were filled without disclosing particulars.

Foremost, the Supreme Court referred to provisions of the Representation of the People Act, 1951 including Section 33-A (Right to information). Then, after recording the evolution of law on the subject through several judicial pronouncements, the Court stated:

“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 considered the facts pointed out by the petitioner in the instant contempt petition and found several political parties to be in contempt of the order in Rambabu Singh Thakur, (2020) 3 SCC 733. The reasons for such finding is indicated below:

Janta Dal (United): Reasons given by the party for the nomination of a candidate from the Belaganj Assembly were inadequate and not in consonance with the Supreme Court directions. Further, the party filled Form C-1 and C-2, which specifies the format for publication of criminal antecedents of candidates in newspapers, in a vague and mechanical manner.

Rashtriya Janta Dal: The party cited ‘winnability’ as the only reason for selection of candidates, which is in the teeth of the Supreme Court directions.

Lok Janshakti Party: The party gave identical reasons for selection of 5 of its candidates and had also filled Form C-2 in a mechanical manner.

Indian National Congress: Criminal antecedents were published in newspapers of low circulation and the forms in which details of criminal antecedents have to be published were filled in a mechanical manner. The party gave reasons along the lines of ‘winnability’ for selection of candidates accused of serious offences. Supreme Court’s were directions not followed in letter and spirit.

Bharatiya Janata Party: The party failed to submit Form C-7 in respect of one of its candidates without acceptable reason and the party did not provide reasons for selection of its candidates which were in line with Supreme Court directions.

Communist Party of India (Marxist): The party was one of the two parties that did not submit Form C-7 or C-8 for any of its candidates and, therefore, was fully non-compliant with Supreme Court directions. An oversight on part of the State Committee of the party cannot be a ground for non-compliance of the directions.

Nationalist Congress Party: The party was one of the two parties that did not submit Form C-7 or C-8 for any of its candidates and, therefore, was fully non-compliant with Supreme Court directions. The dissolution of the State Committee of the party a few months prior to the election in the State of Bihar cannot be a ground for non-compliance of the directions.

Communist Party of India: Criminal antecedents were published in newspapers of low circulation and the forms in which details of criminal antecedents have to be published were filled in a mechanical manner. The party justified selection of some candidates accused of serious offences by stating that the cases “do not have any substance”. The party did not follow Supreme Court directions in letter and spirit.

Rashtriya Lok Samta Party: The party gave same reason for selection of 5 of its candidates in a stereotyped manner.

Penalty

Taking into consideration that these were the first elections which were conducted after issuance of the  directions in Rambabu Singh Thakur, (2020) 3 SCC 733, the Supreme Court was inclined to take a lenient view in the matter. It, however, warned the political parties that they should be cautious in future and ensure that the directions issued by the Supreme Court as well as ECI are followed in letter and spirit.

Since Communist Party of India (Marxist) and Nationalist Congress Party did not at all comply with the directions, the Court ordered them to deposit an amount of Rs 5 lakh each in a specified account. All other parties found in contempt were ordered to deposit an amount of Rs 1 lakh each.

It may be noted that the Court found in all 9 parties to be guilty of contempt; but as per the direction, penalty was levied only on 8 parties. No penalty was specified for Rashtriya Lok Samta Party (Respondent 12).

Caution to the Election Commission of India

The Court accepted ECI’s argument that it cannot be said to have committed any contempt of the directions in Rambabu Singh Thakur, (2020) 3 SCC 733 as ECI did bring flouting of directions to Court’s notice. The Court, however, cautioned ECI to do so as promptly as possible in future so that prompt action may be taken by the Court.

Incidental Discussion

Political party’s freedom to select candidate of choice

Recapitulating the directions given in Rambabu Singh Thakur, (2020) 3 SCC 733, the Court said that the directions were given so as to enable the voter to have an informed choice while exercising his right to vote. What had been directed, was only to provide information to the voter so that his right to have information as to why a particular political party has chosen a candidate having criminal antecedents and as to why a political party has not chosen a candidate without criminal antecedents, is effectively guaranteed. The Court was of the view that such a requirement would only enable the voter to have complete information and exercise his right to vote effectively.

It was clarified that a political party can always give a reason that a candidate with criminal antecedents is found to be more suitable than a person who does not have criminal antecedents. What was directed is that the reasons should not be with regard to “mere winnability at the polls”. The Court observed:

“The directions in no way impinge upon the right of a political party to choose a candidate of its own choice.”

Court cannot direct ECI to invoke powers under Clause 16-A of Symbols Order

The Amicus Curiae strenuously submitted that Supreme Court should issue a direction to ECI to invoke powers under Clause 16-A of the Election Symbols (Reservation and Allotment) Order, 1968 and take requisite action under the said clause to suspend, subject to terms and conditions, or withdraw recognition of political party that flouts the directions given by the Court in Rambabu Singh Thakur, (2020) 3 SCC 733.

The Court followed the law laid down in Public Interest Foundation, (2019) 3 SCC 224 wherein it was held that the prescription as regards disqualification is complete in view of provisions of the Representation of the People Act, 1951. The Constitution Bench had said that it is clear as noon day and that there is no ambiguity. It had further held that the legislature has very clearly enumerated the grounds for disqualification and the language of the said provision leaves no room for any new ground to be added or introduced.

Opining that the Court could not accede to the submission of the Amicus Curiae, it was reiterated that:

“The court cannot legislate”

Further Directions

Before concluding, the Court said that 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. It was observed:

“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.”

It was added that though the Court desired that something urgently requires to be done in the matter, its hands are tied and it cannot transgress into the area reserved for the legislative arm of the State. The Court commented:

“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.”

In furtherance of the directions issued in Public Interest Foundation, (2019) 3 SCC 224 and Rambabu Singh Thakur, (2020) 3 SCC 733, in order to make the right of information of a voter more effective and meaningful, the Court found it necessary to issue following further directions:

(i) Political parties are to publish information regarding criminal antecedents of candidates on the homepage of their websites, thus making it easier for the voter to get to the information that has to be supplied. It will also become necessary now to have on the homepage a caption which states “candidates with criminal antecedents”;

(ii) The ECI is directed to create a dedicated mobile application containing information published by candidates regarding their criminal antecedents, so that at one stroke, each voter gets such information on his/her mobile phone;

(iii) The ECI is directed to carry out an extensive awareness campaign to make every voter aware about his right to know and the availability of information regarding criminal antecedents of all contesting candidates. This shall be done across various platforms, including social media, websites, TV ads, prime time debates, pamphlets, etc. A fund must be created for this purpose within a period of 4 weeks into which fines for contempt of Court may be directed to be paid;

(iv) For the aforesaid purposes, ECI is also directed to create a separate cell which will also monitor the required compliances so that the Supreme Court can be apprised promptly of non-compliance by any political party of the directions contained in the Court’s orders, as fleshed out by ECI, in instructions, letters and circulars issued in this behalf;

(v) The direction in paragraph 4.4 of the order in Rambabu Singh Thakur, (2020) 3 SCC 733 be modified and it is clarified that the details which are required to be published, shall be published within 48 hours of the selection of the candidate and not prior to two weeks before the first date of filing of nominations; and

(vi) If such a political party fails to submit such compliance report with ECI, ECI shall bring such non-compliance by the political party to the notice of the Supreme Court as being in contempt of the Court’s orders/directions, which shall in future be viewed very seriously.

The contempt petition was disposed of in above terms. [Brajesh Singh v. Sunil Arora, 2021 SCC OnLine SC 571, decided on 10-8-2020]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: A 3-Judge Bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ. held that the candidates left out of merit list has no right to claim the same benefit which was provided to some other candidates on basis of some erroneous concession granted by the State. The Court restated that negative equality cannot be claimed to perpetuate further illegality.

Chequered history

The Director-General of Police, Jammu and Kashmir, invited applications for the post of Sub-Inspector of Police (Executive) to be filled by selection in conformity of J&K Police (Executive) Rules. Notably, the Rules do not provide that the merit list of the candidates is to be prepared separately for the Province of Jammu and the Province of Kashmir. The DGP, however, under his own assumption published the merit list separately province-wise.

Round 1

The unsuccessful candidates who could not make it to the merit list challenged the list contending that the DGP ought to have prepared a single select list for the entire State of J&K as the post of Sub-Inspector is a State cadre post.

The unsuccessful candidates succeeded and the DGP ultimately published a revised State-wise merit list by which the appointment of 47 candidates out of the total candidates who were appointed under the original select list was cancelled.

Round 2

The 47 candidates whose appointment got cancelled now challenged the revised merit list. Apart from these 47 candidates, 22 more candidates filed impleadment applications. The matter reached the Supreme Court. On 10-5-2007, the Supreme Court, without examining the inter se dispute of the litigation parties, noted the concession made by the Attorney General for the State that the 47 candidates who were likely to lose their jobs, as well as the other 22 candidates, will be accommodated on the post of Sub-Inspector.

The appointments so stated were actually made. Notably, however, the 22 candidates now appointed were much lower in the revised merit list and their placement in the order of merit was not brought to the notice of Supreme Court and that gave rise to further litigation.

Round 3

Some of the left out candidates who were higher in the merit list qua the 22 candidates now appointed, filed writ petitions contending that they were denied their legitimate right of fair consideration being higher in the revised merit list vis­a­vis these 22 candidates who were indisputedly less meritorious but were still appointed. It was contended that this action of the State is in violation of the statutory rules and is also a denial of equal opportunity in seeking appointment on the anvil of Article 14 of the Constitution.

These writ petitioners succeeded initially before the Single Judge Bench of the J&K High Court, but the order of the Single Judge was reversed by the Division Bench. Aggrieved, these writ petitioners filed the present appeals before the Supreme Court.  

Analysis and decision

State-bound to follow Rules of Recruitment

Relying on the decisions in State of U.P. v. Raj Kumar Sharma, (2006) 3 SCC 330 and Arup Das v. State of Assam, (2012) 5 SCC 559, the Court restated the settled principle of service jurisprudence that the State is bound to follow the rules of recruitment to various services under the State or to a class of posts under the State and the selection of the candidates is to be made as per the scheme of recruitment rules and appointments shall be made accordingly. At the same time, all the efforts shall be made for strict adherence to the procedure prescribed under the recruitment rules. On the contrary, if any appointments are made bypassing the recruitment procedure known to law, it will result in violation of Articles 14 and 16 of the Constitution.

Status of appointments made for exceptional reasons

The Court noted that in the present matter, the appointment of the 22 candidates (whose appointment has given rise to the present round of litigation) was an exceptional case, where the appointment was made on a concession granted by the State for giving a quietus to the long drawn litigation.

It was then observed that it is true that the appointments in the ordinary course are to be made strictly in the order of merit in terms of the select list prepared by the competent authority as contemplated under the relevant statutory recruitment rules and any appointment in contravention indeed is in violation of Article 14 of the Constitution. But there is a proviso to this rule in instances where appointments are made deviating from the merit list drawn by the competent authority in exceptional cases as being reflected in the instant case where there was ongoing litigation and the subsequent selection was also made to give quietus to the ongoing litigation. It was held that such appointment though is irregular, but it cannot be held to be illegal as claimed by the appellants.

Error not to become foundation for perpetuating illegality

The Court was of the opinion that the appellant cannot be extended the same benefit. Reliance was placed on Union of India v. Kartick Chandra Mondal, (2010) 2 SCC 422 wherein it was observed that if something is being done or acted upon erroneously, that cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be made the basis of further appointment and erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. Reference was also made to Arup Das v. State of Assam, (2012) 4 SCC 559.

It was held that though appointments of 22 candidates made by the State are irregular appointments and not in conformity to the recruitment rules, still what was being prayed by the appellants if is accepted, that will perpetuate the illegality which has been committed by the State and negative equality cannot be claimed to perpetuate further illegality.

No disturbance to long-standing position

The Court noted that that by now, the 22 candidates against whom the lis was raised by the present appellants, had completed almost more than 12 years of service and thus having rich experience in the field. It was also observed that the concession given by the Advocate General for the State in favour of these candidates, appeared bonafide to give quietus to the ongoing litigation pending in Courts for sufficiently long time.

In such view, the Court was not inclined to disturb the appointment of these 22 candidates which had been questioned by the appellants in the present appeals. Reliance was placed on Gujarat State Dy. Executive Engineers’ Assn. v. State of Gujarat, 1994 Supp (2) SCC 591 and Buddhi Nath Chaudhary v. Abahi Kumar, (2001) 3 SCC 328.

Consequently, the Supreme Court dismissed the present appeals. [Pankjeshwar Sharma v. State of J&K, 2020 SCC OnLine SC 984, decided on 3-12-2020]

Legislation UpdatesStatutes/Bills/Ordinances

Haryana State Employment of Local Candidates Bill, 2020

The above stated Bill provides seventy-five per cent employment of local candidates by the employer in the State of Haryana and fore matter connected therewith.

Reason for introducing the Bill:

To provide reservation to the local candidates of Haryana in private employment under various Companies, Societies, Trusts, Limited Liability Partnerships Firms, Partnership Firm etc. situated in Haryana for a period of ten years, the Government of Haryana has proposed a Bill named as “The Haryana State Employment of Local Candidates, Bill, 2020.”

The influx of a large number of migrants competing for low-paid jobs places a significant impact on local infrastructure and housing and leads to proliferation of slums. This has led to environmental and health issues which has been acutely felt in the urban areas of Haryana affecting the quality of living and livelihood. Therefore, giving preference to local candidates in low-paid jobs is socially, economically and environmentally desirable and any such preference would be in the interests of the general public.

With the enactment of the present Bill, in the interest of public at large, the State is also going to encourage all the private employers in Haryana to boost local employment. The Bill will provide tremendous benefits to the private employers directly or indirectly through the qualified and trained local workforce. Availability of suitable workforce locally would enhance the efficiency of Industry as the workforce is one of the major components for the development of any industrial organization/factory.

Salient Features of the Bill:

  1. To provide at least 75% of employment to the local candidates in various Companies, Societies, Trusts, Limited Liability Partnerships Firms, Partnership Firm etc. situated in the State of Haryana.
  2. To provide training to eligible local candidates where qualified or suitable candidates are not available.

Read the notification here: The Haryana State Employment Of Local Candidates Bill, 2020


Haryana Government

[Notification dt. 31-10-2020]

Legislation UpdatesRules & Regulations

S.O. 1023(E)—In the exercise of the powers conferred by Section 169 read with Section 33 of the Representation of People Act, 1951 (43 of 1951), the Central Government after consulting the Election Commission hereby makes the following rules further to amend the Conduct of Elections Rules, 1961, namely:––

1. (1) These rules may be called the Conduct of Elections (Amendment) Rules, 2019.
(2) They shall come into force on the date of their publication in the Official Gazette.

2. In the Conduct of Elections Rules, 1961 in FORM 26,––
I. in PART A—
(i) for paragraph (4) and the Table thereunder, the following shall be substituted, namely:—
“(4) Details of Permanent Account Number (PAN) and status of filing of income tax return:

[Refer link for detailed notification: Notification]

Ministry of Law and Justice


Note: In accordance to the amended Form 26, five years’ returns are to be furnished, along with details of offshore assets. Along with this,  it would also require details under various heads of the candidate’s spouse, members of the Hindu Undivided Family (if the candidate is a ‘karta’ or coparcener) and dependents.

Case BriefsHigh Courts

Rajasthan High Court: A Bench of Alok Sharma, J., dismissed a petition filed for a re-examination of the physical test due to the adverse condition of the running track.

The facts of the case are that he having passed the written examination for appointment to the post of Constable under the Rajasthan Police Subordinate Service Rules, 1989 appeared for Physical Efficiency Test (PET) which entailed running 5 kms within the prescribed time. At the time the PET under the Rules of 1989 was conducted on 28-8-2018 at Jaipur, the running track was muddied for reason of heavy rains which resulted obstructing the petitioner’s performance up-to-his potential and his failure. The contention of the petitioner was that he should be given another opportunity as was given to several candidates who failed the PET.

The Court dismissing this petition held that the petition was filed after an inordinate and unexplained delay of about two and a half months and since then the selection process was completed and those appointed were undergoing training. The issue with regard to the condition of track in the course of PET for recruitment was of no event for the purpose of PET. [Veer Singh v. State of Rajasthan, 2019 SCC OnLine Raj 9, Order dated 07-01-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Division Bench of Gita Mittal, CJ and Tashi Rabstan, J., issued a notice to the respondents in regard to the manner in which the short listing of candidates was effected.  

This writ petition was filed to challenge the action of the respondents for bunching the applicants who had applied pursuant to three advertisement notifications for the purposes of short listing without putting them to notice.

It was contended by Mr Pranav Kohli, counsel for the applicant that the complete basis of the selection was changed and Rule 40 of the J&K Public Service Commission (Business and Procedure) Rules, 1980 was violated.

A notice was issued to the respondents in this regard. [Aamir Salim Sheikh v. J&K Public Service Commission, 2018 SCC OnLine J&K 1010, Decided on 26-12-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., dismissed a writ petition whereby the petitioners assailed the order of selection of medical officers, which was passed by the respondent authorities.

The main issue that arose before the Court was whether the order passed by the respondent authorities was good in law.

The Court observed that the petitioners had applied for the post of medical officers but couldn’t qualify, however, it is pertinent to mention that the petitioners had read the advertisement and after accepting all the terms and conditions therein, applied for the position of medical officer. It was specifically mentioned in the advertisement itself that the total no. of seats for general candidates was 14 out of 30, however, the petitioners did not raise any objection at the time of applying for the said posts. The petitioners challenged the advertisement and order of selection only after they could not qualify for the said posts. They participated in the selection process with their eyes wide open and took chance in the selection. The Court referred to the Supreme Court judgment of Ashok Kumar v. State of Bihar, (2017) 4 SCC 357 wherein it was held that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.

The Court held that the petitioners had participated in the process of recruitment after reading the terms and conditions of the advertisement and hence they cannot be allowed to challenge the advertisement at a later stage. Accordingly, the petition was dismissed by the Court. [Sheetal Sharma v. State of J&K,2018 SCC OnLine J&K 707, decided on 05-10-2018]

Case BriefsSupreme Court

Though criminalization 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.

Supreme Court: CJ Dipak Misra delivered the Judgment for the 5-Judge Constitution Bench comprising of himself and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. wherein the Court issued certain directions while disposing the petition concerning the question whether disqualification from the membership of the legislature could be laid down by the Court beyond Article 102 (a) to (d) and the law made by the Parliament under Article 102 (e) of the Constitution.

The 3-Judge Bench which originally heard the petition was of the view that the question needs to be addressed by a Constitution Bench. Thus, the present proceedings before the 5-Judge Bench. The petitioners led by Public Interest Foundation submitted that the lawbreakers should not become law makers and there cannot be a paradise for people with criminal antecedents in the Parliament or the State Legislatures. The petitioners were attuned to the principle of presumption of innocence. But they contended that the said principle is confined to criminal law and that any proceeding prior to conviction, such as framing of charge, for instance, can become the basis to entail civil liability or penalty. The petitioners, therefore, took the stand that debarring a person facing charges of serious nature from contesting an election does not lead to creation of an offence and it is merely a restriction which is distinctively civil in nature. Attorney General K.K. Venugopal refuted the submissions and urged that the Parliament to pass a legislation and can only recommend. Further, when there are specific constitutional provisions and the statutory law, the Court should leave it to the Parliament.

The Court was of the clear opinion that it cannot legislate. The Supreme Court, at the outset, perused Articles 102 and 191 of the Constitution and observed it to be clear as crystal that as regards the disqualification for being chosen as a member of either House of Parliament and similarly for a legislative assembly or legislative council of a State, the law has to be made by the Parliament. Reference was made to Lily Thomas v. Union of India, (2013) 7 SCC 653 and the Court was of the opinion that the view expressed therein was correct, for the Parliament has the exclusive jurisdiction to lay down disqualification for membership. It was noted that apart from the grounds of disqualification as mentioned in the said Articles, Parliament has provided certain other grounds under Sections 8, 8-A, 9, 9-A, 10 and 10-A of the Representation of the People Act, 1951. Apart from these, there are no other disqualifications and, as noticeable, there can be no other ground. Thus, disqualifications are provided on certain and specific grounds by the legislature. In such a state, the legislature is absolutely specific. In the words of the Court, It is clear as moon day and there is no ambiguity. The language of the said provision leaves no room for any new ground to be added or introduced.

On the issue of criminalisation of politics, the Court referred to earlier judgments. Rajya Sabha Reports, Law Commission reports, etc. and further discussed the role of Election Commission with respect to superintendence, direction, and control of elections. It was observed that Election Commission has the plenary power and its view has to be given weightage. That apart, it has power to supervise the conduct of free and fair election. However, the said power has its limitations. The Election Commission has to act in conformity with the law made by the Parliament and it cannot transgress the same. Analysis was also made of the Election Symbols (Reservation and Allotment) Order, 1968 which deals with allotment classification, choice of symbols by candidates and restriction on the allotment of symbols. Observation of the Court in the matter was that when a candidate has been set up in an election by a particular political party, then such a candidate has a right under sub-clause (3) of Clause 8 to choose the symbol reserved for the respective political party by which he/she has been set up. An analogous duty has also been placed upon the Election Commission to allot to such a candidate the symbol reserved for the political party by which he/she has been set up and to no other candidate.

The Court finally referring to, inter alia, Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294; Resurgence India v. Election Commission of India, (2014) 14 SCC 189; etc. was inclined to say that best available people, as is expected by the democratic system, should not have criminal antecedents and the voters have a right to know about their antecedents, assets and other aspects. In a constitutional democracy, criminalization of politics is an extremely disastrous and lamentable situation. The citizens in a democracy cannot be compelled to stand as silent, deaf and mute spectators to corruption by projecting themselves as helpless. The voters cannot be allowed to resign to their fate. Disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified. It has to be remembered that such a right is paramount for a democracy. A voter is entitled to have an informed choice.

Keeping the aforesaid in view, the Court issued the following directions:

  • 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 regards 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 concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.
  • 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 the same shall be done at least thrice after filing of the nomination papers.

Furthermore, the Court recommended to the Parliament to 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, both for the Parliament and the State Assemblies. This, in our attentive and plausible view, would go a long way in achieving decriminalisation of politics and usher in an era of immaculate, spotless, unsullied and virtuous constitutional democracy. As stated by the Court, the above directions were issued 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 a 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 writ petition was disposed of accordingly. [Public Interest Foundation v. Union of India, (2019) 3 SCC 224, decided on 25-09-2018]

Case BriefsSupreme CourtUniversities and Educational Institutions

Supreme Court: In the matter where the selection to the post of Principals to different Colleges in the State of Uttar Pradesh was challenged for alleged violation of Regn. 6 of the Uttar Pradesh Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1983, the bench of Fakkir Mohamed Ibrahim Kalifulla and S.A. Bobde, JJ affirmed the decision of the Allahabad High Court where the selection was set aside and it was directed that the U.P. Higher Education Service Commission shall consider and frame appropriate guidelines for conduct of interview for selection on the post of Principal of Postgraduate/Degree Colleges in accordance with law as mandated by Regulation 6(2) of the 1983 Regulations and further take early steps for filling the vacant posts of Principal of Postgraduate/Degree Colleges in accordance with law.

The State Government enacted U.P. Higher Education Services Commission Act, 1980 to establish a Service Commission for the selection of Teachers which includes the post of Principals for appointment to the colleges affiliated to or recognized by the University under the 1973 Act as there were numerous complaints regarding the selection of candidates for both the post of Teachers as well as the Principals in the post graduate colleges as well as the degree colleges. The High Court had held that there were serious lapses in the procedure followed by the Commission in making the selection for the post of Principals of the Post Graduate as well as Degree colleges in as much as the Regulation 6 of the 1983 Regulation was not strictly followed and that the necessary guidelines under the said Regulation were not formulated both for screening the candidates as well as in the matter of holding the interview, apart from serious violation in the matter of calling of the candidates for interview beyond the prescribed limit as provided under the Regulation 6.

In the present case, initially the Commission decided to limit the number of candidates by fixing the norms. The Commission by fixing the cut-off mark as 34.9 for female candidates 35.1 for male candidates proceeded to process the applications but subsequently the index norms were altered and ultimately it decided to call all the candidates. It was alleged that such variation was adopted by the Commission with a view to favour certain candidates who otherwise did not come within the zone of consideration for participation in the interview.

The Court, considering the facts of the case, held that the High Court was well justified in holding that the changing of the norms while applying Regulation 6(1) for the initial screening thrown considerable doubt about the genuineness in the selection process adopted by the Commission. When greater faith and trust was invested with the Commission and when the Commission breached its own criteria and thereby acted contrary to the standards laid by it, it resulted in an arbitrary selection made by it. [Veerendra Kr. Gautam v. Karuna Nidhan Upadhyay, 2016 SCC OnLine SC 704, decided on 15.07.2016]