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 BriefsHigh Courts

Calcutta High Court: The Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., expressed that circulars issued by the Election Commission of India show the route map and protocol for human behaviour.

Court while addressing the matter stated that it is unable to reconcile the fact that the Election Commission of India was not able to update the Court as to what action by way of enforcement of the circulars had been obtained.

Issuance of circulars and holding of meetings by themselves do not discharge the onerous responsibility of the Election Commission of India and officers under its command in due performance of not only the statutory power and authority under Representation of People Act, 1950 and the Representation of People Act, 1951 but the confidence that the Indian polity would have on it to carry forward the mechanism of upholding the democracy by use of requisite facilities even in pandemic times like heightened challenge by COVID-19 virus and its variants.

Bench remarked that it is not satisfied with the materials on record to state that the Election Commission of India and its officers on the ground in West Bengal enforced the circulars.

“We are sure that circulars are not merely advisories to be wrapped up by the political parties or those involved in the political propaganda or even the public at large.” 

Further, High Court observed that

Circulars of the Election Commission of India show the route map and the protocol for  behaviour of the political parties, their workers, the people at large and responsible management by the officers including the police and other forces under the command of the Election Commission of India.

Lastly while concluding the matter, Court directed the counsel for Election Commission to return to make submission with a very short affidavit reflecting on whatever has been stated above. [Nitish Debnath v. Election Commission of India, 2021 SCC OnLine Cal 1521, decided on 22-04-2021]


Advocates before the Court:

Mr. Srijib Chakraborty, adv. Mr. Arindam Das, adv.

Mr. Dipayan Choudhury, adv. Mr. Suvradal Choudhury, adv.

Ms. Priyanka Chowdhury, adv.

… For the Election Commission of India

Mr. Y.J. Dastoor, ld. ASG Mr. Phiroze Edulji, adv. Ms. Amrita Panday, adv. Mr. Arijit Majumdar, adv.

…For the Union of India

Mr. Kishore Dutta, A.G.

Mr. Abhrathosh Majumdar, ld. AAG Mr. Sayan Sinha, adv.

… For the State

Mr. Sonal Sinha, adv.

… for the State Election Commission

Case BriefsHigh Courts

Madras High Court: N. Sathish Kumar, J., expressed that:

“…to constitute an offence under Section 500 of IPC, against the constitutional functionaries or the Minister of State, it has to be established by the prosecution that the alleged imputation made in respect of the conduct of a public servant/public functionary in discharge of his/her public functions and the public function stands on a different footing than the private activities of a public servant.

If the statement is made on mere criticism then it is a right guaranteed under Article 21 of the Constitution of India.”

The present criminal original petition was filed to quash the proceedings pending with regard to criminal cases related to elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai.

Prosecution submitted that in an interview, the petitioner gave a defamatory statement against the Chief Minister and Ministers of Government of Tamil Nadu which was telecasted in leading Television Channels and the same came in the leading dailies on a subsequent day.

In view of the above-stated complainant gave a complaint under Section 199(2) of CrPC of the alleged offence under Section 499 of IPC punishable under Section 500 IPC.

Analysis, Law and Decision

In the instant matter, the imputation alleged to have made by the petitioner was only an allegation made against the ministers in general and in no way connected with the discharge of their official functions.

“…power of quashing of a criminal proceedings should be exercised sparingly, with circumspection and in rarest of rare cases. The court, is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation.”

 Supreme Court decision in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, was cited.

Bench stated that the allegations in the FIR and the materials collected by the prosecution did not disclose the commission of any offence and made out a case against the accused and prosecution itself is instituted with an ulterior motive for wreaking vengeance, Court can exercise power under Section 482 CrPC.

Supreme Court in a catena of decisions such as Rajdeep Sardesai v. State of A.P., (2015) 8 SCC 239 held that judicial process should not be an instrument of oppression or needless harassment.

Mere allegation made against the Ministers in general without any intent on the part of the petitioner and/or without any nexus with discharge of public duties will not come under the purview of offence punishable under Section 500 of IPC.

 While taking cognizance of a complaint under Section 199(2) CrPC, defamation should be directly attributed to a person in discharge of his/her public functions and only in such circumstances the said provision would stand attracted.

Hence, in view of the above discussion, the pending complaint related to Members of Parliament and Members of Legislative Assembly of Tamil Nadu was liable to be quashed.

Before parting with the decision, High Court recorded that persons in public life and the leaders of various political parties should restrain themselves from making serious allegations or criticism against constitutional functionaries since leaders of political parties have huge followers and the same will have a serious impact on the followers and the followers also blindly follow the path of their leaders.

“…irrespective of the political affiliation, when a person raised to the level of leader of a political party should show atmost respect to the others in public life. Of course, every citizen of a democratic country have a freedom of speech, but at the same time such criticism should not exceed affecting the sentiments of others also.”

[T.T.V. Dhinakaran v. City Public Prosecutor, 2021 SCC OnLine Mad 1370, decided on 08-03-2021]


Advocates before the Court:

For Petitioner: Mr.P.S. Raman Senior Counsel for Mr N.Raja Senthoor Pandian

For Respondent: Mr.A.Natarajan, State Public Prosecutor

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V, Ramasubramanian, JJ has refused to interfere with the scheme of sale of electoral bonds by the Political Parties challenged on the ground that it allows the donors of political parties to maintain anonymity which is not healthy for a democracy. The Court said that even though the Scheme provides anonymity, it is intended to ensure that everything happens only through banking channels and that,

“All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some “match the following”. Therefore, it is not as though the operations under the Scheme are behind iron curtains incapable of being pierced.”

The following prayers were made before the Court:

(i)  A declaration that all national and regional political parties are public authorities under the Right to Information Act, 2005;

(ii) A direction to the Election Commission of India to collect all information concerning the finances of political parties;

(iii) A direction to all national and regional political parties to mandatorily disclose complete details about their income, expenditure, donations and funding as well as full details of the donors.

Analysis

Explaining the Scheme, the Court said that while the identity of the purchaser of the bond is withheld, it is ensured that unidentified/ unidentifiable persons cannot purchase the bonds and give it to the political parties.

Under clause 7 of the Electoral Bonds Scheme, 2018, buyers have to apply in the prescribed form, either physically or online disclosing the particulars specified therein. Though the information furnished by the buyer shall be treated confidential by the authorised bank and shall not be disclosed to any authority for any purposes, it is subject to one exception namely when demanded by a competent court or upon registration of criminal case by any law enforcement agency. A non-KYC compliant application or an application not meeting the requirements of the scheme shall be rejected.

“If the purchase of the bonds as well as their encashment could happen only through banking channels and if purchase of bonds are allowed only to customers who fulfill KYC norms, the information about the purchaser will certainly be available with the SBI which alone is authorised to issue and encash the bonds as per the Scheme.”

Moreover, any expenditure incurred by anyone in purchasing the bonds through banking channels, will have to be accounted as an expenditure in his books of accounts. The trial balance, cash flow statement, profit and loss account and balance sheet of companies which purchase Electoral Bonds will have to necessarily reflect the amount spent by way of expenditure in the purchase of Electoral Bonds.

Further, the financial statements of companies registered under the Companies Act, 2013 which are filed with the Registrar of Companies, are accessible online on the website of the Ministry of Corporate Affairs for anyone. They can also be obtained in physical form from the Registrar of Companies upon payment of prescribed fee. Since the Scheme mandates political parties to file audited statement of accounts and also since the Companies Act requires financial statements of registered companies to be filed with the Registrar of Companies, the purchase as well as encashment of the bonds, happening only through banking channels, is always reflected in documents that eventually come to the public domain.

The apprehension that foreign corporate houses may buy the bonds and attempt to influence the electoral process in the country was also found to be “misconceived”. Under Clause 3 of the Scheme, the Bonds may be purchased only by a person, who is a citizen of India or incorporated or established in India.

The Court, hence, found no reason to interfere with the Scheme.

[Association for Democratic Reforms v. Union of India, 2021 SCC OnLine SC 266, decided on 26.03.2021]


Appearances before the Court by:

For appellant: Advocate Prashant Bhushan,

For Union of India: Attorney General KK Venugopal

For ECI: Senior Advocate Rakesh Dwivedi

Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of Sanjib Banerjee, CJ. and Senthilkumar Ramamoorthy, J., requested all political parties and candidates, who hold meetings and go campaigning all over the State, to ensure that at every gathering masks are worn by all and that social distancing norms are maintained without exception.

The Court was hearing a petition filed under Article 226 of the Constitution of India praying for issue of Writ of Mandamus directing the State of Tamil Nadu and the State Chief Election Commissioner to prevent the election campaign in 234 constituencies in the State Assembly Election to be held next month. The petitioner had forwarded a representation on 2-3-2021 to such effect but the authorities did not respond to the petitioner or take any action in terms thereof.

The Court noted that: “It is no doubt a matter of concern that the Covid cases have been rising in the recent days and a second wave appears to be upon us.

However, as per the Court, since the assembly elections have been notified and the process is about to be completed by voting next month, it cannot be interfered with at this stage.

Accordingly, the High Court disposed of the instant petition by requesting all political parties and candidates, who hold meetings and go campaigning all over the State, to ensure that at every gathering masks are worn by all and that social distancing norms are maintained without exception. The Court further said that it may do well for the Election Commission to send a message in such regard to all candidates and in respect of all gatherings at campaign meetings and the like. [A. Jalaudeen v. State, WP (MD) No. 5766 of 2021, decided on 22-3-2021]

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., while addressing the concern with respect to a very shocking incident wherein a Lady IPS officer was harassed by the Special DGP, expressed that:

“…effectiveness of a criminal prosecution can be ensured only when it is completed at the earliest possible time and there is a certainty of punishment for the accused person, if found guilty.”

The present writ petition was filed for the issuance of a writ of mandamus directing CB-CID to effectively conduct the investigation, duly monitored by the Court and for a further direction to submit the periodical status report.

It has been stated that the State Government has taken up the issue very seriously and that the investigation is proceeding on the right lines and that no stone will be left unturned. Summons to Accused 1 and 2 have been issued under Section 41-A of the Code of Criminal Procedure, 1973.

Enquiry in the Internal Complaints Committee has also commenced parallelly and the developments were also reported before the Court.

Another development that was brought before the Court was that the Superintendent of Police, Chengalpet had already been suspended, pending the departmental inquiry.

High Court when passed the Orders on 01-03-2021, it had restrained the political parties and media from indulging in any discussion, touching upon the merits of the case, along with using or exchanging the names of the victim officer, the accused persons and the witnesses.

In view of the above restraint a representation was made before this Court to the effect that such protection need not be given to the accused persons and therefore, a request was made to modify the earlier direction and permit the use or exchange of name of the accused persons.

Bench while acknowledging the restraint shown by the political parties expressed that the present issue is not just confined to two individuals infact there is a larger issue that requires an effective solution and the interest of the entire police force in Tamil Nadu.

Reasoning for the restrain was that the Court did not want a parallel ‘Media Trial’, since the issue is quite sensitive and required to be handled with maturity.

State, as well as this Court, must maintain neutrality.

 Further, the High Court expressed that it is satisfied with the manner in which the investigation has progressed in this case and the Court hopes that it continues in the same spirit and the same gets completed as expeditiously as possible.

In view of the above discussion, Court held that the restraint imposed by the High Court shall continue. [Government of India, In Re.,  2021 SCC OnLine Mad 1118, decided on 12-03-2021]


Advocates who appeared before this Court:

For Respondents: Mr. N. Ramesh Central Government Senior Counsel for R 1

Mr. Jayaprakash Narayanan, State Government Pleader for R 2 & R 3

Mr. M. Mohamed Muzammil, Government Advocate (Crl. Side) for R 4 & R 5


Madras HC | Lady IPS Officer harassed by Special DGP. “Court is not going to be a mute spectator”: HC takes suo motu cognizance; decides to monitor investigation; issues directions

Op EdsOP. ED.

The criticism of judicial intervention on legislative design and policy prescription has been widely accepted for strengthening the institutional independence and accountability of the institution. But the recent outburst of the Chief Minister of Andhra Pradesh against Justice N.V. Ramana indicates a new low in the inter se relationship amongst the institutions in the country. The Chief Minister of Andhra Pradesh shot a letter to the Chief Justice alleging an attempt to destabilise the Government through judicial process by Justices of the High Court of Andhra Pradesh, allegedly aided by Justice N.V. Ramana.1

The Chief Minister has named some incumbent Judges and the Chief Justice of the High Court as directly or indirectly giving judgments and orders at the instigation of Justice Ramana.2 Notably, Justice N.V. Ramana will be taking over as the next Chief Justice being the second senior most Judge in the Supreme Court. Should the written complaint against the second senior most Judge iterates the genuine apprehension about the compromise on judicial process by a head of the Provincial Government or advances the political agenda to score against the foes in electoral politics?

The letter has not rolled the judicial process into action and not sought any relief from the Supreme Court. It has flagged the issue of inappropriateness of the judicial process by alleging favouritism for the leader of opposition of the State. Also, the nature of the allegation is such that it would damage the judiciary’s credibility as an institution. Further, it may become a referral point to encourage the political parties to play to the gallery by using judicial decisions to score a brownie point against opponents and reap the benefit in the election. The allegation levied in the letter can give armoury to the political parties to threaten the judicial dispensation of the country.

In light of this, the write-up examines the rationale of the constitutional regulation of the political parties. Judiciary must be insulated from unwarranted attacks from all the stakeholders of the society. For the same, the political parties have a critical role in securing the independence of judiciary. Though, the political parties are governed under a set of statutory laws on a range of issues such as the registration of political parties, election, disqualification of a member from the legislature, political symbols, etc. but such regulation cannot be a substitute of the constitutional regulation.3

Independence of judiciary and political parties

Judicial independence is a sine qua non for the thriving of democracy. Democratic values get nurtured with awaken citizenry and disciplined political parties. The Supreme Court has not only iterated the independence of the judiciary but also attributes participatory democracy as unalterable features of the Constitution.4 Enough measures are incorporated either under the constitutional scheme or statutory provisions to insulate the court from scandalous criticism and unsubstantiated attack from the individuals and the institutions. Article 505 mandates institutional independence, whereas functional independence is guaranteed under the Part V and Part VI (deal with Supreme Court and High Courts) of the Constitution.

The Supreme Court exercises enormous discretionary power in deciding hard cases when there is no constitutional text and history, and the pronouncements in past opinions do not speak clearly. In such cases, the judiciary’s independence weighs on the proprietary shown by the Judges in shaping the law without getting influenced by the considerations that are not warranted in law. If political parties continuously engage in building a false narrative against the judiciary, then the Judges, in their subconscious mind may pick the thread from the partisan attributes of politics.

On eliminating the external influences on the court, Thomas M. Keck remarked that: “What comes to the fore, rather, is the question of whether the justices are likely to act independently of the wishes of other power-holders. Whether we call their decisions legal or political, are the justices willing and able to challenge regime commitments?”6 For maintaining independence, Judges are insulated from the political process through a constitutional guarantee of their terms and conditions of the office. Everything that is needed to maintain independence of judiciary must be expected from the political parties. The Court must not succumb to the political pressure. The cherished goal of the judicial independence should not be hijacked on the trivial political considerations.

Constitutional regulation of political parties

Every player involved in good governance, directly or indirectly, must adhere to the constitutional idealism and nurture the cherished values incorporated therein. None should be allowed to bring in anarchy and absolutism. In this regard, a constitutional mandate plays a constructive role in limiting all the players’ power. There is no denial that the political parties make an enormous impact on the government’s functioning in the constitution’s parliamentary system. Political parties present electoral agenda before the people and implement it after occupying power through the ballot.

After the Second World War (WW II), political parties have progressively been regulated by the Constitutions of European democracies and received recognition as necessary institutional components of the democratic system.8 Political parties are acting as agents of citizens and acting as institutions that contribute to the balance of interests in society. Political parties enjoy enormous authority in a political system. Thus, through oversight and restrictions, there is a need to prevent any misuse of power by them. In his seminar work, Stone Sweet observed that new constitutionalism emphasises the role of judicial review and constitutional courts in assessing the constitutional legality of other legal norms and ensuring that political elites are acting upon democratic principles.9

Ideally, the constitutional regulation of political parties must be clearly spelled out in the text of the Constitution. But such absence from the text should not be a reason to leave the matter to be addressed by parliamentarians when the action of the political parties is thwarting the hard-earned values under the Constitution.

In recent times, there have been numerous instances of criticising the judiciary’s functioning or the conduct of an individual Judge by the political parties that are based on convenience than a valid criticism to strengthen the institution10. One such instance is the letter released by the Chief Minister of Andhra Pradesh, who himself faces severe charges of corruption, in the public domain which has dented the credibility of judiciary and shaken the faith of the people. The strength of judiciary lies on the confidence reposed by the people. The judiciary communicates its commitment towards constitutional goals through reasoned judgment. It does not speak through any other medium other than the written judgment. It is desirable to raise the issues of legal nature against the member of the judiciary so that adequate redressal within the legally tenable mechanism is achieved. If the nature of allegation against the Judges by the political parties does not conform to legally measurably standards then the parties must not be allowed to breach the constitutional proprietary which legitimises the action of all the institutions that shape the destiny of the country.

Political parties represent varied ideology which gets accepted or rejected during election and ensures representation of conflicting view on the floor of the house. Parliament offers a balance of power that guarantees accountability of the Government to the electorates who represents their view through political parties. Political parties must comply with constitutionally entrenched standards so that their activity could be reviewed by the court.

The determinative role played by the political parties in setting the agenda of the Government attracts the observation made by the Court in State (NCT of Delhi) v. Union of India11 (2018) wherein it was stated that: The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realisation of their constitutional responsibility and sincere acceptance of the summon to be obeisant to the constitutional conscience with a sense of reawakening to the vision of the great living document so as to enable true blossoming of the constitutional ideals. The responsibilities lie with every “institutions of the nation life” to work towards the accomplishment of these ideals. Political parties are integral part of “the nation life” and drive the agenda of the elected government.

Way forward

Though the letter has not sought any relief from the office of the Chief Justice of India, it may be seen as an opportunity to address the conduct of political parties concerning other institutions of the State. The letter’s content narrates the prospect of drawing ulterior benefit by the political party, which plays a role in the Judges’ appointment while being in power. The Constitution should not only expect the commitment from the State’s traditional institutions i.e., the legislature, the executive, and the judiciary, but also from other institutions, such as political parties and multinational corporations, which facilitates in accomplishing the goals enshrined therein. Judicial accountability has been a matter of legal discourse, whereas the accountability of the political parties is evading the constitutional scrutiny since independence. The suggestion to constitutionally regulate the political parties will bring accountability and entrenchment in the State institutions. Such regulations will set the tenor of the judiciary’s criticism on unfounded/unsubstantiated ground by the political parties. As the Attorney General has correctly turned down the request to initiate a contempt petition against the Chief Minister, the letter should be seen as an attempt to compromise Judges’ individual independence and not merely an issue between two individuals holding higher constitutional offices.

To conclude, I would iterate the apprehension raised by Mr B.G. Kher, a member from Bombay in the Constituent Assembly, on spoilsport played by the political parties in achieving the constitutional goals after attaining independence. While congratulating the members of the Assembly to accomplish the task of framing the Constitution in a short span time for such a diversified country, he aptly remarked that:

In our anxiety to achieve our dreams of equality, of liberty and fraternity and social justice it us not lose sight of the fact that even the attainment of these great things is possible if we do not collapse in the beginning of our new life and the whole machine is not wrecked either through ignorance or through wickedness. There are political parties who are anxious to create a chaos in the country because they believe that in that way alone and through violence alone, they can achieve the fulfilment of their dreams.12

Let us ensure that the political parties do not disturb the progress made in the last seven decades in achieving the constitutional goals with the resolute support of the citizens of the country.


† Associate Professor, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur, e-mail: uday@iitkgp.ac.in.

1 See Bhadra Sinha and Rishika Sadam, ‘‘Terrorising Judiciary, Bench-Hunting” — How Andhra CMs charges against SC Judge are being seen, 11-10-2020, available at <https://theprint.in/judiciary/terrorising-judiciary-bench-hunting-how-andhra-cms-charges-against-sc-judge-are-being-seen/521532/>.

2 Upendra Baxi, Andhra CM Letter to CJI Alleging Wrongdoing by HC is a first. SC must Settle Matter Expeditiously, 2-11-2020, available at <https://indianexpress.com/article/opinion/columns/andhra-pradesh-cm-cji-jagan-mohan-reddy-n-v-ramana-6912795/>.

3 In pursuant to the constitutional mandate, the Election Commission has notified the Election Symbols (Reservation and Allotment) Order, 1968 with an aim to regulate the matters related to the choice and allotment of the symbol. Political parties are registered and recognised as State or national parties under this Order. It aims to contain the unwarranted growth of the political parties as they play instrumental role in shaping the aspirations and channelise the support of the people. Notably, these regulations deal with the relationship between the political parties and electoral process. It fails to address the issues of internal democracy of a political party or accountability of its action before the writ court.

4 Dushyant Dave, The Unassailable Keywords for the Judiciary, 25-2-2020, available at <https://www.thehindu.com/opinion/lead/the-unassailable-keywords-for-the-judiciary/article30906480.ece>.

5 <http://www.scconline.com/DocumentLink/1bVtfM50>.

6 Thomas M. Keck, Party Politics or Judicial Independence? The Regime Politics Literature Hits the Law Schools, Law & Social Inquiry, Vol. 32, No. 2, 2007, pp. 511-544.

8 Gabriela Borz, Justifying the Constitutional Regulation of Political Parties: A Framework for Analysis, May 2016, available at <https://www.researchgate.net/publication/303444982_Justifying_the_constitutional_regulation_of_political_parties_A_framework_for_analysis>.

9 Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe, Oxford University Press, Oxford (2000); ibid.

10 For instance, Justice Arun Mishra has praised the Prime Minister, Mr Narendra Modi, in an international judicial conference was criticised by media and the Supreme Court Bar Association. See, <https://www.thehindu.com/news/national/bar-association-dismayed-at-justice-arun-mishras-praise-of-pm-modi/article30922443.ece>; non-disclosure of the author of the judgment in Ayodhya case invited criticism on account of accountability and transparency in the judicial process, see, S.R. Sarkar, India’s Per Curiam, <https://www.epw.in/journal/2020/41/commentary/indias-first-curiam.html>.

11 (2018) 8 SCC 501 : 2018 SCC OnLine SC 661.

12 Constituent Assembly of India Debates (18-11-1949), available at <http://loksabhaph.nic.in/writereaddata/cadebatefiles/C18111949.html>.

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Suresh Chandra (Information Commissioner) observed that disclosure of the names of the donors and donees of electoral bonds from books of accounts may be in contravention of Section 8(1)(e) and (j) of the RTI Act.

Facts of the Case

The appellant filed an application under the Right to Information Act, 2005 before the Central Public Information Officer, State Bank of India seeking the following information:

  • Furnish me (Yearwise from 2017 to 2018) the relevant portion of Statutory Report/Audit Report/any other report/certificates submitted by Chartered Accountants relating to Electoral Bonds from the books of accounts of SBI.
  • Guidelines, Circulars, Notifications, Office Memorandum Rules and Regulations, Copy of Act etc. issued to Statutory Auditor i.e. to Chartered Accountants to conduct relating to certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Name and Designation of Officer who is supposed to issue Guidelines, Circulars, Notifications, Office Memorandum Rules and Regulations, Copy of Act relating to certification of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance by Statutory Report i.e. Chartered Accountants relating to Electoral Bonds.
  • Furnish me (Yearwise from 2017 to 2018) relevant portion Accounting Standards, Guidance Notes applicable to conduct the certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Whether the details of Donor and Donee are available to Chartered Accountants relating to Electoral Bonds while certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Details of Donor and Donee made available to Chartered Accountants relating to Electoral Bonds while certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Details of Donor and Donee of Electoral Bonds from the books of accounts of (a) SBI Mumbai Main Branch Code 00300 (b) SBI Chennai Main Branch Code 00800 (c) SBI Kolkata Main Branch Code 00001 d) SBI New Delhi Main Branch Code 00691.
  • Letter written by Election Commission to The Secretary, Legislature Department Ministry of Law and Justice, Shastri Bhavan New Delhi relating to Electoral Bonds and its impact on Transparency, corruption in India.
  • Details/Records, Correspondence and the impact of certain amendments in the Income Tax Act, the Representation of the People Act 1951 and the Companies Act 2013 to introduce/issue Electoral Bonds for funding political parties of Transparency, corruption in India.
  • Telephone No. and Email ID of CPIO and Appellate Authority as per Official Memorandum of Det of Personnel and Training available on www.rti.gov.in>Circulars.

Dissatisfied with the response, the instant second appeal was filed before this Commission.

Appellant submitted that CPIO’s response was wrong, incomplete and misleading.

Further, the appellant pleaded that the SBI was supposed to uphold public interest and not the interest of political parties and that the SBI was not in fiduciary capacity with any political party and hence had no legal duty to maximize the benefit of any public sector or private sector bank; there was no relationship of “trust” between them.

Adding to the above, appellant requested the Commission to direct the CPIO to provide the complete information and take necessary action as per Section 20(1) of the RTI Act.

With respect to point nos. 6 and 7 of the RTI application it was stated that the information in respect to those points was exempted under Section 8(1)(e) and (j) of RTI Act; information in respect of point no. 11 of the RTI application was not covered within the definition of “information” under Section 2 (f) of RTI Act and no link was maintained in respect of point no. 12 of the RTI Application.

The FAA held that the information relating to electoral bonds issued to various political parties sought by the appellant was held by the bank in fiduciary capacity and hence was denied to the appellant.

Decision

Commission of perusal of the facts and circumstances observed that the respondent revisited the RTI application and reiterated its earlier stand in respect of pint nos 6 and 7 of RTI application that disclosure of the information was exempted under the provisions of Section 8(1)(e) and (j) of the RTI Act.

Bench upheld the respondent’s contention that the disclosure of the names of the donors and donees of electoral bonds from books of accounts may be in contravention of Section 8(1)(e) and (j) of the RTI Act.

While parting with order, Commission stated that there appeared no larger public interest overriding the right to privacy of the concerned donor and donees.

Hence, the appeal was dismissed. [Vihar Durve v. CPIO, SBI; 2020 SCC OnLine CIC 1327; decided on 21-12-2020]

Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and V. Velumani, JJ., while addressing the present petition observed that,

“Indian Democracy should not be tainted by criminals.”

“…it is seen that some of the criminal elements are floating political parties on their own with the support of their religion or communities and the same is required to be prohibited.”

The instant petition has been filed by the wife of the detenu against the detention order passed against her husband as he got about 19 cases pending registered against him for various offences.

Amongst the 19 pending cases, one has been registered under Section 102 of Penal Code, 1860, another for the offence under Section 307 of IPC, three cases for the offence of dacoity and 1 under NDPS Act and so on.

In view of the above-stated facts, Court questioned the respondent as to why the investigation has not been properly done and charge sheets are not filed even for the case pending from the year 2009 and directed to file a report regarding the stages of investigation in the cases registered against the detenu as well as the details of pending trial cases.

Respondents stated that out of the 19 cases, detenu has been acquitted only in one case.

Criminal Elements in Puducherry |Political Parties

The media reports make it evident that criminal elements in Puducherry have a close connection and support of political parties.

Political parties are having criminals as their members and also office-bearers.

It is brought to the notice of this Court that many cases are relating to inter-gang rivalries and country-made bombs are used to murder the opposite gang members. In total 5 cases, country-made bombs were hurled by the detenu and his associated.

Further, the court noted that charge sheets have been filed only in two cases in which offences under the Explosives Substances Act, 1908 have been invoked.

The case wherein double-barrel country made gun was used, no charge sheet has been filed.

Detenu and his associates are said to have used country-made bombs for murdering “Velazhagan” on 19-04-2017 and a case was registered under Section 302 IPC and 3 of Explosive Substances Act, 1908 and thereafter the case was transferred to CBCID, Puducherry.

The case for the above-said offence was registered in the year 2017, the sanction for prosecution under the Explosives Substances Act was not granted by the Government.  Only after this Court questioned the attitude of the respondents, the government had granted the sanction last week.

In view of the above-stated position, Court is justified to observe that three years delay in granting sanction for the case registered in the year 2017 is only due to political support enjoyed by the accused.

Even in the 2015 case, the investigation has not gotten over for the past 5 years.

Clout with Political Parties

The above stated would speak about the accused’s clout with political parties, especially ruling parties and police.

Lethargic attitude of the Police

Not filing charge sheet would only show how the police has been lethargic even in the cases involving heinous criminals that too murders by using country-made bombs.

It is reported in media that even some of the Ministers and Legislators are being given security by rowdy gangs.

Safety of people jeopardised

There seems to be a syndicate between the police force, political leaders and rowdy gangs and hence, the safety and security of the people are jeopardised.

Decriminalization of Politics

It has also been reported by media that persons with criminal background are becoming policymakers and the same has to be prevented alongwith cleansing of the system.

The leaders should have a vision for decriminalization of politics.

In view of the above-stated vision, Central Government should come out with comprehensive legislation to prohibit persons with criminal background from contesting elections to Parliament, State legislature and Local Bodies as was observed by the Supreme Court’s Constitution Bench in Public Interest Foundation v. Union of India,(2019) 3 SCC 224.

In view of the above, the High Court directed the respondent to answer the following queries:

  • How many rowdy gangs are active in Puducherry as well as in other States?
  • How many persons with criminal background are accommodated by various political parties as top office bearers and District Secretaries and the details of the criminal cases registered against those persons and their position in the respective political party?
  • How many History sheets have been opened for the past ten years in Puducherry?
  • How many murders have been committed by Rowdy Gangs in Puducherry as well as in other states?
  • How many cases have been registered so far against the rowdies and what are all the stages of the said cases in Puducherry?
  • Whether witnesses in the said cases are threatened to turn hostile so as to get an acquittal in Puducherry?
  • How many years does it take for a criminal case, especially a murder case to get disposed of in Puducherry?
  • How many persons have been so far detained under the Goondas Act for the past ten years in Puducherry?
  • Whether Rowdy gangs are using illegal arms like Pistols etc., apart from using Explosive Substances?
  • Why not the Central Government enacted a law to prohibit candidates with criminal background contesting the elections to the Parliament as well as State legislatures as suggested by the Constitution Bench of the Supreme Court?
  • Why not the Puducherry Government enact a law like Maharashtra Control of Organized Crime Act, 1999 to control the criminal activities in Puducherry?

The matter is to be listed in 2 weeks. [Jamuna v. Government of India, 2020 SCC OnLine Mad 1828, decided on 13-08-2020]


Also Read:

Candidates with criminal antecedents| Parliament has exclusive jurisdiction to lay down disqualification for membership; Court cannot legislate: SC

Hot Off The PressNews

Supreme Court: The bench of L. Nageswara Rao and Deepak Gupta, JJ has held that the support to public causes by resorting to legitimate means of dissent like bandh, hartal etc. cannot deprive an organisation of its legitimate right of receiving foreign contribution. It said,

Refusing to declare Sections 5 (1) and 5 (4) of the Foreign Contribution (Regulation) Act, 2010 and Rules 3 (i), 3 (v) and 3 (vi) of the Foreign Contribution (Regulation) Rules, 2011 violative of Articles 14, 19 (1) (a), 19 (1) (c) and 21 of the Constitution of India, the bench said,

“It is clear from the provision itself that bandh, hartal, rasta roko etc., are treated as common methods of political action. Any organisation which supports the cause of a group of citizens agitating for their rights without a political goal or objective cannot be penalized by being declared as an organisation of a political nature.”

The Court explained that the purpose for which the statute prevents organisations of a political nature from receiving foreign funds is to ensure that the administration is not influenced by foreign funds. Prohibition from receiving foreign aid, either directly or indirectly, by those who are involved in active politics is to ensure that the values of a sovereign democratic republic are protected.

It, however, added that such of those voluntary organisations which have absolutely no connection with either party politics or active politics cannot be denied access to foreign contributions. Therefore, such of those organisations which are working for the social and economic welfare of the society cannot be brought within the purview of the Act or the Rules by enlarging the scope of the term ‘political interests’.

Hence, stating that it is only those organisations which have connection with active politics or take part in party politics, that are covered by Rule 3 (vi), the Court held,

“Any organisation which habitually engages itself in or employs common methods of political action like ‘bandh’ or ‘hartal’, ‘rasta roko’, ‘rail roko’ or ‘jail bharo’ in support of public causes can also be declared as an organisation of political nature, according to the guideline prescribed in Rule 3 (vi).”

[Indian Social Action Forum v. Union of India, Civil Appeal No.1510 of 2020, decided on 06.03.2020]

Case BriefsSupreme Court

Supreme Court:  In a major judgment today, a bench of RF Nariman and S. Ravindra Bhat, JJ has directed all political parties to upload on their website details of pending criminal cases against candidates contesting polls, noting that there has been an alarming increase in criminalisation of politics.

The Court said political parties will also have to upload reasons for selecting candidates with pending criminal cases on their website.

The Court was hearing the contempt petition which brought the Court’s attention to a disregard of the directions of a Constitution Bench of this Court in Public Interest Foundation v. Union of India, (2019) 3 SCC 224 which too cognisance of the increasing criminalisation of politics in India and the lack of information about such criminalisation amongst the citizenry and issued various directions in that regard.

It was brought to the Court’s notice that there has been an alarming increase in the incidence of criminals in politics. In 2004, 24% of the Members of Parliament had criminal cases pending against them; in 2009, that went up to 30%; in 2014 to 34%; and in 2019 as many as 43% of MPs had criminal cases pending against them. The Court, hence, issued the following directions:

1) 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 concerned Court, 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.

2) 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.

3) This information shall also be published in:

    • One local vernacular newspaper and one national newspaper;
    • On the official social media platforms of the political party, including Facebook & Twitter.

 4) These details shall be published within 48 hours of the selection of the candidate or not less than two weeks 4 before the first date for filing of nominations, whichever is earlier.

5) 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.

6) 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 this Court’s orders/directions.

[Rambabu Singh Thakur v. Sunil Arora, 2020 SCC OnLine SC 178, decided on 1302.2020]

Hot Off The PressNews

Registration of political parties is governed by the provisions of Section 29A of the Representation of the People Act, 1951. An association seeking registration under the said Section has to submit an application to the Commission within a period of 30 days following the date of its formation, as per the guidelines prescribed by the Commission in exercise of the powers conferred by Article 324 of the Constitution of India and Section 29A of the Representation of the People Act, 1951.

In order to enable applicants to track the status of the application, the Commission has launched a “Political Parties Registration Tracking Management System (PPRTMS)”.

The salient feature in the PPRTMS is that the applicant, who is applying for party registration from 1-01-2020 will be able to track the progress of his/her application and will get the status update through SMS and e-mail.  The status can be tracked through the Commission’s portal at the link https://pprtms.eci.gov.in/. The Commission in the month of December, 2019,  has amended the guidelines and issued a Press Note dated 02.12.2019 regarding registration of political party for the information of the general public.  The new guidelines have been put to effect from 01-01-2020.


Election Commission

[Press Release dt. 01-01-2020]

[Source: PIB]

Case BriefsHigh Courts

“Armed forces are apolitical and neutral stakeholder in the modern democracy. Defence Forces belong to everyone and are not an appendage of any political outfit.”

Madhya Pradesh High Court: The Division Bench of S.K. Seth, CJ. and Vijay Kumar Shukla, J. was hearing a public interest litigation (PIL) seeking quashing of conditions in the Model Code of Conduct (MCC), imposed by the Election Commission of India (ECI) on political parties, restricting them from using pictures of defence and military personnel in any advertisement, poster or any other campaign-related activities.

Petitioner, who claimed to be a member of the Aam Nagrik Mitra Foundation and Organization stated that he had filed the present PIL on his own, and not at the instance of any political outfit. His contention was that the ECI had no authority to impose restriction in the MCC on the political parties, while exercising its power of the superintendence and control of elections. It was averred that the condition contained in the MCC 2019 issued by the ECI for the recent Legislative Assembly Election and Lok Sabha Election 2019, was bad in law as “no harm is done if political parties during the political campaign, are allowed to discuss in the public, the military operation and act of soldiers.” Thus, the impugned condition was liable to be struck down as amounted to violation of freedom of speech and expression.

The Court in its order held that the ECI is a Constitutional Authority and Article 324 of the Constitution of India casts on it, a duty to ensure free and fair election to the legislative body at the Central and State level. Though the MCC has no statutory backing, it is a consensus-driven code arrived at, after consultation with all political parties to ensure free and fair elections, and to provide a level playing field for the candidates in the fray, which is the bedrock of democracy. It is a set of norms which has judicial recognition.

It was observed that army or defence personnel in service are not vote catching issues and therefore, it is vital to keep the army apolitical. “The Indian army is not a politicized force nor does it play any role in the politics and administration of the country. The democracy for all its wart and shortcomings is well entrenched in India, and executive control over the Olive Greens is firmly established. It is a reasonable restriction and does not violate the right of freedom of speech and expression.”

In view of the above, the petition was dismissed summarily for being devoid of any substance and merit.[Dr Mumtaj Ahmed Khan v. Election Commission of India, 2019 SCC OnLine MP 771, Order dated 01-05-2019]

Tribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): CIC has held that as the political parties have not appointed any CPIOs (Central Public Information Officers) against whom any action can be taken for non-implementation of an earlier order passed by CIC, it cannot impose penalty upon the political parties for the non-compliance. The Commission was hearing a complaint filed by an RTI activist who alleged non-compliance of an earlier order passed by CIC. In June, 2013 six national political parties including Bartiya Janata Party (BJP), Indian National Congress (INC), Nationalist Congress Party (NCP), Bahujan Samaj Party (BSP), Communist Party of India (CPI) and the Communist Party of India (Marxist) were held to be “public authorities” under the Act by CIC and it was also held that provisions of the Act would apply to them. Yet, despite not having challenged the said order, all six parties had refused to comply with the Act. “The Commission is not geared to handling situations such as the present instance where the respondents have disengaged from the process. The Commission, having declared the respondents to be public authorities, is unable to get them to function so,” CIC said in its order. However, CIC also added that as the earlier order was not challenged in any court, it is final and binding and the national political parties are “public authorities” under the RTI Act. The Commission also observed that penalties cannot be imposed on any leader or member of a party as they were not “government servants”. “It is felt that though the respondents have not taken any step towards compliance, the legal position is such that in this case imposition of penalty and award of compensation cannot be considered,” CIC noted. While observing that, “This unusual case of wilful non-compliance highlights the need to identify the legal gaps and lacunae in the implementation mechanism. An obvious conclusion is that in cases such as this, the Commission is bereft of the tools to get its orders complied with,” CIC asked the Department of Personnel and Training to fill in legal gaps and also noted that further action in this matter could be taken by the Union government or by courts. (Subhash Agarwal v. Indian National Congress, 2015 SCC OnLine CIC 604, decided on March 16, 2015