[Bihar Elections] We don't buy 'sorry'; cannot tolerate callous attitude: SC on failure to disclose electoral candidates' criminal antecedents

The Supreme Court on Tuesday expressed disapproval over the failure on the part of several political parties to disclose and publicize the criminal antecedents of the candidates they had fielded for the Bihar Assembly elections last year, in derogation of orders passed by the Court on February 13, 2020.

The Bench of Justices RF Nariman and BR Gavai was dealing with contempt petitions filed by Brajesh Singh and Manish Kumar, who alleged that the Court’s earlier directions passed on February 13, 2020, were not complied with during the Bihar Assembly Elections.

Detailed arguments on the issue were made last Thursday and today by Amicus Curiae KV Viswanathan and senior advocates Harish Salve and Vikas Singh for the Election Commission, apart from submissions for the petitioner, Brajesh Singh. Senior Advocate Rajiv Dutta made arguments from Manish Singh. Manish Singh's plea was, however, detagged from the case do be dealt with individually.

In the hearing today, the Court also invited submissions by ten political parties that had fielded candidates with criminal antecedents during the Bihar elections. Among the counsel who appeared were senior advocate PV Surendranath for the CPI (M), Senior Advocate Dinesh Dwivedi for the Bahujan Samaj Party, Senior Advocate Kapil Sibal, advocate Nishanth Patil for INC and advocate Ajay Vikram Singh for Rashtriya Janata Dal.

Cavalier and callous attitude of political parties cannot be tolerated: Court

The Court was told that while the other eight parties have complied with the Court's 2020 directions to some extent, albeit with some issues that required ironing out, two parties have completely flouted these directions during the Bihar elections i.e. the Communist Party of India (Marxist) (CPI (M)) and the Nationalist Congress Party (NCP).

Whereas CPI (M) was stated to have fielded four candidates with criminal antecedents, the NCP was stated to have fielded 26 such candidates.

Senior advocate Surendranath for the CPI (M) and the counsel for the NCP both tendered unconditional apologies today.

"We don't buy this sorry, our orders have to be followed. This cavalier and callous attitude cannot be tolerated," Justice Nariman responded.

"We really regret it, it should not have happened. We are also of the view that there should not be criminalization of politics," Surendranath told the Court.

"You are of the same view but you don't bother to follow our directions?", the Court asked in turn.

For the NCP, it was submitted, "I also cannot say much except to tender an unconditional apology ... Reason was that our State unit was dissolved. We had communicated the ECI and court order on March 9 ... Ultimately all the candidates lost the election."

"That is neither here nor there", the Court observed.

Senior advocate Sibal weighed in that while the ECI has signifcant powers under Section Section 16A of the Election Symbols (Reservation and Allotment) Order, 1968, it has to be carefully exercised so it does not affect the polity of the country.

"If you give a hammer in their (ECI's) hands, it could be misused ... Many leaders have false cases foisted on them. If they are convicted, there are already provisions (to disqualify them) ... Please don't exercise it (Section 16A) in this manner, it will create a lot of problems", he argued

The Court responded that it will consider these concerns while passing its order and asked Sibal to file written submissions on what action can be taken against errant political parties in such matters.

Other highlights of the hearing today

Referring to the numbers of candidates with criminal antecedents that were fielded by political parties during the Bihar elections, Vikas Singh (for the ECI), argued,

"All (parties) have similar answers, 'he is a social worker' etc. When a charge sheet for rape is filed, can a political party take a stand that it is justified, or that it is a false case? ... Unfortunately, in spite of the requirement of bringing out criminal antecedents in the public domain, criminalization of politics has only gone up."

Salve suggested that the Court may take action against candidates found to have flouted its orders, while highlighting that freezing of the election symbol under Section 16A of the Election Symbols (Reservation and Allotment) Order, 1968 is not the only course of action.

Notably, Section 16A deals with the power of the ECI "to suspend or withdraw recognition of a recognised political party for its failure to observe Model Code of Conduct or follow lawful directions and instructions of the Commission."

"Parties who are found in egregious violation, the ECI should take action. The absolute death knell would be freezing the symbol ... This time, if the Court finds did not file in time, did not file correct disclosures, some action may be taken .... In all cases, Section 16A is not called for. For the present, the Court may censure them and see how it pans out," Salve submitted.

Salve added that the political parties should be made to understand that the Court's directions must be complied with.

"There are larger concerns of many parties being thrown out of the political arena. They all have the same problems. This value system may have to be pushed down their throat. They may have to be made to understand that this is not optional ... The change also has to come from the heart of the people .. What we all want to see is that change would come to the system. And it will come. We have come this far", he submitted.

"What we are sure about is that the legislative branch is certainly not going to take this forward in the future. That much is certain to me," Justice Nariman observed, in turn.

On his part, amicus curiae KV Viswanathan urged the Court not to dilute the powers conferred on the ECI under Section 16A. He contended that without the same, there would be no deterrent effect and political parties may violate the Court's directions with impunity.

"What is wrong if the provision operates if there is evidence to show if the party is behind it?", he argued.

"How do you find if it has been done by the party or only the candidate?" the Court asked, in turn.

"If evidence is there (that the political party is behind the misconduct) - if a resolution passed by the party and video recording is available? I am testing the scope of the provision. If it is available, the argument is only with respect to proportionality ... All that the Court said is to submit the forms (disclosing criminal antecedents of candidates) and give publicity. If this deterrent is not there, they will simply violate it. How else to enforce all this? The least to do is suspend them," Viswananthan responded.

He added that any misuse of Section 16A by the ECI can be interfered with by the Court through judicial review.

"Why would the ECI use Section 16A in a whimsical manner? If they do, the Court can interfere ... What your Lordships asked is not something extraordinary (to disclose criminal antecedents) ... It is not a huge ask. This is part of the public's right to know. If this deterrent is not there, imagine the consequences. It will be honored in its breach. The small beginning that your Lordships made will be defeated.", he contended.

Viswanathan also urged the Court to pass some form of sanction against CPI (M) and NCP for their failure to abide by the Court's February 2020 directions in the Bihar elections. Since it was their first breach, he suggested that the Court order them to pay a monetary penalty and publish a full page apology.

Agreeing with the suggestion, Salve added,

"If sanction is made, let it not be Re 1, so people don't have photos taken with Re 1 handed over and a smile on their face."

As the hearing drew to a close, senior advocate Surendranath appealed to the Court,

"One aspect, as far as CPI (M), this (the court proceedings) itself is a deterrent. Court may not pass any stringent order for the time being. From this proceeding itself, they understand the seriousness. I unconditionally apologize."

The Court allowed all parties seeking to make written submissions to file the same

Submissions made on July 15

In Thursday's hearing, the Court was told by the Amicus that the CPI (M) and the NCP have admitted that they did not comply with the Supreme Court’s February 2020 order during the Bihar elections, the other parties have violated the order in spirit.

In the Bahujan Samaj Party’s (BSP) case, however, it was noted that a candidate made a false declaration was later expelled. Senior advocate Viswanathan suggested that this could be a course for all parties to follow.

He proposed that political parties found to have either not disclosed or underplayed the seriousness of the criminal antecedents of the candidates should be directed to publish full page apologies in widely circulated newspapers for such misrepresentation.

Referring to the violations that have already taken place, Viswanathan added,

“The ECI did nothing. I know it is a Constitutional body that has other work. But when your Lordships had given a task, they ought to have created a separate cell to carry out the orders.”

Among other suggestions, Viswanathan proposed that a direction be issued so that political parties are required to publish the criminal antecedents of the candidates they field in the home page of their website so that it is prominently displayed. He added that the election commission may also develop an app through which the public may get such information.

Appearing for the ECI, Singh submitted that a compliance report has been filed by the body in February this year. He added that the February 13 order itself was passed with the ECI’s concurrence.

“On February 13, 2020, this order was passed on my suggestion as ECI counsel”, he said.

However, acknowledging that many parties had since acted to flout the order, Singh added that the ECI’s hopes were completely belied.

All the same, he argued that the present contempt plea was filed only for the sake of publicity, given that it was filed on November 6, 2020, before the declaration of the Bihar election result.

The contention was disputed by petitioner Brajesh Singh, who was assured by the Court, in turn, that it is not doubting his bona fides.