Bihar Poll Candidacy: 'Parties Need to Understand That Compliance Is Not Optional', EC Tells SC

The SC was hearing the EC on how to 'punish' the political parties that had not fully complied with the February 13, 2020 judgment asking them to publish details of pending criminal cases against their candidates.

New Delhi: The Election Commission (EC) has told the Supreme Court that political parties need to understand that complying with the apex court’s February 13, 2020 judgment is not optional, and that that there is the final action under 16A of taking away the symbol, LiveLaw reported.

As per the apex court’s judgment last year, political parties have to mandatorily publish all details regarding pending criminal cases against their chosen candidates, not only in local newspapers, but also on their respective party websites and social media handles. The top court passed such directions to compel political parties to “explain” why such candidates are given tickets, and also as to why other individuals without criminal antecedents could not be selected as candidates.

A bench of Justices Rohinton Nariman and B.R. Gavai was hearing the EC on how to “punish” the political parties that had not fully complied with the February 13, 2020 judgment, the report said. The court was hearing a contempt petition filed by advocate Brajesh Singh, which arose from the Bihar legislative assembly election of 2020.

The petition said that all of the parties contesting the Bihar elections deliberately defied the orders of the court by choosing to publish their criminal antecedents in only one newspaper which did not have wide circulation in the state as compared to other prominent newspapers.

The Hindu reported, citing the petition, that the Rashtriya Janata Dal (RJD) was the biggest defaulter, with 103 candidates having criminal antecedents. The ruling Janata Dal (United) fielded 56 candidates involved in criminal cases.

Senior advocate Vikas Singh, representing the EC, submitted that the Nationalist Congress Party (NCP), a constituent of the ruling Maharashtra coalition, fielded 26 candidates with criminal antecedents and the Communist Party of India (Marxist) fielded four candidates with criminal pasts.

Also read: New Union Cabinet: 42% Ministers Have Declared Criminal Cases, 90% Are Crorepatis

According to LiveLaw, Singh told the court that political parties are deciding the names of the candidates on the last date of nomination, and that the names are logged in without any discussion and then routine affidavits are filed. “There has to be some sort of a churning exercise. You have to have some clarity as to the candidates. What is happening today is that it is the party which remains in the election and the candidates become inconsequential”, he said.

“The cases against candidates are of rape, murder etc. Can a political party take a stand that this was the first case when a chargesheet has been filed? It can’t be. For a political party to say that the charges are not made out when a judge has applied his mind and framed a charge? I can understand if you formed a part of an assembly and committed an offence while the election is ongoing, but these are offences which the political party cannot justify! Despite this requirement of bringing out the criminal antecedents in public domain, the criminalisation has already gone up. It has not gone down 1%. In every successive election, the people are larger in number. The disclosure requirement has not worked. Every candidate is declared on the last day or one day before! That is why we need the direction of two weeks before!”  Singh told the court.

Senior advocate Harish Salve, for the EC, told the court: “If parties have not filed affidavits in time or have made insufficient disclosures, Your Lordships may reign them in. If there is egregious default by the parties, then the EC has to take action. The final action is to freeze the symbols if the compliance is refused or if the compliance is a sham. But there are also concerns about too many parties being thrown out of the political arena. For the symbols to be frozen if you trip a wire, that would require a change in the real polity of the country. For that, it is necessary to see the problems and have a wider debate.”

He further added that the political parties have to be made to understand that compliance is not optional and that there is the final action under 16A of taking away the symbol. Rule 16A of the Election Symbols (Reservation and Allotment) Order of 1968 empowers the EC to either suspend or withdraw the recognition of political parties that violate lawful directions.