Sadhvi Pragya as BJP Candidate: How the SC Missed an Opportunity to Cleanse Politics

Her candidature is a lesson to the court that symbolic reforms are unlikely to deter candidates accused of heinous crimes.

New Delhi: Sadhvi Pragya Singh Thakur, a key accused in the 2008 Malegaon blast case is the Bharatiya Janata Party’s candidate against the Congress’s Digvijaya Singh. Thakur, who is now on bail, faces charges under the Unlawful Activities (Prevention) Act for conspiring and abetting a terror act, and also faces charges ranging from murder to criminal conspiracy.

The BJP could not have fielded her as a candidate had the Supreme Court last year not abandoned its responsibility to prevent those charged with heinous offences from becoming legislators. In Public Interest Foundation & Others v Union of India, a constitution bench of the court held on September 25 last year that parliament alone is competent to enact a law for the purpose. This, after the bench found that the concerns expressed by the petitioners are valid.

The bench, comprising the then Chief Justice of India, Dipak Misra and Justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, instead appealed to Parliament to make a law for this purpose on priority and issued a slew of directions to the Election Commission and the political parties to make the disclosure of the criminal antecedents of candidates contesting elections sufficient and clear to the voters, so that the latter could be warned not to vote the candidates, charged with serious offences.

The bench recommended that parliament bring out a strong law whereby it is mandatory for political parties to revoke the membership of persons against whom charges are framed in heinous and grievous offences and not to set up such persons in elections, both for parliament and state assemblies. “This, in our alternative 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”. By first admitting Pragya to the party, and later fielding her a candidate immediately, the BJP has ridiculed the  Supreme Court’s optimism, and naïveté.

The bench also issued the following directions on September 25 last year:

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 regard 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.

These directions, the bench made it clear, ought to be implemented in true letter and spirit and right earnestness in a bid to strengthen the democratic set-up. The bench held: “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… Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics.”

Pragya’s candidature only vindicates the petitioners’ concerns in this case, and shows that the Supreme Court’s judgment remains what it is: pious hope.

On March 29, the Supreme Court bench of Justices Nariman and Vineet Saran issued notice to the Centre and the EC on a plea seeking initiation of contempt proceedings for alleged violation of Supreme Court’s September 25, 2018 judgment. Interestingly, the plea was filed by BJP member and public interest litigation advocate Ashwini Kumar Upadhyay, who too was a petitioner in the Public Interest Foundation case. On October 10, 2018, the EC had issued a notification revising Form-26 seeking fresh information from candidates on their criminal antecedents. Upadhyay alleged that the EC neither amended the Election Symbol Order, 1968 nor the Model Code of Conduct (MCC), leaving the notification an empty formality.

Upadhyay further submitted that due to the EC’s less than pro-active role, the candidates published details about their criminal antecedents in newspapers with poor circulation, and on news channels which are not very popular, or at odd hours, not considered as prime time.  Besides, he alleged that political parties did not comply with the Supreme Court’s judgment by publishing details of criminal antecedents of candidates on their websites, or in newspapers and on television channels during the recent assembly elections, but the EC looked the other way.

The contempt petition filed by Upadhyay is coming up for hearing before the Supreme Court on April 22.

Even as the court prepares itself to haul up the EC and the political parties for their non-compliance with judicial directives, it should introspect over whether the petitioner’s plea for a direction to the EC to deprive party symbols to candidates with serious criminal charges could have made better sense than the kind of toothless directions which they issued to ensure pre-election publicity about criminal antecedents of candidates in the media.  It is naïve to imagine that Bhopal’s voters wouldn’t know of Pragya’s criminal antecedents but for the compliance with the Supreme Court’s directives by the party and the candidate herself to ensure better disclosure.

The Supreme Court missed an opportunity to outrightly reject the Centre’s outrageous contention during the hearing of this case that political parties have a right to be associated with MPs with criminal charges under Article 19(1)(c) of the constitution, guaranteeing the fundamental right to form association. The question which the court ought to have posed to itself is whether political parties fighting elections should have the freedom to be associated with those charged with heinous offences.

Clearly, the Centre had the likelihood of the ruling party fielding Pragya as its candidate in mind when it resisted the Supreme Court’s modest direction that parties declare the criminal antecedents of their candidates on their websites on the grounds that it would have serious impact on her privacy. Although the bench implicitly rejected this contention by ruling otherwise, Pragya’s candidature is a lesson to the court that symbolic reforms are unlikely to deter such candidates.