On February 13, in a short four-page order, the Supreme Court asked political parties to explain why they choose candidates with criminal antecedents over those without a record.
The verdict was passed in a contempt case that emerged out of a 2019 ruling in Public Interest Foundation and Others. v. Union of India. In that judgement, the Supreme Court refused to accept a prayer that wanted persons with criminal backgrounds to be barred from contesting elections. The court said expanding disqualification provisions should be left to the Parliament and the court cannot enter the domain of legislation.
However, the court did issue a slew of guidelines making it mandatory for political parties to give wide publicity to the criminal cases faced by their candidates. The contempt petition was filed alleging that these guidelines have not been followed properly.
In its judgement last week, a two-judge bench consisting of Justices RF Nariman and S Ravindra Bhat expanded these guidelines invoking the court’s powers to issue orders to do complete justice under Article 142 of the Constitution.
The court put in place six additional guidelines over and above those prescribed in the 2019 judgement. The most important of these is the direction to political parties to explain why they chose a candidate with criminal background over probables with no criminal cases against them.
The court said the reasons for the selection “shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere ‘winnability’ at the polls”. This explanation has to be in newspapers and social media “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.”
The court then directed the Election Commission to bring to its notice if any political party fails to submit a compliance report fulfilling the stipulations provided in the guidelines.
Effects of the order
The main question that arises is what would be the outcome if a political party selects a candidate with criminal background and fails to file the compliance report?
Contempt proceedings will be initiated against the political party for failing to adhere to the guidelines. But will the selected candidate be debarred from contesting?
The answer is no. The court has not said in the judgement that such a candidate would be disqualified since it has already held that it cannot expand the disqualification provisions to include criminal antecedent as a basis.
If the nomination of the candidate is accepted, the Supreme Court is in no position to interfere in the election process. Usually, violations would be brought to the court after the election process is over through an election petition.
It remains to be seen what impact the guidelines asking for an explanation on the selection of a particular candidate will have on the electoral scene. In India, elections are most often fought between parties with prominent faces as candidates. The idea of the ruling could be that voters would begin to think harder about the political system if they knew that a party chose a tainted leader even though there was a clean one at hand. Thus, it becomes an exercise of creating awareness on the impact of money and muscle power on the system and would hopefully discourage parties from choosing dubious candidates.
However, it is disconcerting that the court does not follow the standards of transparency that it demands from others.
Judges to the Supreme Court and the High Courts are selected through the collegium system. It is the Supreme Court collegium consisting of five senior-most judges that decides on candidates for the bench.
The court does not provide any concrete reasons for why it chose one candidate over another to appoint them as judges in the Supreme Court or the High Courts. A typical resolution of the Supreme Court collegium reads as follows:
Of course, the collegium never appoints people with criminal background as judges and in that sense the two situations are different. But it should be noted that cases of sitting judges facing allegations of corruption are not unheard of. For instance. cently, former Chief Justice of India Ranjan Gogoi allowed the Central Bureau of Investigation to file a first information report against Allahabad High Court judge Narayan Shukla in a bribery scandal involving medical colleges. Gogoi’s predecessor Dipak Misra had recommended impeachment proceedings against the judge.
In 2009, Parliament moved to impeach former Calcutta High Court judge Soumitra Sen over allegations of financial misappropriation. He resigned before the impeachment process could be completed in the Lok Sabha. Sen was found guilty by the Rajya Sabha of swindling Rs 33.23 lakh as a court-appointed receiver when he was a lawyer.
Thus, the underlying principle in selection of candidates, whether it be in politics or judiciary, has to be transparency. The Supreme Court, however, has been reluctant to put out in public why it chooses one candidate over another for elevation, only stating that the selected candidate was the right one given the material before it. This applies to transfers as well, where interests of better administration is cited without showing what that necessity actually was. Last September, the collegium put out a statement after criticism over some transfers that it made the decisions for “cogent reasons” without explaining what those reasons were.
This position has led to several controversies. Last year, Supreme Court judge Sanjay Kishan Kaul flagged collegium appointments that ignored seniority. In a letter to Gogoi, he had quoted the case of Bombay High Court judge Pradeep Nandrajog, who was sidestepped in favour of judges junior to him for elevation. Media reports had suggested that Nandrajog was viewed favourably by the collegium in December 2018, but was ignored when recommendations were eventually made by a new collegium.
Apart from appointments, it is also to be noted that some judges of the Supreme Court have not declared their assets, a voluntary procedure adopted to strengthen transparency.