BRAJESH SINGH versus SUNIL ARORA & ORS. on 10 August 2021

SUPREME COURT REPORTS

[2021] 7 S.C.R.

BRAJESH SINGH

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v.

SUNIL ARORA & ORS.

(Contempt Petition (Civil) No. 656 of 2020)

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AUGUST 10, 2021

[ROHINTON FALI NARIMAN AND B. R. GAVAI, JJ.]

Contempt of Court: Contempt petition – Issue as regardspublication of criminal antecedents of the contesting candidates –Contempt petition alleging violation of order dated 13.02.2020Cpassed in **Rambabu Singh Thakur’s case – Allegation that therehas been wilful disobedience of Court’s order by various politicalparties during the Bihar Assembly Elections-2020, as regardspublication and declaration of criminal antecedents by variouspolitical parties of their candidates – Prior thereto, directions haveDbeen issued by the Constitution Bench of this Court in *PublicInterest Foundation’s case to the effect that the contesting candidateand the political party were obligated to inform about the criminalantecedents of the candidates – In view of the disregard of the saiddirections, as a sequel to this judgment, order dated 13.02.2020was passed in **Rambabu Singh Thakur’s case in connection withEdisclosure of information of candidates with criminal antecedents– Pursuant thereto, Election Commission of India-ECI issued letterto all political parties asking them to comply with the directions ofthe Supreme Court, and also issued a new Form C-7 and C-8 inwhich the political parties were to publish the reason for selectionFof candidates with criminal antecedents, and thereafter, report itscompliance within 72 hours of selection of the candidate –Thereafter, another letter issued by ECI prescribing timelines forpublication of information regarding criminal antecedents –However, the political parties flouting the said directions and fieldingpersons whose criminal antecedents show that they have beenGcharge-sheeted or charged with serious offences – Held: Thoughthe political parties-Janata Dal United, Rashtriya Janta Dal, LokJanshakti Party, Indian National Congress, Bharatiya Janata Party,and Communist Party of India held guilty for committing contemptof the Order dated 13.02.2020, however since these were the firstH

elections conducted after issuance of the directions, a lenient viewis taken and they are directed to deposit INR 1 Lakh each – Asregards Communist Party of India (Marxist) and NationalistCongress Party since they did not at all comply with the directionsissued by this Court, they are directed to deposit INR 5 Lakh in theaccount created by the ECI – Furthermore, ECI not held guilty ofcommitting contempt of Order dated 13.02.2020 since they broughtto notice of this Court the flouting of the directions contained in thesaid order – Issuance of further directions to make the right ofinformation of a voter more effective and meaningful-politicalparties to publish information regarding criminal antecedents ofcandidates on the homepage of their websites, ECI directed to createa dedicated mobile application, ECI directed to carry out anextensive awareness campaign and to create a fund for this purpose,ECI to create compliance monitor cell, political party to publishcriminal antecedents of the candidate within 48 hours of the selectionof the candidate, and in case of non-compliance, ECI to bring it tothe notice of this Court – Representation of People Act, 1951 – ss.8, 30, 33A, 33B – Election Symbols (Reservation and Allotment)Order, 1968 – Clause 16-A.

Representation of People Act, 1951: s. 30 – Appointment ofdates for nominations, etc – Explained.

Election laws: Constitution Bench decision *Public InterestFoundation’s case pertaining to furnishing of complete informationabout the criminal antecedents of the candidates – Elucidated.

Constitution of India: Criminalisation in the Indian politicalsystem – Menace of – Held: For purity of political system, personswith criminal antecedents and who are involved in criminalisationof political system not to be permitted to be the law-makers –Necessary amendments to be made so that the involvement of personswith criminal antecedents in polity is prohibited – In view ofseparation of powers, this Court cannot transgress into the areareserved for the legislature – In view thereof, appeal to theconscience of the law-makers to weed out the malignancy ofcriminalisation in politics.

Disposing of the Contempt Petition (C) 656/2020 and M.A(Diary No. 2680/2021), the Court AB

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AHELD: 1.1 Vide directions in the Order dated 13.02.2020in **Rambabu Singh Thakur v. Sunil Arora and Ors., in paragraph4.1, this Court had directed the political parties to upload on theirwebsites detailed information regarding individuals with pendingcriminal cases who have been selected as candidates, along withthe reasons for such selection, and also as to why other individualsBwithout criminal antecedents could not be selected as candidates.Further, through paragraph 4.2 of the said Oder, it was directedthat the reasons as to the selection shall be with reference toqualifications, achievements and merits of the candidateconcerned and not mere “winnability” at the polls. The saidCdirections have been given in furtherance of the directions alreadygiven by the Constitution Bench in *Public Interest Foundation’scase, so as to enable the voter to have an informed choice whileexercising his right to vote. By the said direction, what has beendirected is only to provide information to the voter so that hisright to have information as to why a particular political party hasDchosen a candidate having criminal antecedents and as to why apolitical party has not chosen a candidate without criminalantecedents, is effectively guaranteed. Such a requirement wouldonly enable the voter to have complete information and exercisehis right to vote effectively. [Para 25, 26][927-A-D]E

1.2 There are various factors which a political party takesinto consideration while selecting a candidate. As a citizen whopossesses requisite qualifications and is not disqualified underany of the provisions of the Constitution or the Act of 1951, has aright to contest an election and a voter has a right to vote aFcandidate of his choice, a political party would also have thediscretion to choose a candidate of its choice. [Para 27][927-D-E]

1.3 A possibility of a rival implicating someone falsely, as apolitical vendetta, is not unknown in the country. Take a situationGwherein otherwise a highly meritorious candidate has been falselyimplicated in some criminal matters by his rivals. As against this,a person who has a clean record, but totally unknown to theelectorate in that area, applies for a ticket of a political party. Insuch a situation, a political party can always give a reason that a H

candidate with criminal antecedents is found to be more suitablethan a person who does not have criminal antecedents. Thereasons could be many. If the political party is of the prima facieopinion that such a candidate has been falsely implicated, it cansay so. What has been provided in paragraph 4.2 of the Orderdated 13.02.2020 is that the reasons should not be with regard to“mere winnability at the polls”. As such, though a political partywould have the freedom of selecting candidates of its choice,though having criminal antecedents, what would be required isto give reasons in support of such selection, and the reasonscould be dependent on various factors including qualifications,achievements and other merits. Such a direction is only to enablea voter to have all the necessary information, so that he canexercise his right to franchise in an effective manner. Thedirections in no way impinge upon the right of a political party tochoose a candidate of its own choice.The direction contained inparagraph 4.4 of the Order dated 13.02.2020 requires that thedetails as to information regarding candidates are required to bepublished within 48 hours of selection of the candidate or notless than two weeks before the first date for filing of nominations,whichever is earlier. [Para 28, 29][927-E-H; 928-A-C]

1.4 It is a ground reality that in most of the cases thecandidates are finalised by the political parties between the periodcommencing from the date of notification till the last date ofwithdrawal. Direction No. 4.4 requires the details to be publishedwithin 48 hours of the selection of the candidate or not less thantwo weeks before the first date for filing of nominations, whicheveris earlier. There should be no difficulty insofar as requirement topublish the details within 48 hours from the selection of candidateis concerned. It could thus be seen that in the light of the statutoryprovision as it exists, it would not be possible to follow thedirection to publish the details prior to two weeks before thefirst date of filing of nomination. [Para 33, 34][929-E-F]

1.5 No doubt the counsel addressed for the ECI and lateron as an Officer of the Court, made a suggestion that the politicalparties could be directed to finalise their candidates before asubstantial period and as such, such a direction could be complied AB

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Awith. Unless the competent legislature takes a call on the issueand makes suitable statutory provisions, it will not be permissiblefor this Court to lay down such a guideline. [Para 35][929-G-H]

1.6 It could be clearly seen that the Constitution Bench in*Public Interest Foundation’s case has, in unequivocal terms, heldBthat the Court cannot legislate. It is further held that theprescription as regards disqualification is complete in view ofthe language employed in Section 7(b) read with Sections 8 to10-A of the Representation of the People’s Act, 1951. There isno ambiguity. It has further held that the legislature has veryclearly enumerated the grounds for disqualification and theClanguage of the said provision leaves no room for any new groundto be added or introduced. It could thus clearly be seen that theConstitution Bench has specifically rejected the alternativeproposal made by the counsel for the petitioners and the AmicusCuriae therein with regard to a direction to the ECI to the effectDthat a candidate against whom charges have been framed forheinous and/or grievous offences cannot be allowed to contestwith the reserved symbol for the political party. The ConstitutionBench thus observed that it would tantamount to adding a newground for disqualification which is beyond the pale of the judicialarm of State. It observed that any attempt to the contrary wouldEbe a colourable exercise of judicial power for it is axiomatic that‘what cannot be done directly ought not to be done indirectly’which is a well-accepted principle in the Indian Judiciary. TheConstitution Bench therefore observes that thoughcriminalisation in politics is a bitter manifest truth, which is aFtermite in the citadel of democracy, the Court cannot make law.It observes that the directions to the ECI, of the nature as soughtin the case at hand, may in an idealistic world, seem, at a cursoryglance, to be an antidote to the malignancy of criminalisation inpolitics, but such directions, on a closer scrutiny, clearly reveal that it is not constitutionally permissible. It goes on to say that asGthe protector of the constitutional ethos, it cannot usurp the powerwhich it does not have. The Constitution Bench recommendsthat Parliament bring out a strong law whereby it is mandatoryfor the political parties to revoke membership of persons againstwhom charges are framed in heinous and grievous offences and H

not to set-up such persons in elections. However, the ConstitutionBench being not oblivious to the issue of criminalisation of politicsand the right of the voters to be aware about the antecedents ofthe candidates who contest in the election. [Para 40, 48, 50,51][932-A-B; 939-B-D, G-H; 940-A-C]

1.7 It could be seen that a suggestion similar to one whichis made to this Court with regard to directing the ECI forsuspending or withdrawing the recognition of political partieswhich flout the directions, was made before the ConstitutionBench by the counsel for the petitioner and the Amicus Curiaetherein. The Constitution Bench after elaborately consideringthe said issue, held that issuing such a direction would amount toentering into the legislative arena and as such, such a directioncould not be issued. In the teeth of the observations made by theConstitution Bench, though some suggestions made by thecounsel are laudable, it will not be possible to accede to them. Itwill not be permissible for this Court to read any implied limitationsand issue directions which would indirectly provide fordisqualification of a candidate. [Para 53, 57][941-C-E; 942-F-G]

2.1 As regards Janata Dal United-respondent No. 3, it hasbeen pointed out that the reasons given by the party for thenomination of a candidate from the Belaganj Assembly areinadequate and not in consonance with the Order of SupremeCourt dated 13.02.2020; and that the party has filed Form C1and C2, which specifies the format for publication of criminalantecedents of candidates by the candidates and political partiesrespectively in newspapers, in a vague and mechanical manner.The Respondent No. 3 has not entered appearance or filed anycounter affidavit to controvert this fact as on date of this Order.[Para 59][942-G-H; 943-A-B]

2.2 As regards Rashtriya Janta Dal-respondent No. 4, ithas been pointed out that the party has specifically provided‘winnability’ as the only reason for selection of its candidates asagainst those without criminal antecedents. Respondent no. 4submitted that the party had failed to adhere to the format specifiedby the ECI due to an inadvertent and bona fide mistake on partof its State Committee and that reasons were given by the party A

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Abased on its own understanding of the form. On perusal of theaffidavits, the reason cited by respondent No. 4 for non-compliance of directions issued by this Court is not acceptableand that the party has cited ‘winnability’ as the only reason forselection of candidates, which is in the teeth of our directions.[Para 60][943-C-F]B

2.3 As regards the Lok Janshakti Party-respondent No. 5,it has been pointed out, from the chart prepared by the ECI, thatthe party has given identical reasons for nomination of 5candidates and further that the publications have not been madein the format that has been prescribed; that the party has publishedCthe details in newspapers which are of low circulation in derogationof the Order dated 13.02.2020; and that party has filled Form C1and C2, which specifies the format of publication of criminalantecedents in newspapers, in a vague and mechanical manner.Respondent no. 5 submitted that the Forms, as required, haveDbeen published in various English, Urdu and Hindi newspapers.On perusal of the affidavits, it is undisputed that the party hasgiven identical reasons for selection of 5 of its candidates andhas also filled Form C2 in a mechanical manner. [Para 61][943-F-H; 944-A-B]

E2.4 As regards the Indian National Congress-respondentNo. 6, it has been pointed out that the criminal antecedents havebeen published in newspapers which are of low circulation andthat the forms in which details of criminal antecedents have to bepublished have been filled in a mechanical manner; and that theparty has given reasons along the lines of ‘winnability’ for theFselection of candidates that have been accused of serious offencessuch as Section 307 and Section 506 IPC. Respondent no. 6submitted that the party had followed all directions issued by thisCourt and that therefore they were not in contempt of thedirections. On perusal of the affidavits, respondent No. 6 has notGfollowed the directions contained in the Order dated 13.02.2020in letter and spirit. [Para 62][944-C-F]

2.5 As regards the Bharatiya Janata Party-respondent No.7, it has been pointed out that the criminal antecedents havebeen published in newspapers which are of low circulation andthat the forms in which details of criminal antecedents have to beH

published have been filled in a mechanical manner; that whilethe party had submitted Form C-8 for 77 candidates, it wasidentified by the Chief Electoral Officer, Bihar that the party hadpublished criminal antecedents in Form C-7 only for 76candidates; and that the party has provided reasons for selectionof candidates, by referring to serious offences such as offencesunder Section 386 and Section 506 IPC and portraying them ascases that are of a trivial nature. Respondent no. 7 submittedthat Form C-7 for one of its candidates was not submitted due toan inadvertent error and that the party was otherwise whollycompliant with the directions contained in Order dated13.02.2020; and that the party has provided reasons for selectionof its candidates which are in line with our directions and thatthey must not therefore be held to be in contempt. On perusal ofthe affidavits, the reason given by the party for failing to submitForm C-7 in respect of one of its candidates is not acceptableand that the party has not provided reasons for selection of itscandidates which are in line with our directions. [Para 63][944-F-H; 945-A-C]

2.6 As regards the Communist Party of India (Marxist)-respondent No. 8, it is pointed out that the party is one of the twoparties that has not submitted the Form C7 or C8 for any of itscandidates and therefore is fully non-compliant with our Orderdated 13.02.2020. Respondent no. 8 submitted that the electionprocess for the State of Bihar was coordinated by the StateCommittee of the party and that Form C7 and C8 were notsubmitted due to oversight on part of the State Committee; andthat the party has attempted to comply with the directions of thisCourt insofar as declaration of information regarding criminal casesin newspapers and the website of the party is concerned and thatthe aforementioned act of non-compliance should be viewed asan isolated incident and its unconditional apology be accepted.On perusal of the affidavits, an oversight on part of the StateCommittee of the party cannot be a ground for non-complianceof the directions passed by this Court. [Para 64][945-D-G]

2.7 As regards the Nationalist Congress Party-respondentNo. 9, it is pointed out that the party is one of the two parties that AB

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898SUPREME COURT REPORTS

Ahas not submitted the Form C7 or C8 for any of its candidatesand therefore is fully non-compliant with our Order dated13.02.2020. Respondent no. 9 submitted that the party had on09.03.2020 issued directions to all Presidents/Convenors of theState/Union Territory units of the party to ensure compliance ofour Order dated 13.02.2020, however due to the dissolution ofBthe party’s State Committee on 20.07.2020, the directions of thisCourt could not be complied with in the Bihar Elections; and thatthe 18 candidates who had been identified by the party as havingpending criminal cases had published their criminal antecedentsin newspapers and that the aforementioned non-compliance beCseen as an isolated incident and its apology be accepted. Onperusal of the affidavits, the dissolution of the State Committeeof the party a few months prior to the election in the State ofBihar cannot be a ground for non-compliance of the directionspassed by this Court. [Para 65][945-H; 946-A-D]

D2.8 As regards the Bahujan Samaj Party-respondent No.10, it has been pointed out that the criminal antecedents havebeen published in newspapers which are of low circulation andthat the forms in which details of criminal antecedents have to bepublished have been filled in a mechanical manner; and that theparty had only submitted requisite details for 27 candidates, whileEthe Chief Electoral Officer, Bihar had found that there were 2more candidates who had criminal antecedents; and that the party,in order to flout our directions, has justified the selection of somecandidates who have been accused of heinous offences such asSection 376, IPC by stating that there no other applications whichFhave been received for the candidature to that constituency.Respondent no. 10 submitted that the membership of one of thecandidates with criminal antecedents whose details were notsubmitted to the ECI has since been cancelled and the saidcandidate has been expelled from the party on 14.04.2021 for submitting false affidavits to the party itself. As far as the otherGcandidate identified by the Chief Elector Officer, Bihar isconcerned, it has been submitted by the party that the requisitedetails have been submitted but have not been accounted for bythe Chief Electoral Officer, Bihar. On perusal of the affidavits,this Court is satisfied by the explanation given qua the 2Hcandidates, however, respondent No. 10 is cautioned not to pay lip service to our directions but to follow them in letter and spiritin the future including the directions contained in this judgment.[Para 66][946-D-H; 947-A-B]

2.9 As regards the Communist Party of India-respondentNo. 11, it has been pointed out that that the criminal antecedentshave been published in newspapers which are of low circulationand that the forms in which details of criminal antecedents haveto be published have been filled in a mechanical manner; that theparty, in order to flout our directions, has justified the selectionof some candidates who have been accused of serious offencessuch as offences under Section 307 and Section 506 IPC by statingthat the cases “do not have any substance”. Respondent no. 11submitted that the party has followed all directions issued by thisCourt and that any omission pointed out in the filling up of FormC-7 or C-8 may not be viewed as a wilful violation of our directions.On perusal of the affidavits, the Respondent No. 11 has notfollowed the directions contained in the Order dated 13.02.2020in letter and spirit. [Para 67][947-B-F]

2.10 As regards Rashtriya Lok Samta Party-respondent no.12, it has been pointed out that the party has given the samereason for nominating 5 of its candidates. Respondent No. 12has not entered appearance or filed any counter affidavit tocontrovert this fact. This being the case, it is undisputed that theparty has given identical reasons for selection of 5 of its candidatesin a stereotyped manner. [Para 68][947-F-G]

2.11 Though the respondent No. 3 to 9, 11 and 12 havebeen held guilty of having committed contempt of the Order dated13.02.2020, taking into consideration that these were the firstelections which were conducted after issuance of the directions,a lenient view is taken in the matter. However, they are warnedthat they should be cautious in future and ensure that thedirections issued by this Court as well as the ECI are followed inletter and spirit. The respondent Nos. 3, 4, 5, 6,7 and 11 aredirected to deposit an amount of INR 1 Lakh each in the accountcreated by the ECI as specified in this judgment in paragraph73(iii) within the stipulated period. Insofar as respondent Nos. 8and 9 are concerned, since they have not at all complied with the A

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Adirections issued by this Court, they are directed to deposit anamount of INR 5 Lakh each in the said account within thestipulated period. [Para 69][947-H; 948-A-C]

2.12 Insofar as the ECI is concerned, the submission thatthey cannot said to have committed any contempt of our OrderBdated 13.02.2020 is accepted as the circumstances pointed outclearly show that the ECI did bring to notice of this Court theflouting of our directions contained in the said order. However,the ECI is cautioned to do so as promptly as possible in future sothat prompt action may be taken by this Court, it being understoodthat the ECI must by itself take prompt action in accordance withCthe directions contained in this Order. [Para 70][948-C-E]

3. No one can deny that the menace of criminalisation inthe Indian political system is growing day by day. Also, no onecan deny that for maintaining purity of political system, personswith criminal antecedents and who are involved in criminalisationDof political system should not be permitted to be the law-makers.This Court, time and again, has appealed to the law-makers ofthe Country to rise to the occasion and take steps for bringingout necessary amendments so that the involvement of personswith criminal antecedents in polity is prohibited. All these appealsEhave fallen on the deaf ears. The political parties refuse to wakeup from deep slumber. However, in view of the constitutionalscheme of separation of powers, though there is a desire thatsomething urgently requires to be done in the matter, hands aretied and this Court cannot transgress into the area reserved forthe legislative arm of the State. This Court can only appeal to theFconscience of the law-makers and hope that they will wake upsoon and carry out a major surgery for weeding out the malignancyof criminalisation in politics. [Para 71, 72][948-E-H; 949-A]

4. In furtherance of the directions issued by theConstitution Bench in Public Interest Foundation and our OrderGdated 13.02.2020, in order to make the right of information of avoter more effective and meaningful, the following furtherdirections are issued:

(i) Political parties are to publish information regardingcriminal antecedents of candidates on the homepage of theirwebsites, thus making it easier for the voter to get to theinformation that has to be supplied. It will also become necessarynow to have on the homepage a caption which states “candidateswith criminal antecedents”;

(ii) The ECI is directed to create a dedicated mobileapplication containing information published by candidatesregarding their criminal antecedents, so that at one stroke, eachvoter gets such information on his/her mobile phone;

(iii) The ECI is directed to carry out an extensive awarenesscampaign to make every voter aware about his right to know andthe availability of information regarding criminal antecedents ofall contesting candidates. This shall be done across variousplatforms, including social media, websites, TV ads, prime timedebates, pamphlets, etc. A fund must be created for this purposewithin a period of 4 weeks into which fines for contempt of Courtmay be directed to be paid;

(iv) The ECI is also directed to create a separate cell whichwill also monitor the required compliances so that this Court canbe apprised promptly of non-compliance by any political party ofthe directions contained in this Court’s Orders, as fleshed out bythe ECI, in instructions, letters and circulars issued in this behalf;

(v) Modifying the direction in paragraph 4.4 of the Orderdated 13.02.2020, it is clarified that the details which are requiredto be published, shall be published within 48 hours of the selectionof the candidate and not prior to two weeks before the first dateof filing of nominations; and

(vi) If such a political party fails to submit such compliancereport with the ECI, the ECI shall bring such non- compliance bythe political party to the notice of this Court as being in contemptof this Court’s Orders/directions, which shall in future be viewedvery seriously. [Para 73][949-B-H; 950-A-F]

*Public Interest Foundation and others v. Union ofIndia and another (2019) 3 SCC 224 : [2018] 10 SCR141 – followed.

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902SUPREME COURT REPORTSA**Rambabu Singh Thakur v. Sunil Arora and Ors.(2020) 3 SCC 733; Union of India v. Association forDemocratic Reforms and Another (2002) 5 SCC 294 :[2002] 3 SCR 696; People’s Union for Civil Liberties(PUCL) v. Union of India and Another (2003) 4 SCC399 : [2003] 2 SCR 1136; Satish Ukey v. DevendraBGangadharrao Fadnavis and Another (2019) 9 SCC1; Pravasi Bhalai Sangathan v. Union of India andOthers (2014) 11 SCC 477 : [2014] 4 SCR 446; LilyThomas v. Union of India and Others (2013) 7 SCC653 : [2013] 10 SCR 1130; Indian National CongressC(I) v. Institute of Social Welfare and Others (2002) 5SCC 685 : [2002] 3 SCR 1040; Manoj Narula v. Unionof India (2014) 9 SCC 1 : [2014] 9 SCR 965 – referredto.

INHERENT JURISDICTION: Contempt Petition (Civil) No.656of 2020 in Contempt Petition (Civil) No.2192 of 2018 in Writ PetitionG(Civil) No.536 of 2011.

Petition filed for contempt of this Court’s Order dated 13.02.2020in Contempt Petition (C) No.2192 of 2018 in W.P. (C) No.536 of 2011.

With

M.A. Diary No. 2680 of 2021 in Contempt Petition (Civil) No.2192 of 2018.

K.V. Viswanathan (AC), Rajiv Dutta, Harish Salve, Vikas Singh,Devadatt Kamat, PV Surendranath, Ritin Rai, Dinesh Dwivedi, MaheshJethmalani, Sr. Advs., R. Venkataraman, Apoorv Singhal, Amartya A.Sharan, Rahul Sangwan, Sanjeev Kumar Singh, Ajit Kumar, AvinashKumar, Raghvendra Pratap Singh, Shighra Kumar, Kumar DushyantSingh, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua, Prateek Kumar,Ms. Deepeika Kalia, Kumar Ritwik, Amit Pawan, Siddhartha Prasad,Ms. Rohini Prasad, Ajay Vikram Singh, Varun Jain, Navin Kumar,Mrs. Priyanka Singh, Neelambar Jha, Chandra Shekhar, Shrish KumarMisra, Ajay Kumar, Ms. Deepika Mishra, Nishanth Patil, Rajesh Inamdar,Vidit Monga, Ms. Shubhika Saluja, Subhash Chandran K.R., Biju PRaman, K. R. Sasiprabhu, Vishnu Sharma, Ms. Kritika Bhardwaj, ShailKumar Dwivedi, Kapil Mishra, Siddharth Krishna Dwivedi, ShaileshMadiyal, Ravi Sharma, Vaibhav Sabharwal, B. K. Pal, Advs. for theappearing parties.

Petitioner-in person.

The following Judgment of the Court was delivered PER COURT

1. A contempt petition has been filed in this Court on 06.11.2020,by the Petitioner herein, who has brought to the notice of this Court theflouting of its directions given vide Order dated 13.02.2020. The Petitionerdescribes himself in the said petition as follows:

“That the Petitioner above named is an Advocate registered withBar Council of Delhi and presently practicing in the Delhi andbasically belonging from the Nalanda District of the State of Bihar.As an Officer of the Court and also as a law abiding citizen of thisCountry the Petitioner has self-obligated duty to apprise thisHon’ble Court regarding wilful disobedience of its order ifhappening somewhere and especially in the State of Petitioneritself and also where the Said Order is related with the largeinterest of the people who are going to exercise their ConstitutionalRight “Right to Vote”.”

2. This Court issued notice on the said contempt petition on11.02.2021 and recorded that the Election Commission of India A

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A[hereinafter referred to as “ECI”] has filed its report in compliance withthe Order dated 13.02.2020. Vide a subsequent Order dated 17.03.2021,this Court had directed that Shri K.V. Viswanathan, learned SeniorAdvocate, be appointed to assist this Court as Amicus Curiae. ShriViswanathan has since filed a detailed list of dates and submissions.

B3. This contempt petition arises out of elections that were held tothe Bihar Legislative Assembly in October/November, 2020. The reportof the ECI first sets out extracts from our Order dated 13.02.2020 andthen brings to the notice of the Court that:

“In compliance of above directions, the CommissionCissueddirections to the President/ General Secretary/ Chairperson/Convenor of all recognizedNational and State Political Parties videLetter No. 3/4/2020/SDR/Vol.III dated 06.03.2020. Instructionsin this regard were also issued to the Chief Electoral Officers ofall States and Union Territories vide Letter No. 3/4/2020/SDR-Vol.III dated 19.03.2020 and Letter No. 3/4/2019/ SDR-Vol.IVDdated 16.09.2020. Furthermore, the Commission also published“the Guidelines on Publicity of Criminal Antecedents by PoliticalParties and Candidates” in August, 2020 encapsulating all theinstructions and Formats issued in this regard [Annexed herewithas Annexure R/1]. The Commission also directed the ChiefEElectoral Officer, Bihar vide Letter No. 464/BH-LA/ES-I/2020/173 dated 17.10.2020 to ensure compliance with the above noteddirections of the Hon’ble Supreme Court in the General Electionsto Bihar Legislative Assembly-2020 held between 28.10.2020 and07.11.2020 [Annexed herewith as Annexure R/2]

In compliance of the directions given by the Hon’ble SupremeCourt vide Judgement and Order dated 13.02.2020 and inpursuance to Commission’s directions dated 17.10.2020, as perthe report submitted by CEO Bihar [Annexed herewith asAnnexure R/3] out of 10 recognized political parties whichcontested General Elections to the Bihar Legislative Assembly-2020, 08 political parties submitted information about criminalantecedents of the contesting candidates in Format C-8 to theCommission [Annexed herewith as Annexure R/4] and only 02political parties namely Communist Party of India (Marxist) andNationalist Congress Party that fielded 04 and 26 candidates F

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respectively with criminal antecedents, did not furnish the requisiteAinformation in the prescribed format to the Commission.

It is pertinent to note that the Commission issued the Press Noteannouncing the schedule of the General Elections for BiharLegislative Assembly on 25.09.2020. As per the said schedule,the last date for making nominations was as under:

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The following eight political parties have submitted the requisiteinformation in the prescribed format in phase wise manner asbelow:

As per the Format C7 and C8 submitted by these 08 PoliticalParties, a totalof 427 candidates with criminal antecedents participatedin the GeneralElections for the Legislative Assembly of Bihar 2020 onthe symbol of thesepolitical parties.

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As per the Report received from CEO, Bihar, a total of 469candidates with criminal antecedents participated in the GeneralElections for the Legislative Assembly of Bihar 2020 on the symbolof 10 recognised political parties, i.e. including Communist Party H

[2021] 7 S.C.R.

Aof India (Marxist) [04] and Nationalist Congress Party [26] whichdid not file the Format C-8 with the Election Commission of India The details of the information submitted in format C-7 & C-8 bythe political parties in respect of candidates having criminalantecedents who contested in General Election to LegislativeBAssembly of Bihar, 2020 is annexed herewith as Annexure R/5.”

4. Order dated 13.02.2020 in the case of Rambabu Singh Thakurv. Sunil Arora and Ors. (Contempt Petition (Civil) No. 2192 of 2018 inWrit Petition (Civil) No. 536 of 2011)[1] was passed alleging thereindisregard of the directions issued by a Constitution Bench of this CourtC[hereinafter referred to as ‘Constitution Bench’] in Public InterestFoundation and others v. Union of India and another[2].5. The directions issued by the Constitution Bench in Publicinterest Foundation (supra) are thus:

“116. Keeping the aforesaid in view, we think it appropriate toDissue the following directions which are in accord with the decisionsof this Court:

116.1. Each contesting candidate shall fill up the form as providedby the Election Commission and the form must contain all theparticulars as required therein.E116.2. It shall state, in bold letters, with regard to the criminalcases pending against the candidate.

116.3. If a candidate is contesting an election on the ticket of aparticular party, he/she is required to inform the party about thecriminal cases pending against him/her.F116.4. The political party concerned shall be obligated to put upon its website the aforesaid information pertaining to candidateshaving criminal antecedents.

116.5. The candidate as well as the political party concerned shallGissue a declaration in the widely circulated newspapers in thelocality about the antecedents of the candidate and also give widepublicity in the electronic media. When we say wide publicity, we 1(2020) 3 SCC 733H2(2019) 3 SCC 224

mean that the same shall be done at least thrice after filing of thenomination papers.”

6. The directions contained in our Order dated 13.02.2020 mayfirst be set out:

“1. This contempt petition raises grave issues regarding thecriminalisation of politics in India and brings to our attention adisregard of the directions of a Constitution Bench of this Court inPublic Interest Foundation and Ors. v. Union of India andAnr. (2019) 3 SCC 224.

2. In this judgment, this Court was cognisant of the increasingcriminalisation of politics in India and the lack of information aboutsuch criminalisation amongst the citizenry. In order to remedy thisinformation gap, this Court issued the following directions:

“116. Keeping the aforesaid in view, we think it appropriate toissue the following directions which are in accord with the decisionsof this Court:

116.1. Each contesting candidate shall fill up the form as providedby the Election Commission and the form must contain all theparticulars as required therein.

116.2. It shall state, in bold letters, with regard to the criminalcases pending against the candidate.

116.3. If a candidate is contesting an election on the ticket of aparticular party, he/she is required to inform the party about thecriminal cases pending against him/her.

116.4. The political party concerned shall be obligated to put upon its website the aforesaid information pertaining to candidateshaving criminal antecedents.

116.5. The candidate as well as the political party concerned shallissue a declaration in the widely circulated newspapers in thelocality about the antecedents of the candidate and also give widepublicity in the electronic media. When we say wide publicity, wemean that the same shall be done at least thrice after filing of thenomination papers.”

3. On a perusal of the documents placed on record and aftersubmissions of counsel, it appears that over the last four general A

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elections, there has been an alarming increase in the incidence ofcriminals in politics. In 2004, 24% of the Members of Parliamenthad criminal cases pending against them; in 2009, that went up to30%; in 2014 to 34%; and in 2019 as many as 43% of MPs hadcriminal cases pending against them.

4. We have also noted that the political parties offer no explanationas to why candidates with pending criminal cases are selected ascandidates in the first place. We therefore issue the followingdirections in exercise of our constitutional powers under Articles129 and 142 of the Constitution of India:

1) It shall be mandatoryfor political parties [at the Central andState election level] to upload on their website detailed informationregarding individuals with pending criminal cases (including thenature of the offences, and relevant particulars such as whethercharges have been framed, the concerned Court, the case numberetc.) who have been selected as candidates, along with the reasonsfor such selection, as also as to why other individuals withoutcriminal antecedents could not be selected as candidates.

2) The reasons as to selection shall be with reference to thequalifications, achievements and merit of the candidate concerned,and not mere “winnability” at the polls.

3) 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 & Twitter.

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

5) The political party concerned shall then submit a report ofcompliance with these directions with the Election Commissionwithin 72 hours of the selection of the said candidate.

6) If a political party fails to submit such compliance report withthe Election Commission, the Election Commission shall bring suchnon-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of this Court’s orders/directions.

5. With these directions, these Contempt Petitions are accordinglydisposed of.”

7. It may be mentioned that pursuant to this Order, the ECI issueda letter dated 06.03.2020 addressed to all National and State levelrecognised political parties asking them to comply with the directions ofthe Supreme Court, and also issued a new Form C-7 in which the politicalparties have to publish the reason for selection of candidates with criminalantecedents in addition to all other relevant information. Also, in FormC-8, the political party was then to report compliance of this Court’sOrder and the directions contained therein within 72 hours of selectionof the candidate. Importantly, it was made clear by the ECI that anynon-compliance or failure to abide by the directions of this Court wouldbe treated as a failure to follow directions as contemplated under Clause16-A of the Election Symbols (Reservation and Allotment) Order, 1968[hereinafter referred to as the “Symbols Order”].

8. A sequel to this letter was issued on 19.03.2020 by the ECIaddressed to all Chief Electoral Officers urging that they in turn shouldurge political parties to file Form C-7 and C-8 promptly and that anynon-compliance shall have to be reported by the last day of makingnominations so that non-compliance by political parties could then besubmitted by the ECI before this Court.

9. On 16.09.2020, the ECI issued another letter wherein timelineswere also prescribed for publication of information regarding criminalantecedents during the period starting from the day following the lastdate for withdrawal of nomination and upto 48 hours before ending withthe hour fixed for conclusion of poll. It prescribed three block periodswithin which such disclosures had to be made – (1) within the first fourdays of withdrawal; (2) within the 5[th] to 8[th] days; and (3) from the 9[th]day till the last day of the campaign or the second day prior to the date ofthe poll.

10. Armed with these instructions, the ECI, on 25.09.2020,announced the poll schedule for the Assembly Elections to be held in theState of Bihar. Elections were to be held in three phases with resultsthat were ultimately to be declared on 10.11.2020.

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A11. On 17.10.2020, the ECI sought details from the Chief ElectoralOfficer, Bihar regarding candidates contesting in Phase I of the saidelections, who had criminal antecedents. The Association for DemocraticReforms issued a report dated 20.10.2020 on the Bihar AssemblyElections Phase I, wherein it found that 31% of the candidates havecriminal antecedents, out of which 23% have serious criminal casesBagainst them. Likewise, on 27.10.2020, another report was issued quaPhase II, wherein it was found that 34% of total candidates have criminalantecedents, 27% having serious criminal cases against them. Also, by areport dated 02.11.2020, for Phase III of the Bihar Assembly Elections,it was found that 31% of total candidates have criminal antecedents,C24% having serious criminal cases against them. It was also found thatthe percentage of candidates contesting having criminal antecedents tothe total contesting candidates was 32% (Total Contestants 3733:Contestants with criminal cases 1201). Even more disturbing is thepercentage of winning candidates having criminal antecedents jumpingto 68% of the total number of candidates who won as MLAs – 163 outDof 241. This was a 10% rise from the Assembly Elections of 2015 wherethe percentage of winning candidates having criminal antecedents to thetotal number of winning candidates stood at 58%. Equally disturbing isthe fact that 51% of winning candidates have serious criminal casesagainst them i.e. cases related to murder, kidnapping, attempt to murder,Ecrime against women including rape, etc. It is in this backdrop that thepresent contempt petition has to be decided.12. Section 8 of the Representation of People Act, 1951 [hereinafterreferred to as the “Act of 1951”], states as follows:

“8. Disqualification on conviction for certain offences.-F

(1) A person convicted of an offence punishable under- (a) section 153A (offence of promoting enmity between differentgroups on ground of religion, race, place of birth, residence,language, etc., and doing acts prejudicial to maintenance ofharmony) or section 171E (offence of bribery) or section 171F(offence of undue influence or personation at an election) or sub-section (1) or sub-section (2) of section 376 or section 376A orsection 376B or section 376C or section 376D (offences relatingto rape) or section 498A (offence of cruelty towards a woman byhusband or relative of a husband) or sub-section (2) or sub-section G

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(3) of section 505 (offence of making statement creating orpromoting enmity, hatred or ill-will between classes or offencerelating to such statement in any place of worship or in anyassembly engaged in the performance of religious worship orreligious ceremonies) of the Indian Penal Code (45 of 1860); or

(b) the Protection of Civil Rights Act, 1955 (22 of 1955) whichprovides for punishment for the preaching and practice of“untouchability”, and for the enforcement of any disability arisingtherefrom; or

(c) section 11 (offence of importing or exporting prohibited goods)of the Customs Act, 1962 (52 of 1962); or (d) sections 10 to 12 (offence of being a member of an associationdeclared unlawful, offence relating to dealing with funds of anunlawful association or offence relating to contravention of anorder made in respect of a notified place) of the Unlawful Activities(Prevention) Act, 1967 (37 of 1967); or (e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or (f) the Narcotic Drugs and Psychotropic Substances Act, 1985(61 of 1985); or (g) section 3 (offence of committing terrorist acts) or section 4(offence of committing disruptive activities) of the Terrorist andDisruptive Activities (Prevention) Act, 1987 (28 of 1987); or (h) section 7 (offence of contravention of the provisions of sections3 to 6) of the Religious Institutions (Prevention of Misuse) Act,1988 (41 of 1988); or

(i) section 125 (offence of promoting enmity between classes inconnection with the election) or section 135 (offence of removalof ballot papers from polling stations) or section 135A (offence ofbooth capturing) of clause (a) of sub-section (2) of section 136(offence of fraudulently defacing or fraudulently destroying anynomination paper) of this Act; or (j) section 6 (offence of conversion of a place of worship) of thePlaces of Worship (Special Provisions) Act, 1991; or (k) section 2 (offence of insulting the Indian National Flag or theConstitution of India) or section 3 (offence of preventing singing A

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of National Anthem) of the Prevention of Insults to NationalHonour Act, 1971 (69 of 1971), ; or

(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or (m) the Prevention of Corruption Act, 1988 (49 of 1988); or (n) the Prevention of Terrorism Act, 2002 (15 of 2002)

shall be disqualified, where the convicted person is sentenced to –

(i) only fine, for a period of six years from the date of suchconviction;

(ii) imprisonment, from the date of such conviction and shallcontinue to be disqualified for a further period of six years sincehis release.

(2) A person convicted for the contravention of –

(a) any law providing for the prevention of hoarding orprofiteering; or (b) any law relating to the adulteration of food or drugs; or

(c) any provisions of the Dowry Prohibition Act, 1961 (28 of1961);

(3) A person convicted of any offence and sentenced toimprisonment for not less than two years other than any offencereferred to in sub-section (1) or sub-section (2) shall be disqualifiedfrom the date of such conviction and shall continue to bedisqualified for a further period of six years since his release.

(4) Notwithstanding anything in sub-section (1), sub-section (2)or sub-section (3) a disqualification under either subsection shallnot, in the case of a person who on the date of the conviction is amember of Parliament or the Legislature of a State, take effectuntil three months have elapsed from that date or, if within thatperiod an appeal or application for revision is brought in respectof the conviction or the sentence, until that appeal or application isdisposed of by the court.

Explanation. —In this section, —

(a) “law providing for the prevention of hoarding or profiteering”means any law, or any order, rule or notification having the forceof law, providing for—

(i) the regulation of production or manufacture of any essentialcommodity;

(ii) the control of price at which any essential commodity maybe bought or sold;

(iii) the regulation of acquisition, possession, storage, transport,distribution, disposal, use or consumption of any essentialcommodity;

(iv) the prohibition of the withholding from sale of any essentialcommodity ordinarily kept for sale; (b) “drug” has the meaning assigned to it in the Durgs and CosmeticsAct, 1940 (23 of 1940);

(c) “essential commodity” has the meaning assigned to it in theEssential Commodity Act, 1955 (10 of 1955); (d) “food” has the meaning assigned to it in the Prevention ofFood Adulteration Act, 1954 (37 of 1954).”

A reading of Section 8 would show that, apart from certain grievousoffences and convictions thereunder, it is only upon conviction of aminimum period of two years for other offences that a candidate getsdisqualified from standing for election. This Court has time and againreferred to the long periods in which persons are undertrials, and theunsatisfactory result of undertrials taking advantage of the law andstanding for election after election simply because their cases have notbeen decided in a timely manner. Given the fact that false cases can befiled, the Law Commission of India recommended that if charges areframed for offences in which punishment is for a period of two years ormore, a law should be made amending Section 8 so that this can beincorporated therein, thereby reducing at one fell stroke the hugecriminalisation that is found in politics in this country. Apart from this,this Court has held that the least that can be done, given the presentstate of the law, is that at least information as to acquittals, discharge orconviction in relation to criminal offences in the past be set out by wayof affidavit so that a voter has the right to know full particulars of thecandidate for whom he is going to vote, including whether the candidate A

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Ahas committed criminal offences in the past. To this effect, this Court inUnion of India v. Association for Democratic Reformsand Another[3],directed as follows:

“22. For health of democracy and fair election, whether thedisclosure of assets by a candidate, his/her qualification andparticulars regarding involvement in criminal cases are necessaryfor informing voters, maybe illiterate, so that they can decideintelligently, whom to vote for. In our opinion, the decision of evenan illiterate voter, if properly educated and informed about thecontesting candidate, would be based on his own relevant criteriaof selecting a candidate. In democracy, periodical elections areconducted for having efficient governance for the country andfor the benefit of citizens — voters. In a democratic form ofgovernment, voters are of utmost importance. They have right toelect or re-elect on the basis of the antecedents and pastperformance of the candidate. The voter has the choice of decidingwhether holding of educational qualification or holding of property B

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is relevant for electing or re-electing a person to be hisrepresentative. Voter has to decide whether he should cast votein favour of a candidate who is involved in a criminal case. Formaintaining purity of elections and a healthy democracy, votersare required to be educated and well informed about the contestingEcandidates. Such information would include assets held by thecandidate, his qualification including educational qualification andantecedents of his life including whether he was involved in acriminal case and if the case is decided — its result, if pending —whether charge is framed or cognizance is taken by the court.FThere is no necessity of suppressing the relevant facts from thevoters.

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46. To sum up the legal and constitutional position which emergesfrom the aforesaid discussion, it can be stated that:

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1. The jurisdiction of the Election Commission is wide enoughto include all powers necessary for smooth conduct of electionsand the word “elections” is used in a wide sense to include the entire process of election which consists of several stages andembraces many steps.

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4. To maintain the purity of elections and in particular to bringtransparency in the process of election, the Commission canask the candidates about the expenditure incurred by the politicalparties and this transparency in the process of election wouldinclude transparency of a candidate who seeks election or re-election. In a democracy, the electoral process has a strategicrole. The little man of this country would have basic elementaryright to know full particulars of a candidate who is to representhim in Parliament where laws to bind his liberty and propertymay be enacted.

5. The right to get information in democracy is recognised allthroughout and it is a natural right flowing from the concept ofdemocracy. At this stage, we would refer to Article 19(1) and(2) of the International Covenant on Civil and Political Rights,which is as under:

“(1) Everyone shall have the right to hold opinions withoutinterference.

(2) Everyone shall have the right to freedom ofexpression; this right shall include freedom to seek, receiveand impart information and ideas of all kinds, regardlessof frontiers, either orally, in writing or in print, in the form ofart, or through any other media of his choice.”

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7. Under our Constitution, Article 19(1)(a) provides for freedomof speech and expression. Voter’s speech or expression in caseof election would include casting of votes, that is to say, voterspeaks out or expresses by casting vote. For this purpose,information about the candidate to be selected is a must. Voter’s(little man — citizen’s) right to know antecedents including criminalpast of his candidate contesting election for MP or MLA is muchmore fundamental and basic for survival of democracy. The littleman may think over before making his choice of electinglaw-breakers as law-makers.

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48. The Election Commission is directed to call for informationon affidavit by issuing necessary order in exercise of its powerunder Article 324 of the Constitution of India from each candidateseeking election to Parliament or a State Legislature as a necessarypart of his nomination paper, furnishing therein, information on thefollowing aspects in relation to his/her candidature:

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(1) Whether the candidate is convicted/acquitted/discharged ofany criminal offence in the past — if any, whether he is punishedwith imprisonment or fine.

(2) Prior to six months of filing of nomination, whether thecandidate is accused in any pending case, of any offencepunishable with imprisonment for two years or more, and in whichcharge is framed or cognizance is taken by the court of law. If so,the details thereof.

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(3) The assets (immovable, movable, bank balance, etc.) of acandidate and of his/her spouse and that of dependants.

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(4) Liabilities, if any, particularly whether there are any overduesof any public financial institution or government dues.

(5) The educational qualifications of the candidate.”

13. As an aftermath of this judgement, Sections 33-A and 33-BEwere introduced into the Act of 1951. These sections provided:

“33-A. Right to information.—(1) A candidate shall, apart fromany information which he is required to furnish, under this Act orthe rules made thereunder, in his nomination paper delivered undersub-section (1) of Section 33, also furnish the information as toFwhether—

(i) he is accused of any offence punishable with imprisonment fortwo years or more in a pending case in which a charge has beenframed by the court of competent jurisdiction;

(ii) he has been convicted of an offence other than any offencereferred to in sub-section (1) or sub-section (2), or covered insub-section (3), of Section 8 and sentenced to imprisonment forone year or more.

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(2) The candidate or his proposer, as the case may be, shall, at thetime of delivering to the Returning Officer the nomination paper H

under sub-section (1) of Section 33, also deliver to him an affidavitsworn by the candidate in a prescribed form verifying theinformation specified in sub-section (1).

(3) The Returning Officer shall, as soon as may be after thefurnishing of information to him under sub-section (1), display theaforesaid information by affixing a copy of the affidavit, deliveredunder sub-section (2), at a conspicuous place at his office for theinformation of the electors relating to a constituency for whichthe nomination paper is delivered.

33-B. Candidate to furnish information only under the Actand the rules.—Notwithstanding anything contained in anyjudgment, decree or order of any court or any direction, order orany other instruction issued by the Election Commission, nocandidate shall be liable to disclose or furnish any such information,in respect of his election, which is not required to be disclosed orfurnished under this Act or the rules made thereunder.”

14. A challenge to these Sections was made, and Section 33-Bstruck down by a Three-Judge Bench in People’s Union for CivilLiberties (PUCL) v. Union of Indiaand Another[4]. Shah, J. concluded:

“78. What emerges from the above discussion can be summarisedthus:

(A) The legislature can remove the basis of a decision renderedby a competent court thereby rendering that decision ineffectivebut the legislature has no power to ask the instrumentalities of theState to disobey or disregard the decisions given by the court. Adeclaration that an order made by a court of law is void is normallya part of the judicial function. The legislature cannot declare thatdecision rendered by the Court is not binding or is of no effect.

It is true that the legislature is entitled to change the law withretrospective effect which forms the basis of a judicial decision.This exercise of power is subject to constitutional provision,therefore, it cannot enact a law which is violative of fundamentalright.

(B) Section 33-B which provides that notwithstanding anythingcontained in the judgment of any court or directions issued by the A

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Election Commission, no candidate shall be liable to disclose orfurnish any such information in respect of his election which isnot required to be disclosed or furnished under the Act or therules made thereunder, is on the face of it beyond the legislativecompetence, as this Court has held that the voter has a fundamentalright under Article 19(1)(a) to know the antecedents of a candidatefor various reasons recorded in the earlier judgment as well as inthis judgment.

The Amended Act does not wholly cover the directions issued bythis Court. On the contrary, it provides that a candidate would notbe bound to furnish certain information as directed by this Court.

(C) The judgment rendered by this Court in Assn. for DemocraticReforms has attained finality, therefore, there is no question ofinterpreting constitutional provision which calls for reference underArticle 145(3).

(D) The contention that as there is no specific fundamental rightconferred on a voter by any statutory provision to know theantecedents of a candidate, the directions given by this Court areagainst the statutory provisions is, on the face of it, without anysubstance. In an election petition challenging the validity of anelection of a particular candidate, the statutory provisions wouldgovern respective rights of the parties. However, voters’fundamental right to know the antecedents of a candidate isindependent of statutory rights under the election law. A voter isfirst citizen of this country and apart from statutory rights, he ishaving fundamental rights conferred by the Constitution. Membersof a democratic society should be sufficiently informed so thatthey may cast their votes intelligently in favour of persons whoare to govern them. Right to vote would be meaningless unlessthe citizens are well informed about the antecedents of a candidate.There can be little doubt that exposure to public gaze and scrutinyis one of the surest means to cleanse our democratic governingsystem and to have competent legislatures.

(E) It is established that fundamental rights themselves have nofixed content, most of them are empty vessels into which eachgeneration must pour its content in the light of its experience. Theattempt of the Court should be to expand the reach and ambit ofthe fundamental rights by process of judicial interpretation. During the last more than half a decade, it has been so done by this Courtconsistently. There cannot be any distinction between thefundamental rights mentioned in Chapter III of the Constitutionand the declaration of such rights on the basis of the judgmentsrendered by this Court.”

Reddi, J. in a separate judgment concluded:

“123. Finally, the summary of my conclusions:

(1) Securing information on the basic details concerning thecandidates contesting for elections to Parliament or the StateLegislature promotes freedom of expression and therefore theright to information forms an integral part of Article 19(1)(a).This right to information is, however, qualitatively different fromthe right to get information about public affairs or the right toreceive information through the press and electronic media,though, to a certain extent, there may be overlapping.

(2) The right to vote at the elections to the House of the Peopleor Legislative Assembly is a constitutional right but not merelya statutory right; freedom of voting as distinct from right tovote is a facet of the fundamental right enshrined in Article19(1)(a). The casting of vote in favour of one or the othercandidate marks the accomplishment of freedom of expressionof the voter.

(3) The directives given by this Court in Union ofIndia v. Assn. for Democratic Reforms were intended tooperate only till the law was made by the legislature and in thatsense “pro tempore” in nature. Once legislation is made, theCourt has to make an independent assessment in order toevaluate whether the items of information statutorily ordainedare reasonably adequate to secure the right of informationavailable to the voter/citizen. In embarking on this exercise,the points of disclosure indicated by this Court, even if they betentative or ad hoc in nature, should be given due weight andsubstantial departure therefrom cannot be countenanced.

(4) The Court has to take a holistic view and adopt a balancedapproach in examining the legislation providing for right toinformation and laying down the parameters of that right.

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(5) Section 33-B inserted by the Representation of the People(Third Amendment) Act, 2002 does not pass the test ofconstitutionality, firstly, for the reason that it imposes a blanketban on dissemination of information other than that spelt out inthe enactment irrespective of the need of the hour and thefuture exigencies and expedients and secondly, for the reasonthat the ban operates despite the fact that the disclosure ofinformation now provided for is deficient and inadequate.

(6) The right to information provided for by Parliament underSection 33-A in regard to the pending criminal cases and pastinvolvement in such cases is reasonably adequate to safeguardthe right to information vested in the voter/citizen. However,there is no good reason for excluding the pending cases inwhich cognizance has been taken by the Court from the ambitof disclosure.

(7) The provision made in Section 75-A regarding declarationof assets and liabilities of the elected candidates to the Speakeror the Chairman of the House has failed to effectuate the rightto information and the freedom of expression of the voters/citizens. Having accepted the need to insist on disclosure ofassets and liabilities of the elected candidate together with thoseof the spouse or dependent children, Parliament ought to havemade a provision for furnishing this information at the time offiling the nomination. Failure to do so has resulted in the violationof guarantee under Article 19(1)(a).

(8) The failure to provide for disclosure of educationalqualification does not, in practical terms, infringe the freedomof expression.

(9) The Election Commission has to issue revised instructionsto ensure implementation of Section 33-A subject to what islaid down in this judgment regarding the cases in whichcognizance has been taken. The Election Commission’s ordersrelated to disclosure of assets and liabilities will still hold goodand continue to be operative. However, Direction 4 of para 14insofar as verification of assets and liabilities by means ofsummary enquiry and rejection of nomination paper on theground of furnishing wrong information or suppressing materialinformation should not be enforced.”

Dharmadhikari, J. in a separate judgment agreed with Reddi, J.,andShah J. on the invalidity of Section 33-B of the Representation ofPeople Act, 1951, while choosing to disagree with propositions 3and 8 in the opinion of Reddi, J. Section 33-B, therefore, stoodstruck down.

15. In 2012, an important amendment was made to the Conductof Election Rules, 1961, and Form 26 was also amended. This Court inSatish Ukey v. Devendra Gangadharrao Fadnavis and Another[5],referred to the aforesaid amendment as follows:

“24. A cumulative reading of Section 33-A of the 1951 Act andRule 4-A of the 1961 Rules and Form 26 along with the lettersdated 24-8-2012, 26-9-2012 and 26-4-2014, in our considered view,make it amply clear that the information to be furnished underSection 33-A of the 1951 Act includes not only informationmentioned in clauses (i) and (ii) of Section 33-A(1), but alsoinformation, that the candidate is required to furnish, under theAct or the Rules made thereunder and such information shouldbe furnished in Form 26, which includes information concerningcases in which a competent court has taken cognizance [Entry5(ii) of Form 26]. This is apart from and in addition to cases inwhich charges have been framed for an offence punishable withimprisonment for two years or more or cases in which convictionhas been recorded and sentence of imprisonment for a period ofone year or more has been imposed [Entries 5(i) and 6 of Form26 respectively].”

16. In Public Interest Foundation (supra), a Five-Judge Benchof this Court, after setting out Section 8 of the Representation of PeopleAct, 1951 and copiously referring to the 244[th] Law Commission Reporttitled “Electoral Disqualifications” of February 2014, issued directionscontained in paragraph 116, as referred to in our Order dated 13.02.2020.The Court ended with a sense of anguish followed by hope as follows:

“117. These directions ought to be implemented in true spiritand right earnestness in a bid to strengthen the democraticset-up. There may be certain gaps or lacunae in a law orlegislative enactment which can definitely be addressed by thelegislature if it is backed by the proper intent, strong resolve 5 (2019) 9 SCC 1

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and determined will of right-thinking minds to ameliorate thesituation. It must also be borne in mind that the law cannotalways be found fault with for the lack of its stringentimplementation by the authorities concerned. Therefore, it isthe solemn responsibility of all concerned to enforce the lawas well as the directions laid down by this Court from time totime in order to infuse the culture of purity in politics and indemocracy and foster and nurture an informed citizenry, forultimately it is the citizenry which decides the fate and courseof politics in a nation and thereby ensures that “we shall begoverned no better than we deserve”, and thus, completeinformation about the criminal antecedents of the candidatesforms the bedrock of wise decision-making and informed choiceby the citizenry. Be it clearly stated that informed choice is thecornerstone to have a pure and strong democracy.

118. We have issued the aforesaid directions with immenseanguish, for the Election Commission cannot deny a candidateto contest on the symbol of a party. A time has come thatParliament must make law to ensure that persons facing seriouscriminal cases do not enter into the political stream. It is onething to take cover under the presumption of innocence of theaccused but it is equally imperative that persons who enterpublic life and participate in law making should be above anykind of serious criminal allegation. It is true that false casesare foisted on prospective candidates, but the same can beaddressed by Parliament through appropriate legislation. Thenation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutionalgovernance. The voters cry for systematic sustenance ofconstitutionalism. The country feels agonised when money andmuscle power become the supreme power. Substantial effortshave to be undertaken to cleanse the polluted stream of politicsby prohibiting people with criminal antecedents so that they donot even conceive of the idea of entering into politics. Theyshould be kept at bay.

119. We are sure, the law-making wing of the democracy ofthis country will take it upon itself to cure the malignancy. Wesay so as such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it; the soonerthe better, before it becomes fatal to democracy. Thus, wepart.”

17. The nation continues to wait, and is losing patience. Cleansingthe polluted stream of politics is obviously not one of the immediatepressing concerns of the legislative branch of government. As a sequelto this judgment the directions contained in the order dated 13.02.2020were then made.

18. Shri K.V. Viswanathan, learned amicus curiae placed beforeus some of the facts stated hereinabove. In addition, he also referred torevised guidelines issued by the ECI on 26.02.2021 in which the criteriafor publishing in a newspaper was specified. He then analysed the reportof the ECI and submitted that given our contempt jurisdiction under Article129 read with Article 142 of the Constitution of India we are not boundby the provisions of the Contempt of Courts Act, 1971 and can not onlyimpose sentences, fines, but can also reprimand authorities and personsfor acting contrary to our directions. He picked up, at random, someexamples which showed how all the political parties have been floutingour directions in letter and spirit, fielding persons whose criminalantecedents show that they have been charge-sheeted or charged withserious offences, with no real reason as to why such person has beenpreferred over other more deserving candidates. This chart is appendedto our judgment as Annexure-I hereto. In addition, he argued that FormsC-1, C-2, C-7 and C-8 were either not filled (2 out of 10 parties admittedlyhave not filled up Forms C-7 and C-8) or have been filled withoutdisclosing particulars. He then copiously referred to the Symbols Orderand argued that if we were to give teeth to our Order dated 13.02.2020,the ECI ought to issue directions under clause 16-A of the SymbolsOrder by giving a post-decisional hearing (after the ECI amends clause16-A to provide as such), and then suspending or withdrawing recognitionto National and/or State political parties who flout the directions containedin our Order dated 13.02.2020. He has also made certain valuablesuggestions which shall be reflected in the directions issued by thisjudgment.

19. Shri Vikas Singh, learned senior advocate appearing on behalfof the ECI, referred to our Order dated 11.02.2021 in which this Courthad issued notice in the present contempt petition and argued that theECI had filed its report in compliance of the Order dated 13.02.2020. To A

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Atherefore argue, as has been argued by the learned petitioner and assuggested by Shri Viswanathan that the ECI is itself in contempt in nothaving promptly notified this Court of the non-following of its directionsin the Order dated 13.02.2020 is absolutely baseless. As a matter offact, he argued that the contempt petition itself was filed 4 days beforethe result was declared, and it is therefore misleading to say that it wasBonly after the contempt petition was filed that the ECI gave its report tothe Court. As can be seen, this report is dated 01.02.2020 and has beenfiled at the earliest possible time given the fact that the ECI had tocompile a great deal of data and then present it to this Court.

20. He then urged that apart from directions that could be issuedCunder clause 16-A of the Symbols Order, electors, that is, those who areentitled to vote at an election are also given the right to approach theCourt in an election petition under Section 81 read with Section 100 ofthe Representation of the People Act, 1951 on the ground that the electionof the returned candidate is materially affected by rejection of anDapplication filed by such elector for being nominated by such politicalparty as he was better suited to represent the particular political party inview of our Order dated 13.02.2020. He then urged that such electionpetition so filed could be considered on merits, as a violation of our Orderwould amount to undue influence which is a “corrupt practice” underSection 123(2) read with Section 100(1)(b) of the Representation of theEPeople Act, 1951. He also urged that the Model Code of Conduct requiresthat the ECI shall ordinarily announce the date of an election not morethan three weeks prior to the date on which notification is likely to beissued. In the case of the Bihar Assembly Elections 2020, the pollschedule was announced only 5 days prior to the notification for the firstFphase of election. He therefore exhorted this Court to direct the ECI tofollow the Model Code of Conduct in this behalf so that a political partycan announce its candidates two weeks prior to the notification, which isthe first date of filing of nomination. Simultaneously, details of candidatesin terms of paragraph 4.3 of our Order dated 13.2.2020 can then be published well in advance. He also pointed out a judgment of this CourtGin PravasiBhalaiSangathan v. Union of India and Others[6 ]andparagraph 29 thereof, where a direction has been made that a referencebe made to the Law Commission to study as to whether the ECI shouldbe conferred the power to de-recognize a political party in cases in whichhate speech is involved.H6 (2014) 11 SCC 477

21. Shri Harish Salve, learned senior advocate also appeared forthe ECI and submitted that there are no instructions on behalf of theECI on directing the ECI to follow the Model Code of Conduct so that apolitical party can announce its candidates two weeks prior to thenotification, which is the first date of filing of nomination, as has beensubmitted by Shri Vikas Singh. He also added that any such directionmay be contrary to Section 30 of the Representation of People Act,1951. Given the fact that two learned senior advocates are arguing forthe same party at cross purposes and given the fact that Shri VikasSingh later argued that his submission was as an Officer of the Courtand not on instructions, we are of the view that it is hazardous to followthe course of action advocated by Shri Vikas Singh.

22. Shri Shrish Kumar Mishra, learned counsel appearing on behalfof Respondent No. 5 referred to the written submissions dated 22.07.2021and submitted that while clause 16-A of the Symbols Order may be putto use for refusing to follow lawful directions issued by the ECI, thisCourt must not, in a bid to control criminalisation in politics, venture anyfurther and hold that a candidate is to be debarred from contesting ifthere are charges framed against him/her in a pending criminal case. Hefurther submitted that in order to ensure expeditious disposal of criminaltrials, it would be imperative to increase the number of judges throughan All Indian Judicial Services which is in line with the existing All IndiaCivil Services.

23. Shri P.V. Surendranath, learned senior advocate appearing onbehalf of Respondent No. 8, referred to written submissions dated22.07.2021 and submitted that direction 4.4 contained in our Order dated13.02.2020 will have to be modified in order to accommodate the date ofwithdrawal of nomination by a candidate within the timeline prescribedfor publication of Form C-7 and C-8. He further submitted that theinvocation of clause 16-A of the Symbols Order must be limited to extremesituations of consistent and persistent failure, refusal or defiance to followthe lawful directions and instructions of the ECI and consequently mustnot be invoked for a single or isolated non-compliance of a directionwithout intention to refuse to comply with the direction. He also submittedthat even in an extreme case of non-compliance, the approach of theECI must be proportionate to the extent of such non-compliance. Hefurther submitted that the measures as suggested by the learned AmicusCuriae regarding a situation where only one candidate has applied for a AB

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Aparticular seat may not be acceded to as the nomination of a candidateis the prerogative of the party and is based on various factors which areconsidered by the party before selection of the candidate. This apart, hesubmitted that the measure suggested by the learned Amicus Curiae ondirections to be given to the General Secretary of each party to submit aseparate affidavit detailing compliance of the directions issued by theBECI may not be acceded to as this is in the domain of the legislature andthat it will lead to a situation where the General Secretary of the partyhaving submitted such an affidavit based on information given to themby the candidates may now be vulnerable to prosecution under Section125-A of the Representation of People Act, 1951 for no fault of theirCown. He further argued that this Court must not read clause 16-A of theSymbols Order to include a post-decisional hearing as it would prejudiciallyaffect democracy based on a multi-party system.

24. Shri Kapil Sibal, learned senior advocate appearing on behalfof Respondent No. 9 referred to written submissions dated 22.07.2021Dand submitted that the withdrawal or suspension of recognition throughclause 16-A of the Symbols Order is akin to de-registration of a politicalparty as it denies the party the right to exclusive use the election symbolassigned to it. He further submitted that clause 16-A being an unfetteredpower vested with the ECI and such power having not been expresslyconferred on the ECI by either the Constitution of India or the legislature,Ethe clause needs to be held to be ultra vires and therefore is liable to bestruck down. Without prejudice to the argument on the vires of clause16-A, he submitted that given the ramifications of the withdrawal orsuspension of recognition, the power must be exercised by the ECIproportionate to the extent of breach of its directions and must not beFused in respect of every breach of a direction passed by it. He alsosubmitted that this Court must not accede to the suggestion of the learnedAmicus Curiae that the benefit of clause 10-A of the Symbols Ordermust not be available to a party when the loss of recognition is pursuantto an action taken by the ECI under clause 16-A of the Symbols Order, as such an interpretation is not contemplated in the language of eitherGclause 10-A or clause 16-A.

25. We will first consider the directions in our Order dated13.02.2020. Vide directions contained in paragraph 4.1, we had directedthe political parties to upload on their websites detailed informationregarding individuals with pending criminal cases who have been selectedH

as candidates, along with the reasons for such selection, and also as towhy other individuals without criminal antecedents could not be selectedas candidates. Further, through paragraph 4.2 of the said Oder, we haddirected that the reasons as to the selection shall be with reference toqualifications, achievements and merits of the candidate concerned andnot mere “winnability” at the polls.

26. The aforesaid directions have been given in furtherance ofthe directions already given by the Constitution Bench in Public InterestFoundation (supra), so as to enable the voter to have an informedchoice while exercising his right to vote. By the said direction, what hasbeen directed by us, is only to provide information to the voter so that hisright to have information as to why a particular political party has chosena candidate having criminal antecedents and as to why a political partyhas not chosen a candidate without criminal antecedents, is effectivelyguaranteed. We are of the view that such a requirement would onlyenable the voter to have complete information and exercise his right tovote effectively.

27. There are various factors which a political party takes intoconsideration while selecting a candidate. As a citizen who possessesrequisite qualifications and is not disqualified under any of the provisionsof the Constitution or the Act of 1951, has a right to contest an electionand a voter has a right to vote a candidate of his choice, a political partywould also have the discretion to choose a candidate of its choice.

28. As has already been considered in various judgments, apossibility of a rival implicating someone falsely, as a political vendetta,is not unknown in the country. Take a situation wherein otherwise ahighly meritorious candidate has been falsely implicated in some criminalmatters by his rivals. As against this, a person who has a clean record,but totally unknown to the electorate in that area, applies for a ticket ofa political party. In such a situation, a political party can always give areason that a candidate with criminal antecedents is found to be moresuitable than a person who does not have criminal antecedents. Thereasons could be many. If the political party is of the prima facie opinionthat such a candidate has been falsely implicated, it can say so. Whathas been provided by us in paragraph 4.2 of the Order dated 13.02.2020is that the reasons should not be with regard to “mere winnability at thepolls”. As such, though a political party would have the freedom ofselecting candidates of its choice, though having criminal antecedents, A

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Awhat would be required is to give reasons in support of such selection,and the reasons could be dependent on various factors includingqualifications, achievements and other merits. At the cost of repetition,such a direction is only to enable a voter to have all the necessaryinformation, so that he can exercise his right to franchise in an effectivemanner. The directions in no way impinge upon the right of a politicalBparty to choose a candidate of its own choice.

29. The direction contained in paragraph 4.4 of the Order dated13.02.2020 requires that the details as to information regarding candidatesare required to be published within 48 hours of selection of the candidateor not less than two weeks before the first date for filing of nominations,Cwhichever is earlier.

30. Arguments have been advanced before us with regard to thepracticability of implementation of the direction contained in paragraph4.4. To consider the said submissions, it will be relevant to refer to Section30 of the said Act of 1951:D

“30. Appointment of dates for nominations, etc.—As soonas the notification calling upon a constituency to elect a memberor members is issued, the Election Commission shall, by notificationin the Official Gazette, appoint —

(a) the last date for making nominations, which shall be the seventhday after the date of publication of the first-mentioned notificationor, if that day is a public holiday, the next succeeding day which isnot a public holiday; E

(b) the date for the scrutiny of nominations, which shall be theFday immediately following the last date for making nominationsor, if that day is a public holiday, the next succeeding day which isnot a public holiday ;

(c) the last date for the withdrawal of candidatures, which shallbe the second day after the date for the scrutiny of nominationsor, if that day is a public holiday, the next succeeding day which isGnot a public holiday; (d) the date or dates on which a poll shall, if necessary, be taken,which or the first of which shall be a date not earlier than thefourteenth day after the last date for the withdrawal ofcandidatures; and H

(e) the date before which the election shall be completed.”

31. Perusal of Section 30 of the said Act of 1951 would requirethat the ECI shall, by notification in the Official Gazette, appoint the lastdate for making nominations, which shall be the seventh date after thedate of publication of the first mentioned notification or, if that day is apublic holiday, the next succeeding day which is not a public holiday.Clause (b) of Section 30 of the said Act of 1951 would require that thedate for the scrutiny of nominations shall be the day immediately followingthe last date for making nominations or, if that day is a public holiday, thenext succeeding day which is not a public holiday. Clause (c) of Section39 of the said Act of 1951 would require that the last date for thewithdrawal of candidature shall be the second day after the date for thescrutiny of nominations or, if that day is a public holiday, the nextsucceeding day, which is not a public holiday.

32. A combined reading of clauses (a) to (c) of Section 30 of thesaid Act of 1951 would reveal that the last date for withdrawal ofcandidature would be around 10 days from the date of notificationpublished by the ECI in the Official Gazette.

33. It is a ground reality that in most of the cases the candidatesare finalised by the political parties between the period commencingfrom the date of notification till the last date of withdrawal. DirectionNo. 4.4 requires the details to be published within 48 hours of the selectionof the candidate or not less than two weeks before the first date forfiling of nominations, whichever is earlier. There should be no difficultyinsofar as requirement to publish the details within 48 hours from theselection of candidate is concerned.

34. It could thus be seen that in the light of the statutory provisionas it exists, it would not be possible to follow the direction to publish thedetails prior to two weeks before the first date of filing of nomination.

35. No doubt Shri Vikas Singh, learned Senior Counsel, who firstaddressed this Court as a counsel for the ECI and later on as an Officerof the Court, made a suggestion that the political parties could be directedto finalise their candidates before a substantial period and as such, sucha direction could be complied with. In our view, unless the competentlegislature takes a call on the issue and makes suitable statutoryprovisions, it will not be permissible for this Court to lay down such aguideline.

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A36. It has been strenuously submitted by Shri Viswanathan, thelearned Amicus Curiae who has been supported by Shri Vikas Singh,that, this Court should issue a direction to the ECI to invoke powersunder Clause 16-A of the Symbols Order and take requisite action underthe said clause to suspend, subject to terms and conditions, or withdrawrecognition of such political party. Such a request has been vehementlyBopposed by all the counsel appearing on behalf of the political parties. Ithas been submitted that the direction would empower the ECI to suspendor withdraw recognition of political party even for a small lapse on thepart of a candidate or an office bearer of a political party in a District ora State.

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37. For appreciating the submissions made by the learned AmicusCuriae, it will be apposite to refer to some of the observations made bythe Constitution Bench in Public Interest Foundation (supra):

“8. In Lily Thomas v. Union of India [Lily Thomas v. Union ofIndia, (2013) 7 SCC 653 : (2013) 3 SCC (Civ) 678 : (2013) 3DSCC (Cri) 641 : (2013) 2 SCC (L&S) 811] , it has been held :(SCC p. 669, para 26)

“26. Articles 102(1)(e) and 191(1)(e) of the Constitution, onthe other hand, have conferred specific powers on Parliamentto make law providing disqualifications for membership of eitherHouse of Parliament or Legislative Assembly or LegislativeCouncil of the State other than those specified in sub-clauses(a), (b), (c) and (d) of clause (1) of Articles 102 and 191 of theConstitution. We may note that no power is vested in the StateLegislature to make law laying down disqualifications ofmembership of the Legislative Assembly or Legislative Councilof the State and power is vested in Parliament to make lawlaying down disqualifications also in respect of Members ofthe Legislative Assembly or Legislative Council of the State.For these reasons, we are of the considered opinion that thelegislative power of Parliament to enact any law relating todisqualification for membership of either House of Parliamentor Legislative Assembly or Legislative Council of the Statecan be located only in Articles 102(1)(e) and 191(1)(e) of theConstitution and not in Article 246(1) read with Schedule VIIList I Entry 97 and Article 248 of the Constitution. We do not,therefore, accept the contention of Mr Luthra that the power E

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to enact sub-section (4) of Section 8 of the Act is vested inParliament under Article 246(1) read with Schedule VII List IEntry 97 and Article 248 of the Constitution, if not in Articles102(1)(e) and 191(1)(e) of the Constitution.”

We have no hesitation in saying that the view expressed abovein Lily Thomas [Lily Thomas v. Union of India, (2013) 7 SCC653 : (2013) 3 SCC (Civ) 678 : (2013) 3 SCC (Cri) 641 : (2013) 2SCC (L&S) 811] is correct, for Parliament has the exclusivelegislative power to lay down disqualification for membership.”

38. It would thus be clear that the Constitution Bench has approvedthe view expressed by this Court in the case of Lily Thomas v. Unionof India and Others[7], that the legislative power of parliament to enactany law relating to disqualification for membership of either House ofParliament or Legislative Assembly or Legislative Council of the Statecan be located only in Articles 102(1)(e) and 191(1)(e) of the Constitutionand not in Article 246(1) read with Schedule VII List I Entry 97 andArticle 248 of the Constitution.

39. It will be relevant to further refer to paragraphs 24 and 25 ofthe judgment of the Constitution Bench in Public Interest Foundation(supra), which read thus:

“24. It is well settled in law that the court cannot legislate.Emphasis is laid on the issuance of guidelines and directions forrigorous implementation. With immense anxiety, it is canvassedthat when a perilous condition emerges, the treatment has to beaggressive. The petitioners have suggested another path. But, asfar as adding a disqualification is concerned, the constitutionalprovision states the disqualification, confers the power on thelegislature, which has, in turn, legislated in the imperative.

25. Thus, the prescription as regards disqualification iscomplete is in view of the language employed in Section 7(b)read with Sections 8 to 10-A of the Act. It is clear as noon dayand there is no ambiguity. The legislature has very clearlyenumerated the grounds for disqualification and the languageof the said provision leaves no room for any new ground to beadded or introduced.”

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A40. It could thus be clearly seen that the Constitution Bench has,in unequivocal terms, held that the Court cannot legislate. It is furtherheld that the prescription as regards disqualification is complete in viewof the language employed in Section 7(b) read with Sections 8 to 10-Aof the Act of 1951. The Constitution Bench goes on to say that it is clearas noon day and that there is no ambiguity. It has further held that theBlegislature has very clearly enumerated the grounds for disqualificationand the language of the said provision leaves no room for any new groundto be added or introduced.

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41. After considering the 18[th] report presented to the Rajya Sabhaon 15[th] March, 2007 by the Department-related Parliamentary StandingCCommittee on Personnel, Public Grievances, Law and Justice on ElectoralReforms (Disqualification of Persons from contesting Election on Framingof Charges against them for Certain Offences), the 244[th] LawCommission Report titled “Electoral Disqualifications” as well as variousjudgments of this Court, the Constitution Bench has reproduced theDrecommendations of the Law Commission in paragraph 59, which readsthus:

“59. The eventual recommendations and proposed sections bythe Law Commission read as follows:

“1.***E

2. The filing of the police report under Section 173 CrPC is not anappropriate stage to introduce electoral disqualifications owing tothe lack of sufficient application of judicial mind at this stage.

3. The stage of framing of charges is based on adequate levels ofFjudicial scrutiny, and disqualification at the stage of charging, ifaccompanied by substantial attendant legal safeguards to preventmisuse, has significant potential in curbing the spread ofcriminalisation of politics.

4. The following safeguards must be incorporated into thedisqualification for framing of charges owing to potential for misuse,Gconcern of lack of remedy for the accused and the sanctity ofcriminal jurisprudence:

(i) Only offences which have a maximum punishment of five yearsor above ought to be included within the remit of this provision.

(ii) Charges filed up to one year before the date of scrutiny ofnominations for an election will not lead to disqualification.

(iii) The disqualification will operate till an acquittal by the trialcourt, or for a period of six years, whichever is earlier.

(iv) For charges framed against sitting MPs/MLAs, the trials mustbe expedited so that they are conducted on a day-to-day basisand concluded within a one-year period. If trial not concludedwithin a one-year period then one of the following consequencesought to ensue:

- The MP/MLA may be disqualified at the expiry of the one-yearperiod; or

- The MP/MLA’s right to vote in the House as a Member,remuneration and other perquisites attaching to their office shallbe suspended at the expiry of the one-year period.

5. Disqualification in the above manner must apply retroactivelyas well. Persons with charges pending (punishable by five yearsor more) on the date of the law coming into effect must bedisqualified from contesting future elections, unless such chargesare framed less than one year before the date of scrutiny ofnomination papers for elections or the person is a sitting MP/MLA at the time of enactment of the Act. Such disqualificationmust take place irrespective of when the charge was framed.***

1. There is large-scale violation of the laws on candidate affidavitsowing to lack of sufficient legal consequences. As a result, thefollowing changes should be made to the RPA:

(i) Introduce enhanced sentence of a minimum of two years underSection 125-A of the RPA Act on offence of filing false affidavits.

(ii) Include conviction under Section 125-A as a ground ofdisqualification under Section 8(1) of the RPA.

(iii) Include the offence of filing false affidavit as a corrupt practiceunder Section 123 of the RPA.

2. Since conviction under Section 125-A is necessary fordisqualification under Section 8 to be triggered, the Supreme Court A

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934SUPREME COURT REPORTS

Amay be pleased to order that in all trials under Section 125-A, therelevant court conducts the trial on a day-to-day basis.

3. A gap of one week should be introduced between the last datefor filing nomination papers and the date of scrutiny, to giveadequate time for the filing of objections to nomination papers.”

B42. After reproducing the aforesaid recommendations, theConstitution Bench has expressed its anguish as under:

“60.The aforesaid recommendations for proposed amendmentnever saw the light of the day in the form of a law enacted bya competent legislature but it vividly exhibits the concern ofCthe society about the progressing trend of criminalisation inpolitics that has the proclivity and the propensity to sendshivers down the spine of a constitutional democracy.”

43. The Constitution Bench further observed thus:

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“61. Having stated about the relevant aspects of the LawCommission Report and the indifference shown to it, the learnedcounsel for the petitioners and intervenors have submitted thatcertain directions can be issued to the Election Commissionso that the purity of democracy is strengthened. It is urged byEthem that when the Election Commission has been conferredthe power to supervise elections, it can control party disciplineof a political party by not encouraging candidates withcriminal antecedents.”

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44. After considering various judgments of this Court on the scopeof power of the ECI under Article 324 of the Constitution, the ConstitutionBench observed thus:

“71. The aforesaid decisions are to be appositely appreciated.There is no denial of the fact that the Election CommissionGhas the plenary power and its view has to be given weightage.That apart, it has power to supervise the conduct of free andfair election. However, the said power has its limitations. TheElection Commission has to act in conformity with the lawmade by Parliament and it cannot transgress the same.”

45. The Constitution Bench thereafter in paragraphs 72 and 73recorded the suggestions given by the learned Senior Counsel appearingfor the petitioner in Writ Petition (Civil) No. 800 of 2015 for givingdirections to the ECI to deal with systemic growth of the problem ofcriminalisation of politics and the political system and recorded thus:

“74. Mr Venugopal’s submission has been supported by Mr DineshDwivedi, learned Senior Counsel appearing for the petitioners inWrit Petition (Civil) No. 536 of 2011 and Mr Sidharth Luthra,learned Amicus Curiae, to the effect that if the Court does notintend to incorporate a prior stage in criminal trial, it candefinitely direct the Election Commission to save democracyby including some conditions in the Election Symbols(Reservation and Allotment) Order, 1968 (hereinafterreferred to as “the Symbols Order”). The submission is that acandidate against whom criminal charges have been framedin respect of heinous and grievous offences should not beallowed to contest with the symbol of the party. It is urged that the direction would not amount to adding a disqualificationbeyond what has been provided by the legislature but wouldonly deprive a candidate from contesting with the symbol ofthe political party.”

46. Thereafter, the Constitution Bench records the objection ofthe learned Attorney General of India to the aforesaid suggestion, whichreads thus:

“75. The aforesaid submission is seriously opposed by the learnedAttorney General. It is the case of the first respondent that Section29-A of the Act does not permit the Election Commission of Indiato deregister a political party. To advance this view, the Union ofIndia has relied upon the decision of this Court in Indian NationalCongress (I) v. Institute of Social Welfare [Indian NationalCongress (I) v. Institute of Social Welfare, (2002) 5 SCC 685].

76. It is also the asseveration of the first respondent that the powerof this Court to issue directions to the Election Commission ofIndia have been elaborately dealt with in Assn. for DemocraticReforms [Union of India v. Assn. for Democratic Reforms,(2002) 5 SCC 294] wherein this Court held that Article 32 of the A

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Constitution of India only operates in areas left unoccupied bylegislation and in the case at hand, the Constitution of India andthe Representation of the People Act, 1951 already containprovisions for disqualification of Members of Parliament.Therefore, directing the Election Commission to (a) deregistera political party, (b) refuse renewal of a political party or (c)to not register a political party if they associate themselveswith persons who are merely charged with offences wouldamount to adopting a colourable route, that is, doing indirectlywhat is clearly prohibited under the Constitution of India andthe Representation of the People Act.

77. It is also contended on behalf of the Union of India that addinga condition to the recognition of a political party under theSymbols Order would also result in doing indirectly what isclearly prohibited. To buttress this stand, the Union of India hascited the decisions in Jagir Singh v. Ranbir Singh [JagirSingh v. Ranbir Singh, (1979) 1 SCC 560 : 1979 SCC (Cri) 348]and M.C. Mehta v. Kamal Nath [M.C. Mehta v. Kamal Nath,(2000) 6 SCC 213].

78. Further, it has been submitted by the first respondent thatSection 29-A(5) of the Act is a complete, comprehensive andunambiguous provision of law and any direction to the ElectionCommission of India to deregister or refuse registration topolitical parties who associate themselves with persons merelycharged with offences would result in violation of the doctrineof separation of powers as that would tantamount to makingaddition to a statute which is clear and unambiguous.

79. As per the first respondent, “pure law” in the nature ofconstitutional provisions and the provisions of the Act cannot besubstituted or replaced by Judge-made law. To advance thesaid stand, the first respondent has cited the judgments of thisCourt in State of H.P. v. Satpal Saini [State of H.P. v. SatpalSaini, (2017) 11 SCC 42] and Kesavananda Bharati v. State ofKerala [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC225] wherein the doctrine of separation of powers was concretisedby this Court. It is the contention of the first respondent thatanswering the present reference in the affirmative would result inviolation of the doctrine of separation of powers.

80. The first respondent has also contended that the presumptionof innocence until proven guilty is one of the hallmarks of Indiandemocracy and the said presumption attaches to every personwho has been charged of any offence and it continues until theperson has been convicted after a full-fledged trial where evidenceis led. Penal consequences cannot ensue merely on the basis ofcharge.

81. Drawing support from the judgment of this Court in AmitKapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander,(2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri)986] , it is averred by the first respondent that the standard ofcharging a person is always less than a prima facie case i.e. aperson can be charged if the facts emerging from the recorddisclose the existence of all the ingredients constituting the allegedoffence and, therefore, the consequences of holding that a personwho is merely charged is not entitled to membership of a politicalparty would be grave as it would have the effect of taking awaya very valuable advantage of the symbol of the political party.

82. It has been further contended by the first respondent thatevery citizen has a right under Article 19(1)(c) to form associationswhich includes the right to be associated with persons who areotherwise qualified to be Members of Parliament under theConstitution of India and under the law made by Parliament.Further, this right can only be restricted by law made by Parliamentand any direction issued by the Election Commission of India underArticle 324 is not law for the purpose of Article 19(1)(c).

83. The first respondent also submits that the Act already containsdetailed provisions for disclosure of information by a candidate inthe form of Section 33-A which requires every candidate to discloseinformation pertaining to offences that he or she is accused of.This information is put on the website of the Election Commissionof India and requiring every member of a political party to disclosesuch information irrespective of whether he/she is contestingelection will have serious impact on the privacy of the said member.

84. Relying upon the decisions in Union of India v. DeokiNandan Aggarwal [Union of India v. Deoki NandanAggarwal, 1992 Supp (1) SCC 323 : 1992 SCC (L&S) 248]

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and Supreme Court Bar Assn. v. Union of India [SupremeCourt Bar Assn. v. Union of India, (1998) 4 SCC 409], the firstrespondent has submitted that Article 142 of the Constitution ofIndia does not empower this Court to add words to a statuteor read words into it which are not there and Article 142 doesnot confer the power upon this Court to make law.

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85. As regards the issue that there is a vacuum which necessitatesinterference of this Court, the first respondent has contended thatthis argument is untenable as the provisions of the Constitutionand the Act are clear and unambiguous and, therefore, answeringthe question referred to in the affirmative would be in the teeth ofthe doctrine of separation of powers and would be contrary to theprovisions of the Constitution and to the law enacted byParliament.”

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D47. The Constitution Bench thereafter analysed the provisions ofthe Symbols Order and observed thus:

“95. What comes to the fore is that when a candidate has beenset up in an election by a particular political party, then such acandidate has a right under sub-clause (3) of Clause 8 to choosethe symbol reserved for the respective political party by whichhe/she has been set up. An analogous duty has also been placedupon the Election Commission to allot to such a candidate thesymbol reserved for the political party by which he/she has beenset up and to no other candidate.

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96. Assuming a hypothetical situation, where a particular symbolis reserved for a particular political party and such a political partysets up a candidate in elections against whom charges have beenframed for heinous and/or grievous offences and if we were toaccept the alternative proposal put forth by the petitioners todirect the Election Commission that such a candidate cannotbe allowed to contest with the reserved symbol for the politicalparty, it would tantamount to adding a new ground fordisqualification which is beyond the pale of the judicial armof the State. Any attempt to the contrary will be a colourableexercise of judicial power for it is axiomatic that “what cannot F

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be done directly ought not to be done indirectly” which is awell-accepted principle in the Indian judiciary.”

48. It could thus clearly be seen that the Constitution Bench hasspecifically rejected the alternative proposal made by the counsel forthe petitioners and the learned Amicus Curiae therein with regard to adirection to the ECI to the effect that a candidate against whom chargeshave been framed for heinous and/or grievous offences cannot be allowedto contest with the reserved symbol for the political party. The ConstitutionBench thus observed that it would tantamount to adding a new groundfor disqualification which is beyond the pale of the judicial arm of State.It observed that any attempt to the contrary would be a colourable exerciseof judicial power for it is axiomatic that ‘what cannot be done directlyought not to be done indirectly’ which is a well-accepted principle in theIndian Judiciary.

49. Thereafter, after considering various judgments of this Court,the Constitution Bench observed thus:

“105. Thus analysed, the directions to the Election Commissionas sought by the petitioners runs counter to what has beenstated hereinabove. Though criminalisation in politics is abitter manifest truth, which is a termite to the citadel ofdemocracy, be that as it may, the Court cannot make the law.

106. Directions to the Election Commission, of the nature assought in the case at hand, may in an idealist world seem tobe, at a cursory glance, an antidote to the malignancy ofcriminalisation in politics but such directions, on a closerscrutiny, clearly reveal that it is not constitutionallypermissible. The judicial arm of the State being laden withthe duty of being the final arbiter of the Constitution andprotector of constitutional ethos cannot usurp the power whichit does not have.”

50. The Constitution Bench therefore observes that thoughcriminalisation in politics is a bitter manifest truth, which is a termite inthe citadel of democracy, the Court cannot make law. It observes thatthe directions to the ECI, of the nature as sought in the case at hand, A

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Amay in an idealistic world, seem, at a cursory glance, to be an antidote tothe malignancy of criminalisation in politics, but such directions, on acloser scrutiny, clearly reveal that it is not constitutionally permissible. Itgoes on to say that as the protector of the constitutional ethos, it cannotusurp the power which it does not have.

B51. In paragraph 107, the Constitution Bench recommends thatParliament bring out a strong law whereby it is mandatory for the politicalparties to revoke membership of persons against whom charges areframed in heinous and grievous offences and not to set-up such personsin elections. However, the Constitution Bench being not oblivious to theissue of criminalisation of politics and the right of the voters to be awareCabout the antecedents of the candidates who contest in the electionobserved thus:

“115. In PUCL v. Union of India [PUCL v. Union of India,(2013) 10 SCC 1 : (2013) 4 SCC (Civ) 587 : (2013) 3 SCC (Cri)769 : (2014) 2 SCC (L&S) 648] , the Court held that the universalDadult suffrage conferred on the citizens of India by the Constitutionhas made it possible for these millions of individual voters to go tothe polls and thereby participate in the governance of our country.It has been further ruled that for democracy to survive, it isessential that the best available men should be chosen as theEpeople’s representatives for the proper governance of the country.The best available people, as is expected by the democraticsystem, should not have criminal antecedents and the votershave a right to know about their antecedents, assets and otheraspects. We are inclined to say so, for in a constitutionaldemocracy, criminalisation of politics is an extremelyFdisastrous and lamentable situation. The citizens in ademocracy cannot be compelled to stand as silent, deaf andmute spectators to corruption by projecting themselves ashelpless. The voters cannot be allowed to resign to their fate.The information given by a candidate must express everythingGthat is warranted by the Election Commission as per law.Disclosure of antecedents makes the election a fair one andthe exercise of the right of voting by the electorate also getssanctified. It has to be remembered that such a right isparamount for a democracy. A voter is entitled to have aninformed choice. If his right to get proper information is D

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scuttled, in the ultimate eventuate, it may lead to destructionof democracy because he will not be an informed voter havingbeen kept in the dark about the candidates who are accusedof heinous offences. In the present scenario, the information givenby the candidates is not widely known in the constituency and themultitude of voters really do not come to know about theantecedents. Their right to have information suffers.”

52. After observing the aforesaid, the Constitution Bench has issuedthe directions, which are already reproduced hereinabove.

53. It could thus be seen that a suggestion similar to one which ismade to us with regard to directing the ECI for suspending or withdrawingthe recognition of political parties which flout the directions, was madebefore the Constitution Bench by the learned counsel for the petitionerand the Amicus Curiae therein. The Constitution Bench after elaboratelyconsidering the said issue, held that issuing such a direction would amountto entering into the legislative arena and as such, such a direction couldnot be issued. In our view, in the teeth of the observations made by theConstitution Bench in paragraph 96, though some suggestions made byShri Viswanathan are laudable, it will not be possible for us to accede tothem.

54. It will also be relevant to refer to paragraph 40 of the judgmentof this Court in the case of Indian National Congress (I) v. Instituteof Social Welfare and Others[8]:

“40. It may be noted that Parliament deliberately omitted to vestthe Election Commission of India with the power to deregister apolitical party for non-compliance with the conditions for the grantof such registration. This may be for the reason that under theConstitution the Election Commission of India is required tofunction independently and ensure free and fair elections. Anenquiry into non-compliance with the conditions for the grant ofregistration might involve the Commission in matters of a politicalnature and could mean monitoring by the Commission of thepolitical activities, programmes and ideologies of political parties.This position gets strengthened by the fact that on 30-6-1994 theRepresentation of the People (Second Amendment) Bill, 1994 was 8(2002) 5 SCC 685

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introduced in the Lok Sabha proposing to introduce Section 29-Bwhereunder a complaint could be made to the High Court withinwhose jurisdiction the main office of a political party is situatedfor cancelling the registration of the party on the ground that itbears a religious name or that its memorandum or rules andregulations are no longer conforming the provisions of Section29-A(5) or that the activities are not in accordance with the saidmemorandum or rules and regulations. However, this Bill lapsedon the dissolution of the Lok Sabha in 1996 (see p. 507 of HowIndia Votes: Election Laws, Practice and Procedure by V.S.Rama Devi and S.K. Mendiratta).”

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55. It will further be relevant to refer to paragraph 137 in thejudgment of this Court in Manoj Narula v. Union of India[9]:

“137. In this respect, the Prime Minister is, of course, answerableto Parliament and is under the gaze of the watchful eye of thepeople of the country. Despite the fact that certain limitationscan be read into the Constitution and have been read in thepast, the issue of the appointment of a suitable person as aMinister is not one which enables this Court to read impliedlimitations in the Constitution.”

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56. It could thus be clearly seen that the Constitution Bench in theabove case has held that though certain limitations can be read into theConstitution, the issue of appointment of a suitable person as a Ministeris not one which enables the Court to read implied limitations into theConstitution.F

57. In our view, for the same reasons, it will not be permissible forthis Court to read any implied limitations and issue directions which wouldindirectly provide for disqualification of a candidate.

58. We now come to the facts pointed out to us by the Petitionerin Contempt Petition (Civil) 656/2020 and learned Amicus Curiae.

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59. As far as Janata Dal United [Respondent No. 3] is concerned,the Petitioner in Contempt Petition (Civil) 656/2020 has pointed out thatthe reasons given by the party for the nomination of a candidate fromthe Belaganj Assembly are inadequate and not in consonance with the H9(2014) 9 SCC 1

Order of Supreme Court dated 13.02.2020. Further, it has been pointedout to this Court by the learned Amicus Curiae in his report dated09.04.2021 that the party has filed Form C1 and C2, which specifies theformat for publication of criminal antecedents of candidates by thecandidates and political parties respectively in newspapers, in a vagueand mechanical manner. The Respondent No. 3 has not enteredappearance or filed any counter affidavit to controvert this fact as ondate of this Order. This being the case, we are of the view that theRespondent No. 3 is in contempt of the Order dated 13.02.2020 forfailing to follow the directions of this Court in letter and spirit.

60. As far as the Rashtriya Janta Dal [Respondent No. 4] isconcerned, the Petitioner in Contempt Petition (Civil) 656/2020 and theLearned Amicus Curiae in his report dated 09.04.2021 have pointed outthat the party has specifically provided ‘winnability’ as the only reasonfor selection of its candidates as against those without criminalantecedents. Shri Ajay Vikram Singh, learned counsel appearing onbehalf of Respondent No. 4 has taken us through the Counter Affidavitdated 10.04.2021 and Additional Affidavit dated 13.07.2021 and submittedthat the party had failed to adhere to the format specified by the ECIdue to an inadvertent and bona fide mistake on part of its State Committeeand that reasons were given by the party based on its own understandingof the form. On perusal of the aforementioned affidavits, we are of theview that the reason cited by Respondent No. 4 for non-compliance ofdirections issued by this Court is not acceptable and that the party hascited ‘winnability’ as the only reason for selection of candidates, whichis in the teeth of our directions. This being the case, we are of the viewthat Respondent No. 4 is in contempt of the Order dated 13.02.2020 forfailing to follow the directions of this Court in letter and spirit.

61. As far as the Lok Janshakti Party [Respondent No. 5] isconcerned, the Petitioner in Contempt Petition (Civil) 656/2020 has pointedout, from the chart prepared by the ECI in its report dated 02.01.2020,that the party has given identical reasons for nomination of 5 candidatesand further that the publications have not been made in the format thathas been prescribed. Further, it has been pointed out that the party haspublished the details in newspapers which are of low circulation in AB

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Aderogation of the Order dated 13.02.2020. This apart, the learned AmicusCuriae has pointed out in his report dated 09.04.2021 that party has filledForm C1 and C2, which specifies the format of publication of criminalantecedents in newspapers, in a vague and mechanical manner. ShriShrish Kumar Mishra, learned counsel appearing on behalf of RespondentBNo. 5 took us through the Counter Affidavit dated 12.07.2021 and hassubmitted to this Court that the Forms, as required, have been publishedin various English, Urdu and Hindi newspapers. On perusal of theaffidavits as aforementioned, it is undisputed that the party has givenidentical reasons for selection of 5 of its candidates and has also filledCForm C2 in a mechanical manner. This being the case, we are of theview of Respondent No. 5 is in contempt of the Order dated 13.02.2020for failing to follow the directions of this Court in letter and spirit.

62. As far as the Indian National Congress [Respondent No. 6] isconcerned, the Petitioner in Contempt Petition (Civil) 656/2020 has pointedDout that the criminal antecedents have been published in newspaperswhich are of low circulation and that the forms in which details of criminalantecedents have to be published have been filled in a mechanicalmanner. The learned Amicus Curiae has pointed out in his report dated09.04.2021 that the party has given reasons along the lines of ‘winnability’Efor the selection of candidates that have been accused of serious offencessuch as Section 307, Indian Penal Code and Section 506, Indian PenalCode. Shri Nishant Patil, learned counsel appearing on behalf ofRespondent No.6 took us through the Counter Affidavit dated 14.07.2021and submitted that the party had followed all directions issued by thisFCourt and that therefore they were not in contempt of our directions Onperusal of the affidavits as aforementioned, we are of the view thatRespondent No. 6 has not followed our directions contained in our Orderdated 13.02.2020 in letter and spirit. This being the case, we are of theview of Respondent No. 6 is in contempt of the Order dated 13.02.2020.G63. As far as the Bharatiya Janata Party [Respondent No. 7] isconcerned, the Petitioner in Contempt Petition (Civil) 656/2020, haspointed out that the criminal antecedents have been published innewspapers which are of low circulation and that the forms in whichdetails of criminal antecedents have to be published have been filled in aHmechanical manner. The ECI through its report dated 01.02.2020 has pointed out that while the party had submitted Form C-8 for 77 candidates,it was identified by the Chief Electoral Officer, Bihar that the party hadpublished criminal antecedents in Form C-7 only for 76 candidates. Thelearned Amicus Curiae has pointed out in his report dated 09.04.2021that the party has provided reasons for selection of candidates, byreferring to serious offences such as offences under Section 386 of theIndian Penal Code and Section 506 of the Indian Penal Code andportraying them as cases that are of a trivial nature. Shri Shailesh Madiyal,learned counsel appearing on behalf of Respondent No. 7 referred towritten submissions dated 22.07.2021 and submitted that Form C-7 forone of its candidates was not submitted due to an inadvertent error andthat the party was otherwise wholly compliant with the directions containedin Order dated 13.02.2020. He further submitted that the party hasprovided reasons for selection of its candidates which are in line withour directions and that they must not therefore be held to be in contempt.On perusal of the aforementioned affidavits, we are of the view that thereason given by the party for failing to submit Form C-7 in respect ofone of its candidates is not acceptable and that the party has not providedreasons for selection of its candidates which are in line with our directions.This being the case, the Respondent No. 7 is in contempt of the Orderdated 13.02.2020.

64. As far as the Communist Party of India (Marxist) [RespondentNo. 8] is concerned, the ECI in its report dated 01.02.2020 has pointedout that the party is one of the two parties that has not submitted theForm C7 or C8 for any of its candidates and therefore is fully non-compliant with our Order dated 13.02.2020. Shri P.V. Surendranath,learned senior advocate appearing on behalf of Respondent No. 8 tookus through the counter affidavit dated 09.07.2021 and submitted that theelection process for the State of Bihar was coordinated by the StateCommittee of the party and that Form C7 and C8 were not submitteddue to oversight on part of the State Committee. He further submittedthat the party has attempted to comply with the directions of this Courtinsofar as declaration of information regarding criminal cases innewspapers and the website of the party is concerned and that theaforementioned act of non-compliance should be viewed as an isolatedincident and its unconditional apology be accepted. On perusal of the AB

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Aaforementioned affidavits, we are of the view an oversight on part ofthe State Committee of the party cannot be a ground for non-complianceof the directions passed by this Court. This being the case, theRespondent No. 8 is in contempt of the Order dated 13.02.2020.

65. As far as the Nationalist Congress Party [Respondent No. 9]Bis concerned, the ECI in its report dated 01.02.2020 has pointed out thatthe party is one of the two parties that has not submitted the Form C7 orC8 for any of its candidates and therefore is fully non-compliant withour Order dated 13.02.2020. Shri Kapil Sibal and Shri Ritin Rai, learned senior counsel appearing on behalf of Respondent No. 9 took us throughCthe counter affidavit dated 09.07.2021 and submitted that the party hadon 09.03.2020 issued directions to all Presidents/Convenors of the State/Union Territory units of the party to ensure compliance of our Orderdated 13.02.2020, however due to the dissolution of the party’s StateCommittee on 20.07.2020, the directions of this Court could not beDcomplied with in the Bihar Elections. They further submitted that 18candidates who had been identified by the party as having pending criminalcases had published their criminal antecedents in newspapers and thatthe aforementioned non-compliance be seen as an isolated incident andits apology be accepted. On perusal of the aforementioned affidavits,Ewe are of the view that the dissolution of the State Committee of theparty a few months prior to the election in the State of Bihar cannot bea ground for non-compliance of the directions passed by this Court. TheRespondent No. 9 is in complete defiance of the directions contained inour Order dated 13.02.2021 and is therefore in contempt of the Order.F

66. As far as the Bahujan Samaj Party [Respondent No. 10] isconcerned, the Petitioner in Contempt Petition (Civil) 656/2020 has pointedout that the criminal antecedents have been published in newspaperswhich are of low circulation and that the forms in which details of criminalantecedents have to be published have been filled in a mechanicalGmanner. The ECI through its report dated 01.02.2020 has pointed outthat the party had only submitted requisite details for 27 candidates,while the Chief Electoral Officer, Bihar had found that there were 2more candidates who had criminal antecedents. The learned AmicusCuriae has pointed out in his report dated 09.04.2021 that the party, inHorder to flout our directions, has justified the selection of some candidates who have been accused of heinous offences such as Section 376, IndianPenal Code by stating that there no other applications which have beenreceived for the candidature to that constituency. Shri Dinesh Dwivedi,learned senior advocate appearing on behalf of Respondent No. 10 tookus through the Counter Affidavit dated 13.07.2021 and Additional Affidavitdated 13.07.2021 and submitted that the membership of one of thecandidates with criminal antecedents whose details were not submittedto the ECI has since been cancelled and the said candidate has beenexpelled from the party on 14.04.2021 for submitting false affidavits tothe party itself. As far as the other candidate identified by the ChiefElector Officer, Bihar is concerned, it has been submitted by the partythat the requisite details have been submitted but have not been accountedfor by the Chief Electoral Officer, Bihar. On perusal of the aforementionedaffidavits, we are satisfied by the explanation given qua the 2 candidates.However, we must caution Respondent No. 10 not to pay lip service toour directions but to follow them in letter and spirit in the future includingthe directions contained in this judgment.

67. As far as the Communist Party of India [Respondent No. 11]is concerned, the Petitioner in Contempt Petition (Civil) 656/2020 haspointed out that that the criminal antecedents have been published innewspapers which are of low circulation and that the forms in whichdetails of criminal antecedents have to be published have been filled in amechanical manner. The learned Amicus Curiae has pointed out in hisreport dated 09.04.2021 that the party, in order to flout our directions,has justified the selection of some candidates who have been accusedof serious offences such as offences under Section 307, Indian PenalCode and Section 506, Indian Penal Code by stating that the cases “donot have any substance”. Shri B.K. Pal, learned counsel appearing onbehalf of Respondent No. 11 has referred to the written arguments dated22.07.2021 and submitted that the party has followed all directions issuedby this Court and that any omission pointed out in the filling up of FormC-7 or C-8 may not be viewed as a wilful violation of our directions. Onperusal of the aforementioned affidavits, we are of the view that theRespondent No. 11 has not followed the directions contained in our Orderdated 13.02.2020 in letter and spirit. This being the case, the RespondentNo. 11 is in contempt of the Order dated 13.02.2020.

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A68. As far as Rashtriya Lok Samta Party [Respondent no. 12] isconcerned, the Petitioner in Contempt Petition (Civil) 656/2020 and thelearned Amicus Curiae in his report dated 09.04.2021 have pointed outthat the party has given the same reason for nominating 5 of its candidates.Respondent No. 12 has not entered appearance or filed any counterBaffidavit to controvert this fact. This being the case, it is undisputed thatthe party has given identical reasons for selection of 5 of its candidatesin a stereotyped manner. Therefore, we are of the view that RespondentNo. 12 is in contempt of our Order dated 13.02.2020 for failing to followthe directions of this Court in letter and spirit.

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69. Though we have held the Respondent No. 3 to 9, 11 and 12guilty of having committed contempt of our Order dated 13.02.2020,taking into consideration that these were the first elections which wereconducted after issuance of our directions, we are inclined to take alenient view in the matter. However, we warn them that they should beDcautious in future and ensure that the directions issued by this Court aswell as the ECI are followed in letter and spirit. We direct the RespondentNos. 3,4,5,6,7 and 11 to deposit an amount of INR 1 Lakh each in theaccount created by the ECI as specified in this judgment in paragraph73(iii) within a period of 8 weeks from the date of this judgment. InsofarEas Respondent Nos. 8 and 9 are concerned, since they have not at allcomplied with the directions issued by this Court, we direct them todeposit an amount of INR 5 Lakh each in the aforesaid account withinthe aforesaid period.

70. Insofar as the ECI is concerned, we accept the argument ofFShri Vikas Singh that they cannot said to have committed any contemptof our Order dated 13.02.2020 as the circumstances pointed out by himclearly show that the ECI did bring to our notice the flouting of ourdirections contained in the said order. We must, however, caution theECI to do so as promptly as possible in future so that prompt action mayGbe taken by this Court, it being understood that the ECI must by itselftake prompt action in accordance with the directions contained in thisOrder.

71. No one can deny that the menace of criminalisation in theIndian political system is growing day by day. Also, no one can deny thatH

for maintaining purity of political system, persons with criminalantecedents and who are involved in criminalisation of political systemshould not be permitted to be the law-makers. The only question is,whether this Court can do so by issuing directions which do not havefoundation in the statutory provisions.

72. This Court, time and again, has appealed to the law-makers ofthe Country to rise to the occasion and take steps for bringing outnecessary amendments so that the involvement of persons with criminalantecedents in polity is prohibited. All these appeals have fallen on thedeaf ears. The political parties refuse to wake up from deep slumber.However, in view of the constitutional scheme of separation of powers,though we desire that something urgently requires to be done in thematter, our hands are tied and we cannot transgress into the area reservedfor the legislative arm of the State. We can only appeal to the conscienceof the law-makers and hope that they will wake up soon and carry out amajor surgery for weeding out the malignancy of criminalisation in politics.

73. In furtherance of the directions issued by the ConstitutionBench in Public Interest Foundation (supra) and our Order dated13.02.2020, in order to make the right of information of a voter moreeffective and meaningful, we find it necessary to issue the followingfurther directions:

(i) Political parties are to publish information regarding criminalantecedents of candidates on the homepage of theirwebsites, thus making it easier for the voter to get to theinformation that has to be supplied. It will also becomenecessary now to have on the homepage a caption whichstates “candidates with criminal antecedents”;

(ii) The ECI is directed to create a dedicated mobile applicationcontaining information published by candidates regardingtheir criminal antecedents, so that at one stroke, each votergets such information on his/her mobile phone;

(iii) The ECI is directed to carry out an extensive awarenesscampaign to make every voter aware about his right to knowand the availability of information regarding criminal A

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950SUPREME COURT REPORTS

Aantecedents of all contesting candidates. This shall be doneacross various platforms, including social media, websites,TV ads, prime time debates, pamphlets, etc. A fund mustbe created for this purpose within a period of 4 weeks intowhich fines for contempt of Court may be directed to beBpaid; B

(iv) For the aforesaid purposes, the ECI is also directed to createa separate cell which will also monitor the requiredcompliances so that this Court can be apprised promptly ofnon-compliance by any political party of the directionsCcontained in this Court’s Orders, as fleshed out by the ECI,in instructions, letters and circulars issued in this behalf; D

(v) We clarify that the direction in paragraph 4.4 of our Orderdated 13.02.2020 be modified and it is clarified that thedetails which are required to be published, shall be publishedwithin 48 hours of the selection of the candidate and notprior to two weeks before the first date of filing ofnominations; and

(vi) We reiterate that if such a political party fails to submitEsuch compliance report with the ECI, the ECI shall bringsuch non-compliance by the political party to the notice ofthis Court as being in contempt of this Court’s Orders/directions, which shall in future be viewed very seriously.

74. We are extremely indebted to Shri K.V. Viswanathan, learnedFAmicus Curiae who has assisted this Court in the highest traditions ofthe Bar. We thank him for his valuable assistance.

75. Contempt Petition (Civil) 656/2020 and M.A.(Diary No. 2680/2021) is disposed of in terms of this judgment.G

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Contempt Petition and M.A. disposed of.