A bench of Justices R F Nariman and B R Gavai expressed disapproval over some of the parties failing to upload details of criminal cases against candidates fielded in Lok Sabha and Assembly polls on their websites.

The Supreme Court on Tuesday reserved orders on a contempt of court plea against the Chief Election Commissioner and leaders of political parties for lapses in publication of criminal antecedents of candidates who contested in the recently held Bihar Assembly elections.

A bench of Justices R F Nariman and B R Gavai expressed disapproval over some of the parties failing to fully adhere to its February 13, 2020 direction to upload details of criminal cases against candidates fielded in Lok Sabha and Assembly polls on their websites besides a local vernacular newspaper and a national newspaper and social media accounts within 48 hours of the candidate selection or within two weeks of nomination, whichever is earlier.

“We don’t buy this sorry, our orders have to be followed. This cavalier and callous attitude cannot be tolerated”, Justice Nariman told Senior Advocate P V Surendranath, who appeared for the CPI(M), when told that while eight parties complied with the court’s directions had to some extent, the CPI(M) and NCP had completely failed to follow the same.

Tendering an apology, the counsel said, “We really regret it, it should not have happened. We are also of the view that there should not be criminalization of politics.”

“You are of the same view but you don’t bother to follow our directions?” asked the bench.

Appearing for the Election Commission, Senior Advocate Vikas Singh said “it will be a salutary thing if the court clarifies the Commission’s power to de-recognise political parties”.

“Dr B R Ambedkar expressed two regrets regarding the Constitution, that it could not be drafted in vernacular and that there was no stipulation of qualification for the elections. In the Constituent Assembly debates, it was expected that the voters would have the wisdom to decide who is the correct person to be elected. This has not happened,” he said, adding that “the Commission “wants to take this forward”.

The NCP counsel too tendered apology and said the reason was that the party’s state unit was dissolved. “We had communicated the ECI and court order on March 9…Ultimately all the candidates lost the election,” the counsel said.

Senior Advocate Kapil Sibal said the EC already has significant powers under the Election Symbols (Reservation and Allotment) Order, 1968, and added that these have to be carefully exercised lest it affect the country’s polity. Pointing out that many leaders have false cases foisted on them, he said there are provisions to disqualify them if convicted.

Singh said that if there is a violation by a national party, the election symbol can be frozen and suspended in whatever election they are contesting in, in another state.

Referring to the candidates with criminal antecedents fielded by the various parties in Bihar, Singh said “all have similar answers, he is a social worker etc”. He asked “when a chargesheet for rape is filed, can a political party take a stand that it is justified, or that it is a false case?” He rued that criminalisation of politics has only gone up in spite of the requirement of bringing out criminal antecedents in the public domain.

Senior Advocate Harish Salve, who also appeared for the EC, favoured action against parties who are found in egregious violation. “The absolute death knell would be freezing the symbol,” he submitted. Though there would be larger concerns of too many parties being thrown out of the political arena, they may have to be made to understand that this is not optional, said Salve.

He added that “winnability” is a criterion for candidate selection, regardless of their criminal antecedents and is not likely to change until voters are sensitised.

Senior Advocate K V Viswanathan, who is assisting the court as amicus curiae in the matter, said that a violation in one constituency should attract action and that if such deterrent is not there, parties will simply violate it.

“This is part of the public’s right to know. If this deterrent is not there, imagine the consequences. It will be honoured in its breach. The small beginning that your Lordships made will be defeated,” added Viswanathan.

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