The Supreme Court of India on 13th February, 2020 (Thursday) has directed all the political parties to upload all the records and details of the criminal antecedents of candidates nominated by political parties in Parliamentary and Assembly elections. The move has directed all the parties to publish the details within 48 hours from the 13th February, 2020. The Court's order comes after BJP Spokesperson, Ashwini Upadhyay filed a petition stating that after the 2018 verdict in Public Interest foundation v. Union of India, the instructions have not been followed till date.
With regard to the above matter, answering questions on issues at hand, BJP Leader Ashwini Upadhyay in conversation with LawStreet Journal Editor Kshipra Srivastava:
LawStreet Journal: You have filed a contempt petition in the Supreme Court arguing that its judgment in the case of Public Interest Foundation v. UOI has not been followed. What were the directions given by the top court in that case?
Ashwini Upadhyay: My original petition in the matter was already tagged with the Public Interest Foundation's petition in SC. On 25th September, 2018, the five judge bench passed two directions - one for the Union of India and the other for the Election Commission. The court asked the Government to take separate steps to enact laws to decriminalise politics that has been increasing day by day. The second direction was to the EC and the Contesting candidates who were supposed to disclose their criminal antecedents in electronic media, print media and social media. Unfortunately in those directions, the court did not dictate the consequences that would be faced by those who did not follow the order. In today's order, the Supreme Court has fulfilled the gap and it has been clarified that violation of the 2018 order will be treated as a contempt of court.
LawStreet Journal: Based on what facts, are you saying that those directions are not being followed?
Ashwini Upadhyay: Because I checked with leading newspapers and leading news channels to see whether the candidates have been following the order or not, there has been no publication by the parties. There has been no criminal history found on the political websites as well. When you see the results of the 2019 general elections, you will find that the criminalization of politics has been continuously increasing. In 2019 it was 43% which has now increased to more than 50% candidates that have criminal records in 2020. The Parliament is the temple of our democracy. We have good people, honest people and experienced people. Unfortunately political parties don't give them the ticket and therefore we do not have good laws and reforms in the Parliament.
LawStreet Journal: According to you, who is at fault - the Election Commission of India or the individual political parties?
Ashwini Upadhyay: I filed two contempt petitions, one against the Election Commission of India because it was not taking steps for the compliance of the Supreme Court's 2018 judgement and the other one against the Union of India, because in the last two years, we have had so many laws but unfortunately the criminalization has never been discussed till date. So both are equally at fault.
LawStreet Journal: Why do you think political parties nominate candidates despite the knowledge of the fact that these candidates have criminal antecedents?
Ashwini Upadhyay: Because the common man does not have the money nor the muscle power to adopt the illegal, immoral and illicit ways and on the other hand money launderers give away huge amounts of money to political parties and that is why they end up getting entry into the political party. In today's scenario, it is very difficult for a common man to get that entry otherwise.
LawStreet Journal: Why do you think the 2018 judgment of the Supreme Court directing parties to disclose information about criminal antecedents of nominated candidates, was not followed?
Ashwini Upadhyay: It was not followed because there is a sort of competition that is seen between political parties as to who holds more criminal records than the other. Society is easily influenced through illicit ways and that is what the political parties want and that is what they do. The parties have only one agenda - they want to win the seats, they are not concerned with what type of people they are selecting as long they have the power of the winning party. And more importantly, entirety of the governance is run by a political party. The Prime Minister and Chief Minister are not solely responsible for running the Government. The parties are responsible if the governance goes down to a bad track. The Government follows a manifesto and that is made by the parties. The ground that I have taken is that political parties are public authorities and the advantages that parties get via the public is the reason they should not be permitted to get entry into the candidacy of elections if this is how they would use the hold of governance.
LawStreet Journal: Even after the pronouncement of the SC order in today's hearing reiterating that parties need to reveal criminal antecedents of their nominated candidates, if political parties do not follow the order, what is the next legal/remedial course of action?
Ashwini Upadhyay: This has been clarified in the order itself. Today the SC has said that within 48 hours, an affidavit needs to be filed by the political parties before the Election Commission, in case the party consists of candidates having criminal antecedents. Giving with reasons as to why has the party selected that particular person and not someone with a non-criminal background. The details need to be published on their Facebook, Twitter, websites and one newspaper and news channel. The details have to be published everywhere. And within 72 hours a compliance report needs to be submitted before the EC. If the EC is satisfied, it is fine but otherwise Election Commission has the power to cancel the election of the candidate. And secondly if the party does not follow the order it will be treated as a contempt of court case that will be lodged against the President of the party. This will open two windows. The EC has the power and the EC can also seize the election symbol.
LawStreet Journal: Did the Supreme Court give any specific directions for disclosing this information - such as use of voter friendly language, details of criminal cases - sections they've been charged with, current status of the criminal case, etc.?
Ashwini Upadhyay: Yes, political parties have to not only give the sections because a normal person would not understand what a particular section stands for. That's why the parties have to publish details and disclose the criminal act they are guilty of. That will be easy to understand for the common man.
LawStreet Journal: Is there a pre-existing provision in the Representation of Peoples Act of India, 1951 which says anything about the disclosure of criminal antecedents of nominated candidates by political parties or is this a new addition to the exiting law?
Ashwini Upadhyay:There is no provision in the Representation of People's Act. This is a new addition. The Supreme Court has given power to the election commission to administer it's order, that power has not been given to the people with such a background. This an additional rule for the EC.
Law Street Journal: What compelled the Supreme Court to issue such directions in the first place? In its 2018 judgment and once again today, in the case filed by you?
Ashwini Upadhyay: Yes, I have been fighting for election reforms. In 1993 the Mumbai Blast Case, several committees had been developed that put forth various legislations for the government to comply with. But the Government didn't follow them. This Commission wishes for the reformation of the Election Commission. And I was compelled to file a case and I am happy that the Supreme Court has finally given the verdict for decriminalisation of politics.
Author - Dyuti Pandya