#SupremeCourt hears contempt petitions filed over non-compliance of Feb 13, 2020 directions for political/ electoral candidates to disclose criminal antecedents through wide publication. Petitions state that these guidelines were flouted during #BiharElections 2020.
Matter before Justices RF Nariman and BR Gavai.

Senior Advocate Vikas Singh appears for ECI, Senior Adv KV Vishwanathan appears as Amicus Curiae.

Senior Adv PV Surendranath for CPI (M) tenders unconditional apology.
Justice Nariman: We don't buy this sorry, our orders have to be followed. This cavalier and callous attitude cannot be tolerated.

PV Surendranath: We really regret it, it should not have happened. We are also of the view that there should not be criminalization of politics.

Court: You are of the same view but you don't bother to follow our directions?

Counsel for Nationalist Congress Party (NCP): I also cannot say much except to tender an unconditional apology. There can be nothing except to state an unconditional apology.

Counsel for NCP: Reason was that our State unit was dissolved. We had communicated the ECI and court order on March 9 ... Ultimately all the candidates lost the election

Court: That is neither here nor there

Counsel for NCP: Steps are being taken not to repeat this

Senior Adv Vikas Singh: They fielded 26 candidates with criminal antecedents. CPI (M) field 4 candidates with criminal antecedents

Senior Advocate Dinesh Dwivedi now making submissions for Bahujan Samaj Party (BSP).

Dwivedi informs that the BSP expelled a candidate after the party got to know that she had not disclosed her criminal antecedents and that she had filed a false affidavit.

Dwivedi seeks to make submissions to supplement submissions by Amicus and to assist the Court, Court allows him to make the submissions.

Senior Advocate Kapil Sibal is making submissions: Political party is a monolith. The right hand doesn't know what the left hand is doing. There are many people at different levels.

Sibal: Even though the power is there, it has to be carefully exercised so it doesn't affect the polity of the country. If you give a hammer in their hands (ECI) it could be misused.

Sibal: Many leaders have false cases foisted on them. If they are convicted, there are already provisions (to disqualify them).

Court: How long would that take?

Sibal responds that this is the aspect where the Court may pass directions on.

Sibal argues that power under Section 16A of Election Symbols (Reservation and Allotment) Order, 1968 shouldn't be invoked.

Sibal: Please don't exercise it in this manner, it will create a lot of problems

Court asks Sibal to give written submissions:
We will certainly think over it ... Tell us what we can do within the law.

Nishanth Patil for INC says that the party has "substantially complied" with the Court's earlier order.

Ajay Vikram Singh appears for Rashtriya Janata Dal (RJD), which is respondent number 4.

Vikas Singh (for ECI): Respondent 4 is the biggest defaulter. 103 candidates with criminal antecedents fielded.

Adv Ajay Vikram Singh submits that the details required to be uploaded are now available on the homepage, there is no disguise.

#SupremeCourt asks which other political parties are left to make submissions. JDU, CPI, and RLSP are left.

Vikash Singh: JDU fielded 56 candidates (who had criminal antecedents)
Court discusses direction in earlier order that the criminal antecedents of political candidates are required to be published within 48 hours of the selection of the candidate or not less than two weeks before the first date for filing of nominations.
Dwivedi: If we ask to declare the candidates two weeks in advance, the national and richer parties would take away my candidates and nothing would be left

Singh: That's more reason why this should be implemented

Dwivedi: For someone to buy (the candidate)?

Senior Advocate Harish Salve: There is much we may want to change in our political system and there is much that at least those who are not in the political arena find uncomfortable

Salve: Parties who are found in egregious violation, the ECI should take action. The absolute death knell would be freezing the symbol ... This time, if the Court finds did not file in time, did not file correct disclosures, some action may be taken

Salve: There are larger concerns of too many parties being thrown out of the political arena. They all have the same problems. This value system may have to be pushed down their throat. They may have to be made to understand that this is not optional

Salve: With that conspectus, your Lordship may consider how to fashion directions. The change also has to come from the heart of the people .. What we all want to see is that change would come to the system. And it will come. We have come this far

Justice Nariman: What we are sure about is that the legislative branch is certainly not going to take this forward in the future. That much is certain to me.

Salve notes that "the winnability of the candidate is a criterion" for the selection of a candidate, regardless of criminal antecedents and that this is not likely to change until voters are sensitized.

Salve: In all cases, Section 16A is not called for. For the present, the Court may censure them and see how it pans out.

Senior Adv Vikas Singh now makes submissions, for ECI: 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.

Vikas Singh refers to the number of candidates with criminal antecedents fielded by 10 parties during the 2020 #BiharElections including 103 for RJD, 77 for BJP, 56 for JDU, 26 for NCP, and 4 for CPI, among others.

Singh: All (parties) have similar answers, "he is a social worker" etc. When a charge sheet for rape is filed, can a political party take a stand that it is justified, or that it is a false case?

Singh: Unfortunately, in spite of the requirement of bringing out criminal antecedents in the public domain, criminalization of politics has only gone up.

To select a candidate is one of the most important processes, Salve observes.

Court: I recollect, in the last Maharastra elections, at least 4 candidates were declared by national parties on the last date for withdrawal.

Salve notes that the problem is that candidates can be declared two weeks prior but they may be changed at the 11th hour.

#SupremeCourt: Prima facie, the law doesn't prevent that

Singh: Then your Lordships will have to change last order

SC: If it is necessary, we will change
Are you (Harish Salve) appearing or Mr Singh is appearing for ECI? #SupremeCourt asks

Both are appearing, Court told.

There is no conflict (between their submissions), Singh assures Court.
Senior advocate KV Vishwanathan (amicus curiae) makes submissions; says all parties except two have complied to some extent but there are issues to iron out; CPI (M) and NCP have absolutely not complied.

Vishwanathan: This is a compliance that every party should be mandated and tied down in accordance with law.

Vishwanathan: Suspension (of election symbol in case of violations) can be timebound. The idea is to evolve a deterrent on the party.

Court: Mr. Vishwanathan, is it possible to say in case of a non-egregious violation, you suspend time-wise. in egregious violations, like with these two parties, you can say suspend till next election?

How will you work it out for a party like the BJP or the INC? It may be difficult to suspend State-wise. A small chap in some panchayat does something, you can't throw the entire party out, Court observes.

Court says it will resume hearing the matter after lunch break.

Court: Mr. Vishwanathan, let us stop at this point. We will resume at 2 o clock.

Hearing resumes, amicus KV Vishwanathan continues making submissions. #SupremeCourt
Vishwanathan: If there is a violation of Model Code of Conduct or lawful orders of Election Commission, what is so alarming if they made to pay price by withdrawal or suspension? Court can lay appropriate guidelines, judicial review is available.

What is wrong if the provision operates if there is evidence to show if the party is behind it? Vishwanathan argues

Court: How do you find if it has been done by the party or only the candidate?

If evidence is there - if a resolution passed by the party and video recording is available? I am testing the scope of the provision. If it is available, the argument is only wrt to proportionality, Vishwanathan argues.

Vishwanathan: A violation in one constituency should attract action ... All that the Court said is submit the forms and give publicity? If this deterrent is not there, they will simply violate it. How else to enforce all this. The least to do is suspend them

Vishwanathan refers to how parties often plan how to hand out bribes.

Vishwanathan: They put code language on the currency, the public is also gullible. You Lordships have passed an order, let it be taken to the logical end.

Vishwanathan: Why would the ECI use Section 16A in a whimsical manner? If they do, the Court can interfere ... What your Lordships asked is not something extraordinary (to disclose criminal antecedents) ... It is not a huge ask.

Vishwanathan: This is part of the public's right to know. If this deterrent is not there, imagine the consequences. It will be honored in its breach. The small beginning that your Lordships made will be defeated.

Vishwanathan: Even now, Your Lordships saw the report of the Association of Democratic Reforms (on the number of candidates with criminal antecedents) .. Let the public decide. We all know against whom false cases are foisted. We all know against whom genuine cases are registered
Vishwanathan: 16A is today available, it should not be diluted. My appeal to my Lord is, keeping all this in the background, not to see this as a filing of Form C7 or C8 alone

He adds that 16A power should stay and Supreme Court can check on any possible misuse.

For the two parties that have completely violated the court's directions, CPI (M) and NCP, Vishwanathan suggests: Court may order a monetary penalty and public apology since it is the first breach. ECI may be asked why Section 16A proceedings were not initiated.

Salve agrees with Vishwanathan's last suggestion that appropriate sanctions may be imposed on the errant political parties.

Salve: And if sanction is made, let it not be Re 1, so people don't have photos taken with Re 1 handed over and a smile on their face.

Senior advocate Dwivedi raises concern that some of the earlier directions interfere with the selection process of the electoral candidate, says that selection process in political party should not be interfered with

Senior Adv PV Surendranath: One aspect, as far as CPI (M), this itself is a deterrent. Court may not pass any stringent order for the time being. From this proceeding itself, they understand the seriousness. I unconditionally apologize.

Court allows parties seeking to make written submissions to file the same. Hearing over.


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