A step too far

Context: On 13^th February 2020, the Supreme Court has ordered that political parties should publish details about the crime committed by their candidates for Lok Sabha and assembly elections.

Background:

• In 2013 Lily Thomas case, Supreme Court has ruled that legislators convicted with minimum of two years imprisonment will cease to be a member of a house immediately.

• In 2014, Supreme Court fixed one year time limit for completion of the trial against elected representatives for corruption and serious crimes.

• In 2017, Supreme Court ordered that center should make a scheme for setting special courts for trial against politicians.

• In 2018, the constitutional bench of Supreme Court ruled that political parties should publish details about criminal cases against their candidates.

The order passed by Supreme Court: As per the order of Supreme Court, it would be mandatory for political parties at central and state levels to publish details about the crime committed by their candidates for Lok Sabha and assembly elections in a local and national newspaper as well as on their social media account. The political parties will have to publish the justification for choosing a candidate with a criminal background. They will also explain to the voters that their choice of candidate is not based on his/her winnability in the elections. The Court has made these orders enforceable under Article 142 of the Constitution.

Analysis of the order of the Supreme Court:

• Winnability cannot be only criteria: As Supreme Court has made it mandatory for political parties to explain to the voters that their choice of candidates is not based on the winnability of the candidates in elections to Lok Sabha and legislative assemblies, it can be concluded that winnability cannot be only criteria for selection of candidates in the election.

• Contempt of court charges: The decision of the Court enforceable under Article 142 means that if the political parties fail to comply with the order of the Court, they will face the contempt of court charges.

• Mandatory justification: The order of the Court making it mandatory for political parties to justify their selection of candidates is a matter of opinion of the party. Major stakeholders in an election are voters, political parties, candidates and election commission.

Evaluation of the order of Supreme Court:

• Weaken the autonomy of political parties: The order of Supreme Court making it mandatory for political parties to explain to the voters that their choice of candidates is not based on the winnability of the candidates in elections to Lok sabha and legislative assemblies would weaken the autonomy of political parties.

• Interferes with the role of Election Commission: Instead of deciding the requirement of explanation to voters as a guideline to prevent the criminalization of politics, the Court has made failure of political parties to comply with the explanation requirement as charge subject to contempt of court action. As candidates currently provide their details in affidavits to the election commission, the order of the Supreme Court also interferes with the role of Election Commission as the watchdog of elections and electoral system in India.

• Overstepping its role in elections: By ordering political parties to justify their selection of candidates, Supreme Court is getting involved in the election process, where it has not a major stakeholder. The role of the Supreme Court is limited to cases of violation of Representation of the People Act. As the selection of candidates is a matter of subjective opinion of political parties, it is not clear how can the order of the Supreme Court asking political parties to justify their choice of candidates be effectively enforced.

Conclusion:

There is no doubt that the criminalization of politics has increased and the number of MPs with criminal cases has increased after starting from one in four in 2004 to one in three in 2009-2014 and finally to one in two in 2019. Supreme Court is rightly concerned and well-intentioned in its effort to lower criminalization of politics. But, in its recent order, it has overstepped its role and interfered with other democratic institutions.