BRAJESH SINGH v. SUNIL ARORA & Ors.

2.11 Though the respondent No. 3 to 9, 11 and 12 have been held guilty of having committed contempt of the Order dated 13.02.2020, taking into consideration that these were the first elections which were conducted after issuance of the directions, a lenient view is taken in the matter. However, they are warned that they should be cautious in future and ensure that the directions issued by this Court as well as the ECI are followed in letter and spirit. The respondent Nos. 3, 4, 5, 6,7 and 11 are directed to deposit an amount of INR 1 Lakh each in the account created by the ECI as specified in this judgment in paragraph 73(iii) within the stipulated period. Insofar as respondent Nos. 8 and 9 are concerned, since they have not at all complied with the A B C D E F G H 900 SUPREME COURT REPORTS [2021] 7 S.C.R. directions issued by this Court, they are directed to deposit an amount of INR 5 Lakh each in the said account within the stipulated period. [Para 69][947-H; 948-A-C]

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

#3. No one can deny that the menace of criminalisation in the Indian political system is growing day by day. Also, no one can deny that for maintaining purity of political system, persons with criminal antecedents and who are involved in criminalisation of political system should not be permitted to be the law-makers. This Court, time and again, has appealed to the law-makers of the Country to rise to the occasion and take steps for bringing out necessary amendments so that the involvement of persons with criminal antecedents in polity is prohibited. All these appeals have fallen on the deaf ears. The political parties refuse to wake up from deep slumber. However, in view of the constitutional scheme of separation of powers, though there is a desire that something urgently requires to be done in the matter, hands are tied and this Court cannot transgress into the area reserved for the legislative arm of the State. This Court can only appeal to the conscience of the law-makers and hope that they will wake up soon and carry out a major surgery for weeding out the malignancy of criminalisation in politics. [Para 71, 72][948-E-H; 949-A]

#4. In furtherance of the directions issued by the Constitution Bench in Public Interest Foundation and our Order dated 13.02.2020, in order to make the right of information of a voter more effective and meaningful, the following further directions are issued: A B C D E F G H BRAJESH SINGH v. SUNIL ARORA & ORS. 901 (i) Political parties are to publish information regarding criminal antecedents of candidates on the homepage of their websites, thus making it easier for the voter to get to the information that has to be supplied. It will also become necessary now to have on the homepage a caption which states “candidates with criminal antecedents”; (ii) The ECI is directed to create a dedicated mobile application containing information published by candidates regarding their criminal antecedents, so that at one stroke, each voter gets such information on his/her mobile phone; (iii) The ECI is directed to carry out an extensive awareness campaign to make every voter aware about his right to know and the availability of information regarding criminal antecedents of all contesting candidates. This shall be done across various platforms, including social media, websites, TV ads, prime time debates, pamphlets, etc. A fund must be created for this purpose within a period of 4 weeks into which fines for contempt of Court may be directed to be paid; (iv) The ECI is also directed to create a separate cell which will also monitor the required compliances so that this Court can be apprised promptly of non-compliance by any political party of the directions contained in this Court’s Orders, as fleshed out by the ECI, in instructions, letters and circulars issued in this behalf; (v) Modifying the direction in paragraph 4.4 of the Order dated 13.02.2020, it is clarified that the details which are required to be published, shall be published within 48 hours of the selection of the candidate and not prior to two weeks before the first date of filing of nominations; and (vi) If such a political party fails to submit such compliance report with the ECI, the ECI shall bring such non- compliance by the political party to the notice of this Court as being in contempt of this Court’s Orders/directions, which shall in future be viewed very seriously. [Para 73][949-B-H; 950-A-F] *Public Interest Foundation and others v. Union of India and another (2019) 3 SCC 224 : [2018] 10 SCR 141 – followed. A B C D E F G H 902 SUPREME COURT REPORTS [2021] 7 S.C.R. **Rambabu Singh Thakur v. Sunil Arora and Ors. (2020) 3 SCC 733; Union of India v. Association for Democratic 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 SCC 399 : [2003] 2 SCR 1136; Satish Ukey v. Devendra Gangadharrao Fadnavis and Another (2019) 9 SCC 1; Pravasi Bhalai Sangathan v. Union of India and Others (2014) 11 SCC 477 : [2014] 4 SCR 446; Lily Thomas v. Union of India and Others (2013) 7 SCC 653 : [2013] 10 SCR 1130; Indian National Congress (I) v. Institute of Social Welfare and Others (2002) 5 SCC 685 : [2002] 3 SCR 1040; Manoj Narula v. Union of India (2014) 9 SCC 1 : [2014] 9 SCR 965 – referred to. Case Law Reference (2020) 3 SCC 733 [2002] 3 SCR 696 [2003] 2 SCR 1136 (2019) 9 SCC 1 [2014] 4 SCR 446 referred to referred to referred to referred to referred to Para 4 Para 12 Para 14 Para 15 Para 20 [2018] 10 SCR 141 followed Para 26, 40, 48, 50, 51, 53, 73 [2013] 10 SCR 1130 referred to [2002] 3 SCR 1040 [2014] 9 SCR 965 referred to referred to Para 38 Para 54 Para 55 INHERENT JURISDICTION: Contempt Petition (Civil) No.656 of 2020 in Contempt Petition (Civil) No.2192 of 2018 in Writ Petition (Civil) No.536 of 2011. Petition filed for contempt of this Court’s Order dated 13.02.2020 in Contempt Petition (C) No.2192 of 2018 in W.P. (C) No.536 of 2011. With A B C D E F G H BRAJESH SINGH v. SUNIL ARORA & ORS. 903 M.A. Diary No. 2680 of 2021 in Contempt Petition (Civil) No. A 2192 of 2018. K.V. Viswanathan (AC), Rajiv Dutta, Harish Salve, Vikas Singh, Devadatt Kamat, PV Surendranath, Ritin Rai, Dinesh Dwivedi, Mahesh Jethmalani, Sr. Advs., R. Venkataraman, Apoorv Singhal, Amartya A. Sharan, Rahul Sangwan, Sanjeev Kumar Singh, Ajit Kumar, Avinash Kumar, Raghvendra Pratap Singh, Shighra Kumar, Kumar Dushyant Singh, 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 Kumar Misra, Ajay Kumar, Ms. Deepika Mishra, Nishanth Patil, Rajesh Inamdar, Vidit Monga, Ms. Shubhika Saluja, Subhash Chandran K.R., Biju P Raman, K. R. Sasiprabhu, Vishnu Sharma, Ms. Kritika Bhardwaj, Shail Kumar Dwivedi, Kapil Mishra, Siddharth Krishna Dwivedi, Shailesh Madiyal, Ravi Sharma, Vaibhav Sabharwal, B. K. Pal, Advs. for the appearing 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 the flouting of its directions given vide Order dated 13.02.2020. The Petitioner describes himself in the said petition as follows: “That the Petitioner above named is an Advocate registered with Bar Council of Delhi and presently practicing in the Delhi and basically belonging from the Nalanda District of the State of Bihar. As an Officer of the Court and also as a law abiding citizen of this Country the Petitioner has self-obligated duty to apprise this Hon’ble Court regarding wilful disobedience of its order if happening somewhere and especially in the State of Petitioner itself and also where the Said Order is related with the large interest of the people who are going to exercise their Constitutional Right “Right to Vote”.”

#2. This Court issued notice on the said contempt petition on 11.02.2021 and recorded that the Election Commission of India B C D E F G H 904 SUPREME COURT REPORTS [2021] 7 S.C.R. [hereinafter referred to as “ECI”] has filed its report in compliance with the Order dated 13.02.2020. Vide a subsequent Order dated 17.03.2021, this Court had directed that Shri K.V. Viswanathan, learned Senior Advocate, be appointed to assist this Court as Amicus Curiae. Shri Viswanathan has since filed a detailed list of dates and submissions.

#3. This contempt petition arises out of elections that were held to the Bihar Legislative Assembly in October/November, 2020. The report of the ECI first sets out extracts from our Order dated 13.02.2020 and then brings to the notice of the Court that: “In compliance of above directions, the Commission issueddirections to the President/ General Secretary/ Chairperson/ Convenor of all recognizedNational and State Political Parties vide Letter No. 3/4/2020/SDR/Vol.III dated 06.03.2020. Instructions in this regard were also issued to the Chief Electoral Officers of all 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.IV dated 16.09.2020. Furthermore, the Commission also published “the Guidelines on Publicity of Criminal Antecedents by Political Parties and Candidates” in August, 2020 encapsulating all the instructions and Formats issued in this regard [Annexed herewith as Annexure R/1]. The Commission also directed the Chief Electoral Officer, Bihar vide Letter No. 464/BH-LA/ES-I/2020/ 173 dated 17.10.2020 to ensure compliance with the above noted directions of the Hon’ble Supreme Court in the General Elections to Bihar Legislative Assembly-2020 held between 28.10.2020 and 07.11.2020 [Annexed herewith as Annexure R/2] In compliance of the directions given by the Hon’ble Supreme Court vide Judgement and Order dated 13.02.2020 and in pursuance to Commission’s directions dated 17.10.2020, as per the report submitted by CEO Bihar [Annexed herewith as Annexure R/3] out of 10 recognized political parties which contested General Elections to the Bihar Legislative Assembly- 2020, 08 political parties submitted information about criminal antecedents of the contesting candidates in Format C-8 to the Commission [Annexed herewith as Annexure R/4] and only 02 political parties namely Communist Party of India (Marxist) and Nationalist Congress Party that fielded 04 and 26 candidates A B C D E F G H BRAJESH SINGH v. SUNIL ARORA & ORS. 905 respectively with criminal antecedents, did not furnish the requisite information in the prescribed format to the Commission. A It is pertinent to note that the Commission issued the Press Note announcing the schedule of the General Elections for Bihar Legislative Assembly on 25.09.2020. As per the said schedule, the last date for making nominations was as under: S.No.

#1. 2. 3. Phase Phase I Phase II Phase III Last date for filing nominations 08.10.2020 16.10.2020 20.10.2020 The following eight political parties have submitted the requisite information in the prescribed format in phase wise manner as below: As per the Format C7 and C8 submitted by these 08 Political Parties, a totalof 427 candidates with criminal antecedents participated in the GeneralElections for the Legislative Assembly of Bihar 2020 on the symbol of thesepolitical parties. S.No. Name of Political Party

#2. 3.

#8. Bhartiya Janata Party (BJP) Janata Dal (United) [JD(U)] Rashtriya Lok Samata Party (RLSP) Bahujan Samajwadi Party (BSP) Indian National Congress (INC) Lok Janshakti Party (LJP) Communist Party of India (CPI) Rashtriya Janata Dal (RJD) (For Phase 1) Submitted via Party’s letter bearing date as 23.10.2020 (For Phase 2) Submitted via Party’s letter bearing date as 23.10.2020 (For Phase 3) Subm itted via Party’s letter bearing date as 29.10.2020

15.10.2020 30.10.2020

21.10.2020 30.10.2020

04.11.2020 30.10.2020

07.10.2020

15.10.2020

20.10.2020

09.10.2020

16.10.2020

22.10.2020

10.10.2020

17.10.2020

22.10.2020

19.10.2020 22.10.2020

24.10.2020

24.10.2020

24.10.2020

26.10.2020

15.10.2020

22.10.2020

15.10.2020

20.10.2020

21.10.2020

21.10.2020 As per the Report received from CEO, Bihar, a total of 469 candidates with criminal antecedents participated in the General Elections for the Legislative Assembly of Bihar 2020 on the symbol of 10 recognised political parties, i.e. including Communist Party B C D E F G H 906 SUPREME COURT REPORTS [2021] 7 S.C.R. A B C D E F G H of India (Marxist) [04] and Nationalist Congress Party [26] which did not file the Format C-8 with the Election Commission of India The details of the information submitted in format C-7 & C-8 by the political parties in respect of candidates having criminal antecedents who contested in General Election to Legislative Assembly of Bihar, 2020 is annexed herewith as Annexure R/5.”

#4. Order dated 13.02.2020 in the case of Rambabu Singh Thakur v. Sunil Arora and Ors. (Contempt Petition (Civil) No. 2192 of 2018 in Writ Petition (Civil) No. 536 of 2011)1 was passed alleging therein disregard of the directions issued by a Constitution Bench of this Court [hereinafter referred to as ‘Constitution Bench’] in Public Interest Foundation and others v. Union of India and another2.

#5. The directions issued by the Constitution Bench in Public interest Foundation (supra) are thus: “116. Keeping the aforesaid in view, we think it appropriate to issue the following directions which are in accord with the decisions of this Court:

116.1. Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.

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

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

116.4. The political party concerned shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.

116.5. The candidate as well as the political party concerned shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we