# BRAJESH SINGH v. SUNIL ARORA & ORS

- **Citation:** [2021] 7 S.C.R. 890
- **Court:** Supreme Court of India
- **Decided:** 2021-08-10
- **Bench:** Rohinton Fali Nariman, B. R. Gavai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/brajesh-singh-v-sunil-arora-ors-35148
- **Pages:** 67

## Headnote

Contempt of Court: Contempt petition - Issue as regards
publication of criminal antecedents of the contesting candidates -
Contempt petition alleging violation of order dated 13.02.2020
passed in **Rambabu Singh Thakur's case - Allegation that there
has been wilful disobedience of Court's order by various political
parties during the Bihar Assembly Elections-2020, as regards
publication and declaration of criminal antecedents by various
political parties of their candidates - Prior thereto, directions have
been issued by the Constitution Bench of this Court in *Public
Interest Foundation's case to the effect that the contesting candidate
and the political party were obligated to inform about the criminal
antecedents of the candidates - In view of the disregard of the said
directions, as a sequel to this judgment, order dated 13.02.2020
was passed in **Rambabu Singh Thakur's case in connection with
disclosure of information of candidates with criminal antecedents
- Pursuant thereto, Election Commission of India-ECI issued letter
to all political parties asking them to comply with the directions of
the Supreme Court, and also issued a new Form C-7 and C-8 in
which the political parties were to publish the reason for selection
of candidates with criminal antecedents, and thereafter, report its
compliance within 72 hours of selection of the candidate -
Thereafter, another letter issued by ECI prescribing timelines for
publication of information regarding criminal antecedents -
However, the political parties flouting the said directions and fielding
persons whose criminal antecedents show that they have been
charge-sheeted or charged with serious offences - Held: Though
the political parties-Janata Dal United, Rashtriya Janta Dal, Lok
Janshakti Party, Indian National Congress, Bharatiya Janata Party,
and Communist Party of India held guilty for committing contempt
of the Order dated 13.02.2020, however since these were the first
[2021] 7 S.C.R. 890
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elections conducted after issuance of the directions, a lenient view
is taken and they are directed to deposit INR 1 Lakh each - As
regards Communist Party of India (Marxist) and Nationalist
Congress Party since they did not at all comply with the directions
issued by this Court, they are directed to deposit INR 5 Lakh in the
account created by the ECI - Furthermore, ECI not held guilty of
committing contempt of Order dated 13.02.2020 since they brought
to notice of this Court the flouting of the directions contained in the
said order - Issuance of further directions to make the right of
information of a voter more effective and meaningful-political
parties to publish information regarding criminal antecedents of
candidates on the homepage of their websites, ECI directed to create
a dedicated mobile application, ECI directed to carry out an
extensive awareness campaign and to create a fund for this purpose,
ECI to create compliance monitor cell, political party to publish
criminal antecedents of the candidate within 48 hours of the selection
of the candidate, and in case of non-compliance, ECI to bring it to
the notice of this Court - Representation of People Act, 1951 - ss.
8, 30, 33A, 33B - Election Symbols (Reservation and Allotment)
Order, 1968 - Clause 16-A.
Representation of People Act, 1951: s. 30 - Appointment of
dates for nominations, etc - Explained.
Election laws: Constitution Bench decision *Public Interest
Foundation's case pertaining to furnishing of complete information
about the criminal antecedents of the candidates - Elucidated.
Constitution of India: Criminalisation in the Indian political
system - Menace of - Held: For purity of political system, persons
with criminal antecedents and who are involved in criminalisation
of political system not to be permitted to be the law-makers -
Necessary amendments to be made so that the involvement of persons
with criminal antecedents in polity is prohibited - In view of
separation of powers, this Court

## Text

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SUPREME COURT REPORTS
[2021] 7 S.C.R.
BRAJESH SINGH
v.
SUNIL ARORA & ORS.
(Contempt Petition (Civil) No. 656 of 2020)
AUGUST 10, 2021
[ROHINTON FALI NARIMAN AND B. R. GAVAI, JJ.]
Contempt of Court: Contempt petition - Issue as regards
publication of criminal antecedents of the contesting candidates -
Contempt petition alleging violation of order dated 13.02.2020
passed in **Rambabu Singh Thakur's case - Allegation that there
has been wilful disobedience of Court's order by various political
parties during the Bihar Assembly Elections-2020, as regards
publication and declaration of criminal antecedents by various
political parties of their candidates - Prior thereto, directions have
been issued by the Constitution Bench of this Court in *Public
Interest Foundation's case to the effect that the contesting candidate
and the political party were obligated to inform about the criminal
antecedents of the candidates - In view of the disregard of the said
directions, as a sequel to this judgment, order dated 13.02.2020
was passed in **Rambabu Singh Thakur's case in connection with
disclosure of information of candidates with criminal antecedents
- Pursuant thereto, Election Commission of India-ECI issued letter
to all political parties asking them to comply with the directions of
the Supreme Court, and also issued a new Form C-7 and C-8 in
which the political parties were to publish the reason for selection
of candidates with criminal antecedents, and thereafter, report its
compliance within 72 hours of selection of the candidate -
Thereafter, another letter issued by ECI prescribing timelines for
publication of information regarding criminal antecedents -
However, the political parties flouting the said directions and fielding
persons whose criminal antecedents show that they have been
charge-sheeted or charged with serious offences - Held: Though
the political parties-Janata Dal United, Rashtriya Janta Dal, Lok
Janshakti Party, Indian National Congress, Bharatiya Janata Party,
and Communist Party of India held guilty for committing contempt
of the Order dated 13.02.2020, however since these were the first
[2021] 7 S.C.R. 890
890
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elections conducted after issuance of the directions, a lenient view
is taken and they are directed to deposit INR 1 Lakh each - As
regards Communist Party of India (Marxist) and Nationalist
Congress Party since they did not at all comply with the directions
issued by this Court, they are directed to deposit INR 5 Lakh in the
account created by the ECI - Furthermore, ECI not held guilty of
committing contempt of Order dated 13.02.2020 since they brought
to notice of this Court the flouting of the directions contained in the
said order - Issuance of further directions to make the right of
information of a voter more effective and meaningful-political
parties to publish information regarding criminal antecedents of
candidates on the homepage of their websites, ECI directed to create
a dedicated mobile application, ECI directed to carry out an
extensive awareness campaign and to create a fund for this purpose,
ECI to create compliance monitor cell, political party to publish
criminal antecedents of the candidate within 48 hours of the selection
of the candidate, and in case of non-compliance, ECI to bring it to
the notice of this Court - Representation of People Act, 1951 - ss.
8, 30, 33A, 33B - Election Symbols (Reservation and Allotment)
Order, 1968 - Clause 16-A.
Representation of People Act, 1951: s. 30 - Appointment of
dates for nominations, etc - Explained.
Election laws: Constitution Bench decision *Public Interest
Foundation's case pertaining to furnishing of complete information
about the criminal antecedents of the candidates - Elucidated.
Constitution of India: Criminalisation in the Indian political
system - Menace of - Held: For purity of political system, persons
with criminal antecedents and who are involved in criminalisation
of political system not to be permitted to be the law-makers -
Necessary amendments to be made so that the involvement of persons
with criminal antecedents in polity is prohibited - In view of
separation of powers, this Court cannot transgress into the area
reserved for the legislature - In view thereof, appeal to the
conscience of the law-makers to weed out the malignancy of
criminalisation in politics.
Disposing of the Contempt Petition (C) 656/2020 and M.A
(Diary No. 2680/2021), the Court
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HELD: 1.1 Vide directions in the Order dated 13.02.2020
in **Rambabu Singh Thakur v. Sunil Arora and Ors., in paragraph
4.1, this Court had directed the political parties to upload on their
websites detailed information regarding individuals with pending
criminal cases who have been selected as candidates, along with
the reasons for such selection, and also as to why other individuals
without criminal antecedents could not be selected as candidates.
Further, through paragraph 4.2 of the said Oder, it was directed
that the reasons as to the selection shall be with reference to
qualifications, achievements and merits of the candidate
concerned and not mere "winnability" at the polls. The said
directions have been given in furtherance of the directions already
given by the Constitution Bench in *Public Interest Foundation's
case, so as to enable the voter to have an informed choice while
exercising his right to vote. By the said direction, what has been
directed is only to provide information to the voter so that his
right to have information as to why a particular political party has
chosen a candidate having criminal antecedents and as to why a
political party has not chosen a candidate without criminal
antecedents, is effectively guaranteed. Such a requirement would
only enable the voter to have complete information and exercise
his right to vote effectively. [Para 25, 26][927-A-D]
1.2 There are various factors which a political party takes
into consideration while selecting a candidate. As a citizen who
possesses requisite qualifications and is not disqualified under
any of the provisions of the Constitution or the Act of 1951, has a
right to contest an election and a voter has a right to vote a
candidate of his choice, a political party would also have the
discretion to choose a candidate of its choice. [Para 27][927-DE]
1.3 A possibility of a rival implicating someone falsely, as a
political vendetta, is not unknown in the country. Take a situation
wherein otherwise a highly meritorious candidate has been falsely
implicated in some criminal matters by his rivals. As against this,
a person who has a clean record, but totally unknown to the
electorate in that area, applies for a ticket of a political party. In
such a situation, a political party can always give a reason that a
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candidate with criminal antecedents is found to be more suitable
than a person who does not have criminal antecedents. The
reasons could be many. If the political party is of the prima facie
opinion that such a candidate has been falsely implicated, it can
say so. What has been provided in paragraph 4.2 of the Order
dated 13.02.2020 is that the reasons should not be with regard to
"mere winnability at the polls". As such, though a political party
would have the freedom of selecting candidates of its choice,
though having criminal antecedents, what would be required is
to give reasons in support of such selection, and the reasons
could be dependent on various factors including qualifications,
achievements and other merits. Such a direction is only to enable
a voter to have all the necessary information, so that he can
exercise his right to franchise in an effective manner. The
directions in no way impinge upon the right of a political party to
choose a candidate of its own choice.The direction contained in
paragraph 4.4 of the Order dated 13.02.2020 requires that the
details as to information regarding candidates are required to be
published within 48 hours of selection of the candidate or not
less than two weeks before the first date for filing of nominations,
whichever is earlier. [Para 28, 29][927-E-H; 928-A-C]
1.4 It is a ground reality that in most of the cases the
candidates are finalised by the political parties between the period
commencing from the date of notification till the last date of
withdrawal. Direction No. 4.4 requires the details 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, whichever
is earlier. There should be no difficulty insofar as requirement to
publish the details within 48 hours from the selection of candidate
is concerned. It could thus be seen that in the light of the statutory
provision as it exists, it would not be possible to follow the
direction to publish the details prior to two weeks before the
first date of filing of nomination. [Para 33, 34][929-E-F]
1.5 No doubt the counsel addressed for the ECI and later
on as an Officer of the Court, made a suggestion that the political
parties could be directed to finalise their candidates before a
substantial period and as such, such a direction could be complied
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with. Unless the competent legislature takes a call on the issue
and makes suitable statutory provisions, it will not be permissible
for this Court to lay down such a guideline. [Para 35][929-G-H]
1.6 It could be clearly seen that the Constitution Bench in
*Public Interest Foundation's case has, in unequivocal terms, held
that the Court cannot legislate. It is further held that the
prescription as regards disqualification is complete in view of
the language employed in Section 7(b) read with Sections 8 to
10-A of the Representation of the People's Act, 1951. There is
no ambiguity. It has further held that the legislature has very
clearly enumerated the grounds for disqualification and the
language of the said provision leaves no room for any new ground
to be added or introduced. It could thus clearly be seen that the
Constitution Bench has specifically rejected the alternative
proposal made by the counsel for the petitioners and the Amicus
Curiae therein with regard to a direction to the ECI to the effect
that a candidate against whom charges have been framed for
heinous and/or grievous offences cannot be allowed to contest
with the reserved symbol for the political party. The Constitution
Bench thus observed that it would tantamount to adding a new
ground for disqualification which is beyond the pale of the judicial
arm of State. It observed that any attempt to the contrary would
be a colourable exercise of judicial power for it is axiomatic that
'what cannot be done directly ought not to be done indirectly'
which is a well-accepted principle in the Indian Judiciary. The
Constitution Bench therefore observes that though
criminalisation in politics is a bitter manifest truth, which is a
termite in the citadel of democracy, the Court cannot make law.
It observes that the directions to the ECI, of the nature as sought
in the case at hand, may in an idealistic world, seem, at a cursory
glance, to be an antidote to the malignancy of criminalisation in
politics, but such directions, on a closer scrutiny, clearly reveal
that it is not constitutionally permissible. It goes on to say that as
the protector of the constitutional ethos, it cannot usurp the power
which it does not have. The Constitution Bench recommends
that Parliament bring out a strong law whereby it is mandatory
for the political parties to revoke membership of persons against
whom charges are framed in heinous and grievous offences and
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not to set-up such persons in elections. However, the Constitution
Bench being not oblivious to the issue of criminalisation of politics
and the right of the voters to be aware about the antecedents of
the candidates who contest in the election. [Para 40, 48, 50,
51][932-A-B; 939-B-D, G-H; 940-A-C]
1.7 It could be seen that a suggestion similar to one which
is made to this Court with regard to directing the ECI for
suspending or withdrawing the recognition of political parties
which flout the directions, was made before the Constitution
Bench by the counsel for the petitioner and the Amicus Curiae
therein. The Constitution Bench after elaborately considering
the said issue, held that issuing such a direction would amount to
entering into the legislative arena and as such, such a direction
could not be issued. In the teeth of the observations made by the
Constitution Bench, though some suggestions made by the
counsel are laudable, it will not be possible to accede to them. It
will not be permissible for this Court to read any implied limitations
and issue directions which would indirectly provide for
disqualification of a candidate. [Para 53, 57][941-C-E; 942-F-G]
2.1 As regards Janata Dal United-respondent No. 3, it has
been pointed out that the reasons given by the party for the
nomination of a candidate from the Belaganj Assembly are
inadequate and not in consonance with the Order of Supreme
Court dated 13.02.2020; and that the party has filed Form C1
and C2, which specifies the format for publication of criminal
antecedents of candidates by the candidates and political parties
respectively in newspapers, in a vague and mechanical manner.
The Respondent No. 3 has not entered appearance or filed any
counter affidavit to controvert this fact as on date of this Order.
[Para 59][942-G-H; 943-A-B]
2.2 As regards Rashtriya Janta Dal-respondent No. 4, it
has been pointed out that the party has specifically provided
'winnability' as the only reason for selection of its candidates as
against those without criminal antecedents. Respondent no. 4
submitted that the party had failed to adhere to the format specified
by the ECI due to an inadvertent and bona fide mistake on part
of its State Committee and that reasons were given by the party
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based on its own understanding of the form. On perusal of the
affidavits, the reason cited by respondent No. 4 for noncompliance of directions issued by this Court is not acceptable
and that the party has cited 'winnability' as the only reason for
selection of candidates, which is in the teeth of our directions.
[Para 60][943-C-F]
2.3 As regards the Lok Janshakti Party-respondent No. 5,
it has been pointed out, from the chart prepared by the ECI, that
the party has given identical reasons for nomination of 5
candidates and further that the publications have not been made
in the format that has been prescribed; that the party has published
the details in newspapers which are of low circulation in derogation
of the Order dated 13.02.2020; and that party has filled Form C1
and C2, which specifies the format of publication of criminal
antecedents in newspapers, in a vague and mechanical manner.
Respondent no. 5 submitted that the Forms, as required, have
been published in various English, Urdu and Hindi newspapers.
On perusal of the affidavits, it is undisputed that the party has
given identical reasons for selection of 5 of its candidates and
has also filled Form C2 in a mechanical manner. [Para 61][943-FH; 944-A-B]
2.4 As regards the Indian National Congress-respondent
No. 6, it has been pointed out that the criminal antecedents have
been published in newspapers which are of low circulation and
that the forms in which details of criminal antecedents have to be
published have been filled in a mechanical manner; and that the
party has given reasons along the lines of 'winnability' for the
selection of candidates that have been accused of serious offences
such as Section 307 and Section 506 IPC. Respondent no. 6
submitted that the party had followed all directions issued by this
Court and that therefore they were not in contempt of the
directions. On perusal of the affidavits, respondent No. 6 has not
followed the directions contained in the Order dated 13.02.2020
in letter and spirit. [Para 62][944-C-F]
2.5 As regards the Bharatiya Janata Party-respondent No.
7, it has been pointed out that the criminal antecedents have
been published in newspapers which are of low circulation and
that the forms in which details of criminal antecedents have to be
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published have been filled in a mechanical manner; that while
the party had submitted Form C-8 for 77 candidates, it was
identified by the Chief Electoral Officer, Bihar that the party had
published criminal antecedents in Form C-7 only for 76
candidates; and that the party has provided reasons for selection
of candidates, by referring to serious offences such as offences
under Section 386 and Section 506 IPC and portraying them as
cases that are of a trivial nature. Respondent no. 7 submitted
that Form C-7 for one of its candidates was not submitted due to
an inadvertent error and that the party was otherwise wholly
compliant with the directions contained in Order dated
13.02.2020; and that the party has provided reasons for selection
of its candidates which are in line with our directions and that
they must not therefore be held to be in contempt. On perusal of
the affidavits, the reason given by the party for failing to submit
Form C-7 in respect of one of its candidates is not acceptable
and that the party has not provided reasons for selection of its
candidates which are in line with our directions. [Para 63][944-FH; 945-A-C]
2.6 As regards the Communist Party of India (Marxist)-
respondent No. 8, it is pointed out that the party is one of the two
parties that has not submitted the Form C7 or C8 for any of its
candidates and therefore is fully non-compliant with our Order
dated 13.02.2020. Respondent no. 8 submitted that the election
process for the State of Bihar was coordinated by the State
Committee of the party and that Form C7 and C8 were not
submitted due to oversight on part of the State Committee; and
that the party has attempted to comply with the directions of this
Court insofar as declaration of information regarding criminal cases
in newspapers and the website of the party is concerned and that
the aforementioned act of non-compliance should be viewed as
an isolated incident and its unconditional apology be accepted.
On perusal of the affidavits, an oversight on part of the State
Committee of the party cannot be a ground for non-compliance
of the directions passed by this Court. [Para 64][945-D-G]
2.7 As regards the Nationalist Congress Party-respondent
No. 9, it is pointed out that the party is one of the two parties that
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has not submitted the Form C7 or C8 for any of its candidates
and therefore is fully non-compliant with our Order dated
13.02.2020. Respondent no. 9 submitted that the party had on
09.03.2020 issued directions to all Presidents/Convenors of the
State/Union Territory units of the party to ensure compliance of
our Order dated 13.02.2020, however due to the dissolution of
the party's State Committee on 20.07.2020, the directions of this
Court could not be complied with in the Bihar Elections; and that
the 18 candidates who had been identified by the party as having
pending criminal cases had published their criminal antecedents
in newspapers and that the aforementioned non-compliance be
seen as an isolated incident and its apology be accepted. On
perusal of the affidavits, the dissolution of the State Committee
of the party a few months prior to the election in the State of
Bihar cannot be a ground for non-compliance of the directions
passed by this Court. [Para 65][945-H; 946-A-D]
2.8 As regards the Bahujan Samaj Party-respondent No.
10, it has been pointed out that the criminal antecedents have
been published in newspapers which are of low circulation and
that the forms in which details of criminal antecedents have to be
published have been filled in a mechanical manner; and that the
party had only submitted requisite details for 27 candidates, while
the Chief Electoral Officer, Bihar had found that there were 2
more candidates who had criminal antecedents; and that the party,
in order to flout our directions, has justified the selection of some
candidates who have been accused of heinous offences such as
Section 376, IPC by stating that there no other applications which
have been received for the candidature to that constituency.
Respondent no. 10 submitted that the membership of one of the
candidates with criminal antecedents whose details were not
submitted to the ECI has since been cancelled and the said
candidate has been expelled from the party on 14.04.2021 for
submitting false affidavits to the party itself. As far as the other
candidate identified by the Chief Elector Officer, Bihar is
concerned, it has been submitted by the party that the requisite
details have been submitted but have not been accounted for by
the Chief Electoral Officer, Bihar. On perusal of the affidavits,
this Court is satisfied by the explanation given qua the 2
candidates, however, respondent No. 10 is cautioned not to pay
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lip service to our directions but to follow them in letter and spirit
in the future including the directions contained in this judgment.
[Para 66][946-D-H; 947-A-B]
2.9 As regards the Communist Party of India-respondent
No. 11, it has been pointed out that that the criminal antecedents
have been published in newspapers which are of low circulation
and that the forms in which details of criminal antecedents have
to be published have been filled in a mechanical manner; that the
party, in order to flout our directions, has justified the selection
of some candidates who have been accused of serious offences
such as offences under Section 307 and Section 506 IPC by stating
that the cases "do not have any substance". Respondent no. 11
submitted that the party has followed all directions issued by this
Court and that any omission pointed out in the filling up of Form
C-7 or C-8 may not be viewed as a wilful violation of our directions.
On perusal of the affidavits, the Respondent No. 11 has not
followed the directions contained in the Order dated 13.02.2020
in letter and spirit. [Para 67][947-B-F]
2.10 As regards Rashtriya Lok Samta Party-respondent no.
12, it has been pointed out that the party has given the same
reason for nominating 5 of its candidates. Respondent No. 12
has not entered appearance or filed any counter affidavit to
controvert this fact. This being the case, it is undisputed that the
party has given identical reasons for selection of 5 of its candidates
in a stereotyped manner. [Para 68][947-F-G]
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
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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:
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(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.
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**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
referred to
Para 4
[2002] 3 SCR 696
referred to
Para 12
[2003] 2 SCR 1136
referred to
Para 14
(2019) 9 SCC 1
referred to
Para 15
[2014] 4 SCR 446
referred to
Para 20
[2018] 10 SCR 141
followed
Para 26, 40, 48,
50, 51, 53, 73
[2013] 10 SCR 1130
referred to
Para 38
[2002] 3 SCR 1040
referred to
Para 54
[2014] 9 SCR 965
referred to
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
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M.A. Diary No. 2680 of 2021 in Contempt Petition (Civil) No.
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
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[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/SDRVol.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 Assembly2020, 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
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respectively with criminal antecedents, did not furnish the requisite
information in the prescribed format to the Commission.
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.
Phase
Last date for filing
nominations
1.

Phase I
08.10.2020
2.

Phase II
16.10.2020
3.
Phase III
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
(For Phase 1)
Submitted via
Party's letter
bearing date as
below
(For Phase 2)
Submitted via
Party's letter
bearing date as
below
(For Phase 3)
Submitted via
Party's letter
bearing date as
below
1.
Bhartiya Janata Party
(BJP)
23.10.2020
23.10.2020
29.10.2020
2.
Janata Dal (United) [JD(U)]
15.10.2020
21.10.2020
04.11.2020
3.
Rashtriya Lok Samata Party
(RLSP)
30.10.2020
30.10.2020
30.10.2020
4.
Bahujan Samajwadi Party
(BSP)
07.10.2020
09.10.2020
10.10.2020
15.10.2020
16.10.2020
17.10.2020
19.10.2020
20.10.2020
22.10.2020
5.
Indian National Congress
(INC)
22.10.2020
22.10.2020
24.10.2020
6.
Lok Janshakti Party
(LJP)
24.10.2020
24.10.2020
26.10.2020
7.
Communist Party of India
(CPI)
15.10.2020
22.10.2020
15.10.2020
8.
Rashtriya Janata Dal
(RJD)
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
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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
1(2020) 3 SCC 733
2(2019) 3 SCC 224
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mean that the same shall be done at least thrice after filing of the
nomination papers."
6. The directions contained in our Order dated 13.02.2020 may
first be set out:
"1. This contempt petition raises grave issues regarding the
criminalisation of politics in India and brings to our attention a
disregard of the directions of a Constitution Bench of this Court in
Public Interest Foundation and Ors. v. Union of India and
Anr. (2019) 3 SCC 224.
2. In this judgment, this Court was cognisant of the increasing
criminalisation of politics in India and the lack of information about
such criminalisation amongst the citizenry. In order to remedy this
information gap, this Court issued the following directions:
"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
mean that the same shall be done at least thrice after filing of the
nomination papers."
3. On a perusal of the documents placed on record and after
submissions of counsel, it appears that over the last four general
BRAJESH SINGH v.