HC nod a must to drop cases on politicians: SC
NEW DELHI: The Supreme Court on Tuesday issued directions that no criminal case against MPs or MLAs can be withdrawn without an approval of the high court of the concerned state, in a move that significantly clips the powers of the state governments at a time when the top court has expressed grave concern over the criminalisation of politics.
A bench, headed by Chief Justice of India (CJI) NV Ramana, said that the direction has to be issued urgently in view of a report by the amicus curiae (lawyer to assist the court) depicting several instances where state governments sought to drop charges against sitting and former legislators.
“We deem it appropriate to direct that no prosecution against a sitting or former MPs or MLAs shall be withdrawn without the leave of the high court,” ordered the bench, which also included justices Vineet Saran and Surya Kant, in a virtual clampdown on misuse of power by the state governments under Section 321 of the Criminal Procedure Code (CrPC) that authorises a prosecutor to seek withdrawal of a criminal case against the accused.
On the same day, another bench, comprising justices Rohinton F Nariman and BR Gavai, warned that the nation is “losing its patience” in waiting for lawmakers to cleanse politics by making stronger laws to keep out those with criminal antecedents.
Imposing monetary penalty on all major political parties for flouting its directives on disclosure of information about criminal background of their candidates during the 2020 Bihar assembly polls, this bench, in a separate judgment, exhorted lawmakers to “wake up from their deep slumber” to weed out the malignancy of criminalisation in politics.
Meanwhile, the CJI-led bench cited its earlier order on September 16, 2020, by which the high courts were asked to register suo motu (on its own motion) writ petitions to monitor trials against MPs and MLAs, and asked them to examine the cases of withdrawals, whether pending or disposed of, since September 16, 2020. Referring to a July 28-judgment by the top court in which the Kerala government’s move to withdraw cases against some of state’s sitting and former MLAs was snubbed, the bench emphasised: “The power under Section 321, CrPC, is a responsibility which is to be utilised in public interest, and cannot be used for extraneous and political considerations. This power is required to be utilised with utmost good faith to serve the larger public interest.”
The court further directed that all trial judges hearing the criminal cases against MPs and MLAs in special courts shall continue in their present posts till its further orders. To this end, the registrar general of all 25 high courts were asked to submit details of judges hearing such cases in the special courts, status of pendency, judgments delivered, and other details.
The directions were issued while hearing a plea filed by advocate Ashwini Upadhyaya, who cited staggering pendency of criminal cases against MPs and MLAs and sought their expeditious disposal by setting up special courts.
Amicus curiae senior advocate Vijay Hansaria implored the bench that no prosecution should be allowed to be withdrawn under Section 321, CrPC, against a sitting or former MP or member of legislative assembly/ council without the permission of the high court.
NEW DELHI: The nation continues to wait and is losing patience, said the Supreme Court on Tuesday as it made an “appeal to the conscience of the lawmakers hoping that they will wake up soon and carry out a major surgery for weeding out the malignancy of criminalisation in politics,” which, it added, was “growing day by day.”
Expressing anguish over the non-compliance by various political parties with its 2020 judgment on the disclosure of criminal antecedents of candidates being put up by them, the top court lamented that its exhortations for amending laws to prohibit involvement of persons with criminal antecedents “have fallen on the deaf ears”.
“The political parties refuse to wake up from deep slumber... Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government,” said the bench of justices Rohinton F Nariman and BR Gavai, maintaining that the court’s hands are tied due to constitutional scheme of separation of powers that entitles only parliament to make laws and the courts cannot legislate.
The court’s remarks came as it held the Bharatiya Janata Party (BJP), the Janata Dal (United), the Rashtriya Janata Dal (RJD) and the Congress, among others, guilty of contempt for not complying with its directions regarding complete disclosure of criminal antecedents of candidates put up by them during the Bihar assembly elections in 2020, and imposed a fine of ₹1 lakh on each.
The Communist Party of India (Marxist) and the Nationalist Congress Party were asked to cough up ₹5 lakh each for not following the court’s directions “at all”.
The bench said that the political parties, which also included Lok Janshakti Party (LJP) and Communist Party of India, shall deposit the money in a fund that will be created by the Election Commission of India (ECI) for 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”.
It directed ECI to create a dedicated mobile application containing information about criminal antecedents of the candidates so as to enable voters access such information conveniently.
The apex poll body, ordered the bench, shall also create a separate cell to monitor compliance by political parties with the court’s directions issued in February 2020 regarding disclosure of criminal backgrounds of their candidates, and bring all instances of breach to the court’s attention.
The top court, which earlier directed political parties to put out information about the cases pending against their candidates on their websites, further ordered that the parties will now create a new caption -- “candidates with criminal antecedents” on the home page of their websites to make it easier for the voter to get to the information.
The court also modified its 2020 direction, in which it obligated the parties to publish the details within 48 hours of the selection of the candidate or not less than two weeks before the first date for filing of nominations, whichever was earlier.
The court acknowledged the 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, saying the details can be published by the parties within 48 hours of the selection of the candidate, and not prior to two weeks before the first date of filing of nominations
The bench was hearing a contempt petition filed by advocate Brajesh Singh, who alleged wilful disobedience of court orders by various political parties during the Bihar assembly elections in 2020.
Singh’s petition cited a Supreme Court judgment in February 2020 that made it mandatory for all political parties to put up on their websites and publish in two newspapers information regarding the pending criminal cases against candidates being fielded by them, and the reasons for selecting them.
Singh contended that several parties failed to put in public domain the details of criminal antecedents of their candidates, apart from just citing their winnability as the factor for picking them.