Holding

The Court held that the named political parties were in contempt of the order dated 13‑02‑2020, imposed fines, but the ECI was not in contempt, and the Court cannot legislate on disqualification, only issue directions to enhance voter information.

Summary

The Supreme Court entertained a contempt petition filed by Brajesh Singh alleging that several political parties wilfully disobeyed the Court's order dated 13‑02‑2020, which required parties to disclose the criminal antecedents of their candidates and the reasons for their selection, within 48 hours of nomination. The Court examined the compliance reports of the Election Commission of India (ECI) and found that parties such as JD(U), RJD, LJP, INC, BJP, CPI, and others had either provided inadequate reasons, used "winnability" as the sole justification, or failed to file the prescribed forms, thereby committing contempt. The ECI itself was not held in contempt as it had brought the violations to the Court's notice. While affirming that the judiciary cannot legislate on disqualification criteria, the Court imposed modest fines (₹1 lakh for most parties and ₹5 lakh for CPI(M) and NCP) and issued further directions to improve voter‑information mechanisms, including website disclosures, a mobile app, an awareness campaign, and a compliance cell. The petition was disposed of with the parties directed to pay the fines and comply with the new directions.

Issues considered

The political parties' failure to comply with the Supreme Court's order of 13‑02‑2020 constitutes contempt of court.
Whether the Election Commission of India is in contempt for not promptly notifying the Court of non‑compliance.
Whether the Court can direct the ECI to suspend or withdraw recognition of political parties under Clause 16‑A of the Symbols Order.
Whether the Court may prescribe new grounds of disqualification for candidates beyond the Representation of the People Act.
The practicability of publishing criminal antecedent details within 48 hours of candidate selection versus two weeks before nomination filing.
The appropriate quantum of penalty for contempt in this context.

Legislation cited

Code of Criminal Procedure, 1973s. 125-A
Election Symbols (Reservation and Allotment) Order, 1968s. Clause 16-A
Representation of the People Act, 1951s. 30, s. 33A, s. 33B, s. 8

Subjects

contempt of courtcriminal antecedentspolitical partiesElection Commission of Indiavoter informationRepresentation of the People Actdisqualificationseparation of powerselectoral reforms

Judgment

890 [2021]REPORTS
SUPREME COURT 7 S.C.R. 890 [2021] 7 S.C.R.

A BRAJESH SINGH
v.
SUNIL ARORA & ORS.
(Contempt Petition (Civil) No. 656 of 2020)
B 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
C
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
D 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
E
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
F 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
G
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
H
890
BRAJESH SINGH v. SUNIL ARORA & ORS. 891

elections conducted after issuance of the directions, a lenient view A
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
B
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 C
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
D
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.
E
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 F
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 G
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
H
892 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 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
B
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
C 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
D
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]
E 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
F candidate of his choice, a political party would also have the
discretion to choose a candidate of its choice. [Para 27][927-D-
E]
1.3 A possibility of a rival implicating someone falsely, as a
political vendetta, is not unknown in the country. Take a situation
G 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

H
BRAJESH SINGH v. SUNIL ARORA & ORS. 893

candidate with criminal antecedents is found to be more suitable A
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
B
“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 C
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
D
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 E
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 F
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]
G
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

H
894 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 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
B 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
C 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
D 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
E 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 theref ore observes that though
criminalisation in politics is a bitter manifest truth, which is a
F 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
G 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
H
BRAJESH SINGH v. SUNIL ARORA & ORS. 895

not to set-up such persons in elections. However, the Constitution A
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 B
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 C
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 D
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 E
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 F
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 G
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
H
896 SUPREME COURT REPORTS [2021] 7 S.C.R.

A based on its own understanding of the form. On perusal of the
affidavits, the reason cited by respondent No. 4 for non-
compliance 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]
B
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
C 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
D 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-F-
H; 944-A-B]
E 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
F 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
G 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
H that the forms in which details of criminal antecedents have to be
BRAJESH SINGH v. SUNIL ARORA & ORS. 897

published have been filled in a mechanical manner; that while A
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
B
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 C
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
D
candidates which are in line with our directions. [Para 63][944-F-
H; 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 E
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 F
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 G
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

H
898 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 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
B
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
C 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]
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
E 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
F 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
G 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
H candidates, however, respondent No. 10 is cautioned not to pay
BRAJESH SINGH v. SUNIL ARORA & ORS. 899

lip service to our directions but to follow them in letter and spirit A
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 B
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 C
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 D
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 E
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 F
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 G
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
H
900 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 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
B 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
C 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
D 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
E 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
F 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
G 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:

H
BRAJESH SINGH v. SUNIL ARORA & ORS. 901

(i) Political parties are to publish information regarding A
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”;
B
(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 C
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 D
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 E
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 F
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 G
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.
H
902 SUPREME COURT REPORTS [2021] 7 S.C.R.

A **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
B
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
C (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
D (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
E
[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
F
[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
G (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
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 B
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, C
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. D
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, E
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 F
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
G
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
H
904 SUPREME COURT REPORTS [2021] 7 S.C.R.

A [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.
B 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
C 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
D 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
E 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]

F 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-
G 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
H
BRAJESH SINGH v. SUNIL ARORA & ORS. 905

respectively with criminal antecedents, did not furnish the requisite A
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: B
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 C
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 D
the symbol of thesepolitical parties.
S.No. Name of Political Party (For Phase 1) (For Phase 2) (For Phase 3)
Submitted via Submitted via Subm itted via
Party’s letter Party’s letter Party’s letter
bearing date as bearing date as bearing date as
below below below
1. Bhartiya Janata Party 23.10.2020 23.10.2020 29.10.2020
(BJP)
E
2. Janata Dal (United) [JD(U)] 15.10.2020 21.10.2020 04.11.2020
3. Rashtriya Lok Samata Party 30.10.2020 30.10.2020 30.10.2020
(RLSP)
4. Bahujan Samajwadi Party 07.10.2020 15.10.2020 20.10.2020
(BSP)
09.10.2020 16.10.2020 22.10.2020

10.10.2020 17.10.2020
F
19.10.2020
5. Indian National Congress 22.10.2020 22.10.2020 24.10.2020
(INC)
6. Lok Janshakti Party 24.10.2020 24.10.2020 26.10.2020
(LJP)
7. Communist Party of India 15.10.2020 22.10.2020 15.10.2020
(CPI)
8. Rashtriya Janata Dal 20.10.2020 21.10.2020 21.10.2020
(RJD) G
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
H
906 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 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
B 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
C [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
D 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.
E
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.
F
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
G 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
H (2019) 3 SCC 224
BRAJESH SINGH v. SUNIL ARORA & ORS. 907

mean that the same shall be done at least thrice after filing of the A
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 B
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 C
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: D
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
E
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 F
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 G
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 H
908 SUPREME COURT REPORTS [2021] 7 S.C.R.

A elections, there has been an alarming increase in the incidence of
criminals in politics. In 2004, 24% of the Members of Parliament
had criminal cases pending against them; in 2009, that went up to
30%; in 2014 to 34%; and in 2019 as many as 43% of MPs had
criminal cases pending against them.
B 4. We have also noted that the political parties offer no explanation
as to why candidates with pending criminal cases are selected as
candidates in the first place. We therefore issue the following
directions in exercise of our constitutional powers under Articles
129 and 142 of the Constitution of India:
C 1) It shall be mandatory for political parties [at the Central and
State election level] to upload on their website detailed information
regarding individuals with pending criminal cases (including the
nature of the offences, and relevant particulars such as whether
charges have been framed, the concerned Court, the case number
etc.) who have been selected as candidates, along with the reasons
D for such selection, as also as to why other individuals without
criminal antecedents could not be selected as candidates.
2) The reasons as to selection shall be with reference to the
qualifications, achievements and merit of the candidate concerned,
and not mere “winnability” at the polls.
E
3) This information shall also be published in:
(a)One local vernacular newspaper and one national newspaper;
(b)On the official social media platforms of the political party,
including Facebook & Twitter.
F
4) These details shall 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.
5) The political party concerned shall then submit a report of
compliance with these directions with the Election Commission
G within 72 hours of the selection of the said candidate.
6) If a political party fails to submit such compliance report with
the Election Commission, the Election Commission shall bring such
non-compliance by the political party concerned to the notice of

H
BRAJESH SINGH v. SUNIL ARORA & ORS. 909

the Supreme Court as being in contempt of this Court’s orders/ A
directions.
5. With these directions, these Contempt Petitions are accordingly
disposed of.”
7. It may be mentioned that pursuant to this Order, the ECI issued
a letter dated 06.03.2020 addressed to all National and State level B
recognised political parties asking them to comply with the directions of
the Supreme Court, and also issued a new Form C-7 in which the political
parties have to publish the reason for selection of candidates with criminal
antecedents in addition to all other relevant information. Also, in Form
C-8, the political party was then to report compliance of this Court’s C
Order and the directions contained therein within 72 hours of selection
of the candidate. Importantly, it was made clear by the ECI that any
non-compliance or failure to abide by the directions of this Court would
be treated as a failure to follow directions as contemplated under Clause
16-A of the Election Symbols (Reservation and Allotment) Order, 1968
[hereinafter referred to as the “Symbols Order”]. D

8. A sequel to this letter was issued on 19.03.2020 by the ECI
addressed to all Chief Electoral Officers urging that they in turn should
urge political parties to file Form C-7 and C-8 promptly and that any
non-compliance shall have to be reported by the last day of making
nominations so that non-compliance by political parties could then be E
submitted by the ECI before this Court.
9. On 16.09.2020, the ECI issued another letter wherein timelines
were also prescribed for publication of information regarding criminal
antecedents during the period starting from the day following the last
date for withdrawal of nomination and upto 48 hours before ending with F
the hour fixed for conclusion of poll. It prescribed three block periods
within which such disclosures had to be made – (1) within the first four
days of withdrawal; (2) within the 5th to 8th days; and (3) from the 9th
day till the last day of the campaign or the second day prior to the date of
the poll. G
10. Armed with these instructions, the ECI, on 25.09.2020,
announced the poll schedule for the Assembly Elections to be held in the
State of Bihar. Elections were to be held in three phases with results
that were ultimately to be declared on 10.11.2020.
H
910 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 11. On 17.10.2020, the ECI sought details from the Chief Electoral
Officer, Bihar regarding candidates contesting in Phase I of the said
elections, who had criminal antecedents. The Association for Democratic
Reforms issued a report dated 20.10.2020 on the Bihar Assembly
Elections Phase I, wherein it found that 31% of the candidates have
criminal antecedents, out of which 23% have serious criminal cases
B
against them. Likewise, on 27.10.2020, another report was issued qua
Phase II, wherein it was found that 34% of total candidates have criminal
antecedents, 27% having serious criminal cases against them. Also, by a
report dated 02.11.2020, for Phase III of the Bihar Assembly Elections,
it was found that 31% of total candidates have criminal antecedents,
C 24% having serious criminal cases against them. It was also found that
the percentage of candidates contesting having criminal antecedents to
the total contesting candidates was 32% (Total Contestants 3733:
Contestants with criminal cases 1201). Even more disturbing is the
percentage of winning candidates having criminal antecedents jumping
to 68% of the total number of candidates who won as MLAs – 163 out
D
of 241. This was a 10% rise from the Assembly Elections of 2015 where
the percentage of winning candidates having criminal antecedents to the
total number of winning candidates stood at 58%. Equally disturbing is
the fact that 51% of winning candidates have serious criminal cases
against them i.e. cases related to murder, kidnapping, attempt to murder,
E crime against women including rape, etc. It is in this backdrop that the
present contempt petition has to be decided.
12. Section 8 of the Representation of People Act, 1951 [hereinafter
referred to as the “Act of 1951”], states as follows:
“8. Disqualification on conviction for certain offences.-
F
(1) A person convicted of an offence punishable under-
(a) section 153A (offence of promoting enmity between different
groups on ground of religion, race, place of birth, residence,
language, etc., and doing acts prejudicial to maintenance of
G harmony) or section 171E (offence of bribery) or section 171F
(offence of undue influence or personation at an election) or sub-
section (1) or sub-section (2) of section 376 or section 376A or
section 376B or section 376C or section 376D (offences relating
to rape) or section 498A (offence of cruelty towards a woman by
husband or relative of a husband) or sub-section (2) or sub-section
H
BRAJESH SINGH v. SUNIL ARORA & ORS. 911

(3) of section 505 (offence of making statement creating or A
promoting enmity, hatred or ill-will between classes or offence
relating to such statement in any place of worship or in any
assembly engaged in the performance of religious worship or
religious ceremonies) of the Indian Penal Code (45 of 1860); or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955) which B
provides for punishment for the preaching and practice of
“untouchability”, and for the enforcement of any disability arising
therefrom; or
(c) section 11 (offence of importing or exporting prohibited goods)
of the Customs Act, 1962 (52 of 1962); or C
(d) sections 10 to 12 (offence of being a member of an association
declared unlawful, offence relating to dealing with funds of an
unlawful association or offence relating to contravention of an
order made in respect of a notified place) of the Unlawful Activities
(Prevention) Act, 1967 (37 of 1967); or D
(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) the Narcotic Drugs and Psychotropic Substances Act, 1985
(61 of 1985); or
(g) section 3 (offence of committing terrorist acts) or section 4
E
(offence of committing disruptive activities) of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(h) section 7 (offence of contravention of the provisions of sections
3 to 6) of the Religious Institutions (Prevention of Misuse) Act,
1988 (41 of 1988); or
F
(i) section 125 (offence of promoting enmity between classes in
connection with the election) or section 135 (offence of removal
of ballot papers from polling stations) or section 135A (offence of
booth capturing) of clause (a) of sub-section (2) of section 136
(offence of fraudulently defacing or fraudulently destroying any
nomination paper) of this Act; or G

(j) section 6 (offence of conversion of a place of worship) of the
Places of Worship (Special Provisions) Act, 1991; or
(k) section 2 (offence of insulting the Indian National Flag or the
Constitution of India) or section 3 (offence of preventing singing H
912 SUPREME COURT REPORTS [2021] 7 S.C.R.

A of National Anthem) of the Prevention of Insults to National
Honour Act, 1971 (69 of 1971), ; or
(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or
(m) the Prevention of Corruption Act, 1988 (49 of 1988); or
B (n) the Prevention of Terrorism Act, 2002 (15 of 2002)
shall be disqualified, where the convicted person is sentenced to
–
(i) only fine, for a period of six years from the date of such
conviction;
C
(ii) imprisonment, from the date of such conviction and shall
continue to be disqualified for a further period of six years since
his release.
(2) A person convicted for the contravention of –
D (a) any law providing for the prevention of hoarding or
profiteering; or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, 1961 (28 of
1961);
E
(3) A person convicted of any offence and sentenced to
imprisonment for not less than two years other than any offence
referred to in sub-section (1) or sub-section (2) shall be disqualified
from the date of such conviction and shall continue to be
disqualified for a further period of six years since his release.
F
(4) Notwithstanding anything in sub-section (1), sub-section (2)
or sub-section (3) a disqualification under either subsection shall
not, in the case of a person who on the date of the conviction is a
member of Parliament or the Legislature of a State, take effect
until three months have elapsed from that date or, if within that
G period an appeal or application for revision is brought in respect
of the conviction or the sentence, until that appeal or application is
disposed of by the court.
Explanation. —In this section, —

H
BRAJESH SINGH v. SUNIL ARORA & ORS. 913

(a) “law providing for the prevention of hoarding or profiteering” A
means any law, or any order, rule or notification having the force
of law, providing for—
(i) the regulation of production or manufacture of any essential
commodity;
(ii) the control of price at which any essential commodity may B
be bought or sold;
(iii) the regulation of acquisition, possession, storage, transport,
distribution, disposal, use or consumption of any essential
commodity;
C
(iv) the prohibition of the withholding from sale of any essential
commodity ordinarily kept for sale;
(b) “drug” has the meaning assigned to it in the Durgs and Cosmetics
Act, 1940 (23 of 1940);
(c) “essential commodity” has the meaning assigned to it in the D
Essential Commodity Act, 1955 (10 of 1955);
(d) “food” has the meaning assigned to it in the Prevention of
Food Adulteration Act, 1954 (37 of 1954).”
A reading of Section 8 would show that, apart from certain grievous
offences and convictions thereunder, it is only upon conviction of a E
minimum period of two years for other offences that a candidate gets
disqualified from standing for election. This Court has time and again
referred to the long periods in which persons are undertrials, and the
unsatisfactory result of undertrials taking advantage of the law and
standing for election after election simply because their cases have not F
been decided in a timely manner. Given the fact that false cases can be
filed, the Law Commission of India recommended that if charges are
framed for offences in which punishment is for a period of two years or
more, a law should be made amending Section 8 so that this can be
incorporated therein, thereby reducing at one fell stroke the huge
criminalisation that is found in politics in this country. Apart from this, G
this Court has held that the least that can be done, given the present
state of the law, is that at least information as to acquittals, discharge or
conviction in relation to criminal offences in the past be set out by way
of affidavit so that a voter has the right to know full particulars of the
candidate for whom he is going to vote, including whether the candidate H
914 SUPREME COURT REPORTS [2021] 7 S.C.R.

A has committed criminal offences in the past. To this effect, this Court in
Union of India v. Association for Democratic Reformsand Another 3,
directed as follows:
“22. For health of democracy and fair election, whether the
disclosure of assets by a candidate, his/her qualification and
B particulars regarding involvement in criminal cases are necessary
for informing voters, maybe illiterate, so that they can decide
intelligently, whom to vote for. In our opinion, the decision of even
an illiterate voter, if properly educated and informed about the
contesting candidate, would be based on his own relevant criteria
of selecting a candidate. In democracy, periodical elections are
C conducted for having efficient governance for the country and
for the benefit of citizens — voters. In a democratic form of
government, voters are of utmost importance. They have right to
elect or re-elect on the basis of the antecedents and past
performance of the candidate. The voter has the choice of deciding
D whether holding of educational qualification or holding of property
is relevant for electing or re-electing a person to be his
representative. Voter has to decide whether he should cast vote
in favour of a candidate who is involved in a criminal case. For
maintaining purity of elections and a healthy democracy, voters
are required to be educated and well informed about the contesting
E candidates. Such information would include assets held by the
candidate, his qualification including educational qualification and
antecedents of his life including whether he was involved in a
criminal case and if the case is decided — its result, if pending —
whether charge is framed or cognizance is taken by the court.
F There is no necessity of suppressing the relevant facts from the
voters.
xxx xxxxxx
46. To sum up the legal and constitutional position which emerges
from the aforesaid discussion, it can be stated that:
G
1. The jurisdiction of the Election Commission is wide enough
to include all powers necessary for smooth conduct of elections
and the word “elections” is used in a wide sense to include the

3
H (2002) 5 SCC 294
BRAJESH SINGH v. SUNIL ARORA & ORS. 915

entire process of election which consists of several stages and A
embraces many steps.
xxx xxxxxx
4. To maintain the purity of elections and in particular to bring
transparency in the process of election, the Commission can
ask the candidates about the expenditure incurred by the political B
parties and this transparency in the process of election would
include transparency of a candidate who seeks election or re-
election. In a democracy, the electoral process has a strategic
role. The little man of this country would have basic elementary
right to know full particulars of a candidate who is to represent C
him in Parliament where laws to bind his liberty and property
may be enacted.
5. The right to get information in democracy is recognised all
throughout and it is a natural right flowing from the concept of
democracy. At this stage, we would refer to Article 19(1) and D
(2) of the International Covenant on Civil and Political Rights,
which is as under:
“(1) Everyone shall have the right to hold opinions without
interference.
(2) Everyone shall have the right to freedom of E
expression; this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice.”
xxx xxxxxx F
7. Under our Constitution, Article 19(1)(a) provides for freedom
of speech and expression. Voter’s speech or expression in case
of election would include casting of votes, that is to say, voter
speaks out or expresses by casting vote. For this purpose,
information about the candidate to be selected is a must. Voter’s G
(little man — citizen’s) right to know antecedents including criminal
past of his candidate contesting election for MP or MLA is much
more fundamental and basic for survival of democracy. The little
man may think over before making his choice of electing
law-breakers as law-makers.
H
916 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 48. The Election Commission is directed to call for information
on affidavit by issuing necessary order in exercise of its power
under Article 324 of the Constitution of India from each candidate
seeking election to Parliament or a State Legislature as a necessary
part of his nomination paper, furnishing therein, information on the
following aspects in relation to his/her candidature:
B
(1) Whether the candidate is convicted/acquitted/discharged of
any criminal offence in the past — if any, whether he is punished
with imprisonment or fine.
(2) Prior to six months of filing of nomination, whether the
C candidate is accused in any pending case, of any offence
punishable with imprisonment for two years or more, and in which
charge is framed or cognizance is taken by the court of law. If so,
the details thereof.
(3) The assets (immovable, movable, bank balance, etc.) of a
D candidate and of his/her spouse and that of dependants.
(4) Liabilities, if any, particularly whether there are any overdues
of any public financial institution or government dues.
(5) The educational qualifications of the candidate.”
13. As an aftermath of this judgement, Sections 33-A and 33-B
E
were introduced into the Act of 1951. These sections provided:
“33-A. Right to information.—(1) A candidate shall, apart from
any information which he is required to furnish, under this Act or
the rules made thereunder, in his nomination paper delivered under
sub-section (1) of Section 33, also furnish the information as to
F
whether—
(i) he is accused of any offence punishable with imprisonment for
two years or more in a pending case in which a charge has been
framed by the court of competent jurisdiction;
G (ii) he has been convicted of an offence other than any offence
referred to in sub-section (1) or sub-section (2), or covered in
sub-section (3), of Section 8 and sentenced to imprisonment for
one year or more.
(2) The candidate or his proposer, as the case may be, shall, at the
H time of delivering to the Returning Officer the nomination paper
BRAJESH SINGH v. SUNIL ARORA & ORS. 917

under sub-section (1) of Section 33, also deliver to him an affidavit A
sworn by the candidate in a prescribed form verifying the
information specified in sub-section (1).
(3) The Returning Officer shall, as soon as may be after the
furnishing of information to him under sub-section (1), display the
aforesaid information by affixing a copy of the affidavit, delivered B
under sub-section (2), at a conspicuous place at his office for the
information of the electors relating to a constituency for which
the nomination paper is delivered.
33-B. Candidate to furnish information only under the Act
and the rules.—Notwithstanding anything contained in any C
judgment, decree or order of any court or any direction, order or
any other instruction issued by the Election Commission, no
candidate shall be liable to disclose or furnish any such information,
in respect of his election, which is not required to be disclosed or
furnished under this Act or the rules made thereunder.”
D
14. A challenge to these Sections was made, and Section 33-B
struck down by a Three-Judge Bench in People’s Union for Civil
Liberties (PUCL) v. Union of Indiaand Another4. Shah, J. concluded:
“78. What emerges from the above discussion can be summarised
thus: E
(A) The legislature can remove the basis of a decision rendered
by a competent court thereby rendering that decision ineffective
but the legislature has no power to ask the instrumentalities of the
State to disobey or disregard the decisions given by the court. A
declaration that an order made by a court of law is void is normally F
a part of the judicial function. The legislature cannot declare that
decision rendered by the Court is not binding or is of no effect.
It is true that the legislature is entitled to change the law with
retrospective effect which forms the basis of a judicial decision.
This exercise of power is subject to constitutional provision,
G
therefore, it cannot enact a law which is violative of fundamental
right.
(B) Section 33-B which provides that notwithstanding anything
contained in the judgment of any court or directions issued by the
4
(2003) 4 SCC 399 H
918 SUPREME COURT REPORTS [2021] 7 S.C.R.

A Election Commission, no candidate shall be liable to disclose or
furnish any such information in respect of his election which is
not required to be disclosed or furnished under the Act or the
rules made thereunder, is on the face of it beyond the legislative
competence, as this Court has held that the voter has a fundamental
right under Article 19(1)(a) to know the antecedents of a candidate
B
for various reasons recorded in the earlier judgment as well as in
this judgment.
The Amended Act does not wholly cover the directions issued by
this Court. On the contrary, it provides that a candidate would not
be bound to furnish certain information as directed by this Court.
C
(C) The judgment rendered by this Court in Assn. for Democratic
Reforms has attained finality, therefore, there is no question of
interpreting constitutional provision which calls for reference under
Article 145(3).

D (D) The contention that as there is no specific fundamental right
conferred on a voter by any statutory provision to know the
antecedents of a candidate, the directions given by this Court are
against the statutory provisions is, on the face of it, without any
substance. In an election petition challenging the validity of an
election of a particular candidate, the statutory provisions would
E govern respective rights of the parties. However, voters’
fundamental right to know the antecedents of a candidate is
independent of statutory rights under the election law. A voter is
first citizen of this country and apart from statutory rights, he is
having fundamental rights conferred by the Constitution. Members
F of a democratic society should be sufficiently informed so that
they may cast their votes intelligently in favour of persons who
are to govern them. Right to vote would be meaningless unless
the citizens are well informed about the antecedents of a candidate.
There can be little doubt that exposure to public gaze and scrutiny
is one of the surest means to cleanse our democratic governing
G system and to have competent legislatures.
(E) It is established that fundamental rights themselves have no
fixed content, most of them are empty vessels into which each
generation must pour its content in the light of its experience. The
attempt of the Court should be to expand the reach and ambit of
H the fundamental rights by process of judicial interpretation. During
BRAJESH SINGH v. SUNIL ARORA & ORS. 919

the last more than half a decade, it has been so done by this Court A
consistently. There cannot be any distinction between the
fundamental rights mentioned in Chapter III of the Constitution
and the declaration of such rights on the basis of the judgments
rendered by this Court.”
Reddi, J. in a separate judgment concluded: B
“123. Finally, the summary of my conclusions:
(1) Securing information on the basic details concerning the
candidates contesting for elections to Parliament or the State
Legislature promotes freedom of expression and therefore the
right to information forms an integral part of Article 19(1)(a). C
This right to information is, however, qualitatively different from
the right to get information about public affairs or the right to
receive information through the press and electronic media,
though, to a certain extent, there may be overlapping.
(2) The right to vote at the elections to the House of the People D
or Legislative Assembly is a constitutional right but not merely
a statutory right; freedom of voting as distinct from right to
vote is a facet of the fundamental right enshrined in Article
19(1)(a). The casting of vote in favour of one or the other
candidate marks the accomplishment of freedom of expression E
of the voter.
(3) The directives given by this Court in Union of
India v. Assn. for Democratic Reforms were intended to
operate only till the law was made by the legislature and in that
sense “pro tempore” in nature. Once legislation is made, the F
Court has to make an independent assessment in order to
evaluate whether the items of information statutorily ordained
are reasonably adequate to secure the right of information
available to the voter/citizen. In embarking on this exercise,
the points of disclosure indicated by this Court, even if they be
tentative or ad hoc in nature, should be given due weight and G
substantial departure therefrom cannot be countenanced.
(4) The Court has to take a holistic view and adopt a balanced
approach in examining the legislation providing for right to
information and laying down the parameters of that right.
H
920 SUPREME COURT REPORTS [2021] 7 S.C.R.

A (5) Section 33-B inserted by the Representation of the People
(Third Amendment) Act, 2002 does not pass the test of
constitutionality, firstly, for the reason that it imposes a blanket
ban on dissemination of information other than that spelt out in
the enactment irrespective of the need of the hour and the
future exigencies and expedients and secondly, for the reason
B
that the ban operates despite the fact that the disclosure of
information now provided for is deficient and inadequate.
(6) The right to information provided for by Parliament under
Section 33-A in regard to the pending criminal cases and past
involvement in such cases is reasonably adequate to safeguard
C the right to information vested in the voter/citizen. However,
there is no good reason for excluding the pending cases in
which cognizance has been taken by the Court from the ambit
of disclosure.
(7) The provision made in Section 75-A regarding declaration
D of assets and liabilities of the elected candidates to the Speaker
or the Chairman of the House has failed to effectuate the right
to information and the freedom of expression of the voters/
citizens. Having accepted the need to insist on disclosure of
assets and liabilities of the elected candidate together with those
E of the spouse or dependent children, Parliament ought to have
made a provision for furnishing this information at the time of
filing the nomination. Failure to do so has resulted in the violation
of guarantee under Article 19(1)(a).
(8) The failure to provide for disclosure of educational
F qualification does not, in practical terms, infringe the freedom
of expression.
(9) The Election Commission has to issue revised instructions
to ensure implementation of Section 33-A subject to what is
laid down in this judgment regarding the cases in which
G cognizance has been taken. The Election Commission’s orders
related to disclosure of assets and liabilities will still hold good
and continue to be operative. However, Direction 4 of para 14
insofar as verification of assets and liabilities by means of
summary enquiry and rejection of nomination paper on the
ground of furnishing wrong information or suppressing material
H information should not be enforced.”
BRAJESH SINGH v. SUNIL ARORA & ORS. 921

Dharmadhikari, J. in a separate judgment agreed with Reddi, J.,and A
Shah J. on the invalidity of Section 33-B of the Representation of
People Act, 1951, while choosing to disagree with propositions 3
and 8 in the opinion of Reddi, J. Section 33-B, therefore, stood
struck down.
15. In 2012, an important amendment was made to the Conduct B
of Election Rules, 1961, and Form 26 was also amended. This Court in
Satish Ukey v. Devendra Gangadharrao Fadnavis and Another5,
referred to the aforesaid amendment as follows:
“24. A cumulative reading of Section 33-A of the 1951 Act and
Rule 4-A of the 1961 Rules and Form 26 along with the letters C
dated 24-8-2012, 26-9-2012 and 26-4-2014, in our considered view,
make it amply clear that the information to be furnished under
Section 33-A of the 1951 Act includes not only information
mentioned in clauses (i) and (ii) of Section 33-A(1), but also
information, that the candidate is required to furnish, under the
Act or the Rules made thereunder and such information should D
be furnished in Form 26, which includes information concerning
cases in which a competent court has taken cognizance [Entry
5(ii) of Form 26]. This is apart from and in addition to cases in
which charges have been framed for an offence punishable with
imprisonment for two years or more or cases in which conviction E
has been recorded and sentence of imprisonment for a period of
one year or more has been imposed [Entries 5(i) and 6 of Form
26 respectively].”
16. In Public Interest Foundation (supra), a Five-Judge Bench
of this Court, after setting out Section 8 of the Representation of People F
Act, 1951 and copiously referring to the 244th Law Commission Report
titled “Electoral Disqualifications” of February 2014, issued directions
contained in paragraph 116, as referred to in our Order dated 13.02.2020.
The Court ended with a sense of anguish followed by hope as follows:
“117. These directions ought to be implemented in true spirit G
and right earnestness in a bid to strengthen the democratic
set-up. There may be certain gaps or lacunae in a law or
legislative enactment which can definitely be addressed by the
legislature if it is backed by the proper intent, strong resolve
5
(2019) 9 SCC 1 H
922 SUPREME COURT REPORTS [2021] 7 S.C.R.

A and determined will of right-thinking minds to ameliorate the
situation. It must also be borne in mind that the law cannot
always be found fault with for the lack of its stringent
implementation by the authorities concerned. Therefore, it is
the solemn responsibility of all concerned to enforce the law
as well as the directions laid down by this Court from time to
B
time in order to infuse the culture of purity in politics and in
democracy and foster and nurture an informed citizenry, for
ultimately it is the citizenry which decides the fate and course
of politics in a nation and thereby ensures that “we shall be
governed no better than we deserve”, and thus, complete
C information about the criminal antecedents of the candidates
forms the bedrock of wise decision-making and informed choice
by the citizenry. Be it clearly stated that informed choice is the
cornerstone to have a pure and strong democracy.
118. We have issued the aforesaid directions with immense
D anguish, for the Election Commission cannot deny a candidate
to contest on the symbol of a party. A time has come that
Parliament must make law to ensure that persons facing serious
criminal cases do not enter into the political stream. It is one
thing to take cover under the presumption of innocence of the
accused but it is equally imperative that persons who enter
E public life and participate in law making should be above any
kind of serious criminal allegation. It is true that false cases
are foisted on prospective candidates, but the same can be
addressed by Parliament through appropriate legislation. The
nation eagerly waits for such legislation, for the society has a
F legitimate expectation to be governed by proper constitutional
governance. The voters cry for systematic sustenance of
constitutionalism. The country feels agonised when money and
muscle power become the supreme power. Substantial efforts
have to be undertaken to cleanse the polluted stream of politics
by prohibiting people with criminal antecedents so that they do
G not even conceive of the idea of entering into politics. They
should be kept at bay.
119. We are sure, the law-making wing of the democracy of
this country will take it upon itself to cure the malignancy. We
say so as such a malignancy is not incurable. It only depends
H
BRAJESH SINGH v. SUNIL ARORA & ORS. 923

upon the time and stage when one starts treating it; the sooner A
the better, before it becomes fatal to democracy. Thus, we
part.”
17. The nation continues to wait, and is losing patience. Cleansing
the polluted stream of politics is obviously not one of the immediate
pressing concerns of the legislative branch of government. As a sequel B
to this judgment the directions contained in the order dated 13.02.2020
were then made.
18. Shri K.V. Viswanathan, learned amicus curiae placed before
us some of the facts stated hereinabove. In addition, he also referred to
revised guidelines issued by the ECI on 26.02.2021 in which the criteria C
for publishing in a newspaper was specified. He then analysed the report
of the ECI and submitted that given our contempt jurisdiction under Article
129 read with Article 142 of the Constitution of India we are not bound
by the provisions of the Contempt of Courts Act, 1971 and can not only
impose sentences, fines, but can also reprimand authorities and persons
for acting contrary to our directions. He picked up, at random, some D
examples which showed how all the political parties have been flouting
our directions in letter and spirit, fielding persons whose criminal
antecedents show that they have been charge-sheeted or charged with
serious offences, with no real reason as to why such person has been
preferred over other more deserving candidates. This chart is appended E
to our judgment as Annexure-I hereto. In addition, he argued that Forms
C-1, C-2, C-7 and C-8 were either not filled (2 out of 10 parties admittedly
have not filled up Forms C-7 and C-8) or have been filled without
disclosing particulars. He then copiously referred to the Symbols Order
and argued that if we were to give teeth to our Order dated 13.02.2020,
the ECI ought to issue directions under clause 16-A of the Symbols F
Order by giving a post-decisional hearing (after the ECI amends clause
16-A to provide as such), and then suspending or withdrawing recognition
to National and/or State political parties who flout the directions contained
in our Order dated 13.02.2020. He has also made certain valuable
suggestions which shall be reflected in the directions issued by this G
judgment.
19. Shri Vikas Singh, learned senior advocate appearing on behalf
of the ECI, referred to our Order dated 11.02.2021 in which this Court
had issued notice in the present contempt petition and argued that the
ECI had filed its report in compliance of the Order dated 13.02.2020. To H
924 SUPREME COURT REPORTS [2021] 7 S.C.R.

A therefore argue, as has been argued by the learned petitioner and as
suggested by Shri Viswanathan that the ECI is itself in contempt in not
having promptly notified this Court of the non-following of its directions
in the Order dated 13.02.2020 is absolutely baseless. As a matter of
fact, he argued that the contempt petition itself was filed 4 days before
the result was declared, and it is therefore misleading to say that it was
B
only after the contempt petition was filed that the ECI gave its report to
the Court. As can be seen, this report is dated 01.02.2020 and has been
filed at the earliest possible time given the fact that the ECI had to
compile a great deal of data and then present it to this Court.
20. He then urged that apart from directions that could be issued
C under clause 16-A of the Symbols Order, electors, that is, those who are
entitled to vote at an election are also given the right to approach the
Court in an election petition under Section 81 read with Section 100 of
the Representation of the People Act, 1951 on the ground that the election
of the returned candidate is materially affected by rejection of an
D application filed by such elector for being nominated by such political
party as he was better suited to represent the particular political party in
view of our Order dated 13.02.2020. He then urged that such election
petition so filed could be considered on merits, as a violation of our Order
would amount to undue influence which is a “corrupt practice” under
Section 123(2) read with Section 100(1)(b) of the Representation of the
E People Act, 1951. He also urged that the Model Code of Conduct requires
that the ECI shall ordinarily announce the date of an election not more
than three weeks prior to the date on which notification is likely to be
issued. In the case of the Bihar Assembly Elections 2020, the poll
schedule was announced only 5 days prior to the notification for the first
F phase of election. He therefore exhorted this Court to direct the ECI to
follow the Model Code of Conduct in this behalf so that a political party
can announce its candidates two weeks prior to the notification, which is
the first date of filing of nomination. Simultaneously, details of candidates
in terms of paragraph 4.3 of our Order dated 13.2.2020 can then be
published well in advance. He also pointed out a judgment of this Court
G in PravasiBhalaiSangathan v. Union of India and Others6 and
paragraph 29 thereof, where a direction has been made that a reference
be made to the Law Commission to study as to whether the ECI should
be conferred the power to de-recognize a political party in cases in which
hate speech is involved.
H 6
(2014) 11 SCC 477
BRAJESH SINGH v. SUNIL ARORA & ORS. 925

21. Shri Harish Salve, learned senior advocate also appeared for A
the ECI and submitted that there are no instructions on behalf of the
ECI on directing the ECI to follow the Model Code of Conduct so that a
political party can announce its candidates two weeks prior to the
notification, which is the first date of filing of nomination, as has been
submitted by Shri Vikas Singh. He also added that any such direction
B
may be contrary to Section 30 of the Representation of People Act,
1951. Given the fact that two learned senior advocates are arguing for
the same party at cross purposes and given the fact that Shri Vikas
Singh later argued that his submission was as an Officer of the Court
and not on instructions, we are of the view that it is hazardous to follow
the course of action advocated by Shri Vikas Singh. C
22. Shri Shrish Kumar Mishra, learned counsel appearing on behalf
of Respondent No. 5 referred to the written submissions dated 22.07.2021
and submitted that while clause 16-A of the Symbols Order may be put
to use for refusing to follow lawful directions issued by the ECI, this
Court must not, in a bid to control criminalisation in politics, venture any D
further and hold that a candidate is to be debarred from contesting if
there are charges framed against him/her in a pending criminal case. He
further submitted that in order to ensure expeditious disposal of criminal
trials, it would be imperative to increase the number of judges through
an All Indian Judicial Services which is in line with the existing All India
Civil Services. E

23. Shri P.V. Surendranath, learned senior advocate appearing on
behalf of Respondent No. 8, referred to written submissions dated
22.07.2021 and submitted that direction 4.4 contained in our Order dated
13.02.2020 will have to be modified in order to accommodate the date of
withdrawal of nomination by a candidate within the timeline prescribed F
for publication of Form C-7 and C-8. He further submitted that the
invocation of clause 16-A of the Symbols Order must be limited to extreme
situations of consistent and persistent failure, refusal or defiance to follow
the lawful directions and instructions of the ECI and consequently must
not be invoked for a single or isolated non-compliance of a direction G
without intention to refuse to comply with the direction. He also submitted
that even in an extreme case of non-compliance, the approach of the
ECI must be proportionate to the extent of such non-compliance. He
further submitted that the measures as suggested by the learned Amicus
Curiae regarding a situation where only one candidate has applied for a
H
926 SUPREME COURT REPORTS [2021] 7 S.C.R.

A particular seat may not be acceded to as the nomination of a candidate
is the prerogative of the party and is based on various factors which are
considered by the party before selection of the candidate. This apart, he
submitted that the measure suggested by the learned Amicus Curiae on
directions to be given to the General Secretary of each party to submit a
separate affidavit detailing compliance of the directions issued by the
B
ECI may not be acceded to as this is in the domain of the legislature and
that it will lead to a situation where the General Secretary of the party
having submitted such an affidavit based on information given to them
by the candidates may now be vulnerable to prosecution under Section
125-A of the Representation of People Act, 1951 for no fault of their
C own. He further argued that this Court must not read clause 16-A of the
Symbols Order to include a post-decisional hearing as it would prejudicially
affect democracy based on a multi-party system.
24. Shri Kapil Sibal, learned senior advocate appearing on behalf
of Respondent No. 9 referred to written submissions dated 22.07.2021
D and submitted that the withdrawal or suspension of recognition through
clause 16-A of the Symbols Order is akin to de-registration of a political
party as it denies the party the right to exclusive use the election symbol
assigned to it. He further submitted that clause 16-A being an unfettered
power vested with the ECI and such power having not been expressly
conferred on the ECI by either the Constitution of India or the legislature,
E the clause needs to be held to be ultra vires and therefore is liable to be
struck down. Without prejudice to the argument on the vires of clause
16-A, he submitted that given the ramifications of the withdrawal or
suspension of recognition, the power must be exercised by the ECI
proportionate to the extent of breach of its directions and must not be
F used in respect of every breach of a direction passed by it. He also
submitted that this Court must not accede to the suggestion of the learned
Amicus Curiae that the benefit of clause 10-A of the Symbols Order
must not be available to a party when the loss of recognition is pursuant
to an action taken by the ECI under clause 16-A of the Symbols Order,
as such an interpretation is not contemplated in the language of either
G clause 10-A or clause 16-A.
25. We will first consider the directions in our Order dated
13.02.2020. Vide directions contained in paragraph 4.1, we had directed
the political parties to upload on their websites detailed information
regarding individuals with pending criminal cases who have been selected
H
BRAJESH SINGH v. SUNIL ARORA & ORS. 927

as candidates, along with the reasons for such selection, and also as to A
why other individuals without criminal antecedents could not be selected
as candidates. Further, through paragraph 4.2 of the said Oder, we had
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.
B
26. The aforesaid directions have been given in furtherance of
the directions already given by the Constitution Bench in Public Interest
Foundation (supra), 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 by us, is only to provide information to the voter so that his
right to have information as to why a particular political party has chosen C
a candidate having criminal antecedents and as to why a political party
has not chosen a candidate without criminal antecedents, is effectively
guaranteed. We are of the view that such a requirement would only
enable the voter to have complete information and exercise his right to
vote effectively. D
27. 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 E
would also have the discretion to choose a candidate of its choice.
28. As has already been considered in various judgments, 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 F
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 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 G
that such a candidate has been falsely implicated, it can say so. What
has been provided by us 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, H
928 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 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. At the cost of repetition,
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
B
party to choose a candidate of its own choice.
29. 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,
C whichever is earlier.
30. Arguments have been advanced before us with regard to the
practicability of implementation of the direction contained in paragraph
4.4. To consider the said submissions, it will be relevant to refer to Section
30 of the said Act of 1951:
D
“30. Appointment of dates for nominations, etc.—As soon
as the notification calling upon a constituency to elect a member
or members is issued, the Election Commission shall, by notification
in the Official Gazette, appoint —

E (a) the last date for making nominations, which shall be the seventh
day after the date of publication of the first-mentioned notification
or, if that day is a public holiday, the next succeeding day which is
not a public holiday;
(b) the date for the scrutiny of nominations, which shall be the
F day immediately following the last date for making nominations
or, if that day is a public holiday, the next succeeding day which is
not a public holiday ;
(c) the last date for the withdrawal of candidatures, which shall
be the second day after the date for the scrutiny of nominations
or, if that day is a public holiday, the next succeeding day which is
G
not a public holiday;
(d) the date or dates on which a poll shall, if necessary, be taken,
which or the first of which shall be a date not earlier than the
fourteenth day after the last date for the withdrawal of
candidatures; and
H
BRAJESH SINGH v. SUNIL ARORA & ORS. 929

(e) the date before which the election shall be completed.” A
31. Perusal of Section 30 of the said Act of 1951 would require
that the ECI shall, by notification in the Official Gazette, appoint the last
date for making nominations, which shall be the seventh date after the
date of publication of the first mentioned notification or, if that day is a
public holiday, the next succeeding day which is not a public holiday. B
Clause (b) of Section 30 of the said Act of 1951 would require that the
date for the scrutiny of nominations shall be the day immediately following
the last date for making nominations or, if that day is a public holiday, the
next succeeding day which is not a public holiday. Clause (c) of Section
39 of the said Act of 1951 would require that the last date for the
withdrawal of candidature shall be the second day after the date for the C
scrutiny of nominations or, if that day is a public holiday, the next
succeeding day, which is not a public holiday.
32. A combined reading of clauses (a) to (c) of Section 30 of the
said Act of 1951 would reveal that the last date for withdrawal of
candidature would be around 10 days from the date of notification D
published by the ECI in the Official Gazette.
33. 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 E
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.
34. It could thus be seen that in the light of the statutory provision F
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.
35. No doubt Shri Vikas Singh, learned Senior Counsel, who first
addressed this Court as a counsel for the ECI and later on as an Officer
of the Court, made a suggestion that the political parties could be directed G
to finalise their candidates before a substantial period and as such, such
a direction could be complied with. In our view, 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.
H
930 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 36. It has been strenuously submitted by Shri Viswanathan, the
learned Amicus Curiae who has been supported by Shri Vikas Singh,
that, this Court should issue a direction to the ECI to invoke powers
under Clause 16-A of the Symbols Order and take requisite action under
the said clause to suspend, subject to terms and conditions, or withdraw
recognition of such political party. Such a request has been vehemently
B
opposed by all the counsel appearing on behalf of the political parties. It
has been submitted that the direction would empower the ECI to suspend
or withdraw recognition of political party even for a small lapse on the
part of a candidate or an office bearer of a political party in a District or
a State.
C 37. For appreciating the submissions made by the learned Amicus
Curiae, it will be apposite to refer to some of the observations made by
the Constitution Bench in Public Interest Foundation (supra):
“8. In Lily Thomas v. Union of India [Lily Thomas v. Union of
India, (2013) 7 SCC 653 : (2013) 3 SCC (Civ) 678 : (2013) 3
D SCC (Cri) 641 : (2013) 2 SCC (L&S) 811] , it has been held :
(SCC p. 669, para 26)
“26. Articles 102(1)(e) and 191(1)(e) of the Constitution, on
the other hand, have conferred specific powers on Parliament
to make law providing disqualifications for membership of either
E House of Parliament or Legislative Assembly or Legislative
Council of the State other than those specified in sub-clauses
(a), (b), (c) and (d) of clause (1) of Articles 102 and 191 of the
Constitution. We may note that no power is vested in the State
Legislature to make law laying down disqualifications of
F membership of the Legislative Assembly or Legislative Council
of the State and power is vested in Parliament to make law
laying down disqualifications also in respect of Members of
the Legislative Assembly or Legislative Council of the State.
For these reasons, we are of the considered opinion that the
legislative power of Parliament to enact any law relating to
G disqualification for membership of either House of Parliament
or Legislative Assembly or Legislative Council of the State
can be located only in Articles 102(1)(e) and 191(1)(e) of the
Constitution and not in Article 246(1) read with Schedule VII
List I Entry 97 and Article 248 of the Constitution. We do not,
H therefore, accept the contention of Mr Luthra that the power
BRAJESH SINGH v. SUNIL ARORA & ORS. 931

to enact sub-section (4) of Section 8 of the Act is vested in A
Parliament under Article 246(1) read with Schedule VII List I
Entry 97 and Article 248 of the Constitution, if not in Articles
102(1)(e) and 191(1)(e) of the Constitution.”
We have no hesitation in saying that the view expressed above
in Lily Thomas [Lily Thomas v. Union of India, (2013) 7 SCC B
653 : (2013) 3 SCC (Civ) 678 : (2013) 3 SCC (Cri) 641 : (2013) 2
SCC (L&S) 811] is correct, for Parliament has the exclusive
legislative power to lay down disqualification for membership.”
38. It would thus be clear that the Constitution Bench has approved
the view expressed by this Court in the case of Lily Thomas v. Union C
of India and Others7, that the legislative power of parliament to enact
any law relating to disqualification for membership of either House of
Parliament or Legislative Assembly or Legislative Council of the State
can be located only in Articles 102(1)(e) and 191(1)(e) of the Constitution
and not in Article 246(1) read with Schedule VII List I Entry 97 and
Article 248 of the Constitution. D

39. It will be relevant to further refer to paragraphs 24 and 25 of
the judgment of the Constitution Bench in Public Interest Foundation
(supra), which read thus:
“24. It is well settled in law that the court cannot legislate. E
Emphasis is laid on the issuance of guidelines and directions for
rigorous implementation. With immense anxiety, it is canvassed
that when a perilous condition emerges, the treatment has to be
aggressive. The petitioners have suggested another path. But, as
far as adding a disqualification is concerned, the constitutional
provision states the disqualification, confers the power on the F
legislature, which has, in turn, legislated in the imperative.
25. Thus, the prescription as regards disqualification is
complete is in view of the language employed in Section 7(b)
read with Sections 8 to 10-A of the Act. It is clear as noon day
and there is no ambiguity. The legislature has very clearly G
enumerated the grounds for disqualification and the language
of the said provision leaves no room for any new ground to be
added or introduced.”
[emphasis supplied]
7
(2013) 7 SCC 653 H
932 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 40. It could thus be clearly seen that the Constitution Bench 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 Act of 1951. The Constitution Bench goes on to say that it is clear
as noon day and that there is no ambiguity. It has further held that the
B
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.
41. After considering the 18th report presented to the Rajya Sabha
th
on 15 March, 2007 by the Department-related Parliamentary Standing
C Committee on Personnel, Public Grievances, Law and Justice on Electoral
Reforms (Disqualification of Persons from contesting Election on Framing
of Charges against them for Certain Offences), the 244 th Law
Commission Report titled “Electoral Disqualifications” as well as various
judgments of this Court, the Constitution Bench has reproduced the
D recommendations of the Law Commission in paragraph 59, which reads
thus:
“59. The eventual recommendations and proposed sections by
the Law Commission read as follows:
“1.***
E
2. The filing of the police report under Section 173 CrPC is not an
appropriate stage to introduce electoral disqualifications owing to
the lack of sufficient application of judicial mind at this stage.
3. The stage of framing of charges is based on adequate levels of
F judicial scrutiny, and disqualification at the stage of charging, if
accompanied by substantial attendant legal safeguards to prevent
misuse, has significant potential in curbing the spread of
criminalisation of politics.
4. The following safeguards must be incorporated into the
disqualification for framing of charges owing to potential for misuse,
G
concern of lack of remedy for the accused and the sanctity of
criminal jurisprudence:
(i) Only offences which have a maximum punishment of five years
or above ought to be included within the remit of this provision.
H
BRAJESH SINGH v. SUNIL ARORA & ORS. 933

(ii) Charges filed up to one year before the date of scrutiny of A
nominations for an election will not lead to disqualification.
(iii) The disqualification will operate till an acquittal by the trial
court, or for a period of six years, whichever is earlier.
(iv) For charges framed against sitting MPs/MLAs, the trials must
be expedited so that they are conducted on a day-to-day basis B
and concluded within a one-year period. If trial not concluded
within a one-year period then one of the following consequences
ought to ensue:
- The MP/MLA may be disqualified at the expiry of the one-year
period; or C

- The MP/MLA’s right to vote in the House as a Member,
remuneration and other perquisites attaching to their office shall
be suspended at the expiry of the one-year period.
5. Disqualification in the above manner must apply retroactively D
as well. Persons with charges pending (punishable by five years
or more) on the date of the law coming into effect must be
disqualified from contesting future elections, unless such charges
are framed less than one year before the date of scrutiny of
nomination papers for elections or the person is a sitting MP/
MLA at the time of enactment of the Act. Such disqualification E
must take place irrespective of when the charge was framed.
***
1. There is large-scale violation of the laws on candidate affidavits
owing to lack of sufficient legal consequences. As a result, the
F
following changes should be made to the RPA:
(i) Introduce enhanced sentence of a minimum of two years under
Section 125-A of the RPA Act on offence of filing false affidavits.
(ii) Include conviction under Section 125-A as a ground of
disqualification under Section 8(1) of the RPA. G
(iii) Include the offence of filing false affidavit as a corrupt practice
under Section 123 of the RPA.
2. Since conviction under Section 125-A is necessary for
disqualification under Section 8 to be triggered, the Supreme Court
H
934 SUPREME COURT REPORTS [2021] 7 S.C.R.

A may be pleased to order that in all trials under Section 125-A, the
relevant court conducts the trial on a day-to-day basis.
3. A gap of one week should be introduced between the last date
for filing nomination papers and the date of scrutiny, to give
adequate time for the filing of objections to nomination papers.”
B 42. After reproducing the aforesaid recommendations, the
Constitution Bench has expressed its anguish as under:
“60.The aforesaid recommendations for proposed amendment
never saw the light of the day in the form of a law enacted by
a competent legislature but it vividly exhibits the concern of
C the society about the progressing trend of criminalisation in
politics that has the proclivity and the propensity to send
shivers down the spine of a constitutional democracy.”
[emphasis supplied]
43. The Constitution Bench further observed thus:
D
“61. Having stated about the relevant aspects of the Law
Commission Report and the indifference shown to it, the learned
counsel for the petitioners and intervenors have submitted that
certain directions can be issued to the Election Commission
so that the purity of democracy is strengthened. It is urged by
E them that when the Election Commission has been conferred
the power to supervise elections, it can control party discipline
of a political party by not encouraging candidates with
criminal antecedents.”
[emphasis supplied]
F 44. After considering various judgments of this Court on the scope
of power of the ECI under Article 324 of the Constitution, the Constitution
Bench observed thus:
“71. The aforesaid decisions are to be appositely appreciated.
There is no denial of the fact that the Election Commission
G has the plenary power and its view has to be given weightage.
That apart, it has power to supervise the conduct of free and
fair election. However, the said power has its limitations. The
Election Commission has to act in conformity with the law
made by Parliament and it cannot transgress the same.”
H [emphasis supplied]
BRAJESH SINGH v. SUNIL ARORA & ORS. 935

45. The Constitution Bench thereafter in paragraphs 72 and 73 A
recorded the suggestions given by the learned Senior Counsel appearing
for the petitioner in Writ Petition (Civil) No. 800 of 2015 for giving
directions to the ECI to deal with systemic growth of the problem of
criminalisation of politics and the political system and recorded thus:
“74. Mr Venugopal’s submission has been supported by Mr Dinesh B
Dwivedi, learned Senior Counsel appearing for the petitioners in
Writ Petition (Civil) No. 536 of 2011 and Mr Sidharth Luthra,
learned Amicus Curiae, to the effect that if the Court does not
intend to incorporate a prior stage in criminal trial, it can
definitely direct the Election Commission to save democracy
by including some conditions in the Election Symbols C
(Reservation and Allotment) Order, 1968 (hereinafter
referred to as “the Symbols Order”). The submission is that a
candidate against whom criminal charges have been framed
in respect of heinous and grievous offences should not be
allowed to contest with the symbol of the party. It is urged that D
the direction would not amount to adding a disqualification
beyond what has been provided by the legislature but would
only deprive a candidate from contesting with the symbol of
the political party.”
[emphasis supplied] E
46. Thereafter, the Constitution Bench records the objection of
the learned Attorney General of India to the aforesaid suggestion, which
reads thus:
“75. The aforesaid submission is seriously opposed by the learned
Attorney General. It is the case of the first respondent that Section F
29-A of the Act does not permit the Election Commission of India
to deregister a political party. To advance this view, the Union of
India has relied upon the decision of this Court in Indian National
Congress (I) v. Institute of Social Welfare [Indian National
Congress (I) v. Institute of Social Welfare, (2002) 5 SCC 685]. G
76. It is also the asseveration of the first respondent that the power
of this Court to issue directions to the Election Commission of
India have been elaborately dealt with in Assn. for Democratic
Reforms [Union of India v. Assn. for Democratic Reforms,
(2002) 5 SCC 294] wherein this Court held that Article 32 of the
H
936 SUPREME COURT REPORTS [2021] 7 S.C.R.

A Constitution of India only operates in areas left unoccupied by
legislation and in the case at hand, the Constitution of India and
the Representation of the People Act, 1951 already contain
provisions for disqualification of Members of Parliament.
Therefore, directing the Election Commission to (a) deregister
a political party, (b) refuse renewal of a political party or (c)
B
to not register a political party if they associate themselves
with persons who are merely charged with offences would
amount to adopting a colourable route, that is, doing indirectly
what is clearly prohibited under the Constitution of India and
the Representation of the People Act.
C 77. It is also contended on behalf of the Union of India that adding
a condition to the recognition of a political party under the
Symbols Order would also result in doing indirectly what is
clearly prohibited. To buttress this stand, the Union of India has
cited the decisions in Jagir Singh v. Ranbir Singh [Jagir
D Singh v. Ranbir Singh, (1979) 1 SCC 560 : 1979 SCC (Cri) 348]
and M.C. Mehta v. Kamal Nath [M.C. Mehta v. Kamal Nath,
(2000) 6 SCC 213].
78. Further, it has been submitted by the first respondent that
Section 29-A(5) of the Act is a complete, comprehensive and
E unambiguous provision of law and any direction to the Election
Commission of India to deregister or refuse registration to
political parties who associate themselves with persons merely
charged with offences would result in violation of the doctrine
of separation of powers as that would tantamount to making
addition to a statute which is clear and unambiguous.
F
79. As per the first respondent, “pure law” in the nature of
constitutional provisions and the provisions of the Act cannot be
substituted or replaced by Judge-made law. To advance the
said stand, the first respondent has cited the judgments of this
Court in State of H.P. v. Satpal Saini [State of H.P. v. Satpal
G Saini, (2017) 11 SCC 42] and Kesavananda Bharati v. State of
Kerala [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC
225] wherein the doctrine of separation of powers was concretised
by this Court. It is the contention of the first respondent that
answering the present reference in the affirmative would result in
H violation of the doctrine of separation of powers.
BRAJESH SINGH v. SUNIL ARORA & ORS. 937

80. The first respondent has also contended that the presumption A
of innocence until proven guilty is one of the hallmarks of Indian
democracy and the said presumption attaches to every person
who has been charged of any offence and it continues until the
person has been convicted after a full-fledged trial where evidence
is led. Penal consequences cannot ensue merely on the basis of
B
charge.
81. Drawing support from the judgment of this Court in Amit
Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander,
(2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri)
986] , it is averred by the first respondent that the standard of
charging a person is always less than a prima facie case i.e. a C
person can be charged if the facts emerging from the record
disclose the existence of all the ingredients constituting the alleged
offence and, therefore, the consequences of holding that a person
who is merely charged is not entitled to membership of a political
party would be grave as it would have the effect of taking away D
a very valuable advantage of the symbol of the political party.
82. It has been further contended by the first respondent that
every citizen has a right under Article 19(1)(c) to form associations
which includes the right to be associated with persons who are
otherwise qualified to be Members of Parliament under the E
Constitution of India and under the law made by Parliament.
Further, this right can only be restricted by law made by Parliament
and any direction issued by the Election Commission of India under
Article 324 is not law for the purpose of Article 19(1)(c).
83. The first respondent also submits that the Act already contains F
detailed provisions for disclosure of information by a candidate in
the form of Section 33-A which requires every candidate to disclose
information pertaining to offences that he or she is accused of.
This information is put on the website of the Election Commission
of India and requiring every member of a political party to disclose
such information irrespective of whether he/she is contesting G
election will have serious impact on the privacy of the said member.
84. Relying upon the decisions in Union of India v. Deoki
Nandan Aggarwal [Union of India v. Deoki Nandan
Aggarwal, 1992 Supp (1) SCC 323 : 1992 SCC (L&S) 248]
H
938 SUPREME COURT REPORTS [2021] 7 S.C.R.

A and Supreme Court Bar Assn. v. Union of India [Supreme
Court Bar Assn. v. Union of India, (1998) 4 SCC 409], the first
respondent has submitted that Article 142 of the Constitution of
India does not empower this Court to add words to a statute
or read words into it which are not there and Article 142 does
not confer the power upon this Court to make law.
B
85. As regards the issue that there is a vacuum which necessitates
interference of this Court, the first respondent has contended that
this argument is untenable as the provisions of the Constitution
and the Act are clear and unambiguous and, therefore, answering
the question referred to in the affirmative would be in the teeth of
C the doctrine of separation of powers and would be contrary to the
provisions of the Constitution and to the law enacted by
Parliament.”
[emphasis supplied]

D 47. The Constitution Bench thereafter analysed the provisions of
the Symbols Order and observed thus:
“95. What comes to the fore is that when a candidate has been
set up in an election by a particular political party, then such a
candidate has a right under sub-clause (3) of Clause 8 to choose
E the symbol reserved for the respective political party by which
he/she has been set up. An analogous duty has also been placed
upon the Election Commission to allot to such a candidate the
symbol reserved for the political party by which he/she has been
set up and to no other candidate.

F 96. Assuming a hypothetical situation, where a particular symbol
is reserved for a particular political party and such a political party
sets up a candidate in elections against whom charges have been
framed for heinous and/or grievous offences and if we were to
accept the alternative proposal put forth by the petitioners to
direct the Election Commission that such a candidate cannot
G be allowed to contest with the reserved symbol for the political
party, it would tantamount to adding a new ground for
disqualification which is beyond the pale of the judicial arm
of the State. Any attempt to the contrary will be a colourable
exercise of judicial power for it is axiomatic that “what cannot
H
BRAJESH SINGH v. SUNIL ARORA & ORS. 939

be done directly ought not to be done indirectly” which is a A
well-accepted principle in the Indian judiciary.”
[emphasis supplied]
48. 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 learned Amicus Curiae therein with regard to a B
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. C
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.
49. Thereafter, after considering various judgments of this Court, D
the Constitution Bench observed thus:
“105. Thus analysed, the directions to the Election Commission
as sought by the petitioners runs counter to what has been
stated hereinabove. Though criminalisation in politics is a
bitter manifest truth, which is a termite to the citadel of E
democracy, be that as it may, the Court cannot make the law.
106. Directions to the Election Commission, of the nature as
sought in the case at hand, may in an idealist world seem to
be, at a cursory glance, an antidote to the malignancy of
criminalisation in politics but such directions, on a closer F
scrutiny, clearly reveal that it is not constitutionally
permissible. The judicial arm of the State being laden with
the duty of being the final arbiter of the Constitution and
protector of constitutional ethos cannot usurp the power which
it does not have.”
G
[emphasis supplied]
50. 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,
H
940 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 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.
B 51. In paragraph 107, 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 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
C about the antecedents of the candidates who contest in the election
observed thus:
“115. In PUCL v. Union of India [PUCL v. Union of India,
(2013) 10 SCC 1 : (2013) 4 SCC (Civ) 587 : (2013) 3 SCC (Cri)
769 : (2014) 2 SCC (L&S) 648] , the Court held that the universal
D adult suffrage conferred on the citizens of India by the Constitution
has made it possible for these millions of individual voters to go to
the polls and thereby participate in the governance of our country.
It has been further ruled that for democracy to survive, it is
essential that the best available men should be chosen as the
E people’s representatives for the proper governance of the country.
The best available people, as is expected by the democratic
system, should not have criminal antecedents and the voters
have a right to know about their antecedents, assets and other
aspects. We are inclined to say so, for in a constitutional
democracy, criminalisation of politics is an extremely
F disastrous and lamentable situation. The citizens in a
democracy cannot be compelled to stand as silent, deaf and
mute spectators to corruption by projecting themselves as
helpless. The voters cannot be allowed to resign to their fate.
The information given by a candidate must express everything
G that is warranted by the Election Commission as per law.
Disclosure of antecedents makes the election a fair one and
the exercise of the right of voting by the electorate also gets
sanctified. It has to be remembered that such a right is
paramount for a democracy. A voter is entitled to have an
informed choice. If his right to get proper information is
H
BRAJESH SINGH v. SUNIL ARORA & ORS. 941

scuttled, in the ultimate eventuate, it may lead to destruction A
of democracy because he will not be an informed voter having
been kept in the dark about the candidates who are accused
of heinous offences. In the present scenario, the information given
by the candidates is not widely known in the constituency and the
multitude of voters really do not come to know about the
B
antecedents. Their right to have information suffers.”
[emphasis supplied]
52. After observing the aforesaid, the Constitution Bench has issued
the directions, which are already reproduced hereinabove.
53. It could thus be seen that a suggestion similar to one which is C
made to us 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 learned 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 D
to entering into the legislative arena and as such, such a direction could
not be issued. In our view, in the teeth of the observations made by the
Constitution Bench in paragraph 96, though some suggestions made by
Shri Viswanathan are laudable, it will not be possible for us to accede to
them.
E
54. It will also be relevant to refer to paragraph 40 of the judgment
of this Court in the case of Indian National Congress (I) v. Institute
of Social Welfare and Others8:
“40. It may be noted that Parliament deliberately omitted to vest
the Election Commission of India with the power to deregister a F
political party for non-compliance with the conditions for the grant
of such registration. This may be for the reason that under the
Constitution the Election Commission of India is required to
function independently and ensure free and fair elections. An
enquiry into non-compliance with the conditions for the grant of
registration might involve the Commission in matters of a political G
nature and could mean monitoring by the Commission of the
political activities, programmes and ideologies of political parties.
This position gets strengthened by the fact that on 30-6-1994 the
Representation of the People (Second Amendment) Bill, 1994 was
8
(2002) 5 SCC 685 H
942 SUPREME COURT REPORTS [2021] 7 S.C.R.

A introduced in the Lok Sabha proposing to introduce Section 29-B
whereunder a complaint could be made to the High Court within
whose jurisdiction the main office of a political party is situated
for cancelling the registration of the party on the ground that it
bears a religious name or that its memorandum or rules and
regulations are no longer conforming the provisions of Section
B
29-A(5) or that the activities are not in accordance with the said
memorandum or rules and regulations. However, this Bill lapsed
on the dissolution of the Lok Sabha in 1996 (see p. 507 of How
India Votes: Election Laws, Practice and Procedure by V.S.
Rama Devi and S.K. Mendiratta).”
C 55. It will further be relevant to refer to paragraph 137 in the
judgment of this Court in Manoj Narula v. Union of India9:
“137. In this respect, the Prime Minister is, of course, answerable
to Parliament and is under the gaze of the watchful eye of the
people of the country. Despite the fact that certain limitations
D can be read into the Constitution and have been read in the
past, the issue of the appointment of a suitable person as a
Minister is not one which enables this Court to read implied
limitations in the Constitution.”
[emphasis supplied]
E
56. It could thus be clearly seen that the Constitution Bench in the
above case has held that though certain limitations can be read into the
Constitution, the issue of appointment of a suitable person as a Minister
is not one which enables the Court to read implied limitations into the
Constitution.
F
57. In our view, for the same reasons, 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.
58. We now come to the facts pointed out to us by the Petitioner
in Contempt Petition (Civil) 656/2020 and learned Amicus Curiae.
G
59. As far as Janata Dal United [Respondent No. 3] is concerned,
the Petitioner in Contempt Petition (Civil) 656/2020 has 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
9
H (2014) 9 SCC 1
BRAJESH SINGH v. SUNIL ARORA & ORS. 943

Order of Supreme Court dated 13.02.2020. Further, it has been pointed A
out to this Court by the learned Amicus Curiae in his report dated
09.04.2021 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 B
appearance or filed any counter affidavit to controvert this fact as on
date of this Order. This being the case, we are of the view that the
Respondent No. 3 is in contempt of the Order dated 13.02.2020 for
failing to follow the directions of this Court in letter and spirit.

60. As far as the Rashtriya Janta Dal [Respondent No. 4] is C
concerned, the Petitioner in Contempt Petition (Civil) 656/2020 and the
Learned Amicus Curiae in his report dated 09.04.2021 have pointed out
that the party has specifically provided ‘winnability’ as the only reason
for selection of its candidates as against those without criminal
antecedents. Shri Ajay Vikram Singh, learned counsel appearing on D
behalf of Respondent No. 4 has taken us through the Counter Affidavit
dated 10.04.2021 and Additional Affidavit dated 13.07.2021 and 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 based on its own understanding E
of the form. On perusal of the aforementioned affidavits, we are of the
view that the reason cited by Respondent No. 4 for non-compliance 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. This being the case, we are of the view F
that Respondent No. 4 is in contempt of the Order dated 13.02.2020 for
failing to follow the directions of this Court in letter and spirit.

61. As far as the Lok Janshakti Party [Respondent No. 5] is
concerned, the Petitioner in Contempt Petition (Civil) 656/2020 has pointed
out, from the chart prepared by the ECI in its report dated 02.01.2020, G
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. Further, it has been pointed out that the party has
published the details in newspapers which are of low circulation in
H
944 SUPREME COURT REPORTS [2021] 7 S.C.R.

A derogation of the Order dated 13.02.2020. This apart, the learned Amicus
Curiae has pointed out in his report dated 09.04.2021 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. Shri
Shrish Kumar Mishra, learned counsel appearing on behalf of Respondent
B No. 5 took us through the Counter Affidavit dated 12.07.2021 and has
submitted to this Court that the Forms, as required, have been published
in various English, Urdu and Hindi newspapers. On perusal of the
affidavits as aforementioned, it is undisputed that the party has given
identical reasons for selection of 5 of its candidates and has also filled
C Form C2 in a mechanical manner. This being the case, we are of the
view of Respondent No. 5 is in contempt of the Order dated 13.02.2020
for failing to follow the directions of this Court in letter and spirit.

62. As far as the Indian National Congress [Respondent No. 6] is
concerned, the Petitioner in Contempt Petition (Civil) 656/2020 has pointed
D 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. The learned Amicus Curiae has pointed out in his report dated
09.04.2021 that the party has given reasons along the lines of ‘winnability’
E for the selection of candidates that have been accused of serious offences
such as Section 307, Indian Penal Code and Section 506, Indian Penal
Code. Shri Nishant Patil, learned counsel appearing on behalf of
Respondent No.6 took us through the Counter Affidavit dated 14.07.2021
and submitted that the party had followed all directions issued by this
F Court and that therefore they were not in contempt of our directions On
perusal of the affidavits as aforementioned, we are of the view that
Respondent No. 6 has not followed our directions contained in our Order
dated 13.02.2020 in letter and spirit. This being the case, we are of the
view of Respondent No. 6 is in contempt of the Order dated 13.02.2020.
G 63. As far as the Bharatiya Janata Party [Respondent No. 7] is
concerned, the Petitioner in Contempt Petition (Civil) 656/2020, has
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
H mechanical manner. The ECI through its report dated 01.02.2020 has
BRAJESH SINGH v. SUNIL ARORA & ORS. 945

pointed out that while the party had submitted Form C-8 for 77 candidates, A
it was identified by the Chief Electoral Officer, Bihar that the party had
published criminal antecedents in Form C-7 only for 76 candidates. The
learned Amicus Curiae has pointed out in his report dated 09.04.2021
that the party has provided reasons for selection of candidates, by
referring to serious offences such as offences under Section 386 of the B
Indian Penal Code and Section 506 of the Indian Penal Code and
portraying them as cases that are of a trivial nature. Shri Shailesh Madiyal,
learned counsel appearing on behalf of Respondent No. 7 referred to
written submissions dated 22.07.2021 and submitted that Form C-7 for
one of its candidates was not submitted due to an inadvertent error and C
that the party was otherwise wholly compliant with the directions contained
in Order dated 13.02.2020. He further submitted 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 aforementioned affidavits, we are of the view that the
D
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.
This being the case, the Respondent No. 7 is in contempt of the Order
dated 13.02.2020.
E
64. As far as the Communist Party of India (Marxist) [Respondent
No. 8] is concerned, the ECI in its report dated 01.02.2020 has 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. Shri P.V. Surendranath, F
learned senior advocate appearing on behalf of Respondent No. 8 took
us through the counter affidavit dated 09.07.2021 and 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. He further submitted
G
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
H
946 SUPREME COURT REPORTS [2021] 7 S.C.R.

A aforementioned affidavits, we are of the view 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. This being the case, the
Respondent No. 8 is in contempt of the Order dated 13.02.2020.

65. As far as the Nationalist Congress Party [Respondent No. 9]
B
is concerned, the ECI in its report dated 01.02.2020 has 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. Shri Kapil Sibal and Shri Ritin Rai, learned
senior counsel appearing on behalf of Respondent No. 9 took us through
C the counter affidavit dated 09.07.2021 and 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
D complied with in the Bihar Elections. They further submitted that 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 aforementioned affidavits,
E we are of the view that 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. The
Respondent No. 9 is in complete defiance of the directions contained in
our Order dated 13.02.2021 and is therefore in contempt of the Order.
F 66. As far as the Bahujan Samaj Party [Respondent No. 10] is
concerned, the Petitioner in Contempt Petition (Civil) 656/2020 has 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
G manner. The ECI through its report dated 01.02.2020 has pointed out
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. The learned Amicus
Curiae has pointed out in his report dated 09.04.2021 that the party, in
H order to flout our directions, has justified the selection of some candidates
BRAJESH SINGH v. SUNIL ARORA & ORS. 947

who have been accused of heinous offences such as Section 376, Indian A
Penal Code by stating that there no other applications which have been
received for the candidature to that constituency. Shri Dinesh Dwivedi,
learned senior advocate appearing on behalf of Respondent No. 10 took
us through the Counter Affidavit dated 13.07.2021 and Additional Affidavit
dated 13.07.2021 and submitted that the membership of one of the B
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 C
that the requisite details have been submitted but have not been accounted
for by the Chief Electoral Officer, Bihar. On perusal of the aforementioned
affidavits, we are satisfied by the explanation given qua the 2 candidates.
However, we must caution Respondent No. 10 not to pay lip service to
our directions but to follow them in letter and spirit in the future including
D
the directions contained in this judgment.

67. As far as the Communist Party of India [Respondent No. 11]
is concerned, the Petitioner in Contempt Petition (Civil) 656/2020 has
pointed out that that the criminal antecedents have been published in
newspapers which are of low circulation and that the forms in which E
details of criminal antecedents have to be published have been filled in a
mechanical manner. The learned Amicus Curiae has pointed out in his
report dated 09.04.2021 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, Indian Penal F
Code and Section 506, Indian Penal Code by stating that the cases “do
not have any substance”. Shri B.K. Pal, learned counsel appearing on
behalf of Respondent No. 11 has referred to the written arguments dated
22.07.2021 and submitted that the party has followed all directions issued
by this Court and that any omission pointed out in the filling up of Form
G
C-7 or C-8 may not be viewed as a wilful violation of our directions. On
perusal of the aforementioned affidavits, we are of the view that the
Respondent No. 11 has not followed the directions contained in our Order
dated 13.02.2020 in letter and spirit. This being the case, the Respondent
No. 11 is in contempt of the Order dated 13.02.2020.
H
948 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 68. As far as Rashtriya Lok Samta Party [Respondent no. 12] is
concerned, the Petitioner in Contempt Petition (Civil) 656/2020 and the
learned Amicus Curiae in his report dated 09.04.2021 have 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
B 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. Therefore, we are of the view that Respondent
No. 12 is in contempt of our Order dated 13.02.2020 for failing to follow
the directions of this Court in letter and spirit.
C 69. Though we have held the Respondent No. 3 to 9, 11 and 12
guilty of having committed contempt of our Order dated 13.02.2020,
taking into consideration that these were the first elections which were
conducted after issuance of our directions, we are inclined to take a
lenient view in the matter. However, we warn them that they should be
D cautious in future and ensure that the directions issued by this Court as
well as the ECI are followed in letter and spirit. We direct the Respondent
Nos. 3,4,5,6,7 and 11 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 a period of 8 weeks from the date of this judgment. Insofar
E as Respondent Nos. 8 and 9 are concerned, since they have not at all
complied with the directions issued by this Court, we direct them to
deposit an amount of INR 5 Lakh each in the aforesaid account within
the aforesaid period.

70. Insofar as the ECI is concerned, we accept the argument of
F Shri Vikas Singh that they cannot said to have committed any contempt
of our Order dated 13.02.2020 as the circumstances pointed out by him
clearly show that the ECI did bring to our notice the flouting of our
directions contained in the said order. We must, however, caution the
ECI to do so as promptly as possible in future so that prompt action may
G 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.

71. 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
H
BRAJESH SINGH v. SUNIL ARORA & ORS. 949

for maintaining purity of political system, persons with criminal A
antecedents and who are involved in criminalisation of political system
should not be permitted to be the law-makers. The only question is,
whether this Court can do so by issuing directions which do not have
foundation in the statutory provisions.
B
72. 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, C
though we desire that something urgently requires to be done in the
matter, our hands are tied and we cannot transgress into the area reserved
for the legislative arm of the State. We 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. D

73. In furtherance of the directions issued by the Constitution
Bench in Public Interest Foundation (supra) and our Order dated
13.02.2020, in order to make the right of information of a voter more
effective and meaningful, we find it necessary to issue the following
E
further directions:

(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 F
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 G
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 H
950 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 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
B paid;

(iv) For the aforesaid purposes, 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
C contained in this Court’s Orders, as fleshed out by the ECI,
in instructions, letters and circulars issued in this behalf;

(v) We clarify that the direction in paragraph 4.4 of our Order
dated 13.02.2020 be modified and it is clarified that the
D 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) We reiterate that if such a political party fails to submit
E 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.

74. We are extremely indebted to Shri K.V. Viswanathan, learned
F
Amicus Curiae who has assisted this Court in the highest traditions of
the Bar. We thank him for his valuable assistance.

75. Contempt Petition (Civil) 656/2020 and M.A.(Diary No. 2680/
2021) is disposed of in terms of this judgment.
G

H
BRAJESH SINGH v. SUNIL ARORA & ORS. 951

A

B

C

D

E

F

G

H
952 SUPREME COURT REPORTS [2021] 7 S.C.R.

A

B

C

D

E

F

G

H
BRAJESH SINGH v. SUNIL ARORA & ORS. 953

A

B

C

D

E

F

G

H
954 SUPREME COURT REPORTS [2021] 7 S.C.R.

A

B

C

D

E

F

G

H
BRAJESH SINGH v. SUNIL ARORA & ORS. 955

A

B

C

D

E

F

G

H
956 SUPREME COURT REPORTS [2021] 7 S.C.R.

A

B

C

D

E

F

G

Nidhi Jain Contempt Petition and M.A. disposed of.
H