The Supreme Court on Tuesday (January 21, 2025) asked whether a ban on persons charged with heinous offences such as murder and rape from contesting elections will lead to irreversible damage if they are later found innocent after trial.

A Bench of Justices Surya Kant and N. Kotiswar Singh said there were also reliefs in law if elected persons were later found guilty of serious crimes.

Petitioner-advocate Ashwini Kumar Upadhyay submitted that the right to campaign and contest were not fundamental rights.

“There are only 5,000 seats up for election and over a billion people… Can we not find honest people to contest in elections?” Mr. Upadhyay asked the court.

Justice Kant responded with a question: “And how many of these people come forward to contest in elections, Mr. Upadhyay?”

“We, as a nation, need to introspect… Do we need honest people?” Justice Kant observed orally.

Mr. Upadhyay said honest souls did not enter electoral politics as the system had collapsed.

The exchange happened when Mr. Upadhyay made an oral mentioning of his petition. The court agreed to list it for further hearing on January 27.

2020 order

In 2020, the Supreme Court had pronounced a judgment directing political parties to publish the entire criminal history of their respective candidates for Assembly and Lok Sabha polls along with reasons which goaded them to field suspected criminals over decent people.

The judgment pronounced by a Bench headed by Justice (now retired) Rohinton Nariman had directed parties to publish the information in local as well as national newspapers, including the parties’ social media handles. The information must be mandatorily published either within 48 hours of the selection of candidates or less than two weeks before the first date for filing of nominations, whichever was earlier.

The court had further ordered political parties to submit compliance reports with the Election Commission of India within 72 hours or risk contempt of court action.

The judgment was a result of the court’s alarm at the unimpeded rise of criminals, often facing heinous charges such as rape and murder, in the country’s political life.

It had ordered the criminal antecedents of candidates to be detailed to include the nature of their offences, charges framed, case numbers, etc.

A political party should explain to the public through their published material how the “qualifications or achievements or merit” of a candidate, charged with a crime, impressed it enough to cast aside the smear of his or her criminal background, the court had held in 2020.

A party would have to give reasons to the voter that it was not the candidate’s “mere winnability at the polls” which guided its decision to give him a ticket to contest the elections, Justice Nariman had reasoned.

The judgment was based on a contempt petition filed by Mr. Upadhyay about the general disregard shown by political parties to a 2018 Constitution Bench judgment (Public Interest Foundation v. Union of India) to publish the criminal details of their candidates in their respective websites and print as well as electronic media for public awareness.