Institute of Legal and Management Studies

"Merely because a person has been disqualified for a statutory right, you can't ipso facto deprive him of his constitutional right", the Supreme Court orally observed today during the hearing of a public interest litigation seeking a ban on convicted persons from creating political parties/giving party tickets.

To recap, the PIL, filed in 2017, involves interpretation of Section 29A of the Representation of People Act, 1951 and raises the issue whether the Election Commission of India is empowered to de-recognize political parties formed by convicted persons.

A bench of Justices Surya Kant and Joymalya Bagchi noted that the PIL raises an interesting issue "worth consideration", but indicated that it will hear it on another day.

Advocate Ashwini Kumar Upadhyay, appearing as party-in-person, argued that a person who is disqualified for registration in electoral roll, and even for voting, in terms of Section 29A, is not disqualified for creating a political party. He highlighted that a person who cannot vote or contest can create a political party, even from jail, and that political parties govern the entire country.

Hearing him, Justice Kant posed a hypothetical: "Suppose tomorrow Parliament enacts a law that no person will hold public office beyond age of 80 yrs, can you also deprive him from leading a political party?"

Subsequently, Upadhyay highlighted that 10 expert commissions/panels have said that there's a vacuum in the law. On this, Justice Kant said, "An expert body meant to bring reforms in the election law, if that expert body recommends and the Parliament accepts those recommendations, maybe...it's their prerogative and in their domain."

"Question will be that should a constitutional Court direct that irrespective of your right under Article 19, you will not be entitled to form an association of political ideology only because you are not entitled to cast vote?" the judge added.

Background

The PIL submits that injury is caused to the public because many corrupt, criminal and convicted persons have formed political parties. It argues that at present, a person, who has been convicted for heinous crimes like murder, rape, smuggling, money laundering, sedition, loot, dacoity etc. can form a political party and become party president.

It adds -

"For instance, Mr. Lalu Yadav, Mr. O.P. Chautala and Mrs. Shashi Kala have been convicted for major scams but still holding highest political post. Similarly, charges have been framed by the Court in serious cases against Mr. Suresh Kalmadi, Mr. Raja, Mr. Jagan Reddy, Mr. Madhu Koda, Mr. Ashok Chavan, Mr. Akabaruddin Owaisi, Mrs. Kanimozhi, Mr. Adhir Ranjan Chaudhary, Mr. Virbhadra Singh, Mr. Mukhtar Ansari, Md. Shahabuddin, Mr. Suraj Bhan Singh, Mr. Anand Mohan Singh, Mr. Mulayam Singh Yadav, Ms. Mayawati and Brijesh Singh etc., but they are still holding political post and wielding political power.”

The Supreme Court had decided to interpret Section 29A, which deals with registration with the Election Commission as a political party, and also examine if the ECI is clothed with the power of denying the benefit of registration under Section 29A to a political party whose office-holders are persons disqualified under the Act to stand for election on account of a conviction.

In the affidavit filed before the Court, the Union Government had submitted that appointment of a post-holder in a political party is a matter of party autonomy and it may not be apt to preclude the Election Commission from registering a party merely because a particular post-holder is not qualified to contest elections. It was also brought to the notice of the Court that the Union Government had referred the issue relating to electoral reforms in its entirety to the Law Commission of India for examination and suggesting plausible recommendations.

Thereafter, the Commission had tendered its 255th report, which included the issue of regulation of political parties and inner party democracy. It was stated that the report of the Commission was being examined by the Union Government, however, no suggestion was made by the Commission in relation to Section 29A and refusal of registration of political parties based on criminal antecedents of post holders of such parties. The Union Government also argued that the PIL was not sustainable in law since writ of mandamus demanding it to make amendment to any law was not maintainable.

As per the affidavit, the Election Commission, under Section 29A, has no power to de-register or cancel the registration of a political party except in three situations none of which pertains to the antecedents of a post-holder.

Case Title: Ashwini Kumar Upadhyay v. UoI And Anr., WP(C) No. 1152/2017