Does Election Commission Possess The Power To De-Register A Political Party

Part-IV-A of the Representation of the People Act contains three sections, Section 29A deals with registration of associations and bodies as political parties, Section 29B deals with political parties entitled to accept contributions and Sections 29C deals with declarations of donations received by the political parties. Section 29A was inserted through the Representation of the People (Amendment) Act, 1988. It was inserted as it was deemed necessary that the election law should define political party and lay down the procedure for its registration. Before Section 29-A of the Act came into force, the political parties were registered under the Election Symbols (Reservation and Allotment) Order, 1968.

However, Part-IV-A does not provide any section for de-registration of a political parties. The entire Representation of the People Act, 1951 does not provide any mechanism for de-registration of a political party.

The question may arise as to why the Parliament decided to omit de-registering of a political party when it had included provisions for registration of political parties. The Supreme Court has observed that Parliament may have deliberately omitted to vest the Election Commission of India with the power to de-register a political party and this may be for the reason that under the Constitution of India, 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 nature and could mean monitoring by the Commission of the political activities, programmes and ideologies of political parties.^[2]

In 2016, the then Chief Election Commissioner Dr. Nasim Zaidi had recommended 47 proposals of Electoral Reforms pertaining to decriminalisation of politics, prevention of abuse of money, transparency in funding of political parties, making bribery an cognisable offence, criminalising paid news, empowering ECI to countermand election in cases of bribery and abuse on the lines of countermanding in event of both capturing.^[3] One of the reforms suggested by Dr. Nasim Zaidi was "de-registration of political parties.^[4] The Election Commission possesses the power to register a political party but it does not possess the power to de-register it. This was not the first instance when the Election Commission recommended this, in 1998 the Election Commission had sent proposals to the Government to amend the law and give it the authority to deregister parties and again in 2004, proposals for electoral reforms was sent to the Centre.^[5] However, the law was never amended. The closest the Election Commission reached with the amendment of the law was in 1994 when Representation of the People (Second Amendment) Bill was tabled before the Parliament. However, the Bill was never passed and could become an Act. The Representation of the People (Second Amendment) Bill proposed that a complaint can 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 no longer conform to the provisions of the Act, or that its activities are not in accordance with the said memorandum or rules and regulations.^[6]

The Supreme Court has provided certain exemptions to the lack of power to de-register a political party. The Supreme Court has held that there are three exceptions where the Commission can review its order registering a political party. One is where a political party obtained its registration by playing fraud on the Commission, secondly, it arises out of sub-section (9) of Section 29-A of the Act and thirdly, any like ground where no enquiry is called for on the part of the Election Commission, for example, where the political party concerned is declared unlawful by the Central Government under the provision of the Unlawful Activities (Prevention) Act, 1967 or any other similar law.^[7] Therefore, if a party does not have faith and allegiance to the Constitution of India or to the principles of socialism, secularism and democracy, or it would not uphold the sovereignty, unity and integrity of India so as to comply with the provisions of Section 29-A(5). In such cases, the very substratum on which the party obtained registration is knocked off and the Commission in its ancillary power can undo the registration of a political party. However, the ancillary and incidental power of the Commission cannot be extended to a case where a registered political party admits that it has faith in the Constitution and principles of socialism, secularism and democracy, but some people repudiate such admission and call for an enquiry by the Election Commission, reason being, an incidental and ancillary power of a statutory authority is not the substitute of an express power of review.

In 2014, the Supreme Court had requested the Law Commission requested the Law Commission to examine whether the Election Commission should be conferred the power to derecognise a political party. ^[8] In 2017, the Madras High Court had requested the Centre to take a call and take a decision as expeditiously as possible on the recommendation made by the Election Commission of India in 1998 to amend the Representation of People Act (RPA) so as to provide Election Commission power to deregister a political parties violating the Constitution of India.^[9]

The recommendations made to grant the Election Commission with the power to de-register has still not led to legislative action. The question that arises is how much does this lack of power result in lack of control over political parties which engage in communal and decisive politics and also the political parties registered solely to derive tax benefits granted to political parties under the Income Tax Act, 1961.