Supreme Court Adjourns Hearing Of Plea Seeking Ban On Convicted Persons From Forming Political Party Till August

The Supreme Court, on Thursday, deferred the hearing of the plea involving interpretation of Section 29A of the Representation of People’s Act, 1951 (RP Act) as to whether the Election Commission of India is empowered to de-recognise political parties formed by convicted persons. The petition seeks a ban on convicted persons from forming a political party and becoming a political office bearer for the period he is disqualified under sections 8, 8A, 9, 9A, 10, 10A, 11A, 41 and 62 of the Representation of People Act, 1951.

A Bench comprising Justice KM Joseph and Justice BV Nagarathna adjourned the plea to till second week of august, 2023. Considering he is to demit office in June, 2023, Justice Joseph indicated that the petitioner ought to mention the matter before the Bench led by the CJI DY Chandrachud, so that a new bench can be constituted.

At the outset, Advocate Ashwini Kumar Upadhyay, petitioner-in-person, apprised the Bench that there is a vacuum in the RP Act, wherein a convicted person who is unfit to contest election themselves can form political party, become the party president and decide who will contest elections. He submitted that the matter would require a ‘full day hearing’.

Justice Joseph enquired if the prayers in the present PIL is covered by the decision in the Constitution Bench judgment of the Apex Court in Manoj Narula v. Union of India. In the said judgment certain gaps in provisions of the RP Act, particularly Section 8, has been dealt with by the Court. Upadhyay submitted that the issue before the Constitution Bench and those before the present Division Bench are ‘completely different’.

Noting that the prayers in the present petition are very interesting, Justice Joseph asked Upadhyay to read them out. However, since he did not have his paperbook, the Bench thought it fit to defer the hearing till after the summer vacation.

Background

The PIL submits that injury is caused to the public because many corrupt, criminal and convicted persons have formed political parties and it is in the teeth of the fundamental right guaranteed under Article 19. 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 Apex Court had decided to interpret Section 29A RPA, 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 and after having detailed deliberations on the issue, the Law Commission has made many suggestions. It was stated that the report of the Commission was being examined by the Union Government. However, it was emphasised that 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. Moreover, the suggestion empowering ECI to de-register parties in certain situations, did not relate to the existence of criminal antecedents of post-holders of a political party. The Union Government also argued that the PIL is not sustainable in law since writ of mandamus demanding it to make amendment to any law is not maintainable.

As per the affidavit, the Election Commission under Section 29A has no power to deregister 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]

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