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'If Supreme Court Clarifies Election Commission's Power To De-Recognise Political Parties, It Will Be Salutary Step: EC Tells SC
Mehal Jain
15 July 2021 10:48 PM IST
'If Supreme Court clarifies Election Commission's power to de-recognise political parties, it will be a salutary thing. If we do it for even one political party, it will have huge ramifications',Election Commission has submitted before the Supreme Court."Dr. B. R. Ambedkar expressed 2 regrets regarding the Constitution – one, that it could not be drafted in vernacular. And two, that there...
'If Supreme Court clarifies Election Commission's power to de-recognise political parties, it will be a salutary thing. If we do it for even one political party, it will have huge ramifications',Election Commission has submitted before the Supreme Court.
"Dr. B. R. Ambedkar expressed 2 regrets regarding the Constitution – one, that it could not be drafted in vernacular. And two, that there was no stipulation of qualification for the elections. In the Constituent Assembly debates, it was expected that the voters would have the wisdom to decide who is the correct person to be elected. This has not happened. The ECI wants to take this forward", Senior Advocate Vikas Singh appearing for EC told the Supreme Court on Thursday.
The bench of Justices Rohinton Nariman and B. R. Gavai was considering a contempt petition filed by advocate Brajesh Singh where he claims to be aggrieved by the conduct of the respondents during the Bihar Legislative Assembly Election of 2020, alleging wilful disobedience of the Court's judgement of February 13, 2020 where the Court, while exercising its power under Article 129 read with Article 142, has directed, inter alia, that it shall be mandatory for political parties to upload on their website detailed information regarding individuals with pending criminal cases who have been selected as candidates. It was the case of the contempt-petitioner that all of the parties contesting the Bihar elections deliberately defied the orders of the Court by choosing to publish their criminal antecedents by and large in one newspaper which did not have wide circulation in the state as compared to other prominent newspapers. Further, all prominent political parties had given a common reason for selecting candidates with criminal antecedents- their being more popular than any other candidate and the greater probability of winning- which is against the Court's direction Which had specifically required the reasons to be in terms of the qualifications, achievement and merit of the candidate and not winnability at the polls. Besides, it is contended that only an incomplete description of the offences with which the candidates are charged had been given.
"Our experience is that everybody knows which of the candidates who are contesting have criminal antecedents. But the candidates still garner votes on the basis of caste or because of the political party etc. Something needs to be done towards the issue of criminalisation of politics in this country", he submitted.
He drew the attention of the bench to the directions issued on February 13, 2020- that it shall be mandatory for political parties at the Central and state election level to upload on the website detailed information regarding individuals with pending criminal cases (including the nature of the offences and the 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 for such selection, as also as to why other individuals without criminal incidents could not be selected as candidates. Further, the court had required these details to be published within 48 hours of the selection of the candidate or not less than 2 weeks before the first date for filing of nomination, whichever is earlier.
"This order was passed on my submission. It was our hope that there should be some thought by the political parties, some debate so far as the issue of criminalisation is concerned. But all these hopes have been completely belied. Political parties are deciding the names of the candidates on the last date of nomination. This is a big malpractice in the country. The name is just logged in, there is no discussion, and then routine affidavits are filed. There has to be some sort of a churning exercise. Unfortunately, the political parties are not discussing anything. Look at any political party, be it the ruling party or the opposition, the percentage of candidates who were selected and who have criminal antecedents is the same", he submitted.
Mr. Singh indicated section 81 of the Representation of People's Act, which states that an election petition calling in question any election may be presented on one or more of the grounds specified by any candidate at such election or any elector. He showed that "elector" has been defined to mean a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
"Where in any constituency, a candidate with criminal antecedents has been selected, it will be open to an elector of that constituency or another candidate to contest this by way of an election petition where they may urge that there is a better candidate available. Then the High Court will have the jurisdiction to decide who was the better candidate. This will ensure that every candidate with criminal antecedents can face an election petition at the behest of one who says 'I am a better candidate' and then the High Court will have the jurisdiction to decide and the former's election can be found to be flawed. Election must be declared more than 2 weeks before the notification of the first phase. A discussion, by political parties regarding names of candidates, must happen 3 weeks before the last date of nomination. This is important for the churning exercise to happen. Political parties must create an open website which is made accessible to the entire country and where these people can apply within a period of 7 days. Thereafter, they may file an election petition saying that they are to be a better candidate but a criminal person has been selected", suggested Mr. Singh.
He continued to indicate how, in the instant case of the Bihar Assembly elections, the public announcement of the election schedule was made on September 25, 2020 and this was followed by the notification of the first phase on October 1. While October 8 was the last date of filing nominations, the first election was held on October 28.
"This churning process can be brought to a logical conclusion only by a judicial order. If Your Lordships put it in the order, it will have a long-lasting effect. There need to be some teeth", urged Mr. Singh.
Justice Nariman pointed out to Mr Singh that an election petition can be filed only after the election. To this, the Senior Advocate replied that while the petition can come only after the elections, it will serve as a deterrent to the candidate with criminal antecedents.
Mr. Singh sought the bench's permission to submit a draft order, for the consideration by the bench, for the above suggestion to be incorporated by the bench in its order. The bench allowed this request.
It may be noted that the February 13, 2020 judgement of the Court further required the political party concerned to submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate. The Court had provided that if a political party fails to submit such a compliance report, the commission shall bring such non-compliance to the notice of the Supreme Court as being in contempt of the Court's directions.
"It took you 3 months to come to us when we had said that you must come immediately?", Justice Nariman had asked of Mr. Singh at the outset on Thursday. "There are some 300 odd constituencies in Bihar and some 3000 candidates. We had to analyse everything. The election result was pronounced on November 10, 2020 and we have come before this court on February 6 this year", replied Mr Singh.
When Justice Nariman enquired if the Election Commission has stated anywhere on affidavit that it took them 3 months to complete the exercise, Mr. Singh replied that he shall file a fresh affidavit on how long it took the Commission to compile the information and that he is more worried about criminalisation of politics, more than anything else. He pointed out that the instant contempt petition was filed on November 6, 2020 even though the third phase of the election was to be held on November 7 and the result was to be declared on November 10. "People come for publicity well in advance. There is no question of our being in contempt. In fact, Your Lordships may transpose us as petitioners in this matter", urged Mr Singh.
'If SC clarifies ECI's power to de-recognise political parties, it will be a salutary thing. If we do it for even one political party, it will have huge ramifications'- Mr. Vikas Singh
The ECI in pursuance of the judgement of the Supreme Court of February 13, 2020, issued a letter dated March 6, 2020 to the President/General Secretary/Chairperson/Convenor of all the recognised national and state political parties, intimating compliance of the said order by all the parties in letter and spirit. By the said letter, the ECI also brought in notice of all the recognised parties that failure to abide by the above directions will be treated as a failure to follow a lawful direction of the Commission for the purposes of Paragraph 16A of the Election Symbols (Reservation and Allotment) Order, 1968.
Paragraph 16A speaks of the power of the Commission to suspend or withdraw recognition of a recognised political party for its failure to observe Model Code of Conduct or follow lawful directions and instructions of the Commission.
On Thursday, Justice Nariman asked Mr. Singh about this letter of the ECI where it has declared its intention to take action under the aforesaid Paragraph 16A.
In response, Mr Singh indicated a 2014 judgement of the Supreme Court in Pravasi Bhalai Sanghatan, where Justice B. S. Chauhan recorded that the Law Commission has undertaken the study as to whether the Election Commission should be conferred the power to de-recognise a political party disqualifying it or its members.
"Justice Chauhan's judgement has created a little confusion. If Your Lordships clarify as regards de-recognition today, we can do it", said the Senior Advocate.
Mr. Singh also indicated Justice V. N. Khare's judgement of 2002 in INC v. Institute of Social Welfare where it was held that neither under the Symbols Order nor under Section 29A of the RPA, the Election Commission has been conferred with any express power to de-register a political party registered under Section 29A of the Act on the ground that it has either violated the provisions of the Constitution or any provision of undertaking given before the Election Commission at the time of its registration.
In response to this, Justice Nariman indicated the 1995 Supreme Court judgement in Janta Dal (Samajwadi) v. ECI where it was held, "Section 21 of the General Clauses Act provides that where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction, and conditions if any to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. As paragraph 2(2) of the (Symbols) order in clear and unambiguous term makes provision of the General Clauses Act applicable to the Symbols Order, it need not be impressed that provisions of Section 21 of the General Clauses Act, also become applicable, vesting power in the Election Commission, which had issued the aforesaid order dated 16.4.1991 recognising the appellant as a national party, to rescind the said order, as appellant in the elections to the Legislative Assemblies of the States mentioned above ceased to fulfil the conditions prescribed in paragraph 6(2) of the Order read with 7(1) thereof"
"Justice Chauhan's judgement doesn't see the 1995 judgement which says that 21 of the General Clauses Act applies and therefore, the power of de-recognition is there", remarked Justice Nariman.
Mr. Singh clarified that the 1995 judgement is not in the context of the general power of the ECI to take away recognition, but only for when the stipulated condition for acquiring such recognition by a political party, in terms of the percentage of votes to be obtained by all the contesting candidates set up by such party at the general election, is not met.
"Today, the context is our order. So we can distinguish this and say that it falls under the latter part of 16A (dealing with derecognition on failure to follow or carry out the lawful directions and instructions of the Commission). The ECI will also see to it that Paragraph 10A of the Symbols Order does not become the panacea to all the ills of political parties who flout our order. 10A is only for when there is a mechanical issue. Here, they are at fault. So paragraph 16A's latter part does come in!", observed Justice Nariman.
Paragraph 10A of the Symbols Order allows that if a political party, which is unrecognised at present but was a recognised National or State party, sets up a candidate at an election in a constituency, then such candidate may be allotted the symbol reserved earlier for that party when it was a recognised party.
"Some countries even have a system where there are no symbols but only the names of the candidates. For example, in the SCBA elections, if there were symbols, the results would be very different. Why cannot we do away with the symbols here in India also?", suggested Mr. Singh
"If Your Lordships clarify the ECI's de-recognise political parties, it will be a salutary thing. If we do it for even one political party, it will have huge ramifications", continued Mr Singh.
"We will clarify", said Justice Nariman.
The bench on Thursday asked Senior Advocate K. V. Vishwanathan, the Amicus Curiae in the matter, to submit a comprehensive note on how to "get over the judgements of Justices Chauhan and Khare".
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