The Supreme Court on Friday issued notice to the Centre and the Election Commission of India (ECI) on a PIL seeking a ban on convicted persons from forming a political party and becoming office-bearer of the party.
A three-judge bench headed by Chief Justice of India Dipak Misra sought the government’s response and decided to interpret Section 29 (A) of the Representation of People’s Act (RPA) as to whether the ECI is empowered to derecognise the political party formed by a convicted person.
It would also examine the issue to restrain the convicted person from becoming the office-bearer of the party.
The bench, also comprising Justice AM Khanwilkar and Justice DY Chandrachud, was hearing a petition filed by Bharatiya Janata Party (BJP) leader Ashwini Upadhyay.
Appearing for the petitioner, senior advocates Sidharth Luthra and Sajan Poovayya submitted that if a convicted person in a criminal case gets disqualified to contest election, he should not be allowed to head a political party.
"By virtue of section 8, 8A, 9, 9A, 10 and 11 of the Act of 1951, it has already been held that candidates convicted under criminal laws are disqualified from contesting elections with immediate effect. Then there is the matter regarding doing away with the limited period of the disqualification and extending it for the lifetime of the convict. Section 29 A is in total conflict with this objective to decriminalise politics in so far as it does not debar such convicts from making, operating and running a political party. Mr. Lalu Prasad Yadav, Mr. O. P. Chautala and Ms. Shashikala have been convicted in major scams and still continue to head parties in power. The section empowers those disqualified to indirectly bypass the rigours of the Act by becoming supremos of political parties and ultimately controlling the candidate who comes to power.”
Mr. Luthra cited the judgment in Indian National Congress v. Institute of Social Welfare and Ors. [(2002) 5 SCC 685] in so far as it held therein, “the order which the Commission is required to pass under Section 29A is neither a legislative nor an executive order but is a quasi-judicial order...there are three exceptions where the Commission can review its order registering a political party. One is where in political party obtained its registration by playing fraud on the Commission, secondly it arises out of Sub-section (9) of Section 29A 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”
Also, the judgement in Lily Thomas v. Union of India [(2013) 7 SCC 653] was relied upon, where section 8(4) of the Act of 1951 was held to be ultra vires the Constitution in so far as it required the disqualification in case of sitting MPs and MLAs to come into effect upon expiration of 3 months from the date of conviction.
The apex court observed, “Persons convicted under criminal laws and hence, disqualified from contesting elections should not be allowed to take advantage of section 29 A of the Act of 1951. In this petition, we are only inclined to address the issue of the vires of the said section”
The bench finally agreed to examine the issue and interpret the Section of RPA.
The petition also sought direction to the ECI to frame guidelines to decriminalize the electoral system and ensure inner party democracy.
According to the data compiled by the Association of Democratic Reforms (ADR), in year 2014, there were a total of 1581 legislators, against whom criminal cases were pending.
Upadhyay has said in his PIL that "injury is caused to public because many corrupt, criminal and convicted persons have formed political party and threatens the fundamental right guaranteed under the Article 19 by using money and muscle power".
Presently, even 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, he said.
"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 PIL added.
It is to be noted that on November 1, the Supreme Court had, in Upadhyay’s PIL for life-long disqualification on convicted MPs and MLAs, directed the Centre to frame within 6 weeks scheme for setting up special courts for trying criminal cases involving political persons on lines of fast track court.