The Centre has told the Supreme Court 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.
“…the post holder of any party is not a ‘representative’ (in terms of RPA)…the appointment of a post holder to a political party is a matter of party autonomy and it may not be apposite to preclude the EC from registering a political party merely because a particular post-holder is not qualified to contest elections,” the Centre said in an affidavit filed before the apex court.
The affidavit has been filed by the Ministry of Law and Justice in response to a petition initiated by advocate and BJP leader Ashwini Kumar Upadhyay seeking a ban on convicted person 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.
The 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.
Upadhyay has said in his petition that "injury is caused to the public because many corrupt, criminal and convicted persons have formed a 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.
The Centre’s affidavit filed in response to the petition also speaks against any connectivity between the existing provisions of law for registration of a party and the prayer made in the petition.
“…having regard to the existing provisions of law relating to ‘registration of political party’ there does not appear to be any connectivity or nexus between the situations debarring the persons disqualified under the (Representation of People Act, 1951) Act and/ or convicted under criminal law from contesting an election to Parliament and/ or state legislatures vis a vis debarring such persons from forming or becoming a member of any political party…,” it said.
The affidavit informed the court that the Centre had referred the issue relating to electoral reforms in its entirety to the Law Commission of India for examination and suggesting plausible recommendations and the Commission has since tendered its 255th report, which also 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.
Informing that the said report is under examination by the Government of India for framing up of a roadmap, “there is, however, no such recommendation or suggestion made by the law commission in relation to Section 29A and refusal of registration of political parties based on criminal antecedents of post holders of such parties”.
“…In fact the said report has suggested empowering ECI to de-register parties in certain situations, none of which are relatable to existence of criminal antecedents of post-holders of a political party,” said the Centre.
It also went on to add that neither the Goswami committee report nor the National Commission to Review the Working of the Constitution have made such recommendation.
The Centre also added that the prayer made by the petition only pertains to preventive measure by refusing to register a political party, however, it does not address the issue of political parties that after registration have post holders who are disqualified from contesting elections.
Relying on the Supreme Court case titled Indian National Congress vs Institute Of Social Welfare, it said 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.
It also said the petition is not maintainable since writ of mandamus demanding the Centre to make amendment to any law is not maintainable.