Can Political Parties Be De-Recognized For Failing To Publish Candidates' Criminal Antecedents Candidates? Supreme Court Discusses

"Are we to just put up our hands?", Justice Rohinton Nariman asked on Tuesday when Senior Advocate Kapil Sibal, for the Nationalist Congress Party, attempted to dissuade the Court against the invocation by the ECI of its power 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 (under Paragraph 16A of the Symbols Order)Although several political parties are arrayed as alleged contemnors for wilful disobedience during the Bihar Legislative Assembly Election of 2020 of the Court's judgement of February 13, 2020, primarily, the NCP and the CPI(Marxist) are in the docks for failing to comply at all. In the said judgment, 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.Mr. Sibal had sought to submit that when a candidate is found guilty of a criminal offence, the Representation of People's Act stipulates that the person is disqualified and stands debarred from contesting elections."And how long does that take? There are Law Commission reports that the stage when a candidate must be debarred from contesting elections is the framing of charges. Unfortunately, we can't legislate! That is why we have called upon the Legislative Department repeatedly! But nothing is done, nothing at all! Are we to just put up our hands?", asked Justice Nariman.Responding that he is not suggesting that the Court "put its hands up", Mr. Sibal explained that he is only submitting that the course of action through Paragraph 16A not be taken recourse to. "Your Lordships may say that if a charge has been framed for an offence punishable with more than 7 years, that person may not contest elections", he advanced.Justice B. R. Gavai remarked that the same would amount to an encroachment in the domain of the Legislature."Your Lordships may give this power to the ECI under Article 324 (Superintendence, direction and control of elections to be vested in an Election Commission)! The EC can ensure that where the charges have been framed for an offence punishable with more than 7 years, that person will not contest elections!", responded Mr. Sibal.Justice Nariman pointed out that a Constitution Bench of the Supreme Court has already considered all these propositions in 2018 and held that it cannot be done by the Court. "Then please refer it to 7 judges! But please don't do it through 16A, not in this fashion! It would create too many problems for us!", urged Mr. Sibal."Political parties are monoliths. The right hand does not know what the left hand is doing. There are many people at different levels and the party does not always know who is doing what and where- there are Panchayat elections, municipal elections, state elections! In the instant case, it was in the Bihar elections that the ECI's directions were not followed. Can that be the basis for cancelling the symbol of a national party and affecting its rights at elections across the country?", Mr. Sibal had argued.At this, Justice Nariman indicated to Mr. Sibal that Paragraph 16A allows the ECI to either suspend, subject to such terms as the Commission may deem appropriate, or withdraw the recognition of such party as the National party or, as the case may be, the State party. "They can always suspend. Then, as a national party, you will not be jeopardised", observed the judge.The judge noted that the suspension or withdrawal is of the recognition, and that it has nothing to do with any election."Even though the power is there, it has to be carefully exercised so it does not affect the polity of the country. If you give a hammer in the ECI's hands, it could be misused. Please read 16A with 324 to ensure the purity of the elections. To give the ECI the power to de-recognise would be dangerous! We know that leaders of some political parties are acted against immediately, while those of some parties are not dealt with at all! There are false cases foisted on some leaders!", concluded Mr. Sibal.Justice Gavai asked Senior Advocate K. V. Vishwanathan, the Amicus Curiae in the matter, "National political parties run throughout the country. If a folly is committed by the party in Bihar, should the party be punished in the entire country?""How should the ECI deal with a party like the BJP or the INC? Can the suspension be state-wise for them? That they are recognised in the rest of the country but not, say, in Kerala? We have to take into consideration the ground realities in a country with so many states, where you don't know where the office bearers are. If in some small Panchayat elections, the directions are not followed, you cannot suddenly throw the entire party out", asked Justice Nariman.The Amicus took the bench through the...

Can Political Parties Be De-Recognized For Failing To Publish Candidates' Criminal Antecedents Candidates? Supreme Court Discusses

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