De-Recognition Of Political Parties Can Be A Last Resort To Enforce Compliance, Election Commission Tells Supreme Court

"The recourse to Paragraph 16A in all cases may not be called for. Your Lordships may censure the political parties and see how an election or two fan out with the threat of 16A hanging over their heads. If nothing is done, the 16A route can be gone down", Senior Advocate Harish Salve, for the Election Commission of India, told the Supreme Court on Tuesday. 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. In the said judgment, it was held 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. The matter was being heard on the question of 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) "If parties have not filed affidavits in time or have made insufficient disclosures, Your Lordships may reign them in. If there is egregious default by the parties, then the EC has to take action- The final action is to freeze the symbols if the compliance is refused or if the compliance is a sham. But there are also concerns about too many parties being thrown out of the political arena. For the symbols to be frozen if you trip a wire, that would require a change in the real polity of the country. For that, it is necessary to see the problems and have a wider debate", explained Mr. Salve. "The value system has to be thrust down the parties' throats. The compliance of Your Lordships' judgment is of utmost importance. They have to be made to understand that compliance is not optional and that there is the final action under 16A of taking away the symbol...", he continued. Mr. Salve asserted that the change has to come from the heart of the people, that we have come this far and that 10 years back nobody could have imagined political parties being hauled up in contempt for failing to disclose criminal antecedents of their candidates- "The gun is already there on their head! One or more contempts like this, and they will fall in line and the compliance will become routine. For egregious cases, 16A is there ofcourse" "I remember the time when the Solicitor General was defending the law that said declaration of criminal antecedents cannot be mandatory. Your Lordships struck it down. There was a rumpus, but now a change has come. In an election or two, people will realise what has to be done", he continued. "We are certain that the legislative branch will not take this forward, not only in the foreseeable future, but at any time in the future", commented Justice Nariman. "Yes, there is 100% unity in otherwise great diversity", quipped Justice Gavai. "Candidates are selected for a variety of reasons. Winnability is the universal criteria. Your Lordships are doing this for the good of the country. But the voters also need to realise this. They keep on voting for the same candidates. Your Lordships have to balance these considerations. 16A is not called for in all cases", Mr. Salve said. Mr. Salve suggested that because there is a breach of the Court's order, consequences must follow, that the preferred course of action may be to impose appropriate sanctions in the form of monetary penalty. "But I only have one request to make- if Your Lordships impose a sanction, let it not be Re.1 so that people have photographs taken of themselves posing with a Re. 1 coin with smiles on their faces", he concluded. Senior Advocate Vikas Singh, also appearing for the ECI, advanced that political parties are deciding the names of the candidates on the last date of nomination, that the name is just logged in without any discussion and then routine affidavits are filed. "There has to be some sort of a churning exercise. You have to have some clarity as to the candidates. What is happening today is that it is the party which remains in the election and the candidates become inconsequential", he insisted. To this end, he urged that the Court direct that elections 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; and that the parties must declare...

De-Recognition Of Political Parties Can Be A Last Resort To Enforce Compliance, Election Commission Tells Supreme Court

Mehal Jain

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