Chief Justice of India Dipak Misra on Monday questioned the logic behind having a criminal and corrupt person as the head of a political party. He said such a lapse was a huge blow to the purity of the election process.
Far worse is the prospect of democracy when such a criminal at the head of political party has the power and authority to choose candidates who would contest elections under his party's banner, Chief Justice Misra observed at the head of a three-judge Bench.
The court said having a criminal decide who the people should vote for, by itself, goes against the basic tenet of democracy.
"How can a convicted person be an office-bearer of a political party and select candidates to contest elections? This goes against our judgements that corruption in politics [are] to be ostracised from the purity of elections," Chief Justice Misra orally observed, addressing the government and the Election Commission of India (ECI).
"So, is it that what you cannot do individually [that is contest elections], you can do collectively through some of your agents" the Chief Justice asked.
"A man cannot directly contest an election, so he constitutes a group of persons to form a political party and contest an election. People can form an association of people to do philanthropic activities like have a hospital or a school. But when it comes to the field of governance, it is different," he said.
Additional Solicitor General Pinky Anand said the government would need some time to file a response.
The court said a reform to ban convicted persons from becoming office-bearers of political parties would be in consonance with its past judgements slamming corrupt politics.
The court posted the case after two weeks.
Should ECI be allowed to deregister a political party?
In December last, the Supreme Court agreed to examine whether the ECI should be empowered to deregister a political party on the ground that a convicted person has either formed it or is a crucial office-bearer.
Advocate Ashwini Kumar Upadhyay, who filed the petition, reasoned that if a convicted person could be banned from contesting elections, he or she should be also debarred from heading a political party and controlling other elected members of his or her party.
The petition names leaders like the RJD's Lalu Prasad, who was convicted in the fodder scam cases, and INLD leader O.P. Chautala, who was found guilty in the junior teachers recruitment scam.
“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,” the petition contended.
It also sought to declare Section 29A of the Representation of the People Act of 1951 as “arbitrary, irrational and ultra vires the Constitution and authorise the ECI for registration and deregistration of political parties as suggested by the Goswami Committee on Electoral Reform.” However, the petitioner withdrew this prayer.
The Goswami Committee, in 1990, said Section 29A allowed political organisations to get registered simply by conforming to the provisions of the Constitution. The section, the committee said, effectively took away the power of the ECI to register political parties under the Symbols Order. This had opened the door for “non-serious” candidates from hosting their own political parties.
ECI had proposed amendment to Section 29A
In 2004, the ECI proposed that an amendment should be made to Section 29A, authorising it to issue apt orders regulating registration/deregistration of political parties.
“The proliferation of political parties has become a major concern as Section 29A allows a small group of people to form a political party by making a very simple declaration. Presently, about 20% of registered political parties contest election and remaining 80% parties create excessive load on electoral system and public money,” the petition said.
Registration should be a carefully monitored affair by the ECI as “political parties hold constitutional status and wield constitutional powers under the Tenth Schedule of the Constitution in as much as they have the power to disqualify legislators from Parliament and State Assemblies, bind legislators in their speeches and voting inside the house, decide what laws are made, decide whether Government remains in power and decide public policies that affect lives of millions of people,” it said.