In an affidavit filed in the Supreme Court, the Election Commission of India (EC) has sought powers to deregister a political party, and to be able to issue orders regulating registration and derecognition of political parties.
The Commission’s affidavit in the apex court was filed in response to a public interest litigation (PIL) by Delhi BJP leader and lawyer Ashwini Upadhyay, who has sought a ban on convicted people from forming political parties.
Upadhyay’s plea also seeks directions to the EC to decriminalise politics and ensure inner-party democracy.
The EC contended that at present it only has the power to register a political party. This is laid down in Section 29A of the Representation of People Act. In fact, there is no explicit provision in the Representation of People Act, 1951, for deregistration of a political party registered under Section 29A, the poll panel’s affidavit states.
Backing the demand for decriminalisation, the affidavit outlined that the Commission needs to be given powers for this through amendments in the law. In 2002, the Supreme Court considered the issue of derecognition in the case of Indian National Congress vs Institute of Social Welfare and others case. The court ruled that the EC had no such powers barring three circumstances: where a political party obtained registration by fraud, if it is declared illegal by the Central government, or if a party amends its internal constitution and notifies the EC that it can no longer abide by the Indian Constitution.
The EC submitted that it had been writing to the government since 1998, seeking the power to derecognise political parties, but to no avail. The proposal was first mooted by the EC on July 15, 1998, in a letter by the then Chief Election Commissioner to the Law Minister.
The stand was reiterated in a set of 22 proposals on electoral reforms which the EC sent to the government in July 2004. The Core Committee of Electoral Reforms, constituted by the Ministry of Law and Justice, endorsed this in its ‘Background Paper on Electoral Reforms’ published in December 2010 and suggested that it may be considered, the affidavit pointed out.
In August 2013, the department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in 61st report recommended that the power to derecognise parties for violating Model Code of Conduct be included in the Representation of the People Act, 1951 itself.
The National Commission to Review the Working of the Constitution in its 2002 report called for a separate law, making provision for recognition and derecognition of political parties, according to the affidavit. It said the 255th report of the Law Commission on electoral reforms, published in March 2015, recommended changes to the RP Act to empower the poll panel.
In December 2016, the EC again sent a set of 47 proposals on electoral reforms to the Centre, the affidavit stated. It pleaded, “.it is unequivocally submitted herein that the Election Commission of India should be given powers to deregister a political party and further, should be authorised to issue necessary orders regulating registration and deregistration of political parties, particularly in view of its constitutional mandate.”
The EC also pointed out that in 2016, it had on its own decided to review the cases of “registered unrecognised political parties”, which had not fielded any candidate to the Lok Sabha or state Assembly between 2005 and 2015 and found that some of them were no longer in existence or functioning. The EC thus “delisted or deleted the names of 255 political parties from its list of unrecognised political parties between February 2016 to December 2016”, the affidavit mentioned.
On the demand that the EC do the needful to ensure inner party democracy, the affidavit said the electoral body was in favour of this but it was for the legislature to empower it.