How can Convicts Barred From Contesting Elections Head Political Parties, Decide Candidates, Asks SC

New Delhi: The Supreme Court on Monday wondered as to how convicted persons, who are barred from electoral politics, can decide candidates in polls and ensure maintenance of probity in public life.

The apex court, which was hearing a PIL seeking that convicted persons be restrained from forming and holding posts in political parties for the period they are disqualified under the election law, posted the matter to May 3 for final disposal.

"Here is a person who is convicted and disqualified from contesting an election. How can he decide the candidates for election? How the purity of democracy can be maintained," the bench headed by Chief Justice Dipak Misra asked.

The bench, also comprising justices A M Khanwilkar and D Y Chandrachud, on a lighter note said the convicted persons can form an "association of convicted persons".

"They cannot contest election because they are constitutionally debarred. Can they hold the party post and can they form a political party. Of course they can form an association of convicted persons, but can they form a political party?" the court said.

The bench, asked both the parties to submit their written notes on May 3.

Additional Solicitor General Pinky Anand, appearing for the Centre, referred to the affidavit and said that no person can be barred from creating a party and holding posts in such an organisation.

The bench was hearing a PIL filed by lawyer and BJP leader Ashwini K Upadhyay seeking that convicted people be restrained from forming political parties and becoming office-bearers during the period they are disqualified.

Senior advocate Vikas Singh, appearing for Upadhyay, said 40 per cent of the legislators are either convicted or facing trial. "40 per cent of legislators are either convicted or facing trial. That is why there is resistance. They do not want probity," he said.

The top court had on December 1 last year sought the response of the Centre and the Election Commission on the PIL and agreed to examine the constitutional validity of section 29A of the Representation of the People Act (RPA), 1951 (RPA), which deals with the power of the poll panel to register a political party.

The plea said convicted politicians, who are barred from contesting elections, can still run political parties and hold posts, besides deciding as to who will become a lawmaker. It has sought a direction to declare section 29A of the RPA as "arbitrary, irrational and ultra-vires" to the Constitution and to authorise the poll panel to register and de-register political parties.

The petitioner has also sought a direction to the Election Commission to frame guidelines to decriminalise the electoral system and ensure inner party democracy, as proposed by the National Commission to Review the Working of the Constitution (NCRWC).

The petition said currently, even a person who has been convicted of heinous crimes like murder, rape, smuggling, money laundering, loot, sedition, or dacoity, can form a political party and become its president or office bearer.

The petition named several top political leaders who have been convicted or have charges framed against them and are holding top political posts and "wielding political power". It said the proliferation of political parties has become a major concern as Section 29A of the RP Act allows a small group of people to form a political party by making a very simple declaration.

Presently, about 20 per cent of registered political parties contest election and remaining 80 per cent parties create excessive load on electoral system and public money," the plea said.

The plea also claimed that in 2004, the poll panel had proposed amendment to Section 29A, authorising it to issue apt orders regulating the registration or de-registration of political parties.