1 IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO 1152 OF 2017 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) IN THE MATTER OF: ASHWINI KUMAR UPADHYAY PETITIONER VERSES UNION OF INDIA & ANOTHER...RESPONDENTS PAPER BOOK [FOR INDEX KINDLY SEE INSIDE] (ADVOCATE FOR PETITIONER: R.D.UPADHYAY)
2 INDEX OF RECORD OF PROCEEDINGS Sr. No. Date of Record of Proceedings Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
3 INDEX S. NO Particulars of the documents Page number of part to which it belongs Remark Part-I (Contents of Paper Book) Part-II (Contents of file alone) (i) (ii) (iii) (iv) (v) 1 Listing Proforma A-A1 A-A1 2 Cover Page of Paper Book A-2 3 Index of Record of Proceedings A-3 4 Defect List A-4 5 Note Sheet NS1 6 Synopsis & List of Dates B-I 7 Writ Petition with Affidavit 1-53 8 Appendix 54-59 9 10 11 12 Annexure P-1: Copy of Goswami Committee Report on Electoral Reform (1990) Annexure P-2: Copy of National Commission to Review the Working of the Constitution (2002) Annexure P-3: Copy of Background Paper on Electoral Reform (2010) Annexure P-4: Copy of the ECI s Proposed Electoral Reform (2016) 60-106 107-157 158-183 184-245 13 F/M 246 14 V/A 247
4 PERFORMA FOR FIRST LISTING Section: PIL The case pertains to (Please tick / check the correct box): Central Act: The Constitution of India Section: Article 324 Central Rule: N/A Rule No: N/A State Act: N/A Section: N/A State Rule: N/A Rule No: N/A Impugned Interim Order: N/A Impugned Final Order / Decree: N/A High Court: N/A Name of Judges: N/A Tribunal / Authority Name : N/A 1. Nature of Matter: Civil 2. (a) Petitioner / Appellant : Ashwini Kumar Upadhyay (b) Email ID: aku.adv@gmail.com, aku.aor@gmail.com (c) Phone No: 08800278866, 09911966667, 3. (a) Respondent: Union of India and another (b) Email ID: N/A (c) Phone No: N/A 4. (a) Main Category: 08 PIL Matters (b) Sub Category: 0810, Matters relating to Election Commission 5. Not to be listed before: N/A
5 6. Similar / Pending matter: WP(C) 699/2016, WP(C) 536/2011 7. Criminal Matters: (a) Whether accused / convicted has surrendered: N/A (b) FIR / Complaint No: N/A (c) Police Station: N/A (d) Sentence Awarded: N/A (e) Sentence Undergone: N/A 8. Land Acquisition Matters: (a) Date of Section 4 Notification: N/A (b) Date of Section 6 Notification: N/A (c) Date of Section 17 Notification 9. Tax Matters: State the Tax Effect: N/A 10. Special Category: N/A 11. Vehicle No in case of motor accident claim matters): N/A 12. Decided Cases with Citation: N/A Date: 18.11.2017 Advocate for Petitioner (R. D. Upadhyay) Advocate-on-Record Registration Code No-0589 rajdeoupadhyay@ymail.com 011-23070343, 9891050515
6 SYNOPSIS Under section 29 of the RPA 1951, a person; who is disqualified for registration in electoral roll under section 16 of RPA 1950, disqualified for contesting election under sections 8, 8A, 9, 9A, 10 or 10A of the RPA 1951, disqualified for voting under section 11A, disqualified for being an election agent under section 41 or forfeits his right to vote under section 62; can form a political party, collect donations under section 29B, get tax exemption under Income Tax Act and even become party president. 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. For instance, Mr. Lalu Yadav, Mr. O.P. Chautala and Mrs. Shashi Kala have been convicted for major scams but still holding highest political post. Similarly, charges have been framed by the Court in serious cases against Mr. Suresh Kalmadi, Mr. Raja, Mr. Jagan Reddy, Mr. Madhu Koda, Mr. Ashok Chavan, Mr. Akabaruddin Owaisi, Mrs. Kanimozhi, Mr. Adhir Ranjan Chaudhary, Mr. Virbhadra Singh, Mr. Mukhtar Ansari, Md. Shahabuddin, Mr. Suraj Bhan Singh, Mr. Anand Mohan Singh, Mr. Mulayam Singh Yadav, Ms. Mayawati and Brijesh Singh etc. but they are still holding political post and wielding political power.
7 Goswami Committee on Electoral Reform (1990) discusses the registration and recognition of political parties as thus: 3.2 After the insertion of new section 29A of the Act for the purpose of making the political organizations seeking registration to conform in form only to the provisions of the Constitution, especially to the preamble thereto, the powers of the Election Commission in regard to registration of political parties under the Symbols Order has been taken away. The Election Commission has to apply the new provisions for the registration of political parties. 3.3 The Committee observed that in view of the provisions of section 29A of the Act and of a very large number of applications from political parties for registration on the eve of the last Lok Sabha elections, the Commission had no option except to register as many as 261 political parties. This has created many practical and administrative problems and difficulties at the time of election. 3.4 All the members of the Committee, except Shri H.K.L. Bhagat, feel that the new provision in section 29A do not serve any purpose. 3.5 It has been brought to the notice of the members of the Committee that the Attorney-General of India whose opinion was sought on the various measures for discouraging non-serious candidates from election contests, has observed that new section 29A has not served any useful purpose. 3.6 After taking into account the above factors, all the members of the Committee, except Shri H.K.L. Bhagat, feel that section 29A should be deleted and the matter of registration of political parties should be left to be decided solely by the Election Commission under the Symbols Order applying the criteria of tangible proof of 1% of the valid votes to be secured by applicant party for registration.
8 In 2002, NCRWC has recommended stringent criteria for recognition of political parties to discourage proliferation. It has recommended that rules/by-laws of parties seeking registration should include provisions: (i) a declaration of adherence to democratic values and norms of the Constitution in the party organizations, (ii) declaration to shun violence for political gains, (iii) declaration not to resort to casteism /communalism for political mobilization and adhere principles of secularism, (iv) a provision for party conventions to nominate and select candidates for political offices at grass root and State levels, (v) code of conduct, which each party should evolve for itself, (vi) institutional mechanism for planning thinking research on crucial socio-economic issues facing the nation. In 2004, the ECI proposed that amendment should be made to Section 29A, authorizing it to issue apt orders regulating registration / de-registration 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. Despite it, Executive has not implemented the Goswami Committee and NCRWC recommendations till date.
9 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 (a) disqualify legislators from Parliament and State Assemblies; (b) bind legislators in their speeches and voting inside the house; (c) decide what laws are made; (d) decide whether Government remains in power (e) decide public policies that affect lives of millions of people. As per Article 102 (2) of the Constitution, a person can be disqualified from being a member of either House of Parliament under the Tenth Schedule and that a similar provision exists for the State Legislators under the Article 191(2). Furthermore, as per Article 102(2), if a member of a House belonging to a Political Party votes or abstains from voting in the House contrary to the directions issued by the Political Party, he is liable to be disqualified from being a Member of the House. Political parties have been given statutory status under Section 29A of the RPA and they are required to bear true faith and allegiance to the Constitution. Political parties give tickets to candidates and people vote on party symbols and, thus, they are important instrumentalities of the democratic governance and function like a Public Authority. Therefore, convicted person must be restricted to form a political party and become political office bearer.
10 Political parties are substantially financed by the State in multiple ways and are exempted from Income Tax. They have been claiming tax exemption under Section 13A of the Income Tax Act. State has been indirectly financing recognized political parties by way of free airtime on All India Radio. In addition, State spends huge amounts on political parties to provide free air time on Doordarshan. Under Rules 11-12 of the Registration of Electors Rules, 1960, two copies of the Electoral Rolls are supplied to the recognized political parties, free of cost. This is another instance of indirect financing to political parties. The Central as well as the State Governments have allotted various plots houses buildings and other types of accommodation to the recognized political parties either free of cost or at very concessional rates. This also amounts to indirect financing to the recognized political parties by the Central and State Governments. The governance is revolved around the political parties. They are continuously engaged in performance of public duty and therefore it is important that they become transparent. De-criminalization and de-communalization of politics is essential in larger public interest as they perform public function and, therefore, convicted person should be debarred to form political party and become political office bearer for lifetime.
11 A group of individuals gets the status of political party on its registration with ECI under the RPA, 1951. ECI awards symbols to political parties under the Election Symbols (Reservation & Allotment) Order, 1968, after registration and calls for details of expenses made by the parties in elections. Contributions of the value of Rs. 20,000/- and above received from any person or company by political parties are required to be intimated to the ECI under Section 29C. Hence, they are public authority. Political parties perform public functions, define parameters of governance & socio-economic development. They must be transparent but their income tax returns reveal that on an average merely 20% of their income comes from donation that they disclose to the ECI and remaining 80% of income are shrouded in mystery. This gives rise to all kinds of speculation about pernicious influence of illegal money which is not good for democracy. ECI has plenary power and authorize to withdraw recognition of parties in certain contingencies but it does not use it power to de-criminalize/de-communalize them. Executive has not implemented Goswami Committee, NCRWC, ECI and Law Commission recommendations to curb corruption crime casteism and communalism, the four menace of our democracy. Therefore, this Hon ble Court should allow the instant petition in public interest.
12 LIST OF DATES 14.12.1966: The Section 41 was amended to disqualify a person being election agent after conviction. 15.03.1989: The Section 8 (1) and 8(2) was amended to disqualify the person from contesting the election after conviction in certain offences. 15.06.1989: The Section 29A was inserted in the RPA to regulate the registration of political parties. 20.05.1990: Goswami Committee on Electoral Reform suggested deletion of Section 29A of RPA. 29.05.1999: The Law Commission in its 170th Report suggested certain measures to regulate the functioning of political parties. 31.03.2002: National Commission to Review Working of the Constitution submitted draft to regulate the functioning of political parties. 11.09.2003: The Section 29B was inserted in the RPA to regulate the donations received by political parties from person or company. 05.07.2004: The ECI submitted its detailed proposals to regulate functioning of political parties. 08.12.2010: Background Paper on Electoral Reforms, prepared by Core-Committee on Electoral Reforms, Ministry of Law endorsed the ECI and Law Commission proposals.
13 24.02.2014: Law Commission submitted its 244 th report but Executive did nothing to implement it. 12.03.2015: Law Commission submitted its 255 th report but Executive did nothing to implement it. 05.12.2016: Electoral Commission submitted Proposed Electoral Reform to the Central Governmnet 06.11.2017: Political Parties hold constitutional status and wield constitutional powers under the Tenth Schedule in as much as they have the power to (a) disqualify legislators from Parliament and State Assemblies; (b) bind legislators in their speeches and voting inside the house; (c) decide what laws are made; (d) decide whether Government remains in power or which Government should come to power; (e) decide public policies that affect lives of millions of people. Political parties perform public functions, define parameters of governance & socio-economic development. Executive has not implemented the recommendations of Goswami Committee, NCRWC and Law Commission to de-criminalize and decommunalize the politics. Hence, this writ petition in larger public interest.
14 IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO 1152 OF 2017 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) IN THE MATTER OF: Ashwini Kumar Upadhyay S/o Sh. Suresh Chandra Upadhyay Office: 15, M.C. Setalvad Chambers Block Supreme Court of India, New Delhi-110001 Residence: G-284, Govindpuram, Ghaziabad...Petitioner Verses 1. Union of India Through the Secretary, Ministry of Law and Justice, Shashtri Bhawan, New Delhi-110001 2. Election Commission of India Through the Chief Election Commissioner, Niravachan Sadan, New Delhi-110001 Respondents PETITION UNDER ARTICLE 32 OF THE CONSTITUTION TO BAN THE CONVICTED PERSON FROM FORMING A POLITICAL PARTY AND BECOMING A POLITICAL OFFICE BEARER, FOR THE PERIOD, HE IS DISQUALIFIED UNDER SECTIONS 8, 8A, 9, 9A, 10, 10A, 11A, 41 AND 62 OF THE REPRESENTATION OF THE PEOPLE ACT,1951. To, THE HON BLE CHIEF JUSTICE & LORDSHIP S COMPANION JUSTICES OF HON BLE SUPREME COURT OF INDIA HUMBLE PETITION OF ABOVE-NAMED PETITIONER THE MOST RESPECTFULLY SHOWETH AS UNDER: 1. That petitioner is filing this PIL under Article 32 to ban the person from forming political party and becoming political office bearer, for the period, he/she is disqualified under sections 8, 8A, 9, 9A, 10, 10A, 11A, 41 and 62 of the RPA. 2. That petitioner has not filed any other petition either in this Hon ble Court or in any other High Court seeking same and similar directions as prayed in this petition.
15 3. That petitioner s full name is Ashwini Kumar Upadhyay. Residential address is G-284, Govindpuram, Ghaziabad, Ph:8800278866, aku.adv@gmail.com, PAN: AAVPU7330G, ADHAR-659982174779. Income is 2 LPA. Petitioner is an Advocate & social-political activist, contributing his best to development of socially-economically downtrodden people. 4. That the facts constituting cause of action accrued on 15.08.2014 and subsequent days, when the Hon ble Prime Minister assured the nation that government will take steps to de-criminalize and de-communalize the polity but the government did nothing in this regard till date. 5. That the injury caused to public because many corrupt, criminal and convicted persons have formed political party and threatens the fundamental right guaranteed under the Article 19 by using money and muscle power. 6. That petitioner has no personal interests, individual gain, private motive or oblique reasons in filing this PIL. It is not guided for gain of any other individual person, institution or body. There is no motive other than the public interest. 7. There is no civil, criminal or revenue litigation, involving petitioner, which has or could have legal nexus, with the issue involved in this petition. It is totally bona-fide. 8. There is no requirement to move concerned government authority for relief sought in this PIL. There is no other remedy available except approaching this Hon ble Court.
16 9. Under section 29 of the RPA 1951, a person; who is disqualified for registration in electoral roll under section 16 of RPA 1950, disqualified for contesting election under sections 8, 8A, 9, 9A, 10 or 10A of the RPA 1951, disqualified for voting under section 11A, disqualified for being an election agent under section 41 or forfeits his right to vote under section 62; can form a political party, collect donations under section 29B, get tax exemption under Income Tax Act and even become party president. 10. 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. For instance, Mr. Lalu Yadav, Mr. O.P. Chautala and Mrs. Shashi Kala have been convicted for major scams but still holding highest political post. Similarly, charges have been framed by the Court in serious cases against Mr. Suresh Kalmadi, Mr. Raja, Mr. Jagan Reddy, Mr. Madhu Koda, Mr. Ashok Chavan, Mr. Akabaruddin Owaisi, Mrs. Kanimozhi, Mr. Adhir Ranjan Chaudhary, Mr. Virbhadra Singh, Mr. Mukhtar Ansari, Md. Shahabuddin, Mr. Suraj Bhan Singh, Mr. Anand Mohan Singh, Mr. Mulayam Singh Yadav, Ms. Mayawati and Brijesh Singh etc. but they are still holding political post and wielding political power.
17 11. The Goswami Committee on Electoral Reform (1990) discusses registration/recognition of political parties thus: 3.2 After the insertion of new section 29A of the Act for the purpose of making the political organizations seeking registration to conform in form only to the provisions of the Constitution, especially to the preamble thereto, the powers of the Election Commission in regard to registration of political parties under the Symbols Order has been taken away. The Election Commission has to apply the new provisions for the registration of political parties. 3.3 The Committee observed that in view of the provisions of section 29A of the Act and of a very large number of applications from political parties for registration on the eve of the last Lok Sabha elections, the Commission had no option except to register as many as 261 political parties. This has created many practical and administrative problems and difficulties at the time of election. 3.4 All the members of the Committee, except Shri H.K.L. Bhagat, feel that the new provision in section 29A do not serve any purpose. 3.5 It has been brought to the notice of the members of the Committee that the Attorney-General of India whose opinion was sought on the various measures for discouraging non-serious candidates from election contests, has observed that new section 29A has not served any useful purpose. 3.6 After taking into account the above factors, all the members of the Committee, except Shri H.K.L. Bhagat, feel that section 29A should be deleted and the matter of registration of political parties should be left to be decided solely by the Election Commission under the Symbols Order applying the criteria of tangible proof of 1% of the valid votes to be secured by applicant party for registration.
18 12. In 2002, NCRWC has recommended stringent criteria for recognition of parties to discourage proliferation. It has recommended that rules/by-laws of parties seeking registration should include provisions: (i) a declaration of adherence to democratic values and norms of the Constitution in the party organizations, (ii) declaration to shun violence for political gains, (iii) declaration not to resort to casteism /communalism for political mobilization and adhere principles of secularism, (iv) a provision for party conventions to nominate and select candidates for political offices at grass root and State levels, (v) code of conduct, which each party should evolve for itself, (vi) institutional mechanism for planning thinking research on crucial socio-economic issues facing the nation. 13. In 2004, the ECI proposed that amendment should be made to Section 29A, authorizing it to issue apt orders regulating registration / de-registration of political parties. 14. 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. Despite it, Executive has not implemented the Goswami Committee and NCRWC recommendations till date.
19 15. 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 (a) disqualify legislators from Parliament and State Assemblies; (b) bind legislators in their speeches and voting inside the house; (c) decide what laws are made; (d) decide whether Government remains in power (e) decide public policies that affect lives of millions of people. 16. As per Article 102 (2) of the Constitution, a person can be disqualified from being a member of either House of Parliament under the Tenth Schedule and that a similar provision exists for the State Legislators under the Article 191(2). Furthermore, as per Article 102(2), if a member of a House belonging to a Political Party votes or abstains from voting in the House contrary to the directions issued by the Political Party, he is liable to be disqualified from being a Member of the House. 17. Political parties have been given statutory status under Section 29A of the RPA and they are required to bear true faith and allegiance to the Constitution. Political parties give tickets to candidates and people vote on party symbols and, thus, they are important instrumentalities of the democratic governance and function like a Public Authority. Therefore, convicted person must be restricted to form a political party and become political office bearer.
20 18. Political parties are substantially financed by the State in multiple ways and are exempted from Income Tax. They have been claiming tax exemption under Section 13A of the Income Tax Act. State has been indirectly financing recognized political parties by way of free airtime on All India Radio. In addition, State spends huge amounts on political parties to provide free air time on Doordarshan. 19. Under Rules 11 and 12 of the Registration of Electors Rules, 1960, two copies of the Electoral Rolls are supplied to the recognized political parties, free of cost. This is another instance of indirect financing to political parties. 20. The Central as well as the State Governments have allotted various plots houses buildings and other types of accommodation to the recognized political parties either free of cost or at very concessional rates. This also amounts to indirect financing to the recognized political parties by the Central and State Governments. 21. The governance is revolved around the political parties. They are continuously engaged in performance of public duty and therefore it is important that they become transparent. De-criminalization and de-communalization of politics is essential in larger public interest as they perform public function and, therefore, convicted person should be debarred to form political party and become political office bearer for lifetime.
21 22. A group of individuals gets the status of political party on its registration with ECI under the RPA, 1951. ECI awards symbols to political parties under the Election Symbols (Reservation & Allotment) Order, 1968, after registration and calls for details of expenses made by the parties in elections. Contributions of the value of Rs. 20,000/- and above received from any person or company by political parties are required to be intimated to the ECI under Section 29C. Hence, they are public authority. 23. Political parties perform public functions, define parameters of governance & socio-economic development. They must be transparent but their income tax returns reveal that on an average merely 20% of their income comes from donation that they disclose to the ECI and remaining 80% of income are shrouded in mystery. This gives rise to all kinds of speculation about pernicious influence of illegal money which is not good for democracy. 24. ECI has plenary power and authorize to withdraw recognition of parties in certain contingencies but it does not use it power to de-criminalize/de-communalize them. 25. The Executive is unwilling to implement the NCRWC, Election Commission &Law Commission recommendations and curtail corruption crime casteism and communalism, the four menace of our democracy. Therefore, this Hon ble Court should allow the instant petition in public interest.
22 26. That Section 16 of the RPA, 1950, reads as under: 16. Disqualifications for registration in an electoral roll. (1) A person shall be disqualified for registration in an electoral roll if he (a) is not a citizen of India; or (b) is of unsound mind and stands so declared by a competent court; or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offenses in connection with elections. (2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included: [Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub-section (1) shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal.] 27. That Section 8 of the RPA, 1951, reads as under: 8. Disqualification on conviction for certain offences. [(1) A person convicted of an offence punishable under (a) section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171F (offence of undue influence or personation at an election) or sub-section (1) or sub-
23 section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or sub-section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860); or (b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for the preaching and practice of untouchability, and for the enforcement of any disability arising therefrom; or (c) section 11 (offence of importing or exporting prohibited goods) of Customs Act, 1962 (52 of 1962); or (d) sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities Act, 1967 (37 of 1967); or (e) the Foreign Exchange Act, 1973 (46 of 1973); or (f) Narcotic Drugs &Psychotropic Substances Act, 1985; or (g) section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the
24 Terrorist and Disruptive Activities Act, 1987; or (h) section 7 (offence of contravention of the provisions of sections 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or (i) section 125 (offence of promoting enmity between classes in connection with election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (booth capturing) or clause (a) of sub-section (2) of section 136 (offence of fraudulently defacing or destroying any nomination paper) of this Act; or (j) section 6 (offence of conversion of a place of worship) of the Places of Worship Act, 1991, or (k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971); or (l) the Commission of Sati (Prevention) Act, 1987; or (m) the Prevention of Corruption Act, 1988 (49 of 1988); or (n) the Prevention of Terrorism Act, 2002 (15 of 2002), shall be disqualified, where the convicted person is sentenced to (i) only fine, for a period of six years from date of such conviction; (ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.] (2) A person convicted for the contravention of
25 (a) any law providing for the prevention of hoarding or profiteering; or (b) any law relating to the adulteration of food or drugs; or (c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961)], and sentenced to imprisonment for not less than six months, shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. (3) A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.] 28. That Section 8A of the RPA, 1951, reads as under: 8A. Disqualification on ground of corrupt practices. (1) The case of every person found guilty of a corrupt practice by an order under section 99 shall be submitted, as soon as may be, after such order takes effect, by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period: Provided that the period for which any person may be disqualified under this sub-section shall in
26 no case exceed six years from the date on which the order made in relation to him under section 99 takes effect. (2) Any person who stands disqualified under section 8A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975, may, if the period of such disqualification has not expired, submit a petition to the President for the removal of such disqualification for unexpired portion of the said period. (3) Before giving his decision on any question mentioned in sub-section (1) or on any petition submitted under subsection (2), the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion.] 29. That Section 9 of the RPA, 1951 reads as under: 9. Disqualification for dismissal for corruption or disloyalty. (1) A person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal. (2) For the purposes of sub-section (1), a certificate issued by the Election Commission to the effect that a person having held office under the Government of India or under the Government of a State, has or has not been dismissed for corruption or for disloyalty to State shall be conclusive proof of that fact:
27 Provided that no certificate to the effect that a person has been dismissed for corruption or for disloyalty to the State shall be issued unless an opportunity of being heard has been given to the said person. 30. That Section 9A of the RPA, 1951, reads as under: 9A. Disqualification for Government contracts, etc. A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government. Explanation. For the purposes of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part. 31. That Section 10 of the RPA, 1951 reads as under: 10. Disqualification for office under Government company. A person shall be disqualified if, and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than twenty-five percent share.
28 32. That Section 10A of the RPA, 1951 reads as under: 10A. Disqualification for failure to lodge account of election expenses. If the Election Commission is satisfied that a person (a) has failed to lodge an account of election expenses, within the time and in the manner required by or under this Act, and (b) has no good reason or justification for the failure, the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from date of order. 33. That Section 11A of the RPA, 1951 reads as under: 11A. Disqualification arising out of conviction and corrupt practices. (1) If any person, after the commencement of this Act, is convicted of an offence punishable under section 171E or section 171F of the Indian Penal Code (45 of 1860), or under section 125 or section 135 or clause (a) of sub-section (2) of section 136 of this Act, he shall, for a period of six years from the date of the conviction or from the date on which the order takes effect, be disqualified for voting at any election. (2) Any person disqualified by a decision of the President under sub-section (1) of section 8A for any period shall be disqualified for same period for voting at any election. (3) The decision of the President on a petition submitted by any person under sub-section (2) of section 8A in
29 respect of any disqualification for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State shall, so far as may be, apply in respect of the disqualification for voting at any election incurred by him under clause (b) of sub-section (1) of section 11A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), as if such decision were a decision in respect of the said disqualification for voting also. 34. That Section 41 of the RPA, 1951, reads as under: 41. Disqualification for being an election agent. Any person who is for the time being disqualified under the Constitution or under this Act for being a member of either House of Parliament or the House or either House of the Legislature of a State or for voting at elections, shall, so long as the disqualification subsists, also be disqualified for being an election agent at any election. 35. That Section 62 in the RPA, 1951, reads as under: 62. Right to vote. (1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency. (2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in
30 section 16 of the Representation of the People Act, 1950. (3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void. (4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for the constituency more than once, and if he does so vote, all his votes in that constituency shall be void. (5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police: Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force. (6) Nothing contained in sub-sections (3) and (4) shall apply to a person who has been authorised to vote as proxy for an elector under this Act in so far as he votes as a proxy for such elector. 36. That Section 29A of the RPA, 1951, reads as under: 29A. Registration with the Election Commission of associations and bodies as political parties. (1) Any association or body of individual citizens of India calling itself a political party and intending to avail itself of the
31 provisions of this Part shall make an application to the Election Commission for its registration as a political party for the purposes of this Act. (2) Every such application shall be made, (a) if the association or body is in existence at the commencement of the Representation of the People (Amendment) Act, 1988 (1 of 1989), within sixty days next following such commencement; (b) if the association or body is formed after such commencement, within thirty days next following the date of its formation. (3) Every application under sub-section (1) shall be signed by the chief executive officer of the association or body (whether such chief executive officer is known as Secretary or by any other designation) and presented to the Secretary to the Commission or sent to such Secretary by registered post. (4) Every such application shall contain the following particulars, namely: (a) the name of the association or body; (b) the State in which its head office is situate; (c) the address to which letters and other communications meant for it should be sent; (d) the names of its president, secretary, treasurer and other office-bearers; (e) the numerical strength of its members, and if there are categories of its members, the numerical strength in each category; (f) whether it has any local units; if so, at what
32 levels; (g) whether it is represented by any member or members in either House of Parliament or of any State Legislature; if so, number of such member or members. (5) The application under sub-section (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India. (6) The Commission may call for such other particulars as it may deem fit from the association or body. (7) After considering all the particulars as aforesaid in its possession and any other necessary and relevant factors and after giving the representatives of the association or body reasonable opportunity of being heard, the Commission shall decide either to register the association or body as a political party for the purposes of this Part, or not so to register it; and the Commission shall communicate its decision to the association or body: Provided that no association or body shall be registered as a political party under this sub-section unless the memorandum or rules and regulations of such association
33 or body conform to the provisions of sub-section (5). (8) The decision of the Commission shall be final. (9) After an association or body has been registered as a political party as aforesaid, any change in its name, head office, office-bearers, address or in any other material matters shall be communicated to the Commission without delay. 37. That Section 29B of the RPA, 1951, reads as under: 29B. Political parties entitled to accept contribution. Subject to the provisions of the Companies Act, 1956 (1 of 1956), every political party may accept any amount of contribution voluntarily offered to it by any person or company other than a Government company: Provided that no political party shall be eligible to accept any contribution from any foreign source defined under clause (e) of section 2 of the Foreign Contribution (Regulation) Act, 1976 (49 of 1976). Explanation. For the purposes of this section and section 29C, (a) company means a company as defined in section 3; (b) Government company means a company within the meaning of section 617; and (c) contribution has the meaning assigned to it under section 293A, of the Companies Act, 1956 (1 of 1956) and includes any donation or subscription offered by any person to a political party; and (d) person has the meaning assigned
34 to it under clause (31) of section 2 of the Income-tax Act, 1961 (43 of 1961), but does not include Government company, local authority and every artificial juridical person wholly or partially funded by the Government.] 38. On 09.08.2015, the Election Commission informed the Central Government that 56 out of total 1866 political parties are recognized as registered national and state parties and rest 1810 are unrecognized registered parties. The Commission also informed that during 2014 General Election, only 464 political parties had fielded candidates. Petitioner also knows few registered political parties who never contest election. They are formed to avail the benefit of income tax exemption. Such shell political parties exist only on paper. They may be involved in money laundering. 39. Section 29A (6) states that the Commission may call for such other particulars as it may deem fit from the association or body. Sub-Section (7) empowers the ECI to consider necessary and relevant factors before registering any association or body as a political party. Sub-Section (9) provides that any change in name, head office, officebearers, address or any other material matters shall be communicated to the ECI without delay. Therefore, it is duty of the ECI to de-register shell political parties and debar the convicted person from forming political party and becoming office bearer of registered political party.
35 40. Tenth Schedule of Constitution vests great powers with the Political Parties in as much as they can oust even an elected member whether Member of Parliament or Legislature of State Assembly - from the Party if he steps out of party line. As per Section 29C of the RPA, donations received by Political Parties are required to be reported to the Election Commission. This obligation cast on Political Parties also points towards their public character. Hence this Hon ble should issue a mandamus to ban the person from forming the political party and becoming the office bearer of any registered political party for lifetime, who has been convicted for any offence mentioned in Sections 8, 8A, 9, 9A, 10, 10A and 11A of the RPA, 1951. 41. That the ECI is an instrumentality of the State. By virtue of the powers conferred on it under the Article 324 and Section 29A of the RPA read with Rules 5 & 10 of the Conduct of Election Rules, 1961, and other powers vested in it, the Commission promulgated the Election Symbols (Reservation and Allotment) Order, 1968. Under this Order, the Commission allots symbols to various Political Parties. Allotment of election symbols by the Election Commission to Political Parties is suggestive of the public character of political parties. Moreover, political parties get tax exemptions, which amounts to indirect financing of the political parties in terms of Section 2(h) of the RTI Act.
36 42. The Central and State Governments have allotted land buildings & other accommodations in prime locations to political parties all over the country either, free of cost, or on concessional rates. This also amounts to indirect financing of the political parties. Doordarshan allots free airtime to political parties during the elections. This is another instance of indirect financing of political parties. As the political parties are the life-blood of the entire constitutional scheme in a democratic polity and as they are directly and indirectly financed by the Central and State Governments in various ways, as discussed hereinabove, the convicted person should be restricted to form political party and become political office bearer. 43. That Section 80 GGB of the Income Tax Act, which provides that contribution made by an individual, or Company to a Political Party is deductible from the total income of the assesee. This provision is exclusively applicable to the political parties and is suggestive of indirect financing to the political parties by the State. 44. That political parties have a binding nexus with the populace. As a central institution of the Indian democracy, political parties embody the will of the people, carry all their expectations that democracy will be truly responsive to their needs and help and solve the most pressing problems that confront them in the daily lives.
37 45. That in addition to exemption on income under Section 139 of the Income Tax Act, political parties have been provided facilities for residential and official use by Directorate of Estates, Government of India, in New Delhi. They have been given offices/residential accommodations at prime locations in Delhi such as Akbar Road, Ashoka Road, Chanakyapuri. The rentals charged are a fraction of the market rent. These facilities are not just provided to them at nominal rates but their maintenance, upgradation modernization, renovation, etc. are also done at State expense. Similar facilities are provided at various State Capitals, details of which are extremely difficult to obtain. 46. That the ECI spends money for providing facilities to political parties such as free electoral rolls, and also provide free broadcast facilities to the political parties at Doordarshan and All India Radio, which results in loss of revenue in terms of air time. If closely monitored and totalled, the full amount of public funds spent on Political Parties, would possibly amount to thousands of crores. 47. That the Central Information Commission, various State Information Commissions and the High Courts have held that allotment of land/building on subsidized rates and exemption from various taxes including income tax amount to indirect financing in terms of Section 2(h)(d)(ii) of the RTI Act 2005.
38 48. That a body or entity does not become a political party in the legal sense until the ECI under Section 29A of the RPA registers it. Therefore, this registration lends it the colour of Public Authority. In addition, political parties have constitutional and statutory status. Incorporation of the Articles 102(2) and 191(2) through 42nd Amendment and the 10th Schedule to the Constitution has given constitutional status to political parties. However, neither there is any law to regulate them nor Executive is willing to implement Law Commission recommendations. Hence, a convicted person is eligible to become party president. 49. The ECI under the Elections Symbols (Reservation & Allotment) Order 1968, promulgated under the Article 324 and Rules 5 and 10 of the Conduct of Election Rules 1961, grants symbols to the political parties to recognize them for election purposes and can suspend or withdraw recognition of the political parties on their failure to observe Model Code of Conduct or the lawful directions and instructions of the ECI. It is also indicative of the Public Character of the political parties. 50. This Hon ble Court in Common Cause vs. UOI (AIR 1996 SC 3081) dealt with income/expenditure incurred by political parties and laid emphasis on transparency on election funding and empowered the election commission to take steps to promote transparency and accountability.
39 51. On 29.04.2008, the Central Information Commission in File No-CIC/AT/A/2007/01029 has highlighted the transparency in functioning of political parties as thus: 28. Political Parties are a unique institution of the modern constitutional State. These are essentially civil society institutions and are, therefore, nongovernmental. Their uniqueness lies in the fact that in spite of being nongovernmental, Political Parties come to wield or directly or indirectly influence, exercise of governmental power. It is this link between State power and Political Parties that has assumed critical significance in the context of the Right of Information an Act which has brought into focus the imperatives of transparency in the functioning of State institutions. It would be facetious to argue that transparency is good for all State organs, but not so good for the Political Parties, which control the most important of those organs. For example, it will be a fallacy to hold that transparency is good for the bureaucracy but not good enough for the Political Parties which control those bureaucracies through political executives. The Commission has further observed: 38. The laws of the land do not make it mandatory for Political Parties to disclose the sources of their funding, and even less so the manner of expending those funds. In the absence of such laws, the only way a citizen
40 can gain access to the details of funding of Political Parties is through their Income Tax Returns filed annually with Income Tax authorities. This is about the closest the Political Parties get to accounting for the sources and the extent of their funding and their expenditure. There is unmistakable public interest in knowing these funding details which would enable the citizen to make an informed choice about the Political Parties to vote for. The RTI Act emphasizes that democracy requires an informed citizenry, and that transparency of information is vital to flawless functioning of constitutional democracy. It is nobody s case that while all organs of State must exhibit maximum transparency, no such obligation attaches to Political Parties. Given that Political Parties influence the exercise of political power, transparency in their organization, functions and, more particularly, their means of funding is a democratic imperative and therefore is in public interest. 52. On 07.01.2010, in Indian Olympic Association versus Veeresh Malik [WP(C) No. 876/2007] the Delhi High Court has held that Indian Olympic Association is a Public Authority under Section 2(h) of the RTI Act. The relevant paragraph is as thus:- Having regard to the pre-eminent position enjoyed by the IOA, as the sole representative of the IOC, as the regulator for affiliating national bodies in