This article is written by Akshita Gupta, pursuing BBA LLB from Symbiosis Law School Noida. This article discusses why the election commission does not possess the power to de-register a political party.
In India, the Election Commission currently only has the power to register parties, not to de-register them. Furthermore, the Representation of the People Act, 1951 makes no express provision for a political party’s de-registration. There have been different instances where the Election Commission has made recommendations to the Government to make laws for the power to deregister a political party. Also, the Madras High Court has asked the Central Government to make laws as soon as possible on the same. The need to grant the Election Commission of India the power to deregister a political party is to make sure the political parties do not violate the Indian Constitution. It is not mandatory for a political party to register itself with the Election Commission of India, but to use the provisions of Part IV-A of the Representation of the People Act, 1951 related to the registration of political parties, they must register themselves. This article tends to discuss the reasons why the power of deregistration has not been granted to ECI till now.
Parliament’s decision to not allow political parties to be de-registered
Time and again, the concern emerges as to why the Parliament decided to leave out procedures for de-registration of political parties when it made registration rules. According to the Supreme Court of India, in the case of Indian National Congress (I) v. Institute of Social Welfare and Others (2002), the Parliament might have purposefully omitted to give the Election Commission of India the power to de-register a political party, possibly because the Election Commission of India operates independently and ensures free and fair elections under the Indian Constitution.
It was from 1998 that ECI made recommendations to the Government to modify the legislation and give it the right to deregister political parties, and in 2004, it sent proposals for electoral reforms to the Centre. The law, however, was never amended to include the power of ECI to de-register a political party. The Election Commission came closest to changing the law in 1994 when the Representation of the People (Second Amendment) Bill was introduced in Parliament. However, since this bill was not passed, it could not become an act.
The Representation of the People (Second Amendment) Bill suggested introducing Section 29-B, which allows a complaint to be filed with the High Court within whose jurisdiction a political party’s main office was based, for the cancellation of the party’s registration because it bears a religious name, or that its memorandum or rules and regulations do not comply with the Section 29-A(5), or that its activities are not in compliance with their memorandum or rules and regulations. However, when the Lok Sabha was dissolved in 1996, this bill lapsed.
In 2016, the then Chief Election Commissioner, Dr Nasim Zaidi, proposed 47 Electoral Reforms, including decriminalizing politics, preventing money laundering, increasing transparency in political party funding, making bribery a criminal offence, criminalizing paid news, and empowering the ECI to countermand elections in cases of bribery and misuse, on the lines of countermanding in event of booth capturing. He stated that a task force in the Law Ministry is reviewing the ECI and Law Commission recommendations and that the outcome is keenly awaited. He also proposed the de-registration of political parties as one of his reforms.
In the year 2017, Madras High Court asked the Central Government to make a decision as early as possible for the recommendation made by the ECI in the year 1998, about providing the ECI with the power to deregister any political party that violates the Indian Constitution.
When the bench disposed of the public interest litigation (PIL), they made an observation that ECI should have powers to initiate appropriate actions against the registered parties if their leaders make defamatory speeches against any caste, sex, or race.
Relevant case laws
Indian National Congress (I) v. Institute of Social Welfare (2002)
It was argued in the case, filed before the Kerala High Court that, despite the Supreme Court’s declaration that calling a bundh is unlawful, that political parties in Kerala continued to call bundhs under the guise of hartal, according to the writ petitions filed before the Kerala High Court. It was requested that a directive be given to the Kerala government to take adequate measures to give effect to the Supreme Court’s declaration of law in the matter of the Communist Party of India. The High Court issued orders from time to time, and the Chief Secretary and Director General of Police issued relevant orders in response, but such orders were ineffective, and political parties continued to call for bundhs in the name of hartals. It was also claimed that some of the writ petitioners sent representations to the Election Commission of India, requesting that the registered political parties be de-registered since they had violated the Constitution’s provisions. However, the Election Commission took no action in this regard.
The issue addressed, in this case, was whether the Election Commission of India, under Section 29-A of the Representation of the People Act, 1951, has the authority to de-register or cancel a political party’s registration because it has called for a hartal through force, intimidation, or coercion, thereby violating the provisions of the Indian Constitution.
The Court held that there is no express provision in the law that allows the Election Commission to deregister a political party for violating the Indian Constitution, except in rare circumstances that are as follows:
- Firstly, when a political party becomes registered by defrauding the Commission. Fraud voids any act or order issued by any quasi-judicial authority, even if it lacks the capacity for review. The impact of fraud would typically be to nullify all acts and orders, according to Smith vs East Ellis Rural District Council (1956). In Indian Bank vs Satyam Fibres (India) Pvt Ltd (1996), it was held that the power to cancel or recall an order acquired by forgery or fraud extends not only to courts of law but even to statutory tribunals that lack review authority. Thus, if the ECI discovers fraud or forgery by a political party while seeking registration, the Commission has the authority to de-register such political party.
- Secondly, when a political party modifies its terminology of association, rules, and regulations, abrogating the provisions therein under Section 29A(5), or notifies the Commission that it has lost faith and allegiance to the Indian Constitution or the principles of socialism, secularism, and democracy, or that it will not uphold the sovereignty, unity, and integrity of the country. The exact substratum on which the party earned registration is knocked off in this situation, and the Commission, in its supplementary power, can annul the registration of a political party.
- Lastly, when the Central Government declares a registered political party illegal under the terms of the Unlawful Activities (Prevention) Act, 1967, or a comparable law. In such cases, the Commission’s power to cancel a political party’s registration is justified by the well-established legal principle that when a statutory authority is given power, all incidental and ancillary powers necessary to carry out that power are included in the power, even if they are not expressly granted.
Pravasi Bhalai Sangathan v. Union of India (2014)
In the year 2014, in this case, the Supreme Court of India requested the Law Commission of India to examine whether the ECI should be granted the power to deregister a political party. Let us discuss the case in detail.
a writ petition was filed under Article 32 of the Indian Constitution before the Supreme Court of India to curb the threat which was being caused by the hate speeches made by the leaders of the political parties, based on the religions, races, castes, sexes and birthplaces of individuals. The relevance of this case was to issue guidelines related to curbing hate speech by the political party.
The petitioner’s counsel argued that the law in place is insufficient to cope with the threat of hate speech. The petitioner’s request for redress is consistent with the Constitution’s provisions. Religious leaders, political leaders, and elected representatives violated Articles 14, 15, 19, and 21 of the Constitution by making hate speeches based on caste, religion, or ethnicity, which were also in violation of fundamental duties mentioned under Article 51A. The Court should not keep silent in the face of such circumstances, it was contended. It should use Article 142 because the current legal framework is insufficient to combat the threat of hate speech.
It was submitted by the counsel of the respondent that there are various provisions under which the aggrieved party could seek remedy for the issues involved. In this case, the issue was the law’s implementation and enforcement. It was said that the current court had framed several recommendations and that the matter had been forwarded to the Law Commission of India for analysis of relevant legislation. It was recommended that because there is a gap in the law, the Court should not operate as a legislature, but rather submit recommendations to the Law Commission.
There are various statutes and provisions related to curbing the menace of hate speech, specifically the Indian Penal Code (1860). The main issue is the lack of effective execution. Every citizen has to follow the statutes to make them effective. Further, the Court was of the opinion that they should not issue the guidelines which are not capable of execution, since the Court must not pass any orders that are judicially unmanageable. The Supreme Court of India held that the copy of the judgment has been provided to the Law Commission of India for further study and thereby the writ petition was disposed of.
The recommendations of the Law Commission are still pending before the Parliament, which means the ECI does not possess the power to deregister a political party under normal circumstances. This has led to the lack of control over the political parties that are involved in money-making and deriving benefits from taxes paid by the common people. The legislation on this grey area is the need of the hour for a country like India.
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