EC must have power to derecognise parties, says freebies case plea in SC

The Election Commission (EC) must have the power to deregister a political party in case of a violation of the mandatory conditions for registration and for breach of laws, the Supreme Court was told by a petitioner on Monday.

Fresh written submissions, seeking more punitive powers to the poll panel, have been filed by petitioner and advocate Ashwini Upadhyay ahead of a crucial hearing on his plea on Tuesday.

A three-judge bench, headed by Chief Justice D Y Chandrachud, is hearing pleas, including the one filed by Upadhyay, alleging that the pre-election promise of freebies by political parties is a corrupt practice and amounts to a "bribe" under the Representation of the People Act. The pleas have also said the EC should be empowered to effectively deal with this practice.

The written submissions, filed through senior advocate Vijay Hansaria and advocate Ashwani Kumar Dubey, said, "The Election Commission of India shall be entitled to deregister a political party on failure to satisfy the aforesaid mandatory conditions and/or such other conditions that the Election Commission may prescribe after complying with the principles of natural justice."

"The Election Commission may be directed to frame guidelines for continuance of the registration of the political parties," the submissions said and listed out the mandatory conditions, violations of which should follow punitive action from the poll panel.

"The political party (registered unrecognised political parties) has set up candidates in a minimum of 5 per cent of the seats the succeeding two general elections of the state legislative assembly and/or two seats in the Lok Sabha held after the registration of the political party, and has obtained a minimum of 5 per cent of the votes polled in the seats contested by it," one of the proposed conditions read.

"The political party has filed its annual audit accounts as required under the Transparency Guidelines dated 29.08.2014 issued by the Election Commission of India within the prescribed time," it said.

The political parties shall submit a certificate every year, certifying its existence at the notified addresses and the total number of its registered members as on December 31 prior to the year of the filing of the certificate, it said.

Presently, there are eight recognised national political parties and 56 state-level recognised parties.

The total number of registered unrecognised political parties in the country is  2,796.

Earlier, Hansaria had told the court that the pre-election promise of freebies by political parties is a corrupt practice and amounts to a "bribe" under the Representation of the People Act.

Such a corrupt practice is a ground for declaring an election to be void, he had said.

Hansaria had told the bench that the 2013 judgment delivered by a two-judge bench of the apex court in the matter of S Subramaniam Balaji vs The Government of Tamil Nadu and others required reconsideration.

In the 2013 judgment, the apex court had noted that after examining and considering the parameters laid down in section 123 of the Representation of the People Act, it had arrived at a conclusion that promises in an election manifesto cannot be read into section 123 for declaring it to be a corrupt practice.

Hansaria had submitted that the judgment in the case of S Subramanium Balaji did not lay down the correct law.

"Under section 123 of the RP Act, 1951, 'bribery' is deemed to be corrupt practice for the purpose of the Act. The expression 'bribery' has been defined to mean any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification with the object of inducing an elector as a reward to his candidature.

"Thus, the promises made by the political party are nothing but a bribe within the meaning of section 123(1)(A) of the RP Act, 1951, which is a corrupt practice, and if other conditions mentioned in the said section are fulfilled, is a ground for declaring the election to be void under section 100(1)(b) of the Act," Hansaria had said.

The hearing in the matter will continue on Tuesday.

The apex court had earlier directed the pleas against the practice of political parties promising freebies ahead of elections to be listed before a three-judge bench, saying it appears that the issues raised before it require an "extensive" hearing.

It had noted that there were certain preliminary issues that might be needed to be deliberated upon in these petitions. The issues included the scope of judicial intervention with respect to the reliefs sought in these pleas, whether any enforceable order can be passed by the court in these writ petitions and whether the appointment of a commission or an expert body by the court would serve any purpose.