SC wants Parliament, EC to bar convicts from political bodies

Yatindra Bhatnagar

A recent Supreme Court view that it cannot prevent a convicted person of exercising his or her right to freedom of speech, and not debar that person from holding office, or float a political party or even head the organization is something disturbing.

It happened in India, not the United States. 

While siding with ‘freedom of speech’ the highest court said that the matter is for the Election Commission of India to decide. Fine. 

One would accept that the matter is basically for the Election Commission but the Supreme Court’s views about ‘freedom of speech’ might sound disturbing. The American Supreme Court in 1989 and then 1990 had ruled that burning of the National Flag, disrespecting it, stomping on it and abusing it any manner is Free Speech. 

I don’t want to imagine that India’s Supreme Court is also thinking along the same lines and giving too much importance – and propagating a weird interpretation of – Free Speech principle. 

In my view harping on freedom of speech while ignoring conviction on serious criminal charges is not consistent with the spirit of the Constitution and propriety. A convict loses many of his or her rights and even if they retain the right to speak out their mind, forming a political party, and heading it, contesting elections and occupying a seat in law-making bodies and government should be expressly forbidden. 

The Supreme Court can play a role in cleaning up the political life of the country by not being bogged down with the Free Speech principle. Of course, the courts cannot be more proactive than what their role provides for. 

With the existing law anyone convicted with serious offense can fight elections, head the party and become a Member of Parliament or the State Assembly, and a Minister unless specifically barred from holding any elected office.

Dozens of political and other leaders even when convicted have been holding political offices and heading political organizations. They include Lalu Prasad, Mulayam Singh Yadav, Suresh Kalmadi, Virbhadra Singh, Mayawati etc. 

The law should be very specific and ‘universally’ binding all over the country: You violate the laws, you are charged and convicted of a criminal offense, and you are barred. The only difference could be in the ‘seriousness’ of the charge, offense and the quantum of punishment and your disqualification. It could vary from years, decades or lifetime. 

You can still retain your right to express your opinion – have all the freedom to speak but not be a lawmaker. 

About the case before the Court, Dhananjay Mahapatra of the Times of India had reported: 

A bench of Chief Justice of India Dipak Misra and Justices AM Khanwilkar and DY Chandrachud asked the petitioner, advocate Ashwini Upadhyay, "How far can the courts go? Let the government and Parliament look into this. Can we stop a convicted person from heading a political party? Will it not be incongruent with the right to free speech? Can the court restrain a convicted person from propagating his political views?"

The petitioner said at present a person convicted for serious criminal offences can form a political party and become party president even after being barred from contesting elections as a candidate. "For instance, Lalu Prasad, O P Chautala and Sasikala have been convicted of major criminal offences but still hold the highest post in political parties," Upadhyay said.

Similarly, courts have framed charges in serious cases against Suresh Kalmadi, A Raja, Jagan Reddy, Madhu Koda, Ashok Chavan, Akbaruddin Owaisi, Kanimozhi, Adhir Ranjan Chowdhury, Virbhadra Singh, Mukhtar Ansari, Mohammad Shahabuddin, Suraj Bhan Singh, Anand Mohan Singh, Mulayam Singh Yadav, Mayawati and Brijesh Singh etc. Yet, they are holding political posts and wielding political power," he said.

But the court's resoluteness in protecting the right to free speech, including that of convicted people, was evident to the courtroom. The petitioner's counsel, senior advocates Sidharth Luthra and Sajan Poovaiya, deftly changed tack and said the SC should examine provisions of the Representation of the People Act, 1951, which grants the Election Commission the power to register a political party without the corresponding power to de-register them.

Luthra said proliferation of political parties in the country has been a cause for concern for some decades and the national committee for review of the working of the Constitution suggested a statutory framework for registration and de-registration of political parties.

More than a decade ago in 2004, "even the Election Commission had proposed an amendment to Section 29A of the RP Act to authorize it to issue appropriate orders to regulate registration/de-registration of parties," he said. 

The SC agreed to examine the issue pertaining to empowering EC to de-register political parties if the situation so warranted because of their wrongdoings and sought responses from the Centre and EC.

Last year, EC de-listed political parties which existed only on paper and had not contested any local or national elections since 2005. This was done through the use of special powers and the decision could be contested in court. There no provision that allows EC to de-register political parties.