Bar & Bench (www.barandbench.com) 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) Bar & Bench (www.barandbench.com) 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 Bar & Bench (www.barandbench.com) 3 INDEX S. Particulars of the Page number of part to Remark NO documents which it belongs Part-I Part-II (Contents (Contents of Paper of file Book) alone) (i) (ii) (iii) (iv) (v) 1 Listing Proforma A-A1 A-A1 Cover Page of Paper 2 A-2 Book Index of Record of 3 A-3 Proceedings 4 Defect List A-4 5 Note Sheet NS1 6 Synopsis & List of Dates B-I Writ Petition with 7 1-53 Affidavit 8 Appendix 54-59 Annexure P-1: Copy of Goswami Committee 9 60-106 Report on Electoral Reform (1990) Annexure P-2: Copy of National Commission to 10 107-157 Review the Working of the Constitution (2002) Annexure P-3: Copy of 11 Background Paper on 158-183 Electoral Reform (2010) Annexure P-4: Copy of 12 the ECI‘s Proposed 184-245 Electoral Reform (2016) 13 F/M 246 14 V/A 247 Bar & Bench (www.barandbench.com) 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: [email protected], [email protected] (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 Bar & Bench (www.barandbench.com) 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 [email protected] 011-23070343, 9891050515 Bar & Bench (www.barandbench.com) 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. Bar & Bench (www.barandbench.com) 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.” Bar & Bench (www.barandbench.com) 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. Bar & Bench (www.barandbench.com) 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. Bar & Bench (www.barandbench.com) 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.