SC: How can a Convict form Political Party and Select Candidates?


February 13, 2018

The Supreme Court yesterday in a PIL made a scathing attack on convicts contesting election and heading political parties. The Supreme Court remarked that a convicted person cannot contest election. Then how can he form political party and select candidate. A criminal deciding who the people should vote for by itself goes against the basic tenet of democracy.


The Supreme Court in the case was prima facie of the opinion that a convicted person cannot head a political party. However, the Court in the case has sought final reply of the Center in the matter within two weeks.

Here it would be relevant to mention that in December last year, the Three-Judge Bench of the Supreme had passed an order, whereby the Bench had issued notice to the Union of India regarding law relating to disqualification under the Representation of People Act, 1951in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State.

Also read SC Issues Notice to Centre on Registration of Convicts as Political Parties

The core issue raised by the Petitioner in the case pertained to interpretation of Section 29A of the Representation of the People Act, 1951. The Petitioner in the case urged that there were certain provisions under the 1951 Act which disqualify people from contesting the election and, therefore, the people who are disqualified, especially who have been convicted under the criminal law and stand disqualified, should not be allowed to take the benefit of Section 29A of the 1951 Act.

Section 29A of the Representation of the People Act, 1951 provides for Registration with the Election Commission of associations and bodies as political parties.

The Petitioner in the case also referred to Supreme Court’s judgment in the case of Indian National Congress (I) vs. Institute of Social Welfare & Ors.[1], wherein the Court enumerated three exceptions where the Election Commission can review its order registering a political party. One is where a political party obtained its registration by playing fraud on the Commission, secondly, it arises out of sub-section (9) of Section 29A of the Act and thirdly, any like ground where no enquiry is called for on the part of the Election Commission, for example, where the political party concerned is declared unlawful by the Central Government under the provision of the Unlawful Activities (Prevention) Act, 1967 or any other similar law.

The Petitioner urged that in view of the aforesaid order, it was duty of the Election Commission to exercise a quasi-judicial power, and if the Election Commission is not clothed with the power of not granting the benefit under Section 29A of the Act, the disqualified persons may form a political party and come for registration.

In view of the aforesaid, the Bench stated that the seminal issue in the case was- whether Section 8(4) of the Act is ultra vires the Constitution should affect disqualifications already incurred under sub-sections (1), (2) and (3) of Section 8 of the Act by sitting members of Parliament and State Legislatures who have filed appeals or revisions against their conviction within a period of three months and their appeals and revisions are still pending before the court concerned?

Section 8(4) of the Act enumerates that disqualification from registration as political party under the grounds mentioned under Sections 8(1), (2) and (3) of the Act shall not take place in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State.

In the case, the Election Commission had sought a life-time ban on convicted politicians from contesting election.

The matter has been put up for final disposal on March 26.



[1] (2002) 5 SCC 685