Supreme Court asks EC to decide on plea seeking to bar people with criminal record from contesting polls.

The Supreme Court asked the Election Commission on Monday to pass a “reasoned order” on a representation seeking to restrain political parties from fielding candidates with criminal antecedents in polls.

A bench headed by Chief Justice S A Bobde passed the order while refusing to entertain a PIL filed by lawyer and BJP leader Ashwini Upadhyay seeking a direction to the poll panel to devise a mechanism to ensure that parties be restrained from fielding candidates with criminal records.

“We direct the Election Commission of India to consider the representation of the petitioner (Upadhyay) dated January 22, 2019 and pass a reasoned order within three months,” said the bench, also comprising Justice B R Gavai.

The top court, while disposing of a similar PIL, had on Jaunary 21 this year directed the petitioner to approach the poll panel which was also asked to treat the plea as a representation for taking requisite steps.

Upadhyay alleged that the EC did not act, forcing him to file the plea afresh and now the apex court has directed the EC to pass a reasoned order within three months from today.

Upadhyay had sought a direction to the EC “to restrict political parties to setup candidates with criminal antecedents in serious offences”.

The plea said the cause of action had arisen on October 10, 2018 when the EC, while issuing notification for assembly elections in five states, did not amend the Election Symbol Order 1968 and the Model Code of Conduct to restrict political parties from fielding candidates with criminal records.

“Criminalisation of politics in India has only grown. Data published by the Association for Democratic Reforms shows that 24 per cent members of Parliament have criminal cases pending against them….

“Out of 7,810 candidates analyzed for the 2009 elections to Lok Sabha, 1,158 or 15 per cent declared criminal cases of which 610 or 8 per cent had serious cases. Out of 8,163 candidates for the Lok Sabha elections in 2014, 1398 or 17 per cent declared criminal cases of which 889 or 11 per cent had serious cases,” the plea said.

Supreme Court to hear Wednesday Congress plea against EC’s decision to hold separate bypolls for 2 Rajya Sabha seats

The Supreme Court Tuesday agreed to hear on June 19 a plea of Gujarat Congress challenging the decision of the Election Commission to hold separate bypolls to two Rajya Sabha seats in the state.

The Rajya Sabha seats fell vacant following the election of BJP chief Amit Shah and party leader Smriti Irani to Lok Sabha from Gandhinagar and Amethi, respectively.

A vacation bench of Justices Deepak Gupta and Surya Kant agreed to list the matter on Wednesday after senior advocate Vivek Tankha mentioned it for urgent hearing.

The petition filed by Congress MLA from Amreli and Leader of Opposition in Gujarat Assembly, Pareshbhai Dhanani, has sought a direction to the EC to hold the bypolls together.

A press note issued by the poll panel on June 15 scheduled the election for both the seats on July 5.

The EC clarified that the vacancies for bypolls to all Houses, including Rajya Sabha, are considered “separate vacancies” and separate notifications are issued and separate polls are held, though the schedule can be the same.

Shah has been given the charge of Union Home Ministry and Irani Women and Child Development Ministry.

In his plea, Dhanani has sought a direction to quash and declare the poll panel’s order as “unconstitutional, arbitrary, illegal, void ab initio” and said it violated Article 14 of the Constitution.

He submitted that the poll panel be directed to hold simultaneous by-elections and polling for filling of all vacancies in all states, including Gujarat.

The MLA, through his lawyer, submitted that separate elections for the two Rajya Sabha seats in Gujarat would upset the scheme of proportional representation as mandated under the Representation of People Act.

In the petition, it is stated that the basic principle, both under the Constitution and Representation of People Act 1951, is that if regular vacancies are existing at the time when the election is held, it should be held together so that the system of proportional representation by means of single transferable vote can be applied to those elections.

The petition contended that if the Election Commission is given a free hand to issue one or more notification with respect to vacancies in Council of States (Rajya Sabha) and if separate elections are held for the same purpose, it may result in abuse of power in as much as the majority party will always be able to arrange the matters in such a way that it gets maximum seats.

In the 182-member House in Gujarat Assembly, BJP has 100 members and the Opposition-led by Congress 75 members, while seven seats are vacant.

The Congress MLA also alleged that the poll panel has “arbitrarily, malafidely, maliciously and under the diktats of the incumbent government” invoked its residuary powers under Article 324 of the Constitution and arbitrarily issued the June 15 press note declaring separate elections for the Council of States, where it stated that the vacancies for by-elections to all Houses, including the Rajya Sabha, are considered as separate vacancies and separate notifications are issued and separate poll is taken for each of the vacancies although the programme schedule for the by-elections may be common.

The Congress alleged that the action of the Election Commission was completely tainted with arbitrariness, malafide, partisanship and has been taken in an extremely hasty manner to pre-empt and impede the minority party in the state Assembly to elect a member for the Council of States.

It also alleged that the BJP, running the government at the Centre, has used the Election Commission’s Office for its political propaganda.

The EC on June 15 also cited two Delhi High Court rulings of 1994 and 2009 which had supported the system of holding separate by-polls in the same state under provisions of the Representation of the People Act.

The Congress had demanded that the by-polls to the two vacant seats in Gujarat be held together as in case of separate elections, the BJP being the ruling party would have an advantage and win both the seats.

Election Commission bribery case: High Court dismisses middleman’s bail plea

New Delhi : The Delhi High Court Friday dismissed the bail plea of a middleman, arrested in the 2017 Election Commission bribery case which allegedly involved former AIADMK leader TTV Dhinakaran and others.

Justice Mukta Gupta denied relief to Sukesh Chandrashekar, who was arrested on April 16, 2017 for allegedly bribing EC officials for getting the ‘two leaves’ symbol for the Sasikala-led faction of the party.

“Bail application is dismissed,” the judge said, while pronouncing the order.

The high court and the trial court have denied him bail on several occasions.

On an earlier occasion, the high court had rejected his bail plea on the ground that the police had seized a fake Rajya Sabha member ID card from his possession.

A trial court had framed charges against the accused for the alleged offences punishable under sections 120B (criminal conspiracy) and 201 (destruction of evidence) of Indian Penal Code (IPC) and under section 8 (taking gratification by corrupt or illegal means to influence public servant) of the Prevention of Corruption (PC) Act.

A charge sheet was filed by the police before the trial court in the case in July 2017, alleging that Dhinakaran and Chandrashekar had conspired to bribe EC officials to get the ‘two leaves’ symbol for their party.

The police has also included in the charge sheet allegations of forgery for purpose of cheating, using forged document as genuine, possessing a forged document, intending to use it as genuine and criminal conspiracy.

Chandrashekar was arrested for allegedly taking money from Dhinakaran to bribe EC officials to get the AIADMK ‘two leaves’ symbol for the Sasikala faction in a by-election to the R K Nagar Assembly seat in Tamil Nadu.

Dhinakaran, who floated the Amma Makkal Munnetra Kazhagam party after being expelled from the AIADMK, was arrested here on April 25, 2017 after four days of questioning for allegedly attempting to bribe EC officials for the symbol. The by-poll was necessitated by the death of Tamil Nadu CM J Jayalalithaa, who represented the assembly segment.

Dhinakaran won the by-elections held in Radha Krishnan Nagar Assembly constituency in December 2017 under the ‘pressure cooker’ symbol with a margin of over 40,000 votes.

Dhinakaran’s aide T P Mallikarjun and a man called B Kumar were also put on trial for these offences.

Supreme Court directs political parties to furnish receipts of electoral bonds and donors’ identity details to EC

The Supreme Court Friday directed all political parties to furnish receipts of political funding received through electoral bonds and details of identity of donors in a sealed cover to the Election Commission.

In an interim order, the apex court also directed all political parties to provide details of the amount of the bond and bank account of donors by May 30 to the poll panel.

The apex court said it would examine in detail changes made in Income Tax law, electoral law and banking laws to make them in consonance with the electoral bond scheme and ensure balance does not tilt in favour of any political party.

It also directed the Finance Ministry to reduce the window of purchasing electoral bonds from 10 days to five days in April-May and said it would fix a date later for final disposal of the petition filed by an NGO.

The NGO has challenged the validity of the scheme and sought that either the issuance of electoral bonds be stayed or names of donors be made public to ensure transparency in the poll process.

The order was pronounced by a bench comprising Chief Justice Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna.

The government had notified the Electoral Bond Scheme 2018 on January 2, 2018.

As per provisions of the scheme, electoral bonds may be purchased by a person, who is a citizen of India or incorporated or established in India.

A person being an individual can buy electoral bonds, either singly or jointly with other individuals.

Only political parties registered under Section 29A of the Representation of the People Act, 1951 and which secured not less than one per cent of votes polled in the last general election to the House of the People or the Legislative Assembly of the State, shall be eligible to receive electoral bonds.

As per the notification, electoral bonds shall be encashed by an eligible political party only through a bank account with an authorised bank.

The Centre and the Election Commission had taken contrary stands in the Supreme Court on Wednesday over political funding with the government wanting to maintain anonymity of donors of electoral bonds and the poll panel batting for revealing names of donors for transparency.

The bench on Thursday had reserved the order, saying if the identity of the purchasers of electoral bonds meant for transparent political funding was not known, then efforts of the government to curtail black money in elections would be “futile”.

The Centre, through Attorney General K K Venugopal, had vehemently supported the scheme saying the purpose behind it is to eliminate the use of black money in elections and asked the court not to interfere with it at this stage and examine whether it has worked or not only after the elections.

However, advocate Prashant Bhushan, appearing for Association of Democratic Reforms (ADR)’, had said the scheme has nothing to do with the effort to curb black money and it opens the banking means also to donate by remaining anonymous.

During in an earlier hearing, Bhushan had claimed that the party in power was the major beneficiary of the scheme.

The EC, represented by senior lawyer Rakesh Dwivedi, had opposed Centre’s submissions and said secrecy allowed in the electoral bonds scheme “legalises anonymity”.

The bench had also observed, “If the identity of purchasers of bonds is not known then there will be greater ramification on the Income Tax law and all your (government’s) efforts to curtail black money will be futile”.

Venugopal had also said the anonymity of donors of electoral bonds is to be maintained for various reasons such as fear of repercussions on a firm or an individual if the other political party or group wins.

The Attorney General had also said: “Historically, black money is used in elections. This is a reformatory steps. The scheme can be examined after the elections.”

In its affidavit, the Centre had said electoral bonds “attempt at bringing greater transparency, ensuring KYC compliance and keeping an audit trail in comparison to the earlier opaque system of cash donations.

Arvind Kejriwal’s bribery remarks : Election Commission says will give advance notice before taking action.

 The Election Commission (EC) on Thursday gave an undertaking in the Delhi High Court that an advance notice will be given to Arvind Kejriwal before taking any action, including derecognition of his Aam Aadmi Party, for his alleged bribery remarks during Goa Assembly election campaign in 2017.

Justice Yogesh Khanna took on record the statement by the poll panel and disposed of Kejriwal’s application seeking directions to the EC not to take any action against him or his party based on its January 21, 2017 censure order.

In its January 2017 order, the EC had said that if he, in future, repeated such remarks, it would take action against him and his party.

On Thursday, the EC’s lawyer said a notice would be sent in advance to the Aam Aadmi Party (AAP) convenor before taking any action against the party under para 16A of the Election Symbols (Reservation and Allotment) Order.

Under the Symbols order, the EC has the power to suspend or withdraw recognition of a recognised political party for its failure to observe the Model Code of Conduct or follow lawful directions and instructions of the poll panel.

The court made it clear the order for advance notice was applicable to any action in connection with the utterances made during the January 2017 poll campaign in Goa and not with regard to any remarks made in future.

The poll panel, during the proceedings, has taken the stand that the Model Code of Conduct was violated by Kejriwal when he made the remarks and hence, an order of censure and later a direction for lodging an FIR was issued against him in January 2017.

Kejriwal, in his plea, has contended that the EC’s order amounts to “curtailing” his freedom of speech and expression guaranteed under the Constitution of India.

The application was moved in his main petition seeking quashing of the poll panel’s decisions and which will be heard on April 26.

The poll panel had earlier orally told the high court that only a complaint case against Kejriwal was pending in a Goa court for his alleged bribery remarks at election rallies in the state on January 7-8, 2017 and no FIR was lodged as directed by the EC.

During a series of rallies in Goa on January 7-8, 2017, Kejriwal had asked voters to “accept money from the Congress and BJP candidates but vote for the AAP”.

The Bharatiya Janata Party (BJP) had filed two complaints against the AAP supremo, seeking his prosecution under various sections of the Indian Penal Code (IPC) for asking voters to accept money. The Congress too had condemned the Delhi chief minister’s statement.

The poll panel had, thereafter, directed that a complaint be lodged against Kejriwal under the provisions of the Representation of the People Act dealing with bribing voters and the relevant sections of the IPC.

Supreme Court to hear plea to bar candidates from contesting from more than one seat

 The Supreme Court Wednesday said it would hear after two weeks a plea which has sought to restrict a candidate from contesting from more than one constituency in a general election.

The matter was mentioned for early listing of the plea before a bench of Justices S A Bobde, M M Shantanagoudar and S Abdul Nazeer.

“List after two weeks before appropriate bench,” the bench said.

The Election Commission (EC) in an affidavit filed earlier in the apex court had quoted its 2004 proposals on electoral reforms and said that law should be amended to ensure that a person cannot contest from more than one seat.

It also said that its proposal to bar candidates from contesting from more than one seat was rejected by a parliamentary standing committee way back in 1998, which had taken note of the view of an all-party meeting favouring to retain the provision.

In response to the petition filed by BJP leader and advocate Ashwini Kumar Upadhyay, EC said there was no change in its 2004 proposal.

It said: “As regards the proposal of the Election Commission of India that there should be an express provision in law requiring a person who contests and wins election from two seats, resulting in a bye-election from one of the two constituencies, to deposit in the government account an appropriate amount of money being the expenditure for holding bye-election, it is further stated that the amount proposed at that point of time was Rs 5 lakh for state Assembly and Rs 10 lakh for election to the House of People.”

EC submitted that there was no change in its stand on this proposal but the amount proposed in the year 2004 may be enhanced appropriately.

In his plea, Upadhyay has sought directions to the authorities to take appropriate steps to discourage the independent candidates from contesting parliamentary and state Assembly elections as suggested by the National Commission to Review the Working of the Constitution (NCRWC).

He said the question of independent candidates is often connected with the issue of fragmented voting and instability in the electoral system and referred to the Law Commission’s 170th report which said the time is now ripe for debarring independent candidates from contesting Lok Sabha elections.

“Similarly, the NCRWC has recommended discouragement of independent candidates, who are often dummy candidates or defectors from their party or those denied party tickets,” the petition said.

Will curb un-verified political ads on social media: Election Commission to Bombay High Court.

The Election Commission (EC) Monday told the Bombay High Court that it will issue directions prohibiting all social media platforms from displaying political advertisements not pre-verified by it.

The EC, through its counsel Pradeep Rajagopal, told the high court that a meeting between the commission and all social media intermediaries was scheduled for Tuesday.

Following the same, its new directions imposing several prohibitions on political advertisements, and other ads concerned with “national interest”, will be finalised and implemented.

Rajagopal made the submissions before a bench of Chief Justice Naresh Patil and Justice N M Jamdar.

The bench has been hearing a Public Interest Litigation (PIL) filed by lawyer Sagar Suryavanshi, seeking directions to the EC to regulate fake news in the form of paid political ads on social media.

In compliance with the court’s previous orders, the commission submitted an affidavit on Monday, informing the HC of the proposed pre-verification rules for political ads.

In its affidavit, the EC said it will also “evolve a notification mechanism” for identifying and flagging such political ads that have not received its pre-verification, but have been posted on social media platforms.

“The intermediaries will also have to expeditiously remove any advertisement or information already posted without the verification certificate from the commission,” the affidavit said.

“A code of conduct is being evolved in consultation with the Internet and Mobile Association of India and the social media intermediaries to incorporate the above measures and any other direction issued by this court,” it said.

On previous hearing, social networking portal Facebook told the HC that it had introduced a strict “verification processes” for all political ads and paid content of “national interest” in India ahead of the general election.

The new system ensures that only bonafide individuals, who are citizens of India, and political organisations based in the country can place political ads.

Twitter and YouTube had told the bench that they permitted only such political ads which were verified by the EC.

Voters have the right to know crimnal background of candidates: Supreme Court

NEW DELHI: The Supreme Court on Tuesday favoured “proper” dissemination of information about criminal antecedents of candidates and the Election Commission could be asked to direct political parties to ensure that persons facing criminal charges so that voters can make a informed choice while exercising their franchise.

After making these observations, a five-judge constitution bench headed by Chief Justice Dipak Misra reserved the judgement on a clutch of petitions after the parties including the poll panel and the Centre concluded their arguments.

Senior advocate Krishnan Venugopal, appearing for Mr. Upadhyay, said the court may direct the Election Commission of India to take steps to ensure that political parties do not allow politicians facing criminal charges to contest on their tickets and symbols. Mr. Venugopal that “Caesar’s wife must be above suspicion” should be made applicable in case of politicians.

The top court is dealing with the question whether a legislator facing criminal trial can be disqualified at the stage of framing of charges in a case. Presently, lawmakers are barred at the time of conviction.

The intention of the Lordships is laudable. But the question is whether the court can do it. The answer is ‘no’,” Attorney General K K Venugopal, representing the Centre, told the bench, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.

Bribery remarks: Complaint case filed against Arvind Kejriwal

The Election Commission today told the Delhi High Court that a complaint case against Chief Minister Arvind Kejriwal was pending before a Goa court for his alleged bribery remarks during the January 2017 assembly polls there.

The submission came in pursuance to the court’s earlier direction on whether any FIR has been lodged, as the EC had previously stated that such an action has been taken.

Justice Rekha Palli was informed by the counsel for EC that a complaint case was filed in pursuance to the poll panel’s letter of January 29 last year directing the Chief Electoral Officer of Goa to take legal action or lodge an FIR against Kejriwal for his bribery remark at poll rallies in the state on January 7-8 last year.

Addressing a series of rallies in Goa, Kejriwal had reportedly asked voters to “accept money from the Congress and BJP candidates but vote for the Aam Aadmi Party (AAP).”

EC’s counsel P R Chopra said no FIR has been lodged against the AAP leader and the complaint case has been listed before the Goa court for March 1 and the complainant has been asked to appear.

Kejriwal’s lawyer had earlier told the court that according to information received under the RTI Act, no FIR has been lodged against him anywhere in Goa in connection with the remarks.

During the day’s hearing, advocate Manish Vashisht, appearing for Kejriwal, contended that the actions of EC were in violation of his right to freedom and free speech.

This was opposed by Chopra who sought time to file counter affidavit. He also argued that the AAP leader’s petition was not maintainable and said such statements went against the model code of conduct.

The court noted that despite opportunity, the EC has not filed its response, but granted it time while listing the matter for further hearing on May 25. The bench also said it has not expressed any view on the maintainability of the petition.

Kejriwal’s lawyer contended that such statements did not fall in the category of instigating somebody and referred to an order of a Delhi trial court which had dismissed a petition making similar allegations. Kejriwal, in his plea, has alleged that the poll panel’s January 29, 2017 order had curtailed his right to free speech.

The BJP had filed two complaints against Kejriwal seeking his prosecution under various sections of Indian Penal Code for asking voters to accept money. Congress too had condemned his statement.

The poll panel had, thereafter, directed that a complaint be lodged against the AAP leader under the provisions of the Representation of the People Act dealing with bribing voters and relevant sections of the IPC.

GCCI moves HC against EC’s power to appoint surveillance teams

GCCI moves HC against EC's power to appoint surveillance teams
GCCI moves HC against EC’s power to appoint surveillance teams

The Gujarat Chamber of Commerce and Industry (GCCI) today moved a PIL in the high court challenging the Election Commission’s power to appoint surveillance teams, stating that they infringed upon a citizen’s fundamental rights.

In the petition, the GCCI said the EC’s power to appoint static/flying surveillance teams, which in turn is entitled to search any car or individual on the road, is against the fundamental right of a citizen.

A lawyer representing the Election Commission appeared before the division bench of Chief Justice R Subhash Reddy and Justice V M Pancholi and sought time to seek instructions from the EC over the matter.

The high court, in its 2012 order on a similar petition by the industry body, GCCI, had held that random and indiscriminate search and seizure is against the fundamental right of a citizen.

The EC had moved the Supreme Court against the order but the apex court did not grant any stay.

“Even as the matter is being heard, the EC issued these new standard operating procedures in the 2017 Assembly elections, which are scheduled to be held in two phases on December 9 and December 14,” the GCCI said in the petition.

EC’s lawyer told the court that since the matter is pending before the Supreme Court, he needed to take instruction from the EC. The court granted time and the matter will be heard on Monday next week.

If cash of Rs 50,000 or more is found by the surveillance team, it can search and seize the cash or any valuables on the basis of suspicion and initiate action.

“The EC does not have the power to issue any instructions which would violate the fundamental rights of privacy of any citizens…The EC cannot trouble the common citizen in the guise of curbing the use of cash by political parties,” the GCCI petition said.

( Source – PTI )