The Supreme Court on Tuesday asked the government if it can direct the Election Commission to include in the symbol order a clause that a political party is liable to lose its recognition if it fields candidates with criminal antecedents.
"Why can't we exhort Parliament like the Law Commission does to address the problem?
Why can't we take clue from Section 33A of the Representation of People Act and direct the Election Commission to include in Symbol order a stipulation to bar people with criminal antecedents from electoral fray?"
the court asked.
"Without asking the legislature (to make a law), you are asking the Election Commission (to insert addition qualifications), " Attorney General K. K. Venugopal said.
The top court, he said, could exhort Parliament to enact a law to bar the people with criminal background from the electoral fray, but any expansion of the Symbols Order that would have a bearing on the recognition of political parties would be ultra vires.
The five - judge constitution bench comprising Chief Justice Dipak Misra, Justice Fali Nariman, Justice A. M. Khanwilkar, Justice D. Y. Chandrachud and Justice Indu Malhotra is hearing a plea by NGO Public Interest Foundation seeking to bar people from electoral politics against whom charges have been framed by trial courts for heinous offences.
The Election Symbols (Reservation and Allotment) Order, 1968 says that a party would be recognized as a national party if it has fielded candidates in any four or more states, in the last general election to Lok Sabha or the legislative assembly and has secured 6% of the valid votes polled in each of the four states.
Besides this, the party has to secure four seats in the Lok Sabha from either one state or all the four states.
Informing the court about the presumption of innocence till an accused is convicted, Venugopal said excluding a person, charged with a criminal offence yet not convicted from the election fray would amount to adding another disqualification.
"It will be ultra vires, " Attorney General said as Justice Chandrachud asked: "Is there anything that prevents the Election Commission from introducing additional qualifications?
Can't EC incorporate such provisions in its rules?"
The constitution bench is hearing a reference by a three - judge bench on the question "whether disqualification for membership can be laid down by the court beyond Article 102(a) to (d) and the law made by Parliament under Article 120(e)?"