A New Party, a Pending Case and Free Sarees at the Booth
A political party registered in 2016 contests 38 of 80 Assembly seats in a state. It polls 6.9 per cent of valid votes and wins 3 seats. It applies to the Election Commission for recognition as a state party. One of its three MLAs was a candidate in 2014 in a rioting case in which charges have been framed but there has been no conviction; his nomination affidavit disclosed the case. On polling day in one constituency, party workers set up a counter 180 metres from a polling booth and distributed free sarees and cooked rice to voters; a video goes viral. The Commission issues notice under the Model Code of Conduct and asks the party why it should not be treated as having committed a corrupt practice. The party's state president replies that the Model Code is not law, that distribution was 'charitable', and that the symbol must be granted before the next election.
1. On these figures, does the party qualify as a state party, and what is the legal status of the recognition criteria?
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Recognition is not a statutory entitlement under the Representation of the People Act, 1951. It is governed by the Election Commission's Election Symbols (Reservation and Allotment) Order, 1968, which the Commission issues under its Article 324 power of superintendence. Para 6A of that Order sets the criteria for state-party status: a party must secure at least 6 per cent of the total valid votes polled in the state in the last Lok Sabha or Assembly general election, together with at least 2 seats in the Assembly (or 3 per cent of the total seats, whichever is more), or alternatively 3 seats and 3 per cent of seats; a separate route exists at 8 per cent of valid votes in the state.
On the facts: 6.9 per cent satisfies the vote threshold. Three seats out of 80 is 3.75 per cent, which is more than 3 per cent and more than the 2-seat minimum. The party therefore satisfies the 6 per cent plus seats route and is entitled to recognition as a state party, subject to the Commission verifying the vote figures and the party's continued registration under Section 29A of the Act.
Two caveats. Recognition is reviewed after every general election, so it is not permanent. And because the Symbols Order is an executive instrument rather than a statute, the Commission's application of it is subject to judicial review for arbitrariness; the Commission cannot refuse recognition on unstated grounds such as the behaviour of individual candidates. The president is right that the symbol must be decided without political delay, and the correct remedy if it is not is a writ petition.
2. Can the party be deregistered, or its MLA disqualified, because of the pending rioting case?
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No, on both counts, and the reasoning matters more than the answer.
Disqualification. Section 8 of the Representation of the People Act, 1951 disqualifies a person on conviction for specified offences, generally for six years from release. The framing of charges is not a conviction. After Lily Thomas v. Union of India (2013) struck down sub-section (4), there is no shield of a pending appeal either, but the trigger remains conviction. The candidate's duty was disclosure: Section 33A requires an affidavit of pending cases, and he complied. In Public Interest Foundation v. Union of India (2018) the Supreme Court directed parties to publicise candidates' criminal antecedents and the Commission to host the information, but it stopped short of barring charge-framed candidates, leaving that to Parliament; the Law Commission's recommendation to that effect has not been enacted.
Deregistration. The Commission has no general power to deregister a party. In Indian National Congress v. Institute of Social Welfare (2002) the Court held that cancellation is possible only on the limited grounds in Section 29A(5), essentially a violation of the declaration made at registration. Fielding a candidate with a pending case is not such a violation.
The real remedies are publicity, the voter's choice, and Section 8 if a conviction follows. Treating registration as a disciplinary weapon against a party would itself be arbitrary.
3. Is the Model Code a sufficient basis for action over the sarees and rice, and what is the stronger legal route against the party and its candidate?
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The Model Code of Conduct is not a statute and creates no independent offence, but the party president's argument that it is therefore meaningless is wrong. The Code is issued under Article 324, and the Commission can enforce it through its power to recognise, allot symbols, issue notices, register police complaints under the ordinary criminal law, and in serious cases recommend postponement or countermanding of a poll - a power recognised in Mohinder Singh Gill v. Chief Election Commissioner. So the notice is lawful.
The stronger route, however, is statutory. Distributing money, gifts or food to voters to induce them to vote is bribery, a corrupt practice under Section 123(1) of the Representation of the People Act, 1951, and may also attract Section 171B of the Indian Penal Code. If the distribution was by party workers with the consent of the candidate or his agent, the election of that candidate can be declared void under Section 100(1)(b), with consequential disqualification under Section 8A. The consent element is the key evidentiary question, which is why the video, the location 180 metres from the booth and the identity of the distributors matter.
The distinction to draw is between a manifesto promise and poll-day distribution. Promises of welfare in a manifesto have been held not to be corrupt practices (S. Subramaniam Balaji), and the debate on 'irrational freebies' is a policy question. Handing over goods at the booth is not a promise; it is a transaction, and it falls squarely within Section 123(1).