SAD politics and secularism: Challenging political parties in the Delhi High Court

This Thursday, Justices Pradeep Nandrajog and Mukta Gupta of the Delhi High Court will once again hear a petition concerning the Shiromani Gurudwara Prabandak Committee (SGPC) and the Shiromani Akali Dal (SAD)..The hearing will commence five months after judgment was reserved by a bench of Chief Justice G Rohini and Jayant Nath J..But first some details..The Shiromani Akali Dal (SAD) was formed as a religious body of the Sikhs in 1920s, and is closely aligned with the Shiromani Gurudwara Prabandak Committee (SGPC). The SGPC was constituted way back in 1925 for the management and maintenance of the country’s gurudwaras..In 1989, S 29A was inserted into the Representation of People Act of 1951 (pdf) making it mandatory for political parties to give an undertaking that they would bear allegiance to the Constitution of India and to the principles of socialism, secularism and democracy..Fifteen years later, in 2004, Balwant Singh Khera, a social worker, filed a complaint seeking SAD’s deregistration by the Election Commission (EC) on the ground that the party violated S. 29A (5) of the RP Act, by contesting elections to the SGPC..The Election Commission first ruled that the participation in SGPC elections is not violation of law. Subsequently the EC cited the Supreme Court’s judgment in Indian National Congress v Institute of Social Welfare to hold that the Commission had no power to review the registration of a political party..In 2005, Khera pursued the matter with a fresh representation to the EC, on grounds of fraud and forgery in obtaining registration under S.29A of RPA. In its reply to the EC, the Shiromani Akali Dal, while denying allegations of fraud and infraction of law, did not deny its involvement in SGPC elections. The EC accepted SAD’s contention..Khera, then filed a petition before the Delhi High Court, in 2010, seeking a direction to the EC to set aside the registration of Shiromani Akali Dal under Section 29A of RPA. The High Court reserved the judgment (see order) in the case on 5 November, 2015..Khera’s lawyer, Indira Unninayar, spoke to Bar & Bench about the matter..Bar & Bench: The recusal is a bit unusual yes?.Indira Unninayar: Just some facts first. The petitioner Balwant Singh Khera inquired about the status of the judgment on February 9 this year mentioning inter alia, that he is an octogenarian and no longer in very good health..On the same day, the Chief Justice said that the bench sought “some clarifications”. I communicated on behalf of the petitioner that we would be more than happy to assist the court on the clarifications and sought a short date. The date given was March 16 as the court said it had no earlier date..A few days later, we found that the order (pdf) passed indicated that I, Indira Unninayar, counsel for the petitioner, had sought a re-hearing of the matter..We therefore had no choice but to move an application seeking recall and correction of this order. We also took the opportunity to reaffirm that the petitioner would be happy to assist the court by answering its clarifications, and sought an early hearing of the court’s clarifications with an early judgment citing the Supreme Court judgment in Anil Rai vs State of Bihar..That application was listed for March 1 and as the court did not assemble on that date, the matter was adjourned and listed for the date fixed already, viz. March 16..On March 16, the matter reached before 12.00 pm. The Shiromani Akali Dal sought a passover saying that the senior counsel was reaching shortly. The court adjourned the matter at this point. The petitioner, through counsel, urged that he be informed of the “clarifications” sought by the bench to which the Bench said said it could not as it did not have the records that day. The matter was then adjourned to April 5..On April 5, the matter came up at 12:40 in the afternoon. I reiterated the brief facts of the case and sought a listing of the clarifications sought. The Shiromani Akali Dal objected to the hearing given that the judgment was already ‘reserved’. At that stage, the bench confirmed that it did indeed have clarifications and posted the case for hearing in the afternoon session..Post lunch, when it reassembled at 2:45 in the afternoon, while the matters pertaining to the status of Delhi were being called out, I informed the court that it had said it would take up the matter post-lunch when the Chief Justice called for the case-file and announced her recusal from the matter..To answer your question, there are some unusual aspects to this case:.The matter was pending before the Chief Justice since August 2014 and has been listed 11 times.During its pendency before the present Chief Justice, the matter had been adjourned 6 times between 2014 and 2015, on 6.8.2014, 24.9.2014, 3.12.2014, 29.1.2015, 21.5.2015 and 13.8.2015 (some of the dates are 3 months apart).On 9.2.2016 when we inquired about the status of the judgment, it was the same bench that said it had clarifications. It confirmed that it did indeed have clarifications and that is why the matter was being heard after reserving judgment, on 5.4.2016 before lunch. The matter was to be taken up and the clarifications to be heard after lunch. Instead, the Chief Justice called for the file and recused herself after lunch.The “clarifications” have not been articulated on any of the 3 dates that they were alluded to.The Punjab Elections are round the corner as are the SGPC elections, and we had informed the court that the matter is of urgency. The Shiromani Akali Dal and SGPC would continue to use their alignment with one another if the matter is not decided before their elections..Bar & Bench: Don’t you think de-registration of a political party on a technical ground could play havoc with democracy?.Indira Unninayar: As the present matter is yet to be decided, I shall answer this question in general terms..The Indian Constitution has secularism as part of its basic structure – that is inviolable. Secularism is a mandate for all political parties without exception. When our political parties and their leaders have no intention to follow this mandate, and give false undertakings to exploit their ability to polarize people along lines of religion or caste, it is that which plays havoc with democracy..In the petitioner’s case, the ground for deregistration is not limited to a technical one in that sense. A true democracy requires to ensure the correction of fundamental wrongs in its working from time to time. The Indian Constitution and the RP Act has in-built safeguards and as settled in Bommai’s case, these safeguards expressly prohibit ‘non-secular’ political parties. Section 123 of the RP Act further disallows any appeal to vote on the ground of caste, religion, race, community or language..Therefore, de-registration of political parties if a court finds there is fraud committed in its undertaking for registration would only restore democracy and not destroy it. It would reaffirm the functioning of our democracy and restore the faith of the people in it..Bar & Bench: Can you tell us how the legal precedents in the Supreme Court, the Arjun Singh matter, and the Institute of Social Welfare matter, have a bearing on this case?.Indira Unninayar: Arjun Singh’s case, Case No. 56/120/90/Vol III/6334 – order by the ECI dtd 19.2.1992 confirmed by the Supreme Court in SLP (C) 8738/1992, on 28.8.1992 concludes that a party duly registered under S 29A of the RP Act may be de-registered if inter alia, the ECI finds that the registration was secured by using fraudulent means..The Institute of Social Welfare matter (AIR 2002 SC 2158) lays down the principle that the Election Commission is a ‘quasi-judicial’ body when it registers a political party under S 29A of the RP Act. It further confirms that the Election Commission can de-register any political party on 3 grounds – one of them, if the party’s registration was obtained on the basis of a fraudulent undertaking given by the party to fulfil the requirements of S 29A of the RP Act..Bar & Bench: The Anil Rai guidelines say that any of the parties can move an application before the Chief Justice to withdraw the case and make it over to any other bench for fresh arguments, in case the judgment is not delivered within a period of six months..Indira Unninayar: Justice delayed is justice denied. Unless there is timely justice, public confidence in the judicial system gets steadily eroded. Anil Rai vs State of Bihar deprecates the practice of holding back judgments by high courts after reserving them. It gives litigants some respite in cases of delayed judgments by providing for moving applications 3 months after for a timely judgment, and 6 months after for a change of bench altogether..“Supreme Court judgments are the law of the land according to the Indian Constitution. Nobody, including judges, can flout Supreme Court orders.”.Supreme Court judgments are the law of the land according to the Indian Constitution. Nobody, including judges, can flout Supreme Court orders. This is more so when such orders are not per incuriam or bad in law but are based on sound principles of law as in Anil Rai..The CJ’s recusal prevents us from pressing for a judgment by May 5 2016 as the matter will now be posted before a new bench that will hear it afresh..Having said that, we do intend to press for an early judgment as the pleadings are complete (with the exception of the reply of the EC). We could easily argue the case in 2-3 short dates and provide further written submissions to assist the new bench hearing the matter..Bar & Bench: Any other observations?.Indira Unninayar: This case only emphasizes the pressing need for video-recording of court proceedings. Our oral arguments would then have been readily available for the convenience of the new bench and we could have proceeded to summarize and present our remaining arguments..Why must citizens such as Balwant Singh Khera suffer because of the inexplicable ways that our judges conduct their hearings or adjourn matters? The day that we have digital video-recording of court proceedings, citizens’ faith in the courts and in our democracy will get considerably bolstered, a strong and crying need in the present day.