Why no ban on SDPI? Legal, political complexities make it difficult

What insulated the SDPI was the fact that it was a political party registered with the ECI, which has the power to register a party, but not de-register one. File Photo: Manorama

When the Union Ministry of Home Affairs banned the Popular Front of India (PFI) and five of its affiliates for five years on September 28, the Social Democratic Party of India (SDPI), widely described as the PFI's political arm, was spared.

What insulated the SDPI was the fact that it was a political party registered with the Election Commission of India, unlike the PFI and its associates like the Rehab Foundation or the All India Imams' Council that were registered under the Societies of Registration Act, 1860. So if the SDPI has to be banned, the process can be initiated only by the Election Commission (EC) and not the Ministry of Home Affairs.

EC's Achilles' heel

The ECI's big disadvantage is that it can register a political party but does not have the power to de-register one. The SDPI, which came into existence on June 21, 2009, was registered with the EC on April 13, 2010. Now that the SDPI is a registered party, legal experts Onmanorama talked to said the EC did not have the power to de-register it.

It is Section 29A, which comes under Part-IV-A of the Representation of People's Act, 1951, that deals with the registration of political parties. "However, the entire Part-IV-A does not have any clause that will arm the EC with the power of de-registering a political party. In fact, the whole RP Act does not provide for any mechanism for de-registration of a political party," said Mridula Iype, a lawyer and legal researcher.

The EC had regularly sought such powers, especially to de-recognise a political party when its members indulge in hate speech but had been repeatedly denied. The EC has asked for such powers in 1994, 2004 and 2016. In 2016, the power to de-register parties was one of the reforms recommended by the then Chief Election Commissioner Nasim Zaidi.

The Supreme Court, in the Pravasai Bhilai Sanghatan versus Union of India case in 2014, had asked the Law Commission of India to deliberate on the issue of whether the EC should be given the power to de-recognise a political party if hate speech by any of its members is proved. However, in its 267th report, the commission was silent on the aspect.

Best way to ban SDPI

At the same time, a top official in the State Election Commission (SEC) said, the Supreme Court in the Indian National Congress versus Institute of Social Welfare case in 2002 had granted the EC de-registration powers under certain conditions. One, if it is revealed that a political party has obtained registration using fraudulent means. Two, if a political party fails to inform the EC of a change in its name or head office or address or office-bearers. Three, when a political party is declared illegal under any law like the Unlawful Activities Prevention) Act.

“The third condition of unlawful activities can be used against the SDPI. Many of the charges against the PFI like links to global terror outfits, dubious sources of funding and violence can be extended to the SDPI, too, as it is well known that the SDPI is the political wing of the PFI. Even so, the Election Commission, a constitutional body, has to be convinced of the charges,” Iype said.

SDPI flag.

Are PFI and SDPI family?

But before going into the merit of the charges, the EC will first have to dispassionately establish the SDPI's bond with the PFI.

Contrary to extreme communal outfits, the SDPI is an active participant in the democratic process. Even earlier, the SDPI had claimed that it was separate from the PFI. Post-ban, the efforts to show it has no blood links with the PFI parivar have become even more urgent. The SDPI leaders now argue that it has only a working arrangement with the PFI as it has with other minority, Dalit and marginalised political groups across the country like Lok Janshakti Party and Janata Dal (United).

This clearly is a survival tactic as it cannot be ignored that the SDPI was born out of the PFI's national political conference in 2009.

A rally by PFI members during the nationwide hartal against NIA crackdown on the outfit. Photo: Manorama

Complications of ban

Assuming that the EC finds the SDPI ban-worthy, de-recognising a political party that had won elections would throw up an unprecedented challenge. First of all, the EC has never had a chance to ban a political party. It has only disqualified individual representatives of people after a conviction by a court of law. J Jayalalitha or Lalu Prasad Yadav, for instance.

If the SDPI is de-registered, what will happen to the nearly 100 seats the party holds in local bodies in Kerala? In the last local body polls, the SDPI had won 95 seats -- 75 panchayat wards, 18 municipal wards, one block panchayat ward and one corporation division. Besides, seven independents backed by the SDPI had also won, taking the total SDPI-led tally to 102.

Will the EC call for immediate re-election in all these seats? “Re-elections are part of democracy, it is nothing extraordinary. There were innumerable instances in history when re-elections were called quickly after general/state/local body elections threw up hung verdicts,” the SEC official said.

Ridiculing the ban

Nonetheless, the spirit of the ban can also be mocked. “It has to be understood that the support for the SDPI is not limited to its card-carrying members. Its ideology has taken strong roots in certain areas of southern and central Kerala where the Muslim League is not a major presence,” a former MLA and Muslim League leader said. “What if independents, not overtly identified with the SDPI but with deep sympathy for its cause, recapture the seats during the re-election,” he asked.

This fear of turning the SDPI into a martyr will be a good reason to leave the SDPI alone for now.

Importance of a villain

Some observers argue that there are also sound political reasons for the Sangh Parivar to let the SDPI be. They say it is easy to whip up Hindu passions and engineer communal polarisation only when Muslim outfits perceived as extremist, like the SDPI, exist than in their absence.

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