Banning Party Name On Religious Lines Is Upto Parliament: Court

The Delhi High Court has said the issue raised in a petition seeking de-registration of political parties having names with caste, religious, ethnic or linguistic connotations and flags resembling the tricolour has to be decided by the Parliament as it is not in the domain of judiciary.

The court was hearing the petition filed by lawyer Ashwini Kumar Upadhyay.

"These are policy issues and they need to be dealt with by the Parliament. We don't make laws... If we decide this, we will be entering into the policy domain... Parliament will take a call on this. This is their domain," a bench of Acting Chief Justice Manmohan and Justice Mini Pushkarna said.

During the hearing, petitioner Upadhyay submitted that while individuals cannot seek vote in the name of religion or caste, political parties can be formed using religious connotations which cannot be permitted.

"I cannot say I am a Hindu, please vote for me. But a political party can be formed in the name of Hindu Samaj Party. That is the issue. Elections must be free not only from money power but also from caste power and communalism," he argued.

To this, the bench responded, "You are talking about the names of these parties. Name is not the clincher. You have to see the policies of the political parties. You will have to see how they are functioning. But all these issues have to be looked into by the Parliament. It is their domain. They make the laws, we don't".

The counsel representing the Centre, through the Ministry of Law and Justice, said it does not wish to file a response to the petition.

The bench listed the matter for further hearing on May 7, 2024.

The high court had earlier issued notice to the Centre and the Election Commission of India and granted them time to file response to the public interest litigation.

Mr Upadhyay has contended that the use of names with religious connotations or symbols similar to the national flag or emblem might prejudicially affect the poll prospects of a candidate and would amount to a corrupt practice under the Representation of the People Act (RPA), 1951.

"Review the political parties, registered with caste, religious, ethnic or linguistic connotations and ensure that they are not using a flag, similar to the national flag, and de-register them if they fail to change it within three months," the plea has said.

The petition said such a step will help ensure free and fair elections.

It has referred to political parties such as Hindu Sena, All India Majlis-e-Ittehadul Muslimeen and Indian Union Muslim League as examples of names with religious connotations and said this was "against the spirit" of the RPA and the Model Code of Conduct.

"In addition, there are many political parties including the Indian National Congress, which use a flag similar to the national flag, which is also against the spirit of the RPA," it said.

In its reply filed in 2019, the Election Commission had said that in 2005 it took a policy decision not to register any political party having a name with religious connotations and thereafter, no such party has been registered.

However, any such party registered before 2005 will not lose its registration for having a name with a religious connotation, the poll panel had said.

The EC had said any pre-2005 party cannot be de-registered for having a name with a political connotation and the issue of use of the national flag as a symbol by the Indian National Congress has already been decided by the Supreme Court, which had observed that the party has been using it for long.

Regarding INC having a flag resembling the tricolour, the poll panel said, "Particulars regarding flags are not a relevant factor to be furnished by a political party for registration."

"The present petition is devoid of merits and liable to be dismissed," the poll panel had said in its affidavit.

The EC had also said it has separately instructed all recognised parties to take note of the Supreme Court direction not to seek votes on the basis of religion or caste and to ensure its strict compliance. Seeking votes on the basis of religion or caste will also amount to violation of the Model Code of Conduct, it said.

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