A bench headed by Chief Justice Dipak Misra, while asking whether the court could stop a person from propagating his political views, agreed to examine the constitutional validity of section 29A of the 1951 Representation of the People Act (RPA) which deals with the power of the poll panel to register a political party.
The bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, was informed by senior lawyers Siddharth Luthra and Sajan Poovayya that under the statutory schemes, the poll panel was empowered to register political parties, but it lacked the authority under the RPA to de-register them.
The bench, however, said it would be against the freedom of speech and expression to debar a convicted person from propagating political views through a party.
"Can a court restrain a convicted person from forming a political party? Can you stop a man from propagating his political views," the bench asked and fixed the plea for hearing after six weeks.
"Why is the Election Commission clothed with the power to merely register a political party, but not to de-register it, it asked while issuing notices to the Centre and the ECI on the plea filed by Ashwini Kumar Upadhyay, a lawyer and Delhi BJP spokesperson.
Mr Luthra, appearing for Mr Upadhyay, said if a person on conviction in a criminal case was barred from contesting elections, it would be incongruent to allow such person to form or head a political outfit.
The plea said convicted politicians, who are barred from contesting elections, can still run political parties and hold posts in them, besides deciding as to who will become a lawmaker.
The plea has sought a ban on convicted persons from forming a political party and becoming office bearers for the period they are disqualified under the election laws.
It has sought a direction to declare section 29A of the RPA as "arbitrary, irrational and ultra-vires" to the Constitution and to authorise the poll panel to register and de-register political.
The plea has also sought a direction to the ECI to frame guidelines to decriminalise the electoral system and ensure inner party democracy, as proposed by the National Commission to Review the Working of the Constitution (NCRWC).
The petition said currently, even a person who has been convicted for heinous crimes like murder, rape, smuggling, money laundering, loot, sedition, or dacoity, can form a political party and become its president or office bearers.
The petition named several top political leaders who have been convicted or have charges framed against them and were holding top political posts and "wielding political power."
It said the proliferation of political parties has become a major concern as Section 29A of the Representation of of the People Act, 1951, allows a small group of people to form a political party by making a very simple declaration.
"Presently, about 20 per cent of registered political parties contest election and remaining 80 per cent parties create excessive load on electoral system and public money," the plea said and sought implementation of the 1990 Goswami Committee on Electoral Reform.
The plea also claimed that in 2004, the poll panel had proposed amendment to Section 29A, authorising it to issue apt orders regulating the registration or de-registration of political parties.