Explained | PFI Banned, But Its Political Wing SDPI Isn't: How Are Bans Imposed?

While the UAPA is the most swift way for the Centre to ban an outfit, that too can be challenged.

In light of the central government's ban on the Popular Front of India (PFI) under the Unlawful Activities (Prevention) Act (UAPA), questions have been raised about how its political wing, the Social Democratic Party of India (SDPI), escaped the ban.

A senior member of the Karnataka BJP had said that since the SDPI is a recognised political party, any punitive action against it will have to be initiated by the Election Commission of India (ECI).

"The Centre has to take the opinion of the Election Commission," former minister K S Eshwarappa had stated.

Does the ECI have any powers to ban a political party or recommend a ban? If not, which institution has that power? And what can the ECI, the constitutional body that conducts and regulates elections in the country, do about political parties?

UAPA is the Most Straightforward Way to Ban a Party

Sanjay Hegde, a senior advocate at the Supreme Court of India, told The Quint that the political parties can be banned swiftly by the central government under the UAPA.

The act defines "association" as "any combination or body of individuals"; and according to Section 3 of the same, if the central government "is of opinion that any association is, or has become, an unlawful association," it can then declare that association to be unlawful.

Since an association is defined as "any combination or body of individuals," and a political party is literally that, political parties can, therefore, be banned under Section 3 of the UAPA.

That is what the government did with the PFI as well, that is, it designated the latter as an "unlawful organisation" under Section 3.

The UAPA can be used by courts to ban organisations as well. After the demolition of the Babri Masjid in 1992, in Dr Rajendra Prasad Agarwal vs Union Of India And Another case, the Allahabad High Court banned the Rashtriya Swayamsevak Sangh (RSS) "in exercise of the powers conferred by sub-section (1) of Section 3 of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967)," by which the central government declared the RSS "to be an unlawful association."

A similar ban was slapped on the Jamaat-e-Islami Hind. Both bans were revoked, with the former's after just six months by a tribunal headed by former High Court judge, Justice P K Bahri, which found the ban "unjustified." What then, is the role of a tribunal?

The Role of the UAPA Tribunal

The procedure to designate an association as unlawful does not end with the central government's order, Hegde explains. According to Section 4 of the UAPA, after the Centre's order, its notification must reach a "tribunal" within 30 days to judge "whether or not there is sufficient cause" for the ban.

The tribunal consists of only one person, which, as clearly directed by the act, is "a Judge of a High Court." It also gives the association in question a chance to defend itself within 30 days on why it should not be deemed unlawfu by the government.

After this, the tribunal "shall decide whether or not there is sufficient cause for declaring the association to be unlawful and make, as expeditiously as possible and in any case within a period of six months from the date of the issue of the notification."

What are the Election Commission's Powers?

Contrary to what KS Eshwarappa said (mentioned above), the Election Commission of India cannot ban a party.

The ECI's powers revolve around the Representation of the People Act (1951), Section 29A of which reads that the body, after considering a number of particular factors, "shall decide either to register the association or body as a political party or not so to register it."

The act does not give the ECI the power to even deregister a party, forget recommending or imposing a ban. Regarding the same, N Gopalaswami, former Chief Election Commissioner of India, told The Hindu that "over the last two decades, the ECI has gone to the Government of India several times over with a bouquet of proposals which include amendments to Section 29A of the Representation of the People Act of 1951, but there has been no progress in this regard."

The ECI can only de-list political parties or declare them as inactive, as it has done to 537 parties in the last five months. In fact, last month, the ECI ordered the delisting of 86 registered but unrecognised political parties (RUPPs - Registered Unrecognised Political Parties) and declared 253 others "inactive".

Its statement read, "these 253 [parties] have been declared inactive, as they have not responded to the letter/notice delivered to them and have not contested a single election either to the General Assembly of a State or the Parliament Election 2014 and 2019."

Note that the ECI never says that it is "deregistering" a party. It can only, as stated above, delist political parties that fail to comply with statutory requirements (such as contesting an election conducted by the ECI within five years of registration) or declare them as "inactive".