New Delhi: The Election Commission of India (EC) does not have the power to bar Malegaon blasts accused Sadhvi Pragya Singh Thakur from contesting the Lok Sabha election, said EC sources.
While a special NIA court Wednesday declined to bar the Bharatiya Janata Party candidate from Bhopal from contesting elections, arguing that it does not have the power to do so, it said the decision should be taken by the EC.
“In the ongoing elections, this court does not have any legal powers to prohibit anyone from contesting elections. It is job of electoral officers to decide,” judge V.S. Padalkar said.
However, sources in the poll watchdog said even the EC cannot bar Thakur from contesting since she has not been convicted in the case.
“Under the law, disqualification arises only on conviction. EC cannot add any new disqualification,” a senior EC functionary told ThePrint.
Plea against Thakur
Nisar Bilal, the father of a victim who had died in the 2008 Malegaon terror attack, had moved the court last week, seeking a ban on Thakur’s candidature since her trial is still going on.
Last year, the court had rejected Thakur’s plea to discharge her from the case, instead framing terror and murder charges against her.
However, as per law, candidates cannot be barred from elections on the basis of charge sheets.
Just last year, the Supreme Court directed the Parliament to make a law to ensure that candidates with criminal antecedents don’t enter the electoral fray. However, the central government was of the view that the judiciary should not enter this domain since it pertains to law-making, which is the Parliament’s prerogative.
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‘EC cannot disqualify’
“The law is very clear in laying down the rules for disqualification of candidates,” said S.K. Mendiratta, former legal advisor to the EC.
“According to both Article 102 of the Constitution and the Representation of Peoples Act, EC cannot disqualify anyone on the basis of charges,” Mendiratta added.
Asked if Article 324 of the Constitution, which vests the “superintendence, direction and control of elections” with EC, can be invoked to disqualify Thakur, Mendiratta replied in the negative.
“Again, the law is very clear that Article 324 can be invoked in areas where the existing law is silent or vacuous,” he said. “But here that is not the case…The law has laid down the criteria for disqualification quite explicitly.”
The EC has, however, already acted against the firebrand Hindutva leader by filing an FIR against her for boasting about her role in the demolition of the Babri Masjid in Ayodhya.
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