Nov 1, 2015

Petition for de-registration of AAP for Violation of Model Code of Conduct and the RP Act 1951

To:                                                                                                                           28-10-2015                         The Chief Election Commissioner

Election Commission of India

Nirvachan Sadan, Ashoka Road, New Delhi-110001

Subject: Violation of Model Code of Conduct and the RP Act 1951 by Aam Aadmi Party

Respected Sir,

1)    Petitioner is a law-abiding citizen of India and member of Supreme Court Bar Association. Besides practicing in law, petitioner is also a social worker, contributing his best to the development of the socially, economically and politically down trodden people of the country and promotes fraternity, unity and integrity. Petitioner was actively associated with RTI Movement and India Against Corruption Movement i.e. Janlokpal Movement and worked closely with many social activists including Gandhian Anna Hazare. Petitioner is one of the Founder Member of Aam Aadmi Party and had been National Council Member too. During the 2013 Delhi state election, petitioner was authorized signatory of AAP for election related matters. Presently Petitioner is Spokesperson of BJP Delhi.

2)    Before proceeding to state the immediate facts preceding the filing of the present petition, it is necessary to state the scheme of the Constitution of India under which elections are held.

3)    Preamble of Constitution declares the India, a Sovereign, Socialist, Secular, Democratic and Republic country. In order to constitute India into a Sovereign, Secular, Democratic and Republic country and to fulfill the constitutional objectives and keeping view of democratic processes, elections are held for constituting the Parliament, Assemblies and local bodies.

4)    Article 324 of the Constitution of India, inter-alia, provides for the constitution of Election Commission of India and State Election Commissions. The duty imposed upon ECI is to ensure free and fair election. Article 324 and the RP Act 1951 mandate ECI to issue notices and orders for violation of MCC.

5)    ECI have the power of civil court under Section 146 of the RP Act 1951. Section 8 clearly defines the disqualification on conviction for offences, Section 8A describes the disqualification on ground of corrupt practices, Section 123 defines Corrupt Practices and Section 125A provides for penalty for filing false affidavit.

6)    Hon’ble Supreme Court in its judgment dated 05-07-2013, Subramaniam Balaji Vs Government of Tamilanadu, has directed the ECI to frame guidelines with regard to the contents of election manifestos in consultation with all the recognized political parties.

7)    Upon receiving above directions of the Hon’ble Supreme Court, the ECI held a meeting with recognized national and state political parties for consultation with them in the matter and took note of their conflicting view in the matter. During consultations while some political parties supported the issuance of such guidelines, other were of the view that it’s their right and duty towards voters to make such offers and promises in manifestos in a healthy democratic polity. While the commission agrees in principle with the point of view that framing of manifestos is the right of political parties, it cannot overlook the undesirable impact of some of the promises and offers on the conduct of free and fair elections and maintaining level playing field for all parties and candidates.

8)    The constitution under article 324 mandates the ECI, to conduct elections inter-alia to the Parliament and the State Legislatures. Having due regard to above direction of the supreme court and after consultation with the political parties, the commission, in the interest of free and fair election, directed that political parties and candidates while releasing election manifestos for any election to the Parliament or State Legislatures, shall adhere to the following guidelines-

a.    The election manifesto shall not contain anything repugnant to ideals and principles enshrined in the constitution and further that it shall be consistent with the letter and spirit of other provisions of model code of conduct.

b.    The directive principles of state policy enshrined in the constitution enjoins upon state to frame various welfare measures for the citizens and therefore there can be no objection to promise of such welfare measures in election manifestos. However, political parties should avoid making those promises, which are likely to vitiate the purity of election process or exert undue influence on the voters in exercising their franchise.

c.    In the interest of transparency, level playing field and credibility of promises, it is expected that manifestos also reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirement for it. Trust of voters should be sought only on those promises, which are possible to be fulfilled.    

9)    A strong, effective, fair, impartial and deterrent  anti corruption bill named Janlokpal bill was drafted by former union law minister Shri Shanti Bhushan, former judge of Supreme Court Justice Santosh Hegde, Advocate Prashant Bhushan, RTI activist Mr. Arvind Kejriwal after wide consultation with prominent jurists, social activists, administrators and general public.

10)  The India Against Corruption Movement i.e. Janlokpal Movement was a series of demonstrations and protests across India intended to establish a strong, effective, fair, impartial and deterrent anti-corruption legislation and enforcement against perceived endemic of political corruption.  The Janlokpal movement was among the "Top 10 News Stories of 2011" by Time magazine.

11)  27-08-2011: After an extraordinary debate in upper house and lower house, the 'Sense of the House' was adopted with thumping of desks. Finance Minister made the 'Sense of the House' statement: "This House agrees in principle on the three issues (i) Citizen Charter (ii) Entire Bureaucracy to be under lokpal through an appropriate mechanism and (iii) Establishment of Lokayuktas in all states”,

12)  Prime Minister said: "Parliament has spoken, the will of Parliament is the will of people". After the 'Sense of the House', Finance Minister said "I do feel that on the basis of that, we can request Shri Anna Hazare to end indefinite fast so that the conflict between Civil Society, Parliament or Political Parties" ends. Setting tone for the debate, Finance Minister said-the country was at "Cross-Roads" and asked Lawmakers to give their serious and considered views on the "Important & Genuine"issues raised by Hazare. BJP, the main opposition party, gave "consent" to all the three issues (Lokpal, Lokayukta and Citizen Charter) under consideration of Upper House and Lower House.

13)  In the Loksabha, leader of the opposition Mrs. Sushma Swaraj said, "History has given us an opportunity, which we shouldn’t miss. Let us not get into technicalities. We should give this country an effective, strong, free, fair and impartial Lokpal." Leader of the opposition in the Rajyasabha Mr. Arun Jaitley said: “BJP finds considerable merit in Hazare's three demands, including covering entire bureaucracy and citizens' charter for public grievances under Lokpal and setting up Lokayuktas”.  Finance Minister noted that the Lokpal Bill could not be passed for 40 years despite legislations in this regard introduced eight times and admitted the "Lapse" of his party's governments.

14)  02-11-2011: Uttarakhand Assembly passed the Uttararakhand Lokayukta Bill 2011 after a marathon discussion, which brings in its net the post of the CM, Ministers, MLAs including Ex-MLA and government servants including IAS/IPS.

15)  03-11-2011: Team Anna members including Shri Arvind Kejriwal, Manish Sisodiya, Prashant Bhushan held a press conference and demanded central government to pass Uttarakhand Lokayukta Bill 2011 as Model Lokayukta Bill. In a joint statement, they said: “Uttarakhand Lokayukta Bill 2011 is cent per cent identical to Janlokal Bill”.

16)  19-09-2012: Shri Hazare and Kejriwal agreed that their differences regarding a role in politics were irreconcilable. Shri Kejriwal had support from senior Team Anna members like Prashant Bhushan and Shanti Bhushan. Petitioner also supported Shri Kejriwal.  

17)  02-10-2012: Shri Kejriwal announced the forming a political party. He intended the formal launch of Aam Aadmi Party on 26-11-2012, coinciding with the anniversary of India's adoption of its constitution in 1949. The party's name reflects the phrase Aam Aadmi, or "Common Man". Petitioner was also present during the announcement.

18)  26-11-2012: Aam Aadmi Party was formally launched and adopted its Constitution. National Council and National Executive were formed. Petitioner was the National Council member of Aam Aadmi Party. AAP proposed to introduce four primary policies i.e. Jan Lokpal Bill, Swaraj Bill, Right to Reject and Right to Recall.

19)  After being elected as Convener of AAP, Shri Arvind Kejriwal said, “AAP
want to reverse the way that the accountability of government operates and has taken an interpretation of the Gandhian concept of Swaraj as a tenet. It believes that through Janlokpal and Swaraj Bill, the AAP government will be directly accountable to the people. Janlokpal bill and Swaraj bill included in core agenda of AAP and both bills included in party’s vision document and constitution too.

20)  20-11-2013: AAP published its first manifesto for 5th assembly election of Delhi, promising implementation of the Janlokpal bill & Swaraj bill within 15 days if gets majority. Janlokpal bill was Item-1 and Swaraj bill was Item-2 of AAP Manifesto.

21)  26-12-2013: Shri Arvind Kejriwal took oath as Chief Minister of Delhi. After swearing in ceremony, he told that existing Delhi Lokayukta bill is “Toothless and ineffective” that’s why AAP government will pass Janlokpal bill within 15 days followed by Swaraj bill.

22)  03-02-2014: Delhi cabinet cleared Janlokpal Bill. Delhi CM formed six members committees chaired by Chief Secretary to fast track the Janlokpal bill. Committee reviewed the Uttarakhand Lokayukta Bill and Janlokpal Bill drafted by Justice Santosh Hegde, Shri Shanti Bhushan, Prashant Bhushan and Arvind Kejriwal.

23)  09-02-2014: A meeting of 25 Secretaries of Delhi from various departments took place to finalize the Swaraj bill drafted by former chief secretary of Madhya Pradesh Shri Sharat Chand Behar, Shri Shanti Bhushan, Prashant Bhushan and Shri Arvind Kejriwal.

24)  13-02-2014: Delhi Cabinet cleared Swaraj Bill. CM announced that his government will introduce Swaraj Bill in Delhi assembly immediately after passing Janlokpal bill.

25)  14-02-2014: Delhi government introduced Janlokpal Bill in the assembly; however, LG said that the government tabling the Bill without his consent would be "Unconstitutional". LG advised the Assembly Speaker not to allow the tabling of Janlokpal bill.  Consequently, Delhi CM with his Ministers resigned and Delhi placed under President's rule.

26)  31-01-2015: AAP released its "70 Point Manifesto”, a week before the 6th assembly election of Delhi and promised to pass Janlokpal Bill and Swaraj bill within 15 days if gets full majority. Janlokpal Bill is Item-1 and Swaraj Bill is Item-2 of AAP Manifesto.

27)  The 6th assembly election of Delhi was held on 7 February 2015. The Aam Aadmi Party scored a landslide victory by winning 67 of the 70 seats i.e. 96% majority in Delhi assembly. BJP was able to win only 3 seats and the Congress party drew a blank, with all its candidates defeated.

28)  14-02-2015: Shri Arvind Kejriwal took oath and became the Chief Minister of Delhi    for the second time. Six AAP MLAs also took oath with him. After swearing in ceremony, he gave a long speech and spoken on manifesto and priorities but avoided Janlokpal and Swaraj.

29)  15-04-2015: Petitioner requested Delhi CM to pass Janlokpal bill and Swaraj bill, as he promised in his manifesto then CM tweeted: “We are drafting Janlokpal bill”. It’s relevant to state here that Delhi Cabinet already passed them in 2014.

30)  15-08-2015: Petitioner again reminded Delhi CM about his promises to pass Janlokpal Bill and Swaraj Bill in Delhi, then Delhi CM again tweeted “Work under progress on Janlokpal” but kept silent on Swaraj bill.

31)  02-10-2015: Petitioner again requested Delhi CM to pass the Swaraj Bill and Janlokpal Bill or adopt Uttarakhand Lokayukta Bill 2011, which is cent per cent identical to Janlokapl bill.

32)  It is relevant to state that Delhi CM implemented Item-4 (Electricity bills to be reduced by half) and Item-9 (Free Water) of its manifesto within a week after taken oath although it is burden on public exchequer but not implementing Item-1 i.e. Janlokpal Bill and Item-2 i.e. Swaraj bill which requires only political will.

33)  It’s also necessary to state here that A white Cap was used by AAP leaders and workers during entire election campaign in 2013 and 2015. “Mujhe Chahiye Janlokpal” was written one side and “Mujhe Chahiye Swaraj” on other side.

Respected Sir, Petitioner begs to file the present petition inter-alia on the following grounds:

1.    Because Janlokpal and Swaraj Bill is core agenda of AAP’s Constitution, AAP’s Vision document and AAP’s Aims & Objectives, which present Delhi government is obliged to fulfill.

2.    Because Janlokpal is Item-1 and Swaraj Bill is Item-2 of AAP Manifesto 2015 and AAP Manifesto 2013 but despite the thumping 96% majority in Delhi assembly, both bills are not enacted into law.

3.    Because Delhi Cabinet passed, Janlokapl Bill on 03-02-2014 and Swaraj Bill on 13-02-2014 and both Bills are property of Assembly. There is no constitutional or legal impediment in passing them.

4.    Because during entire election campaign 2015 and 2013, AAP leaders including present Chief Minister of Delhi promised to pass Janlokpal and Swaraj Bill within 15 days if AAP get full majority but after coming to power, AAP government is conveniently ignoring both Bills.

5.    Because Delhi government got a historic 96% majority in assembly after promising Janlokpal Bill and Swaraj Bill but both Bills are not being passed deliberately. However, in similar lines of Janlokpal bill, Uttarakhand Assembly has passed Uttarakhand Lokayukta Bill 2011.

6.    Because Delhi government implemented Item-4 (Electricity bills) and Item-9 (Water) of AAP Manifesto 2015 within a week after forming the government although it is burden on public exchequer however not implementing Item-1 i.e. Janlokpal Bill, which will eradicate corruption and Item-2 i.e. Swaraj Bill, which will promote decentralization and transparency.

Dear Sir,It is the most respectfully prayed that Hon’ble CEC may be pleased to:

1.    Issue a notice to AAP regarding non-compliance of Item-1 i.e. Janlokpal Bill and Item-2 i.e. Swaraj Bill of AAP Manifesto, which is clearly violation of the Model Code of Conduct and the RP Act 1951.

2.    Deregister the Aam Aadmi Party in case of non-compliance of AAP Manifesto Item-1 i.e. Janlokpal Bill and Item-2 i.e. Swaraj Bill in letter and spirit within a specific time.

3.    Take all the necessary actions against the Aam Aadmi Party as per law of the land.

Thanks and Regards. Yours Sincerely

Ashwini Upadhyay

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