ELECTORAL REFORM: A NEED OF THE HOUR

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Democracy disciplined and enlightened is the finest thing in the world. A democracy prejudiced, ignorant, superstitious, will land itself in chaos. – M K Gandhi

  1. INTRODUCTION:

Importance of Elections in the Indian Democracy

“Democracy is Government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular Government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions. It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more.”

These salutary words of Justice V.R Krishna Iyer in Mohinder Singh Gill v. Chief election Commissioner[3] encapsulate the vital importance of elections in the Indian democratic process.

The entire scheme of the Constitution is such that it ensures the sovereignty and integrity of the country as a republic and the democratic way of life by parliamentary institutions based on free and fair elections.[4]

The founding fathers of India opted for a Parliamentary democracy as the appropriate model for a large and diverse country like ours.  The general elections in India are a mammoth exercise, with over 700 million voters, and about one million polling booths in the country.  This awe inspiring effort is widely hailed as a model for the conduct of free and fair elections.

Parliamentary Democracy has been recognised as part of basic structure of the Constitution by a number of judgments passed by the Hon’ble Supreme Court of India.[5]

 Universal Adult Franchise

Leaders all over the world expressed their concerns when India became independent and declared that she would be a democracy. The naysayers apprehended that India did not have the capacity to adhere to the tenets of democracy given the huge disparity between the rich and poor and class divide, caste stratification and oppression, subjugation of women, widespread illiteracy, heterogeneous demographic conditions and most importantly an inherently feudal society. All these apprehensions have proved unfounded and the electoral process has become an instrument to strengthen the oppressed class. This has been possible as from the very beginning of its democratic life, India has treated every adult citizen as an equal voter by adopting the universal adult suffrage empowering everyone and implementing democracy in its truest sense. Article 326[6] of the Constitution of India provides for Universal Adult Suffrage that gives every adult citizen the right to vote without any discrimination. In stark contrast the older democracies and the ‘modern’ western nations took their own sweet time before giving the right to vote to everyone.  In United States of America, the non-whites citizens were given the right to vote in 1870[7] whereas women were given the right to vote only in 1920[8] i.e. 133 years after US Constitution was framed in 1787. In the United Kingdom, women were given the right to vote in 1928 whereas French women received it in 1945 – much after their male counterparts.

The Indian Constitution and Election Law

Giving due importance to the conduct of free and fair elections in a democratic set up, the founding fathers of the Constitution devoted a separate part, Part XV, containing Articles 324 to 329, in the Constitution dedicated to the electoral process. Article 324 provides for the setting up of an independent Election Commission of India that has been charged with the constitutional duty of ensuring free and fair elections to the Parliament and State Legislatures and to the offices of the President and the Vice-President of India.

 Right to Vote – Not a Constitutional/Fundamental Right

In India, the right to vote or contest elections is neither a fundamental right nor a common law right but is a purely statutory right governed by the statute/rules/regulations. This legal proposition has been reiterated by the Hon’ble Supreme Court in the 2013 PUCL’s case[9]. The legislative framework for elections to Parliament and the State Legislatures in India is provided by the Representation of the People Act, 1950 and the Representation of the People Act, 1951 along with the relevant Rules. The elections to the offices of the President and Vice-President of India are governed by the Presidential and Vice-Presidential Elections Act, 1952 along with the relevant Rules. The elections to the panchayati raj institutions and other institutions of local self-Government are conducted by the respective State Election Commissions and are governed by State specific laws.

 The Present State of Affairs of our Electoral Process

The Electoral System in India has been changing and evolving ever since its inception. India, because of its demographics, low literacy rate, caste dominance and other such factors is a unique entity to have adopted democratic form of government. Resultantly, it has its own set of problems with the present system of electoral system which require widespread and comprehensive changes in addition to that which has already happened. Presence of people with criminal charges and criminal background in the politics has become absolutely normal these days. This is a startling contrast to the initial decades of our democracy, when politicians used to be genuine mass leaders unlike some of the modern day goons who capture power through muscle and money power.

This poses before us the moot question: What went wrong with the system? 

The answer to the above question may be ascertained from the findings of Vohra Committee Report[10], which outlines the process of formation of any crime syndicate and its gradual transformation into an organized mafia racket involving politicians, elected representatives, ministers and bureaucrats. In this report the Director of the Intelligence Bureau (IB) categorically stated that the mafia is running a parallel government.[11]The main findings of the Vohra Committee may be encapsulated as, firstly, the mafia or the organized criminal syndicates have developed in different parts of India, and secondly, these syndicates are backed by state or government machinery.[12]

The National Commission to Review the Working of the Constitution in its Chapter 4 cites Vohra Committee Report and states that many politicians have become leaders of such mafia and crime syndicates.[13]

This marks the first official acceptance of the involvement of criminals in the political system. But nothing substantive has been done till now on the findings of this report. To understand the problem better one needs to analyze the present legal safeguards and their loop holes.

  1. EXISTING LEGAL PROVISIONS & LACUNAE

Eligibility of candidates with criminal cases pending against them

Rule 4A of the Conduct of Election Rules, 1961, prescribes that each candidate must file an affidavit (Form 26 appended to Conduct of Election Rules, 1961) regarding (i) cases, if any, in which the candidate has been accused of any offence punishable with imprisonment for two years or more in a pending case in which charges have been framed by the court, and (ii) cases of conviction for an offence other than any of the offences mentioned in Section 8 ofRepresentation of the People Act, 1951, and sentenced to imprisonment for one year or more.[14]

Pursuant to the order of the  Supreme Court in the 2003 PUCL’s case[15], the Election Commission on March 27, 2003, has issued an order that  candidates must file an additional affidavit stating (i) information relating to all pending cases in which cognizance has been taken by a Court, (ii) assets and liabilities, and (iii) educational qualifications. The affidavit is given in a form prescribed by the Election Commission of India[16].

Section 8 of the Representation of the People Act, 1951, provides for disqualification of candidates from contesting an election on conviction by a Court of Law[17].  In subsection (1), it lists certain crimes and stipulates a disqualification period of six years from the date of conviction[18]. In subsection (2) it lists a different set of crimes and provides for the candidate to be disqualified from the date of conviction and for a period of six years since his release. In Sub Section (3), it provides that any candidate convicted for a crime for which the minimum imprisonment is two years shall also be disqualified from the date of conviction and will continue to be disqualified for six additional years after his release.[19]

Section 125A[20] of the R.P. Act, 1951 prescribes penalties for withholding or providing incorrect information on Form 26, which attracts imprisonment of up to six months, or fine, or both.[21] In order to strengthen the disclosure provision, the said provision may be amended to provide that if any complaint is filed against a candidate regarding false statement in his affidavit within a period of 30 days from the date of declaration of the election, the Returning Officer (RO) be duty bound to take proper follow up action. Alternatively, such complaints  be sent directly to the Magistrate Court.[22]

Loopholes in Section 8

The existing legal provisions under Section 8 of the People’s Representation Act of 1951 has given rise to a rather farcical situation where a person convicted for an offence under Sub-Section (1) and sentenced for a period exceeding six years can contest an election even while serving the sentence of imprisonment because his or her disqualification ceases to operate at the expiry of six years.[23] The Chief Election Commissioner had written a letter to the Prime Minister bringing his attention to this problem by illustrating the case of a rapist, convicted and sentenced to 10 years imprisonment, being disqualified only for six years under sub-section (1) and being free to contest elections, even while in prison serving the last four years of his sentence.[24]

Another loophole is that, Section 8-1(g) of the Representation Of People’s Act, 1951, clearly states that a convicted person would be disqualified from the house for a period of six years but Section 8 (4) of the same Act exempts the convicted person, ‘if they are sitting members’, to save them from disqualification and ban on contesting elections again if they have filed an appeal within three months of the judgement and the exemption stays in force until the court disposes the appeal. The Sub-Sections (1)[25],(2)[26] and (3) of Section 8 fail to serve their purpose.[27] Mukhtar Ansari was a sitting member of UP Assembly when he was convicted by the designated court for ten years under TADA and Arms Act, he had the legal right to challenge his conviction in the Supreme Court and remain a member of the house and contest election for many years till the final pendency of the case because of the loopholes in the Peoples Representation Act of 1951.[28] This becomes unfair to those found guilty of committing offences under Sections 8(2) and 8(3), who may be disqualified for a much longer period than those disqualified under Section 8(1), even though the offences under the ambit of Sections 8(2) and 8(3) are considered less grave than those mentioned in Section 8(1).[29] There is also no provision to charge people with serious and heinous crimes like murder, dacoity etc. from contesting elections.

Section 125A – a toothless deterrent from rendering false information

Another difficulty related to this Peoples Representation Act of 1951 is that any false information provided under section 125A is a punishable offence but has not been treated as disqualification under section 100 and corrupt practices under section (PUCL and Anr. v Union Of India[30]), stated by the learned Single Judge in the case Narayan Gunaji Sawant v Deepak Vasant Kesarker[31]. The rules regarding the above mentioned section are not stringent enough.

Hate Speeches – unaddressed till date

One of the other major problems plaguing the electoral system was exposed by the decision of the Hon’ble Supreme Court in Pravasi Bhalai Sangatha v. Union of India & Ors.[32] which noted the menace of hate speeches by political/social leaders to divide the population on religion, region, caste and sectarian lines. The Court noted that the term ‘hate speech’ has not been defined and the Election Commission has not been vested with power to punish “hate speeches” by political parties. The Hon’ble Supreme Court directed the Law Commission of India to look into the matter and formulate necessary legislative instrument to empower the Election Commissioner to censure Political Parties for such hate speeches.[33]

This has not been acted upon by the Commission or the Governments till date. This is an essential reform suggested by the Hon’ble Supreme Court keeping in mind that the polarization of electoral process on the religious, caste and other such lines is not only detrimental for a free and fair elections but also destroys the basic fabric of the society.

  • RECOMMENDATIONS AND CHANGES:

Law Commission of India Report on Reform of the Electoral Laws, 1999

One of the most important suggestions of this Commission was that a pre-election front/coalition of political parties should be treated as “political party” for the purposes of the Representation of Peoples Act, 1951 so that all the laws and procedure can be applied to them with same vigor and force. There were other elaborate recommendations with respect to strengthening the internal democracy that is desired even today. The Law Commission of India Report on Reform of the Electoral Laws, 1999, suggested that an amendment be made to the Representation of the People Act, 1951, to insert a new section 4A after section 4 to make declaration of assets and criminal cases pending against the candidate, part and parcel of the qualifications necessary for membership to the House of the People.[34]

National Commission to Review the Working of the Constitution, 2002

In Chapter 4 of its Report, the National Commission to Review the Working of the Constitution proposed several measures.

Firstly, it proposed that Section 8 of the Representation of the People Act, 1951, be amended such that a candidate accused of an offence punishable by imprisonment of 5 years or more, be disqualified for a period of one year from the date the charges were framed against him, and that he shall remain disqualified unless cleared of charges during that one year period, until the conclusion of his trial.[35]

Secondly, it also recommended that in case a candidate is convicted by a court of law and sentenced to imprisonment of six months or more, he shall be disqualified during the period of the sentence and for six additional years after his release. Candidates violating this provision should be disqualified and political parties putting up such a candidate with knowledge of his antecedents should be de-recognized and de-registered[36].

Thirdly, the Commission has stated that any person convicted for heinous crime such as murder, rape, smuggling, dacoity, etc., should be permanently barred from contesting for a political office.[37]

Finally, the Commission proposed the establishment of Special Courts to decide cases against candidates within a period of six months or less. Potential candidates against whom charges are pending may take the matter to the Special Court, which can decide if a case exists against the candidate and justify the charges against him.  Special Courts would be constituted at the level of High Courts and decisions would be appealable only to the Supreme Court.[38]

2004 Recommendations of the Election Commission of India

In July, 2004, the Election Commission sent a set of 22 proposals on Electoral Reforms. The issue concerning electoral reforms was thereafter referred to the Department Related Parliamentary Standing Committee on Personnel, Public.

The Election Commission of India in its report recommended that an amendment should be made to Section125A of the R.P. Act, 1951 to provide for more stringent punishment for concealing or providing wrong information on Form 26 of Conduct of Election Rules, 1961 to minimum two years imprisonment and removing the alternative punishment of assessing a fine upon the candidate.[39] It also recommended that Form 26 be amended to include all items from the additional affidavit prescribed by the Election Commission, adding a column requiring candidates to disclose their annual declared income for tax purpose as well as their profession[40]

The Election Commission of India is of the view that Section 8 of the Representation of the People Act, 1951 should be amended to disqualify candidates involved or accused of an offence punishable by imprisonment of 5 years or more when trial is pending, given that the Court has framed charges against the person, in greater public interest.[41] In the report the Commission addressed the possibility that such a provision could be misused in the form of motivated cases by the ruling party and as a precaution suggested a compromise whereas only cases filed prior to six months before an election would lead to disqualification of a candidate.[42] In addition, the Commission proposed that Candidates found guilty by a Commission of Enquiry should stand disqualified.[43]

The Election Commission has suggested for the amendment of Rules 22 and 49 B of the Conduct of Election Rules, 1961, recommending that the ballot unit, in the column of name of candidates, after the last name there should be an option for ‘none of the above’ to enable a voter to reject all the candidates, if he chooses to do it.[44]

The counter view to this proposal is based on the doctrine that a person is presumed to be innocent until he is proved guilty by the highest court of the land. The Committee, however, recommended that proclaimed absconders under section 82 of the Criminal Procedure Code be disqualified from contesting polls.[45]

The report “Ethics in Governance” of the Second Administrative Reforms Commission concurred with the recommendation of the Election Commission.[46]

Recommendations of the Law Commission’s 155th Report, 2015

The Hon’ble Supreme Court in its judgment in Public Interest Foundation  & Ors. v. Union of India[47] requested the Law Commission of India to prepare a report on the electoral reforms with respect to de-criminalization of politics and filing of false affidavits by the candidates. The Law Commission, in compliance with the order of the Hon’ble Supreme Court prepared and submitted the 244th Report on Electoral Reforms on 24th February, 2014; but the same was not acted upon by the Parliament. Later the Law Commission under the Chairmanship of Justice A.P. Shah submitted the 255th Report[48] of the Law Commission on Electoral Reforms, 2015. Inter alia the Commission in its 255th Report recommended the following:

Election Finance

Election funding and transparency regarding election funding has been an old concern and the same has been adequately dealt with by the Law Commission’ 255th Report. Section 77 of the RPA, regulating the election expenses incurred or authorized by candidates or their election agents, currently extends from the date of nomination to the date of declaration of results. The Report seeks to extend the same, by proposing amendment to section 77(1), from the date of notification of the elections to the date of declaration of results.[49]

The Law Commission also calls for insertion of a new Section 77A to require candidates or their election agents to maintain an account and disclose the particulars (viz. names, addresses and PAN card numbers of donors and amounts contributed of) w.r.t.

  1. any individual contribution received by them from any person or company, not being a Government company, and
  2. any contribution by the political party from the date of notification of elections, which have to be made by the party by a crossed account payee cheque or draft or bank transfer.[50]

The Law Commission’s report also calls for the amendment of Section 182(1) of the Companies Act, 2013 so that any resolution authorizing the company to make any donation to the political parties should be passed in an AGM rather than a meeting of Board of Directors. This will not only help in bringing in more transparency, but will also bring in accountability to the entire electoral process.[51]

The Report suggests for addition of a new section 78A requiring the District Election Officer to publicly make available, on the website or on file for public inspection on payment of prescribed fee, the expenditure reports submitted by every contesting candidate under Section 78.[52]It was further recommended that the Political parties should be required to maintain and submit annual accounts, duly audited by a qualified and practicing chartered accountant from a panel of such accountants maintained for the purpose by the Comptroller and Auditor General, to the ECI every financial year and that these accounts should be available for public inspection.[53]

The Commission has further called for the disclosure provisions governing political parties to be amended, with the existing 29C being deleted and replaced by a new section 29D requiring all parties to:[54]

  1. mandatorily disclose all contributions in excess of Rs. 20,000;
  2. include aggregate contributions from a single donor amounting to Rs. 20,000 within its scope;
  • disclose the names, addresses and PAN card numbers (if applicable) of these donors along with the amount of each donation above Rs. 20,000;
  1. disclose such particulars even for contributions less than Rs. 20,000 if such contributions exceed Rs. 20 crore or 20 % of the party’s total contributions, whichever is less. Consequential amendments will need to be made to the Election Rules and the IT Act.

A new Section 29E was recommended to be inserted in the RPA requiring the ECI to make publicly available, on its website or on file for public inspection on payment of prescribed fee, all the contribution reports submitted by all political parties under Section 29D.[55] ECI’s transparency guidelines prescribing, first, a “statement of election expenditure” to be filed with it, by every party contesting an election within 75 days of the Assembly elections and 90 days of the General elections election; and second, expenses incurred by political parties to be usually in the form of cheque or draft, unless banking facilities are not easily available or the payment is made to a party functionary in lieu of salary or reimbursement, should be given a statutory basis vide a newly inserted Section 29 F.

For non-compliance of Section 77 and 77A, the candidate’s ban was recommended to be extended from the current three year period to a five year period, so that a defaulting candidate may be ineligible to contest at least the next elections.[56]

The Commission recommended that rather than denying tax benefit, actual penalties should be imposed for non-compliance of statutory provisions concerning election expenditure and funding. Further, ECI may levy a fine of up to Rs. 50 lakhs if its finds any particulars in the party’s statements as having been falsified.[57]

The Law Commission recommended insertion of a new Part IVB to the RPA with a new Section 29I, dealing with the “Regulation of Electoral Trusts”, and detailing provisions pertaining to their entitlement to accept contributions, disclosure obligations, and penal provisions (apart from losing income tax exemptions) so that the RPA could be amended in line with the changes already made to the IT Act and the ECI guidelines on “Electoral Trust Companies” of 2013.[58]

The Commission did not consider a system of complete state funding of elections or matching grants to be feasible, given the current condition of the country. Instead, it has supported the existing system of indirect in-kind subsidies, with section 78B of the RPA being possibly amended in the future to expand these subsidies.[59]

Regulation of Political Parties and Inner Party Democracy

The Commission recommends amending sub-section (5) of section 29A of the RPA requiring that an accompanying document to the memorandum/rules/ regulations with the party’s application under sub-section (1). This accompanying document, by whatever name it is called, should also contain a specific provision stating that the party would shun violence for political gains, and would avoid discrimination or distinction based on race, caste, creed, language or place of residence.[60]

The Commission has recommended addition of a new Chapter IVC dealing with the “Regulation of Political Parties” and incorporating the Commission’s previous recommendations in its 170th Report with certain modifications. In terms of its recommendations a proposal has been made to insert Sections 29J to 29Q, to govern internal democracy, party Constitutions, party organization, internal elections, candidate selection, voting procedures, and the ECI’s power to de-register a party in certain cases of non-compliance.

Another section, Section 29R has been recommended for insertion in the same Part, providing for the de-registration of a political party for failure to contest Parliamentary or State elections for ten consecutive years.[61]

Anti Defection Law in India

As far as the Tenth Schedule is concerned the Law Commission recommends that the power to look into the question of disqualification should rest with the President and Governor, who should act on the aid and advice of the ECI[62] and not with the Speaker, as it will safe guard the sanctity of the office of the Speaker.[63] This has become more important given the recent experience of Uttrakhand and Arunanchal Pradesh[64].

Strengthening the office of the Election Commission of India

The Law Commission has recommended that the office of the Election Commission should be made more independent and empowered. Article 324(5) of the Constitution should be amended to make Election Commissioner at par with the Chief Election Commissioner in terms of procedure for removal and appointment.[65]The appointment of all the Election Commissioners, including the CEC, should be made by the President in consultation with a three-member collegium or selection committee, consisting of the Prime Minister; the Leader of the Opposition of the Lok Sabha (or the leader of the largest opposition party in the LokSabha in terms of numerical strength); and the Chief Justice of India. Elevation of an Election Commissioner should be on the basis of seniority, unless the three member collegium/committee, for reasons to be recorded in writing, finds such Commissioner unfit. Amendments should be made in the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 to reflect this.[66]A new sub-clause (2A) should be added to Article 324 of the Constitution to provide for a separate independent and permanent Secretariat for the ECI along the lines of the Lok Sabha/Rajya Sabha Secretariats under Article 98 of the Constitution. This will further improve the independence of the ECI.[67]

Opinion Polls

The Law Commission has take note of the fact that Section 126(1)(b) of the RPA, which prohibits the display of any election matter forty-eight hours before polling begins, is limited to display by means of “cinematograph, television or other similar apparatus”; and does not deal with the independence and robustness of the opinion polls themselves. In light thereof, the Commission has recommended that Section 126(1)(b) be amended to prevent the publication, publicity, or dissemination of any election matter by print or electronic media.[68] The Commission has further recommended that Section 126(1)(b) should also provide for cognizance being taken only on the basis of a complaint made by order of, or under authority from, the ECI or the Chief Electoral Officer of the State.[69]

Restriction on Government Sponsored Advertisements

The Commission recommends regulating and restricting government sponsored advertisements by placing a blanket ban on such practices six months prior to the dissolution of Legislature.[70]

Restriction on the Number of Seats from which a Candidate May Contest

The Commission recommends, to avoid multiplicity of electoral process on same seat twice, an amendment of Section 33(7) of the RPA to restrict every candidate to contest from only one seat as opposed to present provision that allows people to contest from two seats.[71]

  1. SUPREME COURT MANDATED REFORMS OF THE ELECTORAL PROCESS

The Supreme Court of India being the interpreter and custodian of the Constitution, a Court of Record and above all the highest Court of the land, has on several occasions initiated several electoral reforms while on other occasions has directed for such reforms.

Voters’ right to know about the candidates

In Indira Gandhi v. Raj Narian[72] the Hon’ble Court observed that free exercise of franchise is essential postulate of democracy and part of basic structure. In T.N. Seshan, CEC v. Union of India,[73] Supreme Court observed that the right to know the bio-data of a candidate is the foundation of democracy, as it is important for the electorate to make an informed choice. This question was finally decided and laid down by the Hon’ble Supreme Court in Union of India v. Association for Democratic Reform,[74]wherein the Court adjudicated upon the following issue:

“In a nation wedded to republican and democratic form of government, where election as a Member of Parliament or as a Member of Legislative Assembly is of utmost importance for governance of the country, whether, before casting votes, voters have a right to know relevant particulars of their candidates?”

Post this judgment answering the issue in the affirmative, the Government amended the Representation of People Act to bring in Section 33A[75] and Section 33B[76] .

Lily Thomas’ case and disqualification on conviction

The Supreme Court on 10th July, 2013 passed a landmark judgment, in Lily Thomas v. Union of India,[77] which changed the face of electoral politics for ever. The judgment in Lily Thomas (Supra) laid down that the disqualification of being convicted of a criminal offence would not only operate vis-à-vis a candidate to the elections, but will also apply to the sitting members of the Legislature, therefore as soon as a sitting member of the House is convicted of any criminal offence he becomes disqualified to hold the seat. Earlier Section 8(4) of the Representation of Peoples Act, 1951 protected the sitting member against such disqualifications, but the Court held that since in the Constitution there has been no classification made between the grounds for disqualification of a candidate and a sitting member, therefore the Parliament cannot make such arbitrary and artificial classification vide Section 8(4) of the Act to protect the sitting member against such disqualification. The petitioners had based their entire contention on the foundation that the opening words of Article 102 and Article 191: “A person shall be disqualified for being chosen as, and for being, a member of…”, clearly suggest that both these Articles do not distinguish between the person contesting for election and a member of the concerned legislature as far as the grounds for disqualifications are concerned. Hon’ble Supreme Court agreed with this interpretation of the Articles, endorsing its earlier judgment in Election Commission of India v. Saka Venkata Rao[78]. It concluded that the power to enact law regarding disqualification is given to Parliament through Article 102 (1)(e) and Article 191 (1)(e), and both these Articles in their starting words make it clear that there is to be no difference between sitting members and person contesting as far as the procedure and ground for disqualification is concerned. Therefore, Parliament lacks the power to enact any laws on disqualification that differentiates between sitting member and person contesting; thus as a result Parliament lacks power to legislate Section 8(4) of the Act.

In light of this judgment, as soon as a sitting member stands convicted for an offence, he stands disqualified to hold his seat despite the fact that he has appealed against the order of conviction.[79] It is as a consequence of this judgment that many prominent politicians have to stay out of election by reasons of being convicted in the recent past.

The Hon’ble Court has also provided for a remedy for the sitting members by stating that even after conviction, if a sitting member wants to continue, he may approach the Appellate Court for stay of conviction and if such an order is obtained he may continue; as it has been earlier held by the Hon’ble Court in Navjot Singh Siddhu v. State of Punjab & Anr.[80], relying on the incidental power vested with the appellate court to stay the conviction under Section 389(1) of the Code of Criminal Procedure, 1973.

The Hon’ble Court has also stated that the operation of this judgment would be prospective and the sitting members who have been convicted before this judgment would still be subject to Section 8(4) of the Act. For this the Hon’ble Court relied on the doctrine of prospective overruling in I.C. Golkhnath & Ors. v. State of Punjab & Anr.,[81] and Harla v. State of Rajasthan,[82] where it was held that to penalize anyone using a law of which he is not aware at the time of committing the action, will be against the principles of natural justice.

Office of Profit

The expression “office of profit” has not been defined in the Constitution or in the Representation of the People Act, 1951. It is for the Courts to explain the significance and meaning of this concept. Over the years, courts have decided this issue in the context of specific factual situations.[83]  Thus, the final interpretation and decision whether a person is disqualified or not rests with the Courts and not with Parliament.

A Constitution Bench of the Supreme Court in Guru Gobind Basu vs Sankari Prasad Ghosal & others[84], ruled that the decisive test for determining whether a person holds any office of profit under the Government is the test of appointment. There are several factors that enter into the determination of this question such as: appointing authority; the authority vested with the power to terminate the appointment; the authority that determines the remuneration; the source from which the remuneration is paid; the authority vested with the power to control the manner in which the duties of the office are discharged and to give protection on that behalf.

The Supreme Court has further held that it is not necessary that all these factors must co-exist. The court also held that stress on one factor or the other would depend on the facts of each case. In other words, it is only when the Joint Committee scrutinizes the composition and character of office held by the 40-odd MPs facing threat of disqualification and gives a report that a comprehensive bill for amending the Parliament (Prevention of Disqualification) Act, 1959, can be brought in.

Since the Election Commission of India (while recommending the disqualification of Jaya Bachchan from the Rajya Sabha) opined that any post, even if held in an advisory capacity, was an office of profit, unless the facts of each case, of the 40-odd MPs, are carefully gone into by the Joint Committee, a comprehensive legislation may not be successful. The opinion of the Law Commission of India on this aspect may also be a guiding factor. Finally since the judgment rendered in Jaya Bachchan v. Union of India,[85] it is well settled that where the office carries with it certain emoluments or the order of appointment states that the person appointed is entitled to certain emoluments, then it will be an office of profit, even if the holder of the office chooses not to receive/draw such emoluments. What is relevant is whether pecuniary gain is “receivable” in regard to the office and not whether pecuniary gain is, in fact, received or received negligibly.

Right not to vote – ‘NOTA’ option

The Hon’ble Supreme Court in People’s Union for Civil Liberties v. Union of India[86]recognized the right to register a “no vote” and introduced NOTA. The Court held that in order to protect the right in terms of Section 79(d) and Rule 49- O, viz., “right not to vote”, it was competent to issue directions that secrecy of a voter who decides not to cast his vote has to be protected in the same manner as the Statute has protected the right of a voter who decides to cast his vote in favour of a candidate. The Court also justified giving such direction to give effect to protect the citizens’ Fundamental Right of expression guaranteed under Article 19(1)(a) and to avoid any discrimination by directing the Election Commission to provide NOTA button in the EVMs. NOTA was thereafter used for the first time in assembly elections of Delhi, Rajasthan, Madhya Pradesh, Chattisgarh and Mizoram.

Recently in Abhiram Singh v. C.D. Commachaen (Dead) by Lrs & Ors.,[87]  the Hon’ble Supreme Court held that the appeal to vote cannot be based on caste or religious lines.

  1. CONCLUSION

In recent times the declaration of elections has become an indicator that the narrative is about to change from relevant issues to religious and caste lines. This is a recurring phenomenon and has damaged the society beyond imagination. In such a scenario it was a must for the government to have implemented the mandate expressed by the Supreme Court in Pravasi Bhalai (Supra) but unfortunately nothing has been done so far and as a result the biggest festival of democracy marks with the polarization of society.

The government has not yet implemented the recommendations of the Law Commission (255th Report Supra) with respect to the funding of the political parties. The problem of transparency and control of funding and expenses in election has become a menace. This not only helps people with money power to manage and manipulate elections, but also pushes successful candidates to indulge in corrupt practices post elections to recover the money they have thus spent. The government so formed only takes forward the agenda of the select few, who have the capacity to finance their elections. Further lack of transparency denies the electorate a chance to make a free and informed choice.

It is a common practice, mostly by senior leaders, to contest from two seats and thereafter, forfeit one seat. The Commission (255th Report Supra) has recommended the removal of this practice, as it leads to multiple elections for the same constituencies. This leads to unnecessary expenditure and wastage of the already constrained resources of the State.

The Chief Information Commission[88] has already ordered that Political Parties should come under the purview of RTI, but the matter is pending before the Supreme Court and all the political parties are unanimously against this order. This objection is beyond reasonable comprehension of the common citizen that in a country where all public functionaries are within the ambit of RTI, why should political parties, who are the pivot to all the varied democratic institutions, stay outside the purview of RTI?

It is about time that political parties be brought at par with corporate bodies in terms of internal governance and financial matters. We find tat the majority of corporate entities of the world’s largest democracies are run in the most undemocratic and arbitrary fashion by the will of one person or a family. Political Parties should be annually audited by either the CAG or the auditors appointed by the CAG. In this regard the Election Commission should also be empowered further so that it can take necessary actions even when elections are not underway, for this it is necessary to provide them with permanent secretariat and functionaries. It is important to note here that the Election Commission is not an ordinary institution but the custodian of the electoral process and therefore, it is necessary that it must have the power to punish for its contempt or contempt of the process of election. The confidence of the public in the electoral process is at the core of democracy and if this confidence is compromised then no law, no institution will be able to save it. In a recent case[89] on the day of counting the Leader of one of the parties who could not manage majority leveled serious allegation against the EVMs to be rigged in favor of a particular political party; this was done no doubt, as a desperate measure, only to build a political narrative against the party winning the election but at the same time it sought to degrade the the sanctity of the entire electoral process of the nation.

The latest suggestion by the Hon’ble Prime Minister, Shri Narendra Modi about holding one time election for both State and Union Legislatures to reduce cost and smooth functioning and policy formation independent of electoral pressure, is a bold and laudable one but requires deep research, analysis and debate before we move forward in that direction.

With a view to cleanse political funding and decriminalize politics, the Election Commission (EC) is working towards a comprehensive review of the election laws. Chief Election Commissioner (CEC) Mr. Nasim Zaidi has indicated that the poll panel was eagerly awaiting the government’s response on its slew of proposals to decriminalize politics and cleanse political funding.[90]

It is time for the Political establishment to recognize the loopholes and lacunae plaguing our electoral process and take substantive measures to address them so as to achieve truly free and fair elections which reflects the will of its citizens. For, only free and fair elections can guarantee the growth of a healthy democracy in the country, for it forms the heart and soul of the parliamentary system. As has been stated by the Supreme Court in Manoj Narula v. Union of India[91], for democracy to survive, it is fundamental that the best available men should be chosen as the people’s representatives for the proper governance of the country and the same can be best achieved through men of high moral and ethical values who win the elections on a positive vote.

The wide ranging Electoral Reforms considered above will ensure accountability amongst both the Political Parties and representatives. It will ensure the principle of check and balance, which is essential for the success of any and every branch and arm of governance. The idea of entitlement and feudal loyalty which has dominated the electoral process for the last decades will be dealt a death blow. Capable, meritorious, ethical, conscientious and visionary leaders amongst the youth will enter politics to ensure India advances in an inclusive manner to new heights of stability and progress.

Let us hope that the present establishment has the foresight to achieve this salutary objective.

[1] Advocate-on-Record, Supreme Court of India, Partner FLAGG

[2] Advocate, Supreme Court of India, Senior Associate FLAGG

[3] (1978) 1 SCC 405 at 424 pr. 23

[4] People’s Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399, at page 444

[5] P.V Narasimha Rao v. State (CBI/SPE) (1998) 4 SCC 626 at 673 pr. 47; T.N Seshan, CEC of India v. Union of India (1995) 4 SCC 611 at 623 pr. 10

[6] Article 326: Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; but is to say, every person who is a citizen of India and who is not less than twenty one years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.

[7] vide the 15th Constitutional Amendment

[8] vide the 19th Constitutional Amendment

[9] PUCL v. Union of India (2013) 10 SCC 1, Raja Ram Pal v. Lok Sabha (2007) 3 SCC 184

[10]Vohra Committee was established by the Government by Order No.S/7937/SS(ISP)/93 on 9th July 1993 after the tragic 1993 Bombay Bomb Blast. It was clear that the blast was the work of underworld and allegation of state machinery being involved with elements of underworld came to light, therefore Government appointed this committee to look into the nexus of mafia and parts state machinery.

[11]Id.

[12]Id.

[13]The National Commission to Review the Working of the Constitution was set up vide Government Resolution dated 22 February, 2000.

[14] Background paper on electoral reforms prepared by the Core Committee on Electoral Reforms, Ministry of Law and Justice Department co sponsored by Election Commission of India, December 2010, pg no 7,8

[15] PUCL & Anr. V. Union of India & Ors. (2003) 4 SCC 399

[16] Id.

[17] Background paper on electoral reforms prepared by the Core Committee on Electoral Reforms, Ministry of Law and Justice Department co sponsored by Election Commission of India, December 2010, pg no 7,8.

[18] Section 8. Disqualification on conviction for certain offences

(1) A person convicted of an offence punishable under—

(a) section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171F (offence of undue influence or personation at an election) or sub-section (1) or sub-section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or sub-section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860); or

(b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for the preaching and practice of “untouchability”, and for the enforcement of any disability arising therefrom; or

(c) section 11 (offence of importing or exporting prohibited goods) of the Customs Act, 1962 (52 of 1962); or

(d) sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or

(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or

(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or

(g) section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or

(h) section 7 (offence of contravention of the provisions of sections 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or

(i) section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) or clause (a) of sub-section (2) of section 136 (offence of fraudulently defacing or fraudulently destroying any nomination paper) of this Act; 2[or] 3[(j) section 6 (offence of conversion of a place of worship) of the Places of Worship (Special Provisions) Act, 1991], 3[or] 4[(k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971);] 5[or] 5[(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or

(m) the Prevention of Corruption Act, 1988 (49 of 1988); or

(n) the Prevention of Terrorism Act, 2002 (15 of 2002),] 6[shall be disqualified, where the convicted person is sentenced to—

(i) only fine, for a period of six years from the date of such conviction;

(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]

(2) A person convicted for the contravention of—

(a) any law providing for the prevention of hoarding or profiteering; or

(b) any law relating to the adulteration of food or drugs; or

(c) any provisions of the Dowry Prohibition Act, 7[1961 (28 of 1961)], 8[***] and sentenced to imprisonment for not less than six months, shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

(3) A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.] 9[(4)] Notwithstanding anything 10[in sub-section (1), sub-section (2) or sub-section (3)] a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court. Explanation.—In this section—

(a) “law providing for the prevention of hoarding or profiteering” means any law, or any order, rule or notification having the force of law, providing for—

(i) the regulation of production or manufacture of any essential commodity;

(ii) the control of price at which any essential commodity may be brought or sold;

(iii) the regulation of acquisition, possession, storage, transport, distribution, disposal, use or consumption of any essential commodity;

(iv) the prohibition of the withholding from sale of any essential commodity ordinarily kept for sale;

(b) “drug” has the meaning assigned to it in the Drugs and Cosmetics Act, 1940 (23 of 1940);

(c) “essential commodity” has the meaning assigned to it in the Essential Commodities Act, 1955 (10 of 1955);

(d) “food” has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954 (37 of 1954).

 

[19] Id.

[20] 125A. Penalty for filing false affidavit, etc.—A candidate who himself or through his proposer, with intent to be elected in an election,—

(i) fails to furnish information relating to sub-section (1) of section 33A; or

(ii) gives false information which he knows or has reason to believe to be false; or

(iii) conceals any information, in his nomination paper delivered under sub-section (1) of section 33 or in his affidavit which is required to be delivered under sub-section (2) of section 33A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.

 

[21] Id.

[22]  Electoral Reforms suggested by Election Commission of India, By SanjeevSabhlok, May 25  2012, 5:30 p.m.  http://sabhlokcity.com/2012/05/electoral-reforms-proposed-by-election-commission-of-india-1/

[23]  Electoral Reform Bill: Too Little Too Late, by B Venkatesh Kumar ,Economic and Political weekly July   12 2007, pg 3105

[24] Id.

[25] A person convicted of an offence under section 376, 376A, 376B, 376C, 376D, 498 of the I.P.C, Section 11 of the Customs Act 1962, Section 10 to 12 of  prevention Of Corruption Act, Under Drugs and Narcotics Act etc.

[26] Person convicted of contravention of law providing for profiteering and hoarding, contravention of law providing for prohibition of dowry, etc.

[27] Ansari can retain seat, can contest elections, by Srawan Shukla, TNN, Times of India, 8th February 2003.

[28] Id.

[29]) http://www.thehindu.com/fline/fl1826/18260870.htm, last accessed on 07.03.2017 at 8:30 P.M.

[30] ) AIR 2003 SC 2363

[31]) Bombay High court, 25th April 2011, 2011 Indlaw MUM 1235.

[32] (2014) 11 SCC 477

[33] The Court noted at page 490 pr. 28 “…The National Human Rights Commission would be well within its power if it decides to initiate suo-motu proceedings against the alleged authors of hate speech.

  1. However, in view of the fact that the Law Commission has undertaken the study as to whether the Election Commission should be conferred the power to de-recognise a political party disqualifying it or its members, if a party or its members commit the offences referred to hereinabove, we request the Law Commission to also examine the issues raised herein thoroughly and also to consider, if it deems proper, defining the expression “hate speech” and make recommendations to the Parliament to strengthen the Election Commission to curb the menace of “hate speeches” irrespective of whenever made.”

[34] Background paper on electoral reforms prepared by the core committee on electoral reforms, ministry of law and justice department co sponsored by election commission of India, December 2010.pg no 8

[35] Background paper on electoral reforms prepared by the Core Committee on Electoral Reforms, Ministry of Law and Justice Department co sponsored by Election Commission of India, December 2010, pg no 8

[36] id.

[37]) id.

[38] Article by Public Interest foundation, last accessed on 07.03.2017 at 3:30 P.M. http://www.publicinterestfoundation.com/index.php?option=com_content&view=article&id=61&Itemid=80

[39]T. S. Krishnamurthy, Chief Election Commissioner of India, D.o.No.3/ER/2004, Published by publication division, Election Commission Of India, Dated: 5th July 2004, www.eci.gov.in

[40] id.

[41] id.

[42] id.

[43] T. S. Krishnamurthy, chief Election Commissioner of India, D.o.No.3/ER/2004, Published by publication division, Election Commission Of India, Dated: 5th July 2004, www.eci.gov.in

[44] ) T. S. Krishnamurthy, chief Election Commissioner of India, D.o.No.3/ER/2004, Published by publication division, Election Commission Of India, Dated: 5th July 2004, www.eci.gov.in.

[45] ) ADR new Recommendations for Electoral Reforms to Ministry Of Law and justice department of India and Election Commission of India, by ADR, last accessed on 07.03.2017 at, 7:30 P.M.

[46])Article by Public Interest foundation, last accessed on 07.03.2017 at 3:30 P.M. http://www.publicinterestfoundation.com/index.php?option=com_content&view=article&id=61&Itemid=80

[47] (2014) 13 SCC 616

[48]http://lawcommissionofindia.nic.in/reports/Report255.pdflast accessed on 07.03.2017 at 05:00pm

[49]Supra Note 36 Para 2.31(a)1

[50]Id Para 2.31(b)3

[51]Id

[52]Id Para 2.31(b)5

[53]Id Para 2.31(b)6

[54]Id Para 2.31(b)7

[55]Id Para 2.31(b)8

[56]Id Para 2.31(c)10

[57]Id Para 2.31(c)11

[58]Id Para 2.31(c)13

[59]Id Para 2.31(d)1-4

[60]Id Para 3.17.4, 1

[61]Id Para 3.17.4, 2

[62] There by effectively bound by the aid and advice of the ECI as a result of various judgments of the Hon’ble Supreme Court.

[63]Supra Note 36 Para 5.22

[64] Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1

[65]Id Para 6.9

[66]Id Para 6.12.5

[67]Id Para 6.19 & 6.20

[68]Id Para 8.27.1

[69]Id Para 8.27.2

[70]Id Para 14.6

[71]Id Para 15.4

[72] (1975) 2 SCC 159

[73] Supra Note 4

[74] (2002) 5 SCC 294

[75] 33A. Right to information.—

(1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) of section 33, also furnish the information as to whether—

(i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction;

(ii) he has been convicted of an offence [other than any offence referred to in sub-section (1) or sub-section (2), or covered in sub-section (3), of section 8] and sentenced to imprisonment for one year or more.

(2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1).

(3) The returning officer shall, as soon as may be after the furnishing of information to him under sub-section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under sub-section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered.

[76] 33B. Candidate to furnish information only under the Act and the rules.—Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election which is not required to be disclosed or furnished under this Act or the rules made thereunder.

[77] (2013) 7 SCC 653

[78] AIR 1953 SC 210.

[79] An exception has been carved out for the cases in which the Appellate Court  has stayed the conviction during the pendency of the appeal; but at the same time the Supreme Court has also cautioned that this should be done in rare cases.

[80] (2007) 2 SCC 574.

[81] AIR 1967 SC 1643.

[82] AIR 1951 SC 476.

[83] Since the judicial decisions gave varying interpretations depending upon the facts of each case, the best course appears to be to refer the matter to the Parliamentary Joint Committee to examine the individual cases of the 40-odd MPs. The committee could exempt the offices it thinks would attract disqualification under Article 102(1a) of the Constitution of India. That Parliament is competent to enact a law to remove a disqualification with retrospective effect is settled (See Kanta vs Menak Chandra 1970 SC 694 para 36 and Ibomcha vs Chandranani AIR 1977 SC 682).

[84]  AIR 1964 SC 254

[85] Writ Petition (Civil) No. 199/2006

[86] (2013) 10 SCC 1.

[87] Civil Appeal No. 37 of 1992

[88] Vide order dated June 3, 2016

[89] http://www.hindustantimes.com/assembly-elections/election-commission-rebuts-mayawati-s-complaint-of-evm-being-tampered-with/story-jLyZDHQItCQ2PilQ96R01L.html last accessed 12.03.2017 at 11:00 am

[90] http://www.newindianexpress.com/nation/2016/dec/03/poll-panel-pushes-for-electoral-reforms-1545307.html last accessed on 13.03.2017 at 12:40 am

[91] (2014) 9 SCC 1, at page 21

 

Authors-Purushottam Sharma Tripathi[1]& Abhishek Tripathi[2]

Pls drop us a mail at purushottam.st@gmail.com if you have any comments or have liked this article.

 

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