2. Important Electoral Reforms proposed
by the Election Commission
De-criminalization of politics –
Date on which proposal was made – 15th July, 1998.
Reiterated in November, 1999, July, 2004 and October, 2006.
• For preventing persons with criminal background from becoming legislators,
the Commission has made a proposal for disqualifying (from contesting
election) a person against whom charges have been framed by a Court for an
offence punishable by imprisonment of 5 years or more.
• Under the existing law (Section-8, ROP Act, 51) there is a disqualification once
a person is convicted and sentenced to imprisonment of two years or more (in
the case of certain offences mentioned in sub-sections (1) of Section-8,
conviction itself leads to disqualification, even without any sentence of
imprisonment).The Commission’s proposal is for disqualification even prior to
conviction, provided the court has framed charges.
• As a precaution against foisting false cases on the eve of election, it has been
suggested that only those cases in which charges are framed six months prior to
an election should be taken into account for that election.
3. The Commission is of the view that keeping a person, who is accused of serious
criminal charges and where the Court is prima facie satisfied about his
involvement in the crime and consequently framed charges, out of electoral
arena would be a reasonable restriction in greater public interests.There cannot
be any grievance on this. However, as a precaution against motivated cases by
the ruling party, it may be provided that only those cases which were filed prior
to six months before an election alone would lead to disqualification as
proposed. It is also suggested that persons found guilty by a Commission of
Enquiry should also stand disqualified from contesting elections. [The
provisions in the Jammu & Kashmir Representation of the PeopleAct are
relevant in this regard.]
The Patna High Court had passed an order that persons behind bars cannot contest
elections. On the basis of an application moved by the Election Commission,
this order was stayed by the Supreme Court with the observation that the High
Court could not have passed the order during the course of the election
process. However, the SLP (No. 9204-05/2004- ECIVs. Jan Chowkidar
(PeoplesWatch) & Ors.) is pending before the Supreme Court for final
disposal.
4. Amendment of law to make `paid news’ an electoral
offence
The Commission has been proposed amendment in the
Representation of PeopleAct, 1951, to provide therein that
publishing and abetting the publishing of `paid news’ for
furthering the prospect of election of any candidate or for
prejudicially affecting the prospect of election of any
candidate be made an electoral offence under chapter-III of
Part-VII of Representation of PeopleAct, 1951 with
punishment of a minimum of two years imprisonment.
Date of proposal – 3rd February, 2011.
5. Punishment for electoral offences to be enhanced-
· Undue influence and bribery at elections are electoral offences under
Sections 171B and 171C, respectively, of the IPC.These offences are
non-cognizable offences, with punishment provision of one year’s
imprisonment, or fine, or both.
· Under Section 171-G, publishing false statement in connection with
election with intent to affect the result of an election, is punishable with
fine only.
· Section 171 H provides that incurring or authorizing expenditure for
promoting
the election prospects of a candidate is an offence. However, punishment
for an
offence under this Section is a meager fine of Rs.500/-
·These punishments were provided as far back as in 1920. Considering the
gravity
of the offences under the aforesaid sections in the context of free and fair
elections, the punishments under all the four sections has been proposed to
be
enhanced and made cognizable.
Date of proposal – February, 1992
6. Compulsory maintenance of accounts by political parties and
audit thereof by agencies specified by the Election
Commission
The Commission considers that the political parties have a responsibility to
maintain proper accounts of their income and expenditure and get them
audited by agencies specified by the Commission annually.While making
this proposal in 1998, the Commission had mentioned that there was
strong need for transparency in the matter of collection of funds by the
political parties and also about the manner in which those funds are
expended by them.Although in an amendment made last year, vide the
Election and Other Related Laws (Amendment) Act, 2003, a provision
has been made regarding preparation of a report of contributions
received by political parties in excess of Rs.20,000/-, this is not
sufficient for ensuring transparency and accountability in the financial
management of political parties.Therefore, the political parties must be
required to publish their accounts (at least abridged version) annually
for information and scrutiny of the general public and all concerned, for
which purpose the maintenance of such accounts and their auditing to
ensure their accuracy is a pre-requisite.The Commission reiterates these
proposals with the modification that the auditing may be done by any
firm of auditors approved by the Comptroller and Auditor General.
The audited accounts should be available for information of the public.
7. Vidya Charan Shukla v.Purshottam Lal Kaushik
AIR 1981 SC 547
Election - disqualification
Section 100 of Representation of the People Act, 1951, Section
304 of Indian Penal Code, 1860 and Section 389 of Criminal
Procedure Code, 1973
Acquittal of appellant in appeal prior to pronouncement of
judgment by High Court in election petition
Acquittal had result of wiping out his disqualification as
completely and effectively as if disqualification did not exist at any
time including date of scrutiny of nomination papers
Held, nomination paper properly accepted by returning officer -
challenge to election of appellant on ground under Section 100 (1)
(d) (i) failed.
8. Vikram Anand v.Rakesh Singha
AIR 1995 HP 130
Whether the disqualification suffered by Respondent under subsection
(3) of Section 8 of the Act stood removed by the order granting bail to
him?
The Supreme Court had not expressed any opinion. However, after
examining the legal position, Court has come to the conclusion that
when the appellate Court passes an order of suspension of sentence
and/or release on bail of a convicted person, the order of his conviction
still remains in existence and the disqualification, suffered by him as a
result of conviction and sentence, for a period of not less than two years
as envisaged under Sub-section (3) of Section 8 of the Act, is not
automatically suspended and it continues to be in operation.The second
part of Sub-section (3) of Section 8 of the Act, provides for the period of
disqualification starting from the date of conviction till the expiry of six
years since the release of the convicted person. It will not affect the
actual sentence passed by the Court and the disqualification suffered by
him as provided in first part of Sub-sect ion (3) of Section 8 of the Act.
However, it might reduce the period of disqualification as provided in
the second part of the said section.
9. Bhanubhai M. Raval v.Union of India & Ors.
AIR 1991 Bom 91
If a member of the Pradesh Council of the UnionTerritory of Diu and Daman is
disqualified for being a member of the Pradesh Council on the ground of
conviction by a Criminal Court for an offence involving moral turpitude and
having been sentenced to imprisonment for not less than six months under
Clause 4 of the Daman and Diu (Administration) Regulation, 1987 read with
Section 11 of the Goa, Daman and DiuVillage Panchayat Regulation, 1962, the
mere filing of an appeal against the order of conviction does not arrest the
disqualification, which automatically commences on the date of conviction.A
likely order of acquittal that may be passed in favour of the member of the
Pradesh Council does not affect the factum of conviction.
Whether an appeal will eclipse or cloud the finality of the judgment under
appeal will depend upon variety of circumstances.The effect that can be
imputed to the filing of appeal is bound to differ according to the objects of the
legislation.The evident object of the Daman and Diu (Administration)
Regulation, 1987 is to give a clean and decent administration to the citizenry.
The Legislation relating to disqualification of members of elected bodies such as
Parliament and Legislatures cannot be imputed with the intention of allowing
the legislators of suspect character to be at the helms of the affairs of the State.
Law givers are, like the law expounders and the law interpreters, Ceasar's wife-
-must be above all suspicions.
10. Union of India v. Association for Democratic Reforms &
Anr.
AIR 2002 SC 2112
Voters right to know relevant particulars of their candidates, before casting
votes. Supreme Court has ample power to direct the commission to fill the
void, in absence of suitable legislation, covering the field underArticle 32, 141
and 142 of the Constitution .
Election commission directed to call for information on an affidavit by issuing
necessary order in exercise of its power underArticle 324 of the Constitution
from each candidate seeking election to Parliament or State Legislature as a
necessary part of his information on the following aspects: (1)Whether the
candidate is convicted/acquitted/discharged of any criminal offence in the past
and punished with imprisonment or fine (2) Prior to six months of filing
nomination, whether the candidate accused in any pending case of any offence
punishable with imprisonment for two years or more, and in which charge is
framed or cognizance is taken by the court of law, (3) the assets (immovable,
movable, bank balances etc.) of a candidate and of his/her spouse and that of
dependants, (4) Liabilities, if any, particularly whether there are any over dues
of any public financial institutions or Government dues, (5) Educational
qualification of the candidate.
11. People’s Union for Civil Liberties (PUCL) & Anr v.
Union of India & Anr.
AIR 2003 SC 2363
Representation of PeopleAct, 1951 - Sections 33A, 33B as amended by amendingAct
2002 - ConstitutionalValidity of Right to information of voter to know antecedents of
candidate
Supreme Court directing in "Union of IndiaVs.Association for Democratic Reforms"
that candidates to furnish information regarding involvement in criminal cases,
educational qualifications and assets and liabilities.
Amendment made inserting sections 33A and section 33B invalidating judicial decision
in so far as sections requiring information with regard to past convictions of candidates
and not offences cognizance of which have been taken by courts - Section 33B of
AmendmentAct requiring candidate to furnish information only underAct or Rule and
not information required under any judicial decision -Validity - Held that,Although
legislature can remove basis of a decision rendered by a competent court rendering that
decision ineffective but legislature has no power to ask instrumentalities of state to
disobey or disregard decisions given by courts - Section 33B providing that candidate to
furnish information only underAct or Rule and not under any judicial dictum, being
beyond legislative competence is illegal and constitutionally invalid, since voter has a
fundamental right underArticle 19(1) (A) to know antecedents of a candidate.
12. Lily Thomas v. Union of India & Ors.
2013 (8) SCALE 469
Whether, Petitioner rightly contended that Parliament lacked legislative powers to enact
Sub-section (4) of Section 8 of the Representation of the PeopleAct, 1951 and is
therefore ultra vires the Constitution?
Held,Articles 102(1)(e) and 191(1)(e) of the Constitution, contain the only source of
legislative power to lay down disqualifications for membership of either House of
Parliament and LegislativeAssembly or Legislative Council of a State .Articles 102(1) (e)
and 191(1)(e) of the Constitution would make it abundantly clear that Parliament is to
make one law for a person to be disqualified for being chosen as, and for being, a
member of either House of Parliament or LegislativeAssembly or Legislative Council of
the State. Seat of a member who becomes subject to any of the disqualifications
mentioned in Clause (1) will fall vacant on the date on which the member incurs the
disqualification and cannot await the decision of the President or the Governor, as the
case may be, underArticles 103 and 192 respectively of the Constitution. Sub-section (4)
of Section 8 of theAct which carves out a saving in the case of sitting members of
Parliament or State Legislature from the disqualifications under Sub-sections (1), (2) and
(3) of Section 8 of theAct or which defers the date on which the disqualification will
take effect in the case of a sitting member of Parliament or a State Legislature is beyond
the powers conferred on Parliament by the Constitution. Parliament, therefore, has
exceeded its powers conferred by the Constitution in enacting Sub-section (4) of Section
8 of theAct and accordingly Sub-section (4) of Section 8 of theAct is ultra vires the
Constitution.
13. Decision of Central Information Commission dated 03-06-
2013 on complaint from Mr. Anil Bairwal v. Parliment of
India
Large tracts of land in prime areas of Delhi have been placed at the disposal of
the Political Parties in-question at exceptionally low rates. Besides, huge
Government accommodations have been placed at the disposal of Political
Parties at hugely cheap rates thereby bestowing financial benefits on them.The
IncomeTax exemptions granted and the free air time at AIR and Doordarshan at
the time of elections also has substantially contributed to the financing of the
Political Parties by the Central Government. INC/AICC, BJP, CPI(M), CPI,
NCP and BSP have been substantially financed by the Central Government and,
therefore, they are held to be public authorities under section 2(h) of the RTI
Act.
The Presidents, General/Secretaries of these Political Parties were directed to
designate CPIOs and theAppellateAuthorities at their headquarters in 06
weeks time.The CPIOs so appointed will respond to the RTI applications
extracted in this order in 04 weeks time. Besides, the Presidents/General
Secretaries of the above mentioned Political Parties were also directed to
comply with the provisions of section 4(1) (b) of the RTI Act by way of making
voluntary disclosures on the subjects mentioned in the said clause.
14. The Law Commission, 170th Report
The Law Commission of India is opinioned that the decision in Kanwarlal
Gupta's case rightly and correctly interprets section 77. Indeed, it does more.
Besides furnishing the rationale for such a provision, it also points out the
desirability and necessity of having such a provision to ensure free and fair
elections and to keep out the money-power.
Unfortunately, however, soon after the above judgment, the President of India
issued an Ordinance amending the section 77 by inserting Explanation 1 in sub-
section (1) of section 77. Subsequently,AmendmentAct 58 of 1974 was
enacted in terms of the said Ordinance and was given retrospective effect on
and from October 19, 1974.
The aforesaid amendments have the effect of nullifying the object and purpose
underlying section 77(1) read with section 123(6) of theAct.The amendments
create an escape clause and have provided an easy way of circumventing the
legal requirement. Not only the political party which has sponsored the
candidate, but the friends, relatives and supporters of a candidate can spend any
amount on the election of the candidate and yet all the amount would not fall
within the expenditure incurred by the candidate or his agent.
15. The provisions of the German Law on Political Parties of 1967, Section
V whereof creates a statutory obligation upon all the political parties to
maintain clear and correct accounts, have them audited and submit the
same to the President of the German Bundestag.These accounts are
directed to be circulated by the Bundstag as "Bundstag Papers".The Law
further requires that the Bundstag shall examine whether the statement
of accounts is in accordance with the requirements of the said law and
that the result of such scrutiny shall be recorded in the report in
accordance with the paragraph 5 of the said article (article 23).The
German law provides in great detail the particulars which such accounts
should contain including the sources from which amounts are received
and the items upon which expenditure has been incurred. It is absolutely
essential that there should be a law on the same lines. Rules can be made
elaborating and elucidating the requirements in the proposed section
78A in the light of and keeping in mind the several provisions in the said
German Law.
