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VERSES
PAPER BOOK
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INDEX
Part-I Part-II
(Contents (Contents
of Paper of file
Book) alone)
Index of Record of
3 A-3
Proceedings
8 Appendix 54-59
13 F/M 246
14 V/A 247
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Section: PIL
Section: N/A
7. Criminal Matters:
Date: 18.11.2017
(R. D. Upadhyay)
Advocate-on-Record
rajdeoupadhyay@ymail.com
011-23070343, 9891050515
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SYNOPSIS
Yadav, Mr. O.P. Chautala and Mrs. Shashi Kala have been
Yadav, Ms. Mayawati and Brijesh Singh etc. but they are
voting inside the house; (c) decide what laws are made; (d)
LIST OF DATES
To,
THE HON‘BLE CHIEF JUSTICE
& LORDSHIP‘S COMPANION JUSTICES
OF HON‘BLE SUPREME COURT OF INDIA
HUMBLE PETITION OF ABOVE-NAMED PETITIONER
THE MOST RESPECTFULLY SHOWETH AS UNDER:
1. That petitioner is filing this PIL under Article 32 to ban the
Yadav, Mr. O.P. Chautala and Mrs. Shashi Kala have been
Yadav, Ms. Mayawati and Brijesh Singh etc. but they are
voting inside the house; (c) decide what laws are made; (d)
sentenced to— (i) only fine, for a period of six years from
profiteering; or
drugs; or
no case exceed six years from the date on which the order
of this Act, he shall, for a period of six years from the date
name may have been registered in the electoral roll for the
by registered post.
without delay.
39. Section 29A (6) states that ―the Commission may call
and Section 29A of the RPA read with Rules 5 & 10 of the
party in the legal sense until the ECI under Section 29A of
is in public interest‖.
for the benefit of the public and not for private profit. Not
3.85 lacs sq.ft. was leased out to the Club at the rent of
rent that the premises could fetch in the open market (as
Section 2(h) of the RTI Act. The broad facts in this case
but to my mind, the SIC has slipped into deep legal error
matrix of the case at hand, one can sum up that 6000 sq.
rate of Rs. 65 lacs per acre and 1-0,000 sq. mts of land at
issue upon which the voter has to make up his mind. Its
the CIC that they are not Public Authorities under Section
GROUNDS
Shashi Kala have been convicted for major scams but still
Yadav, Ms. Mayawati and Brijesh Singh etc. but they are
voting inside the house; (c) decide what laws are made; (d)
PRAYER
d) take such other steps as this Hon‘ble Court may deem fit
APENDIX
THE REPRESENTATION OF THE PEOPLE ACT, 1950.
―16. Disqualifications for registration in an electoral roll. (1) A
person shall be disqualified for registration in an electoral roll if he—(a) is
not a citizen of India; or (b) is of unsound mind and stands so declared
by a competent court; or (c) is for the time being disqualified from voting
under the provisions of any law relating to corrupt practices and other
offenses in connection with elections. (2) The name of any person who
becomes so disqualified after registration shall forthwith be struck off the
electoral roll in which it is included: [Provided that the name of any
person struck off the electoral roll of a constituency by reason of a
disqualification under clause (c) of sub-section (1) shall forthwith be
reinstated in that roll if such disqualification is, during the period such
roll is in force, removed under any law authorizing such removal.]
THE REPRESENTATION OF THE PEOPLE ACT, 1951.
―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
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 order made in respect
of a notified place) of the Unlawful Activities Act, 1967 (37 of 1967); or
(e) the Foreign Exchange Act, 1973 (46 of 1973); or
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person shall be disqualified and if so, for what period: Provided that the
period for which any person may be disqualified under this sub-section
shall in no case exceed six years from the date on which the order made
in relation to him under section 99 takes effect.
(2) Any person who stands disqualified under section 8A of this Act as it
stood immediately before the commencement of the Election Laws
(Amendment) Act, 1975, may, if the period of such disqualification has
not expired, submit a petition to the President for the removal of such
disqualification for unexpired portion of the said period.
(3) Before giving his decision on any question mentioned in sub-section
(1) or on any petition submitted under subsection (2), the President shall
obtain the opinion of the Election Commission on such question or
petition and shall act according to such opinion.]
―9. Disqualification for dismissal for corruption or disloyalty.— (1) A
person who having held an office under the Government of India or
under the Government of any State has been dismissed for corruption or
for disloyalty to the State shall be disqualified for a period of five years
from the date of such dismissal.
(2) For the purposes of sub-section (1), a certificate issued by the
Election Commission to the effect that a person having held office under
the Government of India or under the Government of a State, has or has
not been dismissed for corruption or for disloyalty to State shall be
conclusive proof of that fact: Provided that no certificate to the effect
that a person has been dismissed for corruption or for disloyalty to the
State shall be issued unless an opportunity of being heard has been
given to the said person.
―9A. Disqualification for Government contracts, etc.—A person shall
be disqualified if, and for so long as, there subsists a contract entered
into by him in the course of his trade or business with the appropriate
Government for the supply of goods to, or for the execution of any works
undertaken by, that Government.
Explanation.—For the purposes of this section, where a contract has
been fully performed by the person by whom it has been entered into
with the appropriate Government, the contract shall be deemed not to
subsist by reason only of the fact that the Government has not
performed its part of the contract either wholly or in part.
―10. Disqualification for office under Government company.—A
person shall be disqualified if, and for so long as, he is a managing agent,
manager or secretary of any company or corporation (other than a co-
operative society) in the capital of which the appropriate Government has
not less than twenty-five percent share.
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Annexure P-1
GOSWAMI COMMITTEE ON
ELECTORAL REFORMS
REPORT OF THE
COMMITTEE ON
ELECTORAL REFORMS
MAY 1990
GOVERNMENT OF INDIA
LEGISLHTIVE DEPARTMENT
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CHAPTER - I
INTRODUCTION
1.1 Bharat can legitimately be proud of its being the largest
democracy in the world and of its unique success as demonstrated
through regular periodical elections in spite of steep illiteracy and
backwardness of its people.
1.2 The credit for our success with the working of parliamentary
democracy based on universal adult suffrage goes, in no small measure,
to our people who have displayed their maturity of judgment through
their native intelligence and commonsense in choosing, and also
changing, the Government according to their choice.
1.3 The massive operation of our countrywide elections naturally
inspires global awe and respect. Holding of elections in sky high and
snow-clad mountains in North; scattered tiny islands in South; thick
forests in East; and a vast tracks of marshy and desert lands in West;
poses daunting problems which have been, time and again, successfully
overcome. At the present reckoning, the electoral machinery has to plan
and manage an election for an electorate of nearly 500 million spread
over 25 States and 7 Union territories of big, medium and small sizes;
nearly 5.5 lakhs of polling stations; requirement of an army of about 3
million personnel; vast quantity of ballot papers, ballot boxes and other
materials.
1.4 Sir Antony Eden, Former Prime Minister of United Kingdom
was perhaps greatly influenced by these factors when he observed:- ―Of
all the experiments in government which have been attempted since the
beginning of Time, I believe that the Indian venture into parliamentary
government is the most exciting. A vast sub-continent is attempting to
apply to its tens and hundreds of millions a system of free democracy
which has been slowly evolved over the centuries in this small island,
Great Britain. It is a brave thing to try to do so. The Indian venture is not
a pale imitation of our practice at home, but a magnified and multiplied
reproduction on a scale we have never dreamt of. If it succeeds, its
influence on Asia is incalculable for good. Whatever the outcome, we
must honour those who attempt it.‖
1.5 Leaving now our laurels alone, it becomes imperative to take
stock of the present state of affairs, which causes real concern and
anxiety because of the existence of the looming danger threatening to cut
at the very roots of free and fair elections.
1.6 The role of money and muscle powers at elections deflecting
seriously the well accepted democratic values and ethos and corrupting
the process; rapid criminalization of politics greatly encouraging evils of
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(3) More stringent laws to deal with evil of booth capturing and
impersonation;
(4) Fresh delimitation to cure the various distortions; provision for
rotation of seats reserved for SCs; Reservation of seats for women;
(5) Expeditious disposal of election petitions and appeals by sitting
Judges and to manage their other work by appointment of adhoc Judges;
(6) Examination of the present provision of Anti-Defection Law and
introduction of necessary changes to limit its application only to certain
areas of legislative activities and to limit the powers of the presiding
officers of the Legislatures;
(7) Public Funding of elections;
(8) Fixation of rational basis for ceiling of election expenses and
need for removing the present distortions;
(9) Multi-purpose photo identity cards to voters;
(10) Statutory time-limit for holding bye-elections;
(11) Statutory backing to certain provisions of Model Code;
(12) Statutory backing to the Observers' role;
(13) Combating evil of non-serious candidates. contesting elections;
(14) Elimination of misuse of official machinery.
1.13 On the basis of conclusions at the meeting of 9th January,
1990, the Government constituted a Committee under the Chairmanship
of Law Minister Shri Dinesh Goswami with the following members to go
into the various aspects of electoral reforms enumerated above:-
1. Shri H.K.L. Bhagat, M.P. (Indian National Congress)
2. Shri L.K. Advani, M.P. (Bharatiya Janata Party)
3. Shri Somnath Chatterjee, M.P. (Communist Party of India)
4. Shri Ghulam Rasool Matto, M.P. (National Conference)
5. Shri Chimanbhai Mehta, M.P.
6. Shri Indrajit M.P.
7. Shri Homi F. Daji, Ex-M.P. (Communist Party of India)
8. Shri Era Sezhiyan, Ex-M.P. (Janata Dal)
9. Shri V. Kishore Chandra Deo, Ex-M.P. (Congress)
10. Shri L.P. Singh, Former Governor
11. Shri S.L. Shakdher, Former Chief Election Commissioner
1.14 Shri K.Ganesan, former Secretary, Election Commission of India,
who has been appointed honorary Consultant in the Ministry of Law and
Justice for the specific work of electoral reforms has been instructed to
assist the Committee in its deliberations. Shri J.C. Sharma, Consultant
in the Ministry of Law and Justice, Legislative Department has been
instructed to assist Shri K. Ganesan in the matter.
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1.2 The Committee took note of that if the proposals are accepted, it
would require amendment to the Constitution as at present there is a
constitutional bar not only in regard to the increase of seats and also
fresh delimitation of constituencies.
1.3 All members, except Shri H.K.L. Bhagat, expressed agreement on the
need for fresh delimitation on the basis of 1981 census. The members
also agree that there should be rotation of seats for scheduled castes.
The Committee is of the view that the manner of achieving the object of
rotation of seats for Scheduled Castes should be left to the Delimitation
Commission and the Parliamentary law to be made for the purpose.
1.4 As regards reservation of seats for women, while some members
favour reservation of seats for women, few others feel that reservation of
seats for women would raise complex problems. Ultimately, the
Committee is of the view that it should leave a record favouring larger
representation of women candidates at elections to the Houses of
Parliament and State Legislatures and that to achieve this objective, the
Committee should express its hope that political parties would respond
positively to this suggestion by putting up more number of women
candidates at elections.
1.5 As regards rationalization of multiple of Assembly constituencies,
while Shri Era Sezhiyan, Ex-M.P. representing Janata Dal, desires that
there must be some uniform rational for fixing the multiple for various
States as against different multiples even among States more or less
standing on an equal footing, some other members feel that if the total
number of seats in the Legislative Assemblies is to be increased by the
change of the multiple, the total number of seats in the Lok Sabha
equally calls for such increase. No unanimity of views exists among
members in regard to this proposal.
REFERENCE SOURCES
1. Minutes of the Meeting of the Committee dated 7th March, 1990.
2. Minutes of the Meeting of the Committee dated 8th March, 1990.
3. Minutes of the Meeting of the Committee dated 2nd April, 1990.
4. Notes on Subjects - Part I-Chapter III - Delimitation of Constituencies.
CHAPTER-IV: ELECTORAL ROLLS
1. Steps for improving enrolment of all eligible names:
1.1 The Committee took for consideration various measures
proposed in the Notes. As regards the post offices being made as a focal
point in the sense that they should be associated with the preparation
and maintenance of electoral rolls up-to-date and upkeep of records,
there is broad consensus among the members for the acceptance of this
proposal.
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1.2 The Committee further agrees that the mater might be fully
discussed as pointed out in the Notes by the Election Commission with
the Postal Board and the Census Commissioner.
1.3 Many members of the Committee are strongly of the view that
there are various defects and drawbacks in the present system of the
preparation of electoral rolls because of acts of omissions and
commissions of the officials. They observed that in some cases there were
large-scale omissions of names from the electoral rolls in the past even
though enumeration cards were delivered to the electors at the time of
house to house enumeration. In that context, the Committee considered
the question of strengthening the relevant provisions of the
Representation of the People Act, 1950 so as to provide for a more
stringent punishment for breach of official duty in connection with the
preparation, revision etc. of electoral rolls.
1.4 The Committee recommends that Section 32 of the
Representation of the People Act, 1950 should be suitable amended for
this purpose. The Committee feel that the punishment of sentence for
breach of official duty in connection with the preparation and revision of
electoral rolls should be atleast for six months as against only the
imposition of fine as at present.
1.5 The Committee agrees that the Election Commission should be
given power not only to recommend disciplinary proceedings for breach
of official duty but also should be empowered to record adverse entries
against officers found guilty of lapses in their duty and forward them to
the concerned authorities.
1.6 For the above purpose, as in the case of officers connected with
the conduct of poll who are deemed to be on deputation subject to the
control, superintendence and discipline of the Election Commission (vide
Section 28A of the Representation of the People Act 1951), officers
connected with the preparation and revision of electoral rolls should also
be brought under the control and disciplinary jurisdiction of the Election
Commission.
2. Issue of multi-purpose photo identity cards:
2.1 There is unanimity of views among all the members in regard
to the implementation of the scheme of issue of multi-purpose photo
identity cards.
2.2 The Committee agrees that the steps for successful
implementation of the scheme as proposed in para 3.11 of the Notes -
Part I should be undertaken and that a time-bound programme for
covering the entire country with the proposed scheme is desirable.
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4.4 The Committee also considered the proposal that there should be a
separate deposit by each of the proposer or a bond to be executed by him
if the contest is by an independent candidate or a candidate set up by a
registered party. However, the Committee does not favour the acceptance
of this proposal.
4.5 The Committee does not also favour the proposal to prevent agents of
independent candidates and candidates set up by registered parties from
attending to the duties as polling agents and counting agents as it would
be very harsh to do so.
5. (a) Regulation of functioning of political parties:
(b) Compulsory maintenance of account of election expenses by
political parties and audit thereof:
(c) Submission of Annual Returns bv political parties:
(d) Enforcement of observance by political parties of requirements:
5.1 The Committee discussed in details all aspects of the matters
referred to above with reference to the Notes on the subject as contained
in sub-items Nos. 8 to 10. It is found that there is no unanimity of views
among the members of the Committee. While a few members want
regulation of functioning of political parties as it is the best way to
ensure internal democracy and also compulsory audit of account of
political parties, some others are not in favour of such a proposal
because of practical difficulties.
5.2 It has been brought to the notice that even though making a law
regulating the functioning of political parties would be controversial one,
it could be considered whether the Election Commission should be asked
to make suitable provisions in the Symbols Order to the limited effect
that if a party does not observe the provisions of its constitution in
regard to holding of periodical elections to its various organs, the
Election Commission should have the power to withhold the allotment of
symbols to the candidates set up by that party till such time the
requirements are fulfilled by the party. Majority of the members do not
favour this approach.
6. Statutory backing for model code of conduct:
6.1 The Committee considered the various items in Part VII, Party in
Power, in the present Model Code of Conduct evolved by the Election
Commission.
6.2 The Committee is of the view that only such of the provisions of the
Model Code as are vital and important in nature should be brought
under the Statute. The Committee feels that to make any violation of the
Model Code by Ministers and others as a corrupt practice would result in
penalizing the contesting candidate who might not have any part to play
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5.2 The members have been prima facie satisfied that the electronic
voting machines are free from the drawbacks alleged on the eve of the
last general election to Lok Sabha held in 1989. Still the Committee
desired that a clearance from technological experts to the effect that the
doubts and misapprehensions entertained about the credibility of the
working of the machines are not well founded, should be obtained. High
level technological experts were commissioned by the Electronics
Department of the Government of India to go into the question of all
aspects of the working of the machines especially from the points of view
of its credibility and intarnperability. This team of technological experts,
after through probe into the matter has given clearance certifying that
the machines could be used at our elections.
5.3 The Committee desires that the electronic voting machines
should be put to use at all future bye-elections and general elections to
Lok Sabha, Assemblies and also Panchayats and Local Bodies elections
with a view to educating the electors in all parts of the country and
familiarising them with the working of the machines.
5.4 The Committee further desires that intensive training
programme of polling personnel at all levels should also be arranged.
5.5 The Secretary of the Electronics Department, Shri Rajamani
who was also present at the meeting on 31st March, 1990 to assist the
members of the Committee in the matter, has been requested to get the
Electronic Voting Machines tested by a team of technological experts to
be identified by his Department. He has been further instructed to take
urgent steps in this behalf.
6. Provision of an electronic device to record particulars of electors
as in the photo identitv card as a safeguard against booth capturing etc.
6.1 Shri Kishore Chandra Deo, one of the members, has suggested
that the possibility of providing a suitable separate gadget or device or in
the electronic voting machine itself to record essential particulars of an
elector with his coded numbers as contained in multi-purpose identity
card should be explored so as to provide for a fool proof measure to
safeguard against booth capturing and impersonation.
At the time of the poll, each elector should produce his multi-
purpose identity card which should be fed into this machine to record his
essential particulars. According to him, the system would be foolproof
because each elector should produce individually his identity card at the
time of his identification and it would not therefore be possible for booth
capturers or impersonators to procure in bulk such multi-purpose
identity cards.
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8.4 The Committee feels that in spite of these amendments, the situation
does not improve in any way. On the other hand, it has been found that
cases of booth capturing were assuming alarming proportions at the
recent general elections to Lok Sabha and to a number of State
Legislative Assemblies held in 1989 and 1990. The Committee also feels
that the new provisions are suffering from serious drawbacks making the
provisions ineffective in operation. They therefore proved to be
inadequate.
8.5 The Committee notices the following drawbacks:-
(i) Under section 58A of the Act, the Election Commission is required to
be guided only by the report of the Returning Officer in the matter of
deciding whether booth capturing has taken place or not. It provides a
scope for misuse of power by the Returning Officer if he intentionally fails
to report to the Commission the actual position.
(ii) Under section 58A of the Act, if the Commission is satisfied that a
large number of polling stations are involved in booth capturing, it is left
with the only choice under the law to countermand the election and
order a fresh election and not the option of only ordering repoll in the
entire constituency.
(iii) The electoral offence under section 135 A is not specifically made a
cognizable offence.
(iv) The punishment for the commission of the offence of booth capturing
is only imprisonment for not less than one year which may extend to
three years whereas the seriousness of the offence calls for a more
stringent punishment.
(v) Acts of 'coercion' and 'intimidation' or 'any form of direct or indirect
threat' or 'any interference with the free exercise of the recording of the
votes' which are also the species of booth capturing have not been
brought within the ambit o f section 1 35A of the act.
(vi) There are no enabling provisions at present for the investigation of
the cases of booth capturing at the instance of the Election Commission
through the Central or State police investigation agency; for the
establishment of special courts; and for appointment of public
prosecutors. In the absence of such a power, the Election Commission is
unable to play its legitimate role of conducting a free and fair poll and
deal with effectively the violation of the law.
8.6 After detailed discussion, the Committee recommends that-
(i) Section 58A of the Act should be s o amended as to enable the
Election Commission to take a decision regarding booth capturing not
only on the report of the Returning Officer but even otherwise. In this
context , the Committee feels that the expression "otherwise" used in
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the vacancy with the rider that if the vacancy has arisen within six
months prior to a general election normally due, it would not be
necessary to fill the vacancy.
9.3 The consensus among members is that a bye-election should be held
within six months of the occurrence of the vacancy as against the
proposal of three months provided that bye-election to fill a vacancy need
not be held if a general election is normally due within one year from the
date of the occurrence of the vacancy.
10. Power to order repoll
10.1 The Committee has already recommended that the Election
Commission should enjoy a statutory power in cases of booth capturing
either to countermand the election after declaring the election held to be
void or order a repoll in the entire constituency (vide sub-item 5 - Steps
to eradicate booth capturing, rigging, intimidation etc.). It has also
decided to recommend that the Election Commission should be enabled
to act not only on the basis of a report from the Returning Officer but
also otherwise on basis of all material circumstances brought before it.
10.2 Incidentally, the Committee feels that the Regional Commissioners
and observers appointed by the Commission or any other supervisory
officers employed by the Commission at elections, should have the power
under the law to order the deferring of counting or declaration of the
result pending decision of Commission on their report regarding the facts
submitted to the Commission.
11. Reasons for low polling and remedial measures.
11.1 The Committee discussed at length the matter analysing the
reasons for low polling and about the remedial measures that would be
required to set right the matter.
11.2 Incidentally, one of the members observed that where there has
been a low percentage of voting, say 20 percent, it might be on account of
threats given to the electorate not to participate at elections as has
happened in the recent past. In such a case, he felt that there should be
a repoll in the entire constituency for the reason that there has been no
free and fair poll reflecting fully the verdict of the constituency.
11.3 On the other hand, some other members have felt that a winning
candidate who might not have any connection in issuing such threats
resulting in low polling, should not be deprived of his success. In these
circumstances, the Committee feels that the matter need not be pursued.
11.4 One of the members feels chat the only effective remedy for low
percentage of voting is to introduce system of compulsory voting as in
Australia. The Committee does not however favour the suggestion
because of practical difficulties involved in its implementation.
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11.5 Some members feel that the procedure followed now in regard to
postal ballot paper facilities is most unsatisfactory as many of the
persons who are entitled to such facility are not actually benefitted. In
many cases, the facility remains only in paper.
11.6 The Committee feels strongly that there should be a close
examination of the present procedure to remove the drawbacks and
make the facility of postal ballot really meaningful.
11.7 One member observed that persons employed as drivers, workers
etc. of transport vehicles used by candidates should also be made eligible
for postal ballot paper facility.
11.8 The Committee recommends that the ECI should look into this
aspect and make these categories of persons to be entitled to the facility
of postal ballot paper by treating them to be on election duty under law.
11.9 The Committee has examined the Notes in paragraphs 8.6 to 8.8
regarding the existing system of voting by postal ballot paper followed in
the case of army personnel, persons employed in diplomatic service,
personnel of para-military force, etc.
11.10 The Committee agrees that as explained in the Notes, the present
facility of voting by postal ballot paper in these cases has not served any
useful purpose for the reason that there are many practical difficulties in
ensuring that the dispatch of postal ballot papers to these categories of
persons and return of those papers to the Returning Officers concerned
in time after voting according to the time schedule could not be followed.
11.11 The Committee accepts the proposal that the army personnel,
persons outside India in diplomatic services, and also persons belonging
to para-military forces, etc. should enjoy the facility of voting at elections
through proxy.
11.12 In this context, Committee wants that the system of voting by
proxy as followed in the UK should be studied quickly for adoption in our
country by suitable amendment to the law and procedure.
12. Countermandin g of poll on death of candidates.
12.1 The Committee examined the Notes on this item and also took note
of similar provisions in 1985 Ordinance issued in the case of last general
election to the Punjab Legislative Assembly in 1985. The Committee
agrees that the law should be amended so as to provide to the effect that
only if a candidate set up by recognised political party dies, the election
should be countermanded and not otherwise.
12.2 Incidentally, one member observed that the present provision under
section 52 dealing with cases of countermanding of election on the death
of a candidate seems to be defective and also confusing. In this context,
it has been brought to notice of the Committee that recommendations of
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Shri S.P. Sen Verma, a Former CEC, contained in his Report on 1968-69
elections suggesting specifically the lines on which section 52 of the Act
should be amended to remove any scope for doubt.
12.3 The Committee accepts the lines of amendment to section 52 of the
Act as suggested by Shri S.P. Sen Verrna except that the outer limit for
countermanding the poll should be the death of a candidate 'before the
commencement of the poll' and not "declaration of the result" as
proposed by Shri S.P. Sen Verma.
13. Term of Rajya Sabha and holding of biennial elections.
13.1 Committee took note of suggestion in the Notes on the subject.
13.2 The Committee feels that though the retirement of members of
Rajya Sabha elected from different States on completion of their term, is
not uniform and that the cycle of retirement on the same day has been
broken, it is not necessary to make the amendment to law as proposed to
bring into effect one single day of retirement in all cases.
13.3 The Committee feels that such a course would unnecessarily curtail
and interfere with the term of members of the Rajya Sabha.
14. Qualification for elections to Rajva Sabha and requirement as to
number of proposers:
14.1 One member observed that the present requirement for contesting
election to Rajya Sabha that the candidate should be an elector in the
State from which he seeks such election, is being generally misused. He
therefore felt that as in the case of elections to Lok Sabha the
requirement for contesting at elections to Rajya Sabha should be that the
person must be an elector in any parliamentary constituency in India.
14.2 However, the Committee finds that there is no unanimity of views
among the members on this suggestion.
14.3 The Committee examined the requirement as contained in section
39 of the RPA that a nomination filed in connection with an election to
Rajya Sabha should be proposed by ten proposers and the additional
notes on the subject circulated to members. The Committee feels that
this requirement of ten proposers would create practical difficulties for
smaller parties to muster the required number of proposers.
14.4 Accordingly, the Committee recommends that section 39 should be
so amended as to lay down that a nomination paper in connection with
an election to Rajya Sabha and Legislative Council by members of
Legislative Assembly may require only one proposer& one seconder.
REFERENCE SOURCE
1. Minutes of the Meeting of the Committee dated 8th March, 1990.
2. Minutes of the Meeting of the Committee dated 30-31 March, 1990.
3. Minutes of the Meeting of the Committee dated 2nd April, 1990.
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correct and true account of the election expenditure even though such a
provision existed in the past.
2.7 In this context, Committee feels that the present system of giving
simple declaration in return of election expenses would be sufficient.
2.8 The Committee also agrees that any unauthorized expenditure
incurred by any person other than the candidate or his election agent
should be prohibited and treated as an electoral offence and that such an
offence should be made punishable with imprisonment for a period of not
less than one year in addition to fine.
2.9 Keeping the above points in view, the Committee feels that the
amendment to section 77(1) should be on the following lines:
"(1) All expenditure incurred or authorised either by the candidate or his
election agent on account of or in respect of the conduct or management
of the election shall be required to be included in the account of election
expenditure of the candidate".
2.10 The Committee also feels that failure to keep an election account
which is already a penal offence under section 171-F, IPC should be
made more stringent by providing for imprisonment of at least six
months in addition to fine.
2.11 The Committee also recommends that submission of false account
should be an electoral offence and the minimum punishment for
violation of this provision should be two years imprisonment.
2.12 Committee observes that the notes circulated by Era Sezhiyan
analysing provisions of the U.K. Act relating to election expenses should
be kept in view before formal amendments are drawn up.
3. Regulation or ban of donations by companies
3.1 The Committee examines the Notes on the subject and also the
additional notes by Shri L.P. Singh.
3.2 After discussion, the Committee feels that there should be a complete
ban on donations by companies and relevant law should be amended.
3.3 Shri L.P. Singh has observed that though he would agree with the
proposal still there would be scope for substantial clandestine
contributions to political parties under the table through the contractors
of the companies though not directly by the companies and this aspect
should also be examined to tighten the law. The Committee wants this
aspect should also be kept in view in formulating the provisions so that
no loophole is left.
REFERENCE SOURCES
1. Minutes of the Meeting of the Committee dated 31st March, 1990.
2. Minutes of the Meeting of the Committee dated 2nd April, 1990.
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1.1 The Committee took note of the drawbacks in the present position of
giving blanket power of exemption to the legislatures in regard to
disqualification of a member for holding office of profit, as pointed out in
the Notes. However, the Committee is of the view that the suggestion that
the Committee of Parliament of Office of Profit should decide the
procedure for laying down stringent guiding principles for exempting the
offices from the purview of inhibiting provisions of the Constitution,
would not be acceptable to States as it infringed upon State subjects.
1.2 Consequently, the Committee desires that the Law Ministry should
do an exercise in the matter for the preparation of a Model Bill for
circulation and adoption by the various State Governments.
REFERENCE SOURCE
1. Minutes of the Meeting of the Committee dated 11th April 1990.
2. Notes on the subject - Part - I (Chapter XI - Office of Profit
CHAPTER – XII: ELECTORAL SYSTEMS - EXAMINATION
1. Proposal for change of system of elections
1.1 The Committee observed that there is no unanimity in regard to this
matter. Some members totally opposed the proposal for any change in
the present system while others desired a change over to Proportional
Representation System.
2. Constitution of Expert Committee to examine electoral system.
2.1 In view of the sharp difference of opinion in the matter, the
Committee and Election feels that it should only recommend that the
subject of change of the present Commission electoral system should be
examined by an expert committee. Accordingly, it to examine
recommends to the Law Ministry and the Election Commission that the
matter constitution relating to change of the present electoral system
should be pursued and that if , of Expert necessary an Expert Committee
should be constituted for the purpose.
REFERENCE SOURCE
1. Minutes of the Meeting of the Committee dated 11th April, 1990.
2. Notes on the Subject - Part 11 - (Electoral Systems - Examination).
CHAPTER - XIII: Miscellaneous
1. Shri Dinesh Goswami, Law Minister and Chairman of the Committee,
wrote on 28th December 1989, to all Members of Parliament and some
other eminent persons furnishing them with the broad outlines of
electoral reforms to be considered by the Committee and seeking their
views on them.
1.2 In response to this letter, many Members of Parliament and other
eminent persons and organizations sent their comments and views.
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36. The proposal that there should be a separate deposit by each of the
proposer or a bond to be executed by him in the case of an independent
candidate or a candidate set up by a registered party is not favoured.
37. The proposal to prevent agents of independent candidates and
candidates set up by registered parties from attending to the duties as
polling agents and counting agents is not also favoured.
5.(a) Regulation of functioning of political parties
(b) Compulsory maintenance of account of election expenses by
political parties and audit thereof
( c) Submission of Annual Returns by political parties
(d) Enforcement of observance by political parties of requirements.
38. The matter relating to the above items need not be pursued as there
is no unanimity of views.
39. The suggestion to clothe the ECI under the Symbols Order the power
to withhold the allotment of symbols to the candidates set up by a party
if that party does not observe the provisions of its constitution in regard
to holding of periodical elections to its various organs is not favoured.
6. Statutory backing for model code of conduct
40. The following items in the model code should have the statutory
backing and should therefore be brought within the ambit of the law :-
(a) Combining of official visit with work relating to elections or making
use of official machinery or personnel in connection with any such work;
(b) Using Government transport, including aircrafts, vehicles, machinery
and personnel in connection with any work relating to elections;
(c) restricting or monopolizing the use of public places for holding
election meeting or use of helipads for air flights in connection with any
work relating to elections;
( d) restricting or monopolizing the use of rest houses, dak bungalows or
other Government accommodation or the use of such accommodation
(including premises appertaining thereto) as a campaign office or for
holding any public meeting for the purpose of election propaganda.
(e) issuing of advertisements at the cost of public exchequer in the
newspapers and other media;
( f ) using official news media for partisan coverage of political news and
publicity of achievements with a view to furthering the prospects of any
party or candidate.
(g) announcing or sanctioning of any financial grants in any form or
making payments out of discretionary funds;
(h) laying of foundation stones of projects or the inauguration of schemes
of any kind or the making of any promises of construction of roads or the
provision of any facilities;
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Annexure P-2
NATIONAL COMMISSION TO REVIEW
THE WORKING OF THE CONSTITUTION
2002
SUMMARY OF RECOMMENDATIONS
CONTENTS
Recommendation
Nos.
Fundamental Rights, Directive
Chapter 3 (1) to (29)
Principles and Fundamental Duties
Chapter 4 Electoral Processes and Political Parties (30) to (69)
Chapter 5 Parliament and State Legislatures (70) to (97)
SUMMARY OF RECOMMENDATIONS
being; and
(c) to have the environment protected, for the benefit of present
and future generations so as to –
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of
natural resources while promoting justifiable economic and social
development.‖. [Para 3.22.3]
(19) Explanation II to article 25 should be omitted and sub-clause (b) of
clause (2) of that article should be reworded to read as follows:-
―(b) providing for social welfare and reform or the throwing open of
Hindu, Sikh, Jaina or Buddhist religious institutions of a public
character to all classes and sections of these religions.‖. [Para 3.23.2]
(20) It shall be desirable that some optimum level of population with a
view to take necessary action under this constitutional provision is
prescribed. In article 347 of the Constitution, for the words “a substantial
proportion of the population”, the words “not less than ten per cent of the
population” should be substituted. [Para 3.24]
DIRECTIVE PRINCIPLES
(21) The Commission recommends that the heading of Part IV of the
Constitution should be amended to read as ―DIRECTIVE PRINCIPLES OF
STATE POLICY AND ACTION‖. [Para 3.26.3]
(22) A strategic Plan of Action should be initiated to create a large
number of employment opportunities in five years to realize and exploit
the enormous potential in creating such employment opportunities. The
components of this plan may include:
(1) Improvement of productivity in agriculture that will activate a chain
of activities towards increased income and employment opportunities.
(2) Integrated horticulture that will include production of fruits,
vegetables and flowers, cut-flowers for export and medicinal plants as
well as establishment of bio-processing industries aimed primarily at
value-addition of agricultural products.
(3) Intensification of animal husbandry programs and production of
quality dairy products.
(4) Integrated Program of Intensive Aquaculture including use of
common property resources like village ponds and lakes.
(5) Afforestation and Wasteland Development to bring an additional 12
million hectares under forest plantation and contribute to rural asset
building activity.
(6) Soil and Water Conservation to support afforestation and Natural
Resource Conservation towards eco-friendly agriculture.
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right to health, (iii) the right to food, clothing and shelter, (iv) Right to
Education up to and beyond the 14th year, and (v) the Right to
Culture. The said body must estimate the extent of resources required in
each State under each of these heads and make recommendations for
allocation of adequate resources, from time to time. For ensuring that
the Directive Principles of State Policy are realized more effectively, the
following procedure should be followed:-:-
(i) The Planning Commission should ensure that there is special
mention/emphasis in all the plans and schemes formulated by it, on the
effectuation/realization of the Directive Principles of State Policy.
(ii) Every Ministry/Department of the Government of India should
make a special annual report indicating the extent of
effectuation/realization of the Directive Principles of State Policy, the
shortfall in the targets, the reasons for the shortfall, if any, and the
remedial measures taken to ensure their full realization, during the year
under report.
(iii) The report under item (ii) should be considered and discussed
by the Department Related Parliamentary Standing Committee, which
shall submit its report on the working of the Department indicating the
achievements/failures of the Ministry/Department along with its
recommendations thereto.
(iv) Both the Reports mentioned at items (ii) and (iii) above should
be discussed by the Planning Commission in an interactive seminar with
the representatives of various NGOs, Civil Society Groups, etc. in which
the representatives of the Ministry/Department and the Departmental
Related Parliamentary Standing Committee would also participate. The
report of this interaction shall be submitted to the Parliament within a
time bound manner.
(v) The Parliament should discuss the report at item (iv) above
within a period of three months and pass a resolution about the action
required to be taken by the Ministry/Department concerned.
A similar mechanism as mentioned above may be adopted by the
States. [Paras 3.35.2 and 3.35.3]
(27) The Report of the National Statistical Commission (2001) stresses
the importance of availability of adequate, credible and timely socio-
economic data generated by the statistical system, both for policy
formulation and for monitoring progress of the sectors of economy and
pace of socio-economic change. The Commission endorses the
recommendations of the National Statistical Commission and stresses
the importance of their implementation. [Para 3.36]
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(37) A potential candidate against whom the police have framed charges
may take the matter to the Special Court. This court should be obliged
to enquire into and take a decision in a strictly time bound
manner. Basically, this court may decide whether there is indeed a
prima facie case justifying the framing of charges. [Para 4.12.5]
(38) The Special Courts should be constituted at the level of High
Courts and their decisions should be appealable to the Supreme Court
only (in similar way as the decisions of the National Environment
Tribunal). The Special Courts should decide the cases within a period of
six months. For deciding the cases, these Courts should take evidence
through Commissioners. [Para 4.12.6]
(39) The benefit of sub-section (4) of section 8 of the Representation of
the People Act, 1951 should be available only for the continuance in
office by a sitting Member of Parliament or a State Legislature. The
Commission recommends that the aforesaid provision should be suitably
amended providing that this benefit shall not be available for the purpose
of his contesting fresh elections. [Para 4.12.7]
(40) The proposed provision laying down that a person charged with an
offence punishable with imprisonment for a maximum period of five
years or more should be disqualified from contesting elections after the
expiry of a period of one year from the date the charges were framed in a
court of law should equally be applicable to sitting members of
Parliament and State Legislatures as to any other such person.[4.12.8]
(41) In matters of disqualification on grounds of corrupt practices, the
President should determine the period of disqualification under section
8A of the Representation of the People Act, 1951 on the direct opinion of
the EC and avoid the delay currently experienced. This can be done by
resorting to the position prevailing before the 1975 amendment to the
said Act. [Para 4.13.1]
(42) The election petitions should also be decided by special courts
proposed in para 4.12.6. In the alternative, special election benches may
be constituted in the High Courts and earmarked exclusively for the
disposal of election petitions and election disputes. [Para 4.13.2]
(43) The existing ceiling on election expenses for the various legislative
bodies be suitably raised to a reasonable level reflecting the increasing
costs. However, this ceiling should be fixed by the Election Commission
from time to time and should include all the expenses by the candidate
as well as by his political party or his friends and his well-wishers and
any other expenses incurred in any political activity on behalf of the
candidate by an individual or a corporate entity. Such a provision
should be the part of a legislation regulating political funding in
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a careful and full examination of this issue by the Government and the
Election Commission of India. [Para 4.16.6]
(52) Intra-State delimitation exercise may be undertaken by the
Election Commission for Lok Sabha and Assembly constituencies and
the Scheduled Castes and Non-Scheduled Area Scheduled Tribe seats
should be rotated. The Delimitation Body should, however, reflect the
plural composition of society. [Para 4.17]
(53) The provisions of the Tenth Schedule of the Constitution should be
amended specifically to provide that all persons defecting - whether
individually or in groups - from the party or the alliance of parties, on
whose ticket they had been elected, must resign from their parliamentary
or assembly seats and must contest fresh elections. In other words, they
should lose their membership and the protection under the provision of
split, etc. should be scrapped. The defectors should also be debarred to
hold any public office of a minister or any other remunerative political
post for at least the duration of the remaining term of the existing
legislature or until, the next fresh elections whichever is earlier. The vote
cast by a defector to topple a government should be treated as
invalid. Further, the power to decide questions as to disqualification on
ground of defection should vest in the Election Commission instead of in
the Chairman or Speaker of the House concerned. [Para 4.18.2]
(54) The practice of having oversized Council of Ministers should be
prohibited by law. A ceiling on the number of Ministers in any State or
the Union government be fixed at the maximum of 10% of the total
strength of the popular house of the legislature. [Para 4.19]
(55) The practice of creating a number of political offices with the
position, perks and privileges of a minister should be discouraged and at
all events, their number should be limited to two per cent of the total
strength of the lower house. [Para 4.19]
(56) Independent candidates should be discouraged and only those who
have a track record of having won any local election or who are
nominated by at least twenty elected members of Panchayats,
Municipalities or other local bodies spread out in majority of electoral
districts in their constituency should be allowed to contest for Assembly
or Parliament. [Para 4.20.3]
(57) In order to check the proliferation of the number of independent
candidates and the malpractices that enter into the election process
because of the influx of the independent candidates, the existing security
deposits in respect of independent candidates may be doubled. Further,
it should be doubled progressively every year for those independents who
fail to win and still keep contesting elections. If any independent
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candidate has failed to get at least five percent of the total number of
votes cast in his constituency, he/she should not be allowed to contest
as independent candidate for the same office again at least for 6 years.
[Para 4.20.4]
(58) An independent candidate who loses election three times
consecutively for the same office as such candidate should be
permanently debarred from contesting election to that office.[Para 4.20.5]
(59) The minimum number of valid votes polled should be increased to
25% from the current 16.67% as a condition for the deposit not being
forfeited. This would further reduce the number of non-serious
candidates. [Para 4.20.6]
(60) It should be possible without any constitutional amendment to
provide for the election of the Leader of the House (Lok Sabha/State
Assembly) along with the election of the Speaker and in like manner
under the Rules of Procedure. The person so elected may be appointed
the Prime Minister/Chief Minister. [Para 4.20.7]
(61) The issue of eligibility of non-Indian born citizens or those whose
parents or grandparents were citizens of India to hold high offices in the
realm such as President, Vice-President, Prime Minister and Chief
Justice of India should be examined in depth through a political process
after a national dialogue. [Para 4.21]
(62) The Chief Election Commissioner and other Election Commissioners
should be appointed on the recommendation of a body consisting of the
Prime Minister, Leader of the Opposition in the Lok Sabha, Leader of the
Opposition in the Rajya Sabha, Speaker of the Lok Sabha and the Deputy
Chairman of the Rajya Sabha. Similar procedure should be adopted in the
case of appointment of State Election Commissioners. [4.22]
(63) All candidates should be required to clear government dues before
their candidature are accepted. This pertains to payment of taxes and
bills and unauthorised occupation of accommodation and availing of
telephones and other government facilities to which they are no longer
entitled. The fact that matters regarding Government dues in respect of
the candidate are pending before a Court of Law should be no excuse.
[Para 4.23]
(64) In order to obviate the uncertainty in identifying certain offices as
offices of profit or not, suitable amendments should be made in the
Constitution empowering the Election Commission of India to identify and
declare the various offices under the Government of India or of a State to
be ‗offices of profit‘ for the purposes of being chosen, and for being, a
member of the appropriate legislature. [Para 4.24.3]
POLITICAL PARTIES
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for the Lok Sabha. State parties may be allotted symbols to contest
elections for State legislatures and the Council of States. [Para 4.31.2]
(67) In a situation where no single political party or pre-poll alliance of
parties succeeds in securing a clear majority in the Lok Sabha after
elections, the Rules of Procedure and Conduct of Business in Lok Sabha
may provide for the election of the Leader of the House by the Lok Sabha
along with the election of the Speaker and in the like manner. The Leader
may then be appointed as the Prime Minister. The same procedure may
be followed for the office of the Chief Minister in the State. [Para 4.33.2]
(68) An amendment in the Rules of Procedure of the Legislatures for
adoption of a system of constructive vote of no confidence should be
made. For a motion of no-confidence to be brought out against a
government at least 20% of the total number of members of the House
should give notice. Also, the motion should be accompanied by a
proposal of alternative Leader to be voted simultaneously. [Para 4.33.3]
(69) A comprehensive legislation providing for regulation of
contributions to the political parties and towards election expenses
should be enacted by consolidating such laws. This new law should-
(a) aim at bringing transparency into political funding; (b) permit
corporate donations within higher prescribed limits and keep them
transparent; (c) make all legal and transparent donations up to a
specified limit tax exempt and treat this tax loss to the state as its
contribution to state funding of elections; (d) contain provisions for
making both donors and donees of political funds accountable. The
Government should encourage the corporate bodies and agencies to
establish an electoral trust which should be able to finance political
parties on an equitable basis at the time of elections; (e) provide that
audited political party accounts like the accounts of a public limited
company should be published yearly with full disclosures under
predetermined account heads; and (f) provide for immediate de-
recognition of the party and enforcement of penalties for filing false or
incorrect election returns. [Paras 4.35.2, 4.35.3, 4.35.4 and 4.36]
CHAPTER 5: PARLIAMENT AND STATE LEGISLATURES
(70) The presiding officers, the minister for parliamentary affairs, and
the chief whips of parties should periodically meet to review the work of
the departmental parliamentary committees and take remedial action. It
should be entirely possible for the Parliament to sanction budgets to
secure the services of specialist advisors to assist these committees in
conducting their inquiries, holding public hearings, collecting data about
legislation and administrative details pertaining to countries which have
relevance to the Indian conditions. [Para 5.6.3]
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public hearings, if necessary, and finalise with the help of experts the
second reading stage in the relaxed Committee atmosphere. The time of
the House will be saved thereby without impinging on any of its rights.
The quality of drafting and the content of legislation will necessarily be
improved as a result of following these steps. [Paras 5.10.1 and 5.10.2]
(77) The Parliament may consider enacting suitable legislation to
control and regulate the treaty-power of the Union Government whenever
appropriate and necessary after consulting the State Governments and
Legislatures under article 253 ―for giving effect to international
agreements‖. [Para 5.10.3]
(78) Parliamentarians have to be like Caesar's wife, above
suspicion. They must voluntarily place themselves open to public
scrutiny through a parliamentary ombudsman. Supplemented by a code
of ethics, which has been under discussion for a long time, it would place
Parliament on the high pedestal of people's affection and regard. [5.11.1]
(79) Mass media should be encouraged to accurately reflect the reality
of Parliament‘s working and the functioning of Parliamentarians in the
Houses. Televising all important debates nationwide in addition to the
Question Hours, publication of monographs, handouts, radio, TV, press
interviews, use of audio-visual techniques, especially to arouse curiosity
and interest of the younger generation, and regular briefing of the press
will go a long way in making people better acquainted with the important
national work that is being done inside the parliament building. [5.11.2]
(80) It is a legitimate public expectation that membership of
Legislatures should not be converted into an office of lucrative gain but
remain an office of service. The question of salaries, allowances, perks
and pensions of lawmakers should be looked into on a rational basis and
healthy conventions built.[Para 5.11.3]
(81) The Parliament and the State Legislatures should assemble and
transact business for not less than a minimum number of days. The
Houses of State Legislatures with less than 70 members should meet for
at least 50 days in a year and other Houses for at least 90 days while the
minimum number of days for sittings of Rajya Sabha and Lok Sabha
should be fixed at 100 and 120 days respectively.[Para 5.11.4]
(82) In order to maintain basic federal character of the Rajya Sabha,
domiciliary requirement for eligibility to contest elections to Rajya Sabha
from the concerned State is essential. This should be maintained.[5.11.5]
(83) Better and more institutionalized arrangements are necessary to
provide the much-needed professional orientation to newly elected
members. The emphasis should be on imparting practical knowledge on
how to be an effective member. [Para 5.12]
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(110) The Union Government should take steps to move the Parliament
for early enactment of the Freedom of Information Legislation. It will be a
major step forward in strengthening the values of a free and democratic
society. [Para 6.11]
(111) To remain actively involved in new development programmes the
people would also need the support of well organized, well prepared,
knowledge-oriented personnel and well thought out policies. Think
tanks and organized intellectual groups would have to be promoted
through state funding, etc. without abridging their autonomy.[Para 6.12]
(112) The structural problems of foreign policy would be to constantly
aim at making the best possible use of the international order and use it
to our advantage. In the country‘s governance, the duality of foreign and
domestic policy should end. The two should not be antithetical. A
serious effort is required to combine the two to recast relations and
launch a creative initiative to achieve strategic partnerships the world
over on the principles of inter-dependence without domestic interests
being relegated to the background. This calls for a thorough change in
the form, working and structuring of Foreign Affairs mechanisms
including the External Affairs Ministry. Foreign policy implementation
calls for cutting through the mind-set of a generation. [Para 6.14]
(113) One of the measures adopted in several western countries to fight
corruption and mal-administration is enactment of Public Interest
Disclosure Acts which are popularly called the Whistle-blower
Acts. Similar law may be enacted in India also. The Act must ensure
that the informants are protected against retribution and any form of
discrimination for reporting what they perceived to be wrong-doing, i.e.,
for bona fide disclosures which may ultimately turn out to be not entirely
or substantially true. [Para 6.16.3]
(114) The Government should examine the proposal for enacting a
comprehensive law to provide that where public servants cause loss to
the State by their mala fide actions or omissions, they would be made
liable to make good the loss caused and, in addition, would be liable for
damages. [Para 6.17]
(115) The Union Government should frame rules, without further loss of
time, under Section 8 of the Benami Transactions (Prohibition) Act, 1988
for acquiring benami property. Further, a law should be enacted to
provide for forfeiture of benami property of corrupt public servants as
well as non-public servants. [Para 6.19]
(116) The Government should examine enacting a law for confiscation of
illegally acquired assets on the lines suggested by the Supreme Court
in Delhi Development Authority vs. Skipper Construction Co. (P) Ltd. (AIR
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held proved are so serious as to call for his removal (i.e. proved
misbehaviour) or whether it should be sufficient to administer a warning
to him and/or make other directions with respect to allotment of work to
him by the concerned Chief Justice or to transfer him to some other
court (i.e. deviant behaviour not amounting to misbehaviour). If the
decision of the said committee of judges recommends the removal of the
Judge, it shall be a convention that the judge promptly demits office
himself. If he fails to do so, the matter will be processed for being placed
before Parliament in accordance with articles 124(4) and 217(1) Proviso
(b). This procedure shall equally apply in case of Judges of the Supreme
Court and the High Courts except that in the case of a Supreme Court
Judge the judge against whom complaint is received or inquiry is
ordered, shall not participate in any proceeding affecting him.
In appropriate cases the Chief Justice of the High Court or the
Chief Justice of India, may withhold judicial work from the judge
concerned after the inquiry committee records a finding against the
judge. [Para 7.3.8]
(124) Article 124(3) of the Constitution contemplates appointment of
Judges of Supreme Court from three sources. However, in the last fifty
years not a single distinguished jurist has been appointed. From the Bar
also, less than half a dozen Judges have been appointed. It is time that
suitably meritorious persons from these sources are appointed. [7.3.9]
(125) The retirement age of the Judges of the High Court should be
increased to 65 years and that of the Judges of the Supreme Court
should be increased to 68 years. [Para 7.3.10]
(126) In the matter of transfer of Judges, it should be as a matter of
policy and the power under article 222 and its exercise in appropriate
cases should remain untouched. The President would transfer a Judge
from one High Court to any other High Court after consultation with a
committee comprising the Chief Justice of India and the two senior-most
Judges of the Supreme Court. [Para 7.3.11]
(127) A proviso should be inserted in article 129 so as to provide that the
power of court to punish for contempt of itself inherent only in the Supreme
Court and High Courts and is available as part of privilege of Parliament
and State Legislatures, and no other court, tribunal or authority should
have or be conferred with a power to punish for contempt of itself. [7.4.7]
(128) A suitable provision may be inserted in the Constitution so as to
provide that except the Supreme Court and the High Courts no other court,
tribunal or authority shall exercise any jurisdiction to adjudicate on the
validity or declare an Act of Parliament or State Legislature as being
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with the inter-State Council may be considered before signing any treaty
vitally affecting the interests of the States regarding matters in the State
List. [Para 8.13.3]
EXECUTIVE
(160) The powers of the President in the matter of selection and
appointment of Governors should not be diluted. However, the Governor
of a State should be appointed by the President only after consultation
with the Chief Minister of that State. Normally the five year term should
be adhered to and removal or transfer should be by following a similar
procedure as for appointment i.e. after consultation with the Chief
Minister of the concerned State. [Para 8.14.2]
(161) In the matter of selection of a Governor, the following matters
mentioned in para 4.16.01 of Volume I of the Sarkaria Commission
Report should be kept in mind:- (i) He should be eminent in some walk of
life. (ii) He should be a person from outside the State. (iii) He should be a
detached figure and not too intimately connected with the local politics of
the State. (iv) He should be a person who has not taken too great a part
in politics generally, and particularly in the recent past.
In selecting a Governor in accordance with the above criteria, the
persons belonging to the minority groups should continue to be given a
chance as hitherto. [Para 8.14.3]
(162) There should be a time-limit – say a period of six months – within
which the Governor should take a decision whether to grant assent or to
reserve a Bill for consideration of the President. If the Bill is reserved for
consideration of the President, there should be a time-limit, say of three
months, within which the President should take a decision whether to
accord his assent or to direct the Governor to return it to the State
Legislature or to seek the opinion of the Supreme Court regarding the
constitutionality of the Act under article 143.[Para 8.14.4]
(163) Suitable amendment should be made in the Constitution so that the
assent given by the President should avail for all purposes of relevant
articles of the Constitution. However, it is desirable that when a Bill is
sent for the President's assent, it would be appropriate to draw the
attention of the President to all the articles of the Constitution, which
refer to the need for the assent of the President to avoid any doubts in
court proceedings. [Para 8.14.6]
(164) A suitable Article should be inserted in the Constitution to the effect
that an assent given by the President to an Act shall not be permitted to be
argued as to whether it was given for one purpose or another. When the
President gives his assent to the Bill, it shall be deemed to have been given
for all purposes of the Constitution. [Para 8.14.7]
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(192) The State laws should provide guidelines for the delimitation work
such as parity, as far as possible, in the ratio between the population of
a territorial constituency and the number of seats within the same class
of Panchayats or Municipalities. [Para 9.17.3]
(193) State laws should specify that changes in the administrative
boundaries of districts, sub-divisions, taluks, police stations, etc., should
not be made within six months prior to a panchayat or a municipal
election. [Para 9.17.4]
(194) To remove ambiguities, articles 243D and 243T should be suitably
amended to provide for rotation and changes only at the time of
delimitation and not in between. State laws should provide the guidelines
for the process of reservation which should ensure transparency and
adequate opportunities for eliciting voter response. [Para 9.18.2]
(195) To clarify the precise position of reservation under clause (6) of
article 243D and clause (6) of article 243T to be provided by the State law,
the overall total of reserved seats and reserved offices in Panchayats and
Municipalities should be specified. [Para 9.18.3]
(196) State Election Commissioner should have a fixed term of 5 years. He/she
should be equal to a Judge of the High Court. The broad qualifications for a
State Election Commissioner may be specified under State law. [Para 9.19.1]
(197) The concept of a distinct and separate tax domain for municipalities
should be recognised. This concept should be reflected in a list of taxes in
the relevant schedule. Carving out items from the existing State lists such
as item 49 (taxes on land and buildings) and item 52 (taxes on entry of
goods into a local area for consumption) should not be difficult. [Para 9.21]
INSTITUTIONS IN NORTH EAST INDIA
(198) The North Eastern part of India with its large number of tribal
communities and emerging educated elites has self-governing village
councils and organized tribal chiefdoms. Efforts are to be made to give all
the States in this region the opportunities provided under the 73rd and
74th Constitution Amendments. However, this should be done with due
regard to the unique traditions of the region and the genius of the people
without tampering with their essential rights and giving to each State the
chance to use its own nomenclature for systems of governance which will
have local acceptance. [Para 9.22.3]
(199) Careful steps should be taken to devolve political powers through
the intermediate and local-Ievel traditional political organisations,
provided their traditional practices carried out in a modern world do not
deny legitimate democratic rights to any section in their contemporary
society. The details of state-wise steps to devolve such powers will have
to be carefully considered in a proper representative meeting of
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(216) The three Constitution amendments enacted in the last two years
to undo the harm done in 1997 to the long pre-existing rights of SCs and
STs in reservations should be put into effect forthwith. The Central and
State Governments should amend the executive orders issued in 1997
regarding the roster and restore the pre-1996 roster. This should also be
brought under the purview of the statute mentioned above. [Para 10.3.5]
(217) Reservation for backward classes should also be brought under a
statute which, while containing the specificities of reservation for BCs
should also contain provisions for Arakshan Nyaya Adalats or Tribunal
for providing Justice in reservation, penal provisions, etc. as
recommended in case of statute in respect of SCs and STs. [Para 10.3.6]
(218) It should be mandatorily stipulated in the Memoranda of
Understanding (M.O.Us.) of privatisation or dis-investment of public
sector undertakings that the policy of reservation in favour of SCs, STs
and BCs shall be continued even after privatisation or dis-investment in
the same form as it exists in the Government and this should also be
incorporated in the respective statutes of reservation. As a measure of
social integration there should be a half per cent reservation for children
of parents one of whom is SC/ST and the other parent is non-SC/non-ST
and this reservation should be termed as reservation for the Casteless.
[Para 10.3.7]
(219) In view of the weighty opinion against the formal introduction of
reservation in the higher judiciary, and the fact that over fifty years, the
progress of education, however tardy, has certainly produced adequate
number of persons of the SC, ST and BC in every State who possess the
required qualifications, having necessary integrity, character and
acumen required for Judges of Supreme Court and High Courts for
appointment as Judge of the superior judiciary, a way could and should,
therefore, be found to bring a reasonable number of SCs, STs and BCs
on to the Benches of the Supreme Court and High Courts in the same
way in which, in practice, it is found is followed in respect of advocates
from different social segments/regions of the country/States or different
religious communities so that on the one hand the overwhelming opinion
against formal reservation in the Supreme Court and High Courts is
respected and on the other hand, the feeling of alienation of the vast
majority of Indians comprising SCs, STs and BCs that, in spite of having
persons of requisite calibre and character among them, they are being
ignored in the appointment of Judges, is resolved. [Para 10.3.9]
(220) There should be reservation for SCs, STs and BCs (including BC
minorities and especially More and Most Backward classes), with a due
proportion of women from each of these categories in the matter of
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Annexure P-3
BACKGROUND
PAPER ON
ELECTORAL REFORMS
(PREPARED BY THE CORE-COMMITTEE ON ELECTORAL REFORMS)
LEGISLATIVE DEPARTMENT
MINISTRY OF LAW AND JUSTICE
GOVERNMENT OF INDIA
CO-SPONSORED
BY
THE ELECTION COMMISSION OF INDIA
December, 2010
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I. Executive Summary
India stands as a model for many emerging democracies around the world. Free
and fair elections are the hallmark of a well functioning democracy. While we are
justifiably proud of our democracy, there are a number of areas which need to be
strengthened for us to realise the true potential of a well functioning democracy. Our
election system, from the selection of candidates, to the manner in which funds are raised
and spent in election campaigns, are in dire need of significant changes.
There has been a growing concern over the years in India about several aspects of
our electoral system. The Election Commission has made changes in several areas to
respond to some of the concerns. There have also been a number of committees which
have examined the major issues pertaining to our electoral system and made a number of
recommendations. But there remain some critical issues that might need legislative
action to bring about the required changes.
The criminalisation of our political system has been observed almost unanimously
by all recent committees on politics and electoral reform. Criminalisation of politics has
many forms, but perhaps the most alarming among them is the significant number of
elected representatives with criminal charges pending against them. Two measures
recommended by previous committees are discussed in this paper: enforcement of the
disclosure of criminal antecedents of candidates, and eligibility restrictions for candidates
with criminal cases pending against them.
The financing of elections has become a major issue in the past few decades. It is
widely believed that the cost of fighting elections has climbed far above the legal
spending limits. This has resulted in lack of transparency, widespread corruption, and the
pervasiveness of so-called „black money‟. This paper summarises proposals made on the
following issues: limits on campaign expenditure, disclosure and audit of assets and
liabilities of candidates and parties, methods of reducing the cost of political campaigns,
as well as state funding of elections.
The conduct of elections also has a number of issues that need to be addressed.
While the massive size of the electorate makes holding elections a daunting task, it
should not serve as a justification for the presence of issues such as booth capturing,
intimidation of voters, tampered electoral rolls, large-scale rigging of elections and other
polling irregularities; the proliferation of non-serious candidates; and the abuse of
religion and caste in the mobilization of voters. Potential solutions to these problems are
outlined in this paper.
This paper also takes consideration of major issues dealing with the role of
political parties in the electoral system: proliferation of non-serious parties; process of
recognition and de-recognition of political parties; disclosure of assets and liabilities of
parties; and audit and publishing of assets and liabilities.
Resolution of election petitions and disputes, as well as rulings on defections, are
two important processes seen to be operating in a slow and inefficient manner by many
pervious committees. Paper reviews recommendations made to mitigate these problems.
The Ministry of Law and Justice, Government of India, has constituted a
Committee on Electoral Reforms. The main purpose of the Committee is to recommend
to the government concrete ways in which our electoral system can be strengthened. The
Committee will take into account the opinions of political leaders, Government servants,
legal experts, NGOs, scholars, academics, journalists, and other stakeholders.
The purpose of this background paper is to recap some of the key issues with our
electoral system, and to briefly examine the recommendations made by some recent
committees in this regard. It is hoped that this background paper will be a starting point
to renew a national dialogue on the important changes that need to be brought about to
strengthen our electoral system.
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2.1 In this background paper, the Committee on Electoral Reforms does not endeavour to
make any recommendations of its own; rather it presents the recommendations made
by various committees to date in order to fulfil its purpose of providing background
information for substantive dialogue in regional and national consultations.
2.2 The topic of electoral reforms has been taken up by numerous government committees
in the recent past, including but not limited to:
Goswami Committee on Electoral Reforms (1990)
Vohra Committee Report (1993)
Indrajit Gupta Committee on State Funding of Elections (1998)
Law Commission Report on Reform of the Electoral Laws (1999)
National Commission to Review the Working of the Constitution (2001)
Election Commission of India – Proposed Electoral Reforms (2004)
The Second Administrative Reforms Commission (2008)
2.3 There has also been a great deal of substantive work on the topic of Electoral Reforms
undertaken by various civil society groups, which have contributed significantly to
the public discourse on the subject. While acknowledging the contribution of these
groups, the Committee limits its discussion of reform recommendations in this paper
to those published by the committees mentioned above.
2.4 A number of committees have discussed major structural reforms of the electoral
system, such as a shift away from the First Past the Post (FPTP) system of
representation. We will explore options for electoral reform within the framework of
current system and will not address these larger structural issues in this paper.
2.5 This background paper is also being made available on the website of the Law
Ministry. It is hoped that many more stakeholders will be able to provide inputs either
online or by post to the Ministry of Law and Justice, Government of India. The work
of this Committee will be enriched by such inputs, and the Committee looks forward
to wide participation in the weeks ahead from experts and ordinary citizens.
III. Introduction
3.1 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.
3.2 In our experience of holding elections for six decades, a number of issues have come
to the fore from time to time. Legislative changes were made, the Election
Commission developed a Code of Conduct, and passed several strictures with a view
to conducting elections in a smooth manner. But in recent years, there have been
some alarming trends that have been noticed which can potentially jeopardise the
democratic freedoms we enjoy in India today.
3.3 At a more fundamental level, if citizens do not have faith in the way our elected
representatives are chosen, there is danger to the very idea of democracy itself.
Widely held views among the public with regard to criminalisation of politics, the use
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of money power in securing votes, the paid-news disease are some of the issues that
are enlarging the trust deficit with regard to our elections. This needs to be stemmed
at the earliest and in a clear and transparent manner to regain the trust of the citizens in
our democratic process.
3.4 Civil society groups, journalists, and other observers of the process have been playing
an important role in identifying a number of the weaknesses of our existing system.
There have been efforts to use the courts to seek to push reform on this important
issue. The widely known practice of every candidate having to declare their assets,
liabilities and pending criminal cases came about as a result of a landmark court
judgement.
3.5 Election Commission has been at the forefront of initiating efforts to strengthen the
electoral system. But its own mandate can sometimes be a limiting factor. In this
context it would be necessary to examine the issue with regard to legislative and other
changes that will be required to make electoral system work better for all our citizens.
3.6 In recent years a number of committees have examined several aspects of our
electoral process and have recommended important changes to the system. Some of
these recommendations have been implemented & yet there is much more to be done.
3.7 In order to take the agenda forward, the Ministry of Law and Justice, Government of
India has constituted a Committee on Electoral Reforms. This Committee seeks to
hold regional consultations followed by a national consultation in order to develop a
set of actionable recommendations. Every effort would be made by this Committee to
reach out to a wide set of experts and stakeholders and to benefit from the insights and
experience of all concerned. The objective of these recommendations would be to
provide the basis of developing legislative and other proposals which can then be
The criminalisation of our political system has been observed almost unanimously by all
recent committees on politics and electoral reform. Criminalisation of politics has many
forms, but perhaps the most alarming among them is the significant number of elected
representatives with criminal charges pending against them. Two measures recommended
by previous committees are discussed in this paper: enforcement of the disclosure of
criminal antecedents of candidates, and eligibility restrictions for candidates with
criminal cases pending against them.
Currently, 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 of Representation of the People Act, 1951, and
sentenced to imprisonment for one year or more. In addition to this, pursuant to the order
of the Supreme Court 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.
Section 125A of the R.P. Act, 1951 prescribes penalties for withholding or providing
incorrect information on Form 26, which amount to imprisonment of up to six months, or
fine, or both.
In its report entitled Proposed Electoral Reforms, 2004 the Election Commission of India
notes that “in some cases, the candidates leave some of the columns blank…there have
been cases where candidates are alleged to have given grossly undervalued information.”
Recommendations
In its report on Proposed Election Reforms, 2004, the Election Commission of
India recommended that an amendment should be made to Section 125A 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. It also recommended that Form 26 be amended to include all items from the
additional affidavit prescribed by the Election Commission, add a column requiring
candidates to disclose their annual declared income for tax purpose as well as profession.
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 of the qualifications necessary for membership to the
House of the People.
4.2 Eligibility of candidates with criminal cases pending against them
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. In subsection
(1), it lists certain crimes and stipulates a disqualification period of six years from the
date of conviction. 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 subsection (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.
Recommendations
The Election Commission proposed in its 2004 report that Section 8 of the
Representation of the People Act, 1951 should be amended to disqualify candidates
accused of an offence punishable by imprisonment of 5 years or more even when trial is
pending, given that the Court has framed charges against the person. In the report the
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Commission addresses the possibility that such a provision could be misused in the form
of motivated cases by the ruling party. To prevent such misuse, the Commission
suggested a compromise whereas only cases filed prior to six months before an election
would lead to disqualification of a candidate. In addition, the Commission proposed that
Candidates found guilty by a Commission of Enquiry should stand disqualified.
The report “Ethics in Governance” of the Second Administrative Reforms concurred with
the recommendation of the Election Commission.
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 on the expiry of a
period of one year from the date the charges were framed against him, and unless cleared
during that one year period, he shall remain disqualified until the conclusion of his trial.
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 derecognised and deregistered. Thirdly, the Commission has
stated that any person convicted for any heinous crime such as murder, rape, smuggling,
dacoity, etc., should be permanently barred from contesting political office. Finally, the
Commission proposes 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 there is
indeed a prima facie case justifying the framing of the charges. Special Courts would be
constituted at the level of High Courts and decisions would be appealable only to
Supreme Court.
The 1999 Law Commission of India Report takes a separate stand, suggesting that
Section 8 remain unchanged. It suggests, however, the addition of a new section –
Section 8B, which would provide a separate set of penalties for electoral offences and
offences having a bearing upon the conduct of elections under sections 153A and 505
IPC and serious offences punishable with death or life imprisonment. The proposed
Section 8B would provide that framing of charges shall be a ground of disqualification
but this disqualification shall last only for a period of five years or till the acquittal of
the person of those charges, whichever event happens earlier. If a candidate is found
guilty they would automatically be disqualified under Section 8.
The criminalisation of politics, widespread corruption in the system, and use of violence,
voter intimidation, etc may result in there being no desirable candidates within those
contesting elections in a particular constituency. Currently there is no way for voters to
express their dislike for all candidates. The lack of such a provision may further
contribute to the decay in the system in such cases by encouraging only those voters who
support such compromised candidates to vote, returning those same leaders to power
again and again.
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Recommendations
Both the Election Commission and Law Commission of India recommend that a negative
or neutral voting option be created. Negative/ neutral voting means allowing voters to
reject all of the candidates on the ballot by selection of a “none of the above” option
instead of the name of a candidate on the ballot. In such a system there could be a
provision whereas if a certain percentage of the vote is negative/neutral, then the election
results could be nullified and a new election conducted.
V. Financing of Election
There are many negative social impacts of this high cost. Chapter 4 of the Report of the
National Commission to Review the Working of the Constitution, 2001, notes that the
high cost of elections “creates a high degree of compulsion for corruption in the public
arena” and that “the sources of some of the election funds are believed to be unaccounted
criminal money in return for protection, unaccounted funds from business groups who
expect a high return on this investment, kickbacks or commissions on contracts, etc.” It
also states that “Electoral compulsions for funds become the foundation of the whole
super structure of corruption”.
A number of remedies have been recommended by previous committees for curbing the
negative impact of the high cost of elections:
Currently, limits on campaign expenditure are fixed at certain amounts depending on the
nature of the election. However, it is believed that these limits are violated with audacity.
This is mainly attributed to the fact that the actual cost of running an election campaign is
often much greater than the prescribed spending limit.
Recommendations
also suggested a much bolder one: (a) either the statutory limit should be scrapped
altogether and replaced by a selective ban on certain kinds of expenditure. Or the
existing provisions should be amended to provide for: (i) much higher ceiling than what
currently exists; (ii) regular revision of the ceiling before every general election; (iii) all
the expenditure, irrespective of who paid for it, to be brought within the purview of this
provision; (iv) mechanism for routine verification /auditing of the return of the
expenditure; and (v) publicity of the returns filed by the candidate in the local press.
The Election Commission of India recommends that the ceiling on election expenditure
be rationalized from time to time.
In an order dated March 27, 2003, the Election Commission of India issued an order, in
pursuance of the Supreme Court judgment dated March 13, 2003 in the Peoples Union
for Civil Liberties & Another Vs. Union of India case, that candidates for electoral office
must submit an affidavit disclosing his assets and liabilities.
It has been noted by the Election Commission of India in its report Proposed Electoral
Reforms, 2004, that “there have been many cases where the candidates are alleged to
have given grossly undervalued information, mainly about their assets.”
Recommendations
It has been noted by previous committees that in order to remedy the negative impact of
the excessive cost of elections, the first step should be to reduce the cost of elections
themselves.
Recommendations
It was observed by both the Indrajit Gupta Committee on State Funding of Elections,
1999, and the National Commission to Review the Working of the Constitution, 2001,
that many of the tools used for campaigning – such as wall writings, rallies on public
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property, using loudspeakers for campaigning – are not only costly, but are also a public
nuisance. Curbing these activities can both reduce the public nuisance caused by them
and also reduce the amount of money needed to fight elections. For this purpose the
Committees suggested that a suitable law should be enacted providing penalties or
reasonable restrictions against damaging or desecrating public or private property by
candidates, political parties, or the agents, through painting of slogans or erecting cut-
outs and hoarding or putting up banners and buntings, wall writings, hoisting of flags
(except at party offices, party offices, public meetings and other specified places), etc.
In addition, the National Commission to Review the Working of the Constitution, 2001,
suggested the following measures: (i) State and Parliamentary level elections, to the
extent possible, should be held at the same time; (ii) the campaign period should be
reduced considerably, and (iii) candidates should not be allowed to contest election
simultaneously for the same office from more than one constituency.
A major concern associated with the high cost of elections is that it prevents parties and
candidates with modest financial resources from being competitive in elections. It is also
feared that if candidates need to raise funds from a variety of sources, then their policy
decisions after being elected as policy makers may be somewhat biased in favour of
groups that fund them. State funding of elections (in various forms) has been proposed as
a potential solution to this problem.
Recommendations
The Indrajit Gupta Committee on State Funding of Elections, 1998, backed the idea of
state funding of elections on principle, stating that “The Committee see full justification
constitutional, legal as well as on ground of public interest, for grant of State
subvention to political parties, so as to establish such conditions where even the parties
with modest financial resources may be able to compete with those who have superior
financial resources.” It added two limitations, namely (i) such funds could not be doled
out to independent candidates, and only to national and state parties having granted a
symbol and proven their popularity among the electorate, and (ii) in the short-term, State
funding may be given only in kind, in the form of certain facilities to the recognised
political parties and their candidates. However, despite strongly backing full State
funding of elections principle, it stated that only partial State funding would be possible
in the short-term given the prevailing economic condition of the country.
The 1999 report of the Law Commission of India concurred with the Indrajit Gupta
Commission, stating that “it is desirable that total state funding be introduced, but on the
condition that political parties are barred from raising funds from any other source”. It
also agreed with the Indrajit Gupta Commission that only partial state funding was
possible at the present time given the economic conditions of the country. Additionally, it
strongly recommended that the appropriate regulatory framework be put in place with
regard to political parties (provisions ensuring internal democracy, internal structures
and maintenance of accounts, their auditing and submission to Election Commission)
before state funding of elections is attempted.
The National Commission to Review the Working of the Constitution, 2001, did not
comment on the desirability of State funding of elections but reiterated the point of the
Law Commission that the appropriate framework for regulation of political parties would
need to be implemented before proposals for State funding are considered. The Election
Commission is not in favour of state funding as it will not be possible to prohibit or check
candidate‟s own expenditure or expenditure by others over and above that which is
provided by the State. The Election Commission‟s view is that for addressing the real
issues, there have to be radical changes in the provisions regarding receipts of funds by
political parties and the manner in which such funds are spent by them so as to provide
for complete transparency in the matter.
The massive size of the Indian electorate makes general elections an enormous and daunting
exercise. But this should not prevent us from finding more ways of making the election
process free and fair.
According to the Election Commission of India, the size of the electorate for the 2009
elections to the 15th Lok Sabha was more than 714 million. The National Commission to
Review the Working of the Constitution, 2001, noted in its report that “the holding of
general elections in India is equal to holding them for Europe, the United States, Canada,
and Australia all put together.” Successful administration of the electoral process requires
more than 50 lakh personnel and almost 1 million (10 lakh) polling booths. Millions of
security personnel are required to promote a peaceful and incident-free voting experience.
Previous committees have recommended several changes in the conduct of the electoral
process to properly address the challenges mentioned above. Major problems in the
conduct of elections and proposed solutions are outlined below.
Irregularities in polling procedure have been identified as important issues that need to be
addressed in our electoral system. Rigging of elections have become common facets of
our electoral system.
The National Commission to Review the Working of the Constitution, 2001, rightly
noted that “The electoral process begins with the preparation of electoral rolls. If the rolls
are incomplete or defective, the whole process is vitiated.” A Consultation Paper to the
National Commission to Review the Working of the Constitution noted that “political
parties and influential persons manage large-scale registration of bogus voters, or large-
scale deletion of names of “unfriendly” voters.” The Goswami Committee on Electoral
Reforms stated that irregularities in electoral rolls are exacerbated by purposeful
tampering done by election officials who are bought by vested interests or have partisan
attitudes.
Aside from intentional tampering, the structure of the system set up to create electoral
rolls may contribute significantly to the widespread inaccuracies. In the current system,
the Election Commission prepares electoral roles for Parliamentary and Assembly
constituencies, and the State Election Commissions prepare electoral rolls for local
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elections. While some states have coordinated their electoral rolls with those prepared by
the Election Commission, there are still some states that significantly modify them. Some
states even have different qualifying dates for the State rolls from the Election
Commission rolls, which is inefficient for both the Commissions involved and confusing
for the voter. The duplication of essentially the same task between two different agencies
is also an unnecessarily costly affair.
Recommendations
The 2004 report on Proposed Electoral Reforms, the Election Commission concurred
with the National Commission to Review the Working of the Constitution that there
should be common rolls for all elections, with the Parliamentary and Assembly rolls
adapted to suit the needs of local bodies elections. This is primarily recommended by the
Commission for the purpose of saving on expenditure and to make the process more
efficient.
The Goswami Committee of 1990 recommended that Post Offices should be the agencies
for preparation and maintenance of electoral rolls. This solution may well be outdated in
today‟s society where efficient computerized systems can be created. The Committee, did
however, recommend a multi-purpose ID somewhat along the same lines as that proposed
by the National Commission to Review the Working of the Constitution.
Rigging of elections is possible not just through tampering of booths, ballots, and
electoral roles, but also out of sheer „muscle power‟ and intimidation of voters.
Recommendations
The Goswami Committee Report of 1990 recommended that the Election Commission
should be empowered to take strong action on the report of returning officers, election
observers, or civil society in regards to booth capture or the intimidation of voters. The
National Commission to Review the Working of the Constitution recommends that the
Election Commission should have the power under Section 58A of the Representation of
the People Act, 1951, to order a fresh election, void the election results, or order a re-poll
in such cases. It further recommended that the Election Commission should make use of
electronic surveillance equipment as a deterrent to booth capture or intimidation of
voters.
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Recommendations
The Election Commission of India, Law Commission of India, and National Commission
to Review the Working of the Constitution all recommend measures to check the
proliferation of non-serious candidates. In their reports, all the Committees mentioned
recommended increasing the security deposit of candidates. The recommendations of
these Committees were enacted through the Representation of the People (Amendment)
Act, 2009, which increased the amount. The Election Commission further recommends
that it be given the power to prescribe deposit amounts prior to each election so that
repeated amendments to the Representation of the People Act are not necessary.
The Law Commission of India Report on Reform of the Electoral Laws goes even further
and declares that independent candidates should be debarred from contesting elections to
the Lok Sabha.
The National Commission to Review the Working of the Constitution proposed a system
of discouraging independent candidates from running for office, by implementing the
following measures: (i) the existing security deposits for independent candidates should
be doubled, (ii) the deposit should be doubled every year for those independents who fail
to win and still keep contesting elections, (iii) if any independent candidate fails to win
five percent of the vote or more, he should be debarred from contesting as an independent
for the same office for six years, (iv) an independent candidate who loses election three
times consecutively for the same office as an independent should be permanently
debarred from contesting election to that office.
Recommendations
Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election
Commissioner shall not be removed from his office except in like manner and on like
grounds as a Judge of the Supreme Court. However, Clause (5) of Article 324 does not
provide similar protection to the Election Commissioners and it only says that they
cannot be removed from office except on the recommendation of the Chief Election
Commissioner. The provision, in the opinion of the Election Commission, is inadequate
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and requires an amendment to provide the very same protection and safeguard in the
matter of removability of Election Commissioners from office as is provided to the Chief
Election Commissioner. The Election Commission recommends that constitutional
protection be extended to all members of the Election Commission.
The ECI also recommends that the Secretariat of the Election Commission, consisting of
officers and staff at various levels is also insulated from the interference of the Executive
in the matter of their appointments, promotions, etc., and all such functions are
exclusively vested in the Election Commission on the lines of the Secretariats of the Lok
Sabha, and Rajya Sabha, Registries of the Supreme Court and High Courts etc.
The third recommendation of the Election Commission is that its budget be treated as
“Charged” on the Consolidated Fund of India.
6.4 Restrictions on Government sponsored advertisements
It has been noted by the Election Commission that on the eve of election, the Central and
various State Governments are able to advertise for the purpose of influencing elections,
justifying it by providing information to the public. The expenditure on such
advertisements is likely incurred from the public exchequer. The Election Commission
feels this practice allows the misuse of public funds and provides the ruling party an
undue advantage over other parties and candidates.
Recommendations
The Election Commission proposes that where any general election is due on the
expiration of the term of the House, advertisements of achievements of the governments,
either Central or State, in any manner, should be prohibited for a period of six months
prior to the date of expiry of the term of the House, and in case of premature dissolution,
from the date of dissolution of the House. Here, advertisements / dissemination of
information on poverty alleviation and health related schemes could be exempted from
the purview of such a ban. The Commission also recommends that there should be
specific provisions that name or symbol of any political party or photograph of any of the
leaders of the party should not appear on such hoardings/banners.
6.5 Restriction on the number of seats which one may contest
Section 33 of the Representation of the People Act, 1951, a person can contest a general
election or a group of bye-elections or biennial elections from a maximum of two
constituencies. There have been several cases where a person contests election from two
constituencies, and wins from both. In such a situation he vacates the seat in one of the
two constituencies. The consequence is that a bye-election would be required from one
constituency which apart from involving avoidable labour and expenditure on the
conduct of that bye-election.
Recommendations
The Election Commission is of the view that the law should be amended to provide that a
person cannot contest from more than one constituency at a time.
6.6 Amendment of law to provide for filing of election petition even against
defeated candidates on the ground of corrupt practice
As per the existing law, election petition can be filed only for challenging the election of
a returned candidate. If a defeated candidate has indulged in corrupt practice, there is no
provision for election petition or a declaration against such candidate.
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Recommendations
The Election Commission has recommended in its letter dated 24th April 2009 that the
law should be amended to provide for filing election petitions in cases of commission
of corrupt practice by a losing candidate. In the same letter, it was also suggested that
the period by which the candidates are required to file their account of election
expenses should be reduced to 20 days from the present 30 days, so that more time is
available for others to scrutinize the accounts and to take the matter to the Court in
Election Petitions in cases of spending in excess of the ceiling. Alternatively, the
period for filing Election Petition may be increased to 60 days.
Previous committees on electoral law have debated the possibility of whether opinion
polls are misused to manipulate voters on the eve of elections.
Recommendations
The Election Commission had recommended that there should be provision in the law
putting restrictions on publishing the results of opinion polls and exit polls for a specified
period during the election process. By the recent amendment of the Representation of the
People Act,1951, a new Section 126A has been inserted in the Act prohibiting
conducting of exit polls and publishing results in any manner, during the period starting
from 48 hours before the close of poll in an election. In a multi-phased election, the
prohibition will last till the close of poll in the last phase.
However, the amendment does not cover opinion polls. Thus, results of opinion poll can
be published even on the day of election polling. Although dissemination of results of
opinion polls would be prohibited during the 48 hours period before the conclusion of
poll by virtue of Section-126 (1) (b) on electronic media, there is no provision of law to
restrict dissemination through print media (since 126(1)(b) doesn‟t apply to print media).
Section 126 of the Representation of the People Act, 1951, prohibits electioneering
activities by way of public meetings, public performance, processions, advertisements
through cinematograph, television or similar apparatus during the period of 48 hours
before the time fixed for conclusion of poll. Thus, political advertisements in TV and
Radio are prohibited during these 48 hours. However, since this Section does not refer to
print media, the political parties and candidates issue advertisements in newspapers
during this period including on the day of poll. They also undertake house-to-house
visits. The logic behind the restriction on campaigning during the 48 is to allow citizens
to decide their option without being prejudiced by any last moment appeals.
Recommendations
The Election Commission recommends that Section 126 should apply to print media as
well. Furthermore, it recommends that house to house visits by candidates/supporters
should be specifically prohibited during the said 48 hour period. It is the opinion of the
Commission that the house-to-house visit/ contact in the last hours provides that
opportunity for indulging in malpractices such as trying to bribe electors with cash.
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It is the opinion of the Election Commission that such transfers, often made on grounds
other than administrative exigencies, disrupt the arrangements then underway for
conducting smooth and peaceful elections.
Recommendations
Section 31 of the Representation of the People Act, 1950, contains a provision providing
for punishment with imprisonment up to one year for making a false declaration in
connection with preparation/revision of electoral roll. There is no such provision in the
Representation of the People Act, 1951, in relation to conduct of elections. During the
course of an election, the Election Commission has observed several cases of such false
statements/declarations before the election authorities such as by candidates,
representatives of political parties etc. A provision for punishment for false statement /
declaration would be a deterrent against frivolous complaints and petitions.
Recommendations
The Election Commission recommends that there should be a provision for penal action
against those making any false declarations in connection with an election. Such a
provision would provide for a similar punishment for false declarations in connection
with conduct of elections, such as false complaints of booth capturing or false complaints
about the conduct of election officials.
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 171G,
publishing a false statement in connection with an election with intent to affect the result
of the election is only punishable with a fine. Section 171H 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 small fine of Rs 500.
Recommendations
The Election Commission feels that 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 should be enhanced. This was recommended by the Commission in 1992.
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A petition was submitted in the Patna High Court last year on the topic of restoring the
cycle of biennial retirement in the Rajya Sabha and Legislative Councils. The High
Court, in its order, observed that the Government and the Election Commission may
consider the matter for a solution.
Recommendations
In its December 2004 the Election Commission reiterated the earlier proposal for
amending the law so as to ensure retirement of 1/3rd of the members in the Rajya Sabha
and State legislative councils after every two years.
Presently the expenditure ceiling for candidates applies only for the Lok Sabha and
Assembly elections.
Recommendations
The Commission has in its letter dated 30th May 2007 proposed that this should also be
applicable in the case of legislative council elections from the Council Constituencies.
The candidate should also be required to submit the account of election expenses.
The Liberhan Ayodhya Commission of Inquiry recommended, inter alia, that complaints
of misuse of religion for electoral gain should be speedily investigated into by the
Election Commission. The Election Commission informed the government (Letter dated
January 29, 2010) that such investigations should be carried out by the investigating
agencies of the state. However, the Election Commission invited the attention of the
government to the Representation of the People (Second Amendment) Bill, 1994,
whereby an amendment was proposed providing for provision to question acts of misuse
of religion by political parties before a High Court. Similar recommendations made by
the Goswami Committee were included in a Bill introduced in the Rajya Sabha in May
1990. The Government withdrew this Bill in 1993, stating that a revised Bill would be
introduced. However, these provisions have never been considered since then.
Recommendations
The Goswami Committee on Electoral Reforms, in its report in 1990, made the following
recommendations: “Election Commission shall have the power to make
recommendations to the appropriate authority (a) to refer any matter for investigation to
any agency specified by the Commission (b) Prosecute any person who has committed an
electoral offence under this Act or (c) appoint any special court for the trial of any
offence or offences under this Act (RP Act 1951).”
The ECI recommends that abovementioned provisions should be reconsidered.
Recommendations
Under Article 171 (3) (b) & (c ) of the Constitution, one-twelfth of the seats in the
Legislative Councils are to be filled up by graduates and another one-twelfth by teachers
who have been engaged in teaching in educational institutions not lower in standard than
that of a secondary school. As per the provisions of this Article, a teacher teaching in the
lower primary section in a secondary school is eligible to be enrolled as an elector for the
Teachers‟ constituency, whereas a teacher teaching in the middle school in a
middle/primary school will not be eligible to be an elector.
Recommendations
The Election Commission recommends that the provisions of Article 171 (3) (c) should
be amended so as to provide that all teachers of specified institutions irrespective of the
level of the school would be eligible to be electors for the Teachers‟ constituency.
Furthermore, the Commission is of the view that the concept of special representation for
graduates and teachers should itself be reconsidered.
The Election Commission utilizes the services of a large number of government officers
for election duties, who perform important statutory functions in connection with
preparation of electoral rolls and conduct of elections. The Election Commission has
observed many of these officers are later subjected to humiliation and even vindictive
disciplinary action by the government.
Recommendations
The Election Commission recommends that in the case of the government officers
performing statutory functions in connection with preparation of electoral rolls, or in the
conduct of elections, consultation with the Election Commission and its concurrence
should be made compulsory before initiating any disciplinary/legal proceedings by the
government. In the case of those officers who have ceased to hold election related
positions, consultation with the Commission should be mandatory for initiating any
disciplinary/legal proceedings for a period of one year from the date on which the officer
ceased to hold election related position.
Recommendations
The Election Commission recommends that the period of disqualification under Section
10A should be increased to 5 years, so that the disqualified person does not become a
candidate at the next general election to the House concerned.
In its 2001 report, the National Committee to Review the Working of the Constitution
states that “it is a desirable objective to promote the progressive polarisation of political
ideologies and to reduce less serious political activity.”
National Commission to Review the Working of the Constitution adds that while proliferation of
smaller parties creates “confusion”, any tightening of regulation on the subject must also take
into account “need to reflect the aspirations of a plural society.”
Recommendations
Furthermore, the above Commission recommended that “the rules and by-laws of the
parties seeking registration should include provisions for:
(a) A declaration of adherence to democratic values and norms of the Constitution in
their inner party organisations,
(b) A declaration to shun violence for political gains.
(c) A declaration not to resort to casteism and communalism for political
mobilisation, but to adhere to the principles of secularism in the achievement of their
objectives,
(d) A provision for party conventions to nominate and select candidates for political
offices at the grass root and State levels
(e) A code of conduct (which each political party should evolve for itself),
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(f) Some institutional mechanism for planning, thinking, and research on crucial
socio-economic issues facing the nation and educational cells for socialising their
party cadres and preparing them for responsibilities of governance,
(g) Implementation of legal provisions regarding representation to women and
weaker sections of society in party offices and in candidacy for elections to Houses of
Legislatures”
As mentioned previously in this report, the high cost of elections provides a logic for
corruption in the public arena. This affects not only candidates, but parties as well.
In an order dated March 27, 2003, the Election Commission of India issued an order, in
pursuance of the Supreme Court judgment dated March 13, 2003 in the Peoples Union
for Civil Liberties & Another Vs. Union of India case, that candidates for electoral office
must submit an affidavit disclosing his assets and liabilities. This order, however, does
not apply to political parties.
Recommendations
The 2004 report of the Election Commission declared that political parties should be
required to publish their accounts (or at least an 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 auditing may be done by any firm of auditors approved by the Comptroller
and Auditor General. The audited accounts should then be made public.
The Election and Other Related Laws (Amendment) Bill, 2002 (introduced in Lok Sabha
on 19th March, 2002) sought to introduce section 29D in the Representation of the People
Act, 1951 in this regard. The Department-Related Parliamentary Standing Committee on
Home Affairs while examining the matter desired that the audit of accounts of donation
received by the political party may be done through Chartered Accountants appointed by
it as at present, as per the provisions of the Income-tax Act (section 13A). In view thereof
the Committee recommended deletion of entire section 29D in Clause 2 of the Bill.
The Law Commission, in its 1999 report, recommended steps be taken to amend the
Representation of the People Act, 1951, to insert a new section 78A requiring the
maintenance, audit and publication of accounts by political parties. To enforce
compliance, Section 78A would prescribe the following penalties: (i) a political party
which does not comply shall be liable to pay a penalty of Rs. 10,000/- for each day of
non-compliance and so long as the non-compliance continues; (ii) If such default
continues beyond the period of 60 days, the Election Commission may de-recognise
the political party after affording a reasonable opportunity to show cause; (iii) If the
Election Commission finds on verification, undertaken whether suo motu or on
information received, that the statement of accounts filed is false in any particular, the
Election Commission shall levy such penalty upon the political party, as it may deem
appropriate besides initiating criminal prosecution as provided under law.
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Disputes relating to elections of the State Legislature and Union Legislature are
adjudicated upon exclusively by the High Courts before whom election petitions under
Section 80 and 80-A of the Representation of Peoples Act, 1951, are filed.
Sections 86(6) and 86(7) of the Representation of the People Act, 1951, provide that the
High Court shall make an endeavour to dispose of an election petition within six months
from its presentation and also as far as practicably possible conduct proceedings of an
election petition on a day to day basis.
In practice, however, cases involving election petitions are rarely resolved in a timely
manner. According to the report “Ethics in Governance” of the Second Administrative
Reforms Commission, “such petitions remain pending for years and in the meanwhile,
even the full term of the house expires thus rendering the election petition infructuous.
Recommendations
The National Commission to Review the Working of the Constitution, recommended that
special election benches designated for election petitions only should be formed in the
High Court.
The Election Commission has also made a similar recommendation.
The 91st Amendment to the Constitution, 2003, changed this by making it mandatory for
defectors to resign their positions regardless of whether they defected as an individual or
as part of a group.
The Election Commission, in its 2004 report, noted that “all political parties are aware of
some of the decisions of the Hon‟ble Speakers, leading to controversies and further
litigation in courts of law.” National Committee to Review Working of the Constitution
noted that “some of the Speakers have tended to act in a partisan manner and without a
proper appreciation – deliberate or otherwise – of the provisions of the Tenth Schedule.”
Recommendations
The National Commission to Review the Working of the Constitution recommend that
“the power to decide on questions as to disqualification on ground of defection should
vest in the ECI instead of in the Chairman or Speaker of the House concerned.”
The Ministry of Law and Justice has prepared a table reviewing progress made on the
recommendations suggested by the Election Commission in 2004.
In July, 2004, the Election Commission has sent a set of 22 proposals on Electoral
Reforms. Further, the entire matter of electoral reforms was referred to the Department
Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and
Justice for examination by the Chairman, Rajya Sabha in the year, 2005.
Out of 22 proposals the Hon‟ble Standing Committee gave its recommendations on six
proposals including criminalization of politics. The Department has taken initiative and
relevant provisions of the Representation of the People Act, 1950 and Representation of
the People Act, 1951 have been amended to provide for (1) Appointment of Appellate
Authority in districts against orders of Electoral Registration Officers; (2) to increase the
security deposit of candidates; (3) Exit Polls; (4) All officials appointed in connection
with conduct of elections to be included in clause (7) of section 123; and (5)
Simplification of procedure for disqualification of a person found guilty of corrupt
practice. The Hon‟ble Standing Committee did not favour the proposal on carrying out
any amendment relating to the Criminalisation of politics.
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Brief details of each of the proposal and remarks thereon are as under:-
Department.
12. Composition of ECI and It was decided to include it as a proposal for
Constitutional Protection to all regional and national consultation.
ECs and Independent Secretariat
for the Commission.
13. Expenses of Election The proposal to make the expenses of the
Commission to be Treated as Election Commission of India „charged‟ was
Charged. considered by the Dinesh Goswami Committee
but was not favoured. In 1994, the
Government, however, introduced the Election
Commission (Charging of Expenses on the
Consolidated Fund of India) Bill, 1994 in Lok
Sabha on 16.12.94 which lapsed on the
dissolution of the Tenth Lok Sabha. The
Department-Related Parliamentary Standing
Committee on Home Affairs in its 24th Report
on the said Bill presented to Rajya Sabha on
28.11.1995 and was of the considered view
that there is no need of passing the proposed
Bill and recommends that the Bill be dropped
The Election Commission of India again made
a similar proposal in 1997 which was placed
before political parties in the all party meeting
held on 22.5.1998 but no view was taken.
Again, the Election Commission of India made
the same proposal in May, 2003 and on the
direction of the then Hon‟ble Prime Minister
the same was placed before the political parties
in the all party meeting held on 29.10.2003.
The debate on the proposal remained
inconclusive.
14. Ban on Transfers of Election This is to amend section 13CC of the
Officers on the Eve of Elections Representation of the People Act, 1950, and
section 28A of the Representation of the
People Act, 1951 to provide that no transfer
shall be made, without the concurrence of the
Commission, of any officer referred to therein,
as soon as a general election/bye-election
becomes due in any Parliamentary or
Assembly Constituencies.
15. All Officials Appointed in Enacted vide Representation of the People
Connection with Conduct of (Amendment) Act, 2009 (Act 41 of 2009).
Elections to be included in
Clause (7) of Section 123.
16. Anti-Defection Law No view has been taken.
The question of disqualification
of members on the grounds of
defection should also be decided
by the President and Governors,
on the opinion of the Election
Commission.
17. Use of Common Electoral Rolls The matter has been examined and decided to
at Elections Conducted by the await the outcome of the discussion between
Election Commission and the the ECI and State Election Commissions to
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(3) Restoration of Cycle of Rajya Under article 80 and 171 of the Constitution every
Sabha and Legislative Council:- second year as nearly as possible one-third member
of the Council of State and Legislative Council shall
retire every second year. Due to non availability of
the Legislative Assembly in certain States/Union
Territory for continuous years, the cycle of the Rajya
Sabha could not be maintained and eventually all the
Members of the Council of States from that States get
elected for a period of Six years. A similar situation is
being faced in the case of Legislative Council in
respect of the States of Bihar, U.P., Karnataka etc.,
due to non availability of Local Bodies, Assemblies for
longer periods. In this regard it may be submitted
that the Election Commission has suggested some
methods to be adopted to sort out these
eventualities in future.
The Ld. Attorney General for India is of the view
that the sanctity of the provisions of the
Constitution may be maintained and the cycle of
retirement of the Members of Rajya Sabha and
Legislative Council should be restored.
(4) Appointment of Chief Election One of the Chief Election Commissioners has
requested the Government to have a collegium
Commissioner (CEC) and other
consisting of the Prime Minister and Leader of
Election Commissioners (EC) and Opposition etc. who is empowered to make
recommendations for appointments of the CEC
consequential matter:- and ECs. Further, it has also been suggested that
there should be complete ban for ten years after
retirement from the post of CEC to any political
post.
Annexure P-4
2016
FOREWORD
FOREWORD
One of the notable features for which India is known to the world is its
electoral Democracy. However, in order to call a system truly Democratic,
it is necessary that it must reect the political and socioeconomic
aspirations of its people.
The issue of electoral reforms has been taken up by Parliament,
the Government, the Judiciary, the Media and the Commission on
numerous occasions. The Commission during all these times has striven
to bring positive changes in the electoral system for better
implementation. There have been various correspondence exchanged
between the government and the Commission to ensure that the required
electoral reforms are brought in place. However, for strengthening the
existing system and removing the difficulties arising in ensuring free and
fair elections the Commission stresses that various steps are required to
be taken for the better practice in election related matters.
Maintaining the purity and transparency of election process is a
very challenging job and involves a lot of inherent complexities. However,
the Commission in its endeavour has always tried to ensure the fairness
in elections by putting in tremendous efforts in line with all stakeholders.
Therefore, these proposals besides giving a perspective on the challenges
faced during the elections, seek to provide a comprehensive framework
about the ways in which these challenges can be effectively dealt.
A.K. Joti
05 December 5, 2016 Election Commissioner
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electoral rolls. Some States adopt the rolls prepared by the Commission
while some prepare their rolls separately for elections. A proposal has
been made by the Commission in this regard to bring in a reform with
respect to use of common electoral rolls prepared by the Commission.
Reasons for proposed amendment
There is a non-uniformity of practice amongst States which causes
duplication of essentially the same task between two different
constitutional bodies i.e. the Election Commission of India and the State
Election Commissions that entails the same effort and expenditure again
by the States. Further, it creates a confusion amongst the voters, since
they may find their names present in one roll, but absent in another.
Thus, the use of common electoral rolls will overcome the issue of
duplication and confusion and will also save the unnecessary effort and
wastage of money. By virtue of common electoral rolls, the Parliamentary
and Assembly rolls can be used in the local body elections, saving time,
effort and expenditure, with the requisite modifications based on the
wards or polling areas of the local bodies.
Proposed amendment
In order to simplify the procedure of preparation of electoral rolls and to
avoid unnecessary expenditure, the Commission on 22/11/1999
(reiterated in July 2004), proposed amending the State laws with respect
to usage of electoral rolls prepared by the Commission for the election of
local bodies.
Law Commissions' Recommendation
The Law Commission endorses the above suggestions of the Election
Commission regarding introduction of common electoral rolls for
Parliamentary, Assembly and local body elections. However, given that
introducing common electoral rolls will require an amendment in the
State laws pertaining to the conduct of local body elections, the Central
Government should write to the various States in this regard.
4. SECTION 60 OF THE REPRESENTATION OF THE PEOPLE ACT, 1950
Background
Under section 20A of The Representation of the People Act, 1950, Indian
citizens living abroad owing to employment, education or otherwise, and
have not acquired citizenship of another country, are entitled to be
enrolled as elector in the native constituency in India in which his/her
home address falls. Persons enrolled in the electoral roll under this
section are called 'overseas electors'. The overseas electors have not been
given any special voting facility which means that they can vote in person
in the polling station concerned in the constituency in which they are
enrolled.
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that no court shall take cognizance of any offence punishable under sub-
section (1) unless there is a complaint made by order of or under
authority from, the Election Commission or the Chief Electoral Officer of
the State concerned. However, no such provision is found under section
126 of the 1951 Act.
Proposed amendment
The proposal of the Commission is that section 126 of The
Representation of the People Act, 1951 may be given a relook and in
particular, necessary amendments may be made by adding a clause in
section 126 stating that ―no court shall take cognizance of any offence
under section 126(1)(b) unless there is a complaint made by order of or
under the authority from the Commission or the CEO of the State
concerned as in the case of section 32 of the 1951 Act. Another
amendment that is required to be made in the Act is to include 'print
media' under the present provision since the current framework only
includes display by electronic media.
Law Commission's Recommendation
The Law Commission of India in its Report no. 255 (2015) had a similar
view to that of the Election Commission of India and recommended to
expand the scope of section 126 of The Representation of the People Act,
1951. The Law Commission also recommended that section 126(1) (b) be
amended as follows:
126. (1) No person shall…
(a) …
(b) Publish, publicise or disseminate any election matter by means of
print or electronic media; or ,
(c)…
(2)…
(2A) No court shall take cognizance of any offence punishable under sub-
section (1) unless there is a complaint made by order of, or under
authority from, the Election Commission or the Chief Electoral Officer of
the State concerned.
Explanation. — For the purposes of this section, —
(a)―election matter‖ means any matter intended or calculated to influence
or affect the result of an election. (b) ―electronic media‖ includes internet,
radio and television including Internet Protocol Television, satellite,
terrestrial or cable channels, mobile and such other media either owned
by the Government or private person or by both; (c) ―print media‖
includes any newspaper, magazine or periodical, poster, placard,
handbill or any other document; (d) ―disseminate‖ includes publication in
any ―print media‖ or broadcast or display on any electronic media.
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section provides that the votes at every election to fill a seat or seats in
the Council of States shall be given by open ballot.
Reason for proposed amendment
The voting procedure by members of Legislative Assembly in respect of
these two upper Houses is similar, except for the system of voting by
open ballot in the case of Council of States as clearly given in proviso to
section 59 of The Representation of the People Act, 1951. However, in
case the of the election to fill a seat or seats in the State Legislative
Council by the Members of Legislative Assembly, no such provisions of
open ballot is prescribed.
Proposed amendment
The Commission is of the view that there should be uniformity in the
procedure of voting system in the case of election of members of State
Legislative Council and the Council of States by members of Legislative
Assembly. The logic for providing open ballot system in the case of
elections to Council of States would equally apply for elections to
Legislative Councils also, and there is no reason to have separate system
for the elections involving the same electorate.
In view of the above, the Commission recommends that the open
ballot system may also be made applicable in case of the election to fill a
seat or seats in the State Legislative Councils by the Members of
Legislative Assembly by appropriately amending section 59 of The
Representation of the People Act, 1951.
6. ADJOURNMENT OF POLL OR COUNTERMANDING OF ELECTION ON
THE GROUND OF BRIBERY
Background
Article 324 of the Constitution vests in the Election Commission the
superintendence, direction and control of the preparation of the electoral
rolls for, and the conduct of, all elections to Parliament and to the
Legislature of every State and of elections to the offices of the President
and Vice-President held under the Constitution. The powers conferred
thereunder are of widest amplitude as held by the Supreme Court in
Mohinder Singh Gill v Chief Election Commissioner (1978 SC851).
It was observed in M.S Gill's case that the framers of the
Constitution took care to leave the scope of residuary power to
Commission, foreseeing the infinite variety of situations that may emerge
from time to time in such a large democracy as ours. Section 58A was
inserted in The Representation of the People Act, 1951 to empower the
Commission to countermand an election in the event of booth capturing
in the constituency.
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the hours, for taking poll in the said polling area or areas, and
notify the date so appointed and hours so fixed in such manner as
it may deem fit; or
(b) Where the poll has already taken place in the affected polling
area or areas on the date previously appointed under clause (d) of
section 30, declare the poll so taken as void, appoint a day, and x
the hours, for taking fresh poll in that polling area or areas and
notify the date so appointed and hours so fixed in such manner as
it deem t; or
(c) If satisfied in view of the large number of polling areas involved
in the incidents of bribery, the result of the election in the
constituency is likely to be affected, countermand the election in
that constituency. Explanation.-(1) in this connection, 'bribery'
shall have the same meaning as in clause (1) of section 123.
(3) in this section and section 58A, the expression countermand the
election‖ shall mean rescinding of the entire electoral process in the
constituency ab initio so that the election in the constituency may be
called anew in all respect.
CHAPTER-IV : ELECTION OFFICIALS AND LOGISTICS
1. SECTION 13CC & 28A OF THE REPRESENTATION OF PEOPLE ACT
Background
Section 13CC of the Representation of the People Act, 1950 states that:
"13CC. Chief Electoral Officers, District Election Officers, etc., deemed to
be on deputation to Election Commission- The officers referred to in this
Part and any other officer or staff employed in connection with the
preparation, revision and correction of the electoral rolls for, and the
conduct of, all elections shall be deemed to be on deputation to the
Election Commission for the period during which they are so employed
and such officers and staff shall, during that period, be subject to the
control, superintendence and discipline of the Election Commission."
Section 28A of the Representation of the People Act, 1951 states that:
"28A. Returning officer, presiding officer, etc., deemed to be on
deputation to Election Commission- returning officer, assistant returning
officer, presiding officer, polling officer, and any other officer appointed
under this Part, and any police officer designated for the time being by
the State Government, for the conduct of any election shall be deemed to
be on deputation to the Election Commission for the period commencing
on and from the date of the notification calling for such election and
ending with the date of declaration of the results of such election and
accordingly, such officers shall, during that period, be subject to the
control, superintendence and discipline of the Election Commission."
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with respect thereto and no steps were being taken by the municipal and
other governmental agencies for recovery of the said public dues. It was
further reported that some politicians and political parties also owed
monies to five star hotels run by India Tourism Development Corporation
Ltd. (ITDC), a Public Sector Corporation, for events, functions held
therein or for use thereof and that the ITDC, run and managed by
bureaucrats under the control of the said politicians had also not taken
any action for recovery of the said dues which were again public monies.
The zeal with which the public bodies try to recover dues from ordinary
citizens was found to be totally missing in case of politicians and political
parties and which in fact had resulted in accumulating arrears. There is
a total lack of will on the part of governmental agencies to whom dues
are owed, to recover the same from the politicians and political parties.
The possibility of having the recoveries effected through the Lok Sabha
and Rajya Sabha Secretariats by virtue of Rule 23 of the Members of
Parliament (Travelling and Daily Allowances) Rule, 1957 also proved to
be futile since the amounts due being very huge could not be recovered
by way of deduction from the salaries.
Neither the persuasion by the Supreme Court of the governmental
agencies to whom dues are owed could prompt them for recovery nor did
the different avenues explored by the Court for recovery have any
substantial success due to the reluctance on the part of the
governmental agencies to treat the political masters equally, as they treat
other citizens.
The defaulter politicians and political parties are found to have misused
their position of power for their own benefit and gain which is against the
simple premise of law that the public offices shall not be the workshops
of personal gain.
This calls for issue of directions to ensure that the MPs, MLAs and the
political parties, taking advantage of the clout enjoyed by them over the
officials of the municipal, electricity, water, telephone and other facilities
agencies, are not able to escape paying the dues.
Thus, the High Court under Paragraph 13 (reproduced below)
issued, among others, the following directions:
―H. The ECI to, as directed in the earlier orders in this petition, continue
to insist upon the candidates desirous of contesting an election to
Parliament or to Legislative Assembly, along with their nomination form
furnishing an affidavit of their being not in arrears of any public dues
and if such candidate is in occupation of or in the past ten years been in
occupation of any government accommodation to furnish a No Dues
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In Lily Thomas v. Union of India 2000 (4) SCALE 176, the Court held
that Section 8(4) of The Representation of the People Act, 1951 is
unconstitutional which allows MPs and MLAs who are convicted to
continue in office till an appeal against such conviction is disposed of.
Further in 2013, the Hon'ble Supreme Court has requested the
20th Law Commission of India vide letter dated 16th January, 2013 to
consider the matter again under two grounds, viz. disqualifications on
the ground of framing of charges by the court or upon the presentation of
the report by the investigating officer under Section 173 of Code of
Criminal Procedure Code and disqualification on the ground of filing false
affidavit under Section 125A of the Act of 1951. As per the concerns of
the court the Law Commission has suggested recommendations titled
―Electoral disqualifications‖ in its 244th report on Electoral Reforms.
The Hon'ble Supreme Court in Krishnamoorthy v. Sivakumar&Ors.
(2015), while observing that the crucial recognized ideal which is
required to be realized is eradication of criminalization of politics and
corruption in public life decided that ―disclosure of criminal antecedents
of a candidate, especially, pertaining to heinous or serious offence or
offences relating to corruption or moral turpitude at the time of filing of
nomination paper as mandated by law is a categorical imperative and
Concealment or suppression of this nature deprives the voters to make
an informed and advised choice as a consequence of which it would come
within the compartment of direct or indirect interference or attempt to
interfere with the free exercise of the right to vote by the electorate, on
the part of the candidate.‖
Reason for proposed amendment moved by the Commission.
Persons with Criminal background, accused of serious offences
contesting election sends very negative signals about our electoral
process. Many of such persons facing charges of grave nature end up
winning election and entering our temple of democracy namely the
Houses of Parliament and State Legislature which is highly undesirable
and the issue needs to be addressed. The Commission while making the
proposal is fully conscious of the general principles of criminal
jurisprudence that a person is deemed to be innocent until proven guilty.
But the proposed amendment will be in the larger national interest which
should take precedence over the interests of the individuals.
Proposed amendment : Persons charged with cognizable offences shall
be de-barred from contesting in the elections, at the stage when the
charges are framed by the competent court provided the offence is
punishable by imprisonment of at least 5 years, and the case is led at
least 6 months prior to the election in question.
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years. The Home Ministry has conveyed to the Election Commission that
it has initiated the process to amend the Sections 171B and 171E of the
Code of Criminal Procedure (Cr.P.C), 1973 for the same.
Reason for proposed amendment
The change in law have become necessary as there have been
increasing incidents of bribery being detected in all elections, from local
body polls to Lok Sabha elections. This is because, currently, bribery is a
bailable offence attracting only minimal punishment.
Moreover, the experience on the ground has shown that the law
enforcing authorities feel handicapped in apprehending the culprits
because they cannot proceed without a warrant issued by a competent
Magistrate under Section 200 of the Code of Criminal Procedure Code,
1973 on being moved under section 155 of the said Act, to search or
arrest any person even on specific information about the corruptive
practice. These provide the violators an opportunity to evade legal action.
Proposed amendment
The proposal of the Commission is that Section 171B and 171E of
the Code of Criminal Procedure (Cr.P.C), 1973, shall be amended
immediately to include bribery as a cognizable offence with minimum 2
years of Imprisonment.
CHAPTER-VII : REFORMS RELATING TO POLITICAL PARTIES
1. DE - REGISTRATION OF POLITICAL PARTIES
Background
Section 29A of The Representation of the People Act, 1951 empowers the
Election Commission of India to register associations and bodies as
political parties. However, there is no constitutional or statutory
provision that gives power to the Election Commission to de-register
political parties.
The Supreme Court held in Indian National Congress (I) v. Institute
of Social Welfare and Ors., (2002) 5 SCC 685 held that the law does not
empower the Commission to de-register a political party on the grounds
of violation of any provisions of constitution or any undertaking given to
the Commission. It was further held:
―34. However, there are three exceptions where the Commission
can review its order registering a political party. One is where in political
party obtained its registration by playing fraud on the Commission,
secondly it arises out of Sub-section (9) of Section 29A of the Act and
thirdly, any like ground where no enquiry is called for on the part of the
Election Commission, for example, where the political party concerned is
declared unlawful by the Central Government under the provision of the
Unlawful Activities (Prevention) Act, 1967 or any other similar law.
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35. Coming to the first exception, it is almost settled law that fraud
vitiates any act or order passed by any quasi-judicial authority even if no
power of review is conferred upon it. In fact, fraud vitiates all actions. In
Smith v. East Ellis Rural Distt. Council - (1956) 1 All E.R. 855 it was
stated that the effect of fraud would normally be to vitiate all acts and
order. In Indian Bank v. Satyam Fibres (India) Pvt. Ltd. - MANU/ SC/
0657/ 1996 : AIR1996SC2592 , it was held that a power to cancel/recall
an order which has been obtained by forgery or fraud applies not only to
courts of law, but also statutory tribunals which do not have power of
review. Thus, fraud or forgery practiced by a party while obtaining a
registration, if comes to the notice of the Election Commission, it is open
to the Commission to de-register such a political party.
36. The second exception is where a political party changes its
nomenclature of association, rules and regulation abrogating the
provisions therein conforming to the provisions of Section 29A(5) or
intimating the Commission that it has ceased to have faith and
allegiance to the Constitution of India or to the principles of socialism,
secularism and democracy, or it would not uphold the sovereignty, unity
and integrity of India so as to comply the provisions of Section 29A(5). In
such case, the very substratum on which the party obtained registration
is knocked of and the Commission in its ancillary power can undo the
registration of a political party. Similar case is in respect of any like
ground where no enquiry is called for on the part of the Commission. In
this category of cases, the case would be where a registered political
party is declared unlawful by the Central Government under the
provisions of Unlawful Activities (Prevention) Act, 1967 or any other
similar law. In such cases, power of the 'Commission to cancel the
registration of a political party is sustainable on the settled legal
principle that when a statutory authority is conferred with a power, all
incidental and ancillary powers to effectuate such power are within the
conferment of the power, although not expressly conferred. But such an
ancillary and incidental power of the Commission is not an implied
power of revocation. The ancillary and incidental power of the
Commission cannot be extended to a case where a registered political
party admits that it has faith in the Constitution and principles of
socialism, secularism and democracy, but some people repudiate such
admission and call for an enquiry by the Election Commission. Reason
being, an incidental and ancillary power of a statutory authority is not
the substitute of an express power of review.
41. It may be noted that the Parliament deliberately omitted to vest
the Election Commission of India with the power to de-register a political
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party for non-compliance with the conditions for the grant of such
registration. This may be for the reason that under the Constitution the
Election Commission of India is required to function independently and
ensure free and fair elections. An enquiry into non-compliance with the
conditions for the grant of registration might involve the Commission in
matters of a political nature and could mean monitoring by the
Commission of the political activities, programmes and ideologies of
political parties. This position gets strengthened by the fact that on 30th
June, 1994 the Representation of the People (Second Amendment) Bill,
1994 was introduced in the Lok Sabha proposing to introduce Section
29-B whereunder a complaint to be made to the High Court within whose
jurisdiction the main office of a political party is situated for cancelling
the registration of the party on the ground that it bears a religious name
or that its memorandum or rules and regulations no longer conforming
the provisions of Section 29-A(5) or that the activities are not in
accordance with the said memorandum or rules and regulations.
However, this bill lapsed on the dissolution of the Lok Sabha in 1996.‖
The recommendation by Department Related Parliamentary
Standing Committee on Personnel, Public Grievances, Law and Justice in
61st Report on Electoral Reforms-Code of Conduct for Political Parties &
Anti Defection Law states:
―Under Section 29 (A) Representation of People Act, 1951, the
Election Commission of India has been given power to register Political
Parties but the power of de-registration of Political Parties has not been
given to Election Commission of India under that law. However, the
Election Commission of India has assumed the power under para 16 A of
the Election Symbol (Reservation and Allotment) Order, 1968 to de-
recognize the Political Parties in the event of violation of Model Code of
Conduct. The net effect of de-recognition of political party makes that
party almost dysfunctional as its symbol is taken away. The Committee,
therefore, recommends that the power to de-recognize Political Parties on
account of violation of Model Code of Conduct may be incorporated in the
Representation of People Act, 1951 itself.‖
Reason for proposed amendment
Many political parties get registered, but never contest election. Such
parties exist only on paper. The possibility of forming political parties
with an eye on availing the benefit of income tax exemption also cannot
be ruled out. It would only be logical that the Commission which has the
power to register political parties is also empowered to de-register in
appropriate cases
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Proposed amendment
The Election Commission of India should be given powers to de-register a
political party and should be authorized to issue necessary orders
regulating registration and de-registration of political parties.
Recommendation of the Law Commission
Law Commission of India report on Electoral Reforms, Report No. 255
(March 12, 2015) endorsing the view of the Election Commission stated
the following:
―3.12 Consequently, there is no mechanism to review a party's
practice against the principles enshrined in the Constitution or against
the requirements of the ECI's Guidelines and Application Format for the
Registration of Political Parties under Section 29A. A party can only be
deregistered if its registration was obtained by fraud; if it is declared
illegal by the Central Government; or if a party amends its internal
Constitution and notified the ECI that it can no longer abide by the
Indian Constitution. Moreover, there is no power of de-registration if
parties having registered under section 29A of the RPA continue to avail
of tax benefits under section 13A of the IT Act, without contesting
elections. The RPA thus needs to be amended to empower the ECI to act.
3.13 Even otherwise, these situations only deal with cases of
deregistration, and not disbarment of any party from contesting
elections. It is clear that any party can contest elections, even if their
Constitution contravenes the provisions and ideals of the Constitution or
does not provide for internal elections.‖
Further, the National Commission to Review the Working of the
Constitution Report, Ministry of Law, Justice and Company Affairs
Department of Legal Affairs (2002):
―4.30.1. The Commission recommends that there should be a
comprehensive legislation [may be named as the Political Parties
(Registration and Regulation) Act], regulating the registration and
functioning of political parties or alliances of parties in India.
4.30.2. The proposed legislation should provide for compulsory
registration for every political party or pre-poll alliance. It should lay
down conditions for the constitution of a political party or alliance and
for registration, recognition and de-registration and de recognition.
4.30.3. The Commission recommends that every political party or
alliance should, in its Memoranda of Association, Rules and Regulations
provide for its doors being open to all citizens irrespective of any
distinctions of caste, community or the like. It should swear allegiance to
the provisions of the Constitution and to the sovereignty and integrity of
the nation, regular elections at an interval of three years at its various
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(2) The Election Commission shall also keep these reports on le for three
years after their submission and shall make them available for public
inspection on the payment of a prescribed fee.‖
4. ACCOUNTING AND AUDITING REPORT OF POLITICAL PARTIES
Background
There is no legislation or regulation or rule which prescribes either (a)
standard financial accounting and reporting framework, or (b) auditing
framework for financial statements of political parties in India.
Reason for proposed amendment
Accounting and auditing standards would help political parties to
maintain uniformity in presentation of financial statements, proper
disclosure and transparency of their accounts.
Proposed amendment
On the request of ECI, the Institute of Chartered Accountants of India
made certain recommendations in February 2010 under its ―Guidance
Note on Accounting & Auditing of Political Parties‖ to the Election
Commission for improving the system of accounting followed by political
parties in India. Important recommendations of ICAI include:
a) Political parties should maintain books of account on accrual basis;
b) Elements of financial statements basically comprising income,
expenses, assets and liabilities;
c) Principles for recognition of income, expenses, assets and liabilities;
d) Political parties, irrespective of the fact that no part of the activities is
commercial, industrial or business in nature that all political parties
should follow Accounting Standards;
e) A Political Party should not recognize a contingent liability on the face
of financial statements, but it should make the following disclosures, for
each class of contingent liability, in the notes to financial statements;
f) Books of account format was provided;
g) Schedule 13 of the Guidance Note states that collection from issuance
of coupons/ sale of publications should be classified and disclosed.
The ECI issued transparency guidelines under Article 324 of the
Constitution of India bearing No. 76/PPEMS/Transparency/2013 dated
29/08/2014 with effect from 01/10/2014 stating that the accounts
maintained by the treasurer of the political party shall conform to the
―Guidance Note on Accounting and Auditing of political parties‖ issued
by the ICAI. Although Election Commission in its guidelines date
29/08/2014 required political parties to conform to the ―Guidance Note
on Accounting & Auditing of Political Parties‖ by ICAI, the Guidance Note
should be mandated by an act of the legislature as presently these
guidelines are mere recommendations.
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either 50% of or not more than the expenditure ceiling limit provided for
the candidate multiplied by the number of candidates of the party
contesting the election. Hence, The RPA and Rule 90 of The Conduct of
Elections Rules, 1961 should be amended accordingly.
11. LIMIT THE NUMBER OF STAR CAMPAIGNERS
Background
As per section 77 of The Representation of the People Act, 1951, the
expenditure incurred by the leaders of a political party on account of
travel by air or by any other means shall not be deemed to be
expenditure in connection with the election incurred or authorized by a
candidate. Explanation (2) of the section defines political leaders to
include 40 persons of a recognized political party and 20 persons of a
party other than the recognized political party, i.e., registered
unrecognized parties, whose names have been communicated to the
Chief Electoral Officer and Election Commission of India within a period
of 7 days from the date of notification. Such political leaders as
communicated to the CEO and the Election Commission are known as
Star Campaigners.
There is no prescribed number of star campaigners for bye-elections.
Reason for proposed amendment: The maximum number of star
campaigners should be prescribed for bye-elections to ensure level
playing field and for smoother election management.
Proposed amendment
The number of star campaigners for bye-election may be limited to two.
12. TIME PERIOD FOR MAINTAINING BOOKS OF ACCOUNT
UNDER SECTION 77 OF REPRESENTATION OF PEOPLE ACT, 1951
Background
Section 77 of The Representation of the People Act, 1951 provides that:
―77. Account of election expenses and maximum thereof- (1) Every
candidate at an election shall, either by himself or by his election agent,
keep a separate and correct account of all expenditure in connection with
the election incurred or authorized by him or by his election agent
between the date on which he has been nominated and the date of
declaration of the result thereof, both dates inclusive.‖
Reason for proposed amendment: Election expenses in true sense are
incurred by candidates after date of notification of elections.
Proposed amendment
Section 77(1) of the Representation of the People Act, 1951 may be
amended to provide that a candidate contesting at an election should be
required to maintain the accounts from the date of notification of the
election till the date of declaration of result of the election.
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media) during the period of 48 hours before the close of poll to allow the
voters to arrive at an unprejudiced opinion
Law Commission's Recommendation
The Law Commission of India in its Report no. 255 on Electoral Reforms
submitted to the Ministry of Law & Justice on 12.03.2015 also had a
similar view to that of the Election Commission and recommended to
expand the scope of section 126 of The Representation of the People Act,
1951. According to the Report, in the present age of technology where
digital and print media are closely interconnected such an anomaly in
the applicability in the law needs to be rectified. The Law Commission
also recommended that section 126(1) (b) be amended as follows:
126. (1) No person shall…
(a) …
(b) Publish, publicise or disseminate any election matter by means of
print or electronic media; or ,
(c)…
(2)…
(2A) No court shall take cognizance of any offence punishable under sub-
section (1) unless there is a complaint made by order of, or under
authority from, the Election Commission or the Chief Electoral Officer of
the State concerned.
Explanation. — For the purposes of this section, —
(a) ―election matter‖ means any matter intended or calculated to influence or
affect the result of an election.
(b) ―electronic media‖ includes internet, radio and television including
Internet Protocol Television, satellite, terrestrial or cable channels, mobile
and such other media either owned by the Government or private person
or by both;
(c) ―print media‖ includes any newspaper, magazine or periodical, poster,
placard, handbill or any other document;
(d) ―disseminate‖ includes publication in any ―print media‖ or broadcast or
display on any electronic media.
4. PAID NEWS IN CONNECTION WITH ELECTIONS
Background
Free and fair elections is the foundation of any democracy and this can
only be achieved when there is an absence of influence by money in
corrupting the electoral process. According to a study conducted by ECI,
during the assembly elections held in the period 2011-2013 there have
been 1987 cases where a notice for paid news were issued to the
candidates and 1727 cases where practice of paid news were confirmed
by the District/State Level Committees appointed for the purpose.
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paying for news would be an offence but the person doing this offence
would also be disqualified pursuant to Section 8(3) of the RPA.
Section 127B should be in the following words:-
―127B. Paying for, and receiving payment for news (1) Any person who
is found paying for news, or receiving payment for news shall be
punished with imprisonment for a term which may extend to three
years, and with ne, which may extend to twenty five lakh rupees. (2)
Nothing contained in subsection (1) shall apply to payments made by
registered political parties for the management of official publications
(print, radio, television and all other electronic) owned or controlled by
them. (3) To avail of the exemption under sub-section (2) all registered
political parties must disclose their interests in any publication in the
form and manner notified by the ECI in this regard. (4) An attempt to
commit an act punishable under sub-section (1) shall be punished
with imprisonment for a term, which may extend to two years, or with
ne, which may extend to ten lakh rupees, or with both. (5) No court
shall take cognizance of any offence punishable under this section
unless there is a complaint made by order of, or under authority from,
the ECI or the Chief Electoral Officer of the State concerned.‖
It is also essential that an election be liable to be declared void by the
High Court if it is found that paid news has vitiated it. For this
purpose, in accordance with section 100 of The Representation of the
People Act, it is necessary to make paying for news a 'corrupt practice'
under section 123 of the 1951 Act.
5. SECTION 125A OF THE REPRESENTATION OF PEOPLE ACT, 1951
Background
Section 125A of The Representation of the People Act, 1951 have been
inserted in the statute book in the year 2002 after the 170th Report of
the Law Commission of 1999 in order to deter the candidates from filing
false affidavits before the Returning Officer. The above mentioned section
provides with punishment with imprisonment for a term which may
extend to six months, or with ne, or with both.
Reasons for proposed amendment
Despite the introduction of section 125A to the 1951 Act, there are
several complaints about false affidavits led by candidates. The wilful
concealment of information and furnishing of false information needs to
be curbed in the interest of free and fair elections.
Thus, for effectively dealing with this issue and to tackle the menace of
willful concealment of information or furnishing of false information and
to protect right to information of electors, the Commission recommended
that the punishment under section 125A must be made more stringent.
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Proposed amendment
The Commission is of the view that in the interest of free and fair
elections the punishment under section 125A should be made more
severe by providing for imprisonment of a minimum term of two years
and doing away with the alternative clause for fine.
Law Commission's Recommendation
One of the changes suggested in the Representation of the People Act,
1951 by the Law Commission in its 244th Report (2014) relating to
'Electoral Disqualifications' was the introduction of enhanced sentence of
minimum two years under section 125A on filing false affidavits.
The LCI recommended that Section 126(1) (b) be amended as follows:
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 sect 33A; or
(ii) give 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 shall not be
less than two years, and shall also be liable to fine
CHAPTER – IX : ELECTION EXPENSES AND ELECTION PETITIONS
1. SECTION 78, 81 & 84 OF THE RPA, 1951
Background
Section 78 of the Representation of the People Act, 1951:
―Lodging of account with the district election officer: (1) Every contesting
candidate at an election shall, within thirty days from the date of election
of the returned candidate or, if there are more than one returned
candidate at the election and the dates of their election are different, the
later of those two dates, lodge with the district election officer an account
of his election expenses which shall be a true copy of the account kept by
him or by his election agent under section 77.‖
Section 123(6) of The Representation of the People Act, 1951 provides
that incurring or authorizing of expenditure in contravention of section
77 is a corrupt practice.
As per section 80 read with section 81 of the 1951 Act, no election can be
called into question except by way of election petition led before the High
Court within 45 days from the date of election of the returned candidate.
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