bar & bench () in the supreme court …

1

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO 1152 OF 2017

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

ASHWINI KUMAR UPADHYAY …PETITIONER

VERSES

UNION OF INDIA & ANOTHER ...RESPONDENTS

PAPER BOOK

[FOR INDEX KINDLY SEE INSIDE]

(ADVOCATE FOR PETITIONER: R.D.UPADHYAY)

Bar & Bench (www.barandbench.com)

2

INDEX OF RECORD OF PROCEEDINGS

Sr. No. Date of Record of Proceedings Page

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15


3

INDEX

S. NO

Particulars of the documents

Page number of part to which it belongs

Remark

Part-I (Contents

of Paper Book)

Part-II (Contents

of file alone)

(i) (ii) (iii) (iv) (v)

1 Listing Proforma A-A1 A-A1

2 Cover Page of Paper

Book A-2

3 Index of Record of Proceedings

A-3

4 Defect List A-4

5 Note Sheet NS1

6 Synopsis & List of Dates B-I

7 Writ Petition with

Affidavit 1-53

8 Appendix 54-59

9

Annexure P-1: Copy of

Goswami Committee Report on Electoral Reform (1990)

60-106

10

Annexure P-2: Copy of National Commission to

Review the Working of the Constitution (2002)

107-157

11

Annexure P-3: Copy of

Background Paper on Electoral Reform (2010)

158-183

12 Annexure P-4: Copy of the ECI‘s Proposed Electoral Reform (2016)

184-245

13 F/M 246

14 V/A 247


4

PERFORMA FOR FIRST LISTING

Section: PIL

The case pertains to (Please tick / check the correct box):

Central Act: The Constitution of India

Section: Article 324

Central Rule: N/A

Rule No: N/A

State Act: N/A

Section: N/A

State Rule: N/A

Rule No: N/A

Impugned Interim Order: N/A

Impugned Final Order / Decree: N/A

High Court: N/A

Name of Judges: N/A

Tribunal / Authority Name : N/A

1. Nature of Matter: Civil

2. (a) Petitioner / Appellant : Ashwini Kumar Upadhyay

(b) Email ID: [email protected], [email protected]

(c) Phone No: 08800278866, 09911966667,

3. (a) Respondent: Union of India and another

(b) Email ID: N/A

(c) Phone No: N/A

4. (a) Main Category: 08 PIL Matters

(b) Sub Category: 0810, Matters relating to Election Commission

5. Not to be listed before: N/A


5

6. Similar / Pending matter: WP(C) 699/2016, WP(C) 536/2011

7. Criminal Matters:

(a) Whether accused / convicted has surrendered: N/A

(b) FIR / Complaint No: N/A

(c) Police Station: N/A

(d) Sentence Awarded: N/A

(e) Sentence Undergone: N/A

8. Land Acquisition Matters:

(a) Date of Section 4 Notification: N/A

(b) Date of Section 6 Notification: N/A

(c) Date of Section 17 Notification

9. Tax Matters: State the Tax Effect: N/A

10. Special Category: N/A

11. Vehicle No in case of motor accident claim matters): N/A

12. Decided Cases with Citation: N/A

Date: 18.11.2017

Advocate for Petitioner

(R. D. Upadhyay)

Advocate-on-Record

Registration Code No-0589

[email protected]

011-23070343, 9891050515


6

SYNOPSIS

Under section 29 of the RPA 1951, a person; who is

disqualified for registration in electoral roll under section

16 of RPA 1950, disqualified for contesting election under

sections 8, 8A, 9, 9A, 10 or 10A of the RPA 1951,

disqualified for voting under section 11A, disqualified for

being an election agent under section 41 or forfeits his

right to vote under section 62; can form a political party,

collect donations under section 29B, get tax exemption

under Income Tax Act and even become party president.

Presently, even a person, who has been convicted for

heinous crimes like murder, rape, smuggling, money

laundering, sedition, loot, dacoity etc. can form a political

party and become party president. For instance, Mr. Lalu

Yadav, Mr. O.P. Chautala and Mrs. Shashi Kala have been

convicted for major scams but still holding highest

political post. Similarly, charges have been framed by the

Court in serious cases against Mr. Suresh Kalmadi, Mr.

Raja, Mr. Jagan Reddy, Mr. Madhu Koda, Mr. Ashok

Chavan, Mr. Akabaruddin Owaisi, Mrs. Kanimozhi, Mr.

Adhir Ranjan Chaudhary, Mr. Virbhadra Singh, Mr.

Mukhtar Ansari, Md. Shahabuddin, Mr. Suraj Bhan

Singh, Mr. Anand Mohan Singh, Mr. Mulayam Singh

Yadav, Ms. Mayawati and Brijesh Singh etc. but they are

still holding political post and wielding political power.


7

Goswami Committee on Electoral Reform (1990) discusses

the registration and recognition of political parties as thus:

―3.2 After the insertion of new section 29A of the Act

for the purpose of making the political organizations

seeking registration to conform in form only to the

provisions of the Constitution, especially to the preamble

thereto, the powers of the Election Commission in regard to

registration of political parties under the Symbols Order has

been taken away. The Election Commission has to apply

the new provisions for the registration of political parties.

3.3 The Committee observed that in view of the

provisions of section 29A of the Act and of a very large

number of applications from political parties for registration

on the eve of the last Lok Sabha elections, the Commission

had no option except to register as many as 261 political

parties. This has created many practical and administrative

problems and difficulties at the time of election.

3.4 All the members of the Committee, except Shri

H.K.L. Bhagat, feel that the new provision in section 29A do

not serve any purpose.

3.5 It has been brought to the notice of the members of

the Committee that the Attorney-General of India whose

opinion was sought on the various measures for

discouraging non-serious candidates from election contests,

has observed that new section 29A has not served any

useful purpose.

3.6 After taking into account the above factors, all the

members of the Committee, except Shri H.K.L. Bhagat, feel

that section 29A should be deleted and the matter of

registration of political parties should be left to be decided

solely by the Election Commission under the Symbols Order

applying the criteria of tangible proof of 1% of the valid

votes to be secured by applicant party for registration.”


8

In 2002, NCRWC has recommended stringent criteria for

recognition of political parties to discourage proliferation.

It has recommended that rules/by-laws of parties seeking

registration should include provisions: (i) a declaration of

adherence to democratic values and norms of the

Constitution in the party organizations, (ii) declaration to

shun violence for political gains, (iii) declaration not to

resort to casteism /communalism for political mobilization

and adhere principles of secularism, (iv) a provision for

party conventions to nominate and select candidates for

political offices at grass root and State levels, (v) code of

conduct, which each party should evolve for itself, (vi)

institutional mechanism for planning thinking research on

crucial socio-economic issues facing the nation.

In 2004, the ECI proposed that amendment should

be made to Section 29A, authorizing it to issue apt orders

regulating registration / de-registration of political parties.

The proliferation of political parties has become a

major concern as Section 29A allows a small group of

people to form a political party by making a very simple

declaration. Presently, about 20% of registered political

parties contest election and remaining 80% parties create

excessive load on electoral system and public money.

Despite it, Executive has not implemented the Goswami

Committee and NCRWC recommendations till date.


9

Political parties hold constitutional status and wield

constitutional powers under the Tenth Schedule of the

Constitution in as much as they have the power to – (a)

disqualify legislators from Parliament and State

Assemblies; (b) bind legislators in their speeches and

voting inside the house; (c) decide what laws are made; (d)

decide whether Government remains in power (e) decide

public policies that affect lives of millions of people.

As per Article 102 (2) of the Constitution, a person

can be disqualified from being a member of either House

of Parliament under the Tenth Schedule and that a similar

provision exists for the State Legislators under the Article

191(2). Furthermore, as per Article 102(2), if a member of

a House belonging to a Political Party votes or abstains

from voting in the House contrary to the directions issued

by the Political Party, he is liable to be disqualified from

being a Member of the House.

Political parties have been given statutory status

under Section 29A of the RPA and they are required to

bear true faith and allegiance to the Constitution. Political

parties give tickets to candidates and people vote on party

symbols and, thus, they are important instrumentalities of

the democratic governance and function like a Public

Authority. Therefore, convicted person must be restricted

to form a political party and become political office bearer.


10

Political parties are substantially financed by the

State in multiple ways and are exempted from Income Tax.

They have been claiming tax exemption under Section 13A

of the Income Tax Act. State has been indirectly financing

recognized political parties by way of free airtime on All

India Radio. In addition, State spends huge amounts on

political parties to provide free air time on Doordarshan.

Under Rules 11-12 of the Registration of Electors

Rules, 1960, two copies of the Electoral Rolls are supplied

to the recognized political parties, free of cost. This is

another instance of indirect financing to political parties.

The Central as well as the State Governments have

allotted various plots houses buildings and other types of

accommodation to the recognized political parties either

free of cost or at very concessional rates. This also

amounts to indirect financing to the recognized political

parties by the Central and State Governments.

The governance is revolved around the political

parties. They are continuously engaged in performance of

public duty and therefore it is important that they become

transparent. De-criminalization and de-communalization

of politics is essential in larger public interest as they

perform public function and, therefore, convicted person

should be debarred to form political party and become

political office bearer for lifetime.


11

A group of individuals gets the status of political

party on its registration with ECI under the RPA, 1951.

ECI awards symbols to political parties under the Election

Symbols (Reservation & Allotment) Order, 1968, after

registration and calls for details of expenses made by the

parties in elections. Contributions of the value of Rs.

20,000/- and above received from any person or company

by political parties are required to be intimated to the ECI

under Section 29C. Hence, they are public authority.

Political parties perform public functions, define

parameters of governance & socio-economic development.

They must be transparent but their income tax returns

reveal that on an average merely 20% of their income

comes from donation that they disclose to the ECI and

remaining 80% of income are shrouded in mystery. This

gives rise to all kinds of speculation about pernicious

influence of illegal money which is not good for democracy.

ECI has plenary power and authorize to withdraw

recognition of parties in certain contingencies but it does

not use it power to de-criminalize/de-communalize them.

Executive has not implemented Goswami Committee,

NCRWC, ECI and Law Commission recommendations to

curb corruption crime casteism and communalism, the

four menace of our democracy. Therefore, this Hon‘ble

Court should allow the instant petition in public interest.


12

LIST OF DATES

14.12.1966: The Section 41 was amended to disqualify a

person being election agent after conviction.

15.03.1989: The Section 8 (1) and 8(2) was amended to

disqualify the person from contesting the

election after conviction in certain offences.

15.06.1989: The Section 29A was inserted in the RPA to

regulate the registration of political parties.

20.05.1990: Goswami Committee on Electoral Reform

suggested deletion of Section 29A of RPA.

29.05.1999: The Law Commission in its 170th Report

suggested certain measures to regulate the

functioning of political parties.

31.03.2002: National Commission to Review Working of

the Constitution submitted draft to regulate

the functioning of political parties.

11.09.2003: The Section 29B was inserted in the RPA to

regulate the donations received by political

parties from person or company.

05.07.2004: The ECI submitted its detailed proposals to

regulate functioning of political parties.

08.12.2010: ―Background Paper on Electoral Reforms‖,

prepared by Core-Committee on Electoral

Reforms, Ministry of Law endorsed the ECI

and Law Commission proposals.


13

24.02.2014: Law Commission submitted its 244th report

but Executive did nothing to implement it.

12.03.2015: Law Commission submitted its 255th report

but Executive did nothing to implement it.

05.12.2016: Electoral Commission submitted Proposed

Electoral Reform to the Central Governmnet

06.11.2017: Political Parties hold constitutional status

and wield constitutional powers under the

Tenth Schedule in as much as they have

the power to – (a) disqualify legislators from

Parliament and State Assemblies; (b) bind

legislators in their speeches and voting

inside the house; (c) decide what laws are

made; (d) decide whether Government

remains in power or which Government

should come to power; (e) decide public

policies that affect lives of millions of

people. Political parties perform public

functions, define parameters of governance

& socio-economic development. Executive

has not implemented the recommendations

of Goswami Committee, NCRWC and Law

Commission to de-criminalize and de-

communalize the politics. Hence, this writ

petition in larger public interest.


14



WRIT PETITION (CIVIL) NO 1152 OF 2017

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

Ashwini Kumar Upadhyay

S/o Sh. Suresh Chandra Upadhyay

Office: 15, M.C. Setalvad Chambers Block

Supreme Court of India, New Delhi-110001

Residence: G-284, Govindpuram, Ghaziabad ...Petitioner

Verses

1. Union of India

Through the Secretary,

Ministry of Law and Justice,

Shashtri Bhawan, New Delhi-110001

2. Election Commission of India

Through the Chief Election Commissioner,

Niravachan Sadan, New Delhi-110001 ……Respondents

PETITION UNDER ARTICLE 32 OF THE CONSTITUTION TO BAN THE

CONVICTED PERSON FROM FORMING A POLITICAL PARTY AND

BECOMING A POLITICAL OFFICE BEARER, FOR THE PERIOD, HE IS

DISQUALIFIED UNDER SECTIONS 8, 8A, 9, 9A, 10, 10A, 11A, 41

AND 62 OF THE REPRESENTATION OF THE PEOPLE ACT,1951.

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

person from forming political party and becoming political

office bearer, for the period, he/she is disqualified under

sections 8, 8A, 9, 9A, 10, 10A, 11A, 41 and 62 of the RPA.

2. That petitioner has not filed any other petition either in

this Hon‘ble Court or in any other High Court seeking

same and similar directions as prayed in this petition.


15

3. That petitioner‘s full name is Ashwini Kumar Upadhyay.

Residential address is G-284, Govindpuram, Ghaziabad,

Ph:8800278866, [email protected], PAN: AAVPU7330G,

ADHAR-659982174779. Income is 2 LPA. Petitioner is an

Advocate & social-political activist, contributing his best to

development of socially-economically downtrodden people.

4. That the facts constituting cause of action accrued on

15.08.2014 and subsequent days, when the Hon‘ble Prime

Minister assured the nation that government will take

steps to de-criminalize and de-communalize the polity but

the government did nothing in this regard till date.

5. That the injury caused to public because many corrupt,

criminal and convicted persons have formed political party

and threatens the fundamental right guaranteed under

the Article 19 by using money and muscle power.

6. That petitioner has no personal interests, individual gain,

private motive or oblique reasons in filing this PIL. It is not

guided for gain of any other individual person, institution

or body. There is no motive other than the public interest.

7. There is no civil, criminal or revenue litigation, involving

petitioner, which has or could have legal nexus, with the

issue involved in this petition. It is totally bona-fide.

8. There is no requirement to move concerned government

authority for relief sought in this PIL. There is no other

remedy available except approaching this Hon‘ble Court.


16

9. Under section 29 of the RPA 1951, a person; who is


16 of RPA 1950, disqualified for contesting election under

sections 8, 8A, 9, 9A, 10 or 10A of the RPA 1951,






10. Presently, even a person, who has been convicted for

heinous crimes like murder, rape, smuggling, money

laundering, sedition, loot, dacoity etc. can form a political

party and become party president. For instance, Mr. Lalu

Yadav, Mr. O.P. Chautala and Mrs. Shashi Kala have been

convicted for major scams but still holding highest

political post. Similarly, charges have been framed by the

Court in serious cases against Mr. Suresh Kalmadi, Mr.

Raja, Mr. Jagan Reddy, Mr. Madhu Koda, Mr. Ashok

Chavan, Mr. Akabaruddin Owaisi, Mrs. Kanimozhi, Mr.

Adhir Ranjan Chaudhary, Mr. Virbhadra Singh, Mr.

Mukhtar Ansari, Md. Shahabuddin, Mr. Suraj Bhan

Singh, Mr. Anand Mohan Singh, Mr. Mulayam Singh




17

11. The Goswami Committee on Electoral Reform (1990)

discusses registration/recognition of political parties thus:
























useful purpose.









18

12. In 2002, NCRWC has recommended stringent criteria

for recognition of parties to discourage proliferation. It has

recommended that rules/by-laws of parties seeking












13. In 2004, the ECI proposed that amendment should



14. The proliferation of political parties has become a









19

15. Political parties hold constitutional status and wield

constitutional powers under the Tenth Schedule of the

Constitution in as much as they have the power to – (a)

disqualify legislators from Parliament and State





16. As per Article 102 (2) of the Constitution, a person

can be disqualified from being a member of either House

of Parliament under the Tenth Schedule and that a similar

provision exists for the State Legislators under the Article

191(2). Furthermore, as per Article 102(2), if a member of

a House belonging to a Political Party votes or abstains

from voting in the House contrary to the directions issued

by the Political Party, he is liable to be disqualified from

being a Member of the House.

17. Political parties have been given statutory status









20

18. Political parties are substantially financed by the







19. Under Rules 11 and 12 of the Registration of Electors




20. The Central as well as the State Governments have






21. The governance is revolved around the political

parties. They are continuously engaged in performance of

public duty and therefore it is important that they become

transparent. De-criminalization and de-communalization

of politics is essential in larger public interest as they

perform public function and, therefore, convicted person

should be debarred to form political party and become

political office bearer for lifetime.


21

22. A group of individuals gets the status of political









23. Political parties perform public functions, define








24. ECI has plenary power and authorize to withdraw



25. The Executive is unwilling to implement the NCRWC,

Election Commission &Law Commission recommendations

and curtail corruption crime casteism and communalism,

the four menace of our democracy. Therefore, this Hon‘ble



22

26. That Section 16 of the RPA, 1950, reads as under:

―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.]


―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-


https://indiankanoon.org/doc/29720488/







23

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 an 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

(f) Narcotic Drugs &Psychotropic Substances Act, 1985; or

(g) section 3 (offence of committing terrorist acts) or

section 4 (offence of committing disruptive activities) of the








24

Terrorist and Disruptive Activities Act, 1987; or

(h) section 7 (offence of contravention of the provisions of

sections 3 to 6) of the Religious Institutions (Prevention of

Misuse) Act, 1988 (41 of 1988); or

(i) section 125 (offence of promoting enmity between

classes in connection with election) or section 135 (offence

of removal of ballot papers from polling stations) or section

135A (booth capturing) or clause (a) of sub-section (2) of

section 136 (offence of fraudulently defacing or destroying

any nomination paper) of this Act; or

(j) section 6 (offence of conversion of a place of

worship) of the Places of Worship Act, 1991, or

(k) section 2 (offence of insulting the Indian National

Flag or the Constitution of India) or section 3 (offence of

preventing singing of National Anthem) of the Prevention

of Insults to National Honour Act, 1971 (69 of 1971); or

(l) the Commission of Sati (Prevention) Act, 1987; or

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

(n) the Prevention of Terrorism Act, 2002 (15 of 2002),

shall be disqualified, where the convicted person is

sentenced to— (i) only fine, for a period of six years from

date of such conviction; (ii) imprisonment, from the date of

such conviction and shall continue to be disqualified for a

further period of six years since his release.]

(2) A person convicted for the contravention of—









25

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

profiteering; or

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

drugs; or

(c) any provisions of the Dowry Prohibition Act, 1961

(28 of 1961)], and sentenced to imprisonment for not less

than six months, shall be disqualified from the date of

such conviction and shall continue to be disqualified for a

further period of six years since his release.

(3) A person convicted of any offence and sentenced

to imprisonment for not less than two years [other than

any offence referred to in sub-section (1) or sub-section

(2)] shall be disqualified from the date of such conviction

and shall continue to be disqualified for a further period of

six years since his release.]

28. That Section 8A of the RPA, 1951, reads as under:

―8A. Disqualification on ground of corrupt practices.—(1)

The case of every person found guilty of a corrupt practice

by an order under section 99 shall be submitted, as soon

as may be, after such order takes effect, by such authority

as the Central Government may specify in this behalf, to

the President for determination of the question as to

whether such 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






26

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.]

29. That Section 9 of the RPA, 1951 reads as under:

―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:




27

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.

31. That Section 10 of the RPA, 1951 reads as under:

―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.


28

32. That Section 10A of the RPA, 1951 reads as under:

―10A. Disqualification for failure to lodge account of

election expenses.—If the Election Commission is satisfied

that a person— (a) has failed to lodge an account of

election expenses, within the time and in the manner

required by or under this Act, and (b) has no good reason

or justification for the failure, the Election Commission

shall, by order published in the Official Gazette, declare

him to be disqualified and any such person shall be

disqualified for a period of three years from date of order.

33. That Section 11A of the RPA, 1951 reads as under:

―11A. Disqualification arising out of conviction and

corrupt practices.— (1) If any person, after the

commencement of this Act, is convicted of an offence

punishable under section 171E or section 171F of the

Indian Penal Code (45 of 1860), or under section 125 or

section 135 or clause (a) of sub-section (2) of section 136

of this Act, he shall, for a period of six years from the date

of the conviction or from the date on which the order takes

effect, be disqualified for voting at any election. (2) Any

person disqualified by a decision of the President under

sub-section (1) of section 8A for any period shall be

disqualified for same period for voting at any election.

(3) The decision of the President on a petition submitted

by any person under sub-section (2) of section 8A in






29

respect of any disqualification for being chosen as, and for

being, a member of either House of Parliament or of the

Legislative Assembly or Legislative Council of a State shall,

so far as may be, apply in respect of the disqualification

for voting at any election incurred by him under clause (b)

of sub-section (1) of section 11A of this Act as it stood

immediately before the commencement of the Election

Laws (Amendment) Act, 1975 (40 of 1975), as if such

decision were a decision in respect of the said

disqualification for voting also.


―41. Disqualification for being an election agent.—Any

person who is for the time being disqualified under the

Constitution or under this Act for being a member of

either House of Parliament or the House or either House of

the Legislature of a State or for voting at elections, shall,

so long as the disqualification subsists, also be

disqualified for being an election agent at any election.‖

35. That Section 62 in the RPA, 1951, reads as under:

―62. Right to vote.— (1) No person who is not, and except

as expressly provided by this Act, every person who is, for

the time being entered in the electoral roll of any

constituency shall be entitled to vote in that constituency.

(2) No person shall vote at an election in any constituency

if he is subject to any of the disqualifications referred to in




30

section 16 of the Representation of the People Act, 1950.

(3) No person shall vote at a general election in more than

one constituency of the same class, and if a person votes

in more than one such constituency, his votes in all such

constituencies shall be void.

(4) No person shall at any election vote in the same

constituency more than once, notwithstanding that his

name may have been registered in the electoral roll for the

constituency more than once, and if he does so vote, all

his votes in that constituency shall be void.

(5) No person shall vote at any election if he is

confined in a prison, whether under a sentence of

imprisonment or transportation or otherwise, or is in the

lawful custody of the police: Provided that nothing in this

sub-section shall apply to a person subjected to preventive

detention under any law for the time being in force.

(6) Nothing contained in sub-sections (3) and (4) shall

apply to a person who has been authorised to vote as

proxy for an elector under this Act in so far as he votes as

a proxy for such elector.


―29A. Registration with the Election Commission of

associations and bodies as political parties.— (1) Any

association or body of individual citizens of India calling

itself a political party and intending to avail itself of the






31

provisions of this Part shall make an application to the

Election Commission for its registration as a political party

for the purposes of this Act.

(2) Every such application shall be made,— (a) if the

association or body is in existence at the commencement

of the Representation of the People (Amendment) Act,

1988 (1 of 1989), within sixty days next following such

commencement; (b) if the association or body is formed

after such commencement, within thirty days next

following the date of its formation.

(3) Every application under sub-section (1) shall be

signed by the chief executive officer of the association or

body (whether such chief executive officer is known as

Secretary or by any other designation) and presented to

the Secretary to the Commission or sent to such Secretary

by registered post.

(4) Every such application shall contain the following

particulars, namely:— (a) the name of the association or

body; (b) the State in which its head office is situate;

(c) the address to which letters and other communications

meant for it should be sent; (d) the names of its president,

secretary, treasurer and other office-bearers; (e) the

numerical strength of its members, and if there are

categories of its members, the numerical strength in each

category; (f) whether it has any local units; if so, at what













32

levels; (g) whether it is represented by any member or

members in either House of Parliament or of any State

Legislature; if so, number of such member or members.

(5) The application under sub-section (1) shall be

accompanied by a copy of the memorandum or rules and

regulations of the association or body, by whatever name

called, and such memorandum or rules and regulations

shall contain a specific provision that the association or

body shall bear true faith and allegiance to the

Constitution of India as by law established, and to the

principles of socialism, secularism and democracy, and

would uphold the sovereignty, unity and integrity of India.

(6) The Commission may call for such other particulars as

it may deem fit from the association or body.

(7) After considering all the particulars as aforesaid in

its possession and any other necessary and relevant

factors and after giving the representatives of the

association or body reasonable opportunity of being heard,

the Commission shall decide either to register the

association or body as a political party for the purposes of

this Part, or not so to register it; and the Commission

shall communicate its decision to the association or body:

Provided that no association or body shall be registered as

a political party under this sub-section unless the

memorandum or rules and regulations of such association






33

or body conform to the provisions of sub-section (5).

(8) The decision of the Commission shall be final.

(9) After an association or body has been registered as a

political party as aforesaid, any change in its name, head

office, office-bearers, address or in any other material

matters shall be communicated to the Commission

without delay.

37. That Section 29B of the RPA, 1951, reads as under:

―29B. Political parties entitled to accept contribution.—

Subject to the provisions of the Companies Act, 1956 (1 of

1956), every political party may accept any amount of

contribution voluntarily offered to it by any person or

company other than a Government company:

Provided that no political party shall be eligible to

accept any contribution from any foreign source defined

under clause (e) of section 2 of the Foreign Contribution

(Regulation) Act, 1976 (49 of 1976).

Explanation.—For the purposes of this section and

section 29C,— (a) ―company‖ means a company as defined

in section 3; (b) ―Government company‖ means a company

within the meaning of section 617; and (c) ―contribution‖

has the meaning assigned to it under section 293A, of the

Companies Act, 1956 (1 of 1956) and includes any

donation or subscription offered by any person to a

political party; and (d) ―person‖ has the meaning assigned








34

to it under clause (31) of section 2 of the Income-tax Act,

1961 (43 of 1961), but does not include Government

company, local authority and every artificial juridical

person wholly or partially funded by the Government.]

38. On 09.08.2015, the Election Commission informed

the Central Government that 56 out of total 1866 political

parties are recognized as registered national and state

parties and rest 1810 are unrecognized registered parties.

The Commission also informed that during 2014 General

Election, only 464 political parties had fielded candidates.

Petitioner also knows few registered political parties who

never contest election. They are formed to avail the benefit

of income tax exemption. Such shell political parties exist

only on paper. They may be involved in money laundering.

39. Section 29A (6) states that ―the Commission may call

for such other particulars as it may deem fit from the

association or body. Sub-Section (7) empowers the ECI to

consider necessary and relevant factors before registering

any association or body as a political party. Sub-Section

(9) provides that any change in name, head office, office-

bearers, address or any other material matters shall be

communicated to the ECI without delay. Therefore, it is

duty of the ECI to de-register shell political parties and

debar the convicted person from forming political party

and becoming office bearer of registered political party.




35

40. Tenth Schedule of Constitution vests great powers

with the Political Parties in as much as they can oust even

an elected member – whether Member of Parliament or

Legislature of State Assembly - from the Party if he steps

out of party line. As per Section 29C of the RPA, donations

received by Political Parties are required to be reported to

the Election Commission. This obligation cast on Political

Parties also points towards their public character. Hence

this Hon‘ble should issue a mandamus to ban the person

from forming the political party and becoming the office

bearer of any registered political party for lifetime, who

has been convicted for any offence mentioned in Sections

8, 8A, 9, 9A, 10, 10A and 11A of the RPA, 1951.

41. That the ECI is an instrumentality of the State. By

virtue of the powers conferred on it under the Article 324

and Section 29A of the RPA read with Rules 5 & 10 of the

Conduct of Election Rules, 1961, and other powers vested

in it, the Commission promulgated the Election Symbols

(Reservation and Allotment) Order, 1968. Under this

Order, the Commission allots symbols to various Political

Parties. Allotment of election symbols by the Election

Commission to Political Parties is suggestive of the public

character of political parties. Moreover, political parties get

tax exemptions, which amounts to indirect financing of

the political parties in terms of Section 2(h) of the RTI Act.


36

42. The Central and State Governments have allotted

land buildings & other accommodations in prime locations

to political parties all over the country either, free of cost,

or on concessional rates. This also amounts to indirect

financing of the political parties. Doordarshan allots free

airtime to political parties during the elections. This is

another instance of indirect financing of political parties.

As the political parties are the life-blood of the entire

constitutional scheme in a democratic polity and as they

are directly and indirectly financed by the Central and

State Governments in various ways, as discussed

hereinabove, the convicted person should be restricted to

form political party and become political office bearer.

43. That Section 80 GGB of the Income Tax Act, which

provides that contribution made by an individual, or

Company to a Political Party is deductible from the total

income of the assesee. This provision is exclusively

applicable to the political parties and is suggestive of

indirect financing to the political parties by the State.

44. That political parties have a binding nexus with the

populace. As a central institution of the Indian democracy,

political parties embody the will of the people, carry all

their expectations that democracy will be truly responsive

to their needs and help and solve the most pressing

problems that confront them in the daily lives.


37

45. That in addition to exemption on income under

Section 139 of the Income Tax Act, political parties have

been provided facilities for residential and official use by

Directorate of Estates, Government of India, in New Delhi.

They have been given offices/residential accommodations

at prime locations in Delhi such as Akbar Road, Ashoka

Road, Chanakyapuri. The rentals charged are a fraction of

the market rent. These facilities are not just provided to

them at nominal rates but their maintenance, upgradation

modernization, renovation, etc. are also done at State

expense. Similar facilities are provided at various State

Capitals, details of which are extremely difficult to obtain.

46. That the ECI spends money for providing facilities to

political parties such as free electoral rolls, and also

provide free broadcast facilities to the political parties at

Doordarshan and All India Radio, which results in loss of

revenue in terms of air time. If closely monitored and

totalled, the full amount of public funds spent on Political

Parties, would possibly amount to thousands of crores.

47. That the Central Information Commission, various

State Information Commissions and the High Courts have

held that allotment of land/building on subsidized rates

and exemption from various taxes including income tax

amount to ―indirect financing‖ in terms of Section

2(h)(d)(ii) of the RTI Act 2005.


38

48. That a body or entity does not become a political

party in the legal sense until the ECI under Section 29A of

the RPA registers it. Therefore, this registration lends it

the colour of Public Authority. In addition, political parties

have constitutional and statutory status. Incorporation of

the Articles 102(2) and 191(2) through 42nd Amendment

and the 10th Schedule to the Constitution has given

constitutional status to political parties. However, neither

there is any law to regulate them nor Executive is willing

to implement Law Commission recommendations. Hence,

a convicted person is eligible to become party president.

49. The ECI under the Elections Symbols (Reservation &

Allotment) Order 1968, promulgated under the Article 324

and Rules 5 and 10 of the Conduct of Election Rules

1961, grants symbols to the political parties to recognize

them for election purposes and can suspend or withdraw

recognition of the political parties on their failure to

observe Model Code of Conduct or the lawful directions

and instructions of the ECI. It is also indicative of the

Public Character of the political parties.

50. This Hon‘ble Court in Common Cause vs. UOI (AIR

1996 SC 3081) dealt with income/expenditure incurred by

political parties and laid emphasis on transparency on

election funding and empowered the election commission

to take steps to promote transparency and accountability.


39

51. On 29.04.2008, the Central Information Commission

in File No-CIC/AT/A/2007/01029 has highlighted the

transparency in functioning of political parties as thus:

―28. Political Parties are a unique institution of the

modern constitutional State. These are essentially civil

society institutions and are, therefore, nongovernmental.

Their uniqueness lies in the fact that in spite of being

nongovernmental, Political Parties come to wield or

directly or indirectly influence, exercise of governmental

power. It is this link between State power and Political

Parties that has assumed critical significance in the

context of the Right of Information – an Act which has

brought into focus the imperatives of transparency in the

functioning of State institutions. It would be facetious to

argue that transparency is good for all State organs, but

not so good for the Political Parties, which control the

most important of those organs. For example, it will be a

fallacy to hold that transparency is good for the

bureaucracy but not good enough for the Political Parties

which control those bureaucracies through political

executives‖. The Commission has further observed:

―38. The laws of the land do not make it mandatory

for Political Parties to disclose the sources of their

funding, and even less so the manner of expending those

funds. In the absence of such laws, the only way a citizen


40

can gain access to the details of funding of Political Parties

is through their Income Tax Returns filed annually with

Income Tax authorities. This is about the closest the

Political Parties get to accounting for the sources and the

extent of their funding and their expenditure. There is

unmistakable public interest in knowing these funding

details which would enable the citizen to make an

informed choice about the Political Parties to vote for. The

RTI Act emphasizes that ―democracy requires an informed

citizenry‖, and that transparency of information is vital to

flawless functioning of constitutional democracy. It is

nobody‘s case that while all organs of State must exhibit

maximum transparency, no such obligation attaches to

Political Parties. Given that Political Parties influence the

exercise of political power, transparency in their

organization, functions and, more particularly, their

means of funding is a democratic imperative and therefore

is in public interest‖.

52. On 07.01.2010, in Indian Olympic Association versus

Veeresh Malik [WP(C) No. 876/2007] the Delhi High Court

has held that Indian Olympic Association is a ―Public

Authority‖ under Section 2(h) of the RTI Act. The relevant

paragraph is as thus:- ―Having regard to the pre-eminent

position enjoyed by the IOA, as the sole representative of

the IOC, as the regulator for affiliating national bodies in


41

respect of all Olympic sports, armed with the power to

impose sanctions against institutions – even individuals,

the circumstance that it is funded for the limited purpose

of air fare, and other such activities of sports persons, who

travel for events, is not a material factor. The IOA is the

national representative of the country in the IOC; it has

the right to give its nod for inclusion of an affiliating body,

who, in turn, select and coach sportsmen, emphasizes

that it is an Olympic sports regulator in this country, in

respect of all international and national level sports. The

annual reports placed by it on the record also reveal that

though the IOA is autonomous from the Central

Government, in its affairs and management, it is not

discharging any public functions. On the contrary, the

funding by the government consistently is part of its

balance sheet, and IOA depends on such amounts to aid

and assist travel, transportation of sportsmen and sports

managers alike, serves to underline its public, or

predominant position. Without such funding, the IOA

would perhaps not be able to work effectively. Taking into

consideration all these factors, it is held that the IOA is

―public authority‖ under the meaning of that expression

under the Act.‖ In the same judgment, the Delhi High

Court also held the Sanskriti School to be public

authority. The relevant paragraph is thus:- ―As discussed


42

earlier, grants by the Government retain their character as

public funds, even if given to private organizations, unless

it is proven to be part of general public policy of some sort.

Here, by all accounts, the grants – to the tune of Rs. 24

crores were given to the school, without any obligation to

return it. A truly private school would have been under an

obligation to return the amount, with some interest. The

conditionality of having to admit children of employees of

the Central Government can hardly be characterized as a

legitimate public end; it certainly would not muster any

permissible classification test under article 14 of the

Constitution. The benefit to the school is recurring; even if

a return of 10% (which is far less than a commercial

bank‘s lending rate) is assumed for 6 years, the benefit to

the school is to the tune of Rs. 14.88 crores. This is apart

from the aggregate grant of Rs. 24.8 crores, and the

nominal concessional rate at which the school was allotted

land for construction. On a consideration of all the above

factors, this Court holds that the school fulfils the

essential elements of being a non-government

organization, under Section 2(h) of the Act, which is

substantially financed by the Central Government,

through various departments, and agencies. It is

therefore, covered by the regime of the Act.‖


43

53. On 09.02.2010, in Bangalore International Airport

Limited vs Karnataka Information Commission [WP (C)

12076/2008] the Karnataka High Court has held that:- ―A

public authority may be described as a person or

administrative body entrusted with functions to perform

for the benefit of the public and not for private profit. Not

every such person or body is expressly defined as a public

authority or body, and the meaning of a public authority

or body may vary according to the statutory context; one

of the distinguishing features of an authority not being a

public authority, is profit making. It is not incumbent that

a body in order to be a public body must always be

constituted by a statute; for an authority to be a ‗public

authority‘ it must be an authority exercised or capable of

being exercised for the benefit of the public‖.

54. On 22.4.2010, Central Information Commission in

Amardeep Walia vs. Chandigarh Lawn Tennis Association

(CIC/LS/C/2009/900377), has held that Chandigarh

Lawn Tennis Association is Public Authority. Para 19 of

the order is thus: ―19. The gravamen of the above

judgments is that for a private entity to qualify to be a

public authority, substantive financing does not mean

‗majority‘ financing. What is important is that the funding

by the appropriate Government is achieving a ―felt need of

a section of the public or to secure larger societal goals.‖


44

The ratio of the above judgments, particularly of Delhi

High Court, applies to the present case on all the fours. A

huge property has been placed at the disposal of CLTA by

the Chandigarh Administration at a notional rental of

Rs.100/- per annum. Besides, grant of one lakh rupees

was also given to CLTA in FY 2008-09. Concededly, CLTA

fulfills the felt need of a section of the society by way of

imparting training to the budding tennis players. It is,

therefore, held that CLTA is a Public Authority.‖

55. On 21.1.2011, Central Information Commission in

Pradip Bhanot v Chandigarh Club (CIC/LS/A/2010/1184)

has held that Chandigarh Club is a Public Authority. The

broad facts in this case was that a plot of land measuring

3.85 lacs sq.ft. was leased out to the Club at the rent of

Rs. 1,08,208/- per month w.e.f. 20.7.2005 to 19.7.2010

with annual increase of 5%. Finance Department of

Chandigarh Administration had submitted before the

Commission that the aforesaid rent was not at par with

the market rent. Considering the totality of circumstances,

the SIC concluded that Chandigarh Club is a Public

Authority under section 2(h). Paras 03 & 04 of the Order:

―3. We have now received a response from the

Finance Department of the Chandigarh Administration

under the signatures of the Joint Secretary, Finance.

Paras 02 & 03 thereof are extracted below :-


45

―2. In this regard it is informed that the bodies like

Chandigarh Club are providing public service and while

fixing the rate of rent in such bodies, this aspect is taken

into consideration. In view of the public services being

provided by these bodies, said bodies can not be termed as

commercial sites. Due to this reason, rent of Chandigarh

Club was fixed as Rs 1,08,208/- per month with effect

from 20.7.2000 with annual increase of 5%. It is not out of

place to mention here that other similarly situated bodies

like Chandigarh Golf Club, Chandigarh Golf Association,

which are also providing the public services have been

kept at par with Chandigarh Club while determining the

rate of rent. In case we consider the Chandigarh Club as

commercial site, then the rent comes out to be rupees to

3157400 per month. Keeping in view the urban character

of the city, rent being charged from the Chandigarh Club

is not at par with the market rent. Further, by charging

rent at lower rate, it will make clear that Chandigarh

Administration is indirectly financing the promotion of

services being rendered by Chandigarh Club. 3. In view of

the aforesaid circumstances and in view of the fact that

said club is being indirectly financed for promotion of

public services by Chandigarh Administration the same is

squarely covered under the definition of ‗public authority‘

as defined under section 2 (h) (ii) of the RTI Act, 2005.‖


46

4. In view of the categorical position taken by the

Chandigarh Administration extracted above and the fact

that there is vast differential between the monthly rental

being paid by the Chandigarh Club and the commercial

rent that the premises could fetch in the open market (as

estimated by the Finance Deptt), we are of the opinion

that the Chandigarh Club is being indirectly financed by

the Chandigarh Administration. In this view of the matter,

we hold that Chandigarh Club is ‗public authority‘. Hence,

the club management is hereby directed to put in place a

mechanism for servicing the RTI Act.‖


in Amrit Mehta versus India International Centre (File No-

CIC/WB/A/2009/965/LS) has reiterated that the India

International Centre (IIC) is a Public Authority under

Section 2(h) of the RTI Act. The broad facts in this case

were that 4.69 acres of prime land was given on perpetual

lease to IIC against deposition of Rs. 1,68,840/- as per

agreement signed on 22.4.1960 between President of India

and IIC. The yearly rent payable by IIC to the Central

Government was Rs. 8,442/- which has remained

unchanged during the last five decades. In the facts of the

case, the Commission had held as thus:-

―XVIII. In view of the above discussion, it clearly

emerges that a huge chunk of land measuring 4.69 acres


47

was allotted to IIC in 1968 at a premium of Rs. 1,68,840/-

only, obviously, at a concessional rate. The agreement

between the parties expressly speaks of concessional

allotment of land. Further, IIC was required to pay rent of

Rs. 8,442/- per year to the Central Government and this

amount has remained unchanged during the last 52

years. This is also clearly indicative of the rent being

nominal/concessional in nature. These facts clearly

establish that the Central Government has indirectly

financed IIC. The RTI Act does not define ‗substantial

financing‘. The expression ‗substantial financing‘ has to be

interpreted in the context of a specific case. This has been

so held by the Punjab and Haryana High Court in WP(C)

19224/2006 (The Hindu Urban Cooperative Bank Ltd.

versus State Information Commission, Punjab) extracted

above. Considering the fact that a huge chunk of land was

allotted to IIC in 1960 in the very heart of the capital city

of Delhi at a premium of Rs.1,68,840/- only and also

considering the fact that IIC is paying rent of only Rs.

8,442/- per year to the Central Government over all these

years, in our opinion, amounts to indirect substantial

financing of IIC by the Central Government. In this view of

the matter, we hold that IIC is ―Public Authority‖ under

Section 2(h) of RTI Act 2005.‖


48

57. On 09.05.2011, the Punjab and Haryana High Court

in Punjab Cricket Association versus State Information

Commission Punjab & others [WP(C) 16086 / 2008

commonly referred as CWP No19224/2006] has held thus:

―68. Now adverting to the case of petitioner –PCA (at Sr.

No.12), it is admitted position that it is enjoying tax

exemption from entertainment tax which is an direct

financial aid by the State to it. Although the SIC has

negatived the plea of the complainant-information seeker,

but to my mind, the SIC has slipped into deep legal error

in this regard because the PCA is saving heavy amount

from exemption of entertainment tax which naturally is an

incidence of financial aid by the Government.‖ In the same

order, Court has held: ―72. Now adverting to the financial

help of petitioner-Sutlej Club, Ludhiana(at Sr. No.15) is

concerned, the SIC mentioned that as per revenue record,

the land owned by the Provincial Government is given to

the Club which amounts to substantial financial

assistance by the State Government. The fact that the

valuable land upon which the Club was constructed,

belongs to the Government and no rent/lease is paid by it

to the Government shows that there is a substantial

financial assistance by the State to the Club. The cost of

prime land provided to the club would be much more than

its normal revenue expenditure. Apart from land provided


49

for construction of the club building, the Government has

also incurred a part of expenditure on its construction….

In my view, the SIC has recorded the correct finding of fact

based on the material on record, by virtue of impugned

order dated 8.7.2010‖.


in File No. CIC/SG/C/2010/001036/AD, has held that

Delhi Public School (DPS), Rohini, New Delhi, is a Public

Authority under Section 2(h) of the RTI Act. The reasoning

given by the Commission is encapsulated in the para

extracted hereinafter. ―Considering the above factual

matrix of the case at hand, one can sum up that 6000 sq.

mts of land has been given to the school at a concessional

rate of Rs. 65 lacs per acre and 1-0,000 sq. mts of land at

a highly subsidised nominal ground rent of Rs. 10/- per

Annum by DDA. The School is under the governance,

control and regulation of the Delhi Schools Education Act

1973, Rule 50 whereof mandates disclosure of information

in the form of reports etc. to the Director of the Directorate

of Education, the Administrator and concerned authority

from the Central Government, as already discussed above.

The Directorate of Education has appointed two nominees

in the key Managing Committee of the School thereby

ensuring position of power of managing affairs of the

School and having control over the Respondent School.‖


50

59. On 11.01.2012, a relevant case, dealing with both,

land and income tax, was decided by the Central

Information Commission. [File- CIC/AD/A/2011/001699].

After considering all aspects of the issue, the Commission

decided as thus: ―12. The Commission while relying upon

the various decisions given hereinabove is convinced that

the Mount St. Mary‘s School may be considered as being

―substantially financed‖ by the appropriate Government,

in view of the 5 acres of prime land granted to it at

subsidized rates and income tax concessions being

enjoyed by the school and that, therefore, it can be

declared as a Public authority‖.

60. The Public Authority, as defined under section 2(h) of

the RTI Act, is a broader term than the ‗State‘ as defined

under Article 12 of the Constitution. In other words, it is

possible that an entity may fall short of being ‗State‘ and

yet may be a ‗Public Authority‘ under the RTI Act. In fact,

‗Public Authority‘ and the ‗State‘ are different and distinct

from each other. Judgment of Punjab and Haryana High

Court in WP(C) No. 19224/2006 is thus: ―25. Above-all,

the deep and pervasive control as required under Article

12, is not required and essential ingredient for invoking

the provisions of RTI Act. The primary purpose of

instrumentality of the State is in relation to enforcement of

the fundamental rights through Courts, whereas the RTI


51

Act is intended to achieve, access to information and to

provide an effective framework for effecting the right to

information recognized under Article 19 of the

Constitution. The complainants are not claiming any kind

of monetary benefits or property from the empire of the

petitioner-institutions. To my mind, the enforcement of

fundamental rights through Courts and the question of

applicability of writ jurisdiction on an instrumentality of

the State for the purpose of determination of substantive

rights and liabilities of the parties are altogether (entirely)

different than that of the field of RTI Act, only meant to

impart the information. Hence, in my view, the ambit and

scope of phrase of instrumentality of the State under

Article 12 of the Constitution is entirely different and

distinct than that of the regime of RTI Act. If the intention

of the Legislature was to so restrict the meaning to the

expression of public authority, straight jacketing the same

within the four corners of the State, as defined under

Article 12, then there was no need/occasion to assign a

specific broader definition of public authority under

section 2(h) of RTI Act in this relevant connection‖.

61. While determining whether a particular entity is a

Public Authority or not, narrow interpretation of the words

used in the statute would frustrate the object of the Act.

Purpose of the RTI Act is transparency and accountability


52

in the functioning of entities, which impact citizens‘ daily

lives. Judgment of the Delhi High Court in Indian Olympic

Association versus Veeresh Malik [WP(C) No. 876/2007]:

―41. The Act marks a legislative milestone in the post

independence era to further democracy. It empowers

citizens and information applicants to demand and be

supplied with information about public records.

Parliamentary endeavor is to extend it also to public

authorities which impact citizens daily lives. The Act

mandates disclosure of all manner of information and

abolishes the concept of locus standi of the information

applicant; no justification for applying (for information) is

necessary; decisions and decision making processes,

which affect lives of individuals and groups of citizens are

now open to examination. Parliamentary intention

apparently was to empower people with the means to

scrutinize government and public processes, and ensure

transparency. At the same time, the need of society at

large, and Governments as well as individuals in

particular, to ensure that sensitive information is kept out

of bounds have also been accommodated under the Act.‖

62. Though, above quoted decisions refer to institutions

such as schools, clubs which, in some characteristics are

different from Political Parties but these decisions do

recognize, accept, establish the principle that exemption


53

from tax and allotment or permission to use land and

other real estate is an accepted form of ―financing‖, though

it may be considered ―indirect‖ as it is not in the physical

form of money. And this principle is one of the factors that

makes Political Parties come under the definition of

―public authority‖ as given in section 2(h) of the RTI Act."

63. This Hon‘ble Court in Union of India vs. Association

for Democratic Reforms (AIR2002 SC 2112) has held thus:

―To maintain the purity of elections and in particular to

bring transparency in process of election, the Commission

can ask the candidates about the expenditure incurred by

the Political Parties and this transparency in the process

of election would include transparency of a candidate who

seeks election or re-election. In a democracy, the electoral

process has a strategic role. The little man of this country

would have basis elementary right to know full particulars

of candidate who is to represent him in Parliament where

laws to bind his liberty and property may be enacted.‖

64. Political parties constitute one of the most important

institutions in our democracy. Prof. Harold J Laski in his

―Grammar of Politics‖ has termed them ‗natural‘, though

not ‗perfect‘. According to him, life of a democratic State is

built upon party system. Without Political Parties, there

would be no means available of enlisting popular decisions

in a politically satisfactory manner. To quote him:


54

―The life of democratic State is built upon party-system

and it is important at the outset to discuss the part played

by party in the arrangement of affairs. Briefly, that part

may be best described by saying that parties arrange the

issues upon which people are to vote. It is obvious that in

the confused welter of modern State, there must be some

selection of problems as more urgent than others. It is

necessary to select them as urgent and present solutions

of them, which may be acceptable to the citizen-body. It is

that task of selection, the party undertakes. It acts, in Mr.

Lowell‘s phrase, as the broker of ideas. From the mass of

opinions, sentiments, beliefs, by which the electorate

moves, it chooses out those it judges most likely to meet

with general acceptance. It organizes persons to advocate

its own view of their meaning. It states that view as the

issue upon which the voter has to make up his mind. Its

power enables it to put forward for election candidates

who are willing to identity themselves with its view. Since

its opponents will do the same, the electorate, thereby, is

enabled to vote as a mass and decision that would

otherwise be chaotic, assumes some coherency and

direction…What, at least, is certain, is that without parties

there would be no means available to us of enlisting the

popular decision in such a way as to secure solutions

capable of being interpreted as politically satisfactory.‖


55

65. As per paragraph two of the Tenth Schedule, a

Member of a House belonging to any Political Party can be

disqualified in certain circumstances: ―2. Disqualification

on ground of defection. – (1) Subject to the provisions of

paragraphs 3, 4 and 5, a member of a House belonging to

any political party shall be disqualified for being a member

of the House—(a) if he has voluntarily given up his

membership of such political party; or (b) if he votes or

abstains from voting in such House contrary to any

direction issued by the political party to which he belongs

or by any person or authority authorized by it in this

behalf, without obtaining, in either case, the prior

permission of such political party, person or authority and

such voting or abstention has not been condoned by such

political party, person or authority within fifteen days from

the date of such voting or abstention. Explanation – For

the purposes of this sub-paragraph, (a) an elected member

of a House shall be deemed to belong to the political party,

if any, by which he was set up as a candidate for election

as such member; (b) a nominated member of a House

shall, -(i) where he is a member of any political party on

the date of his nomination as such member, be deemed to

belong to such political party; (ii) in any other case, be

deemed to belong to the political party of which he

becomes, or, as the case may be, first becomes, a member


56

before the expiry of six months from the date on which he

takes his seat after complying with the requirements of

Article 99 or, as the case may be, Article 188. (2) An

elected member of a House who has been elected as such

otherwise than as a candidate set up by any political

party, shall be disqualified for being a member of the

House if he joins any political party after such election. (3)

A nominated member of a House shall be disqualified for

being a member of the House if he joins any political party

after the expiry of six months from the date on which he

takes his seat after complying with the requirements of

Article 99 or, as the case may be, Article 188.‖

66. People must know the source of expenditure incurred

by Political Parties and candidates in the election. These

judicial pronouncements commend progressively higher

level of transparency in the functioning of Political Parties

in general and their funding in particular.

67. Political Parties have made a bland assertion before

the CIC that they are not Public Authorities under Section

2(h) of the RTI Act, though admitted allotment of land to

them by Central and State Government on certain terms.

The CIC has rejected the contentions of the parties.

68. This Hon‘ble Court should allow the instant petition

in larger public interest. It will promote transparency and

accountability in parties and ensure free and fair election.


57

69. The Law Commission in 170th Report recommended

to improve transparency in functioning of Political Parties:

―On the parity of the above reasoning, it must be said that

if democracy and accountability constitute the core of our

constitutional system, the same concepts must also apply

to and bind political parties which are integral to our

democracy. It is the political parties that form the

Government, man the parliament and run the governance

of country. It is therefore, necessary to introduce internal

democracy financial transparency and accountability in

the working of political parties. A political party, which

does not respect democratic principles in its internal

working cannot be expected to respect those principles in

the governance of the country. It cannot be dictatorship

internally and democratic in its functioning outside‖. The

Executive is unwilling to implement above suggestions.

Hence this Hon‘ble Court should allow the petition.

70. Copy of the Goswami Committee on Electoral Reform

(1990) is annexed as Annexure P-1. (Page 60-106)

71. Copy of National Commission to Review the Working

of the Constitution is annexed as Annexure P-2. (107-157)

72. Copy of the Background Paper on Electoral Reform

(2010) is annexed as Annexure P-3. (Page 158-183)

73. Copy of the ECI‘s Proposed Electoral Reform (2016) is

annexed as Annexure P-4. (Page 184-245)


58

GROUNDS

A. Because under section 29 of the RPA 1951, a person; who

is disqualified for registration in electoral roll under

section 16 of RPA 1950, disqualified for contesting election

under sections 8, 8A, 9, 9A, 10 or 10A of the RPA 1951,






B. Because, presently, even a person, who has been

convicted for heinous crimes like murder, rape,

smuggling, money laundering, sedition, loot, dacoity etc.

can form a political party and become party president. For

instance, Mr. Lalu Yadav, Mr. O.P. Chautala and Mrs.

Shashi Kala have been convicted for major scams but still

holding highest political post. Similarly, charges have been

framed by the Court in serious cases against Mr. Suresh

Kalmadi, Mr. Raja, Mr. Jagan Reddy, Mr. Madhu Koda,

Mr. Ashok Chavan, Mr. Akabaruddin Owaisi, Mrs.

Kanimozhi, Mr. Adhir Ranjan Chaudhary, Mr. Virbhadra

Singh, Mr. Mukhtar Ansari, Md. Shahabuddin, Mr. Suraj

Bhan Singh, Mr. Anand Mohan Singh, Mr. Mulayam Singh




59

C. Because Goswami Committee on Electoral Reform (1990)

proposed about the registration/recognition as follows:
























useful purpose.









60

D. Because NCRWC has recommended stringent criteria for

recognition of political parties to discourage proliferation.

It has recommended that rules/by-laws of parties seeking












E. Because ECI in 2004, proposed that amendment should



F. Because the proliferation of political parties has become a









61

G. Because political parties hold constitutional status and

wield constitutional powers under the Tenth Schedule of

the Constitution in as much as they have the power to –

(a) disqualify legislators from Parliament and State





H. Because as per Article 102 (2) of the Constitution, a

person can be disqualified from being a member of either

House of Parliament under the Tenth Schedule and that a

similar provision exists for the State Legislators under the

Article 191(2). Furthermore, as per Article 102(2), if a

member of a House belonging to a Political Party votes or

abstains from voting in the House contrary to the

directions issued by the Political Party, he is liable to be

disqualified from being a Member of the House.

I. Because political parties have been given statutory status









62

J. Because political parties are substantially financed by the







K. Because under Rules 11-12 of the Registration of Electors




L. Because Central as well as the State Governments have






M. Because the governance is revolved around the

political parties. They are continuously engaged in

performance of public duty and therefore it is important

that they become transparent. De-criminalization and de-

communalization of politics is essential in larger public

interest as they perform public function and, therefore,

convicted person should be debarred to form political

party and become political office bearer for lifetime.


63

N. Because a group of individuals gets the status of political









O. Because political parties perform public functions, define








P. Because ECI has plenary power and authorize to withdraw



Q. Because Executive is unwilling to implement the NCRWC,

Election Commission &Law Commission recommendations

and curtail corruption crime casteism and communalism,

the four menace of our democracy. Therefore, this Hon‘ble



64

PRAYER

Keeping in view the above stated facts and circumstances,

it is the most respectfully prayed that this Hon‘ble Court

may be pleased to issue a writ order or direction or a writ

in nature of mandamus to:

a) ban the convicted person from forming a political party

and becoming political office bearer, for the period, he is


16 of the RPA,1950, contesting election under sections 8,

8A, 9, 9A, 10 or 10A of the RPA,1951, disqualified for

voting under Section 11A of the RPA,1951, disqualified for

being election agent under section 41 of the RPA, 1951, or

forfeit his right to vote under section 62 of the RPA,1951;

b) in the alternative, declare Section 29A of the RPA, 1951,

arbitrary, irrational and ultra-vires the Constitution and

authorize the Election Commission of India for registration

and de-registration of political parties as suggested by the

Goswami Committee on Electoral Reform (Annexure P-1);

c) direct the Election Commission to frame guidelines to

decriminalize the electoral system and ensure inner party

democracy as proposed by the NCRWC (Annexure P-2);

d) take such other steps as this Hon‘ble Court may deem fit

for decriminalization of politics & allow cost to petitioner.

Drawn on: 15.11.2017 (R. D. Upadhyay)

Filed on: 18.11.2017 Advocate for Petitioner


65



WRIT PETITION (CIVIL) NO …… OF 2017

IN THE MATTER OF:

Ashwini Kumar Upadhyay …Petitioner

Verses

Union of India & another ...Respondents

AFFIDAVIT

I, Ashwini Kumar Upadhyay aged 42 years, son of Sh.

Suresh Chandra Upadhyay, Office at 15, New Lawyers

Chambers, Supreme Court of India, New Delhi-110001,

Resident of G-284, Govindpuram, Ghaziabad, Pin-201013,

at present at New Delhi, do hereby solemnly affirm and

declare as under:

1. That I am the sole petitioner above named and well

acquainted with facts and circumstances of the case and

as such competent to swear this affidavit.

2. That I have read and understood the contents of

accompanying synopsis and list of dates pages (B - I) and

writ petition paras (1 -73) pages (1 - 51) and total pages

(1 - 245) which are true and correct to my knowledge and

belief. The annexures filed with this writ petition are true

copies of their respective originals.

3. That petitioner has not filed any other petition either in

this Hon‘ble Court or in any other High Court seeking

same and similar directions as prayed in this petition.

4. That petitioner has no personal interests, individual gain,

private motive or oblique reasons in filing this PIL. It is not

guided for gain of any other individual person, institution

or body. There is no motive other than the public interest.

5. There is no civil, criminal or revenue litigation, involving

petitioner, which has or could have legal nexus, with the

issue involved in this petition. It is totally bona-fide.


66

6. There is no requirement to move concerned government

authority for relief sought in this PIL. There is no other

remedy available except approaching this Hon‘ble Court.

7. That I have gone through Article 32 of the Constitution

and Supreme Court Rules and do hereby affirm that the

present writ petition is in conformity thereof.

8. That I have done whatsoever enquiry/investigation, which

was in my power to do, to collect the data/material, which

was available; and which was relevant for this Hon‘ble

Court to entertain the present writ petition.

9. That I have not concealed any data/material/information

in this petition; which may have enabled this Hon‘ble

Court to form an opinion, whether to entertain this

petition or not and/or whether to grant any relief or not.

10. That the averments made in this affidavit are true

and correct to my personal knowledge and belief. No part

of this Affidavit is false/fabricated, nor has anything

material been concealed there from.

(Ashwini Kumar Upadhyay)

DEPONENT

VERIFICATION

I, the Deponent do hereby verify that the contents of

above affidavit are true and correct to my personal

knowledge and belief. No part of this affidavit is false nor

has anything material been concealed there from.

I solemnly affirm today i.e. Saturday, the 18th day of

November 2017 at New Delhi.

(Ashwini Kumar Upadhyay)

DEPONENT


67

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













68

(f) Narcotic Drugs &Psychotropic Substances Act, 1985; or

(g) section 3 (offence of committing terrorist acts) or section 4

(offence of committing disruptive activities) of the Terrorist and

Disruptive Activities Act, 1987; or (h) section 7 (offence of contravention

of the provisions of sections 3 to 6) of the Religious Institutions

(Prevention of Misuse) Act, 1988 (41 of 1988); or

(i) section 125 (offence of promoting enmity between classes in

connection with election) or section 135 (offence of removal of ballot

papers from polling stations) or section 135A (booth capturing) or clause

(a) of sub-section (2) of section 136 (offence of fraudulently defacing or

destroying any nomination paper) of this Act; or

(j) section 6 (offence of conversion of a place of worship) of the

Places of Worship Act, 1991, or

(k) section 2 (offence of insulting the Indian National Flag or the

Constitution of India) or section 3 (offence of preventing singing of

National Anthem) of the Prevention of Insults to National Honour Act,

1971 (69 of 1971); or

(l) the Commission of Sati (Prevention) Act, 1987; or

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

(n) the Prevention of Terrorism Act, 2002 (15 of 2002), shall be

disqualified, where the convicted person is sentenced to— (i) only fine, for

a period of six years from date of such conviction; (ii) imprisonment, from

the date of such conviction and shall continue to be disqualified for a

further period of six years since his release.]

(2) A person convicted for the contravention of—

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

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

(c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961)],

and sentenced to imprisonment for not less than six months, shall be

disqualified from the date of such conviction and shall continue to be

disqualified for a further period of six years since his release.

(3) A person convicted of any offence and sentenced to

imprisonment for not less than two years [other than any offence referred

to in sub-section (1) or sub-section (2)] shall be disqualified from the date

of such conviction and shall continue to be disqualified for a further

period of six years since his release.]

―8A. Disqualification on ground of corrupt practices.—(1) The case of

every person found guilty of a corrupt practice by an order under section

99 shall be submitted, as soon as may be, after such order takes effect,

by such authority as the Central Government may specify in this behalf,

to the President for determination of the question as to whether such















69

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.




70

―10A. Disqualification for failure to lodge account of expenses.—If

the Election Commission is satisfied that a person— (a) has failed to

lodge an account of election expenses, within the time and in the manner

required by or under this Act, and (b) has no good reason or justification

for the failure, the Election Commission shall, by order published in the

Official Gazette, declare him to be disqualified and any such person shall

be disqualified for a period of three years from date of order.

―11A. Disqualification arising out of conviction/corrupt practices.—

(1) If any person, after the commencement of this Act, is convicted of an

offence punishable under section 171E or section 171F of the Indian

Penal Code (45 of 1860), or under section 125 or section 135 or clause (a)

of sub-section (2) of section 136 of this Act, he shall, for a period of six

years from the date of the conviction or from the date on which the order

takes effect, be disqualified for voting at any election. (2) Any person

disqualified by a decision of the President under sub-section (1) of

section 8A for any period shall be disqualified for same period for voting

at any election. (3) The decision of the President on a petition submitted

by any person under sub-section (2) of section 8A in respect of any

disqualification for being chosen as, and for being, a member of either

House of Parliament or of the Legislative Assembly or Legislative Council

of a State shall, so far as may be, apply in respect of the disqualification

for voting at any election incurred by him under clause (b) of sub-section

(1) of section 11A of this Act as it stood immediately before the

commencement of the Election Laws (Amendment) Act, 1975 (40 of

1975), as if such decision were a decision in respect of the said

disqualification for voting also.

―41. Disqualification for being an election agent.—Any person who is

for the time being disqualified under the Constitution or under this Act

for being a member of either House of Parliament or the House or either

House of the Legislature of a State or for voting at elections, shall, so

long as the disqualification subsists, also be disqualified for being an

election agent at any election.‖

―62. Right to vote.— (1) No person who is not, and except as expressly

provided by this Act, every person who is, for the time being entered in

the electoral roll of any constituency shall be entitled to vote in that

constituency.

(2) No person shall vote at an election in any constituency if he is subject

to any of the disqualifications referred to in section 16 of the

Representation of the People Act, 1950.








71

(3) No person shall vote at a general election in more than one

constituency of the same class, and if a person votes in more than one

such constituency, his votes in all such constituencies shall be void.

(4) No person shall at any election vote in the same constituency more

than once, notwithstanding that his name may have been registered in

the electoral roll for the constituency more than once, and if he does so

vote, all his votes in that constituency shall be void.

(5) No person shall vote at any election if he is confined in a prison,

whether under a sentence of imprisonment or transportation or

otherwise, or is in the lawful custody of the police: Provided that nothing

in this sub-section shall apply to a person subjected to preventive

detention under any law for the time being in force.

(6) Nothing contained in sub-sections (3) and (4) shall apply to a person

who has been authorised to vote as proxy for an elector under this Act in

so far as he votes as a proxy for such elector.

―29A. Registration with the Election Commission of associations

and bodies as political parties.— (1) Any association or body of

individual citizens of India calling itself a political party and intending to

avail itself of the provisions of this Part shall make an application to the

Election Commission for its registration as a political party for the

purposes of this Act.

(2) Every such application shall be made,— (a) if the association or body

is in existence at the commencement of the Representation of the People

(Amendment) Act, 1988 (1 of 1989), within sixty days next following such

commencement; (b) if association is formed after such commencement,

within thirty days next following the date of its formation.

(3) Every application under sub-section (1) shall be signed by the chief

executive officer of the association or body (whether such chief executive

officer is known as Secretary or by any other designation) and presented

to the Secretary to the Commission or sent to such Secretary by

registered post.

(4) Every such application shall contain the following particulars,

namely:— (a) the name of the association or body; (b) the State in which

its head office is situate; (c) the address to which letters and other

communications meant for it should be sent; (d) the names of its

president, secretary, treasurer and other office-bearers; (e) the numerical

strength of its members, and if there are categories of its members, the

numerical strength in each category; (f) whether it has any local units; if

so, at what levels; (g) whether it is represented by any member or

members in either House of Parliament or of any State Legislature; if so,

number of such member or members.


















72

(5) The application under sub-section (1) shall be accompanied by a copy

of the memorandum or rules and regulations of the association or body,

by whatever name called, and such memorandum or rules and

regulations shall contain a specific provision that the association or body

shall bear true faith and allegiance to the Constitution of India as by law

established, and to the principles of socialism, secularism and

democracy, and would uphold sovereignty, unity and integrity of India.

(6) The Commission may call for such other particulars as it may deem

fit from the association or body.

(7) After considering all the particulars as aforesaid in its possession and

any other necessary and relevant factors and after giving the

representatives of the association or body reasonable opportunity of

being heard, the Commission shall decide either to register the

association or body as a political party for the purposes of this Part, or

not so to register it; and the Commission shall communicate its decision

to the association or body: Provided that no association or body shall be

registered as a political party under this sub-section unless the

memorandum or rules and regulations of such association or body

conform to the provisions of sub-section (5).

(8) The decision of the Commission shall be final.

(9) After an association or body has been registered as a political party as

aforesaid, any change in its name, head office, office-bearers, address or

in any other material matters shall be communicated to the Commission

without delay.

―29B. Political parties entitled to accept contribution.—Subject to

the provisions of the Companies Act, 1956 (1 of 1956), every political

party may accept any amount of contribution voluntarily offered to it by

any person or company other than a Government company:

Provided that no political party shall be eligible to accept any

contribution from any foreign source defined under clause (e) of section 2

of the Foreign Contribution (Regulation) Act, 1976 (49 of 1976).

Explanation.—For the purposes of this section and section 29C,—

(a) ―company‖ means a company as defined in section 3; (b) ―Government

company‖ means a company within the meaning of section 617; and

(c) ―contribution‖ has the meaning assigned to it under section 293A, of

the Companies Act, 1956 (1 of 1956) and includes any donation or

subscription offered by any person to a political party; and (d) ―person‖

has the meaning assigned to it under clause (31) of section 2 of the

Income-tax Act, 1961 (43 of 1961), but does not include Government

company, local authority and every artificial juridical person wholly or

partially funded by the Government.]











73

Annexure P-1

GOSWAMI COMMITTEE ON

ELECTORAL REFORMS

REPORT OF THE

COMMITTEE ON

ELECTORAL REFORMS

MAY 1990

GOVERNMENT OF INDIA

MINISTRY OF LAW AND JUSTICE

LEGISLHTIVE DEPARTMENT


74

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


75

booth capturing, rigging, violence etc.; misuse of official machinery, i.e.

official media and ministerial; increasing menace of participation of non-

serious candidates; form the core of our electoral problems. Urgent

corrective measures are the need of the hour lest the system itself should

collapse.

1.7 Electoral reforms are correctly understood to be a continuous

process. But the attempts so far made in this area did not touch even the

fringe of the problem. They proved to be abortive. Some of the recent

measures like reduction of voting age and anti-defection law are no doubt

laudable and the basic principles underlying those measures should be

appreciated. But there are other vital and important areas in election

field completely neglected and left high and dry.

1.8 All these four decades, especially after 1967, the demand for

electoral reforms has been mounting up. The subject of electoral reforms

received wide attention at various Seminars and Forums. Many eminent

persons and academicians have written on various aspects of electoral

reforms. It would be relevant to make reference in brief to some of them.

(1) The Report of the Joint Parliamentary Committee on

amendment to election law - Part I and Part 11 - submitted in 1972 in

two parts and the draft Bill appended thereto.

(2) The Report of the Committee For Democracy (CFD) set up by

Shri Jaya Prakash Narayan under the Chairmanship of Justice

Tarkunde in August 1974.

(3) Consideration of the various aspects of electoral reforms by the

Sub-Committee of Cabinet appointed in 1977.

(4) Consideration of the various aspects of electoral reforms by the

Sub-Committee of the Cabinet between 1982 - 1984.

(5) Various Presidential Addresses in Parliament.

(6) Various Reports of Election Commission containing the views,

suggestions and recommendations of the Chief Election Commissioners

from 1952 onwards and the package of proposals made by the

Commission in 1982.

(7) The comments and views of the present Chief Election

Commissioner, Shri R.V.S. Peri Sastri, as contained in his Notes

circulated at the meeting of the political parties held on 9-1-1990.

(8) The recommendations of the various Seminars including the

one organized in March, 1983 by the Institute of Constitutional and

Parliamentary Studies in New Delhi to deal with the various aspects of

electoral reforms.

(9) Write ups, articles etc. in national press regarding various

aspects of electoral law and procedure.


76

(10) Articles in Periodical "Swarajya" by Shri R. Venkataraman,

President of India in Sixties (1960)

1.9 Some of the books by eminent authors dealing with either

comprehensively the various aspects of electoral reforms or particular

important aspects thereof are-

(1) 'Lack of Political Will' by Shri Ramakrishna Hegde, former Chief

Minister of Karnataka and at present Deputy Chairman of the Planning

Commission.

(2) 'Electoral Reforms' a book by Shri L.P. Singh, former Governor.

(3) 'Rescue Democracy From Money Power' by Shri Rajagopalachari

(Rajaji), former Governor-General and an eminent statesman.

(4) Reports of various Seminars addressed by Shri S.L. Shakdher,

former Chief Election Commissioner; Shri R.K. Trivedi, Former Chief

Election Commissioner; Shri R.V.S. Peri Sastri, Present Chief Election

Commissioner; Shri L.K. Advani (MP) and others.

1.10 Thus, there are in existence informative, productive and

useful voluminous materials on the subject. The general public has been

getting the feeling that there is lack of political will to undertake any

useful exercise of electoral reforms.

1.11 In this context, the quick and timely initiative of the Prime

Minister, Shri Visvanath Pratap Singh, on the assumption of office of the

National Front Government is refreshing. It has revived the hope that

meaningful electoral reforms could now be a distinct possibility and

efforts would be directed towards removing the serious drawbacks and

distortions in the election law and procedure.

1.12 A meeting mainly of the representatives of political parties in

Parliament was convened on the 9th January, 1990 at New Delhi under

the Chairmanship of the Prime Minister, Shri Vishwanath Pratap Singh.

Various aspects of electoral reforms were discussed at the meeting. In

summing up of the deliberations, the Prime Minister outlined the

following areas of electoral reforms on which general discussions at the

meeting took place and broad consensus on the need for corrective

measures emerged :-

(1) Change of electoral system with special reference to

Proportional Representation System and List System on which divergent

views were earlier expressed;

(2) Strengthening of the Election Commission and securing its

independence including making the holder of the post of the Chief

Election Commissioner ineligible for any office under the government

after his term;


77

(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.


78

1.15 Smt. V.S. Rama Devi, Secretary, Legislative Department,

Ministry of Law and Justice, has also been requested to assist the

Committee in its deliberations.

1.16 At the first meeting of the Committee held on the 3rd

February, 1990 at New Delhi under the Chairmanship of Shri Dinesh

Goswami, Law Minister, the Chairman indicated that detailed working

paper under various heads of subjects of the contemplated electoral

reforms would be prepared and circulated to members.

1.17 Shri K. Ganesan has been instructed to prepare the detailed

working paper' in consultation with Shri Era Sezhiyan and Law Minister.

1.18 Detailed Notes under different Headings have been prepared

with necessary Appendices thereto. The number of such main headings

are 10 in Part-I and the number of sub-items thereunder are 55 covering

every main aspects of election law and procedure.

1.19 Under Part-II, detailed notes on the different electoral

systems obtaining in a few countries and the examination of those

systems from the point of view of its suitability to Indian conditions have

been prepared with necessary Appendices thereto.

1.20 These notes - Parts I and " - were circulated to the members

of the Committee well in advance.

1.21 Thereafter, the Committee had six meetings as per the details

given below:-

1. 7th March 1990

2. 8th March 1990

3. 30th March 1990

4. 31st March 1990

5. 2nd April 1990

6. 11th April 1990

1.22 At these meetings, the Committee examined the Notes on subjects

in Part-I and Part-II and also considered the following additional notes

prepared on specific subjects:-

(1) Note on proposal regarding amendment to section 39 of the

Representation of the People Act, 1951 (relating to increase in the

number of proposers to a nomination paper in the case of elections to

Rajya Sabha and Legislative Councils).

(2) Recommendations made by the National Seminar on 'Elections

and role of Law Enforcement' organised by the National Police Academy,

Hyderabad and a note thereon.

(3) Additional notes on 'Offence of Booth Capturing' prepared in

consultation with Shri L.P. Singh.


79

(4) The opinion of the Attorney-General on the various legislative

measures proposed for discouraging non-serious candidates from

contesting elections.

(5) A Note containing broad outlines of U.K. law regarding election

expenses prepared by Shri Era Sezhiyan.

(6) A Note on 'Contribution by Companies to Political Parties'

prepared by Shri L.P. Singh.

1.23 Apart from the above Notes, a brief statement containing gist of the

suggestions in the letters received from Members of Parliament and other

important persons on electoral reforms in response to the letter of the

Minister of Law and Justice dated the 28th December, 1989 inviting their

views and suggestions, were also circulated to the members of the

Committee. Such of the important suggestions as are having a bearing

on the subjects dealt with in the Notes have also been taken into account

by the Committee.

1.24 The Committee concluded its work on the 4th May, 1990 at which

the draft final report of the Committee has been approved.

CHAPTER II

Electoral Machinery

1. Set up of multi-member Commission

1.1 The Committee examined the question of making the Election

Commission as a multi-member body. There has been broad agreement

among all members about the Commission being a multi- member body.

The Committee feels that the ECI should be a three member body.

1.2 As regards the mode of appointment of the Chief Election

Commissioner and the two Election Commissioners, the Committee

recommends as follows.-

(i) The appointment of the Chief Election Commissioner should be

made by the President in consultation with Chief Justice of India and the

Leader of the Opposition (and in case no Leader of the opposition is

available, the consultation should be with the leader of the largest

opposition group in the Lok Sabha).

(ii) The consultation process should have a statutory backing.

(iii) The appointment of the other two Election Commissioners

should be made in consultation with the Chief Justice of India, Leader of

the Opposition (in case the Leader of the opposition is not available, the

consultation should be with the leader of the largest opposition group in

the Lok Sabha) and the Chief Election Commissioner.

(iv) The appointment of Regional Commissioners for different zones

as proposed is not favoured. However, such appointment should be made

only as envisaged in the Constitution and not on a permanent footing.


80

2. Steps for securing independence of the Commission

2.1 Various measures have been considered for securing the real

independence of the Election Commission.

2.2 The Committee recommends that the protection of salary and

other allied matters relating to the Chief Election Commissioner and the

Election Commissioners should be provided for in the Constitution itself

on the analogy of the provisions in respect of the Chief Justice and

Judges of the Supreme Court. Pending such Election measures being

taken, a parliamentary law should be enacted for achieving the object.

2.3 The Committee feels that the proposal to make the expenditure

of the Commission to be 'charged' is not necessary. Such expenditure

should continue to be 'voted' as of now.

2.4 The Committee further recommends that on the expiry of the

terms of office, the Chief Election Commissioner and the Election

Commissioners should be made ineligible not only for any appointment

under the Government but also to any office including the post of

Governor the appointment to which is made by the President.

2.5 As regards the tenure of the Chief Election Commissioner and

other Election Commissioners, the Committee recommends that it

should be for a term of five years or sixty-five years of age whichever is

later. Committee makes it clear that the Chief Election Commissioner

and Election Commissioners should in no case continue in office beyond

the age of sixty-five years and for more than ten years in all.

3. Set up of the Secretariat

The Committee agrees that in regard to the set up of the secretariat

of the Commission, provisions on the lines of Article 98(2) of the

Constitution relating to Lok Sabha Secretariat should be made and that

till such provision is made, a law of Parliament should be enacted.

4. Set up of electoral machinery at State level

4.1 The Committee considered the suggestion for appointment of a

full-time Chief Electoral Officers in States. The consensus is that Chief

Electoral Officers, when so appointed, should exclusively be entrusted

with the election work and not saddled with any other items of work. The

Committee is of the view that present provision in the law is adequate.

4.2 The Committee examined the suggestion of the Election

Commission for the creation of a supervisory agency for a group of

districts. However, it does not accept the suggestion.

4.3 As regards the disciplinary control over the state-level officers

including the Chief Electoral Officer, the Committee feels that even after

the recent insertion of the provision in section 28A of the Representation

of the People Act, 1951 treating such officers as are drafted for election


81

duties, on deputation to the Election Commission, no disciplinary

proceedings could be taken against them directly by the Election

Commission itself. Keeping this in view, the Committee recommends that

the matter should be further examined as to how best the Commission's

control over the officers during the election period could be made more

effective and complete in all respects including framing of charges,

launching of prosecution and disciplinary proceedings against concerned

officers for breach of duty during the period of his deputation to the

Election Commission.

4.4 As regards the question of placing certain restrictions on the

transfer of officers connected with the election work when the election is

in prospect, the Committee agrees that such transfers should be effected

only with the concurrence of the Election Commission.

5. Extension of jurisdiction of electoral machinery in relation

to elections to Panchayat Raj institutions.

The committee took note of the proposal under contemplation to

amend the Constitution of India in regard to set up of Panchayat Raj

institutions. For this reason, the Committee feels that the matter relating

to the extension of jurisdiction of electoral machinery in relation to

elections to Panchayat Raj institutions should be taken up only after

ascertaining the exact details of the contemplated legislative or

constitutional measures.

6. Power of contempt in favour of Election Commission

The Committee considered the proposal of empowering the Election

Commission with power of contempt of court to the limited purpose of

Symbol cases and reference cases regarding disqualification of sitting

members. It does not, however, favour the proposal.

REFERENCE SOURCES

1. Minutes of the meeting of the Committee dated 3rd February, 1990.

2. Minutes of the meeting of the Committee dated 7th March, 1990.

3. Minutes of the meeting of the Committee dated the 8th March, 1990

4. Minutes of the meeting of the Committee dated 31st March, 1990.

5. Minutes of the meeting of the Committee dated the 2nd April, 1990.

6. Notes on Subjects in Part I - Chapter II - Electoral Machinery.

CHAPTER - III : DELIMITATION OF CONSTITUENCIES

1.1 The Committee discussed the matter relating to fresh delimitation of

Parliamentary and Assembly constituencies both on 7th March, 1990

and 2nd April, 1990 in some detail. It also considered the question of

increasing the total number of seats in the House of the People and

Legislative Assemblies of the States; the rotation of seats reserved for

scheduled castes and the reservation of seats for women.


82

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.


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.


83

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.


84

2.3 The following steps are indicated in paragraph 3.11 of the

Notes, which are accepted.

(a) Other Government departments and Ministries should be

involved to make the possession of the card by every adult citizen

compulsory for receiving benefits and facilities.

(b) Bhaba Atomic Research Centre should be associated to prepare

fuller details of the scheme from the point of view of cheaper cost and of

its intamperability with a provision for keeping some sort of a duplicate

photo identity lists containing all the names of the electors in a

particular area which could ultimately take the place of the electoral roll.

(c) Active involvement of the postal agencies for covering all areas

and make them to serve as the focal point for the field operation

connected with the scheme, is necessary.

(d) Provision of adequate funds of the Government in the annual

budgets of the Central Government and the State Governments to meet

the expenditure is necessary.

(e) Identifying an agency of the State Government and making it

fully responsible for the implementation of the scheme is essential.

(f) Fixation of a time-bound programme for covering the entire

country is desirable.

REFERENCE SOURCE



3. Notes on Subjects - Part I - Chapter IV - Electoral Rolls

CHAPTER-V: POLITICAL PARTIES AND CANDIDATES

1. Restriction on candidates contesting from several candidates

constituencies:

The Committee took note of the problems created by persons

contesting elections from several constituencies in the absence of any

kind of restrictions in that regard. The Committee therefore, recommends

that a person should not be allowed to contest elections from more than

two constituencies of the same class.

2. Lowering of age-limit for contesting candidates:

The Committee feels that with the reduction of voting age from 21

to 18 years, it would be appropriate that the age qualification for

contesting should be reduced to 21 years in the case of elections to

Legislative Assemblies and Lok Sabha and to 25 years in the case of

elections to Legislative Councils and Council of States. Accordingly, the

Committee recommends the reduction of the age as proposed.


85

3. Registration and recognition of political parties:

3.1 The Committee took note of that before insertion of the

provisions in the Representation of the People Act, 1951 in 1988 (vide

section 29A) the registration and recognition of political parties were fully

regulated by the Election Symbols (Reservation and Allotment) Order,

1968 which is operated by the Election Commission.

3.2 After the insertion of new section 29A of the Act for the

purpose of making the political organisations seeking registration to

conform in form only to the provisions of the Constitution, especially to

the preamble thereto, the powers of the Election Commission in regard to

registration of political parties under the Symbols Order has been taken

away. The Election Commission has to apply the new provisions for the

registration of political parties.

3.3 The Committee observed that in view of the provisions of

section 29A of the Act and of a very large number of applications from

political parties for registration on the eve of the last Lok Sabha

elections, the Commission had no option except to register as many as

261 political parties. This has created many practical and administrative


3.4 All the members of the Committee, except Shri H.K.L. Bhagat,

feel that the new provision in section 29A do not serve any purpose.

3.5 It has been brought to the notice of the members of the

Committee that the Attorney-General of India whose opinion was sought

on the various measures for discouraging non-serious candidates from

election contests, has observed that new section 29A has not served any

useful purpose.

3.6 After taking into account the above factors, all the members of

the Committee, except Shri H.K.L. Bhagat, feel that section 29A should

be deleted and the matter of registration of political parties should be left

to be decided solely by the Election Commission under the Symbols

Order applying the criteria of tangible proof of 1% of the valid votes to be

secured by applicant party for registration.

3.7 The question of what would be the effect of deletion of section

29A on the continuance or otherwise of the 261 political parties, which

have been registered under that, section has also been raised. Members

of the Committee feel that the proposed provision relating to the deletion

of section 29A should also include a consequential provision authorizing

the Election Commission to deal with afresh any application for

registration after the removal of the 261 political parties from the list of

registered parties.


86

3.8 The Committee feels that there is no need for recognizing

alliances of political parties at elections and for any change in the

present procedure of allotment of symbols.

4. Regulations for containing contests by non-serious candidates:

4.1 When the matter regarding various measures proposed for

containing non-serious candidates from contesting election was taken

up, some members felt that the opinion of the Attorney General should

be obtained as to whether restrictions proposed would not amount to

discrimination as envisaged in the provisions of the Constitution.

Accordingly, the opinion of the Attorney General was obtained.

4.2 The Attorney-General has inter-alia given the opinion that the

various measures proposed for discouraging non-serious candidates from

election contests would not be open to challenge on the ground that they

introduce the element of discrimination as the proposed legislative

measures could be sustained on their being on rational basis in regard to

classification. Therefore, they are not discriminatory.

4.3 The Committee further discussed the matter with reference to

the opinion of the Attorney-General. The Committee recommends that

the following measures should be taken up:

(a) Security deposit should be fixed as follows:-

(i) In case of a candidate set up by a recognised National or State Party -

(i) for Assembly elections - Rs. 500

(ii) for Lok Sabha elections - Rs.1000

The usual concessions to Scheduled castes and Scheduled tribes

candidates should also be available.

(ii) In case of independents and candidates set up by registered parties -

(i) for Assembly elections - Rs.2500

(ii) for Lok Sabha elections - Rs.5000

(b) If an independent candidate or a candidate set up by a registered

party fails to secure 1/4, as against 1/6 of the valid votes polled as at

present, the security deposit should be forfeited.

(c) The number of proposers to a nomination paper to be filed by an

independent candidate or a candidate set up by a registered party should

be ten drawn from different assembly segments.

(d) Arrangement of names of candidates in the ballot paper should be in

the following order:-

1. Candidates of recognised national parties.

2. Candidates of recognised state parties.

3. Candidates of registered parties.

4. Independent.


87

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


88

in regard to such violation. However, the Committee agrees that the

items enumerated in para 11.6 of the Notes should be brought under the

Statute as an electoral offence instead of corrupt practice.

6.3 The following are the items, which according to the Committee,

should be brought within the ambit of the proposed electoral offence:-

(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 official aircrafts, vehicles,

machinery & personnel in connection with any work relating to elections;

(c) restricting or monopolizing the use of public places for holding

election meetings 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 purposes 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;

(i) making of any ad hoc appointments in Government or public

undertakings during the election period for the furtherance of the

prospects of any party or candidate;

(j) entering any polling station or place of counting by a Minister except

in his capacity as a candidate or as a voter or as an authorized agent;

(k) ban on transfer of officers and staff specified in section 28A when

election is in prospect.

REFERENCE SOURCE


2. Minutes of the Meeting of the Committee dated 31 st March, 1990.


4. Notes on Subjects - Part I - Chapter V - Political Parties and

Candidates.

5. Opinion of Attorney-General on the subject of containing non-serious

candidates dated 30th March, 1990.


89

CHAPTER VI: CONDUCT OF POLL

1. Constitution of Indian Election Service

The Committee considered in some detail the proposal of the Election

Commission recommending the constitution of Indian Election Service.

However, the Committee feels that there is no need for such a service to

be constituted.

2. Ban on transfer of offices connected with elections

The Committee accepts the proposal for legal provision for imposing ban

on transfer of civil and police officers connected with elections for a

specific period. The Committee recommends accordingly that the law

should be suitably amended.

3. Statutory status of Commission's observers

3.1 The Committee accepts the suggestion to clothe the Commission's

observers at elections with statutory powers.

3.2 The Committee desires that the law should spell out their specific

role like the power to stop (1) the poll for specified reasons; (2) the

counting and (3) the declaration of the result. The Committee further

suggests that in all these cases, the matter should be referred to the

Election Commission for final decision.

3.3 The Committee also agrees that there could be a general provision in

the proposed law to the effect that an observer may be assigned such

other functions as may be entrusted to him by the Election Commission,

as in the case of a District Election Officer.

4. Role of Voluntary organizations

The Committee does not favour the proposal to give statutory recognition

to the role of voluntary organizations and constitution of a Political

Council or Election Council in regard to the conduct of free and fair

elections. The Committee feels that the Election Commission itself could

afford under its general powers, such facilities as it finds proper and

necessary.

5. Use of Electronic Voting Machines

5.1 The Committee considered the proposal for the use of electronic

voting machines at elections. It feels that the machines should be tested

by technological experts with a view to remove any doubts or

misapprehensions in the minds of the public with regard to the

credibility of the working of the machines. The Committee discussed

further the matter on 30th March, 1990 and 31st March, 1990. The

technological experts from the Electronic Corporation of India Limited,

Hyderabad and of the Department of Electronics have demonstrated the

working of the machine on those days.


90

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.


91

6.2 The Committee considered the suggestion of Shri Kishore

Chandra Deo and instructed the technologists of the Electronics

Corporation of India who were present for the demonstration of the

voting machine to apply their mind to all aspects of the matter and send

their feasibility report quickly.

7. Set up of mobile polling stations:

7.1 The Committee considered the proposal regarding set up of mobile

polling stations as detailed in the Notes.

7.2 It has been explained that the set-up of mobile polling stations

would mostly be with a view to enabling weaker sections of electorate

who run the risk of being prevented from travelling a long distance to a

polling station to exercise their votes near their area of residence. In

other words, mobile polling stations would take the place of auxiliary

polling stations, which are being set up at present in a limited way to

enable weaker sections to exercise their votes freely near their residence.

7.3 The members want such mobile polling stations (vans) to be used

only as auxiliary polling stations and it should be stationed for the full

polling period. It should also be well protected with adequate police force.

7.4 The Committee also took note of that set up of such auxiliary polling

stations does not require amendment of law as the Election Commission

could, by executive administrative instructions, achieve the object.

8. Steps to eradicate booth capturing rigging intimidation etc.

8.1 The fact that the Committee is exercised over the problems of

booth capturing which seriously affect a free and fair election is clear

from the detailed discussions on the topic among the members and

consideration of various measures to tackle the problems.

8.2 The Committee not only considered the Notes on the subject

put up for consideration but also the additional Notes prepared on the

advice of Shri L.P. Singh, one of the members of the Committee.

8.3 The Committee took note of that the law has been specifically

amended in 1988 with a view to dealing with the menace of booth

capturing.

The amendments introduced in 1988 are as follows:-

(i) Insertion of a new provision, as section 58A of the Representation

of the People Act, 1951 (adjourment of poll or countermanding

of election on the ground of booth capturing);

(ii) Insertion of a new clause (8) in section 123 to make booth

capturing as a corrupt practice; and

(iii) Insertion of new section 135-A to make the offence of booth

capturing as an electoral offence.


92

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


93

Article 356 of the Constitution (provision in case of failure of

constitutional machinery in States) should provide a useful guidance.

(ii) Under section 58A of the Act, the Election Commission should not

only be empowered to countermand the election and order a fresh

election as now provided under the law, but also empowered to declare

the earlier poll to be void and order only a repoll in the entire

constituency depending on the nature and seriousness of each case .

(iii) It is essential that an enabling provision should be incorporated in

the law empowering the Election Commission to locate (1) an

investigation agency; State or Central; (2) a prosecuting agency ; (3)

constitution of special courts wherever necessary. It is not necessary to

bind in any way specifically the ECI in regard to these matters.

(iv) The suggestion of Shri R.K. Trivedi, Former Chief Election

Commissioner in his report and of Shri Rajaji that the State Government

should function as a caretaker Government during the period of elections

is not been favoured.

(v) The suggestion that the formation of voluntary organizations should

be encouraged to oversee the conduct of the poll in every constituency is

also not favoured.

(vi) The proposal to make the electoral offence of booth capturing as a

cognizable offence with a stringent punishment is accepted. (This aspect

is also being with dealt below).

(vii) The proposals that there should be a strict enforcement of standing

instructions of the Commission regarding surrender of arms,

apprehensions of bad elements etc. and that for this purpose a statutory

recognition should be given to the issue of standing instructions by the

ECI by insertion of a suitable enabling provision in the Act, are accepted.

(viii) The suggestions that there should be proper coordination between

State and Central Police Forces and deployment of Central Forces for

election duty at polling stations wherever found necessary are accepted.

The Committee desires that the Election Commission should be asked to

examine further the matter for taking concrete steps in that behalf.

(ix) The suggestion for deployment of planning and supervisory

machinery in the constituencies to oversee the arrangements over and

above the existing arrangements under the existing instructions of the

Commission is found to be neither feasible nor necessary.

9. Time Limit for holding by-elections

9.1 The Committee took note of the reasons for the delay in holding bye-

elections as explained in the Notes.

9.2 In this context, the Committee examined the proposal as contained

in the Notes that a bye-election should be held within three months of


94

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.


95

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


96

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


2. Minutes of the Meeting of the Committee dated 30-31 March, 1990.



97

4. Notes on Subjects-Part I (Chapter VI - Conduct of PoIl).

5. Note on requirements of ten proposers for Rajya Sabha elections.

6. Note containing the recommendations of the National Seminar on

"Elections and role of law enforcement" at Hyderabad - Category III).

7. Note on offences of Booth capturing.

8. Report of the Technological Experts team on the use of EVM.

CHAPTER-VII: ELECTION EXPENSES

1. Fixing reasonable ceiling on rational basis.

1.1 The Committee examined the suggestions contained in paragraph 7.5

of the Notes and feels that the law should lay down provisions enabling

the ECI to revise the ceilings of election expenditure on the eve of every

general election to Lok Sabha and Assembly of a State.

1.2 Accordingly, the Committee recommends that section 77(3) of the Act

should be amended empowering the ECI to lay down the ceilings instead

of Government notifying as at present the maximum election expenditure

under the Rules in consultation with the Election Commission.

2. Accounting of election expenses.

2.1 The Committee examined the proposals contained in paragraph 3:2

of the Notes on the subject. The consensus is that the law relating to

accounting of election expenses should be restored at least to the

position that existed prior to 1974 and that many of the destortions

should be removed.

2.2 In this context, the Committee feels that by bringing the expenses

incurred by "any other person"within the purview of section 77, it would

provide scope for the third person to misuse the provision to vitiate the

election of the candidate without the expenditure being in the knowledge

of the candidate or his election agent. The Committee therefore desires

that the expression "or any other person" in the proposed section 77,

should not be used.

2.3 The Committee also feels that the use of the words "whether before,

during or after an election" should be deleted from proposed amendment.

2.4 The Committee is of the view that the period of accounting should be

between the date of notification of the election and the date of declaration

of the result of the election.

2.5 The Committee also favours the deletion of Explanations to Section

77 and the proviso, which have made inroads into the provisions of the

law making it ineffective.

2.6 The Committee is not also in favour of the candidate furnishing a

declaration in the prescribed form of affidavit with an oath sworn before

a judicial magistrate or oath commissioner owning responsibility for the


98

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.



99

3. Notes on Subjects - Part - I (Chapter VII - Election Expenses).

4. Notes by Shri Era Sezhiyan on U.K. Law on election expenses.

5. Note on Contributions by companies to political parties by LP Singh

CHAPTER – VIII: State Funding of Elections

1. Fixation of ceiling of State Assistance

1.1 The Committee has discussed on 2nd April and 11th April, 1990 the

proposals and points contained in the Notes on the subject.

1.2 The Committee is of the view that State assistance only in kind and

not in cash should be extended.

1.3 While members generally agree on principle that State assistance

could be extended in respect of the various items enumerated in the

Notes, the Committee feels that it would be very difficult to prohibit or

contain private expenditure on various items listed in the notes.

1.4 After some discussion, the Committee feels that to start with, only in

respect of three or four items out of the various items listed in the Notes,

State Assistance should be provided.

1.5 Committee recommends State assistance in kind in respect of -

(1) Provision of prescribed quantity of fuel or petrol to vehicles used by

candidates;

(2) Supply of additional copies of electoral rolls;

(3) Payment of hire charges for prescribed number of microphones used

by candidates;

(4) Distribution of voters' identity slips now being done by contesting

candidates should be exclusively undertaken by electoral machinery and

all candidates should be prohibited from issuing such slips.

1.6 The details of the manner and mode of State assistance in the above

areas and its implementation should be left to the Election Commission

to work out. The Committee further feels that only minimum enabling

provisions should be included in the law.

2. Eligibility of State assistance - candidates of political parties and

independents.

2.1 The Committee recommends that State assistance in respect of the

above items should be extended only to candidates set up recognized

political parties.

2.2 The Committee also recommends that the Independent candidates

and candidates set up by registered parties need not be made eligible for

State assistance.

3. Restriction of private expenses on items made eligible for State

assistance

The Committee is of the view that, as pointed above, except in the case of

distribution of Voters' identity slips which should be taken over by


100

electoral machinery prohibiting completely all the candidates from

issuing such slips, there need not be any ban on private expenditure in

respect of other items proposed for State assistance.

4.Financial Assistance to political parties on annual basis

The Committee is not in favour of financial assistance as proposed.

REFERENCE SOURCE

1. Minutes of the Meeting of the Committee dated 2nd April. 1990.

2. Minutes of the Meeting of the Committee dated 11th April, 1990.

3. Notes on Subjects-Part I (Chapter VIII-State Funding of Elections).

CHAPTER-IX : ELECTION DISPUTES AND ELECTORAL OFFENCES

1. Steps for expeditious disposal of election petitions and appeals.

1.1 The Committee discussed the proposal as contained in the Notes on

the subject.

1.2 The Committee has agreed with the proposal for the appointment of

adequate number of ad hoc judges who would relieve the regular judges

from their normal duty for the purpose of entrusting to them the trial of

election petitions.

1.3 The Committee does not however favour the proposal as contained in

the Notes for appointment of commissions under the jurisdiction of the

High Court for the purpose of taking evidence of witnesses and placing

the recorded evidence before the High Court for further trial of election

petition on questions of law and fact.

1.4 The Committee feels also that there is no need for the amendment of

law as proposed for substitution of a person as a petitioner in the event

of petitioner himself resorting to non-prosecution of the petition.

2. Stringent penal provisions against electoral offences.

2.1 The Committee discussed the various proposals on this subject at

the meetings held on 2nd April, 1990 and 11th April, 1990. The views

and recommendations of the Committee are as follows:-

(a) Section 126 - Prohibition of public meeting on the dav preceding

election day and on the election dav.

2.2 The Committee is not in favour of the proposal of the Seminar

conducted by the National Police Academy, Hyderabad, to extend the

prohibition to 72 hours ending with the hour fixed for the conclusion of

the poll in any election. It is of the view that the present prohibition of 48

hours is adequate.

2.3 The Committee took note of that the present prohibition is only in

respect of public meetings. Secondly, the punishment for contravention

of provision is only fine which may extend to Rs.250/-.

2.4 After considering the Report of the Joint Parliamentary Committee of

1972 and the draft Bill appended thereto, the Committee has agreed to


101

expand the provision of section 126 as recommended in the said draft

Bill.

(b) Section 127 - Disturbance at election meeting:

The Committee approves the suggestion that the imprisonment for the

violation of the provision should be for six months or fine of Rs.2,OOO/-

or with both.

(c) Section 127-A - Restrictions on printing of pamphlets, posters. etc.

The Committee agrees that the provisions should be more stringent for

violation of the restriction on printing of pamphlets, posters, etc.

Accordingly, it recommends that section 127-A should be amended to

increase the imprisonment to two years from six months

(d) Section 129 - Officers etc. at elections not to act for candidates or to

influence voting:

Section 130 - Prohibition of canvassing in or near polling stations:

Section 131 - Penalty for disorderlv conduct near polling stations:

Section 132 - Penalty for misconduct at the polling stations:

Section 134 - Breach of official dutv in connection with elections:

Section 135 - Removal of ballot papers from the polling stations to be an

offence:

The Committee recommends that penal provisions in all these sections

should be examined further to make them more stringent.

(e) Section 133 - Penalty for illegal hiring or procuring of vehicles and

conveyance at elections:

The Committee considered the recommendations of the Joint

Parliamentary Committee of 1972. It feels that the amendment to section

133 should be on the lines suggested in the Bill appended to the Report

of the Joint Parliamentary Committee of 1972; that the punishment for

the violation should be six months imprisonment with fine; and that the

offence should also be made cognizable.

(f) Section 134 A - Penalty for Government servants acting as election

agents, polling agent or counting agent:

The Committee considered the Report of the Joint Parliamentary

Committee of 1972 suggesting that the persons working in any local

authority should also be brought within the ambit of this section. The

Committee, however, does not agree with this proposal on account of

practical difficulties.

(g) Section 135 - Removal of ballot papers from the polling stations to be

an offence:

(l) The Committee considered the report of the Joint Parliamentary

Committee of 1972 and the Bill appended thereto suggesting the


102

inclusion of the expression" force or violence or show of force or violence"

in regard to the ballot papers being taken out of the polling stations.

(2) The Committee feels that it would be sufficient if a simple expression

"takes away the ballot paper or attempts to take away the ballot paper

out of polling station" is inserted in the law.

(3) The Committee feels that the imprisonment for violation_of this

offence should be one year.

3. New Electoral offences

The Committee examined the following items for the purpose of

incorporating new electoral offences and further strengthening the law.

(a) Personation (Impersonation).

The Committee took note of that at present it is only an offence under the

Indian Penal Code (vide Chapter IXA - Offence relating to Elections -

section 171 D). The Committee after considering the Report of the Joint

Parliamentary Committee of 1972, recommends that impersonation

should be made an electoral offence under the Representation of the

People Act, 1951 and should also be made more stringent by providing

for punishment of imprisonment which may extend to three years or with

fine or with both. The Committee further recommends that the offence

should be made a cognizable offence.

(b) Use of vehicles for convevance at elections:

The Committee accepts the recommendation of the Joint Parliamentary

Committee of 1972 in this regard to make this offence as an electoral

offence and suggests that the provisions should be made on the lines of

the Bill appended to the Report of the Committee (vide section 133A).

(c) Ban on playing of mechanically propelled vehicles on poll day:

(1) While the Committee agrees to the imposition of complete ban on

mechanically propelled vehicles like lorries, tractors with trailers, buses,

taxies, auto-rickshaws etc., it does not favour the imposition of any ban

on owner driven cars and public transport buses which should be

exempted from the ban.

(2) The Committee also accepts that the punishment for violation of this

ban should be two years and the offence should be made cognizable.

(3) The Committee also accepts the suggestion that in suitable cases

licences of the vehicles should be cancelled and the vehicle itself could be

confiscated.

(4) The Committee feels that the matter should be left to the Election

Commission to work out the full details and that the parliamentary law

should only provide for simple enabling provision.

(d) Prohibition of going armed to or near a polling station on poll day.


103

(1) The Committee agrees to the insertion of a new penal provision

banning carrying of firearms and lethal weapons on the poll day and

treating the violation thereof as an electoral offence.

(2) The Committee approves that imprisonment for violation of this

electoral offence should be two years. The offence should be made

cognizable.

(3) The Committee also recommends that arms found with guilty persons

should be confiscated and the licence cancelled where such licence had

been issued.

(e) Ban on sale and distribution of liQuor and other intoxicated drinks:

(1) The Committee considered the proposal of the Joint Parliamentary

Committee of 1972 and the provisions of the Bill appended thereto.

(2) The Committee feels that the provisions in the said Bill should be

adopted and the punishment for contravention should be six months

imprisonment and fine of Rs.2,OOO/-.

(3) The Committee also feels that the quantity of liquor found in the

possession of the person in contravention of the penal provision should

also be confiscated.

(4) The Committee agrees with the suggestion of a member that the

expression 'consumption of liquor' should not be used in the penal

provisions.

(f) Lodging of false account of election expenses:

(1) The Committee has already approved the inclusion of this rlew

electoral offence. The Committee suggests that for contravention of this

provision, the imprisonment should be for two years.

(2) The Committee feels that because of the nature of the offence, it

should not be made cognizable.

(g) Violation of Model Code

(1) Committee has already approved insertion of new electoral offence.

(2) Committee recommends that the punishment for contravention of this

provision should be for two years and the offence need not be cognizable.

(h) Grant of paid holiday to employees on the day of poll

(1) The Committee approves the proposal of the grant of paid holiday to

employees in any business, trade, industrial undertaking or any other

establishment on the day of poll as contained in the Report of the Joint

Pariiamenrary Committee of 1972 and the Bill appended thereto (vide

section 135 A).

(2) The Committee recommends that for contravention of this provision

the person should be fined Rs.500/- as against Rs.50/- as proposed by

the Joint Parliamentary Committee.

4. Strengthening of statutory provisions relating to disqualification:


104

(1) The Committee considered the proposal of the Chief Election

Commissioner to bring persons convicted under the Prevention of Insults

to National Honour Act, 1971 under disqualification provisions by

making it for six years. The Committee accepts this proposal.

3.2 However, the Committee has not favoured the suggestion to

disqualify persons found guilty of moral turpitude or persons detained

under the National Security Act whose detention had been approved by a

judicial Advisory Committee.

REFERENCE SOURCES



3. Notes on Subject-Part I (Ch. IX-Election Disputes & Electoral Offences)

4. Note containing the recommendations of the Seminar on "Elections

and role of law enforcement" at Hyderabad (Category III).

Reference Source

1. The minutes of the Meeting of the Committee dated 11th April 1990.

2. Notes on the Subject- Part I (Chapter X. Anti-Defection Law).

Chapter - X : Anti-Defection Law

1.1 The Committee examined the proposals in the Notes on the subject.

1.2 Shri H.K.L. Bhagat, M.P.(lndian National Congress), is strongly

opposed to any change in the present law relating to anti-defection as,

according him, such changes would dilute the provisions.

1.3 Other members are unanimously of the view that the three important

changes as proposed in the Notes should be accepted.

1.4 Committee has accordingly recommended that the Anti-Defection

Law (Tenth Schedule) should be changed in the following respects:-

1. Disqualification provisions should be made specifically limited to cases

of (a) voluntarily giving up by an elected member of his membership of

the political party; and (b) voting or absentent from voting by a member

contrary to his party direction or whip only in respect of a motion of vote

of confidence or a motion amounting to no-confidence or Money Bill or

motion of vote of thanks to the President's address.

2. The power of deciding the legal issue of disqualification should not be

left to the Speaker or Chairman of the House but to the President or the

Governor, as the case may be, who shall act on the advice of the Election

Commission, to whom the question should be referred for determination

as in the case of any other post-election disqualification of a Member.

3. The nominated members of the House concerned should incur

disqualification if he joins any political party at any period of time.

CHAPTER-XI: OFFICE OF PROFIT


105

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


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.


106

1.3 A compilation of these comments and views in brief has been

prepared and placed before the Committee for its consideration.

1.4 The Committee finds that many of the suggestions either directly or

indirectly have already been taken note of in the Notes prepared for the

consideration of the Committee and in fact examined by the Committee.

The Committee however finds that a very large number of suggestions

and views fall outside the scope of the Committee's task as outlined by

the Prime Minister in his concluding remarks at the meeting of the

political parties held on 9th January, 1990 and subsequent decisions of

the Committee outlining the important items to be taken up for its

consideration.

1.5 At the meeting of the Committee held on 11th April, 1990, one

member suggested that as the electoral reforms is a continuous process,

a Standing Committee of Parliament should be constituted to go into all

electoral matters from time to time.

1.6 The Committee accepts this suggestion and requests the Ministry of

Law, Legislative Department, to take necessary steps in this direction.

1.7 The Committee is gratified to note that there exists near unanimity

or broad consensus among members in arriving at definite conclusions

on majority of items discussed by the Committee. It is no doubt true that

during discussions, Shri H.K.L. Bhagat, M.P. (Indian National Congress),

time and again, made it clear that he was not in a position to commit his

party to any definite views on the various items of the Subject and that

his party would consider the various points on their merits as and when

the Government brought forward legislation in the parliament.

1.8 The Committee has made sincere efforts in discussing the whole

range of electoral reforms and succeeded in arriving at broad consensus

in respect of the most of the items. Though it found that there were

divergence of views among members in respect of some of the important

and vital areas like (1) Regulation of functioning of Political parties; (2)

State funding of elections; (3) Change of present electoral system etc. it

was because of the very nature of these controversial or contentious

subjects which, at any time, bound to generate differences of perception

and approach. Barring these few areas, it is really gratifying that all the

members brought to bear an objective approach to the subject of

electoral reforms and contributed towards the emergence of broad

consensus or agreement on very many important and vital areas.

1.9 The Committee is conscious of the fact that any amount of tinkering

with the law to remove drawbacks, defects and shortcomings of the law

would not produce hundred per cent success. It is so because the

election law does not concern only with any particular section or


107

specified small class of persons. It comprehends within its ambit the

entire mass of millions of people and a very large number of political

groupings with different ideologies and leanings. The success of any

legislative measure in regard to election law and procedure therefore

greatly depends on the proper working of, and adherence to, the system

on the part of the electoral machinery at all levels, political parties and

candidates and the electorate. The Committee only hopes that such a

realization would be strengthened among all of them so that India could

continue to be an oasis of democracy as pointed by the Supreme Court.

1.10 Keeping the above inhibiting factors in view, the Committee would

be rest content with a recognition that the Committee has done its best

with a view to injecting purity and furthering the prospects of free and

fair elections.

Reference Sources

1. The Minutes of the Meeting of the Committee dated 11.4.1990.

2. Compilation of the Comments and Views of Members of Parliament etc.

in response to the letter of the Minister of Law and Justice in December,

1989.

CHAPTER - XIV: SUMMARY OF RECOMMENDATIONS

1.1 The following is the summary of the recommendations of the

Committee based on its conclusions as indicated in the earlier Chapters.

1.2 It is necessary to state here that though decisions indicated below

have been arrived at on the basis of the consensus among majority of the

members, the representative of the Indian National Congress, Shri H.K.L.

Bhagat M.P. has made it clear, as stated earlier, that his party would

consider the law as and when brought before the Parliament on its

merits and that he would not like to express any definite views on any of

the matters without ascertaining the views of his party. However, he

expressed himself in favour of (1) reservation of seats for women and (2)

introduction of the system of multi-purpose identity cards.

1.3 The following summary should therefore be taken as the broad

consensus of the members of the Committee.

CHAPTER-II: Electoral Machinery

1. Set up of multi-member Commission

1. The Election Commission should be a multi-member body with three

members.

2. The Chief Election Commissioner should be appointed by the

President in consultation with the Chief Justice of India and the Leader

of the Opposition (and in case no Leader ot Opposition is available, the

consultation should be with the Leader to the largest opposition group in

the Lok Sabha).


108

3. The consultation process should have a statutory backing.

4. The appointment of other two Election Commissioners should be made

in consultation with Chief Justice of India, the Leader of the Opposition (

in case no Leader of Opposition is available, the consultation should be

with the Leader to the largest opposition group in the Lok Sabha) and the

Chief Election Commissioner.

5. The appointment of Regional Commissioners for different zones is not

favoured. Such appointments should be made only as and when

necessary and not on a permanent footing.

2. Steps for securing independence of the Commission

6. The protection of salary and other allied matters relating to the Chief

Election Commissioner and the Election Commissioners should be

provided for in the Constitution itself on the analogy of the provisions in

respect of the Chief Justice and Judges of the Supreme Court. Pending

such measures being taken, a parliamentary law should be enacted.

7. The expenditure of the ECI should continue to be 'voted' as of now.

8. The Chief Election Commissioner and the Election Commissioners

should be made ineligible not only for any appointment under the

Government but also to any office including the office of Governor

appointment to which is made by the President.

9. The tenure of the Chief Election Commissioner and other Election

Commissioners should be for a term of five years or sixty-five years of

age, whichever is later and they should in no case continue in office

beyond sixty-five years and for more than ten years in all.

3. Setup of the Secretariat

10. The set up of the secretariat of the Commission should be on the

lines of Article 98(2) of the Constitution relating to Lok Sabha Secretaria

and till such provision is made, a law of Parliament should be enacted.

4. Set up of electoral machinery at State level

11 . The Chief Electoral Officers should exclusively be entrusted with the

election work and not saddled with any other items of work.

12. There is no need for the creation of a supervisory agency for a group

of districts as proposed by the Election Commission.

13. The provisions in section 28A of the Representation of the People Act,

1951 should be examined further with a view to provide for effective and

complete control over the officers in all respects including framing of \

charges, lodging of prosecution and disciplinary proceedings against

those officers for breach of duty during the period of his deputation to

the Election Commission.

14. The transfer of officers connected with the election work should be

effected only with the concurrence of the Election Commission.


109

5. Extension of jurisdiction of electoral machinery in relation to

Panchayat Raj Institutions.

15. The question relating to extension of jurisdiction of electoral

machinery in relation to elections to Panchayat Raj institutions should

be taken up only after ascertaining the exact details of the contemplated

legislative or constitutional measures.

6. Power of contempt in favour of Election Commission

16. The proposal for clothing the Election Commission with the power of

contempt is not favoured. Chapter III Delimitation of Constituencies

17. There should be a fresh delimitation on the basis of 1981 census.

18. There should be rotation of seats reserved for SCs but the manner of

achieving the object of rotation of seats should be left to the Delimitation

Commission and the Parliamentary law to be made for the purpose.

19. Political parties should give larger representation to women

candidates at election to the House of Parliament and State Legislatures

by putting up more numbers of them at elections.

20. Any change of multiple of assembly seats is not favoured.

Chapter - IV: Electoral Rolls

1. Steps for improving enrolment of all eligible names

21. Post offices should be the focal point for the preparation and

maintenance of electoral rolls, up-to-date and up-keep of records. The

Election Commission should fully discuss this matter with the Postal

Board and the Census Commissioner.

22. Section 32 of the RPA, 1950 should be further strengthened so as to

provide for more stringent punishment for breach of official duty in

connection with the preparation, revision etc. of electoral rolls.

23. The punishment should be at least for 6 months as against only the

imposition of fine as at present.

24. 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 concerned authorities.

25. The officers connected with the preparation and revision of electoral

rolls should also be brought under the control and disciplinary

jurisdiction of the Election Commission as in the case of officers

connected with the conduct of poll.

2. Issue of multi-purpose photo identity· cards

26. Steps for successful implementation of the scheme of multi-purpose

photo identity cards as proposed should be undertaken and that a time-

bound programme for covering the entire country with the proposed

scheme is desirable.


110

CHAPTER - V: POLITICAL PARTIES AND CANDIDATES

1. Restriction on candidates contesting from several constituencies.

27. A person should not be allowed to contest elections from more than

two constituencies of the same class.

2. Lowering of age-limit for contesting candidates

28. Age qualification for contesting elections to Legislative Assemblies

and Lok Sabha should be reduced to 21 years and in the case of

elections to Legislative Councils and Council of States to 25 years.

3. Deletion of Section 29A relating to registration of Parties and

regulation by Symbols Order.

29. Section 29A of the Representation of the People Act, 1951 dealing

with the registration of political parties should be deleted and the matter

of registration of political parties should be left to be decided solely by

the Election Commission under the Election Symbols (Reservation and

Allotment) Order, 1968. The law should also include a consequential

provision authorising the Election Commission to deal with afresh any

application for registration after the removal of all the political parties

registered under section 29A of the Act from the list of registered parties.

30. There is no need for recognizing alliances of political parties at

elections or for any change in the present procedure of allotment of

symbols.

4. Regulations for containing contests by non-serious candidates

31. Security deposit in the case of a candidate set up by a recognised

National or State Party should be rupees five hundred for Assembly

elections and rupees one thousand for Lok Sabha elections with usual

concessions to Scheduled Caste and Scheduled Tribe candidates.

32. Security deposit in the case of independents and candidates set up

by registered parties should be rupees two thousand five hundred for

Assembly elections 'and rupees five thousand for Lok Sabha elections.

33. If an independent candidate or a candidate set up by a registered

party fails to secure 1/4 as against 1/6 of the valid votes polled as at

present, the security deposit should be forfeited.

34. The number of proposers to a nomination paper to be filed by an

independent candidate or a candidate set up by a registered party should

be ten, drawn from different assembly segments.

35. The arrangement of names of candidates in the ballot paper should

be in the following order, namely:-

1. Candidates of recognized National Parties

2.Candidates of recognized State Parties

3. Candidates of registered parties, and

4. Independents.


111

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;


112

(i) making of any ad hoc appointments in Government or public

undertakings during the election period for the furtherance of the

prospects of any party or candidate;

( j ) entering any polling station or place of counting by a Minister except

in his capacity as a candidate or a voter or as an authorised agent;

( k) Ban on transfer of officers and staff specified in section 28A when

election is in prospect.

41. Violation of these provisions should be made an electoral offence.

CHAPTER - VI: CONDUCT OF POLL

1.Constitution of Indian Election Service

42. The constitution of lndlan Election Service as proposed by the

Election is not favoured.

2. Ban on transfer of officers connected with elections

43. The law should be suitably amended for imposing a ban on transfer

of civil and police officers connected with elections for a specified period.

3. Statutory status of Commission's Observers

44. The Commission's observers should be clothed with statutory

powers. However, the law should spell out their specific role like the

power to stop (1) the poll for specified reasons; (2) the counting and (3)

the declaration of the result. In all these cases, the matter should be

referred to the Election Commission for final decision.

45. A general provision may also be included in the proposed law to the

effect that an observer may be assigned such other functions as may be

entrusted to him by the Election Commission.

4. Role of Voluntary Organizations

46. The proposal to give statutory recognition to the role of voluntary

organizations and constitution of a Political Council or Election Council

in regard to the conduct of elections is not favoured. The Election

Commission may afford under its general powers such facilities to these

voluntary organizations as it finds proper and necessary.

5. Use of Electronic Voting Machines

47. In view of the report of the technological experts certifying the

credibility of the Electronic Voting Machines, the Electronic Voting

Machines may be put to use at all future bye-elections and general

elections to Lok Sabha and State Assemblies and local bodies. Intensive

training programme for polling personnel at all levels on the working of

the machines should also be arranged.

6. Provision of a device to record particulars from Identity card

48. Provision for an electronic device to record particulars of electors as

in the photo identity cards as a safeguard against booth capturing etc.

should be examined further.


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7. Set up of mobile polling stations

49. Mobile polling stations fitted in vans may take the place of auxiliary

polling stations which are being set up at present to enable the weaker

sections to exercise their votes freely near their areas of residence. Such

mobile polling stations should be stationed for the full polling period and

should also be well protected with adequate police force.

8. Steps to eradicate booth capturing, rigging, intimidation etc.

50. Section 58A of the RPA 1951 should be amended enabling the

Election Commission to take a decision regarding booth capturing not

only on the report of the Returning Officer but even otherwise.

51. The Election Commission should not only be empowered to

countermand the election and order a fresh election under the law but

also declare the earlier poll to be void and order only a repoll in the entire

constituency depending on the nature and seriousness of each case.

52. An enabling provision should be incorporated in the law empowering

the Election Commission to locate (1) an investigation agency; State or

Central; (2) a prosecuting agency; (3) constitution of special courts

wherever necessary.' It is not necessary to bind in any way specifically

the Election Commission in regard to these matters.

53. The suggestion that the State Government should function as a

caretaker Government during the period of election is not favoured.

54. The suggestion that the formation of voluntary organizations should

be encouraged to oversee the conduct of the poll in every constituency is

also not favoured.

55. The electoral offence of booth capturing should be made a cognizable

offence.

56. Statutory recognition should be given to the issue of standing

instructions by the Election Commission by insertion of a suitable

enabling provision in the Act.

57. There should be proper coordination between State and Central

police forces and deployment of Central forces for election duty at polling

stations wherever found necessary. The Election Commission should

further examine the matter for taking concrete steps in that behalf.

58. The suggestion for deployment of planning and supervisory

machinery in the constituencies to oversee the arrangements over and

above the existing arrangements under the existing instructions of the

Commission is not favoured.

9. Time-limit for holding bye-elections

59. A bye-election should be held within six months of the occurrence of

the vacancy and such a bye-election need not be held if a general election

is normally due within one year from the date of occurrence of vacancy.


114

10. Power to order repoll

60. 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

the Commission on their report.

11. Reasons for low polling and remedial measures.

61. The suggestion that ~there should be a repoll if there has been a low

percentage of voting, say 20 per cent, in a constituency is not accepted.

62. The present procedure relating to postal ballot paper facility should

be closely examined to remove drawbacks and make the facility really

meaningful.

63. The suggestion that persons employed as drivers, workers etc. of

transport vehicles used by candidates should be made eligible for postal

ballot paper facility should be looked into by the Election Commission

with a view to making these categories of persons entitled to the facility

of postal ballot paper.

64. Army personnel, persons outside India in diplomatic service and also

persons belonging to para-military forces should enjoy the facility of

voting at elections through proxy and the system obtaining in that behalf

in the U.K. should be studied quickly for adoption in our country by

suitable amendment to law and procedure.

12. Countermanding of poll on death of candidate

65. Section 52 of the Representation of the People Act, 1951 should be

amended 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.

66. Section 52 of the Representation of the People Act, 1951 should be

further amended on the lines proposed in the Report of the Election

Commission on 1968-89 Elections in order to remove any scope for

doubt or confusion: However, the countermanding of the poll should be

ordered if the death of a candidate takes place before the commencement

of the poll and not declaration of the result, as proposed by the Election

Commission.

13. Term of members of Rajya Sabha and holding of biennial

elections

67. Though the retirement of members of Rajya Sabha elected from

different States on the completion of their term is not uniform and cycle

of retirement on the same day has been broken, it is not necessary to

make amendment to law as proposed for the purpose of bringing into

effect one single day of retirement in a/l cases.


115

14. Qualification for election to Rajya Sabha and requirement as to

number of proposers.

68. Any change in the present requirement that a candidate at elections

to Rajya Sabha should be an elector in the State from which he seeks

such election is not necessary.

69. Section 39 to the Representation of the People Act, 1951 relating to

number of proposers to a nomination paper of a candidate at elections to

Rajya Sabha and Legislative Councils by the members of the Legislative

Assembly should be amended to provide for only one proposer and one

seconder as against ten proposers.

Chapter - VII: Election Expenses

1. Fixing reasonable ceiling on raational basis

70. Section 77(3) of the Representation of the People Act, 1951 should be

amended empowering the Election Commission to lay down the ceilings

instead of the Central Government notifying as at present the maximum

election expenses under the Rules in consultation with the ECI.

2. Accounting of election expenses

71. Section 77(1) should be amended 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" .

72. There is no need for including "any other person" within the purview

of section 77(1) or the use therein of expression "whether before, during

or after an election".

73. The two Explanations and proviso to section 77 should be deleted.

74. There is no need for the candidate furnishing in the prescribed form

of affidavit with an' oath sworn before a judicial magistrate or oath

commissioner owning responsibility for the correct and true account of

the election expenses. The present system of giving simple declaration in

return of election expenses would be sufficient.

75. 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 offence should be made punishable

with imprisonment for period of not less than one year in addition to fine.

76. 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.

77. Submission of false account should be made an electoral offence and

the minimum punishment for violation of this provision should be two

years imprisonment.


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3. Regulation or ban of donations by companies.

There should be a complete ban on donations by companies and the

relevant law should be amended accordingly.

CHAPTER VIII STATE FUNDING OF ELECTIONS

1. Fixing of ceiling of State Assistance

78. To start with State assistance in kind should be given in respect of –

(1) Provision of prescribed quantity of fuel or petrol to vehicles s.

( 2 ) Supply of additional copies of electoral rolls.

( 3 ) Payment of hire charges for prescribed number of microphones used

by candidates.

( 4 ) Distribution of voters' identity slips now being done by contesting

candidates should be exclusively undertaken by electoral machinery and

all candidates should be prohibited from issuing such slips. The details

of the manner and mode of State assistance in the above areas and its

implementation should be left to the Election Commission to work out.

The law should contain minimum enabling provison for the purpose.

2. Eligibility of State assistance - candidates of political parties and

independents

79. The State assistance in respect of the above items should be

extended only to candidates set up by recognised political parties.

3. Restriction of private expenses on items made eligible for State

assistance

80. There need not be any ban on private expenditure in respect of items·

proposed for State assistance except in the case of distribution of Voters'

identity slips which should be taken over by the electoral machinery

prohibiting completely all the candidates from issuing such slips.

4. Financial assistance to political parties on annual

81. Any financial assistance to political parties on annual basis as

proposed is not favoured.

CHAPTER -IX: ELECTION DISPUTES AND ELECTORAL OFFENCES

1. Steps for expeditious disposal of election petitions and appeals

82. The proposal for the appointment of adequate number of ad hoc

judges who would relieve the regular judges from their normal duty for

the purpose of entrusting to them trial of election petitions is accepted.

83. The proposal for appointment of commissions under the jurisdiction

of the High Court for the purpose of taking evidence of witnesses and

placing the recorded evidence before the High Court for further trial of

election petition on questions of law and facts is not accepted.

84. There is no need for the amendment of law for substitution of a

person as a petitioner in the event of the petitioner himself resorting to

non-prosecution of the petition.


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2. Stringent penal provisions against electoral offences

85. The suggestion that the prohibition of public meetings as envisaged

in section 126 should be extended to 72 hours ending with the hour fixed

for the completion of the poll in any election is not accepted. The present

prohibition of 48 hours is adequate.

86. Expansion of provision as per recommendation of Joint

Parliamentary Committee is favoured.

87. Section 127 - Disturbance at election meetings - the imprisonment

for the violation of the provision should be for six months or fine of

rupees two thousand or with both.

88. Section 127 A - Restrictions on printing of pamphlets, posters etc. -

This section should be amended to increase the imprisonment to two

years from six months.

89. Section 129 - Officers etc. at election not to act for candidates or to

influence voting:

Section 130 - Penalty for canvassing in or near polling stations:

Section 131 - Penalty for disorderly conduct near polling stations:

Section 132 - Penalty for misconduct at the polling stations:

Section 134 - Breach of official duty in connection with election:

Section 135 -Removal of ballot papers from polling stations to be offence:

Penal provisions in all these sections should be examined further to

make them more stringent.

90. Section 133-Penalty for illegal hiring conveyance at elections:

Section 133 should be amended on the lines proposed in the Bill

appended to the Report of the Joint Parliamentary Committee of 1972.

The punishment for the violation should be six months imprisonment

and also with fine. The offence should also be made cognizable.

Section 134A - Penalty for Government servants acting as election

agent. polling agent or counting agent:

91. Section 134A need not be amended for bringing within its ambit

persons working in any local authority also.

Section 135 - Removal of ballot papers from the polling stations to

be an offence:

92. Section 135 should be amended for using the expression "takes away

the ballot paper or attempts to take away the ballot paper out of polling

station" in substitution of word "fraudulently takes or attempts to take".

3. New Electoral Offences

93. Personation (Impersonation) should be made an electoral offence. It

should also be made more stringent by providing for punishment of

imprisonment which may extend to three years or fine or with both. The

offence should also be made cognizable.


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Use of vehicles for conveyance at elections

94. Provision should be made on the lines of the Bill appended to the

Report of the Joint Parliamentary Committee of 1972 (vide section 133A).

Ban on plying of mechanically propelled vehicles on poll day

95. Law should be amended to impose complete ban on mechanically

propelled vehicles like lorries, tractors with trailers, buses, auto-

rickshaws etc. However, owner driven cars and public buses should be

exempted from the ban. Punishment for violation of this ban should be

two years. The offence should be made cognizable. In suitable cases

licenses of the vehicles should be cancelled and the vehicles confiscated.

The matter should be left to the ECI to work out the full details and the

parliamentary law should only provide for simple enabling provision.

Prohibition of going armed to or near a polling station

96. A new penal provision banning carrying of firearms and lethal

weapons on the poll day and treating the violation thereof as an electoral

offence should be inserted in the Representation of the People Act, 1951.

Imprisonment for violation should be two years and the offence should be

made cognizable. Arms found with guilty persons should be confiscated

and the license cancelled where such license had been issued.

Ban on sale and distribution of liquor and other intoxicated drinks.

97. Provisions in the Bill appended to the Report of the Joint

Parliamentary Committee of 1972 should be adopted. Punishment for

contravention should be six months imprisonment and fine of rupees two

thousand. The quantity of liquor found in the possession of the person in

contravention of the penal provision should also be confiscated.

98. The expression "consumption of liquor" need not be used in the

penal provisions. Lodging of false account of election expenses

99. As already stated the lodging of false account of election expenses

should be made an electoral 'offence. The imprisonment for

contravention of the provision should be for two years.

Model Code violation

100. As already stated, the violation of model code should be an electoral

offence. Punishment for contravention of this provision should be years

imprisonment. The offence need not be made cognizable.

Grant of paid holiday to employees on the day of poll

101. A provision as contained in the Report of the Joint Parliamentary

Committee of 1972 and the Bill appended thereto (vide section 135A)

should be made for the purpose of grant of paid holiday to employees in

any business, trade, industrial undertaking or any other establishment

on the day of poll. Punishment for contravention of this provision should

be a fine of rupees five hundred as against rupees fifty.


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Strengthening of statutory provisions relating to disqualification

102. Conviction under the Prevention of National Honour Act, 1971

should be a ground for disqualification for six years as proposed by the


103. The suggestion to disqualify persons found guilty of moral turpitude

or persons detained under National Security Act whose detention had

been approved by a Judicial Advisory Committee is not accepted.

CHAPTER - X: ANTI-DEFECTION LAW

104. The Anti-Defection Law (10th Schedule to the Constitution) should

be amended in the following respects :-

1. Disqualification provisions should be made specifically limited to cases

of (a) voluntarily giving up by an elected member of his membership of

the political party to which the member belongs; and (b) voting or

absentention from voting by a member contrary to his party direction or

whip only in respect of a motion of vote of confidence or a motion

amounting to no-confidence or Money Bill or motion of vote of thanks to

the President's address.

2. The power of deciding the legal issue of disqualification should not be

left to the Speaker or Chairman of the House but to the President or the

Governor, as the case may be, who shall act on the advice of the Election

Commission, to whom the question should be referred for determination

as in the case of any other post-election disqualification of a Member.

3. The nominated members of the House concerned should' incur

disqualification if he joins any political party at any period of time.

CHAPTER -XI: OFFICE OF PROFIT

105. The suggestion that the Committee of Parliament on 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 is not desirable. However, the Law Ministry should do an

exercise in the matter for the preparation of a model bill for circulation

and adoption by various State Governments.

CHAPTER -XII: ELECTORAL SYSTEMS EXAMINATION

106. The subject relating to change of the present electoral system

should be examined by an expert Committee. Law Ministry and Election

Commission should take up the matter for examination of the suggestion

to constitute an expert committee.

CHAPTER - XIII: MISCELLANEOUS

107. A Parliament Standing Committee should be constituted to go into

all electoral matters from time to time as electoral reform is a continuous

process. The Law Ministry should take necessary steps in this direction.

**********


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Annexure P-2

NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION

2002

SUMMARY OF RECOMMENDATIONS

CONTENTS

Recommendation

Nos.

Chapter 3 Fundamental Rights, Directive

Principles and Fundamental Duties (1) to (29)

Chapter 4 Electoral Processes and Political Parties (30) to (69)

Chapter 5 Parliament and State Legislatures (70) to (97)

Chapter 6 Executive and Public Administration (98) to (121)

Chapter 7 The Judiciary (122) to (149)

Chapter 8 Union-State Relations (150) to (175)

Chapter 9 Decentralisation and Devolution (176) to (213)

Chapter 10 Pace of Socio-Economic Change and

Development (214) to (249)

SUMMARY OF RECOMMENDATIONS

[Of the various recommendations, 58 recommendations involve

amendment to the Constitution, 86 involve legislative measures and the

rest involve executive action. Recommendations, which involve

amendments to the Constitution, are given in italics]

CHAPTER 3: FUNDAMENTAL RIGHTS, DIRECTIVE

PRINCIPLES AND FUNDAMENTAL DUTIES

Fundamental Rights

(1) In article 12 of the Constitution, the following Explanation should be

added:- ‗Explanation – In this article, the expression ―other authorities‖

shall include any person in relation to such of its functions which are of

a public nature.‘ [Para 3.5]

(2) In Articles 15 and 16, prohibition against discrimination should be

extended to “ethnic or social origin; political or other opinion; property or

birth”. [Para 3.6]


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(3) Article 19(1)(a) and (2) should be amended to read as follows:

―Art. 19(1): All citizens shall have the right - (a) to freedom of

speech and expression which shall include the freedom of the press and

other media, the freedom to hold opinions and to seek, receive and

impart information and ideas.‖

19(2): ―Nothing in sub-clause (a) of clause (1) shall affect the

operation of any existing law, or prevent the State from making any law,

in so far as such law imposes reasonable restrictions on the exercise of

the right conferred by the said sub-clause in the interests of the

sovereignty and integrity of India, the security of the State, friendly

relations with foreign States, public order, decency or morality, or in

relation to contempt of court, defamation or incitement to an offence, or

preventing the disclosure of information received in confidence except

when required in public interest.‖. [Para 3.8.1]

(4) A Proviso to article 19(2) of the Constitution should be added as under:

―Provided that, in matters of contempt, it shall be open to the

Court to permit a defence of justification by truth on satisfaction as to

the bona fides of the plea and it being in public interest.‖ [Paras 3.8.2

and 7.42]

(5) The existing article 21 may be re-numbered as clause (1) thereof, and a

new clause (2) should be inserted thereafter on the following lines: -

―(2) No one shall be subjected to torture or to cruel, inhuman or

degrading treatment or punishment.‖. [Para 3.9]

(6) After clause (2) in article 21 as proposed in para 3.9, a new clause,

namely, clause (3) should be added on the following lines:-

―(3) Every person who has been illegally deprived of his right to life

or liberty shall have an enforceable right to compensation.‖ [Para 3.10]

(7) After article 21, a new article, say article 21-A, should be inserted on the

following lines:-

―21-A. (1) Every person shall have the right to leave the territory of

India and every citizen shall have the right to return to India.

(2) Nothing in clause (1) shall prevent the State from making any

law imposing reasonable restrictions in the interests of the sovereignty

and integrity of India, friendly relations of India with foreign States and

interests of the general public.‖ [Para 3.11]

(8) A new article, namely, article 21-B, should be inserted on the following

lines:

―21-B. (1) Every person has a right to respect for his private and

family life, his home and his correspondence.

(2) Nothing in clause (1) shall prevent the State from making any

law imposing reasonable restrictions on the exercise of the right


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conferred by clause (1), in the interests of security of the State, public

safety or for the prevention of disorder or crime, or for the protection of

health or morals, or for the protection of the rights and freedoms of

others.‖. [Para 3.12]

(9) A new article, say article 21-C, may be added to make it obligatory on the

State to bring suitable legislation for ensuring the right to rural wage

employment for a minimum of eighty days in a year. [Para 3.13.2]

(10) As regards article 22, the following changes should be made:

(i) The first and second provisos and Explanation to article 22(4)

as contained in section 3 of the Constitution (44th Amendment) Act, 1978

should be substituted by the following proviso and the said section 3 of

the 1978 Act as amended by the proposed legislation should be brought

into force within a period of not exceeding three months:-

―Provided that an Advisory Board shall consist of a Chairman and

not less than two other members, and the Chairman and the other

members of the Board shall be serving judges of any High Court:

Provided further that nothing in this clause shall authorize the

detention of any person beyond a maximum period of six months as may

be prescribed by any law made by Parliament under sub-clause (a) of

clause (7).‖.

ii) In clause (7) of article 22 of the Constitution, in sub-clause (b),

for the words ―the maximum period‖, the words ―the maximum period

not exceeding six months‖ shall be substituted. [Para 3.14.2]

(11) After article 30, the following article should be added as article 30A:

―30-A: Access to Courts and Tribunals and speedy justice

(1) Everyone has a right to have any dispute that can be resolved

by the application of law decided in a fair public hearing before an

independent court or, where appropriate, another independent and

impartial tribunal or forum.

(2) The right to access to courts shall be deemed to include the

right to reasonably speedy and effective justice in all matters before the

courts, tribunals or other fora and the State shall take all reasonable

steps to achieve the said object.‖. [Para 3.15.1]

(12) Article 39A in Part IV should be shifted to Part III as a new article

30-B to read as under:-

―30-B. Equal justice and free legal aid: The State shall secure that

the operation of the legal system promotes justice, on a basis of equal

opportunity, and shall, in particular, provide free legal aid, by suitable

legislation or schemes or in any other way, to ensure that opportunities

for securing justice are not denied to any citizen by reason of economic

or other disabilities.‖. [Para 3.15.2]


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(13) Article 300-A should be recast as follows:-

―300-A. (1) Deprivation or acquisition of property shall be by authority of

law and only for a public purpose.

(2) There shall be no arbitrary deprivation or acquisition of property:

Provided that no deprivation or acquisition of agricultural, forest

and non-urban homestead land belonging to or customarily used by the

Scheduled Castes and the Scheduled Tribes shall take place except by

authority of law which provides for suitable rehabilitation scheme before

taking possession of such land.‖ [Para 3.16.2]

(14) In article 31-B, following proviso should be added at the end:-

―Provided that the protection afforded by this article to Acts and

Regulations which may be hereafter specified in the Ninth Schedule or

any of the provisions thereof, shall not apply unless such Acts or

Regulations relate –

(a) in pith and substance to agrarian reforms or land reforms;

(b) to reasonable quantum of reservation under articles 15 and 16;

(c) to provisions for giving effect to the policy of the State towards

securing all or any of the principles specified in clause (b) or clause (c) of

article 39.‖ [Para 3.17]

(15) Clauses (1) and (1A) of article 359 should be amended by

substituting for “(except articles 20 and 21)”, the following:-

―(except articles 17,20,21,23,24,25 and 32)‖ [Para 3.18.2]

(16) The relevant provision in the Constitution (93rd Amendment) Bill,

2001 making the right to education of children from 6 years till the

completion of 14 years as a Fundamental Right should be amended and

enlarged to read as under:-

―30-C. Every child shall have the right to free education until he

completes the age of fourteen years; and in the case of girls and members

of the Scheduled Castes and the Schedule Tribes until they complete the

age of eighteen years.‖. [Para 3.20.2]

(17) After article 24, the following article should be added:-

―Article 24A. Every child shall have the right to care and assistance

in basic needs and protection from all forms of neglect, harm and

exploitation.‖. [Para 3.21.2]

(18) After the proposed article 30-C, the following article may be added

as article 30-D:-

―30-D. Right to safe drinking water, prevention of pollution,

conservation of ecology and sustainable development.

Every person shall have the right –

(a) to safe drinking water;

(b) to an environment that is not harmful to one‘s health or well-


124

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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(7) Water Conservation and Tank Rehabilitation.

(8) Production and use of organic manures through vermiculture and

other improved techniques and production of organic health foods from

them. [Para 3.27.3]

(23) The Commission recommends that an independent National

Education Commission should be set up every five years to report to

Parliament on the progress of the constitutional directive regarding

compulsory education and on other aspects relevant to the knowledge

society of the new century. The model of the Finance Commission may be

usefully looked into. [Para 3.31.3]

(24) After article 47, the following Article should be added, namely:-

47A. ―Control of population.- The State shall endeavour to secure

control of population by means of education and implementation of small

family norms.‖. [Para 3.32]

(25) An inter-faith mechanism to promote such civil society initiatives

should be set up. This may be done under the auspices of the National

Human Rights Commission set up under section 3 of the Protection of

Human Rights Act, 1993 which, inter alia, provides for the participation

of ―the Chairpersons of the National Commission for Minorities, the

National Commission for Scheduled Castes and Scheduled Tribes and

the National Commission for Women‖ who shall be deemed to be the

Members of the Commission for the discharge of functions specified in

clauses (b) to (j) of the section 12 of the said Act. This body could, in

addition to its other statutory functions, also function in collaboration

with the National Foundation for Communal Harmony as a mechanism

for promotion of inter-religious harmony for inter alia overseeing the

installation and working of ―Mohalla Committees‖ and other civil society,

initiatives in sensitive areas. With an appropriate statutory enablement

by way of enlargement of section 12 of the said Act, the purpose could be

achieved without additional expenditure for setting up a separate

mechanism. Section 12 of the said Act with consequential amendments

to section 3(3) could be amended by the addition of clause (k), which

shall read as under:

―(k) promoting through civil society initiatives, inter-faith

and inter-religious harmony and social solidarity.‖.

The Chairpersons of the National Commission for the Backward

Classes and the National Commission for Safai Karamcharis should be

co-opted to this body. [Para 3.34.2]

(26) There must be a body of high status which first reviews the state of

the level of implementation of the Directive Principles and Economic,

Social and Cultural Rights and in particular (i) the right to work, (ii) the


126

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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(28) For effectuating fundamental duties, following steps be taken:-

(i) The first and foremost step required by the Union and State

Governments is to sensitise the people and to create a general awareness

of the provisions of fundamental duties amongst the citizens on the lines

recommended by the Justice Verma Committee on the subject.

Consideration should be given to the ways and means by which

Fundamental Duties could be popularized and made effective;

(ii) Right to freedom of religion and other freedoms must be jealously

guarded and rights of minorities and fellow citizens respected;

(iii) Reform of the whole process of education is an immediate but

immense need, as is the need to free it from governmental or political

control; it is only through education that will power to adhere to our

Fundamental Duties as citizens can be inculcated;

(iv) Duty to vote at elections, actively participate in the democratic process

of governance and to pay taxes should be included in article 51A; and

(v) The other recommendations of the Justice Verma Committee on

operationalisation of Fundamental Duties of Citizens should be

implemented at the earliest. [Para 3.40.3]

(29) The following should also be incorporated as fundamental duties in

article 51A of the Constitution –

(i) To foster a spirit of family values and responsible parenthood in the

matter of education, physical and moral well-being of children.

(ii) Duty of industrial organizations to provide education to children of

their employees. [Para 3. 40.4]

CHAPTER 4: ELECTORAL PROCESSES & POLITICAL PARTIES

ELECTORAL PROCESSES

(30) While some far-reaching reforms in the electoral processes are

necessary, no major constitutional amendment is required. The

necessary correctives could be achieved by ordinary legislation modifying

the existing laws, or in many cases, merely by rules and executive action.

A foolproof method of preparing the electoral roll right at the Panchayat

level constituency of a voter and supplementing it by a foolproof voter ID

card which may in fact also serve as a multi-purpose citizenship card for

all adults. A single exercise should be enough for preparing common

electoral rolls and ID cards. The task could be entrusted to a qualified

professional agency under the supervision of the Election Commission of

India (EC) and in coordination with the SECs. The rolls should be

updated constantly and periodically posted on the web site of the

Election Commission and CDROMs should be available to all political

parties or anyone interested. Prior to elections, these rolls should be

printed and publicly displayed at the post offices in each constituency, as


128

well as at the panchayats or relevant constituency headquarters. These

should be allowed to be inspected on payment of a nominal fee by

anyone. Facilities should also be provided to the members of the public

at the post offices for submitting their applications for modification of the

electoral rolls. [Paras 4.7.3 and 4.8.3]

(31) Introduction of Electronic Voting Machines in all constituencies all

over the country for all elections as rapidly as possible. [Para 4.9]

(32) Under section 58A of the RPA, the Election Commission should be

authorised to take a decision regarding booth capturing on the report of

the returning officers, observers or citizen groups. Also, the EC should

be empowered to countermand the election and order a fresh election or

to declare the earlier poll to be void and order a re-poll in the entire

constituency. Further, the EC should consider the use of tamper-proof

video and other electronic surveillance at sensitive polling stations/

constituencies. [Para 4.10]

(33) Any election campaigning on the basis of caste or religion and any

attempt to spread caste and communal hatred during elections should be

punishable with mandatory imprisonment. If such acts are done at the

instance of the candidate or by his election agents, these would be

punishable with disqualification. [Para 4.11]

(34) The Representation of the People Act should be amended to provide

that any person charged with any offence punishable with imprisonment

for a maximum term of five years or more, should be disqualified for

being chosen as or for being a member of Parliament or Legislature of a

State on the expiry of a period of one year from the date the charges were

framed against him by the court in that offence and unless cleared

during that one year period, he shall continue to remain so disqualified

till the conclusion of the trial for that offence. In case a person is

convicted of any offence by a court of law and sentenced to imprisonment

for six months or more the bar should apply during the period under

which the convicted person is undergoing the sentence and for a further

period of six years after the completion of the period of the sentence. If

any candidate violates this provision, he should be disqualified. Also, if a

party puts up such a candidate with knowledge of his antecedents, it

should be derecognized and deregistered. [Para 4.12.2]

(35) Any person convicted for any heinous crime like murder, rape,

smuggling, dacoity, etc. should be permanently debarred from contesting

for any political office. [Para 4.12.3]

(36) Criminal cases against politicians pending before Courts either for

trial or in appeal must be disposed off speedily, if necessary, by

appointing Special Courts. [Para 4.12.4]


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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


130

India. Further, Explanation 1 to section 77(1) of the Representation of

the People Act, 1951 should be deleted. [Para 4.14.2]

(44) The political parties as well as individual candidates should be

made subject to a proper statutory audit of the amounts they

spend. These accounts should be monitored through a system of

checking and cross-checking through the income-tax returns filed by the

candidates, parties and their well-wishers. At the end of the election

each candidate should submit an audited statement of expenses under

specific heads. [Para 4.14.2]

(45) Every candidate at the time of election must declare his assets and

liabilities along with those of his close relatives. Every holder of a political

position must declare his assets and liabilities along with those of his

close relations annually. Law should define term 'close relatives'. [4.14.5]

(46) Any system of State funding of elections bears a close nexus to the

regulation of working of political parties by law and to the creation of a

foolproof mechanism under law with a view to implementing the financial

limits strictly. Therefore, proposals for State funding should be deferred

till these regulatory mechanisms are firmly in position. [Para 4.14.5]

(47) All candidates should be required under law to declare their assets

and liabilities by an affidavit and the details so given by them should be

made public. Further, as a follow up action, the particulars of the assets

and liabilities so given should be audited by a special authority created

specifically under law for the purpose. Again, the legislators should be

required under law to submit their returns about their liabilities every

year and a final at the end of their term of office. [4.14.6]

(48) Campaign period should be reduced considerably. [Para 4.15.4]

(49) Candidates shouldn‘t be allowed to contest election simultaneously

for the same office from more than one constituency. [Para 4.15.5]

(50) The election code of conduct, which should come into operation as

soon as the elections are announced, should be given the sanctity of law

and its violation should attract penal action. [Para 4.15.6]

(51) The Commission while recognizing the beneficial potential of the

system of run off contest electing the representative winning on the basis

of 50% plus one vote polled, as against the first-past-the-post system, for

a more representative democracy, recommends that the Government and

the Election Commission of India should examine this issue of

prescribing a minimum of 50% plus one vote for election in all its

aspects, consult various political parties, and other interests that might

consider themselves affected by this change and evaluate the

acceptability and benefits of this system. The Commission recommends


131

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


132

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


133

(65) A comprehensive law regulating the registration and functioning of

political parties or alliances of parties in India [may be named as the

Political Parties (Registration and Regulation) Act] should be made. The

proposed law should -

(a) provide that 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 levels of the party, reservation/

representation of at least 30 per cent, of its organizational positions at

various levels and the same percentage of party tickets for parliamentary

and State legislature seats to women. Failure to do so should invite the

penalty of the party losing recognition.

(b) make it compulsory for the parties to maintain accounts of the

receipt of funds and expenditure in a systematic and regular way. The

form of accounts of receipt and expenditure and declaration about the

sources of funds may be prescribed by an independent body of Accounts

& Audit experts, created under the proposed Act. The accounts should

also be compulsorily audited by the same independent body, created

under the legislation which should also prepare a report on the financial

status of the political party which along with the audited accounts

should be open and available to public for study and inspection.

(c) make it compulsory for the political parties requiring their

candidates to declare their assets and liabilities at the time of filing their

nomination before the returning officers for election to any office at any

level of government.

(d) provide that no political party should sponsor or provide ticket

to a candidate for contesting elections if he was convicted by any court

for any criminal offence or if the courts have framed criminal charges

against him.

(e) specifically provide that if any party violates the provision

mentioned at sub-para (d) above, the candidate involved should be liable

to be disqualified and the party deregistered and derecognised forthwith.

[Paras 4.30.1, 4.30.3, 4.30.4, 4.30.5 and 4.34]

(66) Election Commission should progressively increase the threshold

criterion for eligibility for recognition so that the proliferation of smaller

political parties is discouraged. Only parties or a pre-poll alliance of

political parties registered as national parties or alliances with the

Election Commission be allotted a common symbol to contest elections


134

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]


135

(71) Immediate steps be taken to set up a Nodal Standing Committee

on National Economy with adequate resources in terms of both in house

and advisory expertise, data gathering and computing and research

facilities for an ongoing analysis of the national economy for assisting the

members of the Committee to report on periodic basis to House. [5.7]

(72) The Parliament should be associated with the initial stage itself in

the matter of formulating proposals for constitutional amendment. The

actual drafting should be taken up only after the principles underlying

the amendment have been thoroughly considered in a parliamentary

forum and subjected to a priori scrutiny by the constituent power. A

Standing Committee of the two Houses of Parliament for a priori scrutiny

of amendment proposals should be set up. [Para 5.8.2 and 5.8.3]

(73) With the proposed establishment of three new Committees,

namely, the Constitution Committee, the Committee on National

Economy and the Committee on Legislation, the existing Committees on

Estimates, Public Undertakings and Subordinate Legislation may not be

continued. [Para 5.9.1]

(74) The Petitions Committee of Parliament has tremendous potential

as a supplement to the proposed Lok Pal institution. It should be made

more widely known and used for ventilation, investigation and redressal

of people's grievances against the administration. [Para 5.9.2]

(75) Major reports of all Parliamentary Committees ought to be

discussed by the Houses of Parliament especially where there is

disagreement between a Parliamentary Committee and the Government.

[Para 5.9.3]

(76) For a more systematic approach to the planning of legislation, the

following steps should be taken:-

(a) Adequate time for consideration of Bills in committees and on

the floor of the Houses as also to subject the drafts to thorough and

rigorous examination by experts and laymen alike should be

provided. (b) All major social and economic legislation should be

circulated for public discussion by professional bodies, business

organisations, trade unions, academics and other interested persons.

(c) The functions of the Parliamentary and Legal Affairs Committee of the

Cabinet should be streamlined; (d) More focused use of the Law

Commission should be made; (e) A new Legislation Committee of

Parliament to oversee and coordinate legislative planning should be

constituted; and (f) All Bills should be referred to the Departmental

Related Parliamentary Standing Committees for consideration and

scrutiny after public opinion has been elicited and all comments,

suggestions and memoranda are in. The Committees may schedule


136

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]


137

(84) The findings and recommendations of the Public Accounts

Committees (PACs) should be accorded greater weight. A convention

should be developed with the cooperation of all major parties represented

in the legislature to treat the PACs as the conscience-keepers of the

nation in financial matters. [Para 5.13]

(85) Union Government should take necessary steps for the early

enactment of the Fiscal Responsibility Bill pending before Parliament.

The State Assemblies should enact similar legislation as provided for in

article 293 to put their respective fiscal houses in order. [Para 5.14]

(86) The privileges of legislators should be defined and delimited for the

free and independent functioning of Parliament and State

Legislatures. It should not be necessary to run to the 1950 position in

the House of Commons every time a question arises as to what kind of

legal protection or immunity a Member has in relation to his or her work

in the House. [Para 5.15.3]

(87) Article 105(2) may be amended to clarify that the immunity enjoyed

by Members of Parliament under parliamentary privileges does not cover

corrupt acts committed by them in connection with their duties in the

House or otherwise. Corrupt acts would include accepting money or any

other valuable consideration to speak and/or vote in a particular

manner. For such acts, they would be liable for action under the

ordinary law of the land. It may be further provided that no court will

take cognisance of any offence arising out of a Member's action in the

House without prior sanction of the Speaker or the Chairman, as the

case may be. Article 194(2) may also be similarly amended in relation to

the Members of State Legislatures.[Para 5.15.6]

(88) An Audit Board should be constituted for better discharge of vital

function of public audit, but the number of members to be appointed,

the manner of their appointment and removal and other related matters

should be dealt with by appropriate legislation, keeping in view the need

for ensuring independent functioning of the Board. [5.16.2]

(89) Though no specific change is needed in the existing provisions of

the Constitution insofar as appointment of the Comptroller and Audit

General of India and other related matters are concerned, yet a healthy

convention be developed to consult the Speaker of the Lok Sabha, before

the Government decides on the appointment of the CAG so that the views

of the Public Accounts Committee are also taken into account. [5.16.3]

(90) The considerations that apply at the Union level in regard to the

functioning of the office of C&AG should apply with equal force at the

State level. The State Accountants General (AGs) should be given greater

authority by the C&AG, while maintaining its general superintendence,


138

direction and control to bring about a broad uniformity of approach in

the sphere of financial discipline. The C&AG should evolve accounting

policies and standards and norms for all bodies and entities that receive

public funds, such as autonomous bodies and the Panchayat Raj

institutions. [Para 5.16.4]

(91) The operations of the office of the C&AG itself should be subject to

scrutiny by an independent body. To fulfil the canons of accountability, a

system of external audit of C&AG's organization should be adopted for

both the Union and the State level organizations. [Para 5.17]

(92) The MP LAD Scheme, as being inconsistent with the spirit of the

Constitution in many ways, should be discontinued immediately. [5.19.2]

(93) Legislation envisaged in article 98(2) should be undertaken to

reorganize the Secretariats as independent and impartial instruments of

Parliament, with special emphasis on upgrading professional

competence. [Para 5.20.1]

(94) It would be useful to reform the budgetary procedure for

streamlining the work of Parliament. [Para 5.21.2]

(95) The number of days on which voting is considered essential should

be reduced to the barest minimum and the time for such voting in a

given session be fixed in advance with appropriate whips requiring full

attendance of members. [Para 5.21.3]

(96) In order to ensure better scrutiny of administration and

accountability to Parliament, parliamentary time in the two houses may

be suitably divided between the government and the opposition.[5.21.4]

(97) The best way to deal with issues of procedural reforms in a

professional (and not political) manner is to have them studied by a

Study Group outside Parliament as was done in U.K. The conclusions

and suggestions of the Group can be considered by the Rules

Committees of the houses of Parliament. Accordingly, a Study Group

outside Parliament for study of Parliament should be set up.[Para 5.21.5]

CHAPTER 6: EXECUTIVE AND PUBLIC ADMINISTRATION

(98) While improving the nature and institutional response of

administration to the challenges of democracy is imperative, the system

can deliver the goods only through devolution, decentralisation and

democratisation thereby narrowing the gap between the base of the polity

and the super structure. [Para 6.2.8]

(99) District should be considered as a basic unit of planning for

development. Functions, finances, and functionaries relating to the

development programmes would have to be placed under the direct

supervision and command of elected bodies at the district levels of

operation to give content and substance to such programmes of


139

development and public welfare. This would, to a substantial degree,

correct the existing distortions and make officials directly answerable to

the people to ensure proper implementation of development programmes

under the direct scrutiny of people. [Para 6.4.1]

(100) India should move to a system where the State guarantees the title

to land after carrying out extensive land surveys and computerizing the

land records. It will take some time but the results would be beneficial

for investment in land. This will be a major step forward in revitalizing

land administration in the country as it would enable Right to access,

Right to use and Right to enforce decisions regarding land. Similar

rationalization of records relating to individuals rights in properties other

than privately held lands (which are held in common) would improve

operational efficiency which left unattended foment unrest. A coherent

public policy addressed to the modern methods of management would

contribute to better use of assets and raise dynamic forces of individual

creativity. Run away expansion in bureaucratic apparatus of the State

would also get curtailed by new management system. [Para 6.4.2]

(101) Energetic efforts should be made to establish a pattern of

cooperative relationship between the State and associations, NGOs and

other voluntary bodies to launch a concerted effort to regenerate the

springs of progressive social change. State and civil society are not to be

treated antithical but complementary. [Para 6.5.4]

(102) The questions of personnel policy including placements,

promotions, transfers and fast-track advancements on the basis of

forward-looking career management policies and techniques should be

managed by autonomous Personnel Boards for assisting the high level

political authorities in making key decisions. Such Civil Service Boards

should be constituted under statutory provisions. They should be

expected to function like the UPSC. The sanctity of parliamentary

legislation under article 309 is needed to counteract the publicly known

trends of the play of unhealthy and destabilizing influences in the

management of public services in general and higher civil services in

particular. [Para 6.7.1]

(103) Above a certain level--say the Joint Secretary level - all posts

should be open for recruitment from a wide variety of sources including

the open market. Government should specialize some of the generalists

and generalize some of the specialists through proper career

management which has to be freed from day to day political

manipulation and influence peddling. [Para 6.7.2]

(104) Social audit of official working should be done for developing

accountability and answerability. Officials, before starting their career,


140

in addition to the taking of an oath of loyalty to the Constitution, should

swear to abide by the basic principles of good governance. This would

give renewed sense of commitment by the executives to the basic tenets

of the Constitution. [Para 6.7.3]

(105) The services have remained largely immune from imposition of

penalties due to the complicated procedures that have grown out of the

constitutional guarantee against arbitrary and vindictive action (article

311). The constitutional safeguards have in practice acted to shield the

guilty against swift and certain punishment for abuse of public office for

private gain. A major corollary has been erosion of accountability. It has

accordingly become necessary to re-visit the issue of constitutional

safeguards under article 311 to ensure that the honest and efficient

officials are given the requisite protection but the dishonest are not

allowed to prosper in office. A comprehensive examination of the entire

corpus of administrative jurisprudence has to be undertaken to

rationalize and simplify the procedure of administrative and legal action

and to bring the theory and practice of security of tenure in line with the

experience of the last more than 50 years. [Para 6.7.4]

(106) The civil service regulations need to be changed radically in the

light of contemporary administrative theory to introduce modern

evaluation methodology. [Para 6.7.5]

(107) The administrative structure and systems have to be consciously

redesigned to give appropriate recognition to the professional and

technical services so that they may play their due role in modernizing

our economy and society. The specialist should not be required to play

second fiddle to the generalist at the top. Conceptually we need to

develop a collegiate style of administrative management where the leader

is an energizer and a facilitator, and not an oracle delivering verdicts

from a high pedestal. [Para 6.7.6]

(108) A parliamentary legislation under article 312(1) should be enacted.

It should be debated in professional circles as well as by public. [6.7.7]

(109) Right to information should be guaranteed and needs to be given

real substance. In this regard, government must assume a major

responsibility and mobilize skills to ensure flow of information to

citizens. The traditional insistence on secrecy should be discarded. In

fact, we should have an oath of transparency in place of an oath of

secrecy. Administration should become transparent and

participatory. Right to information can usher in many benefits, such as

speedy disposal of cases, minimizing manipulative and dilatory tactics of

the babudom, and, last but most importantly, putting a considerable

check on graft and corruption. [Para 6.10]


141

(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


142

1996 SC 2005). There is no need to set up an additional independent

Authority to determine this issue of confiscation. The Tribunal

constituted under the Smugglers and Foreign Exchange Manipulators

(Forfeiture of Property) Act, (SAFEMA) 1976, which could deal with

similar situation arising out of other statutes may be conferred additional

jurisdiction to determine cases of confiscation arising out of the Benami

Transactions (Prohibition) Act, 1988 and the Prevention of Corruption

Act, 1988, (as may be amended) and other legislations which empower

confiscation of illegally acquired assets. Tribunal will exercise distinct

and separate jurisdictions under separate statutes. [Para 6.20.2]

(117) The Prevention of Corruption Act, 1988 should be amended to

provide for confiscation of the property of a public servant who is found

to be in possession of property disproportionate to his/her known

sources of income and is convicted for the said offence. In this case, the

law should shift the burden of proof to the public servant who was

convicted. In other words, the presumption should be that the

disproportionate assets found in possession of the convicted public

servant were acquired by him by corrupt or illegal means. A proof of

preponderance of probability shall be sufficient for confiscation of the

property. The law should lay down that the standard of proof in

determining whether a person has been benefited from an offence and for

determining the amount in which a confiscation order is to be made, is

that which is applicable to civil cases, i.e. a mere preponderance of

probability only. A useful analogy may be seen in Section 2(8) of the

Drug Trafficking Act 1994 in United Kingdom. [Para 6.20.3]

(118) The Constitution should provide for appointment of LokPal. The

Prime Minister should be kept out of purview of the Lok Pal. [Para 6.21.1]

(119) Union Government should take steps for early enactment of the

Central Vigilance Commission Bill, introduced in Parliament. [6.22]

(120) The Constitution should contain a provision obliging the States to

establish the institution of Lokayuktas in their respective jurisdictions in

accordance with the legislation of the appropriate legislatures. [6.23.2]

(121) When once a Commission of Inquiry is constituted under the

Commissions of Inquiry Act, 1952 or otherwise, the Government should

consult the Chairperson of the Commission in respect of time required

for completion / finalisation of the report. Once such a time is specified,

the Commission should adhere to it. The Action Taken Report on the

report should be announced by the Government within a period of three

months from the date of submission of the report. [Para 6.24.2]


143

CHAPTER 7: THE JUDICIARY

(122) In the matter of appointment of Judges of the Supreme Court, it

would be worthwhile to have a participatory mode with the participation

of both the executive and the judiciary in making recommendations. The

composition of the Collegium gives due importance to and provides for

the effective participation of both the executive and the judicial wings of

the State as an integrated scheme for the machinery for appointment of

judges. A National Judicial Commission under the Constitution should be

established. The National Judicial Commission for appointment of judges

of the Supreme Court shall comprise of: (1) The Chief Justice of

India: Chairman (2) Two senior most judges of the Supreme

Court: Member (3) The Union Minister for Law & Justice : Member

(4) One eminent person nominated by the President after consulting the

Chief Justice of India: Member

The establishment of a National Judicial Commission and its

composition are to be treated as integral in view of the need to preserve

the independence of the judiciary. [Para 7.3.7]

(123) A committee comprising the Chief Justice of India and two senior-

most Judges of the Supreme Court will comprise the committee of the

National Judicial Commission exclusively empowered to examine

complaints of deviant behaviour of all kinds and complaints of

misbehaviour and incapacity against judges of The Supreme Court and

the High Courts. If the committee finds that the matter is serious enough

to call for a fuller investigation or inquiry, it shall refer the matter for a

full inquiry to the committee [constituted under the Judges‘ (Inquiry) Act,

1968]. The committee under the Judges Inquiry Act shall be a

permanent committee with a fixed tenure with composition indicated in

the said Act and not one constituted ad-hoc for a particular case or from

case to case, as is the present position under section 3(2) of the Act. The

tenure of the inquiry committee shall be for a period of four years and to

be re-constituted every four years. The inquiry committee shall be

constituted by the President in consultation with the Chief Justice of

India. The inquiry committee shall inquire into and report on the

allegation against the Judge in accordance with the procedure prescribed

by the said Act, i.e. in accordance with the sub-sections (3) to (8) of

Section 3 and sub-section (1) of Section 4 of the said Act and submit

their report to the Chief Justice of India, who shall place before a

committee of seven senior-most judges of the Supreme Court. The

Committee of seven Judges shall take a decision as to - whether (a)

findings of the inquiry committee are proper and (b) any charge or

charges are established against the judge and if so, whether the charges


144

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


145

unconstitutional or beyond legislative competence and so ultra vires. Such

a provision may be made as clause (5) of article 226. [Para 7.5]

(129) A ‗Judicial Council‘ at the apex level and Judicial Councils at each

State at the level of the High Court should be set up. There should be an

Administrative Office to assist the National Judicial Council and separate

Administrative Offices attached to Judicial Councils in States. These

bodies must be created under a statute made by Parliament. The

Judicial Councils should be in charge of the preparation of plans, both

short term and long term, and for preparing the proposals for annual

budget. [Para 7.7]

(130) The budget proposals in each State must emanate from the State

Judicial Council, in regard to the needs of the subordinate judiciary in

that State, and will have to be submitted to the State Executive. Once the

budget is so finalized between the State Judicial Council and the State

Executive, it should be presented in the State Legislature. [Para 7.8.1]

(131) The entire burden of establishing subordinate courts and

maintaining subordinate judiciary should not be on the State

Governments. There is a concurrent obligation on the Union Government

to meet the expenditure for subordinate courts. Therefore, the Planning

Commission and the Finance Commission must allocate sufficient funds

from national resources to meet the demands of the State judiciary in

each of the States. [Para 7.8.2]

(132) The presiding officers in courts should be adequately trained. To

ensure competence, there should be a proper selection, freedom of

action, training, motivation and experience. To maintain competence it is

necessary to have continuing education for the judges. Some national

judicial institutions have to be properly structured to give such

training. There should be a proper monitoring of moving the judges

where work demands such movement from places where there are no

arrears of work. There has to be systematic assessment of training

needs of judicial personnel at different levels. [7.10.2]

(133) The Government should ensure basic infra-structure needed to all

courts and arrange to ensure that courts are not handicapped for want of

infra-structural facilities. Governments, both at the Centre and in the

States, should constitute committee of secretaries to review government

litigation with a view to avoid adjudication, wherever possible, give

priority in filling of written statements, wherever required, and instruct

government advocates to seek early decision on government litigation.

[Para 7.10.4]

(134) In the Supreme Court and the High Courts, judgements should

ordinarily be delivered not later than ninety days from the conclusion of


146

the case. If a judgement is not rendered within such time – it is possible

that the complexities of the case and the effect the decision may have on

another similar situation might compel greater and larger judicial

consideration and contemplation – the case must be listed before the

court immediately on the expiry of ninety days for the court to fix a

specific date for the pronouncement of the judgment. [Para 7.10.5]

(135) An award of exemplary costs should be given in appropriate cases

of abuse of process of law. [Para 7.11]

(136) The recommendations of the Law Commission of India in regard to

the Nagar Nyayalayas, Conciliation Courts, ADR systems of urban

litigation, evidence recording by Commissioners, etc. as incorporated in

the Code of Civil Procedure (Amendment) Act, 2000 should be brought

into force with such modifications as would take care of a few serious

objections. [Para 7.13.3]

(137) The provisions relating to conciliation in the Arbitration and

Conciliation Act, 1996 should suitably be amended to provide for

obligatory recourse to conciliation or mediation in relation to cases

pending in courts. Further, the scope and functions of the Legal Services

Authorities constituted under the Legal Services Authorities Act, 1987

should be enlarged and extended to enable the Authorities to set up

conciliation and mediation fora and to conduct, in collaboration of other

institutions wherever necessary, training courses for conciliators and

mediators. [Para 7.13.4]

(138) Each High Court should, in consultation with the judicial councils

referred to in para 7.7, prepare a strategic plan for time-bound clearance

of arrears in courts under its jurisdiction. The plan may prescribe

annual targets and district-wise performance targets. High Courts

should establish monitoring mechanisms for progress evaluation. The

purpose is to achieve the position that no court within the High Court‘s

jurisdiction has any case pending for more than one year. This should

be achieved within a period of five years or earlier. [Para 7.13.5]

(139) The criminal investigation system needs higher standards of

professionalised action and it should be provided adequate logistic and

technological support. Serious offences should be classified for purpose

of specialized investigation by specially selected, trained and experienced

investigators. They should not be burdened with other duties like

security, maintenance of law and order etc., and should be entrusted

exclusively with investigation of serious offences. [Para 7.14.2]

(140) Number of Forensic Science Institutions with modern technologies

such as DNA fingerprinting technology should be enhanced. [Para 7.14.3]


147

(141) The system of plea-bargaining (as recommended by the Law

Commission of India in its Report) should be introduced as part of the

process of decriminalization. [Para 7.14.4]

(142) In order that citizen‘s confidence in the police administration is

enhanced, the police administration in the districts should periodically

review the statistics of all the arrests made by the police in the district as

to how many of the cases in which arrests were made culminated in the

filing of charge-sheets in the court and how many of the arrests

ultimately turned out to be unnecessary. This review will check the

tendency of unnecessary arrests. [Para 7.14.5]

(143) The legal services authorities in the States should set up

committees with the participation of civil society for bringing the accused

and victims together to work out compounding of offences. [Para 7.14.6]

(144) Statements of witnesses during investigation of serious cases

should be recorded before a magistrate under Section 164 of the Code of

Criminal Procedure, 1973. [Para 7.14.7]

(145) The case for a viable, social justice-oriented and effective scheme

for compensation victims is now widely felt. The Government at the

Union level and in the States are well advised under the directive

principles as well as under International Human Rights obligations to

legislate on the subject of an effective scheme of compensation for

victims of crime without further delay. [Para 7.15.3]

(146) The tremendous support which the criminal justice might derive

from the people once the compensation scheme is introduced even in a

modest scale, and the possibilities of advancing the crying need for social

justice in a very real sense, are attractive enough for the State to find

money to float the scheme immediately. [Para 7.15.4]

(147) The National Informatics Centre in collaboration with or with the

assistance of the Indian Law Institute and the Government Law

Departments should set up a Digital Legal Information System in the

country so that all courts, legal departments, law schools would be able

to access and retrieve information from the data bank of the important

law libraries in the country." [Para 7.17.2]

(148) Progressively the hierarchy of the subordinate courts in the

country should be brought down to a two-tier of subordinate judiciary

under the High Court. Further, strict selection criteria and adequate

training facilities for the presiding officers of such courts should be

provided. In order to cope up with the workload of cases at the lower

level and also to curtail arrears and delay, the States should appoint

honorary judicial magistrates selected from experienced lawyers on the

criminal side to try and dispose less serious and petty cases on part-time


148

basis on the pattern of Recorders and Assistant Recorders in UK. They

could set for, say, 100 days in a year and hold court later in the evenings

after regular court hours. This would relieve the load on the regular

magistracy. [Para 7.18]

(149) Since the issues relating to human rights, more particularly

relating to unlawful detention, have now occupied a center-stage, both

nationally and internationally, it shall be desirable that the Protection of

Human Rights Act, 1993 may be suitably amended to provide that, in

addition to the powers generally vested in that Court, such courts shall

have the power to issue directions of the nature of a habeas corpus as

was available to the High Courts under section 491 of the CrPC. Vesting

of such power will go a long way in providing help to the indigent and

vulnerable sections of the society in view of the proximity and easy

accessibility of the Court of Session. [Para 7.19.3]

CHAPTER 8: UNION-STATE RELATIONS : LEGISLATION

(150) Individual and collective consultation with the States should be

undertaken through the Inter-State Council established under article

263 of the Constitution. Further, the Inter-State Council Order, 1990,

issued by the President may clearly specify in para 4(b) of the order the

subjects that should form part of consultation in the Inter-State Council.

[8.2.13]

(151) “Management of Disasters and Emergencies, Natural or Man-Made”

should be included in List III of the Seventh Schedule. [Para 8.2.14]

FINANCE

(152) It might be worthwhile to provide explicitly for taxing power for the

States in respect of certain specified services. For the Union also an

explicit entry would be helpful, rather than leaving it to the residuary

power of entry 97. However, it may be better to first let a consensus list

of services to be taxed by the States come into force to be treated as the

exclusive domain of the States, even if the formal taxing power is

exercised by the Union. A de facto enumeration of services that can be

taxed exclusively by the States should get priority from policy makers

with a view to augmenting the resource pool of the States. Specific

enumeration of services that may become amenable to taxation by the

States should be made. An appropriate amendment to the Constitution in

this behalf should be made to include certain taxes, now levied and

collected by the Union, to be levied and collected by the States.[Para 8.5]

TRADE, COMMERCE AND INTERCOURSE

(153) For carrying out the objectives of articles 301, 302, 303 and 304,

and other purposes relating to the needs and requirements of inter-State

trade and commerce and for purposes of eliminating barriers to inter-


149

state trade and commerce Parliament should, by law, establish an

authority called the ―Inter-State Trade and Commerce Commission‖

under the Ministry of Industry and Commerce under article 307 read

with Entry 42 of List-I. [Para 8.8.2]

RESOLUTION OF DISPUTES

(154) Article 139A, which confers power on the Supreme Court to

withdraw cases involving the same or substantially the same question of

law, which are pending in Supreme Court and one or more High Courts,

should be amended so as to provide that it can withdraw to itself cases

even if they are pending in one court where such questions as to the

legislative competence of the Parliament or State Legislature are involved.

[Para 8.9.4]

(155) As river water disputes being important disputes between two or

more States and/or the Union, they should be heard and disposed by a

bench of not less than three Judges and if necessary, a bench of five

Judges of the Supreme Court for final disposal of the suit. [Para 8.11.7]

(156) Appropriate provisions may be made as envisaged by article 145(1)

in consultation with the Supreme Court or if the Supreme Court so opts

to provide for the same by the Supreme Court Rules to appoint

Commissioners or Masters and to have the evidence recorded not by the

Supreme Court itself but by the Commissioners or Masters so that the

precious time of the Supreme Court is saved. [Para 8.11.8]

(157) Appropriate Parliamentary legislation should be made for repealing the

River Boards Act, 1956 and replacing it by another comprehensive enactment

under Entry 56 of List I. The new enactment should clearly define the

constitution of the River Boards and their jurisdiction so as to regulate, develop

and control all inter-State rivers keeping intact the adjudicated and the

recognized rights of the States through which the inter-State river passes and

their inhabitants. While enacting the legislation, national interest should be the

paramount consideration as inter-State rivers are ‗material resources‘ of the

community and are national assets. Such enactment should be passed by

Parliament after having effective and meaningful consultation with all the State

Governments.[Para 8.11.9]

(158) In resolving problems and coordinating policy and action, Union as

well as the States should more effectively utilize the forum of inter-State

Council as recommended by the Commission on Centre-State Relations

(Sarkaria Commission). This will be in tune with the spirit of cooperative

federalism requiring proper understanding and mutual confidence and

resolution of problems of common interest expeditiously. [8.12.4]

(159) In order to reduce tension or friction between States and the Union

and for expeditious decision-making on important issues involving

States, the desirability of prior consultation by the Union Government


150

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]


151

(165) Following proviso may be added to article 111 of the Constitution:

"Provided that when the President declares that he assents to the

Bill, the assent shall be deemed to be a general assent for all purposes of

the Constitution."

Suitable amendment may also be made in article 200. [Para 8.14.8]

(166) Article 356 should not be deleted. But it must be used sparingly

and only as a remedy of the last resort and after exhausting action under

other articles like 256, 257 and 355. [Paras 8.18 and 8.19.2]

(167) In case of political breakdown, necessitating invoking of article

356, before issuing a proclamation thereunder, the concerned State

should be given an opportunity to explain its position and redress the

situation, unless the situation is such, that following the above course

would not be in the interest of security of State, or defence of the

country, or for other reasons necessitating urgent action. [Para 8.19.5]

(168) The question whether the Ministry in a State has lost the

confidence of the Legislative Assembly or not, should be decided only on

the floor of the Assembly and nowhere else. If necessary, the Union

Government should take the required steps, to enable the Legislative

Assembly to meet and freely transact its business. The Governor should

not be allowed to dismiss the Ministry, so long as it enjoys the confidence

of the House. It is only where a Chief Minister refuses to resign, after his

Ministry is defeated on a motion of no-confidence, that the Governor can

dismiss the State Government. In a situation of political breakdown, the

Governor should explore all possibilities of having a Government enjoying

majority support in the Assembly. If it is not possible for such a

Government to be installed and if fresh elections can be held without

avoidable delay, he should ask the outgoing Ministry, (if there is one), to

continue as a caretaker government, provided the Ministry was defeated

solely on a issue, unconnected with any allegations of maladministration

or corruption and is agreeable to continue. The Governor should then

dissolve the Legislative Assembly, leaving the resolution of the

constitutional crisis to the electorate. [Para 8.20.3]

(169) The problem of political breakdown would stand largely resolved if

the recommendations made in Chapter 4 in regard to the election of the

leader of the House (Chief Minister) and the removal of the Government

only by a constructive vote of no-confidence are accepted and

implemented. [Paras 8.20.3 and 8.20.4]

Normally, President‘s Rule in a State should be proclaimed on the

basis of Governor‘s Report under article 356(1). The Governor‘s report

should be a ―speaking document‖, containing a precise and clear

statement of all material facts and grounds, on the basis of which the


152

President may satisfy himself, as to the existence or otherwise of the

situation contemplated in article 356. [Para 8.20.5]

(170) In clause (5) of article 356 of the Constitution, in clause (a) the word

“and” occurring at the end should be substituted by the word “or” so that

even without the State being under a proclamation of Emergency,

President's rule may be continued if elections cannot be held.

[Para 8.21.3]

(171) Whenever a proclamation under article 356 has been issued and

approved by the Parliament it may become necessary to review the

continuance in force of the proclamation and to restore the democratic

processes earlier than the expiry of the stipulated period. For this, new

clauses (6) & (7) to article 356 may be added on the following lines:

―(6)Notwithstanding anything contained in the foregoing clauses,

the President shall revoke a proclamation issued under clause (1) or a

proclamation varying such proclamation if the House of the People

passes a resolution disapproving, or, as the case may be, disapproving

the continuance in force of, such proclamation.

(7) Where a notice in writing signed by not less than one-tenth of

the total number of members of the House of the People has been given,

of their intention to move a resolution for disapproving, or, as the case

may be, for disapproving the continuance in force of, a proclamation

issued under clause (1) or a proclamation varying such proclamation:

(a) to the Speaker, if the House is in session; or

(b) to the President, if the House is not in session,

a special sitting of the House shall be held within fourteen days

from the date on which such notice is received by the Speaker, or, as the

case may be, by the President, for the purpose of considering such

resolution.‖. [Para 8.21.4]

(172) Article 356 should be amended so to ensure that the State

Legislative Assembly should not be dissolved either by the Governor or the

President before the proclamation issued under article 356(1) has been

laid before Parliament and it has had an opportunity to consider it.[8.22.3]

(173) Government may consider the demands of the Coorgies for a

Sainik School, a Development Board and a University for them in Coorg.

[Para 8.23.1]

(174) Steps may be taken for better protection of Sindhi language and

culture by setting up of a Centre of Sindhi Language and Culture with

the State providing necessary facilities for the same. Difficulties faced by

the Sindhi migrants may be examined and corrective measures taken to

facilitate grant of citizenship as per the existing law. [Para 8.23.2]


153

CHAPTER 9: DECENTRALISATION AND DEVOLUTION (PANCHAYATS)

(175) Article 243K and 243Z should be amended on the following lines:

1. Amendment of Article 243K.- In article 243K,- (a) for clause

(1), the following clauses shall be substituted, namely:-

―(1) Subject to the provisions of clause (1A), the superintendence,

direction and control of the preparation of electoral rolls for, and the

conduct of, all elections to the Panchayats shall be vested in a State

Election Commission consisting of a State Election Commissioner to be

appointed by the Governor.

(1A) The Election Commission shall have the power to issue any

directions or instructions to the State Election Commission for the

discharge of its functions under clause (1).‖.

(b) after clause (4), the following clause shall be inserted, namely:-

―(5) The State Election Commission shall submit its annual report to the

Election Commission and to the Governor, every year and it may, at any

time, submit special reports on any matter which in its opinion is of such

urgency or importance that it should not be deferred till the submission

of its annual report.‖.

2. Amendment of article 243ZA.- In article 243ZA, for clause (1), the

following clauses shall be substituted, namely:-

―(1) Subject to the provisions of clause (1A), the superintendence,

direction and control of the preparation of electoral rolls for, and the

conduct of, all elections to the Municipalities shall be vested in the State

Election Commission referred to in article 243K.

(1A) The Election Commission shall have the power to issue any

directions or instructions to the State Election Commission for the

discharge of its functions under clause (1).‖.[Para 9.6.2]

(176) Panchayats should be categorically declared to be ‗institutions of

self-government‘ and exclusive functions be assigned to them. For this

purpose, article 243G should be amended to read as follows:-

"Powers, authority and responsibility of Panchayats

243G. Subject to the provisions of this Constitution, the Legislature of a

State shall, by law, vest the Panchayats with such powers and authority

as are necessary to enable them to function as institutions of self-

government and such law shall contain provisions for the devolution of

powers and responsibilities upon Panchayats at the appropriate level,

subject to such conditions as shall be specified therein, with respect to-

(a) preparation of plans for economic development and social justice;

(b) the implementation of schemes for economic development and social

justice as shall be entrusted to them including those in relation to the

matters listed in the Eleventh Schedule.".


154

Similar amendments should be made in Article 243W relating to the

powers, authority and responsibilities of Municipalities, etc.[9.7.1&9.7.2]

(177) The Eleventh and Twelfth Schedules to the Constitution should be

restructured in a manner that creates a separate fiscal domain for

Panchayats and Municipalities. Accordingly, articles 243H and 243X

should be amended making it mandatory for the legislation of the States to

make laws devolving powers to Panchayats and Municipalities. [9.8.2]

(178) In order to enable the Finance Commission to take a macro-level

view, the provisions sub-clauses (bb) and (c) of clause (3) of article 280

should be amended. The words “on the basis of the recommendation” in

these sub-clauses should be replaced by the words “after taking into

consideration the recommendations.” [Para 9.8.3]

(179) In the part of clause (1) of article 243-I which calls for constitution of

State Finance Commission (SFC) at the expiration of every fifth year, in line

with article 280(1), the words “or at such earlier time as the Governor

considers necessary” may be added after the words „fifth year‟. While it is

for the State Legislature to ensure that the Government implements fully

its assurances, there should be constitutional obligations for placing the

Action Taken Report (ATR) before the legislature within ‗six months‘ after

the submission of the report. Clause (4) of article 243-I may need to be

amended accordingly. [Para 9.8.4]

(180) The necessary legislative power of fixing upper limit of taxes on

professions, trades, callings and employment under article 276 should be

vested in Parliament by suitably amending that article. [Para 9.8.5]

(181) All local authorities may be allowed to borrow from the State

Government and financial institutions. [Para 9.8.6]

(182) An enabling provision should be made in Part IX of the Constitution

permitting the State Legislature to make, by law, provisions that would

empower the State to confer on Panchayats full power of administrative

and functional control over such staff as are transferred following

devolution of functions, notwithstanding any right they may have acquired

from State Act/Rules. They should also have the power to recruit certain

categories of staff required for service in their jurisdiction. [Para 9.9.1]

(183) A proviso to clause (1) of article 243E should be inserted to the effect

that a reasonable opportunity of being heard shall be given to a Panchayat

before it is dissolved. [Para 9.10]

(184) A provision for constitution of a State Panchayat Council under the

chairmanship of the Chief Minister [on the pattern of Gujarat State Council

for Panchayats as provided in the Gujarat Panchayats Act, 1993] should

be made in the Constitution on the analogy of the provision in article 263 of

the Constitution relating to the Inter-State Council. The leader of the


155

opposition may be made ex-officio vice-chairman of the Council to provide

a consensual approach to the development of Panchayats as fully

democratic, efficient and responsible institutions. [Para 9.11]

(185) Necessary provisions should be made for audit of Panchayat

accounts to ensure that all works related to audit (conduct of audit,

submission of audit report and compliance with audit objections if any)

are completed within a year of the close of a financial year. To ensure

uniformity in the practice relating to audits of accounts, the Comptroller

and Auditor-General of India should be empowered to conduct the audit

or lay down accounting standards for Panchayats. [Para 9.12]

MUNICIPALITIES

(186) Whenever a Municipality is superseded, a report stating the

grounds for such dissolution should be placed before the State

Legislature. [Para 9.13]

(187) All provisions regarding qualifications and disqualifications for

elections to local authorities should be consolidated in a single law and

until that is done, each State should prepare a manual of existing

provisions for public information. [Para 9.14]

(188) The State Election Commission (SEC) should have the authority to

prescribe ceiling of expenses and code of conduct in elections. Further,

the State laws should clearly specify the powers of the SEC to disqualify

candidates or set aside elections in the event of violations of those laws.

[Para 9.15]

(189) It should be the duty of a State and the Union (in case of

Panchayats and Municipalities located in Union territories) to ensure the

completion of elections within the stipulated limits. It should also be

duty of the State Election Commissioner to ensure this and in the event

of possible delay make a report to the Governor of the State drawing his

attention to the problems and suggesting remedial action to fulfill the

requirements of the Constitution. Articles 243K and 243 ZA should be

suitably amended to specify that the responsibility for the conduct of

elections shall include all preparatory steps for the same including the

electoral rolls and matters connected therewith and the responsibility for

the same shall vest with the State Election Commission. [Para 9.16.2]

(190) The functions and responsibilities of delimitation, reservation and

rotation of seats and matters connected therewith should be vested in a

delimitation Commission constituted by law by the appropriate

legislature and not in the SEC. [Para 9.16.2]

(191) The Representation of the People Act and State laws should specify

that common polling stations should be used for elections to local bodies,

State Legislatures and Parliament. [Para 9.17.2]


156

(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


157

traditional leaders of each community, opinion builders of the respective

communities and leaders of State and national stature from these very

groups. A hasty decision could have serious repercussions, unforeseen

and unfortunate, which could further complicate and worsen the

situation. To begin with, the subjects given under the Sixth Schedule and

those mentioned in the Eleventh Schedule could be entrusted to the

Autonomous District Councils (ADCs). The system of in-built safeguards

in the Sixth Schedule should be maintained and strengthened for the

minority and micro-minority groups while empowering them with greater

responsibilities and opportunities, for example, through the process of

Central funding for Plan expenditure instead of routing all funds through

the State Governments. The North Eastern Council can play a central

role here by developing a process of public education on the proposed

changes, which would assure communities about protection of their

traditions and also bring in gender representation and give voice to other

ethnic groups. [Para 9.23(i)]

(200) Traditional forms of governance should be associated with self-

governance because of the present dissatisfaction. However, positive

democratic elements like gender justice and adult franchise should be

built into these institutions to make them broader based and capable of

dealing with a changing world. [Para 9.23(ii)]

(201) The implementation of centrally funded projects from various

departments of the Union Government should be entrusted to the ADCs

and to revived village councils with strict monitoring by the Comptroller

and Auditor-General of India. [Para 9.23(iii)]

(202) The process of protection of identity and the process of

development and change are extremely sensitive. These twin processes

need to be understood in the framework of a changing world and the role

of all communities, small and large, in that world. Therefore, the North

Eastern Council should be mandated to conduct an intensive programme

of public awareness, sensitization and education through non-

government organizations, State Governments, and its own structure to

help bring about such an understanding of the proposals. [Para 9.23(iv)]

(203) The provisions of the Anti-Defection Law in the proposed revised

form as recommended in para 4.18.2 of the Report should be made

applicable to all the Sixth Schedule areas. [Para 9.23(v)]

(204) Given the demographic imbalance which is taking place in the

North-East as a result of illegal migration from across the borders,

urgent legal steps are necessary for preventing such groups from

entering electoral rolls and citizenship rolls of the country. Reservations

for local communities and minorities from other parts of the country


158

should be made in the State Legislatures. Issuance of multi-purpose

identity cards to all Indian citizens should be made mandatory for all

Indian residents in the North East on a high-priority basis and the

National Citizenship Law to be reviewed to plug the loopholes which

enable illegal settlers to become ‗virtual‘ citizens in a short span of time,

using a network of touts, politicians and officials. [Para 9.23(vi)]

(205) A National Immigration Council should be set up under law to

examine and report on a range of issues including Work Permits for legal

migrants, Identity Cards for all residents, a National Migration Law, a

National Refugee Law, review of the Citizenship Act, the Illegal Migrants

Determination by Tribunal Act and the Foreigners Act. [Para 9.23(vii)]

(206) Local communities should be involved in the monitoring of our

borders, in association with the local police and the Border Security

Force. [Para 9.23(viii)]

(207) As regards Nagaland, Naga Councils should be replaced by elected

representatives of various Naga society groups with an intermediary tier

at the district level. Village Development Boards should be less

dependent on State and receive more Centrally-sponsored funds. [9.25]

(208) As regards Assam - (i) the Sixth Schedule should be extended to the

Bodoland Autonomous Council with protection for non-tribal, non-Bodo

groups, (ii) other Autonomous Councils be upgraded to Autonomous

Development Councils with more Central funds for infrastructure

development; within the purview of the 73rd Amendment but also

using traditional governing systems at the village level. [Para 9.28]

(209) As regards Meghalaya, –

(1) A tier of village governance should be created for a village or a

group of villages in the Autonomous District Councils, comprising of

elected persons from the traditional systems plus from existing village

councils with not more than 15 persons at each village unit. (2) The

number of seats in each of the Autonomous District Councils in

Meghalaya should be increased by 10 seats, i.e., to a total number of 40

seats. Of the 10 additional seats, having regard to the non-

representation of women and non-tribals, the Governor may nominate up

to five members from these categories to each of the ADCs. The other five

may be elected as follows:-

(a) By Syiems and Myntris, from among themselves to the Khasi

Autonomous Council.

(b) By Dolois from among themselves to the Jaintia Autonomous

District Council; and

(c) By Nokmas from among themselves to the Garo Autonomous

District Council. [Para 9.29]


159

(210) As regards Tripura, –

(i) The changes which may be made in respect of other

Autonomous Councils should also apply in respect of the Autonomous

District Council(s) in Tripura.

(ii) The number of elected members in the Council should be

increased from 28 to 32.

(iii) The number of nominated members should be increased to six

from the current two. The existing non-tribal seats (currently, they have

three elected seats) be converted to tribal seats. Three non-tribals may

be nominated by the Governor and three tribal women may be nominated

by the Chief Executive Member. [Para 9.30]

(211) As regards Mizoram, –

(i) An intermediary elected 30-member tier should be developed at

the district level in areas not covered by the Sixth

Schedule, i.e., excluding the Chakma, Lai and Mara District Autonomous

Councils. There would thus be two tiers below the State Legislature: the

District and the Village.

(ii) Village Councils in non-Scheduled areas should be given more

administrative and judicial powers; two or more villages be combined to

form one village council, given the small population in the State.

(iii) Consideration should be given to groups seeking Sixth

Schedule status, depending on viability of the demand, including size of

population, territorial and ethnic contiguity.

(iv) Central funding as outlined in general recommendations

should be provided to the ADCs.

(v) Nominated seats for women, non-tribals and Sixth Schedule

tribes in non-scheduled area (not to exceed six over and above the size of

the Councils, making a total of 36 members); current size of ADCs

should be increased to 30 with a similar provision for women and non-

scheduled tribes. [Para 9.31]

(212) As regards Manipur, (i) the provisions of the Sixth Schedule should

be extended to hill districts of the State, (ii) the 73rd Amendment should

be implemented vigorously in the areas of the plains where, despite

elections, the system is virtually non-existent. [9.32]

CHAPTER 10: PACE OF SOCIO-ECONOMIC CHANGE & DEVELOPMENT

(213) The Citizens‘ Charters be prepared by every service providing

department/agency to enumerate the entitlements of the citizens. In case

a citizen fails to receive the public goods and the services in the manner

and to the extent set out in such charters, he/she should have recourse

to an easy and effective system of grievance redressal through chartered

Ombudsman. These citizen‘s charters should include specifically the


160

entitlements of citizens belonging to Scheduled Castes (SCs), Scheduled

Tribes (STs) and other deprived classes. In the case of these deprived

classes the charters can with advantage provide for National and State

Commission for SCs, STs, BCs (Backward Classes), Minorities, women,

safai karamcharis to function effectively as ombudsman-bodies. The

charter of these National and State Commissions and the way they are

constituted should be such as to facilitate the role, inter alia, as

ombudsman-bodies for different deprived classes. [Para 10.3.2]

(214) The Civil Services Boards, recommended to be set up under

Chapter 6 for considering promotions and placements, should be

directed to specifically consider the performance of officers in promoting

the welfare of Scheduled Castes, scheduled tribes and other deprived

categories. When officers are being considered for promotion and

placement economic agencies/ministries, weightage should be given to

officers who have worked conscientiously and efficiently to implement

constitutional values and norms under the law and rules and regulations

for the welfare, development and empowerment of the above

disadvantaged categories and those who have failed in this and those

who have not worked at least for five years in the areas and sectors

pertaining to these categories should be excluded from placements in

economic ministries/agencies. For this purpose, the provision should be

made for Social Justice Clearance before an officer of class I or class II is

promoted along the lines detailed in para 3.2 at pages 1390-1391 of

Book-3, Vol.II. [Para 10.3.3]

(215) Reservation for members of the SCs and the STs should be brought

under purview of a statute covering all aspects of reservation, as detailed

in para 8.10 at pages 1406-1408 of Book-3, Vol.II, including setting up

Arakshan Nyaya Adalats or Tribunal to adjudicate upon all cases and

disputes pertaining to reservation in posts and vacancies in Government,

Public Sector, Banks and other financial institutions, Universities and all

other institutions and organisations to which reservations are and

become applicable. These Tribunals should have the status of High

Courts, appeals lying only to the Supreme Court. These Tribunals

should have their main Bench at Delhi and other Benches in the

States. The Chairperson, Vice-Chairperson and other Members of the

Tribunal and its benches should be selected on the basis of their record

in the implementation of Reservation in their earlier positions. The

statute should, inter alia, have a penal provision including imprisonment

for those convicted of wilfully or negligently failing to implement

reservation. The statute and related provisions should be brought under

the Ninth Schedule to the Constitution. [Para 10.3.4]


161

(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


162

allotment of shops under the public distribution system, and other

allotments like petrol stations, gas agencies, etc. for distribution of

commodities by public authority. There is need for support mechanism

to help entrepreneurs among these deprived sections to help them to

come up in these business ventures. These measures should be taken

on lines as spelt out in para 4.6 at pg 1393 of Book-3 Vol.II. [10.3.10]

(221) Massive programmes of employment should be undertaken and

expanded to cover all such people and provide them employment at

statutory minimum wage fixed for agricultural labourers at least for 80

days in the year over and above the unsteady employment they normally

have. The nature of the work to be undertaken, the mode of payment of

wages etc. should be as detailed in para 4.5 at pages 1392 to 1393 of

Book-3 of Volume-II. Inclusion of Right to Work as a fundamental right

has been recommended in para 3.13.2 of this Report and this will

provide the necessary constitutional base and support for this

programme. [Para 10.3.11]

(222) Residential schools for SCs and STs should be established in every

district in the country – one each for SC boys and SC girls, and ST boys

and ST girls, as one item of an important package of comprehensive

measures required for development and empowerment of SCs and STs.

Similarly, the Commission recommends that residential schools should

be set up for the BCs in every district, one each for BC boys and BC girls,

including minorities who belong to BCs and with special attention to

More Backward and Most Backward classes among BCs. The proportion

of the students of the specific category of weaker sections (say 75%) and

of other social categories (say25%), principles of location, methodology of

covering the Minority B.C., phasing and funding, mode of selection of the

candidates, management etc. should be as detailed in paras 5.4 and 6.2

at pages 1395 to 1397 of Book 3 of Volume II. This system has got the

support of the precedent and experience for the last two decades in

Andhra Pradesh state, providing ground for hope in this important and

indispensable measure. In addition, the Commission recommends that it

is also necessary to see that the SCs, STs and BCs especially the Most

Backward classes of BCs from poor and middle-class families get due

benefit of good and prestigious private educational institutions in the

country as well as in foreign educational institutions at all levels and in

all disciplines, at state cost. Funding for this can be found by measures

outlined in sub-para (v) of para 5.4 at page 1396 of Book 3 of Vol- II. The

measures detailed in sub para (ii) and (iv) of para 5.4 at pages 1395 and

1396 of Book 3 of Volume II should be followed in the matter. [10.4.1]


163

(223) Incentives should be offered to students to prepare for such

courses of study in technical, vocational, scientific and professional

disciplines. Only a massive transfer of resources to the educational

programmes for the SCs and STs will enable us to achieve the kind of

quantitative expansion needed to bring these communities on par with

others in terms of skills and knowledge base to engage with the modern

world. It is only then that they would be in a position to compete on the

basis of their own strength and rise to the leadership role in different

spheres of public life. This aspect of measures for building up a reservoir

of highly educated professional, scientific and technological manpower

among these categories in population equivalent proportion should be

borne in mind along with its earlier recommendations regarding

residential schools of high quality and elementary education, and

provisions and outlays should be made accordingly. [Para 10.4.3]

(224) Social policy should aim at enabling the SCs, STs and BCs

(including BC minorities and especially the More and Most Backward

Classes among BCs) and with particular attention to the girls in each of

these categories to compete on equal terms with the general

category. This was always necessary but this becomes more important

and increasingly urgent in the context of a knowledge society that is

emerging. Reservation has helped the above deprived categories to enter

state educational institutions from which they had been debarred and /

or otherwise excluded in the past. Reservation continues to be necessary

since these adverse factors have not ceased to exist. But with the growth

of high quality educational institutions built up by the wealthier

sections, almost entirely drawn from non-SC, non-ST, non-BC categories,

as a high quality stream distinct and separate from the state educational

system, it becomes important to ensure that other measures in addition

to reservations are introduced. Without these measures, along with the

Commissions recommendations on elementary education, the gap

between the SC, ST and BC on the one hand and the rest of society will

inexorably continue and even be widened. [Para 10.4.4]

(225) The Employment of Manual Scavengers and Construction of Dry

Latrines (Prohibition) Act, 1993, should be strictly enforced to bring to an

early end to this degrading practice of manual scavenging so offensive to

human dignity without abridgement of the employment and income of

existing Safai Karamcharis. Automatic applicability of the Act to all

States should be brought about by the amendment suggested in para 7.2

at page 1399 of Book 3 of Volume II. Further, the specifics and details of

the abolition of the manual scavenging system and the liberation and

rehabilitation of safai karamcharis and protection of safai karamcharis


164

during the transition period should be as detailed in para 7.3 of pages

1399 to 1401 of Book 3 of Volume II, including its incorporation in the

System of Social Justice Clearance of officers at the time of their

consideration for promotion. Limitations placed on the National

Commission for Safai Karamcharis should be removed and it should be

given the same powers and functional autonomy as is being enjoyed by

the National Human Rights Commission; it should be adequately

equipped to achieve its objective of total liberation and full rehabilitation

of safai karamcharis. This should form an integral part of a National

Sanitation Policy-cum-National Social Justice Policy. [Para 10.5]

(226) The bleak situation will continue to bedevil the SCs and STs and

the nation unless appropriate new institutions are created to take charge

of the full quantum of outlay of SCP and TSP (i.e. outlay not less than

the population equivalent proportion of the total plan outlay of the

Centre/each State) and manned by competent experts of SCs and STs

and others genuinely working for them, to formulate Plans in accordance

with the developmental needs and priorities of the SCs and STs and

ensure that these plans are implemented effectively. This new

institutional system should consist of an integrated network of National

Development Council for SCs and STs, and National SCs and STs

Development Authority, State SCs and STs Development Authorities and

District SCs and STs Development Authorities. Out of the total plan

outlay of the Centre and of each State, before sectoral allocations are

made, an outlay equivalent to the population proportion of SCs and STs

should be placed at the disposal of the National and respective State

Authorities, as the corpus of SCP and TsP for formulation of plans in

accordance with the needs and priorities of SC & ST. For this, the

system as detailed in para 9.2 at pages 1409 to 1411 of Book-3, Volume-

II should be established. The schemes as illustrated in sub-para (9) of

para 9.2 at pages 1410-1411 of Book-3, Volume-II should also be taken

up on a massive scale. This will at one stroke remove the various

limitations and difficulties faced by the SCP and TSP and create a

powerful, integrated instrument of social transformation based on the

vision of economic liberation, educational equality and social dignity of

the SCs and STs. [Para 10.6.2]

(227) Land reforms involving distribution and allotment of lands from

different sources (i.e. Government lands not required for genuine public

use, Bhoodan lands, ceiling surplus lands, etc.) to the SCs and STs along

with supportive mechanism in the shape of supply of subsidised capital

and credit and extension be made, and development of these lands

through irrigation and other means be undertaken. In this context, the


165

measures recommended at (b) of sub-para (9) of para 9.2 at page 1410 of

Book-3, Volume-II and in para 14(i) to (vi) at pages 1416 to 1417 of

Book-3, Volume-II should be implemented. Similarly, with regard to

enforcement of the Minimum Wages Act for agricultural labour, the

methodology recommended at (c) of sub-para (9) of para 9.2 of page 1410

Book-3, Volume-II should be followed. Strong legal action is needed to

prevent alienation of lands belonging to the tribal communities and

effective prior rehabilitation of tribals before displacement due to

developmental projects. For this purpose, the measures listed in para

13.2 at page 1414 to 1415 of Book-3, Volume-II should be undertaken.

Additionally, the tribal communities have to be associated with the

management of forest resources, for not only their livelihoods, but also

for protecting their way of life and cultural identity which are

indissolubly linked to forests. For this purpose, action as recommended

in sub-paras (10) and (11) of para 13.2 at page 1416 of Book-3, Volume-

II should be taken. [Para 10.7.1]

(228) In the matter of harmonising the preservation of the land

ownership of STs, industrial and other development, action should be

taken as outlined in sub-paras (6), (8) and (9) of para 13.2 of pages 1415

to 1416 of Book-3, Volume-II. [Para 10.7.2]

(229) Special safeguards should be provided to protect the wholesome

traditions of the cultural heritage and of the intellectual property rights

of the tribal people. This is no less important for the tribal identity than

the effort to prevent alienation of land and land-related institutional

rights of tribal people. [Para 10.7.3]

(230) All areas governed by the Fifth Schedule to the Constitution should

be forthwith transferred to the Sixth Schedule extending the applicability of

the Sixth Schedule to tribal areas other than the North Eastern States to

which alone the Sixth Schedule now applies, and all tribal areas which are

neither in the Fifth Schedule nor in the Sixth Schedule should also be

brought forthwith under the Sixth Schedule. Special programmes of

training and orientation for elected representatives of the Sixth Schedule

bodies and related officials should be undertaken & conducted regularly

in order to secure full potential of local developmental and administrative

autonomy envisaged under the Sixth Schedule. [Para 10.7.4]

(231) The Government should step in firmly and clearly, if the gap is to

be bridged between private prejudices, in the name of ―efficiency‖ on the

one hand and the just aspirations of the SC, ST, BC including BC

minorities, and women. For this, the Government should take the

initiative along the lines suggested in para 11.3 at pages 1412 and 1413

of Book-3, Volume-II. [Para 10.7.5]


166

(232) Further, the Government should examine other economic and

activity sectors at every level of each such sector and see whether the

SCs and STs are adequately represented in each of them. If they are not,

remedial measures either through reservation or through other means

should be undertaken to see that they are adequately represented at

every level in every such sector. Similar action should also be taken with

regard to backward classes including BC minorities, especially More and

Most Backward Classes and women of all categories. This is possible, if

non-economic prejudices are excluded, without watering down the

genuine requirements of efficiency. [Para 10.7.6]

(233) Agriculturists and other traditional producing classes face certain

adverse effects of sudden and unprepared exposure to the regimes of

WTO, IPR, etc. In order to protect them from these adverse effects while

at the same time to secure the benefits of those regimes, a national

convention should be convened involving Ministers in charge of

Ministries connected with globalisation and Ministers in charge of

Agriculture and other sectors of traditional produce and authentic

representatives of the peasant organizations as well as organisations of

other traditional producing classes, to identify remedial Steps arrive at a

consensus about them and these should be implemented quickly. There

should be a continuing mechanism involving all these to continuously

monitor implementation and corrections and modifications required from

time to time. [Para 10.7.7]

(234) Agriculturists and many other traditional producing classes suffer

from the adverse effects of natural calamities like drought, cyclone,

floods, etc. A similar national convention should identify the measures

required to protect them from such adverse effects of natural calamities

including crop insurance, preparedness etc., arrive at a consensus about

these measures and institute a continuing machinery of continuous

monitoring and corrections and modifications. [Para 10.7.8]

(235) On the one hand, there should be an effective legal structure to

protect the SCs and STs against atrocities and discriminatory practices

based on untouchability and along with such structure and its efficient

functioning and on the other hand, there should also be attitudinal

change of a profound nature in the general society. [Para 10.8.1]

(236) With regard to legal structure, Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 needs to be strengthened and

its effective enforcement ensured. This include the establishment of

special courts exclusively to try offences under this Act, inclusion of

certain crimes in the list of atrocities, certain penal provisions where they

do not exist, appropriate plugging of certain loopholes and


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comprehensive rehabilitation of victims and so on. For this purpose, the

measures suggested in para 8.2.1, 8.2.2, 8.2.3, 8.3 and 8.4 (a) to (p) of

Book-3, Vol.II at pages 1401 to 1404 should be taken. [Para 10.8.2]

(237) Regarding untouchability which continues to be widely prevalent in

old classic forms as well as in new forms in line with modern

developments, multi-pronged measures covering human rights

education, moral education, building up of a strong democratic

movement against untouchability and effective punitive action under the

Protection of Civil Right Acts, 1955 (PCR Act) are required. In view of

this, the entire gamut of measures suggested in paras 8.6 to 8.8 at pages

1404 and 1405, Book-3, Vol.II should be taken. [Para 10.8.3]

(238) The National Science and Technology Commission referred to in

Chapter 6 should also promote measures for extending the umbrella of

modern science and technology and higher scientific and technological

research to cover SCs, STs and BCs, women and other poor sections of

the society, devise means by which they can also be introduced into this

field and potential talent among them identified and nurtured so that

they also are enabled to contribute to the advancement of higher

scientific and technological research in the country and so that there is

no feeling that they are shut out from this important area on account of

non-scientific prejudices. [Para 10.9]

(239) The Constitution of India contains distinct provisions for the

protection and promotion of the interests of Scheduled Castes and

Scheduled Tribes, Backward classes, women, minorities and other

weaker sections. It is necessary to strengthen these provisions by

amendments, etc. and certain other similar steps. Accordingly, the

amendments to the Constitution listed in para 15 at pages 1417 and 1418

of Book-3, Vol.II, covering articles 46, 335, 16, 15 and List III of the

Seventh Schedule should be carried out.[Para 10.10]

(240) As regards the minorities, the following shall be implemented:-

(a) Steps should be taken for improvement of educational

standards amongst the minority communities. Special programmes

should be drawn up after the widest consultation with the leaders of

minority communities including leaders of BCs, SCs and STs among

Minorities from academic, professional, business, and socio-political

spheres and from low-occupational spheres. Such programmes should be

generously funded. Only educational and cultural advancement will help

the cause of national integration as well as raise the capabilities of the

communities. This is the high road to national cohesion.

(b) At present the political representation of minority communities

in legislatures, especially Muslims, has fallen well below their proportion


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of population. The proportion of BCs among them is next to nil. This

can lead to a sense of alienation. It is recommended that in situations of

this kind, it is incumbent for political parties to build up leadership

potential in the minority communities, including BCs, SCs and STs

among them, for participation in political life. The role of the state for

strengthening the pluralism of Indian polity has to be emphasised.

(c) Backward classes belonging to religious minorities who have

been identified and included in the list of backward classes and who, in

fact, constitute the bulk of the population of religious minorities should

be taken up with special care along with their Hindu counterparts in the

developmental efforts for the backward classes. This should be on the

pattern of the approach to the development of Backward Classes

formulated by the Working Group for the Development and

Empowerment of Backward Classes in the Tenth Plan referred to

separately under Backward Classes.

(d) An effort needs to be made to carry out special recruitment of

persons belonging to the underrepresented minority communities in the

police forces of States, para military forces and armed forces.[10.11.2]

(241) In every State, the linguistic minorities should be provided the

facility of having instruction for their children at elementary stage of

education in their mother tongue. Numerous recommendations in this

behalf and other matters have been made by the Commissioner for

Linguistic Minorities in his successive Annual Reports regarding the

various problems faced by the linguistic minorities. The Government of

India in the Ministry of Social Justice and Empowerment and the

Ministry of Human Resources Development should collate all these

recommendations and see that substantive action is taken on each of

them. [Para 10.11.3]

(242) The denotified tribes/communities have been wrongly stigmatized

as crime prone and subjected to highhanded treatment as well as

exploitation by the representatives of law and order as well as by the

general society. Some of them are included in the list of Scheduled

Tribes and others are in the list of Scheduled Castes and list of backward

classes. The special approach to their development has been delineated

and emphasized in the Reports of the Working Groups for the

Development of Scheduled Tribes, Scheduled Castes and Backward

Classes in successive Plans and also in the Annual Reports of the

Commissioners for Scheduled Castes and Scheduled Tribes, National

Commission for Scheduled Castes and Scheduled Tribes and the

National Commission for Backward Classes. There are also special

reports available on de-notified tribes. Their recommendations have not


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received attention. The Ministry of Social Justice and Empowerment and

the Ministry of Tribal Welfare should collate all these materials and

recommendations contained in the reports of the working groups and the

reports of the National Commissions and other reports referred to and

strengthen the programmes for the economic development, educational

development, generation of employment opportunities, social liberation

and full rehabilitation of denotified tribes. Whatever has been said about

vimuktajatis also holds good for nomadic and semi-nomadic

tribes/communities. Similar action should be taken in respect of

nomadic and semi-nomadic tribes/communities as done in the case of

de-notified tribes or vimuktajatis. The continued plight of these groups

of communities distributed in the list of Scheduled Castes, Scheduled

Tribes and backward classes is an eloquent illustration of the failure of

the machinery for planning, financial resources allocation and budgeting

and administration in the country to seriously follow the mandate of the

Constitution including article 46. The setting up of an integrated net

work of National Scheduled Castes and Scheduled Tribes Development

Authority, etc. recommended in para 10.5.2 to 10.5.3 will provide a

structural mechanism to deal in a practical way with the vimuktajatis as

well as nomadic and semi-nomadic tribes/ communities within the frame

work of the SCP and TsP. Similarly the approach to the development of

backward classes referred to at para 10.14 contains the approach to deal

in a practical way with the Vimuktajatis and nomadic and semi-nomadic

tribes/communities who are in Backward Class list. [Para 10.12.1]

(243) The Commission also considered the representations made on

behalf of the De-notified and Nomadic Tribal Rights Action Group and

decided to forward them to the Ministry of Social Justice &

Empowerment with the suggestion that they may examine the same

preferably through a Commission. [Para 10.12.2]

(244) The Union legislation for agricultural workers, drafted as far back

as 1978-80, should be introduced and passed immediately. A realistic

scheme of credible implementation of minimum wages Acts with

particular attention to agricultural labours, relying to a suitable degree

on the district Collectors/Dy. Commissioners and district

superintendents of police, should be immediately put into action. For

this purpose the measures suggested in para 17.2 at page 1413 of Book

3 Vol.II should be followed. [Para 10.13.2]

(245) Despite prohibition of begar and other forms of forced labour by

the Constitution, the practice of bonded labour has not ended as it is

patronised by the most powerful sections in the rural areas. Child

labour too is widespread. In order to deal effectively with this problem in


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keeping with the mandate of the Constitution, the Commission

recommends that a fully empowered National Authority for the Liberation

and Rehabilitation of bonded labour, as recommended by the

Commission for Rural Labour in 1990-91, should be set up immediately

along with similar authorities at the State level. In addition,

simultaneous rehabilitation of released Bonded Labourers and education

for released bonded child labourers and other measures referred to in

para 19.2 at page 1414 of Book 3,Vol.II should be taken. [Para 10.14]

(246) The Government should immediately implement every one of the

recommendations of the Working Group on Employment of Backward

Classes in the Tenth Plan which covers all aspects and fields of their

development – Economic, Educational, social, employment, reservation,

etc. – taking in with particular care those backward classes who belong

to religious minorities along with their Hindu counterparts in a cohesive

manner. For example, some of the residential talent schools earmarked

for Backward Classes should be located in areas of concentration of

Muslim B.Cs. Further there should be residential talent schools for

backward classes as separately recommended for SCs and STs at the

rate of one each for boys and girls in each district, 75% being taken from

backward classes and 25% from other categories. The Government

should without any delay introduce reservation for backward classes in

seats in educational institutions since absence of promotion of their

education through reservation and other means when there is

reservation of employment is anomalous. [Para 10.15]

(247) Action in accordance with the suggestions made in para 16.2 at

page 1412 of Book 3 Vol.II, covering reservation, development, empower-

ment, health including malnutrition and maternal anaemia and

protection against violence should be taken.[Para 10.16]

(248) The problems relating to prostitution, child prostitutes and

children of prostitutes have been the subject of a landmark judgment of

the Supreme Court in Gaurav Jain's case of 9th July, 1997 and the

Report of Committee of Secretaries on Prostitution, Child Prostitutes and

children of Prostitutes set up in 1997 as explained in para 20.1 and 20.2

at pages 1414 to 1415 of Book 3 Vol.II. In respect of this area of problem,

the Government should take action according to the suggestion listed at

para 20.3 at page 1415 of Book 3 of Vol. II, covering implementation of

the judgement and the Secretaries‘ report, eliminating the Devadasi

system, provision of development and education and prevention of HIV /

AIDS. [Para 10.17]

**********


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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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II. Approach to Background Paper

The purpose of this paper is to provide background information on issues in our electoral

process and outline some electoral reform options that have been considered in the past,

in order to serve as a platform for a renewed national dialogue on electoral reforms.

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

IV. Criminalization of Politics

Most recent Committee on electoral reforms have almost universally acknowledged

criminalisation of our polity at both national and state levels and across party lines.

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 Vohra Committee Report on Criminalisation of Politics was constituted to identify

the extent of the politician-criminal nexus and recommend ways in which the menace can

be combated. In Chapter 4 of the report of the National Commission to Review the

Working of the Constitution, cites the Vohra report as follows: “The nexus between the

criminal gangs, police, bureaucracy and politicians has come out clearly in various parts

of the country” and that “some political leaders become the leaders of these gangs/armed

senas and over the years get themselves elected to local bodies, State assemblies, and

national parliament.” This point becomes self evident when one looks at the number of

elected representatives with pending criminal cases against them at all levels in our

federal system. A number of remedies have been proposed by the various committees on

the criminalization of politics in the country.


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4.1 Disclosure of criminal antecedents of candidates

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.

4.3 Negative or Neutral Voting

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

It is widely believed that in many cases successfully contesting an election costs a

significant amount of money that is often much greater than the prescribed limits.

A Consultation Paper to the National Commission to Review the Working of the

Constitution, 2001, noted that “the campaign expenditure by candidates is in the range of

about twenty to thirty times the legal limits”.

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:

5.1. Official limits on campaign expenditure

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

The National Commission to Review the Working of the Constitution, 2001,

recommended that the existing ceiling on election expenses for the various legislative

bodies should be suitably raised to a reasonable level reflecting increasing costs. The

ceiling is currently Ra 25 lakhs for a Lok Sabha seat and Rs 10 lakh for an Assembly

seat. In order to cope with rising expenditures over time, 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 well-wishers and any other

expenses incurred in any political activity on behalf of the candidate by an individual or

corporate entity.

A Consultation Paper to the National Commission to Review the Working of the

Constitution, 2001, entitled "Review of the Working of Political Parties Specially in

Relation to Elections and Reform Options" largely concurred with the above opinion but


178

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.

5.2 Disclosure audit of assets and liabilities of candidates

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

The National Commission to Review the Working of the Constitution recommended a

follow-up action to the declaration of assets and liabilities by candidates - that the

particulars of the assets and liabilities of both candidates and political parties should be

audited by a special authority created specifically under law for this purpose. Accounts of

candidates and parties should be monitored through a system of checking and cross-

checking through the income tax returns filed by candidates, parties, and their well

wishers. At the end of the election each candidate should submit an audited statement of

expenses under specific heads.

In 2004 the Election Commission recommended than an amendment be made to Form 26

of Conduct of Election Rules, 1961, to include disclosure of assets and liabilities by

candidates. To enforce complete compliance by candidates on Form 26, the Commission

recommended that Section125A be amended such that there is more stringent punishment

for concealing or providing wrong information on the form. The amendment would

provide for minimum two years imprisonment and removal of the alternative punishment

of assessing a fine upon the candidate.

5.3 Curbing the cost of campaigning

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.

5.4 State Funding of Elections

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 Report “Ethics in Governance” of the Second Administrative Reforms Commission

also recommended that “a system for partial state funding should be introduced to reduce

the scope of illegitimate and unnecessary funding of expenditure for elections.”


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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.

VI. Conduct and Better Management of Elections

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.

6.1 Irregularities in polling

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.

6.1.1 Importance of electoral rolls

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 National Commission to Review the Working of the Constitution recommended in

its 2001 report that an automated online database should be created by the Election

Commission. In such a system, each voter would be provided with a unique bar-coded ID

number, assigned for life. This bar-coded ID card and number could be verified at the

polling booth by a hand held device. The electoral rolls in this system could be prepared

at the panchayat or district level. Along with this, the Commission also recommended

that the task of electoral roll preparation should not be duplicated as it is now, possibly by

entrusting it to an outside agency under the supervision of the Election Commission. A

centralized, computerized system could provide for the easy public availability of the

electoral rolls as well.

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.

6.1.2 Rigging through muscle power and intimidation

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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6.2 Proliferation of candidates

There is a proliferation of candidates in Indian elections. According to the Election

Commission of India, “too many candidates in the election fray puts unnecessary and

avoidable stress on the management of elections and increases expenditure on account of

security, maintenance of law and order, and requires extra number of balloting units of

voting machines, etc”. It has been observed that a large number of candidates in the fray

are non-serious candidates, which according to the Law Commission of India, makes

elections “cumbersome, expensive and unmanageable – indeed farcical in some cases.”

The National Commission to Review the Working of the Constitution notes that out of the

1900 independent candidates who contested the general election of 1998, only six

actually won.

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.

6.3 Measures for Election Commission

The Election Commission of India has recommended a number of improvements in

electoral law to allow it to continue functioning in an effective and independent manner.

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.

6.7 Restrictions on opinion polls

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).

6.8 Prohibition of Campaign during the Last 48 Hours

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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6.9 Ban on transfer of officers likely to serve elections

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

The Election Commission had recommended in 1998 that Section 13 CC of the

Representation of the People Act, 1950, and Section 28A of the Representation of the

People Act, 1951 should be amended 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. The Commission has suggested that in the case of a general election

either to the House of the People or to State Legislative Assembly, the ban may come

into operation for the period of 6 months prior to date of expiry of the term of the House

concerned, and in case of premature dissolution, from date of dissolution of House.

6.10 False declaration in connection with elections to be an offence

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.

6.11 Punishment for electoral offences to be enhanced

Undue influence and bribery at elections are electoral offences under Sections 171B and

171C, respectively, of the IPC. These offences are non-cognizable offences, with

punishment provision of one year‟s imprisonment, or fine, or both. Under Section 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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6.12 Restoring cycle of biennial retirement in the Rajya Sabha/Legislative Councils

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.

6.13 Expenditure ceiling for election to Council Constituencies

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.

6.14 Misuse of religion for electoral gain by political parties

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.

6.15 Totalizer for counting of votes

Currently votes are tallied by individual EVMs at individual polling stations. This

exposes the trend of voting in a particular voting station, making the electorate of that

area vulnerable to backlash by candidates or elected officials in retribution.


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Recommendations

The Election Commission recommends an amendment be made to the Conduct of

Elections Rules to provide for the use of „totalizer‟ for counting of votes cast at more than

one polling station where EVMs are used, so that the trend of voting in individual polling

station areas does not get divulged and the electors may not be subjected to any

harassment or victimization on that account.

6.16 Re-examination of the provision of Teachers’ and Graduates’ Constituencies

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.

6.17 Victimization of officers drafted for election duties

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.

6.18 Disqualification for failure to lodge election expenses

Under Section 10A of the Representation of the People Act, 1951, the Election

Commission may disqualify a candidate for three years for failure to lodge the account of

election expenses as per the requirement of the law. Thus, the period of disqualification

may end by the time of the next general election to that House. Therefore, no effective

purpose is served by the disqualification (except that the person cannot contest in the odd

bye-election that may be held during the 3 year period).


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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.

VII. Regulating Political Parties

Proliferation of political parties is stated as a major concern by many previous

committees. Section 29A of the Representation of the People Act, 1951, allows for small

groups of people to form political parties by making only a simple declaration.

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.”

According to the Election Commission, a large number of non-serious parties create

excessive load on the electoral system. Of the more than 1100 parties registered with the

Election Commission in 2009, only about 360 actually contested the general election that

year. The Commission also states that part of the problem is that there is no specific

provision to de-register a party.

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

Election Commission proposes that an amendment be made to Section 29A of the

RPA, 1951, adding a clause “authorising the Election Commission to issue necessary

orders regulating registration and de-registration of political parties.”

The National Commission to Review the Working of the Constitution,

2001, recommended that “the Election Commission should progressively increase the

threshold criterion for eligibility for recognition so that the proliferation of smaller parties

is discouraged. Only parties or a pre-poll alliance of political parties registered as national

parties or alliances with the Election Commission be allotted a common symbol to

contest elections for the Lok Sabha. State parties may be allotted symbols to contest

elections for State Legislatures and the Council of States (Rajya Sabha).”

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”

VIII. Auditing of Finances of Political Parties

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.

In 2001 National Commission to Review the Working of the Constitution recommended

that “audited political party accounts like the accounts of a public limited company

should be published yearly with full disclosures under predetermined account heads”.

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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In order to further transparency in the funding of political parties, the Election

Commission recommends the following measures: (i) any receipt by a political party

either directly or through the executives or the party functionaries should be deposited in

the Bank Accounts of such parties, (ii) all payments by the political party exceeding

Rs.20,000/- to a person should be made by crossed account payee cheque and (iii) all

contributions or donations or gifts by any person to a party functionary other than those

by his/her relative(s) shall be deemed as receipts of the political party and it will be

accounted for by the political party.

IX. Adjudication of Election Disputes

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 Second Administrative Reforms Commission, in its report “Ethics in Governance”,

recommended in detail that:

“Special Election Tribunals should be constituted at the regional level under article

329B of the Constitution to ensure speedy disposal of election petitions and disputes

within a stipulated period of six months. Each tribunal should comprise a High Court

judge and a senior civil servant with at least 5 years experience in the conduct of

elections (not below the rank of an Additional Secretary to the Government of

India/Principal Secretary of a State Government). Its mandate should be to ensure that all

election petitions are decided within a period of six months as provided by law. The

Tribunals should normally be set up for a term of one year only, extendable for a period

of 6 months in exceptional circumstances.‟

X. Review of Anti-Defection Laws

In the report “Ethics in Governance” of the Second Administrative Reforms Commission,

it is noted that “Defection has long been a malaise of Indian political life. It represents

manipulation of the political system for furthering private interests, and has been a potent

source of political corruption.” The report further notes that “there is no doubt that

permitting defection in any form or context is a travesty of ethics in politics.”


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The Anti-Defection provisions of the Tenth Schedule of the Constitution, enacted in

1985, fixed a certain number above which group defections were permitted. The National

Committee to Review the Working of the Constitution noted that although individual

defections became rare after this, group defection were “permitted, promoted and amply

rewarded.”

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.

Currently the issue of disqualification of members of Parliament or a State Legislature is

decided by the Speaker or Chairman of the concerned House. Aside from those

concerning the Tenth Schedule all other matters of post-election disqualification are

decided by the President/Governor, on the advice of the Election Commission.

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 Election Commission and “Ethics in Governance” report of the Second

Administrative Reforms Commission also both recommended that the issue of

disqualification on grounds of defection should be decided by the President/Governor

concerned under the advice of the Election Commission, instead of relying on the

objectivity of the decision from the Speaker.

XI. Annexure: Update on Election Commission Recommendations

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:-

Sl.

No.

Proposal of the Election

Commission

Status/Remarks.

1. Affidavits to be Filed by

Candidates on Criminal

Antecedents, Assets, etc.

This relates to the merger of two affidavits

filed by a candidate one in terms of section

33A of the Representation of the People Act,

1951, read with rule 4A of the Conduct of

Election Rules, 1961(in Form 26) and another

in the format prescribed by the Commission

vide its order dated 27.3.2003, in pursuance of

the Hon‟ble Supreme Court‟s judgment dated

13.3.2003 in Civil Appeal No. 490 of 2002

(PUCL versus Union of India).

2. Need to Increase the Security

Deposit of Candidates

Enacted vide Representation of the People

(Amendment) Act, 2009 (Act 41 of 2009).

3. Criminalisation of Politics

This proposal relates to

disqualify any persons accused

of an offence punishable by

imprisonment for five years or

more, from contesting elections

even when trial is pending,

provided charges have been

framed against him by a

competent court.

The Government had requested the

Parliamentary Standing Committee to give its

recommendations on the proposal of the

Election Commission of India. The Committee

in its Eighteenth Report on the subject inter

alia disagreed with the aforesaid proposal as it

is a major departure from the law of the land

that a person is not guilty until he is convicted

by the highest court of the land. The

Committee, however, recommended that

proclaimed absconders under section 82 of the

CrPC be disqualified from contesting polls.

4. Restriction on the Number of

Seats from which One May

Contest

Proposal is to amend law to

provide that a person cannot

contest from more than one

constituency at a time or if

present provision is retained then

there should be a provision

which would mandate to deposit

a definite sum in case a person

get elected from both seats.

In the all party meeting held on 22.5.1998, it was

decided to retain the present provision of allowing

a person to contest from two constituencies of

same nature.

5. Exit Polls and Opinion Polls Enacted vide Representation of the People

(Amendment) Act, 2009 (Act 41/2009) putting

a restriction on publication and dissemination

of results of exit polls. Restriction of opinion

polls needs to be examined.

6. Prohibition of Surrogate

Advertisements in Print Media.

Section 127A may be suitably

amended, adding a new sub-

section (2A) to the effect that in

the case of any advertisements /

election matter for or against any

political party or candidate in

print media, during the election

Section127A deals publication of pamphlets,

posters, etc., but doesnot include advertisement

in newspapers. The said section can be amended

so as to include advertisement in print media also.

However, the matter of regulating advertisements

in the print media pertains to IB and Press Council

and proposal can be considered on the basis of

inputs from them.


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period, the name and address of

the publisher should be given

along with the matter /

advertisement. Sub-section (4)

should also be suitably amended

to include in its ambit the new

proposed sub-section.

7. Negative / Neutral Voting The Committee on Electoral Reforms (Dinesh

Goswami Committee) did not favour it and

was of the view that it does not serve any

purpose.

8. Appointment of Appellate

Authority in Districts against

Orders of Electoral Registration

Officers



9. Compulsory Maintenance of

Accounts by Political Parties and

Audit thereof.

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.

10. Government Sponsored

Advertisements.

The ECI 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.

The proposal requires further examination.

Advertisements on poverty alleviation and

health related schemes could be exempted.

Advertisements revealing information on

matters of urgent public interest could also be

exempted. Further, since advertisements could

be prohibited from carrying the name of any

political party or photographs of leaders and

Ministers.

11. Political Advertisements on

Television and Cable Network.

This relates to consider

amending the relevant

provisions of the Cable

Television Network (Regulation)

Rules, 1994 to provide for

suitable advertisement code and

monitoring mechanism.

The issue of advertisements on television and

cable networks, led to a lot of confusion during

the recent general election. The Cable Television

Network (Regulation) Rules, 1994, prohibit

advertisements of political nature.

The matter pertains to the Ministry of

Information and Broadcasting and that

Ministry is able to judge the feasibility of

evolving a suitable advertisement code and

monitoring mechanism for advertisement on

television and cable networks in consultation

of the Election Commission and Legislative


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Department.

12. Composition of ECI and

Constitutional Protection to all

ECs and Independent Secretariat

for the Commission.

It was decided to include it as a proposal for

regional and national consultation.

13. Expenses of Election

Commission to be Treated as

Charged.

The proposal to make the expenses of the

Election Commission of India „charged‟ was

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

Officers on the Eve of Elections

This is to amend section 13CC of the

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

Connection with Conduct of

Elections to be included in

Clause (7) of Section 123.



16. Anti-Defection Law

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.

No view has been taken.

17. Use of Common Electoral Rolls

at Elections Conducted by the

Election Commission and the

The matter has been examined and decided to

await the outcome of the discussion between

the ECI and State Election Commissions to


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State Election Commissions sort out the modalities in this regard.

18. Procedure for Disqualification of

Person Found Guilty of Corrupt

Practice.



19. Same Number of Proposers for

all Contesting Candidates

It was decided to include it as a proposal for

regional and national consultation.

20. Making of False Declaration in

Connection with Election to be

an Offence.

Making of any false statement or

declaration before the Election

Commission, Chief Electoral

Officer, District Election

Officer, Presiding Officer or any

authority appointed under the

Representation of the People

Act, 1951, in connection with

any electoral matter should be

made an electoral offence under

the said Act.

The various legal provisions required to curb

the willful furnishing of incorrect information

in electoral procedures to ensure free and fair

election are already there in the Election Laws.

Further, keeping in view a large population of

this country being illiterate, there would be

frequent instances of furnishing incorrect

information inadvertently or without any

malafide intention by the common man while

the process of preparation of electoral rolls,

etc. and hence, the proposal may create the

fear in the minds of people abstaining

themselves from the democratic process of the

country.

21. Rule Making Authority to be

Vested in Election Commission

Making authority under the

Representation of the People

Act, 1950 and Representation of

the People Act, 1951, should be

conferred on the Election

Commission, instead of on the

Central Government, who

should, however, be consulted

by the Election Commission

while framing any rule.

Rule making power has to be vested only with

the Government since rules are in the nature of

subordinate legislation, the making of it shall

be only with the Government which is

answerable to Parliament. Rules are required to

be laid before Parliament and can be modified

and nullified if the Houses of Parliament

resolve to do so. If rules were to be made by

the Election Commission then amendment or

modification by Parliament may lead to

controversy.

22. Registration and De-registration

of Political Parties -

Strengthening of Existing

Provisions

Under the existing section 29A

of the RPA, 1951, another clause

may be introduced authorising

the Election Commission to

issue necessary orders regulating

registration and de-registration

of political parties.

In view the growing number of political parties

registered with the Election Commission for

perpetuity availing all the facilities like, tax

exemption, political fund contributions, whereas

the number of political parties regularly contest

elections being limited to certain number of

registered political parties, it is worthwhile to

consider the proposal of the Election Commission.

In addition to the aforesaid 22 proposals the ECI has made, the Ministry of Law has

a certain other proposals on electoral reforms, which are as under:-

(1) Election Expenditure in respect

of the Teachers and Graduates

constituencies:-

Under section 77 and 78 of the R.P. Act, 1951 every

candidate in the election to the Lok Sabha and the

Legislative Assemblies of State/UTs is required to

maintain correct account of expenditure

incurred/authorized in connection with his election

and to lodge it with the DEO within the 30 days of

election, whereas rule 90 of the Conduct of Elections

Rules 1961 has prescribed a ceiling for expenditure

that can be incurred in connection with these


196

elections. However, there is no such provision under

election laws requiring maintaining or lodging the

account of election expenses or prescribing any

ceiling of expenditure in the case of elections to the

Council of States and the State Legislative Council.

The ECI is of the view that in the interest of free and

fair election, there is urgent need to bring the

elections to the Legislative Councils from the

Teachers and Graduates’ constituencies within the

ambit of section 77 and 78 of the RP Act, 1951 and

also prescribing a ceiling of expenditure that can be

incurred/ authorized in these elections.

(2)Amendment to the Conduct of

Election Rules, 1961 to provide for

use of Totaliser for counting of

Votes recorded in EVMs.

No view has been taken.

(3) Restoration of Cycle of Rajya

Sabha and Legislative Council:-

Under article 80 and 171 of the Constitution every

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

Commissioner (CEC) and other

Election Commissioners (EC) and

consequential matter:-

One of the Chief Election Commissioners has

requested the Government to have a collegium

consisting of the Prime Minister and Leader of

Opposition etc. who is empowered to make

recommendations for appointments of the CEC

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.

(PREPARED BY THE CORE-COMMITTEE ON ELECTORAL REFORMS)

LEGISLATIVE DEPARTMENT MINISTRY OF LAW AND JUSTICE GOVERNMENT OF INDIA *****************************


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Annexure P-4

PROPOSED ELECTORAL REFORMS

2016

ELECTION COMMISSION OF INDIA

FOREWORD

India's democratic setup is a paradigm for many countries in the world

due to its remarkable success over the past six decades. The heart of

India's democratic system witnesses regular elections with the

participation of the largest electorate in the world. In order to safeguard

the core values of fair and free elections in this dynamic scenario, it is

important to have a just and unbiased electoral process with a greater

citizen participation. Thus, in accordance to the responsibility bestowed

upon by the Constitution of India, the Election Commission of India has

always remained actively involved in finding out ways through which the

purity and integrity of the election process is preserved.

However, there are certain challenges and issues that electoral

system has faced over the years. Trust and confidence of citizens in

electoral system can be affected if these challenges remain unattended.

Thus, keeping in view these difficulties the Election Commission of India

after conducting extensive study and research recommends certain

changes that need to be taken up expeditiously to amend certain

provisions of law. Taking forward a step in this direction, the

Commission have made several electoral proposals to remove the glaring

lacunae in the law. Many of these proposals have been already put forth

by the Commission have remained unresolved. Some of the proposals

pertain to areas, which have not been taken up previously by the

Commission but arose due to the implementation of certain laws or on

the directions issued by the Supreme Court and the High Courts.

Commission considers it necessary to put all proposals on electoral

reforms in public domain for the benefit of people.

The Commission sincerely believes that these suggested reforms

will prove to be extremely useful in addressing the existing issues and

challenges and would go a long way in enhancing the quality of

democracy in India.

Dr. Nasim Zaidi

05 December, 2016 Chief Election Commissioner


198

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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CHAPTER – I : AMENDMENT TO THE CONSTITUTION OF INDIA

1. CONSTITUTIONAL PROTECTION FOR ALL MEMBERS OF THE

ELECTION COMMISSION OF INDIA

BACKGROUND

The Election Commission of India established in the year 1950 is a

permanent independent constitutional body vested with the powers of

superintendence, direction and control of the preparation of electoral

rolls for, and the conduct of, all Parliamentary and State elections and

elections to the office of the President and Vice President in accordance

to the Article 324 of the Constitution of India. Initially, the Commission

had only a Chief Election Commissioner.

On October 16, 1989 for the first time two additional

Commissioners were appointed but they had a very short tenure till

January 1, 1990. Later, on October 1, 1993 two additional Election

Commissioners were appointed. The concept of multi-member

Commission has been in operation since then, with decision making

power by majority vote. Presently, the Commission is a three member

body comprising of the Chief Election Commissioner (CEC) and two

Election Commissioners (ECs).

Under Clause (2) of Article 324, the Election Commission shall

consist of the Chief Election Commissioner and such number of other

Election Commissioners, if any, as the President may from to time and

the appointment of the Chief Election Commissioner and Election

Commissioners shall, subject to the provisions of any law made in that

behalf by Parliament, be made by the President.

Article 324(5) of the Constitution was incorporated to ensure the

independence of the Commission and free it from external, political

interference and thus expressly provides that the removal of the Chief

Election Commissioner from office shall be on ―like manner and on the

like grounds as a Judge of the Supreme Court‖. The Article 324(5) also

species that any other Election Commissioner or a Regional

Commissioner shall not be removed from office except on the

―recommendation of the Chief Election Commissioner.‖

The Goswami Committee in its Report on Electoral Reforms in

1990 recommended that the ―protection of salary and other allied

matters relating to the Chief Election Commissioner and the Election

Commissioners should be provided for in the Constitution itself on the

analogy of the provisions in respect of the Chief Justice and Judges of

the Supreme Court. Pending such Election measures being taken, a

parliamentary law should be enacted for achieving the object.‖


200

The Commission time and again in its various correspondence and

Reports has expressly opined that the current wording of Article 324(5) is

―inadequate‖ and requires an amendment to bring the removal

procedures of Election Commissioners on par with the CEC to provide

them with the ―same protection and safeguard[s]‖as the Chief Election

Commissioner.

Even the Supreme Court in 1995 in the case of T.N. Seshan, Chief

Election Commissioner of India vs. Union of India (UOI) and Ors. 1995

(4) SCALE 285 has held that that the CEC is not superior to the Election

Commissioners rather is at the same position as the other Election

Commissioners by stating:

―As pointed out earlier, the scheme of Article 324 clearly envisages

a multi-member body comprising the CEC and the ECs. The RCs may be

appointed to assist the Commission. If that be so the ECs cannot be put

on par with the RCs. As already pointed out, ECs form part of the

Election Commission unlike the RCs. Their role is, therefore, higher than

that of RCs. If they form part of the Commission it stands to reason to

hold that they must have a say in decision-making. If the CEC is

considered to be a superior in the sense that his word is final, he would

render the ECs non-functional or ornamental. Such an intention is

difficult to cull out from Article 324 nor can we attribute it to the

Constitution-makers. We must reject the argument that the ECs'

function is only to tender advise to the CEC.‖

REASONS FOR PROPOSED AMENDMENT

Clause (5) of Article 324 of the Constitution provides that the Chief

Election Commissioner shall not be removed from his office except in the

same manner and on the same grounds as a Judge of the Supreme

Court. The Chief Election Commissioner and the two Election

Commissioners enjoy the same decision making powers which is

suggestive of the fact that their powers are at par with each other.

However, Clause (5) of Article 324 of the Constitution does not provide

similar protection to the Election Commissioners and it merely says that

they cannot be removed from office except on the recommendation of the


The reason for giving protection to a Chief Election Commissioner

as enjoyed by a Supreme Court Judge in matters of removability from

office was in order to ensure the independence of Commission from

external pulls and pressure. However, the rationale behind not affording

similar protection to other Election Commissioners is not explicable. The

element of 'independence' sought to be achieved under the Constitution

is not exclusively for an individual alone but for the whole institution.


201

Thus, the independence of the Commission can only be strengthened if

the Election Commissioners are also provided with the same protection

as that of the Chief Election Commissioner.

Proposed amendment

The present constitutional guarantee is inadequate and requires

an amendment to provide the same protection and safeguard in the

matter of removability of Election Commissioners as is available to the


Law Commission's Recommendation

The Law Commission in its 255th Report (2015) endorsed the view

of the Commission and suggested the following changes to be brought in

Article 324:

In sub-section (5), delete the words ―the Election Commissioners

and‖ appearing after the words ―tenure of office of‖.

In the first proviso to sub-section (5), after the words ―Chief

Election Commissioner‖ appearing before ―shall not be removed‖,

add the following words, ―and any other Election Commissioner‖;

also, after the words ―conditions of service of the Chief Election

Commissioner‖, add the following words, ―and any other Election

Commissioner‖.

In the second proviso to sub-section (5), after the words ―provided

further that‖, delete the words ―any other Election Commissioner

or‖ occurring before ―a Regional Commissioner‖

1. BUDGET OF THE COMMISSION TO BE 'CHARGED'

Background

Presently, the administrative expenditure of the Commission is a voted

expenditure. However, the expenditure of other independent

constitutional bodies similar to the Commission i.e. the Supreme Court,

Comptroller & Auditor General, Union Public Service Commission are

charged/ non-votable expenditure.

The Commission sent a proposal that the expenditure of the

Commission should be charged on the Consolidated Fund of India. The

Government moved The Election Commission (Charging of Expenses on

the Consolidated Fund of India) Bill, 1994 in the 10th Lok Sabha with

the objective of providing for the salaries, allowances and pension

payable to the Chief Election Commissioner and other Election

Commissioners and the administrative expenses including salaries,

allowances and pension of the staff of the Election Commission to be

expenditure charged upon the Consolidated Fund of India. This Bill

lapsed without being passed, on the dissolution of that House in 1996.


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Reasons for proposed amendment

The Commission is of the opinion that a charged budget would be

a symbol of the independence of the Commission and will secure its

unconstrained functioning.

Proposed amendment: The Commission recommends that the Bill,

which lapsed with the dissolution of the 10th Lok Sabha in 1996, needs

reconsideration and the expenditure of the Commission should be

charged on the consolidated fund.

2. INDEPENDENT SECRETARIAT FOR THE COMMISSION

Background and Reasons for proposed amendment

The Election Commission as a constitutional body was as an

independent body to conduct free and fair elections in India. Currently,

the Election Commission of India has a separate secretariat of its own,

with the service conditions of its officers and staff being regulated by the

rules made by the President under Article 309 of the Constitution which

is similar to other departments and ministries of the Government of India

in connection with union matters. The officers at the higher level, such

as the level of Deputy Election Commissioner are normally appointed on

a tenure basis on deputation from the national civil services. The lower

level officers are permanent officers in the Election Commission of India

secretariat, from its own ranks.

The independence of the Commission can be strengthened further

if the Secretariat of the Election Commission consisting of officers and

staff at various levels are also insulated from the interference of the

Executive in the matters pertaining to their appointments, promotions,

etc. and all such functions are exclusively vested in the Election

Commission along the lines of the Secretariats of the Lok Sabha, and

Rajya Sabha, Registries of the Supreme Court and High Courts etc.

The Goswami Committee on Electoral Reforms in 1990 agreed that

regarding setting up of the secretariat of the Commission, Constitution

should be amended to provide for similar provisions as Article 98(2)

which relates to the Lok Sabha Secretariat and until such provision is

made, a law of Parliament should be enacted. The government in 1990

introduced the Constitution (Seventieth Amendment) Bill, 1990 in the

Rajya Sabha to give effect to the recommendation of the Goswami

Committee however this Bill was subsequently withdrawn due to the

changed composition of the Election Commission (becoming a multi-

member body) and the Bill was never re-introduced. The Election

Commission of India made this proposal of setting up an independent

Secretariat for the Commission in the year 1998 and reiterated the same

stand in the proposals of 2004.


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Thus, in order to fully insulate the Commission from political

pressure or executive interference, it is essential to set up an

independent Secretariat for the independent functioning of the Election

Commission.

Proposed amendment

The Commission proposes that it should have an independent

Secretariat along the lines of the Lok Sabha, Rajya Sabha and Registries

of the Supreme Court and High Courts. An independent Secretariat will

enable the Commission to choose and appoint officials considered

suitable by the Commission without any interference from the executive.


The Law Commission also in its 255th Report (2015) endorsed the

Commission's view and recommended the insertion of Article 324(2A)

after sub-section (2) of the Constitution along the following lines:

―(2A)(1): The Election Commission shall have a separate independent and

permanent secretarial staff. (2) The Election Commission may, by rules

prescribed by it, regulate the recruitment, and the conditions of service

of persons appointed, to its permanent secretarial staff.‖

CHAPTER – II : ELECTORAL ROLL MATTERS

1. SECTION 20(6) OF THE REPRESENTATION OF PEOPLE ACT, 1950

Background

Section 20 (6) of the Representation of the People Act, 1950 is as follows:

―(6) The wife of any such person as is referred to in sub-section (3) or

sub-section (4) shall if she be ordinarily residing with such person be

deemed to be ordinarily resident on in the constituency specified by such

person under subsection (5).‖


There is facility under section 20(6), allowed to a wife of a person,

residing with the person mentioned in subsection (3) & (4), for getting

herself registered in the electoral roll of the constituency in which the

person is enrolled as special voter/service voter. This particular facility is

not provided to the husband of female office holder who resides with his

wife where she holds the office. Whereas wife or a husband are covered

under Sub section (4) as office holders, both are not covered under Sub

section (6). This is problematic for not only for the husband, but also for

adult children of such parents. As soon as these children reach 18 years

of their age, they must be able to avail the facility of registration in their

home constituencies along with their parents.

Proposed amendment

The Commission proposes that sub- section (6) of section 20 of The

Representation of the People Act, 1950 be amended so as to extend the


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facility of registration in the native constituency under the said sub-

section for the husband of declared office holder and service voter also,

provided the husband is ordinarily residing with the female office holder/

service voter at her place of posting.

2. SECTION 20(8) OF THE REPRESENTATION OF PEOPLE ACT, 1950

Background

Section 20 (8) of The Representation of the People Act, 1950 is as follows:

―(8) In sub-sections (3) and (5) "service qualification" means—

(a) being a member of the armed forces of the Union; or

(b) being a member of a force to which the provisions of the Army Act,

1950 (46 of 1950), have been made applicable whether with or without

modifications; or

(c) being a member of an armed police force of a State, who is serving

outside that State; or

(d) being a person who is employed under the Government of India, in a

post outside India.‖

Registration of a voter in the electoral roll of the constituency he lives in

is a mandate of section 19 of The Representation of the People Act, 1950

whereby it is compulsory for the person to be an 'ordinarily resident'.

Section 20 provides for a list of meaning with respect to 'ordinarily

resident' in various circumstances whereby section 20(8) provides for

meaning of 'service qualification' under sub- section (3) & (5) specially

with respect to armed forces, forces to which the provisions of Army Act,

1950 apply, State police forces and an office of Government of India,

which is outside India.


Sub- section (8) (b) refers to the forces to which the provisions of Army

Act, 1950 apply and here is no mention of the other forces to which Air

force Act of 1950 or Navy Act of 1957 applies.

Section 2 of the Air Force Act, 1950 reads: ―2. Persons subject to this

Act. The following persons shall be subject to this Act wherever they may

be, namely: -

(a) officers and warrant officers of the Air Force;

(b) persons enrolled under this Act ;

(c) persons belonging to Regular Air Force Reserve or Air Defence Reserve

or the Auxiliary Air Force, in the circumstances specified in section 26 of

the Reserve and Auxiliary Air Forces Act, 1952 ;] (62 of 1952.)

(d) persons not otherwise subject to air force law, who on active service,

in camp, on the march, or at any frontier post specified by the Central

Government by notification in this behalf, are employed by, or are in the

service of, or are followers of, or accompany any portion of the Air Force.‖


205

Section 2 of the Navy Act of 1957 provides:

―2. Persons subject to naval law.

(1) The following persons shall be subject to naval law wherever they may

be, namely:-

(a) every person belonging to the Indian Navy during the time that he is

liable for service under this Act;

(b) every person belonging to the Indian Naval Reserve Forces when he is-

(i) on active service ; or (ii) in or on any property of the naval service

including naval establishments, ships and other vessels, aircraft,

vehicles and armories ; or (iii) called up for training or undergoing

training in pursuance of regulations made under this Act, until he is

duly released from his training ; or (iv) called up into actual service in the

Indian Navy in pursuance of regulations made under this Act, until he is

duly released there from; or (v) in uniform;

(c) members of the regular Army and the Air Force when embarked on

board any ship or aircraft of the Indian Navy, to such extent and subject

to such conditions as may be prescribed;

(d) every person not otherwise subject to naval law, who enters into an

engagement with the Central Government under section 6;

(e) every person belonging to any auxiliary forces raised under this Act, to

such extent and subject to such conditions as may be prescribed; and

(f) every person who, although he would not otherwise be subject to naval

law, is by any other Act or during active service by regulations made

under this Act in this behalf made subject to naval law, to such extent

and subject to such conditions as may be prescribed.‖

Proposed amendment

The Commission proposes to include the words ―Air Force Act, 1950 and

the Navy Act, 1957‖ apart from the aforesaid Army Act, 1950 under

section 20(8) (b) of The Representation of the People Act, 1950.

3. USE OF COMMON ELECTORAL ROLLS

Background

Article 324(1) of the Constitution of India empowers the Election

Commission to, inter alia, supervise, direct, and control the preparation

and revision of electoral rolls for all the elections to Parliament and State

Legislatures, which is done by the Commission by the virtue of powers

under The Representation of the People Act, 1951. Similarly, under

Articles 243K and 243ZA and the relevant State laws, the State Election

Commission supervises, directs, and controls the preparation and

revision of electoral rolls for elections to the local bodies. There is no

uniform law or procedure for State Election Commission to prepare these


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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.


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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Voting in person is not a viable option for the overseas electors as they

cannot be expected to travel to India for voting. A Committee appointed

by the Commission to consider alternative voting options for the overseas

electors recommended the facility of voting through proxy or voting

through postal ballot paper with one-way electronic transmission of the

postal ballot paper (from Returning Officer to elector) as alternative

voting options for the overseas electors.

Proposed amendment

Section 60 of The Representation of the People Act, 1951 should be

amended to provide overseas electors the alternative option of proxy

voting or postal ballot voting. The electronic transmission of postal ballot

can be provided by amendment of Rules as has been done in the case of

service voters.

5. SECTION 14(B) OF THE REPRESENTATION OF PEOPLE ACT, 1950

Background

Under section 14(b) of The Representation of the People Act, 1950, the

qualifying date for eligibility for enrolment in the electoral roll of a

particular year is 1st of January of that year. Thus a person who turns

18 after 1st January remains deprived of enrolment and becomes entitled

only when the roll is revised next year.

Section 14 (b) is as follows :

―(b) "qualifying date", in relation to the preparation or revision of every

electoral roll under this Part, means the 1st day of January of the year in

which it is so prepared or revised:] [Provided that "qualifying date", in

relation to the preparation or revision of every electoral roll under this

Part in the year 1989, shall be the 1st day of April, 1989.]‖


Having only one qualifying date means that a large number of young

persons who complete 18 years after 1st January would have to wait for

next year for enrolment and would not be able to participate in elections

held in the meanwhile. The Commission suggested that the law may be

amended so that a person can be enrolled in the roll the day he or she

turns 18. By such amendment, the principle of universal adult franchise

is also respected and no person is deprived from enrolment for a period

of one year.

Proposed amendment

The Commission on 04/11/2013 proposed to amend section 14(b) of The

Representation of the People Act, 1950 and change the limitation of

turning 18 on 1st January to turning 18 any day in the year. But the

Law Ministry considered this proposal to be unacceptable. Thereafter,


208

Commission proposed four dates in addition to 1st January, i.e. 1st

January, 1st April, 1st July and 1st October. In response, the Law

Ministry suggested two qualifying dates i.e. 1st January and 1st July; to

which the Commission agreed and requested the government to amend

section 14(b) accordingly.

CHAPTER – III : ELECTION MANAGEMENT ISSUES

1. MAKING OF ANY FALSE STATEMENT OR DECLARATION BEFORE

AUTHORITIES PUNISHABLE

Background

Section 31 of The Representation of the People Act, 1950 makes a person

who in connection with preparation, revision or correction of an electoral

roll or in connection with inclusion or exclusion of an electoral roll makes

a statement or declaration in writing which is false, be punishable with

imprisonment extending to one year or with ne or with both.

However, there is no parallel provision in The Representation of the

People Act, 1951, to penalise a person making a false declaration in

connection with conduct of elections.

Reason for proposed amendment

There would be several cases of false statements before election

authorities in connection with conduct of elections. In order to

discourage motivated false statements before the election authorities, it

would be useful to have a provision in The Representation of the People

Act, 1951, similar to section 31 of the 1950 Act.

Proposed amendment

The Commission proposes that making of any false statement or

declaration before the Election Commission, Chief Electoral Officer,

District Election Officer, Presiding Officer or any authority appointed

under The Representation of the People Act, 1951, in connection with

any electoral matter should be an electoral offence under the said Act,

along the lines of section 31 of The Representation of People Act, 1950.

2. PROPOSAL REGARDING FILING OF FALSE AFFIDAVIT

Background

Currently, a candidate to any National or State Assembly elections is

required to furnish an affidavit, in the shape of Form 26 appended to The

Conduct of Elections Rules, 1961, containing information regarding their

criminal antecedents, if any, their assets, liabilities, and educational

qualification. Section 125A of The Representation of the People Act, 1951

provides for the penalty for ling false affidavit. The offence is punishable

by up to 6 months, or with ne, or with both.


209


The Commission time and again has stressed on the importance of filing

of true information by the candidates standing for elections in their

affidavits. The filing of false affidavits in matters of election can have

extremely serious consequences as it affects the purity of elections. The

elector in order to make an informed choice has the right to know the

correct information of the candidates. This view was also taken in the

case of Krishnamoorthy v. Siva Kumar (2009) 3 CTC 446 pertaining to

panchayat elections where the Court held that failure to disclose

complete information may amount to undue influence, and that incorrect

or false information interferes with the free exercise of the electoral right

of the voter.

Filing of false declaration about the background of the candidate

undermines the very basic value of candidate disclosure, in turn affecting

the right of the electors to know the antecedents of candidate. Therefore,

it is necessary to enhance the punishment for filing false affidavit.

Proposed amendment

The Commission has proposed that the punishment under section 125A

should be increased to 2 years' imprisonment without the alternative

clause of fine, and also that the offence should be included in the list of

offences listed in sub-section (1) of section 8 which would attract

disqualification on conviction irrespective of the term if sentence.

The Commission also proposed that furnishing of false affidavit or

suspension of material information in the affidavit should also be

specified as ground for challenging the election under section 100 (1) of

The Representation of the People Act, 1951.

Under the section 36, the grounds for rejection of nomination

papers do not include the case of a candidate who fails to submit the

affidavit under section 33A in the prescribed manner. In order to remove

any doubt, it has been recommended that in clause (b) of sub-section (2)

of section 36, 'Section 33A' may also be inserted.

In order to provide effective deterrent against filing of false

affidavit, it is also necessary to include this offence in the list of 'corrupt

practices' under section 123 of The Representation of the People Act,

1951.


The Law Commission in its 244th Report on 'Electoral

Disqualifications' gave the following recommendations endorsing the view

of the Election Commission:

i. Introduce enhanced sentence of a minimum of two years

under section 125A.


210

ii. Include conviction under section 125A as a ground of

disqualification under section 8(1) of The Representation of

the People Act, 1951.

iii. Set up an independent method of verification of winners'

affidavits to check the incidence of false disclosures in a

speedy fashion.

iv. Include the offence of filing false affidavit as a corrupt

practice under section 123 of The Representation of the

People Act, 1951.

The Sections proposed by the Law Commission on this issue are:-

―8. Disqualification on conviction for certain offences. —(1) A person

convicted of an offence punishable under—

(a)…

*

*

*

(i) section 125 (offence of promoting enmity between classes in

connection with the election) or section 125A (penalty for filing false

affidavit, etc.) or section 135 (offence of removal of ballot papers from

polling stations) or section 135A (offence of booth capturing) of clause (a)

of subsection (2) of section 136 (offence of fraudulently defacing or

fraudulently destroying any nomination paper) of this Act;

*

*

*‖

―123. Corrupt practices.—The following shall be deemed to be corrupt

practices for the purposes of this Act:

(1)…

*

*

*

(4A) failure by a candidate to furnish information relating to sub-section

(1) of section 33A, or giving of false information which he knows or has

reason to believe to the false, or concealment of any information in the

nomination paper delivered under subsection (1) of section 33 or in the

affidavit delivered under sub-section (2) of section 33A‖.

3. SECTION 126 OF THE REPRESENTATION OF PEOPLE ACT, 1951

Background and Reason for proposed amendment

Under the criminal jurisprudence any person can set the law into motion

unless specially excluded by an express provision under a statute. In The

Representation of the People Act, 1951, section 32 clause (3) provides


211

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.


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


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.


212

4. RETIREMENT OF MEMBERS IN COUNCIL OF STATES AND

LEGISLATIVE COUNCIL

Background

Section 154 and section 156 provides for term of service of members of

the Council of States and State Legislative Councils respectively. The

term provided under both sections, other than a member chosen to ll a

casual vacancy, is six years. Both the sections provide that upon

consultation with the Council of States and State Legislative Councils,

the President and the Governor, respectively, after consultation with the

Election Commission, make by order such provision as they think t for

curtailing the term of office of some of the members then chosen in order

that, as nearly as may be, one-third of the members holding seats of

each class shall retire in every second year thereafter.


Biennial retirement of one third members in the Council of States and

Legislative Councils is a constitutional mandate. In some cases vacancies

of different retirement cycles have got clubbed with the result that the

requirement of the biennial retirement is not met. The Commission in its

letter dated 10/03/1981 recommended curtailment of the terms of then

existing members for restoring the retirement cycle, which was not

considered by Government as any curtailment in the terms of members

would infringe their right to hold the office for a full term of six years.

Proposed amendment

The Commission on 25/07/1991 and 11/06/2010 has proposed

amendments in sections 154 and 156 of The Representation of People

Act, 1951 and suggested dividing the seats in the Council of States and

State Legislative Councils into three categories and specifying the term

for each category in such a way that biennial retirement of 1/3rd of the

members would be ensured.

5. PROVIDING OPEN BALLOT SYSTEM IN CASE OF THE ELECTION TO

FILL SEAT/ SEATS IN THE STATE LEGISLATIVE COUNCILS

Background

The members of the Council of States are elected by the elected members

of Legislative Assemblies of the States and Union Territories. In case of

Legislative Councils of States where such Council exist, one third of the

members of the Legislative Council are elected by the members of the

Legislative Assembly of the State concerned. Section 59 of The

Representation of People Act, 1951 provides the manner of elections and

says at every election where a poll is taken, votes shall be given by ballot

in such manner as may be prescribed, and, save as expressly provided

by this Act, no votes shall be received by proxy. The proviso to this


213

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.


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


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.


214

In S.Subramaniam Balaji vs Government of TamilNadu & Others

(2013) 9 SCC 659, the case relating to distribution of free gifts by the

political parties (popularly known as 'freebies'), the Hon'ble Supreme

Court observed that ―although, the law is obvious that the promises in

the election manifesto cannot be construed as 'corrupt practice' under

section 123 of the Representation of People Act, reality cannot be ruled

out that distribution of freebies of any kind, undoubtedly, influences all

people. It shakes the root of free and fair elections to a large degree.‖


Over the period of time, especially in the recent years, money has played

a key role in influencing the 'decision making' at the polls. There have

been several instances of seizure of large amount of cash, liquor, gift

items etc. form the candidates and their agents during the elections.

In some cases, following large-scale instances of bribing of electors by

candidates and workers of political parties, the Commission, using its

plenary powers under Article 324 resorted to cancellation of the election

process.

Proposed amendment

On account of increasing incidents of misuse of money in elections, the

Commission is of the considered view that there should be a provision in

The Representation of the People Act, 1951 to deal with such cases.

Therefore, the commission proposes that on the lines of section 58A,

there should be a specific provision enabling the Commission to take

appropriate action including countermanding of election in the event of

incidents of bribery of electors in a constituency, if in the opinion of the

Commission such incidents are likely to vitiate the election.

The Commission has prepared a draft of the proposed provision on

the following lines:

Section 58B. Adjournment of poll or countermanding of elections

on the ground of bribery.-

(1) If at any election, bribery is likely to take place o has taken place in a

polling area or polling areas or at a place xed for the poll (hereafter in

this section referred to as polling area) which is likely to vitiate or has

vitiated the conduct of free and fair elections, the Returning Officer shall

forthwith report the matt to the Election Commission.

(2) The Election Commission may on the receipt of the report from the

Returning Officer under subsection (1) or otherwise, and after taking all

material circumstances into account,-

(a) Postpone the poll in the affected polling area or areas to such

later date as the Commission may deem appropriate in the facts

and circumstances of the case, appoint a fresh date, and afresh


215

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."


216


Transfer of election officials on the eve of elections can disturb the

election preparedness. Proposed amendment Section 13CC of the

Representation of the People Act, 1950 and Section 28A of the

Representation of the People Act, 1951 should be amended to provide a

ban on the transfer of officers referred to in these sections during a

period of 6 months before the expiry of the term of the House.


Background

Section 160(1)(a) of the Representation of the People Act, 1951 provides

that a state government may, in connection with an election, requisition

any premises that are needed or are likely to be needed for the purpose

of being used as a polling station or for the storage of ballot boxes after a

poll has been taken.

The Allahabad High Court in Maa Bhagwati Nirashrit Samaj Sewa

Sansthan v. Election Commission of India, 2014 (104) ALR 806 quashed

an order passed by the District Election Officer, Kanpur Nagar, under

section 160 for requisitioning a guest house for housing of paramilitary

forces for the elections. The Court held that:

―4. Consequently, it is clear that the power to requisition under

section 160(1)(a) of the Act covers 'any premises' which are needed or are

likely to be needed for the purpose of being used as a polling station or

for the storage of ballot boxes after a poll has been taken. Once

Parliament has specied the grounds for requisitioning, it is not open to

the Election Officer to requisition any premises for a purpose extraneous

to, or for a purpose other than that which is covered by Clause (a) of

section 160(1) of the Act."


The election process requires requisition of premises for purposes other

than polling stations and storage of ballot boxes, such as for providing

accommodation to employees, paramilitary forces and observers etc.

Proposed amendment

Section 160 of The Representation of the People Act, 1951 should be

amended to widen its scope such that requisition of premises for any

election should not be restricted to the purpose of setting of a polling

station or for storage of ballot boxes after a poll has been taken. Sub-

section (1) (a) should amended to read ―any premises that are needed or

are likely to be needed for any purpose related to conduct of election, or.‖

3. EMPOWERING THE DISTRICT ELECTION OFFICER TO REQUISITION

Background

Section 159(1) of The Representation of the People Act, 1951 states that:


217

"159. Staff of certain authorities to be made available for election

work- (1) The authorities specified in subsection (2) shall, when so

requested by a Regional Commissioner appointed under clause (4) of

article 324 or the Chief Electoral Officer of the State, make available to

any returning officer such staff as may be necessary for the performance

of any duties in connection with an election."


Section 26 of The Representation of the People Act, 1951 empowers

the District Election Officers to appoint Presiding Officers and Polling

Officers for polling stations falling in his district. Further, under section

20A of the 1951 Act, the District Election Officer is required to coordinate

and supervise all work in the District in connection with conduct of

elections. Therefore, for convenience, there should be express provisions

empowering the District Election Officers to requisition staff for conduct

of election under section 159 of the 1951 Act.

Proposed amendment

Section 159 of The Representation of the People Act, 1951 should

be amended to empower the District Election Officer also, apart from the

Chief Election Officer, to requisition of staff for election duties.

4. USE OF TOTALIZER FOR COUNTING OF VOTES

Background

EVM totalizer can count votes of multiple Electronic Voting Machines

(EVMs) simultaneously. This way the results of votes in a group of EVM

scan be taken without ascertaining the result in individual EVM

corresponding to polling booth. Totalizer is connected to EVMs via cable

and it can do sum of all votes recorded for each of the candidates in 14

EVMs simultaneously.


As per the present provisions in The Conduct of Elections Rules, 1961,

votes in the EVMs are to be counted polling station wise, which leads to

situations where voting pattern in various localities/pockets become

known to everyone. There is a view that this can result in victimization

and/or discrimination and intimidation of electors of particular localities.

This issue can be addressed by use of totalizer that can be used for

taking out the results of voting in a group of 14 EVMs without revealing

the votes in individual EVMs.

Proposed amendment

Provisions for counting of votes of a group of EVMs taken together using

Totaliser should be made in The Conduct of Elections Rules, 1961, and

Form 20 appended to the said Rules should be suitably amended so as to

suit the requirements of counting using Totaliser.


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CHAPTER- V : NOMINATION OF CANDIDATES

1. SECTION 33(7) OF THE REPRESENTATION OF PEOPLE ACT, 1951–

RESTRICTION ON NUMBER OF SEATS FROM WHICH ONE MAY CONTEST

Background

As per the law of India, as it stands today, a candidate is permitted to

contest an election from two different constituencies in a general election

or a group of bye-elections or biennial elections. Subsection (7) of section

33 of The Representation of the People Act, 1951, allows a person to

contest a general election or a group of bye-elections or biennial elections

from a maximum of two constituencies whereas section 70 of the 1951

Act, species that if a person is elected to more than one seat in either

House of Parliament or in the House or either House of the Legislature of

a State (some states have a Legislative Council or Vidhan Parishad as

well, along with the Vidhan Sabha), then he/she can only hold on to one

of the seats that he/she won in the election. Sub-section (7) was

introduced through a 1996 amendment, prior to which there was no bar

on the number of constituencies from which a candidate could contest.

ECI proposed amendment of section 33(7) in the year 2004 to

provide that a person cannot contest from more than one constituency at

a time. However, in case the existing provisions are to be retained, a

candidate contesting from two seats should bear the cost of the bye

election to the seat that the contestant decides to vacate in the event of

him/her winning both seats. The amount in such an event could be Rs.

5,00,000/-for State Assembly and Council Election and Rs. 10, 00,000/-

for election to the House of People (as proposed at that point of time).

In the year 2014, a PIL was filed before the Hon'ble Supreme

Court, by the 'Voter's Party' (a registered political party) challenging the

constitutional validity of sub-sections (6) and (7) of section 33 and 70 of

The Representation of the People Act, 1951. The petition is pending.


When a candidate contests from two seats, it is imperative that he has to

vacate one of the two seats should he win both. This, apart from the

consequent unavoidable financial burden on the public exchequer and

the manpower and other resources for holding bye- election against the

resultant vacancy, would be an injustice to the voters of the constituency

which the candidate is quitting from.

Proposed amendment

The Commission recommends that the law must be amended to provide

that a person cannot contest from more than one constituency at a time

for conduct and better management of elections.


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In case the provision needs to be retained, then there is a need for an

express provision in law requiring person who contests and wins election

from two seats, resulting in bye-elections from one of the two

constituencies, to deposit in the government account an appropriate

amount of money being an expenditure for holding the bye-election.

The recommendations made by the Election Commission of India

in 2004 as to the amount to be deposited in the government account for

being used as the expenditure for holding the bye elections has to be

increased from Rs. 5 lakhs and Rs. 10 lakhs to something more

appropriate for serving as deterrence to the candidates.


The Law Commission has agreed with the Commission's 2004

proposal that The Representation of the People Act, 1951 should be

amended to provide that a person cannot contest from more than one

seat at a time. The Goswami Committee Report in 1990 and the 170th

Law Commission Report in 1999, also contain recommendation for

restricting contest of one person to one seat. However, the Law

Commission has not endorsed the Commission's alternative proposal to

require winning candidates to deposit an appropriate amount of money

being the expenditure for conducting the elections. The Law Commission

gave the following recommendation in sub-section 7 of section 33:

In sub-clause (a), delete the words ―two Parliamentary

constituencies‖ after the words ―from more than‖ and insert the

words ―one Parliamentary constituency‖ instead.

In sub-clause (b), delete the words ―two Assembly constituencies‖

after ―from more than‖ and insert the words ―one Assembly

constituency‖ instead.

In sub-clause (c), delete the words ―two Council constituencies‖

after the words ―from more than‖ and insert the words ―one

Council constituency‖ instead.

At the end of sub-clause (d), delete the words ―two such seats‖ and

insert the words ―one such seat‖ instead.

In sub-clause (e), delete the words ―two such Parliamentary

constituencies‖ appearing after ―from more than‖ and insert the

words ―one such Parliament constituency‖ in its place.

In sub-clause (f), delete the words ―two such Assembly

constituencies‖ after ―from more than‖, and insert ―one such

Assembly constituency‖ in its place.

In sub-clause (g), delete the words ―two such seats‖ appearing after

―filling more than‖ and insert words ―one such seat‖ in its place.


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In sub-clause (h), delete the words ―two such Council

constituencies‖ after ―from more than‖ and add the word ―one such

Council constituency‖ in its place.

2. SECTION 33 OF THE REPRESENTATION OF THE PEOPLE ACT, 1951

– SAME NUMBER OF PROPOSER

Background

As per section 33 (1) of the RPA, 1951, the nomination of a candidate

shall not be deemed to be duly nominated for election from a

constituency unless the nomination paper is subscribed by one proposer

who should be an elector of the constituency in case of a candidate set

up by a recognized political party and ten in case of other candidates.


The provision as existing today, was amended in August, 1996. However,

the amended provision instead of being helpful to the recognized political

parties has resulted in disadvantage to them. In the case of candidate of

a recognized party, if there is any problem with the notice of nomination

given by the Party, and if the candidate has led nomination although he

may not be treated as candidate of the Party in the list of contesting

candidates, etc.

Proposed amendment

In order to remove confusions, it is proposed that the provisions of the

said section 33 (1) may be made uniform for all candidates and the

number of proposers may be fixed as (10) ten in all cases. It will not

cause any inconvenience to the recognized parties and, on the contrary

will be greatly beneficial to them.

3. DISQUALIFICATIONS UNDER CHAPTER III OF REPRESENTATION OF

THE PEOPLE ACT, 1951

Background

In the judgment dated 07/08/2015, the Hon'ble Delhi Court has directed

the Election Commission to consider the possibility, if any, of putting an

impediment on a defaulter of public dues contesting election in order to

ensure quick recovery of the said dues. In pursuance of the said

judgment, the Commission has recommended amending provisions for

disqualifications laid down in Chapter III of The Representation of the

People Act, 1951so as to provide for disqualification in the event of

default in clearing public dues.

Direction of the Delhi High Court

The High Court made the following observations in its judgment:

According to the report by India Today, the politicians and political

parties in occupation of government accommodation allotted to them

were in default of payment of electricity, water and telephone charges


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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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Certificate from the agency providing electricity, water and telephone to

the said accommodation.

I. The ECI to also within six months consider the possibility if any of

putting any impediment to a defaulter of public dues contesting election,

to ensure quick recovery of the said dues.‖

Proposed amendment

In pursuance of the second direction quoted above, the Commission has

recommended that the provisions for disqualification laid down in

Chapter III of The Representation of the People Act, 1951 must be

amended by inserting appropriate clause for disqualification on the

ground of pending public dues.

CHAPTER – VI : DECRIMINALIZATION OF POLITICS

1. DE-CRIMINALISATION OF POLITICS

Background

Section 8 of the RPA, 1951 deals with disqualification on conviction for

certain offences. Under this Section, disqualification arises only on

conviction and there is no disqualification prior to conviction even if a

person is facing several serious charges.

The Election Commission proposed in its set of proposals of 1998 and

2004 that Section 8 of the Representation of the People Act, 1951 should

be amended to disqualify those persons from contesting election who are

accused of an offence punishable by an imprisonment of 5 years or more

even when trial is pending, given that the Court has framed charges

against the person. To prevent misuse of the provision by the ruling

party, the Commission suggested a compromise whereas only cases led

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.

SOME IMPORTANT JUDGMENTS

In 2002, the Hon'ble Supreme Court gave a historic ruling in Union

of India (UOI) v. Association for Democratic Reforms and Anr. With

People's Union for Civil Liberties (PUCL) and Anr. v. Union of India (UOI)

and Anr. (2002) 5 SCC 294 that every candidate, contesting an election

to the Parliament, State Legislatures or Municipal Corporation, has to

declare their criminal records, financial records and educational

qualifications along with their nomination paper.

In 2005, the Supreme Court in Ramesh Dalal vs. Union of India

held that a sitting Member of Parliament (MP) or Member of State

Legislature (MLA) shall also be subject to disqualification from contesting

elections if he is convicted and sentenced to not less than 2 years of

imprisonment by a court of law.


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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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Recommendation by Law Commission

Expediting trials in relevant courts where a case is led against a sitting

MP/MLA and to conduct the trial on a day-to-day basis with an outer

limit of completing the trial in one year. If the trial cannot be completed

within the said time period or charge is not quashed in the said period,

the trial judge shall give reasons in writing to the relevant High Court.

Once the said period expires, two consequences may ensue: (i) The

person may be automatically disqualified at the end of the said time

period (ii) The right to vote, remuneration and perquisites of office shall

be suspended at the end of the said period up to the expiry of the House.

Retroactive application- from the date the proposed amendments

come into effect, all persons with criminal charges (punishable by more

than five years) pending on that date are liable to be disqualified subject

to certain safeguards.

The punishment for filing false affidavits under Section 125A be

increased to a minimum of two years, and that the alternate clause for

fine be removed.

Conviction under Section 125A should be made a ground for

disqualification under Section 8(1) of the RPA, 1951.

The filing of false affidavits should be made a corrupt practice

under Section 123 of the RPA.

2. MISUSE OF RELIGION FOR ELECTORAL GAIN

Background

Elections are the manifestations of popular consent in a democratic

society. History assents that it has significant repercussions on the

making of a nation's governance and the nature of its policies. The

framers of the Indian Constitution were concerned about the control that

religion might exercise over the selection of government. A lot of dialogue

and debate was made in the Constitutional assembly debates regarding

the inclusion of word ―secularism‖. The Forty-second Amendment of the

Constitution of India, officially known as The Constitution (Forty-second

amendment) Act, 1976 was in the following lines ―The democratic

institutions provided in the Constitution are basically sound and the

path for progress does not lie in denigrating any of these institutions.

However, there could be no denial that these institutions have been

subjected to considerable stresses and strains and that vested interests

have been trying to promote their selfish ends to the great detriment of

public good. It is, therefore, proposed to amend the Constitution to spell

out expressly the high ideals of socialism, secularism and the integrity of

the nation, to make the directive principles more comprehensive and give

them precedence over those fundamental rights which have been allowed


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to be relied upon to frustrate socio-economic reforms for Implementing

the directive principles...... In the Preamble to the Constitution,-(a) for

the words "SOVEREIGNDEMOCRATIC REPUBLIC" the words

"SOVEREIGNSOCIALIST SECULAR DEMOCRATIC REPUBLIC" shall be

substituted; and(b) for the words "unity of the Nation", the words "unity

and integrity of the Nation" shall be substituted.‖

An Amendment Bill, [Representation of the People (Second

Amendment) Bill, 1994] was introduced in the Loksabha to provide

provision(s) to question the acts misuse of religion by political parties

before the Hon'ble High Court. However the same lapsed in 1996 with

the dissolution of 10th Lok Sabha. The Commission has forwarded the

recommendation again on 2010.

Earlier Goswami Committee in its report in 1990 on Electoral Reforms

had suggested parallel recommendation, which read as follows: ―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 (RPAct 1951).‖

The above recommendations were included in the Representation

of the People (Amendment) Bill, 1990 introduced in the Rajya Sabha.

However, the said Bill was withdrawn by the Govt. in December, 1993,

stating the Govt. would come up with a revised Bill.

In the 255th report of the Law Commission on Electoral Reforms,

recommendations were made to maintain internal democracy in the

political parties, drawing a comparative study of electoral regulations in

Germany, Portugal and Spain.

Reason for the proposed amendment

The Ministry of Home affairs referred to the Commission the relevant part

of the Report of the Liberhans Ayodhya Commission of Inquiry, in 2010,

for action on some recommendations for action by the Election

Commission against the parties, which misuse religious sentiments.

The proposal was to initiate swift action against those persons who

attempt to misuse religious sentiments or making appeals to voters

through the mode of their piety by holding disguised religious rallies in

places of worship as political supplication, to strengthen the existing

provisions in the Codes of Conduct and other election related laws.

Under the existing law i.e. section 123(3) and (3A) of the

Representation of the People Act, 1951 appeal on grounds of religion,

race etc. And promotions of feelings of enmity between different classes

of religion constitute corrupt practice and the same can be questioned


226

only by way of an election petition. Further the same cannot be a subject

of enquiry before the Commission when the election is in progress.

Ironically these provisions will have application only during the period of

election and there is no provision to challenge the corrupt practice of the

candidate who lost the election.

Proposed amendment

The Commission proposed that for giving effect to the recommendations

in the Liberhan Commission Report, the law should be amended as was

proposed in the Bills of 1990 and 1994 referred to above.

3. MAKING BRIBERY IN ELECTIONS A COGNIZABLE OFFENCE

Background

The phenomenon of bribing of voters with money and essential

commodities and buying out local representatives has always plagued

Indian elections. Section 123(1) of The Representation of the People Act

1951 defines "Bribery" as any gift, offer or promise by a candidate or his

agent or any other person with the consent of a Candidate or his election

agent giving gratification, to any person whomsoever, with the object,

directly or indirectly of inducing—

(a) A person to stand or not to stand as, or to withdraw or not to

withdraw from being a candidate at an election,

(b) An elector to vote or refrain from voting at an election

(c) An elector for having voted or refrained from voting… etc.

Section 171B of IPC also describes Bribery broadly in the lines

that, if a person advances a gratification to any person with the object of

inducing him or any other person to exercise their electoral right or of

rewarding any person for having exercised any such right or accepts

either for himself or for any other person any gratification as a reward for

exercising any such right or for inducing or attempting to induce any

other person to exercise any such right; commits the offence of bribery.

Section 171C of IPC talks about undue influence at elections(1)

Whoever voluntarily interferes or attempts to interfere with the free

exercise of any electoral right commits the offence of undue influence at

an election by threatening any candidate or voter, or any person in whom

a candidate or voter is interested, with injury of any kind, or by inducing

a candidate or voter to believe that he or any person in whom he is

interested will become or will be rendered an object of Divine displeasure

or of spiritual censure.

In 2012 the Election Commission recommended to the Home

Ministry to amend the existing law to make bribery during elections (both

cash and kind) a cognizable offence, enabling police to arrest the

violators without a warrant and to enhance the punishment up to two


227

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.


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.


228

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


229

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.‖


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


231

levels of the party, reservation/representation of at least 30 percent of its

organizational positions at various levels and the same percentage of

party tickets for parliamentary and State legislature seats to women.

Failure to do so should invite the penalty of the party losing recognition.

4.30.6. The authority for registration, de-registration, recognition

and de-recognition of parties and for appointing the body of auditors

should be the Election Commission whose decisions should be final

subject to review by the Supreme Court on points of law.

4.32. The rules and by-laws of the parties seeking registration

should include provisions for:

I. a declaration of adherence to democratic values and norms of

the Constitution in their inner party organizations,

ii. a declaration to shun violence for political gains,

iii. a declaration not to resort to Casteism and communalism for

political mobilization, but to adhere to the principles of secularism in the

achievement of their objectives,

iv. a provision for party conventions to nominate and select

candidates for political offices at the grass root and State levels,

v. a code of conduct (which each political party should evolve for

itself), vi. some institutional mechanism for planning, thinking and

research on crucial socioeconomic issues facing the nation and

educational cells for socializing their party cadres and preparing them for

responsibilities of governance,

vii. 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.‖

2. TAX RELIEF FOR POLITICAL PARTIES

Background

Section 13A of the Income-tax Act, 1961 confers tax-exemption to

political parties for income from house property, income by way of

voluntary contributions, income from capital gains and income from

other sources. In other words, only income under the head salaries and

income from business or profession are chargeable to tax in the hands of

political parties in India. Political parties registered with the Election

Commission of India are exempt from paying Income Tax under section

13A of Income Tax Act, 1961 as long as the political parties comply with

the proviso to section 13A, that is, if they file their Income Tax Returns

every Assessment Year along with their audited accounts, Income/

Expenditure details and balance sheet.

In 2003, sections 29B and 29C were inserted in The

Representation of the People Act, 1951 making provisions regarding


232

receiving of donations/contributions by political parties from individuals

and companies (other than govt. companies). Section 29C provides that

for contribution in excess of Rs. 20,000/- in a year, the

treasurer/authorised person of the party shall prepare a report of such

contributions. The report is required to be submitted on an annual basis

to the Commission before the due date for furnishing the return of its

income, and failure to do so would render the party ineligible for any tax

relief under the Income Tax Act notwithstanding any provisions therein.


There could be cases where political parties could be formed merely for

availing of provisions of income tax exemption if the facility, that are at

the expense of the public exchequer, is provided to all political parties.

Proposed Reform:

Provisions for exemption of Income Tax should be made applicable only

to political parties that contest elections and win seat(s) in the

Parliament or Legislative Assemblies.

3. COMPULSORY MAINTENANCE OF ACCOUNTS BY POLITICAL PARTIES

Background

Section 13A(a) of the Income Tax Act, 1961 requires the political parties

to keep and maintain ―such books of account and other documents as

would enable the Assessing Officer to properly deduce its income

therefrom.‖ Section 13A(a) of the Income Tax Act, 1961 states that the

accounts of such political party must be audited by an accountant as

defined in the Explanation below sub-section (2) of section 288.

Section 29C of The Representation of the People Act, 1951 states

that the treasurer of a political party or any other person authorized by

the political party in its behalf shall, in each financial year, prepare a

report declaring the donations received from persons or non-government

companies in that financial year. Section 29C (3) states that the said

report must be submitted before the due date for furnishing a return of

its income of that financial year under section 139 of the Income Tax Act,

1961 to the Election Commission. Section 29C (4) provides that tax

exemption under section 13A of the Income Tax Act will not be availed to

a political party which fails to submit the said report.

The ―Guidelines and Application Format for Registration of Political

Parties under section 29A of The Representation of the People Act‖ by the

Election Commission of India requires the parties seeking registration to

maintain their accounts on accrual system and to be annually audited by

Auditor on the panel of Comptroller and Auditor General of India. It

further states that the audited annual accounts should be submitted to

the Election Commission within 6 months of the end of financial year.


233


Political parties are major stakeholders in a democracy and they should

be accountable to the public. This will ensure transparency and empower

people to make informed decisions about electing their representatives.

Proposed Reform

Sections 29C, 29D, 29E, as recommended by the Law Commission in

Report 255, should be inserted in the Representation of People Act, 1951.

Recommendation by the Law Commission


(12.03.2015) endorsing the view of the Election Commission stated that:

―5. Section 29C of the RPA has to be deleted. In its place, a new section

29C has to be inserted mandating political parties to maintain audited

accounts, along the line of the 170th Report's recommended section 78A:

―29C. Maintenance, audit, publication of accounts by political parties

(1) Each recognized political party shall maintain accounts clearly and

fully disclosing all the amounts received by it and clearly and fully

disclosing the expenditure incurred by it. The account shall be

maintained according to the financial year. Within six months of the

close of each financial year, each recognized political party shall submit

to the Election Commission, its accounts, duly audited by a qualified and

practicing chartered accountant from a panel of such accountants

maintained for the purpose by the Comptroller and Auditor General.

(2) The Election Commission shall make publicly available, on its

website, the audited accounts submitted by all political parties under

sub-section (1).

(3) The Election Commission shall also keep these accounts on le for

three years after their submission and shall make them available for

public inspection on the payment of a prescribed fee.‖

6. The existing section 29C of the RPA has to be modified and recast as

section 29D to first, include aggregate contributions from a single donor

amounting to Rs. 20,000 within its scope; second, require parties to

disclose the names, addresses and PAN card numbers (if applicable) of

donors along with the amount of each donations; third, require parties to

disclose such particulars even for contributions less than Rs. 20,000 if

such contributions exceed Rs. 20 crore of the party's total contributions

or twenty per cent of total contributions, whichever is lesser.

Consequential amendments will need to be made to the Election Rules

and the IT Act. The proposed section 29D reads as:

―29D. Declaration of contribution received by the political parties.—


234

(1) The treasurer of a political party or any other person authorized by

the political party in this behalf shall, in each financial year, prepare a

report in respect of the following, namely: —

(a) the contribution in excess of twenty thousand rupees, including an

aggregate of contributions in excess of twenty thousand rupees, received

by such political party from any person in that financial year;

(b) the contribution in excess of twenty thousand rupees, including an

aggregate of contributions in excess of twenty thousand rupees received

by such political party from any company, other than a Government

company, in that financial year.

(2) Notwithstanding anything contained in sub-section (1), the treasurer

of a political party or any other person authorized by the political party

in this behalf shall, in the report referred to in sub-section (1), disclose

the particulars of such contributions received from a person or company,

other than a Government company, even if the contributions are below

twenty thousand rupees, in case such contributions exceeds twenty crore

rupees, or twenty per cent of total contributions, whichever is lesser, as

received by the political party in that financial year.

Illustration: A political party, 'P', receives a total of hundred crore rupees,

in cash or cheque, in a financial year. Out of this amount, fifty crore

rupees are received from undisclosed sources, by way of contributions

less than twenty thousand rupees (in cash or multiple cheques). P shall

be liable to disclose the particulars of all donors beyond twenty crores,

even if they have contributed less than twenty thousand rupees each.

(3) The report under sub-section (1) shall be in such form as may be

prescribed.

(4) The report for a financial year under sub-section (1) shall be

submitted by the treasurer of a political party or any other person

authorized by the political party in this behalf before the due date for

furnishing a return of its income of that financial year under section 139

of the Income-tax Act, 1961 (43 of 1961), to the Election Commission.

Explanation: For the avoidance of doubt, it is hereby clarified that the

term ―particulars‖ mentioned in this section shall include the amount

donated; the names and addresses, and PAN card number if applicable,

of such person or company referred to in this section.‖

7. A new section 29E to be inserted in the RPA requiring the ECI to make

publicly available, on its website, all the contribution reports submitted

by all political parties under section 29D. Section 29E shall read as:

―29E. Disclosure of contribution reports submitted by political parties.

(1) Election Commission shall make publicly available, on its website, the

contribution reports submitted by all political parties under section 29D.


235

(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.


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.


236

5. FORM 24A UNDER RULE 85B OF THE CONDUCT OF ELECTIONS

RULES, 1961

Background

Rule 85B of The Conduct of Elections Rules, 1961 provides:

―85B. Form of contributions report: The report for a financial year under

sub-section (1) of section 29C shall be submitted in form 24A by the

treasurer of a political party or any other person authorized by the

political party in this behalf, before the due date for furnishing a return

of its income of that financial year under section 139 of the Income tax

Act, 1961 (43 of 1961), to the Election Commission.‖


The present Form 24A does not incorporate the contributions amounting

to a sum below Rs. 20,000/-. Form 24A needs to be amended by

including a column for mentioning the total contributions received is

amounts less than Rs. 20,000/-. This will be in interest of transparency.

Proposed amendment

Form 24A should be amended for including the clause as mentioned

above. Proposed new Form 24A is enclosed.

FORM 24A

(Under Rule 85B of The Conduct of Elections Rules, 1961)

[This form should be led with the Election Commission before the due

date for furnishing a return of the Political Party's income of the

concerned financial year under section 139 of the Income-tax Act, 1961

(43 of 1961) and a certificate to this effect should be attached with the

Income-tax return to claim exemption under the Income-tax Act, 1961

(43 of 1961).]

PART-A

1. Name of Political Party

2. Status of the Political Party (recognized/unrecognized)

3. Address of the headquarters of the Political Party

4. Date of registration of Political Party with Election Commission

5. Permanent Account Number (PAN)

6. Income-tax Ward/Circle where return of the political party is led

7. Financial year for which contribution report is submitted

8. Details of contribution receipts is produced below

1. Total Contribution received from all sources permissible under

section 29B of the RPA

2. Out of (1), total contribution received in excess of Rs. 20,000/-

from a person of company

3. Out of (1), total contribution received below Rs. 20,000/- from a

person or company


237

9. Where the contributor is a company, the conditions laid down under

section 182 of the Companies Act, 2013 (18 of 2013) has been complied

with by each company and a certificate to that effect has been obtained

from each company and annexed as per enclosed list of such companies.

10. Where the contributor is an electoral trust, the conditions laid

down under section 13B of the Income Tax Act, 1961 has been complied

with by each electoral trust and a certificate to that effect has been

obtained from each electoral trust and annexed as per enclosed list of

such trusts.

11. Details of the contributions received in excess of Rupees twenty

thousand, from a person or a company under section 29C of the

Representation of People Act (1951), during the Financial Year 20____ to

20___ are as under:

Name of person /company:

Complete address:

PAN (If any and income tax, ward/circle

Amount of contribution (in rupees)

Date of receipt

Mode of contribution (Cash/Cheque/DD/NEFT)

Total Contribution in Cash

Total Contribution through Cheque/DD/NEFT

Note:

a) Where a person or company has made contributions on more than one

occasion, entries of each contribution should be made separately.

b) Where a person or company has made contributions on more than one

occasion and the sum total of contribution exceeds Rs. 20,000/- in the

financial year under reference, details of such contribution should be

given separately in the format given under clause 11 of this Form, even if

individual contribution was less than Rs. 20,000/-.

c) Where a person or company has made contributions on more than one

occasion and the sum total of contribution is below Rs. 20,000/- in the

financial year under reference, details of such contribution should be

given separately in the format given under clause 10 of this Form.

PART C

Verification

I, _____________________________________(Full Name in BLOCK LETTERS),

son/daughter of _________________________________solemnly declare that:

a) No contribution has been received directly or indirectly from any

foreign source as defined under clause (e) of section 2 of the Foreign

Contribution (Regulation) Act, 1976 (49 of 1976);


238

b) No contribution has been received from a government company or

local authority or artificial juridical person wholly or partly funded by the

government, as prohibited under section 29B of the Representation of

People Act, 1951;

c) The figures shown in Item 7 of Part A are as per the audited annual

accounts of the political party for the financial year under reference;

d) The information given in this report is correct, complete and truly

states, to the best of my knowledge. I, further declare that I am verifying

this report in my capacity as __________________________________on behalf

of the political party named above and I am competent to do so.

(Signature of the Treasurer/ Authorized person)

Name: ________________________________

Designation: _________________________

Date: ___/____/______

Place: ____________

Form 24A with all enclosures and completely filled with all details should

be submitted in a soft copy on a CD readable in scanned and pdf format.

Form 24A should be duly lled and enclosed with the following:

1. Certificates under Section 182 of the Companies Act, 2013 from each

company making contribution to the political party and the list of such

companies.

2. Certificates from each electoral trust making contribution to political

party and approval order of CBDT along with the list of electoral trusts.

Notes:

1. If any political party has not raised any contribution in excess of Rs.

20,000/- during the financial year under reference, every such party is

also required to le NIL report.

2. If the report in Form 24A is not led by any political party for any

financial year before its due date of filing of the Annual Income Tax

Return under section 139 of Income Tax Act (1961), the party shall not

be entitled to any tax relief under that Act, as laid down in section 29C of

the Representation of People Act, 1951.

6. PROHIBITION ON ANONYMOUS DONATIONS

Background

There is no constitutional or statutory prohibition on receipt of

anonymous donations by political parties in India. But there is an

indirect partial ban on anonymous donations through the requirement of

declaration of donations under section 29C of The Representation of the

People Act, 1951.


239

Reason for Proposed Amendment

Although section 29C of The Representation of the People Act, 1951

requires the political parties to declare their donations, however such

declaration is mandated only for contributions above Rs 20,000.

Proposed amendment

Anonymous contributions above or equal to the amount of Rupees two

thousand should be prohibited.

Recommendations by the Law Commission

Law Commission report on Electoral Reforms, Report-255 (12.03.2015):

―Finally, separate provisions should be inserted, along the lines of the

comparative practice discussed above, requiring: (a) All parties to submit

the names and addresses of all their donors (regardless of the amounts

or source of funding) for contributions greater than Rs. 20,000 through a

new section 29D, RPA. A maximum of up to Rs. 20 crore or 20% of the

party's entire collection, whichever is lower, can be anonymous;‖

7. SALE OF COUPONS

Background

Coupons are one of the ways devised by the political parties for collecting

donations and hence are printed by the party itself. There is no cap or

limit as to how many coupons can be printed or the total quantum (that

is the total amount or worth of coupons).

The Supreme Court in Common Cause A Registered Society v. Union of

India and others, (1996) 2 SCC 752 held as under:

―1. That the political parties are under a statutory obligation to le return

of income in respect of each assessment year in accordance with the

provisions of the IT Act. The political parties referred to by us in the

judgment, who have not been filing returns of income for several years,

have, prima facie, violated the statutory provisions of the IT act as

indicated by us in the judgment.

2. IT authorities have been wholly remiss in the performance of their

statutory duties under law. The said authorities have for a long period

failed to take appropriate action against the defaulter political parties.

3. The Secretary, Ministry of Finance, Department of Revenue,

Government of India, shall have an investigation/inquiry conducted

against each of the defaulter political parties and initiate necessary

action in accordance with law including penal action under s. 276CCof

the IT Act.

4. The Secretary, Ministry of Finance, Department of Revenue,

Government of India, shall appoint an inquiring body to find out why and

in what circumstances the mandatory provisions of the IT act regarding

filing of return of income by the political parties were not enforced. Any


240

officer/officers found responsible and remiss in the inquiry be suitably

dealt with in accordance with the rules.

5. A political party which is not maintaining audited and authenticated

accounts and has not led the return of income for the relevant period,

cannot, ordinarily, be permitted to say that it has incurred or authorised

expenditure in connection with the election of its candidates in terms of

Expln. 1 to s. 77 of the RP Act.‖

Reason for Amendment

Currently, the details of donors is not required for coupons with small

amounts such as for Rs. 10 or 20. These smaller sums aggregate into a

bigger amount and hence, they need to be accounted for, to ensure

transparency.

Proposed amendment

The political parties should be mandated to resister details of donors for

coupons of all amounts on the basis of Supreme Court's decision in

Common Cause A Registered Society v. UOI & others, (1996) 2 SCC 752.

The Institute of Chartered Accountants of India made certain

recommendations, upon Election Commission's request, in February

2010 under its ―Guidance Note on Accounting & Auditing of Political

Parties‖ for improving the system of accounting followed by political

parties in India. One such recommendation relates to the coupons:

Schedule 13 of the Guidance Note states that collection from issuance of

coupons/ sale of publications should be classified and disclosed.

8. MAINTENANCE OF SEPARATE BANK ACCOUNTS BY EACH

CONTESTING CANDIDATE FOR POLL EXPENSES

Background

Section 77 of the Representation of People Act, 1951

―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.‖

The Supreme Court in the case of Shri Kanwar Lal Gupta v. Amar Nath

Chawla and Ors., (1975) 3 SCC 646 held that:

―11. Now, if a candidate were to be subject to the limitation of the

ceiling, but the political party sponsoring him or his friends and

supporters were to be free to spend as much as they like in connection

with his election, the object of imposing the ceiling would be completely

frustrated and the beneficent provision enacted in the interest of purity

and genuineness of the democratic process would be wholly emasculated


241

(emphasis added). The mischief sought to be remedied and the evil

sought to be suppressed would enter the political arena with redoubled

force and vitiate the political life of the country. The great democratic

ideal of social, economic and political justice and equality of status and

opportunity enshrined in the Preamble of our Constitution would remain

merely a distant dream eluding our grasp. The legislators could never

have intended that what the individual candidate cannot do, the political

party sponsoring him or his friends and supporters should be free to do.

That is why the legislature wisely interdicted not only the incurring but

also the authorizing of excessive expenditure by a candidate. When the

political party sponsoring a candidate incurs expenditure in connection

with his election, as distinguished from expenditure on general party

propaganda, and the candidate knowingly takes advantage of it or

participates in the programme or activity or fails to disavow the

expenditure or consents to it or acquiesces in it, it would be reasonable

to infer, save in special circumstances, that he impliedly authorized the

political party to incur such expenditure and he cannot escape the rigour

of the ceiling by saying that he has not incurred the expenditure, but his

political party has done so. A party candidate does not stand apart from

his political party and if the political party does not want the candidate

to incur the disqualification, it must exercise control over the

expenditure which may be incurred by it directly to promote the poll

prospects of the candidate (emphasis added). The same proposition must

also hold good in case of expenditure incurred by friends and supporters

directly in connection with the election of the candidate. This is the only

reasonable interpretation of the provision which would carry out its

object and intendment and suppress the mischief and advance the

remedy by purifying our election process and ridding it of the pernicious

and baneful influence of big money. This is in fact what the law in

England has achieved. There, every person, on pain of criminal penalty,

is required to obtain authority from the candidate before incurring any

political expenditure on his behalf. The candidate is given complete

discretion in authorizing expenditure up to his limit. If expenditure made

with the knowledge and approval of the candidate exceeds the limit or if

the candidate makes a false report of the expenditure after the election,

he is subject not only to criminal penalties, but also to having his

election voided. It may be contended that this would considerably inhibit

the electoral campaign of political parties. But we do not think so. In the

first place, a political party is free to incur any expenditure it likes on its

general party propaganda though, of course, in this area also some

limitative ceiling is eminently desirable coupled with filing of return of


242

expenses and an independent machinery to investigate and take action.

It is only where expenditure is incurred which can be identified with the

election of a given candidate that it would be liable to be added to the

expenditure of that candidate as being impliedly authorized by him

(emphasis added).‖

Law Commission report on Electoral Reforms, Report 255 (12.03.2015):

―2.20.3 Thus, the Court believed that the object of imposing individual

expenditure limits would be frustrated if parties or other supporters were

free to spend without any limits. Nevertheless, the RPA was amended in

1974 to nullify the effect of the above judgment by inserting an

explanation to Section 77(1) to the effect that any third party expenditure

in connection with a candidate's election shall not be deemed to be

expenditure incurred or authorized by a candidate.‖

Explanation 1, inserted vide the Representation of People (Amendment)

Act, 1974 read as follows:

―Explanation 1. - Notwithstanding any judgment, order or decision of any

court to the contrary, any expenditure incurred or authorized in

connection with the election of a candidate by a political party or by any

other association or body of persons or by any individual (other than the

candidate or his election agent) shall not be deemed to be, and shall not

ever be deemed to have been, expenditure in connection with the election

incurred or authorized by the candidate or by his election agent for the

purposes of this sub-section.‖

Law Commission report on Electoral Reforms, Report 255 (12.03.2015):

―2.20.4 The constitutionality of the 1974 amendment was challenged in

P. NallaThampyTerah v Union of India, (1985) Supp. SCC 189 on the

grounds that it sanctioned discrimination between candidates and

parties based on money power, and hence contravened Article 14.

Rejecting this contention, albeit reluctantly, the Supreme Court held that

it was not for the court to lay down policies in matters pertaining to

elections and that:

―Election laws are not designed to produce economic equality amongst

citizens. They can, at best, provide an equal opportunity to all sections of

society to project their respective points of view on the occasion of

elections. The method, somewhat unfortunate, by which law has

achieved that purpose, is by freeing all others except the candidate and

his election agent from the restriction on spending, so long as the

expenditure is incurred or authorized by those others.‖

2.20.5 Subsequently, later benches criticized this decision and the

position of law laid out in the 1974 amendment, noting that Section

123(6) of the RPA had become ―nugatory and redundant‖, and that the


243

practice of parties in not maintaining accounts of donations and

expenses incurred in regard a candidate's election made it too difficult to

determine ―whose money was actually spent through the hands of the

party‖. Eventually in the seminal case of Common Cause, a Registered

Society v. Union of India, (1996) 2 SCC 752, the Supreme Court reversed

the burden of proof on the candidate claiming the benefit of the exception

created by Explanation to Section 77, holding that even when expenses

are claimed by a party, the (rebuttable) presumption shall be that they

have been incurred or authorized by the candidate. The Court noted:

―The expenditure (including that for which the candidate is seeking

protection under Explanation I to Section 77 of R.P. Act) in connection

with the election of a candidate - to the knowledge of the candidate or his

election agent - shall be presumed to have been authorised by the

candidate or his election agent. It shall, however, be open to the

candidate to rebut the presumption in accordance with law…..‖

2.20.6 Finally, owing to much criticism of the Explanation appended to

Section 77(1) by the 1974 Amendment Act, the said Explanation was

deleted by the Election and Other Related Laws (Amendment) Act 2003

and replaced with the current Explanation, referred to above. Outside

spending by parties and independent supporters must now be reported

by the candidate, and counted towards the expenditure ceiling.

2.20.7 Thus, the current position is that the expenditure incurred by (a)

the leaders of political party on account of travel by air or by any other

means of transport for propagating the party's programme and (b) the

political parties or their supporters for generally propagating the party's

programme shall not be deemed to be expenditure in connection with the

election incurred or authorized by a candidate of that political party

under Section 77, RPA.‖

Reason for proposed amendment: To ensure better accountability, laws

relating to election expenditure need to be amended.

Proposed amendment

The expenditure incurred by a political party on advertisements, in

connection with any election could be categorized into the following:

i. Expenditure on general party propaganda seeking support for the party

and its candidates in general, but, without any reference to any

particular candidate or any particular class/group of candidates;

ii. Expenditure incurred by party, in advertisements etc. directly seeking

support and/or vote for any particular candidate or group of candidates;

iii. Expenditure incurred by the party which can be related to the

expenditure for promoting the prospects of any particular candidate or

group of candidates.


244

Applying the ratio of the judgment in Kanwar Lal Gupta's case, it is

clarified that in the case of any advertisement by political parties,

whether in print or electronic or any other media, falling in category (i)

above, which is not relatable to the election of any particular candidate

or a given group of candidates, the expenditure may be treated as

expenditure of the political party on general party propaganda. In the

cases of expenditure falling in categories (ii) and (iii) above, i.e. cases

where the expenditure is relatable to the election of a particular

candidate or a group of candidates, the expenditure shall be treated as

expenditure authorized by the candidates concerned and such

expenditure shall be accounted for in the election expenses accounts of

the candidates concerned. In those cases where the expenditure is

incurred by the party for the benefit of a given group of candidates, the

expenditure is to be apportioned equally among the candidates.

Thus, maintenance of separate bank accounts by each contesting

candidate for meeting poll expenses should be made mandatory and any

transaction above Rs 20,000 not done through dedicated bank account

should be treated as not shown in books of accounts. Hence, a suitable

sub-section should be inserted under section 77 of The Representation of

People Act 1951 and in Rule 86 of The Conduct of Elections Rules, 1961.

9. CAP ON EXPENDITURE BY POLITICAL PARTY ON A CANDIDATE FOR

ELECTION CAMPAIGN

Background

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 although there is

no cap on expenditure by political parties for propagating their program,

parties are required to adhere to the cap prescribed in section 77(3) of

The Representation of the People Act, 1951 and Rule 90 of the Election

Rules while providing ―financial assistance‖ to candidates in their

election campaigns. These amounts should be paid only by a crossed

account payee cheque or draft or bank transfer, and not by cash.


This amendment will ensure accountability and place a check on election

expenditure by candidates.

Proposed amendment

A suitable sub-section should be inserted in section 77 of The

Representation of People Act, 1951 stating that amount of financial

assistance given to a candidate by a political party should not exceed the

limit prescribed under section 77(3) of the 1951 Act.


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10. CEILING OF CAMPAIGN EXPENDITURE BY POLITICAL PARTIES

Background

There is no limit on the campaign expenditure by political parties.


(March 12, 2015) observed:

"2.28.3 Furthermore, Section 77 of the RPA only regulates the election

expenses of candidates. Political parties are free to spend any amount as

long as it is for the general party propaganda, and not towards an

independent candidate. Thus, there is no ceiling on party expenditure. It

is recommended that the law on this point does not change, namely that

there are no caps on party expenditure under the RPA given that it would

be very difficult to x an actual, viable limit of such a cap and then

implement such a cap. In any event, as the experience with section 77(1)

discussed above reveals, in the 2009 Lok Sabha elections, on average

candidates showed election expenditures of 59% of the total expenses

limit. There is no reason why the same phenomenon of under-reporting

will not transpire amongst parties.

2.28.4 Placing legislative ceilings on party expenditure or contributions

will not automatically solve the problem, especially without putting in

place a viable alternative of complete state funding of elections (which in

itself is next to impossible right now). Our previous experience in

prohibiting corporate donations in 1969 did not lead to a reduction in

corporate donations. Instead, in the absence of any alternative model for

raising funds, it greatly increased illegal, under the table and black

money donations.

2.28.5 Although the problem of black money and under-reporting will

remain under the existing regime of no caps on individual contribution

and party expenses, it has to be tackled through a stricter

implementation of the anti-corruption laws and RTI and improved

disclosure norms. It might be desirable to regularly re-examine the 7.5%

profit cap on company's contributions in light of the intended rationale,

since the former can become a meaningless limit in the context of big

companies."


The limit on campaign expenditure will ensure level-playing field for all

political parties and curb the menace of unaccounted money in elections.

Further it will also control the money power used during election by

political parties and their allies.

Proposed amendment

The ceiling on campaign expenditure made by political parties towards

Parliamentary or Assembly elections should be provided. It should be


246

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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CHAPTER – VIII : ELECTION CAMPAIGN AND ADVERTISEMENT

1. BAN ON EXIT POLLS AND OPINION POLLS

Background

Opinion poll, sometimes simply referred to as a poll, is a kind of human

research survey which is conducted to find out the public opinion before

the elections. It is a way in which through a scientific survey the views of

a particular group of people can be ascertained. Unlike Opinion Poll, Exit

Poll is a post-election poll which is conducted just after a candidate

walks out after casting his or her vote. These kinds of polls aim at

predicting actual result on the basis of information collected from voters.

The Representation of the People Act under section 126A bans

conducting and disseminating results of exit polls during the period

starting from commencement of polls till the completion of polls in all

phases. According to the present scheme of The Representation of the

People Act, 1951, section 126(1) (b) which prohibits the display of any

election matter during the period of forty-eight hours before the hour

fixed for conclusion of poll, is only limited to display by means of

―cinematograph, television or other similar apparatus‖; and does not deal

with the independence and robustness of the opinion polls themselves.

However, there exists a lacuna as a ban on publishing such election

matters in electronic media does not extend itself to print media. New

sections 126A and 126B for the restriction on publication and

dissemination of result of exit polls. However, in the present framework

there is no restriction on conducting opinion polls or disseminating

results of opinion polls even in phased elections.

The ECI has been of the view that there should be some restriction or

regulation on the publishing / dissemination of the results of opinion

polls also. The Commission had issued certain guidelines in this regard

in 1998 which were subsequently challenged before the Courts. Later, on

the observation of the Hon'ble Supreme Court that the EC did not have

the power to enforce these guidelines, the same were withdrawn.

Proposed amendment

The Commission recommends that there should be a restriction on

publishing the results of such poll surveys before the elections and

reiterates its view that like the Exit Polls, there should also be some

restriction on conducting and disseminating the results of Opinion Polls

right from the day of the first notification of an election till the

completion of the poll in all the phases where a general election is held at

different phases.


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The Law Commission in its Report in the year 2015 endorsed the view of

the Commission and has called for the regulation of opinion polls so as

to ensure that first, the credentials of the organizations conducting the

poll is made known to the public; second, the public has a chance to

assess the validity of the methods used in conducting the opinion polls;

and third, the public is made adequately aware that opinion polls are in

the nature of forecasts or predictions, and as such are liable to error.

Consequently, new sections 126C and 126D should be inserted in The


126C. Disclosures relating to opinion polls. –

(1) No person shall publish or broadcast the results of an opinion poll

without providing the following together with the results:

(a) the name of the sponsor of the survey;

(b) the name of the person or organization that conducted the survey;

(c) the date on which or the period during which the survey was

conducted;

(d) the population from which the sample of respondents was drawn;

(e) the number of people who were contacted to participate in survey; and

(f) if applicable, the margin of error in respect of the data obtained.

(g) A declaration that the results are in the nature of predictions, to be

displayed prominently, in the manner prescribed by the ECI

(h) Any other information as may be notified by the Election Commission

(2) In addition to the information under sub-section (1), the publisher or

broadcaster of an opinion poll shall, within a period of twenty-four hours

after the publication or broadcast of the opinion poll, publish on its

website a copy of a written report on the results of the survey referred to

in subsection (1).

(3) The report referred to in sub-section (2) shall include the following, as

applicable:

(a) the name and address of the sponsor of the survey;

(b) the name and address of the person or organization that conducted

the survey;

(c) date on which or the period during which the survey was conducted;

(d) information about the method used to collect the data from which the

survey results are derived, including

(i) the sampling method,

(ii) the population from which the sample was drawn,

(iii) the size of the initial sample,

(iv) the number of individuals who were asked to participate in the survey

and the numbers and respective percentages of them who participated in


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the survey, refused to participate in the survey, and were ineligible to

participate in the survey,

(v) the dates and time of day of the interviews,

(vi) the method used to recalculate data to take into account in the

survey the results of participants who expressed no opinion, were

undecided or failed to respond to any or all of the survey questions, and

(vii) any weighting factors or normalization procedures used in deriving

the results of the survey; and

(e) the wording of the survey questions and, if applicable, the margins of

error in respect of the data obtained.

(f) a copy of the poll as published along with the copy of the disclosure

under sub-section (1).

(4) The ECI may issue further notifications regarding the manner in

which the disclosures under sub-sections (1) and (2) are to be made.

(5) Any person who contravenes the provisions of this section shall be

punished, on first conviction, with ne which may extend to five lakh

rupees, and in the event of a second or subsequent conviction with

imprisonment of either description for a term which may extend to two

years, and shall also be liable to ne. (6) 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 Election Commission or

the Chief Electoral Officer of the State concerned.

Explanation.—For the purposes of this section, ―opinion poll‖ means a

survey of how electors will vote at an election or of the preferences of

electors respecting any candidate, group of candidates, or political party.

126D. Offences by companies.—

(1) Where an offence under subsection (1) of Section 126C has been

committed by a company, every person who, at the time the offence was

committed, was in charge of, and was responsible to the company for the

conduct of the business of the company, as well as the company, shall be

deemed to be guilty of the offence and shall be liable to be proceeded

against and punished accordingly:

Provided that nothing contained in this sub-section shall render any

such person liable to any punishment provided in this Act if he proves

that the offence was committed without his knowledge or that he

exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an

offence under this Act has been committed by a company and it is proved

that the offence has been committed with the consent or connivance of,

or is attributable to any neglect on the part of, any director, manager,

secretary or other officer of the company, such director, manager,


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secretary or other officer shall also be deemed to be guilty of that offence

and shall be liable to be proceeded against and punished accordingly.

Explanation.—For the purpose of this section,— (a) ―company‖ means

anybody corporate & includes a firm or other association of individuals;

and (b) ―director‖, in relation to a firm, means a partner in the firm

2. BAN ON GOVERNMENT SPONSORED ADVERTISEMENT BEFORE ELECTIONS

Background

In politics, there exists use of advertising campaigns to influence political

debate, and ultimately the voters. Presently, there is a trend wherein the

Central and various State Governments embark upon 'election

advertising' in the guise of providing information to the public. Such kind

of an advertising released with an eye on the election contain material

intended or likely to affect voting in an upcoming election.


The advertisements highlighting the achievements made by the

government are understandably incurred from the public exchequer and

are given or created with a view to influence the electorate in favour of

the ruling party.

The Item VII clause (iv) of the Model Code of Conduct for the Guidance of

Political Parties and Candidates, prohibits the issue of advertisement at

the cost of public exchequer in the newspapers and other media. The

misuse of official mass media during the election period for partisan

coverage of political news and publicity regarding achievements with a

view to furthering the prospects of the party in power is also prohibited

under the said Item VII. However, the problem arises as the Model Code

of Conduct comes into operation only from the date on which the

Commission announces an election and the advertisements released

prior to the announcement of elections are not prohibited under the

Model Code of Conduct.

Proposed amendment

The Commission proposes that whenever 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, the date of

dissolution of the House. Nevertheless, in cases of advertisements for

educating the general public on matters of public health etc. which are

unavoidable, provision/ exception could be made for the same, but in

any case there should not be a display of political personalities in the

said advertisements. The practice of putting up banners and hoardings

in public places, depicting achievements of governments should be


251

banned, if possible. Otherwise, there should be specific provisions that a

name or symbol of any political party or photograph of any of the leaders

of the party should not appear on such hoardings/banners. Such steps

would help in ensuring that the ruling party or candidate does not get an

undue advantage over another in the spirit of free and fair elections.

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 March 12, 2015 also made

certain recommendations similar to that of the Election Commission of

India in respect to Government Sponsored Advertisements. The Law

Commission has recommended the regulation and restriction on

government sponsored advertisements six months prior to the date of

expiry of the House/Assembly. These recommendations were made so

that the purity of elections is maintained and the public money is not

used for partisan interests inter alia, highlighting the government's

achievements. According to the Law Commission this can be achieved by

inserting a new Chapter VIIB in Part V of The Representation of the

People Act, 1951 prohibiting State/Central government sponsored

advertisements in the print or electronic media or by way of banners and

hoarders, six months prior to date of expiry of the term of the Lok

Sabha/ Vidhan Sabha. However, an exception has been carved out for

advertisements highlighting the government's poverty alleviation

programmes or any health related schemes.


Background

The section 126 of The Representation of 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, the time fixed for conclusion of

poll. The advertisements in TV and Radio are also prohibited during

these 48 hours under the above mentioned provision. However, due to

the existing gap in the Act, the political parties and candidates issue

advertisements in the newspapers during this period including on the

day of polling and also indulge in house to house visits.

A distorted advertisement in print media on the poll day leaves the other

candidates with no remedy to undo the damage.

Proposed amendment

The Commission is of the view that such activities need to be prohibited

and therefore, proposes that section. 126 must be amended in the

interest of fair and free elections to prohibit publication of

advertisements by political parties in print media also (as in electronic


252

media) during the period of 48 hours before the close of poll to allow the

voters to arrive at an unprejudiced opinion


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


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.


253

The problem of 'paid news' especially during election campaign is a

widespread phenomenon. This phenomenon of paid news and its

equivalent, political advertising being presented as news, are issues that

cannot be treated separately. The Press Council of India also, in its

report regarding paid news cases had recommended that paid news may

be made a corrupt practice.


The general public attaches great value in news report as

distinguished from advertisements by political parties and candidates.

This makes the news items a very important source of information

concerning the political parties or candidates. On the contrary, paid

news is masquerading as news and publishes advertisements in the garb

of news items, totally misleading the electors. This raises potential

concerns relating to the truth or falsity of claims and the possible

defamatory effects of such news items and advertisements. The right to

know i.e. right to have accurate information is a necessity to make an

informed choice for the electors however, paid news have a tendency to

influence this choice in a negative manner.

To make the matter worse, the whole exercise of publishing paid

news involves use of unaccounted money and under reporting of election

expenses of the candidates indulging in the malpractice. The influence of

money also has the potential in resulting in uneven elections between

people with dissimilar financial statures. Thus, in order to have 'fair'

election in a democracy, a level playing field is paramount. This can only

be achieved by mitigating the influence of money in elections.

Proposed amendment

The Commission is of the view that 'paid news' plays a vitiating

role in the context of free and fair elections and proposes that an

amendment should be made in The Representation of People Act, 1951,

to provide therein publishing and abetting the publishing of 'paid news'

for furthering the prospect of election of any candidate or for prejudicially

affecting the prospects of election of any candidate as an electoral offence

under Chapter III Part VII of The Representation of the People Act, 1951

with exemplary punishment of a minimum of two years imprisonment.


The Law Commission in its 255th Report (2014) relating to 'Electoral

Disqualifications' recommends the following:

Introducing definitions of paid news and political advertising;

Laying down the consequences attached to those indulging in such

practices by introducing a new Section 127B for a 'person' and

Section 126-D if the offence is committed by a 'company'. Not only the


254

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.


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.


255

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.


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.


256


The period of filing election petition is 45 days and the time period of

filing accounts is 30 days. This leaves only a small period for a person to

analyze expenditure statement of candidates and decide whether an

election petition needs to be led. Hence, the time period for filing of

accounts needs to be reduced. So that more time is available to analyze

the accounts.

Further, there is no provision for filing an election petition against a

candidate who has lost the election but is guilty of corrupt practice

under section 123 of the 1951 Act.

Proposed amendment

Section 78 of the 1951 Act should be amended such that the time period

for filing of accounts is 20 days, instead of 30 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.

Section 81 of the 1951 Act should be amended to add after ―An election

petition calling in question any election‖, the words ―or seeking a

declaration that any candidate is guilty of corrupt practice under section

123 of the Act.‖

Section 84 of the 1951 Act may be amended to include a sub- section

stating that ―a petitioner may seek a declaration that a candidate, even if

he is not the returned candidate, has indulged in corrupt practice as

defined under section 123 of the Act.‖

2. CEILING ON ELECTION EXPENDITURE TO LEGISLATURE FROM

LOCAL AUTHORITIES' GRADUATES & TEACHERS' CONSTITUENCIES

Background

Section 77 of The Representation of the People Act, 1951 along with Rule

90 of The Conduct of Elections Rules, 1961 prescribe the limit for

expenditure in connection with an election incurred or authorised by a

candidate. However, this limit is restricted to the elections from the

Parliamentary and Assembly constituencies.

Reason for proposed amendment: There is a lacunae in the law as

there is no limit prescribed on expenditure during an election from local

authorities', graduates' and teachers' constituencies.

Proposed amendment

Rule 90 of the Conduct of Elections Rules, 1961 should be amended to

place a ceiling on election expenditure by a candidate when contesting

from local authorities', graduates' and teachers' constituencies. The

expenditure limit for these elections could be half of the limit for the

Assembly election in the state concerned.


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3. ELECTION EXPENDITURE IN CASE OF ADJOURNMENT OF POLL

UNDER SECTION 52 OF THE RPA, 1951

Background

Section 52 of the RPA, 1951 provides for adjournment of poll in case of

death of a candidate of a recognized political party.


Subsequent to the death of a candidate of a recognized party, the ECI

calls upon the recognized political party, whose candidate has died, to

nominate another candidate for the said poll within seven days of issue

of such notice to such recognized political party. In order to ensure parity

between the new candidate and the other contesting candidates, latter

should be permitted to further incur election expenditure.

Proposed amendment

In case of adjournment of poll under section 52 of the Representation of

the People Act, 1951 the contesting candidates should be allowed to

spend additionally the full amount as prescribed under Rule 90 of The

Conduct of the Election Rules, 1961, from the date of adjournment of

poll if the adjournment takes place within rst week from the date of

scrutiny of nominations. In cases of adjournment after one week of

scrutiny, such candidates may be permitted to incur additional expense

amounting to 60% of the ceiling from the date of adjournment.

4. APPOINTMENT OF ADDITIONAL JUDGES IN THE HIGH COURTS

Background

Article 224 of the Constitution of India provides: "(1) If by reason of any

temporary increase in the business of a High Court or by reason of

arrears of work therein, it appears to the President that the number of

the Judges of that Court should be for the time being increased, the

President may appoint duly qualified persons to be additional Judges of

the Court for such period not exceeding two years as he may specify."

The judges to people ratio is low in India and there is a need to appoint

additional judges to clear the backlog of cases.

Proposal:

The Commission has proposed that appointment of additional Judges in

High Courts for trying election petitions to ensure their speedy disposal

should be considered.

CHAPTER- X : OTHER ISSUES

1. FORM26 UNDER RULE 4A OF CONDUCT OF ELECTIONS RULES1961

Background

Presently, existing Form 26 (format in which the candidates are required

to submit affidavit) does not contain any clause requiring information

with respect to the sources of income of the candidate, his/ her.


258


Declaring the source of income of the candidate and spouse would serve

the interests of transparency and the right of electors to obtain

information about their candidates for them to make an informed choice

of their representative.

Proposed Amendment

The ECI has proposed that Form 26 be amended by adding a new

column for declaring the source of income of the candidate and spouse.

2. RULE MAKING AUTHORITY TO BE VESTED IN ELECTION COMMISSION

Background

The present framework of The Representation of the People Act 1950 and

1951 under Section 28 and 169 respectively empowers the Central

Government to make rules after consultation of the Election

Commission. However, the Central Government is not bound to accept

such views or recommendations of the Commission.


Since the Central Government is not bound to accept the views and

recommendations of the Commission there are instances when rules

opposed to the specific recommendations of the Commission have been

framed. On several other occasions, rules framed or amended have not

been in line with the recommendations of the Election Commission.

Proposed amendment

The Commission recommends that the rule making authority under the

above-referred sections must be conferred on the Election Commission

instead of the Central Government and the new framework must

empower the Election Commission to make rules after consultation with

the Central Government.

Election Commission of India,

Nirvachan Sadan, Ashoka Road, New Delhi-110001

Phone: 011-23717391-98, Fax: 011-23713421, www.eci.nic.in

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http://www.eci.nic.in/

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