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PART I
BACKGROUND OF ELECTORAL REFORMS
| CHAPTER I | INTRODUCTION |
| CHAPTER II | RELEVANT LEGISLATIVE PROVISIONS |
| CHAPTER III | BACKGROUND OF THE SUBJECT UNDERTAKEN AND COMMISSION’S WORKING PAPER |
| CHAPTER IV | GERMAN LAW ON POLITICAL PARTIES |
PART II
VIEWS OF POLITICAL PARTIES AND INTERESTED PERSONS OBTAINED IN SEMINAR
PART III
ANALYSIS OF VIEWS AND COMMISSION’S CONCLUSIONS
PART IV
| CHAPTER I | THE PROPOSAL TO DELETE EXPLANATION 1 TO SECTION 77 |
| CHAPTER II | INSERTION OF SECTION 78A (MAINTENANCE, AUDIT AND PUBLICATION OF ACCOUNTS BY POLITICAL PARTIES) |
| CHAPTER III | STATE FUNDING |
PART V
PROPOSAL REGARDING FRAMING OF CHARGES BY COUNTS AS A NEW GROUND FOR DISQUALIFICATION
PART VI
PART VII
NEED FOR URGENT MEASURES TO INSTIL STABILITY IN GOVERNANCE AND FOR IMPROVING THE ELECTORAL SYSTEM
| CHAPTER I | STABILITY IN GOVERNANCE |
| CHAPTER II | MEASURES FOR IMPROVING THE ELECTORAL SYSTEM |
PART VIII
AN ALTERNATIVE METHOD OF ELECTION
PART IX
LAW COMMISSION OF INDIA
ONE HUNDRED SEVENTIETH REPORT
ON
REFORM OF THE ELECTORAL LAWS
MAY, 1999
D.O. No.6(3)(35)/95-LC(LS) 29/05/99/09.06.99
Dear Shri Ram Jethmalani,
I am forwarding herewith the 170th report on the
"Reform of the Electoral Laws."
2. The Ministry of Law, Justice and Company Affairs,
Government of India had addressed a letter dated 2/11/95,
requesting the then Law Commission to undertake a
comprehensive study of the measures required to
expedite
the hearing of the election petitions. On 3rd August,
1998, a reminder was sent to and received
by the present
Law Commission. Even some time before the receipt of the
letter dated 3rd August, 1998,
the Commission had suo motu
undertaken a thorough review of the Representation of the
People Act, 1951 including
provisions relating to hearing
of election petitions. The underlying objective was to
make the electoral
process more fair, transparent and
equitable. The effort was also to reduce the several
distortions
and evils that had crept into the Indian
electoral system, to identify the areas where the legal
provisions required strenthening and improvement and to
suggest the requisite measures in that behalf.
Accordingly, the Law Commission prepared a working paper,
to which three draft Bills were also enclosed.
One Bill
pertained to amending the Constitution of India, the other
for amending the Representation of People
Act, 1951 and the
third to amend the Indian Penal Code.
3. The salient features of the working paper included
inter-alia, introduction of List System, Amendment
to the
Tenth Schedule to the Constitution of India, curtailing the
expenditure on elections, amendment
of section 8 of the
Representation of the People Act, enhancement of punishment
for electoral offences, measures
to ensure expenditious
disposal of election petitions by the High Court, amendment
of section 97 (1) of
the R.P. Act, 1951.
4. The working paper prepared by the Law Commission
was communicated to all
the recognised political parties,
both at the national and state level, the Houses of
Parliament,
the State Legislatures, to the High Court, Bar
Associations, Election Commission, prominent media
personalities, associations and organisations interested in
electoral reforms and many other persons. A large number
of responses were received from parties, persons,
organisations, associations
and individuals.
The Law Commission also held four
seminars to elicit informed opinion and views of the
political
parties and responsible members of the public.
The first seminar was held on 14th November, 1998 at the
India International Centre, the second seminar was held at
Thiruvananthapuram, the third seminar was held at Bangalore
in the premises of the National Law School of India
University and finally a National Seminar on
Electoral
Reforms was held at New Delhi on 23rd-24th January, 1999 at
Vigyan Bhavan, in association with
the Bar Council of
India. Many eminent personalities including the Hon'ble
Prime Minister participated
in the said seminar and
projected their views.
5. After thoroughly analysing the views obtained from
various quarters, the Commission has prepared this report
on electoral reforms. The report recommends
various
measures which are essential to make our electoral system
more representative, fair and transparent,
to strengthen
our democracy, to arrest and reverse the prcess of
proliferation and splintering of
political parties and to
introduce stability in our governance. With a view to
achieve the said objectives,
we have suggested inclusion of
a chapter regulating the formation and functioning of
political parties,
particularly with a view to ensure
internal democracy. The Commission has examined in-depth
the necessity
of introducing the List System in the country
and has made recommendations accordingly. The law of
defections
contained in the Tenth Schedule to the
Constitution has also been revised; it is now proposed that
a pre-election front/coalition of political parites should
be treated as a "political party" for the purposes
of the
Tenth Schedule. The Commission has also suggested that any
political party which receives less
than 5% of the total
valid votes cast in the general election to the Lok Sabha
or to a State Legislative
Assembly, as the case may be,
shall not be entitled to any seat in the Lok
Sabha/Legislative
Assembly, even if it wins any seat(s).
The Commission has also opined that the time is now ripe
for barring
indepndent candidates from contesting elections
for Lok Sabha and Legislative Assemblies and has made
recommendations accordingly. The reasons for these several
measures have been stated elaborately in our Report.
6. The
Commission has also reiterated its proposal to
delete Explanation-I to section 77(1) of the R.P. Act,
1951, which has been strongly criticised in several
judgements of the Supreme Court and all discerning persons.
We have also recommended enactment of provisions requiring
the political parties to maintain accounts,
have them
audited and file them before the election Commission. On
State Funding of political parties,
the Commission has
reiterated the recommendations in the Inderjit Gupta
Committee report subject
to certain reservations set out in
paragraph 4.3.4. of our Report. Similarly provisions are
in vogue in
several other democratic countries.
7. The Commission has also recommended that in case of
electoral
offences and certain other serious offences,
framing of a charge by the Court should itslef be a ground
of disqualification in addition to conviction. It has
reiterated several other proposals set out in working paper
except with regard to raising deposits in the case of
independent candidates. The raising of deposits
for
independents is unnecessary in view of our other
recommendations to bar the independents
altogether and
permitting only political parties (whether recognised or
not) to contest elections subject
to the requirement of
obtaining 5% of the total valid votes cast to enable them
to get a seat in Lok Sabha/State
Assembly.
8. The Commission has, with a view to check false
complaints, proposed to amend the
relevant provisions of
the Criminal Procedure Code.
9. In the interest of transparency, we
have also
suggested provisions making it obligatory upon every
candidate to declare the assets possessed
by him or her or
by his/her spouse and dependent relations and the
particulars regarding criminal
cases pending against
him/her, in the nomination paper itself.
10. We have also suggested measures
for ensuring
stability of governments. One of the measures suggested is
a new rule, Rule 198A in the Rules
of Procedure and Conduct
of Business in Lok Sabha. We have stressed the necessity
of having one election
once in five years for Lok Sabha as
well as State Assemblies and made some suggestions in that
behalf.
11. We have also set out the desirability of adopting
the rule requiring that ony a candidate
obtaining 50%+1
votes will be declared elected and the holding of a
"run-off" election wherever
necessary. The concept of
negative vote also has been discussed and recommended for
consideration.
12. The Commission is of the considered view that there
is urgent and crying necessity to
implement the
afore-mentioned measures to reform the electoral system and
to strengthen the democracy in
our country.
With regards,
Yours sincerely,
(B.P. JEEVAN REDDY)
Shri Ram Jethmalani,
Minister for Law, Justice &
Company Affairs,
Shastri Bhavan,
New Delhi.
PART I
Background of Electoral Reforms
CHAPTER I
INTRODUCTION
1.1.1. The preamble to be Constitution of India declares
that the people of India
have resolved to constitute India
into a sovereign democratic republic with the four-fold
objective, namely,
to secure to all its citizens, justice
social, economic and political; liberty of thought,
expression,
belief, faith and worship; equality of status
and of opportunity and to promote among them all
fraternity, assuring the dignity of the individual. As
would be evident from the provisions in Part V and Part
VI
of the Constitution, we have established for ourselves a
parliamentary form of government patterned on
the British
model. In a parliamentary democracy, there is no formal
separation between the Parliament
and the political
executive (Council of Ministers). The political executive
is a part and parcel of
the Parliament and is drawn from
it. The party or the group of parties which has a majority
in the lower
House or which enjoys the confidence of the
lower House, is invited by the President to form the
government.
In other words, in a parliamentary democracy,
the political executive is not elected as such by the
people. Even the President, the titular Head of the State
is not elected by the people directly but by the Members
of
the Parliament and the State Legislatures. It is for this
reason that the Supreme Court has held
repeatedly even
before the enactment of the Constitution (Forty-Second)
Amendment Act, 1976, in Ram
Jawaya Kapur v. State of
Punjab (AIR 1955 SC 549) and in Samsher Singh v. State of
Punjab (AIR 1974 SC 2192) that the position of the
President under our Constitution is akin to the British
Monarch. In other
words, he is a constitutional head of
the State. The real governing power vests in the political
executive.
Similar is the position in the States. The
system obtaining in this country is wholly different from
the one obtaining in the United States of America where the
executive, namely, the President is elected directly by
the
people just as the Legislature (Congress) is elected by the
people directly in a separate election. In
such a system
of government, the governing power is distributed between
the President and the Congress
and the political executive
is not drawn from the Legislature whereas in a
parliamentary form
of government like ours, the political
executive (Council of Ministers) is drawn from Parliament
and is
answerable to the Parliament for exercise of its
powers.
1.1.2. Whether in a parliamentary
form of government or a
Presidential form, indeed in every democracy, the process
of election should
be free, fair and equitable.
Fortunately, our Constitution and the Representation of the
People Act,
1950 and Representation of the People Act, 1951
to seek to provide for a free and fair election but
problems have been arising in this regard on account of
division in our polity on the basis of religion, caste,
language, region and race. [Free and fair elections are
the very foundation of democratic institutions
(P.R.
Belagali v. B.D. Jatti, AIR 1971 SC 1348; Indira Nehru
Gandhi v. Raj Narain, AIR 1975 SC 2299;
and Mohinder Singh
Gill v. The Chief Election Commissioner, [1977] INSC 227; AIR 1978 SC
851)]. However there has been a steady deterioration in
the standards, practices and pronouncements of the
political class, which fights the elections. Money-power,
muscle-power, corrupt practices and unfair means are
being
freely employed to win the elections. Over the years,
several measures have been taken by Parliament
to amend the
laws relating to elections with a view to check the
aforementioned forces. This
report, which has been
prepared after extensive consultations, is a step in the
said process. It is
hoped that Parliament will take prompt
action to give them legislative imprimatur.
CHAPTER II
Relevant Legislative Provisions
1.2.1. Part XV of the Constitution deals with elections.
It contains six articles viz.,
articles 324 to 329.
Article 324 declares that the superintendence, direction
and control of the preparation
of 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 President and Vice-President held under the
Constitution,
shall be vested in the Election Commission.
Article 325 declares that there shall be one general
electoral
roll for every parliamentary constituency for
election to either House of Parliament or to the House or
either either House of the Legislature of a State and that
no person shall be ineligible for inclusion in any
such
roll or claim to be included in any special electoral roll
for any such constituency on grounds only
of religion,
race, caste, sex or any of them. This article read with
article 326 confers a right upon
every citizen of this
country to be included in the electoral roll provided he
has completed 18 years
of age on the specified date and is
not otherwise disqualified under any of the provisions of
the Constitution
or any law made by Parliament or the
appropriate Legislature. Article 327 empowers Parliament
to provide
by law with respect to all matters relating to,
or in connection with, elections to either House of
Parliament or to the Houses of either House of the
Legislature of a State including the preparation
of
electoral rolls, the delimitation of constituencies and all
other matters necessary for securing the due
constitution
of such House or Houses. This power, the article says
clearly, can be exercised by Parliament
from time to time
subject to the provisions of the Constitution. Article 328
confers a similar power upon
the Legislature of a State in
so far as a provision in that behalf is not made by
Parliament. Article
329 creates a bar to interference by
courts in electoral matters. Clause (a) declares that the
validity
of any law relating to the delimitation of the
constituencies or the allotment of seats to such
constituencies, made or purporting to be made under article
327 or 328 shall not be called in question in any court.
Clause (b) declares that no election to either House of
Parliament or to the House or either House of
Legislature
of a State shall be called in question except by an
election petition presented to prescribed
authority and in
the prescribed manner.
1.2.2. Pursuant to article 325 to 327, Parliament
has
enacted the Representation of the People Act, 1950 and
Representation of the People Act, 1951 (besides
certain
other minor enactments and orders) which cover the entire
gamut of elections to Parliament and State
Legislatures.
CHAPTER III
Background of the subject undertaken
and Commission's Working Paper
1.3.1. It appears that in 1995, the Government of India in
the Ministry of Law, Justice and
Company Affairs had
addressed a letter dated 2.11.1995 requesting the then Law
Commission to undertake
a comprehensive study of the
measures required to expedite the hearing of the election
petitions.
The present Law Commission (15th Law
Commission) which was constituted towards the end of
November 1997 came to know of the said letter much later
i.e. on receipt of a letter from the Minister for Law,
Justice and Company Affairs dated 3rd August 1998 asking
for a report on the above subject at an early date.
As a
matter of fact, some time before the receipt of the said
letter, the present Law Commission had,
suo motu, embarked
upon a thorough review of the Representation of the People
Act, 1951 including provisions
relating to hearing of
election petitions. The study was undertaken with a view
to making the electoral
process more fair, transparent and
equitable. The effort was also to reduce, if not curtail,
the several
distortions and evils that had crept into the
India electoral system, to identify the areas where the
legal provisions required strengthening and improvement and
to suggest the requisite measures in that behalf.
Accordingly, the Law Commission prepared a working paper
(Annexure-B) to which were enclosed three draft
Bills, one
for amending the Constitution of India, the other for
amending the Representation of People
Act, 1951 and the
third to amend the Indian Penal Code. While preparing the
working paper and the
accompanying Bills, the Law
Commission took into consideration the Bill which was
prepared in
1990 by the late Shri Dinesh Goswami, the then
Minister for Law, Justice and Company Affairs, based on a
consensus arrived at between all the political parties.
Indeed, we took the said Bill as the starting point and
suggested various other measures which in our opinion were
called for to achieve the aforementioned objectives.
We
also took into account a brochure published by the Election
Commission of India containing various
suggestions for
amending the Representation of the People Act, 1951 Notice
was also taken of several decisions
of the Supreme Court on
various provisions of the Representation of the People Act,
1951 hereinafter referred
to as the R.P.Act. The salient
features of the working paper were the following:
1.3.2. Introduction
of the List System. The Law
Commission took note of the fact that the
`first-past-the-post'
system prevailing in our country had
given rise to several inequities and distortions in our
electoral
process particularly on account of the
multiplicity of the political parties. There are certain
States in India where there are three or four recognised
political parties, more or less evenly balanced. In such
a
situation what is happening is that the winning candidate
is receiving, in many cases, 30% or less of the
valid votes
cast. The remaining 70% or more votes polled (cast in
favour of the defeated candidates
including independents)
are practically going waste, without representation, and
without a voice in
the representative bodies, namely,
Parliament and the State Legislatures. It was thought
advisable to provide a voice and a representation to
the
wasted votes which indeed very often constituted a majority
of the total votes cast.
1.3.2.1. Another consideration in this behalf was that the
first-past-the-post (FPP) system now in vogue is
not
yielding a correct picture of the voter preferences. In
other words, there is no commensurality
between the total
votes cast in a State or in the country, as the case may
be, and the seats obtained
by the parties. To be more
precise, what is happening is that a political party which
has received, say,
32% of the total votes case in the
country is obtaining 70% of the seats in Parliament,
whereas
another political party which has polled, say, 29%
of the votes, is getting 25% of the seats in Parliament. A
`swing' of 2 to 3 per cent votes is resulting in a huge
difference in the number of seats won.
1.3.3.2. There was yet another situation where a political
party is polling a substantial chunk of votes cast
in a
given State in parliamentary elections but is not able to
get a single seat in the Parliament from
that State.
1.3.2.3. With a view to rectifying and redressing the
aforementioned distortions
and inequities, the Law
Commission was of the provisional opinion that introducing
a List System
may serve to redress the aforementioned
distortions, at least to a partial extent. For this
purpose,
we looked to the electoral system obtaining in
certain other countries including Germany where a mixed
system (FPP and list system) is in force. In Germany, part
of the seats are filled on the basis of FPP system
whereunder the members are elected from territorial
constituencies and the remaining members are
chosen from
the lists put forward by the political parties. We did not
however think it advisable to
import the German system
whole-hog for it was found to be extremely complicated and
difficult of operation
in a country like ours where a
sizeable chunk of population is illiterate and is not able
to operate such
a complicated electoral system.
1.3.2.4. We thought of finding a system more suited to our
genius
and to the conditions prevailing in our country.
Though it would have been advisable to suggest that 50% of
the number of members in Lok Sabha or Legislative
Assemblies of the States should be filled on the basis
of
list system, we pegged it at 25%, not only as a starting
point, but also with a view not to give room
for growth of,
or encouragement to, caste-based political parties. We did
not wish to encourage in any
manner the caste-based
political parties or the voting patterns based on caste
considerations.
1.3.2.5. Accordingly, it was suggested that in the Lok
Sabha as well as in the State Legislative
Assemblies, the
present strength should be increased by 25% of the existing
strength which increased strength
should be filled on the
basis of list system. The list system was to be confined
only to recognised political
parties (RPP). There would be
no separate vote nor a separate election for the members to
be chosen under
the list system.
1.3.2.6. It was suggested that each recognised political
party should put forward its list of candidates, which will
be received,
scrutinised and valid list published along
with the nominations for elections from the territorial
constituencies. It was suggested that for this purpose,
`territorial units' be designated; so far as the bigger
States are concerned, each State shall be a territorial
unit but in the case of small States, they should
either be
clubbed with an adjacent bigger State or be clubbed
together to form a territorial unit.
(This idea of
territorial units was suggested to be adopted only in the
case of parliamentary general
elections and not in the case
of elections to the State Legislatures.) At the end of
polling and counting
of votes for the territorial
constituencies, the Election Commission, it was suggested,
should tabulate
votes polled by each RPP in a given
State/territorial unit and the seats meant to be filled up
under
the list system be distributed among the RPPs in
proportion to the votes polled by them. For achieving the
said purpose, it was found necessary to amend not only the
Representation of the People Act, 1951 but the Constitution
of India itself in the first instance. Accordingly, the
suggested amendments both to the Constitution
of India and
the Representation of People Act, 1951 were shown in the
Bills accompanying the working paper.
1.3.2.7. Another connected suggestion was to delete article
331 of the Constitution which empowers
the President to
nominate two members of Anglo-Indian community to the Lok
Sabha. It was explained that
this provision which may have
been good when the Constitution was enacted, has become
irrelevant with the
substantial fall in the number of
Anglo-Indians over the years and in the light of the
miniscule
number of this community obtaining today.
1.3.3. Amendment to the Tenth Schedule to the
Constitution. The Tenth Schedule to the Constitution was
inserted by the Constitution (Fifty-second Amendment)
Act,
1985. The Schedule provides for disqualification of a
member of Parliament of a State Legislature
in two
situations, namely (a) if he voluntarily gives up his
membership of political party on
whose ticket he was
elected and (b) if he votes or abstains from voting,
without prior permission
of the party, in such House
contrary to any direction issued by the political party on
whose ticket
he has been elected and such voting or
abstention has not been condoned by such political party
within 15 days from the date of voting of abstention. The
Schedule however introduced in paragraph 3 thereof the
concept of `split'. In short, the paragraph provided that
if not less than 1/3rd members of the legislature
party
defect, the disqualification provided in paragraph 2 shall
not operate. Paragraph 4 provided that
the rule of
disqualification in paragraph 2 shall not apply where two
or more political parties merge.
Paragraph 5 provided an
exemption in favour of Speaker/Deputy Speaker of
Chairman/Deputy Chairman,
as the case may be, from the
operation of paragraph 2. Paragraph 6 provided that in
case of dispute
on the question of disqualification on the
ground of defection, the same shall be decided by the
Speaker or the Chairman of the House
concerned. Paragraph
7 barred the jurisdiction of the courts in respect of
matters connected with the
disqualification of a member of
a House under the said Schedule. (This paragraph has,
however, been
declared unconstitutional by the Supreme
Court in Kihota v. Zachilhu (AIR 1993 SC 412). Paragraph
6 provided for rules to be made to carry out the objects of
the Schedule.
1.3.3.1. The experience of this country with the Tenth
Schedule since its introduction has not been happy. It
has
led to innumerable abuses and undesirable practices. While
the idea of disqualification on the basis of
defection was
a right one, the provision relating to `split' has been
abused beyond recall. It was accordingly
suggested by us
that paragraphs 3 and 4 should go altogether with the
result that paragraph 2 alone
remains (along with the
exemptions in paragraph 5). The underlying idea was that a
person elected on
the ticket of a political party should
remain with it during the life of the House or leave the
House.
It was also suggested by the Law Commission that
the decision on the question of disqualification under the
said Schedule should be entrusted to the President (in the
case of Parliament) and to the Governor (in the case
of
State Legislature) who shall render their decision in
accordance with the opinion of the Election
Commission
which shall be consulted in that behalf.
1.3.3.2. For achieving the said objective,
necessary
amendments to the Tenth Schedule to the Constitution were
appended to the working paper.
We are also proposing
herein amendments to articles 102(1) and 191(1) of the
Constitution which are
necessary to give effect to our
recommendations. The amendments in articles 102(1) and
191(1) are to
the following effect:-
(1) In clause (1) of article 102, after sub-clause (e),
the following sub-clause
(f), shall be inserted before the
Explanation -
"(f) if he is disqualified for being
a member of
either House of Parliament under the Tenth
Schedule."
(2) Clause (2) to article 102 shall be deleted.
Similarly, in article 191(1), sub-clause
(f) as
follows shall be added after sub-clause (e) but before the
Explanation:-
"if
he is disqualified for being a member of
Legislative Assembly or Legislative Council of a
State under the Tenth Schedule"
(2) Clause (2) to article 102 shall be deleted.
1.3.4. Curtailing the expenditure on elections. The next
major proposal put forward by the Law Commission
pertained
to reducing the expenditure on elections and also to
regulate the receipts and expenditure
by the political
parties. The issue of State funding was also considered in
this context. The first
proposal in this behalf was to
delete Explanation 1 to section 77 of the Representation of
the People Act,
1951. Besides the abuse inherent in the
said Explanation, it was pointed out that the necessity of
deleting
the Explanation had been pointed out by the
Supreme Court in several decisions including C.Narayan
Swami v. C.K.Jaffar Sheriff [1994 Supp. (3) SCC 170] and
Gadakh Yashwantrao Kanakarrao v. Balasaheb Vikhe
Patil
[1993] INSC 497; [1994 (1) SCC 682]. It was pointed out in these decisions
that the corrupt practice of incurring or authorising of
expenditure
in contravention of sub-section (6) of section
123 has lost its significance and utility with the
introduction of Explanation 1 to section 77. It was
further pointed out by the court that the Explanation
violates the spirit of the Act and a hope was expressed
that the Parliament would delete the said Explanation
as
early as possible to remove the impression that the
enactment and retention of the same was deliberate
and was
inspired by motives which could not be said to be genuine,
democratic or sufficiently justifiable.
The Law Commission
had also referred in extenso in its working paper to the
decision of Supreme Court in
Kanwarlal Gupta v. Amarnath
Chawla [1974] INSC 194; (1975 (3) SCC 646), to get over which decision
indeed, Explanation 1 was enacted. The suggestion of the
Law Commission
was that deletion of Explanation 1 would
bring the legal position in conformity with the ruling in
Kanwarlal
Gupta's case.
1.3.4.1.The second suggestion in this behalf was to
introduce provisions
making it obligatory upon the
political parties to maintain regular accounts clearly and
fully recording
therein all amounts received by them and
all expenditure incurred, as is the legal requirement in
Germany.
It was further suggested that the said accounts
should be duly got audited at the end of each year and the
audited accounts submitted to the Election Commission
before the prescribed date every year. Election Commission
was required to publish the said accounts for public
information. This proposal was made to introduce
an
element of transparency and openness in the financial
matters of the political parties and is
backed by the
judgment of the Supreme Court in Gajanan Bapat v. Dattaji
Meghe (1995 SCC 347). The said decision emphasised the
desirability and necessity of the political parties
maintaining
true and correct account of their receipts and
expenditure including the disclosure of the sources of
receipt. It was pointed out in the decision that this was
essential to ensure the purity of elections and to prevent
money from influencing the outcome of elections. It was
pointed out by the Law Commission in its working
paper that
the aforesaid provisions in conjunction with the provisions
contained in section 29A, would advance
the objective of
ensuring purity of elections by preventing the money-power,
in particular black money-power
and money collected from
suspect sources from influencing the elections.
1.3.4.2. The third
proposal in this behalf pertained to
State funding. On this aspect, we merely reproduced the
provisions
contained in the Bill prepared by the then Law
Minister, late Shri Dinesh Goswami in 1990 since they were
based upon a consensus among the political parties,
inviting at the same time the response of all concerned
and
informed citizenry to the said proposal.
1.3.5. Amendment of section 8 and enhancement
of
punishment for electoral offences. The next major proposal
put forward in the working paper prepared and
circulated by
the Law Commission pertained to amendment of section 8 and
of sections 127(1), 134B(2), 135(1),
136(2) and insertion
of a new section 126A in the Act. It was also suggested
that punishments prescribed
by several sections in chapter
IXA of the Indian Penal Code 1860 should be enhanced. All
the above sections
in the Act as well as the Indian Penal
Code are election offences and quite serious too. The main
purpose
behind the suggested amendments was to provide (a)
that framing of charges by the court should by itself be a
ground for disqualifying a person from being a candidate
for election and (b) to enhance the punishments provided
for election offences contained in the Representation of
People Act, 1951 and chapter IXA of the Indian
Penal Code
so as to attract the procedure prescribed in the Criminal
Procedure Code for trial of warrant
cases. It may be
remembered that framing of charges is obligatory in the
warrant cases but not in
summons cases. (In the case of
offences triable according to the procedure prescribed for
trial of summons
cases, framing of charges lies within the
discretion of the court and is not obligatory.) The above
proposal
was put forward for the reason that persons
indulging in election offences are usually persons powerful
in political field and who command money and muscle-power
with the result that no witness comes forward to depose
against them. Since no independent witness comes forward
to depose against such persons, the prosecution
launched
against them inevitably ends in discharge or acquittal, as
the case may be. Indeed, a similar
proposal was also put
forward sometime ago by the Election Commission too. It
may be clarified that the
aforesaid amendment was proposed
only in sub-section (1) of section 8 and not in other
sub-sections of
section 8.
1.3.6. Other proposals. The other proposals contained in
the working paper pertained
to (a) enhancing the deposit in
the case of independent candidates and candidates of
unrecognised political parties. This substantial increase
was suggested with a view to discourage independents and
non-serious candidates from contesting elections
thereby
making the elections cumbersome, expensive and unmanageable
- indeed, farcical in some cases; (b)
steps designed to
ensure expeditious disposal of election petitions by the
High Court. The Law Commission
did not agree with the
suggestion of the Law Ministry to entrust the trial of
election petitions
to special tribunals instead of the High
Courts. It was pointed out in the working paper that such
an experiment
was undertaken earlier and was given up as a
failure and that only thereafter was the trial of election
petitions
entrusted to High Courts; (c) amendment of
section 97(1) of the Act in the light of the decision of
the Supreme Court in Bhagmal v. Prabhu Ram (AIR 1985 SCC
150) and (d) certain other amendments set out in the
working paper.
CHAPTER IV
German Law on Political Parties
Whether by design or by omission, our Constitution
does not provide for the constitution and
working of the
political parties, though they are at the heart of a
parliamentary democracy. A parliamentary
democracy without
political parties is inconceivable. Yet the Constitution
(except the Tenth Schedule
which was inserted only in the
year 1985) does not even speak of political parties whereas
article 21 of the
German Constitution (Basic Law for the
Federal Republic of Germany, 1949), which Constitution was
also
enacted almost simultaneously with our Constitution,
provides for the establishment and working of the political
parties. The Article reads thus:
"Article 21 (Parties)
(1) The parties shall help form the
political will
of the people. They may be freely established.
Their internal organisation
shall conform to
democratic principles. They shall publicly account
for the sources and
use of their funds and for
their assets.
(2) Parties which by reason of their aims or the
conduct of their adherents seek to impair or do
away with the free democratic basic
order of
threaten the existence of the Federal Republic of
Germany shall be unconstitutional.
The Federal
Constitutional Court shall rule on the question of
unconstitutionality.
(3) Details shall be the subject of federal laws."
1.4.1.1. Pursuant to article 21(3), the German Parliament
has enacted the `Law on Political Parties' in the year
1967, which has been amended from time to time.
Section 1
of the Law sets out "General Provisions". Article 1 which
deals with the constitutional
status and functions of the
parties, reads thus:
"Article 1. Constitutional Status and Functions
of
the Parties.
(1) Political parties form a constitutionally
integral part
of a free and democratic system of
government. Their free and continuous
participation
in the formation of the political
will of the people enables them to discharge the
public
tasks which are incumbent upon them pursuant
to the Basic law (Grundgestez)) and which they
undertake to fulfil to the best of their ability.
(2) The parties shall participate in the formation
of the political will of the people in all fields
of public life, in particular by:
bringing
their influence to bear on the shaping of
public opinion; inspiring and furthering political
education;
promoting an active participation by individual
citizens in political life;
training talented
people to assume public responsibilities;
participating in Federal, Land and Local
Government
elections by nominating candidates;
exercising an influence on political trends in
parliament and the government;
initiating their defined political aims in the
national decision-making processes; and
ensuring continuous, vital links between the people
and the public authorities.
(3) The parties shall define their aims in the
form of
political manifestos.
(4) The parties shall use their funds exclusively
for the fulfilment of their obligations under
the
Basic Law and this Law."
1.4.1.2. Article 2 defines the expression "Political
Party". It reads thus:
"Article 2. Definition of the term "Political
Party".
(1) Parties are associations of citizens who set
out to influence either
permanently or for a
lengthy period of time, the formation of political
opinions at Federal
or Land level and to
participate in the representation of the people in
the Federal
Parliament (Bundestag) or regional
parliaments (Landtage) provided that they offer
sufficient guarantee of the sincerity of their aims
in the general character of their circumstances and
attendant conditions, particularly in regard to the
size and strength of their organisation, the
number
of registered members and their public image.
party members may only be natural
persons.
(2) An organisation loses its legal status as a
party if it has not participated
for a period of
six years in either a Federal election or a Landtag
election with electoral
proposals of its own.
(3) Political organisations are not deemed to be
parties if;
1. most of their members or the members of their
executive committees are foreigners;
or
2. the registered seat of business is located
outside the purview of the present Law."
1.4.1.3. Article 3 empowers the political parties to
institute legal proceedings in their
own name and similarly
be sued in their own name.
1.4.1.4. article 4 provides that the name of
a party must
be clearly distinguishable from that of other existing
parties and that this rule is also
applicable to acronyms.
In election campaigns and the elections, only the
registered name or acronym
may be used.
1.4.1.5. Article 5 provides for equal treatment of all the
political parties. It
reads as under:
"Article 5. Equality of Treatment.
(1) Where a public authority
provides facilities or
other public services for use by a party, it must
accord equal treatment
to all other parties. The
scale of such facilities and services may be
graduated
to conform with the importance of the
parties to the minimum extent needed for the
achievement of their aims. The importance of a
party is judged in particular from the results of
previous elections for central or regional
government. In the case of a party represented
in
the Bundestag by a parliamentary party, the
significance accorded to it must amount
to at least
half that granted to any other party.
(2) As regards the granting of public
services in
connection with an election para (1) applies only
for the duration of the
election campaign to
parties which have submitted election proposals.
(3) The public
services referred to in para 1 may
be made dependent upon certain preconditions which
all parties have to fulfil.
(4) Section IV shall remain unaffected."
1.4.1.6. Section II deals with internal organisation
of
the political parties. Article 6 is of great significance
and may be set out in full:
"Article 6. Statutes and Programme.
(1) A party must have written statutes (articles
of association) and a written programme. Regional
organisations conduct their affairs on the
basis of
their own statutes provided that the statutes of
their immediately superior regional
organisation do
not contain any provisions bearing on this matter.
(2) The Statutes must
contain provisions on:
1. The name and acronym (if used), the registered
seat and the activities
of the party.
2. The admission and resignation of members.
3. The rights and duties of members.
4. Admissible disciplinary measures against members
and their exclusion from the party (Article 10,
paras 3 to 5).
5. Admissible disciplinary measures against
regional organisations.
6. The general organisation of the party.
7. Composition and powers of the executive
committee and other organs.
8. matters which may only be decided upon by a
meeting of
members ad representatives pursuant to
No.9.
9. The preconditions, form and time limit for
convening meetings of members and representatives
and the official recording of resolutions.
10. Regional organisations and organs which are
authorised to submit or sign election proposals
for
elections to parliaments inasmuch as three are no
relevant legal provisions.
11. An overall vote by members and the procedure
to be adopted when the party or a regional
organisation or to merge with another party or
parties pursuant to Article 9, para 3. The
result
of the overall vote determine whether the
resolution is confirmed, amended
or rescinded.
12. The form and content of a financial structure
which satisfies the rules of Section
V of this Law.
(3) The executive committee informs the Federal
Returning Officer of:
1. The party's statutes and programme.
2. The names of the members of the executive
committee of the party and its regional
organisations together with their duties.
3. The dissolution of the party or a regional
organisation. Amendments to sentence 1(1) and (2)
above must be notified by 31 December of the given
calender year. The relevant documents are held
by
the Federal Returning Officer and made available to
the public for perusal and inspection.
On
request, copies of the documents are provided free
of charge.
(4) Parties whose organisation is restricted to the
territory of a Land are governed by the provisions
set out in the present Law for parties as a whole."
1.4.1.7. Article 7 deals with the
organisation of political
parties both at the national and regional level.
1.4.1.8. Article 8 provides that the members' meeting and
the executive
committee shall constitute the essential
organs of the party and its regional organisations and for
other
allied matters.
1.4.1.9. Article 9 provides for constitution of members'
assemblies and delegates
assemblies and the rights of the
members in that behalf.
1.4.1.10. Article 10 empowers the political
parties to
decide on the admission of new members. It says that no
justification need be given for refusing
an application for
membership. It further declares that members of the party
and the representatives in
the party bodies have equal
voting rights. The party can frame statutes providing for
disciplinary action
against members and other matters
specified therein.
1.4.1.11. Article 11 provides that
every political party
shall elect an executive committee at least every second
calender year and that
the committee must consist of at
least three members. It also deals with the powers of the
executive committee
and its duties.
1.4.1.12. Article 12 provides for constitution of general
party committees and other incidental
matters.
1.4.1.13. Article 13 provides for composition of delegates'
assemblies.
1.4.1.14. Article 14 provides for arbitration in case of a
dispute between the members or between the
party and
members or between the party ad regional organisations, as
the case may be.
1.4.1.15. Article 15 deals with the process of
decision-making in party organs. It reads thus:
"Article 15. Decision-Making in Party Organs.
(1) The party organs adopt their resolutions
on the
basis of a simple majority vote inasmuch as a
higher majority vote is not stipulated
by law or by
the statutes.
(2) The ballots for members of the executive
committee and representatives to delegates'
assemblies as well as to the bodies of higher
level
regional organisations are secret. Voting at other
elections is not secret unless
voters object when
asked to confirm such procedure.
(3) The statutory provisions
governing the
submission of motions must be such as to ensure the
democratic forming
of opinions and in particular
adequate discussion of the proposals put forward by
minorities.
At the delegates' assemblies of higher
level regional organisations, at least the
representatives of the regional organisations at
the next two lower levels must be granted the right
to introduce motions. No commitment to the
resolutions of other bodies is permissible
at
elections and polls."
1.4.1.16. Article 16 deals with dissolution and/or
termination of the subordinate regional organisations.
1.4.1.17. Section III contains only one
article, namely,
article 17. It says that "candidates for election to
Parliament must be chosen
by secret ballot. The nomination
procedure is governed by the election laws and the party
statutes."
1.4.1.18. Section IV containing articles 18 to 22 deals
with public financing of political parties whereas Section
V obliges the political parties to maintain and publish
their accounts regularly. Article 23 needs to be set out
in full:
"Article 23. Statutory obligation to Publish
Accounts.
(1) The executive committee of the party shall make
a public statement of the origins
and the use of
funds received by its party within a calendar year
(accounting year) as well
as of the assets of the
party in a statement of accounts.
(2) The statement of accounts
must be scrutinised
by a certified auditor or auditing company in
accordance with articles
29 to 31. In the case of
parties who do not meet the requirements of article
18, para 4,
first sentence, the statement of
accounts may be scrutinised by a chartered
accountant.
It must be submitted by 30 September
of the year following the accounting year to the
President of the German Bundestag and be circulated
by the latter as a Bundestag paper. The President
of the German Bundestag can extend the limit by up
to a maximum of three months in extenuating
circumstances. The party statement of accounts
shall be submitted for discussion to
the federal
party convention following its publication.
(3) The President of the German
Bundestag shall
examine whether the statement of accounts is in
accordance with the regulations
of Section V. The
result of the scrutiny shall be recorded in the
report in accordance
with para 5.
(4) The President of the German Bundestag may not
determine a party's
allocation of public funds
under articles 18 and 19 so long as a statement of
accounts
in accordance with the provisions of
Section V is still outstanding. Payments under
article 18 shall be based on the statement of
accounts to be submitted for the preceding year,
payments under article 20 on the statement of
accounts submitted for the preceding year.
If a
party fails to submit the report by 31 December of
the following year it shall forfeit
its claim to
public funds: allocations and disbursements to the
other parties shall remain
unaffected.
(5) The President of the German Bundestag shall
submit annually to the
German Bundestag a report on
the state of party finances and on the statements
of accounts
of the parties. The report shall be
circulated as a Bundestag paper."
1.4.1.19.
Article 23(a) prohibits the political parties
from obtaining donations illegally. It also provides that
in case the political party fails to publish the statement
of accounts as provided by article 25(2), it shall forfeit
public funding in an amount double the amount illegally
obtained or not published in accordance with article
25(2).
It also sets out the meaning of `illegal donations'.
Article 24 specifies what should the statement
of income
and expenditure contain. It mentions the several items
which must necessarily be included and shown in such a
statement. Broadly speaking it must disclose full
particulars in the specified form, of income received,
sources from which received, expenditure incurred on
various items and its net assets.
1.4.1.20. Article 25 deals with donations to political
parties. It says that political parties are entitled
to
accept donations except from the sources specified therein.
The sources which are so excluded
are political
foundations and parliamentary groups, corporate bodies,
religious and charitable associations
of persons and so on.
1.4.1.21. Article 26 defines the expression "income".
Article
28 creates a statutory obligation upon the
political parties to "keep books in respect of their
accountable income and expenditure and of their assets".
The article further provides that the accounts
"shall be
kept in accordance with the principles of orderly
accounting and with regard for
the purpose of the present
law. Accounts shall be preserved for five years..."
1.4.1.22.
Article 29 provides for auditing of the
statement of accounts while article 30 makes it obligatory
that the statement of accounts shall contain an audit
certificate in the prescribed manner. Article 31 deals
with the appointment of auditors.
1.4.1.23. Sections VI and VII deal with implementation of
bans on unconstitutional parties and final provisions,
which are not relevant for our purpose and need
not be
referred to.
1.4.2. Though our Constitution was also framed between the
years
1946 to 1949 (i.e., approximately at the same time
when the German Constitution was drawn), it is rather
inexplicable why our Constituent Assembly did not think it
appropriate to make provisions governing the political
parties on the lines contained in the German Constitution.
It may be mentioned even at this stage that
though this
aspect did not figure in the suggestions contained in the
working paper prepared by the Law
Commission in September
1998 and circulated among the political parties and the
members of the public,
the same has assumed considerable
significance in the course of debate at the several
seminars held
by the Law Commission in this behalf and has
also been suggested in several responses received by the
Law
Commission in response to the working paper.
PART II
Views of Political Parties and Interested Persons
obtained in Seminar
2.1 The working paper prepared by the Law Commission
was communicated to all the recognised
political parties,
both at the national and State level, the Houses of
Parliament, the State Legislatures,
to the High courts, bar
associations, Election Commission, prominent media
personalities, associations
and organisations interested in
electoral reform and many other public-minded persons. A
large number of
responses have been received from parties,
persons, organisations, associations and individuals which
have
been duly collated. In addition to circulating the
working paper, the Law Commission also held four seminars
to elicit informed opinions and views of the political
parties and the responsible members of the public.
The
first seminar was held on 14th November 1998 at the India
International Centre. It was a one-day
seminar comprising
two sessions. The morning session was devoted to
introduction of list system
and amendment of Tenth Schedule
while the second session was devoted to proposals for
curtailing expenditure
on elections and the measures to
curb the entry and influence of criminal elements. Certain
political parties
viz., BJP, CPI(M), CPI, DMK and Shiromani
Akali Dal were represented by their spokesmen S/Shri Jana
Krishnamurthy,
Sitaram Yechury, A.B. Bardhan, T.R. Balu
and Manjeet Singh Khera, respectively. Shri Shivraj Patil,
MP
(former Speaker of Lok Sabha) and Shri Kapil Sibal, MP
(a senior advocate) who are members of Congress-I, also
participated but in their individual capacity. Besides the
above, senior journalists S/Shri H.K.Dua, C.R.
Irani,
Inderjit, N.Ram and S.Sahay and senior advocates Shri
Shanti Bhushan (former Minister for
Law, Government of
India), Shri Soli Sorabjee (Attorney General), Shri
Rajinder Sachhar (former
Chief Justice Delhi High Court),
Shri T.R.Andhyarujina (former Solicitor General of India),
Shri P.P.Rao,
Shri Jitender Sharma and Shri M.C.Bhandare
participated. Shri Ram Jethmalani, the Hon'ble Minister
for
Urban Development participated in both the sessions.
Dr.K.C.Sivaramakrishnan, from the Centre for Policy
Research, New Delhi, Shri V.K.Samayak, President, Voters'
Forum, New Delhi, and Shri N.N.Vohra, Director,
India
International Centre, also participated. The participants
put forward several valuable suggestions,
observations and
comments all of which have been duly recorded in the
minutes of the seminar prepared
by the Law Commission.
2.2 The second seminar was held at Thiruvananthapuram
in the auditorium of the Bar
Council of Kerala. Several
senior advocates and members of Bar Council of Kerala
participated therein
which was also addressed by Shri
Justice V.R.Krishna Iyer, former Judge Supreme Court of
India and
an eminent public figure. The minutes of this
seminar have also been prepared by the Law Commission.
2.3 The third seminar was held at Bangalore in the
premises of the National Law School of India University.
Several academicians and professors of law participated in
this seminar. The minutes of this seminar have
also been
prepared by the Law Commission.
2.4 Finally, a National Seminar on Electoral Reforms
was held, at New Delhi on 23-24th January, 1999 at Vigyan
Bhawan, in association with the Bar Council of India. It
was inaugurated
by the Hon'ble Prime Minister of India Shri
Atal Bihari Vajpayee and was presided over by the then
Minister
for Law, Justice & Company Affairs Dr.M.Thambi
Durai. Shri Justice M.N. Venkatachaliah, Chairperson,
National Human Rights Commission was the Chief Guest at the
inaugural session which was addressed by the Chairman
and
Members of the Law Commission and of the Bar Council of
India. In his inaugural address, the Prime
Minister of
India supported the proposals of the Law Commission with
respect to introduction of list
system, amendment of the
Tenth Schedule to the Constitution and amendments to
curtail the expenditure
on elections and regulation of
receipts and expenditure by the political parties. With
respect to list
system, however, the Hon'ble Prime Minister
opined that the suggestions in that behalf may required
deeper
consideration. So far as the amendment of section 8
of the Act is concerned, the Hon'ble Prime Minister
expressed his agreement while clarifying that mere filing
of charges should not be the basis for disqualification.
The then Law Minister expressed the anxiety of the
Government to bring about reform of electoral
law in the
interest of a transparent, fair and clean electoral
process. Shri Justice M.N.Venkatachaliah
commended the
initiative taken by the Law Commission in the matter of
electoral reform and called
for serious and prompt
legislative action by Parliament to remove the distortions
and defects in the
system.
2.5 The National Seminar was divided into five working
sessions besides the inaugural and
the valedictory
sessions. The first session dealt with the amendment of
Tenth Schedule to the Constitution.
It was presided over
by Shri I.K.Gujral, former Prime Minister of India and the
main speakers were Shri
Shivraj Patil, former Speaker of
Lok Sabha and Shri Justice V.R. Krishna Iyer. The second
session was
presided over by Shri S.Jaipal Reddy, MP
(Janata Dal). This session was devoted to introduction of
list
system. The main speakers were Shri Justice
B.P.Jeevan Reddy, Chairman, Law Commission of India,
Dr.N.M.Ghatate, Member, Law Commission of India and Shri
D.V. Subba Rao, Member, Bar Council of India. The
third
session on the morning of 24th January was devoted to
curtailing of election expenditure and regulation
of income
and expenditure of political parties. This session was to
be presided over by Shri Inderjit
Gupta, MP (former Home
Minister) but on account of the delay in the flights, he
could not reach Delhi in
time. Shri Somnath Chaterjee, MP
[CPI(M)] presided over this session. The main speaker at
this session
was Shri K.K.Venugopal, senior advocate. The
next session pertained to the problems concerning hung
Parliament. It was presided over by Shri Arun Mishra,
Chairman, Bar Council of India and the main speakers were
Shri K.L.Sharma, Vice President of BJP, Shri Justice
K.N.Saikia, former Judge Supreme Court of India
and Shri
T.P.Singh, senior advocate and Member, bar Council of
India. The last session discussed the
criminalisation of
politics including the proposed amendment of section 8 of
the Act. It was presided over by Shri P.A.Sangma, MP
(former Speaker of Lok Sabha). The main speakers at this
session were Shri Dileep Padgaonker, Executive Editor,
The
Times of India and Shri V.R.Reddy, senior advocate and
former Additional Solicitor General of India.
2.6. In all the above sessions, a large number of
persons from political parties, Bar Council
of India, bar
associations and other public bodies and organisations also
spoke.
2.7.
The concluding/valedictory session was presided
over by Shri George Fernandes, the Hon'ble Defence
Minister. The valedictory address was delivered by Shri
Justice V.R.Krishna Iyer, former Judge, Supreme Court
of
India.
2.8. The entire proceedings of this two-day National
Seminar were tape
recorded.
2.9. The Law Commission has looked into the vast amount
of literature on the subject
of electoral reforms, in
particular, the opinions expressed therein touching the
issues considered in
this Report.
CHAPTER I
Necessity for providing law relating to internal
democracy within political parties
3.1.1. On a consideration of the various views expressed
in the four seminars aforesaid and the vast
number of
responses received by us, we have come to the conclusion
that for successful implementation of
any of the aforesaid
proposals, or for that matter for bringing a sense of
discipline and order into
the working of our political
system and in the conduct of elections, it is necessary to
provide by law
for the formation, functioning, income and
expenditure and the internal working of the recognised
political
parties both at the national and State level.
The necessity of such a requirement was stressed by Shri
S.Jaipal Reddy, MP (a former Minister for Information and
Broadcasting), by Shri Manjit Singh Khera (representing
SAD), by Dr. N.L. Mitra, Director, National Law School of
India University, and several other participants
in the
seminars held by the law Commission. To the same effect
was the view expressed by Shri Santosh
Sharma, IAS (retd.)
and president of "People First". As pointed out in chapter
four of Part one,
the German Constitution, which was
enacted practically at the same time as our Constitution,
expressly
provides for formation and functioning of the
political parties. Article 21 which has been set out in
the said chapter says that the political parties shall help
form the political will of the people, that political
parties can be freely established and that their internal
organisation shall conform to democratic principles.
It
further says that the political parties should publicly
account for the sources and use of their
funds and for
their assets. Article 21 further provides that political
parties which by reason of their
aims or the conduct of
their adherents seek to impair or do away with the free
democratic basic order
or threaten the existence of the
Federal Republic of Germany shall be unconstitutional and
that the Federal
Constitutional Court shall rule upon the
question of unconstitutionality. Clause (3) of Article 21
provides
that the details in this behalf shall be provided
by federal laws. Accordingly, on 24th July 1967, the law
on Political Parties was enacted. We have already referred
to the relevant provisions of this Law in chapter four
of
Part One.
3.1.1.1. Shri Rajni Kothari while dealing with
powers of internal
democracy in the Congress Party, said
this:
"The `Congress system' has to learn to
bear more
strains and deal with more problems but it has also
to become more of a `system'
than it at present is.
After March, 1967, it will need to consider
further steps towards
its own institutionalisation
in the resolution of disputes, in the conduct of
internal
elections, in organising party
intelligence and research, in policy-decison
making, in the party's own federal relations, in
party-government communications, and above all in
regard to the whole process of selection of
candidates for different types of elections
and
especially for the General Elections." (Centre for
the Study of Developing Societies,
Context of
Electoral Change in India, General Elections, 1967,
page3).
3.1.2. With a view to introduce and ensure
internal
democracy in the functioning of political parties, to make
their working transparent and open
and to ensure that the
political parties become effective instruments of achieving
the constitutional goals
set out in the Preamble and Parts
III and IV of the Constitution of India, it is necessary to
regulate by
law their formation and functioning. In this
connection, reference can be had to the law laid down in
the nine-judge Constitution Bench of the Supreme Court in
S.R.Bommai v. Union of India (1994 (3) SCC1). Explaining
the concept of secularism implicit in the constitutional
provisions, the Court made the following observations
at
page 236:
"Inspired by the Indian tradition of tolerance and
fraternity,
for whose sake, the greatest son of
Modern India, Mahatma Gandhi, laid down his life
and seeking to redeem the promise of religious
neutrality held forth by the Congress Party, the
Founding Fathers proceeded to create a State,
secular in its outlook and egalitarian
in its
action... if any party or organisation seeks to
fight the elections on the basis
of plank which has
the proximate effect of eroding the secular
philosophy of the
Constitution it would certainly
be guilty of following an unconstitutional course
of action....
if the Constitution requires the
State to be secular in thought and action, the same
requirement
attaches to political parties as well."
3.1.2.1. 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 the political parties
which are integral to parliamentary
democracy. It is the
political parties that form the government, man the
Parliament and run the
governance of the country. It is
therefore, necessary to introduce internal democracy,
financial transparency
and accountability in the working of
the political parties. A political party which does not
respect democratic
principles in its internal working
cannot be exposed to respect those principles in the
governance
of the country. It cannot be dictatorship
internally and democratic in its functioning outside.
3.1.3. Conclusion.- Keeping the aforesaid considerations
in mind, we recommend that a new part, Part II-A,
entitled
`Organisation of Political Parties and matters incidental
thereto' be introduced/inserted in the
Act, containing the
undermentioned sections:
3.1.3.1. In view of reiteration of our proposal
to
repeal section 11 and 11B of the Representation of People
Act, 1951 as stated under paragraphs 6.1.1
and 6.2 of part
VI infra, the existing section 11-A entitled
"Disqualifications arising
out of conviction and corrupt
practices" which will fall under Chapter IV, shall be
renumbered
as Section 11. Consequently, the following
sections proposed to be inserted under part II-A shall be
numbered as Section 11-A to 11-H.
PART II-A
Organisation of Political Parties
and matters incidental thereto
Section 11-A: (1)Political parties can be freely formed by
the citizens of this country. The political parties
shall
form a constitutionally integral part of free and
democratic system of Government.
(2) Each political party shall frame its
constitution defining its aims and objects and providing
for matters specified in section 11A. The aims and objects
of a political party shall not be inconsistent
with any of
the provisions of the Constitution of India.
(3) A political party shall strive towards,
and utilize its funds exclusively for, the fulfilment of
its aims and objects and the goals and ideals
set out in
the Constitution of India.
(4)(a) A political party shall apply for
registration with the Election Commission of India.
(b) Every such application shall be made, -
(i) if the association or body is in
existence at the commencement of the Representation of the
People and other Allied Laws (Amendment) Act, 1999 ( __of
1999), within sixty days next following such commencement;
(ii) if the association or body is formed
after such commencement, within thirty days next
following
the date of its formation.
(c) Every application under sub-section (4)
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.
(d) Every such application shall contain the
following particulars, namely: -
(i) the name of the association or body;
(ii)the State in which its head office is
situated;
(iii)the address to which letters
and other
communications meant for it should be sent;
(iv)the names of its president, secretary,
treasurer and other office-bearers;
(v)the numerical strength of its members,
and
if there are categories of its members, the numerical
strength in each category;
(vi)whether
it has any local units; if so,
at what levels;
(vii)whether it is represented by any
member or members in either House of Parliament or of any
State Legislature; if so, the number of such
member or
members.
(viii)a declaration that the applicant has
complied with and
shall continue to comply with the
requirements of this chapter.
(e) The application under
sub-section (4) 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.
(f) The Commission may call for such other
particulars as it may deem fit from the association or
body.
(g) 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 political party under this sub-section unless
the memorandum or rules and regulations of such
association
or body conform to the provisions of clause (e).
(h) The decision of the Commission
shall be final.
(i) 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.
(5) Only a political party registered
with
Election Commission of India, and whose registration is not
cancelled under this Act, shall be entitled
to contest
elections whether to Lok Sabha or that of Legislative
Assembly.
Section
11-B: (1) A political party may sue and may be
sued in its own name. A political party shall be competent
to hold and dispose of properties.
(2) The name of a political party must
be clearly distinguishable
from that of any existing
political party and shall be subject to approval by the
Election Commission.
In election campaigns and in
elections, only the registered name or its acronym, as may
have been
approved by the Election Commission, alone shall
be used.
(3) Political parties can be formed
both at the national level as well as at the State level.
Section 11-C: The constitution of a
political party shall
provide for the following matters:-
(a) name of the political party and
acronym (if used)
and the aims and objectives of the party;
(b) procedure for admission, expulsion
and resignation
by the members;
(c) rights, duties and obligations of the members;
(d) grounds on which and the procedure according to
which disciplinary action can be taken against the
members;
(e) the general organisation of the party including the
formation of State, regional,
district, block and village
level units;
(f) composition and powers of the executive committee
(by whatever name it is called) and other organs of the
party;
(g) the manner
in which the general body meetings can
be requisitioned and conducted and the procedure for
requisitioning
and holding conventions to decide questions
of continuance, merger and other such fundamental
organisational
matters;
(h) the form and content of the financial structure of
the party consistent with the
provisions of this part.
Section 11-D: The executive committee of a political
party shall
be elected. Its term shall not exceed three
years. Well before the expiry of the term, steps shall be
taken for electing a new executive committee. It shall be
open to the executive committee to constitute
a
sub-committee (by whatever name called) to carry out the
business of the executive committee and to carry on regular
and urgent executive committee business. The members of
the sub-committee shall be elected by the members
of the
executive committee.
Section 11-E: A political party and its organs shall
adopt their resolutions on the basis of a simple majority
vote. The voting shall be by secret ballot.
Section 11-F: The candidates for contesting elections to
the Parliament or the Legislative Assembly of
the States
shall be selected by the executive committee of the
political party on the basis of
the recommendations and
resolutions passed by the concerned local party units.
Section 11-G: (1)
It shall be the duty of the executive
committee to take appropriate steps to ensure compliance
with the
provisions of this chapter including holding of
elections at all levels. The executive committee of a
political party shall hold elections of national and State
levels in the presence of the observers to be nominated
by
the Election Commission of India. Where considered
necessary, the Election Commission may
also send its
observers at elections to be held at other national and
state levels.
(2) The executive committee of a
political party shall maintain regular accounts of the
amounts
received by the party, its income and expenditure,
have them audited and submit the same to the Election
Commission as required by section 78-A of this Act.
(3) A political party shall be
entitled to accept donations except from the following
sources:-
(a) donations from political
foundations or
foreign governments or organisations or associations
registered outside the
territory of India or
non-governmental organisations which are in receipt of
foreign funds or
from any other association, organisation,
group which is in receipt of foreign funds or from a
foreign
national.
(b) donations from corporate bodies and companies
except in accordance with the provisions
of the Companies
Act, 1956.
Section 11-H: The Election Commission shall be competent
to inquire, either suo motu or on information
received into
allegation of non-compliance of any of these provisions of
this chapter. If on due inquiry,
the Election Commission
is satisfied that there has been non-compliance of any of
the provisions of this
chapter by any political party, the
Commission shall call upon the party to rectify the
non-compliance
within the period prescribed by the Election
Commission. In case, the non-compliance continues even
after
the period so prescribed, it shall be open to the
Election Commission to impose such punishment on the
political party as it may deem appropriate in circumstances
of the case including levy of the penalty of Rs.10,000/-
per day for each day of non-compliance and withdrawal of
registration of the party.
Section 11-I: Where a public authority provides
facilities or offers public services for use to a political
party, it must accord equal treatment to all. The scale of
such facilities and services may be graduated to
conform to
the importance of the parties subject to the minimum extent
needed for the achievement of their
aims. The importance
of a party shall be decided on the basis of the results of
immediately previous election
to Parliament or State
Legislative Assembly, as the case may be. The granting of
public services shall
be only in connection with and for
the duration of the election campaign period. For the
purposes of
this section, the election campaign period
shall be deemed to commence 14 days prior to the
commencement of the poll in a State.
(Rules made under the Act can provide the requisite
details
on the pattern of the provisions of the German Law
on Political Parties, 1967).
3.1.4. In view
of the above provisions, Part IV-A of the
Act, containing section 29-A shall be deleted. The
substance
of section 29-A has been incorporated in section
11-A.
CHAPTER II
Analysis of views and conclusions
regarding the List System
3.2.1. In this chapter we shall deal with the
concept of list system in addition to
the existing
`first-past-the post (FPP) system' which was proposed in
our working paper. The reasons
for introducing this system
have been set out in chapter three of part one of this
report as well as
in the working paper. In the seminars
conducted by the Law Commission and in the responses
received
pursuant to the circulation of working paper,
various views have been expressed which we shall discuss
hereinbelow.
3.2.2. Shri S. Jaipal Reddy who presided over the
second session of the National
Seminar on 23rd January 1999
opposed the introduction of list system altogether while
conceding that the
list system is certainly more
representative. He opined that that alone should not be
the objective
of the elections. According to him, the list
system was likely to lead to proliferation of political
parties.
In a society which is indeed a "society of
minorities", this system, he said, would not promote the
national interest. He also pointed out that in the list
system, the umbilical cord between the constituency
and the
candidate is absent. He pointed out that list system was
preferred in countries with homogenous
societies and was
not suited to a country like India whose society was the
most heterogenous in the world,
divided as it was on the
grounds of religion, caste, language, region, race and so
on. Even if the list
system was introduced, he said, it
should not be confirmed to recognised political parties as
suggested by
the Law Commission. He gave the example of
Telugu Desam Party in Andhra Pradesh, which was formed just
about nine months before the elections to the Legislative
Assembly in Andhra Pradesh and yet swept the polls in 1983.
He suggested that all the registered political parties
should be allowed top participate in the election
held on
the basis of list system. Mr. Jaipal Reddy also pointed
out several merits of the existing FPP
system. According
to him, the FPP system had the merit of reducing the number
of political parties.
The present proliferation of
political parties in this country is taking place in spite
of the FPP
system, he said. According to him, the FPP
system led to stability by eliminating smaller parties.
According to him, there must necessarily be an intimate
connection between the candidate and the constituency. Mr.
Jaipal Reddy also pointed out that there should be a rule
that for obtaining any seat under the list
system, a
political party must obtain certain prescribed minimum
percentage of votes and in this connection,
referred to the
position obtaining in Greece and Germany - particularly in
the latter country. Unless
a political party got a
particular specified percentage of votes in the
parliamentary or assembly
elections, it should not get any
seats, he suggested. He commended such a rule to be
adopted in case
the list system was to be adopted.
3.2.2.1. The views of Mr. Jaipal Reddy were
supported by Shri
D.V. Subba Rao, Member, Bar Council of
India and Shri Margabandhu, MP and Chairman, Tamil Nadu Bar
Council.
Mr. Margabandhu opined that such a system would
benefit the money bags and would be unable to reflect
regional interests and aspirations.
Views to the same
effect were expressed by Shri Kapil Sibal, MP (Congress-I)
at the seminar held on
14th November 1998. Shri Ram
Jethmalani, the Hon'ble Minister for Urban Development,
purporting to
express his personal views, opposed the list
system. He said that Rajya Sabha is already there to serve
the
purpose behind the list system. He further opined that
introduction of list system would give rise to two classes
of MPs - one elected directly and the other elected
according to list system. He referred to Lord
Jenkin's
report published some time in October-November in U.K.
(reference to this report was also made
by Dr. S.C. Jain,
Member Secretary of Law Commission in his initial remarks
at the seminar held on
14th November, 1998) which
recommended alternative vote plus system. He suggested
that the existing
FPP system could be replaced by a single
transferable vote. List system, he said, would help in
entrenching
coalitions.
3.2.3. Shri Jana Krishnamurthy, Vice President of
the BJP opined in the seminar held
on 14th November, 1998
that there was a danger of the list system encouraging
casteist and communal
tendencies and is likely to promote
caste-based and relation based political parties. He
pointed out
that introduction of such a system would lead
to several small parties putting up their candidates in
several constituencies with the hope that the totality of
the votes polled by them would yield some seats under the
List system, which they would not have got under the FPP
system.
3.2.4. On the
other hand, several political
parties, individuals and organisations supported the list
system. In
particular, the two Communist parties, the DMK
and the Shiromani Akali Dal supported the introduction of
the list system wholeheartedly. Indeed, it was suggested
by Shri Sitaram Yechury (representing the CPM), Shri T.R.
Balu (representing the DMK) and Shri Manjeet Singh Khera
(representing Shiromani Akali Dal) that the number
of seats
to be filed according to list system should be raised to
50% of the existing strength of
Lok Sabha and the
Legislative Assemblies, instead of restricting it to 25% as
suggested by the Law Commission.
Shri M.S. Khera opined
that the apprehension that the list system would encourage
casteist tendencies was
misplaced. List system was also
strongly supported by Shri H.K. Dua, senior journalist who
too wanted the
strength of members to be elected on this
basis raised to 50%. According to him, the Law
Commission's
proposal was a definite improvement over the
existing electoral scene. Shri A.B. Bardhan (CPI)
strongly commended the list system. According to him it
was overdue. He said that prominent campaigners for the
political parties were usually tied up in campaigns for
their parties all over the country and could
not devote
adequate attention to their particular constituency. The
list system would help such persons
to become members of
Lok Sabha/State Legislature. He pointed out that such a
system was working quite
well in Germany and Japan. He
sought to allay the apprehension that criminals and money
bags were likely to get into Parliament/Legislatures
through this method. Shri Rajinder Sachhar, senior
advocate and former Chief Justice of Delhi High
Court
supported the list system but he did not agree with the
concept of territorial units. He suggested
that list
system should be implemented on all-India basis. Shri
Inderjit, senior journalist, Shri
N. Ram, senior
journalist and Editor, Frontline, Shri C.R. Irani, Editor,
The Statesman and Shri V.K.
Samayak, President, `Voters
Forum Foundation of India', New Delhi, and Shri S. Sahay,
senior journalist
not only supported the list suystem but
wanted it to be raised to 50% of the existing strength
instead
of the suggested 25%. Another senior advocate,
Shri Jitendra Sharma supported the idea but suggested that
it should be operated on all-India basis. This, he said,
was necessary to curb casteism and communalism.
3.2.5. In connection with the carving of
territorial units, one of the participants
Shri
Shivaramakrishnan pointed out that if the latest census was
made the basis, then the southern States,
in particular
Kerala, would be adversely affected. He pointed out that
because of better implementation
of family planning
programmes, their population growth has slowed down while
the rate of growth in
the northern States like U.P. and
Bihar remained more of less unaffected. If in such a
situation,
the latest census was made the basis for
redrawing the territorial constituencies or territorial
units, the southern States would stand to lose
substantially. It would really amount to punishing them
for successful implementation of family planning
programmes. Facts and figures were cited in
support of
such an argument. It was stated that with a view to
allaying this apprehension, it should
be provided that 1971
cansus shall be the basis of drawing up territorial units.
Indeed, such a provision
already existed in clause (3) of
article 81 of the Constitution. Since we are accepting
their plea,
it is not necessary to cite the facts and
figures in support of the said plea.
3.2.6. We may
also refer to the views expressed by
several persons and organisations who communicated their
views in
response to our working paper. Shri Arun Jaitley
(senior advocate), Rajasthan Legislative Assembly
Secretariat, Shri P.V. Namjoshi, Delhi Bhartiya Grammin
Mahila Sangh, Shri C.K. Jain (former Secretary-General,
Lok Sabha), Hill States People's Democratic Party,
Meghalaya, Registrar High Court of M.P.,
Jabalpur,.
opposed the list system. Some others, namely , CPI(M),
Shri R.S. Narula, retired Chief
Justice of Punjab and
Haryana High Court and Manipur People's Party, agreed with
the proposal to introduce
the list system. Shri R.S.
Narula suggested that the list system should be the only
method by which
the totality of Members of Lok Sabha and
Legislative Assemblies should be elected. Several other
individuals
expressed varying views which need not be
specifically referred to herein.
3.2.6.1. The
fact of `wasting' away of the votes
cast in the FPP system has also been recognised in other
parts of the world. Thus in the response of the Electoral
Reform Society to the Commission on Local Government and
the Scottish Parliament, (July, 1998), it has
been
mentioned inter alia, that the FPP system distorted the
expressed wishes of those who actually
voted by observing
thus:-
"Local Democracy"
Question 2
One of the reasons for poor turnouts at local
government election is that the votes of large
numbers of
electors will not count, either within their local
constituency or in the overall composition
of the Council.
Until this has been corrected, changing administrative
arrangements will only have a limited
effect.
The magnitude of this problem is not often
appreciated. For example, in the
local authority elections
in April, 1995 in Edinburgh, 49% of those who actually
voted cast a vote
that had no effect in securing the
election of any representative as they were for losing
candidates.
It is common in all first-past-the-post (FPTP)
elections for between 30% and 60% of the votes cast to be
'wasted' in this way. In circumstances where they know
that one party holds a seat with a large majority, many
electors are discouraged from turning out to vote."
"The results of the
local authority elections in
April, 1995 show well the extent to which the
present
FPTP voting system distorts the expressed
wishes of those who actually vote. In the city of
Glasgow Council, Labour, with 61% of the votes,
took 77 of the 83 seats, i.e. 93%. There were
also serious distortions among the smaller parties
in this election: the Conservatives with
7% of the
votes, took 3 seats, while the SNP gained only 1
seat despite having 23% of the
votes."
3.2.6.2. The Report of the Independent Commission on
the voting System ("Jenkins
Report") summarises the Main
Electoral Systems in the world. These include
i) First Past
the Post (FPTP)
ii) The Alternative Vote (AV)
iii) Supplementary vote (SU)
iv) Second Ballot
v) List Systems
vi) Single Transferable Vote (STV)
vii) Mixed Systems: the Additional member
System
(including AV or SV Top-up) and Parallel Systems
(AMS)
3.2.6.3.
The terms of reference of the said
Commission given in December, 1997, was to recommend the
`best
alternative system' or combination of systems to the
existing commonly-called `First Past the Post' system of
election to the Westminister Parliament. In doing this, it
was asked to take into account four not entirely compatible
`requirements'. They were: i) broad proportionality; (ii)
the need for stable government; (iii) an extention
of voter
choice, and (iv) the maintenance of a link between MPs and
geographical constituencies.
3.2.6.4. The Commission set out the basis of fair
election viz., to the concept of `fairness' in electoral
outcomes, the place of political parties; and the role of
Members of Parliament.
3.2.6.4A.
It emphasises that fairness to voters is
the first essential. A primary duty underlying an
electoral system is to represent the wishes
of the
electorate as effectively as possible. The Commission
observes that the major fault of the First
past the Post in
this context is that it distorts the desires of the voters.
It emphasises that the fact
that voters do not get the
representation they want is more important than that the
parties do not get
the seats to which they think they are
entitled.
3.2.6.5. After going through
the
problems/advantages/disadvantages of the existing First
Past the Post system, the said Commission
recommended,
inter alia as under:
"The best alternative for Britain to the
existing First Past the Post system is a two-vote
mixed system which can be described as either
limited AMS or AV Top-up. The majority of MPs (80
to 85%) would continue to be elected
on an
individual constituency basis, with the remainder
elected on a corrective Top-up
basis which would
significantly reduce the disproportionality and the
geographical divisiveness
which are inherent in
FPTP. But it cannot be denied that democracy
postulates the
working out of a system which is
best suited to the peculiar needs of the country."
3.2.6.6. It appears that a committee appointed to
suggest electoral reforms in Spain, prepared the following
summary on an overview of the elctoral systems obtaining in
various countries.
"Summary of Electoral System Types
There are hundreds of electoral systems
currently in use and many more permutations on each
form, but for the sake of simplicity we have
categorised electoral systems into three broad
families:
.the
plurality-majority,
.the semi-propotional, and
.the proportional.
Within these
three we have ten "sub-families".
.First Past the Post (FPTP),
.the Block Vote (BV),
.the Alternative Vote (AV), and
.the Two-Round System (TRS) are all
plurality-majority systems.
.Parallel systems,
.the Limited Vote (LV) and
.the Single Non-Transferable
Vote (SNTV)
are semi-proportional systems.
.List PR,
.Mixed Member Proportional
(MMP), and the
Single Transferable Vote (STV) are all
proportional systems.
Every one of the 212 parliamentary electoral
systems listed in The Global Distribution
of Electoral
Systems can be categorised under one of these ten headings,
and this family tree, though rooted
in long-established
conventions, is the first to take account of all the
electoral systems used for
parliamentary elections in the
world today, regardless of wider questions of democracy and
legitimacy. We
hope it offers a clear and concise guide to
the choice among them.
The most common way to look
at electoral systems is
to group them by how closely they translate national votes
won into parliamentary
seats won; that is, how proportional
they are. To do this, one needs to look at both the
vote-seat relationship and the level of wasted votes,
For
example, South Africa used a classically proportional
electoral system for its first democratic
elections of
1994, and with 62.65% of the popular vote the African
National Congress (ANC) won 63% of
the national seats (see
South Africa: Election Systems and Conflict Management).
The electoral system
was highly proportional, and the
number of wasted votes (i.e., those which were cast for
parties which
did not win seats in the Assembly) was only
0.8% of the total. In direct contrast the year before, in
the
neighbouring nation of Lesotho, a classically
majoritarian First Past the Post (FPTP) electoral system
had resulted in the Basotho Congress Party winning every
seat in the 65 member parliament with 75% of the
popular
vote; there was no parliamentary opposition at all, and the
25% of electors who voted for other parties
were completely
unrepresented. This result was mirrored in Djibouti's
Block Vote election of 1992 when
all 65 parliamentary seats
were won by the Rasemblement Populaire pour le progr s with
75% of the vote.
However, under some circumstances,
non-proportional electoral systems (such as FPTP)
can
accidentally give rise to relatively proportional overall
results. This was the case in a third
Southern African
country, Malwai, in 1994. In that election the leading
party, the United Democratic
Front won 48% of the seats
with 46% of the votes, the Malawaian Congress Party won 32%
of the seats with 34%
of the votes, and the Alliance for
Democracy won 20% of the seats with 19% of the votes. The
overall level
of proportionality was high, but the clue to
the fact that this was not inherently a proportional
system,
and so cannot be categorized as such, was that the
wasted votes still amounted to almost one-quarter of all
votes cast."
3.2.6.7. There may varied electoral systems
prevalent in the world
but many may not suit conditions in
our society. On a threadbare analysis of various systems,
we feel that
a combination of FPP and the list systems as
detailed in this report may best meet out needs.
3.2.7.
Accordingly, the Law Commission is of the
opinion that the list system should be introduced as
suggested
by it for the reasons assigned hereinbefore. The
main objections against this system are two-fold: (a) that
it will lead to and encourage casteist and communal voting
patterns and would lead to proliferation of caste based
and
religion based political parties and (b) that under the
list system, the umbilical cord between the
voters in the
constituency and the MPs/MLAs is missing. In our opinion
both the said objections are not
well-founded. We shall
deal with both of them hereinbelow.
3.2.8. So far as the objection
that the list
system would lead to casteist and communal voting patterns
and caste-based and religion-based
political parties is
concerned, the apprehension on this score can be allayed by
providing that the votes
polled by such candidate whose
deposit has been forfeited under sub-section (4) of section
158 of the
Act shall not be taken into consideration while
tabulating the votes for the purpose of choosing the
members on the basis of the list system.
It may be noticed
that according to sub-section (4) of section 158 of the
Representation of the People
Act, 1951 the deposit made by
a candidate who "is not elected and the number of valid
votes polled
by him does not exceed one-sixth of the total
number of valid votes polled by all the candidates" is
liable to be forfeited. In other words, if any candidate
polls less than 16.25% of the valid votes polled,
his
security deposit is liable to be forfeited. If it is
provided that the votes polled by candidates
whose security
deposit has been forfeited under the aforesaid provision
shall not be taken into account
for the purpose of list
system, the apprehension that list system would lead to
proliferation of caste-based
and religion-based political
parties or that it would result in encouraging or promoting
casteist or communal
voting pattern would not survive.
3.2.8.1. Secondly, it must be noted - and it
needs to be emphasised
- that according to the proposal put
forward by the Law Commission, it is not as if each voter
is given two
votes, one to be cast in favour of the
candidate from the concerned territorial constituency and
the other in favour of the list put forward by a recognised
political party. There is only one vote given to the voter
and that is cast by the voter keeping in mind both the
candidate from the concerned territorial constituency
as
well as the persons included in the list put forward by
that RPP. Primarily, the vote will be in
favour of the
direct candidate contesting from the concerned territorial
constituency and it is only secondarily
that the said vote
is also taken into account for the purpose of list system
as well.
3.2.8.2. We may also mention that
notwithstanding the present FPP system, there has been an
unmanageable and unhealthy proliferation of political
parties and that in the Twelfth Lok Sabha, there were
as
many as 30 or more political parties, some of them having
only one member. The proliferation of political
parties
appears to be mainly inspired by regional, caste,
religious/communal and linguistic considerations,
besides
the personality clashes between the leaders of a given
political party. Very often splits take
place in political
parties not on the basis of any ideological differences (as
was the case in the case of
split in the Communist Party of
India in 1964 giving rise to two parties namely CPI and
CPI-M) but mainly
on account of personality clashes and
personal rivalries and ambitions. While it would not be in
good taste
to refer to specific instances in support of
this view, the fact is there for all to see. May be ours
is still a young democracy. 50 years in the life of a
democratic nation is not too long. We can only hope that
with the passage of time there will be polarisation among
the political parties on the basis of ideologies
and that
the voters would also realise that voting for small parties
is not in the ultimate interest of the
nation.
3.2.8.3 In fact, the proliferation of political parties can
be checked to a large
extent and the process of
polarisation accelerated substantially, if a new provision
is made in the Act to the effect that any
political party
which obtains less than 5% of the total valid votes cast in
the country (in the case
of Parliament) and in the
concerned State (in the case of Legislative Assembly) shall
not be allowed any
representation in the Lok Sabha or in
the concerned Legislative Assembly, as the case may be.
3.2.8.4 Such a provision is in vogue in Germany and has
helped in checking the proliferation of political parties.
Article 6(6) of the Federal Electoral Laws says: "In
distributing the seats among the Land
lists, only such
parties be taken into consideration as have obtained at
least five per cent of the valid
second votes cast in the
electoral area or have won a seat in at least three
constituencies."
In other words, a party must poll at least
five per cent of the second votes in the entire country or
must
have won at least in three constituency seats on the
basis of the first votes. As a matter of fact, since the
elections for Bundestag in 1957, the qualifying parties
have been (1) the Christian Democratic Union of
Germany
(CDU), (2) the Social Democratic Party of Germany (SPD),
(3) the Christian Social Union (CSU),
which put up
candidates in Bavaria only and (4) the Free Democratic
Party (FDP). The Greens were
represented in Bundestag for
the first time following the Bundestag election in 1983.
In the first all
German general elections in 1990 (after
the reunification of Germany), however, they were able to
win seats
in the Bundestag only as members of the list
coalition (Alliance 90/Greens) with the Party Alliance 90
which was successful in the new federal states. This
requirement has thus prevented the proliferation
of
political parties, splintering of political parties and has
led to polarisation.
3.2.8.5 Such a provision is a crying necessity in India
today where the process of splintering of parties
is
increasing with every general election which is not based
on any ideological differences but lust
for power.
Appropriate provision to this effect is being set out in
this Report.
3.2.9 With respect to the objection that in the case of a
list system there is no umbilical cord between voter and
the MP/MLA, this is devoid of any substance. Apart from
the fact that such a mixed system is in vogue
in many
countries (e.g. in Germany), the merit of the list system
lies in the fact that for the members
chosen under the list
system, the entire territorial unit/State/nation is the
constituency. In fact,
there have been several instances
where powerful politicians like Prime Ministers and Chief
Ministers have
been `nursing' their particular constituency
with the result that the development in that particular
constitutuency
is far ahead of the development in the
adjacent and other constituencies in the region or the
State.
"Nursing" the constituency does not mean this. It
means attending to, representing and fighting for
the
interests of the voters in all fora and not to corrupt them
with the aid of public funds. It is indeed
a case of
misuse of authority and of public money. It is not a good
idea that one particular constituency should be rewarded
unduly merely because the
Prime Minister or the Chief
Minister happens to contest from that constituency.
3.2.10. The
other merit in the list system apart from those
set out in chapter III of Part I is that important leaders
of the political parties can be included in the list put
forward by that political party and those leaders can
devote their energies in campaigning for the party
throughout the State instead of expending a good
amount of
their energies on the particular constituency from which
they are contesting. In fact the list
system would provide
an opportunity for inclusion of important leaders with high
character and reputation
and technocrats and experts in
finance and economics. The apprehension that the criminal
elements and money
bags would be included in such a list is
unfounded inasmuch as no political party would dare include
criminal
elements and/or money bags in such a list, since
it would also reflect negatively upon its candidates in the
direct election from the territorial constituencies.
3.2.11. With respect to the objection that Rajya
Sabha or
for that matter, Legislative Councils in whichever States
they exist - serve the purpose and
satisfy the objective
underlying the list system, it must be stated that the
criticism is not well-founded.
Take Rajya Sabha, its
members are elected by the members of the Legislative
Assemblies of various
States in the Union (Except twelve
members who are nominated). In other words, those very
MLAs, who
are more often than not elected on a minority of
the votes cast in the given State, elect the members of
Rajya Sabha. The members so elected neither represent the
wasted votes (as explained hereinabove) no rectify
and
redress the imbalance between the votes received and seats
won by a political party. Rajya Sabha
is indeed a
reflection of the composition of State Legislative
Assemblies; it is repetition
of the same inequitable FPP
system. None of the distortions, to remove which list
system has been proposed,
are answered by the Rajya Sabha
or the Legislative Councils. There is equally no merit in
the objection
that the introduction of list system would
give rise to two classes of MPs/MLAs. Such a dual system
is
in vogue in several countries and is functioning
satisfactorily.
3.2.11.1. In its Report
on "Electoral Reforms", 1974
the Tarkunde Committee (appointed by Shri Jaya Prakash
Narayan
on behalf of the citizen for Democracy had also
recommended the adoption of `mixed system' i.e. German
Model of Electoral system.
3.2.12. There remains the question whether the list system
should
be limited to 25% or raised to 50% of the existing
strength of Lok Sabha and of each of the State Legislative
Assemblies. We had also debated this aspect while
preparing the working paper but we limited the strength
to
be filled on this basis to 25% of the existing strength for
the reason that by adopting the 50% rule,
the strength of
Lok Sabha would rise to almost 826. May be that this
number is not excessive considering
the population and
territorial extent of this country, but what was
apprehended was that an Assembly of 826 members would be
unmanageable. Yet
another consideration was that since the
list system is being introduced for the first time on an
experimental
basis, we may start with 25% and if it proves
beneficial it can be raised to 50% and if the experience
proves counter-productive, it can be abandoned.
3.2.13. With respect to the suggestion that the list system
should not be confined to the recognised political parties,
it must be said that acceptance of this plea would
indeed
lead to proliferation of political parties, which is
admittedly not in the interest of a successnful
democracy.
The singular example of Telugu Desam in Adhra Pradesh in
1982-83 cannot be made the basis
for adopting a system
which will make the operation of the list system cumbersome
and which may indeed prove
counter productive.
3.2.14. There is one more aspect to be considered. Certain
participants in
the seminar and certain responses received
by the Law Commission suggest that the concept of
`territorial
unit' put forward by the Law Commission in
this context should be given up and the entire country
should be treated as one unit for the purpose of choosing
the members according to list system. The main purpose
behind this suggestion was elimination of small parties and
to prevent the proliferation of political parties,
as also
to exclude splinter parties and thereby ensuring that
Parliament functioned properly and
the government was
stable - the very same object underlying the requirement of
5% vote. May be that this
objective can be achieved by the
provision now being suggested by us that any political
party which receives
less than 5% of the total valid votes
cast in the general election to the Lok Sabha or State
Legislative
Assembly, as the case may be, shall not be
entitled to any seats in the Lok Sabha/Legislative
Assembly. But, it would be consistent with our other
recommendations and the spirit of this Report if the
concept of territorial units put forward by us earlier in
the working paper is given up. Our objective in
doing so
is to drive the smaller parties into pre-election
fronts/coalitions. May be, these
smaller parties may
fight, wherever they like, on their own symbol but they
will have to become a part
of one or the other pre-election
front which is proposed to be treated as a political party
for the purpose
of the Tenth Schedule. In such a
coalition/front, there is bound to be
adjustment/appointment
of seats and voters will be voting
for the candidate of a constituent party keeping in mind
the constituents
of the coalition front.
3.2.15. Conclusions - Accordingly, we have decided to
drop our proposal
with respect to territorial units which
means that the entire country will be the unit for purposes
of the
list system while reiterating our proposals put
forward in the working paper in this behalf. (The relevant
provisions in the Bill are modified accordingly).
3.2.15.1. Though we are dropping the proposal with
respect to territorial units, we do hereby affirm that the
distribution of seats in Lok Sabha among the States,
as set
out in the First Schedule to the Representation of the
People Act, 1950, should be frozen for another 25
years.
For this purpose, it would be necessary to amend the
proviso to clause (3) of article 81 of
the Constitution by
substituting the figure "2025" for the figure "2000". [The
reason
behind this proposal is the one put forward by Shri
Shivaramakrishnan of Centre for Policy Research, referred
to in para 3.2.5.]
3.2.15.2. Further, another proviso (i.e.second
proviso) may be
added after the existing proviso in section
78F as proposed in the Representation of the People Act,
1951
in the following words: "Provided further that the
votes received by a recognised political party which do not
exceed one-sixth of the total number of valid votes polled
in a constituency shall be ignored for the purpose
of this
section."
3.2.15.3. A new section, section 65A shall be
inserted
in Chapter V of Part V of the Representation of
the People Act, 1951 to the following effect:
"65A(1) Any political party, whether recognised or
not, which obtains less than 5% of the total valid
votes cast in the election to the House of the
People shall not be entitled to any
seat in the
House of the People.
(2) Any political party, whether recognised or not,
which obtains less than 5% of the total valid votes
cast in the election to the Legislative
Assembly of
a State shall not be entitled to any seat in the
Legislative Assembly.
(3) For the purposes of sub-sections (1) and (2),
the relevant date shall be the date on
which the
notification contemplated by section 73 of this Act
is issued.
(4) Any constituency which has elected the
candidate of a political party which is deprived of
a seat in the House of People or in legislative
Assembly on account of the requirement
in
sub-section (1) and (2), as the case may be, shall
be represented by the candidate
of a political
party which has obtained the next highest votes
provided that his political
party obtains 5% of the
total valid votes cast in that election and that he
has not lost the
security deposit.
(5) The requirements in sub-sections (1) to (3)
shall not apply
in the case of a bye-election.
CHAPTER - III
Debarring of Independent Candidates to Contest Lok Sabha
Elections
3.3.1. A Perusal of the statistics regarding the number of
independent candidates who contested
Elections to the
Twelfth Lok Sabha shows that out of 1915 independent
candidates, only 6 candidates
were elected. This reveals
that slightly more than 0.3% independent candidates could
only win seats contested
by them. The Indrajit Gupta
Committee Report on State Funding of Elections projects
figures relating
to independent candidates who contested
the earlier Parliamentary Elections as follows:-
"8.2
... out of 1900 independent candidates who
contested the last parliamentary elections in 1998,
only 6 (0.65%) (sic.) succeeded to win and 1883
lost their security deposit. Likewise, out of
10,635 independent candidates, who contested the
1996 parliamentary election, only 9 (0.08%)
of such
candidates won and 10,603 (99.70%) forfeited their
deposits. Similar was the
fate of independents
contesting the last round of assembly elections in
four States/National
Capital Territory of Delhi in
November, 1998 where only 19 (0.99%) out of 1910
independents
could reach the post. The records
would further show that most of these independents
were also really not independent but rebels of
certain established parties and who were supported
by rival parties."
3.3.2. In Dhartipakar v. Rajiv Gandhi, [1987] INSC 164; AIR 1987 SC 1577,
the Supreme Court recommended to parliament to devise ways
and means to meet the onslaught of independent
candidates
who are not serious about their business.
3.3.3. Past experience shows that many
independent
candidates contested Lok Sabha elections in a casual manner
or for oblique reasons. In
many cases their security
deposits were forfeited. One of the resultant effects of
independents contesting
the Lok Sabha seats is that the
ballot paper becomes unmanageably large. Non-seriousness
of some of the
independent candidates is exemplified in the
case of one of the BJP candidates, namely, Shri
V.K.Malhotra,
against whom quite a few persons of the same
name "V.K.Malhotra" stood as independent candidates from
the same constituency in Delhi during Lok Sabha elections
in order to mislead the masses. Such practices
are meant
to confuse people and make them cast their vote in favour
of a candidate whom they never intended
to vote.
3.3.4. In order to eliminate the problem altogether, and
consistently with our
recommendation regarding the
requirement of 5% votes set out in para 3.2.15.3., it is
considered appropriate
to debar independent candidates as
their participation in the elections has in no way
contributed
to strengthening of Indian democracy.
3.3.5. It is understood that 650 political parties are
currently registered with the Election Commission of India
(Times of India dated 6th may, 1999), whether recognised
or
not. By virtue of proposed new section 65A(1), a party
would not get a seat in the House of the People
if it gets
less than 5% of the total valid votes cast in elections to
that House. This objective will
be frustrated if
independents are not barred from contesting, for, small
splinter parties will not
then take risk of contesting
elections for fear of not being able to obtain 5% or more
of the total
valid votes cast in the said election to the
House of the People. Candidates of such splinter parties
would then safely prefer to contest as independent
candidates. The barring of independent candidates will,
therefore, be consistent with our recommendation to
introduce a provision requiring receipt
of minimum
percentage of votes by the RPP to be able to get seats in
the Lok Sabha.
3.3.6. Conclusions.- In Law Commission's view, the time is
now ripe for debarring independent candidates
from
contesting Lok Sabha and Legislative Assembly elections.
3.3.6.1. Any person proposing
to contest Lok Sabha
election can always form a political party and contest
elections but its entitlement
to any seat in Lok Sabha will
be subject to the condition that it obtains not less than
5% of the total valid
votes cast in the election to Lok
Sabha. Therefore, it cannot be legitimately argued that
our proposal
would tend to interfere with democratic or
political processes.
3.3.7. Accordingly, it
is recommended that a new
sub-section, namely, sub-section (1) be introduced in
section 4 of
this Act, as suggested hereinbelow, and the
existing provision shall be renumbered as sub-section (2).
The proposed sub-section (1) shall read as
follows:-
"(1) Only the political parties registered with the
Election
Commission under section 11(4) shall be
entitled to put forward candidates to fill a seat
in the House of the People."
Similarly, section 5 of the Act should also be
amended
by introducing the following sub-section (1):-
"(1) Only the political parties registered with the
Election Commission under section 11(4) shall be
entitled to put forward candidates to
fill a seat
in the Legislative Assembly."
The existing provisions of section
5 shall be
renumbered as sub-section (2).
CHAPTER IV
Analysis of views and conclusions regarding
amendments to the Tenth Schedule to the Constitution
3.4.1. In this chapter the amendments proposed by us in
the working paper to the Tenth Schedule
to the Constitution
have been considered. So far as the proposal to delete
paragraph 3 of the Tenth
Schedule is concerned, there has
been unanimous support (including that of the Prime
Minister of
India) to this proposal, in all the seminars,
except the lone voice of Shri S.Jaipal Reddy, MP. He
submitted
that in the light of the fact that there is no
internal democracy in the political parties today and also
because the internal structures of political parties had
not been satisfactorily established so far, splits could
not be barred. He opined that every split was not
undesirable. In this connection, he referred to
the split
in the CPI in 1964. He also referred to the fact that
splits had taken place in the socialist
party in the past
as well as in the Congress party (in 1969 and 1978). Shri
Reddy opined that democracy
was inherently an untidy
business and that in such a situation, the banning of
splits (as well as
mergers) would amount to interfering
with the political processes and growth of political
pluralism.
In the responses received pursuant to the
circulation of the working paper, the Janata Party has also
not agreed with this proposal. There has been no other
dissenting view.
3.4.1.1. We are
of the opinion that the objections
raised by Shri Jaipal Reddy are really without any
substance.
By banning the splits, the ongoing political
process, or the pluralism in the society is not being
arrested. As we had made clear in our working paper, once
the Parliament is dissolved, there can be splits, mergers,
formation of new parties and so on. Moreover, even during
the life of a Lok Sabha or State Legislative
Assembly, as
the case may be, political process can go on. There can be
mergers, splits and formation of new
political parties but
they shall not be reflected in the House. So far as the
House is concerned, there
shall be no splits in a political
party and if any member violated paragraph 2 of the Tenth
Schedule, he
will stand disqualified. Indeed, the Tenth
Schedule deals with and governs only the membership of the
House and the splits and mergers among the members of the
political parties in the House. It does not purport to
govern or regulate the political processes outside the
House. So far as the internal democracy and
internal
structures of a party are concerned, we agree that they
should be strengthened. It is for this
very reason that we
have recommended in Chapter one of Part three insertion of
a Chapter in the Act
governing and regulating the
functioning of the political parties. Those provisions
must also be
implemented along with the changes in the
Tenth Schedule.
3.4.2 In connection with this
issue, some of the
participants in the seminar raised a connected issue.
Their views can be stated
thus: the deletion of paragraph
3 tends to strengthen the control of the majority over the
political party.
The minority will be left with no voice.
The freedom of speech, which is so essential for the
successful
functioning of democracy and of the
Parliament/State Legislature, will come to an end. On
every conceivable occasion, whip is being issued by the
party leadership, leaving no room for dissent. It would be
appropriate if it is provided that a whip shall
be issued
only on occasions when the voting is likely to affect the
existence or continuance of the government
and not on all
and sundry occasions. Let us deal with the views
aforesaid.
3.4.3. Firstly, it may be mentioned that a democracy and
particularly a parliamentary democracy without political
parties is inconceivable. One can just imagine what will
happen if 300 independents are elected in Lok
Sabha. The
political parties are inseparable from a parliamentary form
of government. In S.R. Bommai v.
Union of India, the
Supreme Court observed:
"..One cannot conceive of a democratic
form of
Government without the political parties. They are
part of the political system
and constitutional
scheme. Nay, they are integral to the governance
of a democratic society."
3.4.4 Necessity for abiding by the whip - In such a case,
the endeavour should be to strengthen
the political parties
by providing for internal democracy and internal structures
rather than to weaken
them. Inasmuch as we are
recommending in this report insertion of a new chapter
governing the
political parties(including the provisions
ensuring internal democracy, internal structures and
transparency
in the conduct of its affairs), there should
be no objection to strengthening of the political parties
so that they will of majority prevails in a political
party. Freedom of speech is undoubtedly precious but when
a person becomes a member of the political party, accepts
its ticket and fights and succeeds on that
ticket, he
renders himself subject to the discipline and control of
the party. It should also be noticed
that when a person
applies for the ticket of a political party, he knows, and
is expected to know, about
the leadership, internal
working, policies and programmes of the party. He must
also reckon with
the fact that in future, the leadership
may change, policies and programmes may change and so on.
If he,
with his eyes open, applies for and obtains the
ticket and contests and wins on that basis, he cannot plead
later that he does not agree with the leadership or
policies of the party. Any difference of opinion, he
must
ventilate and fight within the party. The membership of
House does not become his private property
nor can he trade
in it. It is a trust and he is in the members of a
trustee. He cannot also say that
he will take advantage of
the name and facilities of a political party, fight the
election on the ticket
of that party and succeed, but he
will not be subject to the discipline of the political
party. This
is simply unthinkable besides being unethical
and immoral. He has to abide by the party discipline
within
the House. He may fight within the party to have
his point of view or policies adopted by the party but once
the party takes a decision one way or the other and issues
the whip, he shall have to abide by it or resign
and go
out. It would equally be unethical and immoral for him to
vote against the whip and then resign.
3.4.5. We may mention
that in a system of government like
that of the USA, there is no occasion, generally speaking,
of issuance
of a whip. The vote in Congress does not and
cannot affect the continuance of the government. In recent
days, we have witnessed (in the case of impeachment of
President Clinton) several members of Republican Party
voting against their party line and in favour of the
President.
3.4.6. Desirability
of issuing the whip in specific
situation only. - So far as the issuance of the whip is
concerned,
it is not governed by any law. Neither the
Rules framed under the Tenth Schedule nor the Rules of
Procedure and Conduct of Business in the Lok Sabha/Council
of States provide for or regulate the issuance of whip.
It
appears to be a matter within the discretion and judgment
of each political party. In such a situation,
we can only
point out the desirability aspect and nothing more. It is
undoubtedly desirable that whip is
issued only when the
voting in the House affects the continuance of the
government and not on
each and every occasion. Such a
course would safeguard both the party discipline and the
freedom of
speech and expression of the members.
3.4.7 Conclusions regarding amendments to the Tenth
Schedule - So far as the deletion of paragraph 4 (merger)
is concerned, we are of the opinion that this paragraph
should also go in the interest of maintenance of proper
political standards in the Houses and also to minimise
the
complications arising on that account. Paragraph 4 says
inter alia that a member of a House
shall not be
disqualified under paragraph 2(1) where his original
political party merges with another
political party has not
accepted the merger and have opted to function as a
separate group. In such
a case, it is provided that such
group shall be deemed to be a political party to which he
belongs for
the purpose of paragraph 2(1) and it shall be
deemed to be his original political party for the purpose
of
this sub-paragraph, this provision in sub-paragraph (1)
of paragraph 4 is likely to lead to several complications
and unnecessary disputes. Accordingly, we reiterate our
proposal to delete paragraph 4 as well. The other
allied
provisions in Tenth Schedule, which become unnecessary as a
result of deletion of paragraphs 3 and
4, have necessarily
got to be deleted. Secondly, in view of the proposed
deletion of paragraphs 3
and 4, the definition of the
expression "original political party" may be dropped and in
its place,
the following definition should be inserted:
(c) "political party" in relation to a member of
a
House, means the political party on whose ticket
that member was elected and where
such political
party is a part of a front or a coalition formed
before a general election
for contesting such
election, such front or coalition,
Provided that the Election
Commission is
informed in writing by all the constituent
parties in the
front/coalition before the
commencement of the poll that such a
front/coalition has been formed".
This
definition is suggested in the interest of
stability of government (see part VII of this report).
PART IV
CONTROL OF ELECTION EXPENSES
This part deals with - (A) the proposal to delete
Explanation 1 to section 77 of the Act
(B) insertion of
Part VA containing section 78A (providing for maintenance
of accounts and their auditing
etc., by recognised
political parties) and (c) State Funding i.e. section 78B
and Section 78C.
CHAPTER - I
The proposal to delete Explanation I to section 77
4.1.1. Section 77 which occurs in Chapter VIII of Part V
of the Act, entitled "Election
Expenses", is applicable
only to the elections to the Lok Sabha and the Legislative
Assembly of a
State. As originally enacted, it provided
that "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 authorised by him or by election agent
between the date of publication of the notification
calling
the election and the date of the declaration of result
thereof, both dates inclusive." The
words "all expenditure
in connection with the election incurred or authorised by
him or by his election
agent" fell for consideration of the
Supreme Court in Kanwarlal Gupta v. Amar Nath Chawla
[1974] INSC 194; (1975) 3 SCC 646. The court, in the first instance,
referred to sub-section (6) of section 123 of the Act which
says
that " the incurring of authorising of expenditure in
contravention of section 77" is a corrupt practice
which
disqualifies the person from contesting the elections for
the next six years. After referring to
the language of
section 77, they observed that where the expenditure was
authorised by the candidate
or by his election agent
expressly, there was no difficulty in determining the
meaning of the aforesaid
words, but, the court observed,
difficulty arose where the expenditure was incurred not by
the candidate
but by the political party which had
sponsored him or by his friends and supporters. The court
posed
the question "Can the limit on the expenditure be
evaded by the candidate by not spending any money of his
own but leaving it to the political party or his friends
and supporters to spend an amount far in excess
of the
limit?" and then proceeded to ascertain the object and
purpose underlying section 77. The
court observed:
"The object of the provision limiting the
expenditure is two-fold.
In the first place, it
should be open to any individual or any political
party howsoever
small, to be able to contest an
election on a footing of equality with any other
individual
or political party, howsoever rich and
well financed it may be, and no individual or
political party should be able to secure an
advantage over others by reason of its superior
financial strength."
4.1.1.1. The court then observed that money plays an
important part inasmuch as the paraphernalia required in an
election campaign can not be obtained except
with the aid
of funds. Money is absolutely necessary for fighting an
election. The court further observed
that the requirement
of the constitution was full and effective participation of
all citizen in the political
process and to have an equal
voice in the election of the members of the legislatures.
It is the purpose
of law, the court observed, to effectuate
the above objective and to ensure that every candidate and
every
citizen participated in the election process of a
footing of equality. The next objective behind the said
provision, the court said, was limiting the expenditure on
elections so as to eliminate, as far as possible,
the
influence of big money in the electoral process. If there
were no limit on expenditure, political
parties would
resort to collection of contributions which would naturally
come only from the rich and
affluent sections of the
society. The court then stressed the pernicious influence
of big money in
derailing the democratic process and
referred in this connection to the evils of big money
influence
on elections which had come to light in the USA.
The court opined that the aforesaid background should
inform the court in the interpretation of section 77 of the
Act and then made the following pertinent observations:
"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 beneficial
provision enacted in the
interest of purity and genuineness of the
democratic
process would be wholly emasculated.
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 friend and supporters
should be free to do. That is why the legislators
wise interdicted
not only the incurring but also
the authorising 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 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 authorised 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. 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 authorising 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."(Italics added).
4.1.1.2. The court then referred to the earlier
decisions of the court supporting the construction bases
upon section 77 by them.
4.1.2. The Law Commission of India is of the opinion that
the decision in Kanwarlal Gupta's case rightly and
correctly interprets section 77. Indeed, it does more.
Besides furnishing the rationale for such a provision,
it
also points out the desirability and necessity of having
such a provision to ensure free and fair elections
and to
keep out the money-power.
4.1.3. Unfortunately, however, soon after the above
judgment, the President of India issued an Ordinance
amending the section 77 by inserting Explanation
1 in
sub-section (1) of section 77. Subsequently, Amendment Act
58 of 1974 was enacted in terms of the
said Ordinance and
was given retrospective effect on and from October 19,
1974. Explanation I so inserted
reads as follows -
Explanation 1 - Notwithstanding any judgment, order
or decision of
any Court to the contrary, any
expenditure incurred or authorised 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 authorised by the candidate or by his
election agent for the
purposes of this
sub-section.
Provided that nothing contained in this Explanation
shall affect -
(a) any judgment, order or decision of the
Supreme Court
whereby the election of a candidate
to the House of the People or to the Legislative
Assembly
of a State has been declared void or set
aside before the commencement of the Representation
of the People (Amendment) Ordinance, 1974 (Ord. 13
or 1974);
(b) any judgment, order
or decision of a High Court
whereby the election of any such candidate has been
declared void
or set aside before the commencement
of the said Ordinance if no appeal has been
preferred
to the Supreme Court against such
judgment, order or decision of the High Court
before such commencement and the period of
limitation for filing such appeal has expired
before such commencement."
4.1.3.1. By a subsequent Amendment Act, (Act 40 of
1975), the words "the date of publication of the
notification calling the election" in section
77(1) were
substituted by the words "the date on which he has been
nominated". Explanation
III was also inserted in
sub-section (1) of section 77.
4.1.3.2. The aforesaid amendments
have the effect of
nullifying the object and purpose underlying section 77(1)
read with section 123(6) of
the Act. The amendments create
an escape clause and have provided an easy way of
circumventing the legal requirement. Not only the
political party which has sponsored the candidate, but the
friends, relatives and supporters of a candidate can
spend
any amount on the election of the candidate and yet all the
amount would not fall within the expenditure
incurred by
the candidate or his agent. The validity of Explanation I
was challenged before the Supreme
Court in P.Nallappa
Thampy v. Union of India (AIR 1985 SC 1133) but the
challenge failed. It may perhaps be appropriate to point
out that upholding the constitutional
validity means
affirmation of the legislative power and of the provision
not being violative of the constitutional
limitations. It
in no way amounts to a pronouncements upon the desirability
or necessity of such a provision.
4.1.4. More than one decision of the Supreme Court has
pointed out the undesirability of
the said Explanation, the
mischief inherent in it and stressed the need to delete the
same. It would be sufficient
to cite two decisions of the
Supreme Court, namely C.Narayanaswamy v. C.K. Jaffer
Sharief (1994 (Supp)
3 SCC 170) and Gadakh Yashwantrao
Kankarrao v. Balasaheb Vikhe Patil (1994(1) SCC 682. The
observations
in the first mentioned decisions are to the
following effect.
"As the law stands in India
today anybody including
a smuggler, criminal or any other anti-social
element may spend
any amount over the election of
any candidate in whom such person is interested,
for which
no account is to be maintained or to be
furnished and any such expenditure shall not be
deemed to have been expenditure in connection with
the election, incurred or authorised by the
candidate or by his election agent for the purpose
of sub-section (1) of Section 77, so as to
amount
to a corrupt practice within the meaning of
sub-section (1) of section 77,
so as to amount to a
corrupt practice within the meaning of sub-section
(6) of section 123.
It is true that with the rise
in the costs of the mode of publicity for support
of the
candidate concerned, the individual
candidates cannot fight the election without proper
funds. At the same time it cannot be accepted that
such funds should come form hidden sources which
are not available for public scrutiny. According
to us, sub-section (6) of section 123
declaring
"incurring of authorising of expenditure in
contravention of section
77" a corrupt practice has
lost its significance and utility with the
introduction
of the Explanation-I aforesaid which
encourages corruption by underhand methods. If the
call for "purity of elections" is not be reduced to
a lip service or a slogan, then the persons
investing funds, in furtherance of the prospect of
the election of a candidate must be identified
and
located. The candidate should not be allowed to
plead ignorance about the persons
who have made
contributions and investments for the success of
the candidate concerned
at the election. But this
has to be taken care of by Parliament.
4.1.4.1. Similarly,
in the latter decision, it was
observed:
"The existing law does not measure up
to the
existing realities. The ceiling on expenditure is
fixed only in respect of the
expenditure incurred
or authorised by the candidate himself but the
expenditure incurred
by the party or anyone else in
his election campaign is safely outside the net of
legal sanction. The spirit of the provision
suffers violation through the escape route. The
prescription of ceiling on expenditure
by a
candidate is a mere eye-wash and no practical check
on election expenses for which
it was enacted to
attain a meaningful democracy. This lacuna in the
law is, however, for
the Parliament to fill lest
the impression is reinforced that its retention is
deliberate
for the convenience of everyone. If
this be not feasible, it may be advisable to omit
the provision to prevent the resort to indirect
methods for its circumvention and subvervision of
the law, accepting without any qualm the role of
money power in the elections. This provision
has
ceased to be even a fig leaf to hide the reality."
4.1.5. It is a matter of regret
that so far no action has
been taken by the Parliament in the light of the
observations of the
Supreme Court.
4.1.6. In the year 1990, the then Law Minister, late Shri
Dinesh Goswami, had prepared
a draft amendment Bill, based
upon the consensus of all the political parties. The said
bill provided inter
alia for deletion of the Explanation I
to section 77(1). Though provisions in the said bill have
been given
statutory shape by the Parliament by enacting
Act 21 of 1976, the particular provision in the bill
providing for deletion of Explanation I to section 77 was
not enacted.
Shri Som Nath Chatterjee,
M.P., presided over the
session devoted to Election Expenses and State Funding at
the National Seminar
held on 24th January, 1999. He
stressed the necessity of free and fair elections for a
successful
democracy but regretted that over the last few
decades money power, muscle power and black money had been
troubling this nation. There is a feeling among the people
that some political parties are getting unfair advantage
in
the elections because of their having larger financial
sources. For this reason, good persons were
not able to
contest, he said, Shri K.K. Venugopal, Senior Advocate,
Supreme Court, and an expert on constitutional
law, who was
the keynote speaker at the said seminar put forward certain
very pertinent ideas which may be
referred to hereinbelow.
4.1.6.1. In the very scheme of things and as pointed
out by the Supreme
Court in its various decisions, the bulk
of the funds contributed to political parties would come
only from
business houses, corporate groups and companies.
Such a situation sends a clear message from the political
parties to big business houses and to powerful corporations
that their future financial well being will depend upon
the
extent to which they extend financial support to the
political party. Indeed most business houses
already know
where their interest lies and they make their contributions
accordingly to that political party
which is likely to
advance their interest more. Indeed ensure of knowing
which party will come to
power, they very often contribute
to all the major political parties. Very often these
payments are
made in black money. Section 293A of the
Companies Act, 1965, as inserted in 1969, imposed a ban on
the companies making contributions to any
political party
or for any political person or for any political purpose.
Unfortunately, this ban was lifted
in 1985 by amending the
Act. Under the present provision, a company is permitted
to contribute amounts
to a political party or for a
political purpose to any person provided that the amount
does not exceed
five per cent of its average net profits.
In the case of an Indian company of a multinational stature
or
in the case of any big business group, five per cent
would mean a mind-boggling figure. As far back as 1957,
Chagla C.J. pointed out the danger inherent in permitting
the companies to make contributions to political
parties
(Koticha's case(1957) 27 Company Cases 604). He warned
that "it is a danger which may grow apace and which may
ultimately overwhelm and even
throttle democracy in the
country". As a matter of fact, an attempt made in 1976 to
remove the ban
imposed by Section 293A (as initially
enacted) failed. It is amusing to note the 'Statement of
Objects
and Reasons' appended to the bill prepared in 1976.
It stated that the ban was proposed to be lifted "with a
view to permit the corporate sector to play a legitimate
role within the defined norms in the functioning
of our
democracy!" Mr. Venugopal raised an interesting question
of law in this behalf. He said that
according to section 7
of the Prevention of Corruption Act 1988, "whoever, being,
or expecting to be
a public servant, accepts or obtains or
agrees to accept or attempts to obtain for any person, for
himself
or for any other person, any gratification
whatever, other than the legal remuneration, as a motive or
reward for doing or forbearing to do any official act or
for showing or forbearing to show, in exercise of
his
official functions, favour or disfavour to any person or
for render or attempting to render any
service or
disservice to any person, with the Central Government or
any State Government or Parliament
or the Legislature of
any State or with any local authority, corporation or
Government company referred
to in clause (c) of section 2,
or with any public servant, whether named or otherwise,
shall, be punishable...".
A Member of Parliament or a
Member of Legislature is a public servant. A candidate
contesting an
election to Parliament or Legislative
Assembly is a person who is expecting to be a public
servant.
If he becomes a public servant and then a
minister, or even otherwise if it is found at any time in
future that he has returned the favour of being funded by a
business house or a company, directly through himself
or
any other person for rendering any service with the Central
Government or any State Government etc., he
would be guilty
of the aforesaid offence of corruption for which a
mandatory imprisonment of not
less than 6 months is
provided which may extend to 5 years. After the decision
of the Supreme Court
in the case of A.R. Antulayl(AIR 1984
SC 718), he said, it is open today even for a private
individual to file a criminal complaint under the
Prevention of Corruption Act.
4.1.6.2. We endorse the views of Shri K.K.
Venugopal
in their entirety.
4.1.7. Shri Shiv Raj Patil, M.P., and a former
Speaker, Lok Sabha, also
stressed the necessity of curbing
the influence of money power in elections.
4.1.8. It must be
mentioned at this stage that the
above proposal was opposed by Shri Kapil Sibal, M.P.
Indeed he was
the only dissenting voice. The reason given
by him was that the suggested removal of ban on donations
by
companies would encourage the parties and persons to act
behind the curtain and that influence of black money would
be more whereas under the existing system the funding of
political parties by companies is open. We are
of the
opinion that the reason given is hardly acceptable and runs
against the uniform authority of the
Supreme Court and the
unanimous opinion of all other participants including Shri
Ram Jethmalani, Union Minister,
Shri P.P. Rao, Senior
Advocate, Shri C.R. Irani (Editor, The Statesman) and
several other intellectuals.
4.1.9. It is in the above circumstances that the Law
Commission of India had suggested in
its working paper that
the said Explanation be deleted. In the seminars held and
in the responses received
by the Commission, unanimous
support has been given to the proposal of the law
Commission. There
has been no dissenting voice, except of
Shri Kapil Sibal, as mentioned hereinabove. Accordingly,
we reiterate
our proposals along with the substitution of
definition of "original political party" by the new
definition of "political party".
4.1.10. In this connection, it is necessary to refer to
the
Report of the Indrajit Gupta Committee appointed by the
Government of India to go into the question
of State
Funding and Election Expenses. So far as deletion of
Explanation I in section 77(1) is concerned,
the committee
has not made any specific recommendation (vide para 10 of
Chapter VI). The Report says that
though some parties were
in favour of deletion of the Explanation, certain other
parties did not agree
to it. It is not clear in what
circumstances and for what reasons the political parties,
which had
supported the said deletion in 1989-90 (on the
basis of which the 1990 Bill aforementioned provided for
such deletion) have now turned round and are opposing the
deletion. It is difficult to perceive any justifiable
reason behind the said opposition when everyone is agreed
that the objective of electoral process is to obtain
a free
and fair ascertainment of the will of the people. The Law
Commission hopes and trusts that in the
interest of a
healthy parliamentary democracy, those political parties,
which are now opposed to the said
deletion, will reconsider
and revise their opinion and support the said deletion as
indeed they had done
in the years 1989-1990.
CHAPTER II
Insertion of Section 78A (Maintenance, audit and
publication of accounts by political parties)
4.2.1. This proposal drew unanimous approval from all the
participants at the seminars as well as from
several
persons, parties and organisations which responded to the
Law Commission's working paper. There
was no dissenting
voice. On the contrary, Shri K.K. Venugopal, Senior
Advocate, observed that
while the Law Commission has
rightly recommended the introduction of section 78A, it had
not provided
for the consequences of non-compliance with
the said provision or for the consequences that flowed if
it
was found that any false statement had been made in the
accounts submitted by a political party. He stressed the
necessity of publication of such accounts by the Election
Commission which would enable any individual or
party to
point out the falsity of any of the particulars in the
accounts. In this connection, he referred
to section 13A
of the Income Tax Act which was inserted on 1.4.1979. The
said section provides that
the income received by a
political party under the head "Income from house property"
or "income
from other sources" or "any income by way of
voluntary contributions received by it from any person"
shall not be included in the total income of the previous
year of such political party provided that
(a) such
political party keeps and maintains such books of accounts
and other documents as would enable
the assessing officer
to property deduce its income therefrom; (b) in respect of
each such voluntary contribution
in excess of ten thousand
rupees, such political party keeps and maintains a record
of such contribution
and the name and address of the person
who has made such contribution and (c) the accounts of such
political
party are audited by an accountant as defined in
the Explanation below sub section (2) of section 288 of the
said Act. The explanation appended to the section says
that for the purpose of the said section "political
party"
means an association or body of individual citizens of
India registered with the Election
Commission of India as
apolitical party under paragraph 3 of the Election Symbols
(Reservation and Allotment)
Order 1968 and includes a
political party deemed to be registered with that
Commission under
provision to sub paragraph (2) of that
paragraph. (It, however, appears that para 3 of the said
Symbols
Order has been omitted by Notification No. OM
21(E) dated 23.2.1992 with effect from 25.3.1992) Mr. K.K.
Venugopal pointed out that until Shri H.D. Shourie of the
"Common Cause" filed a Public Interest Petition
in the
Supreme Court(the decision in which case is reported in
1996 (2) SCC 752) the said provision was not being followed
by the parties or enforced by the Income Tax Department.
As a
matter of fact, except the two Communist parties and
two other political parties, no other political party had
complied with the said section nor did they file their
return of income stating that they had complied with
the
three conditions specified in the said section. Mr.
Venugopal was of the opinion that such
a failure would
attract penalty provided by section 276-CC of the Income
Tax Act. Mr. Venugopal further
pointed out that even
though the Supreme Court directed in the aforementioned
decision that the Secretary
to the Ministry of Finance
should conduct an investigation and inquiry against each of
the defaulting
political parties and initiate necessary
action against them according to law, no action whatsoever
appears
to have been taken so far nor any party or person
had been prosecuted. All this proves the old adage that
"some men are more equal than others". While a small
income-tax payer who fails to file his return
is prosecuted
and penalised, the political parties which are in receipt
of huge funds which they spend
on elections and other
occasions are not being touched. The parties too do not
appear to have realised
that if they themselves do not
follow the law, not only it sets a bad example to others,
they will not
have the face to tell others to abide by law.
4.2.3. The necessity of such a requirement was indeed
emphasised
by the Supreme Court in its recent decision in
Gajanan Bapat v. Dattaji Meghe [1995] INSC 318; (1995 (5) SCC 347) where it
observed pertinently as under:
"We wish, however, to point out that though
the practice followed by political parties in not
maintaining accounts of receipts of the sale of
coupons and donations as well as the expenditure
incurred in connection with the election
of its
candidate appears to be a reality but it certainly
is not a good practice. It leaves
a lot of scope
for spoiling the purity of election by money
influence. Even if the
traders and business men do
not desire their names to be published in view of
the explanation
of the witnesses, nothing prevents
the political party and particularly a national
party
from maintaining its own accounts to show
total receipts and expenditure incurred, so that
there could be some accountability. The practice
being followed as per the evidence introduces the
possibility of receipts of money from the candidate
himself or his election agent for being
spent for
furtherance of his election, without getting
directly exposed, thereby
defeating the real
intention behind Explanation 1 to section 77 of the
Act. It is, therefore,
appropriate for the
legislature or the Election Commission to intervene
and prescribe
by Rules the requirements of
maintaining true and correct account of the receipt
and
expenditure by the political parties by
disclosing the sources of receipts as well. Unless
this is done, the possibility of purity of election
being soiled by money influence cannot really
be
ruled out. The political parties must disclose as
to how much amount was collected
by it and from
whom and the manner in which it was spent so that
the court is in a position
to determine "whose
money was actually spent" through the hands of the
party.
It is equally necessary for an election
petitioner to produce better type of evidence to
satisfy court as to "whose money it was" that was
being spent through the party. Vague allegations
and discrepant evidence may only create a doubt but
then the charge of corrupt practice cannot
be held
to be proved on mere lurking suspicion or doubts.
However, undesirable and objectionable
the practice
might be, the fact remains that the evidence led by
the election petitioners
in this case doe not
establish the charge levelled by them at all."
4.2.4. We
have already pointed out hereinbefore the
provisions of the German Law on Political Parties of 1967,
Section V whereof creates a statutory obligation upon all
the political parties to maintain clear and correct
accounts, have them audited and submit the same to the
President of the German Bundestag. These accounts
are
directed to be circulated by the Bundstag as "Bundstag
Papers". The Law further requires
that the Bundstag shall
examine whether the statement of accounts is in accordance
with the requirements
of the said law and that the result
of such scrutiny shall be recorded in the report in
accordance with the paragraph 5 of the said article
(article 23). The German law provides in great detail the
particulars which such accounts should contain
including
the sources from which amounts are received and the items
upon which expenditure has been incurred.
It is absolutely
essential that there should be a law on the same lines.
Rules can be made elaborating
and elucidating the
requirements in the proposed section 78A in the light of
and keeping in mind
the several provisions in the said
German Law.
4.2.5. This proposal was also supported
by Shri P.P. Rao,
Senior Advocate, Shri N. Ram(Editor, Frontline) and Shri
C.R. Irani (Editior, The Statesman),
Shri Inderjit, Senior
Journalist, Shri Shivraj V. Patil(former Speaker, Lok
Sabha), Dr. K.L. Shivaramakrishnan(Centre
for Policy
Research) and Shri H.K. Dua, senior journalist, among
others. Even in the responses received
by various persons
and organisations pursuant to the circulation of the
'working paper', there has been
no dissenting voice.
4.2.6. Accordingly, the Law Commission reiterates that a
new section as
proposed in the working paper (section 78A)
should be inserted in the R.P.Act of 1951. It is further
recommended
that the provision as suggested should be
numbered as sub-section (1) and sub-sections (2), (3) and
(4) as proposed hereinafter should also be inserted in the
said section.
(2) A political party
which does not comply with any of
the requirements of sub-section (1) 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.
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.
(3) If the Election Commission finds on verification,
undertaken whether suo motu or on information received,
that the statement of accounts filed under sub-section
(1)
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.
(4) Any orders passed under sub-sections (2) or (3)
shall be directed to be published in the press and other
media, for public information."
CHAPTER III
State Funding
4.3.1. This part of chapter relates to proposal for state
funding of elections put forward in the working
paper. The
working paper had reiterated the proposals contained in the
Dinesh Goswami Bill of 1990 which,
as has been stated
herein before, was based upon the consensus of all the
political parties.
4.3.2. It is necessary at the outset to refer to Inderjit
Gupta Committee which was appointed by the Parliament
to
got into the question of state funding. The Committee has
also recommended partial state funding of political
parties
more or less on the lines of the Dinesh Goswami Bill 1990.
4.3.3. Views of participants
in seminars considered. Shri
Som Nath Chatterjee, who presided over the session devoted
to 'Election Expenses
and State Funding' in the National
Seminar held on 24.1.1999 supported the idea of state
funding.
(Hew as a member of the said Committee.) Mr.
Chatterjee referred to a 1971 Parliamentary Committee known
as 'Jagannadha Rao Committee' of which S/Shri. Atal Bihari
Vajpayee and L.K. Advani were members besides himself,
which Committee had also recommended state funding. He
referred to the deliberations of the Committee
appointed by
Shri Jayaprakash Narayan, provisions of Dinesh Goswami Bill
and to the recommendations and
resolutions of the
Inter-Parliamentary Council (at which all parliamentarians
were represented), held
in May 1994. All of them
recommended the idea of state funding. Mr. Chatterjee
referred in
some detail to the contents of the Inderjit
Gupta Committee Report recommending partial state funding
of the recognised political parties; both at the national
and state levels. The recommendations made, he said, were
designed to meet the unavoidable expenditure required to be
incurred by each political party though it may
not satisfy
their total requirements. Such a course, he said, will
help the bona fide candidates. He
also expressed himself
in favour restrictions being placed upon ostentatious
expenditure on elections
including on cut-outs, banners,
arches, public meetings and so on. According to him, the
proposals of
the Inderjit Gupta Committee Report represent
a good beginning though they do not exclude private funding
of the political parties. He also supported the idea of
creating a state fund, as recommended by the Inderjit Gupta
Committee. This fund should have a reserve of six hundred
crores. The said amount, he said, was fixed
keeping in
mind the rate of rupees ten per elector. Mr. Chatterjee
also stressed the importance and necessity
of vigilance by
public, media and all other organisations interested in
public welfare.
4.3.3.1. Shri K.K. Venugopal, senior Advocate, was
also of the opinion that time had come for seriously
considering the state funding of elections. He referred to
the fact that in several countries such a practice
was in
vogue. He pointed out that in no case, money as such
should be paid to the candidate or to
a political party.
Only certain material, which was necessary for every
political party to convey its
message and its programme to
the electorate should be provided. If the state funding
was in the shape of
cash, he opined, millions of candidates
would come forward to contest elections only for the sake
of money. He also referred in this connection to the
practice in England where free television time was made
available by BBC and by independent television companies.
Postal communication was also accessible free of charge to
the candidates. Council halls are made available
for
holding the meetings. The cost of printing and compiling
of the registers were all paid by the State.
He then
referred to the French electoral system which he said is
the most generous in this respect.
Money is not given
there directly by the state but pamphlets, leaflets,
posters, handbills and
other publicity material including
election manifestos and statements are printed by the state
machinery
at the specific request of the candidate.
Vehicles including oil and petrol are provided by the
State. Help was extended to the candidate to organise
public meetings and public address systems. Radio time
and
television time was also made available to a candidate free
of cost. Turning to India, Mr. Venugopal
said that the
problems confronting the country were very acute and that
election funding on a major scale
could not be undertaken
at the cost of poverty, primary education, primary health
care, population control,
clean drinking water, creation of
employment and so on. He opined that any deprivation in
these areas
would negate the very socialist democratic
foundation of the nation. While commending the proposals
of the Law Commission in this behalf, he referred to France
again where, with a view to preventing a large number of
independent candidates from taking advantage of state
funding, it has been provided that every
candidate
receiving State funding shall execute a bond and also
furnish a bank guarantee for the financial
support extended
to him so that in case he got less that 8 per cent of the
total votes polled, he would forfeit
his bond and money
would be recovered from the guarantor. He was of the
opinion that such a provision
should be made in the Indian
law also, if state funding was to be provided. Such a
course, he submitted
would prevent a host of candidates
appearing on the electoral scene and, at the same time,
would render
great service to democracy by providing a
level playing field to all the persons who genuinely
desired to serve the nation as representatives of the
people. He submitted that the existing professional
politicians alone could not represent the people and that
it was necessary to bring into existence a new
generation
of educated individuals who desired to serve the country.
4.3.3.2. One of the participants
suggested that it
should be open to private individuals and other bodies to
make contributions to the
Election Fund and that
contributions thereto should be exempt from income-tax.
While some of the
participants wanted the State funding to
be restricted to recognised political parties(RPPs), some
others
suggested that it should be extended to all the
candidates. As a matter of fact, there was a sharp
division of opinion, in this session, on this question.
4.3.3.3. At the seminar held on 14th November,
1998
too, these proposals had elicited mixed response.
At the Banagalore seminar, some of the participants
suggested that if
the state funding was to be introduced,
it must be made conditional upon internal democracy being
assured
within the political party. To the same effect
were the opinions expressed at the Thiruvananthapuram
seminar. In the responses received to the working paper,
differing opinions were expressed. While some members
agreed with by the opponents of this proposal is that such
a course would place an unwanted burden on
the public
exchequer and that unless other proposals relating to
maintenance of accounts etc., were
also given effect to,
state funding should not be resorted to.
4.3.4. Conclusions - After considering
views expressed by
the participants in the seminars and by various persons and
organisations in their
responses and after perusing
relevant literature on the subject, the Law Commission is
of the opinion
that in the present circumstances only
partial state funding could be contemplated more as a first
step
towards total state funding but it is absolutely
essential before the idea of state funding (whether partial
or total) is resorted, the provisions suggested in this
report relating to political parties (including
the
provisions ensuring internal democracy, internal
structures) and maintenance of accounts,
their auditing and
submission to Election Commission are implemented. In
other words, the implementation
of the provisions
recommended in Chapter one Part three should be a
pre-condition to the implementation
of the provisions
relating to partial state funding set out in the working
paper in the Law Commission
(partial funding, as already
stated, has also been recommended by the Inderjit Gupta
Committee). If without
such pre-conditions, state funding,
even if partial is resorted to, it would not serve the
purpose underlying
the idea of state funding. The idea of
state funding is to eliminate the influence of money power
and also
to eliminate the influence of money power and also
to eliminate corporate funding, black money support and
raising of funds in the name of elections by the parties
and their leaders. The state funding, without
the
aforesaid pre-conditions, would merely become another
source of funds for the political parties
and candidates at
the cost of public exchequer. We are, therefore, of the
opinion that the proposals
relating to state funding
containted in the Inderjit Gupta Committee Report should be
implemented only
after or simultaneously with the
implementation of the provisions contained in this Report
relating
to political parties viz., deletion of Explanation
1 to Section 77, maintenance of accounts and their
submission etc. and the provisions governing the
functioning of political parties contained in chapters
I
and II of Part IV and chapter I of Part III. The state
funding, even if partial, should never be
resorted to
unless the other provisions mentioned aforesaid are
implemented lest the very idea may
prove counter-productive
and may defeat the very object underlying the idea of state
funding of elections.
4.3.5. It is desirable that total state funding should be
introduced but on the condition that political parties are
barred
from raising funds from any other source. In this
chapter, we have proceeded on the assumption that only
partial instead of total state funding is feasible in the
prevailing economic conditions in the country.
4.3.6. In the Inderjit Gupta Committee report on State
Funding of Elections also, it has been recommended
-
" 6.14 The committee, therefore, sees 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, on a
level
with a fair chance of success at the
hustings."
The committee also emphasised
that such funds could
not be doled out to independent candidates and that such of
the registered parties
as had secured recognition as
national and State parties under the Symbols Order on the
manifest demonstration
of their popular support among the
electorate for State sunvention. We concur with the
suggestion.
4.3.6.1. On the issue as to whether full or partial
State funding should be admissible, the
said Committee
further observed:
"Para 9.1. Given the budgetary constraints and
financial stringencies being faced currently by the
country, compounded by the recent economic
sanctions imposed by certain foreign countries,
sparing or diverting from the meagre
financial
resources of the country at this juncture, huge
funds that may be required
to provide full State
funding to political parties will neither be
advisable nor feasible.
A harmonious balance has
to be struck. Therefore, to being (sic) (read
instead "begin")
with political parties may have to
contend with only partial funding by the State."
The Committee further recommended that for the
present, only part of the financial burden of political
parties may be shifted to the State. This should be so
done that it provides them relief not only in carrying
out
their electoral activities and meeting partly the cost of
essential items of electioneering campaigns
of their
candidates but also helps them partially in the current
administration of their day to
day functioning during
non-election period.
4.3.6.2. The Committee recommended that, to begin
with,
State subvention may be given only in kind, in the form of
certain facilities to the recognised political
parties and
their candidates.
4.3.6.3. The Committee underlined the need to curb
the
mounting expenses of parties and candidates and
ostentatious show of money power by them, by placing
reasonable restrictions by law in respect of all or any of
the following matters:
(i) Wall writings;
(ii) Display of cut-outs, hoardings, banners;
(iii) Hoisting of flags (except at party offices,
party offices, public meetings and other
specified places);
(iv) Use of more than a specified
number of
vehicles for election campaigns and fro
processions;
(v) Announcements
or publicity by more than a
specified number of moving vehicles;
(vi) Holding of public
meetings beyond the
specified hours;
(v) Display of posters at places, other than
those specified by the district/electoral
authorities.
4.3.7. We reiterate all the recommendations made in the
Indrajit Gupta Committee Report subject to the reservations
made in para 4.3.4. So far as the Explanation I to section
77 (1) of the Representation of the Peoples
Act 1951 is
concerned, we have already recommended its deletion.
4.3.8. As a post-script, we may
also refer to the report
of the Committee on Standards in Public Life (the Neill
Committee: Cmd. 4057)
submitted on October 13, 1998 by
that Committee to the Government of the United Kingdom.
They have
made several proposals, inter-alia, for
regulating the election expenditure as well as for making
auditing and accounting rules for political parties. The
proposals are generally aimed at encouraging (i) more
openness about the sources and use of party funds; and (ii)
greater public confidence that individuals
and
organisations were not buying influence with political
parties.
PART V
Proposal regarding framing of charges by courts as
a new ground for disqualification
5.1. In the working paper, the Law Commission had
suggested amendment
of Section 8 of the R.P. Act. Section
8 provides for disqualification on conviction for certain
offences.
It has four sub-sections. Sub-section (1) sets
out certain specific offences, the conviction under which
shall disquality the candidate for a period of six years
from the date of such conviction. Sub-section (2) refers
to certain offences subject-wise and says that any person
convicted for such offences 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 he is
released. Sub-section
(3) is in the nature of a
'residuary' provision. It says that a person convicted of
any offence
and sentenced to imprisonment for not less than
2 years (other than an 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 he is released.
Sub-section (4) provides that disqualification
falling
under sub-section (1), 92) and (3) shall not take effect in
the case of a person, who, on the date
of conviction is a
member of Parliament or the Legislature of a State until
three months have elapsed
from that date or, if within that
period an appeal or application for revision is brought in
respect of the
conviction or sentence, until that appeal or
application is disposed of by the court. (It is not
necessary
to refer to the provisions of the Explanation
appended to the section). The Law Commission had proposed
that in respect of offences provided in sub-section (1)
(except the offence mentioned in clause (b) of sub-section
(1), a mere framing of charge should serve as a
disqualification. This provision was sought to
be made in
addition to existing provision which provides for
disqualification arising on account
of conviction. The
reason for this proposal was that most of the offences
mentioned in sub-section
(1) are either election offences
or serious offences affecting the society and that the
persons committing
these offences are mostly persons having
political clout and influence. Very often these elements
are supported
by unsocial persons or groups of persons,
with the result that no independent witness is prepared to
come
forward to depose against such persons. In such a
situation, it is providing extremely difficult to obtain
conviction of these persons. It was suggested that
inasmuch as charge were framed by a court on the
basis of
the material placed before it by the prosecution including
the material disclosed by the charge-sheet,
providing for
disqualification on the ground of framing of the
charge-sheet would be neither
unjust nor unreasonable or
arbitrary.
5.1.1. The Law Commission further suggested that several
election offences mentioned in the Act as well as in the
Indian Penal Code provided for ridiculously
inadequate
punishment. We had expressed the opinion that several
electoral offences contained in the
R.P. Act and in the
IPC were of a serious nature and, therefore, suggested that
all these offences should provide for punishment upto three
years
or more. The detailed proposals have been detailed
in the working paper.
5.2. Views of different
persons considered - The
proposal to amend sub-section (1) of section 8 as mentioned
above was supported
by the Hon'ble Prime Minister in his
inaugural address at the national seminar while taking care
to clarify
that mere filing of charges (chargesheet) should
not be made a ground of disqualification. Shri P.A.
Sangma, former Speaker, Lok Sabha did not express a
specific opinion on this issue. He, however, queried what
happened if a political party puts up candidates with
criminal background? Was it possible to
take action
against political party, he asked? Shri Dilip Padgaonkar,
Editor, Times of India, in his
keynote speech at the
National Seminar referred to Dr. Radhakrishnan's concern
about corruption expressed
in 1947 and to Vohra Commttee
Report. According to him, a negative process was in
progress in India,
namely, criminalisation of politics and
politicisation of crime. He observed that Indian Society
was basically
tolerant of human failings and that it
respected acquisition of wealth by whatever means. He
referred
also to facts and figures concerning the
increasing criminalisation and the increasing number of
crimes committed at every succeeding election. He referred
to the increasing electoral malpractices with every passing
election. He pointed out that while in 1957, repoll was
ordered only in 65 booths, in 1989 it was ordered
in 1670
booths. He pointed out that in 1991, in Bihar alone repoll
was ordered in 1046 booths and in 2173
booths in 1996. He
suggested strong measures to arrest the trend towards
criminalisation of politics
and elections. Shri V.R.
Reddy, Senior Advocate and former Additional Solicitor
General extended
qualified support to the proposals of the
Law Commission in this behalf. According to him, this
amendment
did not really provide the solution insasmuch as
the police was not willing to take action against criminals
because of the nexus between politicians and criminals.
5.2.1. Strong opinion were expressed by
several
participants at the National Seminar about the politicians
taking the help of criminals not
only at the time of
elections but even at other times, as well as to the direct
entry of criminals themselves
into politics. One of the
suggestions was that the antecedents and history as also
the assets of each
candidate at an election should be
published in newspapers before their nomination was
accepted.
5.2.2 Certain participants in the seminars at Bangalore
and Trivandrum suggested compulsory introduction
of
electoral voting machines to check the role of criminals at
the time of elections. It was also suggested
that if a
person was convicted of an electoral offence provided in
the Act or in the IPC, substantial fines
should be imposed
upon him which should be in lakhs and commensurate with his
capacity.
5.2.3 In the responses received from various persons and
organisations pursuant to circulation of our working paper
also, there has been a sharp difference of opinion. While
some persons opposed the proposal to disqualify the persons
on the basis of framing of charges, some others supported
it. One of the proposals made by one of the respondents,
Shri P.V. Nam Joshi, is that if charges are framed against
a candidate, the political party should itself
be placed
under a statutory obligation to treat him as disqualified
from candidature and should not give
ticket to him. Shri
C.K. Jain, former Secretary-General, Lok Sabha agreed with
the Law Commission and suggested
that as soon as charges
are framed, the person, if already a member of the House,
should straightaway
stand disqualified. Certain other
responses suggested that the disqualification on the ground
of framing
charges should be restricted only to serious
offences like murder, dacoity, theft, rape and other
offences involving moral turpitude and offences against the
State. Certain other responses suggested inclusion
of
section 498A (of IPC) in the list of offences mentioned in
sub-section (1).
5.2.4
Shri V.R. Krishna Iyer, an eminent jurist and
former Judge of the Supreme Court strongly opposed the
amendment of section 8. He opined that there should be no
short-cuts nor should the State resort to any short-cuts
even for achieving desirable goals.
5.2.5 All the persons who opposed the proposed amendment
of section 8(1) expressed apprehension that such a
provision may be taken advantage of and misused
by the
party in power and would seek to involve its opponents and
leaders of other political parties in
criminal cases just
on the eve of the elections. While, it is true that the
charges are framed by the court,
the objectors pointed out,
the charges are framed only on the basis of the material
placed by the prosecution
before the court. By that time,
they explained, the version or the case of the accused
would not have
come before the court nor the prosecution
witnesses would have been cross-examined.
5.2.6 We
have also taken notice of the opinion of the
Election Commission of India suggesting that framing of
charges should form the basis for a disqualification under
section 8.
5.3 Analysis of views.-
Having given our earnest
consideration to the issue, we are of the opinion that the
proposal put forward
by us should be reiterated and
affirmed but with certain changes. The changes we are
making are
the following: (a) section 8 shall remain as it
stands now; (b) the 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 shall be put in a separate section viz.,
section 8B. Section 8B (proposed) provides
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. (In case such person is
convicted for any of the offences mentioned in section 8B
(proposed)
he gets disqualified under section 8). This
course we are adopting for the reason that a person
committing election offences or serious offences punishable
with life imprisonment should be disqualified even if
charges are framed against him by the
court. It must be
remembered in this context that persons committing
electoral offences or election
related offences are
generally influential persons or persons having the backing
of influential persons.
So far as offences punishable with
life imprisonment are concerned, they seriously affect the
public and
very often involve moral turpitude. In this
connection, we feel constrained to make certain remarks
about the criminal judicial system of this country which
has also become extremely corrupt at certain levels.
In
several instances, offences are registered merely with a
view to pressurise the persons to pay
bribes to the
investigating agencies and then the case is closed. The
real offenders are quite often
left untouched either
because they are capable of bribing the investigating
agencies or able to pressurise
them in various well-known
ways. So far as the prosecuting agency is concerned, the
appointment process
of public prosecutors and other
prosecutors in criminal courts has also become thoroughly
politicised.
Appointments are no longer made on the basis
of merit but almost exclusively on the basis of political
affiliations. It is a common phenomenon in the States to
see the public prosecutors and the government advocates
changing with every change of government - not merely when
a different political party comes into power but
also when
the incumbent in the office of chief minister changes
within the same political party.
Such kind of
appointments, coupled with frequent changes (leaving short
terms at the disposal of
the incumbents), is keeping away
people with merit from these offices. No advocate with
merit and having
some work, is prepared to accept these
offices because they have become too precarious and
dependent
upon the whims and fancies of the political
bosses. Efficiency and integrity have both become scarce
in many of the holders of these offices. So far as the
witnesses are concerned, the inordinate delays in bringing
the accused to trial is acting as a damper. Very often
witnesses are won over, threatened or otherwise
pressurised
not to speak the truth. If their evidence is recorded soon
after the offence, more often than
not, they will speak the
truth. But if there is an interval of a year or more which
is invariably the case
now-a-days - they become weak in
their resolve to uphold the truth and succumb to pressures.
Lastly, so
far as the judges are concerned, the common
complaint heard is that inefficiency, and corruption in
some cases have both unfortunately made an entry into the
hitherto sacred portals of judiciary.
5.3.1 The real fault lies in the fact that the Indian
State has become very `soft'. There is no respect for
law
either in the bureaucracy or among the citizens. Many
people indeed take pride and pleasure in violating
the law
and in boasting of their violations. People appreciate a
person who carries on business without
paying taxes. His
skill is admired, little realising the great harm he is
causing to the society. In
USA, not paying taxes correctly
is immediately visited with a jail term. A few decades
ago, a corrupt man was generally timid and afraid of
situations
where his misdeeds may be talked of or
questioned. Today, that is not the situation. Corruption
is open and brazen and has the sanction of a section of the
public, if not of the public as a whole. Several campaigns
and movements for eradicating corruption have not borne
fruit. It is necessary to take stringent
measures to
enforce the law, punish and impose maximum punishments for
every violation of offence. To start
with, people must be
made aware that the law is there to follow and not to
flout. Methods must be
found and implemented eradicating
political interference with the police and administration.
The weapon of
transfer must be taken away from the hands of
political executive. The political executive should be
confined
to laying down the policies and performance of
those functions as are conferred upon it by law. It should
have no say in the matter of performance of statutory
functions by statutory authorities. Even in the matter
of
administration of the government, the discretion and
judgment of the officers should be respected
by the
government while taking decisions. At the same time, the
anti-corruption laws must be stringently
enforced and the
trials promptly concluded. One of the measures suggested
in this behalf by the Law Commission
has been the enactment
of a legislation called "The Corrupt Public Servants
(Forfeiture of Property)
Act" [166th Report of the Law
Commission]. The provisions contained in the "Benami
Transactions
Act" relating to seizure and forfeiture of
benami properties should also be enforced without any
delay. The Central Vigilance Commissioner has been
repeatedly asking for enforcement of the said provisions
and also for the enactment of the legislation recommended
by the Law Commission in its 166th Report. Starting
with
the smallest of the offences like throwing litter in
streets, parks and public places and
not obeying the
traffic rules to major offences like corruption,
misappropriation of public funds
and dacoity should all
merit maximum permissible sentence, as a general rule. It
is only by this weapon
that respect for law can be
inculcated in the society and in the administration. India
must get out
of this `soft state syndrome'. Otherwise no
meaningful development is possible and there can be no
improvement
in the governance of this country.
5.4 Conclusion.- Accordingly, we recommend that section
8B
(as proposed by us and as set out hereinbelow) be
enacted.
"8-B. Disqualification on
framing of charge for
certain offences.- A person against whom charge has
been framed under:-
(a) section 153A, section 171E,
section 171F, section 171G, section 171H, section
171I, sub-section
(1) or sub-section (2) of section
376, sub-section (2) or sub-section (3) of section
505 of
the Indian Penal Code (45 of 1860); or
(b) sections 10 to 12 of the Unlawful Activities
(Prevention) Act, 1967 (37 of 1967); or
(c) the penal provisions of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (61 of 1985)
except section 27 thereof; or
(d) section 125, section 135, section 135A or
sub-section (2) of section 136 of this Act; or
(e) any other offence punishable with imprisonment
for life or death under any law,
shall be disqualified for a period of five years
from the date of framing the charge, provided he is
not acquitted of the said charge before
the date of
scrutiny notified under section 36 of this Act."
We also reiterate
the proposals to enhance the
punishment for various electoral offences mentioned in the
R.P. Act as well
as in the Indian Penal Code. All of them
are electoral offences and seriously interfere with a fair
electoral
process. They foul the electoral stream by
letting in all kinds of distortions and evils into the
electoral system and finally into our body-politic. The
punishments at present provided are totally inadequate
and
are ridiculously low, hence need to be enhanced.
PART VI
CHAPTER I
Other Proposals in the Working Paper
6.1.1. In this part we shall deal with certain other
proposals put forward in Annexure I of our working
paper.
They are:
(a) Deletion of sections 11 and 11B of the R.P. Act.
(b)
Amendment of section 33 of the R.P. Act. By
introducing sub-section (7), it was sought to be provided
that no person shall be entitled to contest simultaneously
from more than one parliamentary constituency or assembly
constituency, as the case may be. Similar provision was
suggested with respect to the Council of
States and
Legislative Councils and even in bye-elections.
(c) Amendment of section 34 raising
deposits in the
case of independent candidates and candidates of
unrecognised political parties.
(d) Amendment of section 58A in certain respects.
(e) Amendment of section 62 by inserting
a proviso.
(f) Amendment of section 78 reducing the period
prescribed for filing the
account of election expenses by
the contesting candidates from 30 days to 15 days.
(g) Amendment
of sections 81, 86 and 87 relating to
trial of election petitions.
(h) Amendment of section
97 in the light of the
decision of the Supreme Court in Bhag Mal v. Parbhu Ram,
AIR 1985 SC 150.
(i) Insertion of new sections 98A and 98B.
(j) Amendment of section 107.
(k) Amendment of section 116A.
(l) Omission of the proviso to sub-section (7) in
section 123.
(m) Insertion of a new chapter II in part 7 of the R.P.
Act, relating to `Illegal
Practices'.
(n) Insertion of section 126A.
(o) Insertion of another proviso to section
151A.
(p) Insertion of new section 162A.
(It may be mentioned that the proposals
with
respect to enhancing the punishments provided by sections
127, 134B, 135 and 136 of the R.P. Act
and by various
offences in chapter IXA of the Indian Penal Code, 1860,
have already been affirmed
and recommendations made to
implement the same.)
6.1.2. So far as the proposals under
(a) to (p) are
concerned, no objection has been taken to any of the said
proposals by anyone, except with
respect to the proposal to
enhance the deposit in the case of independents and
candidates of unrecognised
political parties (by amending
section 34 of the Act). Shri Justice V.R. Krishna Iyer
strongly opposed
the said proposal on the ground that such
a provision would discourage not only the independents but
unrecognised
political parties from contesting the
elections on an equal footing with the recognised political
parties. The Law Commission is, however, unable to agree
with the opinion of Justice Iyer, notwithstanding the great
respect we have for his views. there have been numerous
instances in the past where scores of independents
entered
the election fray for various oblique reasons. In case of
certain constituencies, the number of contesting
candidates
was anywhere between 30 to 50. The matter had reached
ridiculous proportions. The ballot
paper had to be as big
as a newspaper sheet. Apart from the fact that most of
these independent candidates
are not serious candidates,
the very principle of parliamentary form of government
requires that independents should not be encouraged.
The
facts and figures relating to previous elections to Lok
Sabha or, for that matter, to Legislative
Assemblies, show
that the percentage of independent candidates succeeding is
approximately 0.3% in the
case of Twelfth Lok Sabha. As
stated earlier, in Dhartipakar v. Rajiv Gandhi, AIR 1987
SC 157, the Supreme
Court also recommended to Parliament to
devise ways and means to meet the onslaught of independent
candidates
who are not serious about their business.
Enhancing the deposits could have been one method by which
such independent candidates and candidates of unrecognised
political parties could be discouraged from entering
the
election fray in a lighthearted and casual manner or for
oblique reasons. We have, however, gone
further and
decided to recommend in chapter III of Part III above that
independent candidates should be
altogether eliminated from
the political scene in India and thereby pave the way for
meaningful electoral
reforms. In such a case, amendment of
section 34 as suggested by us is unnecessary.
6.1.3. Conclusion.-
Accordingly, we reiterate all our
recommendations with respect to the matters mentioned under
(a), (b)
and (d) to (p) of para 6.1.1., supra. We may
mention that the proposal to amend section 34 (raising the
deposit in the case of independent candidates) has been
dropped by us in view of our other recommendations
viz.,
barring the independent candidates and the requirement of
obtaining 5% (of the valid votes cast) by
a political party
to enable it to obtain a seat in Lok Sabha or in
Legislative Assembly.
CHAPTER II
Procedure visualised for prosecution in case of perjury
during judicial proceedings
6.2.1. Existing procedure under the Code of Criminal
Procedure, 1973:- Under the Code of Criminal Procedure,
the
relevant provisions can be found under section 195(1)(b),
sections 340, 341, 342, 343 and 344.
They deal with
matters relating to perjury and giving of false evidence
before courts during judicial
proceedings.
6.2.2. A perusal of section 195(1)(b) shows that offences
under sections 193 to
196 (both inclusive), 199, 200, 205
to 211 (both inclusive) and section 228 as well as those
falling under
section 463, 471, 475, 476 of the IPC, shall
not be taken cognizance by a court except on the complaint
in
writing of that court, or some other court to which that
court in subordinate.
6.2.2.1.Section
340 lays down the procedure for initiating
the proceedings for prosecuting the persons for the
offences
mentioned in section 195. This section is
intended to be complementary to section 195. Whether, suo
motu or on an application by a party, a court being already
seized of a matter under section 340(1) may be tentatively
of opinion that further action against some party or
witness may be necessary in the interest of
justice. In
such a proceeding, the reasons recorded in the principal
case in which a false statement has
been made, have a great
bearing. Thus in an enquiry under section 340(1), the only
question is whether a
prima facie case is made out which,
if unrebutted, may have reasonable likelihood of
establishing
the specified offence and whether it is
expedient in the interest of justice to take such action.
The court concerned may, after holding preliminary enquiry,
if any, as it thinks necessary-
(a)
record a finding to that effect
(b) make a complaint thereof in writing
(c) send it to a magistrate of the
first class having
jurisdiction
(d) take sufficient security for the appearance of the
accused before such magistrate, or if the alleged
offence is non-bailable and the court thinks it
necessary so to do, send the accused in custody to
such magistrate and
(e) bind over
any person to appear and give evidence
before such magistrate
6.2.3. Under sub-section
(3) of section 340 a complaint
made under this section shall be signed -
(a) where the court
making the complaint is a High
Court, by such officer as the court may appoint;
(b) in any other
case, by the presiding officer of the
court.
6.2.2.4.Section 343 lays down the procedure
to be followed
by a magistrate taking cognizance. Under sub-section (1)
of section 343, it is provided
that a magistrate to whom a
complaint is made under section 340 or 341 shall,
notwithstanding anything
contained in chapter XV, proceed,
as far as may be, to deal with the case as if it were
instituted on
a police report.
(emphasis supplied)
6.2.2.5.Section 344 enacts a summary procedure for trial
for giving false evidence where the court does not choose
to proceed under section 340 of the CrPC.
Under this
section before the punishment is imposed, the offender has
to be given a reasonable opportunity
of showing cause why
he should not be punished for such offence. The maximum
punishment laid down is imprisonment upto three months or
fine upto Rs.500/- or both.
6.2.2.6.Section 345 lays down procedure in certain cases of
contempt.
6.2.3.
There is a general tendency on the part of Courts
to avoid making complaints even against persons giving
false depositions or launching false prosecutions. In our
recent report on the Code of Civil Procedure, 1908,
while
referring to a Supreme Court decision, it was observed that
no court can avoid taking action against
persons who submit
false affidavits in the courts or give false evidence. In
order to curb the tendency
to give false evidence in
judicial proceedings, it is essential that frequent
recourse should
be taken by courts to the aforesaid
provisions so that persons making false depositions or
pursuing
false prosecutions are deterred from doing so.
This object can be achieved if presiding officers of courts
are not required to personally file the complaint before
the Magistrates of first class. Many times presiding
officers avoid taking recourse to the prescribed procedure
as they wish to avoid the possibility of their
being called
as a witness in such proceedings.
6.2.4. Conclusion - In order to remove this unnecessary
hurdle, it is essential that the existing provisions under
sections 195(1)(b), and 340(3)(b) of CrPC be substituted
as
follows:-
For section 340(3)(b), the following clause may be
substituted:-
"(b) In any other case, by the presiding officer of
the Court, or by such ministerial officer as the
Court may
designate in this behalf".
6.2.5 Accordingly, section 195(1)(b) should also
be
amended by inserting before the words "or of some other
Court" and after the words "except
on the complaint in
writing of that Court, the following words:-
"or by such ministerial
officer as the Court may
designate in this behalf".
6.2.6. In view of the proposed
insertion of the words
stated above, the Court before which the false evidence was
given or false prosecution
was launched, will be generally
relieved of the anxiety that they may possibly be called to
give evidence
during trial before the Magistrate. Such
deposition on behalf of the Court can then be given by such
ministerial
officer as the Court may designate in this
behalf.
6.2.7 Under section 294, no formal
proof of certain
documents is required. Thus in general the judicial record
may be read in evidence as such.
The proposed amendments,
it is felt could achieve the object of deterring persons
from initiating false
prosecutions. These amendments will
be particularly appropriate in matters relating to
disqualifications
under proposed section 8B to guard
against abuse of the said provision. In course of time,
provisions
of CrPC could also be amended on the above lines
to deter launching of false cases.
CHAPTER III
Ineligibility of candidates to contest election
unless the candidate furnishes the particulars
regarding the lawful assets possessed
by him, or
her, and his or her spouse and dependent relations,
and the particulars regarding
criminal cases
pending against himself or herself.
6.3.1 There has been mounting corruption in all walks of
public life. People are generally lured to enter
politics
or contest elections for getting rich overnight. Before
allowing people to enter public life,
the public has a
right to know the antecedents of such persons. The
existing conditions in which
people can freely enter the
political arena without demur, especially without the
electorate knowing
about any details of the assets
possessed by the candidates are far from satisfactory. It
is essential
by law to provide that a candidate seeking
election shall furnish the details of all his assets
(movable/immovable)
possessed by him/her, wife/husband,
dependent relations, duly supported by an affidavit.
6.3.2
Further, in view of recommendation of the Law
Commission for debarring a candidate from contesting an
election if charges have been framed against him by a Court
in respect of offences mentioned in the proposed section
8B
of the Act, it is also necessary for a candidate seeking to
contest election for furnish details regarding
criminal
case, if any, pending against him, including a copy of the
FIR/complaint and any order made by the
concerned court.
6.3.3 In order to achieve the aforesaid objectives, it is
essential to insert
a new section 4-A after the existing
section 4 of the Representation of the People Act, 1951, as
follows:-
"4-A. Qualification for membership of the House of
the People, the Council of
States, Legislature
Assembly of a State or Legislative Council
A person shall not
be qualified to file his
nomination for contesting any election for a seat
in the House
of the People, the Council of States,
Legislative Assembly or Legislative Council of a
State unless he or she files -
(a) a declaration of all his assets
(movable/immovable)
possessed by him/her,
his/her spouse and dependent relations,
duly supported
by an affidavit, and
(b) a declaration as to whether any charge in
respect of any offence
referred to in
section 8B has been framed against him by
any Criminal
Court."
6.3.3.1 The consequential changes will be required to be
carried out in Forms
2A to 2E prescribed by the Conduct of
Election Rules, 1961 to bring these in conformity with the
amendments
recommended in the Representation of the People
Act, 1951. Accordingly, it is recommended that following
clauses be inserted as clauses (d) and (e) in forms 2A to
2E. Consequently, the existing clause (d) therein shall
be
designated as clause (f):
(e) that the statement of assets enclosed to this
nomination paper represents the true and correct
statement of all the assets, movable and immovable,
held/owned by me, my spouse and dependent
relations. An affidavit affirming the
correctness
of the said statement is also appended to this
nomination paper.
(f) that no criminal court has framed a charge against
me in respect of any of the offences mentioned
in
section 8B of the Act and that no trial in respect
of charges of the said offences is pending,
or
that a charge has been framed against me by the
court of _____________ in the case No. ________ on
___________ (date) in respect of offence(s)
punishable under sections ______________
mentioned
in section 8B and trial is pending against me,
or
that though charge was
framed against me by the
court of ___________________ in the case No.______
on ____________
(date) in respect of offence(s)
punishable under sections ____________ mentioned in
section
8B, I have since been acquitted of the said
charge by order _____________ (date) (copy
enclosed).
Moreover, the words "that I am contesting this
election as an independent
candidate" in forms 2A and 2B
should be deleted.
PART VII
Need for urgent measures to instil stability in governance
and for improving the electoral system
7.1 In this part, we shall deal with (A) measures to
instil stability in governance within
the existing
constitutional system and (B) certain other suggestions for
improving the electoral system.
Though the proposals in
this behalf were not put forward in our working paper, the
matters discussed herein
have been the subject-matter of
intense and widespread public debate and appear to be
essential to
redress the several weaknesses which have come
to light in the recent years in the governance of this
country. We proceed to discuss these issues.
CHAPTER I
Stability in governance
7.1.1 First Measure.- The proliferation of political
parties - almost a mushroom growth -
over the last few
decades, necessitating the formation of coalitions with all
their internal contradictions,
pulls and pressures, has
contributed to instability in the governance. This has to
be checked. A
parliamentary democracy can be run
successfully only if there are two or three parties. U.K.
has three
parties, U.S.A. only two and Germany has four.
Multiplicity of parties is not good for the health of a
democracy. The French had bitter experience with
`revolving door' coalitions and eventually changed
the
system. Italy is having the same problem where it is said
that over the last 50 years, there have been
more than 40
governments. In our own country, we have had an unhappy
experience with coalition governments.
In the last three
years, we have had three governments, all of which fell for
reasons inherent in such
coalitions. All this brings home
the urgency of rectifying this state of affairs. Already,
there are strident
voices, some of them emanating from very
high and reputed quarters, in favour of switch-over to
presidential
form of government. That is an issue outside
the scope of the present report. Herein we are confining
ourselves to solutions within the parameters of the
existing constitutional system.
7.1.2
Conclusion.- One of the solutions, we have already
recommended in chapter II of Part III viz. that any
political party which obtains less than 5% of the total
valid votes cast in the parliamentary election
or a
Legislative Assembly election, shall not be entitled to any
seats in the Lok Sabha or Legislative Assembly,
as the case
may be, even if it wins any seat or seats. Such a
provision would lead to polarisation
among the political
parties and to formation of larger political parties by a
process of integration
or by formation of pre-election
fronts. In such a situation, defection of a member of such
constituent
party of the pre-election front or of the
constituent party as a whole from the pre-election front
should be treated as defection attracting the provision of
the Tenth Schedule to the Constitution.
7.1.3 Second Measure.- Another measure which can be
thought of to introduce stability in governance is to
amend
Rule 198 of Rules of Procedure and Conduct of Business in
the Lok Sabha. But before we set
out the proposed
amendment, it is necessary to notice the relevant context.
In a parliamentary form of government,
the government has
no fixed term. Though its term is co-terminus with the
life of the House, it can
be defeated or it may fall, on
many counts. For example, a defeat on a money bill or a
cut motion will,
according to conventions established in
U.K. and followed in this country would oblige the
government
to resign. It is indeed a case of rendering
accountability on a daily basis. At any time, the
opposition can bring a no-confidence motion and if it is
approved by the House, the government has to resign.
In
view of what has happened at the Centre in 1979, 1990 and
in the recent years, it should make us all
think of ways to
avoid repetition of such situations. In 1999, in
particular, the government was defeated on the `confidence
motion' moved by
the government but no alternate government
could be formed, making a general election inevitable
within
a span of 13 months. It has made us hold
parliamentary elections almost every year. It is neither
good for the country nor for the political parties. The
governance and economy are the first casualties of
such a
transfiguration. There is a danger that such situations
may lead to public disenchantment with
the parliamentary
form of government. There are already strident voices for
changing over to a presidential
form of government. We
are, however, not going into the question whether a
presidential form of
government should be introduced by
making the necessary changes in the Constitution. We are
thinking
of solutions within the existing constitutional
system, though as we shall indicate presently, it does mean
abandoning some of the conventions governing the
parliamentary form of government and which are being
followed in this country too till now. We must clarify
that the proposed amendment to the aforementioned
Lok Sabha
Rules does not violate any of the constitutional
provisions, but it certainly means modification
of certain
conventions developed in U.K. and followed in our country
since 1950. Article 67 of the Basic
Law for the Federal
Republic of Germany lays down:-
"Article 67 (constructive vote of
no confidence):-
(1) The Bundestag may express its lack of
confidence in the
Federal Chancellor only by
electing a successor with the majority of its
Members
and requesting the Federal President to
dismiss the incumbent. The Federal President must
comply with the request and appoint the person
elected.
(2) Forty-eight hours must elapse
between the
motion and the vote."
This provision has the objective of ensuring
a
stable government.
7.1.3.1 In his article in the Hindustan Times dated
13.5.99,
page 13, Shri Pran Chopra suggested a few
electoral reforms. The first reform he has advocated is
the innovation of simultaneous votes of no-confidence in
the incumbent and confidence in the alternative. It
would
eliminate the need for a mid-term poll. He has opined:-
"That a government should
seek a vote of confidence
is an innovation, but justified by the very
circumstances
in which that government came into
being, on the basis of written commitments of
support,
and the written withdrawal of one of them.
But the proposed innovation of simultaneous votes
of no-confidence in the incumbent and confidence in
the alternative would be much safer. It would
eliminate the need for a mid-term poll. It would
also be more democratic, because it would
shift the
process of finding an alternative to the place
where the process belongs,
namely Lok Sabha. It
would also restore to the President, in its
fullness, his
truer and greater function of being
the trusted counsellor of the government, with the
trust unimpaired by how the successor Prime
Minister might have been chosen."
7.1.3.2 As a matter of fact, similar suggestion has been
put forward by several other eminent public figures for
ensuring stability of the governments and to avoid
mid-term
polls before expiry of term of the House.
7.1.4 Conclusion.- In our opinion, a new rule,
Rule 198A
should be introduced in the Rules of Procedure and Conduct
of Business in the Lok Sabha providing
that -
"Rule 198-A (1) Once a no-confidence motion is taken up
for discussion and voted upon
as contemplated by sub-rules
(3) and (4) of Rule 198, no fresh motion expressing want of
confidence in the
Council of Ministers shall be permitted
to be made for a period of two years from the date of
voting
upon such motion.
(2) Once a motion expressing confidence in the Council
of Ministers is made
pursuant to the direction of the
President, no motion expressing want of confidence in such
Council
of Ministers shall be permitted to be moved for a
period of two years.
(3) No leave shall
be granted under Rule 198 to a
motion expressing want of confidence in the Council of
Ministers, unless
it is accompanied by a motion expressing
confidence in a named individual. Only the motion
expressing
confidence in a named individual shall be put to
vote."
It would be appropriate if similar
rule is made by
all the Speakers by amending the respective Rules of
Procedure governing their Legislative
Assemblies.
CHAPTER II
Measures for improving the electoral system
7.2.1 Goal of one election once in five years disrupted.
The Constitution provides for a federation.
At the Centre,
there is a Parliament and in the States there are State
Legislatures. To begin with,
elections to Lok Sabha and
the Legislative Assemblies in the States were being held
simultaneously and once
in five years. But then slowly and
steadily the Lok Sabha elections and the elections to
Legislative
Assemblies got dissociated for several reasons.
For example, in a case where a State Legislative Assembly
is dissolved invoking the power under article 356 of the
Constitution well before the expiry of its term,
an
election has to be held to that Legislative Assembly within
the period prescribed. Sometimes it may
happen that a
particular Chief Minister in a State may advise the
Governor to dissolve the Legislative
Assembly well before
the expiry of its term and if such recommendation is
accepted by the Governor
and the Assembly is dissolved, a
fresh election to that Assembly has to be held within the
period prescribed.
Unfortunately, till about 1994, there
has been a rampant resort to article 356. In some
instances,
as many as six or more State Governments and
Legislative Assemblies were dismissed/dissolved at once,
necessitating elections to those Legislative Assemblies
soon thereafter. There have also been instances when
Lok
Sabha was dissolved far ahead of the expiry of its term.
It happened on at least four occasions. The
result is that
the schedule of Lok Sabha elections and the schedule of the
elections to Legislative Assemblies
has become completely
separated. The resulting situation can best be illustrated
by setting out the particulars
relating to Lok Sabha and
the several Legislative Assemblies:
(a) The XIIth Lok Sabha has been
dissolved in the month
of April 1999 and elections have been notified to take
place in September-October,
1999. If so, its term, in the
normal course would expire in October 2004.
(b) Elections to the
State Assemblies of Mizoram,
Delhi, Madhya Pradesh and Rajasthan were held in March 1998
along with the
Lok Sabha elections of 1998. Their term
will come to an end in March 2003.
(c) The terms
of Karnataka and Sikkim Legislative
Assemblies will come to an end on 25th December 1999 and
28th December
1999, respectively.
(d) The term of the Legislative Assemblies of Andhra
Pradesh, Maharashtra,
Manipur, Orissa, Arunachal Pradesh
and Bihar is coming to an end in the year 2000 between the
months of
January to April. To be more precise, the dates
of expiry of Legislative Assemblies of the said States are
10th January, 21st March, 21st March, 22nd March, 23rd
March and 9th April, 2000 respectively.
(e) The terms of the Legislative Assemblies of Haryana,
Tamil Nadu, Kerala, West Bengal, Pondicherry and Assam
will
come to an end during the months of May and June 2001. To
be precise, the dates of expiry are 21st
May, 21st May,
28th May, 9th June, 9th June and 11th June, respectively.
(f) The term of the Legislative
Assemblies of Punjab,
Uttar Pradesh and J & K is coming to an end in the year
2002. To be precise,
the dates of expiry of the term of
these States are 2nd March, 25th March and 17th October,
2002, respectively. (The term of the J & K Assembly
is six
years.)
(g) The term of the Legislative Assemblies of
Meghalaya, Himachal
Pradesh, Gujarat, Nagaland and Tripura
are all expiring in the month of March 2003. To be
precise,
the dates of expiry are 8th March, 14th March,
18th March, 22nd March and 21st March, 2003, respectively.
(h) The Legislative Assembly of Goa was recently
dissolved. The Election Commission has now announced
that
elections to the same will be held on June 4, 1999, which
means that its term will expire in June 2004.
7.2.1.1 In other words, we are going to have elections to
Legislative Assemblies in each of
the next five years,
unless of course, the Legislative Assemblies of Karnataka,
Sikkim, Andhra Pradesh,
Maharashtra, Manipur, Orissa,
Arunachal Pradesh and Bihar are dissolved before the expiry
of their term
and elections to those Legislative Assemblies
is held along with the elections to Lok Sabha likely to be
held
in September-October 1999. Even then, there will be
elections to six Legislative Assemblies in 2001, three
Legislative Assemblies in 2002, nine Legislative Assemblies
in 2003 and one Legislative Assembly (Goa) in 2004.
Again
in 2004, all things being equal, the elections to Lok Sabha
will fall due towards the end of that
year. This cycle of
elections every year, and in the out of season, should be
put an end to. We must go
back to the situation where the
elections to Lok Sabha and all the Legislative Assemblies
are held at once.
It is true that we cannot conceive or
provide for all the situations and eventualities hat may
arise
whether on account of the use of article 356 (which
of course has come down substantially after the decision of
Supreme Court in S.R. Bommai v. Union of India) or for
other reasons, yet the holding of a separate election
to a
Legislative Assembly should be an exception and not the
rule. The rule ought to be `one election
once in five
years for Lok Sabha and all the Legislative Assemblies'.
7.2.2 Conclusion.- Undoubtedly,
the desired goal of one
election in every five years cannot be achieved overnight
in the given circumstances.
It has to be achieved in
stages. For example, the elections to Legislative
Assemblies of
Karnataka, Sikkim, Andhra Pradesh,
Maharashtra, Manipur, Orissa, Arunachal Pradesh and Bihar
should
be advanced, by making necessary orders, and be held
along with the elections to Lok Sabha in September-October,
1999. The next step ought to be to have the elections to
the Legislative Assemblies of Haryana, Tamil Nadu,
Kerala,
West Bengal, Pondicherry and Assam (where elections are due
in May and June, 2001) and to the Legislative
Assemblies of
Punjab and Uttar Pradesh (where elections are due in March,
2002) simultaneously sometime in
May, 2001. Similar
adjustments may have to be made in future with a view to
achieve the desired goal
of one election for Lok Sabha and
to all the Legislative Assemblies simultaneously. If all
the political
parties co-operate, the necessary steps, some
of which are indicated hereinabove, can be taken without
hurting
the interest of any political party. May be, a
constitutional amendment can solve the problem. Such an
amendment can also provide
for extending or curtailing the
term of one or more Legislative Assemblies say for six
months or so
wherever it is necessary to achieve the said
goal. However, if feasible, more appropriate solution may
be
to hold elections to Lok Sabha/Legislative Assemblies
simultaneously but to withhold the results of elections
till after the expiry of term of the Legislative Assembly
concerned - the interval not exceeding six months.
This
suggestion was made by the Chief Minister of Karnataka who
stated: "the Election Commission
could not take unilateral
decision but only in consultation with the State
Governments concerned
on holding simultaneous elections".
(The Hindu, 14.5.99, p.5)
In Law Commission's view,
the above suggestion
needs to be seriously explored.
7.2.3 another associated idea being debated
seriously in
several fora is how to assure a fixed, unalterable term to
Lok Sabha and the Legislative
Assemblies. This is of
course a major issue which can be considered if and when a
review of the Constitution
is undertaken. The subject
cannot be dealt with within the existing constitutional
parameters and hence
is not dealt with in this Report.
7.2.4 Use of Electronic Voting Machine Desirable:- The
idea
of electronic voting machines and identity cards for
all voters, initiated by the Election Commission sometime
ago, is a highly desirable step. The introduction of these
two steps would go to make the election process
more
simple, transparent and fair. Introduction of electronic
voting machines would also dispense with
the printing of
ballot papers which involves substantial amount of public
money and time. The printing
of ballot papers can be
undertaken only after the list of contesting candidates is
published under section
38 of the R.P. Act and printing of
crores of ballot papers within a short time, with due
secrecy and
security, is a major exercise. The
introduction of electronic voting machines would enable the
Election Commission to dispense with the printing and
distribution of ballot papers. It would also help
in
curtailing the period between the date of publication of
the list of contesting candidates (under section
38 of the
Act) and the date of polling. The reduction of this
period, may be even to one week, would
help in reducing the
expenditure incurred by the candidates and political
parties on election campaign
and other incidental
expenditure.
PART VIII
An alternative method of election
8.1 In the working paper, we had set out in the
Appendix, "An alternative method of
election". Such an
alternative method of election was suggested by certain
eminent persons with
long experience in public life. This
method goes a long way in ensuring purity of elections,
keeping
out criminals and other undesirable elements and
also serves to minimise the role and importance of caste
and religion. The said method was set out in the working
paper as under:
"the idea
is this: (a) no candidate should be
declared elected unless he obtains at least 50% of
the votes cast; (b) the ballot paper shall contain
a column at the end which can be marked by a voter
who is not inclined to vote for any of the
candidates on the ballot paper, which is
called
hereinafter as `negative vote'. (A voter can cast
a negative vote only when he is
not inclined to
vote for any of the candidates on the ballot
paper); (c) for the
purposes of calculating the
fifty per cent votes of the votes cast, even the
negative
votes will be treated as `votes cast'; (d)
if no person gets 50% or more votes, then there
should be a `run-off' election between the two
candidates receiving the highest number of votes;
(e) in the run-off election too, there should be a
provision for a negative vote and even here
there
should be a requirement that only that candidate
will be declared elected who receives
50% or more
of the `votes cast' as explained hereinabove; (f)
if no candidate gets 50%
or more of the votes cast
in the run-off, there should be a fresh election
from that constituency."
8.2 Objects of this method.- This method of election is
designed to achieve two important objectives
viz., (i) to
cut down or, at any rate, to curtail the significance and
role played by caste factor in
the electoral process.
There is hardly any constituency in the country where
anyone particular caste
can command more than 50% of the
votes. This means that a candidate has to carry with him
several castes
and communities, to succeed; (ii) the
negative vote is intended to put moral pressure on
political
parties not to put forward candidates with
undesirable record i.e., criminals, corrupt elements and
persons with unsavory background.
8.2.1 No doubt this method calls for a run-off and a
fresh election in case no candidate obtains 50% or more
votes even in the run-off, and in that sense expensive and
elaborate, yet it has the merit of compelling the political
parties to put forward only good candidates and
to eschew
bad characters and corrupt elements.
8.3 Illustration of the method.- The idea
can be
illustrated in the following manner:
8.3.1 Take a constituency where there are one
lakh
voters. Five candidates contest from that constituency.
The total number of valid votes cast in the
constituency is
80,000. Ten thousand voters cast negative votes. Only the
candidates who obtains 40,000
votes or more out of the
80,000 votes cast can be declared elected. If none of the
five candidates obtains 40,000 votes or more, there should
be
a run-off between two (of the five candidates) who have
polled the highest votes among the five. In the run-off,
70,000 votes are cast, of which 10,000 are negative votes.
If one of the candidates obtains 35,000 or more
votes, he
will be declared elected. Otherwise, there would be a
fresh election from that constituency.
Even in this fresh
election, the very same procedure as set out above will be
followed - until some candidate
gets 50% or more of the
votes cast.
It is obvious that this method of election is
relevant to and can be implemented only in the case of
direct election from territorial constituencies. It
is not
applicable to `list system'.
8.4 Views of speakers at the Seminars.- In the seminars
held by the Law Commission, particularly in the seminar
held on 14th November, 1998 and in the National
Seminar
held on 23rd and 24th January, 1999, certain speakers
commended the idea that only a candidate
who got 50%+1 of
the total number of valid votes cast in that constituency
alone should be declared elected
and that in case no
candidate got 50%+1 of the valid votes cast, a `run-off'
election should be
held between the two candidates
obtaining the highest number of votes. The merit of such a
method of election,
they pointed out, was that it would
reduce/eliminate the pernicious role played by the caste
and religion
in elections. So far as the idea of negative
votes was concerned, only one or two participants supported
it.
8.5 Advantages of the method.- There can be no dispute
that the idea and its underlying object
are both laudable.
Besides, the advantages pointed out above, this method of
election also acts as a powerful
disincentive against voter
intimidation. It would provide an opportunity to the
voters to express
their disapproval of the bad candidates
and the political parties who put them forward. The
parties
and candidates would also try, in such a situation,
to gather a consensus and fight on ideologies and
programmes rather than on caste or religious vote banks.
There are, however, certain practical difficulties
and
problems which we must point out, inherent in the above
system, particularly in Indian conditions.
Before we set
out those practical difficulties and problems, however, it
is necessary to clarify that
the requirement of 50%+1 of
the votes and the idea of negative vote, are both distinct
ideas. It is true
that both can be clubbed together but it
is not necessary. The requirement of 50%+1 of the vote can
be implemented
without implementing the idea of negative
vote simultaneously, though the idea of negative vote, as
explained
in the working paper, cannot be implemented
without implementing the idea of 50%+1 vote.
8.6 Practical difficulties and problems.- The elections
to Lok Sabha or for that matter Legislative Assemblies in
bigger States, are not held on one single date. Elaborate
arrangements have to be made to establish polling
booths,
to requisition, allocate and transport the personnel to man
the polling booths, and the transport
and stationing of
police and other paramilitary forces for maintaining peace
at the time of polling and so on. Because of these factors
and
considerations, elections to Lok Sabha are held on two
or more dates. Elections to Legislative Assemblies of big
States are also spread over two dates. Secondly, counting
does not take place soon after the polling.
Counting
begins only after the polling throughout the country (in
the case of Lok Sabha) and throughout
the State (in the
case of a Legislative Assembly) is completed which means
that if a run-off election
is to be held, fresh ballot
paper is to be printed in respect of those constituencies
(where the run-off
has become necessary) and polling has to
be held afresh which means either retaining or rearranging
the entire
paraphernalia mentioned above including the
stationing of Police and other forces to maintain law and
order. And if the idea of negative vote is implemented,
then a fresh election may become necessary, in case
no
candidate gets 50%+1 votes even in the run-off.
8.7 If the above practical difficulties and
problems
can be overcome, the idea of 50%+1 vote - and even the idea
of negative vote (as explained hereinabove),
can be
implemented. We may mention that if electronic voting
machines are introduced throughout the
country, it will
become a little more easier to hold a run-off election
inasmuch as it would then be
not necessary to print fresh
ballot papers showing the names of the two candidates
competing in the
run-off - or for that matter, for holding
a fresh election (in case the idea of negative vote is also
given
effect to).
8.8 Alternative method mitigates undesirable
practices.- Probably, the aforesaid
problems arise because
of the vastness of the country and lack of requisite
standards of behaviour
and also or cooperation and
understanding among the political parties to ensure a
peaceful poll.
As a matter of fact, the election offences
are not decreasing but are increasing, with every passing
election.
This is really unfortunate. Even so, we may
make every effort to mitigate the undesirable practices and
the alternate method of election set out in this chapter is
certainly a step in that direction.
8.9 Recommendation.- We accordingly recommend that the
government and Parliament may take a decision in the matter
on a consideration of all the aforesaid circumstances.
PART IX
SUMMARY OF RECOMMENDATIONS
The following is the summary of the recommendations
made in the preceding parts/chapters of the
Report:
A: CONSTITUTION OF INDIA:
9.1 With a view to giving effect to our recommendations
pertaining to the list system, as suggested in Chapter II
of Part III, it is necessary to amend articles
81 and 170
of the Constitution. The proposed amendments are to the
following effect:
"Amendment of article 81:
In article 81 of the Constitution, for clause (1)
the following
clause shall be substituted:
"(1) The House of the People shall consist of:
(a)
not more than 530 members to be chosen by direct
election from the territorial constituencies in the States;
(b) not more than 20 members to represent the Union
territories chosen in such manner as Parliament
may by law
provide; and
(c) not more than 138 members chosen according to the
list
system in such manner as Parliament may by law
provide.
Provided that the provisions
of article 330 shall
not apply to the election of the members to be chosen under
this clause."
Further Amendment of Article 81:
In the proviso to clause (3) of article 81, the
figure "2025" will be substituted for the figure "2000".
Amendment of Article
170:
(a) In article 170 of the Constitution, for clause (1),
the following clause shall be substituted:
"(1) The Legislative Assembly of each State shall
consist of not more than six
hundred, and not less
than sixty members chosen both by direct election
from territorial
constitutencies as well as
according to the list system in the State."
(b)
After clause (1) in article 170, the following
clause shall be inserted:
"(1A)
The strength of each Legislative Assembly
as at present fixed by the Second Schedule to the
Representation of the People Act, 1950, shall be
filled by persons chosen by direct election from
the Assembly territorial constituencies. In
addition thereto, twenty-five per cent of
the total
membership of the said strength of each Legislative
Assembly shall be chosen
according to the list
system. The membership of each Legislative
Assembly shall
accordingly stand enchanced by
twenty-five per cent of the existing strength."
(c) After clause (3) in article 170, the following
clause shall be inserted :
"(4)
The twenty-five per cent seats added to the
membership of each Legislative Assembly by clause
(1A) of this article shall be chosen in such manner
as Parliament may be law provide :
Provided that the provisions of article 330 shall
not apply to the seats so added by clause (1A)."
9.2 With a view to giving effect to our recommendations
pertaining to amendments of the Tench
Schedule (law
relating to defections), contained in Chapter IV of Part
III, it is necessary to amend
the Tenth Schedule to the
Constitution as follows :
Amendment of the Tenth Schedule to the Constitution
In the Tenth Schedule to the Constitution
:
(a) In paragraph 1, the definition of "Legislature
Party" shall be omitted.
(b) A new definition of "political party" shall be
inserted in paragraph 1 as follows
in place of existing
definition in clause (c) :
"(c) "political party" in
relation to a member of a
House, means the political party on whose ticket that
member was elected
and where such political party is a part
of a front or a coalition formed before a general election
for contesting
such election, such front or coalition,
Provided that the Election Commission is
informed
in writing by all the constituent parties in the
front/coalition before the commencement of the poll that
such a front/coalition has been formed."
(c) In paragraph 2, sub-para (4) shall be omitted.
(d) Paragraphs 3 and 4 shall be omitted.
(e) Paragraphs 6, 7 and 8 shall be omitted.
(Paragraph 3.4.7. and Annexure-I to the working
paper).
9.3 For the same
purpose and to give effect to the said
recommendations, article 102 and 191 may also be amended as
follows
:
Amendment of article 102:
(a) In clause (1) of article 102, after
sub-clause (e), the following sub-clause (f), shall be
inserted before the Explanation -
"(f) if he is disqualified for being a member of
either House of Parliament under the Tenth
Schedule."
(b) Clause (2) of article 102 shall be deleted.
Amendment of article 191:
(a) In article 191 (1), sub-clause (f) as
follows shall be
added after subclause (e) but before the
Explanation:-
"if he is disqualified for being
a member of
Legislative Assembly or Legislative Council of a
State under the Tenth Schedule."
(b) Clause (2) of article 191 shall be deleted.
9.4. In view of the negligible number
of Anglo-Indians
now left in India, it is recommended that article 331,
which provides for nomination
of two members of the
Anglo-Indian community by the President of India to the Lok
Sabha, be deleted.
(Paragraph 1.3.3.2. and Annexure-I to the working
paper).
B: AMENDMENTS
TO THE REPRESENTATION OF PEOPLE
ACT, 1951
9.5. Sections 11 and 11B of the Act
shall be deleted.
Consequently, existing section 11A shall be renumbered as
section 11.
In view of reiteration of our proposal to repeal
sections 11 and 11B of the Representation of People Act,
1951 as stated in paragraphs 6.1.1. and 6.2 of part VI
infra, the existing section 11A entitled "Disqualifications
arising out of conviction and corrupt practices" which will
fall under Chapter IV, shall be renumbered
as section 11.
(Paragraph 3.1.3.1.)
9.6. A new part, Part-IIA, entitled `Organisation of
Political Parties and matters incidental thereto' be
introduced in the Act, for the reasons mentioned
in Chapter
I of Part III, containing the undermentioned sections :-
PART II-A
Organisation of Political Parties
and matters incidental thereto
Section 11A: (1) Political parties can be freely
formed by the citizens of this country. The
political
parties shall form a constitutionally integral part of free
and democratic system of Government.
(2) Each political party shall frame its constitution
defining its aims and objects and providing
for matters
specified in section 11A. The aims and objects of a
political party shall not be inconsistent
with any of the
provisions of the Constitution of India.
(3) A political party shall strive towards,
and utilise
its funds exclusively for, the fulfillment of its aims and
objects or goals and ideals set out
in the Constitution of
India.
(4)(a) A political party shall apply for registration with
the Election Commission of India.
(b) Every such application shall be made,-
(i) if the association or body is in existence at the
commencement of the Representation of the People and other
Allied Laws (Amendment) Act, 1999 (_____ of 1999), within
sixty days next following such commencement;
(ii) if the association or body is formed after such
commencement, within thirty days next following
the date of
its formation.
(c) Every application under sub-section (4) shall be
signed
by the Chief executive officer or 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.
(d) Every such application shall contain the following
particulars,
namely :-
(i) the name of the association or body;
(ii) the State in which its head
office is situated;
(iii) the address to which letters and other
communications meant
for it should be sent;
(iv) the names of its president, secretary, treasurer
and other office-bearers;
(v) the numerical strength of its members, and if there
is more than one category of its members,
the numerical
strength in each category;
(vi) whether it has any local units; if so, at
what
levels;
(vii) whether it is represented by any member or members
in either House
of parliament or any State Legislature; if
so, the number of such member or members.
(viii) a declaration
that the applicant has complied with
and shall continue to comply with the requirements of this
chapter.
(e) The application under sub-section (4) 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.
(f) The Commission
may call for such other particulars
as it may deem fit from the association or body.
(g) 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 purpose
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 clause
(e).
(h) The decision of the Commission shall be final.
(i) 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.
(5) Only a political party registered with
Election Commission of India, and whose registration is not
cancelled under this Act, shall be entitled to contest
elections either to Lok Sabha or a Legislative Assembly.
Section 11B: (1) A political party may
sue or be sued in
its own name. A political party shall be competent to hold
and dispose of properties.
(2) The name of a political party must be clearly
distinguishable from that of any existing
political party
and shall be subject to approval by the Election
Commission. In election campaigns
and in elections, only
the registered name or its acronym, as may have been
approved by the Election
Commission, alone shall be used.
(3) Political parties can be formed both at the
national
level as well as at the State level.
Section 11C: The constitution of a political party shall
provide
for the following matters :-
(a) name of the political party and acronym (if used)
and the aims
and objectives of the party;
(b) procedure for admission, expulsion and resignation
by the members;
(c) rights, duties and obligations of the members;
(d) grounds on which and the
procedure according to
which disciplinary action can be taken against the members;
(e) the general
organization of the party including the
formation of State, regional, district, block and village
level units;
(f) compostion and powers of the executive committee
(by whatever name it is called) and other
organs of the
party;
(g) the manner in which the general body meetings can be
requisitioned and conducted and the procedure for
requisitioning and holding conventions to decide questions
of continuance, merger and other fundamental organisational
matters;
(h) the form and
content of financial structure of the
party consistent with the provisions of this part.
Section
11D: The executive committee of a political
party shall be elected. Its term shall not exceed three
years. Well before the expiry of the term, steps shall be
taken for electing a new executive committee. It shall
be
open to the executive committee to constitute a
subcommittee (by whatever name called) to
carry out the
business of the executive committee and to carry on regular
and urgent executive committee business. The members of
the subcommittee
shall be elected by the members of the
executive committee.
Section 11E: A political party
and its organs shall
adopt their resolutions on the basis of a simple majority
vote. The voting shall
be by secret ballot.
Section 11F: The candidates for contesting elections to
Parliament or a Legislative
Assembly of the State shall be
selected by the executive committee of the political party
on the basis of
recommendations and resolutions passed by
the concerned local party units.
Section 11G: (1)
It shall be the duty of the executive
committee to take appropriate steps to ensure compliance
with the
provisions of this chapter including holding of
elections at all levels. The executive committee of a
political party shall hold elections at national and State
levels in the presence of the observers to be nominated
by
the Election Commission of India. Where considered
necessary, the Election Commission may
also send its
observers at elections to be held at other than national
and state levels.
(2) The executive committee of a political party shall
maintain regular accounts of the amounts received
by the
party, its income and expenditure, have them audited and
submit the same to the Election Commission
as required by
section 78A of this Act.
(3) A political party shall be entitled to accept
donations except from the following sources:-
(a) donations from political foundations or
foreign governments or organisations or
associations registered outside the
territory of
India or non-governmental organisations which are
in receipt of foreign
funds or from any other
association, organisation, group which is in
receipt of
foreign funds or from a foreign
national.
(b) donations from corporate bodies
and
companies except in accordance with the provisions
of the Companies Act, 1956.
Section 11H: The Election Commission shall be
competent to inquire, either suo motu or
on information
received into allegation of non-compliance of any of the
provisions of this chapter.
If on due inquiry, the
Election Commission is satisfied that there has been
non-compliance of
any of the provisions of this chapter by
any political party, the Commission shall call upon the
party
to rectify the non-compliance within the period
prescribed by the Election Commission. In case, the
non-compliance continues even after the period so
prescribed, it shall be open to the Election Commission
to
impose such punishment on the political party as it may
deem appropriate in circumstances of the
case inclduing
levy of the penalty of Rs. 10,000/- per day for each day
of non-compliance and withdrawal
of registration of the
party.
Section 11I: Where a public authority provides
facilities or offers public services for use to a political
party, it must accord equal treatment to all. The
scale of
such facilities and services may be graduated to conform to
the importance of the parties subject
to the minimum extent
needed for the achievement of their aims. The importance
of a party shall be decided
on the basis of the results of
immediately previous election to Parliament or State
Legislative Assembly,
as the case may be. The granting of
public services shall be only in connection with and for
the duration
of the election campaign period. For the
purposes of this section, the election campaign period
shall be deemed to commence 14 days prior to the
commencement of poll in a State.
(Rules
made under the Act can provide the requisite
details on the pattern of the provisions of the German Law
on
Political Parties, 1967)."
(Paragraph 3.1.3.1.)
9.7. Part IV-A of the Act, containing
section 29A shall
be deleted. (The substance of section 29A has been
incorporated in section 11A).
(Paragraph 3.1.4.)
9.8. The Law Commission is of the opinion that the list
system
should be introduced as suggested by it in the
working paper, for the reasons stated in Chapter II of Part
III but subject to the following modifications :
(a) The Commission decided to drop its proposal
with respect to territorial units which means that the
entire country will be one unit for the purpose of
the List
System.
(b) If the votes received by a candidate of a
RPP do not exceed
one-sixth of the valid votes polled by
all the candidates in a given constituency, these shall be
excluded
from cnonsideration for the purpose of sections
78D to 78F.
Accordingly, it is recommended
that a new part,
Part V-B, containing sections 78D, 78E and section 78F, as
indicated in Annexure-A, be
enacted.
(paragraph 3.2.15.)
9.9. Though we are dropping the proposal with respect to
territorial units, we do hereby affirm that the
distribution of seats in Lok Sabha among the States,
as set
out in the First Schedule to the Representation of the
People Act, 1950, should be frozen for
another 25 years.
For this purpose, it would be necessary to amend the
proviso to clause (3) of article 81 of the Constitution by
substituting the figure "2025"
for the figure "2000."
(Paragraph 3.2.15.1.)
9.10. With a view to arresting and
reversing the process
of proliferation and splintering of political parties and
with a view to bringing
about a polarisation of political
process as well as to reducing the number of political
parties or
pre-election political fronts to three or four
parties/fronts - we recommend that a new section, namely,
section 65A, be inserted in Chapter V of Part V of the
Representation of the People Act, 1951 to the following
effect:
"65A (1) Any political party, whether recognised or
not, which obtains
less than 5% of the total valid votes
cast in an election to the House of the People shall not be
entitled
to any seat in that House.
(2) Any political party, whether recognised or not,
which obtains
less than 5% of the total valid votes cast in
an election to the Legislative Assembly of a State shall
not
be entitled to any seat in the Legislative Assembly.
(3) For the purpose of sub-section (1) and (2), the
relevant date shall be the date on which the notification
contemplated by section 73 of this Act is issued.
(4) Any constituency which has elected the candidate of
a political party which is deprived of
a seat in the House
of the People or in the Legislative Assembly on account of
requirement in sub-section
(1) or (2), as the case may be,
shall be represented by the candidate of a political party
which has obtained
the next highest votes provided that his
political party obtains 5% of the total valid votes cast in
that
election and that he has not lost the security
deposit.
(5) The requirements in sub-section
(1) to (3) shall
not apply in the case of a bye-election.
(Paragraph 3.2.15.3.)
In this connection, it may be noted that we have
proposed a new definition of "political party" in the
Tenth
Schedule to the Constitution to include a pre-election
front or a pre-election coalition which
would mean that
defection of a constituent party from the front/coalition
would be treated as defection
leading to the
disqualification of all the members of that defecting
constituent party. This
provision alongwith our
recommendation regarding the requirement of five per cent
votes (paragraphs
3.2.14. and 3.2.15.3.) would go a long
way in polarisation of political parties and processes.
9.11. In Law Commission's view, the time is now ripe for
debarring independent candidates from contesting Lok Sabha
and Legislative Assembly election. Any person proposing to
contest Lok Sabha election can always form
a political
party and contest elections but its entitlement to any seat
in Lok Sabha will be subject
to the condition that it
obtains not less than 5% of the total valid votes cast in
an election to Lok
Sabha. Therefore, it cannot be
legitimately argued that our proposal tends to interfere
with the
democratic ethos or political processes.
(Paragraphs 3.3.6. and 3.3.6.1.)
9.12. Accordingly,
it is recommended that a new
sub-section, namely, sub-section (1) be introduced in
section 4 of this Act, as suggested hereinbelow, and the
existing provision
may be renumbered as sub-section (2).
The proposed sub-section (1) shall read as
follows:-
"(1) Only the political parties registered with the
Election Commission under section
11(4) shall be entitled
to put forward candidates to fill a seat in the House of
the People."
Similarly, section 5 of the R.P. Act should also
be amended by introducing the following sub-section
(1) :-
"(1) Only the political parties registered with the
Election Commission under
section 11(4) shall be entitled
to put forward candidates to fill a seat in the Legislative
Assembly."
The existing provisions of section 5 shall be
renumbered as sub-section (2).
(Paragraph 3.3.7.)
9.13 Necessity for abiding by the whip:- When a person
becomes a member
of the political party, accepts its ticket
and fights and succeeds on that ticket, he renders himself
subject
to the discipline and control of the party. It
should also be noticed that when a person applies for the
ticket of a political party, he knows, and is expected to
know, about the leadership, internal working, policies
and
programmes of the party. He must also reckon with the fact
that in future, the leadership may change,
policies and
programmes may change and so on. If he, with his eyes
open, applies for and obtains the
ticket and contests and
wins on that basis, he cannot please later that he does not
agree with the leadership
or policies of the party. He
must ventilate and fight any difference of opinion within
the party. The
membership of a House is not his private
property nor can he trade in it. It is a trust and he is
in the
nature of a trustee. He cannot also say that he
will take advantage of the name and faclities of a
political party, figtht the election on the ticket of that
party and succeed, but is free from discipline
of the
political party. This is simply unthinkable besides being
unethical and immoral. He has to abide
by the party
discipline within the House. He may fight within the party
to have his point of view or policies
adopted by the party
but once the party takes a decision one way or the other
and issues the whip, he will
have to abide by it or resign
and go out. It would be equally unethical and immoral for
him to vote against
the whip and then resign.
(Paragraph 3.4.4.)
9.14. Desirability of issuing the whip in
specific
situation only:- So far as the issuance of the whip is
concerned, it is not governed by
any law. Neither the
Rules framed under the Tenth Schedule nor the Rules of
Procedure and Conduct of
Business in the Lok Sabha/Council
of States provide for or regulate the issuance of whip. It
appears to be
a matter within the discretion and judgement
of each political party. In such a situation, we can only
point
out the desirability aspect and nothing more. It is
undoubtedly desirable that whip is issued only when the
voting in the House affects the continuance of the
government and not on each and every occasion.
Such a
course would safeguard both the party discipline and the
freedom of speech and expression of the members.
(Paragraph 3.4.6.)
9.15. The Law Commission reiterates its proposal to
delete Explanation I to section 77 of
the R.P. Act and
hopes and trusts that in the interest of a healthy
parliamentary democracy,
those political parties, which are
now opposed to the deletion of Explanation I to section
77(1), will
reconsider and revise their opinion and support
the said deletion as indeed they had done in the years
1989-1990.
(Paragraph 4.1.10.)
9.16. The Law Commission reiterates that a new section as
proposed in the working paper (section 78A) should be
inserted in the R.P. Act of 1951. It
is further
recommended that the provision as suggested should be
numbered as sub-section (1) and sub-sections
(2), (3) and
(4) as proposed hereinafter should also be inserted in the
said section. Section 78A should
now read as follows :
"(1) Each recognised political party shall
maintain accounts
clearly and fully disclosing the
sources of all amounts received by it and clearly
and fully
disclosing the expenditure incurred by
it. The accounts shall be maintained according to
the financial year. Within nine months of each
financial year, each recognised political party
shall submit its accounts, duly audited by an
accountant (as defined in the Explanation
below
sub-section (2) of section 288 of the Income-tax
Act, 1961), to the Election
Commission. The
Election Commission shall publish the said accounts
in accordance with such
general directions as may
be issued by the Election Commission in this
behalf. The
accounts shall also be open for
inspection by the members of the public in the
office
of the Election Commission and they shall
also be entitled to obtain copies of such accounts
or any part thereof in accordance with such
instructions as the Election Commission may issue
in that behalf.
(2) A political party which does not comply with any of
the
requirements of sub-section (1) shall be liable to pay
a penalty of Rs. 10,000/for each day of non-compliance
till the non-compliance continues.
If such default continues beyond a period of 60
days, the Election Commission may de-recognise the
political party after affording a reasonable opportunity
of
showing cause.
(3) If the Election Commission finds on verification
undertaken
whether suo motu or on information received,
that the statement of accounts filed under sub-section (1)
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.
(4)
Any orders passed under sub-sections (2) or (3)
shall be directed to be published in the press and other
media, for public information."
(Paragraph 4.2.6.)
9.17. After considering views
expressed by the
participants in the seminars and by various persons and
organisations in their responses and after perusing
relevant literature on the
subject, the Law Commission is
of the opinion that in the present circumstances only
partial state
funding can be contemplated more as a first
step towards total state funding but it is absolutely
essential
that before the idea of state funding (whether
partial or total) is resorted to, the provisions suggested
in this report relating to political parties (including the
provisions ensuring internal democracy, internal
structures) and maintenance of accounts, their auditing and
submission to Election Commission are implemented.
In
other words, the implementation of the provisions
recommended in Chapter one Part three
should be a
pre-condition to the implementation of the provisions
relating to partial state funding
set out in the working
paper in the Law Commission (partial funding, as already
stated, has also been
recommended by the Inderjit Gupta
Committee). If without such pre-conditions, state funding,
even if
partial is resorted to, it would not serve the
purpose underlying the idea of state funding. The proposal
for state funding is aimed at eliminating the influence of
money power as well as corporate funding, black
money
support are raising of funds in the name of elections by
the parties and their leaders. The state
funding, without
the aforesaid preconditions, would merely become another
source of funds for the political
parties and candidates at
the cost of public exchequer. We are, therefore, of the
opinion that the proposals
relating to state funding
contained in the Inderjit Gupta Committee Report should be
implemented only
after or simultaneously with the
implementation of the provisions contained in this Report
relating
to political parties viz., deletion of Explanation
1 to section 77, and incorporation or provisions providing
for maintenance of accounts and their submission etc. and
the provisions governing the functioning of political
parties contained in chapters I and IV of Part IV and
Chapter I of Part III. The state fudning, even
if partial,
should never be resorted to unless the other provisions
mentioned aforesaid are implemented
lest the very idea may
prove counter-productive and may defeat the very object
underlying the state funding
of elections.
(Paragraph 4.3.4.)
9.18. We reiterate all the recommendations made in the
Inderjit Gupta Committee Report subject to the observations
made in para 4.3.4. of this Report. Further,
the Law
commission recommends delettion of Explanation I to section
77 (1) of the Representation of the People
Act, 1951.
(Paragraph 4.3.7.)
9.19. Section 8 of the Representation of the People Act,
1951 shall remain as it stands now.
(Paragraph 5.3.)
9.20 We recommend that section
8B (as proposed by us and
as set out hereinbelow) be enacted, making the framing of
charge (by court)
in respect of election offences and
certain other serious offences a ground of
disqualification:
"8B. Disqualification on framing of charge for
certain offences.- A person agaisnt
whom charge has
been framed under :- (a) section 153A, section
171E, section 171F, section 171G, section 171H,
section 171I, sub-section (1) or sub-section (2) of
section 376, sub-section (2) or sub-section (3) of
section 505 of the Indian Penal Code (45 of 1860)
or
(b) Sections
10 to 12 of the Unlawful
Activities (Prevention)Act, 1967 (37 of 1967): or
(c) the penal provisions of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (61 of 1985)
except section 27 thereof; or
(d) Section 125, section 135, section 135A
or
sub-section (2) of section 136 of this Act; or
(e) any other offence punishable
with
imprisonment for life or death, under any law,
shall be disqualified for a period
of five years
from the date of framing of the charge, provided
that he is not acquitted
of the said charge before
the date of scrutity notified under section 36 of
this Act."
We also reiterate the proposals to enhance the
punishment for various electoral offences
mentioned in the
R.P. Act as well as in the Indian Penal Code. All of them
are electoral offences and seriously
interfere with a fair
electoral process. They foul the electoral stream by
letting in all kinds
of distortions and evils into the
electoral system and finally into our body politic. The
punishments
at present provided are totally inadequate and
are ridiculously low, hence need to be enhanced.
(Paragraph
5.4.)
9.21. We reiterate the following proposals put forward in
our working paper (Annexure-B),
except the one relating to
section 34 (raising of deposit amount in the case of
indendent candidates).
They are :
(a) Deletion of sections 11 and 11B of the R.P.
Act.
(b) Amendment of section 33 of the R.P. Act.
By introducing sub-section (7), it was sought to be
provided that no person shall be entitled to
contest simultaneously from more than
one
parliamentary constituency or assembly
constituency, as the case may
be. Similar
provision was suggested with respect to the Council
of States and Legislative
Councils and even in
bye-elections.
(c) Amendement of section 58A in certain
respects.
(d) Amendement of section 62 by inserting a
proviso.
(e) Amendment of section 78 reducing the period
prescribed for filing the account
of election
expenses by the contesting candidates from 30 days
to 15 days.
(f) Amendment of sections 81, 86 and 87
relating to trial of election petitions.
(g) Amendment of section 97 in the light of the
decision of the Supreme Court in Bhag Mal
v.
Parbhu Ram, AIR 1985 SC 150.
(h) Insertion of new sections 98A and 98B.
(i) Amendment of section 107.
(j) Amendment of section 116A.
(k) Omission
of the proviso to sub-section (7)
in section 123.
(l) Insertion of a new chapter II
in part 7 of
the R.P. Act, relating to `Illegal Practices.'
(m) Insertion of section
126A.
(n) Insertion of another proviso to section
151A.
(o)
Insertion of new section 162A.
(It may be mentioned that the proposals with
respect to
enhancing the punishments provided by sections
127, 134B, 135 and 136 of the R.P. Act and by various
offences in chapter IXA of the Indian Penal Code, 1860,
have already been affirmed by us and recommendations made
to implement the same).
We may mention that the proposal to amend section
34 (raising the deposit in the case of independent
candidates) has been dropped by us in view of our
recommendations for barring the independent candidates
and
the proposal requiring a political party to obtain 5% of
the valid votes cast in order to obtain a seat
in Lok Sabha
or in Legislative Assembly.
(Paragraphs 6.1.1. and 6.1.3.)
9.22. It
is recommended that the existing provisions
under section 195 (1) (b), and 340 (3) (b) of Code of
Criminal Procedure, 1973 be substitued as follows :-
For clause (b) of section 340(3), the following
clause may be substituted :-
"(b) In any other case, by the presiding officer
of the Court, or by such ministerial officer as the
Court may designate in this behalf."
(Paragraph 6.2.4.)
9.23. Section 195(1)(b) of the Code of Criminal
Procedure,
1973 should also be amended by inserting before
the words "or of some other Court" and after the words
"except on the complaint in writing of that Court, the
following words :-
"or by such ministerial officer as the Court may
designate in this behalf."
In
view of the proposed insertion of the words
stated above, the Presiding Officer of the Court before
which false evidence was given or false prosecution was
launched, will be genrally relived of the anxiety that
he
may possibly be called to give evidence during trial before
the Migistrate. Such depositions on behalf
of the Court
can then be given by a milnisterial officer.
Under section 294, no formal proof
of certain
documents is required. Thus in general, the judicial
record may be read in evidence as
such. The proposed
amendments, it is felt could achieve the object of
deterring persons from
initiating false prosecutions.
These amendemnts will be particularly appropriate in
matters relating
to disqualifications under proposed
section 8B to guard against abuse of the said provision.
In course
of time, provisions of Cr. P.C. could also be
amended on the above lines to deter launching of false
cases.
(Paragraphs 6.2.5. to 6.2.7.)
9.24. In view of recommendation of the Law Commission
for
debarring a candidate from contesting an election if
charges have been framed against him by a
Court in respect
of offences mentioned in the proposed section 8-B of the
Act, it is also necessary
for a candidate seeking to
contest election to furnish details regarding criminal
case, if any, pending
against him, including a copy of the
FIR/complaint and any order made by the concerned court.
In order to achieve the aforesaid objectives, and
also with a view to introducing transparency and fairness
in the working of the system, it is essential to insert a
new section 4A after the existing section 4 of
the
Representation of the People Act, 1951, as follows :-
"4A. Qualification for membership
of the House
of the People, the Council of States, Legislature
Assembly of a State or Legislative Council.
A person shall not be qualified
to file his
nomination for contesting any election for a seat in the
House of the People, the Council
of States Legislature
Assembly or Legislative Council of a State unless he or she
files -
(a) a declaration of all his assets (moveable/
immovable) possessed by him/her, his/her spouse,
dependent relations, duly supported by an
affidavit, and
(b) a declaration as to whether any charge in
respect of any offence referred to in section 8B
has been framed against him by any Criminal Court."
(Paragraphs 6.3.2. and 6.3.3.)
9.25. Consequent upon the introduction of the above
provisions it is necessary
to amend Forms 2A to 2E, which
provide the proforma in which the nomination paper to Lok
Sabha, Legislative
Assembly, Rajya Sabha and Legislative
Council have to be filed. These Forms, prescribed by the
Conduct
of Election Rules, 1961 may be amended as follows :
The existing clause (d), shall be redesignated as clause
(f) and before the said clause, clauses (d) and (e) shall
be inserted to the following effect :
(d) that the statement of assets enclosed to this
nomination paper represents the true and correct statement
of all the assets, moveable and immovable, held/owned by
me, my spouse and dependent relations. An
affidavit
affirming the correctness of the said statement is also
appended to this nomination paper.
(e) that no criminal court has framed a charge against
me in respect of any of the offences mentioned
in section
8B of the Act and that no trial in respect of charges of
the said offences is pending, or
that a charge has been framed against me by the court of
_____________ in the case No. ___________
on _____________
(date) in respect of offence(s) punsihable under sections
________________ mentioned in
section 8B and trial is
pending against me; or
that though charge was framed against me
by the court of
________________ in the case No. _________ on
_______________ (date) in respect
of offence(s) punsihable
under sections _____________ mentioned in section 8B, I
have since been acquitted
of the said chrge by order
_____________ (date) (copy enclosed).
(Paragraph 6.3.3.1.)
In the light of our recommendation to debar the
indepndents, it is necessary to delete the words "that
I am
contesting this election as an indendent candidate" in
Forms 2-A and 2-B.
9.26. For ensuring stability in governance, we have
recommended hereinbefore, in chapter II of Part III
that
any political party which obtains less than 5% of the total
valid votes cast in the parliamentary
election or a
Legislative Assembly election, shall not be entitled to any
seats in the Lok Sabha or Legislative
Assembly, as the case
may be, even if it wins any seat or seats. Such a
provision would lead to polarisation
among the political
parties and to formation of larger political parties by a
process of integration or
formation of pre-election fronts.
We have also recommend the insertion of denifition of
"political party" in the Tenth Schedule
to include a
pre-election front or pre-election coalition. In such a
situation, defection of a member
of such constituent party
of the pre-election front or of the constituent party as a
whole from the pre-election
front would be treated as
defection attracting the provisions of the Tenth Schedule
to the Constitution.
(Paragraph 7.1.2.)
9.27. We also recommnd that the Hon'ble Speaker of the
Lok
Sabha may introduce a new rule, Rule 198A, in the Rules
of Procedure and Conduct of Business in the Lok Sabha to
the following effect :
Rule 198-A (1) Once a no-confidence motion is taken up for
discussion
and voted upon as contemplated by sub-rules (3)
and (4) of Rule 198, no fresh motion expressing want of
confidence in the Council of Ministers shall be permitted
to be made for a period of two years from the date
of
voting upon such motion.
(2) Once a motion expressing confidence in the Council
of Minister is made pursuant to the direction of the
President, no motion expressing want of confidence
in such
Council of Ministers shall be permitted to be moved for a
period of two years.
(3) No leave shall be granted under Rules 198 to a
motion expressing want of confidence in the Council
of
Ministers, unless it is accompanied by a motion expressing
confidence in a named individual.
Both the motions shall be considered and deiscussed
simultaneously and voted upon. Each member shall have two
votes. Unless the motion expressing confidence in a named
individual is passed by a majority, the result
of the
voting upon the motion expressing want of confidence in the
Council of Ministers shall not be given
effect to, even
when it is passed by a majority.
(Paragraph 7.1.4.)
Similar
amendemtns may also be made by the Speakers
of Legislative Assemblies in the respective Rules of
procedure
governing the proceddings in their Legislative
Assemblies.
9.28. Use of Election Voting
Machine Desirable :- The
idea of electronic voting machines and identity cards for
all voters, initiated
by the Election Commission sometime
ago, is a highly desirable step. The introduction of these
two steps would
go to make the election process more
simple, transparent and fair. Introduction of electronic
voting
machines would also dispense with the printing of
ballot papers which involves substantial amount of public
money and time. The printing of ballot papers has to be
undertaken only after the list of contesting candidates
is
published under section 38 of the R.P. Act and printing of
crores of ballot papers within a short time,
with due
secrecy and security, is a major exercise. The
introduction of electronic voting machines
would enable the
Election Commission to dispnese with the printing and
distribution of ballot papers.
It would also help in
curtailing the priod between the date of publication of the
list of contesting candidates
(under section 38 of the Act)
and the date of polling. The reduction of this period, may
be even to one week,
would help in reducing the expenduture
incurred by the candidates and political parties on
election campaign and other incidental expenditure.
(Paragraph 7.2.4.)
9.29. Alternative method of Election:- In the working
paper,
we had set out in the Appendix, "An alternative
method of election." According to this method of election,
no candidate would be declared elected unless he obtained
50%+1 of the valid votes cast in that
territotrial
constituency. The other idea put forward is the concept of
"negative vote." Thse
two concepts have been fully
explained in the working paper under the heading "An
Alternative
Method of Election." Such an alternative method
of election was suggested by certain eminent persons with
long experience in public life. This method goes a long
way in ensuring purity of election, keeping out criminals
and other undesirable elements and also serves to minimise
the role and importance of caste and religion.
In the opinion of the Law Commission, the idea and
underlying object are both laudable.
Besides the
advantages pointed out above, this method of election also
acts as a powerful disincentive
against voter intimidation.
It would provide an opportunity to the voters to express
their disapproval of
the bad candidates and the political
parties who put them forward. The parties and candidates
would also
try, in such a situtation, to gather a consensus
and fight on ideologies and programmes rather than on caste
or religious vote banks. There are, however, certain
practical difficulties and problems which we must point
out, are inherent in the above system, particularly in
Indian conditions. Before we set out those
practical
difficulties and problems, it is necessary to clarify that
the requirement of 50%+1 of the
votes and the idea of
negative vote, are both distinct ideas. It is true that
both can be clubbed together
but it is not necessary. The
requirement of 50%+1 of the vote can be implemented without
implementing the
idea of negative vote simultaneously,
though the idea of negative vote, as explained in the
working
paper, cannot be implemented without implementing
the idea of 50%+1 vote.
Practical difficulties
and problems:- The elections
to Lok Sabha or for that matter Legislative Assemblies in
bigger states, are
not held on one single date. Elaborate
arrangements have to be made to establish polling booths,
to requsition,
allocate and transport the personnel to man
the polling booths, and the transfport and stationing of
police
and other parliamentary forces for maintaining peace
at the time of polling and so on. Because of these factors
and considerations, elections to Lok Sabha are held on two
or more dates. Elections to Legislative Assemblies
of big
States are also spread over two dates. Secondly, counting
does not take place soon after the
polling. Counting
begins only after the polling thoughout the country (in the
case of Lok Sabha) and throughout
the State (in the case of
a Legislative Assembly) is completed which means that if a
run-off election is
to be held, fresh ballot paper is
required to be printed in respect of those constituencies
(where the
run-off has become necessary) and polling has to
be held afresh which means either retaining or rearranging
the entire paraphernalia mentioned
above including the
stationong of Police and other foces to maintain law and
order. And, if the idea
of negative vote is implemented, a
fresh election may become necessary, in case no candidate
gets 50%+1 votes
even in the run-off.
(Paragraphs 8.1 and 8.9)
9.30 For the sake of convenience, the Amendemnt
Bills,
to be introduced in Parliament are appended herewith
(Annexure-A). The Amendement Bills
incorporate the
provisons of the Bills (Annexure-I) annexed with the
Working Paper circulated by the
Commission (Annexure-B), as
well as the recommendations made in the report. In other
words, if all the
amendments suggested by the Law
Commission are accepted by Parliament, the Constitution
(......)
Amendemnt Bill, 1999, the Representation of the
People and other Allied Laws (Amendment) Bill, 1999,
amendemnts to Chapter IXA of the Indian Penal Code, 1860,
amendemtns
to Chapter XIV and Chapter XXVI of the Code of
Criminal Procedure, 1973, amendment to the Forms 2-A to 2-E
of the Code of Election Rules, 1961 and amendemnt to the
Rules of Procedure and Conduct of Business in the
Lok
Sabha, would reas as set out in the Annexure-A.
We recommend accordingly,
(MR. JUSTICE B.P. JEEVAN REDDY) (Retd.)
CHAIRMAN
(MS.JUSTICE LEILA SETH)(Retd.)(DR.N.M.GHATATE) (DR.SUBHASH C.JAIN)
MEMBER MEMBER MEMBER SECRETARY
DATED : 29TH MAY, 1999
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