Electoral_reforms_Need_of_the_hour

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Electoral_reforms_Need_of_the_hour

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

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