In the Supreme Court of India Civil Original Jurisdiction

Bar & Bench (www.barandbench.com)

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO 1152 OF 2017

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

ASHWINI KUMAR UPADHYAY …PETITIONER

VERSES

UNION OF INDIA & ANOTHER ...RESPONDENTS

PAPER BOOK

[FOR INDEX KINDLY SEE INSIDE]

(ADVOCATE FOR PETITIONER: R.D.UPADHYAY) Bar & Bench (www.barandbench.com)

INDEX OF RECORD OF PROCEEDINGS

Sr. No. Date of Record of Proceedings Page

15 Bar & Bench (www.barandbench.com)

INDEX

S. Particulars of the Page number of part to Remark NO documents which it belongs

Part-I Part-II (Contents (Contents

of Paper of file Book) alone)

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

1 Listing Proforma A-A1 A-A1

Cover Page of Paper 2 A-2 Book

Index of Record of 3 A-3 Proceedings

4 Defect List A-4

5 Note Sheet NS1

6 Synopsis & List of Dates B-I

Writ Petition with 7 1-53 Affidavit

8 Appendix 54-59

Annexure P-1: Copy of Goswami Committee 9 60-106 Report on Electoral Reform (1990) Annexure P-2: Copy of National Commission to 10 107-157 Review the Working of the Constitution (2002) Annexure P-3: Copy of 11 Background Paper on 158-183

Electoral Reform (2010) Annexure P-4: Copy of 12 the ECI‘s Proposed 184-245

Electoral Reform (2016)

13 F/M 246

14 V/A 247 Bar & Bench (www.barandbench.com)

PERFORMA FOR FIRST LISTING

Section: PIL

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

 Central Act: The Constitution of India

 Section: Article 324

 Central Rule: N/A

 Rule No: N/A

 State Act: N/A

 Section: N/A

 State Rule: N/A

 Rule No: N/A

 Impugned Interim Order: N/A

 Impugned Final Order / Decree: N/A

 High Court: N/A

 Name of Judges: N/A

 Tribunal / Authority Name : N/A

1. Nature of Matter: Civil

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

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

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

(b) Email ID: N/A

4. (a) Main Category: 08 PIL Matters

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

5. Not to be listed before: N/A Bar & Bench (www.barandbench.com)

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

7. Criminal Matters:

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

(b) FIR / Complaint No: N/A

(d) Sentence Awarded: N/A

(e) Sentence Undergone: N/A

8. Land Acquisition Matters:

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

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

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

10. Special Category: N/A

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

12. Decided Cases with Citation: N/A

Date: 18.11.2017

Advocate for Petitioner

(R. D. Upadhyay)

Advocate-on-Record

Registration Code No-0589

[email protected]

011-23070343, 9891050515 Bar & Bench (www.barandbench.com)

SYNOPSIS

Under section 29 of the RPA 1951, a person; who is disqualified for registration in electoral roll under section

16 of RPA 1950, disqualified for contesting election under sections 8, 8A, 9, 9A, 10 or 10A of the RPA 1951, disqualified for voting under section 11A, disqualified for being an election agent under section 41 or forfeits his right to vote under section 62; can form a political party, collect donations under section 29B, get tax exemption under Income Tax Act and even become party president.

Presently, even a person, who has been convicted for heinous crimes like murder, rape, smuggling, money laundering, sedition, loot, dacoity etc. can form a political party and become party president. For instance, Mr. Lalu

Yadav, Mr. O.P. Chautala and Mrs. Shashi Kala have been convicted for major scams but still holding highest political post. Similarly, charges have been framed by the

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

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

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

Adhir Ranjan Chaudhary, Mr. Virbhadra Singh, Mr.

Mukhtar Ansari, Md. Shahabuddin, Mr. Suraj Bhan

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

Yadav, Ms. Mayawati and Brijesh Singh etc. but they are still holding political post and wielding political power. Bar & Bench (www.barandbench.com)

Goswami Committee on Electoral Reform (1990) discusses the registration and recognition of political parties as thus: ―3.2 After the insertion of new section 29A of the Act for the purpose of making the political organizations seeking registration to conform in form only to the provisions of the Constitution, especially to the preamble thereto, the powers of the Election Commission in regard to registration of political parties under the Symbols Order has been taken away. The Election Commission has to apply the new provisions for the registration of political parties. 3.3 The Committee observed that in view of the provisions of section 29A of the Act and of a very large number of applications from political parties for registration on the eve of the last Lok Sabha elections, the Commission had no option except to register as many as 261 political parties. This has created many practical and administrative problems and difficulties at the time of election. 3.4 All the members of the Committee, except Shri H.K.L. Bhagat, feel that the new provision in section 29A do not serve any purpose. 3.5 It has been brought to the notice of the members of the Committee that the Attorney-General of India whose opinion was sought on the various measures for discouraging non-serious candidates from election contests, has observed that new section 29A has not served any useful purpose. 3.6 After taking into account the above factors, all the members of the Committee, except Shri H.K.L. Bhagat, feel that section 29A should be deleted and the matter of registration of political parties should be left to be decided solely by the Election Commission under the Symbols Order applying the criteria of tangible proof of 1% of the valid votes to be secured by applicant party for registration.” Bar & Bench (www.barandbench.com)

In 2002, NCRWC has recommended stringent criteria for recognition of political parties to discourage proliferation.

It has recommended that rules/by-laws of parties seeking registration should include provisions: (i) a declaration of adherence to democratic values and norms of the

Constitution in the party organizations, (ii) declaration to shun violence for political gains, (iii) declaration not to resort to casteism /communalism for political mobilization and adhere principles of secularism, (iv) a provision for party conventions to nominate and select candidates for political offices at grass root and State levels, (v) code of conduct, which each party should evolve for itself, (vi) institutional mechanism for planning thinking research on crucial socio-economic issues facing the nation.

In 2004, the ECI proposed that amendment should be made to Section 29A, authorizing it to issue apt orders regulating registration / de-registration of political parties.

The proliferation of political parties has become a major concern as Section 29A allows a small group of people to form a political party by making a very simple declaration. Presently, about 20% of registered political parties contest election and remaining 80% parties create excessive load on electoral system and public money.

Despite it, Executive has not implemented the Goswami

Committee and NCRWC recommendations till date. Bar & Bench (www.barandbench.com)

Political parties hold constitutional status and wield constitutional powers under the Tenth Schedule of the

Constitution in as much as they have the power to – (a) disqualify legislators from Parliament and State

Assemblies; (b) bind legislators in their speeches and voting inside the house; (c) decide what laws are made; (d) decide whether Government remains in power (e) decide public policies that affect lives of millions of people.

As per Article 102 (2) of the Constitution, a person can be disqualified from being a member of either House of Parliament under the Tenth Schedule and that a similar provision exists for the State Legislators under the Article

191(2). Furthermore, as per Article 102(2), if a member of a House belonging to a Political Party votes or abstains from voting in the House contrary to the directions issued by the Political Party, he is liable to be disqualified from being a Member of the House.

Political parties have been given statutory status under Section 29A of the RPA and they are required to bear true faith and allegiance to the Constitution. Political parties give tickets to candidates and people vote on party symbols and, thus, they are important instrumentalities of the democratic governance and function like a Public

Authority. Therefore, convicted person must be restricted to form a political party and become political office bearer. Bar & Bench (www.barandbench.com)

Political parties are substantially financed by the

State in multiple ways and are exempted from Income Tax.

They have been claiming tax exemption under Section 13A of the Income Tax Act. State has been indirectly financing recognized political parties by way of free airtime on All

India Radio. In addition, State spends huge amounts on political parties to provide free air time on Doordarshan.

Under Rules 11-12 of the Registration of Electors

Rules, 1960, two copies of the Electoral Rolls are supplied to the recognized political parties, free of cost. This is another instance of indirect financing to political parties.

The Central as well as the State Governments have allotted various plots houses buildings and other types of accommodation to the recognized political parties either free of cost or at very concessional rates. This also amounts to indirect financing to the recognized political parties by the Central and State Governments.

The governance is revolved around the political parties. They are continuously engaged in performance of public duty and therefore it is important that they become transparent. De-criminalization and de-communalization of politics is essential in larger public interest as they perform public function and, therefore, convicted person should be debarred to form political party and become political office bearer for lifetime. Bar & Bench (www.barandbench.com)

A group of individuals gets the status of political party on its registration with ECI under the RPA, 1951.

ECI awards symbols to political parties under the Election

Symbols (Reservation & Allotment) Order, 1968, after registration and calls for details of expenses made by the parties in elections. Contributions of the value of Rs.

20,000/- and above received from any person or company by political parties are required to be intimated to the ECI under Section 29C. Hence, they are public authority.

Political parties perform public functions, define parameters of governance & socio-economic development.

They must be transparent but their income tax returns reveal that on an average merely 20% of their income comes from donation that they disclose to the ECI and remaining 80% of income are shrouded in mystery. This gives rise to all kinds of speculation about pernicious influence of illegal money which is not good for democracy.

ECI has plenary power and authorize to withdraw recognition of parties in certain contingencies but it does not use it power to de-criminalize/de-communalize them.

Executive has not implemented Goswami Committee,

NCRWC, ECI and Law Commission recommendations to curb corruption crime casteism and communalism, the four menace of our democracy. Therefore, this Hon‘ble

Court should allow the instant petition in public interest. Bar & Bench (www.barandbench.com)

LIST OF DATES

14.12.1966: The Section 41 was amended to disqualify a

person being election agent after conviction.

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

disqualify the person from contesting the

election after conviction in certain offences.

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

regulate the registration of political parties.

20.05.1990: Goswami Committee on Electoral Reform

suggested deletion of Section 29A of RPA.

29.05.1999: The Law Commission in its 170th Report

suggested certain measures to regulate the

functioning of political parties.

31.03.2002: National Commission to Review Working of

the Constitution submitted draft to regulate

the functioning of political parties.

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

regulate the donations received by political

parties from person or company.

05.07.2004: The ECI submitted its detailed proposals to

regulate functioning of political parties.

08.12.2010: ―Background Paper on Electoral Reforms‖,

prepared by Core-Committee on Electoral

Reforms, Ministry of Law endorsed the ECI

and Law Commission proposals. Bar & Bench (www.barandbench.com)

24.02.2014: Law Commission submitted its 244th report

but Executive did nothing to implement it.

12.03.2015: Law Commission submitted its 255th report

but Executive did nothing to implement it.

05.12.2016: Electoral Commission submitted Proposed

Electoral Reform to the Central Governmnet

06.11.2017: Political Parties hold constitutional status

and wield constitutional powers under the

Tenth Schedule in as much as they have

the power to – (a) disqualify legislators from

Parliament and State Assemblies; (b) bind

legislators in their speeches and voting

inside the house; (c) decide what laws are

made; (d) decide whether Government

remains in power or which Government

should come to power; (e) decide public

policies that affect lives of millions of

people. Political parties perform public

functions, define parameters of governance

& socio-economic development. Executive

has not implemented the recommendations

of Goswami Committee, NCRWC and Law

Commission to de-criminalize and de-

communalize the politics. Hence, this writ

petition in larger public interest. Bar & Bench (www.barandbench.com)

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO 1152 OF 2017 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) IN THE MATTER OF: Ashwini Kumar Upadhyay S/o Sh. Suresh Chandra Upadhyay Office: 15, M.C. Setalvad Chambers Block Supreme Court of India, New Delhi-110001 Residence: G-284, Govindpuram, Ghaziabad ...Petitioner Verses 1. Union of India Through the Secretary, Ministry of Law and Justice, Shashtri Bhawan, New Delhi-110001 2. Election Commission of India Through the Chief Election Commissioner, Niravachan Sadan, New Delhi-110001 ……Respondents

PETITION UNDER ARTICLE 32 OF THE CONSTITUTION TO BAN THE CONVICTED PERSON FROM FORMING A POLITICAL PARTY AND BECOMING A POLITICAL OFFICE BEARER, FOR THE PERIOD, HE IS DISQUALIFIED UNDER SECTIONS 8, 8A, 9, 9A, 10, 10A, 11A, 41 AND 62 OF THE REPRESENTATION OF THE PEOPLE ACT,1951.

To, THE HON‘BLE CHIEF JUSTICE & LORDSHIP‘S COMPANION JUSTICES OF HON‘BLE SUPREME COURT OF INDIA HUMBLE PETITION OF ABOVE-NAMED PETITIONER THE MOST RESPECTFULLY SHOWETH AS UNDER: 1. That petitioner is filing this PIL under Article 32 to ban the

person from forming political party and becoming political

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

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

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

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

same and similar directions as prayed in this petition. Bar & Bench (www.barandbench.com)

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

Residential address is G-284, Govindpuram, Ghaziabad,

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

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

Advocate & social-political activist, contributing his best to

development of socially-economically downtrodden people.

4. That the facts constituting cause of action accrued on

15.08.2014 and subsequent days, when the Hon‘ble Prime

Minister assured the nation that government will take

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

the government did nothing in this regard till date.

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

criminal and convicted persons have formed political party

and threatens the fundamental right guaranteed under

the Article 19 by using money and muscle power.

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

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

guided for gain of any other individual person, institution

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

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

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

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

8. There is no requirement to move concerned government

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

remedy available except approaching this Hon‘ble Court. Bar & Bench (www.barandbench.com)

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

disqualified for registration in electoral roll under section

16 of RPA 1950, disqualified for contesting election under

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

disqualified for voting under section 11A, disqualified for

being an election agent under section 41 or forfeits his

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

collect donations under section 29B, get tax exemption

under Income Tax Act and even become party president.

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

heinous crimes like murder, rape, smuggling, money

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

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

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

convicted for major scams but still holding highest

political post. Similarly, charges have been framed by the

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

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

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

Adhir Ranjan Chaudhary, Mr. Virbhadra Singh, Mr.

Mukhtar Ansari, Md. Shahabuddin, Mr. Suraj Bhan

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

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

still holding political post and wielding political power. Bar & Bench (www.barandbench.com)

11. The Goswami Committee on Electoral Reform (1990) discusses registration/recognition of political parties thus: ―3.2 After the insertion of new section 29A of the Act for the purpose of making the political organizations seeking registration to conform in form only to the provisions of the Constitution, especially to the preamble thereto, the powers of the Election Commission in regard to registration of political parties under the Symbols Order has been taken away. The Election Commission has to apply the new provisions for the registration of political parties. 3.3 The Committee observed that in view of the provisions of section 29A of the Act and of a very large number of applications from political parties for registration on the eve of the last Lok Sabha elections, the Commission had no option except to register as many as 261 political parties. This has created many practical and administrative problems and difficulties at the time of election. 3.4 All the members of the Committee, except Shri H.K.L. Bhagat, feel that the new provision in section 29A do not serve any purpose. 3.5 It has been brought to the notice of the members of the Committee that the Attorney-General of India whose opinion was sought on the various measures for discouraging non-serious candidates from election contests, has observed that new section 29A has not served any useful purpose. 3.6 After taking into account the above factors, all the members of the Committee, except Shri H.K.L. Bhagat, feel that section 29A should be deleted and the matter of registration of political parties should be left to be decided solely by the Election Commission under the Symbols Order applying the criteria of tangible proof of 1% of the valid votes to be secured by applicant party for registration.” Bar & Bench (www.barandbench.com)

12. In 2002, NCRWC has recommended stringent criteria

for recognition of parties to discourage proliferation. It has

recommended that rules/by-laws of parties seeking

registration should include provisions: (i) a declaration of

adherence to democratic values and norms of the

Constitution in the party organizations, (ii) declaration to

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

resort to casteism /communalism for political mobilization

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

party conventions to nominate and select candidates for

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

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

institutional mechanism for planning thinking research on

crucial socio-economic issues facing the nation.

13. In 2004, the ECI proposed that amendment should

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

regulating registration / de-registration of political parties.

14. The proliferation of political parties has become a

major concern as Section 29A allows a small group of

people to form a political party by making a very simple

declaration. Presently, about 20% of registered political

parties contest election and remaining 80% parties create

excessive load on electoral system and public money.

Despite it, Executive has not implemented the Goswami

Committee and NCRWC recommendations till date. Bar & Bench (www.barandbench.com)

15. Political parties hold constitutional status and wield

constitutional powers under the Tenth Schedule of the

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

disqualify legislators from Parliament and State

Assemblies; (b) bind legislators in their speeches and

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

decide whether Government remains in power (e) decide

public policies that affect lives of millions of people.

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

can be disqualified from being a member of either House

of Parliament under the Tenth Schedule and that a similar

provision exists for the State Legislators under the Article

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

a House belonging to a Political Party votes or abstains

from voting in the House contrary to the directions issued

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

being a Member of the House.

17. Political parties have been given statutory status

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

bear true faith and allegiance to the Constitution. Political

parties give tickets to candidates and people vote on party

symbols and, thus, they are important instrumentalities of

the democratic governance and function like a Public

Authority. Therefore, convicted person must be restricted

to form a political party and become political office bearer. Bar & Bench (www.barandbench.com)

18. Political parties are substantially financed by the

State in multiple ways and are exempted from Income Tax.

They have been claiming tax exemption under Section 13A

of the Income Tax Act. State has been indirectly financing

recognized political parties by way of free airtime on All

India Radio. In addition, State spends huge amounts on

political parties to provide free air time on Doordarshan.

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

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

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

another instance of indirect financing to political parties.

20. The Central as well as the State Governments have

allotted various plots houses buildings and other types of

accommodation to the recognized political parties either

free of cost or at very concessional rates. This also

amounts to indirect financing to the recognized political

parties by the Central and State Governments.

21. The governance is revolved around the political

parties. They are continuously engaged in performance of

public duty and therefore it is important that they become

transparent. De-criminalization and de-communalization

of politics is essential in larger public interest as they

perform public function and, therefore, convicted person

should be debarred to form political party and become

political office bearer for lifetime. Bar & Bench (www.barandbench.com)

22. A group of individuals gets the status of political

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

ECI awards symbols to political parties under the Election

Symbols (Reservation & Allotment) Order, 1968, after

registration and calls for details of expenses made by the

parties in elections. Contributions of the value of Rs.

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

by political parties are required to be intimated to the ECI

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

23. Political parties perform public functions, define

parameters of governance & socio-economic development.

They must be transparent but their income tax returns

reveal that on an average merely 20% of their income

comes from donation that they disclose to the ECI and

remaining 80% of income are shrouded in mystery. This

gives rise to all kinds of speculation about pernicious

influence of illegal money which is not good for democracy.

24. ECI has plenary power and authorize to withdraw

recognition of parties in certain contingencies but it does

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

25. The Executive is unwilling to implement the NCRWC,

Election Commission &Law Commission recommendations

and curtail corruption crime casteism and communalism,

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

Court should allow the instant petition in public interest. Bar & Bench (www.barandbench.com)

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

―16. Disqualifications for registration in an electoral roll.

(1) A person shall be disqualified for registration in an

electoral roll if he— (a) is not a citizen of India; or (b) is of

unsound mind and stands so declared by a competent

court; or (c) is for the time being disqualified from voting

under the provisions of any law relating to corrupt

practices and other offenses in connection with elections.

(2) The name of any person who becomes so disqualified

after registration shall forthwith be struck off the electoral

roll in which it is included: [Provided that the name of any

person struck off the electoral roll of a constituency by

reason of a disqualification under clause (c) of sub-section

(1) shall forthwith be reinstated in that roll if such

disqualification is, during the period such roll is in force,

removed under any law authorizing such removal.]

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

―8. Disqualification on conviction for certain offences.—

[(1) A person convicted of an offence punishable under—

(a) section 153A (offence of promoting enmity between

different groups on ground of religion, race, place of birth,

residence, language, etc., and doing acts prejudicial to

maintenance of harmony) or section 171E (offence of

bribery) or section 171F (offence of undue influence or

personation at an election) or sub-section (1) or sub- Bar & Bench (www.barandbench.com)

23 section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or sub-section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian

Penal Code (45 of 1860); or

(b) the Protection of Civil Rights Act, 1955 (22 of

1955), which provides for punishment for the preaching and practice of ―untouchability‖, and for the enforcement of any disability arising therefrom; or

(d) sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities Act, 1967 (37 of 1967); or

(e) the Foreign Exchange Act, 1973 (46 of 1973); or

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

(g) section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Bar & Bench (www.barandbench.com)

Terrorist and Disruptive Activities Act, 1987; or

(h) section 7 (offence of contravention of the provisions of sections 3 to 6) of the Religious Institutions (Prevention of

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

(i) section 125 (offence of promoting enmity between classes in connection with election) or section 135 (offence of removal of ballot papers from polling stations) or section

135A (booth capturing) or clause (a) of sub-section (2) of section 136 (offence of fraudulently defacing or destroying any nomination paper) of this Act; or

(j) section 6 (offence of conversion of a place of worship) of the Places of Worship Act, 1991, or

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

Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971); or

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

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

(n) the Prevention of Terrorism Act, 2002 (15 of 2002), shall be disqualified, where the convicted person is sentenced to— (i) only fine, for a period of six years from date of such conviction; (ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]

(2) A person convicted for the contravention of— Bar & Bench (www.barandbench.com)

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

profiteering; or

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

drugs; or

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

than six months, shall be disqualified from the date of

such conviction and shall continue to be disqualified for a

further period of six years since his release.

(3) A person convicted of any offence and sentenced

to imprisonment for not less than two years [other than

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

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

and shall continue to be disqualified for a further period of

six years since his release.]

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

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

The case of every person found guilty of a corrupt practice

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

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

as the Central Government may specify in this behalf, to

the President for determination of the question as to

whether such person shall be disqualified and if so, for

what period: Provided that the period for which any

person may be disqualified under this sub-section shall in Bar & Bench (www.barandbench.com)

no case exceed six years from the date on which the order

made in relation to him under section 99 takes effect.

(2) Any person who stands disqualified under section 8A of

this Act as it stood immediately before the commencement

of the Election Laws (Amendment) Act, 1975, may, if the

period of such disqualification has not expired, submit a

petition to the President for the removal of such

disqualification for unexpired portion of the said period.

(3) Before giving his decision on any question mentioned

in sub-section (1) or on any petition submitted under

subsection (2), the President shall obtain the opinion of

the Election Commission on such question or petition and

shall act according to such opinion.]

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

―9. Disqualification for dismissal for corruption or

disloyalty.— (1) A person who having held an office under

the Government of India or under the Government of any

State has been dismissed for corruption or for disloyalty to

the State shall be disqualified for a period of five years

from the date of such dismissal. (2) For the purposes of

sub-section (1), a certificate issued by the Election

Commission to the effect that a person having held office

under the Government of India or under the Government

of a State, has or has not been dismissed for corruption or

for disloyalty to State shall be conclusive proof of that fact: Bar & Bench (www.barandbench.com)

Provided that no certificate to the effect that a person

has been dismissed for corruption or for disloyalty to the

State shall be issued unless an opportunity of being heard

has been given to the said person.

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

―9A. Disqualification for Government contracts, etc.—A

person shall be disqualified if, and for so long as, there

subsists a contract entered into by him in the course of

his trade or business with the appropriate Government for

the supply of goods to, or for the execution of any works

undertaken by, that Government.

Explanation.—For the purposes of this section, where

a contract has been fully performed by the person by

whom it has been entered into with the appropriate

Government, the contract shall be deemed not to subsist

by reason only of the fact that the Government has not

performed its part of the contract either wholly or in part.

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

―10. Disqualification for office under Government

company.—A person shall be disqualified if, and for so

long as, he is a managing agent, manager or secretary of

any company or corporation (other than a co-operative

society) in the capital of which the appropriate

Government has not less than twenty-five percent share. Bar & Bench (www.barandbench.com)

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

―10A. Disqualification for failure to lodge account of

election expenses.—If the Election Commission is satisfied

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

election expenses, within the time and in the manner

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

or justification for the failure, the Election Commission

shall, by order published in the Official Gazette, declare

him to be disqualified and any such person shall be

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

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

―11A. Disqualification arising out of conviction and

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

commencement of this Act, is convicted of an offence

punishable under section 171E or section 171F of the

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

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

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

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

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

person disqualified by a decision of the President under

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

disqualified for same period for voting at any election.

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

by any person under sub-section (2) of section 8A in Bar & Bench (www.barandbench.com)

respect of any disqualification for being chosen as, and for

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

Legislative Assembly or Legislative Council of a State shall,

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

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

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

immediately before the commencement of the Election

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

decision were a decision in respect of the said

disqualification for voting also.

34. That Section 41 of the RPA, 1951, reads as under:

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

person who is for the time being disqualified under the

Constitution or under this Act for being a member of

either House of Parliament or the House or either House of

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

so long as the disqualification subsists, also be

disqualified for being an election agent at any election.‖

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

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

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

the time being entered in the electoral roll of any

constituency shall be entitled to vote in that constituency.

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

if he is subject to any of the disqualifications referred to in Bar & Bench (www.barandbench.com)

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

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

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

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

constituencies shall be void.

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

constituency more than once, notwithstanding that his

name may have been registered in the electoral roll for the

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

his votes in that constituency shall be void.

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

confined in a prison, whether under a sentence of

imprisonment or transportation or otherwise, or is in the

lawful custody of the police: Provided that nothing in this

sub-section shall apply to a person subjected to preventive

detention under any law for the time being in force.

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

apply to a person who has been authorised to vote as

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

a proxy for such elector.

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

―29A. Registration with the Election Commission of

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

association or body of individual citizens of India calling

itself a political party and intending to avail itself of the Bar & Bench (www.barandbench.com)

31 provisions of this Part shall make an application to the

Election Commission for its registration as a political party for the purposes of this Act.

(2) Every such application shall be made,— (a) if the association or body is in existence at the commencement of the Representation of the People (Amendment) Act,

1988 (1 of 1989), within sixty days next following such commencement; (b) if the association or body is formed after such commencement, within thirty days next following the date of its formation.

(3) Every application under sub-section (1) shall be signed by the chief executive officer of the association or body (whether such chief executive officer is known as

Secretary or by any other designation) and presented to the Secretary to the Commission or sent to such Secretary by registered post.

(4) Every such application shall contain the following particulars, namely:— (a) the name of the association or body; (b) the State in which its head office is situate;

(c) the address to which letters and other communications meant for it should be sent; (d) the names of its president, secretary, treasurer and other office-bearers; (e) the numerical strength of its members, and if there are categories of its members, the numerical strength in each category; (f) whether it has any local units; if so, at what Bar & Bench (www.barandbench.com)

32 levels; (g) whether it is represented by any member or members in either House of Parliament or of any State

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

Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India.

(6) The Commission may call for such other particulars as it may deem fit from the association or body.

(7) After considering all the particulars as aforesaid in its possession and any other necessary and relevant factors and after giving the representatives of the association or body reasonable opportunity of being heard, the Commission shall decide either to register the association or body as a political party for the purposes of this Part, or not so to register it; and the Commission shall communicate its decision to the association or body:

Provided that no association or body shall be registered as a political party under this sub-section unless the memorandum or rules and regulations of such association Bar & Bench (www.barandbench.com)

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

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

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

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

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

matters shall be communicated to the Commission

without delay.

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

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

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

1956), every political party may accept any amount of

contribution voluntarily offered to it by any person or

company other than a Government company:

Provided that no political party shall be eligible to

accept any contribution from any foreign source defined

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

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

Explanation.—For the purposes of this section and

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

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

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

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

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

donation or subscription offered by any person to a

political party; and (d) ―person‖ has the meaning assigned Bar & Bench (www.barandbench.com)

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

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

company, local authority and every artificial juridical

person wholly or partially funded by the Government.]

38. On 09.08.2015, the Election Commission informed

the Central Government that 56 out of total 1866 political

parties are recognized as registered national and state

parties and rest 1810 are unrecognized registered parties.

The Commission also informed that during 2014 General

Election, only 464 political parties had fielded candidates.

Petitioner also knows few registered political parties who

never contest election. They are formed to avail the benefit

of income tax exemption. Such shell political parties exist

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

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

for such other particulars as it may deem fit from the

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

consider necessary and relevant factors before registering

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

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

bearers, address or any other material matters shall be

communicated to the ECI without delay. Therefore, it is

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

debar the convicted person from forming political party

and becoming office bearer of registered political party. Bar & Bench (www.barandbench.com)

40. Tenth Schedule of Constitution vests great powers

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

an elected member – whether Member of Parliament or

Legislature of State Assembly - from the Party if he steps

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

received by Political Parties are required to be reported to

the Election Commission. This obligation cast on Political

Parties also points towards their public character. Hence

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

from forming the political party and becoming the office

bearer of any registered political party for lifetime, who

has been convicted for any offence mentioned in Sections

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

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

virtue of the powers conferred on it under the Article 324

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

Conduct of Election Rules, 1961, and other powers vested

in it, the Commission promulgated the Election Symbols

(Reservation and Allotment) Order, 1968. Under this

Order, the Commission allots symbols to various Political

Parties. Allotment of election symbols by the Election

Commission to Political Parties is suggestive of the public

character of political parties. Moreover, political parties get

tax exemptions, which amounts to indirect financing of

the political parties in terms of Section 2(h) of the RTI Act. Bar & Bench (www.barandbench.com)

42. The Central and State Governments have allotted

land buildings & other accommodations in prime locations

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

or on concessional rates. This also amounts to indirect

financing of the political parties. Doordarshan allots free

airtime to political parties during the elections. This is

another instance of indirect financing of political parties.

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

constitutional scheme in a democratic polity and as they

are directly and indirectly financed by the Central and

State Governments in various ways, as discussed

hereinabove, the convicted person should be restricted to

form political party and become political office bearer.

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

provides that contribution made by an individual, or

Company to a Political Party is deductible from the total

income of the assesee. This provision is exclusively

applicable to the political parties and is suggestive of

indirect financing to the political parties by the State.

44. That political parties have a binding nexus with the

populace. As a central institution of the Indian democracy,

political parties embody the will of the people, carry all

their expectations that democracy will be truly responsive

to their needs and help and solve the most pressing

problems that confront them in the daily lives. Bar & Bench (www.barandbench.com)

45. That in addition to exemption on income under

Section 139 of the Income Tax Act, political parties have

been provided facilities for residential and official use by

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

They have been given offices/residential accommodations

at prime locations in Delhi such as Akbar Road, Ashoka

Road, Chanakyapuri. The rentals charged are a fraction of

the market rent. These facilities are not just provided to

them at nominal rates but their maintenance, upgradation

modernization, renovation, etc. are also done at State

expense. Similar facilities are provided at various State

Capitals, details of which are extremely difficult to obtain.

46. That the ECI spends money for providing facilities to

political parties such as free electoral rolls, and also

provide free broadcast facilities to the political parties at

Doordarshan and All India Radio, which results in loss of

revenue in terms of air time. If closely monitored and

totalled, the full amount of public funds spent on Political

Parties, would possibly amount to thousands of crores.

47. That the Central Information Commission, various

State Information Commissions and the High Courts have

held that allotment of land/building on subsidized rates

and exemption from various taxes including income tax

amount to ―indirect financing‖ in terms of Section

2(h)(d)(ii) of the RTI Act 2005. Bar & Bench (www.barandbench.com)

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

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

the RPA registers it. Therefore, this registration lends it

the colour of Public Authority. In addition, political parties

have constitutional and statutory status. Incorporation of

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

and the 10th Schedule to the Constitution has given

constitutional status to political parties. However, neither

there is any law to regulate them nor Executive is willing

to implement Law Commission recommendations. Hence,

a convicted person is eligible to become party president.

49. The ECI under the Elections Symbols (Reservation &

Allotment) Order 1968, promulgated under the Article 324

and Rules 5 and 10 of the Conduct of Election Rules

1961, grants symbols to the political parties to recognize

them for election purposes and can suspend or withdraw

recognition of the political parties on their failure to

observe Model Code of Conduct or the lawful directions

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

Public Character of the political parties.

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

1996 SC 3081) dealt with income/expenditure incurred by

political parties and laid emphasis on transparency on

election funding and empowered the election commission

to take steps to promote transparency and accountability. Bar & Bench (www.barandbench.com)

51. On 29.04.2008, the Central Information Commission

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

transparency in functioning of political parties as thus:

―28. Political Parties are a unique institution of the

modern constitutional State. These are essentially civil

society institutions and are, therefore, nongovernmental.

Their uniqueness lies in the fact that in spite of being

nongovernmental, Political Parties come to wield or

directly or indirectly influence, exercise of governmental

power. It is this link between State power and Political

Parties that has assumed critical significance in the

context of the Right of Information – an Act which has

brought into focus the imperatives of transparency in the

functioning of State institutions. It would be facetious to

argue that transparency is good for all State organs, but

not so good for the Political Parties, which control the

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

fallacy to hold that transparency is good for the

bureaucracy but not good enough for the Political Parties

which control those bureaucracies through political

executives‖. The Commission has further observed:

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

for Political Parties to disclose the sources of their

funding, and even less so the manner of expending those

funds. In the absence of such laws, the only way a citizen Bar & Bench (www.barandbench.com)

can gain access to the details of funding of Political Parties

is through their Income Tax Returns filed annually with

Income Tax authorities. This is about the closest the

Political Parties get to accounting for the sources and the

extent of their funding and their expenditure. There is

unmistakable public interest in knowing these funding

details which would enable the citizen to make an

informed choice about the Political Parties to vote for. The

RTI Act emphasizes that ―democracy requires an informed

citizenry‖, and that transparency of information is vital to

flawless functioning of constitutional democracy. It is

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

maximum transparency, no such obligation attaches to

Political Parties. Given that Political Parties influence the

exercise of political power, transparency in their

organization, functions and, more particularly, their

means of funding is a democratic imperative and therefore

is in public interest‖.

52. On 07.01.2010, in Indian Olympic Association versus

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

has held that Indian Olympic Association is a ―Public

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

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

position enjoyed by the IOA, as the sole representative of

the IOC, as the regulator for affiliating national bodies in Bar & Bench (www.barandbench.com)

41 respect of all Olympic sports, armed with the power to impose sanctions against institutions – even individuals, the circumstance that it is funded for the limited purpose of air fare, and other such activities of sports persons, who travel for events, is not a material factor. The IOA is the national representative of the country in the IOC; it has the right to give its nod for inclusion of an affiliating body, who, in turn, select and coach sportsmen, emphasizes that it is an Olympic sports regulator in this country, in respect of all international and national level sports. The annual reports placed by it on the record also reveal that though the IOA is autonomous from the Central

Government, in its affairs and management, it is not discharging any public functions. On the contrary, the funding by the government consistently is part of its balance sheet, and IOA depends on such amounts to aid and assist travel, transportation of sportsmen and sports managers alike, serves to underline its public, or predominant position. Without such funding, the IOA would perhaps not be able to work effectively. Taking into consideration all these factors, it is held that the IOA is

―public authority‖ under the meaning of that expression under the Act.‖ In the same judgment, the Delhi High

Court also held the Sanskriti School to be public authority. The relevant paragraph is thus:- ―As discussed Bar & Bench (www.barandbench.com)

42 earlier, grants by the Government retain their character as public funds, even if given to private organizations, unless it is proven to be part of general public policy of some sort.

Here, by all accounts, the grants – to the tune of Rs. 24 crores were given to the school, without any obligation to return it. A truly private school would have been under an obligation to return the amount, with some interest. The conditionality of having to admit children of employees of the Central Government can hardly be characterized as a legitimate public end; it certainly would not muster any permissible classification test under article 14 of the

Constitution. The benefit to the school is recurring; even if a return of 10% (which is far less than a commercial bank‘s lending rate) is assumed for 6 years, the benefit to the school is to the tune of Rs. 14.88 crores. This is apart from the aggregate grant of Rs. 24.8 crores, and the nominal concessional rate at which the school was allotted land for construction. On a consideration of all the above factors, this Court holds that the school fulfils the essential elements of being a non-government organization, under Section 2(h) of the Act, which is substantially financed by the Central Government, through various departments, and agencies. It is therefore, covered by the regime of the Act.‖ Bar & Bench (www.barandbench.com)

53. On 09.02.2010, in Bangalore International Airport

Limited vs Karnataka Information Commission [WP (C)

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

public authority may be described as a person or

administrative body entrusted with functions to perform

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

every such person or body is expressly defined as a public

authority or body, and the meaning of a public authority

or body may vary according to the statutory context; one

of the distinguishing features of an authority not being a

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

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

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

authority‘ it must be an authority exercised or capable of

being exercised for the benefit of the public‖.

54. On 22.4.2010, Central Information Commission in

Amardeep Walia vs. Chandigarh Lawn Tennis Association

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

Lawn Tennis Association is Public Authority. Para 19 of

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

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

public authority, substantive financing does not mean

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

by the appropriate Government is achieving a ―felt need of

a section of the public or to secure larger societal goals.‖ Bar & Bench (www.barandbench.com)

The ratio of the above judgments, particularly of Delhi

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

huge property has been placed at the disposal of CLTA by

the Chandigarh Administration at a notional rental of

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

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

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

imparting training to the budding tennis players. It is,

therefore, held that CLTA is a Public Authority.‖

55. On 21.1.2011, Central Information Commission in

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

has held that Chandigarh Club is a Public Authority. The

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

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

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

with annual increase of 5%. Finance Department of

Chandigarh Administration had submitted before the

Commission that the aforesaid rent was not at par with

the market rent. Considering the totality of circumstances,

the SIC concluded that Chandigarh Club is a Public

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

―3. We have now received a response from the

Finance Department of the Chandigarh Administration

under the signatures of the Joint Secretary, Finance.

Paras 02 & 03 thereof are extracted below :- Bar & Bench (www.barandbench.com)

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

Chandigarh Club are providing public service and while fixing the rate of rent in such bodies, this aspect is taken into consideration. In view of the public services being provided by these bodies, said bodies can not be termed as commercial sites. Due to this reason, rent of Chandigarh

Club was fixed as Rs 1,08,208/- per month with effect from 20.7.2000 with annual increase of 5%. It is not out of place to mention here that other similarly situated bodies like Chandigarh Golf Club, Chandigarh Golf Association, which are also providing the public services have been kept at par with Chandigarh Club while determining the rate of rent. In case we consider the Chandigarh Club as commercial site, then the rent comes out to be rupees to

3157400 per month. Keeping in view the urban character of the city, rent being charged from the Chandigarh Club is not at par with the market rent. Further, by charging rent at lower rate, it will make clear that Chandigarh

Administration is indirectly financing the promotion of services being rendered by Chandigarh Club. 3. In view of the aforesaid circumstances and in view of the fact that said club is being indirectly financed for promotion of public services by Chandigarh Administration the same is squarely covered under the definition of ‗public authority‘ as defined under section 2 (h) (ii) of the RTI Act, 2005.‖ Bar & Bench (www.barandbench.com)

4. In view of the categorical position taken by the

Chandigarh Administration extracted above and the fact

that there is vast differential between the monthly rental

being paid by the Chandigarh Club and the commercial

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

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

that the Chandigarh Club is being indirectly financed by

the Chandigarh Administration. In this view of the matter,

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

the club management is hereby directed to put in place a

mechanism for servicing the RTI Act.‖

56. On 01.2.2011, the Central Information Commission

in Amrit Mehta versus India International Centre (File No-

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

International Centre (IIC) is a Public Authority under

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

were that 4.69 acres of prime land was given on perpetual

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

agreement signed on 22.4.1960 between President of India

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

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

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

case, the Commission had held as thus:-

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

emerges that a huge chunk of land measuring 4.69 acres Bar & Bench (www.barandbench.com)

47 was allotted to IIC in 1968 at a premium of Rs. 1,68,840/- only, obviously, at a concessional rate. The agreement between the parties expressly speaks of concessional allotment of land. Further, IIC was required to pay rent of

Rs. 8,442/- per year to the Central Government and this amount has remained unchanged during the last 52 years. This is also clearly indicative of the rent being nominal/concessional in nature. These facts clearly establish that the Central Government has indirectly financed IIC. The RTI Act does not define ‗substantial financing‘. The expression ‗substantial financing‘ has to be interpreted in the context of a specific case. This has been so held by the Punjab and Haryana High Court in WP(C)

19224/2006 (The Hindu Urban Cooperative Bank Ltd. versus State Information Commission, Punjab) extracted above. Considering the fact that a huge chunk of land was allotted to IIC in 1960 in the very heart of the capital city of Delhi at a premium of Rs.1,68,840/- only and also considering the fact that IIC is paying rent of only Rs.

8,442/- per year to the Central Government over all these years, in our opinion, amounts to indirect substantial financing of IIC by the Central Government. In this view of the matter, we hold that IIC is ―Public Authority‖ under

Section 2(h) of RTI Act 2005.‖ Bar & Bench (www.barandbench.com)

57. On 09.05.2011, the Punjab and Haryana High Court

in Punjab Cricket Association versus State Information

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

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

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

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

exemption from entertainment tax which is an direct

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

negatived the plea of the complainant-information seeker,

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

in this regard because the PCA is saving heavy amount

from exemption of entertainment tax which naturally is an

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

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

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

concerned, the SIC mentioned that as per revenue record,

the land owned by the Provincial Government is given to

the Club which amounts to substantial financial

assistance by the State Government. The fact that the

valuable land upon which the Club was constructed,

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

to the Government shows that there is a substantial

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

prime land provided to the club would be much more than

its normal revenue expenditure. Apart from land provided Bar & Bench (www.barandbench.com)

for construction of the club building, the Government has

also incurred a part of expenditure on its construction….

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

based on the material on record, by virtue of impugned

order dated 8.7.2010‖.

58. On 23.8.2011, the Central Information Commission

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

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

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

given by the Commission is encapsulated in the para

extracted hereinafter. ―Considering the above factual

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

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

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

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

Annum by DDA. The School is under the governance,

control and regulation of the Delhi Schools Education Act

1973, Rule 50 whereof mandates disclosure of information

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

of Education, the Administrator and concerned authority

from the Central Government, as already discussed above.

The Directorate of Education has appointed two nominees

in the key Managing Committee of the School thereby

ensuring position of power of managing affairs of the

School and having control over the Respondent School.‖ Bar & Bench (www.barandbench.com)

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

land and income tax, was decided by the Central

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

After considering all aspects of the issue, the Commission

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

the various decisions given hereinabove is convinced that

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

―substantially financed‖ by the appropriate Government,

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

subsidized rates and income tax concessions being

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

declared as a Public authority‖.

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

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

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

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

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

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

from each other. Judgment of Punjab and Haryana High

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

the deep and pervasive control as required under Article

12, is not required and essential ingredient for invoking

the provisions of RTI Act. The primary purpose of

instrumentality of the State is in relation to enforcement of

the fundamental rights through Courts, whereas the RTI Bar & Bench (www.barandbench.com)

Act is intended to achieve, access to information and to

provide an effective framework for effecting the right to

information recognized under Article 19 of the

Constitution. The complainants are not claiming any kind

of monetary benefits or property from the empire of the

petitioner-institutions. To my mind, the enforcement of

fundamental rights through Courts and the question of

applicability of writ jurisdiction on an instrumentality of

the State for the purpose of determination of substantive

rights and liabilities of the parties are altogether (entirely)

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

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

scope of phrase of instrumentality of the State under

Article 12 of the Constitution is entirely different and

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

of the Legislature was to so restrict the meaning to the

expression of public authority, straight jacketing the same

within the four corners of the State, as defined under

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

specific broader definition of public authority under

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

61. While determining whether a particular entity is a

Public Authority or not, narrow interpretation of the words

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

Purpose of the RTI Act is transparency and accountability Bar & Bench (www.barandbench.com)

in the functioning of entities, which impact citizens‘ daily

lives. Judgment of the Delhi High Court in Indian Olympic

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

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

independence era to further democracy. It empowers

citizens and information applicants to demand and be

supplied with information about public records.

Parliamentary endeavor is to extend it also to public

authorities which impact citizens daily lives. The Act

mandates disclosure of all manner of information and

abolishes the concept of locus standi of the information

applicant; no justification for applying (for information) is

necessary; decisions and decision making processes,

which affect lives of individuals and groups of citizens are

now open to examination. Parliamentary intention

apparently was to empower people with the means to

scrutinize government and public processes, and ensure

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

large, and Governments as well as individuals in

particular, to ensure that sensitive information is kept out

of bounds have also been accommodated under the Act.‖

62. Though, above quoted decisions refer to institutions

such as schools, clubs which, in some characteristics are

different from Political Parties but these decisions do

recognize, accept, establish the principle that exemption Bar & Bench (www.barandbench.com)

from tax and allotment or permission to use land and

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

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

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

makes Political Parties come under the definition of

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

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

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

―To maintain the purity of elections and in particular to

bring transparency in process of election, the Commission

can ask the candidates about the expenditure incurred by

the Political Parties and this transparency in the process

of election would include transparency of a candidate who

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

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

would have basis elementary right to know full particulars

of candidate who is to represent him in Parliament where

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

64. Political parties constitute one of the most important

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

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

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

built upon party system. Without Political Parties, there

would be no means available of enlisting popular decisions

in a politically satisfactory manner. To quote him: Bar & Bench (www.barandbench.com)

―The life of democratic State is built upon party-system and it is important at the outset to discuss the part played by party in the arrangement of affairs. Briefly, that part may be best described by saying that parties arrange the issues upon which people are to vote. It is obvious that in the confused welter of modern State, there must be some selection of problems as more urgent than others. It is necessary to select them as urgent and present solutions of them, which may be acceptable to the citizen-body. It is that task of selection, the party undertakes. It acts, in Mr.

Lowell‘s phrase, as the broker of ideas. From the mass of opinions, sentiments, beliefs, by which the electorate moves, it chooses out those it judges most likely to meet with general acceptance. It organizes persons to advocate its own view of their meaning. It states that view as the issue upon which the voter has to make up his mind. Its power enables it to put forward for election candidates who are willing to identity themselves with its view. Since its opponents will do the same, the electorate, thereby, is enabled to vote as a mass and decision that would otherwise be chaotic, assumes some coherency and direction…What, at least, is certain, is that without parties there would be no means available to us of enlisting the popular decision in such a way as to secure solutions capable of being interpreted as politically satisfactory.‖ Bar & Bench (www.barandbench.com)

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

Member of a House belonging to any Political Party can be

disqualified in certain circumstances: ―2. Disqualification

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

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

any political party shall be disqualified for being a member

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

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

abstains from voting in such House contrary to any

direction issued by the political party to which he belongs

or by any person or authority authorized by it in this

behalf, without obtaining, in either case, the prior

permission of such political party, person or authority and

such voting or abstention has not been condoned by such

political party, person or authority within fifteen days from

the date of such voting or abstention. Explanation – For

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

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

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

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

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

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

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

deemed to belong to the political party of which he

becomes, or, as the case may be, first becomes, a member Bar & Bench (www.barandbench.com)

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

takes his seat after complying with the requirements of

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

elected member of a House who has been elected as such

otherwise than as a candidate set up by any political

party, shall be disqualified for being a member of the

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

A nominated member of a House shall be disqualified for

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

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

takes his seat after complying with the requirements of

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

66. People must know the source of expenditure incurred

by Political Parties and candidates in the election. These

judicial pronouncements commend progressively higher

level of transparency in the functioning of Political Parties

in general and their funding in particular.

67. Political Parties have made a bland assertion before

the CIC that they are not Public Authorities under Section

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

them by Central and State Government on certain terms.

The CIC has rejected the contentions of the parties.

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

in larger public interest. It will promote transparency and

accountability in parties and ensure free and fair election. Bar & Bench (www.barandbench.com)

69. The Law Commission in 170th Report recommended

to improve transparency in functioning of Political Parties:

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

if democracy and accountability constitute the core of our

constitutional system, the same concepts must also apply

to and bind political parties which are integral to our

democracy. It is the political parties that form the

Government, man the parliament and run the governance

of country. It is therefore, necessary to introduce internal

democracy financial transparency and accountability in

the working of political parties. A political party, which

does not respect democratic principles in its internal

working cannot be expected to respect those principles in

the governance of the country. It cannot be dictatorship

internally and democratic in its functioning outside‖. The

Executive is unwilling to implement above suggestions.

Hence this Hon‘ble Court should allow the petition.

70. Copy of the Goswami Committee on Electoral Reform

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

71. Copy of National Commission to Review the Working

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

72. Copy of the Background Paper on Electoral Reform

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

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

annexed as Annexure P-4. (Page 184-245) Bar & Bench (www.barandbench.com)

GROUNDS

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

is disqualified for registration in electoral roll under

section 16 of RPA 1950, disqualified for contesting election

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

disqualified for voting under section 11A, disqualified for

being an election agent under section 41 or forfeits his

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

collect donations under section 29B, get tax exemption

under Income Tax Act and even become party president.

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

convicted for heinous crimes like murder, rape,

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

can form a political party and become party president. For

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

Shashi Kala have been convicted for major scams but still

holding highest political post. Similarly, charges have been

framed by the Court in serious cases against Mr. Suresh

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

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

Kanimozhi, Mr. Adhir Ranjan Chaudhary, Mr. Virbhadra

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

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

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

still holding political post and wielding political power. Bar & Bench (www.barandbench.com)

C. Because Goswami Committee on Electoral Reform (1990) proposed about the registration/recognition as follows: ―3.2 After the insertion of new section 29A of the Act for the purpose of making the political organizations seeking registration to conform in form only to the provisions of the Constitution, especially to the preamble thereto, the powers of the Election Commission in regard to registration of political parties under the Symbols Order has been taken away. The Election Commission has to apply the new provisions for the registration of political parties. 3.3 The Committee observed that in view of the provisions of section 29A of the Act and of a very large number of applications from political parties for registration on the eve of the last Lok Sabha elections, the Commission had no option except to register as many as 261 political parties. This has created many practical and administrative problems and difficulties at the time of election. 3.4 All the members of the Committee, except Shri H.K.L. Bhagat, feel that the new provision in section 29A do not serve any purpose. 3.5 It has been brought to the notice of the members of the Committee that the Attorney-General of India whose opinion was sought on the various measures for discouraging non-serious candidates from election contests, has observed that new section 29A has not served any useful purpose. 3.6 After taking into account the above factors, all the members of the Committee, except Shri H.K.L. Bhagat, feel that section 29A should be deleted and the matter of registration of political parties should be left to be decided solely by the Election Commission under the Symbols Order applying the criteria of tangible proof of 1% of the valid votes to be secured by applicant party for registration.” Bar & Bench (www.barandbench.com)

D. Because NCRWC has recommended stringent criteria for

recognition of political parties to discourage proliferation.

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

registration should include provisions: (i) a declaration of

adherence to democratic values and norms of the

Constitution in the party organizations, (ii) declaration to

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

resort to casteism /communalism for political mobilization

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

party conventions to nominate and select candidates for

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

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

institutional mechanism for planning thinking research on

crucial socio-economic issues facing the nation.

E. Because ECI in 2004, proposed that amendment should

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

regulating registration / de-registration of political parties.

F. Because the proliferation of political parties has become a

major concern as Section 29A allows a small group of

people to form a political party by making a very simple

declaration. Presently, about 20% of registered political

parties contest election and remaining 80% parties create

excessive load on electoral system and public money.

Despite it, Executive has not implemented the Goswami

Committee and NCRWC recommendations till date. Bar & Bench (www.barandbench.com)

G. Because political parties hold constitutional status and

wield constitutional powers under the Tenth Schedule of

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

(a) disqualify legislators from Parliament and State

Assemblies; (b) bind legislators in their speeches and

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

decide whether Government remains in power (e) decide

public policies that affect lives of millions of people.

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

person can be disqualified from being a member of either

House of Parliament under the Tenth Schedule and that a

similar provision exists for the State Legislators under the

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

member of a House belonging to a Political Party votes or

abstains from voting in the House contrary to the

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

disqualified from being a Member of the House.

I. Because political parties have been given statutory status

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

bear true faith and allegiance to the Constitution. Political

parties give tickets to candidates and people vote on party

symbols and, thus, they are important instrumentalities of

the democratic governance and function like a Public

Authority. Therefore, convicted person must be restricted

to form a political party and become political office bearer. Bar & Bench (www.barandbench.com)

J. Because political parties are substantially financed by the

State in multiple ways and are exempted from Income Tax.

They have been claiming tax exemption under Section 13A

of the Income Tax Act. State has been indirectly financing

recognized political parties by way of free airtime on All

India Radio. In addition, State spends huge amounts on

political parties to provide free air time on Doordarshan.

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

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

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

another instance of indirect financing to political parties.

L. Because Central as well as the State Governments have

allotted various plots houses buildings and other types of

accommodation to the recognized political parties either

free of cost or at very concessional rates. This also

amounts to indirect financing to the recognized political

parties by the Central and State Governments.

M. Because the governance is revolved around the

political parties. They are continuously engaged in

performance of public duty and therefore it is important

that they become transparent. De-criminalization and de-

communalization of politics is essential in larger public

interest as they perform public function and, therefore,

convicted person should be debarred to form political

party and become political office bearer for lifetime. Bar & Bench (www.barandbench.com)

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

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

ECI awards symbols to political parties under the Election

Symbols (Reservation & Allotment) Order, 1968, after

registration and calls for details of expenses made by the

parties in elections. Contributions of the value of Rs.

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

by political parties are required to be intimated to the ECI

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

O. Because political parties perform public functions, define

parameters of governance & socio-economic development.

They must be transparent but their income tax returns

reveal that on an average merely 20% of their income

comes from donation that they disclose to the ECI and

remaining 80% of income are shrouded in mystery. This

gives rise to all kinds of speculation about pernicious

influence of illegal money which is not good for democracy.

P. Because ECI has plenary power and authorize to withdraw

recognition of parties in certain contingencies but it does

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

Q. Because Executive is unwilling to implement the NCRWC,

Election Commission &Law Commission recommendations

and curtail corruption crime casteism and communalism,

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

Court should allow the instant petition in public interest. Bar & Bench (www.barandbench.com)

PRAYER

Keeping in view the above stated facts and circumstances,

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

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

in nature of mandamus to: a) ban the convicted person from forming a political party

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

disqualified for registration in electoral roll under section

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

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

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

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

forfeit his right to vote under section 62 of the RPA,1951; b) in the alternative, declare Section 29A of the RPA, 1951,

arbitrary, irrational and ultra-vires the Constitution and

authorize the Election Commission of India for registration

and de-registration of political parties as suggested by the

Goswami Committee on Electoral Reform (Annexure P-1); c) direct the Election Commission to frame guidelines to

decriminalize the electoral system and ensure inner party

democracy as proposed by the NCRWC (Annexure P-2); d) take such other steps as this Hon‘ble Court may deem fit

for decriminalization of politics & allow cost to petitioner.

Drawn on: 15.11.2017 (R. D. Upadhyay)

Filed on: 18.11.2017 Advocate for Petitioner Bar & Bench (www.barandbench.com)

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO …… OF 2017 IN THE MATTER OF: Ashwini Kumar Upadhyay …Petitioner Verses Union of India & another ...Respondents AFFIDAVIT I, Ashwini Kumar Upadhyay aged 42 years, son of Sh. Suresh Chandra Upadhyay, Office at 15, New Lawyers Chambers, Supreme Court of India, New Delhi-110001, Resident of G-284, Govindpuram, Ghaziabad, Pin-201013, at present at New Delhi, do hereby solemnly affirm and declare as under: 1. That I am the sole petitioner above named and well acquainted with facts and circumstances of the case and as such competent to swear this affidavit. 2. That I have read and understood the contents of accompanying synopsis and list of dates pages (B - I) and writ petition paras (1 -73) pages (1 - 51) and total pages (1 - 245) which are true and correct to my knowledge and belief. The annexures filed with this writ petition are true copies of their respective originals. 3. That petitioner has not filed any other petition either in this Hon‘ble Court or in any other High Court seeking same and similar directions as prayed in this petition. 4. That petitioner has no personal interests, individual gain, private motive or oblique reasons in filing this PIL. It is not guided for gain of any other individual person, institution or body. There is no motive other than the public interest. 5. There is no civil, criminal or revenue litigation, involving petitioner, which has or could have legal nexus, with the issue involved in this petition. It is totally bona-fide. Bar & Bench (www.barandbench.com)

6. There is no requirement to move concerned government authority for relief sought in this PIL. There is no other remedy available except approaching this Hon‘ble Court. 7. That I have gone through Article 32 of the Constitution and Supreme Court Rules and do hereby affirm that the present writ petition is in conformity thereof. 8. That I have done whatsoever enquiry/investigation, which was in my power to do, to collect the data/material, which was available; and which was relevant for this Hon‘ble Court to entertain the present writ petition. 9. That I have not concealed any data/material/information in this petition; which may have enabled this Hon‘ble Court to form an opinion, whether to entertain this petition or not and/or whether to grant any relief or not. 10. That the averments made in this affidavit are true and correct to my personal knowledge and belief. No part of this Affidavit is false/fabricated, nor has anything material been concealed there from.

(Ashwini Kumar Upadhyay) DEPONENT VERIFICATION I, the Deponent do hereby verify that the contents of above affidavit are true and correct to my personal knowledge and belief. No part of this affidavit is false nor has anything material been concealed there from. I solemnly affirm today i.e. Saturday, the 18th day of November 2017 at New Delhi.

(Ashwini Kumar Upadhyay) DEPONENT Bar & Bench (www.barandbench.com)

APENDIX THE REPRESENTATION OF THE PEOPLE ACT, 1950. ―16. Disqualifications for registration in an electoral roll. (1) A person shall be disqualified for registration in an electoral roll if he—(a) is not a citizen of India; or (b) is of unsound mind and stands so declared by a competent court; or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offenses in connection with elections. (2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included: [Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub-section (1) shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal.] THE REPRESENTATION OF THE PEOPLE ACT, 1951. ―8. Disqualification on conviction for certain offences.—[(1) A person convicted of an offence punishable under—(a) section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171F (offence of undue influence or personation at an election) or sub- section (1) or sub-section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or sub-section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860); or (b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for the preaching and practice of ―untouchability‖, and for the enforcement of any disability arising therefrom; or (c) section 11 (offence of importing or exporting prohibited goods) of Customs Act, 1962 (52 of 1962); or (d) sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of order made in respect of a notified place) of the Unlawful Activities Act, 1967 (37 of 1967); or (e) the Foreign Exchange Act, 1973 (46 of 1973); or Bar & Bench (www.barandbench.com)

(f) Narcotic Drugs &Psychotropic Substances Act, 1985; or (g) section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities Act, 1987; or (h) section 7 (offence of contravention of the provisions of sections 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or (i) section 125 (offence of promoting enmity between classes in connection with election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (booth capturing) or clause (a) of sub-section (2) of section 136 (offence of fraudulently defacing or destroying any nomination paper) of this Act; or (j) section 6 (offence of conversion of a place of worship) of the Places of Worship Act, 1991, or (k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971); or (l) the Commission of Sati (Prevention) Act, 1987; or (m) the Prevention of Corruption Act, 1988 (49 of 1988); or (n) the Prevention of Terrorism Act, 2002 (15 of 2002), shall be disqualified, where the convicted person is sentenced to— (i) only fine, for a period of six years from date of such conviction; (ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.] (2) A person convicted for the contravention of— (a) any law providing for the prevention of hoarding or profiteering; (b) any law relating to the adulteration of food or drugs; or (c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961)], and sentenced to imprisonment for not less than six months, shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. (3) A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.] ―8A. Disqualification on ground of corrupt practices.—(1) The case of every person found guilty of a corrupt practice by an order under section 99 shall be submitted, as soon as may be, after such order takes effect, by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such Bar & Bench (www.barandbench.com)

69 person shall be disqualified and if so, for what period: Provided that the period for which any person may be disqualified under this sub-section shall in no case exceed six years from the date on which the order made in relation to him under section 99 takes effect. (2) Any person who stands disqualified under section 8A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975, may, if the period of such disqualification has not expired, submit a petition to the President for the removal of such disqualification for unexpired portion of the said period. (3) Before giving his decision on any question mentioned in sub-section (1) or on any petition submitted under subsection (2), the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion.] ―9. Disqualification for dismissal for corruption or disloyalty.— (1) A person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal. (2) For the purposes of sub-section (1), a certificate issued by the Election Commission to the effect that a person having held office under the Government of India or under the Government of a State, has or has not been dismissed for corruption or for disloyalty to State shall be conclusive proof of that fact: Provided that no certificate to the effect that a person has been dismissed for corruption or for disloyalty to the State shall be issued unless an opportunity of being heard has been given to the said person. ―9A. Disqualification for Government contracts, etc.—A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government. Explanation.—For the purposes of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part. ―10. Disqualification for office under Government company.—A person shall be disqualified if, and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a cooperative society) in the capital of which the appropriate Government has not less than twenty-five percent share. Bar & Bench (www.barandbench.com)

―10A. Disqualification for failure to lodge account of expenses.—If the Election Commission is satisfied that a person— (a) has failed to lodge an account of election expenses, within the time and in the manner required by or under this Act, and (b) has no good reason or justification for the failure, the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from date of order. ―11A. Disqualification arising out of conviction/corrupt practices.— (1) If any person, after the commencement of this Act, is convicted of an offence punishable under section 171E or section 171F of the Indian Penal Code (45 of 1860), or under section 125 or section 135 or clause (a) of sub-section (2) of section 136 of this Act, he shall, for a period of six years from the date of the conviction or from the date on which the order takes effect, be disqualified for voting at any election. (2) Any person disqualified by a decision of the President under sub-section (1) of section 8A for any period shall be disqualified for same period for voting at any election. (3) The decision of the President on a petition submitted by any person under sub-section (2) of section 8A in respect of any disqualification for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State shall, so far as may be, apply in respect of the disqualification for voting at any election incurred by him under clause (b) of sub-section (1) of section 11A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), as if such decision were a decision in respect of the said disqualification for voting also. ―41. Disqualification for being an election agent.—Any person who is for the time being disqualified under the Constitution or under this Act for being a member of either House of Parliament or the House or either House of the Legislature of a State or for voting at elections, shall, so long as the disqualification subsists, also be disqualified for being an election agent at any election.‖ ―62. Right to vote.— (1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency. (2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950. Bar & Bench (www.barandbench.com)

(3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void. (4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for the constituency more than once, and if he does so vote, all his votes in that constituency shall be void. (5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police: Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force. (6) Nothing contained in sub-sections (3) and (4) shall apply to a person who has been authorised to vote as proxy for an elector under this Act in so far as he votes as a proxy for such elector. ―29A. Registration with the Election Commission of associations and bodies as political parties.— (1) Any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions of this Part shall make an application to the Election Commission for its registration as a political party for the purposes of this Act. (2) Every such application shall be made,— (a) if the association or body is in existence at the commencement of the Representation of the People (Amendment) Act, 1988 (1 of 1989), within sixty days next following such commencement; (b) if association is formed after such commencement, within thirty days next following the date of its formation. (3) Every application under sub-section (1) shall be signed by the chief executive officer of the association or body (whether such chief executive officer is known as Secretary or by any other designation) and presented to the Secretary to the Commission or sent to such Secretary by registered post. (4) Every such application shall contain the following particulars, namely:— (a) the name of the association or body; (b) the State in which its head office is situate; (c) the address to which letters and other communications meant for it should be sent; (d) the names of its president, secretary, treasurer and other office-bearers; (e) the numerical strength of its members, and if there are categories of its members, the numerical strength in each category; (f) whether it has any local units; if so, at what levels; (g) whether it is represented by any member or members in either House of Parliament or of any State Legislature; if so, number of such member or members. Bar & Bench (www.barandbench.com)

(5) The application under sub-section (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold sovereignty, unity and integrity of India. (6) The Commission may call for such other particulars as it may deem fit from the association or body. (7) After considering all the particulars as aforesaid in its possession and any other necessary and relevant factors and after giving the representatives of the association or body reasonable opportunity of being heard, the Commission shall decide either to register the association or body as a political party for the purposes of this Part, or not so to register it; and the Commission shall communicate its decision to the association or body: Provided that no association or body shall be registered as a political party under this sub-section unless the memorandum or rules and regulations of such association or body conform to the provisions of sub-section (5). (8) The decision of the Commission shall be final. (9) After an association or body has been registered as a political party as aforesaid, any change in its name, head office, office-bearers, address or in any other material matters shall be communicated to the Commission without delay. ―29B. Political parties entitled to accept contribution.—Subject to the provisions of the Companies Act, 1956 (1 of 1956), every political party may accept any amount of contribution voluntarily offered to it by any person or company other than a Government company: Provided that no political party shall be eligible to accept any contribution from any foreign source defined under clause (e) of section 2 of the Foreign Contribution (Regulation) Act, 1976 (49 of 1976). Explanation.—For the purposes of this section and section 29C,— (a) ―company‖ means a company as defined in section 3; (b) ―Government company‖ means a company within the meaning of section 617; and (c) ―contribution‖ has the meaning assigned to it under section 293A, of the Companies Act, 1956 (1 of 1956) and includes any donation or subscription offered by any person to a political party; and (d) ―person‖ has the meaning assigned to it under clause (31) of section 2 of the Income-tax Act, 1961 (43 of 1961), but does not include Government company, local authority and every artificial juridical person wholly or partially funded by the Government.] Bar & Bench (www.barandbench.com)

Annexure P-1

GOSWAMI COMMITTEE ON ELECTORAL REFORMS

REPORT OF THE

COMMITTEE ON

ELECTORAL REFORMS

MAY 1990

GOVERNMENT OF INDIA

MINISTRY OF LAW AND JUSTICE

LEGISLHTIVE DEPARTMENT

Bar & Bench (www.barandbench.com)

CHAPTER - I INTRODUCTION 1.1 Bharat can legitimately be proud of its being the largest democracy in the world and of its unique success as demonstrated through regular periodical elections in spite of steep illiteracy and backwardness of its people. 1.2 The credit for our success with the working of parliamentary democracy based on universal adult suffrage goes, in no small measure, to our people who have displayed their maturity of judgment through their native intelligence and commonsense in choosing, and also changing, the Government according to their choice. 1.3 The massive operation of our countrywide elections naturally inspires global awe and respect. Holding of elections in sky high and snow-clad mountains in North; scattered tiny islands in South; thick forests in East; and a vast tracks of marshy and desert lands in West; poses daunting problems which have been, time and again, successfully overcome. At the present reckoning, the electoral machinery has to plan and manage an election for an electorate of nearly 500 million spread over 25 States and 7 Union territories of big, medium and small sizes; nearly 5.5 lakhs of polling stations; requirement of an army of about 3 million personnel; vast quantity of ballot papers, ballot boxes and other materials. 1.4 Sir Antony Eden, Former Prime Minister of United Kingdom was perhaps greatly influenced by these factors when he observed:- ―Of all the experiments in government which have been attempted since the beginning of Time, I believe that the Indian venture into parliamentary government is the most exciting. A vast sub-continent is attempting to apply to its tens and hundreds of millions a system of free democracy which has been slowly evolved over the centuries in this small island, Great Britain. It is a brave thing to try to do so. The Indian venture is not a pale imitation of our practice at home, but a magnified and multiplied reproduction on a scale we have never dreamt of. If it succeeds, its influence on Asia is incalculable for good. Whatever the outcome, we must honour those who attempt it.‖ 1.5 Leaving now our laurels alone, it becomes imperative to take stock of the present state of affairs, which causes real concern and anxiety because of the existence of the looming danger threatening to cut at the very roots of free and fair elections. 1.6 The role of money and muscle powers at elections deflecting seriously the well accepted democratic values and ethos and corrupting the process; rapid criminalization of politics greatly encouraging evils of Bar & Bench (www.barandbench.com)

75 booth capturing, rigging, violence etc.; misuse of official machinery, i.e. official media and ministerial; increasing menace of participation of non- serious candidates; form the core of our electoral problems. Urgent corrective measures are the need of the hour lest the system itself should collapse. 1.7 Electoral reforms are correctly understood to be a continuous process. But the attempts so far made in this area did not touch even the fringe of the problem. They proved to be abortive. Some of the recent measures like reduction of voting age and anti-defection law are no doubt laudable and the basic principles underlying those measures should be appreciated. But there are other vital and important areas in election field completely neglected and left high and dry. 1.8 All these four decades, especially after 1967, the demand for electoral reforms has been mounting up. The subject of electoral reforms received wide attention at various Seminars and Forums. Many eminent persons and academicians have written on various aspects of electoral reforms. It would be relevant to make reference in brief to some of them. (1) The Report of the Joint Parliamentary Committee on amendment to election law - Part I and Part 11 - submitted in 1972 in two parts and the draft Bill appended thereto. (2) The Report of the Committee For Democracy (CFD) set up by Shri Jaya Prakash Narayan under the Chairmanship of Justice Tarkunde in August 1974. (3) Consideration of the various aspects of electoral reforms by the Sub-Committee of Cabinet appointed in 1977. (4) Consideration of the various aspects of electoral reforms by the Sub-Committee of the Cabinet between 1982 - 1984. (5) Various Presidential Addresses in Parliament. (6) Various Reports of Election Commission containing the views, suggestions and recommendations of the Chief Election Commissioners from 1952 onwards and the package of proposals made by the Commission in 1982. (7) The comments and views of the present Chief Election Commissioner, Shri R.V.S. Peri Sastri, as contained in his Notes circulated at the meeting of the political parties held on 9-1-1990. (8) The recommendations of the various Seminars including the one organized in March, 1983 by the Institute of Constitutional and Parliamentary Studies in New Delhi to deal with the various aspects of electoral reforms. (9) Write ups, articles etc. in national press regarding various aspects of electoral law and procedure. Bar & Bench (www.barandbench.com)

(10) Articles in Periodical "Swarajya" by Shri R. Venkataraman, President of India in Sixties (1960) 1.9 Some of the books by eminent authors dealing with either comprehensively the various aspects of electoral reforms or particular important aspects thereof are- (1) 'Lack of Political Will' by Shri Ramakrishna Hegde, former Chief Minister of Karnataka and at present Deputy Chairman of the Planning Commission. (2) 'Electoral Reforms' a book by Shri L.P. Singh, former Governor. (3) 'Rescue Democracy From Money Power' by Shri Rajagopalachari (Rajaji), former Governor-General and an eminent statesman. (4) Reports of various Seminars addressed by Shri S.L. Shakdher, former Chief Election Commissioner; Shri R.K. Trivedi, Former Chief Election Commissioner; Shri R.V.S. Peri Sastri, Present Chief Election Commissioner; Shri L.K. Advani (MP) and others. 1.10 Thus, there are in existence informative, productive and useful voluminous materials on the subject. The general public has been getting the feeling that there is lack of political will to undertake any useful exercise of electoral reforms. 1.11 In this context, the quick and timely initiative of the Prime Minister, Shri Visvanath Pratap Singh, on the assumption of office of the National Front Government is refreshing. It has revived the hope that meaningful electoral reforms could now be a distinct possibility and efforts would be directed towards removing the serious drawbacks and distortions in the election law and procedure. 1.12 A meeting mainly of the representatives of political parties in Parliament was convened on the 9th January, 1990 at New Delhi under the Chairmanship of the Prime Minister, Shri Vishwanath Pratap Singh. Various aspects of electoral reforms were discussed at the meeting. In summing up of the deliberations, the Prime Minister outlined the following areas of electoral reforms on which general discussions at the meeting took place and broad consensus on the need for corrective measures emerged :- (1) Change of electoral system with special reference to Proportional Representation System and List System on which divergent views were earlier expressed; (2) Strengthening of the Election Commission and securing its independence including making the holder of the post of the Chief Election Commissioner ineligible for any office under the government after his term; Bar & Bench (www.barandbench.com)

(3) More stringent laws to deal with evil of booth capturing and impersonation; (4) Fresh delimitation to cure the various distortions; provision for rotation of seats reserved for SCs; Reservation of seats for women; (5) Expeditious disposal of election petitions and appeals by sitting Judges and to manage their other work by appointment of adhoc Judges; (6) Examination of the present provision of Anti-Defection Law and introduction of necessary changes to limit its application only to certain areas of legislative activities and to limit the powers of the presiding officers of the Legislatures; (7) Public Funding of elections; (8) Fixation of rational basis for ceiling of election expenses and need for removing the present distortions; (9) Multi-purpose photo identity cards to voters; (10) Statutory time-limit for holding bye-elections; (11) Statutory backing to certain provisions of Model Code; (12) Statutory backing to the Observers' role; (13) Combating evil of non-serious candidates. contesting elections; (14) Elimination of misuse of official machinery. 1.13 On the basis of conclusions at the meeting of 9th January, 1990, the Government constituted a Committee under the Chairmanship of Law Minister Shri Dinesh Goswami with the following members to go into the various aspects of electoral reforms enumerated above:- 1. Shri H.K.L. Bhagat, M.P. (Indian National Congress) 2. Shri L.K. Advani, M.P. (Bharatiya Janata Party) 3. Shri Somnath Chatterjee, M.P. (Communist Party of India) 4. Shri Ghulam Rasool Matto, M.P. (National Conference) 5. Shri Chimanbhai Mehta, M.P. 6. Shri Indrajit M.P. 7. Shri Homi F. Daji, Ex-M.P. (Communist Party of India) 8. Shri Era Sezhiyan, Ex-M.P. (Janata Dal) 9. Shri V. Kishore Chandra Deo, Ex-M.P. (Congress) 10. Shri L.P. Singh, Former Governor 11. Shri S.L. Shakdher, Former Chief Election Commissioner 1.14 Shri K.Ganesan, former Secretary, Election Commission of India, who has been appointed honorary Consultant in the Ministry of Law and Justice for the specific work of electoral reforms has been instructed to assist the Committee in its deliberations. Shri J.C. Sharma, Consultant in the Ministry of Law and Justice, Legislative Department has been instructed to assist Shri K. Ganesan in the matter. Bar & Bench (www.barandbench.com)

1.15 Smt. V.S. Rama Devi, Secretary, Legislative Department, Ministry of Law and Justice, has also been requested to assist the Committee in its deliberations. 1.16 At the first meeting of the Committee held on the 3rd February, 1990 at New Delhi under the Chairmanship of Shri Dinesh Goswami, Law Minister, the Chairman indicated that detailed working paper under various heads of subjects of the contemplated electoral reforms would be prepared and circulated to members. 1.17 Shri K. Ganesan has been instructed to prepare the detailed working paper' in consultation with Shri Era Sezhiyan and Law Minister. 1.18 Detailed Notes under different Headings have been prepared with necessary Appendices thereto. The number of such main headings are 10 in Part-I and the number of sub-items thereunder are 55 covering every main aspects of election law and procedure. 1.19 Under Part-II, detailed notes on the different electoral systems obtaining in a few countries and the examination of those systems from the point of view of its suitability to Indian conditions have been prepared with necessary Appendices thereto. 1.20 These notes - Parts I and " - were circulated to the members of the Committee well in advance. 1.21 Thereafter, the Committee had six meetings as per the details given below:- 1. 7th March 1990 2. 8th March 1990 3. 30th March 1990 4. 31st March 1990 5. 2nd April 1990 6. 11th April 1990 1.22 At these meetings, the Committee examined the Notes on subjects in Part-I and Part-II and also considered the following additional notes prepared on specific subjects:- (1) Note on proposal regarding amendment to section 39 of the Representation of the People Act, 1951 (relating to increase in the number of proposers to a nomination paper in the case of elections to Rajya Sabha and Legislative Councils). (2) Recommendations made by the National Seminar on 'Elections and role of Law Enforcement' organised by the National Police Academy, Hyderabad and a note thereon. (3) Additional notes on 'Offence of Booth Capturing' prepared in consultation with Shri L.P. Singh. Bar & Bench (www.barandbench.com)

(4) The opinion of the Attorney-General on the various legislative measures proposed for discouraging non-serious candidates from contesting elections. (5) A Note containing broad outlines of U.K. law regarding election expenses prepared by Shri Era Sezhiyan. (6) A Note on 'Contribution by Companies to Political Parties' prepared by Shri L.P. Singh. 1.23 Apart from the above Notes, a brief statement containing gist of the suggestions in the letters received from Members of Parliament and other important persons on electoral reforms in response to the letter of the Minister of Law and Justice dated the 28th December, 1989 inviting their views and suggestions, were also circulated to the members of the Committee. Such of the important suggestions as are having a bearing on the subjects dealt with in the Notes have also been taken into account by the Committee. 1.24 The Committee concluded its work on the 4th May, 1990 at which the draft final report of the Committee has been approved. CHAPTER II Electoral Machinery 1. Set up of multi-member Commission 1.1 The Committee examined the question of making the Election Commission as a multi-member body. There has been broad agreement among all members about the Commission being a multi- member body. The Committee feels that the ECI should be a three member body. 1.2 As regards the mode of appointment of the Chief Election Commissioner and the two Election Commissioners, the Committee recommends as follows.- (i) The appointment of the Chief Election Commissioner should be made by the President in consultation with Chief Justice of India and the Leader of the Opposition (and in case no Leader of the opposition is available, the consultation should be with the leader of the largest opposition group in the Lok Sabha). (ii) The consultation process should have a statutory backing. (iii) The appointment of the other two Election Commissioners should be made in consultation with the Chief Justice of India, Leader of the Opposition (in case the Leader of the opposition is not available, the consultation should be with the leader of the largest opposition group in the Lok Sabha) and the Chief Election Commissioner. (iv) The appointment of Regional Commissioners for different zones as proposed is not favoured. However, such appointment should be made only as envisaged in the Constitution and not on a permanent footing. Bar & Bench (www.barandbench.com)

2. Steps for securing independence of the Commission 2.1 Various measures have been considered for securing the real independence of the Election Commission. 2.2 The Committee recommends that the protection of salary and other allied matters relating to the Chief Election Commissioner and the Election Commissioners should be provided for in the Constitution itself on the analogy of the provisions in respect of the Chief Justice and Judges of the Supreme Court. Pending such Election measures being taken, a parliamentary law should be enacted for achieving the object. 2.3 The Committee feels that the proposal to make the expenditure of the Commission to be 'charged' is not necessary. Such expenditure should continue to be 'voted' as of now. 2.4 The Committee further recommends that on the expiry of the terms of office, the Chief Election Commissioner and the Election Commissioners should be made ineligible not only for any appointment under the Government but also to any office including the post of Governor the appointment to which is made by the President. 2.5 As regards the tenure of the Chief Election Commissioner and other Election Commissioners, the Committee recommends that it should be for a term of five years or sixty-five years of age whichever is later. Committee makes it clear that the Chief Election Commissioner and Election Commissioners should in no case continue in office beyond the age of sixty-five years and for more than ten years in all. 3. Set up of the Secretariat The Committee agrees that in regard to the set up of the secretariat of the Commission, provisions on the lines of Article 98(2) of the Constitution relating to Lok Sabha Secretariat should be made and that till such provision is made, a law of Parliament should be enacted. 4. Set up of electoral machinery at State level 4.1 The Committee considered the suggestion for appointment of a full-time Chief Electoral Officers in States. The consensus is that Chief Electoral Officers, when so appointed, should exclusively be entrusted with the election work and not saddled with any other items of work. The Committee is of the view that present provision in the law is adequate. 4.2 The Committee examined the suggestion of the Election Commission for the creation of a supervisory agency for a group of districts. However, it does not accept the suggestion. 4.3 As regards the disciplinary control over the state-level officers including the Chief Electoral Officer, the Committee feels that even after the recent insertion of the provision in section 28A of the Representation of the People Act, 1951 treating such officers as are drafted for election Bar & Bench (www.barandbench.com)

81 duties, on deputation to the Election Commission, no disciplinary proceedings could be taken against them directly by the Election Commission itself. Keeping this in view, the Committee recommends that the matter should be further examined as to how best the Commission's control over the officers during the election period could be made more effective and complete in all respects including framing of charges, launching of prosecution and disciplinary proceedings against concerned officers for breach of duty during the period of his deputation to the Election Commission. 4.4 As regards the question of placing certain restrictions on the transfer of officers connected with the election work when the election is in prospect, the Committee agrees that such transfers should be effected only with the concurrence of the Election Commission. 5. Extension of jurisdiction of electoral machinery in relation to elections to Panchayat Raj institutions. The committee took note of the proposal under contemplation to amend the Constitution of India in regard to set up of Panchayat Raj institutions. For this reason, the Committee feels that the matter relating to the extension of jurisdiction of electoral machinery in relation to elections to Panchayat Raj institutions should be taken up only after ascertaining the exact details of the contemplated legislative or constitutional measures. 6. Power of contempt in favour of Election Commission The Committee considered the proposal of empowering the Election Commission with power of contempt of court to the limited purpose of Symbol cases and reference cases regarding disqualification of sitting members. It does not, however, favour the proposal. REFERENCE SOURCES 1. Minutes of the meeting of the Committee dated 3rd February, 1990. 2. Minutes of the meeting of the Committee dated 7th March, 1990. 3. Minutes of the meeting of the Committee dated the 8th March, 1990 4. Minutes of the meeting of the Committee dated 31st March, 1990. 5. Minutes of the meeting of the Committee dated the 2nd April, 1990. 6. Notes on Subjects in Part I - Chapter II - Electoral Machinery. CHAPTER - III : DELIMITATION OF CONSTITUENCIES 1.1 The Committee discussed the matter relating to fresh delimitation of Parliamentary and Assembly constituencies both on 7th March, 1990 and 2nd April, 1990 in some detail. It also considered the question of increasing the total number of seats in the House of the People and Legislative Assemblies of the States; the rotation of seats reserved for scheduled castes and the reservation of seats for women. Bar & Bench (www.barandbench.com)

1.2 The Committee took note of that if the proposals are accepted, it would require amendment to the Constitution as at present there is a constitutional bar not only in regard to the increase of seats and also fresh delimitation of constituencies. 1.3 All members, except Shri H.K.L. Bhagat, expressed agreement on the need for fresh delimitation on the basis of 1981 census. The members also agree that there should be rotation of seats for scheduled castes. The Committee is of the view that the manner of achieving the object of rotation of seats for Scheduled Castes should be left to the Delimitation Commission and the Parliamentary law to be made for the purpose. 1.4 As regards reservation of seats for women, while some members favour reservation of seats for women, few others feel that reservation of seats for women would raise complex problems. Ultimately, the Committee is of the view that it should leave a record favouring larger representation of women candidates at elections to the Houses of Parliament and State Legislatures and that to achieve this objective, the Committee should express its hope that political parties would respond positively to this suggestion by putting up more number of women candidates at elections. 1.5 As regards rationalization of multiple of Assembly constituencies, while Shri Era Sezhiyan, Ex-M.P. representing Janata Dal, desires that there must be some uniform rational for fixing the multiple for various States as against different multiples even among States more or less standing on an equal footing, some other members feel that if the total number of seats in the Legislative Assemblies is to be increased by the change of the multiple, the total number of seats in the Lok Sabha equally calls for such increase. No unanimity of views exists among members in regard to this proposal. REFERENCE SOURCES 1. Minutes of the Meeting of the Committee dated 7th March, 1990. 2. Minutes of the Meeting of the Committee dated 8th March, 1990. 3. Minutes of the Meeting of the Committee dated 2nd April, 1990. 4. Notes on Subjects - Part I-Chapter III - Delimitation of Constituencies. CHAPTER-IV: ELECTORAL ROLLS 1. Steps for improving enrolment of all eligible names: 1.1 The Committee took for consideration various measures proposed in the Notes. As regards the post offices being made as a focal point in the sense that they should be associated with the preparation and maintenance of electoral rolls up-to-date and upkeep of records, there is broad consensus among the members for the acceptance of this proposal. Bar & Bench (www.barandbench.com)

1.2 The Committee further agrees that the mater might be fully discussed as pointed out in the Notes by the Election Commission with the Postal Board and the Census Commissioner. 1.3 Many members of the Committee are strongly of the view that there are various defects and drawbacks in the present system of the preparation of electoral rolls because of acts of omissions and commissions of the officials. They observed that in some cases there were large-scale omissions of names from the electoral rolls in the past even though enumeration cards were delivered to the electors at the time of house to house enumeration. In that context, the Committee considered the question of strengthening the relevant provisions of the Representation of the People Act, 1950 so as to provide for a more stringent punishment for breach of official duty in connection with the preparation, revision etc. of electoral rolls. 1.4 The Committee recommends that Section 32 of the Representation of the People Act, 1950 should be suitable amended for this purpose. The Committee feel that the punishment of sentence for breach of official duty in connection with the preparation and revision of electoral rolls should be atleast for six months as against only the imposition of fine as at present. 1.5 The Committee agrees that the Election Commission should be given power not only to recommend disciplinary proceedings for breach of official duty but also should be empowered to record adverse entries against officers found guilty of lapses in their duty and forward them to the concerned authorities. 1.6 For the above purpose, as in the case of officers connected with the conduct of poll who are deemed to be on deputation subject to the control, superintendence and discipline of the Election Commission (vide Section 28A of the Representation of the People Act 1951), officers connected with the preparation and revision of electoral rolls should also be brought under the control and disciplinary jurisdiction of the Election Commission. 2. Issue of multi-purpose photo identity cards: 2.1 There is unanimity of views among all the members in regard to the implementation of the scheme of issue of multi-purpose photo identity cards. 2.2 The Committee agrees that the steps for successful implementation of the scheme as proposed in para 3.11 of the Notes - Part I should be undertaken and that a time-bound programme for covering the entire country with the proposed scheme is desirable. Bar & Bench (www.barandbench.com)

2.3 The following steps are indicated in paragraph 3.11 of the Notes, which are accepted. (a) Other Government departments and Ministries should be involved to make the possession of the card by every adult citizen compulsory for receiving benefits and facilities. (b) Bhaba Atomic Research Centre should be associated to prepare fuller details of the scheme from the point of view of cheaper cost and of its intamperability with a provision for keeping some sort of a duplicate photo identity lists containing all the names of the electors in a particular area which could ultimately take the place of the electoral roll. (c) Active involvement of the postal agencies for covering all areas and make them to serve as the focal point for the field operation connected with the scheme, is necessary. (d) Provision of adequate funds of the Government in the annual budgets of the Central Government and the State Governments to meet the expenditure is necessary. (e) Identifying an agency of the State Government and making it fully responsible for the implementation of the scheme is essential. (f) Fixation of a time-bound programme for covering the entire country is desirable. REFERENCE SOURCE 1. Minutes of the Meeting of the Committee dated 8th March, 1990. 2. Minutes of the Meeting of the Committee dated 2nd April, 1990. 3. Notes on Subjects - Part I - Chapter IV - Electoral Rolls CHAPTER-V: POLITICAL PARTIES AND CANDIDATES 1. Restriction on candidates contesting from several candidates constituencies: The Committee took note of the problems created by persons contesting elections from several constituencies in the absence of any kind of restrictions in that regard. The Committee therefore, recommends that a person should not be allowed to contest elections from more than two constituencies of the same class. 2. Lowering of age-limit for contesting candidates: The Committee feels that with the reduction of voting age from 21 to 18 years, it would be appropriate that the age qualification for contesting should be reduced to 21 years in the case of elections to Legislative Assemblies and Lok Sabha and to 25 years in the case of elections to Legislative Councils and Council of States. Accordingly, the Committee recommends the reduction of the age as proposed.

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3. Registration and recognition of political parties: 3.1 The Committee took note of that before insertion of the provisions in the Representation of the People Act, 1951 in 1988 (vide section 29A) the registration and recognition of political parties were fully regulated by the Election Symbols (Reservation and Allotment) Order, 1968 which is operated by the Election Commission. 3.2 After the insertion of new section 29A of the Act for the purpose of making the political organisations seeking registration to conform in form only to the provisions of the Constitution, especially to the preamble thereto, the powers of the Election Commission in regard to registration of political parties under the Symbols Order has been taken away. The Election Commission has to apply the new provisions for the registration of political parties. 3.3 The Committee observed that in view of the provisions of section 29A of the Act and of a very large number of applications from political parties for registration on the eve of the last Lok Sabha elections, the Commission had no option except to register as many as 261 political parties. This has created many practical and administrative problems and difficulties at the time of election. 3.4 All the members of the Committee, except Shri H.K.L. Bhagat, feel that the new provision in section 29A do not serve any purpose. 3.5 It has been brought to the notice of the members of the Committee that the Attorney-General of India whose opinion was sought on the various measures for discouraging non-serious candidates from election contests, has observed that new section 29A has not served any useful purpose. 3.6 After taking into account the above factors, all the members of the Committee, except Shri H.K.L. Bhagat, feel that section 29A should be deleted and the matter of registration of political parties should be left to be decided solely by the Election Commission under the Symbols Order applying the criteria of tangible proof of 1% of the valid votes to be secured by applicant party for registration. 3.7 The question of what would be the effect of deletion of section 29A on the continuance or otherwise of the 261 political parties, which have been registered under that, section has also been raised. Members of the Committee feel that the proposed provision relating to the deletion of section 29A should also include a consequential provision authorizing the Election Commission to deal with afresh any application for registration after the removal of the 261 political parties from the list of registered parties. Bar & Bench (www.barandbench.com)

3.8 The Committee feels that there is no need for recognizing alliances of political parties at elections and for any change in the present procedure of allotment of symbols. 4. Regulations for containing contests by non-serious candidates: 4.1 When the matter regarding various measures proposed for containing non-serious candidates from contesting election was taken up, some members felt that the opinion of the Attorney General should be obtained as to whether restrictions proposed would not amount to discrimination as envisaged in the provisions of the Constitution. Accordingly, the opinion of the Attorney General was obtained. 4.2 The Attorney-General has inter-alia given the opinion that the various measures proposed for discouraging non-serious candidates from election contests would not be open to challenge on the ground that they introduce the element of discrimination as the proposed legislative measures could be sustained on their being on rational basis in regard to classification. Therefore, they are not discriminatory. 4.3 The Committee further discussed the matter with reference to the opinion of the Attorney-General. The Committee recommends that the following measures should be taken up: (a) Security deposit should be fixed as follows:- (i) In case of a candidate set up by a recognised National or State Party - (i) for Assembly elections - Rs. 500 (ii) for Lok Sabha elections - Rs.1000 The usual concessions to Scheduled castes and Scheduled tribes candidates should also be available. (ii) In case of independents and candidates set up by registered parties - (i) for Assembly elections - Rs.2500 (ii) for Lok Sabha elections - Rs.5000 (b) If an independent candidate or a candidate set up by a registered party fails to secure 1/4, as against 1/6 of the valid votes polled as at present, the security deposit should be forfeited. (c) The number of proposers to a nomination paper to be filed by an independent candidate or a candidate set up by a registered party should be ten drawn from different assembly segments. (d) Arrangement of names of candidates in the ballot paper should be in the following order:- 1. Candidates of recognised national parties. 2. Candidates of recognised state parties. 3. Candidates of registered parties. 4. Independent. Bar & Bench (www.barandbench.com)

4.4 The Committee also considered the proposal that there should be a separate deposit by each of the proposer or a bond to be executed by him if the contest is by an independent candidate or a candidate set up by a registered party. However, the Committee does not favour the acceptance of this proposal. 4.5 The Committee does not also favour the proposal to prevent agents of independent candidates and candidates set up by registered parties from attending to the duties as polling agents and counting agents as it would be very harsh to do so. 5. (a) Regulation of functioning of political parties: (b) Compulsory maintenance of account of election expenses by political parties and audit thereof: (c) Submission of Annual Returns bv political parties: (d) Enforcement of observance by political parties of requirements: 5.1 The Committee discussed in details all aspects of the matters referred to above with reference to the Notes on the subject as contained in sub-items Nos. 8 to 10. It is found that there is no unanimity of views among the members of the Committee. While a few members want regulation of functioning of political parties as it is the best way to ensure internal democracy and also compulsory audit of account of political parties, some others are not in favour of such a proposal because of practical difficulties. 5.2 It has been brought to the notice that even though making a law regulating the functioning of political parties would be controversial one, it could be considered whether the Election Commission should be asked to make suitable provisions in the Symbols Order to the limited effect that if a party does not observe the provisions of its constitution in regard to holding of periodical elections to its various organs, the Election Commission should have the power to withhold the allotment of symbols to the candidates set up by that party till such time the requirements are fulfilled by the party. Majority of the members do not favour this approach. 6. Statutory backing for model code of conduct: 6.1 The Committee considered the various items in Part VII, Party in Power, in the present Model Code of Conduct evolved by the Election Commission. 6.2 The Committee is of the view that only such of the provisions of the Model Code as are vital and important in nature should be brought under the Statute. The Committee feels that to make any violation of the Model Code by Ministers and others as a corrupt practice would result in penalizing the contesting candidate who might not have any part to play Bar & Bench (www.barandbench.com)

88 in regard to such violation. However, the Committee agrees that the items enumerated in para 11.6 of the Notes should be brought under the Statute as an electoral offence instead of corrupt practice. 6.3 The following are the items, which according to the Committee, should be brought within the ambit of the proposed electoral offence:- (a) Combining of official visit with work relating to elections or making use of official machinery or personnel in connection with any such work; (b) Using Government transport, including official aircrafts, vehicles, machinery & personnel in connection with any work relating to elections; (c) restricting or monopolizing the use of public places for holding election meetings or use of helipads for air flights in connection with any work relating to elections; (d) restricting or monopolizing the use of rest houses, dak-bungalows or other Government accommodation or the use of such accommodation (including premises appertaining thereto) as a campaign office or for holding any public meeting for the purposes of election propaganda; (e) issuing of advertisements at the cost of public exchequer in the newspapers and other media; (f) using official news media for partisan coverage of political news and publicity of achievements with a view to furthering the prospects of any party or candidate; (g) announcing or sanctioning of any financial grants in any form or making payments out of discretionary funds; (h) laying of foundation stones of projects or the inauguration of schemes of any kind or the making of any promises of construction of roads or the provision of any facilities; (i) making of any ad hoc appointments in Government or public undertakings during the election period for the furtherance of the prospects of any party or candidate; (j) entering any polling station or place of counting by a Minister except in his capacity as a candidate or as a voter or as an authorized agent; (k) ban on transfer of officers and staff specified in section 28A when election is in prospect. REFERENCE SOURCE 1. Minutes of the Meeting of the Committee dated 8th March, 1990. 2. Minutes of the Meeting of the Committee dated 31 st March, 1990. 3. Minutes of the Meeting of the Committee dated 2nd April, 1990. 4. Notes on Subjects - Part I - Chapter V - Political Parties and Candidates. 5. Opinion of Attorney-General on the subject of containing non-serious candidates dated 30th March, 1990. Bar & Bench (www.barandbench.com)

CHAPTER VI: CONDUCT OF POLL 1. Constitution of Indian Election Service The Committee considered in some detail the proposal of the Election Commission recommending the constitution of Indian Election Service. However, the Committee feels that there is no need for such a service to be constituted. 2. Ban on transfer of offices connected with elections The Committee accepts the proposal for legal provision for imposing ban on transfer of civil and police officers connected with elections for a specific period. The Committee recommends accordingly that the law should be suitably amended. 3. Statutory status of Commission's observers 3.1 The Committee accepts the suggestion to clothe the Commission's observers at elections with statutory powers. 3.2 The Committee desires that the law should spell out their specific role like the power to stop (1) the poll for specified reasons; (2) the counting and (3) the declaration of the result. The Committee further suggests that in all these cases, the matter should be referred to the Election Commission for final decision. 3.3 The Committee also agrees that there could be a general provision in the proposed law to the effect that an observer may be assigned such other functions as may be entrusted to him by the Election Commission, as in the case of a District Election Officer. 4. Role of Voluntary organizations The Committee does not favour the proposal to give statutory recognition to the role of voluntary organizations and constitution of a Political Council or Election Council in regard to the conduct of free and fair elections. The Committee feels that the Election Commission itself could afford under its general powers, such facilities as it finds proper and necessary. 5. Use of Electronic Voting Machines 5.1 The Committee considered the proposal for the use of electronic voting machines at elections. It feels that the machines should be tested by technological experts with a view to remove any doubts or misapprehensions in the minds of the public with regard to the credibility of the working of the machines. The Committee discussed further the matter on 30th March, 1990 and 31st March, 1990. The technological experts from the Electronic Corporation of India Limited, Hyderabad and of the Department of Electronics have demonstrated the working of the machine on those days. Bar & Bench (www.barandbench.com)

5.2 The members have been prima facie satisfied that the electronic voting machines are free from the drawbacks alleged on the eve of the last general election to Lok Sabha held in 1989. Still the Committee desired that a clearance from technological experts to the effect that the doubts and misapprehensions entertained about the credibility of the working of the machines are not well founded, should be obtained. High level technological experts were commissioned by the Electronics Department of the Government of India to go into the question of all aspects of the working of the machines especially from the points of view of its credibility and intarnperability. This team of technological experts, after through probe into the matter has given clearance certifying that the machines could be used at our elections. 5.3 The Committee desires that the electronic voting machines should be put to use at all future bye-elections and general elections to Lok Sabha, Assemblies and also Panchayats and Local Bodies elections with a view to educating the electors in all parts of the country and familiarising them with the working of the machines. 5.4 The Committee further desires that intensive training programme of polling personnel at all levels should also be arranged. 5.5 The Secretary of the Electronics Department, Shri Rajamani who was also present at the meeting on 31st March, 1990 to assist the members of the Committee in the matter, has been requested to get the Electronic Voting Machines tested by a team of technological experts to be identified by his Department. He has been further instructed to take urgent steps in this behalf. 6. Provision of an electronic device to record particulars of electors as in the photo identitv card as a safeguard against booth capturing etc. 6.1 Shri Kishore Chandra Deo, one of the members, has suggested that the possibility of providing a suitable separate gadget or device or in the electronic voting machine itself to record essential particulars of an elector with his coded numbers as contained in multi-purpose identity card should be explored so as to provide for a fool proof measure to safeguard against booth capturing and impersonation. At the time of the poll, each elector should produce his multi- purpose identity card which should be fed into this machine to record his essential particulars. According to him, the system would be foolproof because each elector should produce individually his identity card at the time of his identification and it would not therefore be possible for booth capturers or impersonators to procure in bulk such multi-purpose identity cards. Bar & Bench (www.barandbench.com)

6.2 The Committee considered the suggestion of Shri Kishore Chandra Deo and instructed the technologists of the Electronics Corporation of India who were present for the demonstration of the voting machine to apply their mind to all aspects of the matter and send their feasibility report quickly. 7. Set up of mobile polling stations: 7.1 The Committee considered the proposal regarding set up of mobile polling stations as detailed in the Notes. 7.2 It has been explained that the set-up of mobile polling stations would mostly be with a view to enabling weaker sections of electorate who run the risk of being prevented from travelling a long distance to a polling station to exercise their votes near their area of residence. In other words, mobile polling stations would take the place of auxiliary polling stations, which are being set up at present in a limited way to enable weaker sections to exercise their votes freely near their residence. 7.3 The members want such mobile polling stations (vans) to be used only as auxiliary polling stations and it should be stationed for the full polling period. It should also be well protected with adequate police force. 7.4 The Committee also took note of that set up of such auxiliary polling stations does not require amendment of law as the Election Commission could, by executive administrative instructions, achieve the object. 8. Steps to eradicate booth capturing rigging intimidation etc. 8.1 The fact that the Committee is exercised over the problems of booth capturing which seriously affect a free and fair election is clear from the detailed discussions on the topic among the members and consideration of various measures to tackle the problems. 8.2 The Committee not only considered the Notes on the subject put up for consideration but also the additional Notes prepared on the advice of Shri L.P. Singh, one of the members of the Committee. 8.3 The Committee took note of that the law has been specifically amended in 1988 with a view to dealing with the menace of booth capturing. The amendments introduced in 1988 are as follows:- (i) Insertion of a new provision, as section 58A of the Representation of the People Act, 1951 (adjourment of poll or countermanding of election on the ground of booth capturing); (ii) Insertion of a new clause (8) in section 123 to make booth capturing as a corrupt practice; and (iii) Insertion of new section 135-A to make the offence of booth capturing as an electoral offence. Bar & Bench (www.barandbench.com)

8.4 The Committee feels that in spite of these amendments, the situation does not improve in any way. On the other hand, it has been found that cases of booth capturing were assuming alarming proportions at the recent general elections to Lok Sabha and to a number of State Legislative Assemblies held in 1989 and 1990. The Committee also feels that the new provisions are suffering from serious drawbacks making the provisions ineffective in operation. They therefore proved to be inadequate. 8.5 The Committee notices the following drawbacks:- (i) Under section 58A of the Act, the Election Commission is required to be guided only by the report of the Returning Officer in the matter of deciding whether booth capturing has taken place or not. It provides a scope for misuse of power by the Returning Officer if he intentionally fails to report to the Commission the actual position. (ii) Under section 58A of the Act, if the Commission is satisfied that a large number of polling stations are involved in booth capturing, it is left with the only choice under the law to countermand the election and order a fresh election and not the option of only ordering repoll in the entire constituency. (iii) The electoral offence under section 135 A is not specifically made a cognizable offence. (iv) The punishment for the commission of the offence of booth capturing is only imprisonment for not less than one year which may extend to three years whereas the seriousness of the offence calls for a more stringent punishment. (v) Acts of 'coercion' and 'intimidation' or 'any form of direct or indirect threat' or 'any interference with the free exercise of the recording of the votes' which are also the species of booth capturing have not been brought within the ambit o f section 1 35A of the act. (vi) There are no enabling provisions at present for the investigation of the cases of booth capturing at the instance of the Election Commission through the Central or State police investigation agency; for the establishment of special courts; and for appointment of public prosecutors. In the absence of such a power, the Election Commission is unable to play its legitimate role of conducting a free and fair poll and deal with effectively the violation of the law. 8.6 After detailed discussion, the Committee recommends that- (i) Section 58A of the Act should be s o amended as to enable the Election Commission to take a decision regarding booth capturing not only on the report of the Returning Officer but even otherwise. In this context , the Committee feels that the expression "otherwise" used in Bar & Bench (www.barandbench.com)

Article 356 of the Constitution (provision in case of failure of constitutional machinery in States) should provide a useful guidance. (ii) Under section 58A of the Act, the Election Commission should not only be empowered to countermand the election and order a fresh election as now provided under the law, but also empowered to declare the earlier poll to be void and order only a repoll in the entire constituency depending on the nature and seriousness of each case . (iii) It is essential that an enabling provision should be incorporated in the law empowering the Election Commission to locate (1) an investigation agency; State or Central; (2) a prosecuting agency ; (3) constitution of special courts wherever necessary. It is not necessary to bind in any way specifically the ECI in regard to these matters. (iv) The suggestion of Shri R.K. Trivedi, Former Chief Election Commissioner in his report and of Shri Rajaji that the State Government should function as a caretaker Government during the period of elections is not been favoured. (v) The suggestion that the formation of voluntary organizations should be encouraged to oversee the conduct of the poll in every constituency is also not favoured. (vi) The proposal to make the electoral offence of booth capturing as a cognizable offence with a stringent punishment is accepted. (This aspect is also being with dealt below). (vii) The proposals that there should be a strict enforcement of standing instructions of the Commission regarding surrender of arms, apprehensions of bad elements etc. and that for this purpose a statutory recognition should be given to the issue of standing instructions by the ECI by insertion of a suitable enabling provision in the Act, are accepted. (viii) The suggestions that there should be proper coordination between State and Central Police Forces and deployment of Central Forces for election duty at polling stations wherever found necessary are accepted. The Committee desires that the Election Commission should be asked to examine further the matter for taking concrete steps in that behalf. (ix) The suggestion for deployment of planning and supervisory machinery in the constituencies to oversee the arrangements over and above the existing arrangements under the existing instructions of the Commission is found to be neither feasible nor necessary. 9. Time Limit for holding by-elections 9.1 The Committee took note of the reasons for the delay in holding bye- elections as explained in the Notes. 9.2 In this context, the Committee examined the proposal as contained in the Notes that a bye-election should be held within three months of Bar & Bench (www.barandbench.com)

94 the vacancy with the rider that if the vacancy has arisen within six months prior to a general election normally due, it would not be necessary to fill the vacancy. 9.3 The consensus among members is that a bye-election should be held within six months of the occurrence of the vacancy as against the proposal of three months provided that bye-election to fill a vacancy need not be held if a general election is normally due within one year from the date of the occurrence of the vacancy. 10. Power to order repoll 10.1 The Committee has already recommended that the Election Commission should enjoy a statutory power in cases of booth capturing either to countermand the election after declaring the election held to be void or order a repoll in the entire constituency (vide sub-item 5 - Steps to eradicate booth capturing, rigging, intimidation etc.). It has also decided to recommend that the Election Commission should be enabled to act not only on the basis of a report from the Returning Officer but also otherwise on basis of all material circumstances brought before it. 10.2 Incidentally, the Committee feels that the Regional Commissioners and observers appointed by the Commission or any other supervisory officers employed by the Commission at elections, should have the power under the law to order the deferring of counting or declaration of the result pending decision of Commission on their report regarding the facts submitted to the Commission. 11. Reasons for low polling and remedial measures. 11.1 The Committee discussed at length the matter analysing the reasons for low polling and about the remedial measures that would be required to set right the matter. 11.2 Incidentally, one of the members observed that where there has been a low percentage of voting, say 20 percent, it might be on account of threats given to the electorate not to participate at elections as has happened in the recent past. In such a case, he felt that there should be a repoll in the entire constituency for the reason that there has been no free and fair poll reflecting fully the verdict of the constituency. 11.3 On the other hand, some other members have felt that a winning candidate who might not have any connection in issuing such threats resulting in low polling, should not be deprived of his success. In these circumstances, the Committee feels that the matter need not be pursued. 11.4 One of the members feels chat the only effective remedy for low percentage of voting is to introduce system of compulsory voting as in Australia. The Committee does not however favour the suggestion because of practical difficulties involved in its implementation. Bar & Bench (www.barandbench.com)

11.5 Some members feel that the procedure followed now in regard to postal ballot paper facilities is most unsatisfactory as many of the persons who are entitled to such facility are not actually benefitted. In many cases, the facility remains only in paper. 11.6 The Committee feels strongly that there should be a close examination of the present procedure to remove the drawbacks and make the facility of postal ballot really meaningful. 11.7 One member observed that persons employed as drivers, workers etc. of transport vehicles used by candidates should also be made eligible for postal ballot paper facility. 11.8 The Committee recommends that the ECI should look into this aspect and make these categories of persons to be entitled to the facility of postal ballot paper by treating them to be on election duty under law. 11.9 The Committee has examined the Notes in paragraphs 8.6 to 8.8 regarding the existing system of voting by postal ballot paper followed in the case of army personnel, persons employed in diplomatic service, personnel of para-military force, etc. 11.10 The Committee agrees that as explained in the Notes, the present facility of voting by postal ballot paper in these cases has not served any useful purpose for the reason that there are many practical difficulties in ensuring that the dispatch of postal ballot papers to these categories of persons and return of those papers to the Returning Officers concerned in time after voting according to the time schedule could not be followed. 11.11 The Committee accepts the proposal that the army personnel, persons outside India in diplomatic services, and also persons belonging to para-military forces, etc. should enjoy the facility of voting at elections through proxy. 11.12 In this context, Committee wants that the system of voting by proxy as followed in the UK should be studied quickly for adoption in our country by suitable amendment to the law and procedure. 12. Countermandin g of poll on death of candidates. 12.1 The Committee examined the Notes on this item and also took note of similar provisions in 1985 Ordinance issued in the case of last general election to the Punjab Legislative Assembly in 1985. The Committee agrees that the law should be amended so as to provide to the effect that only if a candidate set up by recognised political party dies, the election should be countermanded and not otherwise. 12.2 Incidentally, one member observed that the present provision under section 52 dealing with cases of countermanding of election on the death of a candidate seems to be defective and also confusing. In this context, it has been brought to notice of the Committee that recommendations of Bar & Bench (www.barandbench.com)

Shri S.P. Sen Verma, a Former CEC, contained in his Report on 1968-69 elections suggesting specifically the lines on which section 52 of the Act should be amended to remove any scope for doubt. 12.3 The Committee accepts the lines of amendment to section 52 of the Act as suggested by Shri S.P. Sen Verrna except that the outer limit for countermanding the poll should be the death of a candidate 'before the commencement of the poll' and not "declaration of the result" as proposed by Shri S.P. Sen Verma. 13. Term of Rajya Sabha and holding of biennial elections. 13.1 Committee took note of suggestion in the Notes on the subject. 13.2 The Committee feels that though the retirement of members of Rajya Sabha elected from different States on completion of their term, is not uniform and that the cycle of retirement on the same day has been broken, it is not necessary to make the amendment to law as proposed to bring into effect one single day of retirement in all cases. 13.3 The Committee feels that such a course would unnecessarily curtail and interfere with the term of members of the Rajya Sabha. 14. Qualification for elections to Rajva Sabha and requirement as to number of proposers: 14.1 One member observed that the present requirement for contesting election to Rajya Sabha that the candidate should be an elector in the State from which he seeks such election, is being generally misused. He therefore felt that as in the case of elections to Lok Sabha the requirement for contesting at elections to Rajya Sabha should be that the person must be an elector in any parliamentary constituency in India. 14.2 However, the Committee finds that there is no unanimity of views among the members on this suggestion. 14.3 The Committee examined the requirement as contained in section 39 of the RPA that a nomination filed in connection with an election to Rajya Sabha should be proposed by ten proposers and the additional notes on the subject circulated to members. The Committee feels that this requirement of ten proposers would create practical difficulties for smaller parties to muster the required number of proposers. 14.4 Accordingly, the Committee recommends that section 39 should be so amended as to lay down that a nomination paper in connection with an election to Rajya Sabha and Legislative Council by members of Legislative Assembly may require only one proposer& one seconder. REFERENCE SOURCE 1. Minutes of the Meeting of the Committee dated 8th March, 1990. 2. Minutes of the Meeting of the Committee dated 30-31 March, 1990. 3. Minutes of the Meeting of the Committee dated 2nd April, 1990. Bar & Bench (www.barandbench.com)

4. Notes on Subjects-Part I (Chapter VI - Conduct of PoIl). 5. Note on requirements of ten proposers for Rajya Sabha elections. 6. Note containing the recommendations of the National Seminar on "Elections and role of law enforcement" at Hyderabad - Category III). 7. Note on offences of Booth capturing. 8. Report of the Technological Experts team on the use of EVM. CHAPTER-VII: ELECTION EXPENSES 1. Fixing reasonable ceiling on rational basis. 1.1 The Committee examined the suggestions contained in paragraph 7.5 of the Notes and feels that the law should lay down provisions enabling the ECI to revise the ceilings of election expenditure on the eve of every general election to Lok Sabha and Assembly of a State. 1.2 Accordingly, the Committee recommends that section 77(3) of the Act should be amended empowering the ECI to lay down the ceilings instead of Government notifying as at present the maximum election expenditure under the Rules in consultation with the Election Commission. 2. Accounting of election expenses. 2.1 The Committee examined the proposals contained in paragraph 3:2 of the Notes on the subject. The consensus is that the law relating to accounting of election expenses should be restored at least to the position that existed prior to 1974 and that many of the destortions should be removed. 2.2 In this context, the Committee feels that by bringing the expenses incurred by "any other person"within the purview of section 77, it would provide scope for the third person to misuse the provision to vitiate the election of the candidate without the expenditure being in the knowledge of the candidate or his election agent. The Committee therefore desires that the expression "or any other person" in the proposed section 77, should not be used. 2.3 The Committee also feels that the use of the words "whether before, during or after an election" should be deleted from proposed amendment. 2.4 The Committee is of the view that the period of accounting should be between the date of notification of the election and the date of declaration of the result of the election. 2.5 The Committee also favours the deletion of Explanations to Section 77 and the proviso, which have made inroads into the provisions of the law making it ineffective. 2.6 The Committee is not also in favour of the candidate furnishing a declaration in the prescribed form of affidavit with an oath sworn before a judicial magistrate or oath commissioner owning responsibility for the Bar & Bench (www.barandbench.com)

98 correct and true account of the election expenditure even though such a provision existed in the past. 2.7 In this context, Committee feels that the present system of giving simple declaration in return of election expenses would be sufficient. 2.8 The Committee also agrees that any unauthorized expenditure incurred by any person other than the candidate or his election agent should be prohibited and treated as an electoral offence and that such an offence should be made punishable with imprisonment for a period of not less than one year in addition to fine. 2.9 Keeping the above points in view, the Committee feels that the amendment to section 77(1) should be on the following lines: "(1) All expenditure incurred or authorised either by the candidate or his election agent on account of or in respect of the conduct or management of the election shall be required to be included in the account of election expenditure of the candidate". 2.10 The Committee also feels that failure to keep an election account which is already a penal offence under section 171-F, IPC should be made more stringent by providing for imprisonment of at least six months in addition to fine. 2.11 The Committee also recommends that submission of false account should be an electoral offence and the minimum punishment for violation of this provision should be two years imprisonment. 2.12 Committee observes that the notes circulated by Era Sezhiyan analysing provisions of the U.K. Act relating to election expenses should be kept in view before formal amendments are drawn up. 3. Regulation or ban of donations by companies 3.1 The Committee examines the Notes on the subject and also the additional notes by Shri L.P. Singh. 3.2 After discussion, the Committee feels that there should be a complete ban on donations by companies and relevant law should be amended. 3.3 Shri L.P. Singh has observed that though he would agree with the proposal still there would be scope for substantial clandestine contributions to political parties under the table through the contractors of the companies though not directly by the companies and this aspect should also be examined to tighten the law. The Committee wants this aspect should also be kept in view in formulating the provisions so that no loophole is left.

REFERENCE SOURCES 1. Minutes of the Meeting of the Committee dated 31st March, 1990. 2. Minutes of the Meeting of the Committee dated 2nd April, 1990. Bar & Bench (www.barandbench.com)

3. Notes on Subjects - Part - I (Chapter VII - Election Expenses). 4. Notes by Shri Era Sezhiyan on U.K. Law on election expenses. 5. Note on Contributions by companies to political parties by LP Singh CHAPTER – VIII: State Funding of Elections 1. Fixation of ceiling of State Assistance 1.1 The Committee has discussed on 2nd April and 11th April, 1990 the proposals and points contained in the Notes on the subject. 1.2 The Committee is of the view that State assistance only in kind and not in cash should be extended. 1.3 While members generally agree on principle that State assistance could be extended in respect of the various items enumerated in the Notes, the Committee feels that it would be very difficult to prohibit or contain private expenditure on various items listed in the notes. 1.4 After some discussion, the Committee feels that to start with, only in respect of three or four items out of the various items listed in the Notes, State Assistance should be provided. 1.5 Committee recommends State assistance in kind in respect of - (1) Provision of prescribed quantity of fuel or petrol to vehicles used by candidates; (2) Supply of additional copies of electoral rolls; (3) Payment of hire charges for prescribed number of microphones used by candidates; (4) Distribution of voters' identity slips now being done by contesting candidates should be exclusively undertaken by electoral machinery and all candidates should be prohibited from issuing such slips. 1.6 The details of the manner and mode of State assistance in the above areas and its implementation should be left to the Election Commission to work out. The Committee further feels that only minimum enabling provisions should be included in the law. 2. Eligibility of State assistance - candidates of political parties and independents. 2.1 The Committee recommends that State assistance in respect of the above items should be extended only to candidates set up recognized political parties. 2.2 The Committee also recommends that the Independent candidates and candidates set up by registered parties need not be made eligible for State assistance. 3. Restriction of private expenses on items made eligible for State assistance The Committee is of the view that, as pointed above, except in the case of distribution of Voters' identity slips which should be taken over by Bar & Bench (www.barandbench.com)

100 electoral machinery prohibiting completely all the candidates from issuing such slips, there need not be any ban on private expenditure in respect of other items proposed for State assistance. 4.Financial Assistance to political parties on annual basis The Committee is not in favour of financial assistance as proposed. REFERENCE SOURCE 1. Minutes of the Meeting of the Committee dated 2nd April. 1990. 2. Minutes of the Meeting of the Committee dated 11th April, 1990. 3. Notes on Subjects-Part I (Chapter VIII-State Funding of Elections). CHAPTER-IX : ELECTION DISPUTES AND ELECTORAL OFFENCES 1. Steps for expeditious disposal of election petitions and appeals. 1.1 The Committee discussed the proposal as contained in the Notes on the subject. 1.2 The Committee has agreed with the proposal for the appointment of adequate number of ad hoc judges who would relieve the regular judges from their normal duty for the purpose of entrusting to them the trial of election petitions. 1.3 The Committee does not however favour the proposal as contained in the Notes for appointment of commissions under the jurisdiction of the High Court for the purpose of taking evidence of witnesses and placing the recorded evidence before the High Court for further trial of election petition on questions of law and fact. 1.4 The Committee feels also that there is no need for the amendment of law as proposed for substitution of a person as a petitioner in the event of petitioner himself resorting to non-prosecution of the petition. 2. Stringent penal provisions against electoral offences. 2.1 The Committee discussed the various proposals on this subject at the meetings held on 2nd April, 1990 and 11th April, 1990. The views and recommendations of the Committee are as follows:- (a) Section 126 - Prohibition of public meeting on the dav preceding election day and on the election dav. 2.2 The Committee is not in favour of the proposal of the Seminar conducted by the National Police Academy, Hyderabad, to extend the prohibition to 72 hours ending with the hour fixed for the conclusion of the poll in any election. It is of the view that the present prohibition of 48 hours is adequate. 2.3 The Committee took note of that the present prohibition is only in respect of public meetings. Secondly, the punishment for contravention of provision is only fine which may extend to Rs.250/-. 2.4 After considering the Report of the Joint Parliamentary Committee of 1972 and the draft Bill appended thereto, the Committee has agreed to Bar & Bench (www.barandbench.com)

101 expand the provision of section 126 as recommended in the said draft Bill. (b) Section 127 - Disturbance at election meeting: The Committee approves the suggestion that the imprisonment for the violation of the provision should be for six months or fine of Rs.2,OOO/- or with both. (c) Section 127-A - Restrictions on printing of pamphlets, posters. etc. The Committee agrees that the provisions should be more stringent for violation of the restriction on printing of pamphlets, posters, etc. Accordingly, it recommends that section 127-A should be amended to increase the imprisonment to two years from six months (d) Section 129 - Officers etc. at elections not to act for candidates or to influence voting: Section 130 - Prohibition of canvassing in or near polling stations: Section 131 - Penalty for disorderlv conduct near polling stations: Section 132 - Penalty for misconduct at the polling stations: Section 134 - Breach of official dutv in connection with elections: Section 135 - Removal of ballot papers from the polling stations to be an offence: The Committee recommends that penal provisions in all these sections should be examined further to make them more stringent. (e) Section 133 - Penalty for illegal hiring or procuring of vehicles and conveyance at elections: The Committee considered the recommendations of the Joint Parliamentary Committee of 1972. It feels that the amendment to section 133 should be on the lines suggested in the Bill appended to the Report of the Joint Parliamentary Committee of 1972; that the punishment for the violation should be six months imprisonment with fine; and that the offence should also be made cognizable. (f) Section 134 A - Penalty for Government servants acting as election agents, polling agent or counting agent: The Committee considered the Report of the Joint Parliamentary Committee of 1972 suggesting that the persons working in any local authority should also be brought within the ambit of this section. The Committee, however, does not agree with this proposal on account of practical difficulties. (g) Section 135 - Removal of ballot papers from the polling stations to be an offence: (l) The Committee considered the report of the Joint Parliamentary Committee of 1972 and the Bill appended thereto suggesting the Bar & Bench (www.barandbench.com)

102 inclusion of the expression" force or violence or show of force or violence" in regard to the ballot papers being taken out of the polling stations. (2) The Committee feels that it would be sufficient if a simple expression "takes away the ballot paper or attempts to take away the ballot paper out of polling station" is inserted in the law. (3) The Committee feels that the imprisonment for violation_of this offence should be one year. 3. New Electoral offences The Committee examined the following items for the purpose of incorporating new electoral offences and further strengthening the law. (a) Personation (Impersonation). The Committee took note of that at present it is only an offence under the Indian Penal Code (vide Chapter IXA - Offence relating to Elections - section 171 D). The Committee after considering the Report of the Joint Parliamentary Committee of 1972, recommends that impersonation should be made an electoral offence under the Representation of the People Act, 1951 and should also be made more stringent by providing for punishment of imprisonment which may extend to three years or with fine or with both. The Committee further recommends that the offence should be made a cognizable offence. (b) Use of vehicles for convevance at elections: The Committee accepts the recommendation of the Joint Parliamentary Committee of 1972 in this regard to make this offence as an electoral offence and suggests that the provisions should be made on the lines of the Bill appended to the Report of the Committee (vide section 133A). (c) Ban on playing of mechanically propelled vehicles on poll day: (1) While the Committee agrees to the imposition of complete ban on mechanically propelled vehicles like lorries, tractors with trailers, buses, taxies, auto-rickshaws etc., it does not favour the imposition of any ban on owner driven cars and public transport buses which should be exempted from the ban. (2) The Committee also accepts that the punishment for violation of this ban should be two years and the offence should be made cognizable. (3) The Committee also accepts the suggestion that in suitable cases licences of the vehicles should be cancelled and the vehicle itself could be confiscated. (4) The Committee feels that the matter should be left to the Election Commission to work out the full details and that the parliamentary law should only provide for simple enabling provision. (d) Prohibition of going armed to or near a polling station on poll day. Bar & Bench (www.barandbench.com)

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(1) The Committee agrees to the insertion of a new penal provision banning carrying of firearms and lethal weapons on the poll day and treating the violation thereof as an electoral offence. (2) The Committee approves that imprisonment for violation of this electoral offence should be two years. The offence should be made cognizable. (3) The Committee also recommends that arms found with guilty persons should be confiscated and the licence cancelled where such licence had been issued. (e) Ban on sale and distribution of liQuor and other intoxicated drinks: (1) The Committee considered the proposal of the Joint Parliamentary Committee of 1972 and the provisions of the Bill appended thereto. (2) The Committee feels that the provisions in the said Bill should be adopted and the punishment for contravention should be six months imprisonment and fine of Rs.2,OOO/-. (3) The Committee also feels that the quantity of liquor found in the possession of the person in contravention of the penal provision should also be confiscated. (4) The Committee agrees with the suggestion of a member that the expression 'consumption of liquor' should not be used in the penal provisions. (f) Lodging of false account of election expenses: (1) The Committee has already approved the inclusion of this rlew electoral offence. The Committee suggests that for contravention of this provision, the imprisonment should be for two years. (2) The Committee feels that because of the nature of the offence, it should not be made cognizable. (g) Violation of Model Code (1) Committee has already approved insertion of new electoral offence. (2) Committee recommends that the punishment for contravention of this provision should be for two years and the offence need not be cognizable. (h) Grant of paid holiday to employees on the day of poll (1) The Committee approves the proposal of the grant of paid holiday to employees in any business, trade, industrial undertaking or any other establishment on the day of poll as contained in the Report of the Joint Pariiamenrary Committee of 1972 and the Bill appended thereto (vide section 135 A). (2) The Committee recommends that for contravention of this provision the person should be fined Rs.500/- as against Rs.50/- as proposed by the Joint Parliamentary Committee. 4. Strengthening of statutory provisions relating to disqualification: Bar & Bench (www.barandbench.com)

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(1) The Committee considered the proposal of the Chief Election Commissioner to bring persons convicted under the Prevention of Insults to National Honour Act, 1971 under disqualification provisions by making it for six years. The Committee accepts this proposal. 3.2 However, the Committee has not favoured the suggestion to disqualify persons found guilty of moral turpitude or persons detained under the National Security Act whose detention had been approved by a judicial Advisory Committee. REFERENCE SOURCES 1. Minutes of the Meeting of the Committee dated 2nd April, 1990. 2. Minutes of the Meeting of the Committee dated 11th April, 1990. 3. Notes on Subject-Part I (Ch. IX-Election Disputes & Electoral Offences) 4. Note containing the recommendations of the Seminar on "Elections and role of law enforcement" at Hyderabad (Category III). Reference Source 1. The minutes of the Meeting of the Committee dated 11th April 1990. 2. Notes on the Subject- Part I (Chapter X. Anti-Defection Law). Chapter - X : Anti-Defection Law 1.1 The Committee examined the proposals in the Notes on the subject. 1.2 Shri H.K.L. Bhagat, M.P.(lndian National Congress), is strongly opposed to any change in the present law relating to anti-defection as, according him, such changes would dilute the provisions. 1.3 Other members are unanimously of the view that the three important changes as proposed in the Notes should be accepted. 1.4 Committee has accordingly recommended that the Anti-Defection Law (Tenth Schedule) should be changed in the following respects:- 1. Disqualification provisions should be made specifically limited to cases of (a) voluntarily giving up by an elected member of his membership of the political party; and (b) voting or absentent from voting by a member contrary to his party direction or whip only in respect of a motion of vote of confidence or a motion amounting to no-confidence or Money Bill or motion of vote of thanks to the President's address. 2. The power of deciding the legal issue of disqualification should not be left to the Speaker or Chairman of the House but to the President or the Governor, as the case may be, who shall act on the advice of the Election Commission, to whom the question should be referred for determination as in the case of any other post-election disqualification of a Member. 3. The nominated members of the House concerned should incur disqualification if he joins any political party at any period of time. CHAPTER-XI: OFFICE OF PROFIT Bar & Bench (www.barandbench.com)

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1.1 The Committee took note of the drawbacks in the present position of giving blanket power of exemption to the legislatures in regard to disqualification of a member for holding office of profit, as pointed out in the Notes. However, the Committee is of the view that the suggestion that the Committee of Parliament of Office of Profit should decide the procedure for laying down stringent guiding principles for exempting the offices from the purview of inhibiting provisions of the Constitution, would not be acceptable to States as it infringed upon State subjects. 1.2 Consequently, the Committee desires that the Law Ministry should do an exercise in the matter for the preparation of a Model Bill for circulation and adoption by the various State Governments. REFERENCE SOURCE 1. Minutes of the Meeting of the Committee dated 11th April 1990. 2. Notes on the subject - Part - I (Chapter XI - Office of Profit CHAPTER – XII: ELECTORAL SYSTEMS - EXAMINATION 1. Proposal for change of system of elections 1.1 The Committee observed that there is no unanimity in regard to this matter. Some members totally opposed the proposal for any change in the present system while others desired a change over to Proportional Representation System. 2. Constitution of Expert Committee to examine electoral system. 2.1 In view of the sharp difference of opinion in the matter, the Committee and Election feels that it should only recommend that the subject of change of the present Commission electoral system should be examined by an expert committee. Accordingly, it to examine recommends to the Law Ministry and the Election Commission that the matter constitution relating to change of the present electoral system should be pursued and that if , of Expert necessary an Expert Committee should be constituted for the purpose. REFERENCE SOURCE 1. Minutes of the Meeting of the Committee dated 11th April, 1990. 2. Notes on the Subject - Part 11 - (Electoral Systems - Examination). CHAPTER - XIII: Miscellaneous 1. Shri Dinesh Goswami, Law Minister and Chairman of the Committee, wrote on 28th December 1989, to all Members of Parliament and some other eminent persons furnishing them with the broad outlines of electoral reforms to be considered by the Committee and seeking their views on them. 1.2 In response to this letter, many Members of Parliament and other eminent persons and organizations sent their comments and views. Bar & Bench (www.barandbench.com)

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1.3 A compilation of these comments and views in brief has been prepared and placed before the Committee for its consideration. 1.4 The Committee finds that many of the suggestions either directly or indirectly have already been taken note of in the Notes prepared for the consideration of the Committee and in fact examined by the Committee. The Committee however finds that a very large number of suggestions and views fall outside the scope of the Committee's task as outlined by the Prime Minister in his concluding remarks at the meeting of the political parties held on 9th January, 1990 and subsequent decisions of the Committee outlining the important items to be taken up for its consideration. 1.5 At the meeting of the Committee held on 11th April, 1990, one member suggested that as the electoral reforms is a continuous process, a Standing Committee of Parliament should be constituted to go into all electoral matters from time to time. 1.6 The Committee accepts this suggestion and requests the Ministry of Law, Legislative Department, to take necessary steps in this direction. 1.7 The Committee is gratified to note that there exists near unanimity or broad consensus among members in arriving at definite conclusions on majority of items discussed by the Committee. It is no doubt true that during discussions, Shri H.K.L. Bhagat, M.P. (Indian National Congress), time and again, made it clear that he was not in a position to commit his party to any definite views on the various items of the Subject and that his party would consider the various points on their merits as and when the Government brought forward legislation in the parliament. 1.8 The Committee has made sincere efforts in discussing the whole range of electoral reforms and succeeded in arriving at broad consensus in respect of the most of the items. Though it found that there were divergence of views among members in respect of some of the important and vital areas like (1) Regulation of functioning of Political parties; (2) State funding of elections; (3) Change of present electoral system etc. it was because of the very nature of these controversial or contentious subjects which, at any time, bound to generate differences of perception and approach. Barring these few areas, it is really gratifying that all the members brought to bear an objective approach to the subject of electoral reforms and contributed towards the emergence of broad consensus or agreement on very many important and vital areas. 1.9 The Committee is conscious of the fact that any amount of tinkering with the law to remove drawbacks, defects and shortcomings of the law would not produce hundred per cent success. It is so because the election law does not concern only with any particular section or Bar & Bench (www.barandbench.com)

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specified small class of persons. It comprehends within its ambit the entire mass of millions of people and a very large number of political groupings with different ideologies and leanings. The success of any legislative measure in regard to election law and procedure therefore greatly depends on the proper working of, and adherence to, the system on the part of the electoral machinery at all levels, political parties and candidates and the electorate. The Committee only hopes that such a realization would be strengthened among all of them so that India could continue to be an oasis of democracy as pointed by the Supreme Court. 1.10 Keeping the above inhibiting factors in view, the Committee would be rest content with a recognition that the Committee has done its best with a view to injecting purity and furthering the prospects of free and fair elections. Reference Sources 1. The Minutes of the Meeting of the Committee dated 11.4.1990. 2. Compilation of the Comments and Views of Members of Parliament etc. in response to the letter of the Minister of Law and Justice in December, 1989. CHAPTER - XIV: SUMMARY OF RECOMMENDATIONS 1.1 The following is the summary of the recommendations of the Committee based on its conclusions as indicated in the earlier Chapters. 1.2 It is necessary to state here that though decisions indicated below have been arrived at on the basis of the consensus among majority of the members, the representative of the Indian National Congress, Shri H.K.L. Bhagat M.P. has made it clear, as stated earlier, that his party would consider the law as and when brought before the Parliament on its merits and that he would not like to express any definite views on any of the matters without ascertaining the views of his party. However, he expressed himself in favour of (1) reservation of seats for women and (2) introduction of the system of multi-purpose identity cards. 1.3 The following summary should therefore be taken as the broad consensus of the members of the Committee. CHAPTER-II: Electoral Machinery 1. Set up of multi-member Commission 1. The Election Commission should be a multi-member body with three members. 2. The Chief Election Commissioner should be appointed by the President in consultation with the Chief Justice of India and the Leader of the Opposition (and in case no Leader ot Opposition is available, the consultation should be with the Leader to the largest opposition group in the Lok Sabha). Bar & Bench (www.barandbench.com)

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3. The consultation process should have a statutory backing. 4. The appointment of other two Election Commissioners should be made in consultation with Chief Justice of India, the Leader of the Opposition ( in case no Leader of Opposition is available, the consultation should be with the Leader to the largest opposition group in the Lok Sabha) and the Chief Election Commissioner. 5. The appointment of Regional Commissioners for different zones is not favoured. Such appointments should be made only as and when necessary and not on a permanent footing. 2. Steps for securing independence of the Commission 6. The protection of salary and other allied matters relating to the Chief Election Commissioner and the Election Commissioners should be provided for in the Constitution itself on the analogy of the provisions in respect of the Chief Justice and Judges of the Supreme Court. Pending such measures being taken, a parliamentary law should be enacted. 7. The expenditure of the ECI should continue to be 'voted' as of now. 8. The Chief Election Commissioner and the Election Commissioners should be made ineligible not only for any appointment under the Government but also to any office including the office of Governor appointment to which is made by the President. 9. The tenure of the Chief Election Commissioner and other Election Commissioners should be for a term of five years or sixty-five years of age, whichever is later and they should in no case continue in office beyond sixty-five years and for more than ten years in all. 3. Setup of the Secretariat 10. The set up of the secretariat of the Commission should be on the lines of Article 98(2) of the Constitution relating to Lok Sabha Secretaria and till such provision is made, a law of Parliament should be enacted. 4. Set up of electoral machinery at State level 11 . The Chief Electoral Officers should exclusively be entrusted with the election work and not saddled with any other items of work. 12. There is no need for the creation of a supervisory agency for a group of districts as proposed by the Election Commission. 13. The provisions in section 28A of the Representation of the People Act, 1951 should be examined further with a view to provide for effective and complete control over the officers in all respects including framing of \ charges, lodging of prosecution and disciplinary proceedings against those officers for breach of duty during the period of his deputation to the Election Commission. 14. The transfer of officers connected with the election work should be effected only with the concurrence of the Election Commission. Bar & Bench (www.barandbench.com)

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5. Extension of jurisdiction of electoral machinery in relation to Panchayat Raj Institutions. 15. The question relating to extension of jurisdiction of electoral machinery in relation to elections to Panchayat Raj institutions should be taken up only after ascertaining the exact details of the contemplated legislative or constitutional measures. 6. Power of contempt in favour of Election Commission 16. The proposal for clothing the Election Commission with the power of contempt is not favoured. Chapter III Delimitation of Constituencies 17. There should be a fresh delimitation on the basis of 1981 census. 18. There should be rotation of seats reserved for SCs but the manner of achieving the object of rotation of seats should be left to the Delimitation Commission and the Parliamentary law to be made for the purpose. 19. Political parties should give larger representation to women candidates at election to the House of Parliament and State Legislatures by putting up more numbers of them at elections. 20. Any change of multiple of assembly seats is not favoured. Chapter - IV: Electoral Rolls 1. Steps for improving enrolment of all eligible names 21. Post offices should be the focal point for the preparation and maintenance of electoral rolls, up-to-date and up-keep of records. The Election Commission should fully discuss this matter with the Postal Board and the Census Commissioner. 22. Section 32 of the RPA, 1950 should be further strengthened so as to provide for more stringent punishment for breach of official duty in connection with the preparation, revision etc. of electoral rolls. 23. The punishment should be at least for 6 months as against only the imposition of fine as at present. 24. The Election Commission should be given power not only to recommend disciplinary proceedings for breach of official duty but also should be empowered to record adverse entries against officers found guilty of lapses in their duty and forward them to concerned authorities. 25. The officers connected with the preparation and revision of electoral rolls should also be brought under the control and disciplinary jurisdiction of the Election Commission as in the case of officers connected with the conduct of poll. 2. Issue of multi-purpose photo identity· cards 26. Steps for successful implementation of the scheme of multi-purpose photo identity cards as proposed should be undertaken and that a time- bound programme for covering the entire country with the proposed scheme is desirable. Bar & Bench (www.barandbench.com)

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CHAPTER - V: POLITICAL PARTIES AND CANDIDATES 1. Restriction on candidates contesting from several constituencies. 27. A person should not be allowed to contest elections from more than two constituencies of the same class. 2. Lowering of age-limit for contesting candidates 28. Age qualification for contesting elections to Legislative Assemblies and Lok Sabha should be reduced to 21 years and in the case of elections to Legislative Councils and Council of States to 25 years. 3. Deletion of Section 29A relating to registration of Parties and regulation by Symbols Order. 29. Section 29A of the Representation of the People Act, 1951 dealing with the registration of political parties should be deleted and the matter of registration of political parties should be left to be decided solely by the Election Commission under the Election Symbols (Reservation and Allotment) Order, 1968. The law should also include a consequential provision authorising the Election Commission to deal with afresh any application for registration after the removal of all the political parties registered under section 29A of the Act from the list of registered parties. 30. There is no need for recognizing alliances of political parties at elections or for any change in the present procedure of allotment of symbols. 4. Regulations for containing contests by non-serious candidates 31. Security deposit in the case of a candidate set up by a recognised National or State Party should be rupees five hundred for Assembly elections and rupees one thousand for Lok Sabha elections with usual concessions to Scheduled Caste and Scheduled Tribe candidates. 32. Security deposit in the case of independents and candidates set up by registered parties should be rupees two thousand five hundred for Assembly elections 'and rupees five thousand for Lok Sabha elections. 33. If an independent candidate or a candidate set up by a registered party fails to secure 1/4 as against 1/6 of the valid votes polled as at present, the security deposit should be forfeited. 34. The number of proposers to a nomination paper to be filed by an independent candidate or a candidate set up by a registered party should be ten, drawn from different assembly segments. 35. The arrangement of names of candidates in the ballot paper should be in the following order, namely:- 1. Candidates of recognized National Parties 2.Candidates of recognized State Parties 3. Candidates of registered parties, and 4. Independents. Bar & Bench (www.barandbench.com)

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36. The proposal that there should be a separate deposit by each of the proposer or a bond to be executed by him in the case of an independent candidate or a candidate set up by a registered party is not favoured. 37. The proposal to prevent agents of independent candidates and candidates set up by registered parties from attending to the duties as polling agents and counting agents is not also favoured. 5.(a) Regulation of functioning of political parties (b) Compulsory maintenance of account of election expenses by political parties and audit thereof ( c) Submission of Annual Returns by political parties (d) Enforcement of observance by political parties of requirements. 38. The matter relating to the above items need not be pursued as there is no unanimity of views. 39. The suggestion to clothe the ECI under the Symbols Order the power to withhold the allotment of symbols to the candidates set up by a party if that party does not observe the provisions of its constitution in regard to holding of periodical elections to its various organs is not favoured. 6. Statutory backing for model code of conduct 40. The following items in the model code should have the statutory backing and should therefore be brought within the ambit of the law :- (a) Combining of official visit with work relating to elections or making use of official machinery or personnel in connection with any such work; (b) Using Government transport, including aircrafts, vehicles, machinery and personnel in connection with any work relating to elections; (c) restricting or monopolizing the use of public places for holding election meeting or use of helipads for air flights in connection with any work relating to elections; ( d) restricting or monopolizing the use of rest houses, dak bungalows or other Government accommodation or the use of such accommodation (including premises appertaining thereto) as a campaign office or for holding any public meeting for the purpose of election propaganda. (e) issuing of advertisements at the cost of public exchequer in the newspapers and other media; ( f ) using official news media for partisan coverage of political news and publicity of achievements with a view to furthering the prospects of any party or candidate. (g) announcing or sanctioning of any financial grants in any form or making payments out of discretionary funds; (h) laying of foundation stones of projects or the inauguration of schemes of any kind or the making of any promises of construction of roads or the provision of any facilities; Bar & Bench (www.barandbench.com)

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(i) making of any ad hoc appointments in Government or public undertakings during the election period for the furtherance of the prospects of any party or candidate; ( j ) entering any polling station or place of counting by a Minister except in his capacity as a candidate or a voter or as an authorised agent; ( k) Ban on transfer of officers and staff specified in section 28A when election is in prospect. 41. Violation of these provisions should be made an electoral offence. CHAPTER - VI: CONDUCT OF POLL 1.Constitution of Indian Election Service 42. The constitution of lndlan Election Service as proposed by the Election is not favoured. 2. Ban on transfer of officers connected with elections 43. The law should be suitably amended for imposing a ban on transfer of civil and police officers connected with elections for a specified period. 3. Statutory status of Commission's Observers 44. The Commission's observers should be clothed with statutory powers. However, the law should spell out their specific role like the power to stop (1) the poll for specified reasons; (2) the counting and (3) the declaration of the result. In all these cases, the matter should be referred to the Election Commission for final decision. 45. A general provision may also be included in the proposed law to the effect that an observer may be assigned such other functions as may be entrusted to him by the Election Commission. 4. Role of Voluntary Organizations 46. The proposal to give statutory recognition to the role of voluntary organizations and constitution of a Political Council or Election Council in regard to the conduct of elections is not favoured. The Election Commission may afford under its general powers such facilities to these voluntary organizations as it finds proper and necessary. 5. Use of Electronic Voting Machines 47. In view of the report of the technological experts certifying the credibility of the Electronic Voting Machines, the Electronic Voting Machines may be put to use at all future bye-elections and general elections to Lok Sabha and State Assemblies and local bodies. Intensive training programme for polling personnel at all levels on the working of the machines should also be arranged. 6. Provision of a device to record particulars from Identity card 48. Provision for an electronic device to record particulars of electors as in the photo identity cards as a safeguard against booth capturing etc. should be examined further. Bar & Bench (www.barandbench.com)

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7. Set up of mobile polling stations 49. Mobile polling stations fitted in vans may take the place of auxiliary polling stations which are being set up at present to enable the weaker sections to exercise their votes freely near their areas of residence. Such mobile polling stations should be stationed for the full polling period and should also be well protected with adequate police force. 8. Steps to eradicate booth capturing, rigging, intimidation etc. 50. Section 58A of the RPA 1951 should be amended enabling the Election Commission to take a decision regarding booth capturing not only on the report of the Returning Officer but even otherwise. 51. The Election Commission should not only be empowered to countermand the election and order a fresh election under the law but also declare the earlier poll to be void and order only a repoll in the entire constituency depending on the nature and seriousness of each case. 52. An enabling provision should be incorporated in the law empowering the Election Commission to locate (1) an investigation agency; State or Central; (2) a prosecuting agency; (3) constitution of special courts wherever necessary.' It is not necessary to bind in any way specifically the Election Commission in regard to these matters. 53. The suggestion that the State Government should function as a caretaker Government during the period of election is not favoured. 54. The suggestion that the formation of voluntary organizations should be encouraged to oversee the conduct of the poll in every constituency is also not favoured. 55. The electoral offence of booth capturing should be made a cognizable offence. 56. Statutory recognition should be given to the issue of standing instructions by the Election Commission by insertion of a suitable enabling provision in the Act. 57. There should be proper coordination between State and Central police forces and deployment of Central forces for election duty at polling stations wherever found necessary. The Election Commission should further examine the matter for taking concrete steps in that behalf. 58. The suggestion for deployment of planning and supervisory machinery in the constituencies to oversee the arrangements over and above the existing arrangements under the existing instructions of the Commission is not favoured. 9. Time-limit for holding bye-elections 59. A bye-election should be held within six months of the occurrence of the vacancy and such a bye-election need not be held if a general election is normally due within one year from the date of occurrence of vacancy. Bar & Bench (www.barandbench.com)

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10. Power to order repoll 60. The Regional Commissioners and Observers appointed by the Commission or any other supervisory officers employed by the Commission at elections should have the power under the law to order the deferring of counting or declaration of the result pending decision of the Commission on their report. 11. Reasons for low polling and remedial measures. 61. The suggestion that ~there should be a repoll if there has been a low percentage of voting, say 20 per cent, in a constituency is not accepted. 62. The present procedure relating to postal ballot paper facility should be closely examined to remove drawbacks and make the facility really meaningful. 63. The suggestion that persons employed as drivers, workers etc. of transport vehicles used by candidates should be made eligible for postal ballot paper facility should be looked into by the Election Commission with a view to making these categories of persons entitled to the facility of postal ballot paper. 64. Army personnel, persons outside India in diplomatic service and also persons belonging to para-military forces should enjoy the facility of voting at elections through proxy and the system obtaining in that behalf in the U.K. should be studied quickly for adoption in our country by suitable amendment to law and procedure. 12. Countermanding of poll on death of candidate 65. Section 52 of the Representation of the People Act, 1951 should be amended to provide to the effect that only if a candidate set up by recognised political party dies, the election should be countermanded and not otherwise. 66. Section 52 of the Representation of the People Act, 1951 should be further amended on the lines proposed in the Report of the Election Commission on 1968-89 Elections in order to remove any scope for doubt or confusion: However, the countermanding of the poll should be ordered if the death of a candidate takes place before the commencement of the poll and not declaration of the result, as proposed by the Election Commission. 13. Term of members of Rajya Sabha and holding of biennial elections 67. Though the retirement of members of Rajya Sabha elected from different States on the completion of their term is not uniform and cycle of retirement on the same day has been broken, it is not necessary to make amendment to law as proposed for the purpose of bringing into effect one single day of retirement in a/l cases. Bar & Bench (www.barandbench.com)

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14. Qualification for election to Rajya Sabha and requirement as to number of proposers. 68. Any change in the present requirement that a candidate at elections to Rajya Sabha should be an elector in the State from which he seeks such election is not necessary. 69. Section 39 to the Representation of the People Act, 1951 relating to number of proposers to a nomination paper of a candidate at elections to Rajya Sabha and Legislative Councils by the members of the Legislative Assembly should be amended to provide for only one proposer and one seconder as against ten proposers. Chapter - VII: Election Expenses 1. Fixing reasonable ceiling on raational basis 70. Section 77(3) of the Representation of the People Act, 1951 should be amended empowering the Election Commission to lay down the ceilings instead of the Central Government notifying as at present the maximum election expenses under the Rules in consultation with the ECI. 2. Accounting of election expenses 71. Section 77(1) should be amended on the following lines:- " ( 1) All expenditure incurred or authorised either by the candidate or his election agent on account of or in respect of the conduct or management of the election shall be required to be included in the account of election expenditure of the candidate" . 72. There is no need for including "any other person" within the purview of section 77(1) or the use therein of expression "whether before, during or after an election". 73. The two Explanations and proviso to section 77 should be deleted. 74. There is no need for the candidate furnishing in the prescribed form of affidavit with an' oath sworn before a judicial magistrate or oath commissioner owning responsibility for the correct and true account of the election expenses. The present system of giving simple declaration in return of election expenses would be sufficient. 75. Any unauthorized 'expenditure incurred by any person other than the candidate or his election agent should be prohibited and treated as an electoral offence and that such offence should be made punishable with imprisonment for period of not less than one year in addition to fine. 76. Failure to keep an election account which is already a penal offence under section 171-F, IPC should be made more stringent by providing for imprisonment of at least six months in addition to fine. 77. Submission of false account should be made an electoral offence and the minimum punishment for violation of this provision should be two years imprisonment. Bar & Bench (www.barandbench.com)

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3. Regulation or ban of donations by companies. There should be a complete ban on donations by companies and the relevant law should be amended accordingly. CHAPTER VIII STATE FUNDING OF ELECTIONS 1. Fixing of ceiling of State Assistance 78. To start with State assistance in kind should be given in respect of – (1) Provision of prescribed quantity of fuel or petrol to vehicles s. ( 2 ) Supply of additional copies of electoral rolls. ( 3 ) Payment of hire charges for prescribed number of microphones used by candidates. ( 4 ) Distribution of voters' identity slips now being done by contesting candidates should be exclusively undertaken by electoral machinery and all candidates should be prohibited from issuing such slips. The details of the manner and mode of State assistance in the above areas and its implementation should be left to the Election Commission to work out. The law should contain minimum enabling provison for the purpose. 2. Eligibility of State assistance - candidates of political parties and independents 79. The State assistance in respect of the above items should be extended only to candidates set up by recognised political parties. 3. Restriction of private expenses on items made eligible for State assistance 80. There need not be any ban on private expenditure in respect of items· proposed for State assistance except in the case of distribution of Voters' identity slips which should be taken over by the electoral machinery prohibiting completely all the candidates from issuing such slips. 4. Financial assistance to political parties on annual 81. Any financial assistance to political parties on annual basis as proposed is not favoured. CHAPTER -IX: ELECTION DISPUTES AND ELECTORAL OFFENCES 1. Steps for expeditious disposal of election petitions and appeals 82. The proposal for the appointment of adequate number of ad hoc judges who would relieve the regular judges from their normal duty for the purpose of entrusting to them trial of election petitions is accepted. 83. The proposal for appointment of commissions under the jurisdiction of the High Court for the purpose of taking evidence of witnesses and placing the recorded evidence before the High Court for further trial of election petition on questions of law and facts is not accepted. 84. There is no need for the amendment of law for substitution of a person as a petitioner in the event of the petitioner himself resorting to non-prosecution of the petition. Bar & Bench (www.barandbench.com)

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2. Stringent penal provisions against electoral offences 85. The suggestion that the prohibition of public meetings as envisaged in section 126 should be extended to 72 hours ending with the hour fixed for the completion of the poll in any election is not accepted. The present prohibition of 48 hours is adequate. 86. Expansion of provision as per recommendation of Joint Parliamentary Committee is favoured. 87. Section 127 - Disturbance at election meetings - the imprisonment for the violation of the provision should be for six months or fine of rupees two thousand or with both. 88. Section 127 A - Restrictions on printing of pamphlets, posters etc. - This section should be amended to increase the imprisonment to two years from six months. 89. Section 129 - Officers etc. at election not to act for candidates or to influence voting: Section 130 - Penalty for canvassing in or near polling stations: Section 131 - Penalty for disorderly conduct near polling stations: Section 132 - Penalty for misconduct at the polling stations: Section 134 - Breach of official duty in connection with election: Section 135 -Removal of ballot papers from polling stations to be offence: Penal provisions in all these sections should be examined further to make them more stringent. 90. Section 133-Penalty for illegal hiring conveyance at elections: Section 133 should be amended on the lines proposed in the Bill appended to the Report of the Joint Parliamentary Committee of 1972. The punishment for the violation should be six months imprisonment and also with fine. The offence should also be made cognizable. Section 134A - Penalty for Government servants acting as election agent. polling agent or counting agent: 91. Section 134A need not be amended for bringing within its ambit persons working in any local authority also. Section 135 - Removal of ballot papers from the polling stations to be an offence: 92. Section 135 should be amended for using the expression "takes away the ballot paper or attempts to take away the ballot paper out of polling station" in substitution of word "fraudulently takes or attempts to take". 3. New Electoral Offences 93. Personation (Impersonation) should be made an electoral offence. It should also be made more stringent by providing for punishment of imprisonment which may extend to three years or fine or with both. The offence should also be made cognizable. Bar & Bench (www.barandbench.com)

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Use of vehicles for conveyance at elections 94. Provision should be made on the lines of the Bill appended to the Report of the Joint Parliamentary Committee of 1972 (vide section 133A). Ban on plying of mechanically propelled vehicles on poll day 95. Law should be amended to impose complete ban on mechanically propelled vehicles like lorries, tractors with trailers, buses, auto- rickshaws etc. However, owner driven cars and public buses should be exempted from the ban. Punishment for violation of this ban should be two years. The offence should be made cognizable. In suitable cases licenses of the vehicles should be cancelled and the vehicles confiscated. The matter should be left to the ECI to work out the full details and the parliamentary law should only provide for simple enabling provision. Prohibition of going armed to or near a polling station 96. A new penal provision banning carrying of firearms and lethal weapons on the poll day and treating the violation thereof as an electoral offence should be inserted in the Representation of the People Act, 1951. Imprisonment for violation should be two years and the offence should be made cognizable. Arms found with guilty persons should be confiscated and the license cancelled where such license had been issued. Ban on sale and distribution of liquor and other intoxicated drinks. 97. Provisions in the Bill appended to the Report of the Joint Parliamentary Committee of 1972 should be adopted. Punishment for contravention should be six months imprisonment and fine of rupees two thousand. The quantity of liquor found in the possession of the person in contravention of the penal provision should also be confiscated. 98. The expression "consumption of liquor" need not be used in the penal provisions. Lodging of false account of election expenses 99. As already stated the lodging of false account of election expenses should be made an electoral 'offence. The imprisonment for contravention of the provision should be for two years. Model Code violation 100. As already stated, the violation of model code should be an electoral offence. Punishment for contravention of this provision should be years imprisonment. The offence need not be made cognizable. Grant of paid holiday to employees on the day of poll 101. A provision as contained in the Report of the Joint Parliamentary Committee of 1972 and the Bill appended thereto (vide section 135A) should be made for the purpose of grant of paid holiday to employees in any business, trade, industrial undertaking or any other establishment on the day of poll. Punishment for contravention of this provision should be a fine of rupees five hundred as against rupees fifty. Bar & Bench (www.barandbench.com)

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Strengthening of statutory provisions relating to disqualification 102. Conviction under the Prevention of National Honour Act, 1971 should be a ground for disqualification for six years as proposed by the Chief Election Commissioner. 103. The suggestion to disqualify persons found guilty of moral turpitude or persons detained under National Security Act whose detention had been approved by a Judicial Advisory Committee is not accepted. CHAPTER - X: ANTI-DEFECTION LAW 104. The Anti-Defection Law (10th Schedule to the Constitution) should be amended in the following respects :- 1. Disqualification provisions should be made specifically limited to cases of (a) voluntarily giving up by an elected member of his membership of the political party to which the member belongs; and (b) voting or absentention from voting by a member contrary to his party direction or whip only in respect of a motion of vote of confidence or a motion amounting to no-confidence or Money Bill or motion of vote of thanks to the President's address. 2. The power of deciding the legal issue of disqualification should not be left to the Speaker or Chairman of the House but to the President or the Governor, as the case may be, who shall act on the advice of the Election Commission, to whom the question should be referred for determination as in the case of any other post-election disqualification of a Member. 3. The nominated members of the House concerned should' incur disqualification if he joins any political party at any period of time. CHAPTER -XI: OFFICE OF PROFIT 105. The suggestion that the Committee of Parliament on Office of Profit should decide the procedure for laying down stringent guiding principles for exempting the offices from the purview of inhibiting provisions of the Constitution is not desirable. However, the Law Ministry should do an exercise in the matter for the preparation of a model bill for circulation and adoption by various State Governments. CHAPTER -XII: ELECTORAL SYSTEMS EXAMINATION 106. The subject relating to change of the present electoral system should be examined by an expert Committee. Law Ministry and Election Commission should take up the matter for examination of the suggestion to constitute an expert committee. CHAPTER - XIII: MISCELLANEOUS 107. A Parliament Standing Committee should be constituted to go into all electoral matters from time to time as electoral reform is a continuous process. The Law Ministry should take necessary steps in this direction. ********** Bar & Bench (www.barandbench.com)

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Annexure P-2 NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION

2002

SUMMARY OF RECOMMENDATIONS

CONTENTS Recommendation

Nos. Fundamental Rights, Directive Chapter 3 (1) to (29) Principles and Fundamental Duties Chapter 4 Electoral Processes and Political Parties (30) to (69) Chapter 5 Parliament and State Legislatures (70) to (97)

Chapter 6 Executive and Public Administration (98) to (121)

Chapter 7 The Judiciary (122) to (149)

Chapter 8 Union-State Relations (150) to (175)

Chapter 9 Decentralisation and Devolution (176) to (213) Pace of Socio-Economic Change and Chapter 10 (214) to (249) Development

SUMMARY OF RECOMMENDATIONS

[Of the various recommendations, 58 recommendations involve amendment to the Constitution, 86 involve legislative measures and the rest involve executive action. Recommendations, which involve amendments to the Constitution, are given in italics] CHAPTER 3: FUNDAMENTAL RIGHTS, DIRECTIVE PRINCIPLES AND FUNDAMENTAL DUTIES Fundamental Rights (1) In article 12 of the Constitution, the following Explanation should be added:- ‗Explanation – In this article, the expression ―other authorities‖ shall include any person in relation to such of its functions which are of a public nature.‘ [Para 3.5] (2) In Articles 15 and 16, prohibition against discrimination should be extended to “ethnic or social origin; political or other opinion; property or birth”. [Para 3.6] Bar & Bench (www.barandbench.com)

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(3) Article 19(1)(a) and (2) should be amended to read as follows: ―Art. 19(1): All citizens shall have the right - (a) to freedom of speech and expression which shall include the freedom of the press and other media, the freedom to hold opinions and to seek, receive and impart information and ideas.‖ 19(2): ―Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or preventing the disclosure of information received in confidence except when required in public interest.‖. [Para 3.8.1] (4) A Proviso to article 19(2) of the Constitution should be added as under: ―Provided that, in matters of contempt, it shall be open to the Court to permit a defence of justification by truth on satisfaction as to the bona fides of the plea and it being in public interest.‖ [Paras 3.8.2 and 7.42] (5) The existing article 21 may be re-numbered as clause (1) thereof, and a new clause (2) should be inserted thereafter on the following lines: - ―(2) No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.‖. [Para 3.9] (6) After clause (2) in article 21 as proposed in para 3.9, a new clause, namely, clause (3) should be added on the following lines:- ―(3) Every person who has been illegally deprived of his right to life or liberty shall have an enforceable right to compensation.‖ [Para 3.10] (7) After article 21, a new article, say article 21-A, should be inserted on the following lines:- ―21-A. (1) Every person shall have the right to leave the territory of India and every citizen shall have the right to return to India. (2) Nothing in clause (1) shall prevent the State from making any law imposing reasonable restrictions in the interests of the sovereignty and integrity of India, friendly relations of India with foreign States and interests of the general public.‖ [Para 3.11] (8) A new article, namely, article 21-B, should be inserted on the following lines: ―21-B. (1) Every person has a right to respect for his private and family life, his home and his correspondence. (2) Nothing in clause (1) shall prevent the State from making any law imposing reasonable restrictions on the exercise of the right Bar & Bench (www.barandbench.com)

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conferred by clause (1), in the interests of security of the State, public safety or for the prevention of disorder or crime, or for the protection of health or morals, or for the protection of the rights and freedoms of others.‖. [Para 3.12] (9) A new article, say article 21-C, may be added to make it obligatory on the State to bring suitable legislation for ensuring the right to rural wage employment for a minimum of eighty days in a year. [Para 3.13.2] (10) As regards article 22, the following changes should be made: (i) The first and second provisos and Explanation to article 22(4) as contained in section 3 of the Constitution (44th Amendment) Act, 1978 should be substituted by the following proviso and the said section 3 of the 1978 Act as amended by the proposed legislation should be brought into force within a period of not exceeding three months:- ―Provided that an Advisory Board shall consist of a Chairman and not less than two other members, and the Chairman and the other members of the Board shall be serving judges of any High Court: Provided further that nothing in this clause shall authorize the detention of any person beyond a maximum period of six months as may be prescribed by any law made by Parliament under sub-clause (a) of clause (7).‖. ii) In clause (7) of article 22 of the Constitution, in sub-clause (b), for the words ―the maximum period‖, the words ―the maximum period not exceeding six months‖ shall be substituted. [Para 3.14.2] (11) After article 30, the following article should be added as article 30A: ―30-A: Access to Courts and Tribunals and speedy justice (1) Everyone has a right to have any dispute that can be resolved by the application of law decided in a fair public hearing before an independent court or, where appropriate, another independent and impartial tribunal or forum. (2) The right to access to courts shall be deemed to include the right to reasonably speedy and effective justice in all matters before the courts, tribunals or other fora and the State shall take all reasonable steps to achieve the said object.‖. [Para 3.15.1] (12) Article 39A in Part IV should be shifted to Part III as a new article 30-B to read as under:- ―30-B. Equal justice and free legal aid: The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.‖. [Para 3.15.2] Bar & Bench (www.barandbench.com)

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(13) Article 300-A should be recast as follows:- ―300-A. (1) Deprivation or acquisition of property shall be by authority of law and only for a public purpose. (2) There shall be no arbitrary deprivation or acquisition of property: Provided that no deprivation or acquisition of agricultural, forest and non-urban homestead land belonging to or customarily used by the Scheduled Castes and the Scheduled Tribes shall take place except by authority of law which provides for suitable rehabilitation scheme before taking possession of such land.‖ [Para 3.16.2] (14) In article 31-B, following proviso should be added at the end:- ―Provided that the protection afforded by this article to Acts and Regulations which may be hereafter specified in the Ninth Schedule or any of the provisions thereof, shall not apply unless such Acts or Regulations relate – (a) in pith and substance to agrarian reforms or land reforms; (b) to reasonable quantum of reservation under articles 15 and 16; (c) to provisions for giving effect to the policy of the State towards securing all or any of the principles specified in clause (b) or clause (c) of article 39.‖ [Para 3.17] (15) Clauses (1) and (1A) of article 359 should be amended by substituting for “(except articles 20 and 21)”, the following:- ―(except articles 17,20,21,23,24,25 and 32)‖ [Para 3.18.2] (16) The relevant provision in the Constitution (93rd Amendment) Bill, 2001 making the right to education of children from 6 years till the completion of 14 years as a Fundamental Right should be amended and enlarged to read as under:- ―30-C. Every child shall have the right to free education until he completes the age of fourteen years; and in the case of girls and members of the Scheduled Castes and the Schedule Tribes until they complete the age of eighteen years.‖. [Para 3.20.2] (17) After article 24, the following article should be added:- ―Article 24A. Every child shall have the right to care and assistance in basic needs and protection from all forms of neglect, harm and exploitation.‖. [Para 3.21.2] (18) After the proposed article 30-C, the following article may be added as article 30-D:- ―30-D. Right to safe drinking water, prevention of pollution, conservation of ecology and sustainable development. Every person shall have the right – (a) to safe drinking water; (b) to an environment that is not harmful to one‘s health or well- Bar & Bench (www.barandbench.com)

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being; and (c) to have the environment protected, for the benefit of present and future generations so as to – (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.‖. [Para 3.22.3] (19) Explanation II to article 25 should be omitted and sub-clause (b) of clause (2) of that article should be reworded to read as follows:- ―(b) providing for social welfare and reform or the throwing open of Hindu, Sikh, Jaina or Buddhist religious institutions of a public character to all classes and sections of these religions.‖. [Para 3.23.2] (20) It shall be desirable that some optimum level of population with a view to take necessary action under this constitutional provision is prescribed. In article 347 of the Constitution, for the words “a substantial proportion of the population”, the words “not less than ten per cent of the population” should be substituted. [Para 3.24] DIRECTIVE PRINCIPLES (21) The Commission recommends that the heading of Part IV of the Constitution should be amended to read as ―DIRECTIVE PRINCIPLES OF STATE POLICY AND ACTION‖. [Para 3.26.3] (22) A strategic Plan of Action should be initiated to create a large number of employment opportunities in five years to realize and exploit the enormous potential in creating such employment opportunities. The components of this plan may include: (1) Improvement of productivity in agriculture that will activate a chain of activities towards increased income and employment opportunities. (2) Integrated horticulture that will include production of fruits, vegetables and flowers, cut-flowers for export and medicinal plants as well as establishment of bio-processing industries aimed primarily at value-addition of agricultural products. (3) Intensification of animal husbandry programs and production of quality dairy products. (4) Integrated Program of Intensive Aquaculture including use of common property resources like village ponds and lakes. (5) Afforestation and Wasteland Development to bring an additional 12 million hectares under forest plantation and contribute to rural asset building activity. (6) Soil and Water Conservation to support afforestation and Natural Resource Conservation towards eco-friendly agriculture. Bar & Bench (www.barandbench.com)

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(7) Water Conservation and Tank Rehabilitation. (8) Production and use of organic manures through vermiculture and other improved techniques and production of organic health foods from them. [Para 3.27.3] (23) The Commission recommends that an independent National Education Commission should be set up every five years to report to Parliament on the progress of the constitutional directive regarding compulsory education and on other aspects relevant to the knowledge society of the new century. The model of the Finance Commission may be usefully looked into. [Para 3.31.3] (24) After article 47, the following Article should be added, namely:- 47A. ―Control of population.- The State shall endeavour to secure control of population by means of education and implementation of small family norms.‖. [Para 3.32] (25) An inter-faith mechanism to promote such civil society initiatives should be set up. This may be done under the auspices of the National Human Rights Commission set up under section 3 of the Protection of Human Rights Act, 1993 which, inter alia, provides for the participation of ―the Chairpersons of the National Commission for Minorities, the National Commission for Scheduled Castes and Scheduled Tribes and the National Commission for Women‖ who shall be deemed to be the Members of the Commission for the discharge of functions specified in clauses (b) to (j) of the section 12 of the said Act. This body could, in addition to its other statutory functions, also function in collaboration with the National Foundation for Communal Harmony as a mechanism for promotion of inter-religious harmony for inter alia overseeing the installation and working of ―Mohalla Committees‖ and other civil society, initiatives in sensitive areas. With an appropriate statutory enablement by way of enlargement of section 12 of the said Act, the purpose could be achieved without additional expenditure for setting up a separate mechanism. Section 12 of the said Act with consequential amendments to section 3(3) could be amended by the addition of clause (k), which shall read as under: ―(k) promoting through civil society initiatives, inter-faith and inter-religious harmony and social solidarity.‖. The Chairpersons of the National Commission for the Backward Classes and the National Commission for Safai Karamcharis should be co-opted to this body. [Para 3.34.2] (26) There must be a body of high status which first reviews the state of the level of implementation of the Directive Principles and Economic, Social and Cultural Rights and in particular (i) the right to work, (ii) the Bar & Bench (www.barandbench.com)

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right to health, (iii) the right to food, clothing and shelter, (iv) Right to Education up to and beyond the 14th year, and (v) the Right to Culture. The said body must estimate the extent of resources required in each State under each of these heads and make recommendations for allocation of adequate resources, from time to time. For ensuring that the Directive Principles of State Policy are realized more effectively, the following procedure should be followed:-:- (i) The Planning Commission should ensure that there is special mention/emphasis in all the plans and schemes formulated by it, on the effectuation/realization of the Directive Principles of State Policy. (ii) Every Ministry/Department of the Government of India should make a special annual report indicating the extent of effectuation/realization of the Directive Principles of State Policy, the shortfall in the targets, the reasons for the shortfall, if any, and the remedial measures taken to ensure their full realization, during the year under report. (iii) The report under item (ii) should be considered and discussed by the Department Related Parliamentary Standing Committee, which shall submit its report on the working of the Department indicating the achievements/failures of the Ministry/Department along with its recommendations thereto. (iv) Both the Reports mentioned at items (ii) and (iii) above should be discussed by the Planning Commission in an interactive seminar with the representatives of various NGOs, Civil Society Groups, etc. in which the representatives of the Ministry/Department and the Departmental Related Parliamentary Standing Committee would also participate. The report of this interaction shall be submitted to the Parliament within a time bound manner. (v) The Parliament should discuss the report at item (iv) above within a period of three months and pass a resolution about the action required to be taken by the Ministry/Department concerned. A similar mechanism as mentioned above may be adopted by the States. [Paras 3.35.2 and 3.35.3] (27) The Report of the National Statistical Commission (2001) stresses the importance of availability of adequate, credible and timely socio- economic data generated by the statistical system, both for policy formulation and for monitoring progress of the sectors of economy and pace of socio-economic change. The Commission endorses the recommendations of the National Statistical Commission and stresses the importance of their implementation. [Para 3.36] Bar & Bench (www.barandbench.com)

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(28) For effectuating fundamental duties, following steps be taken:- (i) The first and foremost step required by the Union and State Governments is to sensitise the people and to create a general awareness of the provisions of fundamental duties amongst the citizens on the lines recommended by the Justice Verma Committee on the subject. Consideration should be given to the ways and means by which Fundamental Duties could be popularized and made effective; (ii) Right to freedom of religion and other freedoms must be jealously guarded and rights of minorities and fellow citizens respected; (iii) Reform of the whole process of education is an immediate but immense need, as is the need to free it from governmental or political control; it is only through education that will power to adhere to our Fundamental Duties as citizens can be inculcated; (iv) Duty to vote at elections, actively participate in the democratic process of governance and to pay taxes should be included in article 51A; and (v) The other recommendations of the Justice Verma Committee on operationalisation of Fundamental Duties of Citizens should be implemented at the earliest. [Para 3.40.3] (29) The following should also be incorporated as fundamental duties in article 51A of the Constitution – (i) To foster a spirit of family values and responsible parenthood in the matter of education, physical and moral well-being of children. (ii) Duty of industrial organizations to provide education to children of their employees. [Para 3. 40.4] CHAPTER 4: ELECTORAL PROCESSES & POLITICAL PARTIES ELECTORAL PROCESSES (30) While some far-reaching reforms in the electoral processes are necessary, no major constitutional amendment is required. The necessary correctives could be achieved by ordinary legislation modifying the existing laws, or in many cases, merely by rules and executive action. A foolproof method of preparing the electoral roll right at the Panchayat level constituency of a voter and supplementing it by a foolproof voter ID card which may in fact also serve as a multi-purpose citizenship card for all adults. A single exercise should be enough for preparing common electoral rolls and ID cards. The task could be entrusted to a qualified professional agency under the supervision of the Election Commission of India (EC) and in coordination with the SECs. The rolls should be updated constantly and periodically posted on the web site of the Election Commission and CDROMs should be available to all political parties or anyone interested. Prior to elections, these rolls should be printed and publicly displayed at the post offices in each constituency, as Bar & Bench (www.barandbench.com)

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well as at the panchayats or relevant constituency headquarters. These should be allowed to be inspected on payment of a nominal fee by anyone. Facilities should also be provided to the members of the public at the post offices for submitting their applications for modification of the electoral rolls. [Paras 4.7.3 and 4.8.3] (31) Introduction of Electronic Voting Machines in all constituencies all over the country for all elections as rapidly as possible. [Para 4.9] (32) Under section 58A of the RPA, the Election Commission should be authorised to take a decision regarding booth capturing on the report of the returning officers, observers or citizen groups. Also, the EC should be empowered to countermand the election and order a fresh election or to declare the earlier poll to be void and order a re-poll in the entire constituency. Further, the EC should consider the use of tamper-proof video and other electronic surveillance at sensitive polling stations/ constituencies. [Para 4.10] (33) Any election campaigning on the basis of caste or religion and any attempt to spread caste and communal hatred during elections should be punishable with mandatory imprisonment. If such acts are done at the instance of the candidate or by his election agents, these would be punishable with disqualification. [Para 4.11] (34) The Representation of the People Act should be amended to provide that any person charged with any offence punishable with imprisonment for a maximum term of five years or more, should be disqualified for being chosen as or for being a member of Parliament or Legislature of a State on the expiry of a period of one year from the date the charges were framed against him by the court in that offence and unless cleared during that one year period, he shall continue to remain so disqualified till the conclusion of the trial for that offence. In case a person is convicted of any offence by a court of law and sentenced to imprisonment for six months or more the bar should apply during the period under which the convicted person is undergoing the sentence and for a further period of six years after the completion of the period of the sentence. If any candidate violates this provision, he should be disqualified. Also, if a party puts up such a candidate with knowledge of his antecedents, it should be derecognized and deregistered. [Para 4.12.2] (35) Any person convicted for any heinous crime like murder, rape, smuggling, dacoity, etc. should be permanently debarred from contesting for any political office. [Para 4.12.3] (36) Criminal cases against politicians pending before Courts either for trial or in appeal must be disposed off speedily, if necessary, by appointing Special Courts. [Para 4.12.4] Bar & Bench (www.barandbench.com)

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(37) A potential candidate against whom the police have framed charges may take the matter to the Special Court. This court should be obliged to enquire into and take a decision in a strictly time bound manner. Basically, this court may decide whether there is indeed a prima facie case justifying the framing of charges. [Para 4.12.5] (38) The Special Courts should be constituted at the level of High Courts and their decisions should be appealable to the Supreme Court only (in similar way as the decisions of the National Environment Tribunal). The Special Courts should decide the cases within a period of six months. For deciding the cases, these Courts should take evidence through Commissioners. [Para 4.12.6] (39) The benefit of sub-section (4) of section 8 of the Representation of the People Act, 1951 should be available only for the continuance in office by a sitting Member of Parliament or a State Legislature. The Commission recommends that the aforesaid provision should be suitably amended providing that this benefit shall not be available for the purpose of his contesting fresh elections. [Para 4.12.7] (40) The proposed provision laying down that a person charged with an offence punishable with imprisonment for a maximum period of five years or more should be disqualified from contesting elections after the expiry of a period of one year from the date the charges were framed in a court of law should equally be applicable to sitting members of Parliament and State Legislatures as to any other such person.[4.12.8] (41) In matters of disqualification on grounds of corrupt practices, the President should determine the period of disqualification under section 8A of the Representation of the People Act, 1951 on the direct opinion of the EC and avoid the delay currently experienced. This can be done by resorting to the position prevailing before the 1975 amendment to the said Act. [Para 4.13.1] (42) The election petitions should also be decided by special courts proposed in para 4.12.6. In the alternative, special election benches may be constituted in the High Courts and earmarked exclusively for the disposal of election petitions and election disputes. [Para 4.13.2] (43) The existing ceiling on election expenses for the various legislative bodies be suitably raised to a reasonable level reflecting the increasing costs. However, this ceiling should be fixed by the Election Commission from time to time and should include all the expenses by the candidate as well as by his political party or his friends and his well-wishers and any other expenses incurred in any political activity on behalf of the candidate by an individual or a corporate entity. Such a provision should be the part of a legislation regulating political funding in Bar & Bench (www.barandbench.com)

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India. Further, Explanation 1 to section 77(1) of the Representation of the People Act, 1951 should be deleted. [Para 4.14.2] (44) The political parties as well as individual candidates should be made subject to a proper statutory audit of the amounts they spend. These accounts should be monitored through a system of checking and cross-checking through the income-tax returns filed by the candidates, parties and their well-wishers. At the end of the election each candidate should submit an audited statement of expenses under specific heads. [Para 4.14.2] (45) Every candidate at the time of election must declare his assets and liabilities along with those of his close relatives. Every holder of a political position must declare his assets and liabilities along with those of his close relations annually. Law should define term 'close relatives'. [4.14.5] (46) Any system of State funding of elections bears a close nexus to the regulation of working of political parties by law and to the creation of a foolproof mechanism under law with a view to implementing the financial limits strictly. Therefore, proposals for State funding should be deferred till these regulatory mechanisms are firmly in position. [Para 4.14.5] (47) All candidates should be required under law to declare their assets and liabilities by an affidavit and the details so given by them should be made public. Further, as a follow up action, the particulars of the assets and liabilities so given should be audited by a special authority created specifically under law for the purpose. Again, the legislators should be required under law to submit their returns about their liabilities every year and a final at the end of their term of office. [4.14.6] (48) Campaign period should be reduced considerably. [Para 4.15.4] (49) Candidates shouldn‘t be allowed to contest election simultaneously for the same office from more than one constituency. [Para 4.15.5] (50) The election code of conduct, which should come into operation as soon as the elections are announced, should be given the sanctity of law and its violation should attract penal action. [Para 4.15.6] (51) The Commission while recognizing the beneficial potential of the system of run off contest electing the representative winning on the basis of 50% plus one vote polled, as against the first-past-the-post system, for a more representative democracy, recommends that the Government and the Election Commission of India should examine this issue of prescribing a minimum of 50% plus one vote for election in all its aspects, consult various political parties, and other interests that might consider themselves affected by this change and evaluate the acceptability and benefits of this system. The Commission recommends Bar & Bench (www.barandbench.com)

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a careful and full examination of this issue by the Government and the Election Commission of India. [Para 4.16.6] (52) Intra-State delimitation exercise may be undertaken by the Election Commission for Lok Sabha and Assembly constituencies and the Scheduled Castes and Non-Scheduled Area Scheduled Tribe seats should be rotated. The Delimitation Body should, however, reflect the plural composition of society. [Para 4.17] (53) The provisions of the Tenth Schedule of the Constitution should be amended specifically to provide that all persons defecting - whether individually or in groups - from the party or the alliance of parties, on whose ticket they had been elected, must resign from their parliamentary or assembly seats and must contest fresh elections. In other words, they should lose their membership and the protection under the provision of split, etc. should be scrapped. The defectors should also be debarred to hold any public office of a minister or any other remunerative political post for at least the duration of the remaining term of the existing legislature or until, the next fresh elections whichever is earlier. The vote cast by a defector to topple a government should be treated as invalid. Further, the power to decide questions as to disqualification on ground of defection should vest in the Election Commission instead of in the Chairman or Speaker of the House concerned. [Para 4.18.2] (54) The practice of having oversized Council of Ministers should be prohibited by law. A ceiling on the number of Ministers in any State or the Union government be fixed at the maximum of 10% of the total strength of the popular house of the legislature. [Para 4.19] (55) The practice of creating a number of political offices with the position, perks and privileges of a minister should be discouraged and at all events, their number should be limited to two per cent of the total strength of the lower house. [Para 4.19] (56) Independent candidates should be discouraged and only those who have a track record of having won any local election or who are nominated by at least twenty elected members of Panchayats, Municipalities or other local bodies spread out in majority of electoral districts in their constituency should be allowed to contest for Assembly or Parliament. [Para 4.20.3] (57) In order to check the proliferation of the number of independent candidates and the malpractices that enter into the election process because of the influx of the independent candidates, the existing security deposits in respect of independent candidates may be doubled. Further, it should be doubled progressively every year for those independents who fail to win and still keep contesting elections. If any independent Bar & Bench (www.barandbench.com)

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candidate has failed to get at least five percent of the total number of votes cast in his constituency, he/she should not be allowed to contest as independent candidate for the same office again at least for 6 years. [Para 4.20.4] (58) An independent candidate who loses election three times consecutively for the same office as such candidate should be permanently debarred from contesting election to that office.[Para 4.20.5] (59) The minimum number of valid votes polled should be increased to 25% from the current 16.67% as a condition for the deposit not being forfeited. This would further reduce the number of non-serious candidates. [Para 4.20.6] (60) It should be possible without any constitutional amendment to provide for the election of the Leader of the House (Lok Sabha/State Assembly) along with the election of the Speaker and in like manner under the Rules of Procedure. The person so elected may be appointed the Prime Minister/Chief Minister. [Para 4.20.7] (61) The issue of eligibility of non-Indian born citizens or those whose parents or grandparents were citizens of India to hold high offices in the realm such as President, Vice-President, Prime Minister and Chief Justice of India should be examined in depth through a political process after a national dialogue. [Para 4.21] (62) The Chief Election Commissioner and other Election Commissioners should be appointed on the recommendation of a body consisting of the Prime Minister, Leader of the Opposition in the Lok Sabha, Leader of the Opposition in the Rajya Sabha, Speaker of the Lok Sabha and the Deputy Chairman of the Rajya Sabha. Similar procedure should be adopted in the case of appointment of State Election Commissioners. [4.22] (63) All candidates should be required to clear government dues before their candidature are accepted. This pertains to payment of taxes and bills and unauthorised occupation of accommodation and availing of telephones and other government facilities to which they are no longer entitled. The fact that matters regarding Government dues in respect of the candidate are pending before a Court of Law should be no excuse. [Para 4.23] (64) In order to obviate the uncertainty in identifying certain offices as offices of profit or not, suitable amendments should be made in the Constitution empowering the Election Commission of India to identify and declare the various offices under the Government of India or of a State to be ‗offices of profit‘ for the purposes of being chosen, and for being, a member of the appropriate legislature. [Para 4.24.3] POLITICAL PARTIES Bar & Bench (www.barandbench.com)

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(65) A comprehensive law regulating the registration and functioning of political parties or alliances of parties in India [may be named as the Political Parties (Registration and Regulation) Act] should be made. The proposed law should - (a) provide that political party or alliance should, in its Memoranda of Association, Rules and Regulations provide for its doors being open to all citizens irrespective of any distinctions of caste, community or the like. It should swear allegiance to the provisions of the Constitution and to the sovereignty and integrity of the nation, regular elections at an interval of three years at its various levels of the party, reservation/ representation of at least 30 per cent, of its organizational positions at various levels and the same percentage of party tickets for parliamentary and State legislature seats to women. Failure to do so should invite the penalty of the party losing recognition. (b) make it compulsory for the parties to maintain accounts of the receipt of funds and expenditure in a systematic and regular way. The form of accounts of receipt and expenditure and declaration about the sources of funds may be prescribed by an independent body of Accounts & Audit experts, created under the proposed Act. The accounts should also be compulsorily audited by the same independent body, created under the legislation which should also prepare a report on the financial status of the political party which along with the audited accounts should be open and available to public for study and inspection. (c) make it compulsory for the political parties requiring their candidates to declare their assets and liabilities at the time of filing their nomination before the returning officers for election to any office at any level of government. (d) provide that no political party should sponsor or provide ticket to a candidate for contesting elections if he was convicted by any court for any criminal offence or if the courts have framed criminal charges against him. (e) specifically provide that if any party violates the provision mentioned at sub-para (d) above, the candidate involved should be liable to be disqualified and the party deregistered and derecognised forthwith. [Paras 4.30.1, 4.30.3, 4.30.4, 4.30.5 and 4.34] (66) Election Commission should progressively increase the threshold criterion for eligibility for recognition so that the proliferation of smaller political parties is discouraged. Only parties or a pre-poll alliance of political parties registered as national parties or alliances with the Election Commission be allotted a common symbol to contest elections Bar & Bench (www.barandbench.com)

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for the Lok Sabha. State parties may be allotted symbols to contest elections for State legislatures and the Council of States. [Para 4.31.2] (67) In a situation where no single political party or pre-poll alliance of parties succeeds in securing a clear majority in the Lok Sabha after elections, the Rules of Procedure and Conduct of Business in Lok Sabha may provide for the election of the Leader of the House by the Lok Sabha along with the election of the Speaker and in the like manner. The Leader may then be appointed as the Prime Minister. The same procedure may be followed for the office of the Chief Minister in the State. [Para 4.33.2] (68) An amendment in the Rules of Procedure of the Legislatures for adoption of a system of constructive vote of no confidence should be made. For a motion of no-confidence to be brought out against a government at least 20% of the total number of members of the House should give notice. Also, the motion should be accompanied by a proposal of alternative Leader to be voted simultaneously. [Para 4.33.3] (69) A comprehensive legislation providing for regulation of contributions to the political parties and towards election expenses should be enacted by consolidating such laws. This new law should- (a) aim at bringing transparency into political funding; (b) permit corporate donations within higher prescribed limits and keep them transparent; (c) make all legal and transparent donations up to a specified limit tax exempt and treat this tax loss to the state as its contribution to state funding of elections; (d) contain provisions for making both donors and donees of political funds accountable. The Government should encourage the corporate bodies and agencies to establish an electoral trust which should be able to finance political parties on an equitable basis at the time of elections; (e) provide that audited political party accounts like the accounts of a public limited company should be published yearly with full disclosures under predetermined account heads; and (f) provide for immediate de- recognition of the party and enforcement of penalties for filing false or incorrect election returns. [Paras 4.35.2, 4.35.3, 4.35.4 and 4.36] CHAPTER 5: PARLIAMENT AND STATE LEGISLATURES (70) The presiding officers, the minister for parliamentary affairs, and the chief whips of parties should periodically meet to review the work of the departmental parliamentary committees and take remedial action. It should be entirely possible for the Parliament to sanction budgets to secure the services of specialist advisors to assist these committees in conducting their inquiries, holding public hearings, collecting data about legislation and administrative details pertaining to countries which have relevance to the Indian conditions. [Para 5.6.3] Bar & Bench (www.barandbench.com)

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(71) Immediate steps be taken to set up a Nodal Standing Committee on National Economy with adequate resources in terms of both in house and advisory expertise, data gathering and computing and research facilities for an ongoing analysis of the national economy for assisting the members of the Committee to report on periodic basis to House. [5.7] (72) The Parliament should be associated with the initial stage itself in the matter of formulating proposals for constitutional amendment. The actual drafting should be taken up only after the principles underlying the amendment have been thoroughly considered in a parliamentary forum and subjected to a priori scrutiny by the constituent power. A Standing Committee of the two Houses of Parliament for a priori scrutiny of amendment proposals should be set up. [Para 5.8.2 and 5.8.3] (73) With the proposed establishment of three new Committees, namely, the Constitution Committee, the Committee on National Economy and the Committee on Legislation, the existing Committees on Estimates, Public Undertakings and Subordinate Legislation may not be continued. [Para 5.9.1] (74) The Petitions Committee of Parliament has tremendous potential as a supplement to the proposed Lok Pal institution. It should be made more widely known and used for ventilation, investigation and redressal of people's grievances against the administration. [Para 5.9.2] (75) Major reports of all Parliamentary Committees ought to be discussed by the Houses of Parliament especially where there is disagreement between a Parliamentary Committee and the Government. [Para 5.9.3] (76) For a more systematic approach to the planning of legislation, the following steps should be taken:- (a) Adequate time for consideration of Bills in committees and on the floor of the Houses as also to subject the drafts to thorough and rigorous examination by experts and laymen alike should be provided. (b) All major social and economic legislation should be circulated for public discussion by professional bodies, business organisations, trade unions, academics and other interested persons. (c) The functions of the Parliamentary and Legal Affairs Committee of the Cabinet should be streamlined; (d) More focused use of the Law Commission should be made; (e) A new Legislation Committee of Parliament to oversee and coordinate legislative planning should be constituted; and (f) All Bills should be referred to the Departmental Related Parliamentary Standing Committees for consideration and scrutiny after public opinion has been elicited and all comments, suggestions and memoranda are in. The Committees may schedule Bar & Bench (www.barandbench.com)

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public hearings, if necessary, and finalise with the help of experts the second reading stage in the relaxed Committee atmosphere. The time of the House will be saved thereby without impinging on any of its rights. The quality of drafting and the content of legislation will necessarily be improved as a result of following these steps. [Paras 5.10.1 and 5.10.2] (77) The Parliament may consider enacting suitable legislation to control and regulate the treaty-power of the Union Government whenever appropriate and necessary after consulting the State Governments and Legislatures under article 253 ―for giving effect to international agreements‖. [Para 5.10.3] (78) Parliamentarians have to be like Caesar's wife, above suspicion. They must voluntarily place themselves open to public scrutiny through a parliamentary ombudsman. Supplemented by a code of ethics, which has been under discussion for a long time, it would place Parliament on the high pedestal of people's affection and regard. [5.11.1] (79) Mass media should be encouraged to accurately reflect the reality of Parliament‘s working and the functioning of Parliamentarians in the Houses. Televising all important debates nationwide in addition to the Question Hours, publication of monographs, handouts, radio, TV, press interviews, use of audio-visual techniques, especially to arouse curiosity and interest of the younger generation, and regular briefing of the press will go a long way in making people better acquainted with the important national work that is being done inside the parliament building. [5.11.2] (80) It is a legitimate public expectation that membership of Legislatures should not be converted into an office of lucrative gain but remain an office of service. The question of salaries, allowances, perks and pensions of lawmakers should be looked into on a rational basis and healthy conventions built.[Para 5.11.3] (81) The Parliament and the State Legislatures should assemble and transact business for not less than a minimum number of days. The Houses of State Legislatures with less than 70 members should meet for at least 50 days in a year and other Houses for at least 90 days while the minimum number of days for sittings of Rajya Sabha and Lok Sabha should be fixed at 100 and 120 days respectively.[Para 5.11.4] (82) In order to maintain basic federal character of the Rajya Sabha, domiciliary requirement for eligibility to contest elections to Rajya Sabha from the concerned State is essential. This should be maintained.[5.11.5] (83) Better and more institutionalized arrangements are necessary to provide the much-needed professional orientation to newly elected members. The emphasis should be on imparting practical knowledge on how to be an effective member. [Para 5.12] Bar & Bench (www.barandbench.com)

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(84) The findings and recommendations of the Public Accounts Committees (PACs) should be accorded greater weight. A convention should be developed with the cooperation of all major parties represented in the legislature to treat the PACs as the conscience-keepers of the nation in financial matters. [Para 5.13] (85) Union Government should take necessary steps for the early enactment of the Fiscal Responsibility Bill pending before Parliament. The State Assemblies should enact similar legislation as provided for in article 293 to put their respective fiscal houses in order. [Para 5.14] (86) The privileges of legislators should be defined and delimited for the free and independent functioning of Parliament and State Legislatures. It should not be necessary to run to the 1950 position in the House of Commons every time a question arises as to what kind of legal protection or immunity a Member has in relation to his or her work in the House. [Para 5.15.3] (87) Article 105(2) may be amended to clarify that the immunity enjoyed by Members of Parliament under parliamentary privileges does not cover corrupt acts committed by them in connection with their duties in the House or otherwise. Corrupt acts would include accepting money or any other valuable consideration to speak and/or vote in a particular manner. For such acts, they would be liable for action under the ordinary law of the land. It may be further provided that no court will take cognisance of any offence arising out of a Member's action in the House without prior sanction of the Speaker or the Chairman, as the case may be. Article 194(2) may also be similarly amended in relation to the Members of State Legislatures.[Para 5.15.6] (88) An Audit Board should be constituted for better discharge of vital function of public audit, but the number of members to be appointed, the manner of their appointment and removal and other related matters should be dealt with by appropriate legislation, keeping in view the need for ensuring independent functioning of the Board. [5.16.2] (89) Though no specific change is needed in the existing provisions of the Constitution insofar as appointment of the Comptroller and Audit General of India and other related matters are concerned, yet a healthy convention be developed to consult the Speaker of the Lok Sabha, before the Government decides on the appointment of the CAG so that the views of the Public Accounts Committee are also taken into account. [5.16.3] (90) The considerations that apply at the Union level in regard to the functioning of the office of C&AG should apply with equal force at the State level. The State Accountants General (AGs) should be given greater authority by the C&AG, while maintaining its general superintendence, Bar & Bench (www.barandbench.com)

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direction and control to bring about a broad uniformity of approach in the sphere of financial discipline. The C&AG should evolve accounting policies and standards and norms for all bodies and entities that receive public funds, such as autonomous bodies and the Panchayat Raj institutions. [Para 5.16.4] (91) The operations of the office of the C&AG itself should be subject to scrutiny by an independent body. To fulfil the canons of accountability, a system of external audit of C&AG's organization should be adopted for both the Union and the State level organizations. [Para 5.17] (92) The MP LAD Scheme, as being inconsistent with the spirit of the Constitution in many ways, should be discontinued immediately. [5.19.2] (93) Legislation envisaged in article 98(2) should be undertaken to reorganize the Secretariats as independent and impartial instruments of Parliament, with special emphasis on upgrading professional competence. [Para 5.20.1] (94) It would be useful to reform the budgetary procedure for streamlining the work of Parliament. [Para 5.21.2] (95) The number of days on which voting is considered essential should be reduced to the barest minimum and the time for such voting in a given session be fixed in advance with appropriate whips requiring full attendance of members. [Para 5.21.3] (96) In order to ensure better scrutiny of administration and accountability to Parliament, parliamentary time in the two houses may be suitably divided between the government and the opposition.[5.21.4] (97) The best way to deal with issues of procedural reforms in a professional (and not political) manner is to have them studied by a Study Group outside Parliament as was done in U.K. The conclusions and suggestions of the Group can be considered by the Rules Committees of the houses of Parliament. Accordingly, a Study Group outside Parliament for study of Parliament should be set up.[Para 5.21.5] CHAPTER 6: EXECUTIVE AND PUBLIC ADMINISTRATION (98) While improving the nature and institutional response of administration to the challenges of democracy is imperative, the system can deliver the goods only through devolution, decentralisation and democratisation thereby narrowing the gap between the base of the polity and the super structure. [Para 6.2.8] (99) District should be considered as a basic unit of planning for development. Functions, finances, and functionaries relating to the development programmes would have to be placed under the direct supervision and command of elected bodies at the district levels of operation to give content and substance to such programmes of Bar & Bench (www.barandbench.com)

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development and public welfare. This would, to a substantial degree, correct the existing distortions and make officials directly answerable to the people to ensure proper implementation of development programmes under the direct scrutiny of people. [Para 6.4.1] (100) India should move to a system where the State guarantees the title to land after carrying out extensive land surveys and computerizing the land records. It will take some time but the results would be beneficial for investment in land. This will be a major step forward in revitalizing land administration in the country as it would enable Right to access, Right to use and Right to enforce decisions regarding land. Similar rationalization of records relating to individuals rights in properties other than privately held lands (which are held in common) would improve operational efficiency which left unattended foment unrest. A coherent public policy addressed to the modern methods of management would contribute to better use of assets and raise dynamic forces of individual creativity. Run away expansion in bureaucratic apparatus of the State would also get curtailed by new management system. [Para 6.4.2] (101) Energetic efforts should be made to establish a pattern of cooperative relationship between the State and associations, NGOs and other voluntary bodies to launch a concerted effort to regenerate the springs of progressive social change. State and civil society are not to be treated antithical but complementary. [Para 6.5.4] (102) The questions of personnel policy including placements, promotions, transfers and fast-track advancements on the basis of forward-looking career management policies and techniques should be managed by autonomous Personnel Boards for assisting the high level political authorities in making key decisions. Such Civil Service Boards should be constituted under statutory provisions. They should be expected to function like the UPSC. The sanctity of parliamentary legislation under article 309 is needed to counteract the publicly known trends of the play of unhealthy and destabilizing influences in the management of public services in general and higher civil services in particular. [Para 6.7.1] (103) Above a certain level--say the Joint Secretary level - all posts should be open for recruitment from a wide variety of sources including the open market. Government should specialize some of the generalists and generalize some of the specialists through proper career management which has to be freed from day to day political manipulation and influence peddling. [Para 6.7.2] (104) Social audit of official working should be done for developing accountability and answerability. Officials, before starting their career, Bar & Bench (www.barandbench.com)

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in addition to the taking of an oath of loyalty to the Constitution, should swear to abide by the basic principles of good governance. This would give renewed sense of commitment by the executives to the basic tenets of the Constitution. [Para 6.7.3] (105) The services have remained largely immune from imposition of penalties due to the complicated procedures that have grown out of the constitutional guarantee against arbitrary and vindictive action (article 311). The constitutional safeguards have in practice acted to shield the guilty against swift and certain punishment for abuse of public office for private gain. A major corollary has been erosion of accountability. It has accordingly become necessary to re-visit the issue of constitutional safeguards under article 311 to ensure that the honest and efficient officials are given the requisite protection but the dishonest are not allowed to prosper in office. A comprehensive examination of the entire corpus of administrative jurisprudence has to be undertaken to rationalize and simplify the procedure of administrative and legal action and to bring the theory and practice of security of tenure in line with the experience of the last more than 50 years. [Para 6.7.4] (106) The civil service regulations need to be changed radically in the light of contemporary administrative theory to introduce modern evaluation methodology. [Para 6.7.5] (107) The administrative structure and systems have to be consciously redesigned to give appropriate recognition to the professional and technical services so that they may play their due role in modernizing our economy and society. The specialist should not be required to play second fiddle to the generalist at the top. Conceptually we need to develop a collegiate style of administrative management where the leader is an energizer and a facilitator, and not an oracle delivering verdicts from a high pedestal. [Para 6.7.6] (108) A parliamentary legislation under article 312(1) should be enacted. It should be debated in professional circles as well as by public. [6.7.7] (109) Right to information should be guaranteed and needs to be given real substance. In this regard, government must assume a major responsibility and mobilize skills to ensure flow of information to citizens. The traditional insistence on secrecy should be discarded. In fact, we should have an oath of transparency in place of an oath of secrecy. Administration should become transparent and participatory. Right to information can usher in many benefits, such as speedy disposal of cases, minimizing manipulative and dilatory tactics of the babudom, and, last but most importantly, putting a considerable check on graft and corruption. [Para 6.10] Bar & Bench (www.barandbench.com)

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(110) The Union Government should take steps to move the Parliament for early enactment of the Freedom of Information Legislation. It will be a major step forward in strengthening the values of a free and democratic society. [Para 6.11] (111) To remain actively involved in new development programmes the people would also need the support of well organized, well prepared, knowledge-oriented personnel and well thought out policies. Think tanks and organized intellectual groups would have to be promoted through state funding, etc. without abridging their autonomy.[Para 6.12] (112) The structural problems of foreign policy would be to constantly aim at making the best possible use of the international order and use it to our advantage. In the country‘s governance, the duality of foreign and domestic policy should end. The two should not be antithetical. A serious effort is required to combine the two to recast relations and launch a creative initiative to achieve strategic partnerships the world over on the principles of inter-dependence without domestic interests being relegated to the background. This calls for a thorough change in the form, working and structuring of Foreign Affairs mechanisms including the External Affairs Ministry. Foreign policy implementation calls for cutting through the mind-set of a generation. [Para 6.14] (113) One of the measures adopted in several western countries to fight corruption and mal-administration is enactment of Public Interest Disclosure Acts which are popularly called the Whistle-blower Acts. Similar law may be enacted in India also. The Act must ensure that the informants are protected against retribution and any form of discrimination for reporting what they perceived to be wrong-doing, i.e., for bona fide disclosures which may ultimately turn out to be not entirely or substantially true. [Para 6.16.3] (114) The Government should examine the proposal for enacting a comprehensive law to provide that where public servants cause loss to the State by their mala fide actions or omissions, they would be made liable to make good the loss caused and, in addition, would be liable for damages. [Para 6.17] (115) The Union Government should frame rules, without further loss of time, under Section 8 of the Benami Transactions (Prohibition) Act, 1988 for acquiring benami property. Further, a law should be enacted to provide for forfeiture of benami property of corrupt public servants as well as non-public servants. [Para 6.19] (116) The Government should examine enacting a law for confiscation of illegally acquired assets on the lines suggested by the Supreme Court in Delhi Development Authority vs. Skipper Construction Co. (P) Ltd. (AIR Bar & Bench (www.barandbench.com)

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1996 SC 2005). There is no need to set up an additional independent Authority to determine this issue of confiscation. The Tribunal constituted under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, (SAFEMA) 1976, which could deal with similar situation arising out of other statutes may be conferred additional jurisdiction to determine cases of confiscation arising out of the Benami Transactions (Prohibition) Act, 1988 and the Prevention of Corruption Act, 1988, (as may be amended) and other legislations which empower confiscation of illegally acquired assets. Tribunal will exercise distinct and separate jurisdictions under separate statutes. [Para 6.20.2] (117) The Prevention of Corruption Act, 1988 should be amended to provide for confiscation of the property of a public servant who is found to be in possession of property disproportionate to his/her known sources of income and is convicted for the said offence. In this case, the law should shift the burden of proof to the public servant who was convicted. In other words, the presumption should be that the disproportionate assets found in possession of the convicted public servant were acquired by him by corrupt or illegal means. A proof of preponderance of probability shall be sufficient for confiscation of the property. The law should lay down that the standard of proof in determining whether a person has been benefited from an offence and for determining the amount in which a confiscation order is to be made, is that which is applicable to civil cases, i.e. a mere preponderance of probability only. A useful analogy may be seen in Section 2(8) of the Drug Trafficking Act 1994 in United Kingdom. [Para 6.20.3] (118) The Constitution should provide for appointment of LokPal. The Prime Minister should be kept out of purview of the Lok Pal. [Para 6.21.1] (119) Union Government should take steps for early enactment of the Central Vigilance Commission Bill, introduced in Parliament. [6.22] (120) The Constitution should contain a provision obliging the States to establish the institution of Lokayuktas in their respective jurisdictions in accordance with the legislation of the appropriate legislatures. [6.23.2] (121) When once a Commission of Inquiry is constituted under the Commissions of Inquiry Act, 1952 or otherwise, the Government should consult the Chairperson of the Commission in respect of time required for completion / finalisation of the report. Once such a time is specified, the Commission should adhere to it. The Action Taken Report on the report should be announced by the Government within a period of three months from the date of submission of the report. [Para 6.24.2]

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CHAPTER 7: THE JUDICIARY (122) In the matter of appointment of Judges of the Supreme Court, it would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in making recommendations. The composition of the Collegium gives due importance to and provides for the effective participation of both the executive and the judicial wings of the State as an integrated scheme for the machinery for appointment of judges. A National Judicial Commission under the Constitution should be established. The National Judicial Commission for appointment of judges of the Supreme Court shall comprise of: (1) The Chief Justice of India: Chairman (2) Two senior most judges of the Supreme Court: Member (3) The Union Minister for Law & Justice : Member (4) One eminent person nominated by the President after consulting the Chief Justice of India: Member The establishment of a National Judicial Commission and its composition are to be treated as integral in view of the need to preserve the independence of the judiciary. [Para 7.3.7] (123) A committee comprising the Chief Justice of India and two senior- most Judges of the Supreme Court will comprise the committee of the National Judicial Commission exclusively empowered to examine complaints of deviant behaviour of all kinds and complaints of misbehaviour and incapacity against judges of The Supreme Court and the High Courts. If the committee finds that the matter is serious enough to call for a fuller investigation or inquiry, it shall refer the matter for a full inquiry to the committee [constituted under the Judges‘ (Inquiry) Act, 1968]. The committee under the Judges Inquiry Act shall be a permanent committee with a fixed tenure with composition indicated in the said Act and not one constituted ad-hoc for a particular case or from case to case, as is the present position under section 3(2) of the Act. The tenure of the inquiry committee shall be for a period of four years and to be re-constituted every four years. The inquiry committee shall be constituted by the President in consultation with the Chief Justice of India. The inquiry committee shall inquire into and report on the allegation against the Judge in accordance with the procedure prescribed by the said Act, i.e. in accordance with the sub-sections (3) to (8) of Section 3 and sub-section (1) of Section 4 of the said Act and submit their report to the Chief Justice of India, who shall place before a committee of seven senior-most judges of the Supreme Court. The Committee of seven Judges shall take a decision as to - whether (a) findings of the inquiry committee are proper and (b) any charge or charges are established against the judge and if so, whether the charges Bar & Bench (www.barandbench.com)

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held proved are so serious as to call for his removal (i.e. proved misbehaviour) or whether it should be sufficient to administer a warning to him and/or make other directions with respect to allotment of work to him by the concerned Chief Justice or to transfer him to some other court (i.e. deviant behaviour not amounting to misbehaviour). If the decision of the said committee of judges recommends the removal of the Judge, it shall be a convention that the judge promptly demits office himself. If he fails to do so, the matter will be processed for being placed before Parliament in accordance with articles 124(4) and 217(1) Proviso (b). This procedure shall equally apply in case of Judges of the Supreme Court and the High Courts except that in the case of a Supreme Court Judge the judge against whom complaint is received or inquiry is ordered, shall not participate in any proceeding affecting him. In appropriate cases the Chief Justice of the High Court or the Chief Justice of India, may withhold judicial work from the judge concerned after the inquiry committee records a finding against the judge. [Para 7.3.8] (124) Article 124(3) of the Constitution contemplates appointment of Judges of Supreme Court from three sources. However, in the last fifty years not a single distinguished jurist has been appointed. From the Bar also, less than half a dozen Judges have been appointed. It is time that suitably meritorious persons from these sources are appointed. [7.3.9] (125) The retirement age of the Judges of the High Court should be increased to 65 years and that of the Judges of the Supreme Court should be increased to 68 years. [Para 7.3.10] (126) In the matter of transfer of Judges, it should be as a matter of policy and the power under article 222 and its exercise in appropriate cases should remain untouched. The President would transfer a Judge from one High Court to any other High Court after consultation with a committee comprising the Chief Justice of India and the two senior-most Judges of the Supreme Court. [Para 7.3.11] (127) A proviso should be inserted in article 129 so as to provide that the power of court to punish for contempt of itself inherent only in the Supreme Court and High Courts and is available as part of privilege of Parliament and State Legislatures, and no other court, tribunal or authority should have or be conferred with a power to punish for contempt of itself. [7.4.7] (128) A suitable provision may be inserted in the Constitution so as to provide that except the Supreme Court and the High Courts no other court, tribunal or authority shall exercise any jurisdiction to adjudicate on the validity or declare an Act of Parliament or State Legislature as being Bar & Bench (www.barandbench.com)

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unconstitutional or beyond legislative competence and so ultra vires. Such a provision may be made as clause (5) of article 226. [Para 7.5] (129) A ‗Judicial Council‘ at the apex level and Judicial Councils at each State at the level of the High Court should be set up. There should be an Administrative Office to assist the National Judicial Council and separate Administrative Offices attached to Judicial Councils in States. These bodies must be created under a statute made by Parliament. The Judicial Councils should be in charge of the preparation of plans, both short term and long term, and for preparing the proposals for annual budget. [Para 7.7] (130) The budget proposals in each State must emanate from the State Judicial Council, in regard to the needs of the subordinate judiciary in that State, and will have to be submitted to the State Executive. Once the budget is so finalized between the State Judicial Council and the State Executive, it should be presented in the State Legislature. [Para 7.8.1] (131) The entire burden of establishing subordinate courts and maintaining subordinate judiciary should not be on the State Governments. There is a concurrent obligation on the Union Government to meet the expenditure for subordinate courts. Therefore, the Planning Commission and the Finance Commission must allocate sufficient funds from national resources to meet the demands of the State judiciary in each of the States. [Para 7.8.2] (132) The presiding officers in courts should be adequately trained. To ensure competence, there should be a proper selection, freedom of action, training, motivation and experience. To maintain competence it is necessary to have continuing education for the judges. Some national judicial institutions have to be properly structured to give such training. There should be a proper monitoring of moving the judges where work demands such movement from places where there are no arrears of work. There has to be systematic assessment of training needs of judicial personnel at different levels. [7.10.2] (133) The Government should ensure basic infra-structure needed to all courts and arrange to ensure that courts are not handicapped for want of infra-structural facilities. Governments, both at the Centre and in the States, should constitute committee of secretaries to review government litigation with a view to avoid adjudication, wherever possible, give priority in filling of written statements, wherever required, and instruct government advocates to seek early decision on government litigation. [Para 7.10.4] (134) In the Supreme Court and the High Courts, judgements should ordinarily be delivered not later than ninety days from the conclusion of Bar & Bench (www.barandbench.com)

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the case. If a judgement is not rendered within such time – it is possible that the complexities of the case and the effect the decision may have on another similar situation might compel greater and larger judicial consideration and contemplation – the case must be listed before the court immediately on the expiry of ninety days for the court to fix a specific date for the pronouncement of the judgment. [Para 7.10.5] (135) An award of exemplary costs should be given in appropriate cases of abuse of process of law. [Para 7.11] (136) The recommendations of the Law Commission of India in regard to the Nagar Nyayalayas, Conciliation Courts, ADR systems of urban litigation, evidence recording by Commissioners, etc. as incorporated in the Code of Civil Procedure (Amendment) Act, 2000 should be brought into force with such modifications as would take care of a few serious objections. [Para 7.13.3] (137) The provisions relating to conciliation in the Arbitration and Conciliation Act, 1996 should suitably be amended to provide for obligatory recourse to conciliation or mediation in relation to cases pending in courts. Further, the scope and functions of the Legal Services Authorities constituted under the Legal Services Authorities Act, 1987 should be enlarged and extended to enable the Authorities to set up conciliation and mediation fora and to conduct, in collaboration of other institutions wherever necessary, training courses for conciliators and mediators. [Para 7.13.4] (138) Each High Court should, in consultation with the judicial councils referred to in para 7.7, prepare a strategic plan for time-bound clearance of arrears in courts under its jurisdiction. The plan may prescribe annual targets and district-wise performance targets. High Courts should establish monitoring mechanisms for progress evaluation. The purpose is to achieve the position that no court within the High Court‘s jurisdiction has any case pending for more than one year. This should be achieved within a period of five years or earlier. [Para 7.13.5] (139) The criminal investigation system needs higher standards of professionalised action and it should be provided adequate logistic and technological support. Serious offences should be classified for purpose of specialized investigation by specially selected, trained and experienced investigators. They should not be burdened with other duties like security, maintenance of law and order etc., and should be entrusted exclusively with investigation of serious offences. [Para 7.14.2] (140) Number of Forensic Science Institutions with modern technologies such as DNA fingerprinting technology should be enhanced. [Para 7.14.3] Bar & Bench (www.barandbench.com)

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(141) The system of plea-bargaining (as recommended by the Law Commission of India in its Report) should be introduced as part of the process of decriminalization. [Para 7.14.4] (142) In order that citizen‘s confidence in the police administration is enhanced, the police administration in the districts should periodically review the statistics of all the arrests made by the police in the district as to how many of the cases in which arrests were made culminated in the filing of charge-sheets in the court and how many of the arrests ultimately turned out to be unnecessary. This review will check the tendency of unnecessary arrests. [Para 7.14.5] (143) The legal services authorities in the States should set up committees with the participation of civil society for bringing the accused and victims together to work out compounding of offences. [Para 7.14.6] (144) Statements of witnesses during investigation of serious cases should be recorded before a magistrate under Section 164 of the Code of Criminal Procedure, 1973. [Para 7.14.7] (145) The case for a viable, social justice-oriented and effective scheme for compensation victims is now widely felt. The Government at the Union level and in the States are well advised under the directive principles as well as under International Human Rights obligations to legislate on the subject of an effective scheme of compensation for victims of crime without further delay. [Para 7.15.3] (146) The tremendous support which the criminal justice might derive from the people once the compensation scheme is introduced even in a modest scale, and the possibilities of advancing the crying need for social justice in a very real sense, are attractive enough for the State to find money to float the scheme immediately. [Para 7.15.4] (147) The National Informatics Centre in collaboration with or with the assistance of the Indian Law Institute and the Government Law Departments should set up a Digital Legal Information System in the country so that all courts, legal departments, law schools would be able to access and retrieve information from the data bank of the important law libraries in the country." [Para 7.17.2] (148) Progressively the hierarchy of the subordinate courts in the country should be brought down to a two-tier of subordinate judiciary under the High Court. Further, strict selection criteria and adequate training facilities for the presiding officers of such courts should be provided. In order to cope up with the workload of cases at the lower level and also to curtail arrears and delay, the States should appoint honorary judicial magistrates selected from experienced lawyers on the criminal side to try and dispose less serious and petty cases on part-time Bar & Bench (www.barandbench.com)

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basis on the pattern of Recorders and Assistant Recorders in UK. They could set for, say, 100 days in a year and hold court later in the evenings after regular court hours. This would relieve the load on the regular magistracy. [Para 7.18] (149) Since the issues relating to human rights, more particularly relating to unlawful detention, have now occupied a center-stage, both nationally and internationally, it shall be desirable that the Protection of Human Rights Act, 1993 may be suitably amended to provide that, in addition to the powers generally vested in that Court, such courts shall have the power to issue directions of the nature of a habeas corpus as was available to the High Courts under section 491 of the CrPC. Vesting of such power will go a long way in providing help to the indigent and vulnerable sections of the society in view of the proximity and easy accessibility of the Court of Session. [Para 7.19.3] CHAPTER 8: UNION-STATE RELATIONS : LEGISLATION (150) Individual and collective consultation with the States should be undertaken through the Inter-State Council established under article 263 of the Constitution. Further, the Inter-State Council Order, 1990, issued by the President may clearly specify in para 4(b) of the order the subjects that should form part of consultation in the Inter-State Council. [8.2.13] (151) “Management of Disasters and Emergencies, Natural or Man-Made” should be included in List III of the Seventh Schedule. [Para 8.2.14] FINANCE (152) It might be worthwhile to provide explicitly for taxing power for the States in respect of certain specified services. For the Union also an explicit entry would be helpful, rather than leaving it to the residuary power of entry 97. However, it may be better to first let a consensus list of services to be taxed by the States come into force to be treated as the exclusive domain of the States, even if the formal taxing power is exercised by the Union. A de facto enumeration of services that can be taxed exclusively by the States should get priority from policy makers with a view to augmenting the resource pool of the States. Specific enumeration of services that may become amenable to taxation by the States should be made. An appropriate amendment to the Constitution in this behalf should be made to include certain taxes, now levied and collected by the Union, to be levied and collected by the States.[Para 8.5] TRADE, COMMERCE AND INTERCOURSE (153) For carrying out the objectives of articles 301, 302, 303 and 304, and other purposes relating to the needs and requirements of inter-State trade and commerce and for purposes of eliminating barriers to inter- Bar & Bench (www.barandbench.com)

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state trade and commerce Parliament should, by law, establish an authority called the ―Inter-State Trade and Commerce Commission‖ under the Ministry of Industry and Commerce under article 307 read with Entry 42 of List-I. [Para 8.8.2] RESOLUTION OF DISPUTES (154) Article 139A, which confers power on the Supreme Court to withdraw cases involving the same or substantially the same question of law, which are pending in Supreme Court and one or more High Courts, should be amended so as to provide that it can withdraw to itself cases even if they are pending in one court where such questions as to the legislative competence of the Parliament or State Legislature are involved. [Para 8.9.4] (155) As river water disputes being important disputes between two or more States and/or the Union, they should be heard and disposed by a bench of not less than three Judges and if necessary, a bench of five Judges of the Supreme Court for final disposal of the suit. [Para 8.11.7] (156) Appropriate provisions may be made as envisaged by article 145(1) in consultation with the Supreme Court or if the Supreme Court so opts to provide for the same by the Supreme Court Rules to appoint Commissioners or Masters and to have the evidence recorded not by the Supreme Court itself but by the Commissioners or Masters so that the precious time of the Supreme Court is saved. [Para 8.11.8] (157) Appropriate Parliamentary legislation should be made for repealing the River Boards Act, 1956 and replacing it by another comprehensive enactment under Entry 56 of List I. The new enactment should clearly define the constitution of the River Boards and their jurisdiction so as to regulate, develop and control all inter-State rivers keeping intact the adjudicated and the recognized rights of the States through which the inter-State river passes and their inhabitants. While enacting the legislation, national interest should be the paramount consideration as inter-State rivers are ‗material resources‘ of the community and are national assets. Such enactment should be passed by Parliament after having effective and meaningful consultation with all the State Governments.[Para 8.11.9] (158) In resolving problems and coordinating policy and action, Union as well as the States should more effectively utilize the forum of inter-State Council as recommended by the Commission on Centre-State Relations (Sarkaria Commission). This will be in tune with the spirit of cooperative federalism requiring proper understanding and mutual confidence and resolution of problems of common interest expeditiously. [8.12.4] (159) In order to reduce tension or friction between States and the Union and for expeditious decision-making on important issues involving States, the desirability of prior consultation by the Union Government Bar & Bench (www.barandbench.com)

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with the inter-State Council may be considered before signing any treaty vitally affecting the interests of the States regarding matters in the State List. [Para 8.13.3] EXECUTIVE (160) The powers of the President in the matter of selection and appointment of Governors should not be diluted. However, the Governor of a State should be appointed by the President only after consultation with the Chief Minister of that State. Normally the five year term should be adhered to and removal or transfer should be by following a similar procedure as for appointment i.e. after consultation with the Chief Minister of the concerned State. [Para 8.14.2] (161) In the matter of selection of a Governor, the following matters mentioned in para 4.16.01 of Volume I of the Sarkaria Commission Report should be kept in mind:- (i) He should be eminent in some walk of life. (ii) He should be a person from outside the State. (iii) He should be a detached figure and not too intimately connected with the local politics of the State. (iv) He should be a person who has not taken too great a part in politics generally, and particularly in the recent past. In selecting a Governor in accordance with the above criteria, the persons belonging to the minority groups should continue to be given a chance as hitherto. [Para 8.14.3] (162) There should be a time-limit – say a period of six months – within which the Governor should take a decision whether to grant assent or to reserve a Bill for consideration of the President. If the Bill is reserved for consideration of the President, there should be a time-limit, say of three months, within which the President should take a decision whether to accord his assent or to direct the Governor to return it to the State Legislature or to seek the opinion of the Supreme Court regarding the constitutionality of the Act under article 143.[Para 8.14.4] (163) Suitable amendment should be made in the Constitution so that the assent given by the President should avail for all purposes of relevant articles of the Constitution. However, it is desirable that when a Bill is sent for the President's assent, it would be appropriate to draw the attention of the President to all the articles of the Constitution, which refer to the need for the assent of the President to avoid any doubts in court proceedings. [Para 8.14.6] (164) A suitable Article should be inserted in the Constitution to the effect that an assent given by the President to an Act shall not be permitted to be argued as to whether it was given for one purpose or another. When the President gives his assent to the Bill, it shall be deemed to have been given for all purposes of the Constitution. [Para 8.14.7] Bar & Bench (www.barandbench.com)

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(165) Following proviso may be added to article 111 of the Constitution: "Provided that when the President declares that he assents to the Bill, the assent shall be deemed to be a general assent for all purposes of the Constitution." Suitable amendment may also be made in article 200. [Para 8.14.8] (166) Article 356 should not be deleted. But it must be used sparingly and only as a remedy of the last resort and after exhausting action under other articles like 256, 257 and 355. [Paras 8.18 and 8.19.2] (167) In case of political breakdown, necessitating invoking of article 356, before issuing a proclamation thereunder, the concerned State should be given an opportunity to explain its position and redress the situation, unless the situation is such, that following the above course would not be in the interest of security of State, or defence of the country, or for other reasons necessitating urgent action. [Para 8.19.5] (168) The question whether the Ministry in a State has lost the confidence of the Legislative Assembly or not, should be decided only on the floor of the Assembly and nowhere else. If necessary, the Union Government should take the required steps, to enable the Legislative Assembly to meet and freely transact its business. The Governor should not be allowed to dismiss the Ministry, so long as it enjoys the confidence of the House. It is only where a Chief Minister refuses to resign, after his Ministry is defeated on a motion of no-confidence, that the Governor can dismiss the State Government. In a situation of political breakdown, the Governor should explore all possibilities of having a Government enjoying majority support in the Assembly. If it is not possible for such a Government to be installed and if fresh elections can be held without avoidable delay, he should ask the outgoing Ministry, (if there is one), to continue as a caretaker government, provided the Ministry was defeated solely on a issue, unconnected with any allegations of maladministration or corruption and is agreeable to continue. The Governor should then dissolve the Legislative Assembly, leaving the resolution of the constitutional crisis to the electorate. [Para 8.20.3] (169) The problem of political breakdown would stand largely resolved if the recommendations made in Chapter 4 in regard to the election of the leader of the House (Chief Minister) and the removal of the Government only by a constructive vote of no-confidence are accepted and implemented. [Paras 8.20.3 and 8.20.4] Normally, President‘s Rule in a State should be proclaimed on the basis of Governor‘s Report under article 356(1). The Governor‘s report should be a ―speaking document‖, containing a precise and clear statement of all material facts and grounds, on the basis of which the Bar & Bench (www.barandbench.com)

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President may satisfy himself, as to the existence or otherwise of the situation contemplated in article 356. [Para 8.20.5] (170) In clause (5) of article 356 of the Constitution, in clause (a) the word “and” occurring at the end should be substituted by the word “or” so that even without the State being under a proclamation of Emergency, President's rule may be continued if elections cannot be held. [Para 8.21.3] (171) Whenever a proclamation under article 356 has been issued and approved by the Parliament it may become necessary to review the continuance in force of the proclamation and to restore the democratic processes earlier than the expiry of the stipulated period. For this, new clauses (6) & (7) to article 356 may be added on the following lines: ―(6)Notwithstanding anything contained in the foregoing clauses, the President shall revoke a proclamation issued under clause (1) or a proclamation varying such proclamation if the House of the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such proclamation. (7) Where a notice in writing signed by not less than one-tenth of the total number of members of the House of the People has been given, of their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a proclamation issued under clause (1) or a proclamation varying such proclamation: (a) to the Speaker, if the House is in session; or (b) to the President, if the House is not in session, a special sitting of the House shall be held within fourteen days from the date on which such notice is received by the Speaker, or, as the case may be, by the President, for the purpose of considering such resolution.‖. [Para 8.21.4] (172) Article 356 should be amended so to ensure that the State Legislative Assembly should not be dissolved either by the Governor or the President before the proclamation issued under article 356(1) has been laid before Parliament and it has had an opportunity to consider it.[8.22.3] (173) Government may consider the demands of the Coorgies for a Sainik School, a Development Board and a University for them in Coorg. [Para 8.23.1] (174) Steps may be taken for better protection of Sindhi language and culture by setting up of a Centre of Sindhi Language and Culture with the State providing necessary facilities for the same. Difficulties faced by the Sindhi migrants may be examined and corrective measures taken to facilitate grant of citizenship as per the existing law. [Para 8.23.2]

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CHAPTER 9: DECENTRALISATION AND DEVOLUTION (PANCHAYATS) (175) Article 243K and 243Z should be amended on the following lines: 1. Amendment of Article 243K.- In article 243K,- (a) for clause (1), the following clauses shall be substituted, namely:- ―(1) Subject to the provisions of clause (1A), the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. (1A) The Election Commission shall have the power to issue any directions or instructions to the State Election Commission for the discharge of its functions under clause (1).‖. (b) after clause (4), the following clause shall be inserted, namely:- ―(5) The State Election Commission shall submit its annual report to the Election Commission and to the Governor, every year and it may, at any time, submit special reports on any matter which in its opinion is of such urgency or importance that it should not be deferred till the submission of its annual report.‖. 2. Amendment of article 243ZA.- In article 243ZA, for clause (1), the following clauses shall be substituted, namely:- ―(1) Subject to the provisions of clause (1A), the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in article 243K. (1A) The Election Commission shall have the power to issue any directions or instructions to the State Election Commission for the discharge of its functions under clause (1).‖.[Para 9.6.2] (176) Panchayats should be categorically declared to be ‗institutions of self-government‘ and exclusive functions be assigned to them. For this purpose, article 243G should be amended to read as follows:- "Powers, authority and responsibility of Panchayats 243G. Subject to the provisions of this Constitution, the Legislature of a State shall, by law, vest the Panchayats with such powers and authority as are necessary to enable them to function as institutions of self- government and such law shall contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as shall be specified therein, with respect to- (a) preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as shall be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.". Bar & Bench (www.barandbench.com)

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Similar amendments should be made in Article 243W relating to the powers, authority and responsibilities of Municipalities, etc.[9.7.1&9.7.2] (177) The Eleventh and Twelfth Schedules to the Constitution should be restructured in a manner that creates a separate fiscal domain for Panchayats and Municipalities. Accordingly, articles 243H and 243X should be amended making it mandatory for the legislation of the States to make laws devolving powers to Panchayats and Municipalities. [9.8.2] (178) In order to enable the Finance Commission to take a macro-level view, the provisions sub-clauses (bb) and (c) of clause (3) of article 280 should be amended. The words “on the basis of the recommendation” in these sub-clauses should be replaced by the words “after taking into consideration the recommendations.” [Para 9.8.3] (179) In the part of clause (1) of article 243-I which calls for constitution of State Finance Commission (SFC) at the expiration of every fifth year, in line with article 280(1), the words “or at such earlier time as the Governor considers necessary” may be added after the words „fifth year‟. While it is for the State Legislature to ensure that the Government implements fully its assurances, there should be constitutional obligations for placing the Action Taken Report (ATR) before the legislature within ‗six months‘ after the submission of the report. Clause (4) of article 243-I may need to be amended accordingly. [Para 9.8.4] (180) The necessary legislative power of fixing upper limit of taxes on professions, trades, callings and employment under article 276 should be vested in Parliament by suitably amending that article. [Para 9.8.5] (181) All local authorities may be allowed to borrow from the State Government and financial institutions. [Para 9.8.6] (182) An enabling provision should be made in Part IX of the Constitution permitting the State Legislature to make, by law, provisions that would empower the State to confer on Panchayats full power of administrative and functional control over such staff as are transferred following devolution of functions, notwithstanding any right they may have acquired from State Act/Rules. They should also have the power to recruit certain categories of staff required for service in their jurisdiction. [Para 9.9.1] (183) A proviso to clause (1) of article 243E should be inserted to the effect that a reasonable opportunity of being heard shall be given to a Panchayat before it is dissolved. [Para 9.10] (184) A provision for constitution of a State Panchayat Council under the chairmanship of the Chief Minister [on the pattern of Gujarat State Council for Panchayats as provided in the Gujarat Panchayats Act, 1993] should be made in the Constitution on the analogy of the provision in article 263 of the Constitution relating to the Inter-State Council. The leader of the Bar & Bench (www.barandbench.com)

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opposition may be made ex-officio vice-chairman of the Council to provide a consensual approach to the development of Panchayats as fully democratic, efficient and responsible institutions. [Para 9.11] (185) Necessary provisions should be made for audit of Panchayat accounts to ensure that all works related to audit (conduct of audit, submission of audit report and compliance with audit objections if any) are completed within a year of the close of a financial year. To ensure uniformity in the practice relating to audits of accounts, the Comptroller and Auditor-General of India should be empowered to conduct the audit or lay down accounting standards for Panchayats. [Para 9.12] MUNICIPALITIES (186) Whenever a Municipality is superseded, a report stating the grounds for such dissolution should be placed before the State Legislature. [Para 9.13] (187) All provisions regarding qualifications and disqualifications for elections to local authorities should be consolidated in a single law and until that is done, each State should prepare a manual of existing provisions for public information. [Para 9.14] (188) The State Election Commission (SEC) should have the authority to prescribe ceiling of expenses and code of conduct in elections. Further, the State laws should clearly specify the powers of the SEC to disqualify candidates or set aside elections in the event of violations of those laws. [Para 9.15] (189) It should be the duty of a State and the Union (in case of Panchayats and Municipalities located in Union territories) to ensure the completion of elections within the stipulated limits. It should also be duty of the State Election Commissioner to ensure this and in the event of possible delay make a report to the Governor of the State drawing his attention to the problems and suggesting remedial action to fulfill the requirements of the Constitution. Articles 243K and 243 ZA should be suitably amended to specify that the responsibility for the conduct of elections shall include all preparatory steps for the same including the electoral rolls and matters connected therewith and the responsibility for the same shall vest with the State Election Commission. [Para 9.16.2] (190) The functions and responsibilities of delimitation, reservation and rotation of seats and matters connected therewith should be vested in a delimitation Commission constituted by law by the appropriate legislature and not in the SEC. [Para 9.16.2] (191) The Representation of the People Act and State laws should specify that common polling stations should be used for elections to local bodies, State Legislatures and Parliament. [Para 9.17.2] Bar & Bench (www.barandbench.com)

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(192) The State laws should provide guidelines for the delimitation work such as parity, as far as possible, in the ratio between the population of a territorial constituency and the number of seats within the same class of Panchayats or Municipalities. [Para 9.17.3] (193) State laws should specify that changes in the administrative boundaries of districts, sub-divisions, taluks, police stations, etc., should not be made within six months prior to a panchayat or a municipal election. [Para 9.17.4] (194) To remove ambiguities, articles 243D and 243T should be suitably amended to provide for rotation and changes only at the time of delimitation and not in between. State laws should provide the guidelines for the process of reservation which should ensure transparency and adequate opportunities for eliciting voter response. [Para 9.18.2] (195) To clarify the precise position of reservation under clause (6) of article 243D and clause (6) of article 243T to be provided by the State law, the overall total of reserved seats and reserved offices in Panchayats and Municipalities should be specified. [Para 9.18.3] (196) State Election Commissioner should have a fixed term of 5 years. He/she should be equal to a Judge of the High Court. The broad qualifications for a State Election Commissioner may be specified under State law. [Para 9.19.1] (197) The concept of a distinct and separate tax domain for municipalities should be recognised. This concept should be reflected in a list of taxes in the relevant schedule. Carving out items from the existing State lists such as item 49 (taxes on land and buildings) and item 52 (taxes on entry of goods into a local area for consumption) should not be difficult. [Para 9.21] INSTITUTIONS IN NORTH EAST INDIA (198) The North Eastern part of India with its large number of tribal communities and emerging educated elites has self-governing village councils and organized tribal chiefdoms. Efforts are to be made to give all the States in this region the opportunities provided under the 73rd and 74th Constitution Amendments. However, this should be done with due regard to the unique traditions of the region and the genius of the people without tampering with their essential rights and giving to each State the chance to use its own nomenclature for systems of governance which will have local acceptance. [Para 9.22.3] (199) Careful steps should be taken to devolve political powers through the intermediate and local-Ievel traditional political organisations, provided their traditional practices carried out in a modern world do not deny legitimate democratic rights to any section in their contemporary society. The details of state-wise steps to devolve such powers will have to be carefully considered in a proper representative meeting of Bar & Bench (www.barandbench.com)

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traditional leaders of each community, opinion builders of the respective communities and leaders of State and national stature from these very groups. A hasty decision could have serious repercussions, unforeseen and unfortunate, which could further complicate and worsen the situation. To begin with, the subjects given under the Sixth Schedule and those mentioned in the Eleventh Schedule could be entrusted to the Autonomous District Councils (ADCs). The system of in-built safeguards in the Sixth Schedule should be maintained and strengthened for the minority and micro-minority groups while empowering them with greater responsibilities and opportunities, for example, through the process of Central funding for Plan expenditure instead of routing all funds through the State Governments. The North Eastern Council can play a central role here by developing a process of public education on the proposed changes, which would assure communities about protection of their traditions and also bring in gender representation and give voice to other ethnic groups. [Para 9.23(i)] (200) Traditional forms of governance should be associated with self- governance because of the present dissatisfaction. However, positive democratic elements like gender justice and adult franchise should be built into these institutions to make them broader based and capable of dealing with a changing world. [Para 9.23(ii)] (201) The implementation of centrally funded projects from various departments of the Union Government should be entrusted to the ADCs and to revived village councils with strict monitoring by the Comptroller and Auditor-General of India. [Para 9.23(iii)] (202) The process of protection of identity and the process of development and change are extremely sensitive. These twin processes need to be understood in the framework of a changing world and the role of all communities, small and large, in that world. Therefore, the North Eastern Council should be mandated to conduct an intensive programme of public awareness, sensitization and education through non- government organizations, State Governments, and its own structure to help bring about such an understanding of the proposals. [Para 9.23(iv)] (203) The provisions of the Anti-Defection Law in the proposed revised form as recommended in para 4.18.2 of the Report should be made applicable to all the Sixth Schedule areas. [Para 9.23(v)] (204) Given the demographic imbalance which is taking place in the North-East as a result of illegal migration from across the borders, urgent legal steps are necessary for preventing such groups from entering electoral rolls and citizenship rolls of the country. Reservations for local communities and minorities from other parts of the country Bar & Bench (www.barandbench.com)

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should be made in the State Legislatures. Issuance of multi-purpose identity cards to all Indian citizens should be made mandatory for all Indian residents in the North East on a high-priority basis and the National Citizenship Law to be reviewed to plug the loopholes which enable illegal settlers to become ‗virtual‘ citizens in a short span of time, using a network of touts, politicians and officials. [Para 9.23(vi)] (205) A National Immigration Council should be set up under law to examine and report on a range of issues including Work Permits for legal migrants, Identity Cards for all residents, a National Migration Law, a National Refugee Law, review of the Citizenship Act, the Illegal Migrants Determination by Tribunal Act and the Foreigners Act. [Para 9.23(vii)] (206) Local communities should be involved in the monitoring of our borders, in association with the local police and the Border Security Force. [Para 9.23(viii)] (207) As regards Nagaland, Naga Councils should be replaced by elected representatives of various Naga society groups with an intermediary tier at the district level. Village Development Boards should be less dependent on State and receive more Centrally-sponsored funds. [9.25] (208) As regards Assam - (i) the Sixth Schedule should be extended to the Bodoland Autonomous Council with protection for non-tribal, non-Bodo groups, (ii) other Autonomous Councils be upgraded to Autonomous Development Councils with more Central funds for infrastructure development; within the purview of the 73rd Amendment but also using traditional governing systems at the village level. [Para 9.28] (209) As regards Meghalaya, – (1) A tier of village governance should be created for a village or a group of villages in the Autonomous District Councils, comprising of elected persons from the traditional systems plus from existing village councils with not more than 15 persons at each village unit. (2) The number of seats in each of the Autonomous District Councils in Meghalaya should be increased by 10 seats, i.e., to a total number of 40 seats. Of the 10 additional seats, having regard to the non- representation of women and non-tribals, the Governor may nominate up to five members from these categories to each of the ADCs. The other five may be elected as follows:- (a) By Syiems and Myntris, from among themselves to the Khasi Autonomous Council. (b) By Dolois from among themselves to the Jaintia Autonomous District Council; and (c) By Nokmas from among themselves to the Garo Autonomous District Council. [Para 9.29] Bar & Bench (www.barandbench.com)

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(210) As regards Tripura, – (i) The changes which may be made in respect of other Autonomous Councils should also apply in respect of the Autonomous District Council(s) in Tripura. (ii) The number of elected members in the Council should be increased from 28 to 32. (iii) The number of nominated members should be increased to six from the current two. The existing non-tribal seats (currently, they have three elected seats) be converted to tribal seats. Three non-tribals may be nominated by the Governor and three tribal women may be nominated by the Chief Executive Member. [Para 9.30] (211) As regards Mizoram, – (i) An intermediary elected 30-member tier should be developed at the district level in areas not covered by the Sixth Schedule, i.e., excluding the Chakma, Lai and Mara District Autonomous Councils. There would thus be two tiers below the State Legislature: the District and the Village. (ii) Village Councils in non-Scheduled areas should be given more administrative and judicial powers; two or more villages be combined to form one village council, given the small population in the State. (iii) Consideration should be given to groups seeking Sixth Schedule status, depending on viability of the demand, including size of population, territorial and ethnic contiguity. (iv) Central funding as outlined in general recommendations should be provided to the ADCs. (v) Nominated seats for women, non-tribals and Sixth Schedule tribes in non-scheduled area (not to exceed six over and above the size of the Councils, making a total of 36 members); current size of ADCs should be increased to 30 with a similar provision for women and non- scheduled tribes. [Para 9.31] (212) As regards Manipur, (i) the provisions of the Sixth Schedule should be extended to hill districts of the State, (ii) the 73rd Amendment should be implemented vigorously in the areas of the plains where, despite elections, the system is virtually non-existent. [9.32] CHAPTER 10: PACE OF SOCIO-ECONOMIC CHANGE & DEVELOPMENT (213) The Citizens‘ Charters be prepared by every service providing department/agency to enumerate the entitlements of the citizens. In case a citizen fails to receive the public goods and the services in the manner and to the extent set out in such charters, he/she should have recourse to an easy and effective system of grievance redressal through chartered Ombudsman. These citizen‘s charters should include specifically the Bar & Bench (www.barandbench.com)

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entitlements of citizens belonging to Scheduled Castes (SCs), Scheduled Tribes (STs) and other deprived classes. In the case of these deprived classes the charters can with advantage provide for National and State Commission for SCs, STs, BCs (Backward Classes), Minorities, women, safai karamcharis to function effectively as ombudsman-bodies. The charter of these National and State Commissions and the way they are constituted should be such as to facilitate the role, inter alia, as ombudsman-bodies for different deprived classes. [Para 10.3.2] (214) The Civil Services Boards, recommended to be set up under Chapter 6 for considering promotions and placements, should be directed to specifically consider the performance of officers in promoting the welfare of Scheduled Castes, scheduled tribes and other deprived categories. When officers are being considered for promotion and placement economic agencies/ministries, weightage should be given to officers who have worked conscientiously and efficiently to implement constitutional values and norms under the law and rules and regulations for the welfare, development and empowerment of the above disadvantaged categories and those who have failed in this and those who have not worked at least for five years in the areas and sectors pertaining to these categories should be excluded from placements in economic ministries/agencies. For this purpose, the provision should be made for Social Justice Clearance before an officer of class I or class II is promoted along the lines detailed in para 3.2 at pages 1390-1391 of Book-3, Vol.II. [Para 10.3.3] (215) Reservation for members of the SCs and the STs should be brought under purview of a statute covering all aspects of reservation, as detailed in para 8.10 at pages 1406-1408 of Book-3, Vol.II, including setting up Arakshan Nyaya Adalats or Tribunal to adjudicate upon all cases and disputes pertaining to reservation in posts and vacancies in Government, Public Sector, Banks and other financial institutions, Universities and all other institutions and organisations to which reservations are and become applicable. These Tribunals should have the status of High Courts, appeals lying only to the Supreme Court. These Tribunals should have their main Bench at Delhi and other Benches in the States. The Chairperson, Vice-Chairperson and other Members of the Tribunal and its benches should be selected on the basis of their record in the implementation of Reservation in their earlier positions. The statute should, inter alia, have a penal provision including imprisonment for those convicted of wilfully or negligently failing to implement reservation. The statute and related provisions should be brought under the Ninth Schedule to the Constitution. [Para 10.3.4] Bar & Bench (www.barandbench.com)

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(216) The three Constitution amendments enacted in the last two years to undo the harm done in 1997 to the long pre-existing rights of SCs and STs in reservations should be put into effect forthwith. The Central and State Governments should amend the executive orders issued in 1997 regarding the roster and restore the pre-1996 roster. This should also be brought under the purview of the statute mentioned above. [Para 10.3.5] (217) Reservation for backward classes should also be brought under a statute which, while containing the specificities of reservation for BCs should also contain provisions for Arakshan Nyaya Adalats or Tribunal for providing Justice in reservation, penal provisions, etc. as recommended in case of statute in respect of SCs and STs. [Para 10.3.6] (218) It should be mandatorily stipulated in the Memoranda of Understanding (M.O.Us.) of privatisation or dis-investment of public sector undertakings that the policy of reservation in favour of SCs, STs and BCs shall be continued even after privatisation or dis-investment in the same form as it exists in the Government and this should also be incorporated in the respective statutes of reservation. As a measure of social integration there should be a half per cent reservation for children of parents one of whom is SC/ST and the other parent is non-SC/non-ST and this reservation should be termed as reservation for the Casteless. [Para 10.3.7] (219) In view of the weighty opinion against the formal introduction of reservation in the higher judiciary, and the fact that over fifty years, the progress of education, however tardy, has certainly produced adequate number of persons of the SC, ST and BC in every State who possess the required qualifications, having necessary integrity, character and acumen required for Judges of Supreme Court and High Courts for appointment as Judge of the superior judiciary, a way could and should, therefore, be found to bring a reasonable number of SCs, STs and BCs on to the Benches of the Supreme Court and High Courts in the same way in which, in practice, it is found is followed in respect of advocates from different social segments/regions of the country/States or different religious communities so that on the one hand the overwhelming opinion against formal reservation in the Supreme Court and High Courts is respected and on the other hand, the feeling of alienation of the vast majority of Indians comprising SCs, STs and BCs that, in spite of having persons of requisite calibre and character among them, they are being ignored in the appointment of Judges, is resolved. [Para 10.3.9] (220) There should be reservation for SCs, STs and BCs (including BC minorities and especially More and Most Backward classes), with a due proportion of women from each of these categories in the matter of Bar & Bench (www.barandbench.com)

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allotment of shops under the public distribution system, and other allotments like petrol stations, gas agencies, etc. for distribution of commodities by public authority. There is need for support mechanism to help entrepreneurs among these deprived sections to help them to come up in these business ventures. These measures should be taken on lines as spelt out in para 4.6 at pg 1393 of Book-3 Vol.II. [10.3.10] (221) Massive programmes of employment should be undertaken and expanded to cover all such people and provide them employment at statutory minimum wage fixed for agricultural labourers at least for 80 days in the year over and above the unsteady employment they normally have. The nature of the work to be undertaken, the mode of payment of wages etc. should be as detailed in para 4.5 at pages 1392 to 1393 of Book-3 of Volume-II. Inclusion of Right to Work as a fundamental right has been recommended in para 3.13.2 of this Report and this will provide the necessary constitutional base and support for this programme. [Para 10.3.11] (222) Residential schools for SCs and STs should be established in every district in the country – one each for SC boys and SC girls, and ST boys and ST girls, as one item of an important package of comprehensive measures required for development and empowerment of SCs and STs. Similarly, the Commission recommends that residential schools should be set up for the BCs in every district, one each for BC boys and BC girls, including minorities who belong to BCs and with special attention to More Backward and Most Backward classes among BCs. The proportion of the students of the specific category of weaker sections (say 75%) and of other social categories (say25%), principles of location, methodology of covering the Minority B.C., phasing and funding, mode of selection of the candidates, management etc. should be as detailed in paras 5.4 and 6.2 at pages 1395 to 1397 of Book 3 of Volume II. This system has got the support of the precedent and experience for the last two decades in Andhra Pradesh state, providing ground for hope in this important and indispensable measure. In addition, the Commission recommends that it is also necessary to see that the SCs, STs and BCs especially the Most Backward classes of BCs from poor and middle-class families get due benefit of good and prestigious private educational institutions in the country as well as in foreign educational institutions at all levels and in all disciplines, at state cost. Funding for this can be found by measures outlined in sub-para (v) of para 5.4 at page 1396 of Book 3 of Vol- II. The measures detailed in sub para (ii) and (iv) of para 5.4 at pages 1395 and 1396 of Book 3 of Volume II should be followed in the matter. [10.4.1] Bar & Bench (www.barandbench.com)

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(223) Incentives should be offered to students to prepare for such courses of study in technical, vocational, scientific and professional disciplines. Only a massive transfer of resources to the educational programmes for the SCs and STs will enable us to achieve the kind of quantitative expansion needed to bring these communities on par with others in terms of skills and knowledge base to engage with the modern world. It is only then that they would be in a position to compete on the basis of their own strength and rise to the leadership role in different spheres of public life. This aspect of measures for building up a reservoir of highly educated professional, scientific and technological manpower among these categories in population equivalent proportion should be borne in mind along with its earlier recommendations regarding residential schools of high quality and elementary education, and provisions and outlays should be made accordingly. [Para 10.4.3] (224) Social policy should aim at enabling the SCs, STs and BCs (including BC minorities and especially the More and Most Backward Classes among BCs) and with particular attention to the girls in each of these categories to compete on equal terms with the general category. This was always necessary but this becomes more important and increasingly urgent in the context of a knowledge society that is emerging. Reservation has helped the above deprived categories to enter state educational institutions from which they had been debarred and / or otherwise excluded in the past. Reservation continues to be necessary since these adverse factors have not ceased to exist. But with the growth of high quality educational institutions built up by the wealthier sections, almost entirely drawn from non-SC, non-ST, non-BC categories, as a high quality stream distinct and separate from the state educational system, it becomes important to ensure that other measures in addition to reservations are introduced. Without these measures, along with the Commissions recommendations on elementary education, the gap between the SC, ST and BC on the one hand and the rest of society will inexorably continue and even be widened. [Para 10.4.4] (225) The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, should be strictly enforced to bring to an early end to this degrading practice of manual scavenging so offensive to human dignity without abridgement of the employment and income of existing Safai Karamcharis. Automatic applicability of the Act to all States should be brought about by the amendment suggested in para 7.2 at page 1399 of Book 3 of Volume II. Further, the specifics and details of the abolition of the manual scavenging system and the liberation and rehabilitation of safai karamcharis and protection of safai karamcharis Bar & Bench (www.barandbench.com)

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during the transition period should be as detailed in para 7.3 of pages 1399 to 1401 of Book 3 of Volume II, including its incorporation in the System of Social Justice Clearance of officers at the time of their consideration for promotion. Limitations placed on the National Commission for Safai Karamcharis should be removed and it should be given the same powers and functional autonomy as is being enjoyed by the National Human Rights Commission; it should be adequately equipped to achieve its objective of total liberation and full rehabilitation of safai karamcharis. This should form an integral part of a National Sanitation Policy-cum-National Social Justice Policy. [Para 10.5] (226) The bleak situation will continue to bedevil the SCs and STs and the nation unless appropriate new institutions are created to take charge of the full quantum of outlay of SCP and TSP (i.e. outlay not less than the population equivalent proportion of the total plan outlay of the Centre/each State) and manned by competent experts of SCs and STs and others genuinely working for them, to formulate Plans in accordance with the developmental needs and priorities of the SCs and STs and ensure that these plans are implemented effectively. This new institutional system should consist of an integrated network of National Development Council for SCs and STs, and National SCs and STs Development Authority, State SCs and STs Development Authorities and District SCs and STs Development Authorities. Out of the total plan outlay of the Centre and of each State, before sectoral allocations are made, an outlay equivalent to the population proportion of SCs and STs should be placed at the disposal of the National and respective State Authorities, as the corpus of SCP and TsP for formulation of plans in accordance with the needs and priorities of SC & ST. For this, the system as detailed in para 9.2 at pages 1409 to 1411 of Book-3, Volume- II should be established. The schemes as illustrated in sub-para (9) of para 9.2 at pages 1410-1411 of Book-3, Volume-II should also be taken up on a massive scale. This will at one stroke remove the various limitations and difficulties faced by the SCP and TSP and create a powerful, integrated instrument of social transformation based on the vision of economic liberation, educational equality and social dignity of the SCs and STs. [Para 10.6.2] (227) Land reforms involving distribution and allotment of lands from different sources (i.e. Government lands not required for genuine public use, Bhoodan lands, ceiling surplus lands, etc.) to the SCs and STs along with supportive mechanism in the shape of supply of subsidised capital and credit and extension be made, and development of these lands through irrigation and other means be undertaken. In this context, the Bar & Bench (www.barandbench.com)

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measures recommended at (b) of sub-para (9) of para 9.2 at page 1410 of Book-3, Volume-II and in para 14(i) to (vi) at pages 1416 to 1417 of Book-3, Volume-II should be implemented. Similarly, with regard to enforcement of the Minimum Wages Act for agricultural labour, the methodology recommended at (c) of sub-para (9) of para 9.2 of page 1410 Book-3, Volume-II should be followed. Strong legal action is needed to prevent alienation of lands belonging to the tribal communities and effective prior rehabilitation of tribals before displacement due to developmental projects. For this purpose, the measures listed in para 13.2 at page 1414 to 1415 of Book-3, Volume-II should be undertaken. Additionally, the tribal communities have to be associated with the management of forest resources, for not only their livelihoods, but also for protecting their way of life and cultural identity which are indissolubly linked to forests. For this purpose, action as recommended in sub-paras (10) and (11) of para 13.2 at page 1416 of Book-3, Volume- II should be taken. [Para 10.7.1] (228) In the matter of harmonising the preservation of the land ownership of STs, industrial and other development, action should be taken as outlined in sub-paras (6), (8) and (9) of para 13.2 of pages 1415 to 1416 of Book-3, Volume-II. [Para 10.7.2] (229) Special safeguards should be provided to protect the wholesome traditions of the cultural heritage and of the intellectual property rights of the tribal people. This is no less important for the tribal identity than the effort to prevent alienation of land and land-related institutional rights of tribal people. [Para 10.7.3] (230) All areas governed by the Fifth Schedule to the Constitution should be forthwith transferred to the Sixth Schedule extending the applicability of the Sixth Schedule to tribal areas other than the North Eastern States to which alone the Sixth Schedule now applies, and all tribal areas which are neither in the Fifth Schedule nor in the Sixth Schedule should also be brought forthwith under the Sixth Schedule. Special programmes of training and orientation for elected representatives of the Sixth Schedule bodies and related officials should be undertaken & conducted regularly in order to secure full potential of local developmental and administrative autonomy envisaged under the Sixth Schedule. [Para 10.7.4] (231) The Government should step in firmly and clearly, if the gap is to be bridged between private prejudices, in the name of ―efficiency‖ on the one hand and the just aspirations of the SC, ST, BC including BC minorities, and women. For this, the Government should take the initiative along the lines suggested in para 11.3 at pages 1412 and 1413 of Book-3, Volume-II. [Para 10.7.5] Bar & Bench (www.barandbench.com)

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(232) Further, the Government should examine other economic and activity sectors at every level of each such sector and see whether the SCs and STs are adequately represented in each of them. If they are not, remedial measures either through reservation or through other means should be undertaken to see that they are adequately represented at every level in every such sector. Similar action should also be taken with regard to backward classes including BC minorities, especially More and Most Backward Classes and women of all categories. This is possible, if non-economic prejudices are excluded, without watering down the genuine requirements of efficiency. [Para 10.7.6] (233) Agriculturists and other traditional producing classes face certain adverse effects of sudden and unprepared exposure to the regimes of WTO, IPR, etc. In order to protect them from these adverse effects while at the same time to secure the benefits of those regimes, a national convention should be convened involving Ministers in charge of Ministries connected with globalisation and Ministers in charge of Agriculture and other sectors of traditional produce and authentic representatives of the peasant organizations as well as organisations of other traditional producing classes, to identify remedial Steps arrive at a consensus about them and these should be implemented quickly. There should be a continuing mechanism involving all these to continuously monitor implementation and corrections and modifications required from time to time. [Para 10.7.7] (234) Agriculturists and many other traditional producing classes suffer from the adverse effects of natural calamities like drought, cyclone, floods, etc. A similar national convention should identify the measures required to protect them from such adverse effects of natural calamities including crop insurance, preparedness etc., arrive at a consensus about these measures and institute a continuing machinery of continuous monitoring and corrections and modifications. [Para 10.7.8] (235) On the one hand, there should be an effective legal structure to protect the SCs and STs against atrocities and discriminatory practices based on untouchability and along with such structure and its efficient functioning and on the other hand, there should also be attitudinal change of a profound nature in the general society. [Para 10.8.1] (236) With regard to legal structure, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 needs to be strengthened and its effective enforcement ensured. This include the establishment of special courts exclusively to try offences under this Act, inclusion of certain crimes in the list of atrocities, certain penal provisions where they do not exist, appropriate plugging of certain loopholes and Bar & Bench (www.barandbench.com)

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comprehensive rehabilitation of victims and so on. For this purpose, the measures suggested in para 8.2.1, 8.2.2, 8.2.3, 8.3 and 8.4 (a) to (p) of Book-3, Vol.II at pages 1401 to 1404 should be taken. [Para 10.8.2] (237) Regarding untouchability which continues to be widely prevalent in old classic forms as well as in new forms in line with modern developments, multi-pronged measures covering human rights education, moral education, building up of a strong democratic movement against untouchability and effective punitive action under the Protection of Civil Right Acts, 1955 (PCR Act) are required. In view of this, the entire gamut of measures suggested in paras 8.6 to 8.8 at pages 1404 and 1405, Book-3, Vol.II should be taken. [Para 10.8.3] (238) The National Science and Technology Commission referred to in Chapter 6 should also promote measures for extending the umbrella of modern science and technology and higher scientific and technological research to cover SCs, STs and BCs, women and other poor sections of the society, devise means by which they can also be introduced into this field and potential talent among them identified and nurtured so that they also are enabled to contribute to the advancement of higher scientific and technological research in the country and so that there is no feeling that they are shut out from this important area on account of non-scientific prejudices. [Para 10.9] (239) The Constitution of India contains distinct provisions for the protection and promotion of the interests of Scheduled Castes and Scheduled Tribes, Backward classes, women, minorities and other weaker sections. It is necessary to strengthen these provisions by amendments, etc. and certain other similar steps. Accordingly, the amendments to the Constitution listed in para 15 at pages 1417 and 1418 of Book-3, Vol.II, covering articles 46, 335, 16, 15 and List III of the Seventh Schedule should be carried out.[Para 10.10] (240) As regards the minorities, the following shall be implemented:- (a) Steps should be taken for improvement of educational standards amongst the minority communities. Special programmes should be drawn up after the widest consultation with the leaders of minority communities including leaders of BCs, SCs and STs among Minorities from academic, professional, business, and socio-political spheres and from low-occupational spheres. Such programmes should be generously funded. Only educational and cultural advancement will help the cause of national integration as well as raise the capabilities of the communities. This is the high road to national cohesion. (b) At present the political representation of minority communities in legislatures, especially Muslims, has fallen well below their proportion Bar & Bench (www.barandbench.com)

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of population. The proportion of BCs among them is next to nil. This can lead to a sense of alienation. It is recommended that in situations of this kind, it is incumbent for political parties to build up leadership potential in the minority communities, including BCs, SCs and STs among them, for participation in political life. The role of the state for strengthening the pluralism of Indian polity has to be emphasised. (c) Backward classes belonging to religious minorities who have been identified and included in the list of backward classes and who, in fact, constitute the bulk of the population of religious minorities should be taken up with special care along with their Hindu counterparts in the developmental efforts for the backward classes. This should be on the pattern of the approach to the development of Backward Classes formulated by the Working Group for the Development and Empowerment of Backward Classes in the Tenth Plan referred to separately under Backward Classes. (d) An effort needs to be made to carry out special recruitment of persons belonging to the underrepresented minority communities in the police forces of States, para military forces and armed forces.[10.11.2] (241) In every State, the linguistic minorities should be provided the facility of having instruction for their children at elementary stage of education in their mother tongue. Numerous recommendations in this behalf and other matters have been made by the Commissioner for Linguistic Minorities in his successive Annual Reports regarding the various problems faced by the linguistic minorities. The Government of India in the Ministry of Social Justice and Empowerment and the Ministry of Human Resources Development should collate all these recommendations and see that substantive action is taken on each of them. [Para 10.11.3] (242) The denotified tribes/communities have been wrongly stigmatized as crime prone and subjected to highhanded treatment as well as exploitation by the representatives of law and order as well as by the general society. Some of them are included in the list of Scheduled Tribes and others are in the list of Scheduled Castes and list of backward classes. The special approach to their development has been delineated and emphasized in the Reports of the Working Groups for the Development of Scheduled Tribes, Scheduled Castes and Backward Classes in successive Plans and also in the Annual Reports of the Commissioners for Scheduled Castes and Scheduled Tribes, National Commission for Scheduled Castes and Scheduled Tribes and the National Commission for Backward Classes. There are also special reports available on de-notified tribes. Their recommendations have not Bar & Bench (www.barandbench.com)

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received attention. The Ministry of Social Justice and Empowerment and the Ministry of Tribal Welfare should collate all these materials and recommendations contained in the reports of the working groups and the reports of the National Commissions and other reports referred to and strengthen the programmes for the economic development, educational development, generation of employment opportunities, social liberation and full rehabilitation of denotified tribes. Whatever has been said about vimuktajatis also holds good for nomadic and semi-nomadic tribes/communities. Similar action should be taken in respect of nomadic and semi-nomadic tribes/communities as done in the case of de-notified tribes or vimuktajatis. The continued plight of these groups of communities distributed in the list of Scheduled Castes, Scheduled Tribes and backward classes is an eloquent illustration of the failure of the machinery for planning, financial resources allocation and budgeting and administration in the country to seriously follow the mandate of the Constitution including article 46. The setting up of an integrated net work of National Scheduled Castes and Scheduled Tribes Development Authority, etc. recommended in para 10.5.2 to 10.5.3 will provide a structural mechanism to deal in a practical way with the vimuktajatis as well as nomadic and semi-nomadic tribes/ communities within the frame work of the SCP and TsP. Similarly the approach to the development of backward classes referred to at para 10.14 contains the approach to deal in a practical way with the Vimuktajatis and nomadic and semi-nomadic tribes/communities who are in Backward Class list. [Para 10.12.1] (243) The Commission also considered the representations made on behalf of the De-notified and Nomadic Tribal Rights Action Group and decided to forward them to the Ministry of Social Justice & Empowerment with the suggestion that they may examine the same preferably through a Commission. [Para 10.12.2] (244) The Union legislation for agricultural workers, drafted as far back as 1978-80, should be introduced and passed immediately. A realistic scheme of credible implementation of minimum wages Acts with particular attention to agricultural labours, relying to a suitable degree on the district Collectors/Dy. Commissioners and district superintendents of police, should be immediately put into action. For this purpose the measures suggested in para 17.2 at page 1413 of Book 3 Vol.II should be followed. [Para 10.13.2] (245) Despite prohibition of begar and other forms of forced labour by the Constitution, the practice of bonded labour has not ended as it is patronised by the most powerful sections in the rural areas. Child labour too is widespread. In order to deal effectively with this problem in Bar & Bench (www.barandbench.com)

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keeping with the mandate of the Constitution, the Commission recommends that a fully empowered National Authority for the Liberation and Rehabilitation of bonded labour, as recommended by the Commission for Rural Labour in 1990-91, should be set up immediately along with similar authorities at the State level. In addition, simultaneous rehabilitation of released Bonded Labourers and education for released bonded child labourers and other measures referred to in para 19.2 at page 1414 of Book 3,Vol.II should be taken. [Para 10.14] (246) The Government should immediately implement every one of the recommendations of the Working Group on Employment of Backward Classes in the Tenth Plan which covers all aspects and fields of their development – Economic, Educational, social, employment, reservation, etc. – taking in with particular care those backward classes who belong to religious minorities along with their Hindu counterparts in a cohesive manner. For example, some of the residential talent schools earmarked for Backward Classes should be located in areas of concentration of Muslim B.Cs. Further there should be residential talent schools for backward classes as separately recommended for SCs and STs at the rate of one each for boys and girls in each district, 75% being taken from backward classes and 25% from other categories. The Government should without any delay introduce reservation for backward classes in seats in educational institutions since absence of promotion of their education through reservation and other means when there is reservation of employment is anomalous. [Para 10.15] (247) Action in accordance with the suggestions made in para 16.2 at page 1412 of Book 3 Vol.II, covering reservation, development, empowerment, health including malnutrition and maternal anaemia and protection against violence should be taken.[Para 10.16] (248) The problems relating to prostitution, child prostitutes and children of prostitutes have been the subject of a landmark judgment of the Supreme Court in Gaurav Jain's case of 9th July, 1997 and the Report of Committee of Secretaries on Prostitution, Child Prostitutes and children of Prostitutes set up in 1997 as explained in para 20.1 and 20.2 at pages 1414 to 1415 of Book 3 Vol.II. In respect of this area of problem, the Government should take action according to the suggestion listed at para 20.3 at page 1415 of Book 3 of Vol. II, covering implementation of the judgement and the Secretaries‘ report, eliminating the Devadasi system, provision of development and education and prevention of HIV / AIDS. [Para 10.17] **********

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Annexure P-3

BACKGROUND PAPER ON ELECTORAL REFORMS

(PREPARED BY THE CORE-COMMITTEE ON ELECTORAL REFORMS)

LEGISLATIVE DEPARTMENT MINISTRY OF LAW AND JUSTICE GOVERNMENT OF INDIA

CO-SPONSORED BY THE ELECTION COMMISSION OF INDIA

December, 2010 Bar & Bench (www.barandbench.com)

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I. Executive Summary India stands as a model for many emerging democracies around the world. Free and fair elections are the hallmark of a well functioning democracy. While we are justifiably proud of our democracy, there are a number of areas which need to be strengthened for us to realise the true potential of a well functioning democracy. Our election system, from the selection of candidates, to the manner in which funds are raised and spent in election campaigns, are in dire need of significant changes. There has been a growing concern over the years in India about several aspects of our electoral system. The Election Commission has made changes in several areas to respond to some of the concerns. There have also been a number of committees which have examined the major issues pertaining to our electoral system and made a number of recommendations. But there remain some critical issues that might need legislative action to bring about the required changes. The criminalisation of our political system has been observed almost unanimously by all recent committees on politics and electoral reform. Criminalisation of politics has many forms, but perhaps the most alarming among them is the significant number of elected representatives with criminal charges pending against them. Two measures recommended by previous committees are discussed in this paper: enforcement of the disclosure of criminal antecedents of candidates, and eligibility restrictions for candidates with criminal cases pending against them. The financing of elections has become a major issue in the past few decades. It is widely believed that the cost of fighting elections has climbed far above the legal spending limits. This has resulted in lack of transparency, widespread corruption, and the pervasiveness of so-called „black money‟. This paper summarises proposals made on the following issues: limits on campaign expenditure, disclosure and audit of assets and liabilities of candidates and parties, methods of reducing the cost of political campaigns, as well as state funding of elections. The conduct of elections also has a number of issues that need to be addressed. While the massive size of the electorate makes holding elections a daunting task, it should not serve as a justification for the presence of issues such as booth capturing, intimidation of voters, tampered electoral rolls, large-scale rigging of elections and other polling irregularities; the proliferation of non-serious candidates; and the abuse of religion and caste in the mobilization of voters. Potential solutions to these problems are outlined in this paper. This paper also takes consideration of major issues dealing with the role of political parties in the electoral system: proliferation of non-serious parties; process of recognition and de-recognition of political parties; disclosure of assets and liabilities of parties; and audit and publishing of assets and liabilities. Resolution of election petitions and disputes, as well as rulings on defections, are two important processes seen to be operating in a slow and inefficient manner by many pervious committees. Paper reviews recommendations made to mitigate these problems. The Ministry of Law and Justice, Government of India, has constituted a Committee on Electoral Reforms. The main purpose of the Committee is to recommend to the government concrete ways in which our electoral system can be strengthened. The Committee will take into account the opinions of political leaders, Government servants, legal experts, NGOs, scholars, academics, journalists, and other stakeholders. The purpose of this background paper is to recap some of the key issues with our electoral system, and to briefly examine the recommendations made by some recent committees in this regard. It is hoped that this background paper will be a starting point to renew a national dialogue on the important changes that need to be brought about to strengthen our electoral system. Bar & Bench (www.barandbench.com)

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II. Approach to Background Paper The purpose of this paper is to provide background information on issues in our electoral process and outline some electoral reform options that have been considered in the past, in order to serve as a platform for a renewed national dialogue on electoral reforms.

2.1 In this background paper, the Committee on Electoral Reforms does not endeavour to make any recommendations of its own; rather it presents the recommendations made by various committees to date in order to fulfil its purpose of providing background information for substantive dialogue in regional and national consultations.

2.2 The topic of electoral reforms has been taken up by numerous government committees in the recent past, including but not limited to: . Goswami Committee on Electoral Reforms (1990) . Vohra Committee Report (1993) . Indrajit Gupta Committee on State Funding of Elections (1998) . Law Commission Report on Reform of the Electoral Laws (1999) . National Commission to Review the Working of the Constitution (2001) . Election Commission of India – Proposed Electoral Reforms (2004) . The Second Administrative Reforms Commission (2008)

2.3 There has also been a great deal of substantive work on the topic of Electoral Reforms undertaken by various civil society groups, which have contributed significantly to the public discourse on the subject. While acknowledging the contribution of these groups, the Committee limits its discussion of reform recommendations in this paper to those published by the committees mentioned above.

2.4 A number of committees have discussed major structural reforms of the electoral system, such as a shift away from the First Past the Post (FPTP) system of representation. We will explore options for electoral reform within the framework of current system and will not address these larger structural issues in this paper.

2.5 This background paper is also being made available on the website of the Law Ministry. It is hoped that many more stakeholders will be able to provide inputs either online or by post to the Ministry of Law and Justice, Government of India. The work of this Committee will be enriched by such inputs, and the Committee looks forward to wide participation in the weeks ahead from experts and ordinary citizens. III. Introduction

3.1 The founding fathers of India opted for a Parliamentary democracy as the appropriate model for a large and diverse country like ours. The general elections in India are a mammoth exercise, with over 700 million voters, and about one million polling booths in the country. This awe inspiring effort is widely hailed as a model for the conduct of free and fair elections. 3.2 In our experience of holding elections for six decades, a number of issues have come to the fore from time to time. Legislative changes were made, the Election Commission developed a Code of Conduct, and passed several strictures with a view to conducting elections in a smooth manner. But in recent years, there have been some alarming trends that have been noticed which can potentially jeopardise the democratic freedoms we enjoy in India today. 3.3 At a more fundamental level, if citizens do not have faith in the way our elected representatives are chosen, there is danger to the very idea of democracy itself. Widely held views among the public with regard to criminalisation of politics, the use Bar & Bench (www.barandbench.com)

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of money power in securing votes, the paid-news disease are some of the issues that are enlarging the trust deficit with regard to our elections. This needs to be stemmed at the earliest and in a clear and transparent manner to regain the trust of the citizens in our democratic process.

3.4 Civil society groups, journalists, and other observers of the process have been playing an important role in identifying a number of the weaknesses of our existing system. There have been efforts to use the courts to seek to push reform on this important issue. The widely known practice of every candidate having to declare their assets, liabilities and pending criminal cases came about as a result of a landmark court judgement.

3.5 Election Commission has been at the forefront of initiating efforts to strengthen the electoral system. But its own mandate can sometimes be a limiting factor. In this context it would be necessary to examine the issue with regard to legislative and other changes that will be required to make electoral system work better for all our citizens.

3.6 In recent years a number of committees have examined several aspects of our electoral process and have recommended important changes to the system. Some of these recommendations have been implemented & yet there is much more to be done.

3.7 In order to take the agenda forward, the Ministry of Law and Justice, Government of India has constituted a Committee on Electoral Reforms. This Committee seeks to hold regional consultations followed by a national consultation in order to develop a set of actionable recommendations. Every effort would be made by this Committee to reach out to a wide set of experts and stakeholders and to benefit from the insights and experience of all concerned. The objective of these recommendations would be to provide the basis of developing legislative and other proposals which can then be

IV. Criminalization of Politics

Most recent Committee on electoral reforms have almost universally acknowledged criminalisation of our polity at both national and state levels and across party lines.

The criminalisation of our political system has been observed almost unanimously by all recent committees on politics and electoral reform. Criminalisation of politics has many forms, but perhaps the most alarming among them is the significant number of elected representatives with criminal charges pending against them. Two measures recommended by previous committees are discussed in this paper: enforcement of the disclosure of criminal antecedents of candidates, and eligibility restrictions for candidates with criminal cases pending against them.

The Vohra Committee Report on Criminalisation of Politics was constituted to identify the extent of the politician-criminal nexus and recommend ways in which the menace can be combated. In Chapter 4 of the report of the National Commission to Review the Working of the Constitution, cites the Vohra report as follows: “The nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country” and that “some political leaders become the leaders of these gangs/armed senas and over the years get themselves elected to local bodies, State assemblies, and national parliament.” This point becomes self evident when one looks at the number of elected representatives with pending criminal cases against them at all levels in our federal system. A number of remedies have been proposed by the various committees on the criminalization of politics in the country. Bar & Bench (www.barandbench.com)

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4.1 Disclosure of criminal antecedents of candidates

Currently, Rule 4A of the Conduct of Election Rules, 1961, prescribes that each candidate must file an affidavit (Form 26 appended to Conduct of Election Rules, 1961) regarding (i) cases, if any, in which the candidate has been accused of any offence punishable with imprisonment for two years or more in a pending case in which charges have been framed by the court, and (ii) cases of conviction for an offence other than any of the offences mentioned in Section 8 of Representation of the People Act, 1951, and sentenced to imprisonment for one year or more. In addition to this, pursuant to the order of the Supreme Court the Election Commission on March 27, 2003, has issued an order that candidates must file an additional affidavit stating (i) information relating to all pending cases in which cognizance has been taken by a Court, (ii) assets and liabilities, and (iii) educational qualifications. The affidavit is given in a form prescribed by the Election Commission of India.

Section 125A of the R.P. Act, 1951 prescribes penalties for withholding or providing incorrect information on Form 26, which amount to imprisonment of up to six months, or fine, or both.

In its report entitled Proposed Electoral Reforms, 2004 the Election Commission of India notes that “in some cases, the candidates leave some of the columns blank…there have been cases where candidates are alleged to have given grossly undervalued information.”

 Recommendations In its report on Proposed Election Reforms, 2004, the Election Commission of India recommended that an amendment should be made to Section 125A of the R.P. Act, 1951 to provide for more stringent punishment for concealing or providing wrong information on Form 26 of Conduct of Election Rules, 1961 to minimum two years imprisonment and removing the alternative punishment of assessing a fine upon the candidate. It also recommended that Form 26 be amended to include all items from the additional affidavit prescribed by the Election Commission, add a column requiring candidates to disclose their annual declared income for tax purpose as well as profession.

The Law Commission of India Report on Reform of the Electoral Laws, 1999, suggested that an amendment be made to the Representation of the People Act, 1951, to insert a new section 4A after section 4 to make declaration of assets and criminal cases pending against the candidate part of the qualifications necessary for membership to the House of the People. 4.2 Eligibility of candidates with criminal cases pending against them Section 8 of the Representation of the People Act, 1951, provides for disqualification of candidates from contesting an election on conviction by a Court of Law. In subsection (1), it lists certain crimes and stipulates a disqualification period of six years from the date of conviction. In subsection (2) it lists a different set of crimes and provides for the candidate to be disqualified from the date of conviction and for a period of six years since his release. In subsection (3), it provides that any candidate convicted for a crime for which the minimum imprisonment is two years shall also be disqualified from the date of conviction and will continue to be disqualified for six additional years after his release.  Recommendations The Election Commission proposed in its 2004 report that Section 8 of the Representation of the People Act, 1951 should be amended to disqualify candidates accused of an offence punishable by imprisonment of 5 years or more even when trial is pending, given that the Court has framed charges against the person. In the report the Bar & Bench (www.barandbench.com)

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Commission addresses the possibility that such a provision could be misused in the form of motivated cases by the ruling party. To prevent such misuse, the Commission suggested a compromise whereas only cases filed prior to six months before an election would lead to disqualification of a candidate. In addition, the Commission proposed that Candidates found guilty by a Commission of Enquiry should stand disqualified.

The report “Ethics in Governance” of the Second Administrative Reforms concurred with the recommendation of the Election Commission.

In Chapter 4 of its report, the National Commission to Review the Working of the Constitution proposed several measures. Firstly, it proposed that Section 8 of the Representation of the People Act, 1951, be amended such that a candidate accused of an offence punishable by imprisonment of 5 years or more be disqualified on the expiry of a period of one year from the date the charges were framed against him, and unless cleared during that one year period, he shall remain disqualified until the conclusion of his trial. It also recommended that in case a candidate is convicted by a court of law and sentenced to imprisonment of six months or more, he shall be disqualified during the period of the sentence and for six additional years after his release. Candidates violating this provision should be disqualified and political parties putting up such a candidate with knowledge of his antecedents should be derecognised and deregistered. Thirdly, the Commission has stated that any person convicted for any heinous crime such as murder, rape, smuggling, dacoity, etc., should be permanently barred from contesting political office. Finally, the Commission proposes the establishment of Special Courts to decide cases against candidates within a period of six months or less. Potential candidates against whom charges are pending may take the matter to the Special Court, which can decide if there is indeed a prima facie case justifying the framing of the charges. Special Courts would be constituted at the level of High Courts and decisions would be appealable only to Supreme Court.

The 1999 Law Commission of India Report takes a separate stand, suggesting that Section 8 remain unchanged. It suggests, however, the addition of a new section – Section 8B, which would provide a separate set of penalties for electoral offences and offences having a bearing upon the conduct of elections under sections 153A and 505 IPC and serious offences punishable with death or life imprisonment. The proposed Section 8B would provide that framing of charges shall be a ground of disqualification but this disqualification shall last only for a period of five years or till the acquittal of the person of those charges, whichever event happens earlier. If a candidate is found guilty they would automatically be disqualified under Section 8.

4.3 Negative or Neutral Voting

The criminalisation of politics, widespread corruption in the system, and use of violence, voter intimidation, etc may result in there being no desirable candidates within those contesting elections in a particular constituency. Currently there is no way for voters to express their dislike for all candidates. The lack of such a provision may further contribute to the decay in the system in such cases by encouraging only those voters who support such compromised candidates to vote, returning those same leaders to power again and again.

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 Recommendations

Both the Election Commission and Law Commission of India recommend that a negative or neutral voting option be created. Negative/ neutral voting means allowing voters to reject all of the candidates on the ballot by selection of a “none of the above” option instead of the name of a candidate on the ballot. In such a system there could be a provision whereas if a certain percentage of the vote is negative/neutral, then the election results could be nullified and a new election conducted.

V. Financing of Election

It is widely believed that in many cases successfully contesting an election costs a significant amount of money that is often much greater than the prescribed limits.

A Consultation Paper to the National Commission to Review the Working of the Constitution, 2001, noted that “the campaign expenditure by candidates is in the range of about twenty to thirty times the legal limits”.

There are many negative social impacts of this high cost. Chapter 4 of the Report of the National Commission to Review the Working of the Constitution, 2001, notes that the high cost of elections “creates a high degree of compulsion for corruption in the public arena” and that “the sources of some of the election funds are believed to be unaccounted criminal money in return for protection, unaccounted funds from business groups who expect a high return on this investment, kickbacks or commissions on contracts, etc.” It also states that “Electoral compulsions for funds become the foundation of the whole super structure of corruption”.

A number of remedies have been recommended by previous committees for curbing the negative impact of the high cost of elections:

5.1. Official limits on campaign expenditure

Currently, limits on campaign expenditure are fixed at certain amounts depending on the nature of the election. However, it is believed that these limits are violated with audacity. This is mainly attributed to the fact that the actual cost of running an election campaign is often much greater than the prescribed spending limit.

 Recommendations

The National Commission to Review the Working of the Constitution, 2001, recommended that the existing ceiling on election expenses for the various legislative bodies should be suitably raised to a reasonable level reflecting increasing costs. The ceiling is currently Ra 25 lakhs for a Lok Sabha seat and Rs 10 lakh for an Assembly seat. In order to cope with rising expenditures over time, this ceiling should be fixed by the Election Commission from time to time and should include all the expenses by the candidate as well as by his political party or his friends and well-wishers and any other expenses incurred in any political activity on behalf of the candidate by an individual or corporate entity.

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also suggested a much bolder one: (a) either the statutory limit should be scrapped altogether and replaced by a selective ban on certain kinds of expenditure. Or the existing provisions should be amended to provide for: (i) much higher ceiling than what currently exists; (ii) regular revision of the ceiling before every general election; (iii) all the expenditure, irrespective of who paid for it, to be brought within the purview of this provision; (iv) mechanism for routine verification /auditing of the return of the expenditure; and (v) publicity of the returns filed by the candidate in the local press.

The Election Commission of India recommends that the ceiling on election expenditure be rationalized from time to time.

5.2 Disclosure audit of assets and liabilities of candidates

In an order dated March 27, 2003, the Election Commission of India issued an order, in pursuance of the Supreme Court judgment dated March 13, 2003 in the Peoples Union for Civil Liberties & Another Vs. Union of India case, that candidates for electoral office must submit an affidavit disclosing his assets and liabilities.

It has been noted by the Election Commission of India in its report Proposed Electoral Reforms, 2004, that “there have been many cases where the candidates are alleged to have given grossly undervalued information, mainly about their assets.”

 Recommendations

The National Commission to Review the Working of the Constitution recommended a follow-up action to the declaration of assets and liabilities by candidates - that the particulars of the assets and liabilities of both candidates and political parties should be audited by a special authority created specifically under law for this purpose. Accounts of candidates and parties should be monitored through a system of checking and cross- checking through the income tax returns filed by candidates, parties, and their well wishers. At the end of the election each candidate should submit an audited statement of expenses under specific heads.

In 2004 the Election Commission recommended than an amendment be made to Form 26 of Conduct of Election Rules, 1961, to include disclosure of assets and liabilities by candidates. To enforce complete compliance by candidates on Form 26, the Commission recommended that Section125A be amended such that there is more stringent punishment for concealing or providing wrong information on the form. The amendment would provide for minimum two years imprisonment and removal of the alternative punishment of assessing a fine upon the candidate.

5.3 Curbing the cost of campaigning

It has been noted by previous committees that in order to remedy the negative impact of the excessive cost of elections, the first step should be to reduce the cost of elections themselves.

 Recommendations

It was observed by both the Indrajit Gupta Committee on State Funding of Elections, 1999, and the National Commission to Review the Working of the Constitution, 2001, that many of the tools used for campaigning – such as wall writings, rallies on public Bar & Bench (www.barandbench.com)

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property, using loudspeakers for campaigning – are not only costly, but are also a public nuisance. Curbing these activities can both reduce the public nuisance caused by them and also reduce the amount of money needed to fight elections. For this purpose the Committees suggested that a suitable law should be enacted providing penalties or reasonable restrictions against damaging or desecrating public or private property by candidates, political parties, or the agents, through painting of slogans or erecting cut- outs and hoarding or putting up banners and buntings, wall writings, hoisting of flags (except at party offices, party offices, public meetings and other specified places), etc.

In addition, the National Commission to Review the Working of the Constitution, 2001, suggested the following measures: (i) State and Parliamentary level elections, to the extent possible, should be held at the same time; (ii) the campaign period should be reduced considerably, and (iii) candidates should not be allowed to contest election simultaneously for the same office from more than one constituency.

5.4 State Funding of Elections

A major concern associated with the high cost of elections is that it prevents parties and candidates with modest financial resources from being competitive in elections. It is also feared that if candidates need to raise funds from a variety of sources, then their policy decisions after being elected as policy makers may be somewhat biased in favour of groups that fund them. State funding of elections (in various forms) has been proposed as a potential solution to this problem.

 Recommendations

The Indrajit Gupta Committee on State Funding of Elections, 1998, backed the idea of state funding of elections on principle, stating that “The Committee see full justification constitutional, legal as well as on ground of public interest, for grant of State subvention to political parties, so as to establish such conditions where even the parties with modest financial resources may be able to compete with those who have superior financial resources.” It added two limitations, namely (i) such funds could not be doled out to independent candidates, and only to national and state parties having granted a symbol and proven their popularity among the electorate, and (ii) in the short-term, State funding may be given only in kind, in the form of certain facilities to the recognised political parties and their candidates. However, despite strongly backing full State funding of elections principle, it stated that only partial State funding would be possible in the short-term given the prevailing economic condition of the country.

The 1999 report of the Law Commission of India concurred with the Indrajit Gupta Commission, stating that “it is desirable that total state funding be introduced, but on the condition that political parties are barred from raising funds from any other source”. It also agreed with the Indrajit Gupta Commission that only partial state funding was possible at the present time given the economic conditions of the country. Additionally, it strongly recommended that the appropriate regulatory framework be put in place with regard to political parties (provisions ensuring internal democracy, internal structures and maintenance of accounts, their auditing and submission to Election Commission) before state funding of elections is attempted.

The Report “Ethics in Governance” of the Second Administrative Reforms Commission also recommended that “a system for partial state funding should be introduced to reduce the scope of illegitimate and unnecessary funding of expenditure for elections.” Bar & Bench (www.barandbench.com)

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The National Commission to Review the Working of the Constitution, 2001, did not comment on the desirability of State funding of elections but reiterated the point of the Law Commission that the appropriate framework for regulation of political parties would need to be implemented before proposals for State funding are considered. The Election Commission is not in favour of state funding as it will not be possible to prohibit or check candidate‟s own expenditure or expenditure by others over and above that which is provided by the State. The Election Commission‟s view is that for addressing the real issues, there have to be radical changes in the provisions regarding receipts of funds by political parties and the manner in which such funds are spent by them so as to provide for complete transparency in the matter.

VI. Conduct and Better Management of Elections

The massive size of the Indian electorate makes general elections an enormous and daunting exercise. But this should not prevent us from finding more ways of making the election process free and fair.

According to the Election Commission of India, the size of the electorate for the 2009 elections to the 15th Lok Sabha was more than 714 million. The National Commission to Review the Working of the Constitution, 2001, noted in its report that “the holding of general elections in India is equal to holding them for Europe, the United States, Canada, and Australia all put together.” Successful administration of the electoral process requires more than 50 lakh personnel and almost 1 million (10 lakh) polling booths. Millions of security personnel are required to promote a peaceful and incident-free voting experience.

Previous committees have recommended several changes in the conduct of the electoral process to properly address the challenges mentioned above. Major problems in the conduct of elections and proposed solutions are outlined below.

6.1 Irregularities in polling

Irregularities in polling procedure have been identified as important issues that need to be addressed in our electoral system. Rigging of elections have become common facets of our electoral system.

6.1.1 Importance of electoral rolls

The National Commission to Review the Working of the Constitution, 2001, rightly noted that “The electoral process begins with the preparation of electoral rolls. If the rolls are incomplete or defective, the whole process is vitiated.” A Consultation Paper to the National Commission to Review the Working of the Constitution noted that “political parties and influential persons manage large-scale registration of bogus voters, or large- scale deletion of names of “unfriendly” voters.” The Goswami Committee on Electoral Reforms stated that irregularities in electoral rolls are exacerbated by purposeful tampering done by election officials who are bought by vested interests or have partisan attitudes.

Aside from intentional tampering, the structure of the system set up to create electoral rolls may contribute significantly to the widespread inaccuracies. In the current system, the Election Commission prepares electoral roles for Parliamentary and Assembly constituencies, and the State Election Commissions prepare electoral rolls for local Bar & Bench (www.barandbench.com)

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elections. While some states have coordinated their electoral rolls with those prepared by the Election Commission, there are still some states that significantly modify them. Some states even have different qualifying dates for the State rolls from the Election Commission rolls, which is inefficient for both the Commissions involved and confusing for the voter. The duplication of essentially the same task between two different agencies is also an unnecessarily costly affair.

 Recommendations

The National Commission to Review the Working of the Constitution recommended in its 2001 report that an automated online database should be created by the Election Commission. In such a system, each voter would be provided with a unique bar-coded ID number, assigned for life. This bar-coded ID card and number could be verified at the polling booth by a hand held device. The electoral rolls in this system could be prepared at the panchayat or district level. Along with this, the Commission also recommended that the task of electoral roll preparation should not be duplicated as it is now, possibly by entrusting it to an outside agency under the supervision of the Election Commission. A centralized, computerized system could provide for the easy public availability of the electoral rolls as well.

The 2004 report on Proposed Electoral Reforms, the Election Commission concurred with the National Commission to Review the Working of the Constitution that there should be common rolls for all elections, with the Parliamentary and Assembly rolls adapted to suit the needs of local bodies elections. This is primarily recommended by the Commission for the purpose of saving on expenditure and to make the process more efficient.

The Goswami Committee of 1990 recommended that Post Offices should be the agencies for preparation and maintenance of electoral rolls. This solution may well be outdated in today‟s society where efficient computerized systems can be created. The Committee, did however, recommend a multi-purpose ID somewhat along the same lines as that proposed by the National Commission to Review the Working of the Constitution.

6.1.2 Rigging through muscle power and intimidation

Rigging of elections is possible not just through tampering of booths, ballots, and electoral roles, but also out of sheer „muscle power‟ and intimidation of voters.  Recommendations The Goswami Committee Report of 1990 recommended that the Election Commission should be empowered to take strong action on the report of returning officers, election observers, or civil society in regards to booth capture or the intimidation of voters. The National Commission to Review the Working of the Constitution recommends that the Election Commission should have the power under Section 58A of the Representation of the People Act, 1951, to order a fresh election, void the election results, or order a re-poll in such cases. It further recommended that the Election Commission should make use of electronic surveillance equipment as a deterrent to booth capture or intimidation of voters.

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6.2 Proliferation of candidates

There is a proliferation of candidates in Indian elections. According to the Election Commission of India, “too many candidates in the election fray puts unnecessary and avoidable stress on the management of elections and increases expenditure on account of security, maintenance of law and order, and requires extra number of balloting units of voting machines, etc”. It has been observed that a large number of candidates in the fray are non-serious candidates, which according to the Law Commission of India, makes elections “cumbersome, expensive and unmanageable – indeed farcical in some cases.” The National Commission to Review the Working of the Constitution notes that out of the 1900 independent candidates who contested the general election of 1998, only six actually won.

 Recommendations The Election Commission of India, Law Commission of India, and National Commission to Review the Working of the Constitution all recommend measures to check the proliferation of non-serious candidates. In their reports, all the Committees mentioned recommended increasing the security deposit of candidates. The recommendations of these Committees were enacted through the Representation of the People (Amendment) Act, 2009, which increased the amount. The Election Commission further recommends that it be given the power to prescribe deposit amounts prior to each election so that repeated amendments to the Representation of the People Act are not necessary.

The Law Commission of India Report on Reform of the Electoral Laws goes even further and declares that independent candidates should be debarred from contesting elections to the Lok Sabha.

The National Commission to Review the Working of the Constitution proposed a system of discouraging independent candidates from running for office, by implementing the following measures: (i) the existing security deposits for independent candidates should be doubled, (ii) the deposit should be doubled every year for those independents who fail to win and still keep contesting elections, (iii) if any independent candidate fails to win five percent of the vote or more, he should be debarred from contesting as an independent for the same office for six years, (iv) an independent candidate who loses election three times consecutively for the same office as an independent should be permanently debarred from contesting election to that office.

6.3 Measures for Election Commission

The Election Commission of India has recommended a number of improvements in electoral law to allow it to continue functioning in an effective and independent manner.

 Recommendations Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court. However, Clause (5) of Article 324 does not provide similar protection to the Election Commissioners and it only says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The provision, in the opinion of the Election Commission, is inadequate Bar & Bench (www.barandbench.com)

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and requires an amendment to provide the very same protection and safeguard in the matter of removability of Election Commissioners from office as is provided to the Chief Election Commissioner. The Election Commission recommends that constitutional protection be extended to all members of the Election Commission.

The ECI also recommends that the Secretariat of the Election Commission, consisting of officers and staff at various levels is also insulated from the interference of the Executive in the matter of their appointments, promotions, etc., and all such functions are exclusively vested in the Election Commission on the lines of the Secretariats of the Lok Sabha, and Rajya Sabha, Registries of the Supreme Court and High Courts etc.

The third recommendation of the Election Commission is that its budget be treated as “Charged” on the Consolidated Fund of India. 6.4 Restrictions on Government sponsored advertisements

It has been noted by the Election Commission that on the eve of election, the Central and various State Governments are able to advertise for the purpose of influencing elections, justifying it by providing information to the public. The expenditure on such advertisements is likely incurred from the public exchequer. The Election Commission feels this practice allows the misuse of public funds and provides the ruling party an undue advantage over other parties and candidates.  Recommendations

The Election Commission proposes that where any general election is due on the expiration of the term of the House, advertisements of achievements of the governments, either Central or State, in any manner, should be prohibited for a period of six months prior to the date of expiry of the term of the House, and in case of premature dissolution, from the date of dissolution of the House. Here, advertisements / dissemination of information on poverty alleviation and health related schemes could be exempted from the purview of such a ban. The Commission also recommends that there should be specific provisions that name or symbol of any political party or photograph of any of the leaders of the party should not appear on such hoardings/banners. 6.5 Restriction on the number of seats which one may contest

Section 33 of the Representation of the People Act, 1951, a person can contest a general election or a group of bye-elections or biennial elections from a maximum of two constituencies. There have been several cases where a person contests election from two constituencies, and wins from both. In such a situation he vacates the seat in one of the two constituencies. The consequence is that a bye-election would be required from one constituency which apart from involving avoidable labour and expenditure on the conduct of that bye-election.

 Recommendations The Election Commission is of the view that the law should be amended to provide that a person cannot contest from more than one constituency at a time.

6.6 Amendment of law to provide for filing of election petition even against defeated candidates on the ground of corrupt practice

As per the existing law, election petition can be filed only for challenging the election of a returned candidate. If a defeated candidate has indulged in corrupt practice, there is no provision for election petition or a declaration against such candidate. Bar & Bench (www.barandbench.com)

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 Recommendations

The Election Commission has recommended in its letter dated 24th April 2009 that the law should be amended to provide for filing election petitions in cases of commission of corrupt practice by a losing candidate. In the same letter, it was also suggested that the period by which the candidates are required to file their account of election expenses should be reduced to 20 days from the present 30 days, so that more time is available for others to scrutinize the accounts and to take the matter to the Court in Election Petitions in cases of spending in excess of the ceiling. Alternatively, the period for filing Election Petition may be increased to 60 days.

6.7 Restrictions on opinion polls

Previous committees on electoral law have debated the possibility of whether opinion polls are misused to manipulate voters on the eve of elections.

 Recommendations

The Election Commission had recommended that there should be provision in the law putting restrictions on publishing the results of opinion polls and exit polls for a specified period during the election process. By the recent amendment of the Representation of the People Act,1951, a new Section 126A has been inserted in the Act prohibiting conducting of exit polls and publishing results in any manner, during the period starting from 48 hours before the close of poll in an election. In a multi-phased election, the prohibition will last till the close of poll in the last phase.

However, the amendment does not cover opinion polls. Thus, results of opinion poll can be published even on the day of election polling. Although dissemination of results of opinion polls would be prohibited during the 48 hours period before the conclusion of poll by virtue of Section-126 (1) (b) on electronic media, there is no provision of law to restrict dissemination through print media (since 126(1)(b) doesn‟t apply to print media).

6.8 Prohibition of Campaign during the Last 48 Hours

Section 126 of the Representation of the People Act, 1951, prohibits electioneering activities by way of public meetings, public performance, processions, advertisements through cinematograph, television or similar apparatus during the period of 48 hours before the time fixed for conclusion of poll. Thus, political advertisements in TV and Radio are prohibited during these 48 hours. However, since this Section does not refer to print media, the political parties and candidates issue advertisements in newspapers during this period including on the day of poll. They also undertake house-to-house visits. The logic behind the restriction on campaigning during the 48 is to allow citizens to decide their option without being prejudiced by any last moment appeals.

 Recommendations

The Election Commission recommends that Section 126 should apply to print media as well. Furthermore, it recommends that house to house visits by candidates/supporters should be specifically prohibited during the said 48 hour period. It is the opinion of the Commission that the house-to-house visit/ contact in the last hours provides that opportunity for indulging in malpractices such as trying to bribe electors with cash.

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6.9 Ban on transfer of officers likely to serve elections

It is the opinion of the Election Commission that such transfers, often made on grounds other than administrative exigencies, disrupt the arrangements then underway for conducting smooth and peaceful elections.

 Recommendations

The Election Commission had recommended in 1998 that Section 13 CC of the Representation of the People Act, 1950, and Section 28A of the Representation of the People Act, 1951 should be amended to provide that no transfer shall be made, without the concurrence of the Commission, of any officer referred to therein, as soon as a general election/bye-election becomes due in any Parliamentary or Assembly Constituencies. The Commission has suggested that in the case of a general election either to the House of the People or to State Legislative Assembly, the ban may come into operation for the period of 6 months prior to date of expiry of the term of the House concerned, and in case of premature dissolution, from date of dissolution of House.

6.10 False declaration in connection with elections to be an offence

Section 31 of the Representation of the People Act, 1950, contains a provision providing for punishment with imprisonment up to one year for making a false declaration in connection with preparation/revision of electoral roll. There is no such provision in the Representation of the People Act, 1951, in relation to conduct of elections. During the course of an election, the Election Commission has observed several cases of such false statements/declarations before the election authorities such as by candidates, representatives of political parties etc. A provision for punishment for false statement / declaration would be a deterrent against frivolous complaints and petitions.

 Recommendations

The Election Commission recommends that there should be a provision for penal action against those making any false declarations in connection with an election. Such a provision would provide for a similar punishment for false declarations in connection with conduct of elections, such as false complaints of booth capturing or false complaints about the conduct of election officials.

6.11 Punishment for electoral offences to be enhanced

Undue influence and bribery at elections are electoral offences under Sections 171B and 171C, respectively, of the IPC. These offences are non-cognizable offences, with punishment provision of one year‟s imprisonment, or fine, or both. Under Section 171G, publishing a false statement in connection with an election with intent to affect the result of the election is only punishable with a fine. Section 171H provides that incurring or authorizing expenditure for promoting the election prospects of a candidate is an offence. However, punishment for an offence under this Section is a small fine of Rs 500.

 Recommendations

The Election Commission feels that considering the gravity of the offences under the aforesaid sections in the context of free and fair elections, the punishments under all the four sections should be enhanced. This was recommended by the Commission in 1992. Bar & Bench (www.barandbench.com)

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6.12 Restoring cycle of biennial retirement in the Rajya Sabha/Legislative Councils

A petition was submitted in the Patna High Court last year on the topic of restoring the cycle of biennial retirement in the Rajya Sabha and Legislative Councils. The High Court, in its order, observed that the Government and the Election Commission may consider the matter for a solution.

 Recommendations

In its December 2004 the Election Commission reiterated the earlier proposal for amending the law so as to ensure retirement of 1/3rd of the members in the Rajya Sabha and State legislative councils after every two years.

6.13 Expenditure ceiling for election to Council Constituencies

Presently the expenditure ceiling for candidates applies only for the Lok Sabha and Assembly elections.

 Recommendations

The Commission has in its letter dated 30th May 2007 proposed that this should also be applicable in the case of legislative council elections from the Council Constituencies. The candidate should also be required to submit the account of election expenses.

6.14 Misuse of religion for electoral gain by political parties

The Liberhan Ayodhya Commission of Inquiry recommended, inter alia, that complaints of misuse of religion for electoral gain should be speedily investigated into by the Election Commission. The Election Commission informed the government (Letter dated January 29, 2010) that such investigations should be carried out by the investigating agencies of the state. However, the Election Commission invited the attention of the government to the Representation of the People (Second Amendment) Bill, 1994, whereby an amendment was proposed providing for provision to question acts of misuse of religion by political parties before a High Court. Similar recommendations made by the Goswami Committee were included in a Bill introduced in the Rajya Sabha in May 1990. The Government withdrew this Bill in 1993, stating that a revised Bill would be introduced. However, these provisions have never been considered since then.

 Recommendations

The Goswami Committee on Electoral Reforms, in its report in 1990, made the following recommendations: “Election Commission shall have the power to make recommendations to the appropriate authority (a) to refer any matter for investigation to any agency specified by the Commission (b) Prosecute any person who has committed an electoral offence under this Act or (c) appoint any special court for the trial of any offence or offences under this Act (RP Act 1951).” The ECI recommends that abovementioned provisions should be reconsidered.

6.15 Totalizer for counting of votes Currently votes are tallied by individual EVMs at individual polling stations. This exposes the trend of voting in a particular voting station, making the electorate of that area vulnerable to backlash by candidates or elected officials in retribution. Bar & Bench (www.barandbench.com)

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 Recommendations

The Election Commission recommends an amendment be made to the Conduct of Elections Rules to provide for the use of „totalizer‟ for counting of votes cast at more than one polling station where EVMs are used, so that the trend of voting in individual polling station areas does not get divulged and the electors may not be subjected to any harassment or victimization on that account.

6.16 Re-examination of the provision of Teachers’ and Graduates’ Constituencies

Under Article 171 (3) (b) & (c ) of the Constitution, one-twelfth of the seats in the Legislative Councils are to be filled up by graduates and another one-twelfth by teachers who have been engaged in teaching in educational institutions not lower in standard than that of a secondary school. As per the provisions of this Article, a teacher teaching in the lower primary section in a secondary school is eligible to be enrolled as an elector for the Teachers‟ constituency, whereas a teacher teaching in the middle school in a middle/primary school will not be eligible to be an elector.

 Recommendations

The Election Commission recommends that the provisions of Article 171 (3) (c) should be amended so as to provide that all teachers of specified institutions irrespective of the level of the school would be eligible to be electors for the Teachers‟ constituency. Furthermore, the Commission is of the view that the concept of special representation for graduates and teachers should itself be reconsidered.

6.17 Victimization of officers drafted for election duties

The Election Commission utilizes the services of a large number of government officers for election duties, who perform important statutory functions in connection with preparation of electoral rolls and conduct of elections. The Election Commission has observed many of these officers are later subjected to humiliation and even vindictive disciplinary action by the government.

 Recommendations

The Election Commission recommends that in the case of the government officers performing statutory functions in connection with preparation of electoral rolls, or in the conduct of elections, consultation with the Election Commission and its concurrence should be made compulsory before initiating any disciplinary/legal proceedings by the government. In the case of those officers who have ceased to hold election related positions, consultation with the Commission should be mandatory for initiating any disciplinary/legal proceedings for a period of one year from the date on which the officer ceased to hold election related position.

6.18 Disqualification for failure to lodge election expenses Under Section 10A of the Representation of the People Act, 1951, the Election Commission may disqualify a candidate for three years for failure to lodge the account of election expenses as per the requirement of the law. Thus, the period of disqualification may end by the time of the next general election to that House. Therefore, no effective purpose is served by the disqualification (except that the person cannot contest in the odd bye-election that may be held during the 3 year period). Bar & Bench (www.barandbench.com)

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 Recommendations

The Election Commission recommends that the period of disqualification under Section 10A should be increased to 5 years, so that the disqualified person does not become a candidate at the next general election to the House concerned.

VII. Regulating Political Parties

Proliferation of political parties is stated as a major concern by many previous committees. Section 29A of the Representation of the People Act, 1951, allows for small groups of people to form political parties by making only a simple declaration.

In its 2001 report, the National Committee to Review the Working of the Constitution states that “it is a desirable objective to promote the progressive polarisation of political ideologies and to reduce less serious political activity.”

According to the Election Commission, a large number of non-serious parties create excessive load on the electoral system. Of the more than 1100 parties registered with the Election Commission in 2009, only about 360 actually contested the general election that year. The Commission also states that part of the problem is that there is no specific provision to de-register a party.

National Commission to Review the Working of the Constitution adds that while proliferation of smaller parties creates “confusion”, any tightening of regulation on the subject must also take into account “need to reflect the aspirations of a plural society.”

 Recommendations

Election Commission proposes that an amendment be made to Section 29A of the RPA, 1951, adding a clause “authorising the Election Commission to issue necessary orders regulating registration and de-registration of political parties.”

The National Commission to Review the Working of the Constitution, 2001, recommended that “the Election Commission should progressively increase the threshold criterion for eligibility for recognition so that the proliferation of smaller parties is discouraged. Only parties or a pre-poll alliance of political parties registered as national parties or alliances with the Election Commission be allotted a common symbol to contest elections for the Lok Sabha. State parties may be allotted symbols to contest elections for State Legislatures and the Council of States (Rajya Sabha).”

Furthermore, the above Commission recommended that “the rules and by-laws of the parties seeking registration should include provisions for: (a) A declaration of adherence to democratic values and norms of the Constitution in their inner party organisations, (b) A declaration to shun violence for political gains. (c) A declaration not to resort to casteism and communalism for political mobilisation, but to adhere to the principles of secularism in the achievement of their objectives, (d) A provision for party conventions to nominate and select candidates for political offices at the grass root and State levels (e) A code of conduct (which each political party should evolve for itself), Bar & Bench (www.barandbench.com)

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(f) Some institutional mechanism for planning, thinking, and research on crucial socio-economic issues facing the nation and educational cells for socialising their party cadres and preparing them for responsibilities of governance, (g) Implementation of legal provisions regarding representation to women and weaker sections of society in party offices and in candidacy for elections to Houses of Legislatures”

VIII. Auditing of Finances of Political Parties

As mentioned previously in this report, the high cost of elections provides a logic for corruption in the public arena. This affects not only candidates, but parties as well.

 Recommendations

The 2004 report of the Election Commission declared that political parties should be required to publish their accounts (or at least an abridged version) annually for information and scrutiny of the general public and all concerned, for which purpose the maintenance of such accounts and their auditing to ensure their accuracy is a pre- requisite. The auditing may be done by any firm of auditors approved by the Comptroller and Auditor General. The audited accounts should then be made public.

The Election and Other Related Laws (Amendment) Bill, 2002 (introduced in Lok Sabha on 19th March, 2002) sought to introduce section 29D in the Representation of the People Act, 1951 in this regard. The Department-Related Parliamentary Standing Committee on Home Affairs while examining the matter desired that the audit of accounts of donation received by the political party may be done through Chartered Accountants appointed by it as at present, as per the provisions of the Income-tax Act (section 13A). In view thereof the Committee recommended deletion of entire section 29D in Clause 2 of the Bill.

In 2001 National Commission to Review the Working of the Constitution recommended that “audited political party accounts like the accounts of a public limited company should be published yearly with full disclosures under predetermined account heads”.

The Law Commission, in its 1999 report, recommended steps be taken to amend the Representation of the People Act, 1951, to insert a new section 78A requiring the maintenance, audit and publication of accounts by political parties. To enforce compliance, Section 78A would prescribe the following penalties: (i) a political party which does not comply shall be liable to pay a penalty of Rs. 10,000/- for each day of non-compliance and so long as the non-compliance continues; (ii) If such default continues beyond the period of 60 days, the Election Commission may de-recognise the political party after affording a reasonable opportunity to show cause; (iii) If the Election Commission finds on verification, undertaken whether suo motu or on information received, that the statement of accounts filed is false in any particular, the Election Commission shall levy such penalty upon the political party, as it may deem appropriate besides initiating criminal prosecution as provided under law.

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In order to further transparency in the funding of political parties, the Election Commission recommends the following measures: (i) any receipt by a political party either directly or through the executives or the party functionaries should be deposited in the Bank Accounts of such parties, (ii) all payments by the political party exceeding Rs.20,000/- to a person should be made by crossed account payee cheque and (iii) all contributions or donations or gifts by any person to a party functionary other than those by his/her relative(s) shall be deemed as receipts of the political party and it will be accounted for by the political party.

IX. Adjudication of Election Disputes

Disputes relating to elections of the State Legislature and Union Legislature are adjudicated upon exclusively by the High Courts before whom election petitions under Section 80 and 80-A of the Representation of Peoples Act, 1951, are filed.

Sections 86(6) and 86(7) of the Representation of the People Act, 1951, provide that the High Court shall make an endeavour to dispose of an election petition within six months from its presentation and also as far as practicably possible conduct proceedings of an election petition on a day to day basis.

In practice, however, cases involving election petitions are rarely resolved in a timely manner. According to the report “Ethics in Governance” of the Second Administrative Reforms Commission, “such petitions remain pending for years and in the meanwhile, even the full term of the house expires thus rendering the election petition infructuous.

 Recommendations

The National Commission to Review the Working of the Constitution, recommended that special election benches designated for election petitions only should be formed in the High Court. The Election Commission has also made a similar recommendation.

The Second Administrative Reforms Commission, in its report “Ethics in Governance”, recommended in detail that: “Special Election Tribunals should be constituted at the regional level under article 329B of the Constitution to ensure speedy disposal of election petitions and disputes within a stipulated period of six months. Each tribunal should comprise a High Court judge and a senior civil servant with at least 5 years experience in the conduct of elections (not below the rank of an Additional Secretary to the Government of India/Principal Secretary of a State Government). Its mandate should be to ensure that all election petitions are decided within a period of six months as provided by law. The Tribunals should normally be set up for a term of one year only, extendable for a period of 6 months in exceptional circumstances.‟

X. Review of Anti-Defection Laws

In the report “Ethics in Governance” of the Second Administrative Reforms Commission, it is noted that “Defection has long been a malaise of Indian political life. It represents manipulation of the political system for furthering private interests, and has been a potent source of political corruption.” The report further notes that “there is no doubt that permitting defection in any form or context is a travesty of ethics in politics.” Bar & Bench (www.barandbench.com)

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The Anti-Defection provisions of the Tenth Schedule of the Constitution, enacted in 1985, fixed a certain number above which group defections were permitted. The National Committee to Review the Working of the Constitution noted that although individual defections became rare after this, group defection were “permitted, promoted and amply rewarded.”

The 91st Amendment to the Constitution, 2003, changed this by making it mandatory for defectors to resign their positions regardless of whether they defected as an individual or as part of a group.

Currently the issue of disqualification of members of Parliament or a State Legislature is decided by the Speaker or Chairman of the concerned House. Aside from those concerning the Tenth Schedule all other matters of post-election disqualification are decided by the President/Governor, on the advice of the Election Commission.

The Election Commission, in its 2004 report, noted that “all political parties are aware of some of the decisions of the Hon‟ble Speakers, leading to controversies and further litigation in courts of law.” National Committee to Review Working of the Constitution noted that “some of the Speakers have tended to act in a partisan manner and without a proper appreciation – deliberate or otherwise – of the provisions of the Tenth Schedule.”

 Recommendations

The National Commission to Review the Working of the Constitution recommend that “the power to decide on questions as to disqualification on ground of defection should vest in the ECI instead of in the Chairman or Speaker of the House concerned.”

The Election Commission and “Ethics in Governance” report of the Second Administrative Reforms Commission also both recommended that the issue of disqualification on grounds of defection should be decided by the President/Governor concerned under the advice of the Election Commission, instead of relying on the objectivity of the decision from the Speaker.

XI. Annexure: Update on Election Commission Recommendations

The Ministry of Law and Justice has prepared a table reviewing progress made on the recommendations suggested by the Election Commission in 2004. In July, 2004, the Election Commission has sent a set of 22 proposals on Electoral Reforms. Further, the entire matter of electoral reforms was referred to the Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice for examination by the Chairman, Rajya Sabha in the year, 2005. Out of 22 proposals the Hon‟ble Standing Committee gave its recommendations on six proposals including criminalization of politics. The Department has taken initiative and relevant provisions of the Representation of the People Act, 1950 and Representation of the People Act, 1951 have been amended to provide for (1) Appointment of Appellate Authority in districts against orders of Electoral Registration Officers; (2) to increase the security deposit of candidates; (3) Exit Polls; (4) All officials appointed in connection with conduct of elections to be included in clause (7) of section 123; and (5) Simplification of procedure for disqualification of a person found guilty of corrupt practice. The Hon‟ble Standing Committee did not favour the proposal on carrying out any amendment relating to the Criminalisation of politics. Bar & Bench (www.barandbench.com)

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Brief details of each of the proposal and remarks thereon are as under:-

Sl. Proposal of the Election Status/Remarks. No. Commission 1. Affidavits to be Filed by This relates to the merger of two affidavits Candidates on Criminal filed by a candidate one in terms of section Antecedents, Assets, etc. 33A of the Representation of the People Act, 1951, read with rule 4A of the Conduct of Election Rules, 1961(in Form 26) and another in the format prescribed by the Commission vide its order dated 27.3.2003, in pursuance of the Hon‟ble Supreme Court‟s judgment dated 13.3.2003 in Civil Appeal No. 490 of 2002 (PUCL versus Union of India). 2. Need to Increase the Security Enacted vide Representation of the People Deposit of Candidates (Amendment) Act, 2009 (Act 41 of 2009). 3. Criminalisation of Politics The Government had requested the This proposal relates to Parliamentary Standing Committee to give its disqualify any persons accused recommendations on the proposal of the of an offence punishable by Election Commission of India. The Committee imprisonment for five years or in its Eighteenth Report on the subject inter more, from contesting elections alia disagreed with the aforesaid proposal as it even when trial is pending, is a major departure from the law of the land provided charges have been that a person is not guilty until he is convicted framed against him by a by the highest court of the land. The competent court. Committee, however, recommended that proclaimed absconders under section 82 of the CrPC be disqualified from contesting polls. 4. Restriction on the Number of In the all party meeting held on 22.5.1998, it was Seats from which One May decided to retain the present provision of allowing Contest a person to contest from two constituencies of Proposal is to amend law to same nature. provide that a person cannot contest from more than one constituency at a time or if present provision is retained then there should be a provision which would mandate to deposit a definite sum in case a person get elected from both seats. 5. Exit Polls and Opinion Polls Enacted vide Representation of the People (Amendment) Act, 2009 (Act 41/2009) putting a restriction on publication and dissemination of results of exit polls. Restriction of opinion polls needs to be examined. 6. Prohibition of Surrogate Section127A deals publication of pamphlets, Advertisements in Print Media. posters, etc., but doesnot include advertisement Section 127A may be suitably in newspapers. The said section can be amended amended, adding a new sub- so as to include advertisement in print media also. section (2A) to the effect that in However, the matter of regulating advertisements the case of any advertisements / in the print media pertains to IB and Press Council election matter for or against any and proposal can be considered on the basis of political party or candidate in inputs from them. print media, during the election Bar & Bench (www.barandbench.com)

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period, the name and address of the publisher should be given along with the matter / advertisement. Sub-section (4) should also be suitably amended to include in its ambit the new proposed sub-section. 7. Negative / Neutral Voting The Committee on Electoral Reforms (Dinesh Goswami Committee) did not favour it and was of the view that it does not serve any purpose. 8. Appointment of Appellate Enacted vide Representation of the People Authority in Districts against (Amendment) Act, 2009 (Act 41 of 2009). Orders of Electoral Registration Officers 9. Compulsory Maintenance of The Election and Other Related Laws Accounts by Political Parties and (Amendment) Bill, 2002 (introduced in Lok Audit thereof. Sabha on 19th March, 2002) sought to introduce section 29D in the Representation of the People Act, 1951 in this regard. The Department-Related Parliamentary Standing Committee on Home Affairs while examining the matter desired that the audit of accounts of donation received by the political party may be done through Chartered Accountants appointed by it as at present, as per the provisions of the Income-tax Act (section 13A). In view thereof the Committee recommended deletion of entire section 29D in clause 2 of the Bill. 10. Government Sponsored The proposal requires further examination. Advertisements. Advertisements on poverty alleviation and The ECI proposes that where health related schemes could be exempted. any general election is due on Advertisements revealing information on the expiration of the term of the matters of urgent public interest could also be House, advertisements of exempted. Further, since advertisements could achievements of the be prohibited from carrying the name of any governments, either Central or political party or photographs of leaders and State, in any manner, should be Ministers. prohibited for a period of six months prior to the date of expiry of the term of the House. 11. Political Advertisements on The issue of advertisements on television and Television and Cable Network. cable networks, led to a lot of confusion during the recent general election. The Cable Television This relates to consider Network (Regulation) Rules, 1994, prohibit amending the relevant advertisements of political nature. provisions of the Cable The matter pertains to the Ministry of Television Network (Regulation) Information and Broadcasting and that Rules, 1994 to provide for Ministry is able to judge the feasibility of suitable advertisement code and evolving a suitable advertisement code and monitoring mechanism. monitoring mechanism for advertisement on television and cable networks in consultation of the Election Commission and Legislative Bar & Bench (www.barandbench.com)

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Department. 12. Composition of ECI and It was decided to include it as a proposal for Constitutional Protection to all regional and national consultation. ECs and Independent Secretariat for the Commission. 13. Expenses of Election The proposal to make the expenses of the Commission to be Treated as Election Commission of India „charged‟ was Charged. considered by the Dinesh Goswami Committee but was not favoured. In 1994, the Government, however, introduced the Election Commission (Charging of Expenses on the Consolidated Fund of India) Bill, 1994 in Lok Sabha on 16.12.94 which lapsed on the dissolution of the Tenth Lok Sabha. The Department-Related Parliamentary Standing Committee on Home Affairs in its 24th Report on the said Bill presented to Rajya Sabha on 28.11.1995 and was of the considered view that there is no need of passing the proposed Bill and recommends that the Bill be dropped The Election Commission of India again made a similar proposal in 1997 which was placed before political parties in the all party meeting held on 22.5.1998 but no view was taken. Again, the Election Commission of India made the same proposal in May, 2003 and on the direction of the then Hon‟ble Prime Minister the same was placed before the political parties in the all party meeting held on 29.10.2003. The debate on the proposal remained inconclusive. 14. Ban on Transfers of Election This is to amend section 13CC of the Officers on the Eve of Elections Representation of the People Act, 1950, and section 28A of the Representation of the People Act, 1951 to provide that no transfer shall be made, without the concurrence of the Commission, of any officer referred to therein, as soon as a general election/bye-election becomes due in any Parliamentary or Assembly Constituencies. 15. All Officials Appointed in Enacted vide Representation of the People Connection with Conduct of (Amendment) Act, 2009 (Act 41 of 2009). Elections to be included in Clause (7) of Section 123. 16. Anti-Defection Law No view has been taken. The question of disqualification of members on the grounds of defection should also be decided by the President and Governors, on the opinion of the Election Commission. 17. Use of Common Electoral Rolls The matter has been examined and decided to at Elections Conducted by the await the outcome of the discussion between Election Commission and the the ECI and State Election Commissions to Bar & Bench (www.barandbench.com)

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State Election Commissions sort out the modalities in this regard. 18. Procedure for Disqualification of Enacted vide Representation of the People Person Found Guilty of Corrupt (Amendment) Act, 2009 (Act 41 of 2009). Practice. 19. Same Number of Proposers for It was decided to include it as a proposal for all Contesting Candidates regional and national consultation. 20. Making of False Declaration in The various legal provisions required to curb Connection with Election to be the willful furnishing of incorrect information an Offence. in electoral procedures to ensure free and fair Making of any false statement or election are already there in the Election Laws. declaration before the Election Further, keeping in view a large population of Commission, Chief Electoral this country being illiterate, there would be Officer, District Election frequent instances of furnishing incorrect Officer, Presiding Officer or any information inadvertently or without any authority appointed under the malafide intention by the common man while Representation of the People the process of preparation of electoral rolls, Act, 1951, in connection with etc. and hence, the proposal may create the any electoral matter should be fear in the minds of people abstaining made an electoral offence under themselves from the democratic process of the the said Act. country. 21. Rule Making Authority to be Rule making power has to be vested only with Vested in Election Commission the Government since rules are in the nature of Making authority under the subordinate legislation, the making of it shall Representation of the People be only with the Government which is Act, 1950 and Representation of answerable to Parliament. Rules are required to the People Act, 1951, should be be laid before Parliament and can be modified conferred on the Election and nullified if the Houses of Parliament Commission, instead of on the resolve to do so. If rules were to be made by Central Government, who the Election Commission then amendment or should, however, be consulted modification by Parliament may lead to by the Election Commission controversy. while framing any rule. 22. Registration and De-registration In view the growing number of political parties of Political Parties - registered with the Election Commission for Strengthening of Existing perpetuity availing all the facilities like, tax Provisions exemption, political fund contributions, whereas Under the existing section 29A the number of political parties regularly contest of the RPA, 1951, another clause elections being limited to certain number of may be introduced authorising registered political parties, it is worthwhile to the Election Commission to consider the proposal of the Election Commission. issue necessary orders regulating registration and de-registration of political parties. In addition to the aforesaid 22 proposals the ECI has made, the Ministry of Law has a certain other proposals on electoral reforms, which are as under:- (1) Election Expenditure in respect Under section 77 and 78 of the R.P. Act, 1951 every of the Teachers and Graduates candidate in the election to the Lok Sabha and the constituencies:- Legislative Assemblies of State/UTs is required to maintain correct account of expenditure incurred/authorized in connection with his election and to lodge it with the DEO within the 30 days of election, whereas rule 90 of the Conduct of Elections Rules 1961 has prescribed a ceiling for expenditure that can be incurred in connection with these Bar & Bench (www.barandbench.com)

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elections. However, there is no such provision under election laws requiring maintaining or lodging the account of election expenses or prescribing any ceiling of expenditure in the case of elections to the Council of States and the State Legislative Council. The ECI is of the view that in the interest of free and fair election, there is urgent need to bring the elections to the Legislative Councils from the Teachers and Graduates’ constituencies within the ambit of section 77 and 78 of the RP Act, 1951 and also prescribing a ceiling of expenditure that can be incurred/ authorized in these elections. (2)Amendment to the Conduct of No view has been taken. Election Rules, 1961 to provide for use of Totaliser for counting of Votes recorded in EVMs.

(3) Restoration of Cycle of Rajya Under article 80 and 171 of the Constitution every Sabha and Legislative Council:- second year as nearly as possible one-third member of the Council of State and Legislative Council shall retire every second year. Due to non availability of the Legislative Assembly in certain States/Union Territory for continuous years, the cycle of the Rajya Sabha could not be maintained and eventually all the Members of the Council of States from that States get elected for a period of Six years. A similar situation is being faced in the case of Legislative Council in respect of the States of Bihar, U.P., Karnataka etc., due to non availability of Local Bodies, Assemblies for longer periods. In this regard it may be submitted that the Election Commission has suggested some methods to be adopted to sort out these eventualities in future. The Ld. Attorney General for India is of the view that the sanctity of the provisions of the Constitution may be maintained and the cycle of retirement of the Members of Rajya Sabha and Legislative Council should be restored.

(4) Appointment of Chief Election One of the Chief Election Commissioners has requested the Government to have a collegium Commissioner (CEC) and other consisting of the Prime Minister and Leader of Opposition etc. who is empowered to make Election Commissioners (EC) and recommendations for appointments of the CEC consequential matter:- and ECs. Further, it has also been suggested that there should be complete ban for ten years after retirement from the post of CEC to any political post.

(PREPARED BY THE CORE-COMMITTEE ON ELECTORAL REFORMS) LEGISLATIVE DEPARTMENT MINISTRY OF LAW AND JUSTICE GOVERNMENT OF INDIA *****************************

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Annexure P-4

PROPOSED ELECTORAL REFORMS

2016

ELECTION COMMISSION OF INDIA

FOREWORD

India's democratic setup is a paradigm for many countries in the world due to its remarkable success over the past six decades. The heart of India's democratic system witnesses regular elections with the participation of the largest electorate in the world. In order to safeguard the core values of fair and free elections in this dynamic scenario, it is important to have a just and unbiased electoral process with a greater citizen participation. Thus, in accordance to the responsibility bestowed upon by the Constitution of India, the Election Commission of India has always remained actively involved in finding out ways through which the purity and integrity of the election process is preserved. However, there are certain challenges and issues that electoral system has faced over the years. Trust and confidence of citizens in electoral system can be affected if these challenges remain unattended. Thus, keeping in view these difficulties the Election Commission of India after conducting extensive study and research recommends certain changes that need to be taken up expeditiously to amend certain provisions of law. Taking forward a step in this direction, the Commission have made several electoral proposals to remove the glaring lacunae in the law. Many of these proposals have been already put forth by the Commission have remained unresolved. Some of the proposals pertain to areas, which have not been taken up previously by the Commission but arose due to the implementation of certain laws or on the directions issued by the Supreme Court and the High Courts. Commission considers it necessary to put all proposals on electoral reforms in public domain for the benefit of people. The Commission sincerely believes that these suggested reforms will prove to be extremely useful in addressing the existing issues and challenges and would go a long way in enhancing the quality of democracy in India.

Dr. Nasim Zaidi 05 December, 2016 Chief Election Commissioner Bar & Bench (www.barandbench.com)

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FOREWORD

One of the notable features for which India is known to the world is its electoral Democracy. However, in order to call a system truly Democratic, it is necessary that it must reect the political and socioeconomic aspirations of its people. The issue of electoral reforms has been taken up by Parliament, the Government, the Judiciary, the Media and the Commission on numerous occasions. The Commission during all these times has striven to bring positive changes in the electoral system for better implementation. There have been various correspondence exchanged between the government and the Commission to ensure that the required electoral reforms are brought in place. However, for strengthening the existing system and removing the difficulties arising in ensuring free and fair elections the Commission stresses that various steps are required to be taken for the better practice in election related matters. Maintaining the purity and transparency of election process is a very challenging job and involves a lot of inherent complexities. However, the Commission in its endeavour has always tried to ensure the fairness in elections by putting in tremendous efforts in line with all stakeholders. Therefore, these proposals besides giving a perspective on the challenges faced during the elections, seek to provide a comprehensive framework about the ways in which these challenges can be effectively dealt.

A.K. Joti 05 December 5, 2016 Election Commissioner

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CHAPTER – I : AMENDMENT TO THE CONSTITUTION OF INDIA

1. CONSTITUTIONAL PROTECTION FOR ALL MEMBERS OF THE ELECTION COMMISSION OF INDIA BACKGROUND The Election Commission of India established in the year 1950 is a permanent independent constitutional body vested with the powers of superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all Parliamentary and State elections and elections to the office of the President and Vice President in accordance to the Article 324 of the Constitution of India. Initially, the Commission had only a Chief Election Commissioner. On October 16, 1989 for the first time two additional Commissioners were appointed but they had a very short tenure till January 1, 1990. Later, on October 1, 1993 two additional Election Commissioners were appointed. The concept of multi-member Commission has been in operation since then, with decision making power by majority vote. Presently, the Commission is a three member body comprising of the Chief Election Commissioner (CEC) and two Election Commissioners (ECs). Under Clause (2) of Article 324, the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from to time and the appointment of the Chief Election Commissioner and Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. Article 324(5) of the Constitution was incorporated to ensure the independence of the Commission and free it from external, political interference and thus expressly provides that the removal of the Chief Election Commissioner from office shall be on ―like manner and on the like grounds as a Judge of the Supreme Court‖. The Article 324(5) also species that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the ―recommendation of the Chief Election Commissioner.‖ The Goswami Committee in its Report on Electoral Reforms in 1990 recommended that the ―protection of salary and other allied matters relating to the Chief Election Commissioner and the Election Commissioners should be provided for in the Constitution itself on the analogy of the provisions in respect of the Chief Justice and Judges of the Supreme Court. Pending such Election measures being taken, a parliamentary law should be enacted for achieving the object.‖ Bar & Bench (www.barandbench.com)

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The Commission time and again in its various correspondence and Reports has expressly opined that the current wording of Article 324(5) is ―inadequate‖ and requires an amendment to bring the removal procedures of Election Commissioners on par with the CEC to provide them with the ―same protection and safeguard[s]‖as the Chief Election Commissioner. Even the Supreme Court in 1995 in the case of T.N. Seshan, Chief Election Commissioner of India vs. Union of India (UOI) and Ors. 1995 (4) SCALE 285 has held that that the CEC is not superior to the Election Commissioners rather is at the same position as the other Election Commissioners by stating: ―As pointed out earlier, the scheme of Article 324 clearly envisages a multi-member body comprising the CEC and the ECs. The RCs may be appointed to assist the Commission. If that be so the ECs cannot be put on par with the RCs. As already pointed out, ECs form part of the Election Commission unlike the RCs. Their role is, therefore, higher than that of RCs. If they form part of the Commission it stands to reason to hold that they must have a say in decision-making. If the CEC is considered to be a superior in the sense that his word is final, he would render the ECs non-functional or ornamental. Such an intention is difficult to cull out from Article 324 nor can we attribute it to the Constitution-makers. We must reject the argument that the ECs' function is only to tender advise to the CEC.‖ REASONS FOR PROPOSED AMENDMENT Clause (5) of Article 324 of the Constitution provides that the Chief Election Commissioner shall not be removed from his office except in the same manner and on the same grounds as a Judge of the Supreme Court. The Chief Election Commissioner and the two Election Commissioners enjoy the same decision making powers which is suggestive of the fact that their powers are at par with each other. However, Clause (5) of Article 324 of the Constitution does not provide similar protection to the Election Commissioners and it merely says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The reason for giving protection to a Chief Election Commissioner as enjoyed by a Supreme Court Judge in matters of removability from office was in order to ensure the independence of Commission from external pulls and pressure. However, the rationale behind not affording similar protection to other Election Commissioners is not explicable. The element of 'independence' sought to be achieved under the Constitution is not exclusively for an individual alone but for the whole institution. Bar & Bench (www.barandbench.com)

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Thus, the independence of the Commission can only be strengthened if the Election Commissioners are also provided with the same protection as that of the Chief Election Commissioner. Proposed amendment The present constitutional guarantee is inadequate and requires an amendment to provide the same protection and safeguard in the matter of removability of Election Commissioners as is available to the Chief Election Commissioner. Law Commission's Recommendation The Law Commission in its 255th Report (2015) endorsed the view of the Commission and suggested the following changes to be brought in Article 324:  In sub-section (5), delete the words ―the Election Commissioners and‖ appearing after the words ―tenure of office of‖.  In the first proviso to sub-section (5), after the words ―Chief Election Commissioner‖ appearing before ―shall not be removed‖, add the following words, ―and any other Election Commissioner‖; also, after the words ―conditions of service of the Chief Election Commissioner‖, add the following words, ―and any other Election Commissioner‖.  In the second proviso to sub-section (5), after the words ―provided further that‖, delete the words ―any other Election Commissioner or‖ occurring before ―a Regional Commissioner‖

1. BUDGET OF THE COMMISSION TO BE 'CHARGED' Background Presently, the administrative expenditure of the Commission is a voted expenditure. However, the expenditure of other independent constitutional bodies similar to the Commission i.e. the Supreme Court, Comptroller & Auditor General, Union Public Service Commission are charged/ non-votable expenditure.

The Commission sent a proposal that the expenditure of the Commission should be charged on the Consolidated Fund of India. The Government moved The Election Commission (Charging of Expenses on the Consolidated Fund of India) Bill, 1994 in the 10th Lok Sabha with the objective of providing for the salaries, allowances and pension payable to the Chief Election Commissioner and other Election Commissioners and the administrative expenses including salaries, allowances and pension of the staff of the Election Commission to be expenditure charged upon the Consolidated Fund of India. This Bill lapsed without being passed, on the dissolution of that House in 1996. Bar & Bench (www.barandbench.com)

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Reasons for proposed amendment The Commission is of the opinion that a charged budget would be a symbol of the independence of the Commission and will secure its unconstrained functioning. Proposed amendment: The Commission recommends that the Bill, which lapsed with the dissolution of the 10th Lok Sabha in 1996, needs reconsideration and the expenditure of the Commission should be charged on the consolidated fund. 2. INDEPENDENT SECRETARIAT FOR THE COMMISSION Background and Reasons for proposed amendment The Election Commission as a constitutional body was as an independent body to conduct free and fair elections in India. Currently, the Election Commission of India has a separate secretariat of its own, with the service conditions of its officers and staff being regulated by the rules made by the President under Article 309 of the Constitution which is similar to other departments and ministries of the Government of India in connection with union matters. The officers at the higher level, such as the level of Deputy Election Commissioner are normally appointed on a tenure basis on deputation from the national civil services. The lower level officers are permanent officers in the Election Commission of India secretariat, from its own ranks. The independence of the Commission can be strengthened further if the Secretariat of the Election Commission consisting of officers and staff at various levels are also insulated from the interference of the Executive in the matters pertaining to their appointments, promotions, etc. and all such functions are exclusively vested in the Election Commission along the lines of the Secretariats of the Lok Sabha, and Rajya Sabha, Registries of the Supreme Court and High Courts etc. The Goswami Committee on Electoral Reforms in 1990 agreed that regarding setting up of the secretariat of the Commission, Constitution should be amended to provide for similar provisions as Article 98(2) which relates to the Lok Sabha Secretariat and until such provision is made, a law of Parliament should be enacted. The government in 1990 introduced the Constitution (Seventieth Amendment) Bill, 1990 in the Rajya Sabha to give effect to the recommendation of the Goswami Committee however this Bill was subsequently withdrawn due to the changed composition of the Election Commission (becoming a multi- member body) and the Bill was never re-introduced. The Election Commission of India made this proposal of setting up an independent Secretariat for the Commission in the year 1998 and reiterated the same stand in the proposals of 2004. Bar & Bench (www.barandbench.com)

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Thus, in order to fully insulate the Commission from political pressure or executive interference, it is essential to set up an independent Secretariat for the independent functioning of the Election Commission. Proposed amendment The Commission proposes that it should have an independent Secretariat along the lines of the Lok Sabha, Rajya Sabha and Registries of the Supreme Court and High Courts. An independent Secretariat will enable the Commission to choose and appoint officials considered suitable by the Commission without any interference from the executive. Law Commission's Recommendation The Law Commission also in its 255th Report (2015) endorsed the Commission's view and recommended the insertion of Article 324(2A) after sub-section (2) of the Constitution along the following lines: ―(2A)(1): The Election Commission shall have a separate independent and permanent secretarial staff. (2) The Election Commission may, by rules prescribed by it, regulate the recruitment, and the conditions of service of persons appointed, to its permanent secretarial staff.‖ CHAPTER – II : ELECTORAL ROLL MATTERS 1. SECTION 20(6) OF THE REPRESENTATION OF PEOPLE ACT, 1950 Background Section 20 (6) of the Representation of the People Act, 1950 is as follows: ―(6) The wife of any such person as is referred to in sub-section (3) or sub-section (4) shall if she be ordinarily residing with such person be deemed to be ordinarily resident on in the constituency specified by such person under subsection (5).‖ Reasons for proposed amendment There is facility under section 20(6), allowed to a wife of a person, residing with the person mentioned in subsection (3) & (4), for getting herself registered in the electoral roll of the constituency in which the person is enrolled as special voter/service voter. This particular facility is not provided to the husband of female office holder who resides with his wife where she holds the office. Whereas wife or a husband are covered under Sub section (4) as office holders, both are not covered under Sub section (6). This is problematic for not only for the husband, but also for adult children of such parents. As soon as these children reach 18 years of their age, they must be able to avail the facility of registration in their home constituencies along with their parents. Proposed amendment The Commission proposes that sub- section (6) of section 20 of The Representation of the People Act, 1950 be amended so as to extend the Bar & Bench (www.barandbench.com)

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facility of registration in the native constituency under the said sub- section for the husband of declared office holder and service voter also, provided the husband is ordinarily residing with the female office holder/ service voter at her place of posting. 2. SECTION 20(8) OF THE REPRESENTATION OF PEOPLE ACT, 1950 Background Section 20 (8) of The Representation of the People Act, 1950 is as follows: ―(8) In sub-sections (3) and (5) "service qualification" means— (a) being a member of the armed forces of the Union; or (b) being a member of a force to which the provisions of the Army Act, 1950 (46 of 1950), have been made applicable whether with or without modifications; or (c) being a member of an armed police force of a State, who is serving outside that State; or (d) being a person who is employed under the Government of India, in a post outside India.‖ Registration of a voter in the electoral roll of the constituency he lives in is a mandate of section 19 of The Representation of the People Act, 1950 whereby it is compulsory for the person to be an 'ordinarily resident'. Section 20 provides for a list of meaning with respect to 'ordinarily resident' in various circumstances whereby section 20(8) provides for meaning of 'service qualification' under sub- section (3) & (5) specially with respect to armed forces, forces to which the provisions of Army Act, 1950 apply, State police forces and an office of Government of India, which is outside India. Reasons for proposed amendment Sub- section (8) (b) refers to the forces to which the provisions of Army Act, 1950 apply and here is no mention of the other forces to which Air force Act of 1950 or Navy Act of 1957 applies. Section 2 of the Air Force Act, 1950 reads: ―2. Persons subject to this Act. The following persons shall be subject to this Act wherever they may be, namely: - (a) officers and warrant officers of the Air Force; (b) persons enrolled under this Act ; (c) persons belonging to Regular Air Force Reserve or Air Defence Reserve or the Auxiliary Air Force, in the circumstances specified in section 26 of the Reserve and Auxiliary Air Forces Act, 1952 ;] (62 of 1952.) (d) persons not otherwise subject to air force law, who on active service, in camp, on the march, or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the Air Force.‖ Bar & Bench (www.barandbench.com)

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Section 2 of the Navy Act of 1957 provides: ―2. Persons subject to naval law. (1) The following persons shall be subject to naval law wherever they may be, namely:- (a) every person belonging to the Indian Navy during the time that he is liable for service under this Act; (b) every person belonging to the Indian Naval Reserve Forces when he is- (i) on active service ; or (ii) in or on any property of the naval service including naval establishments, ships and other vessels, aircraft, vehicles and armories ; or (iii) called up for training or undergoing training in pursuance of regulations made under this Act, until he is duly released from his training ; or (iv) called up into actual service in the Indian Navy in pursuance of regulations made under this Act, until he is duly released there from; or (v) in uniform; (c) members of the regular Army and the Air Force when embarked on board any ship or aircraft of the Indian Navy, to such extent and subject to such conditions as may be prescribed; (d) every person not otherwise subject to naval law, who enters into an engagement with the Central Government under section 6; (e) every person belonging to any auxiliary forces raised under this Act, to such extent and subject to such conditions as may be prescribed; and (f) every person who, although he would not otherwise be subject to naval law, is by any other Act or during active service by regulations made under this Act in this behalf made subject to naval law, to such extent and subject to such conditions as may be prescribed.‖ Proposed amendment The Commission proposes to include the words ―Air Force Act, 1950 and the Navy Act, 1957‖ apart from the aforesaid Army Act, 1950 under section 20(8) (b) of The Representation of the People Act, 1950. 3. USE OF COMMON ELECTORAL ROLLS Background Article 324(1) of the Constitution of India empowers the Election Commission to, inter alia, supervise, direct, and control the preparation and revision of electoral rolls for all the elections to Parliament and State Legislatures, which is done by the Commission by the virtue of powers under The Representation of the People Act, 1951. Similarly, under Articles 243K and 243ZA and the relevant State laws, the State Election Commission supervises, directs, and controls the preparation and revision of electoral rolls for elections to the local bodies. There is no uniform law or procedure for State Election Commission to prepare these Bar & Bench (www.barandbench.com)

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electoral rolls. Some States adopt the rolls prepared by the Commission while some prepare their rolls separately for elections. A proposal has been made by the Commission in this regard to bring in a reform with respect to use of common electoral rolls prepared by the Commission. Reasons for proposed amendment There is a non-uniformity of practice amongst States which causes duplication of essentially the same task between two different constitutional bodies i.e. the Election Commission of India and the State Election Commissions that entails the same effort and expenditure again by the States. Further, it creates a confusion amongst the voters, since they may find their names present in one roll, but absent in another. Thus, the use of common electoral rolls will overcome the issue of duplication and confusion and will also save the unnecessary effort and wastage of money. By virtue of common electoral rolls, the Parliamentary and Assembly rolls can be used in the local body elections, saving time, effort and expenditure, with the requisite modifications based on the wards or polling areas of the local bodies. Proposed amendment In order to simplify the procedure of preparation of electoral rolls and to avoid unnecessary expenditure, the Commission on 22/11/1999 (reiterated in July 2004), proposed amending the State laws with respect to usage of electoral rolls prepared by the Commission for the election of local bodies. Law Commissions' Recommendation The Law Commission endorses the above suggestions of the Election Commission regarding introduction of common electoral rolls for Parliamentary, Assembly and local body elections. However, given that introducing common electoral rolls will require an amendment in the State laws pertaining to the conduct of local body elections, the Central Government should write to the various States in this regard. 4. SECTION 60 OF THE REPRESENTATION OF THE PEOPLE ACT, 1950 Background Under section 20A of The Representation of the People Act, 1950, Indian citizens living abroad owing to employment, education or otherwise, and have not acquired citizenship of another country, are entitled to be enrolled as elector in the native constituency in India in which his/her home address falls. Persons enrolled in the electoral roll under this section are called 'overseas electors'. The overseas electors have not been given any special voting facility which means that they can vote in person in the polling station concerned in the constituency in which they are enrolled. Bar & Bench (www.barandbench.com)

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Reasons for proposed amendment Voting in person is not a viable option for the overseas electors as they cannot be expected to travel to India for voting. A Committee appointed by the Commission to consider alternative voting options for the overseas electors recommended the facility of voting through proxy or voting through postal ballot paper with one-way electronic transmission of the postal ballot paper (from Returning Officer to elector) as alternative voting options for the overseas electors. Proposed amendment Section 60 of The Representation of the People Act, 1951 should be amended to provide overseas electors the alternative option of proxy voting or postal ballot voting. The electronic transmission of postal ballot can be provided by amendment of Rules as has been done in the case of service voters. 5. SECTION 14(B) OF THE REPRESENTATION OF PEOPLE ACT, 1950 Background Under section 14(b) of The Representation of the People Act, 1950, the qualifying date for eligibility for enrolment in the electoral roll of a particular year is 1st of January of that year. Thus a person who turns 18 after 1st January remains deprived of enrolment and becomes entitled only when the roll is revised next year. Section 14 (b) is as follows : ―(b) "qualifying date", in relation to the preparation or revision of every electoral roll under this Part, means the 1st day of January of the year in which it is so prepared or revised:] [Provided that "qualifying date", in relation to the preparation or revision of every electoral roll under this Part in the year 1989, shall be the 1st day of April, 1989.]‖ Reasons for proposed amendment Having only one qualifying date means that a large number of young persons who complete 18 years after 1st January would have to wait for next year for enrolment and would not be able to participate in elections held in the meanwhile. The Commission suggested that the law may be amended so that a person can be enrolled in the roll the day he or she turns 18. By such amendment, the principle of universal adult franchise is also respected and no person is deprived from enrolment for a period of one year. Proposed amendment The Commission on 04/11/2013 proposed to amend section 14(b) of The Representation of the People Act, 1950 and change the limitation of turning 18 on 1st January to turning 18 any day in the year. But the Law Ministry considered this proposal to be unacceptable. Thereafter, Bar & Bench (www.barandbench.com)

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Commission proposed four dates in addition to 1st January, i.e. 1st January, 1st April, 1st July and 1st October. In response, the Law Ministry suggested two qualifying dates i.e. 1st January and 1st July; to which the Commission agreed and requested the government to amend section 14(b) accordingly.

CHAPTER – III : ELECTION MANAGEMENT ISSUES

1. MAKING OF ANY FALSE STATEMENT OR DECLARATION BEFORE AUTHORITIES PUNISHABLE Background Section 31 of The Representation of the People Act, 1950 makes a person who in connection with preparation, revision or correction of an electoral roll or in connection with inclusion or exclusion of an electoral roll makes a statement or declaration in writing which is false, be punishable with imprisonment extending to one year or with ne or with both. However, there is no parallel provision in The Representation of the People Act, 1951, to penalise a person making a false declaration in connection with conduct of elections. Reason for proposed amendment There would be several cases of false statements before election authorities in connection with conduct of elections. In order to discourage motivated false statements before the election authorities, it would be useful to have a provision in The Representation of the People Act, 1951, similar to section 31 of the 1950 Act. Proposed amendment The Commission proposes that making of any false statement or declaration before the Election Commission, Chief Electoral Officer, District Election Officer, Presiding Officer or any authority appointed under The Representation of the People Act, 1951, in connection with any electoral matter should be an electoral offence under the said Act, along the lines of section 31 of The Representation of People Act, 1950. 2. PROPOSAL REGARDING FILING OF FALSE AFFIDAVIT Background Currently, a candidate to any National or State Assembly elections is required to furnish an affidavit, in the shape of Form 26 appended to The Conduct of Elections Rules, 1961, containing information regarding their criminal antecedents, if any, their assets, liabilities, and educational qualification. Section 125A of The Representation of the People Act, 1951 provides for the penalty for ling false affidavit. The offence is punishable by up to 6 months, or with ne, or with both. Bar & Bench (www.barandbench.com)

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Reason for proposed amendment The Commission time and again has stressed on the importance of filing of true information by the candidates standing for elections in their affidavits. The filing of false affidavits in matters of election can have extremely serious consequences as it affects the purity of elections. The elector in order to make an informed choice has the right to know the correct information of the candidates. This view was also taken in the case of Krishnamoorthy v. Siva Kumar (2009) 3 CTC 446 pertaining to panchayat elections where the Court held that failure to disclose complete information may amount to undue influence, and that incorrect or false information interferes with the free exercise of the electoral right of the voter. Filing of false declaration about the background of the candidate undermines the very basic value of candidate disclosure, in turn affecting the right of the electors to know the antecedents of candidate. Therefore, it is necessary to enhance the punishment for filing false affidavit. Proposed amendment The Commission has proposed that the punishment under section 125A should be increased to 2 years' imprisonment without the alternative clause of fine, and also that the offence should be included in the list of offences listed in sub-section (1) of section 8 which would attract disqualification on conviction irrespective of the term if sentence. The Commission also proposed that furnishing of false affidavit or suspension of material information in the affidavit should also be specified as ground for challenging the election under section 100 (1) of The Representation of the People Act, 1951. Under the section 36, the grounds for rejection of nomination papers do not include the case of a candidate who fails to submit the affidavit under section 33A in the prescribed manner. In order to remove any doubt, it has been recommended that in clause (b) of sub-section (2) of section 36, 'Section 33A' may also be inserted. In order to provide effective deterrent against filing of false affidavit, it is also necessary to include this offence in the list of 'corrupt practices' under section 123 of The Representation of the People Act, 1951. Law Commission's Recommendation The Law Commission in its 244th Report on 'Electoral Disqualifications' gave the following recommendations endorsing the view of the Election Commission: i. Introduce enhanced sentence of a minimum of two years under section 125A. Bar & Bench (www.barandbench.com)

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ii. Include conviction under section 125A as a ground of disqualification under section 8(1) of The Representation of the People Act, 1951. iii. Set up an independent method of verification of winners' affidavits to check the incidence of false disclosures in a speedy fashion. iv. Include the offence of filing false affidavit as a corrupt practice under section 123 of The Representation of the People Act, 1951. The Sections proposed by the Law Commission on this issue are:- ―8. Disqualification on conviction for certain offences. —(1) A person convicted of an offence punishable under— (a)… * * * (i) section 125 (offence of promoting enmity between classes in connection with the election) or section 125A (penalty for filing false affidavit, etc.) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) of clause (a) of subsection (2) of section 136 (offence of fraudulently defacing or fraudulently destroying any nomination paper) of this Act; * * *‖ ―123. Corrupt practices.—The following shall be deemed to be corrupt practices for the purposes of this Act: (1)… * * * (4A) failure by a candidate to furnish information relating to sub-section (1) of section 33A, or giving of false information which he knows or has reason to believe to the false, or concealment of any information in the nomination paper delivered under subsection (1) of section 33 or in the affidavit delivered under sub-section (2) of section 33A‖. 3. SECTION 126 OF THE REPRESENTATION OF PEOPLE ACT, 1951 Background and Reason for proposed amendment Under the criminal jurisprudence any person can set the law into motion unless specially excluded by an express provision under a statute. In The Representation of the People Act, 1951, section 32 clause (3) provides Bar & Bench (www.barandbench.com)

211 that no court shall take cognizance of any offence punishable under sub- section (1) unless there is a complaint made by order of or under authority from, the Election Commission or the Chief Electoral Officer of the State concerned. However, no such provision is found under section 126 of the 1951 Act. Proposed amendment The proposal of the Commission is that section 126 of The Representation of the People Act, 1951 may be given a relook and in particular, necessary amendments may be made by adding a clause in section 126 stating that ―no court shall take cognizance of any offence under section 126(1)(b) unless there is a complaint made by order of or under the authority from the Commission or the CEO of the State concerned as in the case of section 32 of the 1951 Act. Another amendment that is required to be made in the Act is to include 'print media' under the present provision since the current framework only includes display by electronic media. Law Commission's Recommendation The Law Commission of India in its Report no. 255 (2015) had a similar view to that of the Election Commission of India and recommended to expand the scope of section 126 of The Representation of the People Act, 1951. The Law Commission also recommended that section 126(1) (b) be amended as follows: 126. (1) No person shall… (a) … (b) Publish, publicise or disseminate any election matter by means of print or electronic media; or , (c)… (2)… (2A) No court shall take cognizance of any offence punishable under sub- section (1) unless there is a complaint made by order of, or under authority from, the Election Commission or the Chief Electoral Officer of the State concerned. Explanation. — For the purposes of this section, — (a)―election matter‖ means any matter intended or calculated to influence or affect the result of an election. (b) ―electronic media‖ includes internet, radio and television including Internet Protocol Television, satellite, terrestrial or cable channels, mobile and such other media either owned by the Government or private person or by both; (c) ―print media‖ includes any newspaper, magazine or periodical, poster, placard, handbill or any other document; (d) ―disseminate‖ includes publication in any ―print media‖ or broadcast or display on any electronic media. Bar & Bench (www.barandbench.com)

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4. RETIREMENT OF MEMBERS IN COUNCIL OF STATES AND LEGISLATIVE COUNCIL Background Section 154 and section 156 provides for term of service of members of the Council of States and State Legislative Councils respectively. The term provided under both sections, other than a member chosen to ll a casual vacancy, is six years. Both the sections provide that upon consultation with the Council of States and State Legislative Councils, the President and the Governor, respectively, after consultation with the Election Commission, make by order such provision as they think t for curtailing the term of office of some of the members then chosen in order that, as nearly as may be, one-third of the members holding seats of each class shall retire in every second year thereafter. Reason for proposed amendment Biennial retirement of one third members in the Council of States and Legislative Councils is a constitutional mandate. In some cases vacancies of different retirement cycles have got clubbed with the result that the requirement of the biennial retirement is not met. The Commission in its letter dated 10/03/1981 recommended curtailment of the terms of then existing members for restoring the retirement cycle, which was not considered by Government as any curtailment in the terms of members would infringe their right to hold the office for a full term of six years. Proposed amendment The Commission on 25/07/1991 and 11/06/2010 has proposed amendments in sections 154 and 156 of The Representation of People Act, 1951 and suggested dividing the seats in the Council of States and State Legislative Councils into three categories and specifying the term for each category in such a way that biennial retirement of 1/3rd of the members would be ensured. 5. PROVIDING OPEN BALLOT SYSTEM IN CASE OF THE ELECTION TO FILL SEAT/ SEATS IN THE STATE LEGISLATIVE COUNCILS Background The members of the Council of States are elected by the elected members of Legislative Assemblies of the States and Union Territories. In case of Legislative Councils of States where such Council exist, one third of the members of the Legislative Council are elected by the members of the Legislative Assembly of the State concerned. Section 59 of The Representation of People Act, 1951 provides the manner of elections and says at every election where a poll is taken, votes shall be given by ballot in such manner as may be prescribed, and, save as expressly provided by this Act, no votes shall be received by proxy. The proviso to this Bar & Bench (www.barandbench.com)

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section provides that the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot. Reason for proposed amendment The voting procedure by members of Legislative Assembly in respect of these two upper Houses is similar, except for the system of voting by open ballot in the case of Council of States as clearly given in proviso to section 59 of The Representation of the People Act, 1951. However, in case the of the election to fill a seat or seats in the State Legislative Council by the Members of Legislative Assembly, no such provisions of open ballot is prescribed. Proposed amendment The Commission is of the view that there should be uniformity in the procedure of voting system in the case of election of members of State Legislative Council and the Council of States by members of Legislative Assembly. The logic for providing open ballot system in the case of elections to Council of States would equally apply for elections to Legislative Councils also, and there is no reason to have separate system for the elections involving the same electorate. In view of the above, the Commission recommends that the open ballot system may also be made applicable in case of the election to fill a seat or seats in the State Legislative Councils by the Members of Legislative Assembly by appropriately amending section 59 of The Representation of the People Act, 1951. 6. ADJOURNMENT OF POLL OR COUNTERMANDING OF ELECTION ON THE GROUND OF BRIBERY Background Article 324 of the Constitution vests in the Election Commission the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of the President and Vice-President held under the Constitution. The powers conferred thereunder are of widest amplitude as held by the Supreme Court in Mohinder Singh Gill v Chief Election Commissioner (1978 SC851). It was observed in M.S Gill's case that the framers of the Constitution took care to leave the scope of residuary power to Commission, foreseeing the infinite variety of situations that may emerge from time to time in such a large democracy as ours. Section 58A was inserted in The Representation of the People Act, 1951 to empower the Commission to countermand an election in the event of booth capturing in the constituency. Bar & Bench (www.barandbench.com)

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In S.Subramaniam Balaji vs Government of TamilNadu & Others (2013) 9 SCC 659, the case relating to distribution of free gifts by the political parties (popularly known as 'freebies'), the Hon'ble Supreme Court observed that ―although, the law is obvious that the promises in the election manifesto cannot be construed as 'corrupt practice' under section 123 of the Representation of People Act, reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people. It shakes the root of free and fair elections to a large degree.‖ Reason for proposed amendment Over the period of time, especially in the recent years, money has played a key role in influencing the 'decision making' at the polls. There have been several instances of seizure of large amount of cash, liquor, gift items etc. form the candidates and their agents during the elections. In some cases, following large-scale instances of bribing of electors by candidates and workers of political parties, the Commission, using its plenary powers under Article 324 resorted to cancellation of the election process. Proposed amendment On account of increasing incidents of misuse of money in elections, the Commission is of the considered view that there should be a provision in The Representation of the People Act, 1951 to deal with such cases. Therefore, the commission proposes that on the lines of section 58A, there should be a specific provision enabling the Commission to take appropriate action including countermanding of election in the event of incidents of bribery of electors in a constituency, if in the opinion of the Commission such incidents are likely to vitiate the election. The Commission has prepared a draft of the proposed provision on the following lines: Section 58B. Adjournment of poll or countermanding of elections on the ground of bribery.- (1) If at any election, bribery is likely to take place o has taken place in a polling area or polling areas or at a place xed for the poll (hereafter in this section referred to as polling area) which is likely to vitiate or has vitiated the conduct of free and fair elections, the Returning Officer shall forthwith report the matt to the Election Commission. (2) The Election Commission may on the receipt of the report from the Returning Officer under subsection (1) or otherwise, and after taking all material circumstances into account,- (a) Postpone the poll in the affected polling area or areas to such later date as the Commission may deem appropriate in the facts and circumstances of the case, appoint a fresh date, and afresh Bar & Bench (www.barandbench.com)

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the hours, for taking poll in the said polling area or areas, and notify the date so appointed and hours so fixed in such manner as it may deem fit; or (b) Where the poll has already taken place in the affected polling area or areas on the date previously appointed under clause (d) of section 30, declare the poll so taken as void, appoint a day, and x the hours, for taking fresh poll in that polling area or areas and notify the date so appointed and hours so fixed in such manner as it deem t; or (c) If satisfied in view of the large number of polling areas involved in the incidents of bribery, the result of the election in the constituency is likely to be affected, countermand the election in that constituency. Explanation.-(1) in this connection, 'bribery' shall have the same meaning as in clause (1) of section 123. (3) in this section and section 58A, the expression countermand the election‖ shall mean rescinding of the entire electoral process in the constituency ab initio so that the election in the constituency may be called anew in all respect. CHAPTER-IV : ELECTION OFFICIALS AND LOGISTICS 1. SECTION 13CC & 28A OF THE REPRESENTATION OF PEOPLE ACT Background Section 13CC of the Representation of the People Act, 1950 states that: "13CC. Chief Electoral Officers, District Election Officers, etc., deemed to be on deputation to Election Commission- The officers referred to in this Part and any other officer or staff employed in connection with the preparation, revision and correction of the electoral rolls for, and the conduct of, all elections shall be deemed to be on deputation to the Election Commission for the period during which they are so employed and such officers and staff shall, during that period, be subject to the control, superintendence and discipline of the Election Commission." Section 28A of the Representation of the People Act, 1951 states that: "28A. Returning officer, presiding officer, etc., deemed to be on deputation to Election Commission- returning officer, assistant returning officer, presiding officer, polling officer, and any other officer appointed under this Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of such election and accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission." Bar & Bench (www.barandbench.com)

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Reason for proposed amendment Transfer of election officials on the eve of elections can disturb the election preparedness. Proposed amendment Section 13CC of the Representation of the People Act, 1950 and Section 28A of the Representation of the People Act, 1951 should be amended to provide a ban on the transfer of officers referred to in these sections during a period of 6 months before the expiry of the term of the House. 2. SECTION 160 OF THE REPRESENTATION OF PEOPLE ACT, 1951 Background Section 160(1)(a) of the Representation of the People Act, 1951 provides that a state government may, in connection with an election, requisition any premises that are needed or are likely to be needed for the purpose of being used as a polling station or for the storage of ballot boxes after a poll has been taken. The Allahabad High Court in Maa Bhagwati Nirashrit Samaj Sewa Sansthan v. Election Commission of India, 2014 (104) ALR 806 quashed an order passed by the District Election Officer, Kanpur Nagar, under section 160 for requisitioning a guest house for housing of paramilitary forces for the elections. The Court held that: ―4. Consequently, it is clear that the power to requisition under section 160(1)(a) of the Act covers 'any premises' which are needed or are likely to be needed for the purpose of being used as a polling station or for the storage of ballot boxes after a poll has been taken. Once Parliament has specied the grounds for requisitioning, it is not open to the Election Officer to requisition any premises for a purpose extraneous to, or for a purpose other than that which is covered by Clause (a) of section 160(1) of the Act." Reason for proposed amendment The election process requires requisition of premises for purposes other than polling stations and storage of ballot boxes, such as for providing accommodation to employees, paramilitary forces and observers etc. Proposed amendment Section 160 of The Representation of the People Act, 1951 should be amended to widen its scope such that requisition of premises for any election should not be restricted to the purpose of setting of a polling station or for storage of ballot boxes after a poll has been taken. Sub- section (1) (a) should amended to read ―any premises that are needed or are likely to be needed for any purpose related to conduct of election, or.‖ 3. EMPOWERING THE DISTRICT ELECTION OFFICER TO REQUISITION Background Section 159(1) of The Representation of the People Act, 1951 states that: Bar & Bench (www.barandbench.com)

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"159. Staff of certain authorities to be made available for election work- (1) The authorities specified in subsection (2) shall, when so requested by a Regional Commissioner appointed under clause (4) of article 324 or the Chief Electoral Officer of the State, make available to any returning officer such staff as may be necessary for the performance of any duties in connection with an election." Reason for proposed amendment Section 26 of The Representation of the People Act, 1951 empowers the District Election Officers to appoint Presiding Officers and Polling Officers for polling stations falling in his district. Further, under section 20A of the 1951 Act, the District Election Officer is required to coordinate and supervise all work in the District in connection with conduct of elections. Therefore, for convenience, there should be express provisions empowering the District Election Officers to requisition staff for conduct of election under section 159 of the 1951 Act. Proposed amendment Section 159 of The Representation of the People Act, 1951 should be amended to empower the District Election Officer also, apart from the Chief Election Officer, to requisition of staff for election duties. 4. USE OF TOTALIZER FOR COUNTING OF VOTES Background EVM totalizer can count votes of multiple Electronic Voting Machines (EVMs) simultaneously. This way the results of votes in a group of EVM scan be taken without ascertaining the result in individual EVM corresponding to polling booth. Totalizer is connected to EVMs via cable and it can do sum of all votes recorded for each of the candidates in 14 EVMs simultaneously. Reason for proposed amendment As per the present provisions in The Conduct of Elections Rules, 1961, votes in the EVMs are to be counted polling station wise, which leads to situations where voting pattern in various localities/pockets become known to everyone. There is a view that this can result in victimization and/or discrimination and intimidation of electors of particular localities. This issue can be addressed by use of totalizer that can be used for taking out the results of voting in a group of 14 EVMs without revealing the votes in individual EVMs. Proposed amendment Provisions for counting of votes of a group of EVMs taken together using Totaliser should be made in The Conduct of Elections Rules, 1961, and Form 20 appended to the said Rules should be suitably amended so as to suit the requirements of counting using Totaliser. Bar & Bench (www.barandbench.com)

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CHAPTER- V : NOMINATION OF CANDIDATES 1. SECTION 33(7) OF THE REPRESENTATION OF PEOPLE ACT, 1951– RESTRICTION ON NUMBER OF SEATS FROM WHICH ONE MAY CONTEST Background As per the law of India, as it stands today, a candidate is permitted to contest an election from two different constituencies in a general election or a group of bye-elections or biennial elections. Subsection (7) of section 33 of The Representation of the People Act, 1951, allows a person to contest a general election or a group of bye-elections or biennial elections from a maximum of two constituencies whereas section 70 of the 1951 Act, species that if a person is elected to more than one seat in either House of Parliament or in the House or either House of the Legislature of a State (some states have a Legislative Council or Vidhan Parishad as well, along with the Vidhan Sabha), then he/she can only hold on to one of the seats that he/she won in the election. Sub-section (7) was introduced through a 1996 amendment, prior to which there was no bar on the number of constituencies from which a candidate could contest. ECI proposed amendment of section 33(7) in the year 2004 to provide that a person cannot contest from more than one constituency at a time. However, in case the existing provisions are to be retained, a candidate contesting from two seats should bear the cost of the bye election to the seat that the contestant decides to vacate in the event of him/her winning both seats. The amount in such an event could be Rs. 5,00,000/-for State Assembly and Council Election and Rs. 10, 00,000/- for election to the House of People (as proposed at that point of time). In the year 2014, a PIL was filed before the Hon'ble Supreme Court, by the 'Voter's Party' (a registered political party) challenging the constitutional validity of sub-sections (6) and (7) of section 33 and 70 of The Representation of the People Act, 1951. The petition is pending. Reasons for proposed amendment When a candidate contests from two seats, it is imperative that he has to vacate one of the two seats should he win both. This, apart from the consequent unavoidable financial burden on the public exchequer and the manpower and other resources for holding bye- election against the resultant vacancy, would be an injustice to the voters of the constituency which the candidate is quitting from. Proposed amendment The Commission recommends that the law must be amended to provide that a person cannot contest from more than one constituency at a time for conduct and better management of elections. Bar & Bench (www.barandbench.com)

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In case the provision needs to be retained, then there is a need for an express provision in law requiring person who contests and wins election from two seats, resulting in bye-elections from one of the two constituencies, to deposit in the government account an appropriate amount of money being an expenditure for holding the bye-election. The recommendations made by the Election Commission of India in 2004 as to the amount to be deposited in the government account for being used as the expenditure for holding the bye elections has to be increased from Rs. 5 lakhs and Rs. 10 lakhs to something more appropriate for serving as deterrence to the candidates. Law Commission's Recommendation The Law Commission has agreed with the Commission's 2004 proposal that The Representation of the People Act, 1951 should be amended to provide that a person cannot contest from more than one seat at a time. The Goswami Committee Report in 1990 and the 170th Law Commission Report in 1999, also contain recommendation for restricting contest of one person to one seat. However, the Law Commission has not endorsed the Commission's alternative proposal to require winning candidates to deposit an appropriate amount of money being the expenditure for conducting the elections. The Law Commission gave the following recommendation in sub-section 7 of section 33:  In sub-clause (a), delete the words ―two Parliamentary constituencies‖ after the words ―from more than‖ and insert the words ―one Parliamentary constituency‖ instead.  In sub-clause (b), delete the words ―two Assembly constituencies‖ after ―from more than‖ and insert the words ―one Assembly constituency‖ instead.  In sub-clause (c), delete the words ―two Council constituencies‖ after the words ―from more than‖ and insert the words ―one Council constituency‖ instead.  At the end of sub-clause (d), delete the words ―two such seats‖ and insert the words ―one such seat‖ instead.  In sub-clause (e), delete the words ―two such Parliamentary constituencies‖ appearing after ―from more than‖ and insert the words ―one such Parliament constituency‖ in its place.  In sub-clause (f), delete the words ―two such Assembly constituencies‖ after ―from more than‖, and insert ―one such Assembly constituency‖ in its place.  In sub-clause (g), delete the words ―two such seats‖ appearing after ―filling more than‖ and insert words ―one such seat‖ in its place. Bar & Bench (www.barandbench.com)

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 In sub-clause (h), delete the words ―two such Council constituencies‖ after ―from more than‖ and add the word ―one such Council constituency‖ in its place. 2. SECTION 33 OF THE REPRESENTATION OF THE PEOPLE ACT, 1951 – SAME NUMBER OF PROPOSER Background As per section 33 (1) of the RPA, 1951, the nomination of a candidate shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by one proposer who should be an elector of the constituency in case of a candidate set up by a recognized political party and ten in case of other candidates. Reasons for proposed amendment The provision as existing today, was amended in August, 1996. However, the amended provision instead of being helpful to the recognized political parties has resulted in disadvantage to them. In the case of candidate of a recognized party, if there is any problem with the notice of nomination given by the Party, and if the candidate has led nomination although he may not be treated as candidate of the Party in the list of contesting candidates, etc. Proposed amendment In order to remove confusions, it is proposed that the provisions of the said section 33 (1) may be made uniform for all candidates and the number of proposers may be fixed as (10) ten in all cases. It will not cause any inconvenience to the recognized parties and, on the contrary will be greatly beneficial to them. 3. DISQUALIFICATIONS UNDER CHAPTER III OF REPRESENTATION OF THE PEOPLE ACT, 1951 Background In the judgment dated 07/08/2015, the Hon'ble Delhi Court has directed the Election Commission to consider the possibility, if any, of putting an impediment on a defaulter of public dues contesting election in order to ensure quick recovery of the said dues. In pursuance of the said judgment, the Commission has recommended amending provisions for disqualifications laid down in Chapter III of The Representation of the People Act, 1951so as to provide for disqualification in the event of default in clearing public dues. Direction of the Delhi High Court The High Court made the following observations in its judgment:  According to the report by India Today, the politicians and political parties in occupation of government accommodation allotted to them were in default of payment of electricity, water and telephone charges Bar & Bench (www.barandbench.com)

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with respect thereto and no steps were being taken by the municipal and other governmental agencies for recovery of the said public dues. It was further reported that some politicians and political parties also owed monies to five star hotels run by India Tourism Development Corporation Ltd. (ITDC), a Public Sector Corporation, for events, functions held therein or for use thereof and that the ITDC, run and managed by bureaucrats under the control of the said politicians had also not taken any action for recovery of the said dues which were again public monies.  The zeal with which the public bodies try to recover dues from ordinary citizens was found to be totally missing in case of politicians and political parties and which in fact had resulted in accumulating arrears. There is a total lack of will on the part of governmental agencies to whom dues are owed, to recover the same from the politicians and political parties.  The possibility of having the recoveries effected through the Lok Sabha and Rajya Sabha Secretariats by virtue of Rule 23 of the Members of Parliament (Travelling and Daily Allowances) Rule, 1957 also proved to be futile since the amounts due being very huge could not be recovered by way of deduction from the salaries.  Neither the persuasion by the Supreme Court of the governmental agencies to whom dues are owed could prompt them for recovery nor did the different avenues explored by the Court for recovery have any substantial success due to the reluctance on the part of the governmental agencies to treat the political masters equally, as they treat other citizens.  The defaulter politicians and political parties are found to have misused their position of power for their own benefit and gain which is against the simple premise of law that the public offices shall not be the workshops of personal gain.  This calls for issue of directions to ensure that the MPs, MLAs and the political parties, taking advantage of the clout enjoyed by them over the officials of the municipal, electricity, water, telephone and other facilities agencies, are not able to escape paying the dues. Thus, the High Court under Paragraph 13 (reproduced below) issued, among others, the following directions: ―H. The ECI to, as directed in the earlier orders in this petition, continue to insist upon the candidates desirous of contesting an election to Parliament or to Legislative Assembly, along with their nomination form furnishing an affidavit of their being not in arrears of any public dues and if such candidate is in occupation of or in the past ten years been in occupation of any government accommodation to furnish a No Dues Bar & Bench (www.barandbench.com)

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Certificate from the agency providing electricity, water and telephone to the said accommodation. I. The ECI to also within six months consider the possibility if any of putting any impediment to a defaulter of public dues contesting election, to ensure quick recovery of the said dues.‖ Proposed amendment In pursuance of the second direction quoted above, the Commission has recommended that the provisions for disqualification laid down in Chapter III of The Representation of the People Act, 1951 must be amended by inserting appropriate clause for disqualification on the ground of pending public dues. CHAPTER – VI : DECRIMINALIZATION OF POLITICS 1. DE-CRIMINALISATION OF POLITICS Background Section 8 of the RPA, 1951 deals with disqualification on conviction for certain offences. Under this Section, disqualification arises only on conviction and there is no disqualification prior to conviction even if a person is facing several serious charges. The Election Commission proposed in its set of proposals of 1998 and 2004 that Section 8 of the Representation of the People Act, 1951 should be amended to disqualify those persons from contesting election who are accused of an offence punishable by an imprisonment of 5 years or more even when trial is pending, given that the Court has framed charges against the person. To prevent misuse of the provision by the ruling party, the Commission suggested a compromise whereas only cases led prior to six months before an election would lead to disqualification of a candidate. In addition, the Commission proposed that Candidates found guilty by a Commission of Enquiry should stand disqualified. SOME IMPORTANT JUDGMENTS In 2002, the Hon'ble Supreme Court gave a historic ruling in Union of India (UOI) v. Association for Democratic Reforms and Anr. With People's Union for Civil Liberties (PUCL) and Anr. v. Union of India (UOI) and Anr. (2002) 5 SCC 294 that every candidate, contesting an election to the Parliament, State Legislatures or Municipal Corporation, has to declare their criminal records, financial records and educational qualifications along with their nomination paper. In 2005, the Supreme Court in Ramesh Dalal vs. Union of India held that a sitting Member of Parliament (MP) or Member of State Legislature (MLA) shall also be subject to disqualification from contesting elections if he is convicted and sentenced to not less than 2 years of imprisonment by a court of law. Bar & Bench (www.barandbench.com)

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In Lily Thomas v. Union of India 2000 (4) SCALE 176, the Court held that Section 8(4) of The Representation of the People Act, 1951 is unconstitutional which allows MPs and MLAs who are convicted to continue in office till an appeal against such conviction is disposed of. Further in 2013, the Hon'ble Supreme Court has requested the 20th Law Commission of India vide letter dated 16th January, 2013 to consider the matter again under two grounds, viz. disqualifications on the ground of framing of charges by the court or upon the presentation of the report by the investigating officer under Section 173 of Code of Criminal Procedure Code and disqualification on the ground of filing false affidavit under Section 125A of the Act of 1951. As per the concerns of the court the Law Commission has suggested recommendations titled ―Electoral disqualifications‖ in its 244th report on Electoral Reforms. The Hon'ble Supreme Court in Krishnamoorthy v. Sivakumar&Ors. (2015), while observing that the crucial recognized ideal which is required to be realized is eradication of criminalization of politics and corruption in public life decided that ―disclosure of criminal antecedents of a candidate, especially, pertaining to heinous or serious offence or offences relating to corruption or moral turpitude at the time of filing of nomination paper as mandated by law is a categorical imperative and Concealment or suppression of this nature deprives the voters to make an informed and advised choice as a consequence of which it would come within the compartment of direct or indirect interference or attempt to interfere with the free exercise of the right to vote by the electorate, on the part of the candidate.‖ Reason for proposed amendment moved by the Commission. Persons with Criminal background, accused of serious offences contesting election sends very negative signals about our electoral process. Many of such persons facing charges of grave nature end up winning election and entering our temple of democracy namely the Houses of Parliament and State Legislature which is highly undesirable and the issue needs to be addressed. The Commission while making the proposal is fully conscious of the general principles of criminal jurisprudence that a person is deemed to be innocent until proven guilty. But the proposed amendment will be in the larger national interest which should take precedence over the interests of the individuals. Proposed amendment : Persons charged with cognizable offences shall be de-barred from contesting in the elections, at the stage when the charges are framed by the competent court provided the offence is punishable by imprisonment of at least 5 years, and the case is led at least 6 months prior to the election in question. Bar & Bench (www.barandbench.com)

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Recommendation by Law Commission Expediting trials in relevant courts where a case is led against a sitting MP/MLA and to conduct the trial on a day-to-day basis with an outer limit of completing the trial in one year. If the trial cannot be completed within the said time period or charge is not quashed in the said period, the trial judge shall give reasons in writing to the relevant High Court. Once the said period expires, two consequences may ensue: (i) The person may be automatically disqualified at the end of the said time period (ii) The right to vote, remuneration and perquisites of office shall be suspended at the end of the said period up to the expiry of the House. Retroactive application- from the date the proposed amendments come into effect, all persons with criminal charges (punishable by more than five years) pending on that date are liable to be disqualified subject to certain safeguards. The punishment for filing false affidavits under Section 125A be increased to a minimum of two years, and that the alternate clause for fine be removed. Conviction under Section 125A should be made a ground for disqualification under Section 8(1) of the RPA, 1951. The filing of false affidavits should be made a corrupt practice under Section 123 of the RPA. 2. MISUSE OF RELIGION FOR ELECTORAL GAIN Background Elections are the manifestations of popular consent in a democratic society. History assents that it has significant repercussions on the making of a nation's governance and the nature of its policies. The framers of the Indian Constitution were concerned about the control that religion might exercise over the selection of government. A lot of dialogue and debate was made in the Constitutional assembly debates regarding the inclusion of word ―secularism‖. The Forty-second Amendment of the Constitution of India, officially known as The Constitution (Forty-second amendment) Act, 1976 was in the following lines ―The democratic institutions provided in the Constitution are basically sound and the path for progress does not lie in denigrating any of these institutions. However, there could be no denial that these institutions have been subjected to considerable stresses and strains and that vested interests have been trying to promote their selfish ends to the great detriment of public good. It is, therefore, proposed to amend the Constitution to spell out expressly the high ideals of socialism, secularism and the integrity of the nation, to make the directive principles more comprehensive and give them precedence over those fundamental rights which have been allowed Bar & Bench (www.barandbench.com)

225 to be relied upon to frustrate socio-economic reforms for Implementing the directive principles...... In the Preamble to the Constitution,-(a) for the words "SOVEREIGNDEMOCRATIC REPUBLIC" the words "SOVEREIGNSOCIALIST SECULAR DEMOCRATIC REPUBLIC" shall be substituted; and(b) for the words "unity of the Nation", the words "unity and integrity of the Nation" shall be substituted.‖ An Amendment Bill, [Representation of the People (Second Amendment) Bill, 1994] was introduced in the Loksabha to provide provision(s) to question the acts misuse of religion by political parties before the Hon'ble High Court. However the same lapsed in 1996 with the dissolution of 10th Lok Sabha. The Commission has forwarded the recommendation again on 2010. Earlier Goswami Committee in its report in 1990 on Electoral Reforms had suggested parallel recommendation, which read as follows: ―Election Commission shall have the power to make recommendations to the appropriate authority (a) to refer any matter for investigation to any agency specified by the Commission (b) Prosecute any person who has committed an electoral offence under this Act or (c) appoint any special court for the trial of any offence or offences under this Act (RPAct 1951).‖ The above recommendations were included in the Representation of the People (Amendment) Bill, 1990 introduced in the Rajya Sabha. However, the said Bill was withdrawn by the Govt. in December, 1993, stating the Govt. would come up with a revised Bill. In the 255th report of the Law Commission on Electoral Reforms, recommendations were made to maintain internal democracy in the political parties, drawing a comparative study of electoral regulations in Germany, Portugal and Spain. Reason for the proposed amendment The Ministry of Home affairs referred to the Commission the relevant part of the Report of the Liberhans Ayodhya Commission of Inquiry, in 2010, for action on some recommendations for action by the Election Commission against the parties, which misuse religious sentiments. The proposal was to initiate swift action against those persons who attempt to misuse religious sentiments or making appeals to voters through the mode of their piety by holding disguised religious rallies in places of worship as political supplication, to strengthen the existing provisions in the Codes of Conduct and other election related laws. Under the existing law i.e. section 123(3) and (3A) of the Representation of the People Act, 1951 appeal on grounds of religion, race etc. And promotions of feelings of enmity between different classes of religion constitute corrupt practice and the same can be questioned Bar & Bench (www.barandbench.com)

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only by way of an election petition. Further the same cannot be a subject of enquiry before the Commission when the election is in progress. Ironically these provisions will have application only during the period of election and there is no provision to challenge the corrupt practice of the candidate who lost the election. Proposed amendment The Commission proposed that for giving effect to the recommendations in the Liberhan Commission Report, the law should be amended as was proposed in the Bills of 1990 and 1994 referred to above. 3. MAKING BRIBERY IN ELECTIONS A COGNIZABLE OFFENCE Background The phenomenon of bribing of voters with money and essential commodities and buying out local representatives has always plagued Indian elections. Section 123(1) of The Representation of the People Act 1951 defines "Bribery" as any gift, offer or promise by a candidate or his agent or any other person with the consent of a Candidate or his election agent giving gratification, to any person whomsoever, with the object, directly or indirectly of inducing— (a) A person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, (b) An elector to vote or refrain from voting at an election (c) An elector for having voted or refrained from voting… etc. Section 171B of IPC also describes Bribery broadly in the lines that, if a person advances a gratification to any person with the object of inducing him or any other person to exercise their electoral right or of rewarding any person for having exercised any such right or accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right; commits the offence of bribery. Section 171C of IPC talks about undue influence at elections(1) Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election by threatening any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or by inducing a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure. In 2012 the Election Commission recommended to the Home Ministry to amend the existing law to make bribery during elections (both cash and kind) a cognizable offence, enabling police to arrest the violators without a warrant and to enhance the punishment up to two Bar & Bench (www.barandbench.com)

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years. The Home Ministry has conveyed to the Election Commission that it has initiated the process to amend the Sections 171B and 171E of the Code of Criminal Procedure (Cr.P.C), 1973 for the same. Reason for proposed amendment The change in law have become necessary as there have been increasing incidents of bribery being detected in all elections, from local body polls to Lok Sabha elections. This is because, currently, bribery is a bailable offence attracting only minimal punishment. Moreover, the experience on the ground has shown that the law enforcing authorities feel handicapped in apprehending the culprits because they cannot proceed without a warrant issued by a competent Magistrate under Section 200 of the Code of Criminal Procedure Code, 1973 on being moved under section 155 of the said Act, to search or arrest any person even on specific information about the corruptive practice. These provide the violators an opportunity to evade legal action. Proposed amendment The proposal of the Commission is that Section 171B and 171E of the Code of Criminal Procedure (Cr.P.C), 1973, shall be amended immediately to include bribery as a cognizable offence with minimum 2 years of Imprisonment. CHAPTER-VII : REFORMS RELATING TO POLITICAL PARTIES 1. DE - REGISTRATION OF POLITICAL PARTIES Background Section 29A of The Representation of the People Act, 1951 empowers the Election Commission of India to register associations and bodies as political parties. However, there is no constitutional or statutory provision that gives power to the Election Commission to de-register political parties. The Supreme Court held in Indian National Congress (I) v. Institute of Social Welfare and Ors., (2002) 5 SCC 685 held that the law does not empower the Commission to de-register a political party on the grounds of violation of any provisions of constitution or any undertaking given to the Commission. It was further held: ―34. However, there are three exceptions where the Commission can review its order registering a political party. One is where in political party obtained its registration by playing fraud on the Commission, secondly it arises out of Sub-section (9) of Section 29A of the Act and thirdly, any like ground where no enquiry is called for on the part of the Election Commission, for example, where the political party concerned is declared unlawful by the Central Government under the provision of the Unlawful Activities (Prevention) Act, 1967 or any other similar law. Bar & Bench (www.barandbench.com)

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35. Coming to the first exception, it is almost settled law that fraud vitiates any act or order passed by any quasi-judicial authority even if no power of review is conferred upon it. In fact, fraud vitiates all actions. In Smith v. East Ellis Rural Distt. Council - (1956) 1 All E.R. 855 it was stated that the effect of fraud would normally be to vitiate all acts and order. In Indian Bank v. Satyam Fibres (India) Pvt. Ltd. - MANU/ SC/ 0657/ 1996 : AIR1996SC2592 , it was held that a power to cancel/recall an order which has been obtained by forgery or fraud applies not only to courts of law, but also statutory tribunals which do not have power of review. Thus, fraud or forgery practiced by a party while obtaining a registration, if comes to the notice of the Election Commission, it is open to the Commission to de-register such a political party. 36. The second exception is where a political party changes its nomenclature of association, rules and regulation abrogating the provisions therein conforming to the provisions of Section 29A(5) or intimating the Commission that it has ceased to have faith and allegiance to the Constitution of India or to the principles of socialism, secularism and democracy, or it would not uphold the sovereignty, unity and integrity of India so as to comply the provisions of Section 29A(5). In such case, the very substratum on which the party obtained registration is knocked of and the Commission in its ancillary power can undo the registration of a political party. Similar case is in respect of any like ground where no enquiry is called for on the part of the Commission. In this category of cases, the case would be where a registered political party is declared unlawful by the Central Government under the provisions of Unlawful Activities (Prevention) Act, 1967 or any other similar law. In such cases, power of the 'Commission to cancel the registration of a political party is sustainable on the settled legal principle that when a statutory authority is conferred with a power, all incidental and ancillary powers to effectuate such power are within the conferment of the power, although not expressly conferred. But such an ancillary and incidental power of the Commission is not an implied power of revocation. The ancillary and incidental power of the Commission cannot be extended to a case where a registered political party admits that it has faith in the Constitution and principles of socialism, secularism and democracy, but some people repudiate such admission and call for an enquiry by the Election Commission. Reason being, an incidental and ancillary power of a statutory authority is not the substitute of an express power of review. 41. It may be noted that the Parliament deliberately omitted to vest the Election Commission of India with the power to de-register a political Bar & Bench (www.barandbench.com)

229 party for non-compliance with the conditions for the grant of such registration. This may be for the reason that under the Constitution the Election Commission of India is required to function independently and ensure free and fair elections. An enquiry into non-compliance with the conditions for the grant of registration might involve the Commission in matters of a political nature and could mean monitoring by the Commission of the political activities, programmes and ideologies of political parties. This position gets strengthened by the fact that on 30th June, 1994 the Representation of the People (Second Amendment) Bill, 1994 was introduced in the Lok Sabha proposing to introduce Section 29-B whereunder a complaint to be made to the High Court within whose jurisdiction the main office of a political party is situated for cancelling the registration of the party on the ground that it bears a religious name or that its memorandum or rules and regulations no longer conforming the provisions of Section 29-A(5) or that the activities are not in accordance with the said memorandum or rules and regulations. However, this bill lapsed on the dissolution of the Lok Sabha in 1996.‖ The recommendation by Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in 61st Report on Electoral Reforms-Code of Conduct for Political Parties & Anti Defection Law states: ―Under Section 29 (A) Representation of People Act, 1951, the Election Commission of India has been given power to register Political Parties but the power of de-registration of Political Parties has not been given to Election Commission of India under that law. However, the Election Commission of India has assumed the power under para 16 A of the Election Symbol (Reservation and Allotment) Order, 1968 to de- recognize the Political Parties in the event of violation of Model Code of Conduct. The net effect of de-recognition of political party makes that party almost dysfunctional as its symbol is taken away. The Committee, therefore, recommends that the power to de-recognize Political Parties on account of violation of Model Code of Conduct may be incorporated in the Representation of People Act, 1951 itself.‖ Reason for proposed amendment Many political parties get registered, but never contest election. Such parties exist only on paper. The possibility of forming political parties with an eye on availing the benefit of income tax exemption also cannot be ruled out. It would only be logical that the Commission which has the power to register political parties is also empowered to de-register in appropriate cases

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Proposed amendment The Election Commission of India should be given powers to de-register a political party and should be authorized to issue necessary orders regulating registration and de-registration of political parties. Recommendation of the Law Commission Law Commission of India report on Electoral Reforms, Report No. 255 (March 12, 2015) endorsing the view of the Election Commission stated the following: ―3.12 Consequently, there is no mechanism to review a party's practice against the principles enshrined in the Constitution or against the requirements of the ECI's Guidelines and Application Format for the Registration of Political Parties under Section 29A. A party can only be deregistered if its registration was obtained by fraud; if it is declared illegal by the Central Government; or if a party amends its internal Constitution and notified the ECI that it can no longer abide by the Indian Constitution. Moreover, there is no power of de-registration if parties having registered under section 29A of the RPA continue to avail of tax benefits under section 13A of the IT Act, without contesting elections. The RPA thus needs to be amended to empower the ECI to act. 3.13 Even otherwise, these situations only deal with cases of deregistration, and not disbarment of any party from contesting elections. It is clear that any party can contest elections, even if their Constitution contravenes the provisions and ideals of the Constitution or does not provide for internal elections.‖ Further, the National Commission to Review the Working of the Constitution Report, Ministry of Law, Justice and Company Affairs Department of Legal Affairs (2002): ―4.30.1. The Commission recommends that there should be a comprehensive legislation [may be named as the Political Parties (Registration and Regulation) Act], regulating the registration and functioning of political parties or alliances of parties in India. 4.30.2. The proposed legislation should provide for compulsory registration for every political party or pre-poll alliance. It should lay down conditions for the constitution of a political party or alliance and for registration, recognition and de-registration and de recognition. 4.30.3. The Commission recommends that every political party or alliance should, in its Memoranda of Association, Rules and Regulations provide for its doors being open to all citizens irrespective of any distinctions of caste, community or the like. It should swear allegiance to the provisions of the Constitution and to the sovereignty and integrity of the nation, regular elections at an interval of three years at its various Bar & Bench (www.barandbench.com)

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levels of the party, reservation/representation of at least 30 percent of its organizational positions at various levels and the same percentage of party tickets for parliamentary and State legislature seats to women. Failure to do so should invite the penalty of the party losing recognition. 4.30.6. The authority for registration, de-registration, recognition and de-recognition of parties and for appointing the body of auditors should be the Election Commission whose decisions should be final subject to review by the Supreme Court on points of law. 4.32. The rules and by-laws of the parties seeking registration should include provisions for: I. a declaration of adherence to democratic values and norms of the Constitution in their inner party organizations, ii. a declaration to shun violence for political gains, iii. a declaration not to resort to Casteism and communalism for political mobilization, but to adhere to the principles of secularism in the achievement of their objectives, iv. a provision for party conventions to nominate and select candidates for political offices at the grass root and State levels, v. a code of conduct (which each political party should evolve for itself), vi. some institutional mechanism for planning, thinking and research on crucial socioeconomic issues facing the nation and educational cells for socializing their party cadres and preparing them for responsibilities of governance, vii. Implementation of legal provisions regarding representation to women and weaker sections of society in party offices and in candidacy for elections to Houses of Legislatures.‖ 2. TAX RELIEF FOR POLITICAL PARTIES Background Section 13A of the Income-tax Act, 1961 confers tax-exemption to political parties for income from house property, income by way of voluntary contributions, income from capital gains and income from other sources. In other words, only income under the head salaries and income from business or profession are chargeable to tax in the hands of political parties in India. Political parties registered with the Election Commission of India are exempt from paying Income Tax under section 13A of Income Tax Act, 1961 as long as the political parties comply with the proviso to section 13A, that is, if they file their Income Tax Returns every Assessment Year along with their audited accounts, Income/ Expenditure details and balance sheet. In 2003, sections 29B and 29C were inserted in The Representation of the People Act, 1951 making provisions regarding Bar & Bench (www.barandbench.com)

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receiving of donations/contributions by political parties from individuals and companies (other than govt. companies). Section 29C provides that for contribution in excess of Rs. 20,000/- in a year, the treasurer/authorised person of the party shall prepare a report of such contributions. The report is required to be submitted on an annual basis to the Commission before the due date for furnishing the return of its income, and failure to do so would render the party ineligible for any tax relief under the Income Tax Act notwithstanding any provisions therein. Reason for proposed amendment There could be cases where political parties could be formed merely for availing of provisions of income tax exemption if the facility, that are at the expense of the public exchequer, is provided to all political parties. Proposed Reform: Provisions for exemption of Income Tax should be made applicable only to political parties that contest elections and win seat(s) in the Parliament or Legislative Assemblies. 3. COMPULSORY MAINTENANCE OF ACCOUNTS BY POLITICAL PARTIES Background Section 13A(a) of the Income Tax Act, 1961 requires the political parties to keep and maintain ―such books of account and other documents as would enable the Assessing Officer to properly deduce its income therefrom.‖ Section 13A(a) of the Income Tax Act, 1961 states that the accounts of such political party must be audited by an accountant as defined in the Explanation below sub-section (2) of section 288. Section 29C of The Representation of the People Act, 1951 states that the treasurer of a political party or any other person authorized by the political party in its behalf shall, in each financial year, prepare a report declaring the donations received from persons or non-government companies in that financial year. Section 29C (3) states that the said report must be submitted before the due date for furnishing a return of its income of that financial year under section 139 of the Income Tax Act, 1961 to the Election Commission. Section 29C (4) provides that tax exemption under section 13A of the Income Tax Act will not be availed to a political party which fails to submit the said report. The ―Guidelines and Application Format for Registration of Political Parties under section 29A of The Representation of the People Act‖ by the Election Commission of India requires the parties seeking registration to maintain their accounts on accrual system and to be annually audited by Auditor on the panel of Comptroller and Auditor General of India. It further states that the audited annual accounts should be submitted to the Election Commission within 6 months of the end of financial year. Bar & Bench (www.barandbench.com)

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Reason for proposed amendment Political parties are major stakeholders in a democracy and they should be accountable to the public. This will ensure transparency and empower people to make informed decisions about electing their representatives. Proposed Reform Sections 29C, 29D, 29E, as recommended by the Law Commission in Report 255, should be inserted in the Representation of People Act, 1951. Recommendation by the Law Commission Law Commission of India report on Electoral Reforms, Report No. 255 (12.03.2015) endorsing the view of the Election Commission stated that: ―5. Section 29C of the RPA has to be deleted. In its place, a new section 29C has to be inserted mandating political parties to maintain audited accounts, along the line of the 170th Report's recommended section 78A: ―29C. Maintenance, audit, publication of accounts by political parties (1) Each recognized political party shall maintain accounts clearly and fully disclosing all the amounts received by it and clearly and fully disclosing the expenditure incurred by it. The account shall be maintained according to the financial year. Within six months of the close of each financial year, each recognized political party shall submit to the Election Commission, its accounts, duly audited by a qualified and practicing chartered accountant from a panel of such accountants maintained for the purpose by the Comptroller and Auditor General. (2) The Election Commission shall make publicly available, on its website, the audited accounts submitted by all political parties under sub-section (1). (3) The Election Commission shall also keep these accounts on le for three years after their submission and shall make them available for public inspection on the payment of a prescribed fee.‖ 6. The existing section 29C of the RPA has to be modified and recast as section 29D to first, include aggregate contributions from a single donor amounting to Rs. 20,000 within its scope; second, require parties to disclose the names, addresses and PAN card numbers (if applicable) of donors along with the amount of each donations; third, require parties to disclose such particulars even for contributions less than Rs. 20,000 if such contributions exceed Rs. 20 crore of the party's total contributions or twenty per cent of total contributions, whichever is lesser. Consequential amendments will need to be made to the Election Rules and the IT Act. The proposed section 29D reads as: ―29D. Declaration of contribution received by the political parties.— Bar & Bench (www.barandbench.com)

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(1) The treasurer of a political party or any other person authorized by the political party in this behalf shall, in each financial year, prepare a report in respect of the following, namely: — (a) the contribution in excess of twenty thousand rupees, including an aggregate of contributions in excess of twenty thousand rupees, received by such political party from any person in that financial year; (b) the contribution in excess of twenty thousand rupees, including an aggregate of contributions in excess of twenty thousand rupees received by such political party from any company, other than a Government company, in that financial year. (2) Notwithstanding anything contained in sub-section (1), the treasurer of a political party or any other person authorized by the political party in this behalf shall, in the report referred to in sub-section (1), disclose the particulars of such contributions received from a person or company, other than a Government company, even if the contributions are below twenty thousand rupees, in case such contributions exceeds twenty crore rupees, or twenty per cent of total contributions, whichever is lesser, as received by the political party in that financial year. Illustration: A political party, 'P', receives a total of hundred crore rupees, in cash or cheque, in a financial year. Out of this amount, fifty crore rupees are received from undisclosed sources, by way of contributions less than twenty thousand rupees (in cash or multiple cheques). P shall be liable to disclose the particulars of all donors beyond twenty crores, even if they have contributed less than twenty thousand rupees each. (3) The report under sub-section (1) shall be in such form as may be prescribed. (4) The report for a financial year under sub-section (1) shall be submitted by the treasurer of a political party or any other person authorized by the political party in this behalf before the due date for furnishing a return of its income of that financial year under section 139 of the Income-tax Act, 1961 (43 of 1961), to the Election Commission. Explanation: For the avoidance of doubt, it is hereby clarified that the term ―particulars‖ mentioned in this section shall include the amount donated; the names and addresses, and PAN card number if applicable, of such person or company referred to in this section.‖ 7. A new section 29E to be inserted in the RPA requiring the ECI to make publicly available, on its website, all the contribution reports submitted by all political parties under section 29D. Section 29E shall read as: ―29E. Disclosure of contribution reports submitted by political parties. (1) Election Commission shall make publicly available, on its website, the contribution reports submitted by all political parties under section 29D. Bar & Bench (www.barandbench.com)

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(2) The Election Commission shall also keep these reports on le for three years after their submission and shall make them available for public inspection on the payment of a prescribed fee.‖ 4. ACCOUNTING AND AUDITING REPORT OF POLITICAL PARTIES Background There is no legislation or regulation or rule which prescribes either (a) standard financial accounting and reporting framework, or (b) auditing framework for financial statements of political parties in India. Reason for proposed amendment Accounting and auditing standards would help political parties to maintain uniformity in presentation of financial statements, proper disclosure and transparency of their accounts. Proposed amendment On the request of ECI, the Institute of Chartered Accountants of India made certain recommendations in February 2010 under its ―Guidance Note on Accounting & Auditing of Political Parties‖ to the Election Commission for improving the system of accounting followed by political parties in India. Important recommendations of ICAI include: a) Political parties should maintain books of account on accrual basis; b) Elements of financial statements basically comprising income, expenses, assets and liabilities; c) Principles for recognition of income, expenses, assets and liabilities; d) Political parties, irrespective of the fact that no part of the activities is commercial, industrial or business in nature that all political parties should follow Accounting Standards; e) A Political Party should not recognize a contingent liability on the face of financial statements, but it should make the following disclosures, for each class of contingent liability, in the notes to financial statements; f) Books of account format was provided; g) Schedule 13 of the Guidance Note states that collection from issuance of coupons/ sale of publications should be classified and disclosed. The ECI issued transparency guidelines under Article 324 of the Constitution of India bearing No. 76/PPEMS/Transparency/2013 dated 29/08/2014 with effect from 01/10/2014 stating that the accounts maintained by the treasurer of the political party shall conform to the ―Guidance Note on Accounting and Auditing of political parties‖ issued by the ICAI. Although Election Commission in its guidelines date 29/08/2014 required political parties to conform to the ―Guidance Note on Accounting & Auditing of Political Parties‖ by ICAI, the Guidance Note should be mandated by an act of the legislature as presently these guidelines are mere recommendations. Bar & Bench (www.barandbench.com)

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5. FORM 24A UNDER RULE 85B OF THE CONDUCT OF ELECTIONS RULES, 1961 Background Rule 85B of The Conduct of Elections Rules, 1961 provides: ―85B. Form of contributions report: The report for a financial year under sub-section (1) of section 29C shall be submitted in form 24A by the treasurer of a political party or any other person authorized by the political party in this behalf, before the due date for furnishing a return of its income of that financial year under section 139 of the Income tax Act, 1961 (43 of 1961), to the Election Commission.‖ Reason for proposed amendment The present Form 24A does not incorporate the contributions amounting to a sum below Rs. 20,000/-. Form 24A needs to be amended by including a column for mentioning the total contributions received is amounts less than Rs. 20,000/-. This will be in interest of transparency. Proposed amendment Form 24A should be amended for including the clause as mentioned above. Proposed new Form 24A is enclosed. FORM 24A (Under Rule 85B of The Conduct of Elections Rules, 1961) [This form should be led with the Election Commission before the due date for furnishing a return of the Political Party's income of the concerned financial year under section 139 of the Income-tax Act, 1961 (43 of 1961) and a certificate to this effect should be attached with the Income-tax return to claim exemption under the Income-tax Act, 1961 (43 of 1961).] PART-A 1. Name of Political Party 2. Status of the Political Party (recognized/unrecognized) 3. Address of the headquarters of the Political Party 4. Date of registration of Political Party with Election Commission 5. Permanent Account Number (PAN) 6. Income-tax Ward/Circle where return of the political party is led 7. Financial year for which contribution report is submitted 8. Details of contribution receipts is produced below 1. Total Contribution received from all sources permissible under section 29B of the RPA 2. Out of (1), total contribution received in excess of Rs. 20,000/- from a person of company 3. Out of (1), total contribution received below Rs. 20,000/- from a person or company Bar & Bench (www.barandbench.com)

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9. Where the contributor is a company, the conditions laid down under section 182 of the Companies Act, 2013 (18 of 2013) has been complied with by each company and a certificate to that effect has been obtained from each company and annexed as per enclosed list of such companies. 10. Where the contributor is an electoral trust, the conditions laid down under section 13B of the Income Tax Act, 1961 has been complied with by each electoral trust and a certificate to that effect has been obtained from each electoral trust and annexed as per enclosed list of such trusts. 11. Details of the contributions received in excess of Rupees twenty thousand, from a person or a company under section 29C of the Representation of People Act (1951), during the Financial Year 20____ to 20___ are as under:  Name of person /company:  Complete address:  PAN (If any and income tax, ward/circle  Amount of contribution (in rupees)  Date of receipt  Mode of contribution (Cash/Cheque/DD/NEFT)  Total Contribution in Cash  Total Contribution through Cheque/DD/NEFT Note: a) Where a person or company has made contributions on more than one occasion, entries of each contribution should be made separately. b) Where a person or company has made contributions on more than one occasion and the sum total of contribution exceeds Rs. 20,000/- in the financial year under reference, details of such contribution should be given separately in the format given under clause 11 of this Form, even if individual contribution was less than Rs. 20,000/-. c) Where a person or company has made contributions on more than one occasion and the sum total of contribution is below Rs. 20,000/- in the financial year under reference, details of such contribution should be given separately in the format given under clause 10 of this Form. PART C Verification I, ______(Full Name in BLOCK LETTERS), son/daughter of ______solemnly declare that: a) No contribution has been received directly or indirectly from any foreign source as defined under clause (e) of section 2 of the Foreign Contribution (Regulation) Act, 1976 (49 of 1976); Bar & Bench (www.barandbench.com)

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b) No contribution has been received from a government company or local authority or artificial juridical person wholly or partly funded by the government, as prohibited under section 29B of the Representation of People Act, 1951; c) The figures shown in Item 7 of Part A are as per the audited annual accounts of the political party for the financial year under reference; d) The information given in this report is correct, complete and truly states, to the best of my knowledge. I, further declare that I am verifying this report in my capacity as ______on behalf of the political party named above and I am competent to do so.

(Signature of the Treasurer/ Authorized person) Name: ______Designation: ______Date: ___/____/______Place: ______Form 24A with all enclosures and completely filled with all details should be submitted in a soft copy on a CD readable in scanned and pdf format. Form 24A should be duly lled and enclosed with the following: 1. Certificates under Section 182 of the Companies Act, 2013 from each company making contribution to the political party and the list of such companies. 2. Certificates from each electoral trust making contribution to political party and approval order of CBDT along with the list of electoral trusts. Notes: 1. If any political party has not raised any contribution in excess of Rs. 20,000/- during the financial year under reference, every such party is also required to le NIL report. 2. If the report in Form 24A is not led by any political party for any financial year before its due date of filing of the Annual Income Tax Return under section 139 of Income Tax Act (1961), the party shall not be entitled to any tax relief under that Act, as laid down in section 29C of the Representation of People Act, 1951.

6. PROHIBITION ON ANONYMOUS DONATIONS Background There is no constitutional or statutory prohibition on receipt of anonymous donations by political parties in India. But there is an indirect partial ban on anonymous donations through the requirement of declaration of donations under section 29C of The Representation of the People Act, 1951. Bar & Bench (www.barandbench.com)

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Reason for Proposed Amendment Although section 29C of The Representation of the People Act, 1951 requires the political parties to declare their donations, however such declaration is mandated only for contributions above Rs 20,000. Proposed amendment Anonymous contributions above or equal to the amount of Rupees two thousand should be prohibited. Recommendations by the Law Commission Law Commission report on Electoral Reforms, Report-255 (12.03.2015): ―Finally, separate provisions should be inserted, along the lines of the comparative practice discussed above, requiring: (a) All parties to submit the names and addresses of all their donors (regardless of the amounts or source of funding) for contributions greater than Rs. 20,000 through a new section 29D, RPA. A maximum of up to Rs. 20 crore or 20% of the party's entire collection, whichever is lower, can be anonymous;‖ 7. SALE OF COUPONS Background Coupons are one of the ways devised by the political parties for collecting donations and hence are printed by the party itself. There is no cap or limit as to how many coupons can be printed or the total quantum (that is the total amount or worth of coupons). The Supreme Court in Common Cause A Registered Society v. Union of India and others, (1996) 2 SCC 752 held as under: ―1. That the political parties are under a statutory obligation to le return of income in respect of each assessment year in accordance with the provisions of the IT Act. The political parties referred to by us in the judgment, who have not been filing returns of income for several years, have, prima facie, violated the statutory provisions of the IT act as indicated by us in the judgment. 2. IT authorities have been wholly remiss in the performance of their statutory duties under law. The said authorities have for a long period failed to take appropriate action against the defaulter political parties. 3. The Secretary, Ministry of Finance, Department of Revenue, Government of India, shall have an investigation/inquiry conducted against each of the defaulter political parties and initiate necessary action in accordance with law including penal action under s. 276CCof the IT Act. 4. The Secretary, Ministry of Finance, Department of Revenue, Government of India, shall appoint an inquiring body to find out why and in what circumstances the mandatory provisions of the IT act regarding filing of return of income by the political parties were not enforced. Any Bar & Bench (www.barandbench.com)

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officer/officers found responsible and remiss in the inquiry be suitably dealt with in accordance with the rules. 5. A political party which is not maintaining audited and authenticated accounts and has not led the return of income for the relevant period, cannot, ordinarily, be permitted to say that it has incurred or authorised expenditure in connection with the election of its candidates in terms of Expln. 1 to s. 77 of the RP Act.‖ Reason for Amendment Currently, the details of donors is not required for coupons with small amounts such as for Rs. 10 or 20. These smaller sums aggregate into a bigger amount and hence, they need to be accounted for, to ensure transparency. Proposed amendment The political parties should be mandated to resister details of donors for coupons of all amounts on the basis of Supreme Court's decision in Common Cause A Registered Society v. UOI & others, (1996) 2 SCC 752. The Institute of Chartered Accountants of India made certain recommendations, upon Election Commission's request, in February 2010 under its ―Guidance Note on Accounting & Auditing of Political Parties‖ for improving the system of accounting followed by political parties in India. One such recommendation relates to the coupons: Schedule 13 of the Guidance Note states that collection from issuance of coupons/ sale of publications should be classified and disclosed. 8. MAINTENANCE OF SEPARATE BANK ACCOUNTS BY EACH CONTESTING CANDIDATE FOR POLL EXPENSES Background Section 77 of the Representation of People Act, 1951 ―77. Account of election expenses and maximum thereof. (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.‖ The Supreme Court in the case of Shri Kanwar Lal Gupta v. Amar Nath Chawla and Ors., (1975) 3 SCC 646 held that: ―11. Now, if a candidate were to be subject to the limitation of the ceiling, but the political party sponsoring him or his friends and supporters were to be free to spend as much as they like in connection with his election, the object of imposing the ceiling would be completely frustrated and the beneficent provision enacted in the interest of purity and genuineness of the democratic process would be wholly emasculated Bar & Bench (www.barandbench.com)

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(emphasis added). The mischief sought to be remedied and the evil sought to be suppressed would enter the political arena with redoubled force and vitiate the political life of the country. The great democratic ideal of social, economic and political justice and equality of status and opportunity enshrined in the Preamble of our Constitution would remain merely a distant dream eluding our grasp. The legislators could never have intended that what the individual candidate cannot do, the political party sponsoring him or his friends and supporters should be free to do. That is why the legislature wisely interdicted not only the incurring but also the authorizing of excessive expenditure by a candidate. When the political party sponsoring a candidate incurs expenditure in connection with his election, as distinguished from expenditure on general party propaganda, and the candidate knowingly takes advantage of it or participates in the programme or activity or fails to disavow the expenditure or consents to it or acquiesces in it, it would be reasonable to infer, save in special circumstances, that he impliedly authorized the political party to incur such expenditure and he cannot escape the rigour of the ceiling by saying that he has not incurred the expenditure, but his political party has done so. A party candidate does not stand apart from his political party and if the political party does not want the candidate to incur the disqualification, it must exercise control over the expenditure which may be incurred by it directly to promote the poll prospects of the candidate (emphasis added). The same proposition must also hold good in case of expenditure incurred by friends and supporters directly in connection with the election of the candidate. This is the only reasonable interpretation of the provision which would carry out its object and intendment and suppress the mischief and advance the remedy by purifying our election process and ridding it of the pernicious and baneful influence of big money. This is in fact what the law in England has achieved. There, every person, on pain of criminal penalty, is required to obtain authority from the candidate before incurring any political expenditure on his behalf. The candidate is given complete discretion in authorizing expenditure up to his limit. If expenditure made with the knowledge and approval of the candidate exceeds the limit or if the candidate makes a false report of the expenditure after the election, he is subject not only to criminal penalties, but also to having his election voided. It may be contended that this would considerably inhibit the electoral campaign of political parties. But we do not think so. In the first place, a political party is free to incur any expenditure it likes on its general party propaganda though, of course, in this area also some limitative ceiling is eminently desirable coupled with filing of return of Bar & Bench (www.barandbench.com)

242 expenses and an independent machinery to investigate and take action. It is only where expenditure is incurred which can be identified with the election of a given candidate that it would be liable to be added to the expenditure of that candidate as being impliedly authorized by him (emphasis added).‖ Law Commission report on Electoral Reforms, Report 255 (12.03.2015): ―2.20.3 Thus, the Court believed that the object of imposing individual expenditure limits would be frustrated if parties or other supporters were free to spend without any limits. Nevertheless, the RPA was amended in 1974 to nullify the effect of the above judgment by inserting an explanation to Section 77(1) to the effect that any third party expenditure in connection with a candidate's election shall not be deemed to be expenditure incurred or authorized by a candidate.‖ Explanation 1, inserted vide the Representation of People (Amendment) Act, 1974 read as follows: ―Explanation 1. - Notwithstanding any judgment, order or decision of any court to the contrary, any expenditure incurred or authorized in connection with the election of a candidate by a political party or by any other association or body of persons or by any individual (other than the candidate or his election agent) shall not be deemed to be, and shall not ever be deemed to have been, expenditure in connection with the election incurred or authorized by the candidate or by his election agent for the purposes of this sub-section.‖ Law Commission report on Electoral Reforms, Report 255 (12.03.2015): ―2.20.4 The constitutionality of the 1974 amendment was challenged in P. NallaThampyTerah v Union of India, (1985) Supp. SCC 189 on the grounds that it sanctioned discrimination between candidates and parties based on money power, and hence contravened Article 14. Rejecting this contention, albeit reluctantly, the Supreme Court held that it was not for the court to lay down policies in matters pertaining to elections and that: ―Election laws are not designed to produce economic equality amongst citizens. They can, at best, provide an equal opportunity to all sections of society to project their respective points of view on the occasion of elections. The method, somewhat unfortunate, by which law has achieved that purpose, is by freeing all others except the candidate and his election agent from the restriction on spending, so long as the expenditure is incurred or authorized by those others.‖ 2.20.5 Subsequently, later benches criticized this decision and the position of law laid out in the 1974 amendment, noting that Section 123(6) of the RPA had become ―nugatory and redundant‖, and that the Bar & Bench (www.barandbench.com)

243 practice of parties in not maintaining accounts of donations and expenses incurred in regard a candidate's election made it too difficult to determine ―whose money was actually spent through the hands of the party‖. Eventually in the seminal case of Common Cause, a Registered Society v. Union of India, (1996) 2 SCC 752, the Supreme Court reversed the burden of proof on the candidate claiming the benefit of the exception created by Explanation to Section 77, holding that even when expenses are claimed by a party, the (rebuttable) presumption shall be that they have been incurred or authorized by the candidate. The Court noted: ―The expenditure (including that for which the candidate is seeking protection under Explanation I to Section 77 of R.P. Act) in connection with the election of a candidate - to the knowledge of the candidate or his election agent - shall be presumed to have been authorised by the candidate or his election agent. It shall, however, be open to the candidate to rebut the presumption in accordance with law…..‖ 2.20.6 Finally, owing to much criticism of the Explanation appended to Section 77(1) by the 1974 Amendment Act, the said Explanation was deleted by the Election and Other Related Laws (Amendment) Act 2003 and replaced with the current Explanation, referred to above. Outside spending by parties and independent supporters must now be reported by the candidate, and counted towards the expenditure ceiling. 2.20.7 Thus, the current position is that the expenditure incurred by (a) the leaders of political party on account of travel by air or by any other means of transport for propagating the party's programme and (b) the political parties or their supporters for generally propagating the party's programme shall not be deemed to be expenditure in connection with the election incurred or authorized by a candidate of that political party under Section 77, RPA.‖ Reason for proposed amendment: To ensure better accountability, laws relating to election expenditure need to be amended. Proposed amendment The expenditure incurred by a political party on advertisements, in connection with any election could be categorized into the following: i. Expenditure on general party propaganda seeking support for the party and its candidates in general, but, without any reference to any particular candidate or any particular class/group of candidates; ii. Expenditure incurred by party, in advertisements etc. directly seeking support and/or vote for any particular candidate or group of candidates; iii. Expenditure incurred by the party which can be related to the expenditure for promoting the prospects of any particular candidate or group of candidates. Bar & Bench (www.barandbench.com)

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Applying the ratio of the judgment in Kanwar Lal Gupta's case, it is clarified that in the case of any advertisement by political parties, whether in print or electronic or any other media, falling in category (i) above, which is not relatable to the election of any particular candidate or a given group of candidates, the expenditure may be treated as expenditure of the political party on general party propaganda. In the cases of expenditure falling in categories (ii) and (iii) above, i.e. cases where the expenditure is relatable to the election of a particular candidate or a group of candidates, the expenditure shall be treated as expenditure authorized by the candidates concerned and such expenditure shall be accounted for in the election expenses accounts of the candidates concerned. In those cases where the expenditure is incurred by the party for the benefit of a given group of candidates, the expenditure is to be apportioned equally among the candidates. Thus, maintenance of separate bank accounts by each contesting candidate for meeting poll expenses should be made mandatory and any transaction above Rs 20,000 not done through dedicated bank account should be treated as not shown in books of accounts. Hence, a suitable sub-section should be inserted under section 77 of The Representation of People Act 1951 and in Rule 86 of The Conduct of Elections Rules, 1961. 9. CAP ON EXPENDITURE BY POLITICAL PARTY ON A CANDIDATE FOR ELECTION CAMPAIGN Background The ECI issued transparency guidelines under Article 324 of the Constitution of India bearing No. 76/PPEMS/Transparency/2013 dated 29/08/2014 with effect from 01/10/2014 stating that although there is no cap on expenditure by political parties for propagating their program, parties are required to adhere to the cap prescribed in section 77(3) of The Representation of the People Act, 1951 and Rule 90 of the Election Rules while providing ―financial assistance‖ to candidates in their election campaigns. These amounts should be paid only by a crossed account payee cheque or draft or bank transfer, and not by cash. Reason for proposed amendment This amendment will ensure accountability and place a check on election expenditure by candidates. Proposed amendment A suitable sub-section should be inserted in section 77 of The Representation of People Act, 1951 stating that amount of financial assistance given to a candidate by a political party should not exceed the limit prescribed under section 77(3) of the 1951 Act.

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10. CEILING OF CAMPAIGN EXPENDITURE BY POLITICAL PARTIES Background There is no limit on the campaign expenditure by political parties. Law Commission of India report on Electoral Reforms, Report No. 255 (March 12, 2015) observed: "2.28.3 Furthermore, Section 77 of the RPA only regulates the election expenses of candidates. Political parties are free to spend any amount as long as it is for the general party propaganda, and not towards an independent candidate. Thus, there is no ceiling on party expenditure. It is recommended that the law on this point does not change, namely that there are no caps on party expenditure under the RPA given that it would be very difficult to x an actual, viable limit of such a cap and then implement such a cap. In any event, as the experience with section 77(1) discussed above reveals, in the 2009 Lok Sabha elections, on average candidates showed election expenditures of 59% of the total expenses limit. There is no reason why the same phenomenon of under-reporting will not transpire amongst parties. 2.28.4 Placing legislative ceilings on party expenditure or contributions will not automatically solve the problem, especially without putting in place a viable alternative of complete state funding of elections (which in itself is next to impossible right now). Our previous experience in prohibiting corporate donations in 1969 did not lead to a reduction in corporate donations. Instead, in the absence of any alternative model for raising funds, it greatly increased illegal, under the table and black money donations. 2.28.5 Although the problem of black money and under-reporting will remain under the existing regime of no caps on individual contribution and party expenses, it has to be tackled through a stricter implementation of the anti-corruption laws and RTI and improved disclosure norms. It might be desirable to regularly re-examine the 7.5% profit cap on company's contributions in light of the intended rationale, since the former can become a meaningless limit in the context of big companies." Reason for proposed amendment The limit on campaign expenditure will ensure level-playing field for all political parties and curb the menace of unaccounted money in elections. Further it will also control the money power used during election by political parties and their allies. Proposed amendment The ceiling on campaign expenditure made by political parties towards Parliamentary or Assembly elections should be provided. It should be Bar & Bench (www.barandbench.com)

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either 50% of or not more than the expenditure ceiling limit provided for the candidate multiplied by the number of candidates of the party contesting the election. Hence, The RPA and Rule 90 of The Conduct of Elections Rules, 1961 should be amended accordingly. 11. LIMIT THE NUMBER OF STAR CAMPAIGNERS Background As per section 77 of The Representation of the People Act, 1951, the expenditure incurred by the leaders of a political party on account of travel by air or by any other means shall not be deemed to be expenditure in connection with the election incurred or authorized by a candidate. Explanation (2) of the section defines political leaders to include 40 persons of a recognized political party and 20 persons of a party other than the recognized political party, i.e., registered unrecognized parties, whose names have been communicated to the Chief Electoral Officer and Election Commission of India within a period of 7 days from the date of notification. Such political leaders as communicated to the CEO and the Election Commission are known as Star Campaigners. There is no prescribed number of star campaigners for bye-elections. Reason for proposed amendment: The maximum number of star campaigners should be prescribed for bye-elections to ensure level playing field and for smoother election management. Proposed amendment The number of star campaigners for bye-election may be limited to two. 12. TIME PERIOD FOR MAINTAINING BOOKS OF ACCOUNT UNDER SECTION 77 OF REPRESENTATION OF PEOPLE ACT, 1951 Background Section 77 of The Representation of the People Act, 1951 provides that: ―77. Account of election expenses and maximum thereof- (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.‖ Reason for proposed amendment: Election expenses in true sense are incurred by candidates after date of notification of elections. Proposed amendment Section 77(1) of the Representation of the People Act, 1951 may be amended to provide that a candidate contesting at an election should be required to maintain the accounts from the date of notification of the election till the date of declaration of result of the election. Bar & Bench (www.barandbench.com)

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CHAPTER – VIII : ELECTION CAMPAIGN AND ADVERTISEMENT 1. BAN ON EXIT POLLS AND OPINION POLLS Background Opinion poll, sometimes simply referred to as a poll, is a kind of human research survey which is conducted to find out the public opinion before the elections. It is a way in which through a scientific survey the views of a particular group of people can be ascertained. Unlike Opinion Poll, Exit Poll is a post-election poll which is conducted just after a candidate walks out after casting his or her vote. These kinds of polls aim at predicting actual result on the basis of information collected from voters. The Representation of the People Act under section 126A bans conducting and disseminating results of exit polls during the period starting from commencement of polls till the completion of polls in all phases. According to the present scheme of The Representation of the People Act, 1951, section 126(1) (b) which prohibits the display of any election matter during the period of forty-eight hours before the hour fixed for conclusion of poll, is only limited to display by means of ―cinematograph, television or other similar apparatus‖; and does not deal with the independence and robustness of the opinion polls themselves. However, there exists a lacuna as a ban on publishing such election matters in electronic media does not extend itself to print media. New sections 126A and 126B for the restriction on publication and dissemination of result of exit polls. However, in the present framework there is no restriction on conducting opinion polls or disseminating results of opinion polls even in phased elections. The ECI has been of the view that there should be some restriction or regulation on the publishing / dissemination of the results of opinion polls also. The Commission had issued certain guidelines in this regard in 1998 which were subsequently challenged before the Courts. Later, on the observation of the Hon'ble Supreme Court that the EC did not have the power to enforce these guidelines, the same were withdrawn. Proposed amendment The Commission recommends that there should be a restriction on publishing the results of such poll surveys before the elections and reiterates its view that like the Exit Polls, there should also be some restriction on conducting and disseminating the results of Opinion Polls right from the day of the first notification of an election till the completion of the poll in all the phases where a general election is held at different phases.

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Law Commission's Recommendation The Law Commission in its Report in the year 2015 endorsed the view of the Commission and has called for the regulation of opinion polls so as to ensure that first, the credentials of the organizations conducting the poll is made known to the public; second, the public has a chance to assess the validity of the methods used in conducting the opinion polls; and third, the public is made adequately aware that opinion polls are in the nature of forecasts or predictions, and as such are liable to error. Consequently, new sections 126C and 126D should be inserted in The Representation of the People Act, 1951. 126C. Disclosures relating to opinion polls. – (1) No person shall publish or broadcast the results of an opinion poll without providing the following together with the results: (a) the name of the sponsor of the survey; (b) the name of the person or organization that conducted the survey; (c) the date on which or the period during which the survey was conducted; (d) the population from which the sample of respondents was drawn; (e) the number of people who were contacted to participate in survey; and (f) if applicable, the margin of error in respect of the data obtained. (g) A declaration that the results are in the nature of predictions, to be displayed prominently, in the manner prescribed by the ECI (h) Any other information as may be notified by the Election Commission (2) In addition to the information under sub-section (1), the publisher or broadcaster of an opinion poll shall, within a period of twenty-four hours after the publication or broadcast of the opinion poll, publish on its website a copy of a written report on the results of the survey referred to in subsection (1). (3) The report referred to in sub-section (2) shall include the following, as applicable: (a) the name and address of the sponsor of the survey; (b) the name and address of the person or organization that conducted the survey; (c) date on which or the period during which the survey was conducted; (d) information about the method used to collect the data from which the survey results are derived, including (i) the sampling method, (ii) the population from which the sample was drawn, (iii) the size of the initial sample, (iv) the number of individuals who were asked to participate in the survey and the numbers and respective percentages of them who participated in Bar & Bench (www.barandbench.com)

249 the survey, refused to participate in the survey, and were ineligible to participate in the survey, (v) the dates and time of day of the interviews, (vi) the method used to recalculate data to take into account in the survey the results of participants who expressed no opinion, were undecided or failed to respond to any or all of the survey questions, and (vii) any weighting factors or normalization procedures used in deriving the results of the survey; and (e) the wording of the survey questions and, if applicable, the margins of error in respect of the data obtained. (f) a copy of the poll as published along with the copy of the disclosure under sub-section (1). (4) The ECI may issue further notifications regarding the manner in which the disclosures under sub-sections (1) and (2) are to be made. (5) Any person who contravenes the provisions of this section shall be punished, on first conviction, with ne which may extend to five lakh rupees, and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to two years, and shall also be liable to ne. (6) No court shall take cognizance of any offence punishable under this section unless there is a complaint made by order of, or under authority from, the Election Commission or the Chief Electoral Officer of the State concerned. Explanation.—For the purposes of this section, ―opinion poll‖ means a survey of how electors will vote at an election or of the preferences of electors respecting any candidate, group of candidates, or political party. 126D. Offences by companies.— (1) Where an offence under subsection (1) of Section 126C has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, Bar & Bench (www.barandbench.com)

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secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.—For the purpose of this section,— (a) ―company‖ means anybody corporate & includes a firm or other association of individuals; and (b) ―director‖, in relation to a firm, means a partner in the firm 2. BAN ON GOVERNMENT SPONSORED ADVERTISEMENT BEFORE ELECTIONS Background In politics, there exists use of advertising campaigns to influence political debate, and ultimately the voters. Presently, there is a trend wherein the Central and various State Governments embark upon 'election advertising' in the guise of providing information to the public. Such kind of an advertising released with an eye on the election contain material intended or likely to affect voting in an upcoming election. Reasons for proposed amendment The advertisements highlighting the achievements made by the government are understandably incurred from the public exchequer and are given or created with a view to influence the electorate in favour of the ruling party. The Item VII clause (iv) of the Model Code of Conduct for the Guidance of Political Parties and Candidates, prohibits the issue of advertisement at the cost of public exchequer in the newspapers and other media. The misuse of official mass media during the election period for partisan coverage of political news and publicity regarding achievements with a view to furthering the prospects of the party in power is also prohibited under the said Item VII. However, the problem arises as the Model Code of Conduct comes into operation only from the date on which the Commission announces an election and the advertisements released prior to the announcement of elections are not prohibited under the Model Code of Conduct. Proposed amendment The Commission proposes that whenever any general election is due on the expiration of the term of the House, advertisements of achievements of the governments, either Central or State, in any manner, should be prohibited for a period of six months prior to the date of expiry of the term of the House and in case of premature dissolution, the date of dissolution of the House. Nevertheless, in cases of advertisements for educating the general public on matters of public health etc. which are unavoidable, provision/ exception could be made for the same, but in any case there should not be a display of political personalities in the said advertisements. The practice of putting up banners and hoardings in public places, depicting achievements of governments should be Bar & Bench (www.barandbench.com)

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banned, if possible. Otherwise, there should be specific provisions that a name or symbol of any political party or photograph of any of the leaders of the party should not appear on such hoardings/banners. Such steps would help in ensuring that the ruling party or candidate does not get an undue advantage over another in the spirit of free and fair elections. LAW COMMISSION'S RECOMMENDATION The Law Commission of India in its Report no. 255 on Electoral Reforms submitted to the Ministry of Law & Justice on March 12, 2015 also made certain recommendations similar to that of the Election Commission of India in respect to Government Sponsored Advertisements. The Law Commission has recommended the regulation and restriction on government sponsored advertisements six months prior to the date of expiry of the House/Assembly. These recommendations were made so that the purity of elections is maintained and the public money is not used for partisan interests inter alia, highlighting the government's achievements. According to the Law Commission this can be achieved by inserting a new Chapter VIIB in Part V of The Representation of the People Act, 1951 prohibiting State/Central government sponsored advertisements in the print or electronic media or by way of banners and hoarders, six months prior to date of expiry of the term of the Lok Sabha/ Vidhan Sabha. However, an exception has been carved out for advertisements highlighting the government's poverty alleviation programmes or any health related schemes. 3. SECTION 126 OF THE REPRESENTATION OF PEOPLE ACT, 1951 Background The section 126 of The Representation of People Act, 1951 prohibits electioneering activities by way of public meetings, public performance, processions, advertisements through cinematograph, television or similar apparatus during the period of 48 hours, the time fixed for conclusion of poll. The advertisements in TV and Radio are also prohibited during these 48 hours under the above mentioned provision. However, due to the existing gap in the Act, the political parties and candidates issue advertisements in the newspapers during this period including on the day of polling and also indulge in house to house visits. A distorted advertisement in print media on the poll day leaves the other candidates with no remedy to undo the damage. Proposed amendment The Commission is of the view that such activities need to be prohibited and therefore, proposes that section. 126 must be amended in the interest of fair and free elections to prohibit publication of advertisements by political parties in print media also (as in electronic Bar & Bench (www.barandbench.com)

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media) during the period of 48 hours before the close of poll to allow the voters to arrive at an unprejudiced opinion Law Commission's Recommendation The Law Commission of India in its Report no. 255 on Electoral Reforms submitted to the Ministry of Law & Justice on 12.03.2015 also had a similar view to that of the Election Commission and recommended to expand the scope of section 126 of The Representation of the People Act, 1951. According to the Report, in the present age of technology where digital and print media are closely interconnected such an anomaly in the applicability in the law needs to be rectified. The Law Commission also recommended that section 126(1) (b) be amended as follows: 126. (1) No person shall… (a) … (b) Publish, publicise or disseminate any election matter by means of print or electronic media; or , (c)… (2)… (2A) No court shall take cognizance of any offence punishable under sub- section (1) unless there is a complaint made by order of, or under authority from, the Election Commission or the Chief Electoral Officer of the State concerned. Explanation. — For the purposes of this section, — (a) ―election matter‖ means any matter intended or calculated to influence or affect the result of an election. (b) ―electronic media‖ includes internet, radio and television including Internet Protocol Television, satellite, terrestrial or cable channels, mobile and such other media either owned by the Government or private person or by both; (c) ―print media‖ includes any newspaper, magazine or periodical, poster, placard, handbill or any other document; (d) ―disseminate‖ includes publication in any ―print media‖ or broadcast or display on any electronic media. 4. PAID NEWS IN CONNECTION WITH ELECTIONS Background Free and fair elections is the foundation of any democracy and this can only be achieved when there is an absence of influence by money in corrupting the electoral process. According to a study conducted by ECI, during the assembly elections held in the period 2011-2013 there have been 1987 cases where a notice for paid news were issued to the candidates and 1727 cases where practice of paid news were confirmed by the District/State Level Committees appointed for the purpose. Bar & Bench (www.barandbench.com)

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The problem of 'paid news' especially during election campaign is a widespread phenomenon. This phenomenon of paid news and its equivalent, political advertising being presented as news, are issues that cannot be treated separately. The Press Council of India also, in its report regarding paid news cases had recommended that paid news may be made a corrupt practice. Reasons for proposed amendment The general public attaches great value in news report as distinguished from advertisements by political parties and candidates. This makes the news items a very important source of information concerning the political parties or candidates. On the contrary, paid news is masquerading as news and publishes advertisements in the garb of news items, totally misleading the electors. This raises potential concerns relating to the truth or falsity of claims and the possible defamatory effects of such news items and advertisements. The right to know i.e. right to have accurate information is a necessity to make an informed choice for the electors however, paid news have a tendency to influence this choice in a negative manner. To make the matter worse, the whole exercise of publishing paid news involves use of unaccounted money and under reporting of election expenses of the candidates indulging in the malpractice. The influence of money also has the potential in resulting in uneven elections between people with dissimilar financial statures. Thus, in order to have 'fair' election in a democracy, a level playing field is paramount. This can only be achieved by mitigating the influence of money in elections. Proposed amendment The Commission is of the view that 'paid news' plays a vitiating role in the context of free and fair elections and proposes that an amendment should be made in The Representation of People Act, 1951, to provide therein publishing and abetting the publishing of 'paid news' for furthering the prospect of election of any candidate or for prejudicially affecting the prospects of election of any candidate as an electoral offence under Chapter III Part VII of The Representation of the People Act, 1951 with exemplary punishment of a minimum of two years imprisonment. Law Commission's Recommendation The Law Commission in its 255th Report (2014) relating to 'Electoral Disqualifications' recommends the following:  Introducing definitions of paid news and political advertising;  Laying down the consequences attached to those indulging in such practices by introducing a new Section 127B for a 'person' and Section 126-D if the offence is committed by a 'company'. Not only the Bar & Bench (www.barandbench.com)

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paying for news would be an offence but the person doing this offence would also be disqualified pursuant to Section 8(3) of the RPA. Section 127B should be in the following words:- ―127B. Paying for, and receiving payment for news (1) Any person who is found paying for news, or receiving payment for news shall be punished with imprisonment for a term which may extend to three years, and with ne, which may extend to twenty five lakh rupees. (2) Nothing contained in subsection (1) shall apply to payments made by registered political parties for the management of official publications (print, radio, television and all other electronic) owned or controlled by them. (3) To avail of the exemption under sub-section (2) all registered political parties must disclose their interests in any publication in the form and manner notified by the ECI in this regard. (4) An attempt to commit an act punishable under sub-section (1) shall be punished with imprisonment for a term, which may extend to two years, or with ne, which may extend to ten lakh rupees, or with both. (5) No court shall take cognizance of any offence punishable under this section unless there is a complaint made by order of, or under authority from, the ECI or the Chief Electoral Officer of the State concerned.‖  It is also essential that an election be liable to be declared void by the High Court if it is found that paid news has vitiated it. For this purpose, in accordance with section 100 of The Representation of the People Act, it is necessary to make paying for news a 'corrupt practice' under section 123 of the 1951 Act. 5. SECTION 125A OF THE REPRESENTATION OF PEOPLE ACT, 1951 Background Section 125A of The Representation of the People Act, 1951 have been inserted in the statute book in the year 2002 after the 170th Report of the Law Commission of 1999 in order to deter the candidates from filing false affidavits before the Returning Officer. The above mentioned section provides with punishment with imprisonment for a term which may extend to six months, or with ne, or with both. Reasons for proposed amendment Despite the introduction of section 125A to the 1951 Act, there are several complaints about false affidavits led by candidates. The wilful concealment of information and furnishing of false information needs to be curbed in the interest of free and fair elections. Thus, for effectively dealing with this issue and to tackle the menace of willful concealment of information or furnishing of false information and to protect right to information of electors, the Commission recommended that the punishment under section 125A must be made more stringent. Bar & Bench (www.barandbench.com)

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Proposed amendment The Commission is of the view that in the interest of free and fair elections the punishment under section 125A should be made more severe by providing for imprisonment of a minimum term of two years and doing away with the alternative clause for fine. Law Commission's Recommendation One of the changes suggested in the Representation of the People Act, 1951 by the Law Commission in its 244th Report (2014) relating to 'Electoral Disqualifications' was the introduction of enhanced sentence of minimum two years under section 125A on filing false affidavits. The LCI recommended that Section 126(1) (b) be amended as follows: 125A. Penalty for filing false affidavit, etc.—A candidate who himself or through his proposer, with intent to be elected in an election,— (i) fails to furnish information relating to sub-section (1) of sect 33A; or (ii) give false information which he knows or has reason to believe to be false; or (iii) conceals any information, in his nomination paper delivered under sub-section (1) of section 33 or in his affidavit which is required to be delivered under sub-section (2) of section 33A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which shall not be less than two years, and shall also be liable to fine CHAPTER – IX : ELECTION EXPENSES AND ELECTION PETITIONS 1. SECTION 78, 81 & 84 OF THE RPA, 1951 Background Section 78 of the Representation of the People Act, 1951: ―Lodging of account with the district election officer: (1) Every contesting candidate at an election shall, within thirty days from the date of election of the returned candidate or, if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates, lodge with the district election officer an account of his election expenses which shall be a true copy of the account kept by him or by his election agent under section 77.‖ Section 123(6) of The Representation of the People Act, 1951 provides that incurring or authorizing of expenditure in contravention of section 77 is a corrupt practice. As per section 80 read with section 81 of the 1951 Act, no election can be called into question except by way of election petition led before the High Court within 45 days from the date of election of the returned candidate.

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Reason for proposed amendment The period of filing election petition is 45 days and the time period of filing accounts is 30 days. This leaves only a small period for a person to analyze expenditure statement of candidates and decide whether an election petition needs to be led. Hence, the time period for filing of accounts needs to be reduced. So that more time is available to analyze the accounts. Further, there is no provision for filing an election petition against a candidate who has lost the election but is guilty of corrupt practice under section 123 of the 1951 Act. Proposed amendment Section 78 of the 1951 Act should be amended such that the time period for filing of accounts is 20 days, instead of 30 days, from the date of election of the returned candidate or, if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. Section 81 of the 1951 Act should be amended to add after ―An election petition calling in question any election‖, the words ―or seeking a declaration that any candidate is guilty of corrupt practice under section 123 of the Act.‖ Section 84 of the 1951 Act may be amended to include a sub- section stating that ―a petitioner may seek a declaration that a candidate, even if he is not the returned candidate, has indulged in corrupt practice as defined under section 123 of the Act.‖ 2. CEILING ON ELECTION EXPENDITURE TO LEGISLATURE FROM LOCAL AUTHORITIES' GRADUATES & TEACHERS' CONSTITUENCIES Background Section 77 of The Representation of the People Act, 1951 along with Rule 90 of The Conduct of Elections Rules, 1961 prescribe the limit for expenditure in connection with an election incurred or authorised by a candidate. However, this limit is restricted to the elections from the Parliamentary and Assembly constituencies. Reason for proposed amendment: There is a lacunae in the law as there is no limit prescribed on expenditure during an election from local authorities', graduates' and teachers' constituencies. Proposed amendment Rule 90 of the Conduct of Elections Rules, 1961 should be amended to place a ceiling on election expenditure by a candidate when contesting from local authorities', graduates' and teachers' constituencies. The expenditure limit for these elections could be half of the limit for the Assembly election in the state concerned. Bar & Bench (www.barandbench.com)

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3. ELECTION EXPENDITURE IN CASE OF ADJOURNMENT OF POLL UNDER SECTION 52 OF THE RPA, 1951 Background Section 52 of the RPA, 1951 provides for adjournment of poll in case of death of a candidate of a recognized political party. Reason for proposed amendment Subsequent to the death of a candidate of a recognized party, the ECI calls upon the recognized political party, whose candidate has died, to nominate another candidate for the said poll within seven days of issue of such notice to such recognized political party. In order to ensure parity between the new candidate and the other contesting candidates, latter should be permitted to further incur election expenditure. Proposed amendment In case of adjournment of poll under section 52 of the Representation of the People Act, 1951 the contesting candidates should be allowed to spend additionally the full amount as prescribed under Rule 90 of The Conduct of the Election Rules, 1961, from the date of adjournment of poll if the adjournment takes place within rst week from the date of scrutiny of nominations. In cases of adjournment after one week of scrutiny, such candidates may be permitted to incur additional expense amounting to 60% of the ceiling from the date of adjournment. 4. APPOINTMENT OF ADDITIONAL JUDGES IN THE HIGH COURTS Background Article 224 of the Constitution of India provides: "(1) If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify." The judges to people ratio is low in India and there is a need to appoint additional judges to clear the backlog of cases. Proposal: The Commission has proposed that appointment of additional Judges in High Courts for trying election petitions to ensure their speedy disposal should be considered. CHAPTER- X : OTHER ISSUES 1. FORM26 UNDER RULE 4A OF CONDUCT OF ELECTIONS RULES1961 Background Presently, existing Form 26 (format in which the candidates are required to submit affidavit) does not contain any clause requiring information with respect to the sources of income of the candidate, his/ her. Bar & Bench (www.barandbench.com)

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Reason for proposed amendment Declaring the source of income of the candidate and spouse would serve the interests of transparency and the right of electors to obtain information about their candidates for them to make an informed choice of their representative. Proposed Amendment The ECI has proposed that Form 26 be amended by adding a new column for declaring the source of income of the candidate and spouse. 2. RULE MAKING AUTHORITY TO BE VESTED IN ELECTION COMMISSION Background The present framework of The Representation of the People Act 1950 and 1951 under Section 28 and 169 respectively empowers the Central Government to make rules after consultation of the Election Commission. However, the Central Government is not bound to accept such views or recommendations of the Commission. Reasons for proposed amendment Since the Central Government is not bound to accept the views and recommendations of the Commission there are instances when rules opposed to the specific recommendations of the Commission have been framed. On several other occasions, rules framed or amended have not been in line with the recommendations of the Election Commission. Proposed amendment The Commission recommends that the rule making authority under the above-referred sections must be conferred on the Election Commission instead of the Central Government and the new framework must empower the Election Commission to make rules after consultation with the Central Government.

Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi-110001 Phone: 011-23717391-98, Fax: 011-23713421, www.eci.nic.in

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