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1.3.1. It appears that in 1995, the Government of India in the Ministry of Law, Justice and Company Affairs had addressed a letter dated 2.11.1995 requesting the then Law commission to undertake a comprehensive study of the measures required to expedite the hearing of the election petitions. The present Law Commission (15th Law Commission) which was constituted towards the end of November 1997 came to know of the said letter much later i.e. on receipt of a letter from the Minister for Law, Justice and Company Affairs dated 3rd August 1998 asking for a report on the above subject at an early date. As a matter of fact, some time before the receipt of the said letter, the present Law Commission had, suo motu, embarked upon a thorough review of the Representation of the People Act, 1951 including provisions relating to hearing of election petitions. The study was undertaken with a view to making the electoral process more fair, transparent and equitable. The effort was also to reduce, if not curtail, the several distortions and evils that had crept into the India electoral system, to identify the areas where the
legal provisions required strengthening and improvement and to suggest the requisite measures in that behalf. Accordingly, the Law Commission prepared a working paper (Annexure-B) to which were enclosed three draft Bills, one for amending the Constitution of India, the other for amending the Representation of People Act, 1951 and the third to amend the Indian Penal Code. While preparing the
working paper and the accompanying Bills, the Law
Commission took into consideration the Bill which was
prepared in 1990 by the late Shri Dinesh Goswami, the then
Minister for Law, Justice and Company Affairs, based on a
consensus arrived at between all the political parties. Indeed, we took the said Bill as the starting point and
suggested various other measures which in our opinion were
called for to achieve the aforementioned objectives. We also took into account a brochure published by the Election
Commission of India containing various suggestions for
amending the Representation of the People Act, 1951 Notice
was also taken of several decisions of the Supreme Court on
various provisions of the Representation of the People Act,
1951 hereinafter referred to as the R.P.Act. The salient
features of the working paper were the following:
1.3.2. Introduction of the List System. The Law
Commission took note of the fact that the
`first-past-the-post' system prevailing in our country had
given rise to several inequities and distortions in our
electoral process particularly on account of the
multiplicity of the political parties. There are certain
States in India where there are three or four recognised
political parties, more or less evenly balanced. In such a
situation what is happening is that the winning candidate
is receiving, in many cases, 30% or less of the valid votes
cast. The remaining 70% or more votes polled (cast in
favour of the defeated candidates including independents)
are practically going waste, without representation, and
without a voice in the representative bodies, namely,
Parliament and the State Legislatures. It was thought
advisable to provide a voice and a representation to the
wasted votes which indeed very often constituted a majority
of the total votes cast.
1.3.2.1. Another consideration in this behalf was that the
first-past-the-post (FPP) system now in vogue is not
yielding a correct picture of the voter preferences. In
other words, there is no commensurality between the total
votes cast in a State or in the country, as the case may
be, and the seats obtained by the parties. To be more
precise, what is happening is that a political party which
has received, say, 32% of the total votes case in the
country is obtaining 70% of the seats in Parliament,
whereas another political party which has polled, say, 29%
of the votes, is getting 25% of the seats in Parliament. A
`swing' of 2 to 3 per cent votes is resulting in a huge
difference in the number of seats won.
1.3.3.2. There was yet another situation where a political
party is polling a substantial chunk of votes cast in a
given State in parliamentary elections but is not able to
get a single seat in the Parliament from that State.
1.3.2.3. With a view to rectifying and redressing the
aforementioned distortions and inequities, the Law
Commission was of the provisional opinion that introducing
a List System may serve to redress the aforementioned
distortions, at least to a partial extent. For this
purpose, we looked to the electoral system obtaining in
certain other countries including Germany where a mixed
system (FPP and list system) is in force. In Germany, part
of the seats are filled on the basis of FPP system
whereunder the members are elected from territorial
constituencies and the remaining members are chosen from
the lists put forward by the political parties. We did not
however think it advisable to import the German system
whole-hog for it was found to be extremely complicated and
difficult of operation in a country like ours where a
sizeable chunk of population is illiterate and is not able
to operate such a complicated electoral system.
1.3.2.4. We thought of finding a system more suited to our
genius and to the conditions prevailing in our country.
Though it would have been advisable to suggest that 50% of
the number of members in Lok Sabha or Legislative
Assemblies of the States should be filled on the basis of
list system, we pegged it at 25%, not only as a starting
point, but also with a view not to give room for growth of,
or encouragement to, caste-based political parties. We did
not wish to encourage in any manner the caste-based
political parties or the voting patterns based on caste
considerations.
1.3.2.5. Accordingly, it was suggested that in the Lok
Sabha as well as in the State Legislative Assemblies, the
present strength should be increased by 25% of the existing
strength which increased strength should be filled on the
basis of list system. The list system was to be confined
only to recognised political parties (RPP). There would be
no separate vote nor a separate election for the members to
be chosen under the list system.
1.3.2.6. It was suggested that each recognised political
party should put forward its list of candidates, which will
be received, scrutinised and valid list published along
with the nominations for elections from the territorial
constituencies. It was suggested that for this purpose,
`territorial units' be designated; so far as the bigger
States are concerned, each State shall be a territorial
unit but in the case of small States, they should either be
clubbed with an adjacent bigger State or be clubbed
together to form a territorial unit. (This idea of
territorial units was suggested to be adopted only in the
case of parliamentary general elections and not in the case
of elections to the State Legislatures.) At the end of
polling and counting of votes for the territorial
constituencies, the Election Commission, it was suggested,
should tabulate votes polled by each RPP in a given
State/territorial unit and the seats meant to be filled up
under the list system be distributed among the RPPs in
proportion to the votes polled by them. For achieving the
said purpose, it was found necessary to amend not only the
Representation of the People Act, 1951 but the Constitution
of India itself in the first instance. Accordingly, the
suggested amendments both to the Constitution of India and
the Representation of People Act, 1951 were shown in the
Bills accompanying the working paper.
1.3.2.7. Another connected suggestion was to delete article
331 of the Constitution which empowers the President to
nominate two members of Anglo-Indian community to the Lok
Sabha. It was explained that this provision which may have
been good when the Constitution was enacted, has become
irrelevant with the substantial fall in the number of
Anglo-Indians over the years and in the light of the
miniscule number of this community obtaining today.
1.3.3. Amendment to the Tenth Schedule to the
Constitution. The Tenth Schedule to the Constitution was
inserted by the Constitution (Fifty-second Amendment) Act,
1985. The Schedule provides for disqualification of a
member of Parliament of a State Legislature in two
situations, namely (a) if he voluntarily gives up his
membership of political party on whose ticket he was
elected and (b) if he votes or abstains from voting,
without prior permission of the party, in such House
contrary to any direction issued by the political party on
whose ticket he has been elected and such voting or
abstention has not been condoned by such political party
within 15 days from the date of voting of abstention. The
Schedule however introduced in paragraph 3 thereof the
concept of `split'. In short, the paragraph provided that
if not less than 1/3rd members of the legislature party
defect, the disqualification provided in paragraph 2 shall
not operate. Paragraph 4 provided that the rule of
disqualification in paragraph 2 shall not apply where two
or more political parties merge. Paragraph 5 provided an
exemption in favour of Speaker/Deputy Speaker of
Chairman/Deputy Chairman, as the case may be, from the
operation of paragraph 2. Paragraph 6 provided that in
case of dispute on the question of disqualification on the
ground of defection, the same shall be decided by the
Speaker or the Chairman of the House concerned. Paragraph
7 barred the jurisdiction of the courts in respect of
matters connected with the disqualification of a member of
a House under the said Schedule. (This paragraph has,
however, been declared unconstitutional by the Supreme Court in Kihota v. Zachilhu (AIR 1993 SC 412). Paragraph
6 provided for rules to be made to carry out the objects of
the Schedule.
1.3.3.1. The experience of this country with the Tenth
Schedule since its introduction has not been happy. It has
led to innumerable abuses and undesirable practices. While
the idea of disqualification on the basis of defection was
a right one, the provision relating to `split' has been
abused beyond recall. It was accordingly suggested by us
that paragraphs 3 and 4 should go altogether with the
result that paragraph 2 alone remains (along with the
exemptions in paragraph 5). The underlying idea was that a
person elected on the ticket of a political party should
remain with it during the life of the House or leave the
House. It was also suggested by the Law Commission that
the decision on the question of disqualification under the
said Schedule should be entrusted to the President (in the
case of Parliament) and to the Governor (in the case of
State Legislature) who shall render their decision in
accordance with the opinion of the Election Commission
which shall be consulted in that behalf.
1.3.3.2. For achieving the said objective, necessary
amendments to the Tenth Schedule to the Constitution were
appended to the working paper. We are also proposing
herein amendments to articles 102(1) and 191(1) of the
Constitution which are necessary to give effect to our
recommendations. The amendments in articles 102(1) and
191(1) are to the following effect:-
(1) In clause (1) of article 102, after sub-clause (e),
the following sub-clause (f), shall be inserted before the
Explanation -
"(f) if he is disqualified for being a member of
either House of Parliament under the Tenth
Schedule."
(2) Clause (2) to article 102 shall be deleted.
Similarly, in article 191(1), sub-clause (f) as
follows shall be added after sub-clause (e) but before the
Explanation:-
"if he is disqualified for being a member of
Legislative Assembly or Legislative Council of a
State under the Tenth Schedule"
(2) Clause (2) to article 102 shall be deleted.
1.3.4. Curtailing the expenditure on elections. The next
major proposal put forward by the Law Commission pertained
to reducing the expenditure on elections and also to
regulate the receipts and expenditure by the political
parties. The issue of State funding was also considered in
this context. The first proposal in this behalf was to
delete Explanation 1 to section 77 of the Representation of
the People Act, 1951. Besides the abuse inherent in the
said Explanation, it was pointed out that the necessity of
deleting the Explanation had been pointed out by the
Supreme Court in several decisions including C.Narayan
Swami v. C.K.Jaffar Sheriff [1994 Supp. (3) SCC 170] and
Gadakh Yashwantrao Kanakarrao v. Balasaheb Vikhe Patil
[1994 (1) SCC 682]. It was pointed out in these decisions
that the corrupt practice of incurring or authorising of
expenditure in contravention of sub-section (6) of section
123 has lost its significance and utility with the
introduction of Explanation 1 to section 77. It was
further pointed out by the court that the Explanation
violates the spirit of the Act and a hope was expressed
that the Parliament would delete the said Explanation as
early as possible to remove the impression that the
enactment and retention of the same was deliberate and was
inspired by motives which could not be said to be genuine,
democratic or sufficiently justifiable. The Law Commission
had also referred in extenso in its working paper to the
decision of Supreme Court in Kanwarlal Gupta v. Amarnath
Chawla (1975 (3) SCC 646), to get over which decision
indeed, Explanation 1 was enacted. The suggestion of the
Law Commission was that deletion of Explanation 1 would
bring the legal position in conformity with the ruling in
Kanwarlal Gupta's case.
1.3.4.1.The second suggestion in this behalf was to
introduce provisions making it obligatory upon the
political parties to maintain regular accounts clearly and
fully recording therein all amounts received by them and
all expenditure incurred, as is the legal requirement in
Germany. It was further suggested that the said accounts
should be duly got audited at the end of each year and the
audited accounts submitted to the Election Commission
before the prescribed date every year. Election Commission
was required to publish the said accounts for public
information. This proposal was made to introduce an
element of transparency and openness in the financial
matters of the political parties and is backed by the
judgment of the Supreme Court in Gajanan Bapat v. Dattaji
Meghe (1995 SCC 347). The said decision emphasised the
desirability and necessity of the political parties
maintaining true and correct account of their receipts and
expenditure including the disclosure of the sources of
receipt. It was pointed out in the decision that this was
essential to ensure the purity of elections and to prevent
money from influencing the outcome of elections. It was
pointed out by the Law Commission in its working paper that
the aforesaid provisions in conjunction with the provisions
contained in section 29A, would advance the objective of
ensuring purity of elections by preventing the money-power,
in particular black money-power and money collected from
suspect sources from influencing the elections.
1.3.4.2. The third proposal in this behalf pertained to
State funding. On this aspect, we merely reproduced the
provisions contained in the Bill prepared by the then Law
Minister, late Shri Dinesh Goswami in 1990 since they were
based upon a consensus among the political parties,
inviting at the same time the response of all concerned and
informed citizenry to the said proposal.
1.3.5. Amendment of section 8 and enhancement of
punishment for electoral offences. The next major proposal
put forward in the working paper prepared and circulated by
the Law Commission pertained to amendment of section 8 and
of sections 127(1), 134B(2), 135(1), 136(2) and insertion
of a new section 126A in the Act. It was also suggested
that punishments prescribed by several sections in chapter
IXA of the Indian Penal Code 1860 should be enhanced. All
the above sections in the Act as well as the Indian Penal
Code are election offences and quite serious too. The main
purpose behind the suggested amendments was to provide (a)
that framing of charges by the court should by itself be a
ground for disqualifying a person from being a candidate
for election and (b) to enhance the punishments provided
for election offences contained in the Representation of
People Act, 1951 and chapter IXA of the Indian Penal Code
so as to attract the procedure prescribed in the Criminal
Procedure Code for trial of warrant cases. It may be
remembered that framing of charges is obligatory in the
warrant cases but not in summons cases. (In the case of
offences triable according to the procedure prescribed for
trial of summons cases, framing of charges lies within the
discretion of the court and is not obligatory.) The above
proposal was put forward for the reason that persons
indulging in election offences are usually persons powerful
in political field and who command money and muscle-power
with the result that no witness comes forward to depose
against them. Since no independent witness comes forward
to depose against such persons, the prosecution launched
against them inevitably ends in discharge or acquittal, as
the case may be. Indeed, a similar proposal was also put
forward sometime ago by the Election Commission too. It
may be clarified that the aforesaid amendment was proposed
only in sub-section (1) of section 8 and not in other
sub-sections of section 8.
1.3.6. Other proposals. The other proposals contained in
the working paper pertained to (a) enhancing the deposit in
the case of independent candidates and candidates of
unrecognised political parties. This substantial increase
was suggested with a view to discourage independents and
non-serious candidates from contesting elections thereby
making the elections cumbersome, expensive and unmanageable
- indeed, farcical in some cases; (b) steps designed to
ensure expeditious disposal of election petitions by the
High Court. The Law Commission did not agree with the
suggestion of the Law Ministry to entrust the trial of
election petitions to special tribunals instead of the High
Courts. It was pointed out in the working paper that such
an experiment was undertaken earlier and was given up as a
failure and that only thereafter was the trial of election
petitions entrusted to High Courts; (c) amendment of
section 97(1) of the Act in the light of the decision of
the Supreme Court in Bhagmal v. Prabhu Ram (AIR 1985 SCC
150) and (d) certain other amendments set out in the
working paper.
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