Report No. 244

Electoral Disqualifications

I. Initiation of the Process

The Ministry of Law and Justice, Government of India had addressed a letter dated 16th January, 2013 requesting the Twentieth Law Commission to consider the issue of 'Electoral Reforms' in its entirety and suggest comprehensive measures for changes in the law.

Accordingly, the Commission initiated work on the different facets of the subject by collecting, collating and analysing the literature on the subject including previous reports by several Committees and Commissions. Apart from the above, recognising the complexity of the subject and its integrated relationship with the status and health of democracy, the Commission considered it imperative to elicit views and opinions from different stakeholders.

This included political parties, jurists, academics, eminent persons in public life, civil society representatives and others, who were consulted on various debates, dialogues and issues on the legal, political, social and other facets of the subject, necessary for determining the Commission's approach to making recommendations.

After detailed deliberations, a Consultation Paper was prepared by the Commission under the guidance of the then Chairman, Mr Justice (Retd.) D. K. Jain, former Judge of the Supreme Court of India. The paper concentrated on several suggestive issues including, inter alia, de-criminalisation of politics and disqualification of candidates with criminal antecedents, and the need to strengthen provisions relating to the period of disqualification.

The Consultation Paper was widely circulated to obtain feedback from various stakeholders and members of the general public and a number of responses have been received. We shall advert to the responses received and the Commission's views thereon below.

While the Commission was working towards suggesting its recommendations to the Government on reforms in electoral laws, W.P. (Civil) No. 536 of 2011 titled Public Interest Foundation. v. Union of India, a public interest litigation (PIL)was filed in the Supreme Court in the year 2011 praying inter alia for guidelines or framework to be laid down by the Court to deal with the menace of criminalisation of politics and debar those charged with serious offences from contesting elections.

The Hon'ble Supreme Court in the above noted matter has, on 16th December, 2013, taken note of the Consultation Paper prepared and circulated by the Commission. Appreciating that the Commission may take some time for submitting a comprehensive report on all the aspects of electoral reforms, the Court in its order dated 16th December, 2013 in the aforementioned petition, has observed that "the issues with regard to de-criminalisation of politics and disqualification for filing false affidavits deserve priority and immediate consideration" and accordingly directed the Law Commission to "expedite consideration on the two issues, namely,

"1. Whether disqualification should be triggered upon conviction as it exists today or upon framing of charges by the court or upon the presentation of the report by the Investigating Officer under Section 173 of the Code of Criminal Procedure? [Issue No. 3.1(ii) of the Consultation Paper], and

2. Whether filing of false affidavits under Section 125A of the Representation of the People Act, 1951 should be a ground for disqualification? And if yes, what mode and mechanism needs to be provided for adjudication on the veracity of the affidavit? [Issue No. 3.5 of the Consultation Paper]."

The matter was accordingly adjourned for three months within which period the Law Commission was expected to submit its response on the aforesaid two issues to the Government of India to be forwarded to the Hon'ble Court.