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Report No. 244

II. Responses Received to the Consultation Paper

The Consultation Paper prepared by the Law Commission was disseminated to all registered political parties, both at the national and state level, the Houses of Parliament, the State Legislatures, to the High Courts, Bar Associations, Election Commission, Heads of important National Commissions and institutions, National Law Universities, prominent media personalities, associations and civil society organisations as well as many other public spirited persons.

The Consultation Paper was also uploaded on the website of the Law Commission. Out of over 157 responses received till August, 2013, largest number of responses have been received from individuals followed by various civil society organizations and associations. Amongst various Commissions, only the Election Commission of India responded.

The response to the Consultation Paper from the political parties and Members of the Parliament has been tepidwith only one national political party viz. the Indian National Congress and a registered political party being the Welfare Party of India having sent their views on the issues raised in the Consultation Paper. Only eight sitting Members of Parliament have responded to the Consultation Paper, four each from Lok Sabha and the Rajya Sabha.

The civil society group, Public Interest Foundation, suggested that the existing provisions relating to disqualification to contest elections need to be amended to ensure that disqualification is triggered upon framing of charges by the court on serious and heinous offences amounting to imprisonment for a term of minimum five years or more, which should include the expanded list largely drawn from Justice JS Verma Committee (JVC) Report but restricted only to serious and heinous offences attracting an imprisonment of five or more years in the proposed Section 8(1)(a) of The Representation of the People Act, 1951 (hereinafter "RPA").

In this scenario, only cases filed in the court and charges framed by the court six months prior to an election would lead to disqualification of a candidate. This proposed recommendation is to co-exist with the present provision for disqualification as stated under Section 8(3) of the RPA debarring candidates from contesting elections on being convicted of any offence and sentenced to an imprisonment of two or more years.

The Public Interest Group further suggested that, with respect to elected representatives to the House of Parliament and the Legislature of State facing criminal charges, a new sub-section (5) be inserted to Section 8 of the RPA for establishing special fast-track courts for time bound disposal of the cases. This sub-section could act as a deterrent to those with cases of criminal offence, pending against them in the court from contesting elections in order to avoid a speedy and time bound adjudication of the case by a special fast-track court resulting in their possible conviction and imprisonment.

The case with respect to charges pending against an elected representative and also, where charge has been framed after the declaration of election results should automatically be placed under the consideration of the special fast-track court of competent jurisdiction immediately after the candidate is declared elected.

These fast-track courts should be required to dispose of the cases within six months from the date the court has taken cognizance of the offence committed by the elected representative. The appellate courts in such instances shall dispose the cases finally within six months of the date of the order of the original court.

An alternative proposal has also been suggested where, a person charge-sheeted for serious and heinous offences amounting to imprisonment for a term of minimum five years should be allowed to contest elections. In case a candidate facing charges is elected to be a Member of Parliament (MP)/Member of Legislative Assembly of States (MLA), then the case against the concerned individual will automatically be placed under the special fast-track court in the proposed sub-section of 8(5) to the RPA for time bound disposal of the matter.

This would apply to an elected representative who has been charge sheeted by a court after elections. The elected representative should be allowed to discharge his/her duties in full potential until he is convicted, or convicted and sentenced by the fast-track court.

Once the conviction of the elected representative has attained finality, the representative should automatically be disqualified by the Speaker or Presiding Officer of the House. It is clarified that the disqualification would also apply in cases where an elected representative has not filed any revision/appeal on conviction.

The Association for Democratic Reforms (ADR) has recommended that any person against whom a charge has been framed by a court of law, in a criminal case for which the punishment is imprisonment of two years or more should not be allowed to contest elections. In particular, any candidate against whom charges have been framed for serious offences like murder, rape, kidnapping etc. should be banned from contesting elections.

On the issue of consequences on the candidature and membership of a person who furnishes false information in the affidavit filed alongwith the nomination paper, there is unanimity on the need for prescribing stringent consequences in law for filing false affidavits, in particular, making it a ground for disqualification.

The Election Commission has also suggested that Section 125A should be included in the list of offences provided under Section 8(1) which attract disqualification irrespective of the quantum of punishment. It has also been suggested by Mr. P.P. Rao, Senior Advocate that filing of false affidavits should be made a ground for setting aside election under Section 100.

The Commission has also conducted deliberations with Mr. T.S. Krishnamurthy (Former Chief Election Commissioner under whose aegis the 2004 Report on Electoral Reforms was prepared by the Election Commission), Dr. S.Y. Quraishi (Former Chief Election Commissioner), Mr. S.K. Mendiratta (Consultant-cum-Legal Advisor to the Election Commission of India), Mr. K.F. Wilfred (Principal Secretary, Election Commission of India) and Prof.Jagdeep S. Chhokar (Founder Member of Association for Democratic Reforms). All of their recommendations have greatly influenced the Commission and the recommendations in their report.

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