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Report No. 244

III. National Consultation

In addition to the aforesaid Consultation Paper and responses received to it, a one-day National Consultation on Electoral Reforms was organized by the Commission on 1st February, 2014 in New Delhi. Considering the short span of time within which the Report on the two issues of disqualification of candidates with criminal background and consequences of filing false affidavits was to be submitted, the Consultation was confined only to the two specific issues of decriminalisation of politics and consequences of filing false affidavits.

The National Consultation was widely advertised in the press and media to ensure maximum participation and political parties and other delegates were invited by sending invitations through post and email.All India NR Congress (Pondicherry), All Jharkhand Students Union Party (Jharkhand), Biju Janata Dal, Communist Party of India, Communist Party of India (Marxist), Nationalist Congress Party, J & K National Panthers Party, Rashtriya Lok Dal) and Telangana Rashtra Samithi were represented.

All the registered National and Regional Parties were invited though most did not attend. The fundamental idea behind holding the National Consultation was to receive as many and as varied inputs from various stakeholders as possible, and to draw upon the expertise on the two issues from a cross-section of those involved in administering the political system.

This was based on the widespread belief that electoral reforms must flow from the floor of the House rather than being imposed from the outside. To create momentum for change, in the words of Mr. Fali S. Nariman, "we need to rely on the public opinion on the outside to put pressure on those inside to do the right and the honourable thing".

The Consultation began with an Opening Session and comprised three Technical Sessions. Mr. Justice (Retd.) B.P. Jeevan Reddy (Former Judge of Supreme Court and former Chairman of the Law Commission of India) under whose Chairmanship the 170th Report on Electoral Reforms was submitted by the Law Commission in 1999 and which Report remains the reference point for all subsequent work on the issue, gave the inaugural address in the Opening Session.

The First Technical Session after the opening ceremony focused on the increasing criminalisation of the Indian polity and the means to deal with the same. Mr. Fali S. Nariman (Senior Advocate) presented the opening ideas and issues and proffered valuable suggestions on the same.

The second session focused on the determining stage of the legal procedure in criminal cases for the disqualification of candidates and sitting Members of Parliament and Legislative Assemblies/Councils accused of criminal offences. Mr. T.R. Andhyarujina (Senior Advocate and former Solicitor General of India) and Mr. P.P. Rao provided impetus to the discussion by putting forth two opposite perspectives on the issue.

The third and final Technical Session was devoted to the consequences of furnishing false information in the affidavit filed along with nomination paper. Mr. Soli J. Sorabjee (Senior Advocate and former Attorney General of India) and Mr. K.N. Bhat (Senior Advocate) advanced their suggestions on the issue of filing false affidavits.

Besides the abovenamed, the Consultation was attended by 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), Mr. H.K. Dua (Member of Parliament, Rajya Sabha), Mr. Dinesh Dwivedi, (Senior Advocate) along with several other representatives from the Bar, Bench, civil society organizations, concerned citizens, academia, media and other stakeholders all of whom fruitfully participated in the debates and discussions.

The participants put forth several suggestions, reflections, observations and comments all of which have been duly recorded in the minutes of the Consultation prepared by the Commission.

Broadly, the public consultation brought to the fore sharply divided opinions, with views on the one end of the spectrum suggesting that individual interest or concerns if any in the context of representing people in democracy should be sacrificed to secure the larger public good, namely, purity and integrity of the electoral democratic process, and on the other end emphasised the view that the time tested principles of criminal jurisprudence of the presumption of innocence until a person is tried and convicted should not be jeopardized or diluted.

On the issue of criminalisation of politics, Justice B.P. Jeevan Reddy stayed firm in his opinion that the field of disqualification of candidates has to be enlarged by providing that candidates against whom charges have been framed for offences (under the IPC or any other enactment) punishable with death, imprisonment for life or for ten years (with or without fine) shall stand disqualified, provided such charges are framed six months prior to the date of scrutiny of the nomination papers.

He also suggested the introduction of a List System of elections. The List system would involve publication by the Election Commission of a constituency-wise list of candidates having declared criminal background.

Justice Reddy also proposed a reduction in the period between publication of validly nominated candidates and the day of polling. These measures, he opined, would have the merit of breaking the bond between candidates and the constituency, leaving minimal scope for influencing voters.

Mr. Fali S. Nariman found that the procedure relating to criminal cases prescribed in the Code of Criminal Procedure, 1973 held all the answers. He ruled out disqualification upon filing of charge-sheet or report under Section 173 by the Police in the Magistrate's Court, and strongly advocated disqualification upon framing of charges by the competent Court.

He articulated the need for enlarging the whole concept of disqualification and emphasized that the law needs to go ahead in order to promote purity and integrity of the democratic process. In his opinion, there are sufficient safeguards within the Code of Criminal Procedure, 1973 (CrPC) which can address the concerns against false prosecution.

According to Mr. P.P. Rao, credibility is the life-blood of institutions in a democracy. Accordingly a person who is under a cloud should not be allowed to function as it damages the faith of the people in the institutions. He submitted that the presence of tainted people is the main reason for deterioration in the credibility enjoyed by the institutions and therefore said that the time has come to make efforts to regain it. He admitted that the criminal justice is protracted and many legislative terms may pass by before conviction or acquittal is pronounced.

But the changing reality with changing times demands innovative methods. In the light of the same, he also suggested disqualifying candidates upon framing of charges by the competent Court. Representing the Biju Janata Dal, Mr. Pinaki Misra,, while strongly supporting disqualification upon framing of charges for aspiring candidates, opined that automatic disqualification of sitting members upon charges being framed would mean re-election for that seat.

He suggested that the disqualification for a sitting MP should not be triggered immediately as huge investments are made in the conduct of elections and it is impossible to turn the clock back, and that the membership should be kept in abeyance as in cases of electoral offences. He cited the example of the interim order of the Supreme Court of India in Indira Gandhi v. Raj Narain judgment. His suggestion was that the court must expedite the cases of such indicted MPs.

All the other political parties that participated in the Consultation strongly dissented on the introduction of disqualification upon framing of charges. Shiromani Akali Dal in its written response on the issue has stated that the existing provisions of the RPA are sufficient to prevent entry of people with criminal antecedents into the political arena and therefore need no amendment. The overpowering consideration behind the common thread running through the opposition from the political fraternity to disqualification being triggered upon framing of charges is the fear of its misuse on account of 'political vendetta'.

Mr. T.R. Andhyarujina also opposed the operation of disqualification upon framing of charges though for different reasons. He highlighted the legislative history of Section 8 of the RPA to bring home the fact that when it was enacted, the yardstick for disqualification was conviction and not framing of charges. Admitting that the moral perception of the first Parliament was drastically different from the present situation with several elected representatives with "criminal" antecedents, he still stressed that our settled jurisprudence of presumption of innocence until proven guilty ought not to be subverted.

The disclosure of information including criminal antecedents in the affidavits are sufficient for the electorate to make well informed choices. Dr S.Y. Quraishi and Mr S.K. Mendiratta in this regard pointed out that the jurisprudence of presumption of innocence until found guilty already has been displaced to a large extent in practice inasmuch as there are lakhs of under-trial prisoners in our country.

A valuable suggestion by one of the participants was that if a person is disqualified from being a candidate for election or a member of the Parliament, then he must be disallowed from holding any position in the party as well for a certain period of time. Allowing the disqualified person to hold a position in the party has the potential of the same member issuing a whip on the other members of the party and ultimately achieving indirectly what could not be achieved directly. It was further suggested that any political party that allows a position to a disqualified person should be de-recognized.

On the aspect of filing of false affidavits, Mr. Soli J. Sorabjee, stressed that filing of false affidavits in the matter of elections is a serious issue having a direct bearing on the purity of an election. He said that the Supreme Court has acknowledged the right of the elector to have 'correct' information about the candidate who is standing for the elections in order to make an informed choice. Thus filing of false affidavit should certainly be made a ground for disqualification, particularly in cases of returned candidates who furnished false information in affidavits.

This is essential to ensure free and fair elections which is a basic feature of our Constitution. He suggested that the CVC may be entrusted with the task of auditing the information in the affidavits to ascertain the correctness thereof. The CVC on finding falsehood having been practiced, shall send a report to the Election Commission. The Election Commission after hearing the returned candidate, shall report to the President of India and the President after examining the report and the material may disqualify the returned candidate so as to not allow him to enjoy the fruits of his victory achieved by filing false affidavit.

Mr. K.N. Bhat, stated that even though Sections 33A and 125A have been inserted in the statute book after the 170th Report of the Law Commission (1999), yet false affidavits are filed routinely. Delay in the court procedures resulting in an unduly long period between the framing of charges and conviction, coupled with only six months punishment under Section 125A makes a mockery of the provision.

He suggested the omission of the words "with the intent to be elected in an election" in Section 125A as in his opinion falsehood is always deliberate. He also suggested that a week's time may be given after the filing of the affidavit for filing objections and subsequently, the Returning Officer must have the right to reject the candidature based on valid evidence. He further suggested that Section 125A be included under Section 123 as a corrupt practice, as an election petition can be filed thereafter and election can be set aside on this ground under Section 100.

While some other participants also suggested making filing of false affidavits a corrupt practice under Section 123 of the RPA and thus a ground for setting aside election, the same has been disagreed by others on the ground that discovery of falsehood after the limitation for filing election petition expires would enable the wrongdoer escape the consequence. Mr. Nripendra Misra from the Public Interest Foundation (the petitioner in the PIL pending before the Hon'ble Supreme Court) also suggested that punishment under Section 125A should be enhanced to two years with no alternative of fine.

He recommended that power should be given to the Chief Election Commissioner to hear and decide the issue of falsity of affidavit on a reference being made to him by the Returning Officer instead of the CVC investigating it. However, the same has been disagreed with by the other participants as being impractical particularly owing to the time gap between nominations and polls being only 14 days.

Further, he suggested that the disqualification for violation of Section 125A should be three years as in Section 10A. Dr. S.Y. Quraishi also added that disqualification for filing false affidavit should not be limited to the returned candidate but equally to all candidates who have been found guilty of having furnished false information. Mr. S.K. Mendiratta, put forth the proposals of the Election Commission on the issue at hand i.e. punishment under Section 125A should be at least 2 years and not 6 months and Section 125A should be included in the offences covered under Section 8(1) so that conviction thereunder irrespective of the quantum of sentence would lead to disqualification of the candidate, returned or otherwise.

The Commission took into consideration the diverse views expressed at the National Consultation while preparing its recommendations in this Report. At the same time it recognised a distinct sense emerging from the day-long meeting, i.e. that the law relating to disqualification of tainted politicians needs to be enlarged in order to be attuned to modern realities. A detailed justification of why such enlargement needs to happen and the exact scope of such enlargement are discussed in turn in the next three chapters.



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