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Report No. 244

F. Previous Reports Recommending Reforms

The issue of electoral reforms has been the concern of several Commissions and Committees previously. This part surveys the key findings and recommendations of these bodies with a view to incorporating relevant suggestions in this Report.

In the year 1999, Law Commission in its 170th report recommended the addition of Section 8B in the RPA. This section included certain offences (electoral offences, offences having a bearing upon the elections viz. Section 153A, 505 of IPC and serious offences punishable by death or life imprisonment), framing of charges with respect thereto was sufficient to disqualify a person from contesting elections.

The proposed provision further stipulated the disqualification to last for a period of five years from the framing of charges or till acquittal whichever event happens earlier. It also recommended mandatory disclosure of such (and other) information with the nomination paper under Section 4A in the RPA. This suggestion has already been incorporated by inserting Section 33A in RPA with effect from 24 August 2002.

The National Commission to Review of the Working of the Constitution (2002) also maintained the yardstick for disqualification as framing of charges for certain offences (punishable with maximum imprisonment of five years or more). There were however certain modifications in its recommendations.

First, the Commission proposed that this disqualification would apply from one year after the date of framing of charges and if not cleared within that period, continue till the conclusion of trial. Secondly, in case the person is convicted of any offence by a court of law and sentenced to imprisonment of six months or more, the period of disqualification would apply during the period of sentence and continue for six years thereafter.

Thirdly, in case a person is convicted of heinous offences, it recommended a permanent bar from contesting any political office. Fourthly, it recommended that Special Courts be set up at the level of the High Courts (with direct appeal to the Supreme Court) to assess the legality of charges framed against potential candidates and dispose of the cases in a strict time frame. Finally, it recommended de-registration and de-recognition of political parties, which knowingly fielded candidates with criminal antecedents.

The Election Commission of India has also made several recommendations from time to time to reform election law. In August, 1997, it mandated filing of affidavits disclosing conviction in cases covered under Section 8 of the RPA. In September 1997, the Commission in a letter addressed to the Prime Minister recommended amendment to Section 8 of RPA, to disqualify any person who is convicted and sentenced to imprisonment for six months or more, from contesting elections for a period totalling the sentence imposed plus an additional six years.

In 1998, the Commission reiterated its above suggestion besides recommending that any person against whom charges are framed for an offence punishable by imprisonment of five years or more should be disqualified. The Commission admitted that in the eyes of law a person is presumed to be innocent unless proved guilty; nevertheless it submitted that the Parliament and State Legislatures are apex law-making bodies and must be composed of persons of integrity and probity who enjoy high reputation in the eyes of general public, which a person who is accused of a serious offence does not.

Further, on the question of disqualification on the ground of corrupt practice, the Commission supported the continuation of its power to decide the term of disqualification of every accused person as uniform criteria cannot be applied to myriad cases of corruption- ranging from petty to grand corruption.

Further, taking note of the inordinate delays involved in deciding questions of disqualification on the ground of corrupt practice, the Commission recommended that the Election Commission should hold a judicial hearing in this regard immediately after the receipt of the judgment from the High Court and tender its opinion to the President instead of following the circuitous route as prevalent then. Recommendations to curb criminalisation of politics were made again in the year 2004.

It reiterated its earlier view of disqualifying persons from contesting elections on framing of charges with respect to offences punishable by imprisonment for five years or more. Such charges, however, must have been framed six months prior to the elections. It also suggested that persons found guilty by a Commission of Enquiry should also stand disqualified from contesting elections. Further, the Commission suggested streamlining of all the information to be furnished by way of affidavits in one form by amending Form 26 of the Conduct of Election Rules, 1961.

It also recommended the addition of a column for furnishing the annual detailed income of the candidate for tax purpose and his profession in the said form. To tackle the menace of wilful concealment of information or furnishing of false information and to protect the right to information of the electors, the Commission recommended that the punishment under Section 125A of RPA must be made more stringent by providing for imprisonment of a minimum term of two years and by doing away with the alternative clause for fine. Additionally, conviction under Section 125A RPA should be made a part of Section 8(1)(i) of the Representation of People Act, 1950.

The Second Administrative Reforms Commission in its fourth report on Ethics in Governance (2008) deliberated upon the fallouts of disqualifying candidates on various grounds. It recommended that Section 8 of RPA needed to be amended to disqualify all persons facing charges related to grave and heinous offences (viz. murder, abduction, rape, dacoity, waging war against India, organised crime, and narcotics offences) and corruption, where charges have been framed six months before the election.

It also supported the proposal of including filing of false affidavits as an electoral offence under Section 31 of Representation of the People Act, 1950 as recommended by the Election Commission in the year 1998.

Recently the Justice J.S. Verma Committee Report on Amendments to Criminal Law (2013) proposed insertion of a Schedule 1 to the Representation of People Act, 1951 enumerating offences under IPC befitting the category of 'heinous' offences. It recommended that Section 8(1) of the RP Act be amended to cover inter alia the offences listed in the proposed Schedule 1.

It would then provide that a person in respect of whose acts or omissions a court of competent jurisdiction has taken cognizance under section 190(1)(a),(b) or (c) of the CrPC or who has been convicted by a court of competent jurisdiction with respect to the offences specified in the proposed expanded list of offences under Section 8(1) shall be disqualified from the date of taking cognizance or conviction as the case may be. It further proposed that disqualification in case of conviction shall continue for a further period of six years from the date of release upon conviction and in case of acquittal, the disqualification shall operate from the date of taking cognizance till the date of acquittal.

The Committee further recommended that the Election Commission must impose a duty forthwith on all candidates against whom charges are pending, to give progress reports in their criminal cases every three months. Further it recommended that in case of conviction under Section 125A of the RPA, disqualification must ensue to render the seat vacant.

Moreover, the Commission suggested amendment to the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971 to allow a deeper investigation of assets and liabilities declared at the time of filing a nomination paper or, as soon as may be practical thereafter. It recommended the scrutiny of assets and liabilities of each successful candidate, if not all contesting the elections to the Parliament and State Legislature by the CAG.

The elaborately researched and clearly articulated reports of the committees and commissions in the past have greatly informed our recommendations made in this report. Primarily, the reports are testimony to the need for a change in the law, a need which was felt as early as 1999.

This, when seen in the context of the data demonstrating the growing prevalence of criminalisation of politics, Supreme Court judgments responding to this growth, the recalcitrance of political parties to take decisive action to prevent it and compared to the overarching democratic and constitutional need for free and fair elections, makes reform of the law not only imperative but an urgent necessity. The contours of such reform relating to the two questions referred to the Law Commission by the Supreme Court are dealt with in turn below.



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