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Report No. 170

5.3. Analysis of views.-

Having given our earnest consideration to the issue, we are of the opinion that the proposal put forward by us should be reiterated and affirmed but with certain changes.The changes we are making are the following: (a) section 8 shall remain as it stands now; (b) the electoral offences and offences having a bearing upon the conduct of elections under sections 153A and 505 IPC and serious offences punishable with death or life imprisonment shall be put in a separate section viz., section 8B.

Section 8B (proposed) provides that framing of charges shall be a ground of disqualification but this disqualification shall last only for a period of five years or till the acquittal of the person of those charges, whichever event happens earlier. (In case such person is convicted for any of the offences mentioned in section 8B (proposed) he gets disqualified under section 8).This course we are adopting for the reason that a person committing election offences or serious offences punishable with life imprisonment should be disqualified even if charges are framed against him by the court.

It must be remembered in this context that persons committing electoral offences or election related offences are generally influential persons or persons having the backing of influential persons. So far as offences punishable with life imprisonment are concerned, they seriously affect the public and very often involve moral turpitude. In this connection, we feel constrained to make certain remarks about the criminal judicial system of this country which has also become extremely corrupt at certain levels.In several instances, offences are registered merely with a view to pressurise the persons to pay bribes to the investigating agencies and then the case is closed.

The real offenders are quite often left untouched either because they are capable of bribing the investigating agencies or able to pressurise them in various well-known ways. So far as the prosecuting agency is concerned, the appointment process of public prosecutors and other prosecutors in criminal courts has also become thoroughly politicised. Appointments are no longer made on the basis of merit but almost exclusively on the basis of political affiliations.

It is a common phenomenon in the States to see the public prosecutors and the government advocates changing with every change of governmen.- not merely when a different political party comes into power but also when the incumbent in the office of chief minister changes within the same political party. Such kind of appointments, coupled with frequent changes (leaving short terms at the disposal of the incumbents), is keeping away people with merit from these offices.

No advocate with merit and having some work, is prepared to accept these offices because they have become too precarious and dependent upon the whims and fancies of the political bosses. Efficiency and integrity have both become scarce in many of the holders of these offices. So far as the witnesses are concerned, the inordinate delays in bringing the accused to trial is acting as a damper. Very often witnesses are won over, threatened or otherwise pressurised not to speak the truth.

If their evidence is recorded soon after the offence, more often than not, they will speak the truth. But if there is an interval of a year or more which is invariably the case now-a-day.- they become weak in their resolve to uphold the truth and succumb to pressures. Lastly, so far as the judges are concerned, the common complaint heard is that inefficiency, and corruption in some cases have both unfortunately made an entry into the hitherto sacred portals of judiciary.

5.3.1. The real fault lies in the fact that the Indian State has become very 'soft'. There is no respect for law either in the bureaucracy or among the citizens. Many people indeed take pride and pleasure in violating the law and in boasting of their violations. People appreciate a person who carries on business without paying taxes. His skill is admired, little realising the great harm he is causing to the society. In USA, not paying taxes correctly is immediately visited with a jail term. A few decades ago, a corrupt man was generally timid and afraid of situations where his misdeeds may be talked of or questioned.

Today, that is not the situation. Corruption is open and brazen and has the sanction of a section of the public, if not of the public as a whole. Several campaigns and movements for eradicating corruption have not borne fruit. It is necessary to take stringent measures to enforce the law, punish and impose maximum punishments for every violation of offence. To start with, people must be made aware that the law is there to follow and not to flout. Methods must be found and implemented eradicating political interference with the police and administration.

The weapon of transfer must be taken away from the hands of political executive. The political executive should be confined to laying down the policies and performance of those functions as are conferred upon it by law. It should have no say in the matter of performance of statutory functions by statutory authorities. Even in the matter of administration of the government, the discretion and judgment of the officers should be respected by the government while taking decisions. At the same time, the anti-corruption laws must be stringently enforced and the trials promptly concluded.

One of the measures suggested in this behalf by the Law Commission has been the enactment of a legislation called "The Corrupt Public Servants (Forfeiture of Property) Act" [166th Report of the Law Commission]. The provisions contained in the "Benami Transactions Act" relating to seizure and forfeiture of benami properties should also be enforced without any delay. The Central Vigilance Commissioner has been repeatedly asking for enforcement of the said provisions and also for the enactment of the legislation recommended by the Law Commission in its 166th Report.

Starting with the smallest of the offences like throwing litter in streets, parks and public places and not obeying the traffic rules to major offences like corruption, misappropriation of public funds and dacoity should all merit maximum permissible sentence, as a general rule. It is only by this weapon that respect for law can be inculcated in the society and in the administration. India must get out of this 'soft state syndrome'. Otherwise no meaningful development is possible and there can be no improvement in the governance of this country.

Reform of The Electoral Laws Back

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