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Report No. 170

1.3.3. Amendment to the Tenth Schedule to the Constitution.-

The Tenth Schedule to the Constitution was inserted by the Constitution (Fifty-second Amendment) Act, 1985. The Schedule provides for disqualification of a member of Parliament of a State Legislature in two situations, namely (a) if he voluntarily gives up his membership of political party on whose ticket he was elected and (b) if he votes or abstains from voting, without prior permission of the party, in such House contrary to any direction issued by the political party on whose ticket he has been elected and such voting or abstention has not been condoned by such political party within 15 days from the date of voting of abstention.

The Schedule however introduced in paragraph 3 thereof the concept of 'split'. In short, the paragraph provided that if not less than 1/3rd members of the legislature party defect, the disqualification provided in paragraph 2 shall not operate. Paragraph 4 provided that the rule of disqualification in paragraph 2 shall not apply where two or more political parties merge. Paragraph 5 provided an exemption in favour of Speaker/Deputy Speaker of Chairman/Deputy Chairman, as the case may be, from the operation of paragraph 2.

Paragraph 6 provided that in case of dispute on the question of disqualification on the ground of defection, the same shall be decided by the Speaker or the Chairman of the House concerned. Paragraph 7 barred the jurisdiction of the courts in respect of matters connected with the disqualification of a member of a House under the said Schedule. (This paragraph has, however, been declared unconstitutional by the Supreme Court in Kihota v. Zachilhu (AIR 1993 SC 412). Paragraph 6 provided for rules to be made to carry out the objects of the Schedule. The experience of this country with the Tenth Schedule since its introduction has not been happy. It has led to innumerable abuses and undesirable practices. While the idea of disqualification on the basis of defection was a right one, the provision relating to 'split' has been abused beyond recall. It was accordingly suggested by us that paragraphs 3 and 4 should go altogether with the result that paragraph 2 alone remains (along with the exemptions in paragraph 5).

The underlying idea was that a person elected on the ticket of a political party should remain with it during the life of the House or leave the House. It was also suggested by the Law Commission that the decision on the question of disqualification under the said Schedule should be entrusted to the President (in the case of Parliament) and to the Governor (in the case of State Legislature) who shall render their decision in accordance with the opinion of the Election Commission which shall be consulted in that behalf. For achieving the said objective, necessary amendments to the Tenth Schedule to the Constitution were appended to the working paper. We are also proposing herein amendments to articles 102(1) and 191(1) of the Constitution which are necessary to give effect to our recommendations. The amendments in articles 102(1) and 191(1) are to the following effect:-

(1) In clause (1) of article 102, after sub-clause (e), the following sub-clause (f), shall be inserted before the Explanatio.-

"(f) if he is disqualified for being a member of either House of Parliament under the Tenth Schedule."

(2) Clause (2) to article 102 shall be deleted. Similarly, in article 191(1), sub-clause (f) as follows shall be added after sub-clause (e) but before the Explanation:-

"if he is disqualified for being a member of Legislative Assembly or Legislative Council of a State under the Tenth Schedule"

(2) Clause (2) to article 102 shall be deleted. The second suggestion in this behalf was to introduce provisions making it obligatory upon the political parties to maintain regular accounts clearly and fully recording therein all amounts received by them and all expenditure incurred, as is the legal requirement in Germany. It was further suggested that the said accounts should be duly got audited at the end of each year and the audited accounts submitted to the Election Commission before the prescribed date every year. Election Commission was required to publish the said accounts for public information.

This proposal was made to introduce an element of transparency and openness in the financial matters of the political parties and is backed by the judgment of the Supreme Court in Gajanan Bapat v. Dattaji Meghe (1995 SCC 347). The said decision emphasised the desirability and necessity of the political parties maintaining true and correct account of their receipts and expenditure including the disclosure of the sources of receipt. It was pointed out in the decision that this was essential to ensure the purity of elections and to prevent money from influencing the outcome of elections.

It was pointed out by the Law Commission in its working paper that the aforesaid provisions in conjunction with the provisions contained in section 29A, would advance the objective of ensuring purity of elections by preventing the money-power, in particular black money-power and money collected from suspect sources from influencing the elections. The third proposal in this behalf pertained to State funding. On this aspect, we merely reproduced the provisions contained in the Bill prepared by the then Law Minister, late Shri Dinesh Goswami in 1990 since they were based upon a consensus among the political parties, inviting at the same time the response of all concerned and informed citizenry to the said proposal.

1.3.5. Amendment of section 8 and enhancement of punishment for electoral offences. The next major proposal put forward in the working paper prepared and circulated by the Law Commission pertained to amendment of section 8 and of sections 127(1), 134B(2), 135(1), 136(2) and insertion of a new section 126A in the Act. It was also suggested that punishments prescribed by several sections in chapter IXA of the Indian Penal Code 1860 should be enhanced. All the above sections in the Act as well as the Indian Penal Code are election offences and quite serious too.

The main purpose behind the suggested amendments was to provide (a) that framing of charges by the court should by itself be a ground for disqualifying a person from being a candidate for election and (b) to enhance the punishments provided for election offences contained in the Representation of People Act, 1951 and chapter IXA of the Indian Penal Code so as to attract the procedure prescribed in the Criminal Procedure Code for trial of warrant cases.

It may be remembered that framing of charges is obligatory in the warrant cases but not in summons cases. (In the case of offences triable according to the procedure prescribed for trial of summons cases, framing of charges lies within the discretion of the court and is not obligatory.) The above proposal was put forward for the reason that persons indulging in election offences are usually persons powerful in political field and who command money and muscle-power with the result that no witness comes forward to depose against them.

Since no independent witness comes forward to depose against such persons, the prosecution launched against them inevitably ends in discharge or acquittal, as the case may be. Indeed, a similar proposal was also put forward sometime ago by the Election Commission too. It may be clarified that the aforesaid amendment was proposed only in sub-section (1) of section 8 and not in other sub-sections of section 8.

Reform of The Electoral Laws Back

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