Report No. 170
The proposed sub-section (1) shall read as follows:-
"(1) Only the political parties registered with the Election Commission under section 11(4) shall be entitled to put forward candidates to fill a seat in the House of the People."
Similarly, section 5 of the R.P. Act should also be amended by introducing the following sub-section (1) :-
"(1) Only the political parties registered with the Election Commission under section 11(4) shall be entitled to put forward candidates to fill a seat in the Legislative Assembly."
The existing provisions of section 5 shall be renumbered as sub-section (2).
9.13 Necessity for abiding by the whip:- When a person becomes a member of the political party, accepts its ticket and fights and succeeds on that ticket, he renders himself subject to the discipline and control of the party.It should also be noticed that when a person applies for the ticket of a political party, he knows, and is expected to know, about the leadership, internal working, policies and programmes of the party. He must also reckon with the fact that in future, the leadership may change, policies and programmes may change and so on.
If he, with his eyes open, applies for and obtains the ticket and contests and wins on that basis, he cannot please later that he does not agree with the leadership or policies of the party. He must ventilate and fight any difference of opinion within the party.The membership of a House is not his private property nor can he trade in it. It is a trust and he is in the nature of a trustee. He cannot also say that he will take advantage of the name and faclities of a political party, figtht the election on the ticket of that party and succeed, but is free from discipline of the political party.
This is simply unthinkable besides being unethical and immoral. He has to abide by the party discipline within the House. He may fight within the party to have his point of view or policies adopted by the party but once the party takes a decision one way or the other and issues the whip, he will have to abide by it or resign and go out. It would be equally unethical and immoral for him to vote against the whip and then resign.
9.14. Desirability of issuing the whip in specific situation only:- So far as the issuance of the whip is concerned, it is not governed by any law. Neither the Rules framed under the Tenth Schedule nor the Rules of Procedure and Conduct of Business in the Lok Sabha/Council of States provide for or regulate the issuance of whip. It appears to be a matter within the discretion and judgement of each political party. In such a situation, we can only point out the desirability aspect and nothing more. It is undoubtedly desirable that whip is issued only when the voting in the House affects the continuance of the government and not on each and every occasion. Such a course would safeguard both the party discipline and the freedom of speech and expression of the members.
9.15. The Law Commission reiterates its proposal to delete Explanation I to section 77 of the R.P.Act and hopes and trusts that in the interest of a healthy parliamentary democracy, those political parties, which are now opposed to the deletion of Explanation I to section 77(1), will reconsider and revise their opinion and support the said deletion as indeed they had done in the years 1989-1990.
9.16. The Law Commission reiterates that a new section as proposed in the working paper (section 78A) should be inserted in the R.P.Act of 1951.It is further recommended that the provision as suggested should be numbered as sub-section (1) and sub-sections (2), (3) and (4) as proposed hereinafter should also be inserted in the said section. Section 78A should now read as follows :
"(1) Each recognised political party shall maintain accounts clearly and fully disclosing the sources of all amounts received by it and clearly and fully disclosing the expenditure incurred by it. The accounts shall be maintained according to the financial year. Within nine months of each financial year, each recognised political party shall submit its accounts, duly audited by an accountant (as defined in the Explanation below sub-section (2) of section 288 of the Income-tax Act, 1961), to the Election Commission.
The Election Commission shall publish the said accounts in accordance with such general directions as may be issued by the Election Commission in this behalf. The accounts shall also be open for inspection by the members of the public in the office of the Election Commission and they shall also be entitled to obtain copies of such accounts or any part thereof in accordance with such instructions as the Election Commission may issue in that behalf.
(2) A political party which does not comply with any of the requirements of sub-section (1) shall be liable to pay a penalty of Rs. 10,000/for each day of non-compliance till the non-compliance continues.
If such default continues beyond a period of 60 days, the Election Commission may de-recognise the political party after affording a reasonable opportunity of showing cause.
(3) If the Election Commission finds on verification undertaken whether suo motu or on information received, that the statement of accounts filed under sub-section (1) is false in any particular, the Election Commission shall levy such penalty upon the political party, as it may deem appropriate besides initiating criminal prosecution as provided under law.
(4) Any orders passed under sub-sections (2) or (3) shall be directed to be published in the press and other media, for public information."
9.17. After considering views expressed bythe participants in the seminars and by various persons and organisations in their responses and after perusing relevant literature on the subject, the Law Commission is of the opinion that in the present circumstances only partial state funding can be contemplated more as a first step towards total state funding but it is absolutely essential that before the idea of state funding (whether partial or total) is resorted to, the provisions suggested in this report relating to political parties
(including the Provisions ensuring internal democracy, internal structures) and maintenance of accounts, their auditing and submission to Election Commission are implemented.In other words, the implementation of the provisions recommended in Chapter one Part three should be a pre-condition to the implementation of the provisions relating to partial state funding set out in the working paper in the Law Commission (partial funding, as already stated, has also been recommended by the Inderjit Gupta Committee).
If without such pre-conditions, state funding, even if partial is resorted to, it would not serve the purpose underlying the idea of state funding. The proposal for state funding is aimed at eliminating the influence of money power as well as corporate funding, black money support are raising of funds in the name of elections by the parties and their leaders. The state funding, without the aforesaid preconditions, would merely become another source of funds for the political parties and candidates at the cost of public exchequer.
We are, therefore, of the opinion that the proposals relating to state funding contained in the Inderjit Gupta Committee Report should be implemented only after or simultaneously with the implementation of the provisions contained in this Report relating to political parties viz., deletion of Explanation 1 to section 77, and incorporation or provisions providing for maintenance of accounts and their submission etc. and the provisions governing the functioning of political parties contained in chapters I and IV of Part IV and Chapter I of Part III.
The state fudning, even if partial, should never be resorted to unless the other provisions mentioned aforesaid are implemented lest the very idea may prove counter-productive and may defeat the very object underlying the state funding of elections.
9.18. We reiterate all the recommendations made in the Inderjit Gupta Committee Report subject to the observations made in para 4.3.4. of this Report.Further, the Law commission recommends delettion of Explanation I to section 77 (1) of the Representation of the People Act, 1951.
9.19. Section 8 of the Representation of the People Act, 1951 shall remain as it stands now.
9.20. We recommend that section 8B (as proposed by us and as set out hereinbelow) be enacted, making the framing of charge (by court) in respect of election offences and certain otherseriousoffencesagroundof disqualification:
"8B. Disqualification on framing of charge for certain offences.- A person agaisnt whom charge has been framed under :- (a) section 153A, section 171E, section 171F, section 171G, section 171H, section 171I, sub-section (1) or sub-section (2) of section 376, sub-section (2) or sub-section (3) of section 505 of the Indian Penal Code (45 of 1860) or
(b) Sections 10 to 12 of the Unlawful Activities (Prevention)Act, 1967 (37 of 1967): or
(c) the penal provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) except section 27 thereof; or
(d) Section 125, section 135, section 135A or sub-section (2) of section 136 of this Act; or
(e) anyotheroffence punishable with imprisonment for life or death, under any law, shall be disqualified for a period of five years from the date of framing of the charge, provided that he is not acquitted of the said charge before the date of scrutity notified under section 36 of this Act."
We also reiterate the proposals to enhance the punishment for various electoral offences mentioned in the R.P. Act as well as in the Indian Penal Code. All of them are electoral offences and seriously interfere with a fair electoral process. They foul the electoral stream by letting in all kinds of distortions and evils into the electoral system and finally into our body politic.The punishments at present provided are totally inadequate and are ridiculously low, hence need to be enhanced.
9.21. We reiterate the following proposals put forward in our working paper (Annexure-B), except the one relating to section 34 (raising of deposit amount in the case of indendent candidates). They are :
(a) Deletion of sections 11 and 11B of the R.P. Act.
(b) Amendment of section 33 of the R.P.Act. By introducing sub-section (7), it was sought to be provided that no person shall be entitled to contest simultaneously from more than one parliamentary constituencyorassembly constituency, as the case may be. Similar provision was suggested with respect to the Council of States and Legislative Councils and even in bye-elections.
(c) Amendement of section 58A in certain respects.
(d) Amendement of section 62 by inserting a proviso.
(e) Amendment of section 78 reducing the period prescribed for filing the account of election expenses by the contesting candidates from 30 days to 15 days.
(f) Amendment of sections 81, 86 and 87 relating to trial of election petitions.
(g) Amendment of section 97 in the light of the decision of the Supreme Court in Bhag Mal v. Parbhu Ram, AIR 1985 SC 150.
(h) Insertion of new sections 98A and 98B.
(i) Amendment of section 107.
(j) Amendment of section 116A.
(k) Omission of the proviso to sub-section (7) in section 123.
(l) Insertion of a new chapter II in part 7 of the R.P. Act, relating to 'Illegal Practices.'
(m) Insertion of section 126A.
(n) Insertion of another proviso to section 151A.
(o) Insertion of new section 162A.
It may be mentioned that the proposals with respect to enhancing the punishments provided by sections 127, 134B, 135 and 136 of the R.P. Act and by various offences in chapter IXA of the Indian Penal Code, 1860, have already been affirmed by us and recommendations made to implement the same).
We may mention that the proposal to amend section 34 (raising the deposit in the case of independent candidates) has been dropped by us in view of our recommendations for barring the independent candidates and the proposal requiring a political party to obtain 5% of the valid votes cast in order to obtain a seat in Lok Sabha or in Legislative Assembly.
(Paragraphs 6.1.1. and 6.1.3.)
9.22. It is recommended that the existing provisions under section 195 (1) (b), and 340 (3) (b) of Code of Criminal Procedure, 1973 be substitued as follows :-
For clause (b) of section 340(3), the following clause may be substituted :-
"(b) In any other case, by the presiding officer of the Court, or by such ministerial officer as the Court may designate in this behalf."
9.23. Section 195(1)(b) of the Code of Criminal Procedure, 1973 should also be amended by inserting before the words "or of some other Court" and after the words "except on the complaint in writing of that Court, the following words :-
"or by such ministerial officer as the Court may designate in this behalf."
In view of the proposed insertion of the words stated above, the Presiding Officer of the Court before which false evidence was given or false prosecution was launched, will be genrally relived of the anxiety that he may possibly be called to give evidence during trial before the Migistrate.Such depositions on behalf of the Court can then be given by a milnisterial officer.
Under section 294, no formal proof of certain documents is required.Thus in general, the judicial record may be read in evidence as such.The proposed amendments, it is felt could achieve the object of deterring persons from initiating false prosecutions. These amendemnts will be particularly appropriate in matters relating to disqualifications under proposed section 8B to guard against abuse of the said provision. In course of time, provisions of Cr. P.C. could also be amended on the above lines to deter launching of false cases.
(Paragraphs 6.2.5. to 6.2.7.)
9.24. In view of recommendation of the Law Commission for debarring a candidate from contesting an election if charges have been framed against him by a Court in respect of offences mentioned in the proposed section 8-B of the Act, it is also necessary for a candidate seeking to contest election to furnish details regarding criminal case, if any, pending against him, including a copy of the FIR/complaint and any order made by the concerned court.
In order to achieve the aforesaid objectives, and also with a view to introducing transparency and fairness in the working of the system, it is essential to insert a new section 4A after the existing section 4 of the Representation of the People Act, 1951, as follows :-
"4A. Qualification for membership of the House of the People, the Council of States, Legislature Assembly of a State or Legislative Council.
A person shall not be qualified to file his nomination for contesting any election for a seat in the House of the People, the Council of States Legislature Assembly or Legislative Council of a State unless he or she file.-
(a) a declaration of all his assets (moveable/ immovable) possessed by him/her, his/her spouse, dependent relations, duly supported by an affidavit, and
(b) a declaration as to whether any charge in respect of any offence referred to in section 8B has been framed against him by any Criminal Court."
(Paragraphs 6.3.2. and 6.3.3.)
9.25. Consequent upon the introduction of the above provisions it is necessary to amend Forms 2A to 2E, which provide the proforma in which the nomination paper to Lok Sabha, Legislative Assembly, Rajya Sabha and Legislative Council have to be filed. These Forms, prescribed by the Conduct of Election Rules, 1961 may be amended as follows : The existing clause (d), shall be redesignated as clause (f) and before the said clause, clauses (d) and (e) shall be inserted to the following effect :
(d) that the statement of assets enclosed to this nomination paper represents the true and correct statement of all the assets, moveable and immovable, held/owned by me, my spouse and dependent relations.An affidavit affirming the correctness of the said statement is also appended to this nomination paper.
(e) that no criminal court has framed a charge against me in respect of any of the offences mentioned in section 8B of the Act and that no trial in respect of charges of the said offences is pending, or
that a charge has been framed against me by the court of _____________ in the case No. ___________ on _____________ (date) in respect of offence(s) punsihable under sections ________________ mentioned in section 8B and trial is pending against me; or
that though charge was framed against me by the court of ________________ in the case No. _________on _______________ (date) in respect of offence(s) punsihable under sections _____________ mentioned in section 8B, I have since been acquitted of the said chrge by order _____________ (date) (copy enclosed). (Paragraph 22.214.171.124.)
In the light of our recommendation to debar the indepndents, it is necessary to delete the words "that I am contesting this election as an indendent candidate" in Forms 2-A and 2-B.
9.26. For ensuring stability in governance, we have recommended hereinbefore, in chapter II of Part III that any political party which obtains less than 5% of the total valid votes cast in the parliamentary election or a Legislative Assembly election, shall not be entitled to any seats in the Lok Sabha or Legislative Assembly, as the case may be, even if it wins any seat or seats. Such a provision would lead to polarisation among the political parties and to formation of larger political parties by a process of integration or formation of pre-election fronts.
We have also recommend the insertion of denifition of "political party" in the Tenth Schedule to include a pre-election front or pre-election coalition. In such a situation, defection of a member of such constituent party of the pre-election front or of the constituent party as a whole from the pre-election front would be treated as defection attracting the provisions of the Tenth Schedule to the Constitution.
9.26.1. We also recommnd that the Hon'ble Speaker of the Lok Sabha may introduce a new rule, Rule 198A, in the Rules of Procedure and Conduct of Business in the Lok Sabha to the following effect :
Rule 198-A (1) Once a no-confidence motion is taken up for discussion and voted upon as contemplated by sub-rules (3) and (4) of Rule 198, no fresh motion expressing want of confidence in the Council of Ministers shall be permitted to be made for a period of two years from the date of voting upon such motion.
(2) Once a motion expressing confidence in the Council of Minister is made pursuant to the direction of the President, no motion expressing want of confidence in such Council of Ministers shall be permitted to be moved for a period of two years.
(3) No leave shall be granted under Rules 198 to a motion expressing want of confidence in the Council of Ministers, unless it is accompanied by a motion expressing confidence in a named individual. Both the motions shall be considered and deiscussed simultaneously and voted upon. Each member shall have two votes. Unless the motion expressing confidence in a named individual is passed by a majority, the result of the voting upon the motion expressing want of confidence in the Council of Ministers shall not be given effect to, even when it is passed by a majority.
Similar amendemtns may also be made by the Speakers of Legislative Assemblies in the respective Rules of procedure governing the proceddings in their Legislative Assemblies.