Introduction
The issue of electoral reforms with all its
connotations has been receiving attention of the successive governments and of
the Election Commission of India for some time now. The importance, nature and
complexity of the issues involved in the subject have led to the engagement of
both, government as well as the civil society. A cursory glance at several
reports and recommendations made by various bodies concerned with the subject
reveals the contentious dimensions of some of the issues. A divergence of views further underlines the
need to engage in identifying the direct and indirect connection between these
issues and the constitutional obligations of strengthening democracy and the
rule of law. The principle of individual
and collective accountability of the elected representatives and political
parties in this regard is also an important concern.
The
Law Commission of India (hereinafter referred to as “the Commission”) has
attempted to prepare this Consultation Paper to obtain feedback from various
stakeholders for enhancement of the quality of democracy, and greater
participation of citizens in the process of electoral reforms and democratic
process.
The
Framework
While
preparing this Consultation Paper, the Commission was alive to the varied
dimensions of reforms, namely, specific legislative amendments and the broader
fundamental, political and constitutional principles touching upon democracy
and greater effective and meaningful participation of all sections of society
in the democratic process. It is
significant that the current realities which impede the effective and
meaningful participation of all sections of the society in the democratic
process must clearly be grasped and stated.
Such a statement will be akin to charting a road map for enacting
suitable legislative measures. It would
be useful to remember in this context that the subject or domain of electoral
reforms with its direct social, political and economic connotations is not like
any other subject of legislative changes.
These observations are made to secure clarity and consensus on the
issues identified, and to offer new insight in the context of emerging social
and political developments in the country as well as to impress upon the course
of deliberations and consultations to follow with the need not to traverse the
process of reports and recommendations already available.
The
Consultation Paper has two parts. The
first part provides a brief summary of agreements, consensus and an outline of
the recommendations on which, there is a serious divergence of views, and the
second part contains the relevant issues. An attempt has been made to
comprehend and enumerate various issues which emerge from the materials
referred to above, in the perceived order of priority.
The
following framework statements may be kept in view for the purpose of focus and
direction:
(a)
As stated in the Preamble to the Constitution of India, it is designed to
secure to all citizens of India: Justice, social, economic and political;
Liberty of thought, expression, belief, faith and worship; Equality of status
and of opportunity; and to promote among them all Fraternity, assuring the
dignity of the individual and the unity and integrity of the nation.
(b)
Sovereignty, democracy, republicanism, secularism, federalism, parliamentary governance with a
multi-party system, and the principles of free and fair elections are amongst
the basic features of the constitution.
(c) Legislative enactments and functioning of
various institutions should be so designed so as to bolster the cause of the
basic features of the Constitution.
(d) Factors which impede or obstruct the process
of protection and enhancement of the basic features will have to be clearly
identified and progressively eliminated.
(e) At a complementary level factors which
enable free and effective participation of all citizens and sections of society
need to be identified and supported through legislative measures.
It
is equally important to bear in mind that many a times, for being in power, the
democratic process is distorted by the conduct of the elements amongst
political parties, elected representatives and different sections of society,
who try to influence the process of governance for purely partisan ends. That is why, over a period of time,
regulation of the conduct of political parties, election expenditure and
corrupt practices in the conduct of elections attracted the attention of the civil
society and of the Government. While
some constructive steps have been taken through significant amendments to the
Representation of the People Act, 1951 (hereinafter referred to
as “the Act”), these reforms have failed to keep up a consistent pace with the
growth and strengthening of the democratic values. Issues pertaining to
election malpractices seem to come into the limelight in times of brazen and
gross violations of procedures but soon fade into oblivion. Therefore, a review
of the laws and procedures in light of new developments and complexities is
necessary.
The
main area of concern relates to what is described as ‘criminalization of
politics’. Fitness of a candidate in all respects to contest elections can thus
be seen as connected with enhancement of the democratic process, free and fair
elections and the rule of law. The need
to take the law forward on the candidate disqualification issue is thus long
felt. The cleavage of opinion available
by now, broadly suggests three models relating to disqualification. Under the
first existing model, disqualification is triggered upon conviction. Under the
second model, disqualification would be triggered when charges are framed by
the court with respect to offences enumerated in Section 8 of the
Act.
Through
deliberations over the multitude of opinions received, the Commission has
noticed that suggestions pertaining to decriminalization of politics vacillate
between the above two extremes: disqualifying a candidate at the stage of
framing of charges or only on final conviction.
Under the present scheme of Section 8 of the Act, disqualification
triggers on conviction for the offences enumerated therein, which requires
proof beyond reasonable doubt. Concern
has been raised that for preserving the integrity of the election process,
there is need to travel beyond the domain of criminality and to evaluate the
fitness of a candidate on the touchstone of certain enumerated standards. This
can be called the third model. Such an
approach, it is believed, would be a significant step in the direction of
enabling and facilitating the infusion of new standards as regards nomination
of candidates and transparency and accountability of political parties.
It
has been suggested that there is a need to have an independent adjudicatory
body for the purpose on the lines of a quasi-judicial tribunal, which will
pronounce with respect to disqualification on the basis of petitions alleging
misconduct by the candidate. Misconduct may have to be defined and enumerated.
The said body may evolve its own set of parameters to determine the question of
disqualification as also to curtail frivolous and motivated complaints with
relaxed standards of locus standi.
In
the third model as stated above, disqualification will follow upon the
declaration by such independent adjudicatory body. Such declaration shall be with reference to
standards of conduct in public life and on the basis of ‘preponderance of
probability’ and not ‘proof beyond reasonable doubt’.
The
process of elections shows a symbiotic relationship with the fourth estate of
society – the media, which performs the crucial function of dispensation of
information about candidates and about parties.
It is generally felt that this symbiosis is being abused through a
phenomenon popularly referred to as ‘paid news’, which is affecting the vitals of our democratic polity.
It is believed that the present institutional set up lacks teeth to
curtail this malpractice. There is also
a view that the news channels owned or controlled by the political parties or
candidates or vested interests engage in prejudiced reporting that affects free
and fair election. This concern needs
consideration keeping in view the right to free speech and expression in the
context of election.
The
election system comprises a complex web of different kind of nuances – legal,
political, economic, social, religious, ethical and moral. All these nuances influence each other
through close inter-linkages and inter-dependences. That is why – a subject like ‘Electoral
Reforms’ necessarily requires developing a deeper understanding, diagnosis and
appreciation of these inter-linkages.
The nature of complexities involved makes the job of suggesting reforms
quite challenging. No single aspect of
the election process can be looked at in isolation from others. For example,
political dimensions of elections cannot be separated from their economic or
ethical dimensions and vice-versa.
While appreciating the tediousness of the task, the Commission is of the
view that most, if not all, of these aspects, though interlinked, display a
strong interaction with law. There are
areas of these aspects where law either interacts or needs to interact with
these areas more closely. There is need
for law to influence, impact and, if need be, to regulate some of these
areas. Law intersects methods,
processes, economics, politics and ethics as well as moral dimensions of
directions in the election process.
Thus, the focus of the Commission is to identify those areas and aspects
of different nuances of the election system where law should play a prominent
role.
Hence,
the Commission proposes to focus largely on issues such as
disqualifications/qualifications of those seeking election, or disqualification
of candidates already elected; modes, methods and quantum of funding of
elections; transparency, accountability and sources of spending by political
parties and their respective candidates during elections; regulations and the
extent of such regulations dealing with moral and ethical conduct of political
parties or candidates participating in elections.
Issues
for consideration
Decriminalization
of Politics and Disqualification of Candidates
(i) Whether the
existing provisions (Constitutional or Statutory) relating to disqualification
to contest elections need to be amended?
(ii) Whether
disqualification should be triggered upon conviction, as it existstoday, or
upon framing of charges by the Court or upon presentation of report by the
Investigating Officer under Section 173 of the Code of Criminal
Procedure, 1973?
(iii) Whether, in
addition to the existing scheme of disqualifications, a new statutory provision
needs to be inserted for evaluation of fitness of a candidate by an independent
body?
(iv) If yes,
what standards of public life need to be enumerated for the purpose of
determining the fitness of a candidate?
Need
to strengthen the provisions relating to the period of disqualification
(i) Whether the
existing provisions relating to disqualification need to be amended?
(ii) Whether
certain offences, so far not included, ought to be included in law for the
purpose of disqualification?
(iii) In what
manner the procedure for implementing the provisions relating to
disqualification be strengthened?
State
funding of election expenses and regulation of conduct of Political Parties
(i) Whether
there should at all be State funding of elections of a candidate or political
party?
(ii) If yes,
what should be the criteria and quantum of funding?
(iii) In what
form should such funding and its accountability be provided for?
Donation
(i) Whether the
existing provisions with regard to voluntary donations to political parties
need to be amended?
(ii) If yes,
what mechanism should be developed to ensure accuracy and transparency in the
process of giving and taking of donations?
False
Affidavits
(i) Whether
filing of a false affidavit under Section 125A of the Act should be a
ground for disqualification?
(ii) If yes,
what mode and mechanism needs to be provided for adjudication on the veracity
of the affidavit?
Electronic
and Print Media
(i) How can the
integrity of election be protected from being affected by the impact of ‘paid
news’?
(ii) What measures
need to be taken within the constitutional framework of free speech, where
print or electronic media owned or controlled by political parties, candidates
or vested interests, directly or indirectly, broadcast prejudiced news in such
a manner so as to influence free and fair elections ?
(iii) Whether any
restriction on governmental advertisements highlighting its achievements for a
period of six months prior to the date of expiry of the term of the House
should be imposed?
(iv) Whether violation
of such restrictions or prohibitions be made punishable?
Enhancement
of punishment for electoral offences
(i) Whether the
existing scheme of electoral offences and the punishments needs to be reviewed?
(ii) If yes,
what changes seem appropriate?
Adjudication
of Election Disputes
(i) Whether the
existing scheme of adjudication of election disputes deserves a fresh
examination including timely disposal of such cases?
(ii) If yes,
what kind of new arrangement should be made for speedy disposal of election
disputes?
Other
issues
(i) Whether law
should be amended to provide that a person shall not contest from more than one
constituency at a time?
(ii) Whether the
official limit of the expenditure incurred on campaigning during the period of
election needs to be reviewed, in light of increase in the cost/price index?
(iii) Whether
furnishing of incomplete, false or inaccurate particulars of election expenses
should be a ground for disqualification?
Besides,
the issues raised in this consultation paper, suggestions are invited from all
stakeholders on any other issue which may be considered relevant to the subject
of electoral reforms.
कोई टिप्पणी नहीं:
एक टिप्पणी भेजें