Consultation Paper on Electoral
Reforms
Following is the text of the
‘Consultation Paper on Electoral Reforms’ that has been issued by the 20th
Law Commission of India on May 31, 2013. The Commission has invited suggestions
on it till June 30, 2013 from all the stakeholders and the Indian public at
large :
1. Introduction
1.1 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.
2. The
Framework
2.1 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.
2.2 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.
2.3 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.
2.4 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.
2.5
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.
2.6
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.
2.7 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.
2.8 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’.
2.9 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.
2.10 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.
2.11 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.
3. Issues
for consideration
3.1 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 exists today, 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?
3.2 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?
3.3 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?
3.4
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?
3.5 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?
3.6
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?
3.7 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?
3.8 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?
3.9
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?
4. 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.
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