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Showing posts with label ias study materials. Show all posts
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Wednesday, December 23, 2015
DISCUSSION ZONE
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Saturday, June 28, 2014
THE REPRESENTATION OF THE PEOPLE ACT
THE REPRESENTATION OF THE PEOPLE ACT
In pursuance of the part XV of the Constitution of India the parliament has enacted the representation of peoples act 1950 and 1951. The RPA Act of 1950 deals with the electoral rolls while RPA 1951 is the detailed provision of the elections.
RPA 1950 Salient features
The Electoral Roll:
1. It is a list of all the people in the constituencies who are registered to vote.
2. It is updated every year to include new people who turned 18 and those who moved into the constituency and exclude those who moved out of the constituency or died.
3. If ones name is not in the roll due to any reason he/she must apply to get his/her name registered in the electoral roll. The updation of the electoral stops during the election campaigns after nomination of the candidates have closed.
RPA 1951 Salient Features
QUALIFICATION AND DISQUALIFICATION TO CONTEST ELECTIONS
(It is interesting to note that the act runs in negative language, i.e. it tells the grounds of disqualification but not necessarily of qualification. )
1. Rajya Sabha: One who is not an elector in any parliamentary constituency is disqualified. (As is clear anyone who is above 18 and registered in electoral roll is an elector so he is elegible for rajya sabha if we read this section without our mind open. Recall that minimum age for Rajya Sabha member is 30. So all electors do not qualify. There are further provisions for eligibility. RPA tells us about disqualification rather than qualification. )
2. Lok Sabha : One who is not a SC/ST is disqualified to contest for seats reserved for SC/ST. One who is not an elector in any of the parliamentary constituency is disqualified. (Again it tells us only the ground of disqualification alone.)
3. For those reserved seats under special provisions of the Constitution for NE states notified areas there is a separate set of disqualifications. Those who are not SC/ST of these particular constituencies can not contest for these seats.
4. State Assemblies: Similar provision for disqualification holds good (The elector thing) except for that these electors must be of that particular state. I mean you can not contest for Haryana assembly if you are not a registered voter in Haryana. In Lok Sabha the All India thing runs.
5. State Legislative Council: The same elector thing, SC/ST thing and elector in the state thing. Also the nominated members should be ordinarily residing in that particular state. So the Governer of Haryana could not nominate RajniKant to Haryana legislative Council if it existed. (Haryana is a unicarmel legislature)
6. Disqualifications on offensive Grounds: Any person who has been held a convict in the offences under Indian Penal Code or Criminal Procedure Code and sentenced for not less than two years will be disqualified from contesting elction during the sentence and for further six years after the sentence. So Mr. Lalu Yadav is on a forced political leave of 5+6=11 years.
7. These offences are elaborately given in the act. I will list them down. Its hard to remember them all but a few must be memorized,
* Offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony
* Offence of bribery
* Offence of undue influence or personation at an election
* Offences relating to rape
* Offence of cruelty towards a woman by husband or relative of a husband
* Offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies
* Practice of "untouchability
* Offence of importing or exporting prohibited goods
* Offence of being a member of an association declared unlawful offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place
* Unlawful activities
* Narcotic drugs and psychotropic substances
* Offence of removal of ballot papers from polling stations offence of booth capturing
* Offence of fraudulently defacing or fraudulently destroying any nomination paper
* Offence of conversion of a place of worship
* Offence of insulting the indian national flag or the constitution of india, preventing singing of national anthem or of insults to national
* Commission of sati
* Terrorism
* Note that if only fine and no service in jail is awarded under these offences still a disqualification of 6 years will carry from the date of award of such fine.
However the person held convicted is free to appeal in a higher court, and as long as the higher court doesnt hold him convict he is innocent, Thats natural law. For this appeal, earlier a time of 3 months was available. This 3 months window has been eliminated by the new ruling of the Supreme Court. On the day, the person is accused he must vacate his seat. See the difference, earlier convicted was disqualified but now even an accused is disqualified. The disqualification carries on until the court declares him innocent. This ruling of the court has started a controversy that political power can be misused to wipe out a potential rival just by lodging an FIR against him. Right or wrong this judgment will give the people of India a clean parliament with no one with a tainted record. We may comprehend some political careers sacrificed for this but a clean parliament is the need of the hour. And it will compel the politicians to remain extremely careful in their conduct which every citizen of the nation wants to see.
1. Disqualification on the ground of corrupt practices : In this section the act says that if a person is found guilty of corrupt practices an authority appointed by central govt will notify the president about this and the president will decide if the person is to be disqualified or not and if yes for how long. This is peculiar section 8A. The president has to obtain the recommendation of election commission in this regard. So this section is to handle unusual conditions. What those condition could be, the act doesnt say, and I dont know either.
2. If a govt servant was dismissed from office on grounds of corruption or disloyality (for exampled an impeached judge) can not contest for 5 years.
3. One holding a govt contract can not contest as long as he holds the contract.
4. One who holds office in any company or organization that has not less than 25% govt share can not contest election as long as he hold this office.
5. If the person fails to lodge account of election expenses in the time limit stipulated by the election commission and has not good reasons for this failure, he will be disqualified. That means he will have to give up his won seat. (only for that election and not further since this is not a grave electoral offense.)
6. All these disqualifications can be removed except the peculiar section 8A thing. (Since the President is involoved and He is a bigger power), by the election commission but the reason of this relaxation must be recorded.
DISQUALIFICATION FROM VOTING
One found guilty of
1. Undue influence or impersonation during voting.
2. Promoting enmity between classes in connection with election.
3. Removal of ballot papers from polling station.
Will be disqualified for 6 years from voting at election. Also those disqualified under the 8A section as told above will be disqualified for the period as mentioned by the President.
These disqualification can be removed by EC but reasons must be recorded. Again EC can not override the 8A order of the President.
NOTIFICATION OF GENERAL ELECTION
1. Rajya Sabha : Since one third of the members retire every two years, a notification is issued by President as recommended by the EC to the electors of rajya sabha. (Lok Sabha MPs) or the MLAs
2. Lok Sabha; a similar notification is issued by the president to call upon all the constituencies to hold elections. This notification can not be issued 6 months prior to the date is expiration of the sitting Lok Sabha. Furthur according to the constitution 6 months can not pass between the last sitting of the last Lok Sabha to the first sitting of the new Lok. sabha.
3. Same for SLA and SLC
ADMINISTRATIVE MACHINERY FOR THE CONDUCT OF ELECTIONS
1. EC can delegate his functions and dutuies to deputy election commissioner or secretary of the election commission to assist him.
2. EC appoint chief electoral officer in each state. Under the EC he will see the conduct of election in his state.
3. The chief electoral officer appoints the district election officer. He is usually the Collector of the district.
4. The distt. El. Ooficer will superwise all election related work in the district and has also to perform those duties as the EC may assign him.
5. The Election Commission nominates an Observer who shall be an officer of Government to watch the conduct of election or elections in a constituency or a group of constituencies and to perform such other functions as may be entrusted to him by the Election Commission. He can stop the counting of the votes if something goes wrong and reports to the EC about this.
6. A govt officer or a local authority is nominated returninig officer by the EC.
7. Similarly an assistant returning officer.
8. It is the duty of the returning officer to do all such acts as may be necessary to conduct the election according to the rules as mentioned by the EC.
9. The district election officer will make the provision of the polling stations with the approval of the EC
10. He will appoint presiding officer for each polling station but not those who are under the influence of any candidates. He will appoint as many pooling officer or officers as he deems necessary. These are people you see when you go to vote. Who check your name, ink your finger etc.
11. These people are deemed on deputation of EC. So their salary for their duty is paid by theEC.
REGISTRATION OF POLITICAL PARTIES
1. Poltical parties is a group of elegible persons. It must make an application to the EC to avail itself the provisions made by the EC for political parties.
2. They can accept contribution offered to it voluntarily by individuals or campanies.
3. They cannot accept contribution from foreign.
4. NRI contribution can be accepted.
5. Any contribution above rs. 20000 will have to be reported to the EC.
CONDUCT OF ELECTIONS
1. Every candidate will pay 10000 for LOK Sabha elections and 5000 for SLA. However SC/ST have to pay 5000 and 2000 respectively.
2. If they can secure more than 1/6 of total votes their security is returned otherwise confiscated.
3. Independent candidate have to be supported by 10 voters to get nominated.
4. The candidates have to disclose their properties, their criminal records date of birth under the RTI act.
5. They can withdraw their nomination by writing to the returning officer.
6. Election Agent and Polling agents of the candidates are people nominated by the candidates to observe the conduct of the election, polling, counting process etc. Their eligibility criteria is the same as those for candidates. The rationale of nominating agents is the assurance of transparency and integrity of the electoral process. If the agents of all the candidates are present at the various stages of the election process the candidates can be assured that the election are conducted without interference, openly and without any favoritism.
DISPUTES
1. All disputes regarding election to Lok Sabha and SLC come under the original jurisdiction of the High Courts.
2. No appeal will be entertained by the court until the whole process of elections is completed
SOME OTHER PRIVISIONS
1. If a member of lok sabha is chosen for Rajya Sabha his seat becomes vacant on the day of such appointment.
2. If a person is choosen in rajya sabha and lok sabha at the same time he will have to inform the secretary of EC which seat he wants to join.
3. If a sitting rajya sabha member is chosen on lok sabha his seat in rajya sabha is deemed vacant.
4. Declaration of assets and liabilities
5. Account of election expenses is to be maintained by every candidate and lodged with the district election officer.
6. Grounds for declaring election to be void.If the High Court is of opinion
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate 1[by an agent other than his election agent], or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any noncompliance with the provisions of the Constitution or of this Act or of any rules or orders, the election will be void and fresh election will have to be conducted.
1. Liquor not to be sold, given or distributed on polling day.
Humble Regards:
The syllabus says salient featuers of the RPA Act. I scanned the 66 pages long bare act with language very hard to understand and squeeze out the points which seem to me form a general study, a lot of points I have left since they will be in the nature of specialized study which we are not supposed to do.
Syllabus says Representation of Peoples Act.
* Two acts- one in 1950 and other 1951
RPA, 1950RPA, 1951
Deals mainly with the matters relating to the preparation and revision of electoral rolls.All matters relating to the actual conduct of elections.
Supplemented by Registration of Electors Rules 1960, made by the Central Government, in consultation with the Election Commission.Supplemented by the Conduct of Elections Rules 1961 framed by the CentralGovernment, in consultation with the Election Commission.
Electors Rules 1960 deal with all the aspects of preparation of electoral rolls, their periodic revision and updating, inclusion of eligible names, exclusion of ineligible names, correction of particulars, etc. These rules also provide for the issue of electoral identity cards to registered electors bearing their photographs at the State cost. These rules also empower the Election Commission to prepare the photo electoral rolls containing photographs of electors, in addition to their other particulars.This Act and the rules make detailed provisions for all stages of the conduct of elections like the issue of writ notification calling the election, filing of nominations, scrutiny of nominations, withdrawal of candidatures, taking of poll, counting of votes and constitution of the Houses on the basis of the results so declared.
All post election matters to resolve doubts and disputes arising out of or in connection with the elections are also dealt in accordance with the provisions of the RPA 1951. Under this Act, all such doubts and disputes can be raised before the High Court of the State concerned, but only after the election is over and not when the election process is still on.
The two recent judgements of Supreme Court on electoral laws to cleanse the politics-
* Lily Thomas vs Union of India - ruled that Section 8(4) of the Representation of the People Act (RPA) was ultra vires since it provide a three-month window to legislators to file an appeal against conviction of crimes.
* Why ultra vires? (Court says once convicted, article 101 will come into picture which disqualifies persons according to provisions of article 102).
* However art. 102 say person is disqualified according to law made by parliament.
* And parliament made RPA according to which person stands disqualified on conviction; so once convicted art.101 will come into picture, thereby nullifying provisions of sec 8(4) (constitution is supreme to ordinary laws).
* But constitutional expert Acharya (former secretary-general of parliament says theres no immediate disqualification)
* Article 101(3) (a) of the constitution which provides that if a member of either house of parliament- becomes subject to any of the disqualifications mentioned in Article 102 (detailed provisions of the article are mentioned below), his seat shall thereupon become vacant.
* Chief Election Commissioner vs Jan Chawkidari - more controversial ruling as it bars those in police custody or under arrest from contesting elections.
The court concluded that section 8(4) of RPA, which defers the date on which the disqualification will take effect, is ultra-vires the constitution because it is inconsistent with articles 101(3)(a) and 190(3)(a).
It is important to note that the court didnt go into the question of whether section 8(4) infringes the equality provision in Article 14.
It is obvious that the second ruling is ripe for misuse-.
* If the view of the Supreme Court is accepted, then a rival politician need only get a false First Information Report (FIR) filed against his political rival and have him sent to police custody or jail to disqualify him.
A large number of criminal cases against politicians, in any case, are of a political nature an outcome of agitation politics, protests, civil disobedience and so on. Even in the past and the present, some of our best law-makers have been part of various civil disobedience and protest movements.
Sections in question: -
1. Section 2(e) defines an elector as a person whose name is entered in the electoral roll of that constituency and who is not subject to any of the disqualifications mentioned in section 16 of the RP Act, 1950. The Supreme Court has relied on the definition of elector, as found in Section 2 (e) of the RPA, and observed that in view of Sections 3, 4, and 5, to be qualified for membership of the legislature; one has to be an elector.
2. Section 8(4) of the RPA had allowed convicted legislators to appeal their conviction and evade disqualification until their appeals were exhausted. This ruling therefore tries to address an anomaly wherein a convicted criminal cannot contest elections, while convicted members of Parliament and legislative assemblies can continue to sit in the legislature for three months from the date of conviction pending the filing of legal appeals.
3. It is difficult to comprehend how the Supreme Court relied on Section 62(5) of the RPA to disqualify persons who are in jail or police custody from standing for elections, given that there is no mention of section 62(5) in the Acts definition of elector. The Act clearly distinguishes a voter and an elector- Section 62(5) only debars a person in jail from voting, not from contesting an election.
4. Section 8 (4) of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution.
5. Under Section 8 (1) (2) and (3) of the Act, the disqualification takes effect from the date of conviction. Thus, there may be several sitting members of Parliament and State Legislatures who have already incurred disqualification by virtue of a conviction covered under Section 8 (1) (2) or (3) of the Act.
Reasons for SC verdict: -
The Supreme Court has given two reasons for its verdict:
* First, it held Section 8(4) to be in violation of Article 101(3)(a), and its corresponding provision for the States, Article 190(3)(a), of the Constitution.
* Article 102(1) of the Constitution states:
A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament
* if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
* if he is of unsound mind and stands so declared by a competent court;
* if he is an undischarged insolvent;
* if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
* if he is so disqualified by or under any law made by Parliament.
* A careful perusal of Article 102 shows there is nothing therein which renders it inconsistent with Section 8(4).
* Second, the SC has held that Parliament had no legislative competence to enact Section 8(4). This reasoning, too, is difficult to accept because Entry 72 to List 1 of the 7th Schedule in the Constitution specifically allows Parliament to legislate on elections to Parliament or the State legislatures and the offices of President and Vice-President and the Election Commission.
Relevance of judgement in decriminalizing politics: -
* 1/3 of parliamentarians and state legislators are accused of serious crimes.
* Politicians- organized crime nexus (booth rigging, capture, fake electors etc).
* The judgement could be seen as the symbol against wider political apathy.
* Even after institutionalized procedures like model code of conduct criminal elements continue to enter legislatures (law breakers becoming law makers).
The judgement now makes it mandatory for the incumbent legislator to vacate his/her seat if convicted of a serious crime.
The judgement, however, is applicable only for prospective convictions and not for sitting legislators who have been convicted but have filed appeals which are pending adjudication.
The judgement is a welcome push for the civil society, the NGOs etc who want to decriminalize politics, bring more transparency and accountability into it like the issue of RTI and political parties. Some jurists say it is judicial over-reach since,
* door is open for the practice of vendetta politics by ruling parties, and
* a by-election to fill a seat vacated by a convict takes time and a government surviving on a wafer-thin majority could be jeopardized. Governments should be allowed to continue until by-elections are held to fill vacancies caused by such disqualifications.
Legislators who have been convicted usually manage to file appeals and these appeals have tended not to reach their final conclusion because of the long delays in the judicial process. In some cases, the delay in justice could directly be attributed to the positions of power occupied by the legislators.
Instead of taking a narrowly legalistic view, courts should also consider the likely practical consequences of their judgments. Above all, in India, appeals drag on for years, and certainly for more than five or six years, which is the tenure of an elected representative.
The Supreme Court recently has agreed to review its judgment, holding that persons in lawful custody whether on conviction in a criminal case or otherwise cannot contest elections.
Politics offers a promising avenue for circumventing justice. While Indias elected representatives do not have formal immunity from prosecution, office-holders can rely on the trappings of office to delay or derail justice. Chief among these is the ability of elected politicians to transfer pesky officials for reasons unrelated to their performance. Some solutions to this awful scenario include,
1. rolling back of transfer raj by the govt.,
2. taking up the electoral reforms promulgated by the election commission-
* any candidate against whom charges have been framed by a court, at least 6 months prior to the election and for an offence punishable by at least 5 years in jail, should be disqualified,
3. police reforms- tenure security and stability,
4. establishment of a special electoral tribunal charged with adjudicating serious criminal cases against political aspirants, for speedy justice, and
5. modern democratic state valuing human rights should try to re-integrate the erring individuals into main stream. This is being done in many developed countries.
SOME SALIENT FEATURES OF RPA
* Qualification for membership of council of states
* Unless he is an elector for a parliamentary constituency in India.
* Qualification for membership of house of people
* A person is not qualified unless
1. In the case of a seat reserved for the SC/ST in any state, he is a member of any SC/ST respectively, whether of that state or of any other state and is an elector for any parliamentary constituency;
2. In case of any other seat he is an elector for any parliamentary constituency.
* Qualification for membership of legislative assembly
* same as above (house of people)
* Qualification for membership of legislative council
* Unless he is an elector for any assembly constituency in that state.
* In the case of seat filled by nomination- he should be ordinarily resident in that state.
* Disqualification on conviction of offences {section (8)}
* A person shall be disqualified where the convicted person is sentenced to only fine for a period of 6 years from the date of conviction or imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of 6 years since his release, if he/she is convicted of an offence punishable under IPC, Protection of Civil Rights etc.
* A person convicted of any offence and sentenced to imprisonment for not less than 2 years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of 6 years since his release.
* SECTION 8(4): - Gives exemption to sitting MLAs & MPs from being disqualified immediately on conviction; until 3 months have elapsed from that date, or if within that period an appeal or application for revision is brought in or until that appeal/application is disposed off by the court.
* Disqualification on grounds of corrupt practices
* The case of every person found guilty of a corrupt practice shall be submitted to the president for the determination of question as to whether such persons shall be disqualified and if so, for what period provided that the period for which the person may be disqualified shall in no case exceed 6 yrs from the date on which the orders takes effect.
* Any person who stand disqualified may submit a petition to the president for removal of such disqualification for remaining time period.
* Before giving his decision on any petition, the president shall obtain the opinion of Election Commission on such question or petition and shall act according to such opinion.
* Disqualification for dismissal for Corruption or Disloyalty.
* A person, who having held an office under the GoI or any state has been dismissed for corruption or for disloyalty to the state should be disqualified for a period of 5 yr from the date of such dismissal.
* Disqualification for Govt Contracts
* Disqualification for office under Govt company
* A person shall be disqualified if he is a managing agent or manager or secretary of any company, corporation of which govt has not less than 25% share.
* Disqualification for failure to lodge account of election expenses.
* If he fails to submit it, disqualified for 3 yrs.
* Removal or Reduction of period of disqualification.
* The Election Commission may remove any disqualification under this (except under dismissal for corruption / disloyalty) or reduce the period of such disqualification (from appeal, not suo-moto)
* Disqualification arising out of conviction and corrupt practices.
* If any person is convicted of an offence punishable under the IPC, he shall for a period of 6 yrs from the date of conviction is disqualified for voting at any election. The Election Commission may remove any disqualification under this clause.
Time to think: -
1. Whether it is morally and socially good to bar people from voting for the reason that they are being convicted?
2. Does it amount to their isolation from normal process of social organisation?
3. Elector v/s voter
* Two acts- one in 1950 and other 1951
RPA, 1950RPA, 1951
Deals mainly with the matters relating to the preparation and revision of electoral rolls.All matters relating to the actual conduct of elections.
Supplemented by Registration of Electors Rules 1960, made by the Central Government, in consultation with the Election Commission.Supplemented by the Conduct of Elections Rules 1961 framed by the CentralGovernment, in consultation with the Election Commission.
Electors Rules 1960 deal with all the aspects of preparation of electoral rolls, their periodic revision and updating, inclusion of eligible names, exclusion of ineligible names, correction of particulars, etc. These rules also provide for the issue of electoral identity cards to registered electors bearing their photographs at the State cost. These rules also empower the Election Commission to prepare the photo electoral rolls containing photographs of electors, in addition to their other particulars.This Act and the rules make detailed provisions for all stages of the conduct of elections like the issue of writ notification calling the election, filing of nominations, scrutiny of nominations, withdrawal of candidatures, taking of poll, counting of votes and constitution of the Houses on the basis of the results so declared.
All post election matters to resolve doubts and disputes arising out of or in connection with the elections are also dealt in accordance with the provisions of the RPA 1951. Under this Act, all such doubts and disputes can be raised before the High Court of the State concerned, but only after the election is over and not when the election process is still on.
The two recent judgements of Supreme Court on electoral laws to cleanse the politics-
* Lily Thomas vs Union of India - ruled that Section 8(4) of the Representation of the People Act (RPA) was ultra vires since it provide a three-month window to legislators to file an appeal against conviction of crimes.
* Why ultra vires? (Court says once convicted, article 101 will come into picture which disqualifies persons according to provisions of article 102).
* However art. 102 say person is disqualified according to law made by parliament.
* And parliament made RPA according to which person stands disqualified on conviction; so once convicted art.101 will come into picture, thereby nullifying provisions of sec 8(4) (constitution is supreme to ordinary laws).
* But constitutional expert Acharya (former secretary-general of parliament says theres no immediate disqualification)
* Article 101(3) (a) of the constitution which provides that if a member of either house of parliament- becomes subject to any of the disqualifications mentioned in Article 102 (detailed provisions of the article are mentioned below), his seat shall thereupon become vacant.
* Chief Election Commissioner vs Jan Chawkidari - more controversial ruling as it bars those in police custody or under arrest from contesting elections.
The court concluded that section 8(4) of RPA, which defers the date on which the disqualification will take effect, is ultra-vires the constitution because it is inconsistent with articles 101(3)(a) and 190(3)(a).
It is important to note that the court didnt go into the question of whether section 8(4) infringes the equality provision in Article 14.
It is obvious that the second ruling is ripe for misuse-.
* If the view of the Supreme Court is accepted, then a rival politician need only get a false First Information Report (FIR) filed against his political rival and have him sent to police custody or jail to disqualify him.
A large number of criminal cases against politicians, in any case, are of a political nature an outcome of agitation politics, protests, civil disobedience and so on. Even in the past and the present, some of our best law-makers have been part of various civil disobedience and protest movements.
Sections in question: -
1. Section 2(e) defines an elector as a person whose name is entered in the electoral roll of that constituency and who is not subject to any of the disqualifications mentioned in section 16 of the RP Act, 1950. The Supreme Court has relied on the definition of elector, as found in Section 2 (e) of the RPA, and observed that in view of Sections 3, 4, and 5, to be qualified for membership of the legislature; one has to be an elector.
2. Section 8(4) of the RPA had allowed convicted legislators to appeal their conviction and evade disqualification until their appeals were exhausted. This ruling therefore tries to address an anomaly wherein a convicted criminal cannot contest elections, while convicted members of Parliament and legislative assemblies can continue to sit in the legislature for three months from the date of conviction pending the filing of legal appeals.
3. It is difficult to comprehend how the Supreme Court relied on Section 62(5) of the RPA to disqualify persons who are in jail or police custody from standing for elections, given that there is no mention of section 62(5) in the Acts definition of elector. The Act clearly distinguishes a voter and an elector- Section 62(5) only debars a person in jail from voting, not from contesting an election.
4. Section 8 (4) of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution.
5. Under Section 8 (1) (2) and (3) of the Act, the disqualification takes effect from the date of conviction. Thus, there may be several sitting members of Parliament and State Legislatures who have already incurred disqualification by virtue of a conviction covered under Section 8 (1) (2) or (3) of the Act.
Reasons for SC verdict: -
The Supreme Court has given two reasons for its verdict:
* First, it held Section 8(4) to be in violation of Article 101(3)(a), and its corresponding provision for the States, Article 190(3)(a), of the Constitution.
* Article 102(1) of the Constitution states:
A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament
* if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
* if he is of unsound mind and stands so declared by a competent court;
* if he is an undischarged insolvent;
* if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
* if he is so disqualified by or under any law made by Parliament.
* A careful perusal of Article 102 shows there is nothing therein which renders it inconsistent with Section 8(4).
* Second, the SC has held that Parliament had no legislative competence to enact Section 8(4). This reasoning, too, is difficult to accept because Entry 72 to List 1 of the 7th Schedule in the Constitution specifically allows Parliament to legislate on elections to Parliament or the State legislatures and the offices of President and Vice-President and the Election Commission.
Relevance of judgement in decriminalizing politics: -
* 1/3 of parliamentarians and state legislators are accused of serious crimes.
* Politicians- organized crime nexus (booth rigging, capture, fake electors etc).
* The judgement could be seen as the symbol against wider political apathy.
* Even after institutionalized procedures like model code of conduct criminal elements continue to enter legislatures (law breakers becoming law makers).
The judgement now makes it mandatory for the incumbent legislator to vacate his/her seat if convicted of a serious crime.
The judgement, however, is applicable only for prospective convictions and not for sitting legislators who have been convicted but have filed appeals which are pending adjudication.
The judgement is a welcome push for the civil society, the NGOs etc who want to decriminalize politics, bring more transparency and accountability into it like the issue of RTI and political parties. Some jurists say it is judicial over-reach since,
* door is open for the practice of vendetta politics by ruling parties, and
* a by-election to fill a seat vacated by a convict takes time and a government surviving on a wafer-thin majority could be jeopardized. Governments should be allowed to continue until by-elections are held to fill vacancies caused by such disqualifications.
Legislators who have been convicted usually manage to file appeals and these appeals have tended not to reach their final conclusion because of the long delays in the judicial process. In some cases, the delay in justice could directly be attributed to the positions of power occupied by the legislators.
Instead of taking a narrowly legalistic view, courts should also consider the likely practical consequences of their judgments. Above all, in India, appeals drag on for years, and certainly for more than five or six years, which is the tenure of an elected representative.
The Supreme Court recently has agreed to review its judgment, holding that persons in lawful custody whether on conviction in a criminal case or otherwise cannot contest elections.
Politics offers a promising avenue for circumventing justice. While Indias elected representatives do not have formal immunity from prosecution, office-holders can rely on the trappings of office to delay or derail justice. Chief among these is the ability of elected politicians to transfer pesky officials for reasons unrelated to their performance. Some solutions to this awful scenario include,
1. rolling back of transfer raj by the govt.,
2. taking up the electoral reforms promulgated by the election commission-
* any candidate against whom charges have been framed by a court, at least 6 months prior to the election and for an offence punishable by at least 5 years in jail, should be disqualified,
3. police reforms- tenure security and stability,
4. establishment of a special electoral tribunal charged with adjudicating serious criminal cases against political aspirants, for speedy justice, and
5. modern democratic state valuing human rights should try to re-integrate the erring individuals into main stream. This is being done in many developed countries.
SOME SALIENT FEATURES OF RPA
* Qualification for membership of council of states
* Unless he is an elector for a parliamentary constituency in India.
* Qualification for membership of house of people
* A person is not qualified unless
1. In the case of a seat reserved for the SC/ST in any state, he is a member of any SC/ST respectively, whether of that state or of any other state and is an elector for any parliamentary constituency;
2. In case of any other seat he is an elector for any parliamentary constituency.
* Qualification for membership of legislative assembly
* same as above (house of people)
* Qualification for membership of legislative council
* Unless he is an elector for any assembly constituency in that state.
* In the case of seat filled by nomination- he should be ordinarily resident in that state.
* Disqualification on conviction of offences {section (8)}
* A person shall be disqualified where the convicted person is sentenced to only fine for a period of 6 years from the date of conviction or imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of 6 years since his release, if he/she is convicted of an offence punishable under IPC, Protection of Civil Rights etc.
* A person convicted of any offence and sentenced to imprisonment for not less than 2 years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of 6 years since his release.
* SECTION 8(4): - Gives exemption to sitting MLAs & MPs from being disqualified immediately on conviction; until 3 months have elapsed from that date, or if within that period an appeal or application for revision is brought in or until that appeal/application is disposed off by the court.
* Disqualification on grounds of corrupt practices
* The case of every person found guilty of a corrupt practice shall be submitted to the president for the determination of question as to whether such persons shall be disqualified and if so, for what period provided that the period for which the person may be disqualified shall in no case exceed 6 yrs from the date on which the orders takes effect.
* Any person who stand disqualified may submit a petition to the president for removal of such disqualification for remaining time period.
* Before giving his decision on any petition, the president shall obtain the opinion of Election Commission on such question or petition and shall act according to such opinion.
* Disqualification for dismissal for Corruption or Disloyalty.
* A person, who having held an office under the GoI or any state has been dismissed for corruption or for disloyalty to the state should be disqualified for a period of 5 yr from the date of such dismissal.
* Disqualification for Govt Contracts
* Disqualification for office under Govt company
* A person shall be disqualified if he is a managing agent or manager or secretary of any company, corporation of which govt has not less than 25% share.
* Disqualification for failure to lodge account of election expenses.
* If he fails to submit it, disqualified for 3 yrs.
* Removal or Reduction of period of disqualification.
* The Election Commission may remove any disqualification under this (except under dismissal for corruption / disloyalty) or reduce the period of such disqualification (from appeal, not suo-moto)
* Disqualification arising out of conviction and corrupt practices.
* If any person is convicted of an offence punishable under the IPC, he shall for a period of 6 yrs from the date of conviction is disqualified for voting at any election. The Election Commission may remove any disqualification under this clause.
Time to think: -
1. Whether it is morally and socially good to bar people from voting for the reason that they are being convicted?
2. Does it amount to their isolation from normal process of social organisation?
3. Elector v/s voter
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