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PART I
BACKGROUND OF ELECTORAL REFORMS
| CHAPTER I | INTRODUCTION |
| CHAPTER II | RELEVANT LEGISLATIVE PROVISIONS |
| CHAPTER III | BACKGROUND OF THE SUBJECT UNDERTAKEN AND COMMISSION’S WORKING PAPER |
| CHAPTER IV | GERMAN LAW ON POLITICAL PARTIES |
PART II
VIEWS OF POLITICAL PARTIES AND INTERESTED PERSONS OBTAINED IN SEMINAR
PART III
ANALYSIS OF VIEWS AND COMMISSION’S CONCLUSIONS
PART IV
| CHAPTER I | THE PROPOSAL TO DELETE EXPLANATION 1 TO SECTION 77 |
| CHAPTER II | INSERTION OF SECTION 78A (MAINTENANCE, AUDIT AND PUBLICATION OF ACCOUNTS BY POLITICAL PARTIES) |
| CHAPTER III | STATE FUNDING |
PART V
PROPOSAL REGARDING FRAMING OF CHARGES BY COUNTS AS A NEW GROUND FOR DISQUALIFICATION
PART VI
PART VII
NEED FOR URGENT MEASURES TO INSTIL STABILITY IN GOVERNANCE AND FOR IMPROVING THE ELECTORAL SYSTEM
| CHAPTER I | STABILITY IN GOVERNANCE |
| CHAPTER II | MEASURES FOR IMPROVING THE ELECTORAL SYSTEM |
PART VIII
AN ALTERNATIVE METHOD OF ELECTION
PART IX
LAW COMMISSION OF INDIA
ONE HUNDRED SEVENTIETH REPORT
ON
REFORM OF THE ELECTORAL LAWS
MAY, 1999
D.O. No.6(3)(35)/95-LC(LS) 29/05/99/09.06.99
Dear Shri Ram Jethmalani,
I am forwarding herewith the 170th report on the
"Reform of the Electoral Laws."
2. The Ministry of Law, Justice and Company Affairs,
Government of India had addressed a letter dated 2/11/95,
requesting the then Law Commission to undertake a
comprehensive study of the measures required to
expedite
the hearing of the election petitions. On 3rd August,
1998, a reminder was sent to and received
by the present
Law Commission. Even some time before the receipt of the
letter dated 3rd August, 1998,
the Commission had suo motu
undertaken a thorough review of the Representation of the
People Act, 1951 including
provisions relating to hearing
of election petitions. The underlying objective was to
make the electoral
process more fair, transparent and
equitable. The effort was also to reduce the several
distortions
and evils that had crept into the Indian
electoral system, to identify the areas where the legal
provisions required strenthening and improvement and to
suggest the requisite measures in that behalf.
Accordingly, the Law Commission prepared a working paper,
to which three draft Bills were also enclosed.
One Bill
pertained to amending the Constitution of India, the other
for amending the Representation of People
Act, 1951 and the
third to amend the Indian Penal Code.
3. The salient features of the working paper included
inter-alia, introduction of List System, Amendment
to the
Tenth Schedule to the Constitution of India, curtailing the
expenditure on elections, amendment
of section 8 of the
Representation of the People Act, enhancement of punishment
for electoral offences, measures
to ensure expenditious
disposal of election petitions by the High Court, amendment
of section 97 (1) of
the R.P. Act, 1951.
4. The working paper prepared by the Law Commission
was communicated to all
the recognised political parties,
both at the national and state level, the Houses of
Parliament,
the State Legislatures, to the High Court, Bar
Associations, Election Commission, prominent media
personalities, associations and organisations interested in
electoral reforms and many other persons. A large number
of responses were received from parties, persons,
organisations, associations
and individuals.
The Law Commission also held four
seminars to elicit informed opinion and views of the
political
parties and responsible members of the public.
The first seminar was held on 14th November, 1998 at the
India International Centre, the second seminar was held at
Thiruvananthapuram, the third seminar was held at Bangalore
in the premises of the National Law School of India
University and finally a National Seminar on
Electoral
Reforms was held at New Delhi on 23rd-24th January, 1999 at
Vigyan Bhavan, in association with
the Bar Council of
India. Many eminent personalities including the Hon'ble
Prime Minister participated
in the said seminar and
projected their views.
5. After thoroughly analysing the views obtained from
various quarters, the Commission has prepared this report
on electoral reforms. The report recommends
various
measures which are essential to make our electoral system
more representative, fair and transparent,
to strengthen
our democracy, to arrest and reverse the prcess of
proliferation and splintering of
political parties and to
introduce stability in our governance. With a view to
achieve the said objectives,
we have suggested inclusion of
a chapter regulating the formation and functioning of
political parties,
particularly with a view to ensure
internal democracy. The Commission has examined in-depth
the necessity
of introducing the List System in the country
and has made recommendations accordingly. The law of
defections
contained in the Tenth Schedule to the
Constitution has also been revised; it is now proposed that
a pre-election front/coalition of political parites should
be treated as a "political party" for the purposes
of the
Tenth Schedule. The Commission has also suggested that any
political party which receives less
than 5% of the total
valid votes cast in the general election to the Lok Sabha
or to a State Legislative
Assembly, as the case may be,
shall not be entitled to any seat in the Lok
Sabha/Legislative
Assembly, even if it wins any seat(s).
The Commission has also opined that the time is now ripe
for barring
indepndent candidates from contesting elections
for Lok Sabha and Legislative Assemblies and has made
recommendations accordingly. The reasons for these several
measures have been stated elaborately in our Report.
6. The Commission has also reiterated its proposal to
delete Explanation-I to section 77(1) of the
R.P. Act,
1951, which has been strongly criticised in several
judgements of the Supreme Court and
all discerning persons.
We have also recommended enactment of provisions requiring
the political parties
to maintain accounts, have them
audited and file them before the election Commission. On
State Funding
of political parties, the Commission has
reiterated the recommendations in the Inderjit Gupta
Committee
report subject to certain reservations set out in
paragraph 4.3.4. of our Report. Similarly provisions are
in vogue in several other democratic countries.
7. The Commission has also recommended that in case of
electoral offences and certain other serious offences,
framing of a charge by the Court should itslef be
a ground
of disqualification in addition to conviction. It has
reiterated several other proposals set
out in working paper
except with regard to raising deposits in the case of
independent candidates.
The raising of deposits for
independents is unnecessary in view of our other
recommendations
to bar the independents altogether and
permitting only political parties (whether recognised or
not)
to contest elections subject to the requirement of
obtaining 5% of the total valid votes cast to enable them
to get a seat in Lok Sabha/State Assembly.
8. The Commission has, with a view to check false
complaints, proposed to amend the relevant provisions of
the Criminal Procedure Code.
9.
In the interest of transparency, we have also
suggested provisions making it obligatory upon every
candidate to declare the assets possessed by him or her or
by his/her spouse and dependent relations and
the
particulars regarding criminal cases pending against
him/her, in the nomination paper itself.
10. We have also suggested measures for ensuring
stability of governments. One of the measures
suggested is
a new rule, Rule 198A in the Rules of Procedure and Conduct
of Business in Lok Sabha. We have
stressed the necessity
of having one election once in five years for Lok Sabha as
well as State Assemblies
and made some suggestions in that
behalf.
11. We have also set out the desirability of adopting
the rule requiring that ony a candidate obtaining 50%+1
votes will be declared elected and the holding
of a
"run-off" election wherever necessary. The concept of
negative vote also has been discussed
and recommended for
consideration.
12. The Commission is of the considered view that there
is urgent and crying necessity to implement the
afore-mentioned measures to reform the electoral system
and
to strengthen the democracy in our country.
With regards,
Yours sincerely,
(B.P. JEEVAN REDDY)
Shri Ram Jethmalani,
Minister for Law, Justice &
Company Affairs,
Shastri Bhavan,
New Delhi.
PART I
Background of Electoral Reforms
CHAPTER I
INTRODUCTION
1.1.1. The preamble to be Constitution of India declares
that the people of India
have resolved to constitute India
into a sovereign democratic republic with the four-fold
objective, namely,
to secure to all its citizens, 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. As
would be evident from the provisions in Part V and Part
VI
of the Constitution, we have established for ourselves a
parliamentary form of government patterned on
the British
model. In a parliamentary democracy, there is no formal
separation between the Parliament
and the political
executive (Council of Ministers). The political executive
is a part and parcel of
the Parliament and is drawn from
it. The party or the group of parties which has a majority
in the lower
House or which enjoys the confidence of the
lower House, is invited by the President to form the
government.
In other words, in a parliamentary democracy,
the political executive is not elected as such by the
people. Even the President, the titular Head of the State
is not elected by the people directly but by the Members
of
the Parliament and the State Legislatures. It is for this
reason that the Supreme Court has held
repeatedly even
before the enactment of the Constitution (Forty-Second)
Amendment Act, 1976, in Ram
Jawaya Kapur v. State of
Punjab (AIR 1955 SC 549) and in Samsher Singh v. State of
Punjab (AIR 1974
SC 2192) that the position of the
President under our Constitution is akin to the British
Monarch.
In other words, he is a constitutional head of
the State. The real governing power vests in the political
executive. Similar is the position in the States. The
system obtaining in this country is wholly different
from
the one obtaining in the United States of America where the
executive, namely, the President is elected
directly by the
people just as the Legislature (Congress) is elected by the
people directly in a separate election.
In such a system
of government, the governing power is distributed between
the President and the Congress
and the political executive
is not drawn from the Legislature whereas in a
parliamentary form
of government like ours, the political
executive (Council of Ministers) is drawn from Parliament
and is
answerable to the Parliament for exercise of its
powers.
1.1.2. Whether in a parliamentary
form of government or a
Presidential form, indeed in every democracy, the process
of election should
be free, fair and equitable.
Fortunately, our Constitution and the Representation of the
People Act,
1950 and Representation of the People Act, 1951
to seek to provide for a free and fair election but
problems have been arising in this regard on account of
division in our polity on the basis of religion, caste,
language, region and race. [Free and fair elections are
the very foundation of democratic institutions
(P.R.
Belagali v. B.D. Jatti, AIR 1971 SC 1348; Indira Nehru
Gandhi v. Raj Narain, AIR 1975 SC 2299;
and Mohinder Singh
Gill v. The Chief Election Commissioner, AIR 1978 SC
851)]. However there has
been a steady deterioration in
the standards, practices and pronouncements of the
political class,
which fights the elections. Money-power,
muscle-power, corrupt practices and unfair means are being
freely
employed to win the elections. Over the years,
several measures have been taken by Parliament to amend the
laws relating to elections with a view to check the
aforementioned forces. This report, which has
been
prepared after extensive consultations, is a step in the
said process. It is hoped that Parliament
will take prompt
action to give them legislative imprimatur.
CHAPTER II
Relevant Legislative Provisions
1.2.1. Part XV of the Constitution deals with elections.
It contains six articles viz.,
articles 324 to 329.
Article 324 declares that the superintendence, direction
and control of the preparation
of electoral rolls for, and
the conduct of, all elections to Parliament and to the
Legislature of every
State and of elections to the offices
of President and Vice-President held under the
Constitution,
shall be vested in the Election Commission.
Article 325 declares that there shall be one general
electoral
roll for every parliamentary constituency for
election to either House of Parliament or to the House or
either either House of the Legislature of a State and that
no person shall be ineligible for inclusion in any
such
roll or claim to be included in any special electoral roll
for any such constituency on grounds only
of religion,
race, caste, sex or any of them. This article read with
article 326 confers a right upon
every citizen of this
country to be included in the electoral roll provided he
has completed 18 years
of age on the specified date and is
not otherwise disqualified under any of the provisions of
the Constitution
or any law made by Parliament or the
appropriate Legislature. Article 327 empowers Parliament
to provide
by law with respect to all matters relating to,
or in connection with, elections to either House of
Parliament or to the Houses of either House of the
Legislature of a State including the preparation
of
electoral rolls, the delimitation of constituencies and all
other matters necessary for securing the due
constitution
of such House or Houses. This power, the article says
clearly, can be exercised by Parliament
from time to time
subject to the provisions of the Constitution. Article 328
confers a similar power upon
the Legislature of a State in
so far as a provision in that behalf is not made by
Parliament. Article
329 creates a bar to interference by
courts in electoral matters. Clause (a) declares that the
validity
of any law relating to the delimitation of the
constituencies or the allotment of seats to such
constituencies, made or purporting to be made under article
327 or 328 shall not be called in question in any court.
Clause (b) declares that no election to either House of
Parliament or to the House or either House of
Legislature
of a State shall be called in question except by an
election petition presented to prescribed
authority and in
the prescribed manner.
1.2.2. Pursuant to article 325 to 327, Parliament
has
enacted the Representation of the People Act, 1950 and
Representation of the People Act, 1951 (besides
certain
other minor enactments and orders) which cover the entire
gamut of elections to Parliament and State
Legislatures.
CHAPTER III
Background of the subject undertaken
and Commission's Working Paper
1.3.1. It appears that in 1995, the Government of India in
the Ministry of Law, Justice and
Company Affairs had
addressed a letter dated 2.11.1995 requesting the then Law
Commission to undertake
a comprehensive study of the
measures required to expedite the hearing of the election
petitions.
The present Law Commission (15th Law
Commission) which was constituted towards the end of
November 1997 came to know of the said letter much later
i.e. on receipt of a letter from the Minister for Law,
Justice and Company Affairs dated 3rd August 1998 asking
for a report on the above subject at an early date.
As a
matter of fact, some time before the receipt of the said
letter, the present Law Commission had,
suo motu, embarked
upon a thorough review of the Representation of the People
Act, 1951 including provisions
relating to hearing of
election petitions. The study was undertaken with a view
to making the electoral
process more fair, transparent and
equitable. The effort was also to reduce, if not curtail,
the several
distortions and evils that had crept into the
India electoral system, to identify the areas where the
legal provisions required strengthening and improvement and
to suggest the requisite measures in that behalf.
Accordingly, the Law Commission prepared a working paper
(Annexure-B) to which were enclosed three draft
Bills, one
for amending the Constitution of India, the other for
amending the Representation of People
Act, 1951 and the
third to amend the Indian Penal Code. While preparing the
working paper and the
accompanying Bills, the Law
Commission took into consideration the Bill which was
prepared in
1990 by the late Shri Dinesh Goswami, the then
Minister for Law, Justice and Company Affairs, based on a
consensus arrived at between all the political parties.
Indeed, we took the said Bill as the starting point and
suggested various other measures which in our opinion were
called for to achieve the aforementioned objectives.
We
also took into account a brochure published by the Election
Commission of India containing various
suggestions for
amending the Representation of the People Act, 1951 Notice
was also taken of several decisions
of the Supreme Court on
various provisions of the Representation of the People Act,
1951 hereinafter referred
to as the R.P.Act. The salient
features of the working paper were the following:
1.3.2. Introduction
of the List System. The Law
Commission took note of the fact that the
`first-past-the-post'
system prevailing in our country had
given rise to several inequities and distortions in our
electoral
process particularly on account of the
multiplicity of the political parties. There are certain
States in India where there are three or four recognised
political parties, more or less evenly balanced. In such
a
situation what is happening is that the winning candidate
is receiving, in many cases, 30% or less of the
valid votes
cast. The remaining 70% or more votes polled (cast in
favour of the defeated candidates
including independents)
are practically going waste, without representation, and
without a voice in
the representative bodies, namely,
Parliament and the State Legislatures. It was thought
advisable
to provide a voice and a representation to the
wasted votes which indeed very often constituted a majority
of the total votes cast.
1.3.2.1. Another consideration in this behalf was that the
first-past-the-post
(FPP) system now in vogue is not
yielding a correct picture of the voter preferences. In
other
words, there is no commensurality between the total
votes cast in a State or in the country, as the case may
be, and the seats obtained by the parties. To be more
precise, what is happening is that a political party
which
has received, say, 32% of the total votes case in the
country is obtaining 70% of the seats
in Parliament,
whereas another political party which has polled, say, 29%
of the votes, is getting 25% of
the seats in Parliament. A
`swing' of 2 to 3 per cent votes is resulting in a huge
difference in the number
of seats won.
1.3.3.2. There was yet another situation where a political
party is polling a substantial
chunk of votes cast in a
given State in parliamentary elections but is not able to
get a single seat
in the Parliament from that State.
1.3.2.3. With a view to rectifying and redressing the
aforementioned distortions and inequities, the Law
Commission was of the provisional opinion that introducing
a List System may serve to redress the aforementioned
distortions, at least to a partial extent.
For this
purpose, we looked to the electoral system obtaining in
certain other countries including
Germany where a mixed
system (FPP and list system) is in force. In Germany, part
of the seats are filled
on the basis of FPP system
whereunder the members are elected from territorial
constituencies
and the remaining members are chosen from
the lists put forward by the political parties. We did not
however
think it advisable to import the German system
whole-hog for it was found to be extremely complicated and
difficult of operation in a country like ours where a
sizeable chunk of population is illiterate and is not
able
to operate such a complicated electoral system.
1.3.2.4. We thought of finding a system
more suited to our
genius and to the conditions prevailing in our country.
Though it would have been advisable
to suggest that 50% of
the number of members in Lok Sabha or Legislative
Assemblies of the States
should be filled on the basis of
list system, we pegged it at 25%, not only as a starting
point, but also
with a view not to give room for growth of,
or encouragement to, caste-based political parties. We did
not
wish to encourage in any manner the caste-based
political parties or the voting patterns based on caste
considerations.
1.3.2.5. Accordingly, it was suggested that in the Lok
Sabha as
well as in the State Legislative Assemblies, the
present strength should be increased by 25% of the existing
strength which increased strength should be filled on the
basis of list system. The list system was to be confined
only to recognised political parties (RPP). There would be
no separate vote nor a separate election for the
members to
be chosen under the list system.
1.3.2.6. It was suggested that each recognised political
party should put forward its list of candidates, which will
be received, scrutinised and valid list published
along
with the nominations for elections from the territorial
constituencies. It was suggested that
for this purpose,
`territorial units' be designated; so far as the bigger
States are concerned, each
State shall be a territorial
unit but in the case of small States, they should either be
clubbed with
an adjacent bigger State or be clubbed
together to form a territorial unit. (This idea of
territorial
units was suggested to be adopted only in the
case of parliamentary general elections and not in the case
of elections to the State Legislatures.) At the end of
polling and counting of votes for the territorial
constituencies, the Election Commission, it was suggested,
should tabulate votes polled by each RPP
in a given
State/territorial unit and the seats meant to be filled up
under the list system be distributed
among the RPPs in
proportion to the votes polled by them. For achieving the
said purpose, it was found necessary
to amend not only the
Representation of the People Act, 1951 but the Constitution
of India itself in the first
instance. Accordingly, the
suggested amendments both to the Constitution of India and
the Representation
of People Act, 1951 were shown in the
Bills accompanying the working paper.
1.3.2.7. Another
connected suggestion was to delete article
331 of the Constitution which empowers the President to
nominate
two members of Anglo-Indian community to the Lok
Sabha. It was explained that this provision which may have
been good when the Constitution was enacted, has become
irrelevant with the substantial fall in the number
of
Anglo-Indians over the years and in the light of the
miniscule number of this community obtaining
today.
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.
1.3.3.1. 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.
1.3.3.2. 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
Explanation
-
"(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.
1.3.4. Curtailing the expenditure on elections.
The next
major proposal put forward by the Law Commission pertained
to reducing the expenditure on elections
and also to
regulate the receipts and expenditure by the political
parties. The issue of State funding
was also considered in
this context. The first proposal in this behalf was to
delete Explanation 1 to
section 77 of the Representation of
the People Act, 1951. Besides the abuse inherent in the
said Explanation,
it was pointed out that the necessity of
deleting the Explanation had been pointed out by the
Supreme
Court in several decisions including C.Narayan
Swami v. C.K.Jaffar Sheriff [1994 Supp. (3) SCC 170] and
Gadakh Yashwantrao Kanakarrao v. Balasaheb Vikhe Patil
[1994 (1) SCC 682]. It was pointed out in these decisions
that the corrupt practice of incurring or authorising of
expenditure in contravention of sub-section (6)
of section
123 has lost its significance and utility with the
introduction of Explanation 1 to
section 77. It was
further pointed out by the court that the Explanation
violates the spirit of
the Act and a hope was expressed
that the Parliament would delete the said Explanation as
early as
possible to remove the impression that the
enactment and retention of the same was deliberate and was
inspired by motives which could not be said to be genuine,
democratic or sufficiently justifiable. The Law Commission
had also referred in extenso in its working paper to the
decision of Supreme Court in Kanwarlal Gupta v.
Amarnath
Chawla (1975 (3) SCC 646), to get over which decision
indeed, Explanation 1 was enacted.
The suggestion of the
Law Commission was that deletion of Explanation 1 would
bring the legal position
in conformity with the ruling in
Kanwarlal Gupta's case.
1.3.4.1.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.
1.3.4.2. 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.
1.3.6. Other proposals. The other proposals
contained in
the working paper pertained to (a) enhancing the deposit in
the case of independent candidates
and candidates of
unrecognised political parties. This substantial increase
was suggested with a view
to discourage independents and
non-serious candidates from contesting elections thereby
making the elections
cumbersome, expensive and unmanageable
- indeed, farcical in some cases; (b) steps designed to
ensure
expeditious disposal of election petitions by the
High Court. The Law Commission did not agree with the
suggestion of the Law Ministry to entrust the trial of
election petitions to special tribunals instead of the
High
Courts. It was pointed out in the working paper that such
an experiment was undertaken earlier and
was given up as a
failure and that only thereafter was the trial of election
petitions entrusted to High
Courts; (c) amendment of
section 97(1) of the Act in the light of the decision of
the Supreme Court
in Bhagmal v. Prabhu Ram (AIR 1985 SCC
150) and (d) certain other amendments set out in the
working
paper.
CHAPTER IV
German Law on Political Parties
Whether by design or by omission, our Constitution
does not provide for the constitution and
working of the
political parties, though they are at the heart of a
parliamentary democracy. A parliamentary
democracy without
political parties is inconceivable. Yet the Constitution
(except the Tenth Schedule
which was inserted only in the
year 1985) does not even speak of political parties whereas
article 21 of the
German Constitution (Basic Law for the
Federal Republic of Germany, 1949), which Constitution was
also
enacted almost simultaneously with our Constitution,
provides for the establishment and working of the political
parties. The Article reads thus:
"Article 21 (Parties)
(1) The parties shall help form the
political will
of the people. They may be freely established.
Their internal organisation
shall conform to
democratic principles. They shall publicly account
for the sources and
use of their funds and for
their assets.
(2) Parties which by reason of their aims or the
conduct of their adherents seek to impair or do
away with the free democratic basic
order of
threaten the existence of the Federal Republic of
Germany shall be unconstitutional.
The Federal
Constitutional Court shall rule on the question of
unconstitutionality.
(3) Details shall be the subject of federal laws."
1.4.1.1. Pursuant to article 21(3), the German Parliament
has enacted the `Law on Political Parties' in the year
1967, which has been amended from time to time.
Section 1
of the Law sets out "General Provisions". Article 1 which
deals with the constitutional
status and functions of the
parties, reads thus:
"Article 1. Constitutional Status and Functions
of
the Parties.
(1) Political parties form a constitutionally
integral part
of a free and democratic system of
government. Their free and continuous
participation
in the formation of the political
will of the people enables them to discharge the
public
tasks which are incumbent upon them pursuant
to the Basic law (Grundgestez)) and which they
undertake to fulfil to the best of their ability.
(2) The parties shall participate in the formation
of the political will of the people in all fields
of public life, in particular by:
bringing
their influence to bear on the shaping of
public opinion; inspiring and furthering political
education;
promoting an active participation by individual
citizens in political life;
training talented
people to assume public responsibilities;
participating in Federal, Land and Local
Government
elections by nominating candidates;
exercising an influence on political trends in
parliament and the government;
initiating their defined political aims in the
national decision-making processes; and
ensuring continuous, vital links between the people
and the public authorities.
(3) The parties shall define their aims in the
form of
political manifestos.
(4) The parties shall use their funds exclusively
for the fulfilment
of their obligations under the
Basic Law and this Law."
1.4.1.2. Article 2 defines
the expression "Political
Party". It reads thus:
"Article 2. Definition of the term
"Political
Party".
(1) Parties are associations of citizens who set
out to influence either permanently or for a
lengthy period of time, the formation of political
opinions at Federal or Land level and to
participate in the representation of the
people in
the Federal Parliament (Bundestag) or regional
parliaments (Landtage) provided
that they offer
sufficient guarantee of the sincerity of their aims
in the general character
of their circumstances and
attendant conditions, particularly in regard to the
size and strength
of their organisation, the number
of registered members and their public image.
party
members may only be natural persons.
(2) An organisation loses its legal status as a
party if it has not participated for a period of
six years in either a Federal election or a Landtag
election with electoral proposals of its own.
(3) Political organisations are not deemed
to be
parties if;
1. most of their members or the members of their
executive committees are foreigners; or
2. the registered seat of business is located
outside
the purview of the present Law."
1.4.1.3. Article 3 empowers the political parties to
institute legal proceedings in their own name and similarly
be sued in their own name.
1.4.1.4.
article 4 provides that the name of a party must
be clearly distinguishable from that of other existing
parties and that this rule is also applicable to acronyms.
In election campaigns and the elections, only
the
registered name or acronym may be used.
1.4.1.5. Article 5 provides for equal treatment of
all the
political parties. It reads as under:
"Article 5. Equality of Treatment.
(1) Where a public authority provides facilities or
other public services for use by a party,
it must
accord equal treatment to all other parties. The
scale of such facilities
and services may be
graduated to conform with the importance of the
parties to the
minimum extent needed for the
achievement of their aims. The importance of a
party
is judged in particular from the results of
previous elections for central or regional
government. In the case of a party represented in
the Bundestag by a parliamentary party, the
significance accorded to it must amount to at least
half that granted to any other party.
(2) As regards the granting of public services in
connection with an election para
(1) applies only
for the duration of the election campaign to
parties which have submitted
election proposals.
(3) The public services referred to in para 1 may
be made dependent
upon certain preconditions which
all parties have to fulfil.
(4) Section IV shall remain
unaffected."
1.4.1.6. Section II deals with internal organisation of
the political parties.
Article 6 is of great significance
and may be set out in full:
"Article 6. Statutes and
Programme.
(1) A party must have written statutes (articles
of association) and a
written programme. Regional
organisations conduct their affairs on the basis of
their own
statutes provided that the statutes of
their immediately superior regional organisation do
not contain any provisions bearing on this matter.
(2) The Statutes must contain provisions on:
1. The name and acronym (if used), the registered
seat and the activities of the party.
2.
The admission and resignation of members.
3. The rights and duties of members.
4. Admissible disciplinary
measures against members
and their exclusion from the party (Article 10,
paras 3 to 5).
5. Admissible disciplinary measures against
regional organisations.
6. The general
organisation of the party.
7. Composition and powers of the executive
committee and other
organs.
8. matters which may only be decided upon by a
meeting of members ad representatives
pursuant to
No.9.
9. The preconditions, form and time limit for
convening
meetings of members and representatives
and the official recording of resolutions.
10. Regional
organisations and organs which are
authorised to submit or sign election proposals for
elections
to parliaments inasmuch as three are no
relevant legal provisions.
11. An overall vote by members
and the procedure
to be adopted when the party or a regional
organisation or to
merge with another party or
parties pursuant to Article 9, para 3. The result
of the
overall vote determine whether the
resolution is confirmed, amended or rescinded.
12. The
form and content of a financial structure
which satisfies the rules of Section V of this Law.
(3) The executive committee informs the Federal
Returning Officer of:
1. The party's statutes
and programme.
2. The names of the members of the executive
committee of the party
and its regional
organisations together with their duties.
3. The dissolution of the party
or a regional
organisation. Amendments to sentence 1(1) and (2)
above must be notified
by 31 December of the given
calender year. The relevant documents are held by
the Federal
Returning Officer and made available to
the public for perusal and inspection. On
request, copies of the documents are provided free
of charge.
(4) Parties whose organisation
is restricted to the
territory of a Land are governed by the provisions
set out in the present
Law for parties as a whole."
1.4.1.7. Article 7 deals with the organisation of political
parties
both at the national and regional level.
1.4.1.8. Article 8 provides that the members' meeting and
the executive committee shall constitute the essential
organs of the party and its regional organisations
and for
other allied matters.
1.4.1.9. Article 9 provides for constitution of members'
assemblies and delegates assemblies and the rights of the
members in that behalf.
1.4.1.10.
Article 10 empowers the political parties to
decide on the admission of new members. It says that no
justification need be given for refusing an application for
membership. It further declares that members of the party
and the representatives in the party bodies have equal
voting rights. The party can frame statutes providing
for
disciplinary action against members and other matters
specified therein.
1.4.1.11. Article 11 provides that every political party
shall elect an executive committee at least every second
calender year and that the committee must consist of at
least three members. It also deals with the powers
of the
executive committee and its duties.
1.4.1.12. Article 12 provides for constitution of general
party committees and other incidental matters.
1.4.1.13. Article 13 provides for composition of delegates'
assemblies.
1.4.1.14. Article 14 provides for arbitration in case of a
dispute between
the members or between the party and
members or between the party ad regional organisations, as
the
case may be.
1.4.1.15. Article 15 deals with the process of
decision-making in party
organs. It reads thus:
"Article 15. Decision-Making in Party Organs.
(1) The
party organs adopt their resolutions on the
basis of a simple majority vote inasmuch as a
higher majority vote is not stipulated by law or by
the statutes.
(2) The ballots
for members of the executive
committee and representatives to delegates'
assemblies
as well as to the bodies of higher level
regional organisations are secret. Voting at other
elections is not secret unless voters object when
asked to confirm such procedure.
(3) The statutory provisions governing the
submission of motions must be such as to ensure the
democratic forming of opinions and in particular
adequate discussion of the proposals put forward
by
minorities. At the delegates' assemblies of higher
level regional organisations, at
least the
representatives of the regional organisations at
the next two lower levels
must be granted the right
to introduce motions. No commitment to the
resolutions
of other bodies is permissible at
elections and polls."
1.4.1.16. Article
16 deals with dissolution and/or
termination of the subordinate regional organisations.
1.4.1.17.
Section III contains only one article, namely,
article 17. It says that "candidates for election to
Parliament must be chosen by secret ballot. The nomination
procedure is governed by the election laws and
the party
statutes."
1.4.1.18. Section IV containing articles 18 to 22 deals
with public financing of political parties whereas Section
V obliges the political parties to maintain and publish
their accounts regularly. Article 23 needs to be set out
in full:
"Article
23. Statutory obligation to Publish
Accounts.
(1) The executive committee of the
party shall make
a public statement of the origins and the use of
funds received by its
party within a calendar year
(accounting year) as well as of the assets of the
party in
a statement of accounts.
(2) The statement of accounts must be scrutinised
by a certified
auditor or auditing company in
accordance with articles 29 to 31. In the case of
parties
who do not meet the requirements of article
18, para 4, first sentence, the statement of
accounts may be scrutinised by a chartered
accountant. It must be submitted by 30 September
of the year following the accounting year to the
President of the German Bundestag and be
circulated
by the latter as a Bundestag paper. The President
of the German Bundestag can
extend the limit by up
to a maximum of three months in extenuating
circumstances.
The party statement of accounts
shall be submitted for discussion to the federal
party
convention following its publication.
(3) The President of the German Bundestag shall
examine whether the statement of accounts is in
accordance with the regulations of Section V. The
result of the scrutiny shall be recorded in the
report in accordance with para 5.
(4) The President of the German Bundestag may not
determine a party's allocation of public
funds
under articles 18 and 19 so long as a statement of
accounts in accordance with the
provisions of
Section V is still outstanding. Payments under
article 18 shall be
based on the statement of
accounts to be submitted for the preceding year,
payments
under article 20 on the statement of
accounts submitted for the preceding year. If a
party fails to submit the report by 31 December of
the following year it shall forfeit its claim to
public funds: allocations and disbursements to the
other parties shall remain unaffected.
(5) The President of the German Bundestag shall
submit annually to the German Bundestag
a report on
the state of party finances and on the statements
of accounts of the parties.
The report shall be
circulated as a Bundestag paper."
1.4.1.19. Article 23(a) prohibits
the political parties
from obtaining donations illegally. It also provides that
in case the political
party fails to publish the statement
of accounts as provided by article 25(2), it shall forfeit
public funding
in an amount double the amount illegally
obtained or not published in accordance with article 25(2).
It
also sets out the meaning of `illegal donations'.
Article 24 specifies what should the statement of income
and expenditure contain. It mentions the several items
which must necessarily be included and shown
in such a
statement. Broadly speaking it must disclose full
particulars in the specified form,
of income received,
sources from which received, expenditure incurred on
various items and its net
assets.
1.4.1.20. Article 25 deals with donations to political
parties. It says that political
parties are entitled to
accept donations except from the sources specified therein.
The sources which
are so excluded are political
foundations and parliamentary groups, corporate bodies,
religious
and charitable associations of persons and so on.
1.4.1.21. Article 26 defines the expression "income".
Article 28 creates a statutory obligation upon the
political parties to "keep books in
respect of their
accountable income and expenditure and of their assets".
The article further provides
that the accounts "shall be
kept in accordance with the principles of orderly
accounting and
with regard for the purpose of the present
law. Accounts shall be preserved for five years..."
1.4.1.22. Article 29 provides for auditing of the
statement of accounts while article 30 makes it obligatory
that the statement of accounts shall contain an audit
certificate in the prescribed manner. Article
31 deals
with the appointment of auditors.
1.4.1.23. Sections VI and VII deal with implementation
of
bans on unconstitutional parties and final provisions,
which are not relevant for our purpose and
need not be
referred to.
1.4.2. Though our Constitution was also framed between the
years 1946 to 1949 (i.e., approximately at the same time
when the German Constitution was drawn), it is rather
inexplicable why our Constituent Assembly did not think it
appropriate to make provisions governing the
political
parties on the lines contained in the German Constitution.
It may be mentioned even at this
stage that though this
aspect did not figure in the suggestions contained in the
working paper prepared
by the Law Commission in September
1998 and circulated among the political parties and the
members of
the public, the same has assumed considerable
significance in the course of debate at the several
seminars held by the Law Commission in this behalf and has
also been suggested in several responses received by the
Law Commission in response to the working paper.
PART II
Views of Political Parties and Interested Persons
obtained in Seminar
2.1 The working paper prepared by the Law Commission
was communicated to all the recognised
political parties,
both at the national and State level, the Houses of
Parliament, the State Legislatures,
to the High courts, bar
associations, Election Commission, prominent media
personalities, associations
and organisations interested in
electoral reform and many other public-minded persons. A
large number of
responses have been received from parties,
persons, organisations, associations and individuals which
have
been duly collated. In addition to circulating the
working paper, the Law Commission also held four seminars
to elicit informed opinions and views of the political
parties and the responsible members of the public.
The
first seminar was held on 14th November 1998 at the India
International Centre. It was a one-day
seminar comprising
two sessions. The morning session was devoted to
introduction of list system
and amendment of Tenth Schedule
while the second session was devoted to proposals for
curtailing expenditure
on elections and the measures to
curb the entry and influence of criminal elements. Certain
political parties
viz., BJP, CPI(M), CPI, DMK and Shiromani
Akali Dal were represented by their spokesmen S/Shri Jana
Krishnamurthy,
Sitaram Yechury, A.B. Bardhan, T.R. Balu
and Manjeet Singh Khera, respectively. Shri Shivraj Patil,
MP
(former Speaker of Lok Sabha) and Shri Kapil Sibal, MP
(a senior advocate) who are members of Congress-I, also
participated but in their individual capacity. Besides the
above, senior journalists S/Shri H.K.Dua, C.R.
Irani,
Inderjit, N.Ram and S.Sahay and senior advocates Shri
Shanti Bhushan (former Minister for
Law, Government of
India), Shri Soli Sorabjee (Attorney General), Shri
Rajinder Sachhar (former
Chief Justice Delhi High Court),
Shri T.R.Andhyarujina (former Solicitor General of India),
Shri P.P.Rao,
Shri Jitender Sharma and Shri M.C.Bhandare
participated. Shri Ram Jethmalani, the Hon'ble Minister
for
Urban Development participated in both the sessions.
Dr.K.C.Sivaramakrishnan, from the Centre for Policy
Research, New Delhi, Shri V.K.Samayak, President, Voters'
Forum, New Delhi, and Shri N.N.Vohra, Director,
India
International Centre, also participated. The participants
put forward several valuable suggestions,
observations and
comments all of which have been duly recorded in the
minutes of the seminar prepared
by the Law Commission.
2.2 The second seminar was held at Thiruvananthapuram
in the auditorium of the Bar
Council of Kerala. Several
senior advocates and members of Bar Council of Kerala
participated therein
which was also addressed by Shri
Justice V.R.Krishna Iyer, former Judge Supreme Court of
India and
an eminent public figure. The minutes of this
seminar have also been prepared by the Law Commission.
2.3 The third seminar was held at Bangalore in the
premises of the National Law School of India University.
Several academicians and professors of law participated in
this seminar. The minutes of this seminar have
also been
prepared by the Law Commission.
2.4 Finally, a National Seminar on Electoral Reforms
was held, at New Delhi on 23-24th January, 1999 at Vigyan
Bhawan, in association with the Bar Council of
India. It
was inaugurated by the Hon'ble Prime Minister of India Shri
Atal Bihari Vajpayee and was presided
over by the then
Minister for Law, Justice & Company Affairs Dr.M.Thambi
Durai. Shri Justice
M.N. Venkatachaliah, Chairperson,
National Human Rights Commission was the Chief Guest at the
inaugural
session which was addressed by the Chairman and
Members of the Law Commission and of the Bar Council of
India. In his inaugural address, the Prime Minister of
India supported the proposals of the Law Commission
with
respect to introduction of list system, amendment of the
Tenth Schedule to the Constitution and
amendments to
curtail the expenditure on elections and regulation of
receipts and expenditure by the
political parties. With
respect to list system, however, the Hon'ble Prime Minister
opined that the
suggestions in that behalf may required
deeper consideration. So far as the amendment of section 8
of the
Act is concerned, the Hon'ble Prime Minister
expressed his agreement while clarifying that mere filing
of charges should not be the basis for disqualification.
The then Law Minister expressed the anxiety of
the
Government to bring about reform of electoral law in the
interest of a transparent, fair and
clean electoral
process. Shri Justice M.N.Venkatachaliah commended the
initiative taken by the Law
Commission in the matter of
electoral reform and called for serious and prompt
legislative action
by Parliament to remove the distortions
and defects in the system.
2.5 The National Seminar was divided into
five working
sessions besides the inaugural and the valedictory
sessions. The first session dealt
with the amendment of
Tenth Schedule to the Constitution. It was presided over
by Shri I.K.Gujral, former
Prime Minister of India and the
main speakers were Shri Shivraj Patil, former Speaker of
Lok Sabha and
Shri Justice V.R. Krishna Iyer. The second
session was presided over by Shri S.Jaipal Reddy, MP
(Janata
Dal). This session was devoted to introduction of
list system. The main speakers were Shri Justice
B.P.Jeevan Reddy, Chairman, Law Commission of India,
Dr.N.M.Ghatate, Member, Law Commission of India and
Shri
D.V. Subba Rao, Member, Bar Council of India. The third
session on the morning of 24th January
was devoted to
curtailing of election expenditure and regulation of income
and expenditure of political parties.
This session was to
be presided over by Shri Inderjit Gupta, MP (former Home
Minister) but on account
of the delay in the flights, he
could not reach Delhi in time. Shri Somnath Chaterjee, MP
[CPI(M)] presided
over this session. The main speaker at
this session was Shri K.K.Venugopal, senior advocate. The
next
session pertained to the problems concerning hung
Parliament. It was presided over by Shri Arun Mishra,
Chairman, Bar Council of India and the main speakers were
Shri K.L.Sharma, Vice President of BJP, Shri
Justice
K.N.Saikia, former Judge Supreme Court of India and Shri
T.P.Singh, senior advocate and Member,
bar Council of
India. The last session discussed the criminalisation of
politics including the proposed
amendment of section 8 of
the Act. It was presided over by Shri P.A.Sangma, MP
(former Speaker of
Lok Sabha). The main speakers at this
session were Shri Dileep Padgaonker, Executive Editor, The
Times of
India and Shri V.R.Reddy, senior advocate and
former Additional Solicitor General of India.
2.6. In all the above sessions, a large number of
persons from political parties, Bar Council of India, bar
associations and other public bodies and organisations also
spoke.
2.7. The concluding/valedictory
session was presided
over by Shri George Fernandes, the Hon'ble Defence
Minister. The valedictory
address was delivered by Shri
Justice V.R.Krishna Iyer, former Judge, Supreme Court of
India.
2.8. The entire proceedings of this two-day National
Seminar were tape recorded.
2.9. The Law Commission has looked into the vast amount
of literature on the subject of electoral reforms,
in
particular, the opinions expressed therein touching the
issues considered in this Report.
CHAPTER I
Necessity for providing law relating to internal
democracy within political parties
3.1.1. On a consideration of the various views expressed
in the four seminars aforesaid and the vast
number of
responses received by us, we have come to the conclusion
that for successful implementation of
any of the aforesaid
proposals, or for that matter for bringing a sense of
discipline and order into
the working of our political
system and in the conduct of elections, it is necessary to
provide by law
for the formation, functioning, income and
expenditure and the internal working of the recognised
political
parties both at the national and State level.
The necessity of such a requirement was stressed by Shri
S.Jaipal Reddy, MP (a former Minister for Information and
Broadcasting), by Shri Manjit Singh Khera (representing
SAD), by Dr. N.L. Mitra, Director, National Law School of
India University, and several other participants
in the
seminars held by the law Commission. To the same effect
was the view expressed by Shri Santosh
Sharma, IAS (retd.)
and president of "People First". As pointed out in chapter
four of Part one,
the German Constitution, which was
enacted practically at the same time as our Constitution,
expressly
provides for formation and functioning of the
political parties. Article 21 which has been set out in
the said chapter says that the political parties shall help
form the political will of the people, that political
parties can be freely established and that their internal
organisation shall conform to democratic principles.
It
further says that the political parties should publicly
account for the sources and use of their
funds and for
their assets. Article 21 further provides that political
parties which by reason of their
aims or the conduct of
their adherents seek to impair or do away with the free
democratic basic order
or threaten the existence of the
Federal Republic of Germany shall be unconstitutional and
that the Federal
Constitutional Court shall rule upon the
question of unconstitutionality. Clause (3) of Article 21
provides
that the details in this behalf shall be provided
by federal laws. Accordingly, on 24th July 1967, the law
on Political Parties was enacted. We have already referred
to the relevant provisions of this Law in chapter four
of
Part One.
3.1.1.1. Shri Rajni Kothari while dealing with
powers of internal
democracy in the Congress Party, said
this:
"The `Congress system' has to learn to
bear more
strains and deal with more problems but it has also
to become more of a `system'
than it at present is.
After March, 1967, it will need to consider
further steps towards
its own institutionalisation
in the resolution of disputes, in the conduct of
internal
elections, in organising party
intelligence and research, in policy-decison
making, in the party's own federal relations, in
party-government communications, and above all in
regard to the whole process of selection of
candidates for different types of elections
and
especially for the General Elections." (Centre for
the Study of Developing Societies,
Context of
Electoral Change in India, General Elections, 1967,
page3).
3.1.2.
With a view to introduce and ensure internal
democracy in the functioning of political parties, to make
their working transparent and open and to ensure that the
political parties become effective instruments of achieving
the constitutional goals set out in the Preamble and Parts
III and IV of the Constitution of India, it is
necessary to
regulate by law their formation and functioning. In this
connection, reference can be had to
the law laid down in
the nine-judge Constitution Bench of the Supreme Court in
S.R.Bommai v. Union of
India (1994 (3) SCC1). Explaining
the concept of secularism implicit in the constitutional
provisions,
the Court made the following observations at
page 236:
"Inspired by the Indian tradition
of tolerance and
fraternity, for whose sake, the greatest son of
Modern India, Mahatma
Gandhi, laid down his life
and seeking to redeem the promise of religious
neutrality
held forth by the Congress Party, the
Founding Fathers proceeded to create a State,
secular in its outlook and egalitarian in its
action... if any party or organisation seeks to
fight the elections on the basis of plank which has
the proximate effect of eroding the
secular
philosophy of the Constitution it would certainly
be guilty of following an unconstitutional
course
of action.... if the Constitution requires the
State to be secular in thought
and action, the same
requirement attaches to political parties as well."
3.1.2.1. On the parity of the above reasoning, it
must be said that if democracy and accountability
constitute the core of our constitutional system, the same
concepts must also apply to and bind the political
parties
which are integral to parliamentary democracy. It is the
political parties that form the government,
man the
Parliament and run the governance of the country. It is
therefore, necessary to introduce
internal democracy,
financial transparency and accountability in the working of
the political parties.
A political party which does not
respect democratic principles in its internal working
cannot be
exposed to respect those principles in the
governance of the country. It cannot be dictatorship
internally and democratic in its functioning outside.
3.1.3. Conclusion.- Keeping the aforesaid considerations
in mind, we recommend that a new part, Part II-A, entitled
`Organisation of Political Parties and matters
incidental
thereto' be introduced/inserted in the Act, containing the
undermentioned sections:
3.1.3.1. In view of reiteration of our proposal to
repeal section 11 and 11B of the Representation of
People
Act, 1951 as stated under paragraphs 6.1.1 and 6.2 of part
VI infra, the existing section
11-A entitled
"Disqualifications arising out of conviction and corrupt
practices" which
will fall under Chapter IV, shall be
renumbered as Section 11. Consequently, the following
sections
proposed to be inserted under part II-A shall be
numbered as Section 11-A to 11-H.
PART II-A
Organisation of Political Parties
and matters incidental thereto
Section 11-A: (1)Political parties can be freely formed by
the citizens of this country. The political parties
shall
form a constitutionally integral part of free and
democratic system of Government.
(2) Each political party shall frame its
constitution defining its aims and objects and providing
for matters specified in section 11A. The aims and objects
of a political party shall not be inconsistent
with any of
the provisions of the Constitution of India.
(3) A political party shall strive towards,
and utilize its funds exclusively for, the fulfilment of
its aims and objects and the goals and ideals
set out in
the Constitution of India.
(4)(a) A political party shall apply for
registration with the Election Commission of India.
(b) Every such application shall be made, -
(i) if the association or body is in
existence at the commencement of the Representation of the
People and other Allied Laws (Amendment) Act, 1999 ( __of
1999), within sixty days next following such commencement;
(ii) if the association or body is formed
after such commencement, within thirty days next
following
the date of its formation.
(c) Every application under sub-section (4)
shall be signed by the chief executive officer of the
association or body (whether such chief executive officer
is known as Secretary or by any other designation) and
presented to the Secretary to the Commission
or sent to
such Secretary by registered post.
(d) Every such application shall contain the
following particulars, namely: -
(i) the name of the association or body;
(ii)the State in which its head office is
situated;
(iii)the address to which letters
and other
communications meant for it should be sent;
(iv)the names of its president, secretary,
treasurer and other office-bearers;
(v)the numerical strength of its members,
and
if there are categories of its members, the numerical
strength in each category;
(vi)whether
it has any local units; if so,
at what levels;
(vii)whether it is represented by any
member or members in either House of Parliament or of any
State Legislature; if so, the number of such
member or
members.
(viii)a declaration that the applicant has
complied with and
shall continue to comply with the
requirements of this chapter.
(e) The application under
sub-section (4) shall
be accompanied by a copy of the memorandum or rules and
regulations of the association
or body, by whatever name
called, and such memorandum or rules and regulations shall
contain a specific
provision that the association or body
shall bear true faith and allegiance to the Constitution of
India as
by law established, and to the principles of
socialism, secularism and democracy, and would uphold the
sovereignty, unity and integrity of India.
(f) The Commission may call for such other
particulars as it may deem fit from the association or
body.
(g) After considering all
the particulars as
aforesaid in its possession and any other necessary and
relevant factors and after
giving the representatives of
the association or body reasonable opportunity of being
heard, the Commission
shall decide either to register the
association or body as a political party for the purposes
of this Part,
or not so to register it; and the Commission
shall communicate its decision to the association or body:
Provided that no association or body shall be
registered as political party under this sub-section unless
the memorandum or rules and regulations of such association
or body conform to the provisions of clause (e).
(h) The decision of the Commission shall be final.
(i) After an association or body
has been registered as
a political party as aforesaid, any change in its name,
head office, office bearers,
address or in any other
material matters shall be communicated to the Commission
without delay.
(5) Only a political party registered with
Election Commission of India, and whose registration
is not
cancelled under this Act, shall be entitled to contest
elections whether to Lok Sabha or
that of Legislative
Assembly.
Section 11-B: (1) A political party may sue and may be
sued in its own name. A political party shall be competent
to hold and dispose of properties.
(2) The name of a political party must
be clearly distinguishable from that of any existing
political
party and shall be subject to approval by the
Election Commission. In election campaigns and in
elections, only the registered name or its acronym, as may
have been approved by the Election Commission, alone shall
be used.
(3) Political parties can be formed
both at the national level as well
as at the State level.
Section 11-C: The constitution of a political party shall
provide for
the following matters:-
(a) name of the political party and acronym (if used)
and the aims and
objectives of the party;
(b) procedure for admission, expulsion and resignation
by the members;
(c) rights, duties and obligations of the members;
(d) grounds on which and the
procedure according to
which disciplinary action can be taken against the members;
(e) the general
organisation of the party including the
formation of State, regional, district, block and village
level units;
(f) composition and powers of the executive committee
(by whatever name it is called) and other
organs of the
party;
(g) the manner in which the general body meetings can
be
requisitioned and conducted and the procedure for
requisitioning and holding conventions to decide questions
of continuance, merger and other such fundamental
organisational matters;
(h)
the form and content of the financial structure of
the party consistent with the provisions of this part.
Section 11-D: The executive committee of a political
party shall be elected. Its term shall not exceed
three
years. Well before the expiry of the term, steps shall be
taken for electing a new executive committee.
It shall be
open to the executive committee to constitute a
sub-committee (by whatever name
called) to carry out the
business of the executive committee and to carry on regular
and urgent executive committee
business. The members of
the sub-committee shall be elected by the members of the
executive committee.
Section 11-E: A political party and its organs shall
adopt their resolutions on the basis
of a simple majority
vote. The voting shall be by secret ballot.
Section 11-F: The candidates
for contesting elections to
the Parliament or the Legislative Assembly of the States
shall be selected
by the executive committee of the
political party on the basis of the recommendations and
resolutions
passed by the concerned local party units.
Section 11-G: (1) It shall be the duty of the executive
committee to take appropriate steps to ensure compliance
with the provisions of this chapter including holding
of
elections at all levels. The executive committee of a
political party shall hold elections of national
and State
levels in the presence of the observers to be nominated by
the Election Commission of India.
Where considered
necessary, the Election Commission may also send its
observers at elections to
be held at other national and
state levels.
(2) The executive committee of a
political party shall maintain regular accounts of the
amounts received by the party, its income and expenditure,
have them audited and submit the same to the Election
Commission as required by section 78-A of this
Act.
(3) A political party shall be
entitled to accept donations except from the following
sources:-
(a) donations from political foundations or
foreign governments or
organisations or associations
registered outside the territory of India or
non-governmental
organisations which are in receipt of
foreign funds or from any other association, organisation,
group
which is in receipt of foreign funds or from a
foreign national.
(b) donations from corporate
bodies and companies
except in accordance with the provisions of the Companies
Act, 1956.
Section 11-H: The Election Commission shall be competent
to inquire, either suo motu or on information received
into
allegation of non-compliance of any of these provisions of
this chapter. If on due inquiry, the Election
Commission
is satisfied that there has been non-compliance of any of
the provisions of this chapter by any
political party, the
Commission shall call upon the party to rectify the
non-compliance within the
period prescribed by the Election
Commission. In case, the non-compliance continues even
after the period
so prescribed, it shall be open to the
Election Commission to impose such punishment on the
political
party as it may deem appropriate in circumstances
of the case including levy of the penalty of Rs.10,000/-
per day for each day of non-compliance and withdrawal of
registration of the party.
Section
11-I: Where a public authority provides
facilities or offers public services for use to a political
party, it must accord equal treatment to all. The scale of
such facilities and services may be graduated to conform
to
the importance of the parties subject to the minimum extent
needed for the achievement of their aims.
The importance
of a party shall be decided on the basis of the results of
immediately previous election
to Parliament or State
Legislative Assembly, as the case may be. The granting of
public services shall
be only in connection with and for
the duration of the election campaign period. For the
purposes of
this section, the election campaign period
shall be deemed to commence 14 days prior to the
commencement of the poll in a State.
(Rules made under the Act can provide the requisite
details
on the pattern of the provisions of the German Law
on Political Parties, 1967).
3.1.4. In view
of the above provisions, Part IV-A of the
Act, containing section 29-A shall be deleted. The
substance
of section 29-A has been incorporated in section
11-A.
CHAPTER II
Analysis of views and conclusions
regarding the List System
3.2.1. In this chapter we shall deal with the
concept of list system in addition to
the existing
`first-past-the post (FPP) system' which was proposed in
our working paper. The reasons
for introducing this system
have been set out in chapter three of part one of this
report as well as
in the working paper. In the seminars
conducted by the Law Commission and in the responses
received
pursuant to the circulation of working paper,
various views have been expressed which we shall discuss
hereinbelow.
3.2.2. Shri S. Jaipal Reddy who presided over the
second session of the National
Seminar on 23rd January 1999
opposed the introduction of list system altogether while
conceding that the
list system is certainly more
representative. He opined that that alone should not be
the objective
of the elections. According to him, the list
system was likely to lead to proliferation of political
parties.
In a society which is indeed a "society of
minorities", this system, he said, would not promote the
national interest. He also pointed out that in the list
system, the umbilical cord between the constituency
and the
candidate is absent. He pointed out that list system was
preferred in countries with homogenous
societies and was
not suited to a country like India whose society was the
most heterogenous in the world,
divided as it was on the
grounds of religion, caste, language, region, race and so
on. Even if the list
system was introduced, he said, it
should not be confirmed to recognised political parties as
suggested by
the Law Commission. He gave the example of
Telugu Desam Party in Andhra Pradesh, which was formed just
about nine months before the elections to the Legislative
Assembly in Andhra Pradesh and yet swept the polls in 1983.
He suggested that all the registered political parties
should be allowed top participate in the election
held on
the basis of list system. Mr. Jaipal Reddy also pointed
out several merits of the existing FPP
system. According
to him, the FPP system had the merit of reducing the number
of political parties.
The present proliferation of
political parties in this country is taking place in spite
of the FPP
system, he said. According to him, the FPP
system led to stability by eliminating smaller parties.
According to him, there must necessarily be an intimate
connection between the candidate and the constituency. Mr.
Jaipal Reddy also pointed out that there should be a rule
that for obtaining any seat under the list
system, a
political party must obtain certain prescribed minimum
percentage of votes and in this connection,
referred to the
position obtaining in Greece and Germany - particularly in
the latter country. Unless
a political party got a
particular specified percentage of votes in the
parliamentary or assembly
elections, it should not get any
seats, he suggested. He commended such a rule to be
adopted in case
the list system was to be adopted.
3.2.2.1. The views of Mr. Jaipal Reddy were
supported by Shri
D.V. Subba Rao, Member, Bar Council of
India and Shri Margabandhu, MP and Chairman, Tamil Nadu Bar
Council.
Mr. Margabandhu opined that such a system would
benefit the money bags and would be unable to reflect
regional interests and aspirations. Views to the same
effect were expressed by Shri Kapil Sibal, MP (Congress-I)
at the seminar held on 14th November 1998. Shri Ram
Jethmalani, the Hon'ble Minister for Urban
Development,
purporting to express his personal views, opposed the list
system. He said that Rajya Sabha
is already there to serve
the purpose behind the list system. He further opined that
introduction of list
system would give rise to two classes
of MPs - one elected directly and the other elected
according
to list system. He referred to Lord Jenkin's
report published some time in October-November in U.K.
(reference to this report was also made by Dr. S.C. Jain,
Member Secretary of Law Commission in his initial remarks
at the seminar held on 14th November, 1998) which
recommended alternative vote plus system. He
suggested
that the existing FPP system could be replaced by a single
transferable vote. List system, he
said, would help in
entrenching coalitions.
3.2.3. Shri Jana Krishnamurthy, Vice President
of
the BJP opined in the seminar held on 14th November, 1998
that there was a danger of the list system
encouraging
casteist and communal tendencies and is likely to promote
caste-based and relation based political
parties. He
pointed out that introduction of such a system would lead
to several small parties putting
up their candidates in
several constituencies with the hope that the totality of
the votes polled by them
would yield some seats under the
List system, which they would not have got under the FPP
system.
3.2.4. On the other hand, several political
parties, individuals and organisations supported
the list
system. In particular, the two Communist parties, the DMK
and the Shiromani Akali Dal supported
the introduction of
the list system wholeheartedly. Indeed, it was suggested
by Shri Sitaram Yechury (representing
the CPM), Shri T.R.
Balu (representing the DMK) and Shri Manjeet Singh Khera
(representing Shiromani Akali
Dal) that the number of seats
to be filed according to list system should be raised to
50% of the existing
strength of Lok Sabha and the
Legislative Assemblies, instead of restricting it to 25% as
suggested
by the Law Commission. Shri M.S. Khera opined
that the apprehension that the list system would encourage
casteist tendencies was misplaced. List system was also
strongly supported by Shri H.K. Dua, senior journalist
who
too wanted the strength of members to be elected on this
basis raised to 50%. According to
him, the Law
Commission's proposal was a definite improvement over the
existing electoral scene.
Shri A.B. Bardhan (CPI)
strongly commended the list system. According to him it
was overdue. He
said that prominent campaigners for the
political parties were usually tied up in campaigns for
their
parties all over the country and could not devote
adequate attention to their particular constituency. The
list system would help such persons to become members of
Lok Sabha/State Legislature. He pointed out that
such a
system was working quite well in Germany and Japan. He
sought to allay the apprehension that
criminals and money
bags were likely to get into Parliament/Legislatures
through this method.
Shri Rajinder Sachhar, senior
advocate and former Chief Justice of Delhi High Court
supported the
list system but he did not agree with the
concept of territorial units. He suggested that list
system
should be implemented on all-India basis. Shri
Inderjit, senior journalist, Shri N. Ram, senior
journalist and Editor, Frontline, Shri C.R. Irani, Editor,
The Statesman and Shri V.K. Samayak, President,
`Voters
Forum Foundation of India', New Delhi, and Shri S. Sahay,
senior journalist not only supported the
list suystem but
wanted it to be raised to 50% of the existing strength
instead of the suggested 25%.
Another senior advocate,
Shri Jitendra Sharma supported the idea but suggested that
it should be operated
on all-India basis. This, he said,
was necessary to curb casteism and communalism.
3.2.5. In
connection with the carving of
territorial units, one of the participants Shri
Shivaramakrishnan
pointed out that if the latest census was
made the basis, then the southern States, in particular
Kerala,
would be adversely affected. He pointed out that
because of better implementation of family planning
programmes, their population growth has slowed down while
the rate of growth in the northern States like U.P.
and
Bihar remained more of less unaffected. If in such a
situation, the latest census was made
the basis for
redrawing the territorial constituencies or territorial
units, the southern States
would stand to lose
substantially. It would really amount to punishing them
for successful
implementation of family planning
programmes. Facts and figures were cited in support of
such an
argument. It was stated that with a view to
allaying this apprehension, it should be provided that 1971
cansus shall be the basis of drawing up territorial units.
Indeed, such a provision already existed in clause
(3) of
article 81 of the Constitution. Since we are accepting
their plea, it is not necessary to
cite the facts and
figures in support of the said plea.
3.2.6. We may also refer to the views
expressed by
several persons and organisations who communicated their
views in response to our working
paper. Shri Arun Jaitley
(senior advocate), Rajasthan Legislative Assembly
Secretariat, Shri P.V.
Namjoshi, Delhi Bhartiya Grammin
Mahila Sangh, Shri C.K. Jain (former Secretary-General,
Lok Sabha),
Hill States People's Democratic Party,
Meghalaya, Registrar High Court of M.P., Jabalpur,.
opposed
the list system. Some others, namely , CPI(M),
Shri R.S. Narula, retired Chief Justice of Punjab and
Haryana High Court and Manipur People's Party, agreed with
the proposal to introduce the list system. Shri
R.S.
Narula suggested that the list system should be the only
method by which the totality of Members of
Lok Sabha and
Legislative Assemblies should be elected. Several other
individuals expressed varying
views which need not be
specifically referred to herein.
3.2.6.1. The fact of `wasting'
away of the votes
cast in the FPP system has also been recognised in other
parts of the world. Thus in
the response of the Electoral
Reform Society to the Commission on Local Government and
the Scottish
Parliament, (July, 1998), it has been
mentioned inter alia, that the FPP system distorted the
expressed
wishes of those who actually voted by observing
thus:-
"Local Democracy"
Question 2
One of the reasons for poor turnouts at local
government election
is that the votes of large numbers of
electors will not count, either within their local
constituency
or in the overall composition of the Council.
Until this has been corrected, changing administrative
arrangements will only have a limited effect.
The magnitude of this problem is not often
appreciated. For example, in the local authority elections
in April, 1995 in Edinburgh, 49% of those who actually
voted cast a vote that had no effect in securing the
election of any representative as they were
for losing
candidates. It is common in all first-past-the-post (FPTP)
elections for between 30% and 60%
of the votes cast to be
'wasted' in this way. In circumstances where they know
that one party holds
a seat with a large majority, many
electors are discouraged from turning out to vote."
"The results of the local authority elections in
April, 1995 show well the extent to
which the
present FPTP voting system distorts the expressed
wishes of those who actually
vote. In the city of
Glasgow Council, Labour, with 61% of the votes,
took 77 of the
83 seats, i.e. 93%. There were
also serious distortions among the smaller parties
in this
election: the Conservatives with 7% of the
votes, took 3 seats, while the SNP gained only 1
seat despite having 23% of the votes."
3.2.6.2. The Report of the Independent Commission on
the voting System ("Jenkins Report") summarises the Main
Electoral Systems in the world. These include
i) First Past the Post (FPTP)
ii) The Alternative Vote (AV)
iii) Supplementary vote
(SU)
iv) Second Ballot
v) List Systems
vi) Single Transferable Vote (STV)
vii) Mixed
Systems: the Additional member System
(including AV or SV Top-up) and Parallel Systems
(AMS)
3.2.6.3. The terms of reference of the said
Commission given in December,
1997, was to recommend the
`best alternative system' or combination of systems to the
existing commonly-called
`First Past the Post' system of
election to the Westminister Parliament. In doing this, it
was asked to
take into account four not entirely compatible
`requirements'. They were: i) broad proportionality; (ii)
the need for stable government; (iii) an extention of voter
choice, and (iv) the maintenance of a link between MPs and
geographical constituencies.
3.2.6.4. The Commission set out the basis of fair
election
viz., to the concept of `fairness' in electoral
outcomes, the place of political parties; and the role of
Members of Parliament.
3.2.6.4A. It emphasises that fairness to voters is
the first essential.
A primary duty underlying an
electoral system is to represent the wishes of the
electorate
as effectively as possible. The Commission
observes that the major fault of the First past the Post in
this context is that it distorts the desires of the voters.
It emphasises that the fact that voters do not get
the
representation they want is more important than that the
parties do not get the seats to which they
think they are
entitled.
3.2.6.5. After going through the
problems/advantages/disadvantages
of the existing First
Past the Post system, the said Commission recommended,
inter alia as under:
"The best alternative for Britain to the
existing First Past the Post system
is a two-vote
mixed system which can be described as either
limited AMS or AV Top-up.
The majority of MPs (80
to 85%) would continue to be elected on an
individual constituency
basis, with the remainder
elected on a corrective Top-up basis which would
significantly
reduce the disproportionality and the
geographical divisiveness which are inherent in
FPTP.
But it cannot be denied that democracy
postulates the working out of a system which is
best suited to the peculiar needs of the country."
3.2.6.6. It appears that a committee appointed
to
suggest electoral reforms in Spain, prepared the following
summary on an overview of the elctoral systems
obtaining in
various countries.
"Summary of Electoral System Types
There are hundreds of electoral systems
currently in use and many more permutations on each
form, but for the sake of simplicity we have
categorised electoral systems into
three broad
families:
.the plurality-majority,
.the semi-propotional, and
.the proportional.
Within these three we have ten "sub-families".
.First Past the Post (FPTP),
.the Block Vote (BV),
.the Alternative Vote (AV), and
.the Two-Round System (TRS) are all
plurality-majority systems.
.Parallel systems,
.the Limited Vote (LV) and
.the Single Non-Transferable Vote (SNTV)
are semi-proportional
systems.
.List PR,
.Mixed Member Proportional (MMP), and the
Single Transferable
Vote (STV) are all
proportional systems.
Every one of the 212 parliamentary
electoral
systems listed in The Global Distribution of Electoral
Systems can be categorised under one
of these ten headings,
and this family tree, though rooted in long-established
conventions, is the first
to take account of all the
electoral systems used for parliamentary elections in the
world today, regardless
of wider questions of democracy and
legitimacy. We hope it offers a clear and concise guide to
the choice
among them.
The most common way to look at electoral systems is
to group them by how closely
they translate national votes
won into parliamentary seats won; that is, how proportional
they are. To do
this, one needs to look at both the
vote-seat relationship and the level of wasted votes, For
example,
South Africa used a classically proportional
electoral system for its first democratic elections of
1994, and with 62.65% of the popular vote the African
National Congress (ANC) won 63% of the national seats
(see
South Africa: Election Systems and Conflict Management).
The electoral system was highly proportional,
and the
number of wasted votes (i.e., those which were cast for
parties which did not win seats in the
Assembly) was only
0.8% of the total. In direct contrast the year before, in
the neighbouring nation
of Lesotho, a classically
majoritarian First Past the Post (FPTP) electoral system
had resulted
in the Basotho Congress Party winning every
seat in the 65 member parliament with 75% of the popular
vote;
there was no parliamentary opposition at all, and the
25% of electors who voted for other parties were completely
unrepresented. This result was mirrored in Djibouti's
Block Vote election of 1992 when all 65 parliamentary
seats
were won by the Rasemblement Populaire pour le progr s with
75% of the vote.
However, under some circumstances,
non-proportional electoral systems (such as FPTP) can
accidentally
give rise to relatively proportional overall
results. This was the case in a third Southern African
country, Malwai, in 1994. In that election the leading
party, the United Democratic Front won 48% of the seats
with 46% of the votes, the Malawaian Congress Party won 32%
of the seats with 34% of the votes, and the Alliance
for
Democracy won 20% of the seats with 19% of the votes. The
overall level of proportionality was high,
but the clue to
the fact that this was not inherently a proportional
system, and so cannot be categorized
as such, was that the
wasted votes still amounted to almost one-quarter of all
votes cast."
3.2.6.7. There may varied electoral systems
prevalent in the world but many may not suit conditions
in
our society. On a threadbare analysis of various systems,
we feel that a combination of FPP and the
list systems as
detailed in this report may best meet out needs.
3.2.7. Accordingly, the Law Commission
is of the
opinion that the list system should be introduced as
suggested by it for the reasons assigned
hereinbefore. The
main objections against this system are two-fold: (a) that
it will lead to and encourage
casteist and communal voting
patterns and would lead to proliferation of caste based and
religion based
political parties and (b) that under the
list system, the umbilical cord between the voters in the
constituency
and the MPs/MLAs is missing. In our opinion
both the said objections are not well-founded. We shall
deal with both of them hereinbelow.
3.2.8. So far as the objection that the list
system
would lead to casteist and communal voting patterns
and caste-based and religion-based political parties is
concerned, the apprehension on this score can be allayed by
providing that the votes polled by such candidate
whose
deposit has been forfeited under sub-section (4) of section
158 of the Act shall