REPRESENTATION OF PEOPLE ACT, 1951- current issues

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

by KARTHIK.R
References: -

1. RPA, 1951

2. Economic and Political weekly article on Decriminalising Politics.

3. The Hindu articles-

1. MPs, MLAs to be disqualified on date of criminal conviction

2. Judicial overreach

3. Crime, caste and judicial restraint

4. Court to review ruling on barring persons in custody from polls

Essay

Essay
Topic : The recent rulings of the Supreme Court are going to have deep implication on the political gamut of the country. Do you agree with this statement? How far? What are your disagreements?
In the last couple of years India seems to be going through a sort of awakening process. The wide spread reach of internet, proliferation of news channels, newspapers, proactive journalism and mobile phones made social forums and discussions a routine thing in even the far flung areas of the country. This has made the ordinary person aware of the deep routed sickness of corruption in the Indian bureaucratic and political system. Political corruption is more a matter of debate in the nation because of the sheer size of it. 2G, CWG, Land Scams, Coalgate, Adarsh, Porngate, Bhanwri Devi kidnap and murder, Tatra Truck controversy are all household terms nowadays.
Amidst all this a PIL was lodged in the Supreme Court demanding cleansing of politics. The Court has answered the need of the hour by a very much debatable ruling by interpreting the RPA act. Further in a separate ruling the bench headed by CJI himself has declared right to reject implicit in the fundamental rights. These two rulings of the court are supposed to go a long way in changing the face of Indian politics. It can be hoped that once politics is clean the rest of the machinery will improve rapidly.
However these rulings are not without their controversies. The first of the rulings says that any legislator or a candidate for legislature will be disqualified immediately if a court of law has convicted or found accused, such a person, in offences as defined in the RPA act as offences, conviction in which can be awarded for two or more years of sentence and/or fine for the term of the conviction and further 6 years. The existent law gave the convict a window of three months to make an appeal in the higher court and if such an appeal lies, he can carry on as a legislator, as long as the higher court does not find him guilty. The ruling of the court has eliminated the window and the tainted legislator is disqualified immediately.
This ruling will have two major impacts. First after this ruling the old scourge of criminalization of politics will get cured. It is a welcome change. Every citizen wants to see a clean legislature. There has been a resentment of law breakers holding the place of law makers. Second impact is negative, that it gives an opportunity to innovative politicians wage their political war. A politician can just get lodged an FIR against a rival politician and get him disqualified, investigations notwithstanding. Considering the influence a sitting MLA or MP has on the police and other law enforcement agencies, it is a walk in the park for them. This can disrupt the democratic functioning of our system. While in the first system it is easy for a criminal to make his way into the legislature, after the ruling it will be impossible for people with tainted record to reach the legislature, but at the same time hard for anyone to challenge the sitting legislature.
The one side of the coin is so bright that it outshines the other in the eyes of a common man. A clean legislature, MPs and MLAs who command peoples respect from their honesty in life and actions seemed to be a distant dream but the ruling of the court has made it realistic. But does a clean legislature guarantee the fulfillment of the nations dreams, elimination of poverty, hunger, disease, grievance of the tribals, a dutiful police, early justice, corruption free bureaucracy and so on. In words of Hitler, in politics, the good intentions of a man can not make up for his incompetence. There is no guarantee that even a clean legislature can be competent enough to answer the grievances of this nation, which are so difficult to handle. There is no such guarantee, only a hope. But as long as there are criminals right in the parliament, even such hope does not exist.
There are costs which the nation will have to pay for such a clean legislature. A really potent politician who is well capable of leading his people out of the misery of circumstances might become the victim of false accusations, engineered investigation, and influenced judgment and his career may get ruined. The ruling has provided powerful people a very dangerous weapon to eliminate their rivals. It is not beyond ones imagination that many a political careers will be sacrificed for this dream of clean legislature. Furthur a tainted powerful man can always field people on his behalf such as his son or wife and reap all the benefits. This ruling can clean the legislature for the purpose of paper but not necessarily for the purpose of conduct. The prospect of a clean legislature on record are bright by this ruling but a clean legislature in intentions can by no means guaranteed.
In my opinion the criminalization of politics is not a result of loopholes in the law, but its a result of bovine and careless nature of the common man. There are criminals in the parliament not because the law has permitted them to contest but because we have chosen criminals to represent us. For decades we have been voting on caste lines, communal lines, language and resemblance. People in India vote an image, not a personality. Without knowing a sinlge thing about the real character of a candidate we have been voting all our lives for his caste, religion and language. At best we vote the party, but only very rarely we vote the man. We all get blown by the propaganda. Propaganda is driven by the finance and muscle of criminals. We never try to look for the real truth for ourselves, we only trust the propaganda. The result is before us, 33% criminal in our apex legislature. Even the new ruling can eliminate the criminals from the legislature but not crime from politics. Criminal may be in the jail, but his son or wife will ride the propaganda and reach the legislature. Nothing will be solved until the common man looks into his own conscience, puts away the lure of caste and religion and votes the righteous irrespective of his background.
The court has given its best by giving this ruling, but I dont see upside down changes in the political gamut until the voting behavior changes. The role of the media is paramount in unmasking the truth behind the propaganda, and the media is doing a commendable job indeed. However, the drive behind the activeness of the media is not an urge to strengthen the democracy but TRP. I dont mind this as long as awareness about the real character of those who rule us keeps on spreading.
Lets move on to the second ruling of the court. In a landmark judgment the court has declared that the right to reject all the candidates in an election if the voters dont find any of the candidate worthy of his vote, is a fundamental right implicit in the right to expression. Earlier, one had to vote at least one of the candidates whether he like it or not. In the ruling the court has directed the election commission to add the choice NOTA as an option. If a voter finds none of the candidates worthy of his support he can reject them all by NOTA. The right to reject exist in many other democracies like USA, UK. However the NOTA will not change in the election results since a person exercising NOTA will amount to not voted for anyone. It will add zero votes to all of the candidates. However, in the true right to reject if a sufficient number of voter choose NOTA, the election will become void and fresh election will be held considering the earlier candidates were hated by so many voters that it will amount to tyranny if any one of them reached legislature.
So in those term the new ruling will not have a substantial impact on the outcome of the election, however many people believe that the coming election will be more democratic because of the NOTA option. Many of the people do not go to vote simply because they do not like any of the candidates. This new option is supposed to increase the ballot substantially. I see the importance if this ruling in paving the way for real right to reject since no big change comes at once but step by step. Once the people at large become aware of the NOTA they will demand the full right to reject. The way I see it, the constitutional duty of the Supreme Court as being the protector of the social revolution has been duly fulfilled in paving the way for a new instrument of democracy. I can imagine the NGOs and other sections of the people demanding full fledged right to reject once the NOTA becomes a wide phenomenon.
As we have seen the series of ruling by the EC and Supreme Court have come a long way in democratic process in the country. But these rulings like mandatory disclosure by the candidates of their assets and liability, declaration of criminal record if any, monitoring of the election spending, stringent codes of conduct, prohibition of liquor, disclosures of large sums of donations received by parties have not changed by a great deal the ground realities. Most of the grievances of the people still remain unsolved. Many new grievances appear. The recent rulings of the court are, in my opinion new chapters in the book of electoral reforms. This book is a book after all, it cannot change much until the reader adopts the noblel reading in his life. Not much will change if the common man does not apply his mind and use his vote as if it was a valuable asset, because a vote is valuable indeed.
What greater luck for the rulers than those whom they rule do not think. Adolf Hitler

Neeraj Gaur