Law Commission Report No. 170- Reform of the Electoral Laws, 1999

8/18/2019 Law Commission Report No. 170- Reform of the Electoral Laws, 1999

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INDEX

FORWARDING LETTER

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

CHAPTERIV

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

CHAPTER

I

NECESSITY FOR PROVIDING LAW RELATING

TO INTERNAL DEMOCRACY WITHIN

POLITICAL PARTIES

CHAPTER

II

ANALYSIS OF VIEWS AND CONCLUSIONS

REGARDING THE LIST SYSTEM

CHAPTER

III

DEBARRING OF INDEPENDENT CANDIDATES

TO CONTEST LOK SABHA ELECTIONS

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CHAPTER

IV

ANALYSIS OF VIEWS AND CONCLUSIONS

REGARDING AMENDEMNTS TO THE TENTH

SCHEDULE TO THE CONSTITUTION

PART IV

CONTROL OF ELECTION EXPENSES

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

DIS!UALIFICATION

PART VI

CHAPTER

I

OTHER PROPOSALS IN THE WORKING PAPER

CHAPTER

II

PROCEDURE VISUALISED FOR PROSECUTION

IN CASE OF PERJURY DURING JUDICIAL

PROCEEDINGS

CHAPTER

III

INELIGIBILITY OF CANDIDATES TO CONSTEST

ELECTION UNLESS THE CANDIDATE

FURNISHES THE PARTICULARS REGARDING

THE LAWFUL ASSETS POSSESSED BY HIM, OR

HER AND HIS OR HER SPOUSE AND

DEPENDENT RELATIONS, AND THE

PARTICULARS REGARDING CRIMINAL CASES

PENDING HIMSELF OR HERSELF

PART VII

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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

SUMMARY OF RECOMMENDATIONS

LAW COMMISSION OF INDIA

ONE HUNDRED SEVENTIETH REPORT

ON

REFORM OF THE ELECTORAL LAWS

MAY, 1999

D.O. No.6(3)(35)/95LC(LS) !9/"5/99/"9."6.99

Dear Shri Ram Jethmalani,

I am forwarding herewith the 170th report on the

"Reform of the Electoral Laws."

. !he inistr# of Law, J$stice and %ompan# &ffairs,

'o(ernment of India had addressed a letter dated )11)*+, re$esting the then Law %ommission to $nderta-e a comprehensi(e st$d# of the meas$res re$ired to epedite the hearing of the election petitions. /n rd &$g$st, 1**, a reminder was sent to and recei(ed 2# the present Law %ommission. E(en some time 2efore the receipt of the letter dated rd &$g$st, 1**, the %ommission had s$o mot$ $nderta-en a thoro$gh re(iew of the Representation of the 3eople &ct, 1*+1 incl$ding pro(isions relating to hearing of election petitions. !he $nderl#ing o24ecti(e was to ma-e the electoral process more fair, transparent and e$ita2le. !he effort was also to red$ce the se(eral

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distortions and e(ils that had crept into the Indian electoral s#stem, to identif# the areas where the legal pro(isions re$ired strenthening and impro(ement and to s$ggest the re$isite meas$res in that 2ehalf. &ccordingl#, the Law %ommission prepared a wor-ing paper, to which three draft 5ills were also enclosed. /ne 5ill

pertained to amending the %onstit$tion of India, the other for amending the Representation of 3eople &ct, 1*+1 and the third to amend the Indian 3enal %ode.

. !he salient feat$res of the wor-ing paper incl$ded

inter6alia, introd$ction of List S#stem, &mendment to the !enth Sched$le to the %onstit$tion of India, c$rtailing the ependit$re on elections, amendment of section of the Representation of the 3eople &ct, enhancement of p$nishment for electoral offences, meas$res to ens$re ependitio$s disposal of election petitions 2# the igh %o$rt, amendment

of section *7 819 of the R.3. &ct, 1*+1.

:. !he wor-ing paper prepared 2# the Law %ommission was comm$nicated to all the recognised political parties, 2oth at the national and state le(el, the o$ses of 3arliament, the State Legislat$res, to the igh %o$rt, 5ar &ssociations, Election %ommission, prominent media personalities, associations and organisations interested in electoral reforms and man# other persons. & large n$m2er of responses were recei(ed from parties, persons,

organisations, associations and indi(id$als. !he Law %ommission also held fo$r seminars to elicit informed opinion and (iews of the political parties and responsi2le mem2ers of the p$2lic. !he first seminar was held on 1:th ;o(em2er, 1** at the

India International %entre, the second seminar was held at !hir$(ananthap$ram, the third seminar was held at 5angalore in the premises of the ;ational Law School of India 2le 3rime inister participated in the said seminar and

pro4ected their (iews.

+. &fter thoro$ghl# anal#sing the (iews o2tained from (ario$s $arters, the %ommission has prepared this report on electoral reforms. !he report recommends (ario$s

meas$res which are essential to ma-e o$r electoral s#stem more representati(e, fair and transparent, to strengthen o$r democrac#, to arrest and re(erse the prcess of proliferation and splintering of political parties and to introd$ce sta2ilit# in o$r go(ernance. ?ith a (iew to achie(e the said o24ecti(es, we ha(e s$ggested incl$sion of a chapter reg$lating the formation and f$nctioning of political parties, partic$larl# with a (iew to ens$re internal democrac#. !he %ommission has eamined in6depth the necessit# of introd$cing the List S#stem in the co$ntr# and has made recommendations accordingl#. !he law of defections contained in the !enth Sched$le to the %onstit$tion has also 2een re(ised@ it is now proposed that

a pre6election front)coalition of political parites sho$ld 2e treated as a "political part#" for the p$rposes of the !enth Sched$le. !he %ommission has also s$ggested that an#


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political part# which recei(es less than +A of the total (alid (otes cast in the general election to the Lo- Sa2ha or to a State Legislati(e &ssem2l#, as the case ma# 2e, shall not 2e entitled to an# seat in the Lo- Sa2ha)Legislati(e &ssem2l#, e(en if it wins an# seat8s9. !he %ommission has also opined that the time is now ripe

for 2arring indepndent candidates from contesting elections for Lo- Sa2ha and Legislati(e &ssem2lies and has made recommendations accordingl#. !he reasons for these se(eral

meas$res ha(e 2een stated ela2oratel# in o$r Report.

B. !he %ommission has also reiterated its proposal to

delete Eplanation6I to section 77819 of the R.3. &ct, 1*+1, which has 2een strongl# criticised in se(eral 4$dgements of the S$preme %o$rt and all discerning persons. ?e ha(e also recommended enactment of pro(isions re$iring the political parties to maintain acco$nts, ha(e them a$dited and file them 2efore the election %ommission. /n State C$nding of political parties, the %ommission has

reiterated the recommendations in the Inder4it '$pta %ommittee report s$24ect to certain reser(ations set o$t in paragraph :..:. of o$r Report. Similarl# pro(isions are

in (og$e in se(eral other democratic co$ntries.

7. !he %ommission has also recommended that in case of

electoral offences and certain other serio$s offences, framing of a charge 2# the %o$rt sho$ld itslef 2e a gro$nd of dis$alification in addition to con(iction. It has reiterated se(eral other proposals set o$t in wor-ing paper ecept with regard to raising deposits in the case of independent candidates. !he raising of deposits for independents is $nnecessar# in (iew of o$r other

recommendations to 2ar the independents altogether and permitting onl# political parties 8whether recognised or not9 to contest elections s$24ect to the re$irement of o2taining +A of the total (alid (otes cast to ena2le them

to get a seat in Lo- Sa2ha)State &ssem2l#.

. !he %ommission has, with a (iew to chec- false

complaints, proposed to amend the rele(ant pro(isions of the %riminal 3roced$re %ode.

*. In the interest of transparenc#, we ha(e also

s$ggested pro(isions ma-ing it o2ligator# $pon e(er# candidate to declare the assets possessed 2# him or her or

2# his)her spo$se and dependent relations and the partic$lars regarding criminal cases pending against

him)her, in the nomination paper itself.

10. ?e ha(e also s$ggested meas$res for ens$ring

sta2ilit# of go(ernments. /ne of the meas$res s$ggested is a new r$le, R$le 1*& in the R$les of 3roced$re and %ond$ct of 5$siness in Lo- Sa2ha. ?e ha(e stressed the necessit# of ha(ing one election once in fi(e #ears for Lo- Sa2ha as well as State &ssem2lies and made some s$ggestions in that

2ehalf.

11. ?e ha(e also set o$t the desira2ilit# of adopting

the r$le re$iring that on# a candidate o2taining +0A1 (otes will 2e declared elected and the holding of a


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"r$n6off" election where(er necessar#. !he concept of negati(e (ote also has 2een disc$ssed and recommended for

consideration.

1. !he %ommission is of the considered (iew that there

is $rgent and cr#ing necessit# to implement the

afore6mentioned meas$res to reform the electoral s#stem and to strengthen the democrac# in o$r co$ntr#.

?ith regards,

o$rs sincerel#,

(#.P. $EEVAN REDDY)

S%&' R $*+%-',

M'-'+*& o& L0, $+'2* Co4- A'&, S%+&' #%-,

N*0 D*%'.

PART I #278&o- o E*2+o& R*o&

CHAPTER I INTRODUCTION

1.1.1. !he pream2le to 2e %onstit$tion of India declares that the people of India ha(e resol(ed to constit$te India

into a so(ereign democratic rep$2lic with the fo$r6fold o24ecti(e, namel#, to sec$re to all its citiFens, 4$stice social, economic and political@ li2ert# of tho$ght, epression, 2elief, faith and worship@ e$alit# of stat$s and of opport$nit# and to promote among them all fraternit#, ass$ring the dignit# of the indi(id$al. &s wo$ld 2e e(ident from the pro(isions in 3art = and 3art =I of the %onstit$tion, we ha(e esta2lished for o$rsel(es a parliamentar# form of go(ernment patterned on the 5ritish model. In a parliamentar# democrac#, there is no formal separation 2etween the 3arliament and the political eec$ti(e 8%o$ncil of inisters9. !he political eec$ti(e is a part and parcel of the 3arliament and is drawn from

it. !he part# or the gro$p of parties which has a ma4orit# in the lower o$se or which en4o#s the confidence of the lower o$se, is in(ited 2# the 3resident to form the go(ernment. In other words, in a parliamentar# democrac#, the political eec$ti(e is not elected as s$ch 2# the people. E(en the 3resident, the tit$lar ead of the State is not elected 2# the people directl# 2$t 2# the em2ers of the 3arliament and the State Legislat$res. It is for this reason that the S$preme %o$rt has held repeatedl# e(en 2efore the enactment of the %onstit$tion 8Cort#6Second9 &mendment &ct, 1*7B, in Ram Jawa#a Gap$r (. State of 3$n4a2 8&IR 1*++ S% +:*9 and in Samsher Singh (. State of 3$n4a2 8&IR 1*7: S% 1*9 that the position of the

3resident $nder o$r %onstit$tion is a-in to the 5ritish onarch. In other words, he is a constit$tional head of the State. !he real go(erning power (ests in the political


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eec$ti(e. Similar is the position in the States. !he s#stem o2taining in this co$ntr# is wholl# different from the one o2taining in the


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not otherwise dis$alified $nder an# of the pro(isions of the %onstit$tion or an# law made 2# 3arliament or the appropriate Legislat$re. &rticle 7 empowers 3arliament to pro(ide 2# law with respect to all matters relating to, or in connection with, elections to either o$se of 3arliament or to the o$ses of either o$se of the

Legislat$re of a State incl$ding the preparation of electoral rolls, the delimitation of constit$encies and all other matters necessar# for sec$ring the d$e constit$tion of s$ch o$se or o$ses. !his power, the article sa#s clearl#, can 2e eercised 2# 3arliament from time to time s$24ect to the pro(isions of the %onstit$tion. &rticle confers a similar power $pon the Legislat$re of a State in so far as a pro(ision in that 2ehalf is not made 2# 3arliament. &rticle * creates a 2ar to interference 2# co$rts in electoral matters. %la$se 8a9 declares that the (alidit# of an# law relating to the delimitation of the constit$encies or the allotment of seats to s$ch constit$encies, made or p$rporting to 2e made $nder article

7 or shall not 2e called in $estion in an# co$rt. %la$se 829 declares that no election to either o$se of 3arliament or to the o$se or either o$se of Legislat$re of a State shall 2e called in $estion ecept 2# an election petition presented to prescri2ed a$thorit# and in

the prescri2ed manner.

1... 3$rs$ant to article + to 7, 3arliament has

enacted the Representation of the 3eople &ct, 1*+0 and Representation of the 3eople &ct, 1*+1 82esides certain other minor enactments and orders9 which co(er the entire gam$t of elections to 3arliament and State Legislat$res.

CHAPTER III #278&o- o +%* :;*2+ -*&+7*-

- Co''o-


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amending the Representation of 3eople &ct, 1*+1 and the third to amend the Indian 3enal %ode. ?hile preparing the wor-ing paper and the accompan#ing 5ills, the Law %ommission too- into consideration the 5ill which was prepared in 1**0 2# the late Shri Dinesh 'oswami, the then inister for Law, J$stice and %ompan# &ffairs, 2ased on a

consens$s arri(ed at 2etween all the political parties. Indeed, we too- the said 5ill as the starting point and s$ggested (ario$s other meas$res which in o$r opinion were called for to achie(e the aforementioned o24ecti(es. ?e also too- into acco$nt a 2roch$re p$2lished 2# the Election %ommission of India containing (ario$s s$ggestions for amending the Representation of the 3eople &ct, 1*+1 ;otice was also ta-en of se(eral decisions of the S$preme %o$rt on (ario$s pro(isions of the Representation of the 3eople &ct, 1*+1 hereinafter referred to as the R.3.&ct. !he salient

feat$res of the wor-ing paper were the followingK

1... Introd$ction of the List S#stem. !he Law

%ommission too- note of the fact that the first6past6the6post> s#stem pre(ailing in o$r co$ntr# had gi(en rise to se(eral ine$ities and distortions in o$r electoral process partic$larl# on acco$nt of the m$ltiplicit# of the political parties. !here are certain States in India where there are three or fo$r recognised political parties, more or less e(enl# 2alanced. In s$ch a sit$ation what is happening is that the winning candidate is recei(ing, in man# cases, 0A or less of the (alid (otes cast. !he remaining 70A or more (otes polled 8cast in fa(o$r of the defeated candidates incl$ding independents9 are practicall# going waste, witho$t representation, and witho$t a (oice in the representati(e 2odies, namel#,

3arliament and the State Legislat$res. It was tho$ght ad(isa2le to pro(ide a (oice and a representation to the wasted (otes which indeed (er# often constit$ted a ma4orit#

of the total (otes cast.

1...1. &nother consideration in this 2ehalf was that the

first6past6the6post 8C339 s#stem now in (og$e is not #ielding a correct pict$re of the (oter preferences. In other words, there is no commens$ralit# 2etween the total (otes cast in a State or in the co$ntr#, as the case ma# 2e, and the seats o2tained 2# the parties. !o 2e more precise, what is happening is that a political part# which has recei(ed, sa#, A of the total (otes case in the

co$ntr# is o2taining 70A of the seats in 3arliament, whereas another political part# which has polled, sa#, *A of the (otes, is getting +A of the seats in 3arliament. & swing> of to per cent (otes is res$lting in a h$ge

difference in the n$m2er of seats won.

1.... !here was #et another sit$ation where a political

part# is polling a s$2stantial ch$n- of (otes cast in a gi(en State in parliamentar# elections 2$t is not a2le to

get a single seat in the 3arliament from that State.

1.... ?ith a (iew to rectif#ing and redressing the

aforementioned distortions and ine$ities, the Law

%ommission was of the pro(isional opinion that introd$cing a List S#stem ma# ser(e to redress the aforementioned


10/101

distortions, at least to a partial etent. Cor this p$rpose, we loo-ed to the electoral s#stem o2taining in certain other co$ntries incl$ding 'erman# where a mied s#stem 8C33 and list s#stem9 is in force. In 'erman#, part of the seats are filled on the 2asis of C33 s#stem where$nder the mem2ers are elected from territorial

constit$encies and the remaining mem2ers are chosen from the lists p$t forward 2# the political parties. ?e did not howe(er thin- it ad(isa2le to import the 'erman s#stem whole6hog for it was fo$nd to 2e etremel# complicated and diffic$lt of operation in a co$ntr# li-e o$rs where a siFea2le ch$n- of pop$lation is illiterate and is not a2le

to operate s$ch a complicated electoral s#stem.

1...:. ?e tho$ght of finding a s#stem more s$ited to o$r

geni$s and to the conditions pre(ailing in o$r co$ntr#. !ho$gh it wo$ld ha(e 2een ad(isa2le to s$ggest that +0A of the n$m2er of mem2ers in Lo- Sa2ha or Legislati(e &ssem2lies of the States sho$ld 2e filled on the 2asis of

list s#stem, we pegged it at +A, not onl# as a starting point, 2$t also with a (iew not to gi(e room for growth of, or enco$ragement to, caste62ased political parties. ?e did not wish to enco$rage in an# manner the caste62ased political parties or the (oting patterns 2ased on caste

considerations.

1...+. &ccordingl#, it was s$ggested that in the Lo-

Sa2ha as well as in the State Legislati(e &ssem2lies, the present strength sho$ld 2e increased 2# +A of the eisting strength which increased strength sho$ld 2e filled on the 2asis of list s#stem. !he list s#stem was to 2e confined onl# to recognised political parties 8R339. !here wo$ld 2e

no separate (ote nor a separate election for the mem2ers to 2e chosen $nder the list s#stem.

1...B. It was s$ggested that each recognised political

part# sho$ld p$t forward its list of candidates, which will 2e recei(ed, scr$tinised and (alid list p$2lished along with the nominations for elections from the territorial constit$encies. It was s$ggested that for this p$rpose, territorial $nits> 2e designated@ so far as the 2igger States are concerned, each State shall 2e a territorial $nit 2$t in the case of small States, the# sho$ld either 2e cl$22ed with an ad4acent 2igger State or 2e cl$22ed together to form a territorial $nit. 8!his idea of

territorial $nits was s$ggested to 2e adopted onl# in the case of parliamentar# general elections and not in the case of elections to the State Legislat$res.9 &t the end of polling and co$nting of (otes for the territorial constit$encies, the Election %ommission, it was s$ggested, sho$ld ta2$late (otes polled 2# each R33 in a gi(en State)territorial $nit and the seats meant to 2e filled $p $nder the list s#stem 2e distri2$ted among the R33s in proportion to the (otes polled 2# them. Cor achie(ing the said p$rpose, it was fo$nd necessar# to amend not onl# the Representation of the 3eople &ct, 1*+1 2$t the %onstit$tion of India itself in the first instance. &ccordingl#, the s$ggested amendments 2oth to the %onstit$tion of India and

the Representation of 3eople &ct, 1*+1 were shown in the 5ills accompan#ing the wor-ing paper.


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1...7. &nother connected s$ggestion was to delete article

1 of the %onstit$tion which empowers the 3resident to nominate two mem2ers of &nglo6Indian comm$nit# to the Lo- Sa2ha. It was eplained that this pro(ision which ma# ha(e 2een good when the %onstit$tion was enacted, has 2ecome

irrele(ant with the s$2stantial fall in the n$m2er of &nglo6Indians o(er the #ears and in the light of the

minisc$le n$m2er of this comm$nit# o2taining toda#.

1... &mendment to the !enth Sched$le to the

%onstit$tion. !he !enth Sched$le to the %onstit$tion was inserted 2# the %onstit$tion 8Cift#6second &mendment9 &ct, 1*+. !he Sched$le pro(ides for dis$alification of a mem2er of 3arliament of a State Legislat$re in two sit$ations, namel# 8a9 if he (ol$ntaril# gi(es $p his mem2ership of political part# on whose tic-et he was elected and 829 if he (otes or a2stains from (oting, witho$t prior permission of the part#, in s$ch o$se

contrar# to an# direction iss$ed 2# the political part# on whose tic-et he has 2een elected and s$ch (oting or a2stention has not 2een condoned 2# s$ch political part# within 1+ da#s from the date of (oting of a2stention. !he Sched$le howe(er introd$ced in paragraph thereof the concept of split>. In short, the paragraph pro(ided that if not less than 1)rd mem2ers of the legislat$re part# defect, the dis$alification pro(ided in paragraph shall not operate. 3aragraph : pro(ided that the r$le of dis$alification in paragraph shall not appl# where two or more political parties merge. 3aragraph + pro(ided an eemption in fa(o$r of Spea-er)Dep$t# Spea-er of %hairman)Dep$t# %hairman, as the case ma# 2e, from the

operation of paragraph . 3aragraph B pro(ided that in case of disp$te on the $estion of dis$alification on the gro$nd of defection, the same shall 2e decided 2# the Spea-er or the %hairman of the o$se concerned. 3aragraph 7 2arred the 4$risdiction of the co$rts in respect of matters connected with the dis$alification of a mem2er of a o$se $nder the said Sched$le. 8!his paragraph has, howe(er, 2een declared $nconstit$tional 2# the S$preme %o$rt in Gihota (. Machilh$ 8&IR 1** S% :19. 3aragraph B pro(ided for r$les to 2e made to carr# o$t the o24ects of

the Sched$le.

1...1. !he eperience of this co$ntr# with the !enth

Sched$le since its introd$ction has not 2een happ#. It has led to inn$mera2le a2$ses and $ndesira2le practices. ?hile the idea of dis$alification on the 2asis of defection was a right one, the pro(ision relating to split> has 2een a2$sed 2e#ond recall. It was accordingl# s$ggested 2# $s that paragraphs and : sho$ld go altogether with the res$lt that paragraph alone remains 8along with the eemptions in paragraph +9. !he $nderl#ing idea was that a person elected on the tic-et of a political part# sho$ld remain with it d$ring the life of the o$se or lea(e the o$se. It was also s$ggested 2# the Law %ommission that the decision on the $estion of dis$alification $nder the said Sched$le sho$ld 2e entr$sted to the 3resident 8in the

case of 3arliament9 and to the 'o(ernor 8in the case of State Legislat$re9 who shall render their decision in accordance with the opinion of the Election %ommission


12/101

which shall 2e cons$lted in that 2ehalf.

1.... Cor achie(ing the said o24ecti(e, necessar#

amendments to the !enth Sched$le to the %onstit$tion were appended to the wor-ing paper. ?e are also proposing herein amendments to articles 10819 and 1*1819 of the

%onstit$tion which are necessar# to gi(e effect to o$r recommendations. !he amendments in articles 10819 and

1*1819 are to the following effectK6

819 In cla$se 819 of article 10, after s$26cla$se 8e9,

the following s$26cla$se 8f9, shall 2e inserted 2efore the Eplanation 6

"8f9 if he is dis$alified for 2eing a mem2er of

either o$se of 3arliament $nder the !enth Sched$le."

89 %la$se 89 to article 10 shall 2e deleted.

Similarl#, in article 1*1819, s$26cla$se 8f9 as

follows shall 2e added after s$26cla$se 8e9 2$t 2efore the EplanationK6

"if he is dis$alified for 2eing a mem2er of

Legislati(e &ssem2l# or Legislati(e %o$ncil of a State $nder the !enth Sched$le"

89 %la$se 89 to article 10 shall 2e deleted.

1..:. %$rtailing the ependit$re on elections. !he net

ma4or proposal p$t forward 2# the Law %ommission pertained to red$cing the ependit$re on elections and also to reg$late the receipts and ependit$re 2# the political parties. !he iss$e of State f$nding was also considered in this contet. !he first proposal in this 2ehalf was to delete Eplanation 1 to section 77 of the Representation of the 3eople &ct, 1*+1. 5esides the a2$se inherent in the said Eplanation, it was pointed o$t that the necessit# of deleting the Eplanation had 2een pointed o$t 2# the S$preme %o$rt in se(eral decisions incl$ding %.;ara#an Swami (. %.G.Jaffar Sheriff H1**: S$pp. 89 S%% 170 and 'ada-h ashwantrao Gana-arrao (. 5alasahe2 =i-he 3atil H1**: 819 S%% B. It was pointed o$t in these decisions that the corr$pt practice of inc$rring or a$thorising of ependit$re in contra(ention of s$26section 8B9 of section 1 has lost its significance and $tilit# with the introd$ction of Eplanation 1 to section 77. It was f$rther pointed o$t 2# the co$rt that the Eplanation (iolates the spirit of the &ct and a hope was epressed that the 3arliament wo$ld delete the said Eplanation as earl# as possi2le to remo(e the impression that the enactment and retention of the same was deli2erate and was inspired 2# moti(es which co$ld not 2e said to 2e gen$ine, democratic or s$fficientl# 4$stifia2le. !he Law %ommission had also referred in etenso in its wor-ing paper to the decision of S$preme %o$rt in Ganwarlal '$pta (. &marnath %hawla 81*7+ 89 S%% B:B9, to get o(er which decision indeed, Eplanation 1 was enacted. !he s$ggestion of the Law %ommission was that deletion of Eplanation 1 wo$ld


13/101

2ring the legal position in conformit# with the r$ling in Ganwarlal '$pta>s case.

1..:.1.!he second s$ggestion in this 2ehalf was to

introd$ce pro(isions ma-ing it o2ligator# $pon the political parties to maintain reg$lar acco$nts clearl# and

f$ll# recording therein all amo$nts recei(ed 2# them and all ependit$re inc$rred, as is the legal re$irement in 'erman#. It was f$rther s$ggested that the said acco$nts sho$ld 2e d$l# got a$dited at the end of each #ear and the a$dited acco$nts s$2mitted to the Election %ommission 2efore the prescri2ed date e(er# #ear. Election %ommission was re$ired to p$2lish the said acco$nts for p$2lic information. !his proposal was made to introd$ce an element of transparenc# and openness in the financial matters of the political parties and is 2ac-ed 2# the 4$dgment of the S$preme %o$rt in 'a4anan 5apat (. Datta4i eghe 81**+ S%% :79. !he said decision emphasised the desira2ilit# and necessit# of the political parties

maintaining tr$e and correct acco$nt of their receipts and ependit$re incl$ding the disclos$re of the so$rces of receipt. It was pointed o$t in the decision that this was essential to ens$re the p$rit# of elections and to pre(ent mone# from infl$encing the o$tcome of elections. It was pointed o$t 2# the Law %ommission in its wor-ing paper that the aforesaid pro(isions in con4$nction with the pro(isions contained in section *&, wo$ld ad(ance the o24ecti(e of ens$ring p$rit# of elections 2# pre(enting the mone#6power, in partic$lar 2lac- mone#6power and mone# collected from

s$spect so$rces from infl$encing the elections.

1..:.. !he third proposal in this 2ehalf pertained to

State f$nding. /n this aspect, we merel# reprod$ced the pro(isions contained in the 5ill prepared 2# the then Law inister, late Shri Dinesh 'oswami in 1**0 since the# were 2ased $pon a consens$s among the political parties, in(iting at the same time the response of all concerned and

informed citiFenr# to the said proposal.

1..+. &mendment of section and enhancement of

p$nishment for electoral offences. !he net ma4or proposal p$t forward in the wor-ing paper prepared and circ$lated 2# the Law %ommission pertained to amendment of section and of sections 17819, 1:589, 1+819, 1B89 and insertion of a new section 1B& in the &ct. It was also s$ggested

that p$nishments prescri2ed 2# se(eral sections in chapter I& of the Indian 3enal %ode 1B0 sho$ld 2e enhanced. &ll the a2o(e sections in the &ct as well as the Indian 3enal %ode are election offences and $ite serio$s too. !he main p$rpose 2ehind the s$ggested amendments was to pro(ide 8a9 that framing of charges 2# the co$rt sho$ld 2# itself 2e a gro$nd for dis$alif#ing a person from 2eing a candidate for election and 829 to enhance the p$nishments pro(ided for election offences contained in the Representation of 3eople &ct, 1*+1 and chapter I& of the Indian 3enal %ode so as to attract the proced$re prescri2ed in the %riminal 3roced$re %ode for trial of warrant cases. It ma# 2e remem2ered that framing of charges is o2ligator# in the

warrant cases 2$t not in s$mmons cases. 8In the case of offences tria2le according to the proced$re prescri2ed for trial of s$mmons cases, framing of charges lies within the


14/101

discretion of the co$rt and is not o2ligator#.9 !he a2o(e proposal was p$t forward for the reason that persons ind$lging in election offences are $s$all# persons powerf$l in political field and who command mone# and m$scle6power with the res$lt that no witness comes forward to depose against them. Since no independent witness comes forward

to depose against s$ch persons, the prosec$tion la$nched against them ine(ita2l# ends in discharge or ac$ittal, as the case ma# 2e. Indeed, a similar proposal was also p$t forward sometime ago 2# the Election %ommission too. It ma# 2e clarified that the aforesaid amendment was proposed onl# in s$26section 819 of section and not in other

s$26sections of section .

1..B. /ther proposals. !he other proposals contained in

the wor-ing paper pertained to 8a9 enhancing the deposit in the case of independent candidates and candidates of $nrecognised political parties. !his s$2stantial increase was s$ggested with a (iew to disco$rage independents and

non6serio$s candidates from contesting elections there2# ma-ing the elections c$m2ersome, epensi(e and $nmanagea2le 6 indeed, farcical in some cases@ 829 steps designed to ens$re epeditio$s disposal of election petitions 2# the igh %o$rt. !he Law %ommission did not agree with the s$ggestion of the Law inistr# to entr$st the trial of election petitions to special tri2$nals instead of the igh %o$rts. It was pointed o$t in the wor-ing paper that s$ch an eperiment was $nderta-en earlier and was gi(en $p as a fail$re and that onl# thereafter was the trial of election petitions entr$sted to igh %o$rts@ 8c9 amendment of section *7819 of the &ct in the light of the decision of the S$preme %o$rt in 5hagmal (. 3ra2h$ Ram 8&IR 1*+ S%%

1+09 and 8d9 certain other amendments set o$t in the wor-ing paper.

CHAPTER IV =*&- L0 o- Po'+'2 P&+'*

?hether 2# design or 2# omission, o$r %onstit$tion

does not pro(ide for the constit$tion and wor-ing of the political parties, tho$gh the# are at the heart of a parliamentar# democrac#. & parliamentar# democrac# witho$t political parties is inconcei(a2le. et the %onstit$tion 8ecept the !enth Sched$le which was inserted onl# in the #ear 1*+9 does not e(en spea- of political parties whereas

article 1 of the 'erman %onstit$tion 85asic Law for the Cederal Rep$2lic of 'erman#, 1*:*9, which %onstit$tion was also enacted almost sim$ltaneo$sl# with o$r %onstit$tion, pro(ides for the esta2lishment and wor-ing of the political

parties. !he &rticle reads th$sK

"&rticle 1 83arties9

819 !he parties shall help form the political will of the people. !he# ma# 2e freel# esta2lished. !heir internal organisation shall conform to democratic principles. !he# shall p$2licl# acco$nt for the so$rces and $se of their f$nds and for

their assets.

89 3arties which 2# reason of their aims or the


15/101

cond$ct of their adherents see- to impair or do awa# with the free democratic 2asic order of threaten the eistence of the Cederal Rep$2lic of 'erman# shall 2e $nconstit$tional. !he Cederal %onstit$tional %o$rt shall r$le on the $estion of

$nconstit$tionalit#.

89 Details shall 2e the s$24ect of federal laws."

1.:.1.1. 3$rs$ant to article 189, the 'erman 3arliament has enacted the Law on 3olitical 3arties> in the #ear 1*B7, which has 2een amended from time to time. Section 1 of the Law sets o$t "'eneral 3ro(isions". &rticle 1 which deals with the constit$tional stat$s and f$nctions of the

parties, reads th$sK

"&rticle 1. %onstit$tional Stat$s and C$nctions of the 3arties.

819 3olitical parties form a constit$tionall# integral part of a free and democratic s#stem of go(ernment. !heir free and contin$o$s participation in the formation of the political will of the people ena2les them to discharge the p$2lic tas-s which are inc$m2ent $pon them p$rs$ant to the 5asic law 8'r$ndgesteF99 and which the# $nderta-e to f$lfil to the 2est of their a2ilit#.

89 !he parties shall participate in the formation of the political will of the people in all fields

of p$2lic life, in partic$lar 2#K 2ringing their infl$ence to 2ear on the shaping of

p$2lic opinion@ inspiring and f$rthering political ed$cation@ promoting an acti(e participation 2# indi(id$al

citiFens in political life@ training talented people to ass$me p$2lic responsi2ilities@

participating in Cederal, Land and Local 'o(ernment elections 2# nominating candidates@

eercising an infl$ence on political trends in parliament and the go(ernment@

initiating their defined political aims in the national decision6ma-ing processes@ and

ens$ring contin$o$s, (ital lin-s 2etween the people and the p$2lic a$thorities.

89 !he parties shall define their aims in the form of political manifestos.

8:9 !he parties shall $se their f$nds ecl$si(el#

for the f$lfilment of their o2ligations $nder the 5asic Law and this Law."

1.:.1.. &rticle defines the epression "3olitical

3art#". It reads th$sK

"&rticle . Definition of the term "3olitical 3art#".

819 3arties are associations of citiFens who set o$t to infl$ence either permanentl# or for a


16/101

length# period of time, the formation of political opinions at Cederal or Land le(el and to participate in the representation of the people in the Cederal 3arliament 85$ndestag9 or regional parliaments 8Landtage9 pro(ided that the# offer s$fficient g$arantee of the sincerit# of their aims

in the general character of their circ$mstances and attendant conditions, partic$larl# in regard to the siFe and strength of their organisation, the n$m2er of registered mem2ers and their p$2lic image.

part# mem2ers ma# onl# 2e nat$ral persons.

89 &n organisation loses its legal stat$s as a

part# if it has not participated for a period of si #ears in either a Cederal election or a Landtag

election with electoral proposals of its own.

89 3olitical organisations are not deemed to 2e

parties if@

1. most of their mem2ers or the mem2ers of their

eec$ti(e committees are foreigners@ or . the registered seat of 2$siness is located o$tside the p$r(iew of the present Law."

1.:.1.. &rticle empowers the political parties to

instit$te legal proceedings in their own name and similarl# 2e s$ed in their own name.

1.:.1.:. article : pro(ides that the name of a part# m$st

2e clearl# disting$isha2le from that of other eisting parties and that this r$le is also applica2le to acron#ms.

In election campaigns and the elections, onl# the registered name or acron#m ma# 2e $sed.

1.:.1.+. &rticle + pro(ides for e$al treatment of all the political parties. It reads as $nderK

"&rticle +. E$alit# of !reatment.

819 ?here a p$2lic a$thorit# pro(ides facilities or

other p$2lic ser(ices for $se 2# a part#, it m$st accord e$al treatment to all other parties. !he scale of s$ch facilities and ser(ices ma# 2e grad$ated to conform with the importance of the parties to the minim$m etent needed for the achie(ement of their aims. !he importance of a part# is 4$dged in partic$lar from the res$lts of pre(io$s elections for central or regional go(ernment. In the case of a part# represented in the 5$ndestag 2# a parliamentar# part#, the significance accorded to it m$st amo$nt to at least

half that granted to an# other part#.

89 &s regards the granting of p$2lic ser(ices in

connection with an election para 819 applies onl# for the d$ration of the election campaign to

parties which ha(e s$2mitted election proposals. 89 !he p$2lic ser(ices referred to in para 1 ma#


17/101

2e made dependent $pon certain preconditions which all parties ha(e to f$lfil.

8:9 Section I= shall remain $naffected."

1.:.1.B. Section II deals with internal organisation of

the political parties. &rticle B is of great significance and ma# 2e set o$t in f$llK

"&rticle B. Stat$tes and 3rogramme.

819 & part# m$st ha(e written stat$tes 8articles

of association9 and a written programme. Regional organisations cond$ct their affairs on the 2asis of their own stat$tes pro(ided that the stat$tes of their immediatel# s$perior regional organisation do not contain an# pro(isions 2earing on this matter.

89 !he Stat$tes m$st contain pro(isions onK

1. !he name and acron#m 8if $sed9, the registered seat and the acti(ities of the part#. . !he admission and resignation of mem2ers.

. !he rights and d$ties of mem2ers. :. &dmissi2le disciplinar# meas$res against mem2ers

and their ecl$sion from the part# 8&rticle 10, paras to +9.

+. &dmissi2le disciplinar# meas$res against regional organisations.

B. !he general organisation of the part#. 7. %omposition and powers of the eec$ti(e

committee and other organs. . matters which ma# onl# 2e decided $pon 2# a

meeting of mem2ers ad representati(es p$rs$ant to ;o.*.

*. !he preconditions, form and time limit for con(ening meetings of mem2ers and representati(es

and the official recording of resol$tions. 10. Regional organisations and organs which are

a$thorised to s$2mit or sign election proposals for elections to parliaments inasm$ch as three are no

rele(ant legal pro(isions. 11. &n o(erall (ote 2# mem2ers and the proced$re

to 2e adopted when the part# or a regional organisation or to merge with another part# or parties p$rs$ant to &rticle *, para . !he res$lt

of the o(erall (ote determine whether the resol$tion is confirmed, amended or rescinded. 1. !he form and content of a financial str$ct$re

which satisfies the r$les of Section = of this Law.

89 !he eec$ti(e committee informs the Cederal Ret$rning /fficer ofK

1. !he part#>s stat$tes and programme. . !he names of the mem2ers of the eec$ti(e

committee of the part# and its regional organisations together with their d$ties.

. !he dissol$tion of the part# or a regional organisation. &mendments to sentence 1819 and 89

a2o(e m$st 2e notified 2# 1 Decem2er of the gi(en calender #ear. !he rele(ant doc$ments are held 2#


18/101

the Cederal Ret$rning /fficer and made a(aila2le to the p$2lic for per$sal and inspection. /n re$est, copies of the doc$ments are pro(ided free

of charge.

8:9 3arties whose organisation is restricted to the

territor# of a Land are go(erned 2# the pro(isions set o$t in the present Law for parties as a whole."

1.:.1.7. &rticle 7 deals with the organisation of political

parties 2oth at the national and regional le(el.

1.:.1.. &rticle pro(ides that the mem2ers> meeting and

the eec$ti(e committee shall constit$te the essential organs of the part# and its regional organisations and for

other allied matters.

1.:.1.*. &rticle * pro(ides for constit$tion of mem2ers>

assem2lies and delegates assem2lies and the rights of the

mem2ers in that 2ehalf.

1.:.1.10. &rticle 10 empowers the political parties to decide on the admission of new mem2ers. It sa#s that no 4$stification need 2e gi(en for ref$sing an application for mem2ership. It f$rther declares that mem2ers of the part# and the representati(es in the part# 2odies ha(e e$al (oting rights. !he part# can frame stat$tes pro(iding for disciplinar# action against mem2ers and other matters

specified therein.

1.:.1.11. &rticle 11 pro(ides that e(er# political part#

shall elect an eec$ti(e committee at least e(er# second calender #ear and that the committee m$st consist of at least three mem2ers. It also deals with the powers of the

eec$ti(e committee and its d$ties.

1.:.1.1. &rticle 1 pro(ides for constit$tion of general part# committees and other incidental matters.

1.:.1.1. &rticle 1 pro(ides for composition of delegates>

assem2lies.

1.:.1.1:. &rticle 1: pro(ides for ar2itration in case of a

disp$te 2etween the mem2ers or 2etween the part# and mem2ers or 2etween the part# ad regional organisations, as

the case ma# 2e.

1.:.1.1+. &rticle 1+ deals with the process of

decision6ma-ing in part# organs. It reads th$sK

"&rticle 1+. Decision6a-ing in 3art# /rgans.

819 !he part# organs adopt their resol$tions on the

2asis of a simple ma4orit# (ote inasm$ch as a higher ma4orit# (ote is not stip$lated 2# law or 2#

the stat$tes.

89 !he 2allots for mem2ers of the eec$ti(e committee and representati(es to delegates>


19/101

assem2lies as well as to the 2odies of higher le(el regional organisations are secret. =oting at other elections is not secret $nless (oters o24ect when

as-ed to confirm s$ch proced$re.

89 !he stat$tor# pro(isions go(erning the

s$2mission of motions m$st 2e s$ch as to ens$re the democratic forming of opinions and in partic$lar ade$ate disc$ssion of the proposals p$t forward 2# minorities. &t the delegates> assem2lies of higher le(el regional organisations, at least the representati(es of the regional organisations at the net two lower le(els m$st 2e granted the right to introd$ce motions. ;o commitment to the resol$tions of other 2odies is permissi2le at

elections and polls."

1.:.1.1B. &rticle 1B deals with dissol$tion and)or

termination of the s$2ordinate regional organisations.

1.:.1.17. Section III contains onl# one article, namel#,

article 17. It sa#s that "candidates for election to 3arliament m$st 2e chosen 2# secret 2allot. !he nomination proced$re is go(erned 2# the election laws and the part#

stat$tes."

1.:.1.1. Section I= containing articles 1 to deals

with p$2lic financing of political parties whereas Section = o2liges the political parties to maintain and p$2lish their acco$nts reg$larl#. &rticle needs to 2e set o$t

in f$llK

"&rticle . Stat$tor# o2ligation to 3$2lish &cco$nts.

819 !he eec$ti(e committee of the part# shall ma-e

a p$2lic statement of the origins and the $se of f$nds recei(ed 2# its part# within a calendar #ear 8acco$nting #ear9 as well as of the assets of the

part# in a statement of acco$nts.

89 !he statement of acco$nts m$st 2e scr$tinised

2# a certified a$ditor or a$diting compan# in accordance with articles * to 1. In the case of parties who do not meet the re$irements of article 1, para :, first sentence, the statement of acco$nts ma# 2e scr$tinised 2# a chartered acco$ntant. It m$st 2e s$2mitted 2# 0 Septem2er of the #ear following the acco$nting #ear to the 3resident of the 'erman 5$ndestag and 2e circ$lated 2# the latter as a 5$ndestag paper. !he 3resident of the 'erman 5$ndestag can etend the limit 2# $p to a maim$m of three months in eten$ating circ$mstances. !he part# statement of acco$nts shall 2e s$2mitted for disc$ssion to the federal

part# con(ention following its p$2lication.

89 !he 3resident of the 'erman 5$ndestag shall

eamine whether the statement of acco$nts is in accordance with the reg$lations of Section =. !he


20/101

res$lt of the scr$tin# shall 2e recorded in the report in accordance with para +.

8:9 !he 3resident of the 'erman 5$ndestag ma# not

determine a part#>s allocation of p$2lic f$nds $nder articles 1 and 1* so long as a statement of

acco$nts in accordance with the pro(isions of Section = is still o$tstanding. 3a#ments $nder article 1 shall 2e 2ased on the statement of acco$nts to 2e s$2mitted for the preceding #ear, pa#ments $nder article 0 on the statement of acco$nts s$2mitted for the preceding #ear. If a part# fails to s$2mit the report 2# 1 Decem2er of the following #ear it shall forfeit its claim to p$2lic f$ndsK allocations and dis2$rsements to the

other parties shall remain $naffected.

8+9 !he 3resident of the 'erman 5$ndestag shall

s$2mit ann$all# to the 'erman 5$ndestag a report on

the state of part# finances and on the statements of acco$nts of the parties. !he report shall 2e

circ$lated as a 5$ndestag paper."

1.:.1.1*. &rticle 8a9 prohi2its the political parties

from o2taining donations illegall#. It also pro(ides that in case the political part# fails to p$2lish the statement of acco$nts as pro(ided 2# article +89, it shall forfeit p$2lic f$nding in an amo$nt do$2le the amo$nt illegall# o2tained or not p$2lished in accordance with article +89. It also sets o$t the meaning of illegal donations>. &rticle : specifies what sho$ld the statement of income and ependit$re contain. It mentions the se(eral items

which m$st necessaril# 2e incl$ded and shown in s$ch a statement. 5roadl# spea-ing it m$st disclose f$ll partic$lars in the specified form, of income recei(ed, so$rces from which recei(ed, ependit$re inc$rred on

(ario$s items and its net assets.

1.:.1.0. &rticle + deals with donations to political

parties. It sa#s that political parties are entitled to accept donations ecept from the so$rces specified therein. !he so$rces which are so ecl$ded are political fo$ndations and parliamentar# gro$ps, corporate 2odies, religio$s and charita2le associations of persons and so on.

1.:.1.1. &rticle B defines the epression "income". &rticle creates a stat$tor# o2ligation $pon the political parties to "-eep 2oo-s in respect of their acco$nta2le income and ependit$re and of their assets". !he article f$rther pro(ides that the acco$nts "shall 2e -ept in accordance with the principles of orderl# acco$nting and with regard for the p$rpose of the present

law. &cco$nts shall 2e preser(ed for fi(e #ears..."

1.:.1.. &rticle * pro(ides for a$diting of the

statement of acco$nts while article 0 ma-es it o2ligator# that the statement of acco$nts shall contain an a$dit certificate in the prescri2ed manner. &rticle 1 deals

with the appointment of a$ditors.


21/101

1.:.1.. Sections =I and =II deal with implementation of 2ans on $nconstit$tional parties and final pro(isions, which are not rele(ant for o$r p$rpose and need not 2e

referred to.

1.:.. !ho$gh o$r %onstit$tion was also framed 2etween the

#ears 1*:B to 1*:* 8i.e., approimatel# at the same time when the 'erman %onstit$tion was drawn9, it is rather ineplica2le wh# o$r %onstit$ent &ssem2l# did not thin- it appropriate to ma-e pro(isions go(erning the political parties on the lines contained in the 'erman %onstit$tion. It ma# 2e mentioned e(en at this stage that tho$gh this aspect did not fig$re in the s$ggestions contained in the wor-ing paper prepared 2# the Law %ommission in Septem2er 1** and circ$lated among the political parties and the mem2ers of the p$2lic, the same has ass$med considera2le significance in the co$rse of de2ate at the se(eral seminars held 2# the Law %ommission in this 2ehalf and has also 2een s$ggested in se(eral responses recei(ed 2# the

Law %ommission in response to the wor-ing paper.

PART II V'*0 o Po'+'2 P&+'* - I-+*&*+* P*&o-

o:+'-* '- S*'-&

.1 !he wor-ing paper prepared 2# the Law %ommission was comm$nicated to all the recognised political parties, 2oth at the national and State le(el, the o$ses of 3arliament, the State Legislat$res, to the igh co$rts, 2ar associations, Election %ommission, prominent media personalities, associations and organisations interested in

electoral reform and man# other p$2lic6minded persons. & large n$m2er of responses ha(e 2een recei(ed from parties, persons, organisations, associations and indi(id$als which ha(e 2een d$l# collated. In addition to circ$lating the wor-ing paper, the Law %ommission also held fo$r seminars to elicit informed opinions and (iews of the political parties and the responsi2le mem2ers of the p$2lic. !he first seminar was held on 1:th ;o(em2er 1** at the India International %entre. It was a one6da# seminar comprising two sessions. !he morning session was de(oted to introd$ction of list s#stem and amendment of !enth Sched$le while the second session was de(oted to proposals for c$rtailing ependit$re on elections and the meas$res to

c$r2 the entr# and infl$ence of criminal elements. %ertain political parties (iF., 5J3, %3I89, %3I, DG and Shiromani &-ali Dal were represented 2# their spo-esmen S)Shri Jana Grishnam$rth#, Sitaram ech$r#, &.5. 5ardhan, !.R. 5al$ and an4eet Singh Ghera, respecti(el#. Shri Shi(ra4 3atil, 3 8former Spea-er of Lo- Sa2ha9 and Shri Gapil Si2al, 3 8a senior ad(ocate9 who are mem2ers of %ongress6I, also participated 2$t in their indi(id$al capacit#. 5esides the a2o(e, senior 4o$rnalists S)Shri .G.D$a, %.R. Irani, Inder4it, ;.Ram and S.Saha# and senior ad(ocates Shri Shanti 5h$shan 8former inister for Law, 'o(ernment of India9, Shri Soli Sora24ee 8&ttorne# 'eneral9, Shri Ra4inder Sachhar 8former %hief J$stice Delhi igh %o$rt9,

Shri !.R.&ndh#ar$4ina 8former Solicitor 'eneral of India9, Shri 3.3.Rao, Shri Jitender Sharma and Shri .%.5handare participated. Shri Ram Jethmalani, the on>2le inister


22/101


23/101

session was presided o(er 2# Shri S.Jaipal Redd#, 3 8Janata Dal9. !his session was de(oted to introd$ction of list s#stem. !he main spea-ers were Shri J$stice 5.3.Jee(an Redd#, %hairman, Law %ommission of India, Dr.;..'hatate, em2er, Law %ommission of India and Shri D.=. S$22a Rao, em2er, 5ar %o$ncil of India. !he third

session on the morning of :th Jan$ar# was de(oted to c$rtailing of election ependit$re and reg$lation of income and ependit$re of political parties. !his session was to 2e presided o(er 2# Shri Inder4it '$pta, 3 8former ome inister9 2$t on acco$nt of the dela# in the flights, he co$ld not reach Delhi in time. Shri Somnath %hater4ee, 3 H%3I89 presided o(er this session. !he main spea-er at this session was Shri G.G.=en$gopal, senior ad(ocate. !he net session pertained to the pro2lems concerning h$ng 3arliament. It was presided o(er 2# Shri &r$n ishra, %hairman, 5ar %o$ncil of India and the main spea-ers were Shri G.L.Sharma, =ice 3resident of 5J3, Shri J$stice G.;.Sai-ia, former J$dge S$preme %o$rt of India and Shri

!.3.Singh, senior ad(ocate and em2er, 2ar %o$ncil of India. !he last session disc$ssed the criminalisation of politics incl$ding the proposed amendment of section of the &ct. It was presided o(er 2# Shri 3.&.Sangma, 3 8former Spea-er of Lo- Sa2ha9. !he main spea-ers at this session were Shri Dileep 3adgaon-er, Eec$ti(e Editor, !he !imes of India and Shri =.R.Redd#, senior ad(ocate and

former &dditional Solicitor 'eneral of India.

.B.In all the a2o(e sessions, a large n$m2er of

persons from political parties, 5ar %o$ncil of India, 2ar associations and other p$2lic 2odies and organisations also

spo-e.

.7.!he concl$ding)(aledictor# session was presided

o(er 2# Shri 'eorge Cernandes, the on>2le Defence inister. !he (aledictor# address was deli(ered 2# Shri J$stice =.R.Grishna I#er, former J$dge, S$preme %o$rt of

India.

..!he entire proceedings of this two6da# ;ational

Seminar were tape recorded.

.*.!he Law %ommission has loo-ed into the (ast amo$nt

of literat$re on the s$24ect of electoral reforms, in partic$lar, the opinions epressed therein to$ching the

iss$es considered in this Report. PART III

A-' o '*0 - Co''o-


24/101

pro(ide 2# law for the formation, f$nctioning, income and ependit$re and the internal wor-ing of the recognised political parties 2oth at the national and State le(el. !he necessit# of s$ch a re$irement was stressed 2# Shri S.Jaipal Redd#, 3 8a former inister for Information and 5roadcasting9, 2# Shri an4it Singh Ghera 8representing

S&D9, 2# Dr. ;.L. itra, Director, ;ational Law School of India


25/101

reg$late 2# law their formation and f$nctioning. In this connection, reference can 2e had to the law laid down in the nine64$dge %onstit$tion 5ench of the S$preme %o$rt in S.R.5ommai (. 2e introd$ced)inserted in the &ct, containing the

$ndermentioned sectionsK

.1..1. In (iew of reiteration of o$r proposal to

repeal section 11 and 115 of the Representation of 3eople &ct, 1*+1 as stated $nder paragraphs B.1.1 and B. of part =I infra, the eisting section 116& entitled "Dis$alifications arising o$t of con(iction and corr$pt practices" which will fall $nder %hapter I=, shall 2e ren$m2ered as Section 11. %onse$entl#, the following sections proposed to 2e inserted $nder part II6& shall 2e

n$m2ered as Section 116& to 116.

PART IIA O&8-'+'o- o Po'+'2 P&+'*

- ++*& '-2'*-+ +%*&*+o


26/101

Section 116&K 8193olitical parties can 2e freel# formed 2# the citiFens of this co$ntr#. !he political parties shall form a constit$tionall# integral part of free and

democratic s#stem of 'o(ernment.

89 Each political part# shall frame its

constit$tion defining its aims and o24ects and pro(iding for matters specified in section 11&. !he aims and o24ects of a political part# shall not 2e inconsistent with an# of

the pro(isions of the %onstit$tion of India.

89 & political part# shall stri(e towards,

and $tiliFe its f$nds ecl$si(el# for, the f$lfilment of its aims and o24ects and the goals and ideals set o$t in

the %onstit$tion of India.

8:98a9 & political part# shall appl# for

registration with the Election %ommission of India.

829 E(er# s$ch application shall 2e made, 6

8i9 if the association or 2od# is in eistence at the commencement of the Representation of the 3eople and other &llied Laws 8&mendment9 &ct, 1*** 8 OOof 1***9, within sit# da#s net following s$ch commencement@

8ii9 if the association or 2od# is formed

after s$ch commencement, within thirt# da#s net following the date of its formation.

8c9 E(er# application $nder s$26section 8:9

shall 2e signed 2# the chief eec$ti(e officer of the association or 2od# 8whether s$ch chief eec$ti(e officer is -nown as Secretar# or 2# an# other designation9 and presented to the Secretar# to the %ommission or sent to

s$ch Secretar# 2# registered post.

8d9 E(er# s$ch application shall contain the following partic$lars, namel#K 6

8i9 the name of the association or 2od#@

8ii9the State in which its head office is sit$ated@

8iii9the address to which letters and other

comm$nications meant for it sho$ld 2e sent@

8i(9the names of its president, secretar#,

treas$rer and other office62earers@

8(9the n$merical strength of its mem2ers,

and if there are categories of its mem2ers, the n$merical strength in each categor#@

8(i9whether it has an# local $nits@ if so,

at what le(els@

8(ii9whether it is represented 2# an#


27/101

mem2er or mem2ers in either o$se of 3arliament or of an# State Legislat$re@ if so, the n$m2er of s$ch mem2er or

mem2ers.

8(iii9a declaration that the applicant has

complied with and shall contin$e to compl# with the

re$irements of this chapter.

8e9 !he application $nder s$26section 8:9 shall 2e accompanied 2# a cop# of the memorand$m or r$les and reg$lations of the association or 2od#, 2# whate(er name called, and s$ch memorand$m or r$les and reg$lations shall contain a specific pro(ision that the association or 2od# shall 2ear tr$e faith and allegiance to the %onstit$tion of India as 2# law esta2lished, and to the principles of socialism, sec$larism and democrac#, and wo$ld $phold the

so(ereignt#, $nit# and integrit# of India.

8f9 !he %ommission ma# call for s$ch other

partic$lars as it ma# deem fit from the association or 2od#.

8g9 &fter considering all the partic$lars as

aforesaid in its possession and an# other necessar# and rele(ant factors and after gi(ing the representati(es of the association or 2od# reasona2le opport$nit# of 2eing heard, the %ommission shall decide either to register the association or 2od# as a political part# for the p$rposes of this 3art, or not so to register it@ and the %ommission shall comm$nicate its decision to the association or 2od#K

3ro(ided that no association or 2od# shall 2e

registered as political part# $nder this s$26section $nless the memorand$m or r$les and reg$lations of s$ch association

or 2od# conform to the pro(isions of cla$se 8e9.

8h9 !he decision of the %ommission shall 2e final.

8i9 &fter an association or 2od# has 2een registered as

a political part# as aforesaid, an# change in its name, head office, office 2earers, address or in an# other material matters shall 2e comm$nicated to the %ommission

witho$t dela#.

8+9 /nl# a political part# registered with

Election %ommission of India, and whose registration is not cancelled $nder this &ct, shall 2e entitled to contest elections whether to Lo- Sa2ha or that of Legislati(e

&ssem2l#.

Section 1165K 819 & political part# ma# s$e and ma# 2e

s$ed in its own name. & political part# shall 2e competent to hold and dispose of properties.

89 !he name of a political part# m$st

2e clearl# disting$isha2le from that of an# eisting political part# and shall 2e s$24ect to appro(al 2# the

Election %ommission. In election campaigns and in elections, onl# the registered name or its acron#m, as ma# ha(e 2een appro(ed 2# the Election %ommission, alone shall


28/101

2e $sed.

89 3olitical parties can 2e formed

2oth at the national le(el as well as at the State le(el.

Section 116%K !he constit$tion of a political part# shall

pro(ide for the following mattersK6

8a9 name of the political part# and acron#m 8if $sed9 and the aims and o24ecti(es of the part#@

829 proced$re for admission, ep$lsion and resignation

2# the mem2ers@

8c9 rights, d$ties and o2ligations of the mem2ers@

8d9 gro$nds on which and the proced$re according to

which disciplinar# action can 2e ta-en against the mem2ers@

8e9 the general organisation of the part# incl$ding the formation of State, regional, district, 2loc- and (illage

le(el $nits@

8f9 composition and powers of the eec$ti(e committee

82# whate(er name it is called9 and other organs of the part#@

8g9 the manner in which the general 2od# meetings can

2e re$isitioned and cond$cted and the proced$re for re$isitioning and holding con(entions to decide $estions of contin$ance, merger and other s$ch f$ndamental

organisational matters@

8h9 the form and content of the financial str$ct$re of the part# consistent with the pro(isions of this part.

Section 116DK !he eec$ti(e committee of a political

part# shall 2e elected. Its term shall not eceed three #ears. ?ell 2efore the epir# of the term, steps shall 2e ta-en for electing a new eec$ti(e committee. It shall 2e open to the eec$ti(e committee to constit$te a s$26committee 82# whate(er name called9 to carr# o$t the 2$siness of the eec$ti(e committee and to carr# on reg$lar and $rgent eec$ti(e committee 2$siness. !he mem2ers of

the s$26committee shall 2e elected 2# the mem2ers of the eec$ti(e committee.

Section 116EK & political part# and its organs shall

adopt their resol$tions on the 2asis of a simple ma4orit# (ote. !he (oting shall 2e 2# secret 2allot.

Section 116CK !he candidates for contesting elections to

the 3arliament or the Legislati(e &ssem2l# of the States shall 2e selected 2# the eec$ti(e committee of the political part# on the 2asis of the recommendations and

resol$tions passed 2# the concerned local part# $nits.

Section 116'K 819 It shall 2e the d$t# of the eec$ti(e committee to ta-e appropriate steps to ens$re compliance


29/101

with the pro(isions of this chapter incl$ding holding of elections at all le(els. !he eec$ti(e committee of a political part# shall hold elections of national and State le(els in the presence of the o2ser(ers to 2e nominated 2# the Election %ommission of India. ?here considered necessar#, the Election %ommission ma# also send its

o2ser(ers at elections to 2e held at other national and state le(els.

89 !he eec$ti(e committee of a

political part# shall maintain reg$lar acco$nts of the amo$nts recei(ed 2# the part#, its income and ependit$re, ha(e them a$dited and s$2mit the same to the Election

%ommission as re$ired 2# section 76& of this &ct.

89 & political part# shall 2e

entitled to accept donations ecept from the following so$rcesK6

8a9 donations from political fo$ndations or foreign go(ernments or organisations or associations registered o$tside the territor# of India or non6go(ernmental organisations which are in receipt of foreign f$nds or from an# other association, organisation, gro$p which is in receipt of foreign f$nds or from a

foreign national.

829 donations from corporate 2odies and companies

ecept in accordance with the pro(isions of the %ompanies &ct, 1*+B.

Section 116K !he Election %ommission shall 2e competent

to in$ire, either s$o mot$ or on information recei(ed into allegation of non6compliance of an# of these pro(isions of this chapter. If on d$e in$ir#, the Election %ommission is satisfied that there has 2een non6compliance of an# of the pro(isions of this chapter 2# an# political part#, the %ommission shall call $pon the part# to rectif# the non6compliance within the period prescri2ed 2# the Election %ommission. In case, the non6compliance contin$es e(en after the period so prescri2ed, it shall 2e open to the Election %ommission to impose s$ch p$nishment on the political part# as it ma# deem appropriate in circ$mstances of the case incl$ding le(# of the penalt# of Rs.10,000)6 per da# for each da# of non6compliance and withdrawal of

registration of the part#.

Section 116IK ?here a p$2lic a$thorit# pro(ides facilities or offers p$2lic ser(ices for $se to a political part#, it m$st accord e$al treatment to all. !he scale of s$ch facilities and ser(ices ma# 2e grad$ated to conform to the importance of the parties s$24ect to the minim$m etent needed for the achie(ement of their aims. !he importance of a part# shall 2e decided on the 2asis of the res$lts of immediatel# pre(io$s election to 3arliament or State Legislati(e &ssem2l#, as the case ma# 2e. !he granting of p$2lic ser(ices shall 2e onl# in connection with and for the d$ration of the election campaign period. Cor the

p$rposes of this section, the election campaign period shall 2e deemed to commence 1: da#s prior to the


30/101

commencement of the poll in a State.

8R$les made $nder the &ct can pro(ide the re$isite

details on the pattern of the pro(isions of the 'erman Law on 3olitical 3arties, 1*B79.

.1.:. In (iew of the a2o(e pro(isions, 3art I=6& of the &ct, containing section *6& shall 2e deleted. !he s$2stance of section *6& has 2een incorporated in section

116&.

CHAPTER II A-' o '*0 - 2o-2'o-

&*8&'-8 +%* L'+ S+*

..1. In this chapter we shall deal with the concept of list s#stem in addition to the eisting first6past6the post 8C339 s#stem> which was proposed in

o$r wor-ing paper. !he reasons for introd$cing this s#stem ha(e 2een set o$t in chapter three of part one of this report as well as in the wor-ing paper. In the seminars cond$cted 2# the Law %ommission and in the responses recei(ed p$rs$ant to the circ$lation of wor-ing paper, (ario$s (iews ha(e 2een epressed which we shall disc$ss

herein2elow.

... Shri S. Jaipal Redd# who presided o(er the

second session of the ;ational Seminar on rd Jan$ar# 1*** opposed the introd$ction of list s#stem altogether while conceding that the list s#stem is certainl# more representati(e. e opined that that alone sho$ld not 2e

the o24ecti(e of the elections. &ccording to him, the list s#stem was li-el# to lead to proliferation of political parties. In a societ# which is indeed a "societ# of minorities", this s#stem, he said, wo$ld not promote the national interest. e also pointed o$t that in the list s#stem, the $m2ilical cord 2etween the constit$enc# and the candidate is a2sent. e pointed o$t that list s#stem was preferred in co$ntries with homogeno$s societies and was not s$ited to a co$ntr# li-e India whose societ# was the most heterogeno$s in the world, di(ided as it was on the gro$nds of religion, caste, lang$age, region, race and so on. E(en if the list s#stem was introd$ced, he said, it sho$ld not 2e confirmed to recognised political parties as

s$ggested 2# the Law %ommission. e ga(e the eample of !el$g$ Desam 3art# in &ndhra 3radesh, which was formed 4$st a2o$t nine months 2efore the elections to the Legislati(e &ssem2l# in &ndhra 3radesh and #et swept the polls in 1*. e s$ggested that all the registered political parties sho$ld 2e allowed top participate in the election held on the 2asis of list s#stem. r. Jaipal Redd# also pointed o$t se(eral merits of the eisting C33 s#stem. &ccording to him, the C33 s#stem had the merit of red$cing the n$m2er of political parties. !he present proliferation of political parties in this co$ntr# is ta-ing place in spite of the C33 s#stem, he said. &ccording to him, the C33 s#stem led to sta2ilit# 2# eliminating smaller parties.

&ccording to him, there m$st necessaril# 2e an intimate connection 2etween the candidate and the constit$enc#. r.


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Jaipal Redd# also pointed o$t that there sho$ld 2e a r$le that for o2taining an# seat $nder the list s#stem, a political part# m$st o2tain certain prescri2ed minim$m percentage of (otes and in this connection, referred to the position o2taining in 'reece and 'erman# 6 partic$larl# in the latter co$ntr#. 2le inister for s report p$2lished some time in /cto2er6;o(em2er in


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strongl# s$pported 2# Shri .G. D$a, senior 4o$rnalist who too wanted the strength of mem2ers to 2e elected on this 2asis raised to +0A. &ccording to him, the Law %ommission>s proposal was a definite impro(ement o(er the eisting electoral scene. Shri &.5. 5ardhan 8%3I9 strongl# commended the list s#stem. &ccording to him it

was o(erd$e. e said that prominent campaigners for the political parties were $s$all# tied $p in campaigns for their parties all o(er the co$ntr# and co$ld not de(ote ade$ate attention to their partic$lar constit$enc#. !he list s#stem wo$ld help s$ch persons to 2ecome mem2ers of Lo- Sa2ha)State Legislat$re. e pointed o$t that s$ch a s#stem was wor-ing $ite well in 'erman# and Japan. e so$ght to alla# the apprehension that criminals and mone# 2ags were li-el# to get into 3arliament)Legislat$res thro$gh this method. Shri Ra4inder Sachhar, senior ad(ocate and former %hief J$stice of Delhi igh %o$rt s$pported the list s#stem 2$t he did not agree with the concept of territorial $nits. e s$ggested that list

s#stem sho$ld 2e implemented on all6India 2asis. Shri Inder4it, senior 4o$rnalist, Shri ;. Ram, senior 4o$rnalist and Editor, Crontline, Shri %.R. Irani, Editor, !he Statesman and Shri =.G. Sama#a-, 3resident, =oters Cor$m Co$ndation of India>, ;ew Delhi, and Shri S. Saha#, senior 4o$rnalist not onl# s$pported the list s$#stem 2$t wanted it to 2e raised to +0A of the eisting strength instead of the s$ggested +A. &nother senior ad(ocate, Shri Jitendra Sharma s$pported the idea 2$t s$ggested that it sho$ld 2e operated on all6India 2asis. !his, he said,

was necessar# to c$r2 casteism and comm$nalism.

..+. In connection with the car(ing of

territorial $nits, one of the participants Shri Shi(arama-rishnan pointed o$t that if the latest cens$s was made the 2asis, then the so$thern States, in partic$lar Gerala, wo$ld 2e ad(ersel# affected. e pointed o$t that 2eca$se of 2etter implementation of famil# planning programmes, their pop$lation growth has slowed down while the rate of growth in the northern States li-e s Democratic 3art#,


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eghala#a, Registrar igh %o$rt of .3., Ja2alp$r,. opposed the list s#stem. Some others, namel# , %3I89, Shri R.S. ;ar$la, retired %hief J$stice of 3$n4a2 and ar#ana igh %o$rt and anip$r 3eople>s 3art#, agreed with the proposal to introd$ce the list s#stem. Shri R.S. ;ar$la s$ggested that the list s#stem sho$ld 2e the onl#

method 2# which the totalit# of em2ers of Lo- Sa2ha and Legislati(e &ssem2lies sho$ld 2e elected. Se(eral other indi(id$als epressed (ar#ing (iews which need not 2e

specificall# referred to herein.

..B.1. !he fact of wasting> awa# of the (otes

cast in the C33 s#stem has also 2een recognised in other parts of the world. !h$s in the response of the Electoral Reform Societ# to the %ommission on Local 'o(ernment and the Scottish 3arliament, 8J$l#, 1**9, it has 2een mentioned inter alia, that the C33 s#stem distorted the epressed wishes of those who act$all# (oted 2# o2ser(ing

th$sK6

"Local Democrac#"

P$estion

/ne of the reasons for poor t$rno$ts at local

go(ernment election is that the (otes of large n$m2ers of electors will not co$nt, either within their local constit$enc# or in the o(erall composition of the %o$ncil. wasted> in this wa#. In circ$mstances where the# -now that one part# holds a seat with a large ma4orit#, man#

electors are disco$raged from t$rning o$t to (ote."

"!he res$lts of the local a$thorit# elections in &pril, 1**+ show well the etent to which the present C3!3 (oting s#stem distorts the epressed wishes of those who act$all# (ote. In the cit# of 'lasgow %o$ncil, La2o$r, with B1A of the (otes, too- 77 of the seats, i.e. *A. !here were also serio$s distortions among the smaller parties in this electionK the %onser(ati(es with 7A of the (otes, too- seats, while the S;3 gained onl# 1

seat despite ha(ing A of the (otes."

..B.. !he Report of the Independent %ommission on

the (oting S#stem 8"Jen-ins Report"9 s$mmarises the ain Electoral S#stems in the world. !hese incl$de

i9 Cirst 3ast the 3ost 8C3!39


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ii9 !he &lternati(e =ote 8&=9 iii9S$pplementar# (ote 8S or com2ination of s#stems to the eisting commonl#6called Cirst 3ast the 3ost> s#stem of election to the ?estminister 3arliament. In doing this, it was as-ed to ta-e into acco$nt fo$r not entirel# compati2le re$irements>. !he# wereK i9 2road proportionalit#@ 8ii9 the need for sta2le go(ernment@ 8iii9 an etention of (oter choice, and 8i(9 the maintenance of a lin- 2etween 3s and

geographical constit$encies.

..B.:. !he %ommission set o$t the 2asis of fair

election (iF., to the concept of fairness> in electoral o$tcomes, the place of political parties@ and the role of

em2ers of 3arliament.

..B.:&. It emphasises that fairness to (oters is

the first essential. & primar# d$t# $nderl#ing an electoral s#stem is to represent the wishes of the electorate as effecti(el# as possi2le. !he %ommission o2ser(es that the ma4or fa$lt of the Cirst past the 3ost in this contet is that it distorts the desires of the (oters. It emphasises that the fact that (oters do not get the

representation the# want is more important than that the parties do not get the seats to which the# thin- the# are

entitled.

..B.+. &fter going thro$gh the

pro2lems)ad(antages)disad(antages of the eisting Cirst 3ast the 3ost s#stem, the said %ommission recommended,

inter alia as $nderK

"!he 2est alternati(e for 5ritain to the

eisting Cirst 3ast the 3ost s#stem is a two6(ote mied s#stem which can 2e descri2ed as either limited &S or &= !op6$p. !he ma4orit# of 3s 80

to +A9 wo$ld contin$e to 2e elected on an indi(id$al constit$enc# 2asis, with the remainder elected on a correcti(e !op6$p 2asis which wo$ld significantl# red$ce the disproportionalit# and the geographical di(isi(eness which are inherent in C3!3. 5$t it cannot 2e denied that democrac# post$lates the wo

Documents

Law Commission Report No. 170- Reform of the Electoral Laws, 1999