COVER LETTER

Name of Author: Amber Siddiqui

Year of Study: Second year

Institution: National Law Institute University Bhopal

E-mail ID: amber_siddiqui2000@yahoo.com

Postal Address: MIG-21 Housing Board colony Koh-e-fiza, Bhopal-

462001

Contact No.: +91-8109377351

 Topic: “ Scrutinizing the Constitutional power to disqualify a person from contesting
elections”

Introduction

“Constitution like a machine is a lifeless thing. It acquires life because of the men who control it
and operate it, and India needs today nothing more than a set of honest men who will have the
interest of the country before them…It requires men of strong character, men of vision, men who
will not sacrifice the interests of the country at large for the sake of smaller groups and
areas…We can only hope that the country will throw up such men in abundance”.

- Dr Rajendra Prasad,President, Constituent Assembly of India,

before putting the motion for passing of the Constitution on the floor on 26th November, 1949.

We are the citizens of the nation which gives the message of ‘Vasudhaiva Kutumbakam’ and
propagates the message of peace in diversity. In a democratic system, to be independent is
important but to be credible is more important and there must be check and balances at very
stage, to have a proper functioning of democratic structure. This essay in its introduction
establishes academic context of election process and will exhibit the merits of Representation of
People Act, 1951 (hereinafter RPA) which inter alia provides qualification and disqualification
of members of Parliament and members of State Legislature. Essay will scrutinize recent
amendment of RPA and explore its effect on recent disqualification debates. It will outline the
key recommendation of 244 law commission report headed by Hon’ble Justice A.P Shah. In
present scenario most mooted debated is, nexus between criminals and political field and how
muscle power is used to taint election process leading to deterioration in credibility. From the
basic structure scheme of Indian Constitution, the process of free and fair election is underlying
right of citizens. To enhance this point Supreme Court of India has declared,

“It is beyond the pale of reasonable controversy that if there be any unamendable features of the
Constitution on the score that they form a part of the basic structure of Constitution, it is that India
is a Sovereign Democratic Republic.” 1
Debatable Section 8 of Representation of People Act, 1951

RPA is an act of parliament to check the conduct of members of Parliament and members of
Legislative Assembly of the States, their qualification and disqualification, the corrupt practices
and other offence mentioned in the act.

From time to time Supreme Court of India has proved that it is guardian angel of our democracy.
Supreme Court have been eulogize for its celebrated decision in Lily Thomas v Union of India1
for declaring section 8 (4) of RPA as ultra vires. This obnoxious section was used a protective
tool by convicted MPs and MLAs to shield them from disqualification in contesting elections.
Section 8(1) set down number of offences, under which a convicted person is disqualified for 6
years, which include certain electoral offence, offence under the prevention of Corruption Act,
1988, Foreign Exchange Regulation Act, 1973, the Narcotics and Psychotropic Substances Act,
1985 etc. Section 8(2) list out other offences, for which disqualification will only results when
the punishment is of 6 months or more. Section 8(3) is a residuary provision, where any person
convicted having punishment of two or more year, that person is disqualified for six years. The
(now struck down) Section 8(4) reads that MPs and MLAs can still continue to remain elected,
even if they are convicted, provided that if within three months of conviction, the convicted
person has filed an appeal or revision against such conviction.

Reasons to strike down Section 8(4) of RPA by Supreme Court

Eminent lawyer Fali Nariman, who argued for the petitioner in Lily Thomas case had argued that
in light of Article 102(1)(e)2 and 191(1)(e)3 of Indian Constitution, the parliament is incompetent

1
(2013) 7 SCC 653
2
CONSTUTITION OF INDIA, Article 102(1)(e) –
Disqualification for membership - if he is so disqualified by or under any law made by Parliament Explanation For
the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or
the Government of any State by reason only that he is a Minister either for the Union or for such State.
to enact Section 8(4). He argued that Parliament competency to enact Section 8(4) of RPA
derives from Article 102(1)(e) and 191(1)(e) of Constitution. Article 102(1)(e) prescribes
circumstance where parliament can make a law whereby MP shall remain disqualified from
either house of Parliament. Article 191(1)(e) says the same thing about MLAs. Neither of these
two articles gives authority to Parliament to pass the law in protection of convicted MPs and
MLAs and Section 8(4) does the exact same thing4. So the court ruled out that law made by the
Parliament to protect the convicted from disqualification from contesting election is not
constitutionally valid.

Controversy against the Lily Thomas case Judgment

The verdict of this case turned into legal debate amongst the scholars in legal field. The
important question arises that how can such order be passed by a Division Judge Bench when the
Constitutional Bench of apex court headed by Chief Justice R.C Lahoti in K.Prabhakaran v
P.Jayaranjan5 that Section 8(4) of RPA is “not unreasonable”. It was stated in this case –

“The persons falling in the two groups are well defined and determinable groups and, therefore,
form two definite classes. Such classification cannot be said to be unreasonable as it is based on
a well laid down differentia and has nexus with a public purpose sought to be achieved”.6
The constitutional bench held that Section 8(4) of RPA is an “exception” to sub-section (1),(2)
and (3) of Section 8.7 .

4
Khagesh Gautam, Understanding Lily Thomas v. Union of India: Why section 8(4) of the Representation of People
Act, 1951 was declared unconstitutional? http://khagesh-gautam.blogspot.in/2013/07/understanding-lily-thomas-v-
union-of_31.html, (last visited 26.1.2016)
5
Appeal (civil) 8213 of 2001.
6
K.Prabhakaran v P Jayaranjan , (1984) SCC 567.
7
Section 8(4) of RP Act already upheald by Constitutional Bench: legal experts
http://www.thehindu.com/news/national/section-84-of-rp-act-already-upheld-by-constitution-bench-legal-
experts/article4909625.ece#comments (last visited on 26.1.2016)
Towards De – criminalization of Elections and Politics

“Democracy disciplined and enlightened is the finest thing in the world. A democracy
prejudiced, ignorant, superstitious, will land itself in chaos”

-M.K Gandhi

According to P.P Rao credibility is the life blood of institution in a democracy. The dark shadow
of injustice, in efficiency of administration and the tyranny of wealth have led to the decline of
the esteem election process of India. The Vohara Committee confirmed in National Commission
to Review the working of Constitution (NCRWC) that there is rapid growth of criminal network
that created nexus with politicians, bureaucrats and media person8.

In Union of India v. Association for Democratic Reforms9 a major step had been taken to analyze
the criminal record of candidates, which are disclosed by the way of public affidavit and the
public has a chance to observe the record of candidates whom they wish to vote.

In the ten years since 2004, 18% of candidates contesting either National or State elections have
criminal cases pending against them (11,063 out of 62,847). In almost half of these cases (8.4%
of the total candidates analysed), the charges are of serious criminal offences that include
murder, attempt to rape, murder, crimes against women.10

From various records it was an eye opener that one third of the members of Parliament and State
legislature have some form of criminal background and what is more appalling that candidates
having some form of criminal taint is likely to be more successful in winning the election than
other who do not have such background. It’s just as of ‘win ability’ and serious crime is sine qua
non of each other.

8
Government of India, ‘Vohra Committee Report on Criminalisation of Politics, Ministry of Home Affairs’ (1993),
http://indiapolicy.org/clearinghouse/notes/vohra-rep.doc (last visited 27.1.2016)
9
( 2002) 5 SCC 294.
10
Association for Democratic Reforms, ‘Press Release - Ten Years of Election Watch: Comprehensive Reports on
Elections, Crime and Money’ (2013) 1, (<http://adrindia.org/sites/default/files/Press%20Note%20
%20Ten%20Years%20of%20Elections,%20Crime%20and%20Money_0.pdf)TrilochanSastry, ‘Towards
Decriminalisation of Elections and Politics’, Economic & Political Weekly (last visited 1.01.2016)
Money power and Crime in Election

By amending Rule 90 of the Conduct of Election rule, 1961, the government has agreed to
increase the ceiling for Lok Sabha poll to Rupees 70 lakh from Rupees 40 lakh and for the
Assemble poll to Rupees 28 lakh from Rupees 16 lakh, as recommended by Election
Commission. But these figures are only for the namesake in present election context. Exuberant
amount of money is used for broadcasting by Political Parties to win election. It has become a
contest among the candidates, that who can spend lavishly and distribute freebies to have an edge
over other candidates and the political parties are forced to give tickets to wealthy criminals to
gain more seats in election.

Former Chief Election Commissioner, N Gopalaswami says, “Politicians treat this expenditure as
an investment, which will generate returns later”11 The average assets of elected MPs have gone
up from Rs.1.86 crores in 2004 to Rs.5.33 crores in 2009 to Rs.14.7 crores in 2014. This is an
increase of 187% between 2004 and 2009 and 166% between 2009 and 2014, and a per year
increase of Rs.1.23 crores over the ten years12. A former Chief Election Commissioner of India
said while in office that about Rs.10,000 crores of black money was spent in the 2012 UP
Assembly elections13. By observing the above data, we can understand that how money power
plays an important role in election process. Former Chief Election Commissioner S.Y Qureshi
has said ‘It is not about the amount of money invested in election that concerns, but the amount
of Black money invested concerns the most’.

11
Quoted in Business Today, April 24, 2014, “Ceiling on legitimate election expenditure is too low”
12 Civil Society, Indian Election and Democracy Today, Working Paper No: 465
http://www.iimb.ernet.in/research/sites/default/files/WP%20No.%20465.pdf (last visited 27.1.2016)
13 New Indian Express, Jan 10, 2012: Reforms must to rid polls of black money; IBN Live Jan10, 2012: Cash haul in UP, Punjab:

black money running Assembly polls?;Times of India March 29, 2011: EC’s mission- track Rs.10,000 crores in 2 weeks
Serious Stand on False Affidavit

According to Black’s Law Dictionary the word affidavit means “A written or

printed declaration or statement of facts, made voluntarily, and confirmed by the oath
or affirmation of the party making it, taken before an officer having authority to administer such
oath”. Making of statement on oath is considered as sacrosanct and it is linked to divine
vengeance. Ensuring free and fair election is basic structure of Indian Constitution.

On 8th August 2012, the format of Form No. 26 appended to the Conduct of Election Rules,
1961, was amended stating that the candidate has to disclose about assets and liabilities including
that of spouse and dependents, their criminal antecedents and education qualification.14Filling of
false affidavit will attract section 125A of RPA, 1951, having the punishment upto six month
imprisonment or with fine, or both.15 This provision is highly misused because of the quantum of
punishment. The convicted person easily gets away by giving minimal amount of fine under this
provision. The 244th law commission report on Electoral Disqualification recommended that
firstly, the punishment under section 125A must be enhanced upto two year imprisonment and
alternative clause of fine must be removed. Secondly, Section 125A must be the ground under
section 8(1) of RPA. Thirdly, filling of false affidavit must be place under corrupt practice under
section 123 of RPA16.

Issue of Paid News

Paid news can be define as “Any news or analysis appearing in any media (print or electronic)
for a price in cash of kind as consideration”17 Freedom of speech is the hallmark of Indian
Democracy but freedom of speech in itself means little without freedom of Information18. Today

14
Election Commission Of India, instruction dated on 26th April 2014,
http://eci.nic.in/eci_main1/current/ImpIns28042014.pdf(last visited 27.1.2016)
15
Id.
16
Government of India, Law Commission Report, Electoral Disqualification, Report No. 244
17
Press Council of India, Report on Paid News.
http://presscouncil.nic.in/WriteReadData/userfiles/file/CouncilReport.pdf( Page number 4)(last visited 27.1.2016)
18
Vidyut, What is paid news in India and why it is such a problem?
https://aamjanata.com/what-is-paid-news-in-india-and-why-is-it-such-a-problem/ ( last visited 27.1.2016)
paid news has become insidious, structured and highly organized. In general election of 2009 the
paid news became noticeable phenomena. It was believed that various major news channel,
media channel were “selling” news after having understanding with corporate entities and
politicians. The main feature of news is that it must be objective, fair and neutral but issues of
paid news have changed the basic feature of news. The problem lies that the reader or general
public can hardly distinguish advertisement and news report. Paid news endangers the rights of
citizen provided under Article 19(1)(a)19 of the Indian constitution.

The paid news has three dimensions during election time firstly, the person does not get the
correct picture of candidate whom he may want to vote secondly, the candidates hide their
election expense which violates the Conduct of Election Rules, 1961 and thirdly, cash received
by newspaper or news channel does not disclose in its official document, violating Companies
Act 1956 as well as Income Tax 196120. Election Commission recommends that Section 123 of
RPA must be strictly amended so as to prohibit the malpractice of paid publication of news.

To curb such practice of paid news there must be a media monitoring committee in every state to
monitor the media house. There must be an independent regulatory body (outside government) to
check the working of advertisement and newspaper body, as having self regulation is like living
in fool’s paradise and the enforcement of such regulation must be streamlined and must be
strictly dealt with.

Social Media influence in Electoral Process

Social media have become new tool in Indian Democracy. Reason behind its influential impact is
the young voters in India. In recent election of 2014, 160 million of the voters come under the
age of 18 to 24 years old. The prime example of social media influence is the surprise win of
AAP party in Delhi.21 According to Internet Live Stats, India’s penetration rate is estimated to be
243 million or roughly 19 percent of India’s population22. But still India ranks low in Press

19
CONSTITUTION OF INDIA, Article 19(1)(a) - Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right ,(a) to freedom of speech and expression.
20
Election commission of India, supra, at page 7.
21
Social Media in Indian Politics
http://www.nytimes.com/2014/01/10/opinion/social-media-in-indian-politics.html?_r=1 (last visited on 27.1.2016)
22
How Much Influence Did Social Media Have On India’s Election?
http://techpresident.com/news/wegov/25062/India-election-social-media-influence (last visited on 27.1.2016)
Freedom Index 2015 having a rank of 136 out of 18023. Its major impact was first time seen in
2015 general election where different Political parties have used this platform actively. The most
famous was campaign led by BJP ‘ Chai Pe Charcha’ (discussion over tea) where satellites and
mobile technology were used to interact with people24 . According to Internet and Mobile
Association of India (IAMIA), political parties are spending 2-5 percent of their budget to mark
their online presence. Google India had also come up with election hub and a ‘Pledge to Vote’
platform for campaigning. Sandeep Menon, director of marketing at Google said “We wanted to
engage with first time voters and inspire different age groups to go out and vote”25.

So the digital arena have become the next big thing in election process and all the political
parties are aware of the influence it has on general people, especially on youths. The problem of
this platform is that it is arduous to control. Various bogus accounts are made and manipulated.
Who is responsible is very difficult to identify and serous debates have to be taken place on
national platform.

Reforms Proposal

People are the most powerful entity in Democratic setup. If the people do not favor voting for
criminals, there must be a reform that suits the need of people in a stabilized Democracy. From
time to time Election Commission has recommended various types of reforms to set up an ideal
form of election process .The Joint Parliamentary Committee on Amendments to Election Law
(1971-72), the Election Commissions Recommendations in 1998, and Indrajit Gupta Committee
Report of 1998 , the Tarkunde Committee Report of 1975, and the Representation of the People
(Second Amendment) Bill, 1994 (passed by Parliamentary), the Goswami Committee Report of
1990, The Constitution Bill 1994, etc. produced comprehensive set of recommendations
regarding electoral reforms.26

State Funding as Panacea

23
World Freedom Press Index,2015 (last visited 29.1.2016)
https://index.rsf.org/# (last visited on 27.1.2016)
24
Arshiya Khullar and Alisha Haridasani, Politicians slug it out in India’s first social media election,
http://edition.cnn.com/2014/04/09/world/asia/indias-first-social-media-election ( last visited on 27.1.2016)
25
Id.
26
Dr Bimal Prasad Singh, “Electoral Reforms in India – Issues and Challenges”
,http://www.ijhssi.org/papers/v2(3)/version-2/A230105.pdf(last visited 28.1.2016)
To curb the amount of black money from election, a new idea emerges that each state must fund
its own state election. If state government fund the election there is scope of controlling illegal
money which are used as a powerful tool by various Political Parties. In election most money
comes from private donation from both India and Foreign and there is no proper mechanism to
check the donation process initiated by private entities. Indrajit Gupta Committee on State
Funding of Elections (1998) endorsed ‘Partial State Funding’ of election with some limitations.
They suggest that state funds should only be given nationals and state parties not to independent
candidates. The state funding must be based on ‘Economic capacity’ of a nation.27 Law
Commission Report on Reforms of Electoral Laws (1999) states that total state funding is
‘desirable’ as long as the political parties are not taking money from other sources. Second
Administrative Reforms Commission (2008) also recommends ‘partial funding’ of state in
election to curb the illegitimate money from elections.

The major concern about State funding is that it does not guarantee that money used by
recognized political parties will be used in faithful manner and there is a possibility that this
money can be used to boost their chance of victory. Without inner – party democracy and unity
such scheme is futile. As most of the transactions in India is done in cash there is always a
chance that political party will control it in mala- fide way. To have a proper implementation of
this scheme a strong ‘Lokpal’ must be introduced to redress and check the level of corruption.

Anti – Defection Law

The presence of large number of political party within electoral landscape accompanied with
increased number of defection. Frequent defection made the mockery of electoral system and it
shows division, fragmentation and factionalism.28 By the (Fifty-second Amendment) bill Tenth
schedule is inserted into the Constitution to curb the evil of political defection. The purpose of
this schedule is to restore the faith of people in electorate. Then the issue came up that who will
decide the disqualification. Currently, under paragraph 6 of Tenth Schedule, the
Chairman/Speaker has the power to decide on disqualification. But the speaker cannot use this
power on his own whims and fancies. The Supreme Court in Balachanda L. Jarkiholi and Ors. v.

27
Committee on State Funding of Election, instruction dated on December, 1998,
http://lawmin.nic.in/ld/erreports/Indrajit%20Gupta%20Committee%20Report.pdf(last visited 28.1.2016)
28
Vandana Mishra, Crisis of Indian Parties, MAINSTREAM WEEKLY, Vol. XLVII, No. 13, March 14, 2009.
 29
BS Yeddyurappa has said that power of Speaker is quasi-judicial , which is subjected to
Judicial Review. The decision of Speaker is not immune from challenge before the High Court
under Article 226 and 227 of the Constitution.30 The Election Commission on Proposed Electoral
Reform (2004) has observed

“All political parties are aware of some of the decisions of the Hon’ble Speakers, leading to controversies
and further litigations in courts of law. The Commission sees substance in the (above) suggestion that the
legal issues of disqualifications under the Tenth Schedule should also be left to the President and the
Governors of the States concerned, as in the case of all other post-election disqualifications of sitting
MPs, MLAs and MLCs, under Articles 103 and 192 of the Constitution. In the case of disqualifications
under the Tenth Schedule also, the President or the Governor may act on the opinion given by the
Election Commission”31

Law commission of India suggests that the decision regarding the questioning of disqualification must be
rest with President/Governor acting on advice of Election commission. None of the member must be
disqualified, unless he has been given a reasonable opportunity of being heard by Commission.

Suggestions

a) The case against a candidate under RPA must be filed six months before the
election and not at the eve of the election. So as not to distort the smooth election
process.
b) Section 8 of PRA must only be attracted when a candidate did a serious crime
having the punishment of more than five years
c) Court of law must frame the charges at the initial level. Judicial application of
mind must be taken into account.
d) There must be a rational ceiling on limits of expenditure. There must political
consensus about the ceiling limit.
e) The expenditure must be checked by an independent auditor to audit the account
of political parties and put it into the political domain.

29
(2011) 7 SCC 1.
30
Rajendra Singh Rana v. Swami Prasad Maurya (2007) 4 SCC 270
31
ECI, Proposed Electoral Reforms, D.O. No. 3/ER/2004 (2004) (hereinafter “ECI 2004 Reforms”)
 f) Funding of political parties must be scrutinized as in many cases political parties
uses dubious funds to have an edge over others.
g) Strict application of Code of Conduct and punishment for those who violates it.

Conclusion

“We did like to vote for the best man, but he’s never a candidate.” - Kin Hubbard

The above quote shows the present scenario of election process in India. Where there is dearth of
ideal candidate on whom people can trust upon. Indian Democracy needs an opportunity for
greater voter awareness and that can only be realized when people have trust on the participating
candidates. At one hand we feel proud to be a part if world’s biggest democracy and on the other
part its significance diminishes when there is clash on the names of communalism and
secularism. It is very sad to say that “communalism before election and secularism after
election” is the reality of Indian election process. The rampant corruption and absence of internal
democracy among political parties weakens the basic fabric of Indian Democracy.