have just now seen the draft “ The Representation of People (Amendment)
Bill, 2002 “. A soft copy of the Bill is enclosed for your reference. We
require to analyse it carefully and get the best legal opinion as to how
to proceed further.
From a cursory glance of the Bill, the following are my initial
The Bill provides for
disclosure of information relating to charges framed in a pending case
by a court, provided such offences are punishable with imprisonment for
2 years or more.( section 5 of the Bill; proposed section 33 (B) of the
RP Act, 1951)
There is a weak
provision to make such information public – but only by affixing a copy
of affidavit at a conspicuous place.
convictions for offences listed in sections 8(1) & 8(2) of RP Act, 1951,
or other offences for which the candidate has been convicted for two
years or more is NOT provided. This is wholly
retrogative step which negates the existing disclosure provisions as
per the Election Commission’s order of August 1997, which is already in
vogue and has been replaced by the ECs order of June 28, 2002. As
a result the EC will not have any information in respect of convictions
for offences listed under sections 8(1), 8(2) and 8(3) of RP Act, 1951.
This, read with section 4 of the new Bill prohibits the EC from even
eliciting information in order to enforce the existing provisions of
disqualification provided under section 8 of the RP Act, 1951.
As is now well known,
section 8B is added to the RP Act 1951, to disqualify candidates facing
two separate criminal proceedings concerning heinous offences, if
charges have been framed at least six months prior to the date of
nomination. But such disqualification does not apply if any criminal
proceeding concerning the heinous offence is stayed by an order of a
The heinous offences
listed in section 8B are :
section 121 IPC : waging war against government of India
section 302 IPC : Murder
section 364 IPC : kidnapping or abducting in order to murder
section 364A IPC : kidnapping for ransom
section 376 IPC : Rape
section 395 IPC : Dacoity
section 396 IPC : Dacoity with murder
section 18 & section 20 : Narcotic drugs & Pyschotropic Substances Act,
section 3 : Prevention of Terrorism Act, 2002
Section 4 of this Bill
explicitly states that irrespective of any court judgment or instruction
of the EC, NO candidate shall be liable to
disclose any information not required under this law or rules.
There is not even a
murmur about the other Electoral Reforms that the government has been
promising for long.
What does this law
This is meant
essentially to nullify the Supreme Court Judgment of May 2nd
and Election Commission order of June 28.
The ECs jurisdiction
under Art 324 is sought to be nullified in respect of any disclosures in
The new disqualification
is only for two separate charges framed for extremely grave offences, that
too prior to six months before nomination, and only if such cases are not
stayed by any competent court. In effect, this is a token attempt to give
an impression that some genuine effort is being made to curb
criminalization of politics. In reality, the net effect of this provision
will be marginal at best.
There is no
disclosure of any financial details. And if this law stands as it is,
there is no possibility of future disclosures of candidate’s assets and
As pointed out
earlier this Bill prohibits eliciting information even to enforce the
existing provisions of the RP Act, 1951.
The Supreme Court’s
judgment is in respect of the fundamental right to information, derived
under Art 19 of the Constitution. Can the legislature abridge this
If the law does abridge
this right is there a recourse to the Supreme Court?
Can people be denied
information related to other charges framed and past convictions, when
they are a matter of public record?
What happens if a
candidate commits a second murder just a few months before the election
and is charged with the offence by a competent court? Have we come
to such a sorry pass that even for extremely grave offences, if charges
are framed within six months prior to nomination, the candidate cannot be
disqualified? And do we require two such separate offences to think of
disqualifying a candidate? Is this a rehabilitation programme for hardened
Can a law prohibit the
EC from exercising its legitimate jurisdiction under Art 324 from seeking
information which is relevant to discharge of its duties under the law -
for example, details of convictions which might disqualify a candidate?
What Can We Do Now?
We require to contact
jurists to get their advice. Justice Rajender Sachar, Ms. Kamini Jaiswal,
Sri Sanjay Parikh and Ms. Pinky Anand should guide us about our legal
options. I presume there is no recourse to litigation until this Bill
becomes law. But we should study the issue and be ready.
Even at this late hour,
if we should try and see if the EC can clarify that the RO will have no
arbitrary powers or discretion under the order issued on June 28. That
will help us get the support of many enlightened politicians and parties.
The public education
campaign should continue. In particular, the media should be briefed about
the implications of this Bill.
Whatever be the
immediate outcome, the events of the past 10 weeks have certainly forced
Electoral Reform to the center stage of our political discourse.
We should now look at the whole reform agenda – particularly curbing
polling irregularities, accountable use of money power and measures to
enhance representational legitimacy and internal party democracy.
We need to emphatically
dispel the notion that all reform efforts are anti political, and
“elitist”. Our efforts are to cleanse political process, and strengthen
democracy, and are undertaken with deep respect for liberty, and citizens’
sovereignty. We do not believe politicians are the villains. They are the
victims of a vicious cycle. The political class needs to seize the
national mood as an opportunity and not perceive it as a threat.
Irrespective of the
outcome on legislative and legal fronts, informed and assertive citizenry
can make disclosures through civil society initiatives and media support a
reality. No law prevents us institutionalizing disclosures through
citizens’ efforts. We should share experiences of citizens’ initiatives
and standardize techniques of benchmarking and disclosures.
Finally, the last few
months are not a waste. We are much better off than we were a few months
ago. Electoral Reform is now occupying center stage in public domain. The
knee-jerk response of parties only helped mobilize public support for reform
efforts. Media is taking up the issue of clean elections very seriously.
Setbacks in short- term battles are inevitable. But the cause of democracy
has received a great boost. If we act with clarity, conviction and a
strategic sense, we may yet get full disclosures as a fundamental right,
irrespective of any legislation. The battle has only just begun.
Do please think over and
give your considered responses. Friends in Delhi may get the legal advice
quickly and advice us.
With warm regards
401/408 Nirmal Towers
Dwarakapuri Colony, Punjagutta
Hyderabad - 500 082
Tel: 040 3350778/3350790
Fax: 040 3350783
: The affidavit in the GOI draft Bill does provide for
disclosure of information on past convictions for any offences listed under
section 8 (1) & 8(2) of RP Act, 1951or for any other offences for which he
has been sentenced for two years or more. It hasn't been provided for in the
draft law, but is covered in the affidavit.