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From: "LokSatta" <fonderef@hd1.vsnl.net.in>
To: "Tirumala Srinivas" <corruptioneradication@yahoo.com>
Subject: Remarks on GOI Draft Bill
Date: Tue, 16 Jul 2002 19:58:10 +0530

Remarks on GOI Draft Bill

Dear Friends,
 
I 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 impressions: 
  1. 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)
  2. There is a weak provision to make such information public – but only by affixing a copy of affidavit at a conspicuous place.
  3. Disclosure of 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existing disclosure provisions as per the Election Commission’s order of August 1997, which is already in vogue and has been replaced by the ECs order of June 28, 2002.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.
  4. 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 competent court.
  5. 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, 1985
section 3                      : Prevention of Terrorism Act, 2002 
 
  1. 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.
  2. There is not even a murmur about the other Electoral Reforms that the government has been promising for long.

What does this law mean? 

  1. This is meant essentially to  nullify the Supreme Court Judgment of May 2nd and Election Commission order of June 28.
  2. The ECs jurisdiction under Art 324 is sought to be nullified in respect of any disclosures in future.
  3. 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.
  4. 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 liabilities.  
  5. As pointed out earlier this Bill prohibits eliciting information even to enforce the existing provisions of the RP Act, 1951.

Questions

  1. 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 fundamental right?
  2. If the law does abridge this right is there a recourse to the Supreme Court?
  3. Can people be denied information related to other charges framed and past convictions, when they are a matter of public record?
  4. 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 criminals?
  5. 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?

  1. 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.
  2. 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.
  3. The public education campaign should continue. In particular, the media should be briefed about the implications of this Bill.
  4. 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.
  5. 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.
  6. 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


Jayaprakash Narayan
National Cordinator
 
Lok Satta
401/408 Nirmal Towers
Dwarakapuri Colony, Punjagutta
Hyderabad - 500 082
Tel: 040 3350778/3350790
Fax: 040 3350783
E-mail:
loksatta@satyam.net.in
url:
http://www.loksatta.org/

Correction : 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.

 

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