Representation of People's Act-Karthik

8/13/2019 Representation of People's Act-Karthik

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REPRESENTATION OF PEOPLE ACT, 1951- current issues

Syllabus says Representation of Peoples Act.! Two acts- one in 1950 and other 1951

RPA, 1950 RPA, 1951Deals mainly with the matters relating to thepreparation and revision of electoral rolls .

All matters relating to the actual conduct ofelections .

Supplemented by Registration of ElectorsRules 1960 , made by the Central Government,in consultation with the Election Commission.

Supplemented by the Conduct of ElectionsRules 1961 framed by the CentralGovernment, in consultation with the ElectionCommission.

Electors Rules 1960 deal with all the aspects ofpreparation of electoral rolls, their periodicrevision and updating, inclusion of eligiblenames, exclusion of ineligible names,

correction of particulars , etc. These rules also provide for the issue of electoral identitycards to registered electors bearing their

photographs at the State cost. These rules alsoempower the Election Commission to preparethe photo electoral rolls containing

photographs of electors, in addition to theirother particulars.

This Act and the rules make detailed provisions for all stages of the conduct ofelections like the issue of writ notificationcalling the election, filing of nominations,

scrutiny of nominations, withdrawal ofcandidatures, taking of poll, counting ofvotes and constitution of the Houses on thebasis of the results so declared .

All post election matters to resolve doubtsand disputes arising out of or in connectionwith the elections are also dealt in accordance

with the provisions of the RPA 1951. Underthis Act, all such doubts and disputes can beraised before the High Court of the State concerned, but only after the election is overand not when the election process is still on .

The two recent judgements of Supreme Court on electoral laws to cleanse the politics-! Lily Thomas vs Union of India - ruled that Section 8(4) of the Representation of the

People Act (RPA) was ultra vires since it provide a three-month window to legislators to file an appeal against conviction of crimes.

Why ultra vires? ( Court says once convicted, article 101 will come into picturewhich disqualifies persons according to provisions of article 102). " However art. 102 say person is disqualified according to law made by

parliament. " And parliament made RPA according to which person stands

disqualified on conviction; so once convicted art.101 will come intopicture, thereby nullifying provisions of sec 8(4) (constitution issupreme to ordinary laws).


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" But constitutional expert Acharya (former secretary-general ofparliament says theres no immediate disqualification)

" Article 101(3) (a) of the constitution which provides that if a member ofeither house of parliament- becomes subject to any of the disqualificationsmentioned in Article 102 (detailed provisions of the article are mentioned

below), his seat shall thereupon become vacant.! Chief Election Commissioner vs Jan Chawkidari - more controversial ruling as it barsthose in police custody or under arrest from contesting elections .The court concluded that section 8(4) of RPA , which defers the date on which the

disqualification will take effect, is ultra-vires the constitution because it is inconsistent witharticles 101(3)(a) and 190(3)(a) .

It is important to note that the court didnt go into the question of whether section 8(4)infringes the equality provision in Article 14 .

It is obvious that the second ruling is ripe for misuse-.! If the view of the Supreme Court is accepted, then a rival politician need only get a false

First Information Report (FIR) filed against his political rival and have him sent to police custody or jail to disqualify him.

A large number of criminal cases against politicians, in any case, are of a politicalnature an outcome of agitation politics, protests, civil disobedience and so on. Even in the pastand the present, some of our best law-makers have been part of various civil disobedience and

protest movements.

Sections in question: -1. Section 2(e) defines an elector as a person whose name is entered in the electoral roll

of that constituency and who is not subject to any of the disqualifications mentioned insection 16 of the RP Act, 1950 . The Supreme Court has relied on the definition ofelector, as found in Section 2 (e) of the RPA, and observed that in view of Sections 3,4, and 5, to be qualified for membership of the legislature; one has to be an elector.

2. Section 8(4) of the RPA had allowed convicted legislators to appeal their convictionand evade disqualification until their appeals were exhausted. This ruling thereforetries to address an anomaly wherein a convicted criminal cannot contest elections, whileconvicted members of Parliament and legislative assemblies can continue to sit in thelegislature for three months from the date of conviction pending the filing of legalappeals.

3. It is difficult to comprehend how the Supreme Court relied on Section 62(5) of the RPAto disqualify persons who are in jail or police custody from standing for elections, giventhat there is no mention of section 62(5) in the Acts definition of elector. The Actclearly distinguishes a voter and an elector- Section 62(5) only debars a person in jailfrom voting, not from contesting an election .

4. Section 8 (4) of the Act which carves out a saving in the case of sitting members ofParliament or State Legislature from the disqualifications under sub-sections (1), (2)and (3) of Section 8 of the Act or which defers the date on which the disqualificationwill take effect in the case of a sitting member of Parliament or a State Legislature isbeyond the powers conferred on Parliament by the Constitution.


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5. Under Section 8 (1) (2) and (3) of the Act, the disqualification takes effect from thedate of conviction . Thus, there may be several sitting members of Parliament andState Legislatures who have already incurred disqualification by virtue of a convictioncovered under Section 8 (1) (2) or (3) of the Act.

Reasons for SC verdict : -The Supreme Court has given two reasons for its verdict:! First, it held Section 8(4) to be in violation of Article 101(3)(a) , and its corresponding

provision for the States, Article 190(3)(a) , of the Constitution.# Article 102(1) of the Constitution states:

A person shall be disqualified for being chosen as, and for being, a member ofeither House of Parliament

a) if he holds any office of profit under the Government of India or theGovernment of any State, other than an office declared by Parliament bylaw not to disqualify its holder;

b) if he is of unsound mind and stands so declared by a competent court;

c)

if he is an undischarged insolvent ;d) if he is not a citizen of India , or has voluntarily acquired the citizenshipof a foreign State, or is under any acknowledgement of allegiance oradherence to a foreign State;

e) if he is so disqualified by or under any law made by Parliament .# A careful perusal of Article 102 shows there is nothing therein which renders

it inconsistent with Section 8(4). ! Second, the SC has held that Parliament had no legislative competence to enact

Section 8(4) . This reasoning, too, is difficult to accept because E ntry 72 to List 1 of the7th Schedule in the Constitution specifically allows Parliament to legislate on electionsto Parliament or the State legislatures and the offices of President and Vice-President and the Election Commission .

Relevance of judgement in decriminalizing politics: - 1/3 of parliamentarians and state legislators are accused of serious crimes. Politicians- organized crime nexus (booth rigging, capture, fake electors etc). The judgement could be seen as the symbol against wider political apathy. Even after institutionalized procedures like model code of conduct criminal elements

continue to enter legislatures (law breakers becoming law makers).

The judgement now makes it mandatory for the incumbent legislator to vacatehis/her seat if convicted of a serious crime .

The judgement, however, is applicable only for prospective convictions and not forsitting legislators who have been convicted but have filed appeals which are pendingadjudication .

The judgement is a welcome push for the civil society, the NGOs etc who want todecriminalize politics, bring more transparency and accountability into it like the issue of RTIand political parties. Some jurists say it is judicial over-reach since,

! door is open for the practice of vendetta politics by ruling parties, and


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! a by-election to fill a seat vacated by a convict takes time and a government survivingon a wafer-thin majority could be jeopardized. Governments should be allowed tocontinue until by-elections are held to fill vacancies caused by such disqualifications.Legislators who have been convicted usually manage to file appeals and these appeals

have tended not to reach their final conclusion because of the long delays in the judicial

process . In some cases, the delay in justice could directly be attributed to the positions of poweroccupied by the legislators.Instead of taking a narrowly legalistic view, courts should also consider the likely

practical consequences of their judgments. Above all, in India, appeals drag on for years, andcertainly for more than five or six years, which is the tenure of an elected representative.

The Supreme Court recently has agreed to review its judgment, holding that persons inlawful custody whether on conviction in a criminal case or otherwise cannot contestelections.

Politics offers a promising avenue for circumventing justice. While Indias electedrepresentatives do not have formal immunity from prosecution, office-holders can rely on thetrappings of office to delay or derail justice. Chief among these is the ability of elected

politicians to transfer pesky officials for reasons unrelated to their performance. Some solutions to this awful scenario include,1. rolling back of transfer raj by the govt.,2. taking up the electoral reforms promulgated by the election commission-

any candidate against whom charges have been framed by a court, at least 6months prior to the election and for an offence punishable by at least 5 years in

jail, should be disqualified,3. police reforms - tenure security and stability,4. establishment of a special electoral tribunal charged with adjudicating serious criminal

cases against political aspirants, for speedy justice, and5. modern democratic state valuing human rights should try to re-integrate the erring

individuals into main stream . This is being done in many developed countries.

SOME SALIENT FEATURES OF RPA

Qualification for membership of council of states! Unless he is an elector for a parliamentary constituency in India.

Qualification for membership of house of people! A person is not qualified unless

1. In the case of a seat reserved for the SC/ST in any state, he is a memberof any SC/ST respectively , whether of that state or of any other state andis an elector for any parliamentary constituency;

2. In case of any other seat he is an elector for any parliamentaryconstituency.

Qualification for membership of legislative assembly! same as above (house of people)

Qualification for membership of legislative council! Unless he is an elector for any assembly constituency in that state.


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! In the case of seat filled by nomination - he should be ordinarily resident inthat state .

Disqualification on conviction of offences {section (8)}! A person shall be disqualified where the convicted person is sentenced to only

fine for a period of 6 years from the date of conviction or imprisonment, fromthe date of such conviction and shall continue to be disqualified for a furtherperiod of 6 years since his release , if he/she is convicted of an offencepunishable under IPC, Protection of Civil Rights etc.

! A person convicted of any offence and sentenced to imprisonment for not lessthan 2 years shall be disqualified from the date of such conviction and shallcontinue to be disqualified for a further period of 6 years since his release .

! SECTION 8(4) : - Gives exemption to sitting MLAs & MPs from beingdisqualified immediately on conviction; until 3 months have elapsed from thatdate , or if within that period an appeal or application for revision is brought in

or until that appeal/application is disposed off by the court. Disqualification on grounds of corrupt practices

! The case of every person found guilty of a corrupt practice shall be submitted tothe president for the determination of question as to whether such persons shall

be disqualified and if so, for what period provided that the period for which the person may be disqualified shall in no case exceed 6 yrs from the date on whichthe orders takes effect .

! Any person who stand disqualified may submit a petition to the president forremoval of such disqualification for remaining time period.

! Before giving his decision on any petition, the president shall obtain the opinionof Election Commission on such question or petition and shall act according tosuch opinion.

Disqualification for dismissal for Corruption or Disloyalty.! A person, who having held an office under the GoI or any state has been

dismissed for corruption or for disloyalty to the state should be disqualified for aperiod of 5 yr from the date of such dismissal .

Disqualification for Govt Contracts Disqualification for office under Govt company

! A person shall be disqualified if he is a managing agent or manager or

secretary of any company, corporation of which govt has not less than 25%share .

Disqualification for failure to lodge account of election expenses.! If he fails to submit it, disqualified for 3 yrs.


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Removal or Reduction of period of disqualification.! The Election Commission may remove any disqualification under this (except

under dismissal for corruption / disloyalty) or reduce the period of suchdisqualification (from appeal, not suo-moto)

Disqualification arising out of conviction and corrupt practices.! If any person is convicted of an offence punishable under the IPC, he shall for a

period of 6 yrs from the date of conviction is d isqualified for voting at anyelection . The Election Commission may remove any disqualification under thisclause.

Time to think: -

1. Whether it is morally and socially good to bar people from voting for the reason that theyare being convicted?2. Does it amount to their isolation from normal process of social organisation?3. Elector v/s voter

by KARTHIK.RReferences: -

1. RPA, 19512. Economic and Political weekly article on Decriminalising Politics.3. The Hindu articles-

a) MPs, MLAs to be disqualified on date of criminal conviction

b)

Judicial overreachc) Crime, caste and judicial restraintd) Court to review ruling on barring persons in custody from polls

Documents

Representation of People's Act-Karthik