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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
CHAPTER IV 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
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 DISQUALIFICATION

 

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

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

 

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            LAW COMMISSION OF INDIA

            ONE HUNDRED SEVENTIETH REPORT
        
            ON
        
            REFORM OF THE ELECTORAL LAWS
       
            MAY, 1999
        
        
        
        
           D.O.  No.6(3)(35)/95-LC(LS)		29/05/99/09.06.99
        
        
           Dear Shri Ram Jethmalani,
        
           	I am forwarding herewith the 170th  report  on  the
           "Reform of the Electoral Laws."
        
           2.	The  Ministry  of Law, Justice and Company Affairs,
           Government of India had addressed a letter  dated  2/11/95,
           requesting   the   then   Law  Commission  to  undertake  a
           comprehensive study of the measures  required  to  expedite
           the hearing  of  the  election  petitions.   On 3rd August,
           1998, a reminder was sent to and received  by  the  present
           Law Commission.    Even some time before the receipt of the
           letter dated 3rd August, 1998, the Commission had suo  motu
           undertaken  a  thorough review of the Representation of the
           People Act, 1951 including provisions relating  to  hearing
           of election  petitions.    The  underlying objective was to
           make the  electoral  process  more  fair,  transparent  and
           equitable.   The  effort  was  also  to  reduce the several
           distortions and  evils  that  had  crept  into  the  Indian
           electoral  system,  to  identify  the areas where the legal
           provisions required strenthening  and  improvement  and  to
           suggest    the   requisite   measures   in   that   behalf.
           Accordingly, the Law Commission prepared a  working  paper,
           to which  three  draft  Bills were also enclosed.  One Bill
           pertained to amending the Constitution of India, the  other
           for amending the Representation of People Act, 1951 and the
           third to amend the Indian Penal Code.
        
           3.	The  salient features of the working paper included
           inter-alia, introduction of List System, Amendment  to  the
           Tenth Schedule to the Constitution of India, curtailing the
           expenditure  on  elections,  amendment  of section 8 of the
           Representation of the People Act, enhancement of punishment
           for electoral offences,  measures  to  ensure  expenditious
           disposal of election petitions by the High Court, amendment
           of section 97 (1) of the R.P.  Act, 1951.
        
           4.	The  working  paper  prepared by the Law Commission
           was communicated to all the recognised  political  parties,
           both  at  the  national  and  state  level,  the  Houses of
           Parliament, the State Legislatures, to the High Court,  Bar
           Associations,    Election   Commission,   prominent   media
           personalities, associations and organisations interested in
           electoral reforms and many other persons.  A  large  number
           of   responses   were   received   from  parties,  persons,
           organisations, associations
           and individuals.    The  Law  Commission  also  held   four
           seminars  to  elicit  informed  opinion  and  views  of the
           political parties and responsible members  of  the  public.
           The  first  seminar  was held on 14th November, 1998 at the
           India International Centre, the second seminar was held  at
           Thiruvananthapuram, the third seminar was held at Bangalore
           in  the  premises  of  the  National  Law  School  of India
           University and finally  a  National  Seminar  on  Electoral
           Reforms was held at New Delhi on 23rd-24th January, 1999 at
           Vigyan  Bhavan,  in  association  with  the  Bar Council of
           India.  Many eminent personalities  including  the  Hon'ble
           Prime   Minister  participated  in  the  said  seminar  and
           projected their views.

           5.	After thoroughly analysing the views obtained  from
           various  quarters,  the Commission has prepared this report
           on electoral  reforms.    The  report  recommends   various
           measures  which  are essential to make our electoral system
           more representative, fair and  transparent,  to  strengthen
           our   democracy,  to  arrest  and  reverse  the  prcess  of
           proliferation and splintering of political parties  and  to
           introduce stability  in  our  governance.    With a view to
           achieve the said objectives, we have suggested inclusion of
           a chapter  regulating  the  formation  and  functioning  of
           political  parties,  particularly  with  a  view  to ensure
           internal democracy.  The Commission has  examined  in-depth
           the necessity of introducing the List System in the country
           and has  made  recommendations  accordingly.    The  law of
           defections  contained  in  the  Tenth   Schedule   to   the
           Constitution has also been revised; it is now proposed that
           a  pre-election front/coalition of political parites should
           be treated as a "political party" for the purposes  of  the
           Tenth Schedule.  The Commission has also suggested that any
           political  party  which  receives less than 5% of the total
           valid votes cast in the general election to the  Lok  Sabha
           or  to  a  State  Legislative Assembly, as the case may be,
           shall  not  be  entitled   to   any   seat   in   the   Lok
           Sabha/Legislative  Assembly,  even  if it wins any seat(s).
           The Commission has also opined that the time  is  now  ripe
           for barring indepndent candidates from contesting elections
           for  Lok  Sabha  and  Legislative  Assemblies  and has made
           recommendations accordingly.  The reasons for these several
           measures have been stated elaborately in our Report.
        
           6.	The Commission has also reiterated its proposal  to
           delete Explanation-I  to  section  77(1)  of the R.P.  Act,
           1951,  which  has  been  strongly  criticised  in   several
           judgements of the Supreme Court and all discerning persons.
           We  have also recommended enactment of provisions requiring
           the political  parties  to  maintain  accounts,  have  them
           audited and  file  them before the election Commission.  On
           State Funding of  political  parties,  the  Commission  has
           reiterated   the  recommendations  in  the  Inderjit  Gupta
           Committee report subject to certain reservations set out in
           paragraph 4.3.4.  of our Report.  Similarly provisions  are
           in vogue in several other democratic countries.
        
           7.	The Commission has also recommended that in case of
           electoral  offences  and  certain  other  serious offences,
           framing of a charge by the Court should itslef be a  ground
           of disqualification  in  addition  to  conviction.   It has
           reiterated several other proposals set out in working paper
           except with regard to  raising  deposits  in  the  case  of
           independent candidates.     The  raising  of  deposits  for
           independents  is  unnecessary  in   view   of   our   other
           recommendations  to  bar  the  independents  altogether and
           permitting only political parties  (whether  recognised  or
           not)  to  contest  elections  subject to the requirement of
           obtaining 5% of the total valid votes cast to  enable  them
           to get a seat in Lok Sabha/State Assembly.
        
           8.	The  Commission  has,  with  a  view to check false
           complaints, proposed to amend the  relevant  provisions  of
           the Criminal Procedure Code.
        
           9.	In  the  interest  of  transparency,  we  have also
           suggested  provisions  making  it  obligatory  upon   every
           candidate  to declare the assets possessed by him or her or
           by  his/her  spouse  and  dependent   relations   and   the
           particulars   regarding   criminal  cases  pending  against
           him/her, in the nomination paper itself.
        
           10.	We  have  also  suggested  measures  for   ensuring
           stability of governments.  One of the measures suggested is
           a new rule, Rule 198A in the Rules of Procedure and Conduct
           of Business  in  Lok Sabha.  We have stressed the necessity
           of having one election once in five years for Lok Sabha  as
           well  as State Assemblies and made some suggestions in that
           behalf.
        
           11.	We have also set out the desirability  of  adopting
           the  rule  requiring  that  ony a candidate obtaining 50%+1
           votes will  be  declared  elected  and  the  holding  of  a
           "run-off" election  wherever  necessary.    The  concept of
           negative vote also has been discussed and  recommended  for
           consideration.
        
           12.	The Commission is of the considered view that there
           is   urgent   and   crying   necessity   to  implement  the
           afore-mentioned measures to reform the electoral system and
           to strengthen the democracy in our country.
        
        	With regards,	
        					Yours sincerely,
        
        
        
        				    (B.P.  JEEVAN REDDY)
        
        Shri Ram Jethmalani,
        Minister for Law, Justice &
        Company Affairs,
        Shastri Bhavan,
        New Delhi.
        
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          PART I
          Background of Electoral Reforms
          CHAPTER I
          INTRODUCTION
           
           
           1.1.1.	The preamble to be Constitution of  India  declares
           that  the people of India have resolved to constitute India
           into a sovereign democratic  republic  with  the  four-fold
           objective,  namely,  to secure to all its citizens, justice
           social,  economic  and  political;  liberty   of   thought,
           expression,  belief,  faith and worship; equality of status
           and  of  opportunity  and  to  promote   among   them   all
           fraternity, assuring  the  dignity  of  the individual.  As
           would be evident from the provisions in Part V and Part  VI
           of  the  Constitution,  we have established for ourselves a
           parliamentary form of government patterned on  the  British
           model.   In  a  parliamentary democracy, there is no formal
           separation  between  the  Parliament  and   the   political
           executive (Council  of Ministers).  The political executive
           is a part and parcel of the Parliament and  is  drawn  from
           it.  The party or the group of parties which has a majority
           in  the  lower  House or which enjoys the confidence of the
           lower House, is  invited  by  the  President  to  form  the
           government.   In other words, in a parliamentary democracy,
           the political executive is  not  elected  as  such  by  the
           people.   Even the President, the titular Head of the State
           is not elected by the people directly but by the Members of
           the Parliament and the State Legislatures.  It is for  this
           reason  that  the  Supreme  Court  has held repeatedly even
           before the enactment  of  the  Constitution  (Forty-Second)
           Amendment Act,  1976,  in  Ram  Jawaya  Kapur  v.  State of
           Punjab (AIR 1955 SC 549) and in Samsher Singh v.  State  of
           Punjab  (AIR  1974  SC  2192)  that  the  position  of  the
           President under our Constitution is  akin  to  the  British
           Monarch.   In  other  words, he is a constitutional head of
           the State.  The real governing power vests in the political
           executive.  Similar is the position in  the  States.    The
           system  obtaining  in this country is wholly different from
           the one obtaining in the United States of America where the
           executive, namely, the President is elected directly by the
           people just as the Legislature (Congress) is elected by the
           people directly in a separate election.  In such  a  system
           of  government,  the governing power is distributed between
           the President and the Congress and the political  executive
           is   not   drawn   from   the   Legislature  whereas  in  a
           parliamentary form of government like ours,  the  political
           executive  (Council  of Ministers) is drawn from Parliament
           and is answerable to the Parliament  for  exercise  of  its
           powers.
           
           1.1.2.	Whether  in a parliamentary form of government or a
           Presidential form, indeed in every democracy,  the  process
           of   election   should   be   free,   fair  and  equitable.
           Fortunately, our Constitution and the Representation of the
           People Act, 1950 and Representation of the People Act, 1951
           to seek to  provide  for  a  free  and  fair  election  but
           problems  have  been  arising  in this regard on account of
           division in our polity on the  basis  of  religion,  caste,
           language, region  and  race.   [Free and fair elections are
           the  very  foundation  of  democratic  institutions   (P.R.
           Belagali v.   B.D.    Jatti, AIR 1971 SC 1348; Indira Nehru
           Gandhi v.  Raj Narain, AIR 1975 SC 2299; and Mohinder Singh
           Gill v.  The  Chief  Election  Commissioner,  AIR  1978  SC
           851)].   However  there  has been a steady deterioration in
           the  standards,  practices  and   pronouncements   of   the
           political class,  which fights the elections.  Money-power,
           muscle-power, corrupt practices and unfair means are  being
           freely employed  to  win  the  elections.   Over the years,
           several measures have been taken by Parliament to amend the
           laws relating  to  elections  with  a  view  to  check  the
           aforementioned forces.      This  report,  which  has  been
           prepared after extensive consultations, is a  step  in  the
           said process.  It is hoped that Parliament will take prompt
           action to give them legislative imprimatur.
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            CHAPTER II
            Relevant Legislative Provisions
           
           1.2.1.	Part XV of the Constitution deals  with  elections.
           It  contains  six  articles  viz.,  articles  324  to  329.
           Article 324 declares that  the  superintendence,  direction
           and  control of the preparation of electoral rolls for, and
           the conduct of, all elections  to  Parliament  and  to  the
           Legislature  of every State and of elections to the offices
           of   President   and   Vice-President   held   under    the
           Constitution,  shall  be vested in the Election Commission.
           Article 325  declares  that  there  shall  be  one  general
           electoral  roll  for  every  parliamentary constituency for
           election to either House of Parliament or to the  House  or
           either  either House of the Legislature of a State and that
           no person shall be ineligible for  inclusion  in  any  such
           roll  or claim to be included in any special electoral roll
           for any such constituency  on  grounds  only  of  religion,
           race, caste,  sex  or  any of them.  This article read with
           article 326 confers a right  upon  every  citizen  of  this
           country  to  be  included in the electoral roll provided he
           has completed 18 years of age on the specified date and  is
           not  otherwise  disqualified under any of the provisions of
           the Constitution or any  law  made  by  Parliament  or  the
           appropriate Legislature.    Article 327 empowers Parliament
           to provide by law with respect to all matters relating  to,
           or  in  connection  with,  elections  to  either  House  of
           Parliament  or  to  the  Houses  of  either  House  of  the
           Legislature   of  a  State  including  the  preparation  of
           electoral rolls, the delimitation of constituencies and all
           other matters necessary for securing the  due  constitution
           of such  House  or  Houses.    This power, the article says
           clearly, can be exercised by Parliament from time  to  time
           subject to the provisions of the Constitution.  Article 328
           confers  a similar power upon the Legislature of a State in
           so far as a  provision  in  that  behalf  is  not  made  by
           Parliament.   Article  329 creates a bar to interference by
           courts in electoral matters.  Clause (a) declares that  the
           validity  of  any  law  relating to the delimitation of the
           constituencies  or  the  allotment   of   seats   to   such
           constituencies, made or purporting to be made under article
           327 or  328   shall not be called in question in any court.
           Clause (b) declares that no election  to  either  House  of
           Parliament  or  to the House or either House of Legislature
           of a State  shall  be  called  in  question  except  by  an
           election  petition presented to prescribed authority and in
           the prescribed manner.
           
           1.2.2.	Pursuant to article  325  to  327,  Parliament  has
           enacted  the  Representation  of  the  People Act, 1950 and
           Representation of the People  Act,  1951  (besides  certain
           other  minor  enactments and orders) which cover the entire
           gamut of elections to Parliament and State Legislatures.
           
TOP.gif (1292 bytes)            CHAPTER III
            Background of the subject undertaken
          and Commission's Working Paper
           
           1.3.1.	It appears that in 1995, the Government of India in
           the  Ministry  of  Law,  Justice  and  Company  Affairs had
           addressed a letter dated 2.11.1995 requesting the then  Law
           Commission  to  undertake  a  comprehensive  study  of  the
           measures required to expedite the hearing of  the  election
           petitions.    The   present   Law   Commission   (15th  Law
           Commission)  which  was  constituted  towards  the  end  of
           November  1997  came  to know of the said letter much later
           i.e.  on receipt of a letter from  the  Minister  for  Law,
           Justice  and  Company  Affairs dated 3rd August 1998 asking
           for a report on the above subject at an early date.   As  a
           matter  of  fact,  some time before the receipt of the said
           letter, the present Law Commission had, suo motu,  embarked
           upon  a thorough review of the Representation of the People
           Act, 1951  including  provisions  relating  to  hearing  of
           election petitions.    The study was undertaken with a view
           to making the electoral process more fair, transparent  and
           equitable.   The effort was also to reduce, if not curtail,
           the several distortions and evils that had crept  into  the
           India  electoral  system,  to  identify the areas where the
           legal provisions required strengthening and improvement and
           to  suggest  the  requisite  measures   in   that   behalf.
           Accordingly,  the  Law  Commission prepared a working paper
           (Annexure-B) to which were enclosed three draft Bills,  one
           for  amending  the  Constitution  of  India,  the other for
           amending the Representation of People  Act,  1951  and  the
           third to  amend the Indian Penal Code.  While preparing the
           working  paper  and  the  accompanying   Bills,   the   Law
           Commission  took  into  consideration  the  Bill  which was
           prepared in 1990 by the late Shri Dinesh Goswami, the  then
           Minister  for  Law, Justice and Company Affairs, based on a
           consensus arrived at between  all  the  political  parties.
           Indeed,  we  took  the  said Bill as the starting point and
           suggested various other measures which in our opinion  were
           called for  to  achieve  the aforementioned objectives.  We
           also took into account a brochure published by the Election
           Commission of  India  containing  various  suggestions  for
           amending  the Representation of the People Act, 1951 Notice
           was also taken of several decisions of the Supreme Court on
           various provisions of the Representation of the People Act,
           1951 hereinafter referred to as the R.P.Act.   The  salient
           features of the working paper were the following:
           
           1.3.2.	Introduction of  the  List   System.      The   Law
           Commission    took    note    of    the   fact   that   the
           `first-past-the-post' system prevailing in our country  had
           given  rise  to  several  inequities and distortions in our
           electoral  process   particularly   on   account   of   the
           multiplicity of  the  political parties.  There are certain
           States in India where there are three  or  four  recognised
           political parties, more or less evenly balanced.  In such a
           situation  what  is happening is that the winning candidate
           is receiving, in many cases, 30% or less of the valid votes
           cast.  The remaining 70% or  more  votes  polled  (cast  in
           favour  of  the defeated candidates including independents)
           are practically going waste,  without  representation,  and
           without  a  voice  in  the  representative  bodies, namely,
           Parliament and  the  State  Legislatures.  It  was  thought
           advisable  to  provide  a voice and a representation to the
           wasted votes which indeed very often constituted a majority
           of the total votes cast.
           
           1.3.2.1.  Another consideration in this behalf was that the
           first-past-the-post  (FPP)  system  now  in  vogue  is  not
           yielding a correct picture of the voter  preferences.    In
           other  words,  there is no commensurality between the total
           votes cast in a State or in the country, as  the  case  may
           be, and  the  seats  obtained  by  the parties.  To be more
           precise, what is happening is that a political party  which
           has  received,  say,  32%  of  the  total votes case in the
           country is  obtaining  70%  of  the  seats  in  Parliament,
           whereas  another political party which has polled, say, 29%
           of the votes, is getting 25% of the seats in Parliament.  A
           `swing' of 2 to 3 per cent votes is  resulting  in  a  huge
           difference in the number of seats won.
           
           1.3.3.2.  There was yet another situation where a political
           party is polling a substantial chunk of  votes  cast  in  a
           given  State  in parliamentary elections but is not able to
           get a single seat in the Parliament from that State.
           
           1.3.2.3.   With  a  view  to  rectifying and redressing the
           aforementioned  distortions   and   inequities,   the   Law
           Commission  was of the provisional opinion that introducing
           a List System  may  serve  to  redress  the  aforementioned
           distortions, at  least  to  a  partial  extent.    For this
           purpose, we looked to the  electoral  system  obtaining  in
           certain  other  countries  including  Germany where a mixed
           system (FPP and list system) is in force.  In Germany, part
           of the seats   are  filled  on  the  basis  of  FPP  system
           whereunder    the  members  are  elected  from  territorial
           constituencies and the remaining members  are  chosen  from
           the lists put forward by the political parties.  We did not
           however  think  it  advisable  to  import the German system
           whole-hog for it was found to be extremely complicated  and
           difficult  of  operation  in  a  country  like ours where a
           sizeable chunk of population is illiterate and is not  able
           to operate such a complicated electoral system.
           
           1.3.2.4.  We thought of finding a system more suited to our
           genius  and  to  the  conditions prevailing in our country.
           Though it would have been advisable to suggest that 50%  of
           the   number   of  members  in  Lok  Sabha  or  Legislative
           Assemblies of the States should be filled on the  basis  of
           list  system,  we  pegged it at 25%, not only as a starting
           point, but also with a view not to give room for growth of,
           or encouragement to, caste-based political parties.  We did
           not  wish  to  encourage  in  any  manner  the  caste-based
           political  parties  or  the  voting patterns based on caste
           considerations.
           
           1.3.2.5.  Accordingly, it was suggested  that  in  the  Lok
           Sabha  as  well as in the State Legislative Assemblies, the
           present strength should be increased by 25% of the existing
           strength which increased strength should be filled  on  the
           basis of  list  system.  The list system was to be confined
           only to recognised political parties (RPP).  There would be
           no separate vote nor a separate election for the members to
           be chosen under the list system.
           
           1.3.2.6.   It  was suggested that each recognised political
           party should put forward its list of candidates, which will
           be received, scrutinised and  valid  list  published  along
           with  the  nominations  for  elections from the territorial
           constituencies.  It was suggested that  for  this  purpose,
           `territorial  units'  be  designated;  so far as the bigger
           States are concerned, each State  shall  be  a  territorial
           unit but in the case of small States, they should either be
           clubbed  with  an  adjacent  bigger  State  or  be  clubbed
           together to  form  a  territorial  unit.    (This  idea  of
           territorial  units  was suggested to be adopted only in the
           case of parliamentary general elections and not in the case
           of elections to the State  Legislatures.)  At  the  end  of
           polling   and   counting   of  votes  for  the  territorial
           constituencies, the Election Commission, it was  suggested,
           should  tabulate  votes  polled  by  each  RPP  in  a given
           State/territorial unit and the seats meant to be filled  up
           under  the  list  system  be  distributed among the RPPs in
           proportion to the votes polled by them.  For achieving  the
           said  purpose, it was found necessary to amend not only the
           Representation of the People Act, 1951 but the Constitution
           of India itself in the first instance.    Accordingly,  the
           suggested  amendments both to the Constitution of India and
           the Representation of People Act, 1951 were  shown  in  the
           Bills accompanying the working paper.
           
           1.3.2.7. Another connected suggestion was to delete article
           331  of  the  Constitution  which empowers the President to
           nominate two members of Anglo-Indian community to  the  Lok
           Sabha.  It was explained that this provision which may have
           been  good  when  the  Constitution was enacted, has become
           irrelevant with the  substantial  fall  in  the  number  of
           Anglo-Indians  over  the  years  and  in  the  light of the
           miniscule number of this community obtaining today.
           
           1.3.3.	Amendment   to   the   Tenth   Schedule   to    the
           Constitution.   The  Tenth Schedule to the Constitution was
           inserted by the Constitution (Fifty-second Amendment)  Act,
           1985.   The  Schedule  provides  for  disqualification of a
           member  of  Parliament  of  a  State  Legislature  in   two
           situations,  namely  (a)  if  he  voluntarily  gives up his
           membership of  political  party  on  whose  ticket  he  was
           elected  and  (b)  if  he  votes  or  abstains from voting,
           without prior  permission  of  the  party,  in  such  House
           contrary  to any direction issued by the political party on
           whose ticket  he  has  been  elected  and  such  voting  or
           abstention  has  not  been condoned by such political party
           within 15 days from the date of voting of abstention.   The
           Schedule  however  introduced  in  paragraph  3 thereof the
           concept of `split'.  In short, the paragraph provided  that
           if  not  less  than  1/3rd members of the legislature party
           defect, the disqualification provided in paragraph 2  shall
           not operate.    Paragraph  4  provided  that  the  rule  of
           disqualification in paragraph 2 shall not apply  where  two
           or more  political  parties merge.  Paragraph 5 provided an
           exemption  in   favour   of   Speaker/Deputy   Speaker   of
           Chairman/Deputy  Chairman,  as  the  case  may be, from the
           operation of paragraph 2.  Paragraph  6  provided  that  in
           case  of dispute on the question of disqualification on the
           ground of defection, the  same  shall  be  decided  by  the
           Speaker or  the Chairman of the House concerned.  Paragraph
           7 barred the jurisdiction  of  the  courts  in  respect  of
           matters  connected with the disqualification of a member of
           a House under the said  Schedule.    (This  paragraph  has,
           however,  been  declared  unconstitutional  by  the Supreme
           Court in Kihota v.  Zachilhu (AIR 1993 SC 412).   Paragraph
           6 provided for rules to be made to carry out the objects of
           the Schedule.
           
           1.3.3.1.   The  experience  of  this country with the Tenth
           Schedule since its introduction has not been happy.  It has
           led to innumerable abuses and undesirable practices.  While
           the idea of disqualification on the basis of defection  was
           a  right  one,  the  provision relating to `split' has been
           abused beyond recall.  It was accordingly suggested  by  us
           that  paragraphs  3  and  4  should  go altogether with the
           result that paragraph  2  alone  remains  (along  with  the
           exemptions in paragraph 5).  The underlying idea was that a
           person  elected  on  the ticket of a political party should
           remain with it during the life of the House  or  leave  the
           House.   It  was  also suggested by the Law Commission that
           the decision on the question of disqualification under  the
           said  Schedule should be entrusted to the President (in the
           case of Parliament) and to the Governor  (in  the  case  of
           State  Legislature)  who  shall  render  their  decision in
           accordance with the  opinion  of  the  Election  Commission
           which shall be consulted in that behalf.
           
           1.3.3.2.   For  achieving  the  said  objective,  necessary
           amendments to the Tenth Schedule to the  Constitution  were
           appended to  the  working  paper.    We  are also proposing
           herein amendments to articles  102(1)  and  191(1)  of  the
           Constitution  which  are  necessary  to  give effect to our
           recommendations.  The amendments  in  articles  102(1)  and
           191(1) are to the following effect:-
           
           (1)	In clause (1) of article 102, after sub-clause (e),
           the following sub-clause (f), shall be inserted before  the
           Explanation -
           
            "(f)  if  he is disqualified for being  a member of
                   either  House  of  Parliament   under   the   Tenth
                   Schedule."
           
           (2)	Clause (2) to article 102 shall be deleted.
           
           	Similarly, in  article    191(1), sub-clause (f) as
           follows shall be added after sub-clause (e) but before  the
           Explanation:-
           
            "if  he  is  disqualified  for  being  a  member of
                   Legislative Assembly or Legislative  Council  of  a
                   State under the Tenth Schedule"
           
           (2)	Clause (2) to article 102 shall be deleted.
           
           1.3.4.	Curtailing the  expenditure on elections.  The next
           major proposal put forward by the Law Commission  pertained
           to  reducing  the  expenditure  on  elections  and  also to
           regulate the receipts  and  expenditure  by  the  political
           parties.  The issue of State funding was also considered in
           this context.    The  first  proposal in this behalf was to
           delete Explanation 1 to section 77 of the Representation of
           the People Act, 1951.  Besides the abuse  inherent  in  the
           said  Explanation, it was pointed out that the necessity of
           deleting the  Explanation  had  been  pointed  out  by  the
           Supreme  Court  in  several  decisions  including C.Narayan
           Swami v.  C.K.Jaffar Sheriff [1994 Supp.  (3) SCC 170]  and
           Gadakh Yashwantrao  Kanakarrao  v.    Balasaheb Vikhe Patil
           [1994 (1) SCC 682].  It was pointed out in these  decisions
           that  the  corrupt  practice of incurring or authorising of
           expenditure in contravention of sub-section (6) of  section
           123   has  lost  its  significance  and  utility  with  the
           introduction of Explanation  1  to  section  77.    It  was
           further  pointed  out  by  the  court  that the Explanation
           violates the spirit of the Act and  a  hope  was  expressed
           that  the  Parliament  would delete the said Explanation as
           early  as  possible  to  remove  the  impression  that  the
           enactment  and retention of the same was deliberate and was
           inspired by motives which could not be said to be  genuine,
           democratic or sufficiently justifiable.  The Law Commission
           had  also  referred  in extenso in its working paper to the
           decision of Supreme Court in Kanwarlal Gupta v.    Amarnath
           Chawla  (1975  (3)  SCC  646),  to  get over which decision
           indeed, Explanation 1 was enacted.  The suggestion  of  the
           Law  Commission  was  that  deletion of Explanation 1 would
           bring the legal position in conformity with the  ruling  in
           Kanwarlal Gupta's case.
           
           1.3.4.1.The   second  suggestion  in  this  behalf  was  to
           introduce  provisions  making  it   obligatory   upon   the
           political  parties to maintain regular accounts clearly and
           fully recording therein all amounts received  by  them  and
           all  expenditure  incurred,  as is the legal requirement in
           Germany.  It was further suggested that the  said  accounts
           should  be duly got audited at the end of each year and the
           audited  accounts  submitted  to  the  Election  Commission
           before the prescribed date every year.  Election Commission
           was  required  to  publish  the  said  accounts  for public
           information.   This  proposal  was  made  to  introduce  an
           element  of  transparency  and  openness  in  the financial
           matters of the political  parties  and  is  backed  by  the
           judgment of  the Supreme Court in Gajanan Bapat v.  Dattaji
           Meghe (1995 SCC 347).  The  said  decision  emphasised  the
           desirability   and   necessity  of  the  political  parties
           maintaining true and correct account of their receipts  and
           expenditure  including  the  disclosure  of  the sources of
           receipt.  It was pointed out in the decision that this  was
           essential  to ensure the purity of elections and to prevent
           money from influencing the outcome of elections.    It  was
           pointed out by the Law Commission in its working paper that
           the aforesaid provisions in conjunction with the provisions
           contained  in  section  29A, would advance the objective of
           ensuring purity of elections by preventing the money-power,
           in particular black money-power and  money  collected  from
           suspect sources from influencing the elections.
           
           1.3.4.2.   The  third  proposal in this behalf pertained to
           State funding.  On this aspect, we  merely  reproduced  the
           provisions  contained  in the Bill prepared by the then Law
           Minister, late Shri Dinesh Goswami in 1990 since they  were
           based   upon  a  consensus  among  the  political  parties,
           inviting at the same time the response of all concerned and
           informed citizenry to the said proposal.
           
           1.3.5.    Amendment   of   section  8  and  enhancement  of
           punishment for electoral offences.  The next major proposal
           put forward in the working paper prepared and circulated by
           the Law Commission pertained to amendment of section 8  and
           of  sections  127(1), 134B(2), 135(1), 136(2) and insertion
           of a new section 126A in the Act.  It  was  also  suggested
           that  punishments prescribed by several sections in chapter
           IXA of the Indian Penal Code 1860 should be enhanced.   All
           the  above  sections in the Act as well as the Indian Penal
           Code are election offences and quite serious too.  The main
           purpose behind the suggested amendments was to provide  (a)
           that  framing of charges by the court should by itself be a
           ground for disqualifying a person from  being  a  candidate
           for  election  and  (b) to enhance the punishments provided
           for election offences contained in  the  Representation  of
           People  Act,  1951 and chapter IXA of the Indian Penal Code
           so as to attract the procedure prescribed in  the  Criminal
           Procedure Code  for  trial  of  warrant  cases.   It may be
           remembered that framing of charges  is  obligatory  in  the
           warrant cases  but  not  in summons cases.  (In the case of
           offences triable according to the procedure prescribed  for
           trial  of summons cases, framing of charges lies within the
           discretion of the court and is not obligatory.)  The  above
           proposal  was  put  forward  for  the  reason  that persons
           indulging in election offences are usually persons powerful
           in political field and who command money  and  muscle-power
           with  the  result  that  no witness comes forward to depose
           against them.  Since no independent witness  comes  forward
           to  depose  against  such persons, the prosecution launched
           against them inevitably ends in discharge or acquittal,  as
           the case  may  be.  Indeed, a similar proposal was also put
           forward sometime ago by the Election Commission  too.    It
           may  be clarified that the aforesaid amendment was proposed
           only in sub-section (1) of  section  8  and  not  in  other
           sub-sections of section 8.
           
           1.3.6.	Other  proposals.  The other proposals contained in
           the working paper pertained to (a) enhancing the deposit in
           the  case  of  independent  candidates  and  candidates  of
           unrecognised political  parties.  This substantial increase
           was suggested with a view to  discourage  independents  and
           non-serious  candidates  from  contesting elections thereby
           making the elections cumbersome, expensive and unmanageable
           - indeed, farcical in some cases;  (b)  steps  designed  to
           ensure  expeditious  disposal  of election petitions by the
           High Court.  The Law Commission  did  not  agree  with  the
           suggestion  of  the  Law  Ministry  to entrust the trial of
           election petitions to special tribunals instead of the High
           Courts.  It was pointed out in the working paper that  such
           an  experiment was undertaken earlier and was given up as a
           failure and that only thereafter was the trial of  election
           petitions  entrusted  to  High  Courts;  (c)  amendment  of
           section 97(1) of the Act in the light of  the  decision  of
           the  Supreme  Court  in Bhagmal v. Prabhu Ram (AIR 1985 SCC
           150) and (d)  certain  other  amendments  set  out  in  the
           working paper.
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            CHAPTER IV
            German Law on Political Parties
           
           	Whether  by design or by omission, our Constitution
           does not provide for the constitution and  working  of  the
           political  parties,  though  they  are  at  the  heart of a
           parliamentary democracy.  A parliamentary democracy without
           political parties is inconceivable.  Yet  the  Constitution
           (except  the  Tenth Schedule which was inserted only in the
           year 1985) does not even speak of political parties whereas
           article 21 of the German Constitution (Basic  Law  for  the
           Federal  Republic of Germany, 1949), which Constitution was
           also enacted almost simultaneously with  our  Constitution,
           provides for the establishment and working of the political
           parties.  The Article reads thus:

           	"Article 21 (Parties)

            (1)  The parties shall help form the political will
                   of the people.  They  may  be  freely  established.
                   Their   internal   organisation  shall  conform  to
                   democratic principles.  They shall publicly account
                   for the sources and use  of  their  funds  and  for
                   their assets.

            (2)   Parties  which by reason of their aims or the
                   conduct of their adherents seek  to  impair  or  do
                   away  with  the  free  democratic  basic  order  of
                   threaten the existence of the Federal  Republic  of
                   Germany shall  be  unconstitutional.    The Federal
                   Constitutional Court  shall rule on the question of
                   unconstitutionality.

            (3)  Details shall be the subject of federal laws."

           1.4.1.1. Pursuant to article 21(3), the  German  Parliament
           has  enacted  the  `Law  on  Political Parties' in the year
           1967, which has been amended from time to time.  Section  1
           of the  Law sets out "General Provisions".  Article 1 which
           deals with the constitutional status and functions  of  the
           parties, reads thus:

            "Article 1.  Constitutional Status and Functions of
                   the Parties.

            (1)   Political  parties  form  a  constitutionally
                   integral part of a free and  democratic  system  of
                   government.      Their    free    and    continuous
                   participation in the  formation  of  the  political
                   will  of  the  people enables them to discharge the
                   public tasks which are incumbent upon them pursuant
                   to the Basic  law  (Grundgestez))  and  which  they
                   undertake to fulfil to the best of their ability.

            (2)  The parties shall participate in the formation
                   of  the  political will of the people in all fields
                   of public life, in particular by:
            bringing their influence to bear on the shaping  of
                   public  opinion; inspiring and furthering political
                   education;
            promoting an  active  participation  by  individual
                   citizens   in  political  life;  training  talented
                   people to assume public responsibilities;
            participating in Federal, Land and Local Government
                   elections by nominating candidates;
            exercising an  influence  on  political  trends  in
                   parliament and the government;
            initiating  their  defined  political  aims  in the
                   national decision-making  processes; and 
            ensuring continuous, vital links between the people
                   and the public authorities.
           
            (3)  The parties shall define  their  aims  in  the
                   form of political manifestos.
           
            (4)   The parties shall use their funds exclusively
                   for the fulfilment of their obligations  under  the
                   Basic Law and this Law."
           
           1.4.1.2.   Article  2  defines  the  expression  "Political
           Party". It reads thus:

            "Article 2.   Definition  of  the  term  "Political
                   Party".

            (1)  Parties  are  associations of citizens who set
                   out  to  influence  either  permanently  or  for  a
                   lengthy  period of time, the formation of political
                   opinions  at  Federal  or   Land   level   and   to
                   participate  in the representation of the people in
                   the  Federal  Parliament  (Bundestag)  or  regional
                   parliaments  (Landtage)  provided  that  they offer
                   sufficient guarantee of the sincerity of their aims
                   in the general character of their circumstances and
                   attendant conditions, particularly in regard to the
                   size and strength of their organisation, the number
                   of  registered  members  and  their  public  image.
                   party members may only be natural persons.
           
            (2)   An  organisation  loses its legal status as a
                   party if it has not participated for  a  period  of
                   six years in either a Federal election or a Landtag
                   election with electoral proposals of its own.
           
            (3)   Political  organisations are not deemed to be
                   parties if;
           
            1. most of their members or the  members  of  their
                   executive committees are foreigners; or
            2.   the  registered  seat  of  business is located
                   outside the purview of the present Law."
           
           1.4.1.3.  Article  3  empowers  the  political  parties  to
           institute legal proceedings in their own name and similarly
           be sued in their own name.
           
           1.4.1.4. article 4 provides that the name of a  party  must
           be  clearly  distinguishable  from  that  of other existing
           parties and that this rule is also applicable to  acronyms.
           In   election   campaigns   and  the  elections,  only  the
           registered name or acronym may be used.
           
           1.4.1.5. Article 5 provides for equal treatment of all  the
           political parties.  It reads as under:
           
            "Article 5.  Equality of Treatment.
           
            (1) Where a public authority provides facilities or
                   other public services for use by a party,  it  must
                   accord equal  treatment  to all other parties.  The
                   scale  of  such  facilities  and  services  may  be
                   graduated  to  conform  with  the importance of the
                   parties  to  the  minimum  extent  needed  for  the
                   achievement of  their  aims.    The importance of a
                   party is judged in particular from the  results  of
                   previous   elections   for   central   or  regional
                   government.  In the case of a party represented  in
                   the   Bundestag   by  a  parliamentary  party,  the
                   significance accorded to it must amount to at least
                   half that granted to any other party.
           
            (2) As regards the granting of public  services  in
                   connection  with  an election para (1) applies only
                   for  the  duration  of  the  election  campaign  to
                   parties which have submitted election proposals.
           
            (3)   The public services referred to in para 1 may
                   be made dependent upon certain preconditions  which
                   all parties have to fulfil.
           
            (4) Section IV shall remain unaffected."
           
           1.4.1.6.   Section  II  deals with internal organisation of
           the political parties.  Article 6 is of great  significance
           and may be set out in full:
           
            "Article 6.  Statutes and Programme.
           
            (1)  A party must have written  statutes  (articles
                   of association)  and a written programme.  Regional
                   organisations conduct their affairs on the basis of
                   their own statutes provided that  the  statutes  of
                   their immediately superior regional organisation do
                   not contain any provisions bearing on this matter.
           
            (2)  The Statutes must contain provisions on:
            1.  The  name and acronym (if used), the registered
                   seat and the activities of the party.
            2. The admission and resignation of members.
            3. The rights and duties of members.
            4. Admissible disciplinary measures against members
                   and their exclusion from  the  party  (Article  10,
                   paras 3 to 5).
            5.    Admissible   disciplinary   measures  against
                   regional organisations.
            6.  The general organisation of the party.
            7.  Composition  and  powers   of   the   executive
                   committee and other organs.
            8.   matters  which  may  only be decided upon by a
                   meeting of members ad representatives  pursuant  to
                   No.9.
            9.   The  preconditions,  form  and  time limit for
                   convening meetings of members  and  representatives
                   and the official recording of resolutions.
            10.  Regional  organisations  and  organs which are
                   authorised to submit or sign election proposals for
                   elections to parliaments inasmuch as three  are  no
                   relevant legal provisions.
            11.  An  overall  vote by members and the procedure
                   to  be  adopted  when  the  party  or  a   regional
                   organisation  or  to  merge  with  another party or
                   parties pursuant to Article 9, para 3.  The  result
                   of the   overall   vote     determine  whether  the
                   resolution is confirmed, amended or rescinded.
            12.   The form and content of a financial structure
                   which satisfies the rules of Section V of this Law.
           
            (3) The executive  committee  informs  the  Federal
                   Returning Officer of:
            1. The party's statutes and programme.
            2.  The  names  of  the  members  of  the executive
                   committee   of   the   party   and   its   regional
                   organisations together with their duties.
            3.  The  dissolution  of  the  party  or a regional
                   organisation.  Amendments to sentence 1(1) and  (2)
                   above  must be notified by 31 December of the given
                   calender year.  The relevant documents are held  by
                   the Federal Returning Officer and made available to
                   the public   for   perusal   and  inspection.    On
                   request, copies of the documents are provided  free
                   of charge.
           
            (4) Parties whose organisation is restricted to the
                   territory  of a Land are governed by the provisions
                   set out in the present Law for parties as a whole."
           
           1.4.1.7. Article 7 deals with the organisation of political
           parties both at the national and regional level.
           
           1.4.1.8.   Article 8 provides that the members' meeting and
           the executive  committee  shall  constitute  the  essential
           organs  of the party and its regional organisations and for
           other allied matters.
           
           1.4.1.9.  Article 9 provides for constitution  of  members'
           assemblies  and  delegates assemblies and the rights of the
           members in that behalf.
           
           1.4.1.10.  Article 10 empowers  the  political  parties  to
           decide on  the  admission  of new members.  It says that no
           justification need be given for refusing an application for
           membership.  It further declares that members of the  party
           and  the  representatives  in  the  party bodies have equal
           voting rights.  The party can frame statutes providing  for
           disciplinary  action  against  members  and  other  matters
           specified therein.
           
           1.4.1.11.  Article  11  provides that every political party
           shall elect an executive committee at  least  every  second
           calender  year  and  that  the committee must consist of at
           least three members.  It also deals with the powers of  the
           executive committee and its duties.

           1.4.1.12.  Article 12 provides for constitution of  general
           party committees and other incidental matters.
           
           1.4.1.13. Article 13 provides for composition of delegates'
           assemblies.
           
           1.4.1.14.  Article 14 provides for arbitration in case of a
           dispute  between  the  members  or  between  the  party and
           members or between the party ad regional organisations,  as
           the case may be.
           
           1.4.1.15.   Article  15   deals   with   the   process   of
           decision-making in party organs.  It reads thus:
           
            "Article 15.  Decision-Making in Party Organs.
           
            (1) The party organs adopt their resolutions on the
                   basis  of  a  simple  majority  vote  inasmuch as a
                   higher majority vote is not stipulated by law or by
                   the statutes.
           
            (2)  The  ballots  for  members  of  the  executive
                   committee   and   representatives   to   delegates'
                   assemblies as well as to the bodies of higher level
                   regional organisations are secret.  Voting at other
                   elections  is  not secret unless voters object when
                   asked to confirm such procedure.
           
            (3)  The   statutory   provisions   governing   the
                   submission of motions must be such as to ensure the
                   democratic  forming  of  opinions and in particular
                   adequate discussion of the proposals put forward by
                   minorities.  At the delegates' assemblies of higher
                   level  regional   organisations,   at   least   the
                   representatives  of  the  regional organisations at
                   the next two lower levels must be granted the right
                   to introduce  motions.    No  commitment   to   the
                   resolutions  of  other  bodies  is  permissible  at
                   elections and polls."
           
           1.4.1.16.   Article  16  deals  with   dissolution   and/or
           termination of the subordinate regional organisations.
           
           1.4.1.17.   Section  III contains only one article, namely,
           article 17.  It  says  that  "candidates  for  election  to
           Parliament must be chosen by secret ballot.  The nomination
           procedure  is  governed  by the election laws and the party
           statutes."
           
           1.4.1.18. Section IV containing articles 18 to  22    deals
           with  public financing of political parties whereas Section
           V obliges the political parties  to  maintain  and  publish
           their accounts  regularly.   Article 23 needs to be set out
           in full:
           
            "Article 23.    Statutory  obligation  to   Publish
                   Accounts.
           
            (1) The executive committee of the party shall make
                   a  public  statement  of the origins and the use of
                   funds received by its party within a calendar  year
                   (accounting  year)  as well as of the assets of the
                   party in a statement of accounts.
           
            (2)  The  statement of accounts must be scrutinised
                   by a  certified  auditor  or  auditing  company  in
                   accordance with  articles 29 to 31.  In the case of
                   parties who do not meet the requirements of article
                   18,  para  4,  first  sentence,  the  statement  of
                   accounts   may   be   scrutinised  by  a  chartered
                   accountant.  It must be submitted by  30  September
                   of  the  year  following the accounting year to the
                   President of the German Bundestag and be circulated
                   by the latter as a Bundestag paper.  The  President
                   of  the German Bundestag can extend the limit by up
                   to  a  maximum  of  three  months  in   extenuating
                   circumstances.   The  party  statement  of accounts
                   shall be submitted for discussion  to  the  federal
                   party convention following its publication.
           
            (3)  The President of the  German  Bundestag  shall
                   examine  whether  the  statement  of accounts is in
                   accordance with the regulations of Section V.   The
                   result  of  the  scrutiny  shall be recorded in the
                   report in accordance with para 5.
           
            (4)  The President of the German Bundestag may  not
                   determine  a  party's  allocation  of  public funds
                   under articles 18 and 19 so long as a statement  of
                   accounts  in  accordance  with  the  provisions  of
                   Section V is still  outstanding.    Payments  under
                   article  18  shall  be  based  on  the statement of
                   accounts to be submitted for  the  preceding  year,
                   payments  under  article  20  on  the  statement of
                   accounts submitted for the preceding year.    If  a
                   party  fails to submit the report by 31 December of
                   the following year it shall forfeit  its  claim  to
                   public funds:  allocations and disbursements to the
                   other parties shall remain unaffected.
           
            (5)  The  President  of  the German Bundestag shall
                   submit annually to the German Bundestag a report on
                   the state of party finances and on  the  statements
                   of accounts  of  the  parties.  The report shall be
                   circulated as a Bundestag paper."
           
           1.4.1.19.  Article 23(a) prohibits  the  political  parties
           from  obtaining  donations illegally. It also provides that
           in case the political party fails to publish the  statement
           of  accounts as provided by article 25(2), it shall forfeit
           public funding in an amount  double  the  amount  illegally
           obtained or not published in accordance with article 25(2).
           It  also  sets  out  the  meaning  of  `illegal donations'.
           Article 24 specifies what should the  statement  of  income
           and expenditure  contain.    It  mentions the several items
           which must necessarily be included  and  shown  in  such  a
           statement.    Broadly   speaking   it  must  disclose  full
           particulars in the  specified  form,  of  income  received,
           sources   from  which  received,  expenditure  incurred  on
           various items and its net assets.
           
           1.4.1.20.   Article  25  deals  with donations to political
           parties.  It says that political parties  are  entitled  to
           accept donations except from the sources specified therein.
            The   sources   which   are   so  excluded  are  political
           foundations and  parliamentary  groups,  corporate  bodies,
           religious and charitable associations of persons and so on.
           
           1.4.1.21.   Article  26  defines  the  expression "income".
           Article  28  creates  a  statutory  obligation   upon   the
           political  parties  to  "keep  books  in  respect  of their
           accountable income and expenditure and  of  their  assets".
           The  article  further  provides that the accounts "shall be
           kept  in  accordance  with  the   principles   of   orderly
           accounting  and  with regard for the purpose of the present
           law.  Accounts shall be preserved for five years..."
           
           1.4.1.22.   Article  29  provides  for  auditing   of   the
           statement  of accounts while article 30 makes it obligatory
           that the statement  of  accounts  shall  contain  an  audit
           certificate in  the  prescribed  manner.   Article 31 deals
           with the appointment of auditors.
           
           1.4.1.23.  Sections VI and VII deal with implementation  of
           bans  on  unconstitutional  parties  and  final provisions,
           which are not relevant for our  purpose  and  need  not  be
           referred to.
           
           1.4.2.  Though our Constitution was also framed between the
           years 1946 to 1949 (i.e., approximately at  the  same  time
           when  the  German  Constitution  was  drawn),  it is rather
           inexplicable why our Constituent Assembly did not think  it
           appropriate  to  make  provisions  governing  the political
           parties on the lines contained in the German  Constitution.
           It  may  be  mentioned  even at this stage that though this
           aspect did not figure in the suggestions contained  in  the
           working  paper  prepared by the Law Commission in September
           1998 and circulated among the  political  parties  and  the
           members  of  the  public, the same has assumed considerable
           significance  in  the  course  of  debate  at  the  several
           seminars  held by the Law Commission in this behalf and has
           also been suggested in several responses  received  by  the
           Law Commission in response to the working paper.
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 PART II
            Views of Political Parties and Interested Persons
            obtained in Seminar
           
           
           2.1	The working paper prepared by  the  Law  Commission
           was  communicated  to all the recognised political parties,
           both at  the  national  and  State  level,  the  Houses  of
           Parliament, the State Legislatures, to the High courts, bar
           associations,    Election   Commission,   prominent   media
           personalities, associations and organisations interested in
           electoral reform and many other public-minded persons.    A
           large  number of responses have been received from parties,
           persons, organisations, associations and individuals  which
           have been  duly  collated.   In addition to circulating the
           working paper, the Law Commission also held  four  seminars
           to  elicit  informed  opinions  and  views of the political
           parties and the responsible members of  the  public.    The
           first  seminar  was held on 14th November 1998 at the India
           International Centre.  It was a one-day seminar  comprising
           two sessions.      The   morning  session  was  devoted  to
           introduction of list system and amendment of Tenth Schedule
           while the second  session  was  devoted  to  proposals  for
           curtailing  expenditure  on  elections  and the measures to
           curb the entry and influence of criminal elements.  Certain
           political parties viz., BJP, CPI(M), CPI, DMK and Shiromani
           Akali Dal were represented by their spokesmen  S/Shri  Jana
           Krishnamurthy, Sitaram Yechury,  A.B.   Bardhan, T.R.  Balu
           and Manjeet Singh Khera, respectively.  Shri Shivraj Patil,
           MP (former Speaker of Lok Sabha) and Shri Kapil  Sibal,  MP
           (a  senior  advocate)  who  are members of Congress-I, also
           participated but in their individual capacity.  Besides the
           above, senior journalists  S/Shri  H.K.Dua,  C.R.    Irani,
           Inderjit,  N.Ram  and  S.Sahay  and  senior  advocates Shri
           Shanti Bhushan (former  Minister  for  Law,  Government  of
           India),   Shri   Soli  Sorabjee  (Attorney  General),  Shri
           Rajinder Sachhar (former Chief Justice Delhi  High  Court),
           Shri  T.R.Andhyarujina (former Solicitor General of India),
           Shri P.P.Rao, Shri Jitender Sharma  and  Shri  M.C.Bhandare
           participated.   Shri  Ram  Jethmalani, the Hon'ble Minister
           for Urban Development participated in  both  the  sessions.
           Dr.K.C.Sivaramakrishnan,   from   the   Centre  for  Policy
           Research, New Delhi, Shri V.K.Samayak,  President,  Voters'
           Forum,  New  Delhi,  and  Shri  N.N.Vohra,  Director, India
           International Centre, also participated.  The  participants
           put  forward several valuable suggestions, observations and
           comments all of  which  have  been  duly  recorded  in  the
           minutes of the seminar prepared by the Law Commission.

           2.2	The  second  seminar was held at Thiruvananthapuram
           in the auditorium of the Bar Council of  Kerala.    Several
           senior  advocates  and  members  of  Bar  Council of Kerala
           participated therein  which  was  also  addressed  by  Shri
           Justice  V.R.Krishna  Iyer,  former  Judge Supreme Court of
           India and an eminent public figure.  The  minutes  of  this
           seminar have also been prepared by the Law Commission.
           
           2.3	The  third  seminar  was  held  at Bangalore in the
           premises of the National Law School  of  India  University.
           Several  academicians and professors of law participated in
           this seminar.  The minutes of this seminar have  also  been
           prepared by the Law Commission.
           
           2.4	Finally,  a  National  Seminar on Electoral Reforms
           was held, at New Delhi on 23-24th January, 1999  at  Vigyan
           Bhawan, in  association  with the Bar Council of India.  It
           was inaugurated by the Hon'ble Prime Minister of India Shri
           Atal Bihari Vajpayee and was  presided  over  by  the  then
           Minister  for  Law,  Justice  & Company Affairs Dr.M.Thambi
           Durai.  Shri Justice  M.N.    Venkatachaliah,  Chairperson,
           National Human Rights Commission was the Chief Guest at the
           inaugural  session  which was addressed by the Chairman and
           Members of the Law Commission and of  the  Bar  Council  of
           India.   In  his  inaugural  address, the Prime Minister of
           India supported the proposals of the  Law  Commission  with
           respect  to  introduction  of list system, amendment of the
           Tenth  Schedule  to  the  Constitution  and  amendments  to
           curtail  the  expenditure  on  elections  and regulation of
           receipts and expenditure by the political  parties.    With
           respect to list system, however, the Hon'ble Prime Minister
           opined  that  the  suggestions  in that behalf may required
           deeper consideration.  So far as the amendment of section 8
           of  the  Act  is  concerned,  the  Hon'ble  Prime  Minister
           expressed  his  agreement while clarifying that mere filing
           of charges should not be the  basis  for  disqualification.
           The   then  Law  Minister  expressed  the  anxiety  of  the
           Government to bring about reform of electoral  law  in  the
           interest   of  a  transparent,  fair  and  clean  electoral
           process.  Shri  Justice  M.N.Venkatachaliah  commended  the
           initiative  taken  by  the  Law Commission in the matter of
           electoral  reform  and  called  for  serious   and   prompt
           legislative  action by Parliament to remove the distortions
           and defects in the system.

           2.5	The National Seminar was divided into five  working
           sessions   besides   the   inaugural  and  the  valedictory
           sessions.  The first session dealt with  the  amendment  of
           Tenth Schedule  to  the Constitution.  It was presided over
           by Shri I.K.Gujral, former Prime Minister of India and  the
           main  speakers  were  Shri Shivraj Patil, former Speaker of
           Lok Sabha and Shri Justice V.R.  Krishna Iyer.  The  second
           session  was  presided  over  by  Shri  S.Jaipal  Reddy, MP
           (Janata Dal).  This session was devoted to introduction  of
           list system.      The   main  speakers  were  Shri  Justice
           B.P.Jeevan  Reddy,  Chairman,  Law  Commission  of   India,
           Dr.N.M.Ghatate,  Member,  Law  Commission of India and Shri
           D.V.  Subba Rao, Member, Bar Council of India.   The  third
           session  on  the  morning  of  24th  January was devoted to
           curtailing of election expenditure and regulation of income
           and expenditure of political parties.  This session was  to
           be  presided  over  by Shri Inderjit Gupta, MP (former Home
           Minister) but on account of the delay in  the  flights,  he
           could not  reach Delhi in time.  Shri Somnath Chaterjee, MP
           [CPI(M)] presided over this session.  The main  speaker  at
           this session  was Shri K.K.Venugopal, senior advocate.  The
           next session pertained  to  the  problems  concerning  hung
           Parliament.   It  was  presided  over  by Shri Arun Mishra,
           Chairman, Bar Council of India and the main  speakers  were
           Shri  K.L.Sharma,  Vice  President  of  BJP,  Shri  Justice
           K.N.Saikia, former Judge Supreme Court of  India  and  Shri
           T.P.Singh,  senior  advocate  and  Member,  bar  Council of
           India.  The last session discussed the  criminalisation  of
           politics  including  the proposed amendment of section 8 of
           the Act.  It was  presided  over  by  Shri  P.A.Sangma,  MP
           (former Speaker  of  Lok Sabha).  The main speakers at this
           session were Shri Dileep Padgaonker, Executive Editor,  The
           Times  of  India  and  Shri  V.R.Reddy, senior advocate and
           former Additional Solicitor General of India.
           
           2.6.	In  all  the  above  sessions,  a  large  number of
           persons from political parties, Bar Council of  India,  bar
           associations and other public bodies and organisations also
           spoke.
           
           2.7.	The  concluding/valedictory  session  was  presided
           over  by  Shri  George  Fernandes,  the   Hon'ble   Defence
           Minister.   The  valedictory  address was delivered by Shri
           Justice V.R.Krishna Iyer, former Judge,  Supreme  Court  of
           India.
           
           2.8.	The  entire  proceedings  of  this two-day National
           Seminar were tape recorded.
           
           2.9.	The Law Commission has looked into the vast  amount
           of  literature  on  the  subject  of  electoral reforms, in
           particular, the opinions  expressed  therein  touching  the
           issues considered in this Report.
            PART III
            Analysis of views and Commission's Conclusions
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            CHAPTER I
            Necessity for providing law relating to internal
            democracy within political parties
           
           3.1.1.	On a consideration of the various  views  expressed
           in  the  four  seminars  aforesaid  and  the vast number of
           responses received by us, we have come  to  the  conclusion
           that  for successful implementation of any of the aforesaid
           proposals, or for that  matter  for  bringing  a  sense  of
           discipline  and  order  into  the  working of our political
           system and in the conduct of elections, it is necessary  to
           provide  by  law for the formation, functioning, income and
           expenditure and the  internal  working  of  the  recognised
           political  parties  both  at  the national and State level.
           The necessity of such a requirement was  stressed  by  Shri
           S.Jaipal  Reddy,  MP (a former Minister for Information and
           Broadcasting), by Shri  Manjit  Singh  Khera  (representing
           SAD), by Dr.  N.L.  Mitra, Director, National Law School of
           India  University,  and  several  other participants in the
           seminars held by the law Commission.  To  the  same  effect
           was  the view expressed by Shri Santosh Sharma, IAS (retd.)
           and president of "People First".  As pointed out in chapter
           four of  Part  one,  the  German  Constitution,  which  was
           enacted  practically  at the same time as our Constitution,
           expressly provides for formation  and  functioning  of  the
           political parties.    Article  21 which has been set out in
           the said chapter says that the political parties shall help
           form the political  will  of  the  people,  that  political
           parties  can  be freely established and that their internal
           organisation shall conform to democratic  principles.    It
           further  says  that  the  political parties should publicly
           account for the sources and use  of  their  funds  and  for
           their assets.    Article 21 further provides that political
           parties which by reason of their aims  or  the  conduct  of
           their  adherents  seek  to  impair or do away with the free
           democratic basic order or threaten  the  existence  of  the
           Federal  Republic  of Germany shall be unconstitutional and
           that the Federal Constitutional Court shall rule  upon  the
           question of  unconstitutionality.  Clause (3) of Article 21
           provides that the details in this behalf shall be  provided
           by federal  laws.   Accordingly, on 24th July 1967, the law
           on Political Parties was enacted.  We have already referred
           to the relevant provisions of this Law in chapter  four  of
           Part One.
           
           3.1.1.1.	Shri   Rajni  Kothari  while  dealing  with
           powers of internal democracy in the  Congress  Party,  said
           this:
           
            "The  `Congress  system'  has to learn to bear more
                   strains and deal with more problems but it has also
                   to become more of a `system' than it at present is.
                    After  March,  1967,  it  will  need  to  consider
                   further  steps towards its own institutionalisation
                   in the resolution of disputes, in  the  conduct  of
                   internal    elections,    in    organising    party
                   intelligence  and   research,   in   policy-decison
                   making,  in  the  party's own federal relations, in
                   party-government communications, and above  all  in
                   regard   to  the  whole  process  of  selection  of
                   candidates for different  types  of  elections  and
                   especially for the General Elections."  (Centre for
                   the  Study  of  Developing  Societies,  Context  of
                   Electoral Change in India, General Elections, 1967,
                   page3).

           3.1.2.	With  a  view  to  introduce  and  ensure  internal
           democracy in the functioning of political parties, to  make
           their  working  transparent and open and to ensure that the
           political parties become effective instruments of achieving
           the constitutional goals set out in the Preamble and  Parts
           III and IV of the Constitution of India, it is necessary to
           regulate by  law  their formation and functioning.  In this
           connection, reference can be had to the law  laid  down  in
           the  nine-judge  Constitution Bench of the Supreme Court in
           S.R.Bommai v.  Union of India (1994 (3) SCC1).   Explaining
           the  concept  of  secularism implicit in the constitutional
           provisions, the Court made the  following  observations  at
           page 236:
           
            "Inspired by the Indian tradition of tolerance  and
                   fraternity,  for  whose  sake,  the greatest son of
                   Modern India, Mahatma Gandhi, laid  down  his  life
                   and  seeking  to  redeem  the  promise of religious
                   neutrality held forth by the  Congress  Party,  the
                   Founding  Fathers  proceeded  to  create  a  State,
                   secular in  its  outlook  and  egalitarian  in  its
                   action...   if  any  party or organisation seeks to
                   fight the elections on the basis of plank which has
                   the  proximate  effect  of  eroding   the   secular
                   philosophy  of  the Constitution it would certainly
                   be guilty of following an  unconstitutional  course
                   of action....    if  the  Constitution requires the
                   State to be secular in thought and action, the same
                   requirement attaches to political parties as well."
           
           
           3.1.2.1.	On  the  parity  of the above reasoning, it
           must  be  said  that  if   democracy   and   accountability
           constitute  the core of our constitutional system, the same
           concepts must also apply to and bind the political  parties
           which are  integral  to parliamentary democracy.  It is the
           political  parties  that  form  the  government,  man   the
           Parliament and  run  the  governance of the country.  It is
           therefore,  necessary  to  introduce  internal   democracy,
           financial transparency and accountability in the working of
           the political  parties.    A political party which does not
           respect  democratic  principles  in  its  internal  working
           cannot  be  exposed  to  respect  those  principles  in the
           governance of the  country.    It  cannot  be  dictatorship
           internally and democratic in its functioning outside.
           
           3.1.3.	Conclusion.-  Keeping  the aforesaid considerations
           in mind, we recommend that a new part, Part II-A,  entitled
           `Organisation  of  Political Parties and matters incidental
           thereto' be introduced/inserted in the Act, containing  the
           undermentioned sections:
           
           3.1.3.1.	In  view  of reiteration of our proposal to
           repeal section 11 and 11B of the Representation  of  People
           Act,  1951 as stated under paragraphs 6.1.1 and 6.2 of part
           VI   infra,   the   existing    section    11-A    entitled
           "Disqualifications  arising  out  of conviction and corrupt
           practices" which will  fall  under  Chapter  IV,  shall  be
           renumbered as  Section  11.    Consequently,  the following
           sections proposed to be inserted under part II-A  shall  be
           numbered as Section 11-A to 11-H.
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            PART II-A
            Organisation of Political Parties
            and matters incidental thereto
           
           Section 11-A:  (1)Political parties can be freely formed by
           the citizens of this country.  The political parties  shall
           form   a   constitutionally   integral  part  of  free  and
           democratic system of Government.
           
           		(2)  Each  political  party shall frame its
           constitution defining its aims and  objects  and  providing
           for matters specified in section 11A.  The aims and objects
           of  a political party shall not be inconsistent with any of
           the provisions of the Constitution of India.
           
           		(3) A political party shall strive towards,
           and utilize its funds exclusively for,  the  fulfilment  of
           its  aims  and  objects and the goals and ideals set out in
           the Constitution of India.
           
           		(4)(a) A political party  shall  apply  for
           registration with the Election Commission of India.
           
           (b)		Every such application shall be made, -
           
           		(i)  if  the  association  or  body  is  in
           existence at the commencement of the Representation of  the
           People  and  other Allied Laws (Amendment) Act, 1999 ( __of
           1999), within sixty days next following such commencement;
           
           		(ii) if the association or body  is  formed
           after  such commencement, within thirty days next following
           the date of its formation.	
           
           (c)		Every  application  under  sub-section  (4)
           shall  be  signed  by  the  chief  executive officer of the
           association or body (whether such chief  executive  officer
           is  known  as  Secretary  or  by any other designation) and
           presented to the Secretary to the  Commission  or  sent  to
           such Secretary by registered post.
           
           (d)		Every  such  application  shall contain the
           following particulars, namely:  -
           
           		(i) the name of the association or body;
           
           		(ii)the State in which its head  office  is
           situated;
           
           		(iii)the address to which letters and other
           communications meant for it should be sent;
           
           		(iv)the  names of its president, secretary,
           treasurer and other office-bearers;
           
           		(v)the numerical strength of  its  members,
           and  if  there are categories of its members, the numerical
           strength in each category;
           
           		(vi)whether it has any local units; if  so,
           at what levels;
           
           		(vii)whether   it  is  represented  by  any
           member or members in either House of Parliament or  of  any
           State  Legislature;  if  so,  the  number of such member or
           members.
           
           		(viii)a declaration that the applicant  has
           complied  with  and  shall  continue  to  comply  with  the
           requirements of this chapter.
           
           (e)		The application under sub-section (4) shall
           be accompanied by a copy of the  memorandum  or  rules  and
           regulations  of  the  association or body, by whatever name
           called, and such memorandum or rules and regulations  shall
           contain  a  specific provision that the association or body
           shall bear true faith and allegiance to the Constitution of
           India as by law  established,  and  to  the  principles  of
           socialism,  secularism  and democracy, and would uphold the
           sovereignty, unity and integrity of India.
           
           (f)		The Commission  may  call  for  such  other
           particulars  as  it  may  deem  fit from the association or
           body.
           
           (g)		After considering all  the  particulars  as
           aforesaid  in  its  possession  and any other necessary and
           relevant factors and after giving  the  representatives  of
           the  association  or  body  reasonable opportunity of being
           heard, the Commission shall decide either to  register  the
           association  or  body as a political party for the purposes
           of this Part, or not so to register it; and the  Commission
           shall communicate its decision to the association or body:
           
           	Provided  that  no  association  or  body  shall be
           registered as political party under this sub-section unless
           the memorandum or rules and regulations of such association
           or body conform to the provisions of clause (e).
           
           (h)	The decision of the Commission shall be final.
           
           (i)	After an association or body has been registered as
           a political party as aforesaid, any  change  in  its  name,
           head  office,  office  bearers,  address  or  in  any other
           material matters shall be communicated  to  the  Commission
           without delay.
           
           	(5)	Only  a  political  party  registered  with
           Election Commission of India, and whose registration is not
           cancelled under this Act,  shall  be  entitled  to  contest
           elections  whether  to  Lok  Sabha  or  that of Legislative
           Assembly.
           
           Section 11-B:	(1) A political party may sue  and  may  be
           sued in its own name.  A political party shall be competent
           to hold and dispose of properties.
           
           		(2)	The  name of a political party must
           be  clearly  distinguishable  from  that  of  any  existing
           political  party  and  shall  be subject to approval by the
           Election Commission.    In  election   campaigns   and   in
           elections,  only the registered name or its acronym, as may
           have been approved by the Election Commission, alone  shall
           be used.
           
           		(3)	Political  parties  can  be  formed
           both at the national level as well as at the State level.
           
           Section 11-C:  The constitution of a political party  shall
           provide for the following matters:-
           
           (a)	name  of  the political party and acronym (if used)
           and the aims and objectives of the party;
           
           (b)	procedure for admission, expulsion and  resignation
           by the members;
           
           (c)	rights, duties and obligations of the members;
           
           (d)	grounds  on  which  and  the procedure according to
           which disciplinary action can be taken against the members;
           
           (e)	the general organisation of the party including the
           formation of State, regional, district, block  and  village
           level units;
           
           (f)	composition  and  powers of the executive committee
           (by whatever name it is called) and  other  organs  of  the
           party;
           
           (g)	the  manner  in which the general body meetings can
           be  requisitioned  and  conducted  and  the  procedure  for
           requisitioning  and holding conventions to decide questions
           of  continuance,  merger   and   other   such   fundamental
           organisational matters;
           
           (h)	the  form and content of the financial structure of
           the party consistent with the provisions of this part.
           
           Section 11-D:	The  executive  committee  of  a  political
           party shall  be  elected.   Its term shall not exceed three
           years.  Well before the expiry of the term, steps shall  be
           taken for  electing a new executive committee.  It shall be
           open  to  the   executive   committee   to   constitute   a
           sub-committee  (by  whatever  name called) to carry out the
           business of the executive committee and to carry on regular
           and urgent executive committee business.   The  members  of
           the  sub-committee  shall  be elected by the members of the
           executive committee.
           
           Section 11-E:	A political  party  and  its  organs  shall
           adopt  their  resolutions on the basis of a simple majority
           vote.  The voting shall be by secret ballot.
           
           Section 11-F:	The candidates for contesting elections  to
           the  Parliament  or  the Legislative Assembly of the States
           shall  be  selected  by  the  executive  committee  of  the
           political  party  on  the  basis of the recommendations and
           resolutions passed by the concerned local party units.
           
           Section 11-G:	(1) It shall be the duty of  the  executive
           committee  to  take  appropriate steps to ensure compliance
           with the provisions of this chapter  including  holding  of
           elections at  all  levels.    The  executive committee of a
           political party shall hold elections of national and  State
           levels  in the presence of the observers to be nominated by
           the Election  Commission  of  India.     Where   considered
           necessary,  the  Election  Commission  may  also  send  its
           observers at elections to be held  at  other  national  and
           state levels.
           
           			(2)  The  executive  committee of a
           political party shall  maintain  regular  accounts  of  the
           amounts  received by the party, its income and expenditure,
           have them audited and  submit  the  same  to  the  Election
           Commission as required by section 78-A of this Act.
           
           			(3)  A  political  party  shall  be
           entitled to accept  donations  except  from  the  following
           sources:-
           
           	(a)	donations  from  political  foundations  or
           foreign  governments  or  organisations   or   associations
           registered    outside    the    territory   of   India   or
           non-governmental organisations  which  are  in  receipt  of
           foreign  funds or from any other association, organisation,
           group which is in  receipt  of  foreign  funds  or  from  a
           foreign national.
           
           	(b)  donations  from corporate bodies and companies
           except in accordance with the provisions of  the  Companies
           Act, 1956.
           
           Section 11-H:	The  Election Commission shall be competent
           to inquire, either suo motu or on information received into
           allegation of non-compliance of any of these provisions  of
           this chapter.    If on due inquiry, the Election Commission
           is satisfied that there has been non-compliance of  any  of
           the  provisions of this chapter by any political party, the
           Commission  shall  call  upon  the  party  to  rectify  the
           non-compliance within the period prescribed by the Election
           Commission.   In  case,  the  non-compliance continues even
           after the period so prescribed, it shall  be  open  to  the
           Election  Commission  to  impose  such  punishment  on  the
           political party as it may deem appropriate in circumstances
           of the case including levy of the  penalty  of  Rs.10,000/-
           per  day  for  each day of non-compliance and withdrawal of
           registration of the party.
           
           Section 11-I:	Where   a   public    authority    provides
           facilities or offers public services for use to a political
           party, it must accord equal treatment to all.  The scale of
           such facilities and services may be graduated to conform to
           the importance of the parties subject to the minimum extent
           needed for  the  achievement of their aims.  The importance
           of a party shall be decided on the basis of the results  of
           immediately   previous  election  to  Parliament  or  State
           Legislative Assembly, as the case may be.  The granting  of
           public  services  shall  be only in connection with and for
           the duration of the election  campaign  period.    For  the
           purposes  of  this  section,  the  election campaign period
           shall  be  deemed  to  commence  14  days  prior   to   the
           commencement of the poll in a State.
           
           	(Rules made under the Act can provide the requisite
           details  on the pattern of the provisions of the German Law
           on Political Parties, 1967).
           
           3.1.4.	In view of the above provisions, Part IV-A  of  the
           Act, containing   section  29-A  shall  be  deleted.    The
           substance of section 29-A has been incorporated in  section
           11-A.
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            CHAPTER II
            Analysis of views and conclusions
            regarding the List System
           
           
           3.2.1.		In  this  chapter  we  shall  deal with the
           concept  of  list  system  in  addition  to  the   existing
           `first-past-the  post  (FPP)  system' which was proposed in
           our working paper.  The reasons for introducing this system
           have been set out in chapter three  of  part  one  of  this
           report as  well  as  in the working paper.  In the seminars
           conducted by  the  Law  Commission  and  in  the  responses
           received  pursuant  to  the  circulation  of working paper,
           various views have been expressed which  we  shall  discuss
           hereinbelow.
           
           3.2.2.		Shri S.  Jaipal Reddy who presided over the
           second session of the National Seminar on 23rd January 1999
           opposed  the  introduction  of list system altogether while
           conceding  that  the  list   system   is   certainly   more
           representative.   He  opined  that that alone should not be
           the objective of the elections.  According to him, the list
           system was likely to lead  to  proliferation  of  political
           parties.   In  a  society  which  is  indeed  a "society of
           minorities", this system, he said, would  not  promote  the
           national interest.    He  also pointed out that in the list
           system, the umbilical cord between the constituency and the
           candidate is absent.  He pointed out that list  system  was
           preferred  in  countries  with homogenous societies and was
           not suited to a country like India whose  society  was  the
           most  heterogenous  in  the world, divided as it was on the
           grounds of religion, caste, language, region, race  and  so
           on.   Even  if  the list system was introduced, he said, it
           should not be confirmed to recognised political parties  as
           suggested by  the  Law  Commission.  He gave the example of
           Telugu Desam Party in Andhra Pradesh, which was formed just
           about nine months before the elections to  the  Legislative
           Assembly in Andhra Pradesh and yet swept the polls in 1983.
           He  suggested  that  all  the  registered political parties
           should be allowed top participate in the election  held  on
           the basis of  list  system.  Mr.  Jaipal Reddy also pointed
           out several merits of the existing FPP system.    According
           to him, the FPP system had the merit of reducing the number
           of political   parties.     The  present  proliferation  of
           political parties in this country is taking place in  spite
           of the  FPP  system,  he  said.   According to him, the FPP
           system led to stability  by  eliminating  smaller  parties.
           According  to  him,  there  must necessarily be an intimate
           connection between the candidate and the constituency.  Mr.
           Jaipal Reddy also pointed out that there should be  a  rule
           that  for  obtaining  any  seat  under  the  list system, a
           political party  must  obtain  certain  prescribed  minimum
           percentage of votes and in this connection, referred to the
           position  obtaining in Greece and Germany - particularly in
           the latter  country.    Unless  a  political  party  got  a
           particular   specified   percentage   of   votes   in   the
           parliamentary or assembly elections, it should not get  any
           seats, he  suggested.    He  commended  such  a  rule to be
           adopted in case the list system was to be adopted.
           
           3.2.2.1.		The views of Mr.  Jaipal Reddy were
           supported by Shri D.V.  Subba Rao, Member, Bar  Council  of
           India and Shri Margabandhu, MP and Chairman, Tamil Nadu Bar
           Council.  Mr.   Margabandhu opined that such a system would
           benefit the money bags  and  would  be  unable  to  reflect
           regional interests  and  aspirations.    Views  to the same
           effect were expressed by Shri Kapil Sibal, MP  (Congress-I)
           at the  seminar  held  on  14th  November  1998.   Shri Ram
           Jethmalani, the Hon'ble  Minister  for  Urban  Development,
           purporting  to express his personal views, opposed the list
           system.  He said that Rajya Sabha is already there to serve
           the purpose behind the list system.  He further opined that
           introduction of list system would give rise to two  classes
           of  MPs  -  one  elected  directly  and  the  other elected
           according to list system.  He  referred  to  Lord  Jenkin's
           report  published  some  time  in  October-November in U.K.
           (reference to this report was also made by Dr.  S.C.  Jain,
           Member Secretary of Law Commission in his  initial  remarks
           at   the   seminar  held  on  14th  November,  1998)  which
           recommended alternative vote plus  system.    He  suggested
           that  the existing FPP system could be replaced by a single
           transferable vote.  List system, he  said,  would  help  in
           entrenching coalitions.
           
           3.2.3.		Shri  Jana Krishnamurthy, Vice President of
           the BJP opined in the seminar held on 14th  November,  1998
           that  there  was  a  danger  of the list system encouraging
           casteist and communal tendencies and is likely  to  promote
           caste-based and  relation  based  political  parties.    He
           pointed out that introduction of such a system  would  lead
           to  several  small  parties  putting up their candidates in
           several constituencies with the hope that the  totality  of
           the  votes  polled by them would yield some seats under the
           List system, which they would not have got  under  the  FPP
           system.
           
           3.2.4.		On  the  other  hand,   several   political
           parties,  individuals  and organisations supported the list
           system.  In particular, the two Communist parties, the  DMK
           and  the  Shiromani Akali Dal supported the introduction of
           the list system wholeheartedly.  Indeed, it  was  suggested
           by  Shri  Sitaram Yechury (representing the CPM), Shri T.R.
           Balu (representing the DMK) and Shri  Manjeet  Singh  Khera
           (representing Shiromani Akali Dal) that the number of seats
           to  be  filed  according to list system should be raised to
           50%  of  the  existing  strength  of  Lok  Sabha  and   the
           Legislative Assemblies, instead of restricting it to 25% as
           suggested by the  Law  Commission.  Shri M.S.  Khera opined
           that the apprehension that the list system would  encourage
           casteist tendencies  was  misplaced.   List system was also
           strongly supported by Shri H.K.  Dua, senior journalist who
           too wanted the strength of members to be  elected  on  this
           basis raised   to   50%.      According  to  him,  the  Law
           Commission's proposal was a definite improvement  over  the
           existing electoral scene.      Shri  A.B.    Bardhan  (CPI)
           strongly commended the list system.  According  to  him  it
           was overdue.    He  said that prominent campaigners for the
           political parties were usually tied  up  in  campaigns  for
           their  parties  all  over  the country and could not devote
           adequate attention to their particular constituency.    The
           list  system  would  help such persons to become members of
           Lok Sabha/State Legislature.  He pointed out  that  such  a
           system was  working  quite  well  in Germany and Japan.  He
           sought to allay the apprehension that criminals  and  money
           bags   were  likely  to  get  into  Parliament/Legislatures
           through this  method.    Shri  Rajinder   Sachhar,   senior
           advocate  and  former  Chief  Justice  of  Delhi High Court
           supported the list system but he did  not  agree  with  the
           concept of  territorial  units.    He  suggested  that list
           system should be implemented  on  all-India  basis.    Shri
           Inderjit, senior   journalist,   Shri   N.     Ram,  senior
           journalist and Editor, Frontline, Shri C.R.  Irani, Editor,
           The Statesman and Shri V.K.   Samayak,  President,  `Voters
           Forum Foundation  of India', New Delhi, and Shri S.  Sahay,
           senior journalist not only supported the list  suystem  but
           wanted  it  to  be  raised  to 50% of the existing strength
           instead of the suggested 25%.    Another  senior  advocate,
           Shri  Jitendra Sharma supported the idea but suggested that
           it should be operated on all-India basis.  This,  he  said,
           was necessary to curb casteism and communalism.
           
           3.2.5.		In   connection   with   the   carving   of
           territorial   units,   one   of   the   participants   Shri
           Shivaramakrishnan pointed out that if the latest census was
           made  the  basis,  then  the southern States, in particular
           Kerala, would be adversely affected.  He pointed  out  that
           because   of   better  implementation  of  family  planning
           programmes, their population growth has slowed  down  while
           the rate  of  growth  in the northern States like U.P.  and
           Bihar remained more of less  unaffected.    If  in  such  a
           situation,  the  latest  census  was  made  the  basis  for
           redrawing the  territorial  constituencies  or  territorial
           units,   the   southern   States   would   stand   to  lose
           substantially.  It would really amount  to  punishing  them
           for    successful   implementation   of   family   planning
           programmes.  Facts and figures were  cited  in  support  of
           such an  argument.    It  was  stated  that  with a view to
           allaying this apprehension, it should be provided that 1971
           cansus shall be the basis of drawing up territorial  units.
           Indeed,  such  a provision already existed in clause (3) of
           article 81 of the Constitution.   Since  we  are  accepting
           their  plea,  it  is  not  necessary  to cite the facts and
           figures in support of the said plea.
           
           3.2.6.		We may also refer to the views expressed by
           several persons and organisations  who  communicated  their
           views in  response to our working paper.  Shri Arun Jaitley
           (senior   advocate),   Rajasthan    Legislative    Assembly
           Secretariat, Shri  P.V.    Namjoshi, Delhi Bhartiya Grammin
           Mahila Sangh, Shri C.K.   Jain  (former  Secretary-General,
           Lok   Sabha),   Hill   States  People's  Democratic  Party,
           Meghalaya,  Registrar  High  Court  of   M.P.,   Jabalpur,.
           opposed the  list  system.    Some others, namely , CPI(M),
           Shri R.S.  Narula, retired  Chief  Justice  of  Punjab  and
           Haryana  High Court and Manipur People's Party, agreed with
           the proposal to introduce  the  list  system.    Shri  R.S.
           Narula  suggested  that  the list system should be the only
           method by which the totality of Members of  Lok  Sabha  and
           Legislative Assemblies  should  be  elected.  Several other
           individuals expressed  varying  views  which  need  not  be
           specifically referred to herein.
           
           3.2.6.1.	The  fact  of  `wasting'  away of the votes
           cast in the FPP system has also been  recognised  in  other
           parts of  the world.  Thus in the response of the Electoral
           Reform Society to the Commission on  Local  Government  and
           the   Scottish   Parliament,  (July,  1998),  it  has  been
           mentioned inter alia, that the  FPP  system  distorted  the
           expressed  wishes  of those who actually voted by observing
           thus:-
           

           	 "Local Democracy"
           
           	Question 2
           
           	One of the  reasons  for  poor  turnouts  at  local
           government  election  is that the votes of large numbers of
           electors  will  not  count,  either  within   their   local
           constituency  or in the overall composition of the Council.
           Until this  has  been  corrected,  changing  administrative
           arrangements will only have a limited effect.
           
           	The   magnitude   of  this  problem  is  not  often
           appreciated.  For example, in the local authority elections
           in April, 1995 in Edinburgh,  49%  of  those  who  actually
           voted  cast  a  vote  that  had  no  effect in securing the
           election of any representative  as  they  were  for  losing
           candidates.  It is common in all first-past-the-post (FPTP)
           elections  for  between 30% and 60% of the votes cast to be
           'wasted' in this way.  In  circumstances  where  they  know
           that  one  party  holds  a seat with a large majority, many
           electors are discouraged from turning out to vote."
           
           
            "The results of the local  authority  elections  in
                   April,  1995  show  well  the  extent  to which the
                   present FPTP voting system distorts  the  expressed
                   wishes of  those who actually vote.  In the city of
                   Glasgow Council, Labour, with  61%  of  the  votes,
                   took 77 of  the  83  seats,  i.e.  93%.  There were
                   also serious distortions among the smaller  parties
                   in this election:  the Conservatives with 7% of the
                   votes,  took  3  seats, while the SNP gained only 1
                   seat despite having 23% of the votes."
           
           3.2.6.2.	The Report of the Independent Commission on
           the voting System ("Jenkins Report")  summarises  the  Main
           Electoral Systems in the world.  These include
           
           i)	First Past the Post (FPTP)
           ii)	The Alternative Vote (AV)
           iii)	Supplementary vote (SU)
           iv)	Second Ballot
           v)	List Systems
           vi)	Single Transferable Vote (STV)
           vii) Mixed Systems:      the  Additional  member  System
                   (including AV or SV Top-up)  and  Parallel  Systems
                   (AMS)
           
           3.2.6.3.	The   terms   of   reference  of  the  said
           Commission given in December, 1997, was  to  recommend  the
           `best  alternative system' or combination of systems to the
           existing commonly-called `First Past the  Post'  system  of
           election to the Westminister Parliament.  In doing this, it
           was asked to take into account four not entirely compatible
           `requirements'.  They were:  i) broad proportionality; (ii)
           the need for stable government; (iii) an extention of voter
           choice,  and (iv) the maintenance of a link between MPs and
           geographical constituencies.
           
           3.2.6.4.	The Commission set out the  basis  of  fair
           election  viz.,  to  the concept of `fairness' in electoral
           outcomes, the place of political parties; and the  role  of
           Members of Parliament.
           
           3.2.6.4A.	It  emphasises  that  fairness to voters is
           the first  essential.    A  primary  duty   underlying   an
           electoral   system  is  to  represent  the  wishes  of  the
           electorate as effectively  as  possible.    The  Commission
           observes that the major fault of the First past the Post in
           this context is that it distorts the desires of the voters.
           It  emphasises  that  the  fact  that voters do not get the
           representation they want is more important  than  that  the
           parties  do  not get the seats to which they think they are
           entitled.
           
           3.2.6.5.	After       going        through        the
           problems/advantages/disadvantages  of  the  existing  First
           Past the Post  system,  the  said  Commission  recommended,
           inter alia as under:
           
            	"The  best  alternative  for Britain to the
                   existing First Past the Post system is  a  two-vote
                   mixed  system  which  can  be  described  as either
                   limited AMS or AV Top-up.  The majority of MPs  (80
                   to   85%)  would  continue  to  be  elected  on  an
                   individual constituency basis, with  the  remainder
                   elected  on  a  corrective Top-up basis which would
                   significantly reduce the disproportionality and the
                   geographical divisiveness  which  are  inherent  in
                   FPTP.   But  it  cannot  be  denied  that democracy
                   postulates the working out of  a  system  which  is
                   best suited to the peculiar needs of the country."
           
           3.2.6.6.	It  appears  that  a committee appointed to
           suggest electoral reforms in Spain, prepared the  following
           summary on an overview of the elctoral systems obtaining in
           various countries.
           
           
           	"Summary of Electoral System Types
           
            	There are  hundreds  of  electoral  systems
                   currently in use and many more permutations on each
                   form,  but  for  the  sake  of  simplicity  we have
                   categorised  electoral  systems  into  three  broad
                   families:
           
           		.the plurality-majority,
           		.the semi-propotional, and
           		.the proportional.
           
            Within these three we have ten "sub-families".
           
           		.First Past the Post (FPTP),
           		.the Block Vote (BV),
           		.the Alternative Vote (AV), and
           	 .the   Two-Round   System   (TRS)  are  all
                           plurality-majority systems.
           		.Parallel systems,
           		.the Limited Vote (LV) and
           	 .the  Single  Non-Transferable  Vote (SNTV)
                           are semi-proportional systems.
           		.List PR,
           	 .Mixed Member Proportional (MMP),  and  the
                           Single  Transferable  Vote  (STV)  are  all
                           proportional systems.
           
           	Every  one  of  the  212  parliamentary   electoral
           systems  listed  in  The  Global  Distribution of Electoral
           Systems can be categorised under one of these ten headings,
           and this family tree,  though  rooted  in  long-established
           conventions,  is  the  first  to  take  account  of all the
           electoral systems used for parliamentary elections  in  the
           world today, regardless of wider questions of democracy and
           legitimacy.  We hope it offers a clear and concise guide to
           the choice among them.
           
           	The most common way to look at electoral systems is
           to  group them by how closely they translate national votes
           won into parliamentary seats won; that is, how proportional
           they are.  To do this,  one  needs  to  look  at  both  the
           vote-seat  relationship  and the level of wasted votes, For
           example,  South  Africa  used  a  classically  proportional
           electoral  system  for  its  first  democratic elections of
           1994, and with 62.65%  of  the  popular  vote  the  African
           National  Congress (ANC) won 63% of the national seats (see
           South Africa:  Election Systems and  Conflict  Management).
           The  electoral  system  was  highly  proportional,  and the
           number of wasted votes (i.e., those  which  were  cast  for
           parties  which  did not win seats in the Assembly) was only
           0.8% of the total.  In direct contrast the year before,  in
           the   neighbouring   nation   of   Lesotho,  a  classically
           majoritarian First Past the Post  (FPTP)  electoral  system
           had  resulted  in  the Basotho Congress Party winning every
           seat in the 65 member parliament with 75%  of  the  popular
           vote; there was no parliamentary opposition at all, and the
           25% of electors who voted for other parties were completely
           unrepresented.   This  result  was  mirrored  in Djibouti's
           Block Vote election of 1992 when all 65 parliamentary seats
           were won by the Rasemblement Populaire pour le progr s with
           75% of the vote.
           
           		However,    under    some    circumstances,
           non-proportional  electoral  systems  (such  as  FPTP)  can
           accidentally give rise to relatively  proportional  overall
           results.   This  was  the  case in a third Southern African
           country, Malwai, in 1994.  In  that  election  the  leading
           party,  the  United  Democratic  Front won 48% of the seats
           with 46% of the votes, the Malawaian Congress Party won 32%
           of the seats with 34% of the votes, and  the  Alliance  for
           Democracy won  20% of the seats with 19% of the votes.  The
           overall level of proportionality was high, but the clue  to
           the  fact  that  this  was  not  inherently  a proportional
           system, and so cannot be categorized as such, was that  the
           wasted  votes  still  amounted to almost one-quarter of all
           votes cast."
           
           3.2.6.7.	There   may   varied   electoral    systems
           prevalent  in the world but many may not suit conditions in
           our society.  On a threadbare analysis of various  systems,
           we  feel  that a combination of FPP and the list systems as
           detailed in this report may best meet out needs.
           
           3.2.7.		Accordingly, the Law Commission is  of  the
           opinion  that  the  list  system  should  be  introduced as
           suggested by it for the reasons assigned hereinbefore.  The
           main objections against this system are two-fold:  (a) that
           it will lead to and encourage casteist and communal  voting
           patterns and would lead to proliferation of caste based and
           religion  based  political  parties  and (b) that under the
           list system, the umbilical cord between the voters  in  the
           constituency and  the  MPs/MLAs is missing.  In our opinion
           both the said objections are not well-founded.    We  shall
           deal with both of them hereinbelow.
           
           3.2.8.		So  far  as  the  objection  that  the list
           system would lead to casteist and communal voting  patterns
           and  caste-based  and  religion-based  political parties is
           concerned, the apprehension on this score can be allayed by
           providing that the votes polled  by  such  candidate  whose
           deposit has been forfeited under sub-section (4) of section
           158  of the Act shall not be taken into consideration while
           tabulating the  votes  for  the  purpose  of  choosing  the
           members on the basis of the list system.  It may be noticed
           that  according  to  sub-section  (4) of section 158 of the
           Representation of the People Act, 1951 the deposit made  by
           a  candidate  who  "is  not elected and the number of valid
           votes polled by him does not exceed one-sixth of the  total
           number  of  valid  votes  polled  by all the candidates" is
           liable to be forfeited.  In other words, if  any  candidate
           polls  less  than  16.25%  of  the  valid votes polled, his
           security deposit is liable to  be  forfeited.    If  it  is
           provided that the votes polled by candidates whose security
           deposit  has  been  forfeited under the aforesaid provision
           shall not be taken into account for  the  purpose  of  list
           system,  the  apprehension  that  list system would lead to
           proliferation of caste-based and  religion-based  political
           parties or that it would result in encouraging or promoting
           casteist or communal voting pattern would not survive.
           
           3.2.8.1.		Secondly, it must be noted - and it
           needs to be emphasised - that according to the proposal put
           forward  by  the Law Commission, it is not as if each voter
           is given two votes,  one  to  be  cast  in  favour  of  the
           candidate  from  the concerned territorial constituency and
           the other in favour of the list put forward by a recognised
           political party.  There is only one vote given to the voter
           and that is cast by the voter  keeping  in  mind  both  the
           candidate  from  the  concerned territorial constituency as
           well as the persons included in the  list  put  forward  by
           that RPP.    Primarily,  the  vote will be in favour of the
           direct candidate contesting from the concerned  territorial
           constituency  and it is only secondarily that the said vote
           is also taken into account for the purpose of  list  system
           as well.
           
           3.2.8.2.		We    may    also    mention   that
           notwithstanding the present FPP system, there has  been  an
           unmanageable   and  unhealthy  proliferation  of  political
           parties and that in the Twelfth Lok Sabha,  there  were  as
           many  as  30 or more political parties, some of them having
           only one member.  The proliferation  of  political  parties
           appears   to   be   mainly  inspired  by  regional,  caste,
           religious/communal and linguistic  considerations,  besides
           the  personality  clashes  between  the  leaders of a given
           political party.  Very often splits take place in political
           parties not on the basis of any ideological differences (as
           was the case in the case of split in the Communist Party of
           India in 1964 giving rise to two  parties  namely  CPI  and
           CPI-M)  but  mainly  on  account of personality clashes and
           personal rivalries and ambitions.  While it would not be in
           good taste to refer to specific  instances  in  support  of
           this view,  the  fact is there for all to see.  May be ours
           is still a young democracy.  50 years  in  the  life  of  a
           democratic nation  is  not too long.  We can only hope that
           with the passage of time there will be  polarisation  among
           the  political  parties on the basis of ideologies and that
           the voters would also realise that voting for small parties
           is not in the ultimate interest of the nation.
           
           3.2.8.3 In fact, the proliferation of political parties can
           be  checked  to  a  large  extent  and   the   process   of
           polarisation  accelerated substantially, if a new provision
           is made in the Act to the effect that any  political  party
           which obtains less than 5% of the total valid votes cast in
           the  country  (in  the  case  of  Parliament)  and  in  the
           concerned State (in the case of Legislative Assembly) shall
           not be allowed any representation in the Lok  Sabha  or  in
           the concerned Legislative Assembly, as the case may be.
           
           3.2.8.4 Such a provision is in vogue  in  Germany  and  has
           helped  in checking the proliferation of political parties.
           Article 6(6) of the  Federal  Electoral  Laws  says:    "In
           distributing  the  seats  among  the  Land lists, only such
           parties be taken into consideration  as  have  obtained  at
           least  five  per cent of the valid second votes cast in the
           electoral area or  have  won  a  seat  in  at  least  three
           constituencies." In other words, a party must poll at least
           five  per cent of the second votes in the entire country or
           must have won at least in three constituency seats  on  the
           basis of  the  first votes.  As a matter of fact, since the
           elections for Bundestag in  1957,  the  qualifying  parties
           have  been  (1)  the  Christian Democratic Union of Germany
           (CDU), (2) the Social Democratic Party  of  Germany  (SPD),
           (3)   the  Christian  Social  Union  (CSU),  which  put  up
           candidates in Bavaria only  and  (4)  the  Free  Democratic
           Party (FDP).   The Greens were represented in Bundestag for
           the first time following the Bundestag  election  in  1983.
           In  the  first  all German general elections in 1990 (after
           the reunification of Germany), however, they were  able  to
           win  seats  in  the  Bundestag  only as members of the list
           coalition (Alliance 90/Greens) with the Party  Alliance  90
           which was  successful  in  the  new  federal  states.  This
           requirement  has  thus  prevented  the   proliferation   of
           political parties, splintering of political parties and has
           led to polarisation.
           
           3.2.8.5 Such a provision is a  crying  necessity  in  India
           today  where  the  process  of  splintering  of  parties is
           increasing with every general election which is  not  based
           on   any   ideological  differences  but  lust  for  power.
           Appropriate provision to this effect is being  set  out  in
           this Report.
           
           3.2.9	With respect to the objection that in the case of a
           list system there is no umbilical cord  between  voter  and
           the MP/MLA,  this  is  devoid of any substance.  Apart from
           the fact that such a mixed  system  is  in  vogue  in  many
           countries (e.g.   in Germany), the merit of the list system
           lies in the fact that for the members chosen under the list
           system, the entire  territorial  unit/State/nation  is  the
           constituency.   In  fact, there have been several instances
           where powerful politicians like Prime Ministers  and  Chief
           Ministers have been `nursing' their particular constituency
           with  the  result  that  the development in that particular
           constitutuency is far  ahead  of  the  development  in  the
           adjacent  and  other  constituencies  in  the region or the
           State.  "Nursing" the constituency does not mean this.   It
           means  attending  to,  representing  and  fighting  for the
           interests of the voters in all fora and not to corrupt them
           with the aid of public funds.   It  is  indeed  a  case  of
           misuse of  authority and of public money.  It is not a good
           idea that one particular constituency  should  be  rewarded
           unduly  merely  because  the  Prime  Minister  or the Chief
           Minister happens to contest from that constituency.
           
           3.2.10.	The other merit in the list system apart from those
           set  out in chapter III of Part I is that important leaders
           of the political parties can be included in  the  list  put
           forward  by  that  political  party  and  those leaders can
           devote  their  energies  in  campaigning  for   the   party
           throughout  the State instead of expending a good amount of
           their energies on the particular  constituency  from  which
           they are contesting.  In fact the list system would provide
           an opportunity for inclusion of important leaders with high
           character  and  reputation  and  technocrats and experts in
           finance and economics.  The apprehension that the  criminal
           elements and money bags would be included in such a list is
           unfounded inasmuch as no political party would dare include
           criminal  elements  and/or money bags in such a list, since
           it would also reflect negatively upon its candidates in the
           direct election from the territorial constituencies.
           
           3.2.11.	With respect to the objection that Rajya  Sabha  or
           for  that  matter, Legislative Councils in whichever States
           they exist - serve the purpose and  satisfy  the  objective
           underlying  the  list  system,  it  must be stated that the
           criticism is not  well-founded.    Take  Rajya  Sabha,  its
           members  are  elected  by  the  members  of the Legislative
           Assemblies of various States in the  Union  (Except  twelve
           members who  are  nominated).    In other words, those very
           MLAs, who are more often than not elected on a minority  of
           the  votes  cast  in  the given State, elect the members of
           Rajya Sabha.  The members so elected neither represent  the
           wasted  votes  (as  explained  hereinabove)  no rectify and
           redress the imbalance between the votes received and  seats
           won by  a  political  party.    Rajya  Sabha  is  indeed  a
           reflection  of  the  composition   of   State   Legislative
           Assemblies;  it  is  repetition of the same inequitable FPP
           system.  None of the  distortions,  to  remove  which  list
           system  has  been proposed, are answered by the Rajya Sabha
           or the Legislative Councils.  There is equally no merit  in
           the  objection  that  the introduction of list system would
           give rise to two classes of MPs/MLAs.  Such a  dual  system
           is  in  vogue  in  several  countries  and  is  functioning
           satisfactorily.
           
           3.2.11.1.	In  its Report on "Electoral Reforms", 1974
           the Tarkunde Committee  (appointed  by  Shri  Jaya  Prakash
           Narayan  on  behalf  of  the citizen for Democracy had also
           recommended the adoption of `mixed  system'  i.e.    German
           Model of Electoral system.
           
           3.2.12.	There remains the question whether the list  system
           should  be  limited to 25% or raised to 50% of the existing
           strength of Lok Sabha and of each of the State  Legislative
           Assemblies.    We   had  also  debated  this  aspect  while
           preparing the working paper but we limited the strength  to
           be filled on this basis to 25% of the existing strength for
           the  reason  that by adopting the 50% rule, the strength of
           Lok Sabha would rise to almost  826.    May  be  that  this
           number  is  not  excessive  considering  the population and
           territorial  extent  of  this   country,   but   what   was
           apprehended  was  that  an Assembly of 826 members would be
           unmanageable.  Yet another consideration was that since the
           list system is being introduced for the first  time  on  an
           experimental  basis, we may start with 25% and if it proves
           beneficial it can be raised to 50% and  if  the  experience
           proves counter-productive, it can be abandoned.
           
           3.2.13.	With respect to the suggestion that the list system
           should not be confined to the recognised political parties,
           it must be said that acceptance of this plea  would  indeed
           lead  to  proliferation  of  political  parties,  which  is
           admittedly not in the interest of a successnful  democracy.
           The  singular  example  of Telugu Desam in Adhra Pradesh in
           1982-83 cannot be made the  basis  for  adopting  a  system
           which will make the operation of the list system cumbersome
           and which may indeed prove counter productive.
           
           3.2.14.	There is one more aspect to be considered.  Certain
           participants  in the seminar and certain responses received
           by  the  Law  Commission  suggest  that  the   concept   of
           `territorial  unit'  put  forward  by the Law Commission in
           this context should be given  up  and  the  entire  country
           should  be  treated as one unit for the purpose of choosing
           the members according to list system.    The  main  purpose
           behind this suggestion was elimination of small parties and
           to  prevent the proliferation of political parties, as also
           to exclude  splinter  parties  and  thereby  ensuring  that
           Parliament  functioned  properly  and  the  government  was
           stable - the very same object underlying the requirement of
           5% vote.  May be that this objective can be achieved by the
           provision now being suggested  by  us  that  any  political
           party  which receives less than 5% of the total valid votes
           cast in the general election to  the  Lok  Sabha  or  State
           Legislative  Assembly,  as  the  case  may be, shall not be
           entitled  to  any  seats  in  the   Lok   Sabha/Legislative
           Assembly.   But,  it  would  be  consistent  with our other
           recommendations and  the  spirit  of  this  Report  if  the
           concept  of  territorial units put forward by us earlier in
           the working paper is given up.  Our objective in  doing  so
           is   to   drive   the  smaller  parties  into  pre-election
           fronts/coalitions.   May  be,  these  smaller  parties  may
           fight,  wherever  they  like,  on their own symbol but they
           will have to become a part of one or the other pre-election
           front which is proposed to be treated as a political  party
           for the   purpose  of  the  Tenth  Schedule.    In  such  a
           coalition/front,     there     is     bound      to      be
           adjustment/appointment  of  seats and voters will be voting
           for the candidate of a constituent party  keeping  in  mind
           the constituents of the coalition front.
           
           3.2.15.	Conclusions -	Accordingly,  we  have  decided  to
           drop  our  proposal with respect to territorial units which
           means that the entire country will be the unit for purposes
           of the list system  while  reiterating  our  proposals  put
           forward in the working paper in this behalf.  (The relevant
           provisions in the Bill are modified accordingly).
           
           3.2.15.1.	Though we are dropping  the  proposal  with
           respect  to territorial units, we do hereby affirm that the
           distribution of seats in Lok Sabha among the States, as set
           out in the First Schedule  to  the  Representation  of  the
           People  Act,  1950,  should be frozen for another 25 years.
           For this purpose,  it  would  be  necessary  to  amend  the
           proviso  to clause (3) of article 81 of the Constitution by
           substituting the figure "2025" for the figure "2000".  [The
           reason behind this proposal is the one put forward by  Shri
           Shivaramakrishnan  of  Centre for Policy Research, referred
           to in para 3.2.5.]
           
           3.2.15.2.	Further,    another   proviso   (i.e.second
           proviso) may be added after the existing proviso in section
           78F as proposed in the Representation of  the  People  Act,
           1951 in  the  following  words:  "Provided further that the
           votes received by a recognised political party which do not
           exceed one-sixth of the total number of valid votes  polled
           in  a constituency shall be ignored for the purpose of this
           section."
           
           3.2.15.3.	A  new  section,  section  65A   shall   be
           inserted  in  Chapter  V of Part V of the Representation of
           the People Act, 1951 to the following effect:
           
            "65A(1) Any political party, whether recognised  or
                   not,  which obtains less than 5% of the total valid
                   votes cast in the election  to  the  House  of  the
                   People  shall  not  be  entitled to any seat in the
                   House of the People.
           
            (2) Any political party, whether recognised or not,
                   which obtains less than 5% of the total valid votes
                   cast in the election to the Legislative Assembly of
                   a State shall not be entitled to any  seat  in  the
                   Legislative Assembly.
           
            (3)  For  the purposes of sub-sections (1) and (2),
                   the relevant date shall be the date  on  which  the
                   notification contemplated by section 73 of this Act
                   is issued.
           
            (4)   Any   constituency   which  has  elected  the
                   candidate of a political party which is deprived of
                   a seat in the House of  People  or  in  legislative
                   Assembly   on   account   of   the  requirement  in
                   sub-section (1) and (2), as the case may be,  shall
                   be  represented  by  the  candidate  of a political
                   party which has obtained  the  next  highest  votes
                   provided that his political party obtains 5% of the
                   total valid votes cast in that election and that he
                   has not lost the security deposit.
           
            (5)  The  requirements  in  sub-sections (1) to (3)
                   shall not apply in the case of a bye-election.
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            CHAPTER - III
           Debarring of Independent Candidates to  Contest  Lok  Sabha
           Elections
           
           3.3.1.	A Perusal of the statistics regarding the number of
           independent  candidates  who  contested  Elections  to  the
           Twelfth  Lok  Sabha  shows  that  out  of  1915 independent
           candidates, only 6 candidates were elected.   This  reveals
           that  slightly  more than 0.3% independent candidates could
           only win seats contested  by  them.    The  Indrajit  Gupta
           Committee  Report  on  State  Funding of Elections projects
           figures relating to independent  candidates  who  contested
           the earlier Parliamentary Elections as follows:-
           
            "8.2 ...  out of 1900  independent  candidates  who
                   contested the last parliamentary elections in 1998,
                   only  6  (0.65%)  (sic.)  succeeded to win and 1883
                   lost their security  deposit.    Likewise,  out  of
                   10,635  independent  candidates,  who contested the
                   1996 parliamentary election, only 9 (0.08%) of such
                   candidates won and 10,603 (99.70%) forfeited  their
                   deposits.   Similar  was  the  fate of independents
                   contesting the last round of assembly elections  in
                   four  States/National Capital Territory of Delhi in
                   November, 1998 where only 19 (0.99%)  out  of  1910
                   independents could  reach  the  post.   The records
                   would further show that most of these  independents
                   were  also  really  not  independent  but rebels of
                   certain established parties and who were  supported
                   by rival parties."
           
           3.3.2.	In Dhartipakar  v.  Rajiv Gandhi, AIR 1987 SC 1577,
           the Supreme Court recommended to parliament to devise  ways
           and  means  to meet the onslaught of independent candidates
           who are not serious about their business.
           
           3.3.3.	Past  experience  shows   that   many   independent
           candidates contested Lok Sabha elections in a casual manner
           or for  oblique  reasons.    In  many  cases their security
           deposits were forfeited.  One of the resultant  effects  of
           independents  contesting  the  Lok  Sabha seats is that the
           ballot paper becomes unmanageably large.    Non-seriousness
           of some of the independent candidates is exemplified in the
           case   of   one   of   the  BJP  candidates,  namely,  Shri
           V.K.Malhotra, against whom quite a few persons of the  same
           name  "V.K.Malhotra"  stood  as independent candidates from
           the same constituency in Delhi during Lok  Sabha  elections
           in order  to  mislead the masses.  Such practices are meant
           to confuse people and make them cast their vote  in  favour
           of a candidate whom they never intended to vote.
           
           3.3.4.	In  order  to eliminate the problem altogether, and
           consistently  with   our   recommendation   regarding   the
           requirement  of  5%  votes set out in para 3.2.15.3., it is
           considered appropriate to debar independent  candidates  as
           their   participation  in  the  elections  has  in  no  way
           contributed to strengthening of Indian democracy.
           
           3.3.5.	It  is  understood  that  650 political parties are
           currently registered with the Election Commission of  India
           (Times of India dated 6th may, 1999), whether recognised or
           not.   By  virtue  of  proposed new section 65A(1), a party
           would not get a seat in the House of the People if it  gets
           less  than 5% of the total valid votes cast in elections to
           that House.    This  objective  will   be   frustrated   if
           independents  are  not  barred  from contesting, for, small
           splinter parties will not  then  take  risk  of  contesting
           elections  for  fear of not being able to obtain 5% or more
           of the total valid votes cast in the said election  to  the
           House of  the  People.  Candidates of such splinter parties
           would  then  safely  prefer  to  contest   as   independent
           candidates.   The  barring  of independent candidates will,
           therefore,  be  consistent  with  our   recommendation   to
           introduce   a   provision   requiring  receipt  of  minimum
           percentage of votes by the RPP to be able to get  seats  in
           the Lok Sabha.
           
           3.3.6.	Conclusions.- In Law Commission's view, the time is
           now  ripe  for  debarring   independent   candidates   from
           contesting Lok Sabha and Legislative Assembly elections.
           
           3.3.6.1.    Any  person  proposing  to  contest  Lok  Sabha
           election can always form  a  political  party  and  contest
           elections but its entitlement to any seat in Lok Sabha will
           be  subject  to the condition that it obtains not less than
           5% of the total valid votes cast in  the  election  to  Lok
           Sabha.   Therefore,  it  cannot be legitimately argued that
           our proposal would tend to  interfere  with  democratic  or
           political processes.
           
           3.3.7.	Accordingly,   it   is   recommended   that  a  new
           sub-section,  namely,  sub-section  (1)  be  introduced  in
           section  4  of  this Act, as suggested hereinbelow, and the
           existing provision shall be renumbered as sub-section (2).
           
           	The  proposed  sub-section  (1)   shall   read   as
           follows:-
           
            "(1) Only the political parties registered with the
                   Election  Commission  under  section 11(4) shall be
                   entitled to put forward candidates to fill  a  seat
                   in the House of the People."
           
           	Similarly,  section  5  of  the  Act should also be
           amended by introducing the following sub-section (1):-
           
            "(1) Only the political parties registered with the
                   Election Commission under section  11(4)  shall  be
                   entitled  to  put forward candidates to fill a seat
                   in the Legislative Assembly."
           
           	The existing  provisions  of  section  5  shall  be
           renumbered as sub-section (2).
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            CHAPTER IV
            Analysis of views and conclusions regarding
            amendments to the Tenth Schedule to the Constitution
           
           3.4.1.	In  this  chapter  the amendments proposed by us in
           the working paper to the Tenth Schedule to the Constitution
           have been considered.  So far as  the  proposal  to  delete
           paragraph  3  of the Tenth Schedule is concerned, there has
           been  unanimous  support  (including  that  of  the   Prime
           Minister  of  India) to this proposal, in all the seminars,
           except the lone voice of  Shri  S.Jaipal  Reddy,  MP.    He
           submitted  that  in  the light of the fact that there is no
           internal democracy in the political parties today and  also
           because  the  internal  structures of political parties had
           not been satisfactorily established so  far,  splits  could
           not be  barred.    He  opined  that  every  split  was  not
           undesirable.  In this connection, he referred to the  split
           in the  CPI  in  1964.    He also referred to the fact that
           splits had taken place in the socialist party in  the  past
           as well  as in the Congress party (in 1969 and 1978).  Shri
           Reddy  opined  that  democracy  was  inherently  an  untidy
           business  and  that  in  such  a  situation, the banning of
           splits (as well as mergers)  would  amount  to  interfering
           with  the  political  processes  and  growth  of  political
           pluralism.  In  the  responses  received  pursuant  to  the
           circulation of the working paper, the Janata Party has also
           not agreed  with  this  proposal.   There has been no other
           dissenting view.
           
           3.4.1.1.	We are of the opinion that  the  objections
           raised   by  Shri  Jaipal  Reddy  are  really  without  any
           substance.  By banning the splits,  the  ongoing  political
           process,  or  the  pluralism  in  the  society is not being
           arrested.  As we had made clear in our working paper,  once
           the  Parliament is dissolved, there can be splits, mergers,
           formation of new parties and so on.  Moreover, even  during
           the  life  of a Lok Sabha or State Legislative Assembly, as
           the case may be, political process can go on.  There can be
           mergers, splits and formation of new political parties  but
           they shall  not  be  reflected in the House.  So far as the
           House is concerned, there shall be no splits in a political
           party and if any member violated paragraph 2 of  the  Tenth
           Schedule, he  will  stand  disqualified.  Indeed, the Tenth
           Schedule deals with and governs only the membership of  the
           House  and  the splits and mergers among the members of the
           political parties in the House.  It  does  not  purport  to
           govern  or  regulate  the  political  processes outside the
           House.  So far  as  the  internal  democracy  and  internal
           structures  of  a  party  are concerned, we agree that they
           should be strengthened.  It is for this very reason that we
           have recommended in Chapter one of Part three insertion  of
           a   Chapter   in  the  Act  governing  and  regulating  the
           functioning of the political  parties.    Those  provisions
           must  also  be  implemented  along  with the changes in the
           Tenth Schedule.
           
           3.4.2	In  connection  with  this  issue,  some   of   the
           participants  in  the  seminar  raised  a  connected issue.
           Their views can be stated thus:  the deletion of  paragraph
           3  tends to strengthen the control of the majority over the
           political party.  The minority will be left with no  voice.
           The  freedom  of  speech,  which  is  so  essential for the
           successful   functioning   of   democracy   and   of    the
           Parliament/State Legislature,  will  come  to  an  end.  On
           every conceivable occasion, whip is  being  issued  by  the
           party leadership, leaving no room for dissent.  It would be
           appropriate  if  it is provided that a whip shall be issued
           only on occasions when the voting is likely to  affect  the
           existence  or  continuance of the government and not on all
           and sundry  occasions.    Let  us  deal  with   the   views
           aforesaid.
           
           3.4.3.	Firstly, it may be mentioned that a  democracy  and
           particularly  a  parliamentary  democracy without political
           parties is inconceivable.  One can just imagine  what  will
           happen if  300  independents are elected in Lok Sabha.  The
           political parties are inseparable from a parliamentary form
           of government.  In S.R.  Bommai v.   Union  of  India,  the
           Supreme Court observed:
           
            "..One  cannot  conceive  of  a  democratic form of
                   Government without the political parties.  They are
                   part of the  political  system  and  constitutional
                   scheme.   Nay,  they are integral to the governance
                   of a democratic society."
           
           3.4.4	Necessity for abiding by the whip - In such a case,
           the endeavour should be to strengthen the political parties
           by providing for internal democracy and internal structures
           rather than  to  weaken  them.     Inasmuch   as   we   are
           recommending  in  this  report  insertion  of a new chapter
           governing the political  parties(including  the  provisions
           ensuring   internal   democracy,  internal  structures  and
           transparency in the conduct of its affairs),  there  should
           be  no  objection to strengthening of the political parties
           so that they will  of  majority  prevails  in  a  political
           party.   Freedom of speech is undoubtedly precious but when
           a person becomes a member of the political  party,  accepts
           its  ticket  and  fights  and  succeeds  on that ticket, he
           renders himself subject to the discipline  and  control  of
           the party.    It  should also be noticed that when a person
           applies for the ticket of a political party, he knows,  and
           is   expected  to  know,  about  the  leadership,  internal
           working, policies and programmes of the  party.    He  must
           also  reckon  with  the fact that in future, the leadership
           may change, policies and programmes may change and  so  on.
           If  he,  with  his  eyes  open, applies for and obtains the
           ticket and contests and wins on that basis, he cannot plead
           later that  he  does  not  agree  with  the  leadership  or
           policies of  the party.  Any difference of opinion, he must
           ventilate and fight within the party.   The  membership  of
           House does not become his private property nor can he trade
           in it.    It  is  a  trust  and  he  is in the members of a
           trustee.  He cannot also say that he will take advantage of
           the name and facilities of a  political  party,  fight  the
           election  on  the  ticket of that party and succeed, but he
           will not be subject to  the  discipline  of  the  political
           party.   This is simply unthinkable besides being unethical
           and immoral.  He has  to  abide  by  the  party  discipline
           within the  House.    He may fight within the party to have
           his point of view or policies adopted by the party but once
           the party takes a decision one way or the other and  issues
           the  whip,  he  shall  have to abide by it or resign and go
           out.  It would equally be unethical and immoral for him  to
           vote against the whip and then resign.
           
           3.4.5.	We may mention that in a system of government  like
           that  of the USA, there is no occasion, generally speaking,
           of issuance of a whip.  The vote in Congress does  not  and
           cannot affect the continuance of the government.  In recent
           days,  we  have  witnessed  (in  the case of impeachment of
           President Clinton)  several  members  of  Republican  Party
           voting  against  their  party  line  and  in  favour of the
           President.
           
           3.4.6.	Desirability  of  issuing  the  whip  in   specific
           situation only.    -  So far as the issuance of the whip is
           concerned, it is not governed by  any  law.    Neither  the
           Rules  framed  under  the  Tenth  Schedule nor the Rules of
           Procedure and Conduct of Business in the Lok  Sabha/Council
           of States provide for or regulate the issuance of whip.  It
           appears  to  be a matter within the discretion and judgment
           of each political party.  In such a situation, we can  only
           point out  the desirability aspect and nothing more.  It is
           undoubtedly desirable that whip is  issued  only  when  the
           voting   in  the  House  affects  the  continuance  of  the
           government and not on each and  every  occasion.    Such  a
           course  would  safeguard  both the party discipline and the
           freedom of speech and expression of the members.
           
           3.4.7	Conclusions  regarding  amendments  to  the   Tenth
           Schedule  -  So far as the deletion of paragraph 4 (merger)
           is concerned, we are of the  opinion  that  this  paragraph
           should  also  go  in  the interest of maintenance of proper
           political standards in the Houses and also to minimise  the
           complications arising  on  that  account.  Paragraph 4 says
           inter  alia  that  a  member  of  a  House  shall  not   be
           disqualified   under  paragraph  2(1)  where  his  original
           political party merges with another political party has not
           accepted the  merger  and  have  opted  to  function  as  a
           separate group.    In such a case, it is provided that such
           group shall be deemed to be a political party to  which  he
           belongs  for  the purpose of paragraph 2(1) and it shall be
           deemed to be his original political party for  the  purpose
           of  this sub-paragraph, this provision in sub-paragraph (1)
           of paragraph 4 is likely to lead to  several  complications
           and unnecessary  disputes.    Accordingly, we reiterate our
           proposal to delete paragraph 4 as well.  The  other  allied
           provisions in Tenth Schedule, which become unnecessary as a
           result  of deletion of paragraphs 3 and 4, have necessarily
           got to be deleted.   Secondly,  in  view  of  the  proposed
           deletion  of  paragraphs  3  and  4,  the definition of the
           expression "original political party" may be dropped and in
           its place, the following definition should be inserted:
           
            (c)  "political party" in relation to a member of a
                   House, means the political party  on  whose  ticket
                   that  member  was  elected and where such political
                   party is a part of a front or  a  coalition  formed
                   before  a  general  election  for  contesting  such
                   election, such front or coalition,
           
           	 Provided  that  the  Election Commission is
                           informed in writing by all the  constituent
                           parties  in  the front/coalition before the
                           commencement  of  the  poll  that  such   a
                           front/coalition has been formed".
           
           	This definition is suggested  in  the  interest  of
           stability of government (see part VII of this report).
           
 TOP.gif (1292 bytes)           PART IV
           
            CONTROL OF ELECTION EXPENSES
           
           	This part deals with - (A) the proposal  to  delete
           Explanation  1  to  section  77 of the Act (B) insertion of
           Part VA containing section 78A (providing  for  maintenance
           of   accounts   and  their  auditing  etc.,  by  recognised
           political parties) and (c) State Funding i.e.  section  78B
           and Section 78C.
      TOP.gif (1292 bytes)     
            CHAPTER - I
           
           	The proposal to delete Explanation I to section 77
           
           4.1.1.	Section  77  which occurs in Chapter VIII of Part V
           of the Act, entitled  "Election  Expenses",  is  applicable
           only  to the elections to the Lok Sabha and the Legislative
           Assembly of a State.  As originally  enacted,  it  provided
           that  "Every  candidate  at  an  election  shall, either by
           himself or by his  election  agent,  keep  a  separate  and
           correct  account  of all expenditure in connection with the
           election incurred or authorised by him or by election agent
           between the date of publication of the notification calling
           the election and the date  of  the  declaration  of  result
           thereof,  both dates inclusive." The words "all expenditure
           in connection with the election incurred or  authorised  by
           him or by his election agent" fell for consideration of the
           Supreme Court  in  Kanwarlal  Gupta  v.    Amar Nath Chawla
           (1975) 3 SCC 646.    The  court,  in  the  first  instance,
           referred to sub-section (6) of section 123 of the Act which
           says  that " the incurring of authorising of expenditure in
           contravention of section 77" is a  corrupt  practice  which
           disqualifies  the  person from contesting the elections for
           the next six years.  After referring  to  the  language  of
           section  77,  they  observed that where the expenditure was
           authorised by  the  candidate  or  by  his  election  agent
           expressly,  there  was  no  difficulty  in  determining the
           meaning of the aforesaid words, but,  the  court  observed,
           difficulty  arose where the expenditure was incurred not by
           the  candidate  but  by  the  political  party  which   had
           sponsored him  or by his friends and supporters.  The court
           posed the question "Can the limit  on  the  expenditure  be
           evaded  by  the  candidate by not spending any money of his
           own but leaving it to the political party  or  his  friends
           and  supporters  to  spend  an  amount far in excess of the
           limit?" and then proceeded  to  ascertain  the  object  and
           purpose underlying section 77.  The court observed:

            "The  object  of   the   provision   limiting   the
                   expenditure is  two-fold.    In the first place, it
                   should be open to any individual or  any  political
                   party  howsoever  small,  to  be able to contest an
                   election on a footing of equality  with  any  other
                   individual  or  political party, howsoever rich and
                   well financed it  may  be,  and  no  individual  or
                   political   party  should  be  able  to  secure  an
                   advantage over others by  reason  of  its  superior
                   financial strength."
           
           
           4.1.1.1.	The court then observed that money plays an
           important part inasmuch as the paraphernalia required in an
           election  campaign  can not be obtained except with the aid
           of funds.  Money is absolutely necessary  for  fighting  an
           election.   The court further observed that the requirement
           of the constitution was full and effective participation of
           all citizen in the political process and to have  an  equal
           voice  in  the election of the members of the legislatures.
           It is the purpose of law, the court observed, to effectuate
           the above objective and to ensure that every candidate  and
           every  citizen  participated  in  the election process of a
           footing of equality.  The next objective  behind  the  said
           provision,  the court said, was limiting the expenditure on
           elections so as to  eliminate,  as  far  as  possible,  the
           influence of  big money in the electoral process.  If there
           were no  limit  on  expenditure,  political  parties  would
           resort to collection of contributions which would naturally
           come  only  from  the  rich  and  affluent  sections of the
           society.  The court then stressed the pernicious  influence
           of  big  money  in  derailing  the  democratic  process and
           referred in this connection  to  the  evils  of  big  money
           influence  on elections which had come to light in the USA.
           The court  opined  that  the  aforesaid  background  should
           inform the court in the interpretation of section 77 of the
           Act and then made the following pertinent observations:
            "Now,  if  a  candidate  were  to be subject to the
                   limitation of the ceiling, but the political  party
                   sponsoring  him  or his friends and supporters were
                   to be free  to  spend  as  much  as  they  like  in
                   connection   with   his  election,  the  object  of
                   imposing the ceiling would be completely frustrated
                   and  the  beneficial  provision  enacted   in   the
                   interest   of   purity   and   genuineness  of  the
                   democratic process  would  be  wholly  emasculated.
                   The  mischief  sought  to  be remedied and the evil
                   sought to be suppressed would enter  the  political
                   arena   with   redoubled   force  and  vitiate  the
                   political life  of  the   country.      The   great
                   democratic  ideal of social, economic and political
                   justice and  equality  of  status  and  opportunity
                   enshrined in the Preamble of our Constitution would
                   remain  merely  a  distant dream eluding our grasp.
                   The legislators could never have intended that what
                   the individual candidate cannot do,  the  political
                   party  sponsoring  him or his friend and supporters
                   should be free to do.  That is why the  legislators
                   wise  interdicted  not  only the incurring but also
                   the  authorising  of  excessive  expenditure  by  a
                   candidate.   When  the political party sponsoring a
                   candidate incurs expenditure in connection with his
                   election,  as  distinguished  from  expenditure  on
                   general  propaganda,  and  the  candidate knowingly
                   takes advantage  of  it,  or  participates  in  the
                   programme  or  activity  or  fails  to  disavow the
                   expenditure or consents to it or acquiesces in  it,
                   it  would  be  reasonable to infer, save in special
                   circumstances, that  he  impliedly  authorised  the
                   political  party  to  incur such expenditure and he
                   cannot escape the rigour of the ceiling  by  saying
                   that  he  has not incurred the expenditure, but his
                   political party has done so.    A  party  candidate
                   does  not  stand apart from his political party and
                   if the political party does not want the  candidate
                   to  incur  the  disqualification,  it must exercise
                   control over the expenditure which may be  incurred
                   by it directly to promote the poll prospects of the
                   candidate.   The  same  proposition  must also hold
                   good in case of expenditure incurred by friends and
                   supporters directly in connection with the election
                   of the candidate.   This  is  the  only  reasonable
                   interpretation  of  the provision which would carry
                   out its object  and  intendment  and  suppress  the
                   mischief  and  advance  the remedy by purifying our
                   election process and ridding it of  the  pernicious
                   and baneful  influence  of  big  money.  This is in
                   fact what the law in England has achieved.   There,
                   every  person  on  pain  of  criminal  penalty,  is
                   required to obtain  authority  from  the  candidate
                   before  incurring  any political expenditure on his
                   behalf.  The candidate is given complete discretion
                   in authorising expenditure up to  his  limit.    If
                   expenditure made with the knowledge and approval of
                   the candidate exceeds the limit or if the candidate
                   makes  a  false report of the expenditure after the
                   election,  he  is  subject  not  only  to  criminal
                   penalties,   but   also   to  having  his  election
                   voided."(Italics added).
           
           4.1.1.2.	The court  then  referred  to  the  earlier
           decisions  of  the  court supporting the construction bases
           upon section 77 by them.
           
           4.1.2.	The Law Commission of India is of the opinion  that
           the   decision   in  Kanwarlal  Gupta's  case  rightly  and
           correctly interprets section 77.   Indeed,  it  does  more.
           Besides  furnishing  the rationale for such a provision, it
           also points out the desirability and  necessity  of  having
           such  a  provision to ensure free and fair elections and to
           keep out the money-power.
           
           4.1.3.	Unfortunately,  however,  soon  after   the   above
           judgment,  the  President  of  India  issued  an  Ordinance
           amending the section  77  by  inserting  Explanation  1  in
           sub-section (1) of section 77.  Subsequently, Amendment Act
           58  of  1974 was enacted in terms of the said Ordinance and
           was given retrospective effect  on  and  from  October  19,
           1974.  Explanation I so inserted reads as follows -
           
            Explanation 1 - Notwithstanding any judgment, order
                   or decision of  any  Court  to  the  contrary,  any
                   expenditure  incurred  or  authorised in connection
                   with the election of a  candidate  by  a  political

            party  or  by  any  other  association  or  body of
                   persons  or  by  any  individual  (other  than  the
                   candidate  or  his  election  agent)  shall  not be
                   deemed to be, and shall not ever be deemed to  have
                   been,  expenditure  in connection with the election
                   incurred or authorised by the candidate or  by  his
                   election   agent   for   the   purposes   of   this
                   sub-section.
           
           	Provided that nothing contained in this Explanation
           shall affect -
           
            (a)	any judgment,  order  or  decision  of  the
                   Supreme  Court  whereby the election of a candidate
                   to the House of the People or  to  the  Legislative
                   Assembly  of  a State has been declared void or set
                   aside before the commencement of the Representation
                   of the People (Amendment) Ordinance, 1974 (Ord.  13
                   or 1974);
           
            (b) any judgment, order or decision of a High Court
                   whereby the election of any such candidate has been
                   declared void or set aside before the  commencement
                   of  the  said  Ordinance  if  no  appeal  has  been
                   preferred  to  the  Supreme  Court   against   such
                   judgment,  order  or  decision  of  the  High Court
                   before  such  commencement  and   the   period   of
                   limitation  for  filing  such  appeal  has  expired
                   before such commencement."
           
           4.1.3.1.	By  a  subsequent Amendment Act, (Act 40 of
           1975),  the  words  "the  date  of   publication   of   the
           notification  calling  the  election" in section 77(1) were
           substituted by the words "the date on  which  he  has  been
           nominated".    Explanation   III   was   also  inserted  in
           sub-section (1) of section 77.
           
           4.1.3.2.	The aforesaid amendments have the effect of
           nullifying the object and purpose underlying section  77(1)
           read with section 123(6) of the Act.  The amendments create
           an   escape  clause  and  have  provided  an  easy  way  of
           circumventing the  legal  requirement.     Not   only   the
           political  party which has sponsored the candidate, but the
           friends, relatives and supporters of a candidate can  spend
           any amount on the election of the candidate and yet all the
           amount  would  not  fall within the expenditure incurred by
           the candidate or his agent.  The validity of Explanation  I
           was  challenged  before  the  Supreme  Court  in P.Nallappa
           Thampy v.  Union of  India  (AIR  1985  SC  1133)  but  the
           challenge failed.    It may perhaps be appropriate to point
           out  that  upholding  the  constitutional  validity   means
           affirmation  of  the legislative power and of the provision
           not being violative of the constitutional limitations.   It
           in no way amounts to a pronouncements upon the desirability
           or necessity of such a provision.

           
           4.1.4.   More  than  one  decision of the Supreme Court has
           pointed out the undesirability of the said Explanation, the
           mischief inherent in it and stressed the need to delete the
           same.  It would be sufficient to cite two decisions of  the
           Supreme Court, namely  C.Narayanaswamy  v.    C.K.   Jaffer
           Sharief (1994 (Supp) 3  SCC  170)  and  Gadakh  Yashwantrao
           Kankarrao v.   Balasaheb Vikhe Patil (1994(1) SCC 682.  The
           observations in the first mentioned decisions  are  to  the
           following effect.
           
            "As the law stands in India today anybody including
                   a  smuggler,  criminal  or  any  other  anti-social
                   element  may  spend any amount over the election of
                   any candidate in whom such  person  is  interested,
                   for  which  no account is to be maintained or to be
                   furnished and any such  expenditure  shall  not  be
                   deemed  to have been expenditure in connection with
                   the  election,  incurred  or  authorised   by   the
                   candidate  or by his election agent for the purpose
                   of sub-section (1) of Section 77, so as  to  amount
                   to   a  corrupt  practice  within  the  meaning  of
                   sub-section (1) of section 77, so as to amount to a
                   corrupt practice within the meaning of  sub-section
                   (6) of  section 123.  It is true that with the rise
                   in the costs of the mode of publicity  for  support
                   of   the   candidate   concerned,   the  individual
                   candidates cannot fight the election without proper
                   funds.  At the same time it cannot be accepted that
                   such funds should come form  hidden  sources  which
                   are not  available  for public scrutiny.  According
                   to us, sub-section (6)  of  section  123  declaring
                   "incurring   of   authorising   of  expenditure  in
                   contravention of section 77" a corrupt practice has
                   lost  its  significance  and   utility   with   the
                   introduction  of  the Explanation-I aforesaid which
                   encourages corruption by underhand methods.  If the
                   call for "purity of elections" is not be reduced to
                   a  lip  service  or  a  slogan,  then  the  persons
                   investing  funds, in furtherance of the prospect of
                   the election of a candidate must be identified  and
                   located.   The  candidate  should not be allowed to
                   plead ignorance about the  persons  who  have  made
                   contributions  and  investments  for the success of
                   the candidate concerned at the election.  But  this
                   has to be taken care of by Parliament.
           
           4.1.4.1.    Similarly,  in  the  latter  decision,  it  was
           observed:
           
            "The  existing  law  does  not  measure  up  to the
                   existing realities.  The ceiling on expenditure  is
                   fixed  only  in respect of the expenditure incurred
                   or authorised by  the  candidate  himself  but  the
                   expenditure incurred by the party or anyone else in
                   his  election campaign is safely outside the net of
                   legal sanction.    The  spirit  of  the   provision
                   suffers violation  through  the  escape route.  The
                   prescription  of  ceiling  on  expenditure   by   a
                   candidate is a mere eye-wash and no practical check
                   on  election  expenses  for which it was enacted to
                   attain a meaningful democracy.  This lacuna in  the
                   law  is,  however,  for the Parliament to fill lest
                   the impression is reinforced that its retention  is
                   deliberate for  the  convenience  of  everyone.  If
                   this be not feasible, it may be advisable  to  omit
                   the  provision  to  prevent  the resort to indirect
                   methods for its circumvention and  subvervision  of
                   the  law,  accepting  without any qualm the role of
                   money power in the elections.  This  provision  has
                   ceased to be even a fig leaf to hide the reality."
           
           4.1.5.	It is a matter of regret that so far no action  has
           been   taken   by  the  Parliament  in  the  light  of  the
           observations of the Supreme Court.
           
           4.1.6.	In  the year 1990, the then Law Minister, late Shri
           Dinesh Goswami, had prepared a draft amendment Bill,  based
           upon the  consensus of all the political parties.  The said
           bill provided inter alia for deletion of the Explanation  I
           to section  77(1).  Though provisions in the said bill have
           been given statutory shape by the  Parliament  by  enacting
           Act  21  of  1976,  the  particular  provision  in the bill
           providing for deletion of Explanation I to section  77  was
           not enacted.
           
           	Shri Som Nath Chatterjee, M.P., presided  over  the
           session  devoted  to Election Expenses and State Funding at
           the National Seminar  held  on  24th  January,  1999.    He
           stressed  the  necessity  of  free and fair elections for a
           successful democracy but regretted that over the  last  few
           decades  money power, muscle power and black money had been
           troubling this nation.  There is a feeling among the people
           that some political parties are getting unfair advantage in
           the elections because  of  their  having  larger  financial
           sources.   For  this  reason, good persons were not able to
           contest, he said, Shri K.K.   Venugopal,  Senior  Advocate,
           Supreme Court, and an expert on constitutional law, who was
           the keynote speaker at the said seminar put forward certain
           very pertinent ideas which may be referred to hereinbelow.
           
           4.1.6.1.	In the very scheme of things and as pointed
           out by the Supreme Court in its various decisions, the bulk
           of  the  funds  contributed to political parties would come
           only from business houses, corporate groups and  companies.
           Such  a  situation sends a clear message from the political
           parties to big business houses and to powerful corporations
           that their future financial well being will depend upon the
           extent to  which  they  extend  financial  support  to  the
           political party.   Indeed most business houses already know
           where their interest lies and they make their contributions
           accordingly to that political  party  which  is  likely  to
           advance their  interest  more.    Indeed  ensure of knowing
           which party will come to power, they very often  contribute
           to all  the  major  political  parties.    Very often these
           payments are made in black money.    Section  293A  of  the
           Companies  Act, 1965, as inserted in 1969, imposed a ban on
           the companies making contributions to any  political  party
           or  for  any political person or for any political purpose.
           Unfortunately, this ban was lifted in 1985 by amending  the
           Act.   Under  the present provision, a company is permitted
           to contribute  amounts  to  a  political  party  or  for  a
           political  purpose  to  any person provided that the amount
           does not exceed five per cent of its average  net  profits.
           In the case of an Indian company of a multinational stature
           or  in  the  case  of any big business group, five per cent
           would mean a mind-boggling figure.  As far  back  as  1957,
           Chagla C.J.   pointed out the danger inherent in permitting
           the companies to make contributions  to  political  parties
           (Koticha's case(1957)  27  Company  Cases  604).  He warned
           that "it is a danger which may grow  apace  and  which  may
           ultimately  overwhelm  and  even  throttle democracy in the
           country".  As a matter of fact, an attempt made in 1976  to
           remove  the  ban  imposed  by  Section  293A  (as initially
           enacted) failed.  It is amusing to note the  'Statement  of
           Objects and Reasons' appended to the bill prepared in 1976.
           It  stated  that  the ban was proposed to be lifted "with a
           view to permit the corporate sector to  play  a  legitimate
           role  within  the  defined  norms in the functioning of our
           democracy!" Mr.  Venugopal raised an  interesting  question
           of law in this behalf.  He said that according to section 7
           of  the Prevention of Corruption Act 1988, "whoever, being,
           or expecting to be a public servant, accepts or obtains  or
           agrees  to accept or attempts to obtain for any person, for
           himself  or  for  any  other  person,   any   gratification
           whatever, other than the legal remuneration, as a motive or
           reward  for  doing  or forbearing to do any official act or
           for showing or forbearing  to  show,  in  exercise  of  his
           official  functions,  favour  or disfavour to any person or
           for  render  or  attempting  to  render  any   service   or
           disservice  to  any  person, with the Central Government or
           any State Government or Parliament or  the  Legislature  of
           any  State  or  with  any  local  authority, corporation or
           Government company referred to in clause (c) of section  2,
           or  with  any  public  servant, whether named or otherwise,
           shall, be punishable...".  A  Member  of  Parliament  or  a
           Member of  Legislature  is  a  public servant.  A candidate
           contesting  an  election  to  Parliament   or   Legislative
           Assembly  is  a  person  who  is  expecting  to be a public
           servant.  If  he  becomes  a  public  servant  and  then  a
           minister,  or  even otherwise if it is found at any time in
           future that he has returned the favour of being funded by a
           business house or a company, directly  through  himself  or
           any other person for rendering any service with the Central
           Government or any State Government etc., he would be guilty
           of   the  aforesaid  offence  of  corruption  for  which  a
           mandatory  imprisonment  of  not  less  than  6  months  is
           provided which  may  extend to 5 years.  After the decision
           of the Supreme Court in the case of A.R.  Antulayl(AIR 1984
           SC 718), he said, it is  open  today  even  for  a  private
           individual   to   file   a  criminal  complaint  under  the
           Prevention of Corruption Act.
           
           4.1.6.2.	We   endorse   the   views   of  Shri  K.K.
           Venugopal in their entirety.
           
           4.1.7.		Shri  Shiv  Raj  Patil,  M.P., and a former
           Speaker, Lok Sabha, also stressed the necessity of  curbing
           the influence of money power in elections.
           
           4.1.8.		It must be mentioned at this stage that the
           above  proposal  was  opposed  by  Shri  Kapil  Sibal, M.P.
           Indeed he was the only dissenting voice.  The reason  given
           by  him  was that the suggested removal of ban on donations
           by companies would encourage the parties and persons to act
           behind the curtain and that influence of black money  would
           be  more  whereas  under the existing system the funding of
           political parties by companies is open.    We  are  of  the
           opinion that the reason given is hardly acceptable and runs
           against  the uniform authority of the Supreme Court and the
           unanimous opinion of all other participants including  Shri
           Ram Jethmalani,  Union  Minister,  Shri  P.P.   Rao, Senior
           Advocate, Shri C.R.   Irani  (Editor,  The  Statesman)  and
           several other intellectuals.
           
           4.1.9.	It  is  in  the  above  circumstances  that the Law
           Commission of India had suggested in its working paper that
           the said Explanation be deleted.  In the seminars held  and
           in  the  responses  received  by  the Commission, unanimous
           support  has  been  given  to  the  proposal  of  the   law
           Commission.   There has been no dissenting voice, except of
           Shri Kapil Sibal, as mentioned hereinabove.    Accordingly,
           we  reiterate  our proposals along with the substitution of
           definition  of  "original  political  party"  by  the   new
           definition of "political party".
           
           4.1.10.	In this connection, it is necessary to refer to the
           Report of the Indrajit Gupta  Committee  appointed  by  the
           Government  of  India  to  go  into  the  question of State
           Funding and Election Expenses.    So  far  as  deletion  of
           Explanation  I in section 77(1) is concerned, the committee
           has not made any specific recommendation (vide para  10  of
           Chapter VI).  The Report says that though some parties were
           in  favour  of  deletion  of the Explanation, certain other
           parties did not agree to it.   It  is  not  clear  in  what
           circumstances  and  for what reasons the political parties,
           which had supported the said deletion in  1989-90  (on  the
           basis  of  which  the 1990 Bill aforementioned provided for
           such deletion) have now turned round and are  opposing  the
           deletion.   It  is  difficult  to  perceive any justifiable
           reason behind the said opposition when everyone  is  agreed
           that the objective of electoral process is to obtain a free
           and fair  ascertainment of the will of the people.  The Law
           Commission hopes and trusts  that  in  the  interest  of  a
           healthy  parliamentary  democracy, those political parties,
           which are now opposed to the said deletion, will reconsider
           and revise their opinion and support the said  deletion  as
           indeed they had done in the years 1989-1990.
           
           
           
 TOP.gif (1292 bytes)          
 CHAPTER II
           
           	Insertion of Section 78A  (Maintenance,  audit  and
           publication of accounts by political parties)
           
           4.2.1.	This  proposal drew unanimous approval from all the
           participants at  the  seminars  as  well  as  from  several
           persons,  parties  and organisations which responded to the
           Law Commission's working paper.  There  was  no  dissenting
           voice.  On  the  contrary,  Shri  K.K.    Venugopal, Senior
           Advocate,  observed  that  while  the  Law  Commission  has
           rightly recommended the introduction of section 78A, it had
           not  provided  for  the consequences of non-compliance with
           the said provision or for the consequences that  flowed  if
           it  was found that any false statement had been made in the
           accounts submitted by a political party.  He  stressed  the
           necessity  of  publication of such accounts by the Election
           Commission which would enable any individual  or  party  to
           point  out  the  falsity  of  any of the particulars in the
           accounts.  In this connection, he referred to  section  13A
           of the  Income Tax Act which was inserted on 1.4.1979.  The
           said  section  provides  that  the  income  received  by  a
           political party under the head "Income from house property"
           or  "income  from  other  sources" or "any income by way of
           voluntary contributions received by  it  from  any  person"
           shall  not  be included in the total income of the previous
           year  of  such  political  party  provided  that  (a)  such
           political  party keeps and maintains such books of accounts
           and other documents as would enable the  assessing  officer
           to  property deduce its income therefrom; (b) in respect of
           each such voluntary contribution in excess of ten  thousand
           rupees,  such  political party keeps and maintains a record
           of such contribution and the name and address of the person
           who has made such contribution and (c) the accounts of such
           political party are audited by an accountant as defined  in
           the Explanation below sub section (2) of section 288 of the
           said Act.    The  explanation  appended to the section says
           that for the purpose of the said section "political  party"
           means  an  association  or  body  of individual citizens of
           India registered with the Election Commission of  India  as
           apolitical  party under paragraph 3 of the Election Symbols
           (Reservation and  Allotment)  Order  1968  and  includes  a
           political   party   deemed   to  be  registered  with  that
           Commission under provision to sub  paragraph  (2)  of  that
           paragraph.   (It,  however, appears that para 3 of the said
           Symbols Order has been omitted  by  Notification  No.    OM
           21(E) dated 23.2.1992 with effect from 25.3.1992) Mr.  K.K.
           Venugopal pointed  out that until Shri H.D.  Shourie of the
           "Common Cause" filed a  Public  Interest  Petition  in  the
           Supreme  Court(the  decision  in  which case is reported in
           1996 (2) SCC 752) the said provision was not being followed
           by the parties or enforced by the  Income  Tax  Department.
           As  a  matter of fact, except the two Communist parties and
           two other political parties, no other political  party  had
           complied  with  the  said  section  nor did they file their
           return of income stating that they had  complied  with  the
           three conditions  specified  in  the  said  section.    Mr.
           Venugopal was of the opinion  that  such  a  failure  would
           attract  penalty  provided  by section 276-CC of the Income
           Tax Act.  Mr.  Venugopal  further  pointed  out  that  even
           though  the  Supreme  Court  directed in the aforementioned
           decision that the Secretary  to  the  Ministry  of  Finance
           should conduct an investigation and inquiry against each of
           the  defaulting  political  parties  and initiate necessary
           action against them according to law, no action  whatsoever
           appears  to  have been taken so far nor any party or person
           had been prosecuted.  All this proves the  old  adage  that
           "some men  are  more  equal  than  others".   While a small
           income-tax payer who fails to file his return is prosecuted
           and penalised, the political parties which are  in  receipt
           of  huge  funds  which  they  spend  on elections and other
           occasions are not being touched.  The parties  too  do  not
           appear  to  have  realised  that  if they themselves do not
           follow the law, not only it sets a bad example  to  others,
           they will not have the face to tell others to abide by law.
           4.2.3.	The  necessity  of  such  a  requirement was indeed
           emphasised by the Supreme Court in its recent  decision  in
           Gajanan Bapat v.  Dattaji Meghe (1995 (5) SCC 347) where it
           observed pertinently as under:
            	"We wish, however, to point out that though
                   the  practice  followed by political parties in not
                   maintaining accounts of receipts  of  the  sale  of
                   coupons  and  donations  as well as the expenditure
                   incurred in connection with  the  election  of  its
                   candidate  appears to be a reality but it certainly
                   is not a good practice.  It leaves a lot  of  scope
                   for  spoiling  the  purity  of  election  by  money
                   influence.  Even if the traders and business men do
                   not desire their names to be published in  view  of
                   the  explanation of the witnesses, nothing prevents
                   the political party  and  particularly  a  national
                   party  from  maintaining  its  own accounts to show
                   total receipts and expenditure  incurred,  so  that
                   there could  be  some accountability.  The practice
                   being followed as per the evidence  introduces  the
                   possibility of receipts of money from the candidate
                   himself  or  his election agent for being spent for
                   furtherance  of  his  election,   without   getting
                   directly   exposed,   thereby  defeating  the  real
                   intention behind Explanation 1 to section 77 of the
                   Act.   It  is,  therefore,  appropriate   for   the
                   legislature or the Election Commission to intervene
                   and   prescribe   by   Rules  the  requirements  of
                   maintaining true and correct account of the receipt
                   and  expenditure  by  the  political   parties   by
                   disclosing the sources of receipts as well.  Unless
                   this is done, the possibility of purity of election
                   being  soiled  by  money influence cannot really be
                   ruled out.  The political parties must disclose  as
                   to  how  much  amount  was collected by it and from
                   whom and the manner in which it was spent  so  that
                   the  court  is  in  a  position to determine "whose
                   money was actually spent" through the hands of  the
                   party.   It  is  equally  necessary for an election
                   petitioner to produce better type  of  evidence  to
                   satisfy  court  as to "whose money it was" that was
                   being spent through the party.   Vague  allegations
                   and discrepant evidence may only create a doubt but
                   then  the charge of corrupt practice cannot be held
                   to be proved on mere lurking suspicion  or  doubts.
                   However, undesirable and objectionable the practice
                   might be, the fact remains that the evidence led by
                   the  election  petitioners  in  this  case  doe not
                   establish the charge levelled by them at all."
           
           4.2.4.	We   have  already  pointed  out  hereinbefore  the
           provisions of the German Law on Political Parties of  1967,
           Section  V  whereof creates a statutory obligation upon all
           the  political  parties  to  maintain  clear  and   correct
           accounts,  have  them  audited  and  submit the same to the
           President of the German  Bundestag.    These  accounts  are
           directed  to  be  circulated  by  the Bundstag as "Bundstag
           Papers".  The Law further requires that the Bundstag  shall
           examine  whether the statement of accounts is in accordance
           with the requirements of the said law and that  the  result
           of  such  scrutiny  shall  be  recorded  in  the  report in
           accordance  with  the  paragraph  5  of  the  said  article
           (article 23).   The German law provides in great detail the
           particulars which such accounts  should  contain  including
           the  sources  from which amounts are received and the items
           upon which expenditure has been incurred.  It is absolutely
           essential that there should be a law  on  the  same  lines.
           Rules   can   be   made  elaborating  and  elucidating  the
           requirements in the proposed section 78A in  the  light  of
           and  keeping  in  mind  the  several provisions in the said
           German Law.
           
           
           4.2.5.	This proposal was also supported by Shri P.P.  Rao,
           Senior Advocate,  Shri  N.  Ram(Editor, Frontline) and Shri
           C.R.  Irani (Editior, The Statesman), Shri Inderjit, Senior
           Journalist, Shri Shivraj  V.    Patil(former  Speaker,  Lok
           Sabha), Dr.   K.L.    Shivaramakrishnan(Centre  for  Policy
           Research) and Shri H.K.    Dua,  senior  journalist,  among
           others.   Even in the responses received by various persons
           and  organisations  pursuant  to  the  circulation  of  the
           'working paper', there has been no dissenting voice.
           
           4.2.6.	Accordingly,  the  Law Commission reiterates that a
           new section as proposed in the working paper (section  78A)
           should be  inserted  in the R.P.Act of 1951.  It is further
           recommended that  the  provision  as  suggested  should  be
           numbered  as  sub-section (1) and sub-sections (2), (3) and
           (4) as proposed hereinafter should also be inserted in  the
           said section.
           
           (2)	A political party which does not comply with any of
           the  requirements of sub-section (1) shall be liable to pay
           a penalty of Rs.  10,000/- for each day  of  non-compliance
           and so long as the non-compliance continues.
           
	If  such  default continues beyond the period of 60
           days,  the  Election  Commission   may   de-recognise   the
           political party after affording a reasonable opportunity to
           show cause.

           (3)	If  the  Election Commission finds on verification,
           undertaken whether suo motu  or  on  information  received,
           that  the statement of accounts filed under sub-section (1)
           is false in any particular, the Election  Commission  shall
           levy  such penalty upon the political party, as it may deem
           appropriate  besides  initiating  criminal  prosecution  as
           provided under law.

           (4)	Any  orders  passed  under  sub-sections (2) or (3)
           shall be directed to be published in the  press  and  other
           media, for public information."

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            CHAPTER III

             State Funding

           4.3.1.	This part of chapter relates to proposal for  state
           funding of elections put forward in the working paper.  The
           working paper had reiterated the proposals contained in the
           Dinesh  Goswami  Bill  of  1990  which,  as has been stated
           herein before, was based upon  the  consensus  of  all  the
           political parties.

           4.3.2.	It  is necessary at the outset to refer to Inderjit
           Gupta Committee which was appointed by  the  Parliament  to
           got into  the question of state funding.  The Committee has
           also recommended partial state funding of political parties
           more or less on the lines of the Dinesh Goswami Bill 1990.
           
           4.3.3.	Views of participants in seminars considered.  Shri
           Som Nath Chatterjee, who presided over the session  devoted
           to  'Election  Expenses  and State Funding' in the National
           Seminar held on  24.1.1999  supported  the  idea  of  state
           funding.   (Hew  as  a  member  of the said Committee.) Mr.
           Chatterjee referred to a 1971 Parliamentary Committee known
           as 'Jagannadha Rao Committee' of which S/Shri.  Atal Bihari
           Vajpayee and L.K.  Advani  were  members  besides  himself,
           which Committee  had  also  recommended  state funding.  He
           referred to the deliberations of the Committee appointed by
           Shri Jayaprakash Narayan, provisions of Dinesh Goswami Bill
           and  to  the  recommendations  and   resolutions   of   the
           Inter-Parliamentary  Council (at which all parliamentarians
           were represented),  held  in  May  1994.    All   of   them
           recommended the idea  of  state  funding.   Mr.  Chatterjee
           referred in some detail to the  contents  of  the  Inderjit
           Gupta  Committee  Report recommending partial state funding
           of the recognised political parties; both at  the  national
           and state  levels.  The recommendations made, he said, were
           designed to meet the unavoidable expenditure required to be
           incurred by each political party though it may not  satisfy
           their total  requirements.    Such  a course, he said, will
           help the bona fide candidates.  He also  expressed  himself
           in  favour  restrictions  being  placed  upon  ostentatious
           expenditure on elections including  on  cut-outs,  banners,
           arches, public  meetings  and so on.  According to him, the
           proposals of the Inderjit Gupta Committee Report  represent
           a good beginning though they do not exclude private funding
           of the  political  parties.   He also supported the idea of
           creating a state fund, as recommended by the Inderjit Gupta
           Committee.  This fund should have a reserve of six  hundred
           crores.   The  said  amount,  he said, was fixed keeping in
           mind the rate of rupees ten per elector.  Mr.    Chatterjee
           also  stressed the importance and necessity of vigilance by
           public, media and all  other  organisations  interested  in
           public welfare.
           
           4.3.3.1.	Shri K.K.   Venugopal, senior Advocate, was
           also of the  opinion  that  time  had  come  for  seriously
           considering the state funding of elections.  He referred to
           the  fact  that in several countries such a practice was in
           vogue.  He pointed out that  in  no  case,  money  as  such
           should  be  paid  to the candidate or to a political party.
           Only  certain  material,  which  was  necessary  for  every
           political  party to convey its message and its programme to
           the electorate should be provided.  If  the  state  funding
           was in the shape of cash, he opined, millions of candidates
           would  come  forward to contest elections only for the sake
           of money.  He also  referred  in  this  connection  to  the
           practice  in  England  where  free television time was made
           available by BBC and by independent  television  companies.
           Postal  communication was also accessible free of charge to
           the candidates.   Council  halls  are  made  available  for
           holding the  meetings.   The cost of printing and compiling
           of the registers were all paid  by  the  State.    He  then
           referred  to  the  French electoral system which he said is
           the most generous in this respect.    Money  is  not  given
           there  directly  by  the  state  but  pamphlets,  leaflets,
           posters, handbills and other publicity  material  including
           election manifestos and statements are printed by the state
           machinery   at  the  specific  request  of  the  candidate.
           Vehicles including oil  and  petrol  are  provided  by  the
           State.   Help  was  extended  to  the candidate to organise
           public meetings and public address systems.  Radio time and
           television time was also made available to a candidate free
           of cost.  Turning to India, Mr.  Venugopal  said  that  the
           problems  confronting  the country were very acute and that
           election funding on a major scale could not  be  undertaken
           at  the  cost of poverty, primary education, primary health
           care, population control, clean drinking water, creation of
           employment and so on.  He opined that  any  deprivation  in
           these  areas  would  negate  the  very socialist democratic
           foundation of the nation.  While commending  the  proposals
           of the Law Commission in this behalf, he referred to France
           again  where,  with  a view to preventing a large number of
           independent  candidates  from  taking  advantage  of  state
           funding,   it   has  been  provided  that  every  candidate
           receiving State funding  shall  execute  a  bond  and  also
           furnish a bank guarantee for the financial support extended
           to  him  so that in case he got less that 8 per cent of the
           total votes polled, he would forfeit  his  bond  and  money
           would be  recovered  from  the  guarantor.    He was of the
           opinion that such a provision should be made in the  Indian
           law also,  if  state  funding  was  to be provided.  Such a
           course, he submitted would prevent  a  host  of  candidates
           appearing  on  the  electoral  scene and, at the same time,
           would render great service  to  democracy  by  providing  a
           level  playing  field  to  all  the  persons  who genuinely
           desired to serve  the  nation  as  representatives  of  the
           people.    He  submitted  that  the  existing  professional
           politicians alone could not represent the people  and  that
           it  was  necessary to bring into existence a new generation
           of educated individuals who desired to serve the country.
           
           4.3.3.2.	One of the participants suggested  that  it
           should  be  open to private individuals and other bodies to
           make  contributions  to  the   Election   Fund   and   that
           contributions  thereto  should  be  exempt from income-tax.
           While some of the participants wanted the State funding  to
           be  restricted  to recognised political parties(RPPs), some
           others suggested that it should  be  extended  to  all  the
           candidates.   As  a  matter  of  fact,  there  was  a sharp
           division of opinion, in this session, on this question.
           
           4.3.3.3.	At  the seminar held on 14th November, 1998
           too, these proposals had elicited mixed response.
           
           	At the Banagalore seminar, some of the participants
           suggested  that  if the state funding was to be introduced,
           it must be made conditional upon internal  democracy  being
           assured within  the  political  party.   To the same effect
           were  the  opinions  expressed  at  the  Thiruvananthapuram
           seminar.   In  the responses received to the working paper,
           differing opinions were  expressed.    While  some  members
           agreed  with by the opponents of this proposal is that such
           a course would place  an  unwanted  burden  on  the  public
           exchequer  and  that  unless  other  proposals  relating to
           maintenance of accounts etc., were also  given  effect  to,
           state funding should not be resorted to.
           
           4.3.4.	Conclusions - After considering views expressed  by
           the participants in the seminars and by various persons and
           organisations   in   their  responses  and  after  perusing
           relevant literature on the subject, the Law  Commission  is
           of  the  opinion  that  in  the  present circumstances only
           partial state funding could be contemplated more as a first
           step towards total  state  funding  but  it  is  absolutely
           essential before the idea of state funding (whether partial
           or  total)  is  resorted,  the provisions suggested in this
           report  relating  to  political  parties   (including   the
           provisions    ensuring    internal    democracy,   internal
           structures) and maintenance of accounts, their auditing and
           submission to Election  Commission  are  implemented.    In
           other   words,   the   implementation   of  the  provisions
           recommended  in  Chapter  one  Part  three  should   be   a
           pre-condition  to  the  implementation  of  the  provisions
           relating to partial state funding set out  in  the  working
           paper  in  the  Law Commission (partial funding, as already
           stated, has also been recommended  by  the  Inderjit  Gupta
           Committee).  If without such pre-conditions, state funding,
           even  if  partial  is  resorted  to, it would not serve the
           purpose underlying the idea of state funding.  The idea  of
           state  funding is to eliminate the influence of money power
           and also to eliminate the influence of money power and also
           to eliminate corporate funding,  black  money  support  and
           raising  of  funds  in the name of elections by the parties
           and their  leaders.    The  state  funding,   without   the
           aforesaid   pre-conditions,  would  merely  become  another
           source of funds for the political parties and candidates at
           the cost of public exchequer.  We are,  therefore,  of  the
           opinion  that  the  proposals  relating  to  state  funding
           containted in the Inderjit Gupta Committee Report should be
           implemented  only  after   or   simultaneously   with   the
           implementation  of  the provisions contained in this Report
           relating to political parties viz., deletion of Explanation
           1  to  Section  77,  maintenance  of  accounts  and   their
           submission etc.      and   the   provisions  governing  the
           functioning of political parties contained  in  chapters  I
           and II  of  Part  IV  and chapter I of Part III.  The state
           funding, even if  partial,  should  never  be  resorted  to
           unless   the   other  provisions  mentioned  aforesaid  are
           implemented lest the very idea may prove counter-productive
           and may defeat the very object underlying the idea of state
           funding of elections.
           
           4.3.5.	It is desirable that total state funding should  be
           introduced  but on the condition that political parties are
           barred from raising funds from any other source.   In  this
           chapter,  we  have  proceeded  on  the assumption that only
           partial instead of total state funding is feasible  in  the
           prevailing economic conditions in the country.
           
            4.3.6.	In  the  Inderjit  Gupta Committee report on State
           Funding of Elections also, it has been recommended -
           
            "  6.14  The  committee,   therefore,   sees   full
                   justification  constitutional,  legal as well as on
                   ground of  public  interest,  for  grant  of  State
                   subvention to political parties, so as to establish
                   such  conditions where even the parties with modest
                   financial resources may be  able  to  compete  with
                   those  who  have superior financial resources, on a
                   level  with  a  fair  chance  of  success  at   the
                   hustings."
           
           	The committee also emphasised that such funds could
           not be doled out to independent candidates and that such of
           the  registered  parties  as  had  secured  recognition  as
           national  and  State parties under the Symbols Order on the
           manifest demonstration of their popular support  among  the
           electorate for  State  sunvention.    We  concur  with  the
           suggestion.
           
           4.3.6.1.	On  the issue as to whether full or partial
           State funding should  be  admissible,  the  said  Committee
           further observed:
            "Para 9.1.  Given  the  budgetary  constraints  and
                   financial stringencies being faced currently by the
                   country,   compounded   by   the   recent  economic
                   sanctions imposed  by  certain  foreign  countries,
                   sparing  or  diverting  from  the  meagre financial
                   resources of the country  at  this  juncture,  huge
                   funds  that  may  be required to provide full State
                   funding  to  political  parties  will  neither   be
                   advisable nor  feasible.   A harmonious balance has
                   to be struck.   Therefore,  to  being  (sic)  (read
                   instead "begin") with political parties may have to
                   contend with only partial funding by the State."
           
           	The Committee  further  recommended  that  for  the
           present,  only  part  of  the financial burden of political
           parties may be shifted to the State.   This  should  be  so
           done  that it provides them relief not only in carrying out
           their electoral activities and meeting partly the  cost  of
           essential   items  of  electioneering  campaigns  of  their
           candidates but also helps them  partially  in  the  current
           administration  of  their  day  to  day  functioning during
           non-election period.
           
           4.3.6.2. The  Committee  recommended  that,  to begin with,
           State subvention may be given only in kind, in the form  of
           certain  facilities to the recognised political parties and
           their candidates.
           
           4.3.6.3.	The Committee underlined the need  to  curb
           the   mounting  expenses  of  parties  and  candidates  and
           ostentatious show  of  money  power  by  them,  by  placing
           reasonable  restrictions by law in respect of all or any of
           the following matters:
           
	(i)	Wall writings;
           	(ii)	Display of cut-outs, hoardings, banners;
           	(iii) Hoisting of flags (except at party offices,
                           party  offices,  public  meetings and other
                           specified places);
           	(iv)	Use of more than a specified number of
                    	vehicles for  election  campaigns  and  fro
           		processions;
           	(v) Announcements or publicity by more  than  a
                           specified number of moving vehicles;
           	(vi) Holding   of  public  meetings  beyond  the
                           specified hours;
           	(v) Display  of  posters  at places, other than
                           those specified by  the  district/electoral
                           authorities.
           
           4.3.7.	We reiterate all the recommendations  made  in  the
           Indrajit Gupta Committee Report subject to the reservations
           made in para 4.3.4.  So far as the Explanation I to section
           77  (1)  of  the  Representation of the Peoples Act 1951 is
           concerned, we have already recommended its deletion.
           
           4.3.8.	As a post-script, we may also refer to  the  report
           of  the  Committee  on  Standards in Public Life (the Neill
           Committee:  Cmd.  4057) submitted on October  13,  1998  by
           that  Committee  to  the  Government of the United Kingdom.
           They  have  made   several   proposals,   inter-alia,   for
           regulating  the  election expenditure as well as for making
           auditing and accounting rules for political parties.    The
           proposals  are  generally  aimed  at  encouraging  (i) more
           openness about the sources and use of party funds; and (ii)
           greater   public   confidence    that    individuals    and
           organisations  were  not  buying  influence  with political
           parties.
           
           
         PART V
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            Proposal regarding framing of charges by courts as
 a new ground for disqualification
           
           
           
           5.1.	In  the  working  paper,  the  Law  Commission  had
           suggested amendment of Section 8 of the R.P.  Act.  Section
           8  provides  for disqualification on conviction for certain
           offences.  It has four sub-sections.  Sub-section (1)  sets
           out  certain  specific offences, the conviction under which
           shall disquality the candidate for a period  of  six  years
           from the  date  of such conviction.  Sub-section (2) refers
           to certain offences subject-wise and says that  any  person
           convicted  for  such offences and sentenced to imprisonment
           for not less than six months, shall  be  disqualified  from
           the  date  of  such  conviction  and  shall  continue to be
           disqualified for a further period of six years since he  is
           released.    Sub-section   (3)   is  in  the  nature  of  a
           'residuary' provision.  It says that a person convicted  of
           any offence and sentenced to imprisonment for not less than
           2  years  (other than an offence referred to in sub-section
           (1) or sub-section (2) shall be disqualified from the  date
           of  such  conviction  and shall continue to be disqualified
           for a further period of six years  since  he  is  released.
           Sub-section  (4)  provides  that  disqualification  falling
           under sub-section (1), 92) and (3) shall not take effect in
           the case of a person, who, on the date of conviction  is  a
           member  of  Parliament  or the Legislature of a State until
           three months have elapsed from that date or, if within that
           period an appeal or application for revision is brought  in
           respect of the conviction or sentence, until that appeal or
           application is  disposed  of  by  the  court.    (It is not
           necessary to refer to the  provisions  of  the  Explanation
           appended to  the section).  The Law Commission had proposed
           that in respect of offences  provided  in  sub-section  (1)
           (except  the offence mentioned in clause (b) of sub-section
           (1),  a  mere  framing  of  charge  should   serve   as   a
           disqualification.   This provision was sought to be made in
           addition  to  existing   provision   which   provides   for
           disqualification arising  on  account  of  conviction.  The
           reason for this proposal was  that  most  of  the  offences
           mentioned  in  sub-section (1) are either election offences
           or serious offences affecting  the  society  and  that  the
           persons committing these offences are mostly persons having
           political clout  and  influence.  Very often these elements
           are supported by unsocial persons  or  groups  of  persons,
           with  the result that no independent witness is prepared to
           come forward to depose against such persons.    In  such  a
           situation,  it  is  providing extremely difficult to obtain
           conviction of  these  persons.    It  was  suggested   that
           inasmuch  as  charge were framed by a court on the basis of
           the material placed before it by the prosecution  including
           the  material  disclosed by the charge-sheet, providing for
           disqualification  on  the  ground   of   framing   of   the
           charge-sheet  would  be  neither unjust nor unreasonable or
           arbitrary.
           
           5.1.1.	The Law Commission further suggested  that  several
           election  offences  mentioned  in the Act as well as in the
           Indian Penal  Code  provided  for  ridiculously  inadequate
           punishment.   We  had  expressed  the  opinion that several
           electoral offences contained in the R.P.  Act  and  in  the
           IPC were of a serious nature and, therefore, suggested that
           all these offences should provide for punishment upto three
           years or  more.   The detailed proposals have been detailed
           in the working paper.
           
           5.2.	Views  of  different  persons  considered   -   The
           proposal to amend sub-section (1) of section 8 as mentioned
           above  was  supported  by the Hon'ble Prime Minister in his
           inaugural address at the national seminar while taking care
           to clarify that mere filing of charges (chargesheet) should
           not be made  a  ground  of  disqualification.    Shri  P.A.
           Sangma,  former  Speaker,  Lok  Sabha  did  not  express  a
           specific opinion on this issue.  He, however, queried  what
           happened  if  a  political  party  puts  up candidates with
           criminal background?    Was  it  possible  to  take  action
           against political  party, he asked?  Shri Dilip Padgaonkar,
           Editor, Times of  India,  in  his  keynote  speech  at  the
           National Seminar  referred  to Dr.  Radhakrishnan's concern
           about corruption expressed in 1947 and  to  Vohra  Commttee
           Report.   According  to  him,  a  negative  process  was in
           progress in India, namely, criminalisation of politics  and
           politicisation of  crime.   He observed that Indian Society
           was basically  tolerant  of  human  failings  and  that  it
           respected acquisition  of  wealth  by  whatever  means.  He
           referred  also  to  facts  and   figures   concerning   the
           increasing  criminalisation  and  the  increasing number of
           crimes committed at every succeeding election.  He referred
           to the increasing electoral malpractices with every passing
           election.  He pointed out that while in  1957,  repoll  was
           ordered  only  in 65 booths, in 1989 it was ordered in 1670
           booths.  He pointed out that in 1991, in Bihar alone repoll
           was ordered in 1046 booths and in 2173 booths in 1996.   He
           suggested  strong  measures  to  arrest  the  trend towards
           criminalisation of  politics  and  elections.    Shri  V.R.
           Reddy,  Senior  Advocate  and  former  Additional Solicitor
           General extended qualified support to the proposals of  the
           Law Commission  in  this  behalf.    According to him, this
           amendment did not really provide the solution insasmuch  as
           the police was not willing to take action against criminals
           because of the nexus between politicians and criminals.
           
           5.2.1.	Strong   opinion   were   expressed   by    several
           participants  at the National Seminar about the politicians
           taking the help of  criminals  not  only  at  the  time  of
           elections but even at other times, as well as to the direct
           entry of  criminals  themselves  into politics.  One of the
           suggestions was that the antecedents and  history  as  also
           the  assets  of  each  candidate  at  an election should be
           published  in  newspapers  before  their   nomination   was
           accepted.

           5.2.2	Certain  participants  in the seminars at Bangalore
           and  Trivandrum  suggested   compulsory   introduction   of
           electoral voting machines to check the role of criminals at
           the time  of  elections.    It was also suggested that if a
           person was convicted of an electoral  offence  provided  in
           the  Act or in the IPC, substantial fines should be imposed
           upon him which should be in lakhs and commensurate with his
           capacity.
           
           5.2.3	In the responses received from various persons  and
           organisations  pursuant to circulation of our working paper
           also, there has been a sharp difference of opinion.   While
           some persons opposed the proposal to disqualify the persons
           on  the  basis of framing of charges, some others supported
           it.  One of the proposals made by one of  the  respondents,
           Shri P.V.  Nam Joshi, is that if charges are framed against
           a  candidate,  the  political party should itself be placed
           under a statutory obligation to treat him  as  disqualified
           from candidature  and  should not give ticket to him.  Shri
           C.K.  Jain, former Secretary-General, Lok Sabha agreed with
           the Law Commission and suggested that as  soon  as  charges
           are  framed,  the person, if already a member of the House,
           should straightaway  stand  disqualified.    Certain  other
           responses suggested that the disqualification on the ground
           of  framing  charges  should  be restricted only to serious
           offences  like  murder,  dacoity,  theft,  rape  and  other
           offences involving moral turpitude and offences against the
           State.   Certain  other  responses  suggested  inclusion of
           section 498A (of IPC) in the list of offences mentioned  in
           sub-section (1).
           
           5.2.4	Shri V.R.    Krishna  Iyer,  an  eminent jurist and
           former Judge of the  Supreme  Court  strongly  opposed  the
           amendment of  section 8.  He opined that there should be no
           short-cuts nor should the State resort  to  any  short-cuts
           even for achieving desirable goals.
           
           5.2.5	All  the persons who opposed the proposed amendment
           of  section  8(1)  expressed  apprehension  that   such   a
           provision  may  be  taken  advantage  of and misused by the
           party in power and would seek to involve its opponents  and
           leaders  of  other political parties in criminal cases just
           on the eve of the elections.  While, it is  true  that  the
           charges are framed by the court, the objectors pointed out,
           the  charges  are  framed only on the basis of the material
           placed by the prosecution before the court.  By that  time,
           they  explained,  the  version  or  the case of the accused
           would not have come before the court  nor  the  prosecution
           witnesses would have been cross-examined.
           
           5.2.6	We  have  also  taken  notice of the opinion of the
           Election Commission of India  suggesting  that  framing  of
           charges  should form the basis for a disqualification under
           section 8.
           
           5.3	Analysis   of  views.-  Having  given  our  earnest
           consideration to the issue, we are of the opinion that  the
           proposal  put  forward  by  us  should  be  reiterated  and
           affirmed but with certain changes.    The  changes  we  are
           making are the following:  (a) section 8 shall remain as it
           stands  now; (b) the electoral offences and offences having
           a bearing upon the conduct of elections under sections 153A
           and 505 IPC and serious offences punishable with  death  or
           life  imprisonment shall be put in a separate section viz.,
           section 8B.  Section 8B (proposed) provides that framing of
           charges shall be a  ground  of  disqualification  but  this
           disqualification shall last only for a period of five years
           or  till  the  acquittal  of  the  person of those charges,
           whichever event happens earlier.  (In case such  person  is
           convicted  for  any of the offences mentioned in section 8B
           (proposed) he gets disqualified under  section  8).    This
           course  we  are  adopting  for  the  reason  that  a person
           committing election offences or serious offences punishable
           with life  imprisonment  should  be  disqualified  even  if
           charges are  framed  against  him by the court.  It must be
           remembered  in  this  context   that   persons   committing
           electoral   offences   or  election  related  offences  are
           generally influential persons or persons having the backing
           of influential persons.  So far as offences punishable with
           life imprisonment are concerned, they seriously affect  the
           public and  very  often  involve  moral turpitude.  In this
           connection, we feel constrained  to  make  certain  remarks
           about  the  criminal  judicial system of this country which
           has also become extremely corrupt at certain  levels.    In
           several  instances,  offences  are registered merely with a
           view to  pressurise  the  persons  to  pay  bribes  to  the
           investigating agencies  and  then  the case is closed.  The
           real  offenders  are  quite  often  left  untouched  either
           because  they  are  capable  of  bribing  the investigating
           agencies or able to pressurise them in  various  well-known
           ways.   So  far as the prosecuting agency is concerned, the
           appointment  process  of  public  prosecutors   and   other
           prosecutors  in  criminal courts has also become thoroughly
           politicised.  Appointments are no longer made on the  basis
           of  merit  but almost exclusively on the basis of political
           affiliations.  It is a common phenomenon in the  States  to
           see  the  public  prosecutors  and the government advocates
           changing with every change of government - not merely  when
           a  different political party comes into power but also when
           the incumbent in  the  office  of  chief  minister  changes
           within the   same   political   party.      Such   kind  of
           appointments, coupled with frequent changes (leaving  short
           terms  at  the disposal of the incumbents), is keeping away
           people with merit from these offices.    No  advocate  with
           merit  and  having  some  work, is prepared to accept these
           offices  because  they  have  become  too  precarious   and
           dependent  upon  the  whims  and  fancies  of the political
           bosses.  Efficiency and integrity have both  become  scarce
           in many  of  the  holders  of these offices.  So far as the
           witnesses are concerned, the inordinate delays in  bringing
           the accused  to  trial  is  acting as a damper.  Very often
           witnesses are won over, threatened or otherwise pressurised
           not to speak the truth.  If their evidence is recorded soon
           after the offence, more often than not, they will speak the
           truth.  But if there is an interval of a year or more which
           is invariably the case now-a-days -  they  become  weak  in
           their resolve to uphold the truth and succumb to pressures.
           Lastly,  so  far  as  the  judges are concerned, the common
           complaint heard is that  inefficiency,  and  corruption  in
           some  cases  have both unfortunately made an entry into the
           hitherto sacred portals of judiciary.
           
           5.3.1	The  real  fault  lies  in the fact that the Indian
           State has become very `soft'.  There is no respect for  law
           either in  the  bureaucracy  or  among  the citizens.  Many
           people indeed take pride and pleasure in violating the  law
           and in  boasting  of their violations.  People appreciate a
           person who carries on business without paying taxes.    His
           skill  is  admired,  little  realising the great harm he is
           causing to the society.  In USA, not paying taxes correctly
           is immediately visited with a jail term.    A  few  decades
           ago,  a  corrupt  man  was  generally  timid  and afraid of
           situations  where  his  misdeeds  may  be  talked   of   or
           questioned.  Today,  that is not the situation.  Corruption
           is open and brazen and has the sanction of a section of the
           public, if not of the public as a whole.  Several campaigns
           and movements for eradicating  corruption  have  not  borne
           fruit.   It  is  necessary  to  take  stringent measures to
           enforce the law, punish and impose maximum punishments  for
           every violation  of offence.  To start with, people must be
           made aware that the law is  there  to  follow  and  not  to
           flout.   Methods  must be found and implemented eradicating
           political interference with the police and  administration.
           The weapon of transfer must be taken away from the hands of
           political executive.    The  political  executive should be
           confined to laying down the  policies  and  performance  of
           those functions as are conferred upon it by law.  It should
           have  no  say  in  the  matter  of performance of statutory
           functions by statutory authorities.  Even in the matter  of
           administration   of  the  government,  the  discretion  and
           judgment  of  the  officers  should  be  respected  by  the
           government while  taking  decisions.  At the same time, the
           anti-corruption laws must be stringently enforced  and  the
           trials promptly  concluded.   One of the measures suggested
           in this behalf by the Law Commission has been the enactment
           of  a  legislation  called  "The  Corrupt  Public  Servants
           (Forfeiture  of  Property)  Act"  [166th  Report of the Law
           Commission].   The  provisions  contained  in  the  "Benami
           Transactions  Act"  relating  to  seizure and forfeiture of
           benami properties  should  also  be  enforced  without  any
           delay.    The   Central  Vigilance  Commissioner  has  been
           repeatedly asking for enforcement of  the  said  provisions
           and  also  for the enactment of the legislation recommended
           by the Law Commission in its 166th Report.   Starting  with
           the  smallest  of  the  offences  like  throwing  litter in
           streets, parks  and  public  places  and  not  obeying  the
           traffic   rules   to   major   offences   like  corruption,
           misappropriation of public funds  and  dacoity  should  all
           merit maximum  permissible sentence, as a general rule.  It
           is only  by  this  weapon  that  respect  for  law  can  be
           inculcated in the society and in the administration.  India
           must get  out  of this `soft state syndrome'.  Otherwise no
           meaningful development is possible  and  there  can  be  no
           improvement in the governance of this country.
           
           5.4	Conclusion.- Accordingly, we recommend that section
           8B  (as  proposed  by  us  and  as  set out hereinbelow) be
           enacted.
           
            "8-B.	Disqualification on framing of  charge  for
                   certain offences.- A person against whom charge has
                   been framed under:- (a) section 153A, section 171E,
                   section  171F,  section 171G, section 171H, section
                   171I, sub-section (1) or sub-section (2) of section
                   376, sub-section (2) or sub-section (3) of  section
                   505 of the Indian Penal Code (45 of 1860); or
            (b)  sections  10  to 12 of the Unlawful Activities
                   (Prevention) Act, 1967 (37 of 1967); or
            (c) the penal provisions of the Narcotic Drugs  and
                   Psychotropic  Substances  Act,  1985  (61  of 1985)
                   except section 27 thereof; or
            (d) section  125,  section  135,  section  135A  or
                   sub-section (2) of section 136 of this Act; or
            (e)  any other offence punishable with imprisonment
                   for life or death under any law,
           
            shall be disqualified for a period  of  five  years
                   from the date of framing the charge, provided he is
                   not acquitted of the said charge before the date of
                   scrutiny notified under section 36 of this Act."
           
           	We  also  reiterate  the  proposals  to enhance the
           punishment for various electoral offences mentioned in  the
           R.P.  Act as well as in the Indian Penal Code.  All of them
           are  electoral offences and seriously interfere with a fair
           electoral process.   They  foul  the  electoral  stream  by
           letting  in  all  kinds  of  distortions and evils into the
           electoral system and finally into our  body-politic.    The
           punishments  at present provided are totally inadequate and
           are ridiculously low, hence need to be enhanced.
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       PART VI
            CHAPTER I
            Other Proposals in the Working Paper
           
           6.1.1.	In this part  we  shall  deal  with  certain  other
           proposals  put  forward in Annexure I of our working paper.
           They are:
           
           (a)	Deletion of sections 11 and 11B of the R.P.  Act.
           
           (b)	Amendment of section 33 of  the  R.P.    Act.    By
           introducing  sub-section  (7), it was sought to be provided
           that no person shall be entitled to contest  simultaneously
           from  more  than one parliamentary constituency or assembly
           constituency, as the case may be.   Similar  provision  was
           suggested  with  respect  to  the  Council  of  States  and
           Legislative Councils and even in bye-elections.
           
           (c)	Amendment of section 34  raising  deposits  in  the
           case   of   independent   candidates   and   candidates  of
           unrecognised political parties.
           
           (d)	Amendment of section 58A in certain respects.
           
           (e)	Amendment of section 62 by inserting a proviso.
           
           (f)	Amendment  of  section  78  reducing   the   period
           prescribed  for  filing the account of election expenses by
           the contesting candidates from 30 days to 15 days.
           
           (g)	Amendment of sections 81, 86  and  87  relating  to
           trial of election petitions.
           
           (h)	Amendment  of  section  97  in  the  light  of  the
           decision of the Supreme Court in Bhag Mal v.   Parbhu  Ram,
           AIR 1985 SC 150.
           
           (i)	Insertion of new sections 98A and 98B.
           
           (j)	Amendment of section 107.
           
           (k)	Amendment of section 116A.
           
           (l)	Omission  of  the  proviso  to  sub-section  (7) in
           section 123.
           
           (m)	Insertion of a new chapter II in part 7 of the R.P.
           Act, relating to `Illegal Practices'.
           
           (n)	Insertion of section 126A.
           
           (o)	Insertion of another proviso to section 151A.
           
           (p)	Insertion of new section 162A.
           
           	(It  may  be  mentioned  that  the  proposals  with
           respect  to  enhancing the punishments provided by sections
           127, 134B, 135 and 136 of the R.P.    Act  and  by  various
           offences  in  chapter  IXA  of the Indian Penal Code, 1860,
           have already been  affirmed  and  recommendations  made  to
           implement the same.)
           
           6.1.2.	So  far  as  the  proposals  under  (a)  to (p) are
           concerned, no objection has been taken to any of  the  said
           proposals by anyone, except with respect to the proposal to
           enhance  the  deposit  in  the  case  of  independents  and
           candidates of unrecognised political parties  (by  amending
           section 34 of  the  Act).   Shri Justice V.R.  Krishna Iyer
           strongly opposed the said proposal on the ground that  such
           a  provision would discourage not only the independents but
           unrecognised  political   parties   from   contesting   the
           elections on an equal footing with the recognised political
           parties.   The  Law Commission is, however, unable to agree
           with the opinion of Justice Iyer, notwithstanding the great
           respect we have for his views.  there  have  been  numerous
           instances  in the past where scores of independents entered
           the election fray for various oblique reasons.  In case  of
           certain constituencies, the number of contesting candidates
           was anywhere  between  30  to  50.   The matter had reached
           ridiculous proportions.  The ballot paper had to be as  big
           as a  newspaper  sheet.    Apart from the fact that most of
           these independent candidates are  not  serious  candidates,
           the  very  principle  of  parliamentary  form of government
           requires that independents should not be encouraged.    The
           facts  and  figures  relating  to previous elections to Lok
           Sabha or, for that matter, to Legislative Assemblies,  show
           that the percentage of independent candidates succeeding is
           approximately 0.3%  in  the  case of Twelfth Lok Sabha.  As
           stated earlier, in Dhartipakar v.  Rajiv Gandhi,  AIR  1987
           SC 157, the Supreme Court also recommended to Parliament to
           devise  ways and means to meet the onslaught of independent
           candidates  who  are  not  serious  about  their  business.
           Enhancing  the deposits could have been one method by which
           such independent candidates and candidates of  unrecognised
           political  parties  could  be discouraged from entering the
           election fray in a lighthearted and casual  manner  or  for
           oblique reasons.    We  have,  however,  gone  further  and
           decided to recommend in chapter III of Part III above  that
           independent candidates should be altogether eliminated from
           the  political  scene in India and thereby pave the way for
           meaningful electoral reforms.  In such a case, amendment of
           section 34 as suggested by us is unnecessary.
           
           6.1.3.	Conclusion.-  Accordingly,  we  reiterate  all  our
           recommendations with respect to the matters mentioned under
           (a), (b)  and  (d)  to  (p)  of para 6.1.1., supra.  We may
           mention that the proposal to amend section 34 (raising  the
           deposit  in  the  case  of independent candidates) has been
           dropped by us in view of our  other  recommendations  viz.,
           barring  the  independent candidates and the requirement of
           obtaining 5% (of the valid votes cast) by a political party
           to  enable  it  to  obtain  a  seat  in  Lok  Sabha  or  in
           Legislative Assembly.
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            CHAPTER II
           Procedure  visualised  for  prosecution  in case of perjury
           during judicial proceedings
           
           6.2.1.	Existing  procedure  under  the  Code  of  Criminal
           Procedure, 1973:- Under the Code of Criminal Procedure, the
           relevant  provisions  can be found under section 195(1)(b),
           sections 340, 341, 342,  343  and  344.    They  deal  with
           matters  relating  to  perjury and giving of false evidence
           before courts during judicial proceedings.
           
           6.2.2.	A perusal of section 195(1)(b) shows that  offences
           under  sections  193 to 196 (both inclusive), 199, 200, 205
           to 211 (both inclusive) and section 228 as  well  as  those
           falling  under section 463, 471, 475, 476 of the IPC, shall
           not be taken cognizance by a court except on the  complaint
           in writing of that court, or some other court to which that
           court in subordinate.
           
           6.2.2.1.Section  340 lays down the procedure for initiating
           the  proceedings  for  prosecuting  the  persons  for   the
           offences mentioned   in  section  195.    This  section  is
           intended to be complementary to section 195.  Whether,  suo
           motu or on an application by a party, a court being already
           seized  of a matter under section 340(1) may be tentatively
           of opinion  that  further  action  against  some  party  or
           witness may  be  necessary  in the interest of justice.  In
           such a proceeding, the reasons recorded  in  the  principal
           case in which a false statement has been made, have a great
           bearing.  Thus in an enquiry under section 340(1), the only
           question  is  whether a prima facie case is made out which,
           if  unrebutted,   may   have   reasonable   likelihood   of
           establishing  the  specified  offence  and  whether  it  is
           expedient in the interest of justice to take  such  action.
           The court concerned may, after holding preliminary enquiry,
           if any, as it thinks necessary-
           
           (a)	record a finding to that effect
           (b)	make a complaint thereof in writing
           (c)	send it to a magistrate of the first class having	
           jurisdiction
           (d) take  sufficient security for the appearance of the
                   accused before such magistrate, or if  the  alleged
                   offence  is  non-bailable  and  the court thinks it
                   necessary so to do, send the accused in custody  to
                   such magistrate and
           (e) bind  over  any  person to appear and give evidence
                   before such magistrate
           
           6.2.3.	Under sub-section (3) of section  340  a  complaint
           made under this section shall be signed -
           
           (a) where  the  court  making  the  complaint is a High
                   Court, by such officer as the court may appoint;
           (b) in any other case, by the presiding officer of  the
                   court.
           
           6.2.2.4.Section  343 lays down the procedure to be followed
           by a magistrate taking cognizance.  Under  sub-section  (1)
           of  section 343, it is provided that a magistrate to whom a
           complaint  is  made  under  section  340  or   341   shall,
           notwithstanding  anything contained in chapter XV, proceed,
           as far as may be, to deal with  the  case  as  if  it  were
           instituted on a police report.
           (emphasis supplied)
           
           6.2.2.5.Section  344  enacts  a summary procedure for trial
           for giving false evidence where the court does  not  choose
           to proceed  under  section  340  of  the  CrPC.  Under this
           section before the punishment is imposed, the offender  has
           to  be  given a reasonable opportunity of showing cause why
           he should not be punished for such offence.    The  maximum
           punishment  laid  down is imprisonment upto three months or
           fine upto Rs.500/- or both.
           
           6.2.2.6.Section 345 lays down procedure in certain cases of
           contempt.
           
           6.2.3.	There is a general tendency on the part  of  Courts
           to  avoid  making  complaints  even  against persons giving
           false depositions or launching false prosecutions.  In  our
           recent  report  on the Code of Civil Procedure, 1908, while
           referring to a Supreme Court decision, it was observed that
           no court can avoid taking action against persons who submit
           false affidavits in the courts or give false evidence.   In
           order  to  curb  the  tendency  to  give  false evidence in
           judicial  proceedings,  it  is  essential   that   frequent
           recourse  should  be  taken  by  courts  to  the  aforesaid
           provisions so that  persons  making  false  depositions  or
           pursuing  false  prosecutions  are  deterred from doing so.
           This object can be achieved if presiding officers of courts
           are not required to personally file  the  complaint  before
           the Magistrates  of  first  class.    Many  times presiding
           officers avoid taking recourse to the prescribed  procedure
           as they wish to avoid the possibility of their being called
           as a witness in such proceedings.
           
           6.2.4.	Conclusion  -  In  order to remove this unnecessary
           hurdle, it is essential that the existing provisions  under
           sections 195(1)(b), and 340(3)(b) of CrPC be substituted as
           follows:-
           
           For   section   340(3)(b),  the  following  clause  may  be
           substituted:-
           	"(b) In any other case, by the presiding officer of
           the Court, or by such ministerial officer as the Court  may
           designate in this behalf".
           
           6.2.5	Accordingly,   section  195(1)(b)  should  also  be
           amended by inserting before the words  "or  of  some  other
           Court"  and  after  the  words  "except on the complaint in
           writing of that Court, the following words:-
           
           	"or by such ministerial officer as  the  Court  may
           designate in this behalf".
           
           6.2.6.	In  view  of  the  proposed  insertion of the words
           stated above, the Court before which the false evidence was
           given or false prosecution was launched, will be  generally
           relieved of the anxiety that they may possibly be called to
           give evidence  during  trial  before  the Magistrate.  Such
           deposition on behalf of the Court can then be given by such
           ministerial officer as the  Court  may  designate  in  this
           behalf.
           
           6.2.7	Under  section  294,  no  formal  proof  of certain
           documents is required.  Thus in general the judicial record
           may be read in evidence as such.  The proposed  amendments,
           it  is  felt  could achieve the object of deterring persons
           from initiating false prosecutions.  These amendments  will
           be   particularly   appropriate   in  matters  relating  to
           disqualifications  under  proposed  section  8B  to   guard
           against abuse  of  the  said provision.  In course of time,
           provisions of CrPC could also be amended on the above lines
           to deter launching of false cases.
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            CHAPTER III
           
            Ineligibility of  candidates  to  contest  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 against himself or herself.
           
           6.3.1	There has been mounting corruption in all walks  of
           public life.   People are generally lured to enter politics
           or contest elections for getting rich  overnight.    Before
           allowing  people  to  enter  public  life, the public has a
           right to  know  the  antecedents  of  such  persons.    The
           existing  conditions  in  which people can freely enter the
           political  arena  without  demur,  especially  without  the
           electorate   knowing   about  any  details  of  the  assets
           possessed by the candidates are far from satisfactory.   It
           is  essential  by  law  to provide that a candidate seeking
           election shall  furnish  the  details  of  all  his  assets
           (movable/immovable)  possessed  by  him/her,  wife/husband,
           dependent relations, duly supported by an affidavit.
           
           6.3.2	Further, in  view  of  recommendation  of  the  Law
           Commission  for  debarring  a  candidate from contesting an
           election if charges have been framed against him by a Court
           in respect of offences mentioned in the proposed section 8B
           of the Act, it is also necessary for a candidate seeking to
           contest election for  furnish  details  regarding  criminal
           case,  if any, pending against him, including a copy of the
           FIR/complaint and any order made by the concerned court.
           
           6.3.3	In order to achieve the aforesaid objectives, it is
           essential to insert a new section 4-A  after  the  existing
           section 4 of the Representation of the People Act, 1951, as
           follows:-
           
            "4-A.  Qualification for membership of the House of
                   the  People,  the  Council  of  States, Legislature
                   Assembly of a State or Legislative Council
           
            A  person  shall  not  be  qualified  to  file  his
                   nomination  for  contesting any election for a seat
                   in the House of the People, the Council of  States,
                   Legislative  Assembly  or  Legislative Council of a
                   State unless he or she files -
           	(a) a   declaration   of   all    his    assets
                           (movable/immovable)  possessed  by him/her,
                           his/her  spouse  and  dependent  relations,
                           duly supported by an affidavit, and
           	(b) a  declaration  as to whether any charge in
                           respect  of  any  offence  referred  to  in
                           section  8B  has been framed against him by
                           any Criminal Court."
           
           6.3.3.1	The consequential changes will be  required  to  be
           carried  out in Forms 2A to 2E prescribed by the Conduct of
           Election Rules, 1961 to bring these in conformity with  the
           amendments  recommended in the Representation of the People
           Act, 1951.  Accordingly, it is recommended  that  following
           clauses  be  inserted as clauses (d) and (e) in forms 2A to
           2E.  Consequently, the existing clause (d) therein shall be
           designated as clause (f):
           
           (e) that the  statement  of  assets  enclosed  to  this
                   nomination  paper  represents  the true and correct
                   statement of all the assets, movable and immovable,
                   held/owned  by  me,   my   spouse   and   dependent
                   relations.   An affidavit affirming the correctness
                   of the said statement  is  also  appended  to  this
                   nomination paper.
           
           (f) that  no criminal court has framed a charge against
                   me in respect of any of the offences  mentioned  in
                   section  8B of the Act and that no trial in respect
                   of charges of the said offences is pending,
           	or
            that a charge has been framed  against  me  by  the
                   court of _____________ in the case No.  ________ on
                   ___________   (date)   in   respect  of  offence(s)
                   punishable under sections ______________  mentioned
                   in section 8B and trial is pending against me,
           	or
            that  though  charge  was  framed against me by the
                   court of ___________________ in the case  No.______
                   on  ____________  (date)  in  respect of offence(s)
                   punishable under sections ____________ mentioned in
                   section 8B, I have since been acquitted of the said
                   charge  by   order   _____________   (date)   (copy
                   enclosed).
           
           	Moreover,  the  words  "that  I  am contesting this
           election as an independent candidate" in forms  2A  and  2B
           should be deleted.
           
     TOP.gif (1292 bytes)       PART VII
           Need for urgent measures to instil stability in  governance
            and for improving the electoral system
           
           7.1	In this part, we shall deal with  (A)  measures  to
           instil   stability   in   governance  within  the  existing
           constitutional system and (B) certain other suggestions for
           improving the electoral system.  Though  the  proposals  in
           this  behalf were not put forward in our working paper, the
           matters discussed herein have been  the  subject-matter  of
           intense  and  widespread  public  debate  and  appear to be
           essential to redress the several weaknesses which have come
           to light in the recent years  in  the  governance  of  this
           country.  We proceed to discuss these issues.
       TOP.gif (1292 bytes)    
           CHAPTER I 
            Stability in governance
           
           7.1.1	First  Measure.-  The  proliferation  of  political
           parties - almost a mushroom growth  -  over  the  last  few
           decades, necessitating the formation of coalitions with all
           their  internal  contradictions,  pulls  and pressures, has
           contributed to instability in the governance.  This has  to
           be checked.      A   parliamentary  democracy  can  be  run
           successfully only if there are two or three parties.   U.K.
           has three  parties,  U.S.A.  only two and Germany has four.
           Multiplicity of parties is not good for  the  health  of  a
           democracy.    The   French   had   bitter  experience  with
           `revolving door'  coalitions  and  eventually  changed  the
           system.   Italy is having the same problem where it is said
           that over the last 50 years, there have been more  than  40
           governments.   In  our  own country, we have had an unhappy
           experience with coalition governments.  In the  last  three
           years, we have had three governments, all of which fell for
           reasons inherent  in such coalitions.  All this brings home
           the urgency of rectifying this state of affairs.   Already,
           there are strident voices, some of them emanating from very
           high  and  reputed  quarters,  in  favour of switch-over to
           presidential form of government.  That is an issue  outside
           the scope  of  the present report.  Herein we are confining
           ourselves  to  solutions  within  the  parameters  of   the
           existing constitutional system.
           
           7.1.2	Conclusion.-  One of the solutions, we have already
           recommended in chapter II  of  Part  III  viz.    that  any
           political  party  which  obtains  less than 5% of the total
           valid  votes  cast  in  the  parliamentary  election  or  a
           Legislative Assembly election, shall not be entitled to any
           seats in the Lok Sabha or Legislative Assembly, as the case
           may be,  even  if  it  wins  any  seat  or  seats.   Such a
           provision would lead to polarisation  among  the  political
           parties  and  to formation of larger political parties by a
           process of integration  or  by  formation  of  pre-election
           fronts.  In such a situation, defection of a member of such
           constituent  party  of  the  pre-election  front  or of the
           constituent party as a whole from  the  pre-election  front
           should  be treated as defection attracting the provision of
           the Tenth Schedule to the Constitution.
           
           7.1.3	Second  Measure.-  Another  measure  which  can  be
           thought of to introduce stability in governance is to amend
           Rule  198  of Rules of Procedure and Conduct of Business in
           the Lok  Sabha.    But  before  we  set  out  the  proposed
           amendment,  it is necessary to notice the relevant context.
           In a parliamentary form of government, the  government  has
           no fixed  term.    Though  its term is co-terminus with the
           life of the House, it can be defeated or it  may  fall,  on
           many counts.    For  example, a defeat on a money bill or a
           cut motion will, according to  conventions  established  in
           U.K.   and  followed  in  this  country  would  oblige  the
           government to resign.  It is indeed  a  case  of  rendering
           accountability on   a  daily  basis.    At  any  time,  the
           opposition can bring a no-confidence motion and  if  it  is
           approved by  the  House,  the government has to resign.  In
           view of what has happened at the Centre in 1979,  1990  and
           in the recent years, it should make us all think of ways to
           avoid repetition   of   such   situations.    In  1999,  in
           particular, the government was defeated on the  `confidence
           motion' moved by the government but no alternate government
           could  be  formed,  making  a  general  election inevitable
           within a  span  of  13  months.    It  has  made  us   hold
           parliamentary elections  almost  every year.  It is neither
           good for the country nor for the political  parties.    The
           governance  and  economy are the first casualties of such a
           transfiguration.  There is a danger  that  such  situations
           may  lead  to  public disenchantment with the parliamentary
           form of government.  There are already strident voices  for
           changing over  to  a  presidential  form of government.  We
           are,  however,  not  going  into  the  question  whether  a
           presidential  form  of  government  should be introduced by
           making the necessary changes in the Constitution.   We  are
           thinking  of  solutions  within the existing constitutional
           system, though as we shall indicate presently, it does mean
           abandoning  some   of   the   conventions   governing   the
           parliamentary  form  of  government  and  which  are  being
           followed in this country too till now.    We  must  clarify
           that the proposed amendment to the aforementioned Lok Sabha
           Rules   does   not   violate   any  of  the  constitutional
           provisions, but it certainly means modification of  certain
           conventions developed  in U.K.  and followed in our country
           since 1950.  Article 67 of the Basic Law  for  the  Federal
           Republic of Germany lays down:-
           
            "Article 67 (constructive vote of no confidence):-
           
            (1)   The   Bundestag   may  express  its  lack  of
                   confidence  in  the  Federal  Chancellor  only   by
                   electing  a  successor  with  the  majority  of its
                   Members and requesting  the  Federal  President  to
                   dismiss the  incumbent.  The Federal President must
                   comply with the  request  and  appoint  the  person
                   elected.
            (2)  Forty-eight  hours  must  elapse  between  the
                   motion and the vote."
           
           	This provision has  the  objective  of  ensuring  a
           stable government.
           
           7.1.3.1	In   his  article  in  the  Hindustan  Times  dated
           13.5.99,  page  13,  Shri  Pran  Chopra  suggested  a   few
           electoral reforms.    The  first reform he has advocated is
           the innovation of simultaneous votes  of  no-confidence  in
           the incumbent  and confidence in the alternative.  It would
           eliminate the need for a mid-term poll.  He has opined:-
           
            "That a government should seek a vote of confidence
                   is  an  innovation,  but  justified  by  the   very
                   circumstances  in  which  that government came into
                   being, on  the  basis  of  written  commitments  of
                   support, and the written withdrawal of one of them.
                   But  the  proposed innovation of simultaneous votes
                   of no-confidence in the incumbent and confidence in
                   the alternative would be  much  safer.    It  would
                   eliminate the  need  for a mid-term poll.  It would
                   also be more democratic, because it would shift the
                   process of finding  an  alternative  to  the  place
                   where the  process  belongs,  namely Lok Sabha.  It
                   would  also  restore  to  the  President,  in   its
                   fullness,  his  truer and greater function of being
                   the trusted counsellor of the government, with  the
                   trust   unimpaired   by  how  the  successor  Prime
                   Minister might have been chosen."
           
           7.1.3.2	As a matter of fact, similar  suggestion  has  been
           put  forward  by  several  other eminent public figures for
           ensuring stability of the governments and to avoid mid-term
           polls before expiry of term of the House.
           
           7.1.4	Conclusion.- In our opinion, a new rule, Rule  198A
           should  be introduced in the Rules of Procedure and Conduct
           of Business in the Lok Sabha providing that -
           
           "Rule 198-A	(1) Once a no-confidence motion is taken up
           for discussion and voted upon as contemplated by  sub-rules
           (3) and (4) of Rule 198, no fresh motion expressing want of
           confidence  in  the Council of Ministers shall be permitted
           to be made for a period of  two  years  from  the  date  of
           voting upon such motion.
           
           (2)	Once  a motion expressing confidence in the Council
           of Ministers is made  pursuant  to  the  direction  of  the
           President,  no motion expressing want of confidence in such
           Council of Ministers shall be permitted to be moved  for  a
           period of two years.
           
           (3)	No  leave  shall  be  granted  under  Rule 198 to a
           motion expressing want of  confidence  in  the  Council  of
           Ministers,  unless it is accompanied by a motion expressing
           confidence in  a  named  individual.    Only   the   motion
           expressing confidence in a named individual shall be put to
           vote."
           
           	It  would be appropriate if similar rule is made by
           all the  Speakers  by  amending  the  respective  Rules  of
           Procedure governing their Legislative Assemblies.
       TOP.gif (1292 bytes)    
            CHAPTER II
            Measures for improving the electoral system
           
           7.2.1	Goal  of one election once in five years disrupted.
           The Constitution provides for a federation.  At the Centre,
           there is a Parliament and in the  States  there  are  State
           Legislatures.   To  begin  with, elections to Lok Sabha and
           the Legislative Assemblies in the States  were  being  held
           simultaneously and once in five years.  But then slowly and
           steadily  the  Lok  Sabha  elections  and  the elections to
           Legislative Assemblies got dissociated for several reasons.
           For example, in a case where a State  Legislative  Assembly
           is  dissolved  invoking  the power under article 356 of the
           Constitution  well  before  the  expiry  of  its  term,  an
           election has to be held to that Legislative Assembly within
           the period  prescribed.    Sometimes  it  may happen that a
           particular  Chief  Minister  in  a  State  may  advise  the
           Governor  to  dissolve the Legislative Assembly well before
           the expiry of  its  term  and  if  such  recommendation  is
           accepted  by  the Governor and the Assembly is dissolved, a
           fresh election to that Assembly has to be held  within  the
           period prescribed.    Unfortunately, till about 1994, there
           has been  a  rampant  resort  to  article  356.    In  some
           instances,  as  many  as  six or more State Governments and
           Legislative Assemblies were  dismissed/dissolved  at  once,
           necessitating  elections  to  those  Legislative Assemblies
           soon thereafter.  There have also been instances  when  Lok
           Sabha  was  dissolved  far ahead of the expiry of its term.
           It happened on at least four occasions.  The result is that
           the schedule of Lok Sabha elections and the schedule of the
           elections to Legislative Assemblies has  become  completely
           separated.  The resulting situation can best be illustrated
           by  setting  out  the particulars relating to Lok Sabha and
           the several Legislative Assemblies:
           
           (a)	The XIIth Lok Sabha has been dissolved in the month
           of April 1999 and elections  have  been  notified  to  take
           place in  September-October, 1999.  If so, its term, in the
           normal course would expire in October 2004.
           
           (b)	Elections  to  the  State  Assemblies  of  Mizoram,
           Delhi, Madhya Pradesh and Rajasthan were held in March 1998
           along with  the  Lok  Sabha  elections of 1998.  Their term
           will come to an end in March 2003.
           
           (c)	The  terms  of  Karnataka  and  Sikkim  Legislative
           Assemblies  will  come  to an end on 25th December 1999 and
           28th December 1999, respectively.
           
           (d)	The term of the Legislative  Assemblies  of  Andhra
           Pradesh,  Maharashtra,  Manipur,  Orissa, Arunachal Pradesh
           and Bihar is coming to an end in the year 2000 between  the
           months of  January to April.  To be more precise, the dates
           of expiry of Legislative Assemblies of the said States  are
           10th  January,  21st  March,  21st  March, 22nd March, 23rd
           March and 9th April, 2000 respectively.
           
           (e)	The terms of the Legislative Assemblies of Haryana,
           Tamil Nadu, Kerala, West Bengal, Pondicherry and Assam will
           come to an end during the months of May and June 2001.   To
           be  precise,  the  dates  of expiry are 21st May, 21st May,
           28th May, 9th June, 9th June and 11th June, respectively.
           
           (f)	The term of the Legislative Assemblies  of  Punjab,
           Uttar  Pradesh  and  J  & K is coming to an end in the year
           2002.  To be precise, the dates of expiry of  the  term  of
           these  States  are  2nd March, 25th March and 17th October,
           2002, respectively.  (The term of the J & K Assembly is six
           years.)
           
           (g)	The  term  of   the   Legislative   Assemblies   of
           Meghalaya,  Himachal Pradesh, Gujarat, Nagaland and Tripura
           are all expiring in  the  month  of  March  2003.    To  be
           precise,  the  dates  of  expiry are 8th March, 14th March,
           18th March, 22nd March and 21st March, 2003, respectively.
           
           (h)	The  Legislative  Assembly  of  Goa  was   recently
           dissolved.   The Election Commission has now announced that
           elections to the same will be held on June 4,  1999,  which
           means that its term will expire in June 2004.
           
           7.2.1.1	In  other  words, we are going to have elections to
           Legislative Assemblies in each  of  the  next  five  years,
           unless  of course, the Legislative Assemblies of Karnataka,
           Sikkim,  Andhra  Pradesh,  Maharashtra,  Manipur,   Orissa,
           Arunachal Pradesh and Bihar are dissolved before the expiry
           of their term and elections to those Legislative Assemblies
           is  held along with the elections to Lok Sabha likely to be
           held in September-October 1999.  Even then, there  will  be
           elections  to  six  Legislative  Assemblies  in 2001, three
           Legislative Assemblies in 2002, nine Legislative Assemblies
           in 2003 and one Legislative Assembly (Goa) in 2004.   Again
           in 2004, all things being equal, the elections to Lok Sabha
           will fall  due towards the end of that year.  This cycle of
           elections every year, and in the out of season,  should  be
           put an  end to.  We must go back to the situation where the
           elections to Lok Sabha and all the  Legislative  Assemblies
           are held  at  once.   It is true that we cannot conceive or
           provide for all the situations and  eventualities  hat  may
           arise  whether  on account of the use of article 356 (which
           of course has come down substantially after the decision of
           Supreme Court in S.R.  Bommai v.  Union of  India)  or  for
           other  reasons, yet the holding of a separate election to a
           Legislative Assembly should be an  exception  and  not  the
           rule.   The  rule  ought  to  be `one election once in five
           years for Lok Sabha and all the Legislative Assemblies'.
           
           7.2.2	Conclusion.- Undoubtedly, the desired goal  of  one
           election  in  every five years cannot be achieved overnight
           in the given circumstances.   It  has  to  be  achieved  in
           stages.    For   example,   the  elections  to  Legislative
           Assemblies   of   Karnataka,   Sikkim,   Andhra    Pradesh,
           Maharashtra,  Manipur,  Orissa, Arunachal Pradesh and Bihar
           should be advanced, by making necessary orders, and be held
           along with the elections to Lok Sabha in September-October,
           1999.  The next step ought to be to have the  elections  to
           the  Legislative Assemblies of Haryana, Tamil Nadu, Kerala,
           West Bengal, Pondicherry and Assam (where elections are due
           in May and June, 2001) and to the Legislative Assemblies of
           Punjab and Uttar Pradesh (where elections are due in March,
           2002) simultaneously  sometime  in  May,  2001.     Similar
           adjustments  may  have  to be made in future with a view to
           achieve the desired goal of one election for Lok Sabha  and
           to all  the  Legislative Assemblies simultaneously.  If all
           the political parties co-operate, the necessary steps, some
           of which are indicated hereinabove, can  be  taken  without
           hurting the  interest  of  any  political party.  May be, a
           constitutional amendment can solve the problem.    Such  an
           amendment  can also provide for extending or curtailing the
           term of one or more  Legislative  Assemblies  say  for  six
           months  or  so wherever it is necessary to achieve the said
           goal.  However, if feasible, more appropriate solution  may
           be  to  hold  elections to Lok Sabha/Legislative Assemblies
           simultaneously but to withhold  the  results  of  elections
           till  after  the expiry of term of the Legislative Assembly
           concerned - the interval not exceeding six  months.    This
           suggestion  was made by the Chief Minister of Karnataka who
           stated:  "the Election Commission could not take unilateral
           decision  but  only  in   consultation   with   the   State
           Governments  concerned  on holding simultaneous elections".
           (The Hindu, 14.5.99, p.5)
           
           	In Law  Commission's  view,  the  above  suggestion
           needs to be seriously explored.
           
           7.2.3	another  associated idea being debated seriously in
           several fora is how to assure a fixed, unalterable term  to
           Lok Sabha  and  the  Legislative  Assemblies.    This is of
           course a major issue which can be considered if and when  a
           review of  the  Constitution  is  undertaken.   The subject
           cannot be dealt with  within  the  existing  constitutional
           parameters and hence is not dealt with in this Report.
           
           7.2.4	Use  of  Electronic  Voting Machine Desirable:- The
           idea of electronic voting machines and identity  cards  for
           all  voters,  initiated by the Election Commission sometime
           ago, is a highly desirable step.  The introduction of these
           two steps would  go  to  make  the  election  process  more
           simple, transparent  and  fair.  Introduction of electronic
           voting machines would also dispense with  the  printing  of
           ballot  papers  which involves substantial amount of public
           money and time.  The  printing  of  ballot  papers  can  be
           undertaken  only after the list of contesting candidates is
           published under section 38 of the R.P.  Act and printing of
           crores of ballot papers  within  a  short  time,  with  due
           secrecy and   security,   is   a   major   exercise.    The
           introduction of electronic voting machines would enable the
           Election Commission  to  dispense  with  the  printing  and
           distribution of  ballot  papers.    It  would  also help in
           curtailing the period between the date  of  publication  of
           the  list of contesting candidates (under section 38 of the
           Act) and the date  of  polling.    The  reduction  of  this
           period, may be even to one week, would help in reducing the
           expenditure   incurred  by  the  candidates  and  political
           parties  on  election   campaign   and   other   incidental
           expenditure.
           
          TOP.gif (1292 bytes)  PART VIII
            An alternative method of election
           
           8.1	In  the  working  paper,  we  had  set  out  in the
           Appendix, "An alternative method of  election".    Such  an
           alternative  method  of  election  was suggested by certain
           eminent persons with long experience in public life.   This
           method  goes  a  long  way in ensuring purity of elections,
           keeping out criminals and other  undesirable  elements  and
           also  serves  to  minimise the role and importance of caste
           and religion.  The said method was set out in  the  working
           paper as under:
           
            "the idea  is  this:    (a)  no candidate should be
                   declared elected unless he obtains at least 50%  of
                   the  votes cast; (b) the ballot paper shall contain
                   a column at the end which can be marked by a  voter
                   who  is  not  inclined  to  vote  for  any  of  the
                   candidates on the ballot  paper,  which  is  called
                   hereinafter as  `negative vote'.  (A voter can cast
                   a negative vote only when he  is  not  inclined  to
                   vote  for  any  of  the  candidates  on  the ballot
                   paper); (c) for the  purposes  of  calculating  the
                   fifty  per  cent  votes of the votes cast, even the
                   negative votes will be treated as `votes cast'; (d)
                   if no person gets 50% or  more  votes,  then  there
                   should  be  a  `run-off'  election  between the two
                   candidates receiving the highest number  of  votes;
                   (e)  in the run-off election too, there should be a
                   provision for a negative vote and even  here  there
                   should  be  a  requirement that only that candidate
                   will be declared elected who receives 50%  or  more
                   of  the  `votes cast' as explained hereinabove; (f)
                   if no candidate gets 50% or more of the votes  cast
                   in  the  run-off,  there should be a fresh election
                   from that constituency."
           
           8.2	Objects of this method.- This method of election is
           designed to achieve two important objectives viz.,  (i)  to
           cut  down  or, at any rate, to curtail the significance and
           role played by  caste  factor  in  the  electoral  process.
           There  is  hardly  any  constituency  in  the country where
           anyone particular caste can command more than  50%  of  the
           votes.   This  means that a candidate has to carry with him
           several  castes  and  communities,  to  succeed;  (ii)  the
           negative   vote  is  intended  to  put  moral  pressure  on
           political  parties  not  to  put  forward  candidates  with
           undesirable  record  i.e.,  criminals, corrupt elements and
           persons with unsavory background.
           
           8.2.1	No doubt this method calls  for  a  run-off  and  a
           fresh  election  in  case  no candidate obtains 50% or more
           votes even in the run-off, and in that sense expensive  and
           elaborate, yet it has the merit of compelling the political
           parties  to  put forward only good candidates and to eschew
           bad characters and corrupt elements.
           
           8.3	Illustration  of  the  method.-  The  idea  can  be
           illustrated in the following manner:
           
           8.3.1	Take  a  constituency  where  there  are  one  lakh
           voters.  Five candidates contest  from  that  constituency.
           The total number of valid votes cast in the constituency is
           80,000.  Ten thousand voters cast negative votes.  Only the
           candidates  who  obtains  40,000  votes  or more out of the
           80,000 votes cast can be declared elected.  If none of  the
           five  candidates obtains 40,000 votes or more, there should
           be a run-off between two (of the five candidates) who  have
           polled the  highest  votes among the five.  In the run-off,
           70,000 votes are cast, of which 10,000 are negative  votes.
           If  one  of the candidates obtains 35,000 or more votes, he
           will be declared elected.   Otherwise,  there  would  be  a
           fresh election  from that constituency.  Even in this fresh
           election, the very same procedure as set out above will  be
           followed  -  until  some  candidate gets 50% or more of the
           votes cast.
           
           	It is obvious  that  this  method  of  election  is
           relevant  to  and  can  be  implemented only in the case of
           direct election from territorial constituencies.  It is not
           applicable to `list system'.
           
           8.4	Views of speakers at the Seminars.- In the seminars
           held by the Law Commission,  particularly  in  the  seminar
           held  on  14th  November,  1998 and in the National Seminar
           held on 23rd  and  24th  January,  1999,  certain  speakers
           commended  the  idea that only a candidate who got 50%+1 of
           the total number of valid votes cast in  that  constituency
           alone  should  be  declared  elected  and  that  in case no
           candidate got 50%+1 of the valid votes  cast,  a  `run-off'
           election   should   be  held  between  the  two  candidates
           obtaining the highest number of votes.  The merit of such a
           method of election, they pointed out,  was  that  it  would
           reduce/eliminate  the  pernicious  role played by the caste
           and religion in elections.  So far as the idea of  negative
           votes was concerned, only one or two participants supported
           it.
           
           8.5	Advantages  of the method.- There can be no dispute
           that the idea and its underlying object are both  laudable.
           Besides,  the  advantages pointed out above, this method of
           election also acts as a powerful disincentive against voter
           intimidation.  It  would  provide  an  opportunity  to  the
           voters  to  express their disapproval of the bad candidates
           and the political  parties  who  put  them  forward.    The
           parties and candidates would also try, in such a situation,
           to   gather   a  consensus  and  fight  on  ideologies  and
           programmes rather than on caste or  religious  vote  banks.
           There  are,  however,  certain  practical  difficulties and
           problems which we must point out,  inherent  in  the  above
           system, particularly  in  Indian conditions.  Before we set
           out those practical difficulties and problems, however,  it
           is  necessary  to  clarify that the requirement of 50%+1 of
           the votes and the idea of negative vote, are both  distinct
           ideas.  It is true that both can be clubbed together but it
           is not necessary.  The requirement of 50%+1 of the vote can
           be  implemented  without  implementing the idea of negative
           vote simultaneously, though the idea of negative  vote,  as
           explained  in  the  working  paper,  cannot  be implemented
           without implementing the idea of 50%+1 vote.
           
           8.6	Practical difficulties and problems.- The elections
           to Lok Sabha or for that matter Legislative  Assemblies  in
           bigger States,  are not held on one single date.  Elaborate
           arrangements have to be made to establish  polling  booths,
           to requisition, allocate and transport the personnel to man
           the  polling  booths,  and  the transport and stationing of
           police and other paramilitary forces for maintaining  peace
           at the time of polling and so on.  Because of these factors
           and  considerations, elections to Lok Sabha are held on two
           or more dates.  Elections to Legislative Assemblies of  big
           States are  also spread over two dates.  Secondly, counting
           does not take place  soon  after  the  polling.    Counting
           begins  only  after  the polling throughout the country (in
           the case of Lok Sabha) and throughout  the  State  (in  the
           case  of  a  Legislative Assembly) is completed which means
           that if a run-off election is  to  be  held,  fresh  ballot
           paper  is  to be printed in respect of those constituencies
           (where the run-off has become necessary) and polling has to
           be held afresh which means either retaining or  rearranging
           the  entire  paraphernalia  mentioned  above  including the
           stationing of Police and other forces to maintain  law  and
           order.   And  if  the idea of negative vote is implemented,
           then a fresh election may  become  necessary,  in  case  no
           candidate gets 50%+1 votes even in the run-off.
           
           8.7	If  the  above  practical difficulties and problems
           can be overcome, the idea of 50%+1 vote - and even the idea
           of  negative  vote  (as  explained  hereinabove),  can   be
           implemented.   We  may  mention  that  if electronic voting
           machines are introduced throughout  the  country,  it  will
           become  a  little  more  easier  to hold a run-off election
           inasmuch as it would then be not necessary to  print  fresh
           ballot  papers  showing  the  names  of  the two candidates
           competing in the run-off - or for that matter, for  holding
           a fresh election (in case the idea of negative vote is also
           given effect to).
           
           8.8	Alternative     method     mitigates    undesirable
           practices.- Probably, the aforesaid problems arise  because
           of  the  vastness  of  the  country  and  lack of requisite
           standards  of  behaviour  and  also  or   cooperation   and
           understanding  among  the  political  parties  to  ensure a
           peaceful poll.  As a matter of fact, the election  offences
           are  not  decreasing but are increasing, with every passing
           election.  This is really unfortunate.   Even  so,  we  may
           make every effort to mitigate the undesirable practices and
           the alternate method of election set out in this chapter is
           certainly a step in that direction.
           
           8.9	Recommendation.-  We accordingly recommend that the
           government and Parliament may take a decision in the matter
           on a consideration of all the aforesaid circumstances.
           
       TOP.gif (1292 bytes)     PART IX
            SUMMARY OF RECOMMENDATIONS
           
           	The following is the summary of the recommendations
           made in the preceding parts/chapters of the Report:
           
           	A:	CONSTITUTION OF INDIA:
           
           9.1	With a view to giving effect to our recommendations
           pertaining to the list system, as suggested in  Chapter  II
           of  Part  III, it is necessary to amend articles 81 and 170
           of the Constitution.  The proposed amendments  are  to  the
           following effect:
           
           	"Amendment of article 81:
           
           	In  article  81 of the Constitution, for clause (1)
           the following clause shall be substituted:
           
           	"(1) The House of the People shall consist of:
           
           (a)	not more than 530 members to be  chosen  by  direct
           election from the territorial constituencies in the States;
           
           (b)	not  more  than  20  members to represent the Union
           territories chosen in such manner as Parliament may by  law
           provide; and
           
           (c)	not  more  than 138 members chosen according to the
           list system  in  such  manner  as  Parliament  may  by  law
           provide.
           
           	Provided  that  the provisions of article 330 shall
           not apply to the election of the members to be chosen under
           this clause."
           
           	Further Amendment of Article 81:
           
           	In the proviso to clause (3)  of  article  81,  the
           figure "2025" will be substituted for the figure "2000".
           
           	Amendment of Article 170:
           
           (a)	In article 170 of the Constitution, for clause (1),
           the following clause shall be substituted:
           
            "(1)  The  Legislative Assembly of each State shall
                   consist of not more than six hundred, and not  less
                   than  sixty  members chosen both by direct election
                   from  territorial  constitutencies   as   well   as
                   according to the list system in the State."
           
           (b)	After  clause  (1)  in  article  170, the following
           clause shall be inserted:
           
         
            "(1A)	The strength of each  Legislative  Assembly
                   as  at  present fixed by the Second Schedule to the
                   Representation of the People Act,  1950,  shall  be
                   filled  by  persons  chosen by direct election from
                   the Assembly  territorial   constituencies.      In
                   addition thereto, twenty-five per cent of the total
                   membership of the said strength of each Legislative
                   Assembly  shall  be  chosen  according  to the list
                   system.   The  membership   of   each   Legislative
                   Assembly   shall  accordingly  stand  enchanced  by
                   twenty-five per cent of the existing strength."
           
           (c)	After clause (3)  in  article  170,  the  following
           clause shall be inserted :
           
            "(4)	The twenty-five per cent seats added to the
                   membership  of  each Legislative Assembly by clause
                   (1A) of this article shall be chosen in such manner
                   as Parliament may be law provide :
           
           	Provided that the provisions of article  330  shall
           not apply to the seats so added by clause (1A)."
           
           9.2	With a view to giving effect to our recommendations
           pertaining   to  amendments  of  the  Tench  Schedule  (law
           relating to defections), contained in Chapter  IV  of  Part
           III,  it  is  necessary  to amend the Tenth Schedule to the
           Constitution as follows :
           
           	Amendment of the Tenth Schedule to the Constitution
           
           	In the Tenth Schedule to the Constitution :
           
           (a)	In paragraph  1,  the  definition  of  "Legislature
           Party" shall be omitted.
           
           (b)	A  new  definition  of  "political  party" shall be
           inserted in paragraph 1 as follows  in  place  of  existing
           definition in clause (c) :
           
           "(c)	"political  party"  in  relation  to  a member of a
           House, means the  political  party  on  whose  ticket  that
           member was elected and where such political party is a part
           of  a front or a coalition formed before a general election
           for contesting such election, such front or coalition,
           
           		Provided that the  Election  Commission  is
           informed  in  writing by all the constituent parties in the
           front/coalition before the commencement of  the  poll  that
           such a front/coalition has been formed."
           
           (c)	In paragraph 2, sub-para (4) shall be omitted.
           
           (d)	Paragraphs 3 and 4 shall be omitted.
           
           (e)	Paragraphs 6, 7 and 8 shall be omitted.
           
           	(Paragraph 3.4.7.  and Annexure-I to the working	
           paper).
           
           9.3	For the same purpose and to give effect to the said
           recommendations, article 102 and 191 may also be amended as
           follows :
           
           	Amendment of article 102:
           
           	(a)	In   clause   (1)  of  article  102,  after
           sub-clause (e), the  following  sub-clause  (f),  shall  be
           inserted before the Explanation -
           
            "(f)	if he is disqualified for being a member of
                   either   House   of   Parliament  under  the  Tenth
                   Schedule."
           
           	(b)	Clause (2) of article 102 shall be deleted.
           
           	Amendment of article 191:
           
           	(a)	In  article  191  (1),  sub-clause  (f)  as
           follows  shall  be added after subclause (e) but before the
           Explanation:-
           
            "if he  is  disqualified  for  being  a  member  of
                   Legislative  Assembly  or  Legislative Council of a
                   State under the Tenth Schedule."
           
           	(b)	Clause (2) of article 191 shall be deleted.
           
           9.4.	In view of the negligible number  of  Anglo-Indians
           now  left  in  India,  it  is recommended that article 331,
           which  provides  for  nomination  of  two  members  of  the
           Anglo-Indian community by the President of India to the Lok
           Sabha, be deleted.
           
           	(Paragraph 1.3.3.2.   and Annexure-I to the working
           paper).
           
           	B: AMENDMENTS TO THE REPRESENTATION OF PEOPLE	
                           	ACT, 1951
           
           9.5.	Sections 11 and 11B of the Act  shall  be  deleted.
           Consequently,  existing  section 11A shall be renumbered as
           section 11.
           
           	In view of reiteration of our  proposal  to  repeal
           sections  11  and  11B of the Representation of People Act,
           1951 as stated in paragraphs 6.1.1.  and  6.2  of  part  VI
           infra, the existing section 11A entitled "Disqualifications
           arising out of conviction and corrupt practices" which will
           fall under Chapter IV, shall be renumbered as section 11.
           				(Paragraph 3.1.3.1.)
           
           9.6.	A  new  part,  Part-IIA,  entitled `Organisation of
           Political  Parties  and  matters  incidental  thereto'   be
           introduced in the Act, for the reasons mentioned in Chapter
           I of Part III, containing the undermentioned sections :-
           
         TOP.gif (1292 bytes)   PART II-A
            Organisation of Political Parties
            and matters incidental thereto
           
           	Section 11A:	(1) Political parties can be freely
           formed by the citizens of  this  country.    The  political
           parties shall form a constitutionally integral part of free
           and democratic system of Government.
           
           (2)	Each political party shall frame  its  constitution
           defining  its  aims  and  objects and providing for matters
           specified in section 11A.    The  aims  and  objects  of  a
           political  party  shall not be inconsistent with any of the
           provisions of the Constitution of India.
           
           (3)	A political party shall strive towards, and utilise
           its funds exclusively for, the fulfillment of its aims  and
           objects  or goals and ideals set out in the Constitution of
           India.
           
           (4)(a)	A political party shall apply for registration with
           the Election Commission of India.
           	
           (b)	Every such application shall be made,-
           
           (i)	if the association or body is in existence  at  the
           commencement  of the Representation of the People and other
           Allied Laws (Amendment) Act, 1999 (_____ of  1999),  within
           sixty days next following such commencement;
           
           (ii)	if  the  association  or  body is formed after such
           commencement, within thirty days next following the date of
           its formation.
           
           (c)	Every application under sub-section  (4)  shall  be
           signed by the Chief executive officer or the association or
           body  (whether  such  chief  executive  officer is known as
           Secretary or by any other designation) and presented to the
           Secretary to the Commission or sent to  such  Secretary  by
           registered post.
           
           (d)	Every  such application shall contain the following
           particulars, namely :-
           
           (i)	the name of the association or body;
           
           (ii)	the State in which its head office is situated;
           
           (iii)	the   address   to   which   letters   and    other
           communications meant for it should be sent;
           	
           (iv)	the  names  of  its president, secretary, treasurer
           and other office-bearers;
           
           (v)	the numerical strength of its members, and if there
           is more than one category of  its  members,  the  numerical
           strength in each category;
           
           (vi)	whether  it  has  any  local  units; if so, at what
           levels;
           
           (vii)	whether it is represented by any member or  members
           in  either House of parliament or any State Legislature; if
           so, the number of such member or members.
           
           (viii)	a declaration that the applicant has complied  with
           and  shall continue to comply with the requirements of this
           chapter.
           
           (e)	The application  under  sub-section  (4)  shall  be
           accompanied  by  a  copy  of  the  memorandum  or rules and
           regulations of the association or body,  by  whatever  name
           called,  and such memorandum or rules and regulations shall
           contain a specific provision that the association  or  body
           shall bear true faith and allegiance to the Constitution of
           India  as  by  Law  established,  and  to the principles of
           socialism, secularism and democracy, and would  uphold  the
           sovereignty, unity and integrity of India.
           
           (f)	The  Commission may call for such other particulars
           as it may deem fit from the association or body.
           
           (g)	After considering all the particulars as  aforesaid
           in  its  possession  and  any  other necessary and relevant
           factors  and  after  giving  the  representatives  of   the
           association  or body reasonable opportunity of being heard,
           the  Commission  shall  decide  either  to   register   the
           association or body as a political party for the purpose of
           this  Part,  or  not  so to register it; and the Commission
           shall communicate its decision to the association or body:
           
           	Provided that  no  association  or  body  shall  be
           registered  as  a  political  party  under this sub-section
           unless the memorandum or  rules  and  regulations  of  such
           association or body conform to	the  provisions  of  clause
           (e).
           
           (h)	The decision of the Commission shall be	final.
           
           (i)	After an association or body has been registered as
           a political party as aforesaid, any  change  in  its  name,
           head  office,  office-bearers,  address  or  in  any  other
           material matters shall be communicated  to  the  Commission
           without delay.
           
           	(5)	Only  a  political  party  registered  with
           Election Commission of India, and whose	registration is not
           cancelled under this Act,  shall  be  entitled  to  contest
           elections either to Lok	Sabha or a Legislative Assembly.
           
           Section 11B:	(1) A political party may sue or be sued in
           its own name.  A political party shall be competent to hold
           and dispose of properties.
           
           (2)	The  name  of  a  political  party  must be clearly
           distinguishable from that of any existing  political  party
           and   shall   be   subject  to  approval  by  the  Election
           Commission.  In election campaigns and in  elections,  only
           the  registered  name  or  its  acronym,  as  may have been
           approved by the Election Commission, alone shall be used.
           
           (3)	Political  parties  can  be  formed  both  at   the
           national level as well as at the State level.
           
           Section 11C:	The constitution of a political party shall
           provide for the following matters :-
           
           (a)	name  of  the political party and acronym (if used)
           and the aims and objectives of the party;
           
           (b)	procedure for admission, expulsion and  resignation
           by the members;
           
           (c)	rights, duties and obligations of the members;
           
           (d)	grounds  on  which  and  the procedure according to
           which disciplinary action can be taken against the members;
           
           (e)	the general organization of the party including the
           formation of State, regional, district, block  and  village
           level units;
           
           (f)	compostion  and  powers  of the executive committee
           (by whatever name it is called) and  other  organs  of  the
           party;
           
           (g)  the  manner  in which the general body meetings can be
           requisitioned  and  conducted   and   the   procedure   for
           requisitioning  and holding conventions to decide questions
           of continuance, merger and other fundamental organisational
           matters;
           
           (h)	the form and content of financial structure of  the
           party consistent with the provisions of this part.
           
           Section 11D:	The  executive  committee  of  a  political
           party shall be elected.  Its term shall  not  exceed  three
           years.   Well before the expiry of the term, steps shall be
           taken for electing a new executive committee.  It shall  be
           open   to   the   executive   committee   to  constitute  a
           subcommittee (by whatever name called)  to  carry  out  the
           business of the executive committee and to carry on regular
           and urgent  executive  committee  business.  The members of
           the subcommittee shall be elected by  the  members  of  the
           executive committee.
           
           Section 11E:	A  political  party  and  its  organs shall
           adopt their resolutions on the basis of a  simple  majority
           vote.  The voting shall be by secret ballot.
           
           Section 11F:	The  candidates for contesting elections to
           Parliament or a Legislative Assembly of the State shall  be
           selected  by the executive committee of the political party
           on the basis of recommendations and resolutions  passed  by
           the concerned local party units.
           
           Section 11G:	(1)  It  shall be the duty of the executive
           committee to take appropriate steps  to  ensure  compliance
           with  the  provisions  of this chapter including holding of
           elections at all levels.   The  executive  committee  of  a
           political  party shall hold elections at national and State
           levels in the presence of the observers to be nominated  by
           the Election   Commission   of  India.    Where  considered
           necessary,  the  Election  Commission  may  also  send  its
           observers  at  elections  to be held at other than national
           and state levels.
           
           (2)	The executive committee of a political party  shall
           maintain  regular  accounts  of the amounts received by the
           party, its income and expenditure, have  them  audited  and
           submit  the  same to the Election Commission as required by
           section 78A of this Act.
           
           (3)	A political  party  shall  be  entitled  to  accept
           donations except from the following sources:-
           
            (a)	donations  from  political  foundations  or
                   foreign    governments    or    organisations    or
                   associations  registered  outside  the territory of
                   India or non-governmental organisations  which  are
                   in  receipt  of  foreign  funds  or  from any other
                   association,  organisation,  group  which   is   in
                   receipt   of   foreign  funds  or  from  a  foreign
                   national.
           
            (b)	donations   from   corporate   bodies   and
                   companies  except in accordance with the provisions
                   of the Companies Act, 1956.
           
           	Section 11H:	The Election  Commission  shall  be
           competent  to  inquire,  either  suo motu or on information
           received into allegation of non-compliance of  any  of  the
           provisions of  this  chapter.    If  on  due  inquiry,  the
           Election  Commission  is  satisfied  that  there  has  been
           non-compliance  of any of the provisions of this chapter by
           any political party, the Commission  shall  call  upon  the
           party  to  rectify  the  non-compliance  within  the period
           prescribed by  the  Election  Commission.    In  case,  the
           non-compliance   continues   even   after   the  period  so
           prescribed, it shall be open to the Election Commission  to
           impose  such  punishment  on  the political party as it may
           deem appropriate in circumstances  of  the  case  inclduing
           levy of  the  penalty of Rs.  10,000/- per day for each day
           of non-compliance and withdrawal  of  registration  of  the
           party.
           
           Section 11I:	Where    a    public   authority   provides
           facilities or offers public services for use to a political
           party, it must accord equal treatment to all.  The scale of
           such facilities and services may be graduated to conform to
           the importance of the parties subject to the minimum extent
           needed for the achievement of their aims.   The  importance
           of  a party shall be decided on the basis of the results of
           immediately  previous  election  to  Parliament  or   State
           Legislative Assembly,  as the case may be.  The granting of
           public services shall be only in connection  with  and  for
           the duration  of  the  election  campaign  period.  For the
           purposes of this  section,  the  election  campaign  period
           shall   be   deemed  to  commence  14  days  prior  to  the
           commencement of poll in a State.
           
           	(Rules made under the Act can provide the requisite
           details on the pattern of the provisions of the German  Law
           on Political Parties, 1967)."
           				(Paragraph 3.1.3.1.)
           
           9.7.	Part  IV-A of the Act, containing section 29A shall
           be deleted.    (The  substance  of  section  29A  has  been
           incorporated in section 11A).
           				(Paragraph 3.1.4.)
           
           9.8.	The  Law Commission is of the opinion that the list
           system should be introduced  as  suggested  by  it  in  the
           working paper, for the reasons stated in Chapter II of Part
           III but subject to the following modifications :
           
           	(a)	The Commission decided to drop its proposal
           with  respect  to  territorial  units  which means that the
           entire country will be one unit for the purpose of the List
           System.
           
           	(b)	If the votes received by a candidate  of  a
           RPP  do  not  exceed one-sixth of the valid votes polled by
           all the candidates in a given constituency, these shall  be
           excluded  from  cnonsideration  for the purpose of sections
           78D to 78F.
           
           	Accordingly, it is recommended  that  a  new  part,
           Part  V-B, containing sections 78D, 78E and section 78F, as
           indicated in Annexure-A, be enacted.
           				(paragraph 3.2.15.)
           
           9.9.	Though we are dropping the proposal with respect to
           territorial  units,  we   do   hereby   affirm   that   the
           distribution of seats in Lok Sabha among the States, as set
           out  in  the  First  Schedule  to the Representation of the
           People Act, 1950, should be frozen for  another  25  years.
           For  this  purpose,  it  would  be  necessary  to amend the
           proviso to clause (3) of article 81 of the Constitution  by
           substituting the figure "2025" for the figure "2000."
           				(Paragraph 3.2.15.1.)
           
           9.10.	With  a view to arresting and reversing the process
           of proliferation and splintering of political  parties  and
           with  a  view to bringing about a polarisation of political
           process as well as to  reducing  the  number  of  political
           parties  or  pre-election political fronts to three or four
           parties/fronts - we recommend that a new  section,  namely,
           section  65A,  be  inserted  in  Chapter V of Part V of the
           Representation of the People Act,  1951  to  the  following
           effect:
           
           "65A (1)	Any  political party, whether recognised or
           not, which obtains less than 5% of the  total  valid  votes
           cast in an election to the House of the People shall not be
           entitled to any seat in that House.
           
           (2)	Any  political  party,  whether  recognised or not,
           which obtains less than 5% of the total valid votes cast in
           an election to the Legislative Assembly of  a  State  shall
           not be entitled to any seat in the Legislative Assembly.
           
           (3)	For  the  purpose  of  sub-section (1) and (2), the
           relevant date shall be the date on which  the  notification
           contemplated by section 73 of this Act is issued.
           
           (4)	Any constituency which has elected the candidate of
           a  political party which is deprived of a seat in the House
           of the People or in the Legislative Assembly on account  of
           requirement  in sub-section (1) or (2), as the case may be,
           shall be represented by the candidate of a political  party
           which has obtained the next highest votes provided that his
           political party obtains 5% of the total valid votes cast in
           that  election  and  that  he  has  not  lost  the security
           deposit.
           
           (5)	The requirements in sub-section (1)  to  (3)  shall
           not apply in the case of a bye-election.
           				(Paragraph 3.2.15.3.)
           
           	In  this  connection,  it may be noted that we have
           proposed a new definition of "political party" in the Tenth
           Schedule to the  Constitution  to  include  a  pre-election
           front  or  a  pre-election  coalition which would mean that
           defection of a constituent party from  the  front/coalition
           would    be   treated   as   defection   leading   to   the
           disqualification of  all  the  members  of  that  defecting
           constituent party.       This   provision   alongwith   our
           recommendation regarding the requirement of five  per  cent
           votes (paragraphs  3.2.14.   and 3.2.15.3.) would go a long
           way in polarisation of political parties and processes.
           
           9.11.	In Law Commission's view, the time is now ripe  for
           debarring  independent candidates from contesting Lok Sabha
           and Legislative Assembly election.  Any person proposing to
           contest Lok Sabha election  can  always  form  a  political
           party and contest elections but its entitlement to any seat
           in  Lok  Sabha  will  be  subject  to the condition that it
           obtains not less than 5% of the total valid votes  cast  in
           an election   to  Lok  Sabha.    Therefore,  it  cannot  be
           legitimately argued that our proposal  tends  to  interfere
           with the democratic ethos or political processes.
           			(Paragraphs 3.3.6.  and 3.3.6.1.)
           
           9.12.	Accordingly,   it   is   recommended   that  a  new
           sub-section,  namely,  sub-section  (1)  be  introduced  in
           section  4  of  this Act, as suggested hereinbelow, and the
           existing provision may be renumbered as sub-section (2).
           
           	The  proposed  sub-section  (1)   shall   read   as
           follows:-
           
           "(1)	Only  the  political  parties  registered  with the
           Election Commission under section 11(4) shall  be  entitled
           to  put  forward  candidates to fill a seat in the House of
           the People."
           
           	Similarly, section 5 of the R.P.  Act  should  also
           be amended by introducing the following sub-section (1) :-
           
           "(1)	Only  the  political  parties  registered  with the
           Election Commission under section 11(4) shall  be  entitled
           to put forward candidates to fill a seat in the Legislative
           Assembly."
           
           	The  existing  provisions  of  section  5  shall be
           renumbered as sub-section (2).
           				(Paragraph 3.3.7.)
           
           9.13	Necessity for abiding by the whip:- When  a  person
           becomes a member of the political party, accepts its ticket
           and  fights and succeeds on that ticket, he renders himself
           subject to the discipline and control of  the  party.    It
           should  also  be noticed that when a person applies for the
           ticket of a political party, he knows, and is  expected  to
           know,  about the leadership, internal working, policies and
           programmes of the party.  He must also reckon with the fact
           that in future, the leadership  may  change,  policies  and
           programmes may  change  and  so  on.   If he, with his eyes
           open, applies for and obtains the ticket and  contests  and
           wins on that basis, he cannot please later that he does not
           agree with  the  leadership  or  policies of the party.  He
           must ventilate and fight any difference of  opinion  within
           the party.    The  membership of a House is not his private
           property nor can he trade in it.  It is a trust and  he  is
           in the  nature  of  a  trustee.  He cannot also say that he
           will  take  advantage  of  the  name  and  faclities  of  a
           political  party, figtht the election on the ticket of that
           party and succeed, but  is  free  from  discipline  of  the
           political party.   This is simply unthinkable besides being
           unethical and immoral.   He  has  to  abide  by  the  party
           discipline within the House.  He may fight within the party
           to  have his point of view or policies adopted by the party
           but once the party takes a decision one way  or  the  other
           and  issues the whip, he will have to abide by it or resign
           and go out.  It would be equally unethical and immoral  for
           him to vote against the whip and then resign.
           				(Paragraph 3.4.4.)
           
           9.14.	Desirability   of  issuing  the  whip  in  specific
           situation only:- So far as the  issuance  of  the  whip  is
           concerned, it  is  not  governed  by  any law.  Neither the
           Rules framed under the Tenth  Schedule  nor  the  Rules  of
           Procedure  and Conduct of Business in the Lok Sabha/Council
           of States provide for or regulate the issuance of whip.  It
           appears to be a matter within the discretion and  judgement
           of each  political party.  In such a situation, we can only
           point out the desirability aspect and nothing more.  It  is
           undoubtedly  desirable  that  whip  is issued only when the
           voting  in  the  House  affects  the  continuance  of   the
           government and  not  on  each  and  every occasion.  Such a
           course would safeguard both the party  discipline  and  the
           freedom of speech and expression of the members.
           				(Paragraph 3.4.6.)
           
           9.15.	The  Law  Commission  reiterates  its  proposal  to
           delete Explanation I to section 77 of the  R.P.    Act  and
           hopes  and  trusts  that  in  the  interest  of  a  healthy
           parliamentary democracy, those political parties, which are
           now opposed to the deletion of  Explanation  I  to  section
           77(1), will reconsider and revise their opinion and support
           the  said  deletion  as  indeed  they had done in the years
           1989-1990.
           				(Paragraph 4.1.10.)
           
           9.16.	The Law Commission reiterates that a new section as
           proposed in the  working  paper  (section  78A)  should  be
           inserted in the   R.P.    Act  of  1951.    It  is  further
           recommended that  the  provision  as  suggested  should  be
           numbered  as  sub-section (1) and sub-sections (2), (3) and
           (4) as proposed hereinafter should also be inserted in  the
           said section.  Section 78A should now read as follows :
           
            "(1)	Each   recognised   political  party  shall
                   maintain accounts clearly and fully disclosing  the
                   sources  of  all amounts received by it and clearly
                   and fully disclosing the  expenditure  incurred  by
                   it.   The accounts shall be maintained according to
                   the financial year.  Within  nine  months  of  each
                   financial  year,  each  recognised  political party
                   shall submit  its  accounts,  duly  audited  by  an
                   accountant  (as  defined  in  the Explanation below
                   sub-section (2) of section 288  of  the  Income-tax
                   Act, 1961),   to  the  Election  Commission.    The
                   Election Commission shall publish the said accounts
                   in accordance with such general directions  as  may
                   be  issued  by  the  Election  Commission  in  this
                   behalf.   The  accounts  shall  also  be  open  for
                   inspection  by  the  members  of  the public in the
                   office of the Election Commission  and  they  shall
                   also  be entitled to obtain copies of such accounts
                   or  any  part  thereof  in  accordance  with   such
                   instructions  as  the Election Commission may issue
                   in that behalf.
           
           (2)	A political party which does not comply with any of
           the requirements of sub-section (1) shall be liable to  pay
           a penalty  of  Rs.    10,000/for each day of non-compliance
           till the non-compliance continues.
           
           	If such default continues beyond  a  period  of  60
           days,   the   Election   Commission  may  de-recognise  the
           political party after affording a reasonable opportunity of
           showing cause.
           
           (3)	If the Election Commission  finds  on  verification
           undertaken  whether  suo  motu  or on information received,
           that the statement of accounts filed under sub-section  (1)
           is  false  in any particular, the Election Commission shall
           levy such penalty upon the political party, as it may  deem
           appropriate  besides  initiating  criminal  prosecution  as
           provided under law.
           
           (4)	Any orders passed under  sub-sections  (2)  or  (3)
           shall  be  directed  to be published in the press and other
           media, for public information."
           				(Paragraph 4.2.6.)
           
           9.17.	After   considering   views   expressed   by    the
           participants  in  the  seminars  and by various persons and
           organisations  in  their  responses  and   after   perusing
           relevant  literature  on the subject, the Law Commission is
           of the opinion  that  in  the  present  circumstances  only
           partial  state  funding can be contemplated more as a first
           step towards total  state  funding  but  it  is  absolutely
           essential  that  before  the idea of state funding (whether
           partial or total) is resorted to, the provisions  suggested
           in this report relating to political parties (including the
           provisions    ensuring    internal    democracy,   internal
           structures) and maintenance of accounts, their auditing and
           submission to Election  Commission  are  implemented.    In
           other   words,   the   implementation   of  the  provisions
           recommended  in  Chapter  one  Part  three  should   be   a
           pre-condition  to  the  implementation  of  the  provisions
           relating to partial state funding set out  in  the  working
           paper  in  the  Law Commission (partial funding, as already
           stated, has also been recommended  by  the  Inderjit  Gupta
           Committee).  If without such pre-conditions, state funding,
           even  if  partial  is  resorted  to, it would not serve the
           purpose underlying the idea of state funding.  The proposal
           for state funding is aimed at eliminating the influence  of
           money  power  as  well  as  corporate  funding, black money
           support are raising of funds in the name  of  elections  by
           the parties  and their leaders.  The state funding, without
           the aforesaid preconditions, would  merely  become  another
           source of funds for the political parties and candidates at
           the cost  of  public  exchequer.  We are, therefore, of the
           opinion  that  the  proposals  relating  to  state  funding
           contained  in the Inderjit Gupta Committee Report should be
           implemented  only  after   or   simultaneously   with   the
           implementation  of  the provisions contained in this Report
           relating to political parties viz., deletion of Explanation
           1 to section 77, and incorporation or provisions  providing
           for maintenance  of accounts and their submission etc.  and
           the  provisions  governing  the  functioning  of  political
           parties  contained  in  chapters  I  and  IV of Part IV and
           Chapter I of Part III.  The state fudning, even if partial,
           should never be resorted to  unless  the  other  provisions
           mentioned  aforesaid are implemented lest the very idea may
           prove counter-productive and may  defeat  the  very  object
           underlying the state funding of elections.
           				(Paragraph 4.3.4.)
           
           9.18.	We  reiterate  all  the recommendations made in the
           Inderjit Gupta Committee Report subject to the observations
           made in para 4.3.4.  of this  Report.    Further,  the  Law
           commission recommends delettion of Explanation I to section
           77 (1) of the Representation of the People Act, 1951.
           				(Paragraph 4.3.7.)
           
           9.19.	Section  8 of the Representation of the People Act,
           1951 shall remain as it stands now.
           				(Paragraph 5.3.)
           
           9.20	We recommend that section 8B (as proposed by us and
           as set out hereinbelow) be enacted, making the  framing  of
           charge  (by  court)  in  respect  of  election offences and
           certain   other    serious    offences    a    ground    of
           disqualification:
           
            "8B.	Disqualification  on  framing of charge for
                   certain offences.- A person agaisnt whom charge has
                   been framed under  :-  (a)  section  153A,  section
                   171E,  section  171F,  section  171G, section 171H,
                   section 171I, sub-section (1) or sub-section (2) of
                   section 376, sub-section (2) or sub-section (3)  of
                   section  505  of the Indian Penal Code (45 of 1860)
                   or
           
            (b)	Sections  10  to   12   of   the   Unlawful
                   Activities (Prevention)Act, 1967 (37 of 1967):  or
           
            (c)	the  penal provisions of the Narcotic Drugs
                   and Psychotropic Substances Act, 1985 (61 of  1985)
                   except section 27 thereof; or
           
            (d)	Section  125,  section 135, section 135A or
                   sub-section (2) of section 136 of this Act; or
           
            (e)	any    other    offence   punishable   with
                   imprisonment for life  or  death,  under  any  law,
                   shall  be  disqualified  for a period of five years
                   from the date of framing of  the  charge,  provided
                   that  he is not acquitted of the said charge before
                   the date of scrutity notified under section  36  of
                   this Act."
           
           	We  also  reiterate  the  proposals  to enhance the
           punishment for various electoral offences mentioned in  the
           R.P.  Act as well as in the Indian Penal Code.  All of them
           are  electoral offences and seriously interfere with a fair
           electoral process.   They  foul  the  electoral  stream  by
           letting  in  all  kinds  of  distortions and evils into the
           electoral system and finally into our body  politic.    The
           punishments  at present provided are totally inadequate and
           are ridiculously low, hence need to be enhanced.
           				(Paragraph 5.4.)
           
           
           9.21.	We reiterate the following proposals put forward in
           our working paper (Annexure-B), except the one relating  to
           section  34  (raising  of  deposit  amount  in  the case of
           indendent candidates).  They are :
           
            (a)	Deletion of sections 11 and 11B of the R.P.
                   Act.
           
            (b)	Amendment of section 33 of the R.P.    Act.
                   By introducing sub-section (7), it was sought to be
                   provided  that  no  person  shall  be  entitled  to
                   contest   simultaneously   from   more   than   one
                   parliamentary      constituency     or     assembly
                   constituency, as  the  case  may   be.      Similar
                   provision was suggested with respect to the Council
                   of  States  and  Legislative  Councils  and even in
                   bye-elections.
           
            (c)	Amendement  of  section  58A   in   certain
                   respects.
           
            (d)	Amendement  of  section  62  by inserting a
                   proviso.
           
            (e)	Amendment of section 78 reducing the period
                   prescribed  for  filing  the  account  of  election
                   expenses  by the contesting candidates from 30 days
                   to 15 days.
           
            (f)	Amendment  of  sections  81,  86   and   87
                   relating to trial of election petitions.
           
            (g)	Amendment of section 97 in the light of the
                   decision  of  the  Supreme  Court  in  Bhag  Mal v.
                   Parbhu Ram, AIR 1985 SC 150.
           
           	(h)	Insertion of new sections 98A and 98B.
           
           	(i)	Amendment of section 107.
           
           	(j)	Amendment of section 116A.
           
            (k)	Omission of the proviso to sub-section  (7)
                   in section 123.
           
            (l)	Insertion  of a new chapter II in part 7 of
                   the R.P.  Act, relating to `Illegal Practices.'
           
            (m)	Insertion of section 126A.
           
            (n)	Insertion of  another  proviso  to  section
                   151A.
           
           	(o)	Insertion of new section 162A.
           
           	(It  may  be  mentioned  that  the  proposals  with
           respect to enhancing the punishments provided  by  sections
           127, 134B,  135  and  136  of  the R.P.  Act and by various
           offences in chapter IXA of the  Indian  Penal  Code,  1860,
           have  already  been affirmed by us and recommendations made
           to implement the same).
           
           	We may mention that the proposal to  amend  section
           34   (raising  the  deposit  in  the  case  of  independent
           candidates)  has  been  dropped  by  us  in  view  of   our
           recommendations  for barring the independent candidates and
           the proposal requiring a political party to  obtain  5%  of
           the valid votes cast in order to obtain a seat in Lok Sabha
           or in Legislative Assembly.
           			(Paragraphs 6.1.1.  and 6.1.3.)
           
           9.22.	It  is  recommended  that  the  existing provisions
           under section 195 (1) (b), and  340  (3)  (b)  of  Code  of
           Criminal Procedure, 1973 be substitued as follows :-
           
           	For  clause  (b)  of  section 340(3), the following
           clause may be substituted :-
           
            "(b)	In any other case, by the presiding officer
                   of the Court, or by such ministerial officer as the
                   Court may designate in this behalf."
           					(Paragraph 6.2.4.)
           
           9.23.	Section  195(1)(b)  of   the   Code   of   Criminal
           Procedure,  1973 should also be amended by inserting before
           the words "or of some other  Court"  and  after  the  words
           "except  on  the  complaint  in  writing of that Court, the
           following words :-
           
           	"or by such ministerial officer as  the  Court  may
           designate in this behalf."
           
           	In  view  of  the  proposed  insertion of the words
           stated above, the Presiding Officer  of  the  Court  before
           which  false  evidence  was  given or false prosecution was
           launched, will be genrally relived of the anxiety  that  he
           may possibly be called to give evidence during trial before
           the Migistrate.    Such  depositions on behalf of the Court
           can then be given by a milnisterial officer.
           
           	Under section  294,  no  formal  proof  of  certain
           documents is  required.    Thus  in  general,  the judicial
           record may be read in  evidence  as  such.    The  proposed
           amendments,   it  is  felt  could  achieve  the  object  of
           deterring  persons  from  initiating  false   prosecutions.
           These   amendemnts  will  be  particularly  appropriate  in
           matters  relating  to  disqualifications   under   proposed
           section  8B  to  guard against abuse of the said provision.
           In course of time, provisions of Cr.  P.C.  could  also  be
           amended  on  the  above  lines  to deter launching of false
           cases.
           			(Paragraphs 6.2.5.  to 6.2.7.)
           
           9.24.	In view of recommendation of the Law Commission for
           debarring  a  candidate  from  contesting  an  election  if
           charges  have been framed against him by a Court in respect
           of offences mentioned in the proposed section  8-B  of  the
           Act,  it  is  also  necessary  for  a  candidate seeking to
           contest election  to  furnish  details  regarding  criminal
           case,  if any, pending against him, including a copy of the
           FIR/complaint and any order made by the concerned court.
           
           	In order to achieve the aforesaid  objectives,  and
           also  with  a view to introducing transparency and fairness
           in the working of the system, it is essential to  insert  a
           new  section  4A  after  the  existing  section  4  of  the
           Representation of the People Act, 1951, as follows :-
           
            "4A.	Qualification for membership of  the  House
                   of  the  People, the Council of States, Legislature
                   Assembly of a State or Legislative Council.
           
           	A  person  shall  not  be  qualified  to  file  his
           nomination  for  contesting  any election for a seat in the
           House of the People,  the  Council  of  States  Legislature
           Assembly or Legislative Council of a State unless he or she
           files -
           
            (a) a declaration  of  all  his  assets  (moveable/
                   immovable)  possessed  by  him/her, his/her spouse,
                   dependent   relations,   duly   supported   by   an
                   affidavit, and
           
            (b)  a  declaration  as  to  whether  any charge in
                   respect of any offence referred to  in  section  8B
                   has been framed against him by any Criminal Court."
           
           			(Paragraphs 6.3.2.  and 6.3.3.)
           
           
           9.25.	Consequent  upon  the  introduction  of  the  above
           provisions it is necessary to amend Forms 2A to  2E,  which
           provide  the  proforma in which the nomination paper to Lok
           Sabha, Legislative Assembly, Rajya  Sabha  and  Legislative
           Council have  to  be filed.  These Forms, prescribed by the
           Conduct of Election Rules, 1961 may be amended as follows :
           The existing clause (d), shall be  redesignated  as  clause
           (f)  and  before the said clause, clauses (d) and (e) shall
           be inserted to the following effect :
           
           (d)	that the  statement  of  assets  enclosed  to  this
           nomination  paper represents the true and correct statement
           of all the assets, moveable and  immovable,  held/owned  by
           me, my  spouse  and  dependent  relations.    An  affidavit
           affirming the correctness of the  said  statement  is  also
           appended to this nomination paper.
           
           (e)	that  no criminal court has framed a charge against
           me in respect of any of the offences mentioned  in  section
           8B  of  the  Act and that no trial in respect of charges of
           the said offences is pending, or
           
           that a charge has been framed against me by  the  court  of
           _____________ in the case No.  ___________ on _____________
           (date)  in  respect of offence(s) punsihable under sections
           ________________ mentioned  in  section  8B  and  trial  is
           pending against me; or
           
           that  though  charge  was framed against me by the court of
           ________________ in   the   case   No.      _________    on
           _______________  (date) in respect of offence(s) punsihable
           under sections _____________ mentioned  in  section  8B,  I
           have  since  been  acquitted  of  the  said  chrge by order
           _____________ (date) (copy enclosed).	
           				(Paragraph 6.3.3.1.)
           
           	In the light of our  recommendation  to  debar  the
           indepndents, it is necessary to delete the words "that I am
           contesting  this  election  as  an  indendent candidate" in
           Forms 2-A and 2-B.
           
           9.26.	For  ensuring  stability  in  governance,  we  have
           recommended  hereinbefore,  in  chapter II of Part III that
           any political party which obtains less than 5% of the total
           valid  votes  cast  in  the  parliamentary  election  or  a
           Legislative Assembly election, shall not be entitled to any
           seats in the Lok Sabha or Legislative Assembly, as the case
           may be,  even  if  it  wins  any  seat  or  seats.   Such a
           provision would lead to polarisation  among  the  political
           parties  and  to formation of larger political parties by a
           process of integration or formation of pre-election fronts.
           We have also  recommend  the  insertion  of  denifition  of
           "political  party"  in  the  Tenth  Schedule  to  include a
           pre-election front or pre-election coalition.   In  such  a
           situation,  defection of a member of such constituent party
           of the pre-election front or of the constituent party as  a
           whole  from  the  pre-election  front  would  be treated as
           defection attracting the provisions of the  Tenth  Schedule
           to the Constitution.
           				(Paragraph 7.1.2.)
           
           9.27.	We  also  recommnd  that the Hon'ble Speaker of the
           Lok Sabha may introduce a new rule, Rule 198A, in the Rules
           of Procedure and Conduct of Business in the  Lok  Sabha  to
           the following effect :
           
           Rule 198-A (1)	Once a no-confidence motion is taken up for
           discussion  and voted upon as contemplated by sub-rules (3)
           and (4) of Rule 198, no fresh  motion  expressing  want  of
           confidence  in  the Council of Ministers shall be permitted
           to be made for a period of  two  years  from  the  date  of
           voting upon such motion.
           
           
           (2)	Once  a motion expressing confidence in the Council
           of Minister is  made  pursuant  to  the  direction  of  the
           President,  no motion expressing want of confidence in such
           Council of Ministers shall be permitted to be moved  for  a
           period of two years.
           
           (3)	No  leave  shall  be  granted  under Rules 198 to a
           motion expressing want of  confidence  in  the  Council  of
           Ministers,  unless it is accompanied by a motion expressing
           confidence in a named individual.
           Both  the  motions  shall  be  considered  and   deiscussed
           simultaneously and  voted upon.  Each member shall have two
           votes.  Unless the motion expressing confidence in a  named
           individual  is  passed  by  a  majority,  the result of the
           voting upon the motion expressing want of confidence in the
           Council of Ministers shall not be  given  effect  to,  even
           when it is passed by a majority.
           				(Paragraph 7.1.4.)
           
           	Similar amendemtns may also be made by the Speakers
           of  Legislative  Assemblies  in  the  respective  Rules  of
           procedure governing the proceddings  in  their  Legislative
           Assemblies.
           
           9.28.	Use  of  Election  Voting  Machine Desirable :- The
           idea of electronic voting machines and identity  cards  for
           all  voters,  initiated by the Election Commission sometime
           ago, is a highly desirable step.  The introduction of these
           two steps would  go  to  make  the  election  process  more
           simple, transparent  and  fair.  Introduction of electronic
           voting machines would also dispense with  the  printing  of
           ballot  papers  which involves substantial amount of public
           money and time.  The printing of ballot papers  has  to  be
           undertaken  only after the list of contesting candidates is
           published under section 38 of the R.P.  Act and printing of
           crores of ballot papers  within  a  short  time,  with  due
           secrecy and   security,   is   a   major   exercise.    The
           introduction of electronic voting machines would enable the
           Election Commission  to  dispnese  with  the  printing  and
           distribution of  ballot  papers.    It  would  also help in
           curtailing the priod between the date of publication of the
           list of contesting candidates (under section 38 of the Act)
           and the date of polling.  The reduction of this period, may
           be even to one week, would help in reducing the expenduture
           incurred  by  the  candidates  and  political  parties   on
           election campaign and other incidental expenditure.
           				(Paragraph 7.2.4.)
           
           9.29.	Alternative  method  of  Election:-  In the working
           paper, we had set out  in  the  Appendix,  "An  alternative
           method  of election." According to this method of election,
           no candidate would be declared elected unless  he  obtained
           50%+1   of  the  valid  votes  cast  in  that  territotrial
           constituency.  The other idea put forward is the concept of
           "negative  vote."  Thse  two  concepts  have   been   fully
           explained  in  the  working  paper  under  the  heading "An
           Alternative Method of Election." Such an alternative method
           of election was suggested by certain eminent  persons  with
           long experience  in  public  life.  This method goes a long
           way in ensuring purity of election, keeping  out  criminals
           and  other undesirable elements and also serves to minimise
           the role and importance of caste and religion.
           
           	In the opinion of the Law Commission, the idea  and
           underlying object   are   both   laudable.     Besides  the
           advantages pointed out above, this method of election  also
           acts as a powerful disincentive against voter intimidation.
           It  would  provide  an opportunity to the voters to express
           their disapproval of the bad candidates and  the  political
           parties who  put  them forward.  The parties and candidates
           would also try, in such a situtation, to gather a consensus
           and fight on ideologies and programmes rather than on caste
           or religious vote  banks.    There  are,  however,  certain
           practical  difficulties  and  problems  which we must point
           out, are inherent in  the  above  system,  particularly  in
           Indian conditions.    Before  we  set  out  those practical
           difficulties and problems, it is necessary to clarify  that
           the  requirement  of  50%+1  of  the  votes and the idea of
           negative vote, are both distinct ideas.  It  is  true  that
           both can  be clubbed together but it is not necessary.  The
           requirement of 50%+1 of the vote can be implemented without
           implementing the  idea  of  negative  vote  simultaneously,
           though  the  idea  of  negative  vote,  as explained in the
           working paper, cannot be implemented  without  implementing
           the idea of 50%+1 vote.
           
           	Practical difficulties and problems:- The elections
           to  Lok  Sabha or for that matter Legislative Assemblies in
           bigger states, are not held on one single date.   Elaborate
           arrangements  have  to be made to establish polling booths,
           to requsition, allocate and transport the personnel to  man
           the  polling  booths,  and the transfport and stationing of
           police and other parliamentary forces for maintaining peace
           at the time of polling and so on.  Because of these factors
           and considerations, elections to Lok Sabha are held on  two
           or more  dates.  Elections to Legislative Assemblies of big
           States are also spread over two dates.  Secondly,  counting
           does not  take  place  soon  after  the  polling.  Counting
           begins only after the polling thoughout the country (in the
           case of Lok Sabha) and throughout the State (in the case of
           a Legislative Assembly) is completed which means that if  a
           run-off  election  is  to  be  held,  fresh ballot paper is
           required to be printed in respect of  those  constituencies
           (where the run-off has become necessary) and polling has to
           be  held afresh which means either retaining or rearranging
           the entire  paraphernalia  mentioned  above  including  the
           stationong  of  Police  and other foces to maintain law and
           order.  And, if the idea of negative vote is implemented, a
           fresh election may become necessary, in case  no  candidate
           gets 50%+1 votes even in the run-off.
           				(Paragraphs 8.1 and 8.9)
           
           9.30	For  the  sake of convenience, the Amendemnt Bills,
           to  be  introduced  in  Parliament  are  appended  herewith
           (Annexure-A).    The   Amendement   Bills  incorporate  the
           provisons  of  the  Bills  (Annexure-I)  annexed  with  the
           Working Paper circulated by the Commission (Annexure-B), as
           well as  the  recommendations made in the report.  In other
           words,  if  all  the  amendments  suggested  by   the   Law
           Commission  are  accepted  by  Parliament, the Constitution
           (......) Amendemnt Bill, 1999, the  Representation  of  the
           People  and  other  Allied  Laws  (Amendment)  Bill,  1999,
           amendemnts to Chapter IXA of the Indian Penal  Code,  1860,
           
           
           
           
           amendemtns to Chapter XIV and Chapter XXVI of the  Code  of
           Criminal Procedure, 1973, amendment to the Forms 2-A to 2-E
           of  the  Code  of Election Rules, 1961 and amendemnt to the
           Rules of Procedure and  Conduct  of  Business  in  the  Lok
           Sabha, would reas as set out in the Annexure-A.
           
           	We recommend accordingly,
           
           	
           
            (MR.  JUSTICE B.P.  JEEVAN REDDY) (Retd.)
           			CHAIRMAN
           
           

           
           (MS.JUSTICE LEILA SETH)(Retd.)(DR.N.M.GHATATE) (DR.SUBHASH C.JAIN)
                 MEMBER			   MEMBER	 MEMBER SECRETARY


           
           
           DATED :	29TH MAY, 1999
           
           	

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