A Bill of contention

The draft Bill to amend the Representation of the People Act, meant to undo the Election Commission's move to make certain information about candidates public, fails to satisfy political parties.

SOMETIMES an expression of rare unanimity among political parties on an issue can lull the government into complacency or encourage it to go overboard. At the all-party meeting on July 8 in New Delhi, representatives of 21 political parties rejected the Election Commission's (E.C.) June 28 order - following the May 2 Supreme Court judgment - making it mandatory for persons filing nominations for elections to disclose information about their wealth, education and criminal antecedents, if any. They urged the government to introduce a comprehensive law at the earliest, so that the incongruities in the E.C.'s order could be effectively dealt with (Frontline, August 2).

The Union Ministry of Law and Justice made public on July 15 the draft Bill to amend the Representation of the People Act (RPA). Ironically, it disappointed both the supporters and the opponents of the E.C.'s order.

The draft Bill clearly suffers from an obsession to undo the impression created by a section of the media that the political class, driven by a "rare unanimity", was keen to sabotage the efforts of the Supreme Court and the E.C. tried to combat criminalisation of politics and make the electoral process transparent. Thus the Bill appeared to go beyond the issue of disclosing the candidates' assets and educational qualifications - on which it was silent - by seeking to disqualify candidates charged with certain offences.

The Bill adds a new section - Section 8B - to the RPA. Under it, a person against whom charges have been framed by a court of competent jurisdiction in two separate criminal proceedings concerning heinous offences at least six months before his or her nomination for an election is filed, shall be disqualified until his or her acquittal or discharge in such proceeding.

The section has a key proviso: provisions of this sub-section shall not apply if such criminal proceeding is stayed by a court of competent jurisdiction. This seems to undo the essence of the Constitution Bench's judgment in the Jayalalithaa disqualification case delivered last year. The Supreme Court held then that the stay of sentence by an appellate court amounts only to a stay of the execution of the sentence and not the sentence itself, and that if a person is convicted and sentenced for two years and more by a trial court, then he or she suffered electoral disqualification under Section 8(3) of the RPA despite the stay on the sentence by the appellate court. Applying the same principle, can a stay of the criminal proceedings against a person by an appellate court be construed as the quashing of the charges against him, thus wiping out his disqualification?

The Bill lists certain offences that could be considered "heinous". They include offences under Sections 18, 20, 23 and 24 of the Narcotic Drugs and Psychotropic Substances Act, 1985; and Section 3 or clause (b) of Section 4 or Section 5 of the Prevention of Terrorism Act, 2002, and offences under the following sections of the Indian Penal Code (IPC): Section 121 (waging war against the Government of India); Section 302 (murder); Section 364 (kidnapping or abducting in order to murder); Section 364A (kidnapping for ransom); Section 376 (rape); Section 395 (dacoity); and Section 396 (dacoity with murder).

The list is by no means exhaustive, and there seems to be a motive behind excluding some offences. For instance, Section 153-A of the IPC, which makes promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language and so on an offence, is not included in the list. Had it been included, many members of the Sangh Parivar - who are today Ministers at the Centre and in the States - could invite disqualification. Deputy Prime Minister L.K. Advani and his ministerial colleagues Murli Manohar Joshi and Uma Bharati face trial on the charge of complicity in the demolition of the Babri Masjid in 1992. They have been charged by a trial court for various offences, including those under Section 153-A.

Advani and his ministerial colleagues could claim that the demolition case was foisted on them for political reasons; there is no reason to believe that the "heinous" cases listed in the Bill would not be registered by the ruling party or coalition against their political opponents, or that the courts would refrain from framing charges in such cases.

Lawyer Kapil Sibal, Congress(I) Member of Parliament, expressed his opposition to the Bill thus: "By and large, MPs or MLAs are not involved in any of the offences listed as heinous. Even if some candidates are involved, why should the Returning Officers (R.O.) have the power to reject their nominations and thereby disqualify them? If the R.Os are entrusted with this power, it could lead to politically motivated cases and framing of charges. The Supreme Court, in its May 2 judgment, did not say R.Os should have this power to reject nominations on the ground of non-compliance with the E.C.'s order. But the E.C.'s order gave this power to the R.Os."

The Bill is silent on whether the R.Os will have the power to reject the nominations of candidates in cases of non-disclosure of information or provision of false information. However, Section 8B(2), which the Bill seeks to introduce in the RPA, makes it clear that such candidates would be disqualified in case they are elected to Parliament or a State legislature. This is likely to be interpreted to mean that the R.Os will have no power to reject a nomination on the grounds of non-compliance with the law and that such candidates could be prosecuted and disqualified only after the election.

The proposed Section 125A of the RPA seeks to impose a punishment of three years' imprisonment or fine or both if a candidate conceals information or declares false information relating to a heinous offence in which charges have been framed six months prior to the date of filing nomination. If the candidate conceals information or declares false information about an offence punishable with imprisonment for two years or more and on which charges have been framed, the Bill imposes a punishment of six months' imprisonment or fine or both. Political parties are likely to consider these provisions very harsh, as they have expressed the view that there could be practical problems in keeping a record of such cases.

The Bill also includes an affidavit required to be furnished by candidates along with their nomination papers. It would seek information about the candidates - whether they were convicted under Section 8 of the RPA or charge-sheeted by a court in any of the specified heinous offences. It would appear that the R.Os can reject a nomination if the facts mentioned in the affidavit invite disqualification. If there is a false disclosure or non-disclosure of an offence or conviction, the remedy perhaps lies after the election.

Sibal opposes the Bill for not complying with the Supreme Court's May 2 judgment. The Bill does not address any of the issues raised by the judgment, including the full disclosure of assets and educational qualifications, he said.

Under the proposed Section 33A - another section which the Bill seeks to add to the RPA - it has been clarified that candidates must furnish information only under the RPA and rules. What it means is that the E.C. cannot claim any power under Article 324 of the Constitution to demand additional information about candidates. This effectively nullifies the E.C's order requiring the disclosure of assets and educational qualifications.

WHILE other political parties may be inclined to back the Bill precisely for this reason, the Left parties have opposed the Bill for different reasons. S. Ramachandran Pillai, CPI(M) Polit Bureau member and Rajya Sabha member, made it clear that his party stood for disqualification only on the grounds of convictions. He said: "A trial court decides to proceed after the framing of charges on the basis of suspicion; hence political opponents can be easily booked. If charges are framed, the trial can continue for years together, may be 10 to 15 years, and this would mean a permanent bar on the right to contest elections."

He felt that if Parliament gave priority to the passage of pending Bills such as the the Lok Pal Bill, these could address the issues of corruption and disclosure of assets by representatives. A comprehensive electoral reforms Bill, in his view, should try to rectify the anomalies in Section 8 of the RPA and amend Section 77 of the RPA, which exempts expenditure by political parties from the ceiling of expenditure incurred by candidates during elections.

CPI national secretary D. Raja echoed these views. He explained: "In principle, we don't agree that charge-sheets could be the basis for disqualification of a candidate. It is immaterial whether a candidate faces one or two charge-sheets. There can be no demarcation between political and non-political cases. Former Home Minister Indrajit Gupta had proposed that political parties themselves should refrain from fielding habitual offenders as candidates. Why do we need a Bill to reform political parties? The Bill does not consider any economic offence a heinous crime, though it amounts to public loot. What about the offence of spreading communal hatred... is it not heinous?"

The lack of political consensus on the draft Bill does not mean it is devoid of any merit. Unlike the Supreme Court's May 2 judgment and the E.C's June 28 order, the Bill does not provide for a roving inquiry seeking details of all the offences in which the candidates might have been convicted or acquitted. Many political parties found this requirement impractical. The Bill, instead, seeks details about convictions and acquittals only with regard to offences mentioned under Section 8 of the RPA.

The CPI(M), for instance, has no objection to seeking, for the purpose of disclosure to voters, information regarding the charges framed or cognisance taken by the court about an offence punishable with imprisonment of two years or more against a candidate six months prior to the date of filing the nomination. The Bill concedes this right to information by proposing Section 33(B) to the RPA. However, the party felt that furnishing information regarding assets and educational qualifications of a candidate is not at all relevant to contesting elections and even to casting votes.

Loksatta, a Hyderabad-based non-governmental organisation which runs a campaign for electoral reforms, welcomed the E.C's order and the Supreme Court judgment but considered the fears about R.O's powers legitimate. It appealed to the E.C. to amend its order to clarify that R.Os will not have the authority to verify the information furnished in the affidavit by candidates, and that R.Os can reject a nomination only on the grounds of refusal to fill any detail, and leaving blank columns under any major head in the affidavit.

Loksatta, however, deplores the Bill's denial of powers to the E.C. to ensure the disclosure of information by candidates about their assets and educational qualifications, and to enforce the RPA. It has called a token gesture the provision to disqualify those against whom charges had been framed for two heinous offences six months prior to the date of filing of nomination. The Bill fails to consider a charge-sheet framed for a heinous offence within six months of the date of nomination and requires the framing of charges for two separate offences - as if the first charge-sheet is always politically motivated and the second is not.