Remarks on GOI Draft Bill (fwd)
Dear Friends,
I have just now seen the draft " The Representation of People (Amendment) Bill, 2002 ". A soft copy of the Bill is enclosed for your reference. We require to analyse it carefully and get the best legal opinion as to how to proceed further.
From a cursory glance of the Bill, the following are my initial impressions:
1.. The Bill provides for disclosure of information relating
to charges framed in a pending case by a court, provided
such offences are
punishable with imprisonment for 2 years or more.( section 5 of the Bill;
proposed section
33 (B) of the RP Act,
1951)
2.. There is a weak provision to make such information public
- but only by affixing a copy of affidavit at a
conspicuous place.
3.. Disclosure of convictions for offences listed in sections
8(1) & 8(2) of RP Act, 1951, or other offences for which
the candidate has been convicted for two years
or more is NOT provided. This is wholly retrogative step which
negates the existing disclosure provisions
as per the Election Commission's order of August 1997, which is already
in vogue and has been replaced by the ECs
order of June 28, 2002. As a result the EC will not have any
information in respect of convictions
for offences listed und
4.. The heinous offences listed in section 8B are :
section 121 IPC
: waging war against government of India
section 302 IPC
: Murder
section 364 IPC
: kidnapping or abducting in order to murder
section 364A IPC
: kidnapping for ransom section 376 IPC
: Rape section 395 IPC
: Dacoity section 396 IPC
:
Dacoity with murder section 18 & section 20 : Narcotic drugs &
Pyschotropic Substances Act, 1985 section 3
:
Prevention of Terrorism Act, 2002
5.. Section 4 of this Bill explicitly states that irrespective of any
court judgment or instruction of the EC, NO
candidate shall be liable to disclose any
information not required under this law or rules.
6.. There is not even a murmur about the other Electoral Reforms that
the government has been promising for
long. What does this law mean?
1.. This is meant essentially to nullify the Supreme Court
Judgment of May 2nd and Election Commission
order of June 28.
2.. The ECs jurisdiction under Art 324 is sought to be nullified in respect of any disclosures in future.
3.. The new disqualification is only for two separate
charges framed for extremely grave offences, that too
prior to six
months before nomination, and only if such cases are not stayed by
any competent court.
In effect, this is
a token attempt to give an impression that some genuine effort is
being made to curb
criminalization of
politics. In reality, the net effect of this provision will be marginal
at best.
4.. There is no disclosure of any financial details. And
if this law stands as it is, there is no possibility of future
disclosures of candidate's
assets and liabilities.
5.. As pointed out earlier this Bill prohibits eliciting
information even to enforce the existing provisions of the
RP Act, 1951.
Questions
1.. The Supreme Court's judgment is in respect of the fundamental
right to information, derived under Art 19 of
the Constitution. Can the legislature
abridge this fundamental right?
2.. If the law does abridge this right is there a recourse to the Supreme Court?
3.. Can people be denied information related to other charges
framed and past convictions, when they are a matter
of public record?
4.. What happens if a candidate commits a second murder just a few months
before the election and is charged with
the offence by a competent court? Have
we come to such a sorry pass that even for extremely grave offences,
if charges are framed within six
months prior to nomination, the candidate cannot be disqualified? And do
we
require two such separate offences to
think of disqualifying a candidate? Is this a rehabilitation programme
for
hardened criminals?
5.. Can a law prohibit the EC from exercising its legitimate jurisdiction
under Art 324 from seeking information
which is relevant to discharge of its
duties under the law - for example, details of convictions which might
disqualify
a candidate?
What Can We Do Now?
1.. We require to contact jurists to get their advice. Justice
Rajender Sachar, Ms. Kamini Jaiswal, Sri Sanjay Parikh
and Ms. Pinky Anand should
guide us about our legal options. I presume there is no recourse to litigation
until
this Bill becomes law. But
we should study the issue and be ready.
2.. Even at this late hour, if we should try and see if the EC
can clarify that the RO will have no arbitrary powers or
discretion under the order issued
on June 28. That will help us get the support of many enlightened politicians
and parties.
3.. The public education campaign should continue. In particular,
the media should be briefed about the implications
of this Bill.
4.. Whatever be the immediate outcome, the events of the
past 10 weeks have certainly forced Electoral Reform to
the center stage of
our political discourse. We should now look at the whole reform agenda
- particularly curbing
polling irregularities,
accountable use of money power and measures to enhance representational
legitimacy and
internal party democracy.
5.. We need to emphatically dispel the notion that
all reform efforts are anti political, and "elitist". Our efforts
are to
cleanse political
process, and strengthen democracy, and are undertaken with deep respect
for liberty, and
citizens' sovereignty.
We do not believe politicians are the villains. They are the victims
of a vicious cycle.
The political
class needs to seize the national mood as an opportunity and not
perceive it as a threat.
6.. Irrespective of the outcome on legislative and
legal fronts, informed and assertive citizenry can make
disclosures through civil
society initiatives and media support a reality. No law prevents us institutionalizing
disclosures through citizens'
efforts. We should share experiences of citizens' initiatives and
standardize
techniques of benchmarking
and disclosures.
Finally, the last few months are not a waste. We are much better
off than we were a few months ago.
Electoral Reform is now occupying center stage in public domain. The
knee-jerk response of parties only helped
mobilize public support for reform efforts. Media is taking up the
issue of clean elections very seriously. Setbacks in
short- term battles are inevitable. But the cause of democracy has
received a great boost. If we act with clarity,
conviction and a strategic sense, we may yet get full disclosure Do
please think over and give your considered
responses. Friends in Delhi may get the legal advice quickly and advice
us.
With warm regards
Jayaprakash Narayan
National Cordinator
Lok Satta
401/408 Nirmal Towers
Dwarakapuri Colony, Punjagutta
Hyderabad - 500 082
Tel: 040 3350778/3350790
Fax: 040 3350783
E-mail: loksatta@satyam.net.in
url: www.loksatta.org _____________________________________________________________________________________________
section (2) of section 3, or clause (b) of section 4, or section 5
of the Prevention of Terrorism Act, 2002.
45 of 1860
61 of 1985
15 of 2002
Amendment of section 113. In section 11 of the principal Act, for the
brackets, words, figure and letter (except under section 8A), the brackets,
words, figures and letters (except under sections 8A and 8B) shall be
substituted. Insertion of new section 33A4. After section 33 of the principal
Act, the following section shall be inserted and shall be deemed to have
been inserted with effect from the 2nd day of May, 2002, namely:- Candidate
to furnish information only under the Act and the rules33A. Notwithstanding
anything contained in any judgment, decree or order of any court or any
direction, order or any other instruction issued by the Election Commission,
no candidate shall be liable to disclose or furnish any such information,
in respect of his election, which is not required to be disclosed or furnished
under this Act or the rules made there under. Insertion of new section
33B5. After Section 33A of the principal Act as so inserted, the following
section shall be inserted , namely:-Right to Information33B.
(1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made there under, in his nomination paper delivered under sub-section(1) of section 33, also furnish the information as to whether he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction.
(2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1).
(3) The returning officer shall, as soon as may be after the furnishing
of information to him under sub-section (1), display
the aforesaid information by affixing a copy of the affidavit, delivered
under sub-section (2), at a conspicuous place at
his office for the information of the electors relating to a constituency
for which the nomination paper is delivered.6.
In Part VII of the principal Act, in chapter III, after section 125,
the following section shall be inserted, namely:- 125A.
A candidate who himself r through his proposer, with intent to be elected
in an election,- fails to give information relating
to sub-section (1) of section 33B; or gives false information which
he knows or has reason to believe to be false; or
conceals any information, in his nomination paper delivered under sub-section
(1) of section 33 or in his affidavit which is required to be furnished
therein under sub-section (2) of section 33B, as the case may be, shall,
notwithstanding anything contained in any other law for the time being
in force, be punishable, if the information relates to any heinous offence
specified in Explanation to section 8B, with imprisonment for a term
which may extend to three years, or with fine, or
with both; or Sub-section (1) of section 33B, with imprisonment for
a term which may extend to six months or with fine ,
or with both.:Insertion of new section 125A Penalty for filing false
affidavit, etc.7. In section 169 of the principal Act,
in sub-section (2), clause (a) shall be renumbered as clause (aa) thereof
and before clause (aa) as so renumbered,
the following clause shall be inserted namely:-
(a) the form of affidavit under sub-section (2) of section 33B:Amendment
of section 169
PART III A
(To be filled by the Candidate)
Whether the candidate has ever been convicted of any offence or for
contravention of any law specified in
sub-sections (1) and (2) of section 8 of the Representation of the
People Act, 1951 or for any other offence(s) for
which he has been sentenced to imprisonment for two years or more
Yes/No.
(If the answer is Yes, the candidate shall furnish the following
information) :
Case/FIR No./Nos
Police Station
.. District
State
.. Section(s) of the Act and brief description of the offence
(s) for which
he was convicted
..
Date(s) of conviction(s)
Court(s) which convicted the candidate
..
Punishment (s) imposed ( indicate period of imprisonment(s) and /or
quantum of fine)
.
Date of release from prison :
Was any appeal/revision filed against conviction: Yes/No Particulars
of appeal/application for revision filed:
.
Name of the Court before which the appeal/application for revision
filed:
..
Whether the said appeal/application for revision has been disposed
of or is pending
Whether charges have been framed by a competent court against the candidate
at least six months before the date of
delivery of nomination paper under sub-section (1) of section 33 of
the Representation of People Act, 1951 in any of
the following heinous offences: Section 121 (offence of waging or attempting
to wage war or abetting waging of war
against the Government of India), or section 302 (offence relating
to murder) or section 364 or section 364A
(offences relating to kidnapping or abduction), or section 376 (offences
relating to rape); or section 395 or section
396 (offences relating to robbery and dacoity); of the Indian Penal
Code ( 45 of 1860); or Clause (b) of section 18
(offence relating to opium poppy and opium), or sub-clause (C) of clause
9ii) of section 20 (offence relating to cannabis
plant and cannabis), or clause (c) of section 23 (offence relating
to illegal import, export or transshipment of narcotic
drugs and psychotropic substances) or section 24 ( offence relating
to external dealings in narcotic drugs and psychotropic substances); of
the Narcotics Drugs and Psychotropic Substances Act, 1985 (61 of 1985);
Clause (a) of sub-section (2)
of section 3, or clause (b) of section 4, or section 5 of the Prevention
of Terrorism Act, 2002 (15 of 2002), ( If the
answer is Yes, the candidate shall furnish the following information
):
Case/FIR No./Nos . Police Station .. District State . Section(s) of the Act and short description of the offence (s) for which the candidate has been charged Court(s) which framed the charge(s) .. Date (s) on which the charge(s) was/were framed .. Whether all or any of the proceedings have been stayed by any Court of competent jurisdiction .
Note: - In this Part, the information furnished under serial number
1 shall not be required to be furnished
under serial number 2. Place: Date: Signature of the Candidate Page
Note: - In this Part, the information furnished under serial number
1 shall not be required to be furnished under serial number 2.
Place:
Date:
Signature of the Candidate
_____________________________________________________________________________________________