The Representation of The People (Amendment)  Ordinance, 2002

Dear Friends,

Please find enclosed the soft copy of the Ordinance promulgated by the President on 24 August. We will communicate an analysis of the Ordinance and the suggested course of action later. But a cursory glance of the Ordinance reveals the following:

1.. Disclosure of criminal record is broadly in conformity with what was  earlier provided in the draft Bill. The Ordinance provides (under new  Section 33 A of RPA, 1951) for:
    1.. all pending charges framed by  a magistrate in respect of offences
         punishable with imprisonment for 2 years or more.

    2.. all convictions, provided the sentence of one year or more imprisonment is awarded.
        There is some avoidable ambiguity regarding disclosures of convictions for
        offences listed under Section 8(1) and 8(2) of the RP Act, 1951. Earlier,
        the draft Bill enclosed an affidavit to be incorporated under Rules in
        Part IIIA, and that part provided for disclosure of all convictions in
        respect of all offences listed in Section 8 of RP Act.  We do not know if
        that rule is still being notified, or such disclosures, provided for by
        the EC since 1997, are necessary to enforce the disqualification provisio
 
2.. The real problem, as we know all along, is in respect of financial disclosures. The Ordinance provides for disclosure of assets and liabilities by elected legislators to the presiding officers, and not by candidates, to the returning officer and the public at the time of  nomination.

3.. There is no provision for disclosure of educational qualifications, as directed by the Supreme Court. Personally, I am of  the view that this is not significant, and we need not make disclosure of educational background a contentious issue.

4.. The most objectionable provision in the Ordinance is the Section 3, by which Section 33B is inserted in RPA, 1951. This is an exact replica of old Section 4 in the draft Bill and proposed Section 33 in RPA. Section 3 of  the Ordinance reads as follows:
    "3. After section 33A of the principal Act as so inserted, the following section
         shall be inserted and shall be deemed to have been inserted with
         effect from the 2nd day of May, 2002, namely:-

"33B. 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 thereunder."

I believe, as stated earlier, and as we represented to the President, that this provision clearly abridges our fundamental rights under Art 19 (as declared by Supreme Court in May 2 judgment), and is violative of Art 13 of the Constitution. This has to be the major ground for challenging the constitutionality of the law.

Our legal team needs to examine the Ordinance, and this provision critically, and decide on their course of action. We will have a preliminary meeting with the legal team on 28th and 29th August in Delhi
to work out the modalities of moving the Supreme Court.

Despite this Ordinance, we have accomplished quite a lot over the past four months:

1.. We do have reasonably satisfactory criminal disclosures in place, subject to the caveat I mentioned above.

2.. The financial disclosures after the election are mandated by law now.

3.. The unsatisfactory portions of the Ordinance can now be challenged before the Court.

4.. Public awareness today is far greater than ever before on the issue of electoral reforms.

5.. Media is strongly supportive of disclosures and political reforms. 6.. Even political parties admit that it can no  longer be " business as usual".
 

Therefore there is no reason to feel unduly pessimistic or be discouraged. Our experience shows that collective, determined, sensible, and fruitful pursuit of reforms does pay dividends. This is only the beginning. We should now fight on two fronts - questioning the constitutionality of the legislation, and mobilizing public opinion and sustaining public interest in the reform agenda.

A detailed communication will reach you outlining further developments and suggested course of action on various fronts at various levels.

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

The Gazette of India
EXTRAORDINARY
PART II – Section 1
PUBLISHED BY AUTHORITY

NEW DELHI, SATURDAY, AUGUST 24, 2002 / BHADRA 2, 1924

Separate paging is given to this Part in order that it may be filed as a separate compilation.

MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the 24th August, 2002/Bhadra 2, 1924 (Saka)

THE REPRESENTATION OF THE PEOPLE (AMENDMENT)
ORDINANCE, 2002
No. 4 of 2002

Promulgated by the President in the Fifty-third Year of the Republic of India.

An Ordinance further to amend the Representation of the People Act, 1951.

WHEREAS Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action.

NOW, THEREFORE, in exercise of the powers conferred by clause (1) of article 123 of the Constitution, the President is pleased to promulgate the following Ordinance:-

1. (1) This Ordinance may be called the Representation of the People (Amendment) Ordinance, 2002.

(2) Save as otherwise provided in this Ordinance, the provisions of this Ordinance shall come into force
     at once.
 
 
2. After section 33 of the Representation of the People Act, 1951   (hereinafter referred to as the principal Act), the following section shall be inserted, namely:-

“33A. (1) A candidate shall, apart from any information which he is required to furnish, under this Act  or the rules made thereunder, in his nomination paper delivered under sub-section (1) of section 33, also furnish the information as to whether-

(i) 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;

(ii) he has been convicted of an offence [other than any offence referred to in sub-section (1) or sub-section (2), or covered in sub-section (3), of section 8] and sentenced to imprisonment for one year or more.

(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 (1), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered.”
 
3. After section 33A of the principal Act as so inserted, the following section shall be inserted and shall be deemed to have been inserted with effect from the 2nd day of May, 2002, namely:-

 “33B. 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.”

4. In Part V of the principal Act, after Chapter VII, the following Chapter shall be inserted, namely:-
 

CHAPTER VIIA

DECLARATION OF ASSETS AND LIABILITIES

75A. (1) Every elected candidate for a House of Parliament or the Legislature of a State shall, with in ninety days from the date on which he makes and subscribes an oath or affirmation, according to the form set out for the purpose in the Third Schedule to the Constitution, for taking his seat in either House of Parliament or in the Legislative Assembly of a State or the Legislative Council of a State, as the case may be,  furnish the information, relating to-

(i) the movable and immovable property of which he is the owner or a beneficiary;
(ii) his liabilities to any public financial institution; and
(iii) his liabilities to the Central Government or the State Government,

to the Chairman of the Council of States or the Speaker of the House of the People or the Chairman of the Legislative Council of a State or the Speaker of the Legislative Assembly of a State, as the case may be.
 

(2) The information under sub-section (1) shall be furnished in such form and in such manner as may be prescribed in the rules made under sub-section (3).

(3) The Chairman of the Council of States or the Speaker of the House of the People or the Chairman of the Legislative Council of a State or the Speaker of the Legislative Assembly of a State, as the case may be, may make rules for the purposes of sub-section (2).

(4) The rules made by the Chairman of the Council of States or the Speaker of the House of the People or, as the case may be, by the Chairman of the Legislative Council of a State or the Speaker of the Legislative Assembly of a State under sub-section (3) shall be laid, as soon as may be after they are made, before the Council of States or the House of the People or the Legislative Council or the Legislative Assembly, as the case may be, for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the Council of States or the House of the People or the Legislative Council or the Legislative Assembly and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved, they shall be of no effect.

(5) The Chairman of the Council of States or the Speaker of the House of the People or, as the case may be, the Chairman of the Legislative Council of a State or the Speaker of the Legislative Assembly of a State may direct that any wilful contravention of the rules made under sub-section (3) by an elected candidate referred to in sub-section (1) may be dealt with in the same manner as a breach of privilege of the Council of States or the House of the People or the Legislative Council or the Legislative Assembly, as the case may be.
 
 Explanation:- For the purposes of this section, -

(i) “immovable property” means the land and includes any building or other structure attached to the land or permanently fastened to anything which is attached to the land;

(ii) “movable property” means any other property which is not the immovable property and includes corporeal and incorporeal property of every description;

(iii) “public financial institution” means a public financial institution within the meaning of section 4A of the Companies Act, 1956 and includes bank; and

(iv) “bank” referred to in clause (iii) means –
      (a) “State Bank of India” constituted under section 3 of the State Bank of India Act, 1955;

      (b) “subsidiary bank” having the meaning assigned to it in clause (k) of section 2 of the State Bank
            of India (Subsidiary Banks) Act, 1959;

      (c) “Regional Rural Bank” established under section 3 of the Regional Rural Banks Act, 1976;

      (d) “corresponding new bank” having the meaning assigned to it in clause (da) of section 5 of
            the Banking Regulation Act, 1949; and

     (e) “co-operative bank” having the meaning assigned to it in clause (cci) of section 5 of the Banking
           Regulation Act, 1949 as modified by sub-clause (i) of clause of (c ) of section 56 of that Act.

5. After section 125 of the principal Act, the following section shall be inserted, namely:-
 
 “125A. A candidate who himself or through his proposer, with intent to be  elected in an election,

(i) fails to furnish information relating to sub-section (I) of section 33A; or
(ii) gives false information which he knows or has reason to believe to be  false;or
(iii) conceals any information,

in his nomination paper delivered under sub-section (1) of section 33 or in his affidavit which is required to be delivered under sub-section (2) of section 33A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.”
 
6. 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 33A;”
 
APJ ABDUL KALAM
     President
 

SUBHASH C JAIN
Secy. to the Govt. of India
 
 

PRINTED BY THE MANAGER, GOVERNMENT OF INDIA(PLU), MINTO ROAD, NEW DELHI AND PUBLISHED BY THE CONTROLLER OF PUBLICATIONS, DELHI, 2002