RPA. "Salient features of Representation Act"

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1 RPA 07 January :58 "Salient features of Representation Act" Election funding The EC cannot wage this battle alone efforts to curb the flow of cash in election campaigns need to be embedded in a wider cleaning up of the account books of political parties. Campaign finance remains anachronistically opaque, and the distortions include not just money power at election time, but also corruption in administration and in, say, the use of local area development funds. The only cause for cheer in this grim scenario is that voters do not necessarily vote for the highest bidder. Foreign firms can now fund parties The government has admitted that the amended Foreign Contribution Regulation Act (FCRA), 2010, which they brought in through the Finance Bill route, will not only help foreign -origin companies to fund NGOs here but has also cleared the way for them to give donations to political parties. Details: The amendment, which was cleared by the Lok Sabha in the recently concluded Budget session, will ensure that donations made by such [foreign shareholding] companies to entities including political parties will not attract provisions of the FCRA, The government has brought the changes with retrospective effect. Background: The statement assumes significance as such funding from foreign donors will bypass government scrutiny. The Representation of the People Act bars political parties from receiving foreign funds. Coterminous LS, State polls not feasible Why we need Coterminous administrative lethargy monetary expenditure Issues related to Coterminous 1. Instability Implementation led to instability in country as dissolution of Lok Sabha led to dissolution of all state assemblies just for sake of simultaneity, which is not practical way 2. Management issue Simultaneous election required large amount of workforce like workers, paramilitary forces than that of in current condition, which create large management issues during such environment 3. Power of opposition Simultaneous election may led to same party winning elections at national, state & local level reducing power of opposition, which is significant constraint on governments accountability 4. Clarity about agenda and accountability Separate elections brings clarity on different local, state & national issues, which otherwise may brings confusion to voters Constitutionally it will be impossible to implement For example when the former Prime Minister Atal Behari Vajpayee s 13-day government fell in 1996, should all the State Assemblies have been dissolved at that time? Would it have been valid to disturb the mandate of those governments. Then what should be done All of these issues can be tackled through electoral reforms, without getting into Constitutional matters. Expenditure undertaken by political parties for various elections the parties, can be capped. The solution to excessive campaign expenditure is better found in persuading political leaderships to develop self-discipline and to explain to the people the need for unpopular, but necessary decisions Pradeep Choudhary Page 1

2 standing committee on law and justice two-phase poll States divided into two groups, one for which elections would be in the middle of the current Lok Sabha (16 States) and another where elections will be held at the end of the current Lok Sabha (19 States). By this process, at least half the States in India will have polls alongside Lok Sabha polls, and the rest in the middle of that term. Political parties must maintain properly audited accounts, says High Court Scenario Disposing of an appeal filed by the Indian National Congress for exemption from income tax for the assessment year , a Division Bench of the High Court said a party cannot claim exemption from paying income tax on voluntary contributions if records are not duly maintained. Section 13 A Under Section 13-A, income by way of voluntary contributions to a political party is not taxed Condition, Maintain account book This exemption can only be availed if the party in question maintains a book of accounts with respect to these contributions In contributions of Rs.10,000 or more, the donor s name and address will have to be recorded. Court Verdict The court observed that most of the public funds spent by political parties to fight elections were unaccounted and called legislative measures to check the influence of such money on the electoral process. EC SEEKS FULL INDEPENDENCE Commissioners At present only Chief Election Commissioner has security of tenure Constitutional protection for all three of its members as opposed to just one at present. Its two Election Commissioners can be removed by the government on the recommendation of the Chief Election Commissioner Senior most EC should be automatically elevated as CEC in order to instill a feeling of security in the minds of the ECs and that they are insulated from executive interference in the same manner as CEC. Funding Also its budget is not a charged expenditure, but is voted by the Parliament. It has also sought absolute financial freedom from the Law Ministry Like the CAG and UPSC, the ECI wants its budget to be charged to the Consolidated Fund as opposed to the current practice of being voted and approved by Parliament. Secretariat independent secretariat Vote Counting introduction of totalizer machines for counting of votes, totalizer machine increases the secrecy of voting by counting votes, as against the current practice of announcing booth-wise results. Electoral Trust? What is Electoral Trust? non-profit company created in India under Section 8 of the Companies Act for orderly receipt of the voluntary contributions from any person and for distributing the same to the respective political parties. Why Corporates are entitled for tax benefits with regard to electoral trusts subject to certain conditions. The benefits can be availed only if the trusts distribute 95% of the total contributions received in a particular fiscal to registered political parties in that same year itself. Pradeep Choudhary Page 2

3 Objective The objective of the Electoral Trust is not to earn any profit sole objective is to distribute the contributions received by it to the political party concerned Why do corporates and politicians prefer electoral trusts? maintaining anonymity Can a Legislator facing Criminal Trial be disqualified at the time of Framing of Charge? Moot question is? whether a legislator facing criminal trial should be disqualified at the very stage of framing of charges against him by the trial court? Law Commission of India in its 244th Report Titled Electoral Disqualifications answered the questions as follows; 1. Disqualification upon conviction has proved to be incapable of curbing the growing criminalization of politics, owing to long delays in trials and rare convictions. 2. The law needs to evolve to pose an effective deterrence, and to prevent subversion of the process of justice. 3. The filing of the police report under Section 173 Cr.PC is not an appropriate stage to introduce electoral disqualifications owing to the lack of sufficient application of judicial mind at this stage. 4. The stage of framing of charges is based on adequate levels of judicial scrutiny, and disqualification at the stage of charging, if accompanied by substantial attendant legal safeguards to prevent misuse, has significant potential in curbing the spread of criminalization of politics. Only offences which have a maximum punishment of five years or above ought to be included within the remit of this provision. The disqualification will operate till an acquittal by the trial court, or for a period of six years, whichever is earlier. Trials must be expedited so that they are conducted on a day-to-day basis and concluded within a 1- year period. Students Union in Institutions and Political debates Students in History Students have been playing an important role in politics since pre independence times, Movements like Swadeshi, Non cooperation, Civil disobedience, and Quit India etc are perfect example of students participating in politics of the country. And given the legitimate right to vote at the age of 18 makes political debate on campuses a necessity, provided the discourse happens within the purview of constitution. Banning of political debates in the campuses is unviable and it is an insult to free speech. Why students debates matter Students are the reflection of political, social, cultural change in the country, Youths are always the one who give the movement its energy, idealism, After all politics is all about trying to understand the larger sense of the world in which they live and to able to intervene in it meaningfully to make a world better place. Education Key to quality Public Representation What are the issues In India, even today, electability, or ability to get elected, remains the single-most decisive factor in awarding a party ticket. Those who get party nomination are more often than not unable to boast of any high personal qualifications. This is certainly bound to affect quality of representation, impacting deliberations, decision-making and delivery in a democratic setup. And being a part of competitive democratic polity, there is an obvious limitation for any single party taking a meritocratic view (A political philosophy holding that power should be vested in individuals almost exclusively based on ability and talent). Obviously then, electability becomes the common single denominator, leading to a situation where people get a representative that they in fact do not deserve. Efforts in India to tackle it Haryana law Pradeep Choudhary Page 3

4 Impacts of this law: several young women making it to the positions of sarpanch It has also helped achieve greater gender justice as the number of women making it to rural local self-government institutions has gone beyond the quota limit of 33%. The state has as many as 43% women member Opposition to different educational qualification It was argued that whether a man or woman, SC or general, the functions of a panchayat member is the same and hence if a Class 5 pass is enough to discharge a member s function, why has a higher qualification of middle pass and matriculation pass been imposed? RPA/Election reforms Election reforms to consider: Rajya Sabha election RS election has open-ballot voting i.e. Party can know which MLA gave vote to which Rajysabha candidate. Similar system should be adopted for Vidhan Parishad election too. Andhra Pradesh, Telangana and Bihar ready. Vidhan Parishad in some states 1/3rd Vidhan Parishad members not retiring each 2 years. Need to amend law. Funding Amend Form-24-A so political parties have to disclose even donations less than 20,000 rupees. Secretariat give Independent Secretariat for the Election Commission and its budget should be charged on consolidated fund of India- just like CAG and UPSC. Should Women be Given 33% or more Reservation in Legislatures? Nehru said, " Status of a country depend upon how women is valued in that country". Apart from this government should takes steps to increase women participation in electoral process and should create awareness among women to use their rights effectively. Scandivian countries are rich and prosperous because there is minimal gender inequality and high participation of women in parliaments in these countries. India should accord at least 33 percent if not more. If we truly want to empower them, spend on creating awareness more than anything. Spend on education - the biggest tool that can be used to make the women empowered. Chhattisgarh By-election Scam is a Wake Up Call Election time corruption root cause of all corruption in the country victory by hook or crook. The recovery begins soon after. No donor gives money without the hope of some return. The quid pro quo is obvious The role of money power bribing voters withdraw for money from a rival bogus or dummy candidates to cut into rivals votes (or to confuse the voters) what can the EC do? After the announcement of the results, the EC becomes functus officio. The power shifts instead to the high court RPA, 51 Section 86 of RPA trial of an election petition shall day to day until its conclusion within six months. It s a pity that this is one law that remains on paper. Way forward One hopes the Election Commission, the police and the high court live up to expectations Pradeep Choudhary Page 4

5 and seize the initiative in this matter. Public trust in constitutional institutions is too precious to be dissipated. Lessons to be learnt from world countries like Bolivia and Rwanda, Cuba have long achieved gender parity while we're still debating a Women's Reservation Bill in parliament bill should shock us. Sexist remarks What does it say about the state of gender relations in Indian politics when elected representatives openly make sexist & misogynistic comments towards their female colleagues? IMPACT ON WOMEN a) SELF CONFIDENCE SHATTERED b) BETTERMENT OF SOCIETY HINDERED IMPACT ON POLITY a) DEMOCRACY DISREGARDED b) POLITICAL DECENTRALISATION HINDERED c) WOMEN TARGETING SCHEMES when misogynist are in the centre, the schemes that are being targeted towards women are not implemented in their full spirit leading to low HDI Politics of a country should be driven by issues and ideas and not the face value. The bhakti in religion is a path to spirituality but bhakti in politics is a path to dictatorship. the communication gets one sided rather than two sided. National & State Parties % valid votes in four or more states (in lok shabha/ states election) + in addition 4 seats in lok shabha( from state/ states) 2 % seats of Lok shabha & these candidates are from 3 states If recognized as state party in four states 1. 6% votes + 2 seats 2. 6% votes for that state in lok shabha election + 1 lok shabha seat of that state. 3. 3% seat of state or 3 seat, which ever is higher seat for every 25 seat allocated to state. 5. 8% total valid votes(this was added in 2011) 1. The paradox of political representation Pradeep Choudhary Page 5

6 There is a qualitative change as the momentum has shifted away from the dominant caste & communities. Pradeep Choudhary Page 6

7 A/C to Sanchar committee Muslims are grossly underrepresented & therefore adequate attention should be paid to ensure their representation. Separate electorate rolls Pradeep Choudhary Page 7

8 Preparation of electoral rolls -- RPA 50, Registration of election rules Actual conduct of election- RPA Pradeep Choudhary Page 8

9 Law commission report on electoral reforms 1. Election Finance a. b. Section 77 of the RPA, regulating the election expenses currently extends from the date of nomination to the date of declaration of results. This period should be extended from the date of notification of the elections to the date of declaration of results. require candidates or their election agents to maintain an account and disclose the particulars (names, addresses and PAN card numbers of donors and amounts contributed) of any contribution received by them. c. d. Political parties should be required to maintain and submit annual accounts, duly audited to the ECI every financial year. ECI will then upload these accounts online. The commission also said political donations from a company s must be approved by an annual general meeting of shareholders and not just the board e. Disclosure provisions a) mandatorily disclose all contributions in excess of Rs. 20,000 b) disclose such particulars even for contributions less than Rs. 20,000 if such contributions exceed Rs. 20 crore or 20% of the party s total contributions, whichever is less. f. c) d) e) statement of election expenditure to be filed by every party contesting an election within 75 days of the Assembly elections and 90 days of the General elections election; The disqualification of a candidate for a failure to lodge an account of election expenses should be extended from the current three period up to a five year period, so that a defaulting candidate may be ineligible to contest at least the next elections. penalties, apart from losing tax benefits, should be imposed on political parties for the noncompliance with the disclosure provisions. The Commission does not consider a system of complete state funding of elections to be feasible, not feasible given the economic conditions and developmental problems of the country. Instead, it supports the existing system of indirect in-kind subsidies. a) Any reform in state funding should be preceded by reforms such as the decriminalisation of politics, the introduction of inner party democracy Regulation of Political Parties and Inner Party Democracy a. de-registration of a political party for failure to contest Parliamentary or State elections for ten consecutive years. b. powers to the ECI should extend to the regulation of action and not ideology, given the complex socioreligious-political fabric of the country, its diversity, and secular principles Proportional Representation a. The FPTP system, followed in Lok Sabha elections, is regarded as one of the simplest forms of electoral systems, where each voter has a single vote, and where a candidate wins if he receives the highest number of votes in a constituency first -past-the-post-system. b. The system of proportional representation has many variants, one of the most common being the list system. In the list system, political parties present lists of candidates in advance who are awarded seats in proportion to their party s vote share, usually with some minimum prescribed thresholds. a) Another variant, the method of the single transferable vote, is followed for elections to the Rajya Sabha rank candidates in order of preference if no one emerges with a majority, the least voted candidate is removed from consideration and the second choices of those who voted for him are taken into consideration. b) FPTP system was eventually adopted to avoid fragmented legislatures and to facilitate the formation of stable governments c. The Merits and Demerits of the FPTP System a) Simplicity b) single-member candidate-centered voting Pradeep Choudhary Page 9

10 c) Stability d) simple and familiar to the electorate. In practice, India has seen both stable majority and unstable coalition governments under the FPTP system, indicating that it is not this factor alone that assures the stability of the electoral system in India a) Criticism is that it leads to the exclusion of small or regional parties from the Parliament. votes given to smaller parties are wasted since they do not gain a voice in the legislature in a multi-party system, since the winning candidate wins only about 20-30% of the votes d. Merit & demerit of Proportional system a) It ensures that smaller parties get representation in the legislature. It also encourages new parties to emerge and more women and minorities to contest for political power. b) undoubtedly falls second in competition with the FPTP system in terms of simplicity c) Because parties are granted seats in accordance with their vote share, numerous parties get seats in the legislature in the proportional representation system, without any party gaining a majority. Coalition government becomes inevitable d) One potential drawback of this system is that the relationship between a voter and the candidate may dilute, This is also why the Constituent Assembly decided that proportional representation would not be suited to the Parliamentary form Representativeness ensure that the election results are as proportional by curbing the inconsistency between the share of seats and votes. e. The List System in Germany a) Each voter has two votes the first being given to a particular candidate in single-member constituencies. The second vote is a party vote, given to a party list at the federal state level. Candidates are allowed to compete in single-member districts as well as simultaneously for the party list The candidates who achieve a majority in the single-member districts are elected directly b) The second vote determines how many representatives will be sent from each party in proportion to the share of votes c) This ensures both a close relationship between voters and their representatives through the direct election route, while ensuring representation of smaller parties. 4. Anti Defection Law in India a. Vest the power to decide on questions of disqualification on the ground of defection with the President or the Governor, as the case may be, (instead of the Speaker or the Chairman), who shall act on the advice of the ECI. This would help preserve the integrity of the Speaker s office. (as some speaker have tended to act in a partisan manner) b. Anti defection i. The anti-defection law was passed by parliament in The 52nd amendment to the Constitution added the Tenth Schedule which laid down the process by which legislators may be disqualified on grounds of defection. A member of parliament or state legislature was deemed to have defected if he either voluntarily resigned from his party or disobeyed the directives of the party leadership on a vote. That is, they may not vote on any issue in contravention to the party s whip. Independent members would be disqualified if they joined a political party. Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member. ii. The law also made a few exceptions. Any person elected as speaker or chairman could resign from his party, and rejoin the party if he demitted that post. A party could be merged into another if at least two-thirds of its party legislators voted for the merger. The law initially permitted splitting of parties, but that has now been outlawed. iii. Challenges and Interpretations The anti-defection law raises a number of questions, several of which have been addressed by the courts and the presiding officers. Does the law impinge on the right of free speech of the legislators? This issue was addressed by Supreme Court in Kihoto Hollohan vs Zachilhu case The court said that the anti-defection law seeks to recognize the practical need Pradeep Choudhary Page 10

11 to place the proprieties of political and personal conduct above certain theoretical assumptions. It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy. iv. v. vi. vii. What constitutes voluntarily resigning from a party? Various judgements and orders indicate that a member who publicly opposes the party or states his support for another party would be deemed to have resigned from his party. News reports may be used as evidence for this purpose. Can the decision of the presiding officer be challenged in the courts? The law states that the decision is final and not subject to judicial review. The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court. Issues for consideration Should the law be valid for all votes or only for those that determine the stability of the government (such as the confidence and no-confidence motions)? The main intent of the law was to deter the evil of political defections by legislators motivated by lure of office or other similar considerations. However, loss of membership is hardly a penalty in cases ahead of the scheduled time of general elections. It also loses significance if the House is likely to be dissolved. On the other hand, the voting behaviour may be affected even on issues not related to the stability of the government. A member may be unable to express his actual belief or the interests of his constituents. Therefore, a case may be made for restricting the law to confidence and noconfidence motions. The Dinesh Goswami Committee on electoral reforms (1990) recommended this change. while the Law Commission suggested that political parties issue whips only when the government was in danger. Should the law apply only to pre-poll alliances? The rationale that a representative is elected on the basis of the party s programme can be extended to pre-poll alliances. The Law Commission proposed this change with the condition that partners of such alliances inform the Election Commission before the elections. Should the judgement be made by the presiding officers? Several MPs had raised this issue at the time of passage of the law. The Supreme Court upheld the law in the Kihoto Hollohon judgment. law commission have recommended that the decision should be made by the president or the governor on the advice of the Election Commission. This would be similar to the process for disqualification on grounds of office of profit. Should there be any additional penalties on defectors? defectors should be barred from holding any ministerial or remunerative political office for the remaining term of the House. It also said that the vote of any defector should not be counted in a confidence or no-confidence motion. viii. ix. There is no ambiguity in the legality of current provisions related to these issues. Any change would require legislative action. There is, however, need for public debate on the working of the anti-defection law. Pradeep Choudhary Page 11

12 c. SC revisits anti-defection law Background: Amar Singh and Jaya Prada, expulsion from the Samajwadi Party Decided to vote in favor of Women s Reservation Bill to which the SP was fiercely opposed to. Anti-defection law: 10th Schedule to the Constitution, popularly referred to as the Anti-Defection Law, was inserted by the 52nd Amendment in Grounds for disqualification are mentioned under A 102 (2) and 191 (2). Member of Parliament or state legislature is deemed to have defected: Voluntarily gives up his membership Votes or abstains from voting without obtaining prior permission. Independent members would be disqualified if they joined a political party. Nominated members who were not members of a party could choose to join a party within six month after that period, they were treated as a party member or independent member. Exceptions under the Law: Any person elected as speaker or chairman could resign from his party, and rejoin the party if he demitted that post. A party could be merged into another if at least two-thirds of its party legislators voted for the merger. SC In 1996 in Vishwanathan case Supreme Court in 1996 in Vishwanathan case, a member elected, or nominated, by a political party continues to be under its control even after expulsion. Issues with SC interpretation Expelled members felt that this impinged upon their fundamental rights, including their rights to equality, free speech and expression and life under articles 14, 19 and 21 respectively. They had contended that they have landed in a piquant situation as expelled members and apprehended disqualification under the anti-defection law if they chose to defy party s whip on any issue in Parliament. What is happening now? Apex court has felt that the judgment in the Vishwanathan case was not clear on certain aspects of the anti-defection law and hence, it has decided to have a fresh look Strengthening the office of the Election Commission of India a. giving equal constitutional protection to all members of the Commission in matters of removability; suggested that #P appoint al l election commissioners, including the chief election commissioner, in consultation with a three member panel comprising PM, the leader of the opposition of LS (or the leader of the largest opposition in LS and &CJI b. making the appointment process of the Election Commissioners and the CEC consultative; c. creating a permanent, independent Secretariat for the ECI. Paid News and Political Advertisements a. The definitions of paying for news, receiving payment for news and political advertisement should be inserted in RPA b. stringent punishment will ensure that if the candidate themselves are found guilty, then, in all likelihood, they will be disqualified Opinion Polls a. Section 126(1)(b) of the RPA, which prohibits the display of any election matter forty-eight hours before polling does not extend to the print media should be amended to extend to print media. 8. Pradeep Choudhary Page 12

13 9. Compulsory Voting a. does not recommend the introduction of compulsory voting in India highly undesirable for a variety of reasons such as being undemocratic, illegitimate unable to improve quality political participation and awareness, and difficult to implement. b. reasons right to vote was a right, which every citizen could decide whether to exercise or not. sanctions against defaulters were hard to effectively enforce in practice; c. Australia Amongst the countries still enforcing compulsory voting where defaulters pay a fine. In Brazil, failure to vote results in the imposition of a fine. d. For all these reasons, comparative examples do not provide any justification for the imposition of compulsory voting in India Pradeep Choudhary Page 13

14 10. Election Petitions a. introduction of election benches in each High Court exercising jurisdiction over all election disputes under the RPA. b. The trial should be concluded within six months from the date of presentation of the petition; otherwise, a report should be sent to the Chief Justice of the High Court explaining the reasons for the delay c. Appeals to the Supreme Court and The Supreme Court should try and conclude the appeal within three months from the date of appeal. expression of choosing ur own candidate is F.R...but not "right 2 vote"...it has been categorically mentioned by S.C Taking away voting right of under trials is against the principle of natural justice(innocent until proven guilty.) The Supreme court has in the past refused to recognize the right to vote as a fundamental right, as not voting is also a form of exercising franchisee and democratic expression. Further through its various judgments it has upheld the notion of 'purity of parliamentary democracy' stating it to be legitimate to keep those elements out which pollutes the election process. Points in favor of the judgment: i) A candidate is disqualified to stand for election, if he/she is disqualified as a voter on certain grounds. Thus, taking away the 'privilege' to vote, is not only stopping unwanted elements from being a part of electoral process but also becoming an elected representative. ii) Upholds the fact that a citizen needs to be conscious of its duties/actions also apart from its rights. Not only right conscious but also duty conscious, Right to vote is statuary right under article 326 not a fundamental right. With rights there come some responsibilities. iii) Criminalisation of politics, rigging of electoral process, duplication of voters etc are problems which need to be tackled at the root. Points against the judgment: Pradeep Choudhary Page 14

15 i) Prisoners are debarred from voting irrespective of the gravity of the offence that they have committed or length of their sentence. ii) The Indian statute makes no distinction between convicted prisoners, undertrials, and those in lawful police custody. denied the right to vote even before being proved guity. The Supreme court need to reconsider its definition of eligibility criterion of participating in election process with the help of an opinion from an expert committee with the goal of achieving a pure yet inclusive democracy 11. NOTA and the Right to Reject a. Law Commission currently rejects the extension of the NOTA principle to introduce a right to reject the candidate and invalidate the election b. premise of the Supreme Court s decision in NOTA judgment was protecting the secrecy of the voter who wanted to express dissent. c. d. This is premised on the fact that, first good governance, the motivating factor behind the right to reject, can be successfully achieved by bringing about changes in political accountability, inner party democracy, and decriminalization. However, the issue might be reconsidered again in the future. Colombia is one of the only countries that has such a provision. Most countries with NOTA-like provisions only count and declare the number of such votes, instead of factoring it in the final election results 12. The Right to Recall a. right to recall refers to a process whereby an electorate is able to recall an elected representative for under -performance, corruption, or mismanagement by filing a petition that triggers a re-election usually after a particular percentage of people sign the petition. Currently, provisions for RTR are prescribed for local elections in Chhattisgarh, Madhya Pradesh, Rajasthan, and Maharashtra. b. not in favour of introducing the right to recall in any form because it can lead to an excess of democracy, undermines the independence of the elected candidates increases instability and chaos increases chances of misuse and abuse, is difficult and expensive to implement in practice especially given that India follows the first past the post system Totalizer for Counting of Votes a. introducing a totalizer for the counting to prevent the harassment of voters in areas where voting trends can be determined totalizer would increase the secrecy of votes during counting. Restriction on Government Sponsored Advertisements a. restricting government sponsored advertisements six months prior to the date of expiry of the House/Assembly to maintain the purity of elections b. ensure that the ruling party or candidate does not get an undue advantage over another in the spirit of free and fair elections c. However, an exception has been carved out for advertisements highlighting the government s poverty alleviation programmes or any health related scheme, advertisements regarding poverty alleviation and health related schemes should not carry any names or photographs of the leaders. Restriction on the Number of Seats from which a Candidate May Contest a. permit candidates to stand from only one constituency Independent Candidates a. b. Supreme Court in Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi large number of independent candidates contest the election for the mere sake of contesting results in confusion, for the illiterate electors. Law Commission recommends that independent candidates be disbarred from contesting elections because the current regime allows a proliferation of independents, who are mostly dummy/non-serious candidates cause a real Pradeep Choudhary Page 15

16 confusion in the minds of the public. c. d. increases security, law and order, and election administration expenditure only political parties registered with the ECI to contest Lok Sabha or Vidhan Sabha elections. 17. Preparation and Use of Common Electoral Rolls a. introduction of common electoral rolls for Parliamentary, Assembly and local body elections. Women in Law making process a. Women reservation bill Constitutional Amendments Women's Reservation Bill [The Constitution (108th Amendment) Bill, 2008] Was passed by RS, pending in LS, later require more than 50% states ratification. Commonly known as the Women's Reservation Bill it seeks to reserve one-third of all seats for women in the Lok Sabha and the state legislative assemblies. Introduced by the UPA-I government in May 2008, it also provides that one third of the total number of seats reserved for Scheduled Castes and Scheduled Tribes shall be reserved for women of those groups. Similar Bills have been introduced thrice before in the late 90's but lapsed with the dissolution of their respective Lok Sabhas. Highlights of the Bill i) The Constitution (One Hundred and Eighth Amendment) Bill, 2008 seeks to reserve one-third of all seats for women in the Lok Sabha and the state legislative assemblies. The allocation of reserved seats shall be determined by such authority as prescribed by Parliament. ii) One third of the total number of seats reserved for Scheduled Castes and Scheduled Tribes shall be reserved for women of those groups in the Lok Sabha and the legislative assemblies. iii) Reserved seats may be allotted by rotation to different constituencies in the state or union territory. iv) Reservation of seats for women shall cease to exist 15 years after the commencement of this Amendment Act. Key Issues and Analysis i) There are divergent views on the reservation policy. Proponents stress the necessity of affirmative action to improve the condition of women. Some recent studies on panchayats have shown the positive effect of reservation on empowerment of women and on allocation of resources. ii) Opponents argue that it would perpetuate the unequal status of women since they would not be perceived to be competing on merit. They also contend that this policy diverts attention from the larger issues of electoral reform such as criminalization of politics and inner party democracy. iii) Reservation of seats in Parliament restricts choice of voters to women candidates. Therefore, some experts have suggested alternate methods such as reservation in political parties and dual member constituencies. iv) Rotation of reserved constituencies in every election may reduce the incentive for an MP to work for his constituency as he may be ineligible to seek re-election from that constituency. v) The report examining the 1996 women s reservation Bill recommended that reservation be provided for women of Other Backward Classes (OBCs) once the Constitution was amended to allow for reservation for OBCs. It also recommended that reservation be extended to the Rajya Sabha and the Legislative Councils. Neither of these recommendations has been incorporated in the Bill. Pradeep Choudhary Page 16

17 Nullify win if candidate conceal criminal past i. In a historic SC ruled that election will be held & void if the candidate fails to disclose complete & full details of his criminal antecedents at the time of nomination. ii. Misconduct effects the election process because non-disclosure amounted to the violation of voter's right to take an informed decision & created an impediment in free exercise of electoral right. iii. Clear message that mere disqualification of candidate is not enough but ripples of his conduct should be felt by nullifying the election itself. NRI can vote from abroad i. Parliament passed the RPA(amendment ) act in To introduce section 20A that enables NRI to vote but requires person to be physically present in their constituencies. It was Impractical for voters. ii. Violation of A 14 of constitution - unequal treatment based on economic classification. So S.C ruled "NRI can vote through e postal ballots or proxy voting". This removes unreasonable restriction posed by section 20(A) of RPA(Amendment) 2010 Requiring overseas electors to be physically present to cast their vote. iii. four options: Electronic voting, over Proxy voting someone they authorize votes on their behalf Physical ballot boxes at Indian missions overseas Asking NRIs to return home to vote What did the EC recommend? recommended to allow voting for the NRIs through proxy and e postal ballot. e postal ballot system has almost no risk of manipulation or violation of secrecy. E postal ballots would be sent electronically to the NRIs by the concerned district election officer but would have to be posted back as a hard copy. Internet voting is prone to technical vulnerabilities which might not be addressable currently. iv. Who will benefit? NRI What about PIO/OCI card holders then? Can they vote? NO v. Reflection of decision NRI could emerge as a decisive force in the country s electoral politics. India, the largest democracy, to enable a larger and more inclusive electorate. argument against such voting has been that only citizens who are present in the territory and affected by the consequences of their vote should be entitled to vote. NRIs as per them lack knowledge of domestic conditions. They would be irresponsible in exercising their choices. But, today with an increase in cross border migrations, the concept of nationhood and political membership is increasingly being decoupled from territorial locations. There is a concern that it can never be guaranteed that the proxy voter will vote as per the wishes of the actual voter. proxy voting suffers from an inherent problem of trust deficiency and violates the principle of secrecy of voting. EC is of the opinion that proxy voting system is the most simple and viable option. It is expected that a person will appoint a proxy only when there is trust in the proxy. 3. Pradeep Choudhary Page 17

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