LAW RESOURCE INDIA

Why such mismatch between public statements and responsibility?

Posted in DEMOCRACY, ELECTION LAW, FUNDAMENTAL RIGHTS, GOVERNANCE by NNLRJ INDIA on February 27, 2012

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

Elections energize a common man to push a small button on a voting machine with a prayer that his vote goes to a responsible person who as the people’s representative in the assembly or Parliament will safeguard his interests and better his conditions. Since poll speeches are not on signed stamp paper, politicians often attempt to promise the moon to the electorate. In the process, many stray outside the Model Code of Conduct zealously enforced by the Election Commission to keep the polls an even contest between ruling party candidates and other hopefuls.

Prior to appointment of T N Seshan as chief election commissioner on December 12, 1990, the model code of conduct was violated by candidates with impunity. Seshan cracked the constitutional whip and succeeded in cajoling strict adherence to the model code of conduct by political parties and candidates.

Elections are meant to send responsible persons as people’s representatives. But often, elections stir the political and social atmosphere to the extent of making even the most sober among the politicians give statements in clear breach of the model code of conduct.

First, it was law minister Salman Khurshid who made a poll promise of carving out quota for Muslims in jobs. Within a week of him being chastised by the EC, fellow Congressman Beni Prasad Verma repeated the mistake and dared EC to take action. Why did Khurshid, who knows law better than most, commit such a folly? And despite his clear indictment, why would his colleague follow suit?

If these two incidents were not enough, another minister Sriprakash Jaiswal goofed up by declaring that if a Congress government was formed in Uttar Pradesh after the elections, there would be President’s rule.

Threat to impose central rule in a state in the midst of a multi-phase election process is a serious breach of model code of conduct capable of influencing people to cast votes in a particular way.

Whatever be the motive behind these statements, a particular dumbness appears to infect politicians during elections when they refuse to learn from mistakes. They forget that democracy flourishes only in a democratic atmosphere and under democratic conditions.

The same cannot be true of Press Council of India chairperson Justice Markandey Katju, a retired judge of the Supreme Court. It was least expected of Justice Katju, who has tremendous knowledge of law and apex court judgments, to threaten a state government with dismissal.

Looking into certain incidents of violence against journalists in Maharashtra and the state government persistently ignoring PCI’s notices, Justice Katju recently issued a showcause notice accompanied with a threat that if this time the state failed to respond, he would recommend to President to “dismiss the state government” under Article 356(1) of the Constitution.

The Congress-NCP government must be laughing as Justice Katju’s threat is more hilarious than legal. Those who have read the apex court’s landmark judgments on Article 356 in S R Bommai case, Kihoto Holohon case, State of Rajasthan case and the latest one in Rameshwar Prasad case would be scratching their heads in bewilderment. For, the Constitution vests the governor of the state concerned and none else with the power to recommend dismissal of a state government.

The streak of irresponsibility found in persons holding high offices had made the Supreme Court to say, “It is incumbent on each occupant of every high office to be constantly aware of the power in the high office he holds that is meant to be exercised in public interest and only for public good, and that it is not meant to be used for any personal benefit or merely to elevate the personal status of the current holder of that office.” [Rameshwar Prasad vs Union of India, 2006 (2) SCC 1].

For similar reasons, Seshan, despite transforming the Election Commission from a constitutional “lamb” to a “roaring tiger” ready to bite rogue politicians, too faced the apex court’s flak when he imagined himself to be the sole dictatorial protector of elections, which is the heart of democracy.

In T N Seshan vs Uuion of India [1995 (4) SCC 611], the SC had said, “His (Seshan’s) public utterances at times were so abrasive that this court had to caution him to exercise restraint on more occasions than one… This gave the impression that he was keen to project his own image. That he has very often been in newspapers and magazines and on television cannot be denied… The CEC has been seen in a commercial on television and in newspaper advertisement… The CEC is, it would appear, totally oblivious to sense of decorum and discretion that his high office requires even if the cause was laudable.”

We sincerely hope politicians and holders of high offices will take a look at the 1995 judgment and bring sobriety into their public utterances.

http://timesofindia.indiatimes.com/india/Why-such-mismatch-between-public-statements-and-responsibility/articleshow/12048723.cms

Don’t break the code

Posted in ELECTION LAW by NNLRJ INDIA on February 23, 2012

TS KRSHNAMURTHY IN THE INDIAN EXPRESS

Election process will lose credibility if EC has no power to enforce rules

The Election Commission (EC) and the Supreme Court of India can be considered as the crown jewels of Indian democracy. Both these institutions, although non-elected, have been rendering a great service in preserving and protecting the civil rights of citizens in no small measure.

It is indeed disturbing, if not shocking, to know that there is a move to convert the Model Code of Conduct into a law. The present proposal, though not officially confirmed, seems to be motivated to check the assertive authority displayed by the EC during elections, from the announcement of election dates to the declaration of results, so that any action that violates the Code will perhaps be dealt with by a court of law and not the EC. Seemingly innocuous, such a move is fraught with dangerous consequences as it will not only diminish the authority of the Election Commission in effectively enforcing the rules of behaviour by political parties and the candidates but also destroy the quality of representative democracy so zealously provided for in our Constitution.

The Model Code of Conduct had its origin quite some decades back, thanks to an initiative taken by police officers in Thiruvananthapuram in 1960 to bring about a consensus among political parties to ensure a level-playing field in fighting electoral battles. Recognising the merit of a code in ensuring free and fair elections, the Election Commission of India, after evolving a consensus among political parties, brought into force the Model Code of Conduct to be complied with by all parties and contesting candidates for all elections. In April 2001, the Supreme Court gave its seal of approval to the enforcement of the Code of Conduct as an important instrument for conducting free and fair elections.

Although the Code of Conduct has been in use for quite some time, there have been some limitations in its enforcement both from the point of view of political parties and the Election Commission of India. There is also a view that the Code of Conduct stands in the way of prompt execution of developmental projects, which in my opinion is a myth as the instructions of the commission are clear about allowing development projects/ emergency measures by officials. The Code, being an informal agreement among political parties, does not have legal authority but its utility as a tool for free and fair election management has been well recognised by the Supreme Court. However, political parties tend to take the Code very lightly, as they think that the EC can at best express displeasure or defer the election without any direct adverse consequence to the party or the contesting candidate.

The weakness in the enforcement of the Code is no doubt inherent but over a period of time its impartial enforcement by the EC has been well received by all stakeholders and independent observers. In fact, the symbols order, which is the basis for allotment of symbols to all political parties/candidates, does contain a provision to the effect that the EC can even withdraw a symbol of a party in case of gross violation of the Code of Conduct. The symbols order has also been recognised and approved by the Supreme Court in its judgments. In a nutshell, it may be noted that the Model Code of Conduct has proved its utility in ensuring free and fair elections.

The proposed attempt to convert the Model Code of Conduct into a separate law may appear to be well intended giving the impression that it is easy to enforce compliance through an Act rather than by a Code. Unfortunately, there is a catch in this move. If the proposed law provides that all violations thereunder have to be taken up before a court of law, the very objective of conducting a free and fair election will be given a death blow. The superiority of the Code is that its enforcement power is with the EC as it is able to swiftly swing into action and take appropriate measures to create the necessary impact for the voters to feel that an unbiased body has taken stern and severe action as a result of which no one is at a disadvantage.

There are a number of instances in which violations of the Code have been dealt with by the Election Commission within a week, thereby checking abuse of authority and misuse of money power and muscle power. For example, there was a case of a chief minister who took a state aircraft up to the border of his state and after crossing the border used a party vehicle for election canvassing in another state. Obviously, this person was misusing his authority to get unfair political gains. After a showcause notice, his party was asked to reimburse the cost of his air travel to the state exchequer. Similarly, there was another case where the photograph of a chief minister was displayed on school bags supplied free by the government. The entire scheme was ordered to be withdrawn immediately. In yet another case, the entire election was countermanded as a result of violation of the Model Code of Conduct. Very often, such decisions are taken within a week or 10 days after inquiry and giving opportunity to the concerned. Such swift action cannot be taken if the cases are filed in a court of law for adjudication, as judicial process takes months and years for judgment to be given. Time is of the essence as action in such matters has to have an immediate impact.

My view is that if at all a legislative shape is to be given to the Model Code of Conduct, the power to deal with offences and to impose punishment should be given to the Election Commission. This will strengthen it in its election-management exercise. The punishment in such offences can be confined to monetary fine, disqualification and withdrawal of recognition to political parties depending on the nature of the offence. On the other hand, if the power to launch prosecutions and punish these offences is passed on to the court, it will be a retrograde step, contributing to the decline of the credibility of the EC and the election process. If the proposed move shifts the authority to enforce the rules of the game to the court, it will result in devaluing the Election Commission’s authority.

The writer is a former chief election commissioner
express@expressindia.com

Law Minister is defiant: EC Complainst to President

Posted in CONSTITUTION, ELECTION LAW by NNLRJ INDIA on February 12, 2012

In an unprecedented action, the Election Commission (EC) tonight sought the “immediate and decisive” intervention of President Pratibha Patil after it charged Law Minister Salman Khurshid with “improper and unlawful” defiance of its orders under which he was censured for promising sub-quota for minorities. In a strongly worded communication to Patil, the commission said Khurshid’s action could “vitiate free and fair polls” in Uttar Pradesh and that the EC was “perturbed because the undermining of its constitutionally mandated duties has come from the law minister who has direct responsibility to uphold and strengthen the ECI rather than to denigrate it”.

The commission took the unprecedented decision to complain against a union minister to the President after Khurshid had told an election rally in UP earlier in the day that he would continue to pursue the line on nine percent sub-quota for minorities ‘even if they (EC) hang me’. Khurshid had earlier been censured for the same statement made on January 8 while campaigning in UP, with EC holding that it was violative of the Election Model Code of Conduct.

The decision of writing to the President came after an emergency meeting of the full three-member Commission headed by S Y Quraishi. Never before has EC sought presidential intervention to rein in a union minister in the middle of a crucial election. The letter of the EC is :

Respected Rashtrapati Ji,

The Commission is approaching you with serious dismay and a deep sense of urgency that requires your kind intervention in the midst of the poll process in the state of Uttar Pradesh. The Union Minister for Law and Justice and Minority Affairs, Sh. Salman Khurshid, who is also a leader of the Indian National Congress Party, had made certain statements and announcements during the course of his campaign in the state. One of them was to the effect that the Congress would provide a quota of 9% reservation to the minorities within the existing quota of 27% for OBCs. He also indicated that Muslims having a sizeable population will be benefited from this move.

Following complaints received from a political party that such announcement was a violation of the Model Code of Conduct, the Commission, after due notice and hearing, passed an order on 9th February, 2012 that Sh. Khurshid had indeed violated the MCC. The following are the relevant observations contained in the Order

“The Commission, therefore, cannot help expressing its deep anguish and disappointment over his violation of model code of conduct. As a Union Minister for Law and Minorities Affairs, he has an added responsibility of ensuring that the model code of conduct is observed in letter and spirit so that elections are conducted in a free and fair manner and all political parties enjoy a level playing field in the matter of their election campaigns. In the above circumstances, the Commission hereby censures Sh. Salman Khurshid and hopes and expects that such violations of model code of conduct would not be repeated by him in future. “ Sh. Khurshid has been seen in television media today (11th February 2012) making statements to the effect that he would pursue the line of his earlier announcement irrespective of whatever the Commission directs. In fact, the Union Minister goes on to say that he would stick to his line, “even if they hang me”. We have found the tone and tenor of the Union Minister dismissive and utterly contemptuous about the Commission’s lawful direction to him, besides the fact that his action is damaging the level playing field in the election.

The above response of a Union Minister and that too, the Law Minister, to the Commission’s decision in a MCC case has created a disturbing situation. The Commission is shocked that instead of being remorseful about the violation of the Model Code, that carries the consensus of all political parties and the sanction of the Supreme Court, the Minister has chosen to be defiant and aggressive. This is unprecedented. The full Commission hence deliberated on the matter in an emergency meeting, this afternoon, while being concerned about the fact that Sh. Khurshid’s action could vitiate free and fair poll in Uttar Pradesh. The Commission is perturbed because the undermining of its constitutionally mandated duties has come from the Law Minister who has a direct responsibility to uphold and strengthen the ECI rather than to denigrate it. Hence, we find the immediate need to draw attention of the executive to the fact that the onus of holding free and fair polls falls on all organs of the State. The Commission is quite concerned that the delicate balance of functions between constitutional authorities has come under a strain, because of the Minister’s improper and unlawful action.

The Election Commission of India finds it necessary and unavoidable to turn to you at this juncture for immediate and decisive intervention so that the ongoing general election to the Uttar Pradesh Assembly is conducted, and this Commission discharges its functions, in accordance with the Constitution and the law.

With respectful regards,
(S.Y. Quraishi)

Bill to cleanse politics of criminals in winter session

Posted in ACCOUNTABILITY, CORRUPTION, CRIMINAL JUSTICE SYSTEM, DEMOCRACY, ELECTION LAW by NNLRJ INDIA on November 5, 2011

Nov 4, 2011, 03.51AM IST TNN[ Dhananjay Mahapatra ]

NEW DELHI: The government is proposing radical reforms to ensure decriminalization of politics and intends to table a bill in the winter session of Parliament proposing to debar candidates facing trial in serious and heinous offences. At present, under the Representation of People Act, only persons convicted by a trial court and sentenced to more than two years imprisonment are debarred from elections for a period of six years, which commences from the date of completion of the prison term. This allows persons facing multiple murder charges to contest elections. Moreover, even if a sitting MP or an MLA is convicted of an offence and sentenced to more than two years jail midway through his term, he continues to be a people’s representative and can attend Parliament or assembly if he files an appeal in the higher court and gets a stay on the conviction. The proposed legislation, first reported by TOI on June 17, is going to be strict on such exigencies and says those who are chargesheeted by police, CBI or other investigating agencies for murder, acts of terrorism, rape, dacoity and similar serious and heinous offences would be debarred from contesting elections till the trial court acquits them. The legislation is part of the larger bouquet of anti-corruption measures government has embarked upon to blunt the attacks it has faced from Team Anna as well as political opponents over the issue of corruption. Government plans to pass three legislations: Lokpal Bill, Judicial Standards and Accountability Bill and Whistleblowers Protection Bill in the winter session. Besides, it has also planned to introduce Grievance Redressal Bill which, while ensuring smooth delivery of services, will also tackle corruption in providing the same. Conceived as an alternative to Team Anna’s insistence that the proposed Lokpal should be tasked with tackling corruption among lower bureaucracy as well, the Grievance Redressal Bill is being projected as a better way of fighting “cutting edge graft”. Government sources point out that under the Lokpal bill, failure to deliver a service is proposed to be treated as an act of corruption. They say this could only delay the delivery of government services since establishing a criminal charge could take time. As against this, the Grievances Redressal Bill provides to separate corruption from failure to deliver a public service/good and, thus ensuring that the grievance for the failure of delivery of service is redressed within a fortnight. During the discussion on stricter measures to decriminalize politics last week in the Cabinet Committee on Political Affairs, law minister Salman Khurshid argued strongly for the bill. These proposals on electoral reforms were firmed up during the tenure of Khurshid’s predecessor M Veerappa Moily, who had constituted a Committee on Electoral Reforms to recommend to the government concrete ways in which the electoral system could be strengthened through legislative means. Khurshid also laid stress on amending the existing provisions of RP Act to make filing of false affidavits by candidates along with nomination papers to declare their assets and criminal antecedents a serious offence which could attract a permanent ban on contesting elections. By this way, disclosure of criminal background would be made non-negotiable.

It means, if a candidate deliberately conceals his criminal antecedents and is found guilty, then he will be forced to abandon a career in electoral politics. The proposed amendments, discussed in the CCPA, also include withdrawing immunity to sitting MPs and MLAs from continuing with their tenure after being held guilty and sentenced to more than two years imprisonment even if they get the conviction stayed by a higher court on appeal. By this, the government intends to force an elected representative to resign from his membership from Parliament or assembly the moment a trial court finds him guilty of an offence and sentences him to more than two years imprisonment.

dhananjay.mahapatra@timesgroup.com

A public interest litigation petition filed in the Supreme Court by members of the India Rejuvenation Initiative, for fast-tracking criminal cases pending against MPs and MLAs, said: “Given a situation in which ‘winnability’ is the sole criterion for selection of candidates and those with deep pockets alone can hope to win elections, a criminal who has amassed money and influence through a ‘mix of terror and patronage’, has greater chances of winning than a clean and decent individual without such’ capabilities’. And most often criminals do win, which is why they are increasingly present in the country’s representative institutions.” The consequences of this trend “are seen in the increasing criminalisation of the process of governance with ministers, legislators, bureaucrats and unscrupulous businessmen combining to plunder public funds and prey on the public.” Criminal cases against politicians pending before courts either for trial or in appeal must be disposed of speedily, if necessary, by appointing special courts, the petition said. A Bench of Justices P. Sathasivam and Jasti Chelameswar issued notice to the Centre, all States and the Election Commission after hearing senior counsel Rajeev Dhavan.

Meeting of a Delegation of Civil Society Members with the Commission Regarding Electoral Reforms

Posted in ELECTION LAW by NNLRJ INDIA on November 1, 2011

A delegation comprising Shri Shanti Bhushan, Shri Prashant Bhushan, Shri Arvind Kejriwal, Shri Manish Sisodia and Ms. Kiran Bedi met the Commission on 31st October, 2011. There was exchange of views on various issues, particularly on electoral reforms. The delegation made several suggestions including those relating to ‘Right to Recall, ‘Right to Reject’, checking corruption in electoral process, preventing criminalization of politics and strengthening of electoral system. The Chief Election Commissioner Dr. S.Y. Quraishi, Election Commissioners Sh. V.S. Sampath and Sh. H.S. Brahma and the senior officers of the Commission responded to the suggestions made by the delegation. There was complete unanimity about the need to end corruption from public life, especially elections.

Dr. Quraishi informed the delegation about various proposals of electoral reforms submitted by the Commission to the Government, from time to time. He also informed them about the recent country-wide consultations on electoral reforms, taken up jointly by the Election Commission of India and the Ministry of Law & Justice. Seven Regional Consultations have already been held in the last about 1 year and an all party meeting was now awaited. The CEC also shared with the delegation the latest developments in the area of speeding up of the proposed reforms. He also briefed them about various administrative and regulatory measures taken by the Commission in the recent months to check corruption, improve transparency and increase peoples’ participation in elections.

The suggestion about the ‘Right to Recall’ was discussed in detail. CEC explained various implications involved in the implementation of the suggestion, like, the minimum percentage of voters who may file the petition for recall, verification of authenticity of thousands of signatures and whether those signatures have been given voluntarily or under coercion, minimum time after which such petition for recall could be presented, the further exercise of calling for a referendum in the constituency and the holding of a subsequent election where the petition succeeds. He also mentioned that such a move would bring instability as the losers could start such a campaign from the day one. He further pointed out that this would also hamper development activities because of frequent elections and imposition of Model Code of Conduct too often. The delegation agreed that the matter needed to be further examined by them keeping all the above implications in mind.

The ‘Right to Reject’ issue was discussed in detail. The Commission informed the delegation that it had already proposed to the Government in December 2001 to make a suitable provision in the rules to introduce a button in the balloting unit of the Electronic Voting Machine (EVM) so that electors could exercise ‘none of the above’ option. The ‘Right to Reject’ will however require an amendment in the Representation of the People Act, 1951. The Commission pointed out that ‘Right to Reject’ may lead to more frequent elections. The delegation was however of the opinion that the ‘Right to Reject’ will not lead to more frequent elections as it will act as a deterrent on the Political Parties to sponsor more worthy candidates and will also help in curbing muscle and money power. CEC observed that the demand for ‘Right to Reject’ would only have an impact if the voting percentages were really high. What is the use of exercising this right if half of the voters do not turn up for voting? The Commission mentioned that the matter is also before the Supreme Court.

The CEC requested civil society groups to extend support to the ongoing positive efforts of the Commission to enhance voters’ participation in elections and strengthen democracy. The delegates assured the Commission that they would campaign for higher public participation in electoral process

The delegation expressed concern over the growing criminalization of politics. The Commission informed them that a proposal for debarring candidates, against whom charges have been framed by the Court of law for heinous crimes, from contesting elections has already been sent to the Government way back in 1998 and the same is at an advanced stage of consideration by the Government. They were of the view that if the ‘Right to Reject’ was provided for in the law, then it would also have a salutary effect on the political parties.

There were discussions on several other issues including state funding of elections, paid news and other reform proposals. The delegates requested for a complete brief on the latest set of electoral reforms proposals. The Commission handed over a written brief on the matter to the delegation. The meeting was extremely cordial and positive.

Election Commission of India
New Delhi, 01th November, 2011

Recent Initiatives of the Government for Justice Delivery and Legal Reforms

Posted in COURTS, DEMOCRACY, ELECTION LAW, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on June 2, 2011

The Government is taking various initiatives to improve justice delivery system in the country and for improving justice delivery and legal reforms and steps to reduce pendency in courts from 15 to 3 years by 2012. These are as under:

National Mission for Justice Delivery and Legal Reforms: The Government has ‘in principle’ approved setting up of National Mission for Justice Delivery and Legal Reforms. The National Mission would help implementing the two major goals of

(i) increasing access by reducing delays and arrears in the system

(ii) enhancing accountability at all levels through structural changes and setting performance standards and facilitating enhancement of capacities for achieving such performance standards.

The Law Minister has on 28th April 2011 personally written to the Chief Justice of the Supreme Court and the High Courts on the launching of a campaign mode approach for pendency reduction and filling up of vacancies in Subordinate & High Courts. The campaign will be from June-December, 2011 and after a review, will be extended for another 6 months.

Judicial Standards and Accountability Bill, 2010: To bring about greater transparency and accountability in the higher judiciary, the Government has introduced a Bill in the Parliament to lay down judicial standards, to enable declaration of assets and liabilities by the Judges, and to establish a mechanism to enable investigation and follow-up action into complaints against judges. The Bill has been referred to the Standing Committee on 1st December, 2010 and is presently under its consideration.

13th Finance Commission grant: With the objective of improving justice delivery, the Thirteenth Finance Commission (TFC) has recommended a grant of Rs. 5000 crore to be utilized over a period of five years up to 2010-2015. An amount of Rs.1000 crore has been released to State Governments in the year 2010-11. This grant is aimed at providing support to improve judicial outcomes. Many States have already formulated State Litigation Policies as per the requirement for further release of TFC grant.

National Litigation Policy : The Government has already announced a National Litigation Policy effective from 1st July, 2010 to to reduce government litigation in Courts so that valuable court time would be spent in resolving other pending cases so as to achieve the goal in the national legal mission to reduce average pendency time from 15 years to 3 years.

ICT enablement of courts: The Government has implemented a central sector scheme for computerization of the District and Subordinate Courts (e-Courts project) in the country and for upgradation of the ICT infrastructure of the Supreme Court and the High Courts, at a cost of Rs. 935 crore for the first phase which will connect 14,249 courts in the country including video conferencing facilities.

Access to Justice for the marginalized section: Provision of legal aid enables the marginalized sections of the society in accessing justice. To strengthen Legal aid authorities a sum of Rs 200 crores had been provided under the TFC grants. The mission launched for release of under trial prisoners last year had appreciable results and is continuing. In the period 26 January 2010 to 31 May 2011, 562379 under trials have been released on bail, 77940 have been discharged, 68744 convicted, adding to a total of 709081 cases that have been disposed off. Software to trace cases of under trials by courts is also under consideration for integration into the e-courts software.

Gram Nyayalayas : The Gram Nyayalayas Act, 2008 was enacted to provide for the establishment of Gram Nyayalayas, a new tier of courts, at the grass-root level for the purpose of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen. The Act came into force on 2 October 2009 and enables the State Governments to establish Gram Nyayalayas at Intermediate Panchayat levels.  The Central Government provides assistance to the State Governments for establishment of Gram Nyayalayas(Rs. 18 lakhs/court) and Rs. 3.20 lakhs per court per annum for the first 3 years towards recurring expenses. About 144 Gram Nyaylalays have been set up(notified) in the States of Madhya Pradesh (89), Rajasthan (45), Orissa (1), Maharashtra (9), till date of which 47 are operational – 40 in Madhya Pradesh, 1 in Orissa, and 6 in Maharashtra. Out of the budgeted Rs. 150 crores for Gram Nyayalayas, Rs. 20.92 crores have been disbursed to the 4 states which have notified the Nyayalayas.

Family Courts: The Government has pursued with the States the matter of setting up of Family Courts, providing 50% of the cost of construction and Rs 5 lakh annually. 211 such courts have been set up in 23 states.

Increase in the age of retirement of Judges of High Courts: The Government has introduced ‘the Constitution (One Hundred and Fourteenth) Amendment Bill, 2010’ in the Lok Sabha on 25th August, 2010 for increasing the age of retirement of Judges of the High Courts from 62 to 65 years. It aims at retaining the judges for three more years which would avoid occurrence of new vacancies on account of superannuation and result in continuance of judges to clear the backlog of cases in the High Courts. The Bill has been examined by the Department related Parliamentary Standing Committee on Personnel, Public Grievances and Law and Justice is to be slated for discussion in the Parliament.

Infrastructure Development at Subordinate courts: In the financial year 2011-12, the allocation for the Centrally Sponsored Scheme on Infrastructure Development has been increased 5 folds from Rs.100 crores to Rs. 500 crores.

Setting up of a Legal e-Library: The Government is finalizing the setting up a ‘National Legal e-library’ focusing on 933 law schools in India. ,It is expected to benefit the students and practitioners of Law. It is proposed to get operationalised on 15 August 2011.

Rajiv Gandhi Advocate’s Training Scheme: The Rajiv Gandhi Adhivakta Prashikshan Yojna to be launched on 27June 2011, will select about 10 practicing advocates from each state and impart a two-month long professional training by a National Law School/College – to them and encourage them to to serve the need of law professionals at the grass root level.

Creation of All India Judicial services: The proposed to set up an All India Judicial Service is awaiting Cabinet approval. This service is expected to attract the best of talent to the judiciary.

Comprehensive Electoral Reforms:

• The Government has held 6 Regional Consultation on Electoral Reforms. The seventh is scheduled on 12 June 2011 in Guwahati to be followed By the National Consultation in New Delhi on 2-3 July 2011. Following this, Comprehensive Amendments will be brought about to the Electoral System.

• The Government has also passed legislation and has enabled NRI Voting.

• The Maximum limits of Election Expenses have been increased for both Parliament and Assembly Elections.

National and Regional Consultation on Electoral Reforms

Posted in DEMOCRACY, ELECTION LAW by NNLRJ INDIA on December 16, 2010
A representation of the Lion Capital of Ashoka...

Image via Wikipedia

Any suggestions on electoral reforms may be sent latest by 6th February, 2011, at e-mail address electoral-reforms@nic.in or by post addressed to:-

Dr. Sanjay Singh,
Joint Secretary and Legislative Counsel,
Room. No. 423 A-Wing, 4th Floor.
Ministry of Law and Justice,
Legislative Department,
Shastri Bhawan,
Dr. Rajendra Prasad Road,
New Delhi-110001 .


Constitution of Core Committee on Electoral Reforms

Decision of the Core Committee to hold One National Consultation and Seven Regional Consultations.

Background Paper on Electoral Reforms

EC rejects plea against installation of statues

Posted in CONSTITUTION, ELECTION LAW by NNLRJ INDIA on October 13, 2010

J. Venkatesan IN THE HINDU

‘Grounds pleaded in petition do not fall within ambit of disqualifications laid down in the law’


Intention behind installing elephant statues was clearly to draw political mileage: Ravi Kant

We cannot add or lay down any new grounds for disqualification: Election Commission


NEW DELHI: The Election Commission (EC) has held not maintainable a complaint filed by an advocate alleging misuse of public funds by the Uttar Pradesh government for installation of statues of elephants and Chief Minister Mayawati to promote the symbol of the Bahujan Samaj Party (BSP).

On a petition from advocate Ravi Kant, the Supreme Court asked the EC to pass appropriate orders on the petition.

The State government contended that the Commission had no jurisdiction to seek information about the statues and the expenditure when no election process was notified.

It argued that there was no provision under the Representation of the People Act and the Rules to call for such information.

Difference in posture

The BSP contended that the elephant statues showed the trunk raised in a welcome posture, whereas in the party symbol, the trunk was lowered.

Mr. Ravi Kant argued that the statues of elephants installed in temples were symbolic, whereas the intention behind installing a large number of statues of elephants was clearly to draw political mileage for the BSP.

He also sought the disqualification of Ms. Mayawati.

The EC — comprising Chief Election Commissioner S.Y. Quraishi and Commissioners V.S. Sampath and H.S. Brahma — in its order on October 11 said: “The grounds pleaded in the petition of Mr. Ravi Kant seeking disqualification of Ms. Mayawati do not fall within the ambit of any of the disqualifications laid down in the law.

“The Commission cannot add or lay down any new grounds for disqualification. Therefore the prayer for her disqualification is rejected.”

Role of Model Code of Conduct

On the plea for freezing the BSP symbol, the EC said this question could be considered only if the Model Code of Conduct (MCC) was violated. It was well settled that the MCC would come into play only when the Commission announced the schedule for an election. The order, however, said that if a party, whether ruling or in the opposition, by misusing public funds for its own partisan ends, “erects or installs statues of its party symbol, even during non-election period, the party cannot absolve itself of the accusation that it has acted in breach of salutary principles underlying the objects of the MCC— maybe not in letter, but undoubtedly in spirit.”

‘Cannot gauge impact’

The EC said it was not in a position to gauge the impact of the statues and the extent of impact on the mind of the electors as the State government had refused to furnish even the basic information as to where and how many statues had been installed.

‘No undue advantage’

While holding that the complaint was not maintainable, the EC, however, said: “At the time of elections, the Commission would no doubt take appropriate steps and measures to see that the statues of Ms. Mayawati and the BSP’s symbol ‘elephant’ do not disturb the level-playing field and give undue advantage to the BSP vis-à-vis other political parties.”

http://www.hindu.com/2010/10/13/stories/2010101356071500.htm

The legislature’s limits

Posted in CONSTITUTION, DEMOCRACY, ELECTION LAW, FUNDAMENTAL RIGHTS, LEGISLATURE, UNCATEGORIZED by NNLRJ INDIA on April 29, 2010

BY MANEESH CHIBBER IN THE INDIAN EXPRESS

While deciding on former Punjab Chief Minister Captain Amarinder Singh’s appeal challenging his expulsion from the Punjab assembly for “breach of privilege”, the Constitution Bench of the Supreme Court has once again demarcated the spheres of influence of different branches of the state, particularly the legislature.

In this case, the legislature had initiated an inquiry by a House panel against Amarinder for an act that he allegedly committed when he was the chief minister in the previous House. Once the probe panel, comprising mainly members of the ruling alliance — Shiromani Akali Dal-BJP — had pronounced on allegations that he granted illegal exemption to certain developers causing a loss of over several crores to the exchequer, the House took the unprecedented step of expelling him on September 3, 2008 for the remaining term of the House, which at that time was over three-and-a-half years. It also asked the Election Commission to initiate steps to hold fresh elections to the constituency that Amarinder represented in the assembly. Amarinder and his supporters in the Congress cried vendetta, accusing the government of having masterminded the entire operation to oust him from the House on flimsy grounds.

While the Punjab and Haryana high court didn’t deem it proper to interfere in the decision of the House, the Supreme Court felt otherwise, holding the expulsion illegal. It also expressed disapproval of the assembly’s action, saying it would set a bad precedent for every new government or assembly to dredge up alleged criminal actions of the previous incumbent and resort to expulsions.

But apart from the fact that the judgment upholds Amarinder’s contention against being denied his right to represent the Patiala constituency in the assembly despite being elected, its importance also lies in the fact that it fixes once and for all, one hopes, the boundaries within which the legislature can and should function.

It would also go a long way in curbing the tendency of political parties, especially those ruling the state, to resort to such steps to get rid of their opponents.As Amarinder’s lawyer Atul Nanda told the court, this was the first time in India that an MLA had been expelled in such circumstances, “not for alleged breach of privilege or contempt of the House but for alleged acts of criminality ‘found’ by a committee of the state legislature.”Could the legislature take upon itself the function assigned under the Constitution to the government/ executive, which is to inquire into an action not connected to the House or with the functioning of the House? Also, could the House have then exercised its punitive powers to punish a member on such a count? Simply put, what the Punjab legislature did was to assume the power and jurisdiction to find a man guilty under law, pre-judge his case and direct the investigative machinery of the government to recover “the ill-gotten wealth”.

As the Supreme Court judgment shows, the House acted beyond the purview of Article 194, which deals with the powers, privileges and immunities relating to the assembly and House committees constituted by it. The punitive power of the assembly is limited to punishment for contempt or for breach of privilege in the capacity of a member. The action of the assembly was also in violation of Articles 190 and 191 of the Constitution, which deal with the specific circumstances in which the seat of an MLA can be declared vacant.

The Constitution Bench judgment would go a long way in ensuring that no ruling party, acting on the premise of the brute majority enjoyed by it in the legislature, would try to expel members of the opposition through such means and declare their constituencies vacant. If such a thing was allowed, the legislatures could well be reduced to tools in the hands of the vengeful governments of the day. After all, but for this landmark judgment, the UPA government, instead of politically fighting the opposition within and outside Parliament, may take the easy way out: appoint a probe panel to go into alleged irregularities committed by important opposition MPs and use its majority to oust them from the House on the basis of indictment by the committee. Or the Karunanidhi government in Tamil Nadu, if it feels threatened by J. Jayalalithaa, could decide to get the House to pass a resolution to oust her from the assembly for “illegally” owning more sarees and shoes than her income allowed.

maneesh.chibber@expressindia.com

http://www.indianexpress.com/news/the-legislatures-limits/612702/0

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All the news that’s fit to buy

Posted in DEMOCRACY, ELECTION LAW by NNLRJ INDIA on March 20, 2010

S Y QURAISHI , ELECTION COMMISSIONER , ELECTION COMMISSION OF INDIA IN THE INDIAN EXPRESS

Over the decades, the approach to news has changed quite a bit. But these changes have largely related to presentation and formats. In the increasingly competitive media world, we have come across terms like morning news, evening news, prime time news, headline news, latest news and more recently, breaking news. But paid news? This coinage is the epitome of anti-news. Paid news is downright unethical, and sinister. The malaise has now gone deep, and cuts across print and electronic, regional and national, vernacular and English media.

We at the Election Commission are seriously concerned. Many of us have been dealing with the problem of surrogate advertising for a while. Some instructions are in place to prevent stealthy advertising in favour of or against candidates. The success in this has only been moderate. But the new camouflage for advertising is “news”. To some extent, the menace has played out its role in manipulating real estate and the stock market; but this is not my official headache. We feel directly concerned with the infiltration of this evil into the election arena. We realise with all seriousness the impact of this malpractice. It is against free and fair polls. It could derail democracy.

Paid news is not free speech. The commission is concerned about the undue influence that paid news can create in the mind of the voter. The voter’s right to correct and unbiased information needs protection. Our second concern is that paid news hoodwinks the enforcement of the expenditure ceiling, a key component in election management with particular importance for a level playing field.

I am happy that most political parties are speaking against paid news. I am even happier that there is a conspicuous uprising against it within the media. Not surprisingly, the protest is led by women and men from the editorial desk, because it is their space and their freedom which is in maximum danger. It is heartening to note that the government and Parliament are also seriously engaged to find a redressal. The churning is healthy and holds out hope.

Friends in media and politics have suggested that the Election Commission is powerful enough to deal with this problem. Well, we have some powers defined by the Constitution, acts of Parliament and judicial pronouncements. We have to work within these. Our control runs only during the election period and applies generally to political parties and candidates. Politicians are most powerful. Members of Parliament alone have the power to legislate to bring the culprits of paid news to book. But, it is the media, which, to my mind retains absolute power, derived from absolute freedom. In my estimate, the problem of paid news is best addressed by self-regulation that lends legitimacy to absolute power anywhere. The commission would again call upon politicians and media to press the delete button on paid news through active self-regulation.

Of course, this would require consensus building. Fortunately, in our country, a good cause or a good piece of legislation brings even opposite camps together. Our model code of conduct during the elections is a shining example of restrictions voluntarily accepted by all political parties. This is a unique Indian institution that makes election managers across the world envious. Can there be a code to check the destabilising activity of paid news?

Paid news is like a snake whose hood is down and tail underground. It is not easy to pull it out. There is circumstantial evidence of all type, but little proof. I am happy that the Press Council is finding ways to deal with the element of deceit in paid news. The commission has lent support to their consultations and will do more, if necessary.

As I have often said, in the multi-dimensional mandate of election management, every problem has a solution, but often a good solution leads to a new problem.

After serious consideration of the public damage caused by some campaign methods, the commission put some restrictions on wall writings, hoardings, loudspeakers etc. The question as suggested by some is, has the strict enforcement of defacement laws led to this worse sickness of paid news in the election arena? More importantly, has it denied a level playing field to those candidates and political parties, who by force or by will, are not accomplices in paid news?

In India, the media is one of the strengths of the Election Commission. With all responsibility, I have to state that media has all too often been our eyes and ears in the conduct of elections. I fervently wish that the alliance between the Election Commission, political parties and the media, which fortifies the world’s largest democracy does not weaken in the shadow of paid news.

The writer is an election commissioner.

http://www.indianexpress.com/news/all-the-news-thats-fit-to-buy/593299/0

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