Mired in delays: Electoral Offences & Petitions

Electoral reform is a long standing demand that the Government seems to be dragging its feet on.  There have been a number of highly valued recommendations on electoral reforms like the Law Commission’s 170th Report of 1999, recommendations from the National Commission to Review the Working of the Constitution of 2002, Election Commission’s recommendations on the electoral reforms of 2004 and the recommendations of Second Administrative Reforms Commission of 2008.

The point of reference here is the gross indifference to the compliance of the existing provisions of the Representation of the People Act, 1951 (RPA).  While giving  the benefit of doubt that adoption of any new significant steps towards electoral reforms would have to take the legislative route, how do we explain the non-compliance on significant steps  of electoral process that already form a distinct part of the RPA, 1951.  The provisions relating to election petition are detailed in RPA , 1951 [Chapter I of Part VI] section 79 to 100 and electoral offences have been dealt with in Chapter III from section 125 to 136.

Election petitions have to be expeditiously concluded within six months of filing, to be tried on a day-to-day basis until concluded.  The section also prescribes that the petition has to be filed within 45 days of the election.  The exact wording of the relevant section from RPA, 1951 is:

“Section 81: Presentation of petitions – (1) An election petition calling in question any election may be presented on one or more of the grounds specified in by any candidate at such election or any elector [within forty-five days from, but not earliest than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates].

Section 86(6) – The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(7) – Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.”

While the term of the present Parliament would conclude in May 2014, approximately 61 election petitions from General Election 2009 are pending at various stages of disposal despite clear laying down of norms on conclusion of trial within six months from the date the petition is presented to the High Court.  The pending petitions in the States are: Andhra (1), Assam (1), Bihar (4), Chhattisgarh (4), Gujarat (4), Karnataka (4), Kerala (3), Madhya Pradesh (5), Maharashtra (12), Punjab (2), Rajasthan (3), Tamil Nadu (1), Uttar Pradesh (13), other States (5).  Except for the petition from Assam which is pending at the level of Supreme Court, all other petitions are still under trial at the level of High Court.

The provision of election petition is to ensure compliance to set election rules as well as execute exemplary punishment for non-compliance to act as deterrent for contestants of the following elections. But if the cases are dragged for more than four years and the term of the Parliament is getting over,  then the entire objective of laying down such clear rules and laws on this very critical issue has proven to be in vain.

The trial of cases relating to offences and corrupt practices in connection with the elections also presents the same dismal picture.  The recent report of Association for Democratic Reforms (ADR) brings out that 30 sitting MPs and 129 sitting MLAs have declared in their affidavits the cases relating to “offences and corrupt practices in connection with elections”.  The list is not exhaustive as it mainly covers the states of Bihar, UP and Karnataka.  But the trend is very discernible.  The electoral offences relate to corrupt practices during election period, threat and inducement of voters, rigging attempts at the polling stations and denial of the right to vote.  These cases are still pending under the various stages of trial since 2008, and the candidates accused are not likely to incur any disqualification from contesting in future.

Public Interest Foundation, a NGO, informally ascertained the status from the Election Commission.  They do not have any record regarding the pendency of such cases in various courts.  Most of the violations are under statues/Acts attracting penal provisions and are mainly pursued by enforcement agencies like police etc.  Under these circumstances, it is a matter of great concern that the candidates with electoral offences facing charges in various courts are able to contest election as the act of committing offence has not been adjudicated within a reasonable time.

The demand for electoral reforms is premised on the fact that the compliance of legislation and rules would be automatic.  But, given the case of clear non-adherence to existing act and rules, one is not very sanguine if the new set of reforms with the backing of the statute will achieve the course correction of the Indian electoral process.

The failure on compliance of such crucial steps of electoral process like timely adjudication of election petitions and cases relating to electoral offences has important learning to offer for our future agenda on electoral reforms.  Merely laws and rules are not sufficient without any effective internal built-in checks.  It has to be ensured that the compliance of rules and laws is weaved into the system by strengthening the office of Chief Election Commissioner.  This institution has served Indian democracy well in past and it can ensure that such non-compliance does not go undetected and unchecked.

N. Misra is ex-Chairman, TRAI and Director, Public Interest Foundation & Tannu Singh is Research Associate

(This article was published in Business Standard on 11th Jan, 2014 and Dainik Jagran on 12th Jan, 2014)