The Representation of the People Act : Part II

• 06 Feb 2020

This is Part II of the TTP in continuation of Part I of TTP on The Representation of the People Acts.

The Representation of the People Act (RPA),1951

• Key Provisions
  
  • It regulates the actual conduct of elections and by-elections.
  • It provides administrative machinery for conducting elections.
  • It deals with the registration of political parties.
  • It specifies the qualifications and disqualifications for membership of the Houses.
  • It provides provisions to curb corrupt practices and other offences.
  • It lays down the procedure for settling doubts and disputes arising out of elections.
• Qualification for Contesting Elections in India
  
  • The Parliament has laid down the following qualifications (for contesting election) in the RPA,1951:
    
    • A person must be an elector in the constituency.
    • The person must be a member of a Scheduled Caste or Scheduled Tribe in any state/UTs if he/she wants to contest a seat reserved for them.
    • The minimum age for becoming an MLA/MPs (Lok Sabha) is 25 years.
      
      • At the panchayat and municipality levels, the minimum age limit for contesting elections is 21 years.
• Right to Vote
  
  • Apart from Article 326 of the Constitution ( that guarantees the right to vote to every citizen above the age of 18 years, unless disqualified by any law), Section 62 of the RPA,1951 also ensures that every person who is in the electoral roll of that constituency is entitled to vote.
  • One person can vote at one constituency only and only for one time in a particular election.
  • If a person is confined in a prison, whether under a sentence of imprisonment or transportation, then he is not eligible for voting, however, in the case of preventive custody, he can vote.
    
    • In 2014, the ECI had said that the person under preventive custody had the right to vote, but not under-trials and convicts.
    • However, the Act allows those serving sentences less than 2 years to contest elections from prison.
• NOTA Option: None of the Above was introduced in the ballot papers/ Electronic Voting Machine (EVMs) in General Election to the State Assemblies in 2013.
• VVPAT: Voter Verifiable Paper Audit Trail is an independent system attached with the EVMs that allows voters to verify that their votes are cast as intended. It was introduced in 2013, after the SC allowed the ECI for the ‘requirement of free and fair elections’ in its verdict in the People’s Union for Civil Liberties vs. Union of India case (2013).
• Provisions Related to Political Parties: Every association or body in order to become a political party must be registered with the ECI whose decision regarding registration will be final.
  
  • Registered political parties, in course of time, can get recognition as 'State Party’ or National Party’.
  • Change in name and address of a registered political party must be communicated to the ECI.
  • The ECI can not derecognise a party.
• Voluntary Contributions
  
  • Voluntary contributions by any person or company within India ( other than a government company) can be accepted by the registered political party.
    
    • A company can donate any amount of money to any political party.
    • There is no obligation of the company to report such donations in its profit and loss account.
  • It is mandatory for the political parties to submit to the ECI a list of donations they received above Rs. 2,000.
    
    • Political parties cannot receive more than Rs 2000 as cash donations.
  • Now, political parties are eligible to accept contributions from foreign companies defined under the Foreign Contribution (Regulation) Act, 2010.
• Declaration of Assets and Liabilities
  
  • Individuals contesting elections have to file an affidavit, declaring their criminal records, assets & liabilities and educational qualification.
  • After getting elected, MPs are required to file a declaration of assets and liabilities with the Speaker of Lok Sabha and the Chairman of Rajya Sabha.
  • These declarations have to be made by MPs within 90 days of taking their seats in Parliament.
• Right to Information
  
  • Candidates need to furnish information whether he/she is accused of any offence punishable with imprisonment of 2 years or more in a pending case or has been convicted of an offence.
• Voting Through Postal Ballot
  
  • Any class of person can be notified by the ECI in consultation with the concerned government which can give their votes by postal ballot.
• Section 126 of the RPA, 1951
  
  • 48 hours before the polling ends or concludes, displaying of any election matter by television or similar apparatus in a constituency is prohibited.
  • Section 126 is not applicable to the print media, news portals and social media
    
    • Section 126A prohibits the conduct of exit poll and dissemination of its results during the period mentioned.
• Ceiling on Expenditure
  
  • A candidate contesting polls in large states can spend up to Rs 70 lakh in the Lok Sabha election and Rs 28 lakh in an Assembly election.
• Counting of Votes
  
  • At every election where a poll is taken, the votes are counted by, or under the supervision of the Returning Officer (RO), and contesting candidate, his election agent and his counting agents.
  • Destruction, loss, damage or tampering of ballot papers at the time of counting must be reported by the RO to the ECI.
• Corrupt Practices
  
  • All government or non-government officials are included within the scope of corrupt practices.
  • Bribery: Any gift/offer/promise or gratification to any person as a motive or reward.
  • Undue Influence: Any direct or indirect interference/attempt to interfere on the part of the candidate with the free exercise of any electoral right.
  • The publication by a candidate any statement of fact which is false in relation to the personal character/conduct of any candidate
  • The hiring or procuring of any vehicle by a candidate of any elector to or from any polling station.
• Promoting Enmity
  
  • Any person who promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred between different classes of citizens of India can be punished with imprisonment for a term which may extend to 3 years.
  • Prohibition of public meetings during a period of 48 hours ending with the hour fixed for the conclusion of the poll.
• Disqualification of MPs and MLAs
  
  • The RPA, 1951 lays down certain rules for disqualification of MPs and MLAs.
  • Section 8 (3) of the Act states that if an MP or MLA is convicted for any other crime and is sent to jail for 2 years or more, he/ she will be disqualified for 6 years from the time of release.
    
    • Even if a person is on bail after the conviction and his appeal is pending for disposal, he is disqualified from contesting an election.
  • Section 8(4) allowed convicted MPs, MLAs and MLCs to continue in their posts, provided they appealed against their conviction/sentence in higher courts within 3 months of the date of judgment by the trial court.
    
    • The Supreme Court in July 2013 struck down section 8(4) of the RPA, 1951 and declared it ultra vires and held that the disqualification takes place from the date of conviction.

Significance of the Acts

• Direct Democracy: The provision of direct election for every constituency makes the process of election more democratic and participatory by encouraging and empowering people to play an active role in choosing appropriate candidates.
• Equal Representation: The RPA,1950 provides for delimitation which brings equality in the process of election by ensuring roughly an equal number of electors in each constituency.
• Federalism: The acts strengthened the federal polity of the country by giving due representation to each state in the Parliament.
• Decriminalizing Indian Politics: The RPA,1951 plays the significant role in breaking the politicians, police & criminal nexus (which is one of the greatest threats to the rule of law in India), by prohibiting the entry of persons with a criminal background into the electoral process, thus decriminalizing Indian politics.
• Accountability and Transparency: The RPA,1951 provides for the expenditure monitoring mechanism which ensures the accountability and transparency of the candidate in the use of public funds or misuse of power for personal benefits.
• Clean Election: The RPA,1951 prohibits corrupt practices like booth capturing, bribery or promoting enmity etc., and ensures the conduct of free & fair elections which in turn encourage political liberalization and democratization.
• Legible Political Funding: The RPA ,1951 provides that only those political parties which are registered under section 29A of the RPA, 1951 are eligible to receive electoral bonds, thus providing a mechanism to track the source of political funding and ensuring transparency in electoral funding.

Challenges

• False Disclosures: Even after the provision of the declaration of assets and liabilities in the RPA act, candidates do not disclose all the assets and provide wrong and incomplete information regarding their assets, liabilities, and income and educational qualifications.
• The Bureaucratization of Politics: In spite of the inclusion of several provisions aimed at making the ECI as an independent body,it is still dependent on the Union for financial matters that paves the way for political parties to manage to get the officers in their favour through money and muscle power.
• Dual Responsibility of the ECI: The ECI does not have independent staff of its own so whenever elections take place, it has to depend upon staff of Central and State Governments hence the dual responsibility of the administrative staff, to the government for ordinary administration and to the ECI for electoral administration is not conducive to the impartial and efficient functioning of the Commission.
• Misuse of Government Machinery: The RPAs lack clear provisions and guidelines on the matters related to the misuse of official machinery that gives an unfair advantage to the ruling party at the time of elections and leads to the misuse of public funds for furthering the prospects of candidates of a particular party.
  
  • The misuse of official machinery takes different forms, such as the issue of advertisements at the cost of government and public exchequer highlighting their achievements, disbursements out of the discretionary funds at the disposal of the ministers, use of government vehicles for canvassing etc.

Way Forward

• Restriction on Opinion Polls: By an amendment made to the RPA 1951, conducting and publishing results of exit polls have been prohibited.
  
  • There should be a similar prohibition or restriction on opinion polls also as several manipulated opinion polls could impact the voting pattern.
• False Declaration as Offense: The RPA ,1951 should be amended to include all the items related to the election disclosure in the affidavit and making false declarations in connection with the election to be an offence.
• Independent ECI: In order to curb the practice of bureaucratization of politics and to secure complete independence of the Election Commission, its expenditure should be charged on the Consolidated Fund of India.
• De-listing of Valid Electorates: Parliament must pass a law dealing with the serious problem of delisting of valid electors from electoral rolls because illiterate electorate residing in far villages cannot watch over the publication of electorate lists.
• State Funding of Elections: To minimise the role of money in elections, provisions should be made for state funding of elections.
  
  • A few government reports have highlighted the prospects of state funding of elections like
    
    • Indrajit Gupta Committee on State Funding of Elections (1998)
    • Law Commission Report on Reform of the Electoral Laws (1999)
    • National Commission to Review the Working of the Constitution (2001)
    • 2^nd Administrative Reforms Commission (2008)

The powers of the ECI are enormous and all-encompassing which even exceed the powers of the executive in all election-related issues during the course of the election period. Thereby giving it effective tools in dispensing free and fair elections, the only thing that lacks is will and integrity on the part of responsible officials. The ECI should become more prudent and proactive to ensure the fairness and transparency of the general election and wipe away any doubt regarding its integrity as an esteemed institution.