JUDICIAL REVIEW

1. Judiciary takes lot of holidays. For eg Jabalpur High Court will take 88 holidays in 2011. 52
Sundays, 12 Saturdays, summer holidays from May 23 to June 17, winter holidays from 26
December to 31 December and other festival holidays. Sometimes I think is our Judiciary
running a school? When there are so many pending cases, I do not find any justification for so
many holidays. These should be curtailed.
2. Many a times it has been observed that judges are not punctual and sometimes lawyers come
late. This should be strictly handled and stringent action should be taken against the erring judges
and/or lawyers. This will help in ensuring that courts time is utilized well.
3. The time required to complete a particular kind of case should be pre-defined and it should
only be extended on reasonable reasons. Judges must ensure that trial follows the time limits.
Also, there should be time limit for a particular hearing of a case, say 1 hour in each hearing.
4. There are many cases which have a similar point or are of similar nature. They should be
clubbed and a single judgement can be used for them. Similar recommendations as far as I
remember was made by some Law Commission also.
5. Old cases like the one you mentioned should be separated from the rest of the cases and
should get prioritized handling or could be assigned to special tribunal to decide the matter
without any in-court hearing unless absolutely necessary.
6. Since judiciary doesnt have much time arguments in courts should not be prolonged and until
and unless absolutely necessary oral argument should not happen. In place of that written legal
notes and arguments can be submitted to the court. The judge should be empowered to decide
which cases are of absolute importance and should then allow the oral arguments. Cases like
interpretation of Constitution can be regarded in this category.
7. Laws should written in very clear and specific manner. Notwithstanding anything detailed
herein and blah blah only adds to confusion and creates loop-holes. The existing laws should
be written so that a lay man could interpret it. It will reduce the number of cases that reach the
court and get involved in the cycle of interpretations and counter-interpretations.
8. Most of the cases filed under civil code can be transferred to tribunals and should reach courts
in case of question of interpretation or as appeals.
9. Similarly, judgements should also be clear and should not leave any questions of
interpretations.

10. Bars should be severely warned against going on strikes during the working hours and days
of the courts.
11. Latest technology can be of great help for the courts. Use of video conferencing, etc can help
the time of court while waiting for government officials, MPs, MLAs, ministers and others to
come and give witness which most of the time leads to adjournments. This way even if they are
ill they can take time out to be present for an hour for the hearing as I above mentioned time of a
hearing should also be reduced to say 1 hour in my point 3 above.
12. Information Technology can be used to prepare a database to store cases, judgements, etc and
can be used for immediate help in cases which look similar to a previous case which was solved.
A good reporting tool can immensely help in this. IT if used intelligently can create wonders for
the improving the productivity and efficiency of the cases.

Electoral reform

In June this year (2011), 7th Regional Consultation on Electoral Reforms was held in Guwahati.
A number of measures have been proposed by various committees on different issues. I am just
copying them from its press release for ready reference. These measures, including the ones
proposed by previous Committees, on the issue of Electoral Reforms are:
Criminalisation of Politics

Disclosure of criminal antecedents of candidates: more stringent punishment for noncompliance, concealing information, or providing wrong information

Restrictions on eligibility of candidates with criminal cases pending against them

Negative or Neutral Voting option to allow voters to reject all candidates if none are
found desirable.

Financing of Elections

Raising or elimination of official limits on campaign expenditure

More stringent enforcement of disclosure of assets and liabilities of candidates and

provision for audit by a special authority

Curbing the cost of campaigning (1) ban on certain types of campaign materials and
methods(2) holding state and parliamentary elections simultaneously, (3) reducing
campaign periods, and (4) barring candidates from contesting elections from multiple
constituencies

State funding of elections

Conduct and Better Management of Elections

Prevention of irregularities in electoral rolls provision for common and automated

electoral rolls between State Election Commissions and Election Commission of India

Prevention of rigging through muscle power and intimidation (1) use of electronic
surveillance equipment, and (2) power to Election Commission to order a fresh election,
void the election results, or order a re-poll upon report of returning officers

Provide for the use of totalizer for counting of votes cast at more than one polling
station where EVMs are used, so that the trend of voting in individual polling station
areas does not get divulged and the electors may not be subjected to any harassment or
victimization on that account

Reduction in proliferation of candidates (1) increase deposit required to contest

elections or give election Commission power to revise deposit amount before each
election, (2) special measures to deter independent and non-serious candidates

Measures to strengthen Election Commission (1) Constitutional protection of all

members of Election Commission, (2) measures to insulate Election Commission
Secretariat from outside influence, (3) treat the budget of the Election Commission as
charged on the Consolidated Fund of India

Restrictions on Government sponsored advertisements (1) advertisements of

achievements of the governments (Central or State) should be prohibited for a period of
six months prior to the date of expiry of the term of the House or from date of dissolution
of the House for premature elections, and (2) symbols and photographs of leaders of
specific parties should be prohibited from being displayed in such advertisements

Restriction on contesting elections from more than one constituency

Amendment of law to provide for filing of election petition even against defeated
candidates on the ground of corrupt practice

Restrictions on opinion polls

Prohibition on campaigning during final 48 hours before polling, including newspaper

advertisements and house-to-house visits

Ban on transfer of officers likely to serve elections six months prior to date of expiry of a
fixed term or from date of dissolution of the House (in case of premature dissolution)

False declaration in connection with conduct of elections to be an offence (such as false

complaints of booth capturing or conduct of election officials)

Enhancement of punishment for electoral offences (undue influence, bribery, publishing

a false statement in connection with an election, incurring or authorizing expenditure for
promoting the election prospects of a candidate)

Restoring the cycle of biennial retirement in the Rajya Sabha/Legislative Councils to

ensure retirement of 1/3rd of the members after every two years

Expenditure ceiling for election to Council Constituencies

Provision for investigation of misuse of religion for electoral gain by political parties

Re-examination of the provision of Teachers and Graduate Constituencies in Legislative

Councils

Prevention of victimization of officers drafted for election duties consultation with the
Election Commission and its concurrence should be made compulsory before initiating
any disciplinary/legal proceedings

Disqualification period of candidates for failure to lodge election expenses be extended

from 3 years to 5 years.

Regulating Political Parties

Amendment to Representation of the People Act, 1951 to authorising the Election

Commission to issue necessary orders regulating registration and de-registration of
political parties

Election Commission should progressively increase the threshold criterion for

recognition

Provide strict rules regulating necessary provisions in rules and by-laws of parties to
qualify for registration

Auditing of Finances of Political Parties

Compulsory annual publishing of accounts by political parties

Auditing of accounts of political parties by Comptroller and Auditor General

Any receipt by a political party either directly or through the executives or the party
functionaries should be deposited in the Bank Accounts of such parties

All payments by the political party exceeding Rs. 20,000/- to a person should be made by
crossed account payee cheque

All contributions or donations or gifts by any person to a party functionary other than
those by his/her relative(s) shall be deemed as receipts of the political party and it will be
accounted for by the political party

Penalties for non-compliance in publishing accounts or furnishing false financial

information, including fines and/or deregistration

Adjudication of Election Disputes

Special election benches designated for election petitions only should be formed in the
High Court

Special Election Tribunals should be constituted at the regional level under article 329B
of the Constitution to ensure speedy disposal of election petitions and disputes within a
stipulated period of six months, comprising a High Court judge and a senior civil servant
with at least 5 years experience in the conduct of elections (not below the rank of an
Additional Secretary to the Government of India/Principal Secretary of a State
Government)

Review of Anti-Defection Law

Penalties for disqualification on grounds of defection should be decided by the

President/Governor concerned under the advice of the Election Commission, instead of
relying on the objectivity of the decision from the Speaker.

Suggestions made by Navin Chawla, Former Election

commissioner
Aberrations in the electoral system are

Disregard for expenditure limits,

Criminality among some candidates and

Paid news

Expressing optimism that the growing impatience of the youth with the major problems that
beset the electoral system would lead to changes
Suggestions

For limiting expenditure, there ought to be a combination of regulatory and selfregulatory mechanisms. Most candidates would be income tax assessees and possess
Permanent Account Number (PAN) cards. This fact could be utilised to monitor their
expenses through the income tax authorities themselves.

Candidates can open accounts, and expenses out of it can be scrutinised by the respective
Income Tax Officers. The ITOs views can be given at the first instance to the EC, which
also has its own observers.

With their help, the EC should take a final view which, in any case, will be justifiable
State funding, doing away with the limit or raising it by two or three times were all
options, but there was little unanimity

Disqualifying those against who charges had been framed for heinous offences such as
murder, attempt to murder and rape that could attract prison terms of five years and above

If only political parties gave up the tendency to see winnability as the sole criterion for
selecting candidates, and saw the electoral arena as a level playing field from which
criminality ought to be eased out, they could address this problem

By-elections could be a true test of public opinion. It will be less than fair if we dont
hold them or deny representation to any constituency

Corruption

Present Status :
1) Expenditure ceilings: A candidate is allowed to spend a maximum of Rs.6,00,000 in an
Assembly election Rs.15,00,000 for Lok Sabha (in Andhra Pradesh). These new ceilings came
into effect in December 1997 in place of the earlier ceilings of Rs.1,50,000 and Rs.4,50,000
respectively. In reality, the actual expenditure is often 15 to 20 times the present ceiling.
2) Prior to 1969, Section 293 of the Indian Companies Act permitted contributions to political
parties. Such contributions could be upto 5% of the profit with the approval of the Board of
Directors and unlimited with the approval of the shareholders.
In 1969, corporate contributions were banned.
In 1985, again companies were permitted to contribute upto 5% of the profit.
In reality, there are believed to be huge undisclosed and unaccounted corporate contributions to
political parties and candidates.
3) Section 13A of the Income Tax Act (IT Act) exempts from tax the income of a party from
house property, other sources and voluntary contributions.
4) Parties are bound by law to maintain accounts regularly, record and disclose the names of all
donors contributing more than Rs.10,000 and have the accounts audited by a qualified
accountant as defined in Section 288(2) of the IT Act.
5) In 1978, Section 139(4B) was added to the IT Act by the Janata Government. This provision,
read with Section 13A, makes it mandatory for the political party to furnish return of income
every year.
Every major party is said to have violated this statutory requirement of furnishing returns if its
income exceeded the normal taxable limit.
6) In general, no party is believed to insist on accepting contributions only by cheque. Some time
ago, BJP made an announcement that they would like to accept contributions by cheque. But it is
believed that most contributions after that were undisclosed.

Obviously contributions to parties by cheque are exceptional, and the bulk of the funding is
undisclosed.
7) The press reported that on Supreme Counts directives in a public interest litigation filed by
the Delhi-based Common Cause, the income tax officials have sent notice to all political parties
to file tax returns disclosing the receipts and sources of contributions. So far there is no evidence
of parties having submitted these returns. Noting further is known of the outcome of this
initiative.
8) The uncorroborated Jain Hawala scandal reports suggest that large amounts of tainted money
from highly questionable sources is flowing into party coffers.
9) Legal penalty for not filing election expenditure returns is disqualification for three years. If
the expenditure exceeds the ceiling prescribed, the penalty is six years disqualification.
10) By an ordinance in 1969, later made into law in 1974, the expenditure incurred by the party
or an association or a friend is exempt from expenditure ceilings.
11) Candidate should report the expenses to the District Election Officer within 30 days of
completion of elections. The accounts have to cover the period from the date of notification to
the conclusion of election.

Problems:
1) It is generally acknowledged that the expenditure in elections is astronomical. In some States,
the expenditure of Rs.1 crore for Assembly election and Rs.3 4 crores for Lok Sabha is
common.
2) The expenditure is not only above the ceilings prescribed, but most of it is for illegitimate
purposes and is illegal. Often such undisclosed expenditure is incurred in inducing voters
through money and alcohol, bribing election officials, polling staff or police personnel for
favours and partisan conduct, and hiring hoodlums and workers to indulge in large scale
personation, booth capturing and rigging. Often criminal gangs are hired to browbeat the voters
or prevent them from voting.
3) The expenditure of major parties in the general election for Lok Sabha and Legislative
Assembly in Andhra Pradesh in 1999 has been estimated (anecdotal evidence) at about Rs.600
crores.

4) The expenditure of candidates for the municipal elections in AP in 2000 is estimated at Rs.100
crores (anecdotal evidence). The total annual income of the 107 municipalities (excluding
municipal corporations) probably does not exceed Rs.100 crores!
5) In the absence of strong legislative framework, the Election Commissions efforts to curb
expenditure have merely pushed most expenditure underground. The ostentatious expenditure for
visible campaigning is on the decline, whereas the illegitimate expenditure has been on the rise.
6) In the absence of strict disclosure norms, parties are not inclined to receive contributions
openly. Almost always political contributions are obtained through extortion, or received as a
consideration for past or future favours out of turn.
7) The Tatas groups made a genuine effort to create a fund for campaign contributions. However,
in the absence of an enabling climate, and the difficulty in providing corporate funding to all
parties on objective criteria, the initiative did not make any progress.
8) Unaccounted election expenditure has become the root cause of corruption. Political funding
and corruption are inextricably linked.
9) The entry of honest citizens into political and electoral arena is rendered almost impossible on
account of the inexhaustible appetite of the political system for unaccounted funding.
10) Honest citizens and corporate groups have no incentive to fund political activity.
11) Candidates are often chosen on the basis of their capacity to spend in elections, rather than
their ability to serve the public. Good candidates with limited means are discouraged from
seeking public office. Disparities in campaign resources have reduced electoral competition.
12) Parties in power use public money with impurity for personal aggrandizement and for
publicity to individuals and the parties.
13) Large scale mass mobilization is the norm, involving huge expenditure and little political
education or public awareness. A large political rally involving about 100, 000 people typically
costs Rs.3-4 cores.
14) Abuse of power is common in raising resources or organizing political rallies and meetings.
15) Party finances are neither regulated nor transparent.
16) Party workers are no longer volunteers inspired by ideology, great leaders or good goals, but
hired supporters

Proposals for campaign funding reform

A) Measures to encourage political funding:

1) All individual contributions to individuals or parties for political and election activity shall be
exempt from income tax subject to a ceiling of, say Rs.10,000
2) All corporate contributions from companies upto a ceiling of 5% of the net profit shall be
exempt from corporate tax
3) Companies may contribute subject to the following norms
a) No contribution shall be made above 5% of the profit
b) A company which receives state subsidy or has a decision or contract or license pending with
government shall not contribute

B) Measures to prevent abuse of office

4) Government shall not issue any advertisements containing the name of a person or party or
photograph of any leader
5) No government advertisement shall be issued listing any achievements of a particular
government.
6) Government transport or infrastructure shall not be used for political campaigning
7) No contribution shall be received from any person or corporate body in respect of whom any
decision or license or contract or claim of subsidy or concession of any nature is pending with
the government.

C) Measure s to enforce disclosure and accountability

8) Every individual contribution exceeding Rs.1000/- and every corporate contribution shall be
disclosed to the Election Commission and the Income Tax authorities. Penalty for non-disclosure
will be fine equal to ten times the contribution and in addition case of corporate bodies,
imprisonment for six months.
9) Every political party and candidate shall get the receipts and expenditure fully audited and
make the audited accounts for the financial year public by Sept 30.
10) The audited statement of accounts shall be submitted to the Election Commission as well as
the Income Tax authorities in the prescribed proforma. (Annexure V) Copies shall be made
available to any member of the public by the Election Commission on payment of a nominal fee.
11) Along with the audited statement of accounts, the party or candidate shall submit a complete
list of all contributions exceeding Rs.1000/- with the full identity, address and other details of the
donors. These lists shall be made public and furnished to the Election Commission and Income
tax authorities. Election Commission shall make available to the public this list on demand for a
nominal fee.
12) Penalties for not furnishing audited accounts by a candidate will be disqualification for a
period of six years or until accounts are furnished, whichever is later.
Penalties for non-disclosure of donations by a candidate will be disqualification and a fine
equivalent to ten times the amount covered by non-disclosure, disqualification for six years and
imprisonment for one year.
13) Penalties for not furnishing audited statement of accounts shall be derecognition of the
political party until accounts are furnished. Penalties for non-disclosure of donations by a party
will be a fine equivalent to ten times the amount covered by non-disclosure, imprisonment of the
persons responsible for a period of three years and derecognition of the party for a period of upto
five years.

D) Measures to limit campaign expenditure

14) There shall be a reasonable ceiling on expenditure in elections as decided by Election

Commission from time to time. All expenditure including that incurred by a political party or any
individual or group to further the electoral prospects of a candidate shall be included in the
election expenditure.
15) Penalty for violation of ceiling shall be a fine equal to five times the excess expenditure.
Penalty for wilful non-disclosure of any expenditure shall be disqualification of the candidate for
six years, fine equal to ten times the non-disclosed amount and imprisonment for six months.
16) There shall be reasonable ceilings fixed on television/radio/newspaper advertisements.
17) During election time, rallies held under covered roofs alone shall be permitted, and outdoor
public rallies shall be prohibited. However, there shall be no restrictions on all other campaign
related individual or group activities.

E) Measures for public funding

18) Free television and radio time shall be given in state media to recognised parties as
prescribed by the Election Commission
19) Private electronic media shall earmark time for recognised parties as prescribed by the
Election Commission for election-related campaign
20) There shall be election debates telecast and broadcast live by all electronic media as per the
directions of the Election Commission
21) Every candidate/party obtaining 2% of the valid votes polled in a constituency shall be
entitled to receive public funding to a tune of Rs.5 per vote. The Election Commission shall
receive these claims, ensure the candidates and partys compliance with all norms of auditing,
disclosure and expenditure ceilings, and award the public funds.

Miscellaneous

22) The Election Commission shall be the final authority to determine compliance or otherwise
of these norms, and to impose penalties.
23) Public funding to party candidates shall be contingent upon the party candidates being
selected democratically by secret ballot by members of the party or an assembly of elected
representatives of the party members in the constituency.
24) Any expenditure to give inducements to voters, distribute gifts, bribe public officials
involved in conduct of election, or hire any workers or gangs for any unlawful activity shall be
unlawful. Penalties for such unlawful expenditure shall be disqualification of the candidate for
six years, a fine equivalent to ten times the expenditure incurred and imprisonment for three
years.
25) Every candidate shall make a declaration of his/her income and property at the time of
nomination, along with income and properties of the members of his family. The proposed form
of declaration is given in Annexure VI. False or incomplete declaration shall be invite
disqualification for six years and imprisonment for one year. Non-declaration will invite
automatic disqualification.
The Election Commission shall determine the compliance of this provision and make public
these declarations. The EC shall be the final authority to decide on complaints of false
declaration.

by Dr. Jayaprakash Narayan Loksatta

Reforms in anti defection laws
The Anti-Defection Law was passed in 1985 through the 52nd Amendment to the Constitution,
which added the Tenth Schedule to the Indian Constitution. The main intent of the law was to
combat the evil of political defections. There are several issues in relation to the working of
this law which need to be discussed. Does the law, while deterring defections, also lead to
suppression of healthy intra-party debate and dissent? Does it restrict representatives from
voicing the concerns of their voters in opposition to the official party position? Should the
decision on defections be judged by the Speaker who is usually a member of the ruling party or
coalition, or should it be decided by an external neutral body such as the Election Commission?
Some of the recommendations are listed below:Dinesh Goswami Committee on electoral reforms (1990)

Disqualification should be limited to cases where

1.

a member voluntarily gives up the membership of his political party

2. a member abstains from voting, or votes contrary to the party whip in a motion of
vote of confidence or motion of no-confidence.

The issue of disqualification should be decided by the President/ Governor on the advice
of the Election Commission.

Halim Committee on anti-defection law (1998)

The words voluntarily giving up membership of a political party be comprehensively

defined.

Restrictions like prohibition on joining another party or holding offices in the government
be imposed on expelled members.

The term political party should be defined clearly.

Law Commission (170th Report, 1999)

Provisions which exempt splits and mergers from disqualification to be deleted

Pre-poll electoral fronts should be treated as political parties under anti-defection law.

Political parties should limit issuance of whips to instances only when the government is
in danger.

Election Commission

Decisions under the Tenth Schedule should be made by the President/ Governor on the
binding advice of the Election Commission.

Constitution Review Commission (2002)

Defectors should be barred from holding public office or any remunerative political post
for the duration of the remaining term.

The vote cast by a defector to topple a government should be treated as invalid.