QUESTION OF LAW
1. Can we achieve the golden goals as set out in Preamble of the Constitution by allowing Corrupts, Criminals, Casteist, Communal and Separatists to form own Political Party, become Party Office Bearer and contest the Parliament/State Assembly election?
2. Why should not there be a lifetime ban on convicted person on contesting the election, forming a political party and becoming office bearer of any political party? Why merely six years ban on convicted person on contesting the Parliament/Assembly election only?
3. Why should not Minimum Educational Qualification and Maximum Age Limit be mandatory criteria on contesting the Parliament and Assembly Election?
4. Whether the Section 8 and Section 9 of the Part-II Chapter-III (Disqualification for Membership of Parliament and State Legislature) of the Representation of the People Act 1951, is consistent with Article 13 and 14 of the Constitution of India?
5. Whether the Part-II, Chapter-I (Qualification for Membership of Parliament) and Part-II Chapter-II (Qualification for Membership of State Legislature) of the Representation of the People Act 1951, should be amended to ensure Minimum Education Qualification and Maximum Age Limit for contesting candidates?
GROUNDS
That the petitioner begs to file the present writ petition inter-alia on the following grounds:
1. Because in the Executive and Judiciary, when one is convicted for any criminal offence, he or she is suspended automatically and their services are terminated for lifetime, however, this rule is applied differently in case of convicted person is a legislature. Even after conviction and undergoing sentence, one can form his Political Party, become the Office Bearer of a Political Party, contest the Election, and become member of Legislature after expiry of six years period from the date of his/her conviction. The Representation of the People Act-1951, burdened with the very important task of Law making, has also not provided any proper guidelines in the form of Minimum Educational Qualifications, Maximum Age Limit, Good Character and Conduct. India stands as a model for many emerging democracies around the world. Free and fair elections are the hallmark of a well functioning democracy. While we are proud of our democracy, there are a number of areas, which needs to be strengthened to realise the true potential of a well functioning democracy. Our election system, from the selection of candidates, to the manner in which funds are raised and spent in election campaigns, are in dire need of significant changes. It is impossible to achieve the Golden Goals as set out in Preamble of the Constitution without De-Criminalization of Politics. The ECI and LCI suggested many changes to curb the corruption and de-criminalization. These two issues goes on to hinder and stifle developmental agenda being undertaken and the evils sponsored through this becomes omnipotent and tarnishes the foundation of democracy.
2. Because there are a number of coveted recommendations on Electoral Reforms such as LCI’s 170th Report on Electoral Reforms (1999), National Commission to Review the Working of the Constitution Recommendations (2002), the ECI recommendations on the Electoral reforms (2004) Administrative Reform Commission Recommendations. In order to bring about transparency and accountability into the electoral system, complete over-hauling of the processes urgently needed. There are certain immediate measures needs to be taken feasibly to mark the first successful step towards an attempt to cleansing our electoral system. Corruption and Criminalization has been an area of concern since last two decades, regarding which many recommendations have come from various high-powered committees, constituted to advise the government on the issue of electoral and political party reforms. LCI and ECI emphasized on reforms in this area at two levels: first, debarring of candidates from contesting the election, if a competent court in respect to offences, punishable by imprisonment of five years or more, have framed charges against contesting candidate and second, disqualification for filing false affidavit. If we expect a democracy to be at least an attempt to be equal, we have to acknowledge that ours is patently and unabashedly unequal. Everyone of age has a vote, but viable candidates must be drawn from a tight circle of political dynasties/families, retainers, party hierarchies and money bags/alleged criminals. Presently Indian democracy is no more than universal adult suffrage, in which the voter is vouchsafed of selecting from among an increasingly unappetizing few, but can’t himself be a member of the contesting club. Electoral Reform for upholding the highest tradition of probity and morality in public life urgently needed.
3. Because Part-II Chapter-I (Qualification for Membership of Parliament) and Part-II Chapter-II (Qualification for Membership of State Legislatures) and Part-II Chapter-III (Disqualification for Membership of Parliament and State Legislatures) of the Representation of People Act-1951 should be considered for amendment on top priority and thereby marking atheist the very first step in a positive direction in the entire process of Electoral Reforms. The overlapping nature of the measures that to be taken for de-criminalization of politics from electoral processes, necessitates that all the steps suggested in the petition should be undertaken in simultaneous synchrony. Indian democracy is no more than an universal adult suffrage, in which voter is vouchsafed the privilege of selecting from among an increasingly unappetizing few, but can’t himself be member of contesting club. There is very less space for honest common person in existing undemocratic and opaque political system. It’s impossible to achieve the golden goals as set out in Preamble of the Constitution without de-criminalization and de-communalization of politics and reforming the existing electoral and democratic system and without eradication of Corruption Casteism and Nepotism. Political leaders are using the Caste and Religion for political gain and consequently dividing the society, which is dangerous for fraternity, unity and integrity of the nation. Political leaders are misusing the freedom of speech, knowingly and intentionally for political gain, not only during election campaigning but during interview/media debates too. There is not any written Code of Conduct, for political parties and leaders. Citizens are losing the faith, the way our elected representatives are behaving. There is danger to the very idea of Socialist Secular Democracy.
4. Because disqualification rule for convicted person cannot be applied differently on Executive, Judiciary and Legislature, hence the Section-8 and Section-9 of the Part-II, Chapter-III (Disqualification for Membership of Parliament and State Legislature) of the Representation of the People Act 1951, is violative of the fundamental rights, unconstitutional and inconsistent with Article 13 and 14 of the Constitution of India. Widely held views among the public with regard to Criminalisation and Communalization of politics, the use of money power and mussel power in securing votes, the paid-news disease are some of the issues that are enlarging the trust deficit with regard to our elections. High cost of elections “creates a high degree of compulsion for corruption in the public arena” and that “the sources of some of the election funds are believed to be unaccounted and criminal money, in return for protection, unaccounted funds from groups who expect a high returns on their investment, kickbacks or commissions on contracts, etc.” Various recommendation from high level committees and Law Commission of India for Electoral Reform and Political Reform not implemented till date and pending since long time even after many reminders. The poison of Casteism and Communalism is being used for political gain, needs to be stemmed at the earliest to regain the trust of the citizens in our democratic process. There have been several instances of persons, charged with serious and heinous crimes like murder; rape, dacoity etc and contesting election during pendency of trial and even getting elected with money power and mussel power. This leads to a very undesirable and embarrassing situation of lawbreaker becoming lawmaker and moving around under police protection.
PRAYER
For the reasons stated above, it is the most respectfully prayed that this Hon’ble Court may be pleased to:
a) Issue a direction or order or writ including writ in the nature of mandamus or such other writ, order or direction as may be necessary; to declare the Sections 8 and 9 of the Representation of the People Act 1951 unconstitutional and void as they restricts disqualification period up to 6 years only and allow convicted person to contest Parliament / Assembly Election and thus inconsistent with Article 14 of the Constitution of India;
b) Issue a direction or order or writ including writ in the nature of mandamus or such other writ, order or direction as may be necessary; directing the respondents to implement the Election Commission’s Proposed Electoral Reform and Law Commission Report No-244 and 255, which is necessary for de-criminalization and de-communalization of Politics;
c) Issue such other writ; order or directions as may be necessary, directing the respondents to set Minimum Educational Qualification and Maximum Age Limit for contesting candidates in spirit of the Apex Court Judgment in Rajbala & Others Vs State of Haryana.
PETITIONER-IN-PERSON
(Ashwini Kumar Upadhyay)
Advocate En. No-D/1119/12
15, New Lawyers Chambers
Supreme Court, New Delhi-1
#08800278866, 09911966667
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