A Primer on Election Laws - Contd...

Legislations and Orders – Election – Part II

2. The Representation of the People Act, 1951

The basic legislation that (1) detail the conduct of elections to Parliament and House/s of Legislative Assemblies, (2) prescribe qualifications and disqualifications for membership in the legislative bodies, (3) define and entail consequences for corrupt practices, and (4) provide framework for determination of election disputes.

The Act touches every aspect of the conduct of the elections from prescribing the electoral system to the process. It starts from the issuance of notification of elections to declaration of the returned candidates with meticulous precision.

The legislation has undergone multiplicity of amendments to keep the law relevant to the changing political and technological scenario. For example introduction of Electronic Voting Machine for polls. (Section 61 A)

This legislation covers the administrative machinery of elections (Sections 19 - 29) and the registration of political parties (Sections 29 A to 29 C). A vacuum here is the lack of any provision for deregistration of political parties.

This Act also mandates the declaration of assets and liabilities of returned candidates. (Section 75 A)

Some of the Important Issues

· Disqualification for membership is one of the most contested areas

o Section 8 deals with disqualification due to conviction on certain offences
o One of the most debated issues in election and related laws – criminalisation of politics – is anchored in this provision. (Vohra Committee Report, Law Commission’s 170th Report, Report of the NCRWC, Election Commission’s recommendations on electoral reform)
o The provision disqualifies a person from contesting election on conviction of certain specified offences. The questions here are:
§ Should the disqualification run from the date of FIR/ charge sheeting? The present provision allows one to contest election even from prison
§ Section 8 (4) is also under the line of fire for the exemption it provides for the sitting member of the Legislative Houses. It gives a window period of three months or if a revision or appeal is brought within that period, till the disposal of it by the court
o Section 8 (3) offers another area of debate. It provides that if a person is convicted of an offence other than the prescribed offences (Section 8 (1) (a) to (n) and Section 8 (2), and the period of punishment is more than two years, the disqualification takes effect. One of the issues in Jayalaitha’s case was whether the punishment of two years shall be for an offence/case or is it two years cumulatively in offences/cases. The SC determined the matter holding that it is cumulative years of imprisonment that need to be considered.

· Right to vote

o It has been argued that the right to vote is a statutory right and the right flows from Section 62.

§ Interestingly it is only in the marginal note that the word ‘right’ figures
§ The section is all about the management of the casting of votes. The section is couched in negative language prescribing who shall not vote. One needs to read that all others without the prescribed disqualifications have the right

· Disputes regarding elections

o To be read with Art. 329 (b)
o Jurisdiction with the High Court – through an election petition
o Sections 86 to 99 details out the conduct of the trial of election petitions
o Appeals lie to SC – Section 116 A

· Corrupt practices in election – another contested area, especially in the wake of the hate speech and appeals on the ground of religion

o Section 123
o Bribery, undue influence, appeal on the ground of his religion, promotion of feelings of enmity, propagation or practice of sati, publication of false statements, use of vehicles to transport voters, incurring unauthorised expenditure are the corrupt practices

· Right to information and elections (Sections 33A and B)

o The trajectory
§ The ADR – Election Commission’s Directive to furnish separate affidavits by the candidate – Amendment, bringing in Section 33B – Challenge of constitutionality in PUCL – found unconstitutional

A Primer on Election Laws

This is an effort to chart the major legislations and important judicial decisions of a period in a series for the benefits of the students of Election Laws.

Legislations and Orders – Election – Part I

1. The Representation of the People Act, 1950

This Act deals with:

a. Allocation of seats and delimitation of constituencies (Sections 3 to 13)
b. Establishes posts - election officers (Sections 13A to 13 CC)
c. Provides for the maintenance of the Electoral Rolls (Sections 13D to 27)
d. Deals with the design of filling of seats of Council of States by the representatives of Union Territories (Sections 27 A to 27 K)

One of the basic legislative bulwarks of the conduct of elections to both Parliament and Legislative Assemblies, along with the Representation of the People Act, 1951

Some of the Important Issues

1. The very issue of delimitation and the potential of gerrymandering.

The legislative framework in India – The Delimitation Commission Acts
So far, there have been four Commissions 1952, 1963, 1973 and 2002. The 2002 Commission was established after the 2001 census under the Chairmanship of Justice Kuldip Singh (Delimitation Act, 2002). The recommendations of the Commission were not acted upon till a notice from the SC in 2007 in pursuance of a petition. Later, on 19 Feb 2008, the President approved the recommendations. The conduct of the 2009 general elections was done on the basis of the redrawn constituencies.

2. The issue relating to the conditions to be registered as a voter

a. Qualifications

-Not less than 18 years
-Ordinarily resident (This was one of the issue in Election Commission of India v. Manmohan Singh (2000) 1 SCC 591. This case prompted the 2003 Amendment to Section 3 of the Representation of People Act, 1951, which later gave rise to the Kuldip Nayar decision)

b. Disqualifications

-Not a citizen of India
-Unsoundness of mind – (There is a debate in the disability law circle that this provision amounts to disenfranchisement of a group)
-Disqualified from voting due to corrupt practices or offences in connection with elections

Article in SSRN

I have written a paper titled "Negotiating Procedural Rules in Arbitration Clauses: Beware What You Ask For". The paper can be found here. The abstract is as below:

"Often parties negotiating agreements are wholly unaware of the significance of choice of the seat of arbitration, substantive law of contract or procedural rules they agree to. When disputes arise, the party complaining breach is often taken by surprise at the way in which the poorly-negotiated/ drafted arbitration clause acts as a hurdle in enforcing its rights under the contract. In this essay, two cases are discussed in which the parties seem to have negotiated the arbitration clause without understanding the implications of the arbitral procedures they have agreed to."

Comments on the paper are welcome.

Indian Oil Corporation Limited v Raja Transport Pvt Ltd

Indian Oil Corporation Limited v Raja Transport Pvt Ltd
Case No: Civil Appeal No. 5760 of 2009 (SLP (C) No. 26906 of 2008)
Court: Supreme Court of India
Decided on: 24.08.2009
Decided by: R.V. Raveendran and D.K. Jain, JJ.
Provision of Law: Arbitration and Conciliation Act, 1996 (Act) - Section 11, 12 etc..
Prayer: appeal against the order of the Uttaranchal High Court appointing a sole arbitrator under S 11(6) of the Act

Arbitration Clause:

"69. Any dispute or a difference of any nature whatsoever or regarding any right, liability, act, omission or account of any of the parties hereto arising out of or in relation to this Agreement shall be referred to the sole arbitration of the Director, Marketing of the Corporation or of some officer of the Corporation who may be nominated by the Director Marketing. The dealer will not be entitled to raise any objection to any such arbitrator on the ground that the arbitrator is an officer of the contract relates or that in the course of his duties or differences. In the event of the arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason the Director Marketing as aforesaid at the time of such transfer, vacation of office or inability to act, shall designate another person to act as arbitrator in accordance with the terms of the agreement. Such person shall be entitled to proceed with the reference from the point at which it was left by his predecessor. It is also a term of this contract that no person other than the Director, Marketing or a person nominated by such Director, Marketing of the Corporation as aforesaid shall act as arbitrator hereunder. The award of the arbitrator so appointed shall be final, conclusive and binding on all parties to the Agreement, subject to the provisions of the Arbitration Act, 1940 or any statutory modification of re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceedings under this clause."

Issue
One of the questions that arose was whether appointing IOC’s Director as arbitrator would make the take away independence and impartiality of the arbitral tribunal. On this point, the Court held as below:

1. It is now well settled by a series of decisions of this Court that arbitration agreements in government contracts providing that an employee of the Department (usually a high official unconnected with the work or the contract) will be the Arbitrator, are neither void nor unenforceable

2. If a party, with open eyes and full knowledge and comprehension of the said provision enters into a contract with a government/statutory corporation/public sector undertaking containing an arbitration agreement providing that one of its Secretaries/Directors shall be the arbitrator, he can not subsequently turn around and contend that he is agreeable for settlement of disputes by arbitration, but not by the named arbitrator who is an employee of the other party. No party can say he will be bound by only one part of the agreement and not the other part, unless such other part is impossible of performance or is void being contrary to the provisions of the Act, and such part is severable from the remaining part of the agreement. The arbitration clause is a package which may provide for what disputes are arbitrable, at what stage the disputes are arbitrable, who should be the arbitrator, what should be the venue, what law would govern the parties etc. A party to the contract cannot claim the benefit of arbitration under the arbitration clause, but ignore the appointment procedure relating to the named Arbitrator contained in the arbitration clause.

3. There can however be a justifiable apprehension about the independence or impartiality of an Employee-Arbitrator, if such person was the controlling or dealing authority in regard to the subject contract or if he is a direct subordinate (as contrasted from an officer of an inferior rank in some other department) to the officer whose decision is the subject matter of the dispute. Where however the named arbitrator though a senior officer of the government/statutory body/government company, had nothing to do with execution of the subject contract, there can be no justification for anyone doubting his independence or impartiality, in the absence of any specific evidence. Therefore, senior officer/s (usually heads of department or equivalent) of a government/statutory corporation/ public sector undertaking, not associated with the contract, are considered to be independent and impartial and are not barred from functioning as Arbitrators merely because their employer is a party to the contract

4. The position may be different where the person named as the Arbitrator is an employee of a company or body or individual other than the state and its instrumentalities.

Comment:
The Court also recommended that the public sector undertaking/ state and central authorities to change their practice of nominating its employee as the arbitrator in view of the avowed objectives of independence and impartiality of the arbitral process. But the court does not seem to be clear in treating government departments/ PSUs differently from private entities in the appointment of its own employees as arbitrators.