New Delhi, Aug. 24: The Election Commission’s August 1997 guidelines would continue to govern all candidates contesting elections till the Representation of the People’s Act Ordinance, now sent back to the President by the Union Cabinet, comes into play. This is especially for Jammu and Kashmir, where the last date of filing nominations for the first phase of polls ends today.
According to legal sources in the Election Commission, the poll panel’s guidelines “stand as on date” as the Ordinance has not yet been promulgated.
Law minister Jana Krishnamurthi said “under (the) doctrine of occupied field”, the government and later Parliament would “occupy” the field of elections with the amendment Act, which stipulates that a candidate need not disclose his educational background, assets and liabilities, and criminal antecedents, if any.
But without the required amendment and the Ordinance, this would not come into effect immediately.
In its June 28 guidelines, the Election Commission has already said that a candidate, specifically in Jammu and Kashmir, has to disclose his assets and liabilities and convictions, if any.
The “conviction” clause is under Section 8 of the existing Representation of the People’s Act. Under it, Tamil Nadu chief minister Jayalalithaa was disqualified from contesting Assembly elections. She was later acquitted by Madras High Court and won the Andipatti byelection to become chief minister.
In Kashmir, however, state laws come into operation, especially the Jammu and Kashmir Representation of People’s Act. Under Section 24 of this Act, “those persons convicted and sentenced for not less than two years” cannot contest elections.
But on August 16, the state government had issued an Ordinance that did not make disclosure of convictions mandatory. This meant the Election Commission or returning officers in the state had no way of knowing or seeking information if a candidate has been convicted. Legal circles in Kashmir say the state’s special laws, laws legislated by the state legislature, or in the absence of it an Ordinance of the state government having the force of law, would apply.
After the poll panel had pointed out the “anomaly” created by the state Ordinance, the Kashmir government issued another directive, asking candidates to file an affidavit indicating whether he/she had been convicted in a criminal case and sentenced for two years or more.
This has been done through amendments to the Conduct of Election Rules.
The rule also says that winning candidates have to declare assets and liabilities, which is along the lines of the Union government-proposed electoral reform laws in that not each and every candidate has to declare assets and liabilities.