Gujarat National Law University

ELECTION REFORMS THROUGH JUDICIAL ACTIVISM

An Analysis of Land mark Judgments
This synopsis is submitted in partial fulfillment of the academic requirements for the Seminar Paper — Election Law

V. MRUDULA
12B154
2012-2017

Gujarat National Law University, Koba, Gandhinagar, Gujarat – 382 007

Electoral reforms through Judicial activism

Table of Contents
Introduction .................................................................................................................................................................... iii
Review of Literature..................................................................................................................................................... iv
Objectives of the Study .................................................................................................................................................. v
Principle Aims of the Study ......................................................................................................................................... v
Research Methodology .................................................................................................................................................. v
Hypothesis ....................................................................................................................................................................... vi
Research Questions ...................................................................................................................................................... vi
Scope and Limitations ................................................................................................................................................. vi
Scheme of Chapters ..................................................................................................................................................... vii
Working Bibliography ................................................................................................................................................ vii

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Electoral reforms through Judicial activism
Introduction

The Supreme Court’s ruling that legislators must cease to be members of the House if they are convicted
by a court for an offence where the punishment is more than two years, and its more recent judgment
with regard to the Right to Reject has raised, in some circles, the issue of judicial overreach. Are we seeing
a new pro-activism on the part of the highest judicial bench in the land on the question of electoral
reforms? If so, is this a positive development or a negative one?
The demand for electoral reforms has been there in vogue from quite some time.The Goswami
Committee on Electoral Reforms was set up 23 years ago in 1990.
Subsequently, there have been a host of other committees and reports, including the Vohra Committee
(1993), Indrajit Gupta Committee on State Funding of Elections (1998), Law Commission Report on the
Reform of Electoral Laws (1999), National Commission to Review the Working of the Constitution
(2000), Election Commission of India Report on Proposed Electoral Reforms (2004) and the Second
Administrative Reforms Commission (2008). None of these have been able to bring about comprehensive
change and have remained confined to proposals, ideas and intentions.
Even, the comprehensive Electoral Reforms Bill has been pending before Parliament for the last two
decades.
Therefore it can be inferred that the Parliament and political parties have had enough time to act.
However,most of them have no overriding motivation to change the current system because they are its
biggest beneficiaries. This deliberate political drift has become one of the greatest impediments towards
achieving democratic reforms.
In this situation the question that need to be answered is, If Parliament, the supreme institution in a
democracy, refuses to act substantially on matters relating to the ethics and rectitude of its own
functioning, what recourse do public-spirited citizens have?
Given this reluctance of the political establishment to act, it has been seen in past few years that citizens,
through public interest litigations have knocked on the doors of judiciary to save the system from its
ultimate collapse. And in many cases judiciary have responded positively.
However this recourse to approach the judiciary for bringing out policy reforms has been criticized by
some as judicial overreach as in their opinion the judiciary should confine its job only to the
interpretationof law and its push the system towards reform.
In the light of the recent public agitation against corruption it is clear that the country is fed up with the
distortions in the functioning of our democracy and People want clean politics. They want electoral
reform, including in areas of financial transparency and the pernicious link of politics to black money. The
initiative taken by the Supreme Court has, therefore, considerable public support.
The research paper analyzes the landmark judgments of the higher judiciary of India on electoral process
and its impact on bringing a positive reform in the system.
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Electoral reforms through Judicial activism
Review of Literature

Literature review covers the number of books available on the topic in our library. The author proposes
to secondarily rely on the articles and reports available on the Internet, related to this topic. For
international context primary sources would be the websites of their government.

The following books were referred for better understanding the crucial points involved in this present
dispute.

1. BOOK: Electoral Reforms: Law and Institutions of India and World

AUTHOR: Dr.P.Rathnaswamy
PUBLISHER: Bookwell Publishers
YEAR OF PUBLICATION: 2004
From the beginning of elections, someway or other criminalisation of politics always remain a part
of electoral recommendations and then reforms. This book gives an insight into reason and causes
behind electoral reforms with relevant case laws.
2. BOOK: How India Votes: Election Laws,Practice and Procedure
AUTHOR: VS Rama Devi and S.K Mendiratta
PUBLISHER: Lexis NexisButtersworth
YEAR OF PUBLICATION : 2014
EDITION: 3RD
This book helped researcher to understand in-depth analysis of all the aspects of indian electoral
system. It provides detailed information on the practices and procedures relating to elections to
the important offices like the President, vice president, the indian parliament and state legislatures.
It includes all the relevant case laws and judicial pronouncement.
3. BOOK: Handbook on Election Law
AUTHOR: P.RathnaSwamy
PUBLISHER: Lexis NexisButtersworth
YEAR OF PUBLICATION: 2014
EDITION: 1ST
The interesting thing the researcher found in the book was simple and lucid language of concept
discussed in the book, it can even help a ‘dummy’ learn about election process in a fine way. Each
chapter in this book deals with clarity of legal provisions with appropriate case laws. All the
provisions whether election law or constitutional are explained in a fine way with latest
amendments.
4. BOOK: Law of Elections & Election Petitions
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Electoral reforms through Judicial activism
AUTHOR: Justice T.S.Doabia
PUBLISHER: Lexis NexisButtersworth
YEAR OF PUBLICATION:2013
EDITION:4th
Even though this book’s main attention was towards drafting of election petitions and the whole
procedure in detail, it helped researcher by providing an overview over entire process of election
beginning with delimitation of constituencies to power of recall. The main important part from
the view of researcher was providing useful commentary over important issues like qualifications,
disqualifications, election expenditure, corrupt practices, electoral offences which helped a lot in
creating a basic frame in mind.
5. BOOK: All You Want to Know About Indian Elections
AUTHOR: S.K.Mendiratta
PUBLISHER: Lexis NexisButtersworth
YEAR OF PUBLICATION: 2009
EDITION: 1st
This book contains all the salient provisions of constitution,election laws with proper directions
and instructions on various aspects of electoral exercise/practice.

Objectives of the Study

The objective of the study is to examine the impact of judgments delivered by higher judiciary on process
of bringing a positive change in election process in India.

Principle Aims of the Study

1. Part I of this Article highlights the concept and necessity of electoral reforms. It gives a broad
outline of suggestions given by different committees on the subject.
2. The aim of Part II of the Article is to determine the impact of landmark judgments of High
Courts and Supreme Court in the bringing the reforms as suggested by different committees.
3. The aim of Part III of the study is analyze whether by this pro-activist nature the judiciary has
overreached its power as given in the constitution of India.

Research Methodology

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Electoral reforms through Judicial activism
The methodology the author has adopted in this study is the logical positivism method in which by logic
and resources from books and articles the author has tried to analyze the concept. The research was done
on the basis of Doctrinal Research by reading and deriving concepts from books, literature and online
journals and Judgments. Optimum use was made of all the available books and Internet that were found
resourceful. A major portion of the research shall be done on the Internet, as most of the theoretical data
is available only in the form of articles in legal and institutional databases.

Hypothesis

Formulating a hypothesis is of utmost importance in the doctrinal method of research and it is the crux of
any thesis.

Therefore the Final Hypothesis is: Judiciary working within the bounds of the constitution of India can
being about positive change in the electoral process in the country.

Research Questions
If Parliament, the supreme institution in a democracy, refuses to act on matters relating to the ethics and
rectitude of its own functioning, can judiciary step in and provide relief to the citizens?

Scope and Limitations

This dissertation will deal with the very doctrinal aspect of electoral reforms through judicial activism.
Judicial pronouncements by different courts on the topic would be also dealt in detailed manner.
Thorough discussion would be on the application of constitutional morality in different cases and implied
limitations of constitution. A comprehensive account of election laws and reform suggested by successive
Law Commission of India and other committees would be discussed as well.Constitution and its
interpretations by judicial diktat and moral consequences would be discussed.
There has also been a great deal of substantive work on the topic of Electoral Reforms
undertaken by various civil society groups, which have contributed significantly to the public
discourse on the subject. While acknowledging the contribution of these groups, the paper limits
its discussion to those published by the committees mentioned above and the landmark
judgments of the Supreme Court of India on the relevant subject matter.
No empirical claim is made out.

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Electoral reforms through Judicial activism
Scheme of Chapters

Part I –Electoral reforms in India

1. Introduction
2. Background history
3. Constitutional provisions
4. Recommendations of various committees
2.1. Goswami Committee (1990)
2.2. Vohra Committee (1993)
2.3. Indrajit Gupta Committee on State Funding of Elections (1998)
2.4. Law Commission Report on the Reform of Electoral Laws (1999)
2.5. National Commission to Review the Working of the Constitution (2000)
2.6. Election Commission of India Report on Proposed Electoral Reforms (2004) and
2.7. Second Administrative Reforms Commission (2008)Median Line
5. Present scenario
Part II – Judicial activism
1. Introduction
2. Historical Background
3. Landmark judgments on election laws
Part III– Judicial activism or Judicial Overreach
1. Introduction
Conclusion

Working Bibliography
Books:
1. Rama, D. V., &Mendiratta, S. K. (2014). How India votes: Election laws, practice, and procedure. New
Delhi: Butterworths.
2. RathnaSwamy, P. (2014). Handbook on Election Law (1st ed.). Lexis NexisButtersworth.
3. Dabolia, T. S. (2013). Law of Elections & Election Petitions (4th ed.). Lexis NexisButtersworth.
4. Rathnaswamy, P. (2004). Electoral Reforms: Law and Institutions of India and World. Bookwell
Publishers.
5. Mendiratta, S. K. (2009). All you want to know about Indian elections. Gurgaon: LexisNexis
ButterworthsWadhwa.
6. Basu, Durga Das,(2002) Introduction to the Constitution of India, New Delhi: Wadhwa and
Company Law Publishers, 2002
7. Jain, M.P. Indian Constitutional Law Vol- 1, 2,(2003) -New Delhi: Wadhwa and Company Nagpur
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Web-links:
 http://www.asianage.com/columnists/where-parliament-fails-judiciary-saves-115
 http://www.lawcommissionofindia.nic.in/lc170.htm
 http://adrindia.org/resources/recommendations-submissions
 http://www.prsindia.org/uploads/media/Electoral%20Reforms/Electoral%20Reforms
%20Code%20of%20Conduct.pdf
 http://www.thehindu.com/opinion/lead/needed-urgent-electoral-
reforms/article4262865.ece
 http://eci.nic.in/eci_main/PROPOSED_ELECTORAL_REFORMS.pdf

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