Salient Recommendations of Various Committees on Electoral Reforms

Filed under Electoral Reforms

The 2010 Corruption Perception Index by Transparency International, a global coalition against corruption, clearly shows that nearly three quarters of the 178 countries ranked in the index score below five, on a scale from 10 (very clean) to 0 (highly corrupt).

India at the 87th rank has been earmarked at 3.3 hinting strongly towards serious corruption problems; Denmark tops the list at a score of 9.3, whereas Pakistan is at the score of 2.3 and Somalia is at the rock bottom with a score of 1.1.

The grave issue with the problem of ‘corruption’ is that besides being a bottleneck in itself, it goes on to hinder and thus stifles the life out of any developmental agenda being undertaken. And the dangers engendered though this issue of corruption becomes all the more omnipotent when it infests the very foundation of democracy i.e. electoral processes.

A democracy cannot afford to ignore the populist emotions, and through the entire uprising that our  nation just witnessed towards lobbying for the formation of a political will for the establishment of lokpal bill, goes on to establish beyond all doubts that aam aadmi strongly desires definitive action against all forms of corruption.

Electoral processes as being a high alert area for corruption is a common knowledge, something that even the leaders of all political parties are in consensus with. There are a number of highly-valued government body recommendations on electoral reforms like the Law Commission’s 170th Report on Electoral Reforms of 1999; recommendations from the National Commission to Review the Working of the Constitution of 2002; Election Commission’s Recommendations on the Electoral reforms of 2004; Department- Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice Eighteenth Report on Electoral Reforms of 2007.

Thus, well-recognizing the pressing need for electoral reforms starting with the year 2011, the Ministry of Law and Justice, Government of India, had constituted a core committee to look into various aspects on Electoral Reforms in India. It had decided to hold seven regional consultations across various locations in India to elicit views from various stake holders in order to consensually pave the path for electoral reforms. The Election Commission had co-sponsored this exercise. The consultations attempts to address a number of well established  grey areas in the electoral processes like de-criminalisation of politics, de-communalisation of elections, financing of elections, auditing of finances of political parties, conduct, regulation, better management of elections, adjudications of election disputes and media and elections. These seven regional consultations culminated in the National consultation in New Delhi, and attended amongst others by the Prime Minister of India. As a follow-up action to the nation-wide consultation the Law Ministry seems to have already finalized its list of proposed changes to be made to the Representation of People Act, a finalized draft of the same seems to have been forwarded for the consideration of the Cabinet at the Prime Minister’s Office.

Complete over-hauling of the electoral processes for the second largest democracy of India, in order to bring about total transparency and accountability into the system will be a gradual evolutionary progression, but there are certain immediate measures that can feasibly be taken to mark the first successful step towards an attempt to cleansing our electoral system even if a little at a time. Some of the areas calling for urgent redressal within the election system are de-criminalisation of politics, political parties reforms, state-funding of elections, adoption of certain ingenious methods like ‘no-vote’ option and the ‘right to recall’ in order to make the political functionaries more accountable to the very general public that they claim to represent.

De-criminalisation of Politics: Morality & Integrity Essential for Public Life

De-criminalisation of politics has been an area of concern, regarding which recommendations have come from almost all the high-powered committees constituted to advise the government on the issue of electoral and political party reforms. Law Commission in its recommendations of 1999, had emphasized on reforms in this area at two levels, one is debarring of candidates from contesting an election if charges have been framed against him by a competent court in respect to offences mentioned in the newly proposed section 8-B by the law commission to be incorporated into the Representation of the People Act of 1951. Recommendations from the National Committee to Review the Working of the Constitution (2002) and the Election commission (2004) while agreeing with the essence of the above suggestion by Law Commission, further improvises on it by saying that the law should be amended to provide that any person who is accused of an offence punishable by imprisonment of five years or more should be disqualified from contesting election even when trial is pending, provided charges have been framed against him by a competent court. In the draft being finalized by the Law Ministry and sent for the cabinet’s consideration after rounds of regional and national consultation throughout 2011, seems to have attached an additional clause to the above provision in relation to heinous criminal offences, providing that the above provision however shall not apply in cases where the charges have been framed in less than a year from the filing of nominations, thereby providing for a safeguard against politically motivated cases. Additionally through this finalized draft of 2011 generated after nation-wide consultation, Prime Minister’s Office has also proposed for consideration by the Law commission that a person once convicted by any court of law should be disqualified from elections until he/she is acquitted by a higher court of law, providing for no immunity for a sitting MP or a legislator during the pendency of the appeal.

The second strong and clear recommendation from the Law commission in relation to de-criminalisation of politics is that any candidate seeking to contest election should clearly furnish details assets (movable as well as immovable) of his/her own as well as his spouse and dependants; moreover details regarding criminal cases, if any, pending against him, including a copy of the FIR/complaint and any order made by the concerned court should also be made a part of essential disclosures to be filled at the time of filing nomination papers for contesting any election. Action in regards to have already been taken by the Election Commission by bringing about a revised format in February 2011 for filling affidavit along with election nomination paper in pursuance of the judgment and order dated 13th March , 2003 of the Hon’ble Supreme Court, in Civil Appeal No.490 of 2002. This revised format of filling affidavit makes it compulsory to declare clearly not only the  assets, liabilities of his own as well as his spouse and dependants, but also demands for correct statements regarding criminal background (even if a criminal case is still pending though cognizance has already been taken by the court) and educational qualification. The Election Commission’s 2004 recommendations specifically in regards to the above clause calls for stringent punishment of a minimum period of two years in place of merely six months, while doing away with the alternative clause for fine, in case of furnishing wrong information or concealing any information while filing of the affidavits along with election nomination.  The law Commission’s finalized  draft prepared after nation-wide consultations held in 2011 and sent for cabinet’s consideration, proposes additionally in this regard that any candidate who files a false affidavit regarding his/her assets to contest an election should stand disqualified.

Association for Democratic Reforms (ADR) through its National Election Watch Campaign advocates strongly that the above clause for asset disclosure should not be limited to a one-time excise, undertaken only at the time of election by all political functionaries, but should be called upon as a regular annual exercise reinforced through legal binding; all of which should then be made available for public scrutiny by the appropriate authority. ADR also calls for all political parties and candidates to declare their sources of funds well before elections so that voters can make their informed choice, especially in light of repeated news in recent times that political parties get bulk of their funds from unnamed donors.

Yet another actionable step in relation to de-criminalisation of politics that has been proposed by National Commission to Review the Working of the Constitution in its 2002 recommendations is that criminal cases against politicians pending before Courts either for trial or in appeal must be disposed off speedily, if necessary, by appointing Special Courts. This suggestion of the National Commission to Review the Working of the Constitution, has been seconded by the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice of 2007, while further elaborating on it by saying that if a charge sheet in a criminal case is framed in a court of justice against a political person then the case should stand transferred to a Fast Track Court with the mandate that the case be decided at the earliest but within a period of six months, for the sittings of the said Fast Track Court should be held on day-to-day basis till the case is finally disposed off. It additionally states that for the enabling the above the said provisions of the Code of Criminal procedure may be suitably amended, as well as Special Election Courts may be established to decide election related matters.

Political Party Reforms: Bringing Transparency in their Functioning

Political party reforms as an important pre-requisite to cleansing the political and the electoral environment of our country, as well as necessary first step only after which any form of state funding of elections may be considered for the Indian political scenario, has been one area that most importantly needs attention and thus calls for reforms on a most urgent basis.

Law Commission in its 170th Report on Electoral Reforms (1999) had suggested for the inclusion of a completely new Part – IIA, entitled ‘Organization of Political Parties and matters incidental thereto’ to be introduced in the Representation of the People Act of 1951. This new Part-IIA, comprising of Section 11A to 11I, modeled after the German Law on Political Parties provides for the internal democracy of the political parties; the complete adherence of the aims & objectives or goals & ideals of the political parties with that of the Constitution of India; its registration with the Election Commission without which no political party would be permitted to contest elections; general organization of the political parties; maintenance of regular accounts of the political parties of the amounts received by the party, its income, and expenditure, have them audited and submit the same to the Election commission. This Part-IIA also details out the punishment to be met out to the political parties in case of non-compliance of these sections in the form of penalty of Rs. 10,000 for each day of continued non-compliance after notice, as well as withdrawal of registration of the said political party.  Additionally, this report from the Law commission (1999) emphasizes the insertion of another new Section 78A to the Representation of People Act, whereby it provides for stringent punishment for the political parties in case of non-compliance with the maintenance and the disclosure norms regarding the clear and full annual account of the receipt and expenditure incurred by the political parties. The punishments that have been suggested in this Section 78A are a penalty of Rs.10000 for each day of non-compliance as well as de-recognition of the political party by the Election Commission of India in case this non-compliance continues beyond a period of 60 days after notice. The National Commission for the Review of the Working of the Constitution report on electoral reforms (2002) and the Election Commission’s recommendation on electoral reforms (2004) agrees in essence to the registration norms and compulsory maintenance of accounts by political parties duly audited by an independent agency or an agency specified by the Election Commission, as has been suggested above by the Law Commission in its 170th Report of 1999.

ADR through its National Election Watch campaign has also come to certain logical suggestions which may be considered for direct action. In place of insertion of a new section into the Representation of People Act laying down mandatory rules for the reorganization and regulation of all recognized political parties; ADR advocates for the urgent need for a comprehensive Bill to be passed in Parliament for the regulation of the political parties as a whole.

Another very important amendment that the Law Commission has argued for in its 1999 report is the deletion of the Explanation I to the section 77 of the Representation of the People Act. Before the addition of the Explanation I to the section 77, there were limits on the election expenditure since the section 77 of Representation of People Act regulated the election expenditure. But with the introduction of the Explanation-I which says that, ‘Notwithstanding any judgment, order or decision of any court to the contrary, any expenditure incurred or authorized in connection with the election of a candidate by a political party or by any other association or body of persons or by any individual (other than the candidate or his election agent) shall not be deemed to be, and shall not ever be deemed to have been, expenditure in connection with the election incurred or authorized by the candidate or by his election agent for the purposes of this sub-section.’ The result of the introduction of Explanation I has been that now unauthorized party and supporter expenditure in support of the candidate do not count in election expenses incurred by a candidate, for the purpose of ceiling on election expenditure, hence making the limit an exercise in futility. Thereby the deletion of the Explanation I of the section 77 of the Representation of People Act which has also been criticized in several judgments of the Supreme Court since its inception, is a course-correction long over-due.

State Funding of Elections: Setting the Stage for Level-Playing Field for Political Participation by All

Indrajit Gupta Committee Report of 1998 while agrees on the importance of state subvention of political parties, so as to establish a level playing field for parties with even modest income to contest election alongside parties with superior financial resources; but at the same time the Committee was of the view that state subvention of political parties was an initiative that could be considered only after or simultaneous to the above discussed political party reforms have been well established ensuring internal democracy; internal structures; maintenance of accounts, their auditing and submission to Election Commission. For if without these pre-conditions state funding is resorted to, it would not serve the purpose at all of eliminating the role of money power in the form of corporate funding or black money from the scene of Indian election processes. The state funding, without political party reforms would merely become yet another source in addition to all others, for the political parties and candidates to exploit at the cost of public exchequer.  Moreover, the Indrajit Gupta Committee strongly recommended that given the budgetary constraints and the financial stringencies faced currently by the country, only partial state funding may be resorted to at present which can be disbursed as a relief for financing  not only in carrying out their electoral process but also their day-to-day functioning during non-election times. The Committee further elaborated saying that to begin with state funding may be given only in kind in the form of certain facilities to the recognized political parties and their candidates. In light of attempting to regulate the state funding of election, this committee strongly opined that reasonable restrictions by law in respect to matters like wall writing, banners, hoardings, use of vehicles for campaign & publicity etc. The Law Commission in its 170 report on electoral reforms (1999) completely supports all the above recommendations of the Indrajit Gupta Committee in regards state funding of election in India.

The National Commission to Review the Working of the Constitution (2002) though agrees with the recommendations of the Indrajit Gupta committee, has also suggested certain additional measures that may be adopted for immediate implementation in the area of state funding of elections. Firstly it suggested that the election expenses of various legislative bodies should be suitably raised to a reasonable level reflecting the increasing costs. Moreover, this ceiling should be fixed by the Election Commission from time to time and should include all the expenses by the candidate, his political party, or his friends or well-wishers and any other expense incurred in any political activity on behalf of the candidate by an individual or a corporate entity, thereby in effect also calling once again for the deletion of the Explanation I of Section 77 of the Representation of People Act. Secondly political parties as well as individual candidates should be subject to a proper statutory audit of the amounts they spent in the election process. Thirdly campaign period should be considerably reduced.

The Law commission in the final draft towards electoral reforms which it has prepared after nation-wide consultation in 2011 and forwarded for Cabinet’s approval, advocates for law to provide for state funding for the women and Scheduled Castes and Scheduled Tribes candidates of recognized political parties. This can be an important step in enabling the marginalized classes and their pressing agendas to become a part of mainstream politics.

Time is Ripe for Immediate-Concurrent Action

Besides the few immediate actionable points suggested above under the various heads of high concern within the electoral process in India, there are other very innovative steps that are also being widely discussed on public platforms to increase the hold of general public on its own right to adult franchise within a representative democracy. Under Section 49(O) the current election rules provide for an option wherein a voter may not vote for any of the candidates, but this option rather being integrated as a choice directly on the Electronic Voting Machines (EVMs), has to be registered separately with the polling both in-charge as a ‘no-vote’ option. This prevalent procedure of registering a ‘no-vote’ option not only violates the fundamental principle of secret ballot; but also would prove to be an effort in vain unless steps are taken to secretly and exactly record the number of ‘no-vote’ polled through EVMS and if these polled exceed that of all other candidates, then that constituency should be obliged to conduct a fresh round of elections with a new set of nominees. In strengthening this ‘no-vote’ option appropriately through integration in the EVMs, there are very high chances that general public will finally succeed in forcing the political party to put up suitable candidates in election.

Another novel idea doing the rounds is that of ‘right to recall’. Recall is a powerful tool to make politicians accountable since it does not require any corruption charges against the public functionary, all that it requires is 25% to 50% of the electorate to be dissatisfied by the MP/MLA’s performance. But ‘right to recall’ elected representatives for perceived non-performance in the middle of the term can also be arbitrary and problematic especially looking at size of the India’s democracy, moreover it can also lead to politically motivated trouble creation by the losing candidates for the ones who are winning. Another caution against ‘right to recall’ is that it has inbuilt danger of inclining the political functionaries towards short-term populist measures lacking any long term developmental agenda. So without questioning the fact that ‘right to recall’ would go a long way in increasing the efficiency and the accountability of the political functionaries at large, what one really needs to debate and deliberate is the feasibility of its applicability in the present political scenario in India.

Holistic, overall reforming of the political and election scenario for upholding the highest tradition of probity and morality in public life in India, is going to be long-drawn process, but what has been suggested above is a package of various measures which may be considered for immediate action and thereby marking atleast the very first step in a positive direction in the entire process of electoral reforms. The overlapping nature of the measures that need to be taken for de-criminalisation of politics, political party reforms, state-funding of elections etc, necessitates that all the steps suggested above are undertaken in simultaneous synchrony to make India’s democracy more efficient as well as more accountable to the aam aadmi.

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