Archives May 2014

Perils of a prolonged election schedule

The election schedule for parliamentary elections as announced by Election Commission of India (ECI) on 5 March 2014 has raised serious issues regarding the efficiency, cost and prolonged period of administrative paralysis. It also needs to be tested from the equity point of view in terms of equal opportunity to all the contesting parties in a deepening fractious polity. Election notification from the ECI began on 14 March 2014. The last notification for polling was on 17 April 2014. The poll has been scheduled in nine phases beginning 7 April 2014 to 12 May 2014 with the counting to take place on 16 May 2014. Thus, a total period of 72 days will be taken in the completion of parliamentary elections.

Near paralysis in governance

The model code of conduct becomes effective once the election is notified. Effectively both the State and the Union Governments informally move into slow pace of governance. Any new decisions either in terms of investment or other forms of policy initiative are not taken if such a decision is likely to impact the results of the election. The bureaucracy loath to any form of risk adopts wait and watch mode. The ministers and other key political functionaries get busy in their respective constituencies with little time for any disposal of serious official matters. The truth is that the Government functioning comes to a halt except minimum necessary maintenance though the ECI keeps clarifying that there is no stoppage of normal activities. It also impacts the foreign policy, as of other countries governments decide to postpone any engagement till the next government is installed. The security matters in some respects also get affected as procurement decisions in the Defence Ministry do not get easy passage.

Implications

Such a long duration of electoral process adversely affects the campaign efforts of political parties. Given a very live and vibrant media, it is difficult to escape from the whispering campaign. Though exit polls are banned, yet election prospects get reported indirectly signaling the party better placed to romp home. The disinformation campaign is at its peak and the confused voter further gets bewildered.

The cost involved in conducting the election process is huge. Firstly, it is near impossible for the candidates to restrict the expenditure within the ceiling prescribed for the parliamentary elections. Longer the period greater will be the violation of the expenditure ceiling. The truth becomes the major casualty. It also costs the exchequer very heavily. The polling in 1984 for parliamentary elections was in three phases with approximate expenditure of Rs. 82 crore. Since then it has been escalating and there is a fair estimate that the expenditure on conducting the current parliamentary elections would cross the thousand crore mark.

Scheduling process and remedy

It is appreciated that the schedule for the election is determined in consultation with Home Ministry and other agencies responsible for law and order and internal security. The State Government are also consulted. The agencies responsible for mobilizing police forces are under strain and favour prolonged election schedule so that the forces are ale to move from one corner of the country to the other. However, there is a need for moderation and more efficient deployment so as to complete the responsibility in shorter span of time and thus resume normal law and order/maintenance activity.

A quick glance to the schedule of election would make a strong case for shorter span of electoral process. Barring third, fifth and sixth phase, which account for 331 parliamentary constituencies, the remaining parliamentary constituencies could be easily be accommodated in two more phases. After all, there is no case for first, second, fourth and ninth phase with 6, 7, 5 and 41 parliamentary constituencies respectively only. The feasibility of holding of about 100 parliamentary constituencies in one phase is well within the practical limits. It should be possible to ensure free and fair elections within five phases in a time span of about three weeks.

The experience of other countries should guide ECI for keeping a bare minimum duration for elections. South Africa, UK, US have one day poll. Brazil and France, who have run off dates on account of proportional representation, conclude in a shorter period barring campaignperiod for final results than in India.

Clubbing of Assembly elections

There is another and more serious aspect to the electoral process. The Assembly and Parliamentary elections do not necessarily coincide due to constitutional and electoral provisions. The country is always in an election mode. To say the least, it distracts our focus from growth and development to totally unproductive, acrimonious and extraneous agenda. During 2012-13, 11 Assembly elections in different States were held. Again, in the last quarter of the current year, elections are scheduled in three to four States. While it is appreciated that a co-terminious elections of Assembly and Parliament will require constitutional amendment, it should be possible for the ECI to club the elections of States with the parliamentary elections in cases where they become due either before or after in a span of six months of Parliament elections. This would at least curtail significantly the “tamasha” of elections and the nation would focus more on the agenda of growth.

Democracy is the lifeline of our nation. It is the foundation of our constitutional fabric. Electoral process is a means to established democratic institutional framework. With the rising cost of elections and ever increasing stakes in capturing power, the longer duration of election process has negative impact and does not strengthen the cause of democracy, which it professes to promote.

Democracy is the lifeline of our nation. It is the foundation of our constitutional fabric. Electoral process is a means to established democratic institutional framework. With the rising cost of elections and ever increasing stakes in capturing power, the longer duration of election process has negative impact and does not strengthen the cause of democracy, which it professes to promote.

By Writer is former Chairman, Telecom Regulatory Authority of India
And presently Director, Public Interest Foundation
e-mail: Director@publicinterestfoundation.com

(This article was published in The Economic Times on 13 May, 2014)

Mushrooming of political parties with no accountability

Central Information Commission in a path-breaking judgment classified the political parties under the category of public authority. The concerned parties were directed to nominate Information Officer as provided under the RTI Act. The parties are under total non-compliance and the Central Information Commission is unable to enforce the judgment. The plight of Election Commission of India (ECI) is no better, as would become clear from the discussion below.

In India, there is no law or comprehensive code that institutionalizes the structure, funding and functioning of political parties. There was no mention of political parties in the Constitution of India when adopted. The political party is mentioned for the first time under 62nd Amendment of the Constitution in the year 1985. ECI is mandated under section 29A of the Representation of the People Act, 1951 (RPA) with the power to register political parties. As per notification of ECI in 2012, there were 1334 registered parties, out of which six were recognized national parties and 53 recognized State parties. Recognition of national and State registered parties after the initial process of registration is made in the Election Symbols (Reservation and Allotment) Order, 1968 based on the percentage of votes polled.

There has been a spurt in the number of registered political parties since 1989. It rose from 251 in 1989 to 1334 in 2012. The proliferation is largely attributed to privileges granted to political parties. All contributions received from individuals and companies in excess of rupees twenty thousand by the political parties qualify for tax relief. There is a specific performance obligation to qualify for this entitlement. Apart from de3claration of the contributions received, it is incumbent on the political parties to submit their audited financial statements to ECI within six months after the end of each financial year. As per the EC:I, only 174 registered political parties submitted an annual audited financial statement for the year 2010-11, approximately 90% of the registered political parties flouted the mandatory guidelines. The submission of annual contribution report of donations in excess of rupees twenty thousand was dismal, mere 8% of all registered political parties had complied with ECI mandated requirement. ECI did not make any specific recommendation for action to the tax collecting agencies or the foreign donation division of the Home Ministry. Providing mere routine information was of no significance. A report published in April 2014 states that ECI has written to the Central Board of Direct Taxes now regarding the failure of political parties to submit their mandatory expenditure contribution reports. ECI thus has now moved into action for getting the cancellation of tax benefits by Central Board of Direct Taxes. The process of issuing notice and determination of tax liability by tax authorities could take years in terms of conclusion. Another important reason for plethora of political parties is the flaunting of authority by displaying flags and name of the office bearers thus influencing the local administration. It is a licence for interfering in the district administration.

The larger question is that ECI seems to be helpless in ensuring the compliance of mandatory requirements provided under the guidelines as issued by ECI under section 29A of the RPA, 1951. The reason is that ECI has no powers to deregister political parties confirmed through various judicial pronouncements. Only under certain set of circumstances, ECI may take those political parties off the list of registered parties which have not contested elections continuously for six years. In 14th Lok Sabha elections, only 230 political parties contested elections. In 15th Lok Sabha, the number of political parties having contested elections was 363. Thus, there is a strong case to de-list political parties. Delisting was done only in the year 2000 when 208 political parties were de-listed. It is also noteworthy that the Commission has asked the defaulting political parties to submit annual audited account of party funds for the first time in July 2011.

ECI has been interacting with the Law Ministry for more than ten years to enforce accountability at the level of political parties. It has suggested that legal provisions be introduced to regulate the functioning of political parties and the Commission should be empowered with registration as well as deregistration of political parties. As is known, Hon’ble Supreme Court held in a judgment dated 10.5.2002 that the Election Commission has no power to deregister a political party on the ground of non-compliance of undertaking given at the time of registration. Further, the Commission has been of the view that since the failure of the political parties to submit the accounts does not attract any punishment, the Commission has been reluctant to issue show causer notice. The proposal of ECI in this regard is also pending in the Law Ministry. A very important suggestion by ECI is that the income tax exemption for donations should be given only for those political parties which contest elections and win seats in the Parliament/State Legislatures. This suggestion is also gathering dust along with several other recommendations on electoral reforms and political party reforms.

There is no transparency and absolute lack of contest in conducting the affairs of the political parties. It was in August 2013 that ECI initiated consultation with the political parties for formalizing guidelines on transparency and accountability in party funds. The process is still on. The outcome is a foregone conclusion. Unless the Parliament enacts a law for giving powers to ECI in terms of de-registration of political parties and also ensuring compliance of transparency and accountability in party funds, the fledgling performance of ECI will not improve. It is difficult to appreciate and understand the reasons for inaction at the Law Ministry level regarding this very urgent fundamental reform.

By The author is former Secretary to Government of India and
presently Director, Public Interest Foundation
e-mail: director@publicinterestfoundation.com

(This article was published in Financial Chronicle on 11 May, 2014)

Road Ahead: CSOs critical in implementing Supreme Court order

The order of the Supreme Court dated 10 March 2014 on the PIL filed by the Public Interest Foundation is reckoned as a milepost in the efforts toward decriminalizing Indian politics. The order directed by Hon’ble Mr. Justice RM Lodha and Hon’ble Mr. Justice Kurian Joseph states that

“in relation to sitting MPs and MLAs who have charges framed against them for the offences which are specified in Section 8(1), 8(2) and 8(3) of the RP Act, the trial shall be concluded as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s). In such cases, as far as possible, the trial shall be conducted on a day-to-day basis. If for some extraordinary circumstances the concerned court is being not able to conclude the trial within one year from the date of framing of charge(s), such court would submit the report to the Chief Justice of the respective High Court indicating special reasons for not adhering to the above time limit and delay in conclusion of the trial. In such situation, the Chief Justice may issue appropriate directions to the concerned court extending the time for conclusion of the trial”.

Although, the order does not mark finality to the prayer of the Foundation which is toward disqualifying candidates charge sheeted with serious and heinous offences from contesting elections, it certainly comes at a time when the bane of adjournments granted by the courts in criminal cases have impacted on criminalization of our polity. The order certainly casts spell on the potential intent of politicians with an aspiration for Legislative Assembly or Parliament appreciating that their charge sheets never see the light of the day with respect to conviction or acquittal, however grisly and lurid the crime is. Following the principle of demand and supply, the criminals would not like to subject themselves for speedy trials and thus proving the order to be an effective deterrent. The political parties who have overwhelming concerns over the quantitative order of India’s parliamentary system would certainly exercise caution over this order. Even so, there looms a murky cloud over the procedural implementation of this order with respect to monitoring of the criminal charges faced by MPs/MLAs and its subsequent completion by the concerned court within a year. It is extremely important for the civil society organization to coordinate and device potential initiatives to be undertaken to ensure proactive vigilance on compliance of this order.

The Court’s order comes as an upshot to the two issues the Bench had sought expeditious consideration from the Law Commission of India. First, whether disqualification to contest election should be triggered upon conviction as it exists today or upon framing of charges or filing of chargesheet and second, whether filing of false affidavit under Section 125A of the Representation of the People Act should be a ground for disqualification and if yes, what mode and mechanism are to be followed for such disqualification. The Law Commission, subsequently, prepared recommendations in its 244th report titled Electoral Disqualifications after organizing a national consultation for consolidating views and opinions from the stakeholders on 1 February 2014.

The order of the Supreme Court reproduces the significant points from the report of the Law Commission before concluding on the abovementioned direction. On the first issue, the Law Commission observes that:

“The stage of framing of charges is based on adequate levels of judicial scrutiny, and disqualification at the stage of charging, if accompanied by substantial attendant legal safeguards to prevent misuse, has significant potential in curbing the spread of criminalisation of politics. Having regard to all this, the Law Commission has suggested that the following safeguards must be incorporated into the disqualification:

(i) Only offences which have a maximum punishment of five years or above ought to be included within the remit of this provision.

(ii) Charges filed up to one year before the date of scrutiny of nominations for an election will not lead to disqualification.

(iii) The disqualification will operate till an acquittal by the trial court, or for a period of six years, whichever is earlier.

(iv) For charges framed against sitting MPs/MLAs, the trials must be expedited so that they are conducted on a day-to-day basis andconcluded within a 1 year period. If trial not concluded within a one year period then one of the following consequences ought to ensure:

– The MP/MLA may be disqualified at the expiry of the one year period, or

– The MP/MLA’s right to vote in the House as a member, remuneration and other perquisites attaching to their office shall be suspended at the expiry of the one year period”.

The Law Commission suggested that such a disqualification should be made applicable retroactively.

With respect to the second issue, the Law Commission has observed that there is large scale violation of the laws on candidate affidavits owing to lack of sufficient legal consequences. The Law Commission has suggested that the following changes should be made in The Representation of the People Act, 1951 (for short, ‘RP Act’):-

(i) Introduce enhanced sentence of a minimum of two years under Section 125A of the RP Act on offence of filing false affidavits.

(ii) Include conviction under Section 125A as a ground of disqualification under Section 8(1) of the RP Act, and

(iii) Include the offence of filing false affidavits as a corrupt practice under Section 123 of the RP Act.

The Commission has also recommended “that since conviction under Section 125A is necessary for disqualification under Section 8 to be triggered, the Supreme Court may order that in all trials under Section 125A, the relevant court conducts the trial on a day-to-day basis. It is further recommended that a gap of one week should be introduced between the last date of filing nomination papers and the date of scrutiny, to give adequate time for the filing of objections to nomination papers”.

By (Authored by Mr. Nripendra Misra, ex-Chairman, Telecom Regulatory Authority of India and Director, Public Interest Foundation and Ms. Anna Karthika, Research Associate working on electoral reforms with PIF; e-mail: info@publicinterestfoundation.com)

(This article was published in The Citizen on 2014 )

The ECI Juggernaut

India is finally caught in the election fever waiting to cast votes to constitute the 16th Lok Sabha, one of the most cyclopean phenomena, any democracy in the modern world has ever witnessed. It is this routine followed once in every five years that awakes the country as a whole and the world equally to the vision of geniuses who sketched and scribbled India’s Constitution. The first Election Commissioner in 1950 provided for 176 million eligible citizens largely and mostly unlettered to cast their votes to elect a Government of their choice. Today the electorate is approximately 800 million. It is the Election Commission of India (ECI) which enables India to win the unconceivable and prove the implausible in terms of democratic stability. The elections in 2014 are historic in more than one ways. While the very dominance of the younger voter is visible, the significance of this election in terms of India’s status in the community of nations at the end of five years will largely depend on the type of Government the voters deliver to the nation. The current ECI deserves commendation for highlighting three goals – providing easier access to electors for service delivery, greater transparency and better election management.

Yet again in 2014, the Election Commission has initiated the electoral process to enable the country of approximately a billion people to shape the new Government. The ECI has issued the guidelines on General Election 2014 under article 324 of the Constitution which entrusted the Commission with the power of “superintendence, direction and control”. The present stretch of fluid polity witnessed occasional fissures between the Election Commission and the political parties over the powers and functions of the Commission and the exclusivity of policy matters in the hands of legislators and the Government. The recent judgments by the Hon’ble Supreme Court have attempted to restore the status of the Commission and attempts to deride the basic structure of the Constitution. The Governments present and past have been reluctant to initiate electoral reforms by enacting laws to boost the dignity and transparency of electoral process in India. The enactment to disqualify candidates charged with heinous offences is nowhere on the horizon. The various initiatives of the Election Commission for the want of legal prowess to curb effectively the electoral offences has mostly depended on the judicial determination for validation.

It is important to recount the new measures announced by the CEC which perhaps have gone unnoticed. In the age of information technology the ECI assents to increase transparency by uploading the affidavits of candidates on web portals, electoral roles in PDF form, use of webcasting at polling stations, EVM tracking and effective management of elections from SMS based poll monitoring. The two momentous judgments of the Supreme Court, first the verdict of July 5, 2013 directing the Election Commission of India to frame guidelines for regulating the contents of election manifesto particularly freebies and second the verdict of 13 September 2013 which upheld that if a candidate fails to fill the blanks in the affidavit towards furnishing required information alongwith the nomination paper even after the reminder by the Returning Officer, such a nomination paper is fit to be rejected. Accordingly, the Election Commission has issued guidelines to the Returning Officer for strict compliance regarding the filing of affidavit complete in all respects at the time of scrutiny. The affidavits are to be displayed on notice boards and make them freely available on demand to the general public. While the filing of the affidavit is mandatory, the Commission is also facilitating for optional e-filing of the affidavits by the candidates. The e-filing will help candidates in providing information without any omission.

Nevertheless, the most significant sights of prudence of the Election Commission are exhibited in its clarification on affidavits of candidates and accounts of political parties. The Election Commission of India on 22 February 2014 intimated to all the recognized national and state political parties that the “details of Bank accounts, assets and liabilities furnished in the affidavit should invariably include the details of all deposits/investments in foreign banks and any other body/institution abroad, and details of all, assets and liabilities in foreign countries. This clarification comes as an upshot of the Commission’s consideration of the proposal by Public Interest Foundation, an NGO, along with other civil society organizations emphasizing on the need to ensure that the candidates are required to provide details of any possessions or investments abroad as it did not explicitly provide in the revised Form 26 for the purpose.

While the candidates contesting elections are required to maintain and furnish separate account of his/her election expenditure in accordance with Section 77 of the Representation of the People Act (RPA), 1951, the Election Commission in the spirit to ensure free and fair elections has required all political parties sponsoring candidates during elections “to maintain day to day account for all election campaign expenses and submit the accounts to the Commission within 90 days of Lok Sabha elections and 75 days of Assembly elections”. This exceptionally thoughtful requirement is indubitably reflective of the recent actions of political parties displaying a frightening reach of impudence and arrogance inviting public indignation.

To ensure smooth conduct of elections, the Commission has provided for general observers, expenditure observers, polls observers, awareness observers and micro observers charged with specific responsibilities. A separate election expenditure monitoring division has been set up in the Commission to deal with information on poll expenses of the candidates and political parties.

Once again, the Election Commission has addressed the copious task of creating political awareness, educating the citizenry of their rights, minimizing the negatives of social cleavage thus establishing the ultimate sovereignty where it rightly belongs.

By (N. Misra is ex-Chairman, TRAI and Director, Public Interest Foundation & Karthika is Research Associate;
Email: director@publicinterestfoundation.com)

(This article was published in The Pioneer on 08 April 2014 and Mail Online India on 1 April 2014 )

Who is afraid of electoral offences?

As 2014 General Elections dawn on India, the purport of electoral reforms in the country finds primacy in public dialogues amongst the citizenry. One of the critical issues concerns the futurity of electoral offences in India’s jurisprudence. Analyzing the self-sworn affidavits of candidates who have contested Parliamentary and State Assembly elections since 2008, National Election Watch and Association for Democratic Reforms reports that 30 sitting MPs and 127 MLAs have declared cases related to electoral offences and corrupt practices during elections against them.

The Hon’ble Supreme Court has time and again asserted that a voter has the elementary right to be informed of full particulars of a candidate contesting election to the Parliament and State Assemblies and this right is read as an integral part of Article 19(1)(a) of the Constitution. While casting of a vote by a voter is accepted to be a manifestation of the individual’s freedom of expression, the voter’s right to know full particulars of a candidate is provided for by Section 33A of RPA, 1951. The enforcement of Form 26 emanating from Section 33A of RPA, 1951, is still being debated at various levels both in Government and judiciary while the pending electoral offences are piling up in courts. Although Section 33A was inserted in the RPA through Act 72 of 2002 providing for disclosure on specific queries concerning a candidate’s criminal antecedents, the direction of the Supreme Court judgment in Union of India (UOI) v. Association for Democratic Reforms and Anr., (2002) providing for the right of a voter to be informed of disclosures on assets and liabilities, and educational qualifications of candidates haven’t been inserted into Section 33A. Therefore, it is not possible to ensure that violation of the newly introduced requirements under Form 26 would be accounted for the punishment under Section 125A of the RPA, 1951.

The first uncertainty with respect to disclosure of information under Section 33A concerns the powers of the Returning Officer enshrined in Section 36 of RPA, 1951. The Returning Officer under Section 36(6) has the power to accept or reject the nomination while providing a brief statement of reasons in case of the rejection of the nomination paper. However, the powers of the Returning Officer have been severely curtailed by the Supreme Court judgment of 13 March 2003 in Peoples Union of Civil Liberties vs. Union of India, which stressed that the “rejection of nomination paper for furnishing wrong information or concealing of the same cannot be justified at the level of Returning Officer as it would prove arduous on the Returning Officer and then court to consider the truth or otherwise of the details furnished with reference to the documentary prove”. Complying with the judgment, the ECI order of 27 March 2003 clarifies that a nomination shall not be rejected on the ground of incomplete or wrong information furnished in the affidavit and directs Returning Officers to file complaints before a competent magistrate for prosecuting the concerned candidate in case of false statement in an affidavit under Section 177 of the Indian Penal Code and/or Section 125A of the RPA, 1951. This vacuousness of an appropriate authority was remarked by Justice Verma Committee in its report on Amendments to Criminal Law, 2013 that to “deny power to the Election Commission or the Returning Officer to verify the correctness of the information constitutes a major impediment in law”. The Committee opined that it “… makes a mockery of the entire provision contained in Section 33A”.

The Supreme Court judgment of 13 September 2013 in, Resurgence India v. Election Commission of India and Anr., opened a limited window by stating that if a candidate fails to fill the blanks in the affidavit towards furnishing required information along with the nomination paper even after the reminder of the Returning Officer, the nomination paper ought to be rejected. Effectuating this judgment of
13 September 2013 would require modifications in the circular of the ECI dated 27 March 2003 mentioned earlier. The Returning Officer should at least now be vested with the power to reject the nomination paper after due scrutiny in case the requirement under Form 26 has not been fulfilled. It is to be noted that the Returning Officer has not been empowered to reject nomination of a candidate giving false information or concealing any information

The electoral offences as a result of false information or concealed information have been dealt in Section 125A of the RPA, 1951. The Returning Officer in such cases is required to refer the matter to the concerned court for determination of offence. The long pendency of such electoral offences enables the candidate to contest election without any fear of consequences. The voter is perplexed as his/her expression manifested is effectively not determined by the information being given.

Currently, the term of punishment under section 125A of RPA, 1951 amounts to an imprisonment for a term which may extend to six months, or with fine, or with both. The period of punishment under Section 125A should at least be enhanced to a term of two years under Section 8 of the RPA, 1951. Once the sentence is raised to two years, any conviction would attract disqualification under Section 8(3) of the RPA, 1951. The period of disqualification could at least be three years as provided in section 10A of RPA, 1951 which deals with the failure to lodge account of election expenses.

There is an exigent need to restore the powers of the Returning Officer in accordance with the judgment of the Supreme Court and all complaints under section 125A of RPA, 1951, should be decided within six months from the date of the cognizance of the complaint in sync with the provisions relating to election petition in Section 86 of RPA, 1951, ascertains that “every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial”. Perhaps, there is a need to establish election tribunals for election petition and electoral offences. The electoral offences would repeat themselves unless the vigilant intervention by the courts in upholding the Constitution.

By (N. Misra is ex-Chairman, TRAI and Director, Public Interest Foundation and A. Karthika is Research Associate with the Foundation). E-mail: director@publicinterestfoundation.com

(This article was published in Amar Ujjala on 2nd April, 2014 )

No more soft options to ECI for enforcing election code of conduct

Election Commission of India (ECI) has full powers to enforce election code of conduct. 2014 elections will be remembered for hate speech, communally charged expressions, deliberate play of divisive politics and lack of political civility. There have been expressions from politicians which seek to dent the apolitical feature of our army. The support of the voter has been sought on grounds of religion and communal feelings. A candidate in UP has advocated for eschewing secularism and casting vote on communal considerations. Another candidate in Bihar has threatened that any opposition to its party would invite expulsion to other countries. Open threats have been given for demarcating residential premises based on religious belief.

The judicial pronouncements have already conferred on ECI all powers necessary for free and fair conduct of elections flowing from Article 324 of the Constitution. In Bhim Singh vs Election Commission (1996), the apex court observed that EC can exercise any power which is necessary to achieve the objective to maintain a proper atmosphere conducive to free and fair election. The judgment further clarified that the EC could exercise beyond what is conferred in the conduct of election Act and Rules. Justice VR Krishna Aiyar in Mohinder Singh Gill vs the Chief Election Commission (1978) observed that the EC being the creature of the Constitution cannot be restrictive as the Commission has to address infinite challenges that may emerge from time to time in such a large democracy as ours. Hon’ble Justice observed “the Chief Election Commission has not to fold his hands and pray to God for divine inspiration” or to look to any external authority for the grant of powers to deal with the situation.

The recent communication of ECI dated 11.4.2014 on the compliance of Election Code of Conduct is only a repeat of earlier advice given to State administration and election machinery. It is totally inadequate to curb the growing defiance of model code of conduct. The apex court disturbed with hate speech has asked in March 2014 the Law Commission to define the expression “hate speech” and make recommendations to Parliament to strengthen the ECI to curb the menace of hate speeches.

We need to pause and question if India of 2014 and beyond should permit hijacking of growth and developmental agenda in favour of social and religious hatred thus seeking mass conduct based on social and religious belief. BJP has committed “any activity which disrupts the integrity of the nation cannot be in the interest of any segment of the society or any religion of the country…” The Indian National Congress believes that economic growth and communal harmony and economic growth and social justice must always go hand in hand with assurance for equity and opportunity to all. The big question is the role of the parties in ensuring minimum decorum during the campaign period. Do the parties have any compunction to withdraw the candidates who are openly in defiance of electoral code. Why can’t the political parties withdraw the symbol given to the candidate if there is an impartial determination by the Election Commission that the candidate concerned has grossly violated the election code of conduct! “Winnability “consideration alone without caring for the criminal antecedents of the candidate or his offending behavior promoting social disharmony will endanger democracy in the long run.

Given the wide powers both defined and undefined, the Election Commission can direct political parties to withdraw candidates who vitiate the atmosphere after specific warning. It can even direct State Governments to detain such a person. Filing of FIR against any person assessed guilty of vitiating the atmosphere is grossly ineffective, as such FIRs don’t reach any conclusion in terms of penal sentencing and remain only a proforma threat. The Election Commission can also require the political party to ensure compliance of the election code of conduct from those who are allotted party symbols. Non-compliance should lead to withdrawal of symbol. Under exceptional circumstances even the countermanding of election would be justified in the larger interest of our democratic process.

ECI cannot be a passive spectator to fast spreading inflammatory and provocative speeches. Mere warning to the violator of election code or placing a ban on electoral canvassing is grossly inadequate to effect course corrections. There is a wide belief that the ECI while being successful in organizing elections has not come with heavy hand against those who are challenging the very essence of Indian democracy. India of today requires a very vigilant EC who can exercise its powers pro-actively.

By (N. Misra is retired Secretary to the Government of India
E-mail: nmisra@rediffmail.com

(This article was published in Mail Online India on 29 April, 2014 )

Aam Aadmi Party Manifesto Sans Accountability

Hon’ble Supreme Court in July 2013 observed that freebies promised by various political parties in their election manifestos shake the roots of free and fair poll. The apex court further directed that the Election Commission should frame guidelines for regulating contents of election manifestos. In compliance of the directive, the Election Commission of India (ECI) issued guidelines under Article 324 of the Constitution. ECI consulted the political parties before guidelines were issued and its highlighted “In the interest of transparency, level playing field and credibility of promises, it is expected that manifestoes also reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirements for it. Trust of voters should be sought only on those promises which are possible to be fulfilled”.

The manifesto released by AAP unfolds the game plan of the Party at first glance. It claims that the Party has arisen from “the struggle of Ramlila Maidan and Jantar Manter”. It plans to “re-write the politics of this country”. Alas! the Anna agitation at Ramlila Maidan which is being claimed as the foundation was given up when Kejriwal decided to enter the elective politics. Anna had not approved the goal of seeking power. His vision is to work as a watchdog for enforcing high morals and curbing the evils of the political system. The party’s claim to re-write the politics of the country is also questionable. A constitutional authority resorting to dharna in front of Rail Bhawan for condoning the misdeeds of Delhi Law Minister would certainly not have the credentials for re-writing the politics, but the flavor is more of anarchy than establishment of the democratic, constitutional and law abiding framework. The litmus test of the manifesto is of the competitive populism. The Party which has not yet gained the recognition of a regional or national party is aspiring to form a national government without any commitment to accountability. It promises “Swaraj” and describes the Lokpal bill passed by the Parliament as “Toothless”. If the provisions are analysed in depth, the Act as passed by the Parliament, if implemented with honest intent, can be a very powerful instrument to curb corruption. AAP manifesto promises that “Any public official found guilty of corruption would be sentenced to prison” and his property will be confiscated. Such a draconian provision has to be tempered with the rule of law. It must also discriminate between the corruption of an ordinary postman with the corruption of public authorities plundering state assets. The manifesto promises a grievance redressal mechanism of citizens charter. It is oblivious of the fact that 19 States have already passed relevant Acts for the delivery of time bound services. The learning from the state Act has been totally ignored while promising the citizens charter.

The dream for “Swaraj” has been promised to the citizens in a very light and half-hearted manner. There is a mention for devolution of “untied” funds to gram sabha and mohalla sabha. It ignores the fact that there is already Finance Commission at the Central level and at the State level which determines the transfer of funds. The challenge is to integrate the local projects with the district development plan as a durable assets. Unplanned expenditure would only encourage corruption and favouritism. The nation is fully conversant with the misuse of local developments funds given to parliamentarians and state legislators. The ‘Swaraj’ of Kejriwal even envisages mandatory consultation of gram sabhas before legislating on specified subjects. Legislation is a complicated exercise. It is already time consuming and lengthy in processing. Given the specified tenure of Assembly and Parliament, it would bring the legislative task to a halt if implemented in the manner promised in the manifesto. Another aspect of Swaraj is setting up fast track courts at all levels of judiciary. Does it mean that there would be two sets of judicial process adjudicating on different crimes? While fast track court for specific crimes at a trial stage may be justified, it would be a negation of judicial process if such courts are encouraged at all levels of judiciary.

The manifesto of AAP also promises far reaching measures requiring constitutional amendment. The legislation to rein in political parties, proportional representation for elective success, provision of right to “reject” and right to “recall” and reduction in the age for elective positions from 25 to 21 years would require deeper examination and constitutional amendment. It only establishes that the Party had decided to promise everything to all citizens without any sense of accountability.

The manifesto has also promised minimum support prices which would be 50% more than the real input cost. Such MSPs would be announced for 25 crops with an element of direct procurement and timely market intervention. Evidently, it has overlooked the impact on cropping pattern, market surplus, warehousing and strain on government exchequer while making the promise. There are also issues of commitment given in World Trade Organisation where India has been demanding reduction in agricultural subsidy by the developed countries. Once again, it reflects a gross ignorance and an attempt to accomplish in a hurry. Another important missing link is the labour laws. While the contractualization of jobs has been banned in the manifesto, there is no consideration given to the impact on employment generation when rigid labour laws are enforced. It also affects the investment climate and the competitiveness of Indian products.

The commitment on defence and foreign policy at best is peripheral. The dream promised for Kashmir appears different than what is available to other States. How do we then declare Kashmir as “an integral part of India?’ Any decentralization and devolution of power has to be uniformly implemented within the overall framework of federal system. In the area of defence, the issues of technological modernization, self-dependency and self-sufficiency have been given a short-shift. While no one would have any trouble with the indigenous production, there is always a challenge to obtain the most advanced technology in any strategy for national security.

It is evident that the Party has released manifesto in a great hurry. While promising a national election manifesto, it has only dealt with the state of Delhi. In their vision for security and non-discrimination for Muslims, the manifesto reads “we are committed to improving the quality of education in government schools across Delhi”. Certainly, the challenge of non-discrimination for Muslims cannot be dealt by a narrow vision of educational facilities in Delhi alone. The manifesto lacks credibility, transparency and offers nothing in the name of rationale for the promises and the ways and means of financial requirement to deliver the dream. Perhaps, the Party was aware of the fact that it may not have a role in governance in May 2014.

By (N. Misra is ex-Chairman, TRAI and Director, Public Interest Foundation
Email: director@publicinterestfoundation.com)

(This article was published in Dainik Bhaskar on July, 2013)