The fight against crime in world politics has not ended

The campaign for the decriminalization of politics is high on the national agenda. The role of judiciary and civil society in highlighting the menace of criminalization and ways to curb the trend has been historic


The order of the Hon’ble Supreme Court on March 10, 2014 has a very long range impact in terms of remedy. The bench headed by Justice RM Lodha of Hon’ble Supreme Court has ordered for expediting the proceedings against sitting MPs and MLAs in criminal cases and has further set a deadline for the trial court to complete the hearing of the cases within a year of framing of charges.

It has further provided that the trial court need to give explanation to the Chief Justice of the respective High Court if the trial is not completed within a year. The bench observed that the proceedings should be conducted on a day-to-day basis in order to decide the case within the prescribed time limit.

Kết quả hình ảnh cho The fight against crime in world politics has not ended

If effectively implemented, this order has far reaching consequences in cleansing the politics of the country. Firstly, it would deter the criminals from seeking tickets as this would expose them to the prescribed limit of one year for the judicial verdict on the charges. Secondly, the political parties who are sensitive to the number game in terms of capturing power would shy away from taking risk of giving tickets to candidates with criminal background as any conviction of sitting MLA/MP would result in vacancy in the State Assembly and in the Parliament as the case may be which could directly impact the tenuous majority of the ruling party. The judgment of March 10, 2014 has come at a very opportune time as the parties are actively engaged in selecting candidates for forthcoming elections to Parliament and few State Assemblies

The Public Interest Litigation was filed by an NGO, Public Interest Foundation in 2010-11. This PIL was admitted on grounds that the entry of criminals amounts to coercion in the electoral process and the free exercise of vote and the ultimate choice is a compromise. The petition has made four prayers. Firstly, it sought relief for the issuance of guidelines to ensure that those charged with serious criminal offenses are disqualified to contest the elections to Parliament and State Legislature. Second, prayer was for laying down six months time period for judicial determination of the charge sheet by the competent court. Thirdly, direction to the Government for enacting appropriate legislation so as to debar those charged with serious criminal offenses contesting elections and lastly, declare the provisions of section 8(4) of the Representation of People Act, 1951 as unconstitutional.

Kết quả hình ảnh cho The fight against crime in world politics has not ended

The interested parties, i.e. Election Commission of India and the Union Government were given due notice by the apex court. Fortunately, the Election Commission concurred with the prayer made in the PIL. However, the Union of India did not play ball with the campaign against decriminalization and raised the preliminary objection that the prayer falls in the domain of parliamentary legislation as policy matter and cannot be heard by Hon’ble Supreme Court. However, the bench of the apex court was sensitive to the cause and sought the recommendations the Law Commission on the issue of disqualification once the charge sheet is framed and the penalty under section 125A of RPA, 1951 in cases where falls affidavit is filed by the candidate. The Law Commission gave its recommendation to the apex court.

 

DNA technology against crime wildlife

Modern forensic science is making efforts to fight against international criminal gangs that kill and smuggle endangered wildlife.


A new laboratory in the Thai capital, Bangkok, is fully equipped to collect DNA from ivory, rhino horn and tiger skin – these encouraging efforts. The laboratory’s noble purpose is to provide evidence of the link between victims and suspects to prosecute, according to laboratory scientists.

Wildlife conservation groups say the killing of elephants, rhinos and tigers along with other endangered species has increased to an alarming level and there is only one large and sophisticated coordinated campaign available. Can help prevent this disaster in time. That is the judgment of CITES – the Convention against the exploitation and trade of endangered plant and animal species was signed in 1973.

Kết quả hình ảnh cho DNA technology against crime wildlife

Special laboratory in question – located inside the building of Thailand’s National Parks Authority (DNP) – was established with the enthusiastic support of the ASEAN Wildlife Protection Organization – WEN, a local environmental protection organization.

Dr. Kanita Ouitavon – female director of the Laboratory of DNP’s Wild Welfare Department (WIFOS) – said the first animal parts samples were analyzed for DNA from which a bank of gene data from Thai wild species will be established. Kanita Ouitavon laboratory is called DNP-WIFOS for short.

Kanita Ouitavon presented: “New technology is essential for our important mission. Thanks to data banks we can find species or subspecies or even know about the lineages relationship, origin, where they are exploited. The field of illegal business in the wild life does not require much investment, but the profit is lucrative so it attracts many people who are willing to commit the crime. Therefore, our Laboratory is a useful tool to combat this illegal business situation. Using DNA can prove a connection between suspects and wildlife”.

Kết quả hình ảnh cho DNA technology against crime wildlife

The laboratory, with 10 members, accepts specimens every day, including ivory sections, rhino horns, whole tiger skin and pieces of fur and bones from other animals. Each sample is then classified, photographed before conducting DNA testing. For animal parts outside Thailand, they will be inspected based on the international data bank. Therefore, female Dr. Kanita Ouitavon acknowledged her team of experts desperately needed patience.

Female Dr. Kanita Ouitavon is open about the challenges she faces: “From the beginning we knew very well the people behind the illegal wildlife trade are powerful people. and influence, but, despite all, we still work hard to fight against crime”.

Kết quả hình ảnh cho DNA technology against crime wildlife

According to Mary Rice, forensic science may be part of the fight for the protection of rare animals, but the first important thing is that governments must resolutely act to eliminate this kind of crime.

 

 

 

 

Countries strive to promote gender equality

Japan, England, Switzerland, Saudi Arabia are some countries in the world that have made progress in promoting gender equality, facilitating better living and working for women.


In fact, gender inequality is still dull, especially in Asian countries, which have traditionally been “respectful of men and women” since ancient times. However, when society is growing, the role and position of women is also increasing.

JAPAN

To achieve the goal of “Womenomics” to promote the important role of women in the reconstruction of the economy, Japanese Prime Minister Shinzo Abe has adjusted a series of policies to “untie” and empower women. This female country helps millions of women participate in the labor market while still fulfilling their family life.

Since 2014, Japan has increased maternity wages for mothers in the first 6 months after birth from 50% to 67% of the basic salary and received all before the maternity leave.

Các quốc gia nỗ lực thúc đẩy bình đẳng giới - Ảnh 1.

Meanwhile, to solve the problem of babysitting, the Japanese government aims to secure additional seats for 500,000 babies, as of the end of 2017. In addition, ministries and businesses also implement many initiatives to support women like working from home or flexible hours.

UNITED OF KINGDOM

At the end of 2016, the wage gap between men and women in the UK dropped to its lowest level since this data was recorded nearly 20 years ago. According to data from the National Bureau of Statistics, the wage gap between male and female workers is at 9.4%, while in 1997 this difference was 17.4%.

These encouraging figures come from the UK Government, which has implemented many measures including strengthening the right to work and receive equal wages for all male and female workers on condition that they meet is required by the employer.

SAUDI ARABIA

On September 27, 2016, more than 14,000 Saudi Arabia women signed a petition to terminate the women’s guardian system, changing the rule “women need men’s permission” to travel or work. This is the first time a petition of this type has been issued with such a large number of signatures.

Các quốc gia nỗ lực thúc đẩy bình đẳng giới - Ảnh 2.

Under Saudi Arabia’s current law, all women must have a male guardian, usually a father, husband or brother. They must ask the guardian’s permission if they want to travel, work, get married, rent a house, even get medical treatment. In addition, they are also prohibited from driving.

SWITZERLAND

Women in Switzerland may be offered an extra year after the House of Representatives has voted through increasing the retirement age for women to 65, equal to the retirement age of men. This was at the end of 2016. Previously, the Senate of this country also voted. This proposal may be put on referendum before becoming a law.

 

 

 

 

 

 

 

 

 

 

 

 

The battle against criminals in our politics is not over yet

The campaign for decriminalization of politics is high on the national agenda. The role of judiciary and civil society in highlighting the menace of criminalization and ways to curb the trend has been historic. The order of the Hon’ble Supreme Court on March 10, 2014 has very long range impact in terms of remedy. The bench headed by Justice RM Lodha of Hon’ble Supreme Court has ordered for expediting the proceedings against sitting MPs and MLAs in criminal cases and has further set a deadline for trial court to complete the hearing of the cases within a year of framing of charges.

It has further provided that the trial court need to give explanation to the Chief Justice of the respective High Court if the trial is not completed within a year. The bench observed that the proceedings should be conducted on a day-to-day basis in order to decide the case within the prescribed time limit.

If effectively implemented, this order has far reaching consequences in cleansing the politics of the country. Firstly, it would deter the criminals from seeking tickets as this would expose them to the prescribed limit of one year for the judicial verdict on the charges. Secondly, the political parties who are sensitive to the number game in terms of capturing power would shy away from taking risk of giving tickets to candidates with criminal background as any conviction of sitting MLA/MP would result in vacancy in the State Assembly and in the Parliament as the case may be which could directly impact the tenuous majority of the ruling party. The judgment of March 10, 2014 has come at a very opportune time as the parties are actively engaged in selecting candidates for forthcoming elections to Parliament and few State Assemblies

The Public Interest Litigation was filed by an NGO, Public Interest Foundation in 2010-11. This PIL was admitted on grounds that the entry of criminals amounts to coercion in the electoral process and the free exercise of vote and ultimate choice is compromise. The petition has made four prayers. Firstly, it sought relief for the issuance of guidelines to ensure that those charges with serious criminal offences are disqualified to contest the elections to Parliament and State Legislature. Second prayer was for laying down six months time period for judicial determination of the chargesheet by the competent court. Thirdly, direction to the Government for enacting appropriate legislation so as to debar those charged with serious criminal offences contesting elections and lastly, declare the provisions of section 8(4) of the Representation of People Act, 1951 as unconstitutional.

The interested parties, i.e. Election Commission of India and the Union Government were given due notice by the apex court. Fortunately, the Election Commission concurred with the prayer made in the PIL. However, the Union of India did not play ball with the campaign against decriminalization and raised preliminary objection that the prayer falls in the domain of parliamentary legislation as policy matter and cannot be heard by Hon’ble Supreme Court. However, the bench of the apex court was sensitive to the cause and sought the recommendations the Law Commission on the issue of disqualification once the charge sheet is framed and the penalty under section 125A of RPA, 1951 in cases where falls affidavit is filed by the candidate. The Law Commission gave its recommendation to the apex court.

In order to appreciate the cancerous feature of our democracy, few statistical details would be sufficient for a diagnostic conclusion. In the 15th Lok Sabha constituted in 2009, 162 Lok Sabha MPs out of a strength of 543, had serious criminal cases like murder, attempt to murder, kidnapping, robbery and rape. As per the ADR report, the average pendency of these criminal cases has been seven years. Alarmingly, there were pending cases between 20-29 years on nine MPs. This would be sufficient to conclude that muscle and money power has played important role in the spread of the cancer and also in the obstruction of justice. In this regard, section 8(4) of the RPA, 1951 only added fuel to the fire. It perpetuated the continuity of even convicted legislators. This section provided that the convicted legislator would not be disqualified where revision/application has been preferred within three months from the date of conviction judgment.

Hon’ble Supreme Court in its judgment of 10 July 2013 gave a death blow to the protection under section 8(4). In the case of Union of India vs. Lily Thomas, it declared the provisions of 8(4) as unconstitutional and debarred elected representatives from continuing in office upon conviction. The order of March 10, 2014 has to be appreciated in the background of the earlier judgment as it now sets a time limit on judicial determination of the charge sheeted representative. However, the battle is not finished yet. The political parties may continue to field candidates with serious criminal cases because of their winnability factor. The gross misuse of muscle power and money can still prolong the time period between investigation and filing of the chargesheet. Thus, it would be seriously compromise the intent of the judgment dated July 10, 2013 mentioned earlier and also the order of March 10, 2014. The first prayer of the PIL is the panacea for curbing the entry of criminals in politics. It seeks that any person charge sheeted with serious and heinous offences attracting a sentence of five years or more should be debarred from contesting election. This has been strongly recommended by Justice Verma Committee report on Amendments to Criminal Law (January 23, 2013). In this battle, the civil society must lead. Even the order of March 10, 2014 can only be effectively implemented if the watchfull eyes of the civil society is able to keep track on the progress of the judicial proceedings.

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

(This article was published in Indian Express on 25 March, 2014 and Dainik Bhaskar on 25 March 2014 )

No place for Doubting Thomases in the State Funding for elections

In a parliamentary democracy the citizens have the political rights constitutionally ensured to make all important choice in government formation by participating in the election process.  The role of political parties is critical as they mobilize public support on their ideology, programme and promises.  The scale of support is manifested through election process. Political parties also perform the important function of informing and educating the citizens about the performance of the government including their shortcomings.

The Representation of People Act (RPA), 1951 makes it mandatory for any association or body of individuals calling itself a political party to make an application to the Election Commission of India (ECI) for its registration.  The sole reference to political parties in the Constitution of India features in the Tenth Schedule, which deals with the disqualification of a person for being a member of either House of Parliament or the Legislative Assembly/Council on grounds of defection.   The RPA, 1951 is the primary law regulating elections in the country.  It is important to make appropriate provision in our Constitution and the RPA, 1951 to facilitate effective regulation of parties by the ECI.  We may perhaps refer to the German law which recognizes the political parties in the formation of political will of the people and requires an internal democracy within the party and transparency in accounting assets and expenditure concerning the party activity.

Political funding is crucial to sustain the activities of any political party.  The expenditure relating to election alone may be termed as campaign finance. This article embraces the term campaign funding to imply the part of the campaign finance funded by the State.  Campaign funding is for conducting competitive election campaign and finance various election related activities in a time frame prescribed by the ECI.  Campaign finance refers to all funds that are raised and spent in order to promote candidates, parties or policies in the electoral contest.  Funds mobilized for elections have a significant impact on the electoral outcome.  Little wonder then that the so-called level playing field of an election arena is heavily tilted towards those who have the deep pockets to influence electoral success.

Political parties raise funds from both private and public sources.  The candidates in the electoral fray also raise funds, sometimes through questionable means.  There is a growing nexus between the political parties and the corporate, organized mafia and other nefarious entities.  The donations to the political parties and the candidates are often in the expectation of quid pro quo which invariably is not in national interest.  The obvious appended hazard is the unsavory role of black money.

State funding of election campaign is often dismissed on the basis of an argument that it will only be a drop in the ocean of corruption.  But to allow this limitation to discourage any proposal on the subject might hamper the larger cause of democracy in the long run.  Funding of election campaign may not right away dismantle the already established nexus between the political parties and their “donors”, but in the long term a step in this direction will surely have a role to play in snapping the ties of allegiance between these formidable companions pumping black money in the system. State support to campaign funding has generated strong “for and against” views in India.   Almost all the government committees formed on the issue of electoral reforms deliberated on the issue of campaign funding but fell short of coming to any concrete policy consensus which could then be tested in terms of ground reality through execution.  There have been significant proposals on the subject from civil society members who have pro-actively advocated for election funding.

Public Interest Foundation (PIF) through in-house research, supplemented with discussions with like-minded NGOs, as well as the intellectual think tanks, has evolved a feasible minimalistic framework of campaign funding for adoption and expeditious implementation. The scheme in tabular form is annexed.

As per the scheme, the administration of campaign funding will be entrusted to the ECI, who would operate the earmarked funds through a designated account for the purpose.  The funds would be non-lapsable. The fund would be created through transfers from the Union Government.  The decision of ECI on the subject of campaign funding will be final.  The Commission needs to be delegated powers to frame rules under the RPA, 1951 for the purpose.  The pattern will be same for Lok Sabha and Assembly elections.  However, it will be advisable to implement the scheme on a pilot basis in next Lok Sabha elections.

Campaign funding is not to be viewed as the expenditure related to various activities of the political parties; it is restricted to the elections only.  The ECI will make the disbursement in two stages.  The first disbursement would be made to the political party immediately after the notification of election date.  The second disbursement to the candidates would be made in two installments; first immediately after the acceptance of valid nomination form and the second after the election results. The disbursement to the candidates has been furnished in two installments to prevent non-serious candidates from siphoning of the state funding and to ensure that the funds provided to the candidate is in congruence with the valid votes polled.

The first disbursement of the fund to the political parties will be restricted to the recognized national and state parties.  The financial payout by ECI would be regulated on a scale of payment of Rs. 10 against each vote polled in favour of those party candidates whose deposit was not forfeited in the previous election for the same assembly or the parliamentary constituency as the case may be.  The total amount received by the political party as campaign fund would then be distributed to the prospective candidates who have been given official symbol.   Thus, the start-up expenditure would enable the candidates to fund their campaign in a fair and transparent manner.  The suggestion to fund the national and state parties is in the interest of ensuring built-in accountability and regulating spurious contestants. To discourage fragmentation of political parties, it is desirable to raise the benchmark for recognition of national and state parties. In the words of Chief Justice Altmas Kabir, “To gain recognition as a political party, a party has to prove itself and to establish its credibility as a serious player in the political arena of the state”.

The second stage of disbursement will be in two installments.  The payment of first installment will be made to all the candidates whose nomination form has been found valid after scrutiny and withdrawal.  The entitlement would be estimated on the basis of total electorate in the constituency. The value would be monetized on a scale of rupees ten per voter in the electoral list.  Each candidate would be given 1% of the total value as the first installment. The rationale for monetizing the electoral list is linked with the size of the constituency and efforts involved in reaching out to the electorate.  The second installment payment of stage two will be made post-election on the basis of counting and result declaration.  The eligibility for reimbursement would be restricted to the candidates who have secured at least 1/6th of the valid votes polled, i.e. those candidates whose security deposit has not been forfeited.  The payment to all such eligible candidates would be on the basis of rupees ten per valid votes polled in favour of the candidate.  The performance based reimbursement suggested is largely to ensure level playing field for all the candidates, and it is hoped that a healthy trend in the electoral politics towards a responsible party based system would gradually evolve.

Compliance of transparent account standards as may be prescribed by ECI would be a pre-condition for any disbursement.  Both the political party and the candidate would be required to maintain a separate bank account for the campaign funding.  This account would also be used for all the donations made either to the candidates or to the political party by private/corporate sources.

For any proposal on campaign funding to not become another breeding ground for more unaccounted money flowing into electoral process, it is critical to enforce the existing provision on contributions and disclosure, and strengthen them to adequately ensure that they are less susceptible to corrupt practices. Sections 77 and 78 of the RPA combined with section 10A state the compulsory provisions for the maintenance and time-bound filling of election expenses by every candidate, failing which the candidate would be disqualified from contesting election for a period of three years.  Through the extension of the purview of Section 10A of the RPA, following the Supreme Court judgment in the case L.R. Shivaramangowde vs. T.M. Chandrashekhar – AIR 1999 SC 252, three years disqualification of a candidate from contesting elections is valid even in case the accounts of election expenses filled by his/her is found to be incorrect or untrue by the ECI.  Moreover, this disqualification of three years should also apply to the candidates who may have been sworn in as elected representative on the basis of election results.  It is also proposed that the scrutiny by ECI about correctness of accounts filed should be completed in 120 days so as to minimize any form of uncertainty and political instability.

These provisions for disclosure of election expenses as detailed by the RPA, Section 77, 78, 10A for individual candidates seem comprehensive, but for the fact that it does not provide for a similar practice to be followed by the political parties should be considered a major lacuna.  The parties play a significant role in financing the election campaigns of their candidates. Moreover, given that in PIF’s proposal a significant amount of the first stage of campaign funding will be made available through the political party organization, stringent legal provision necessitating disclosure on election expenses by political party organization needs to be an important pre-requisite subject to satisfactory compliance of ECI directions on accounts keeping and audit.

Under section 29C of RPA all registered political parties are legally bound to file an annual report on all contribution received in excess of rupees twenty thousand with the ECI. A similar requirement from individual candidates under law will further strengthen the cause of transparency on contributions. Moreover the contribution limit requiring compulsory reporting  by both individual candidates as well as political party organisation should be brought down to rupees five hundred in order to facilitate maximal contributions to come within the purview of accounted money. Thus all contributions Rs. 500/- may be accepted by cheque only. Contributions below Rs. 500/- may be accepted in cash, but all donations must provide details of the donor in a format as may be prescribed by ECI.  However the fact that failure to file these accounts on contributions is not backed by strong enough deterrent, in the form of disciplinary powers to the ECI for non-compliance, weakens the overall provision and thus calls for immediate redressal. It is necessary that wrong disclosures or non-compliance of filing accounts entail severe punishment. Both ECI and IT (Income Tax) authorities will have access to the accounting details and conduct detailed scrutiny to ascertain the correctness of the disclosures made.  Parties which do not submit annual audited statements may be de-recognised and de-registered or both as the case may be.

Additionally every candidate shall disclose his/her income and assets along with those of his/her family members as defined at the time of nomination.  Every registered political party will be required to submit annual audited financial statement to ECI as is necessary binding on them under Rule 3(xix)) under Article VIII of the Guidelines and Application Format for Registration of Political Parties under Section 29A of the RPA, issued by ECI. Moreover, there shall be compulsory annual disclosure of income and assets of elected legislators.  False or incomplete disclosure by Members of Parliament may invite deterrent penalty including disqualification by the Speaker of the Lower House or the Presiding Chairman of the Upper House.

In the absence of provision for an effective auditing of the accounts relating to election expenditure by the party or the candidates, the entire framework of filing returns would be rendered futile.  Therefore, the compulsory auditing of these accounts should be entrusted to the auditors recommended by the Comptroller and Auditor General of India, which necessarily provides for a scope of cross-checking all reports submitted to both ECI and IT authorities. In addition all these accounts on election expenditure, contributions, assets as well as annual financial statements filed by both candidates and political parties submitted to the ECI should be made available for the information of the public within six months of the end of the financial year in the public domain.

Ceiling on election expenditure is another important feature which deserves review in the Indian context.  The role of black money in elections is well known.  The election expenditure for Lok Sabha election is Rs. 1 crore to Rs. 5 crores as revealed informally by contesting candidates.  Therefore, any ceiling on election expenditure will be theoretical and the elected representative begins his stint on a heap of lies.  If ceiling on election expenditure is not officially regulated, the candidate may furnish the information close to the truth.  Earlier ceiling was considered necessary to discourage role of black money and electoral rigging.  It has not served the purpose.  Therefore, the ceiling on election expenditure may be dispensed with.  The US system in fact does not have any limits set on election expenditure.  Once we have stricter norms for disclosure of expenditure and effective scrutiny of accounts, the objective would be met in a fair and transparent manner.

To assess the likely burden on the central exchequer toward state funding, an empirical exercise taking the 2009 Lok Sabha elections as the reference point was undertaken. The stage one disbursement to the recognized national and state political parties at the rate of rupees ten against each vote polled in their favour excluding the candidates whose deposits were forfeited in the previous election, i.e. the 2004 Lok Sabha elections, has been observed to be approximately Rs. 364 crores. Based on the information, the disbursement to various recognized national and state parties ranged between Rs. 103 crores (INC) and Rs. 5.4 crores (CPI). The second stage of payment in the scheme is in two parts. The candidates whose nominations are found valid would have received an average of Rs. 1.3 lakhs and has been estimated at Rs. 107 crores as total cost. The second installment of the payment due to all candidates securing more than 1/6th of the valid votes has been summed to be Rs.418 crores at all India level. Translated into average disbursement, it came to Rs. 34 lakhs per candidate except few constituencies where the total electorate is very small. There will be no need to raise revenue through any alternative source of cess or new taxes. It is feasible to meet the expenditure of campaign funding by reducing the entitlements to MPs and MLAs under various Local Area Development Schemes. It is estimated that candidates of recognized national and state parties are thus benefited by an average of about  Rs. 35-40 lakhs in the scheme, in addition to other existing privileges like free electorate sheet and free time slot in Doordarshan for propagating the manifesto of the national and state parties.

Every time the issue of state funding of election cannot be put on a hold based on the argument that political party reforms should take precedence over it.  State funding of elections as an agenda is important for a growing democracy claiming equality of opportunity for all its citizens. Moreover, taking a long-term perspective on the issue, the availability of state subvention for campaign funding will sure go on to weaken the sole dependence on private funding.  The current deadlock on the issue of state funding of election inevitably requires simultaneous attempts to cease the impasse. These attempts could demonstrate minimalistic yet critical progression in the broader adoption of election reforms as a whole in the long haul.

PIF’s Proposal on State Subvention to Campaign Funding of Elections:

CRITERION PROPOSAL OF PIF LEGAL PROVISION THAT NEEDS STRENGTHENING/AMENDMENT
Scope
  • Limited to campaign funding of elections
  • No ceiling on election expenditure
  • Applicable to both parliamentary as well as assembly elections
  • Implementation on pilot basis in parliamentary election

 

Requires amendment to Representation of People Act (RPA), 1951, Part V, Chapter VIII, Section 77. Also amendment to the Model Conduct of Elections Rules,1961
Administrating agency
  • Election Commission of India (ECI ) along with the support of State Election Commissions

 

This can be enabled through an administrative order by Union government under the Model Conduct of Elections Rules,1961.It may also be incorporated in RPA, 1951
Corpus to fund the state subvention to campaign finance
  • Creation of a permanent corpus called ‘consolidated fund for election’
  • Corpus to be managed by ECI
  • This non-lapsable corpus will be funded from consolidated fund of India

 

Requires amendment to RPA, 1951, Part V, Chapter VIII
Scheme STAGE 1 (Payment to Political Parties)

  • Only recognised national and state parties based on the results of the previous elections
  • Payment of rupees ten against each vote polled in favour of all those candidates from recognised national and state parties whose deposit was not forfeited in previous election
  • This fund to be appropriately distributed amongst the candidates with party symbol

STAGE 2 (Payment to Candidates)

INSTALLMENT 1:

  • Payable to all candidates whose nomination held valid after scrutiny and withdrawal of nominations
  • To be made directly to the candidates of all parties and also those contesting as independent
  • Amount due to each such candidate would be 1% x (Total number of electorate of that constituency x rupees ten)

INSTALLMENT 2

  • Payment will be performance based reimbursement post elections based on election results of the polls
  • Directly to the candidates
  • Only threshold criterion would be that the candidates should have secured atleast 1/6thof the valid votes polled, i.e. those candidates whose security deposit was not forfeited
  • Amount due to each eligible candidates would be calculated at the rate of rupees ten against each vote polled in favour of such eligible candidates
Requires amendment to Representation of People Act (RPA), 1951, Part V, Chapter VIII

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pre-conditions for disbursement
  • In the Election expenditure statement all political parties to submit their audited annual financial report to ECI within 60 days of the end of each financial year
  • Separate bank account of political parties and eligible candidates for the purpose of election expenditure
  • All other contributions, in addition to state subvention in regards to election expense to be received in this particular account
  • All transactions of this account to be reported
  • This bank account to be linked to UID to facilitate tracking of any illegitimate money transactions
  • Complete disclosure on all contributions received by both party and candidates
  • Complete disclosure on all election expenditure made by both party and candidates to ECI within 30 days after elections

 

Requires amendment & strengthening of Representation of People Act, 1951, Section 29C 

 

Requires amendment to Representation of People Act, 1951, Section 77,78, 10A

 

 

Strengthening of Rule 3(xix)) under Article VIII of the Guidelines and Application Format for Registration of Political Parties under Section 29A of the RPA, issued by ECI

Disclosure On Contributions:

  • To be filed by both political parties and candidates with the ECI
  • Contributions above Rs.500 to be made by cheque
  • All contributions must provide details of the donor in the format prescribed by ECI
  • Besides disqualification for state-funding of elections, other strong civil and criminal punitive measures to be introduced for non-compliance
  • Providing powers to ECI for de-recognition, de-registration  in addition to withdrawal of IT exemption for punishing non-compliance on disclosure of all contribution by both political parties and individual candidates

On Election Expenditure:

  • To be disclosed by both political parties and individual candidates with the ECI within 30 days
  • Non disclosure by individual candidates is punishable under law with disqualification from contesting of elections for three years
  • Similar requirement and provision for compliance from political parties on all expenditure expenses backed with legal sanctions
  • In case disqualification for three years is declared by ECI, then this disqualification should stand valid even if this candidate has already won and taken oath in the lok sabha or state assembly
  • ECI to certify the correctness of the election expenditure accounts submitted in a time-bound manner within 120 days
  • No reimbursement towards campaign funding in  cases of non-compliance on true, time-bound filing of election expenses by both political parties and individual candidates

On Asset Statement:

  • Every candidate shall disclose his/her income and assets along with those of his/her family members in the new format for filing of affidavit effective from 2011 at the time of filing nominations.  False or incomplete disclosure may invite deterrent penalty including disqualification
  • Every Member of Parliament to compulsorily file annual disclosure on income and assets to the Speaker of the Lower House or the Presiding Chairman of the Upper House of elected legislators.  Non-compliance may invite deterrent penalty to be decided by the presiding authority

 

 

Requires strengthening and amendment to Representation of People Act, 1951, Section 29C

 

 

 

 

 

 

 

 

Requires amendment to Representation of People Act, 1951, Section 77,78, 10A

 

 

 

 

 

 

 

 

 

 

 

 

Requires amendment to RPA, 1951, Section 33A

Requires strengthening and amendment to the Members of Lok Sabha (Declaration of Assets and

Liabilities) Rules,2004

 

Requires strengthening and amendment to the Members of Rajya Sabha (Declaration of Assets and Liabilities)

Rules, 2004

Audit requirements
  • Compulsory auditing of all accounts/disclosures on assets, contributions as well as annual financial statements by both political parties as well as individual candidates should be entrusted to the auditors recommended by the Comptroller and Auditor General of India (CAG)

 

Public Information
  • All these accounts on election expenditure and contribution filed by both candidates and political parties to be placed in public domain
  • To be done within six months of the end of the financial year by ECI

 

Requires strengthening of Representation of People Act, 1951, Section 33A
Projected Expenditure & Deficit
  • Total expenditure incurred under this model as per the information available on Lok Sabha elections  2009 is approximately  Rs. 1000 cr.

(This article was published in Business Standard on 30th December, 2012 and 6th January, 2013)

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)

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 )