Proposal by Public Interest Foundation on Electoral Reforms in India

The electoral process was set in tune in the independent India with the institution of Election Commission of India (ECI) and the office of Chief Election Commissioner (CEC) preceding the enactment of the Representation of the People Act (RPA), 1951. The elections of 1951 captured the euphoria of India’s constitutional democracy. To Sukumar Sen, the first CEC, the elections in India were, unquestionably, ‘the biggest experiment in democracy in human history’ (Guha 2007, 147)1.

The widely contested debate on ensuring democracy to be safe for a 21st century world order evokes a critical thinking within the institutional structure of ‘the great Indian democracy’. The grandeur of the sub-continent’s electoral process is being marred by the escalation of criminals in politics, often,making laws on offences they are associated with. This, indubitably, affects the process of democratisation in the country. As the evidence of substantive democracy finds its presence in the public discourse on issues of governance deficit, there is an exigency to sustain the idea of Indian State constructed on the framework of liberal democracy.

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How serious are we about the outcomes of MPLAD Scheme

Member of Parliament Local Area Development Scheme (MPLADS) was initiated in 1993.  Such involvement in grassroots projects is a policy intervention which commits public money to benefit each parliamentary constituency through allocation and spending decisions mooted by their representatives in Parliament.  The elected Members of Lok Sabha can propose developmental works in their constituencies to the respective District Collectors.  The elected Members of Rajya Sabha can recommend works in any district of their State.  A nominated Member of Rajya Sabha can suggest works in any one State of his choice.

Parliamentary involvement in grassroots projects has been accepted in both developed and developing countries, like Kenya, Pakistan, US, Bhutan, Jamaica etc.  Such schemes are popular vehicle for politically centered development that seeks to build relationships between the elected representative stake holders and ground level Government institutions, civil society etc.  It is argued as a political response to gaps in fulfilling local need which does not get picked up through top down approach of planning process.   However, it does throw a significant challenge for policy makers and administrators to devise norms, guidelines and procedures for the effective utilization of the huge funds placed at the disposal of the local legislators.  There are issues of accountability, determining development priorities, sustainability of assets and above all passing the litmus test of level playing field amongst competing political candidates.

The Scheme is currently administered by the Ministry of Statistics and Programme Implementation.  In 1993, Rs. 5 lakh was allocated to each MP which has now grown to Rs. 5 crore per Member of Parliament (MP) per annum since 2011.  There are guidelines which provide an elaborate inventory of project selection criterion, accounting procedures, selection for implementing agencies, reporting system and monitoring mechanism.  It lays a special emphasis on the creation of durable community assets based on locally felt needs within the framework of national priorities, such as drinking water, education roads, sanitation and earmarked allocation for areas inhabited by Scheduled Castes and Scheduled Tribes.  The District Magistrate and local bodies are the focal authorities for implementation.  There is a distinct role for Panchayati Raj institutions and urban local bodies to carry out the implementation.  The total release of funds since inception is approximately Rs. 29000 crore up to April, 2013 with an outgo of approximately Rs. 4500 crore annually earmarked for the MPs.

The Scheme was challenged before the Hon’ble Supreme Court on grounds of constitutional validity and misuse of funds.  It was argued that the powers given to Member of Parliament for incurring expenditure is in violation of Article 282 of the Constitution of India.  Further, it was termed as contrary to the 73rd and 74thAmendments to the Constitution which entrust the local self governance to Panchayats and Municipalities.  It was stated that the said amendments do not envisage a special role for the MP in determining the projects and related expenditure.    However, 5-Member Bench of the Hon’ble Court dismissed the petition and described MPLAD Scheme as valid and intra-vires of the Constitution.

The Scheme was also examined by the Second Administrative Reforms Commission.  The recommendation of the Commission in 2007 under its 4th Report on Ethics on Governance was to abolish both MPLAD and MLALAD Schemes.  The Commission had observed that any scheme at the disposal of Legislator to select projects, or authorize expenditure, should invite disqualification on grounds of Office of Profit.

Public Interest Foundation, a NGO, commissioned a pilot study in nine districts in the four States of Uttar Pradesh, West Bengal, Tamil Nadu and Maharashtra.  The selection of the districts was made in the background of implementation status, both physical and financial for the year 2009-10.  A special criterion was made for the districts having a sizeable SC population in order to provide an insight on the impact of the Scheme on the weaker sections.  The main objective of the field level study was to identify the substantive aspects about the efficacy of the scheme in achieving its stated goal of community development through creation of durable assets and also to make a qualitative assessment regarding compliance of the guidelines.  We present below the salient findings with a view to revamping the Scheme.

Fulfilling of locally felt needs forms the backbone of this scheme.  The startling fact that came to the fore through the research study was that the guidelines do not provide an elaborate process for selection of works.  There is no prescribed platform or any mechanism where the stakeholders can express the needs of the area.  Presently, MPs recommend works based on informal information channel of local supporters and party members.  It was noted that the guidelines do not envisage adoption of works from the district plan of development and the prioritization is often narrowed to selected places preferred by interest group totally overlooking the urgency and dovetailing with the works identified in the district plan. Discussion with individual MPs in the concerned states revealed that the proposals are entertained from the local prominent personalities like the Pradhan, local agents of the MP and key opinion makers in the area.  No efforts were made to examine if the proposal formed part of the district plan.  Also, the consideration of maintenance, proper upkeep was not the criterion at the time of selection.

MPLADS guidelines have few missing links.  Detailed specifications on maintenance and transfer aspects of the projects are necessary to ensure the qualitative benchmarking of the assets created under MPLADS.   In the course of field survey it was found that after the completion of MPLADS work, the assets created are transferred to the users’ agencies and they become liable for its maintenance. But due to poor quality of asset created under the scheme, its maintenance becomes very costly and difficult. System needs to be in place to ensure sustainable management of assets created under MPLADS at the District and sub district level. An annual allocation of 10% of MPLADS fund for maintenance and repair of assets may be introduced. Another important drawback in MPLADS guidelines regarding project packaging was brought to the fore while examining the issue of work ceiling in Maharashtra.  The MPLAD scheme guidelines merely specify maximum size of projects, without outlining other equally important aspects of project bundling which optimize the project outcome such as specifications in terms of project size, coverage, spread, and appropriate technical specifications to ensure durability. The present guidelines leave room for creation of inferior, non-durable asset without any claims for long-term durability.

Regarding allocation of funds to the Scheduled Caste/Scheduled Tribe population, as is detailed in clause 2.5 of the revised MPLAD guidelines of 2005, the very basis for allocating funds with reference to under-served group was missing.  It was found that in districts of Jalna and Latur in Maharashtra, projects were chosen without any reference to the demographic features of the community.  In all the four States, there was no conscious effort for identifying projects which would address the inclusivity of Scheduled Castes and Scheduled Tribes.  There is a  strong case to revise the MPLAD guidelines to make mandatory the proportionate provision and planned spending of funds for SC/ST areas.  The earmarked endowment should be used on  projects specifically for the development of habitation concentrated by SC/ST populace only.

One of the weakest links found in this MPLADS implementation evaluation study  was  ensuring proactive disclosure for greater public awareness about the MPLADS projects. The broader experience in the sampled district of Maharashtra, Tamil Nadu and West Bengal has been that DAs do not accord due importance to public proactive disclosure.  The study reveals that in most of the cases IAs are not even aware of the rule of mandatory disclosure of information to the community at large. The study teams of all researched district uniformly informed that they did not find display of completed and ongoing works in the office of District Authorities. The MPLADS website does provide the scheme details, and sometimes irregular updating leads to misinformation. For example some schemes in the Web Portal display “not started” although in reality it has already been commissioned and nearing completion. Many of the schemes have not even been posted on the website.  To strengthen the transparency and accountability aspect of the MPLADS execution, public disclosure aspect of this scheme needs to be especially strengthened. All important information like name of the MP, total expenditure incurred, time taken in completion, department/agency responsible for upkeep should form a part of this mandatory public disclosure at the physical site of the project; and this information should also be regularly updated on the website at the district, state as well as the ministry level.

It was felt that the preference of elected representative in choosing implementing agencies largely determines the job allocation.  As per the norms, the district authority is empowered for the selection of implementing agencies (IAs).   There are basically two types of mechanisms for selection of executing agencies.  In general, after getting recommendations of the MP, beneficiary organization selects executing agencies of their choice and get the estimation done.  In certain cases, especially if the project is in the same vicinity as that of the MP’s, the choice of MP in the selection prevails, though the MPs justify that selection of IAs is based on efficiency considerations.   In the case of Maharashtra too, the majority of the works were recommended below 15 lakh so as to favour the labour societies.  And these labour societies, as per field survey, are run by sub-segments of the community or party workers connected to the MPs, thus ensuring that the vested interests are served.

The field study also highlighted serious operational inadequacies.  It emerged that the selection and implementation time table were mostly not observed.  The guidelines provide for selection within 90 days of the commencement of the financial year.  However, the proposals from the elected representatives are received throughout the year under the pretext that release of funds is also skewed resulting in piecemeal recommendations of the projects.  The institutional set up at the district level is inadequate to handle the MPLAD Scheme.  The checking of eligibility, technical feasibility of the projects, financial estimates and in-depth physical verification is very perfunctory and there are no uniform standards for cost calculation and financial vetting.

It is important that the guidelines of the scheme are strengthened so as to create a feasible alternative for integration of MPLADS with the District Planning, without jeopardizing the flexibility built-into the scheme. Mandatory inspection of schemes by state and Centre level officials must be adhered to ensure qualitative third party check. Moreover there is a felt need for proper appraisal of MPLADS spending and their out comes on the lines of Mid-term Appraisal of Five Year Plans. This will help make MPs more accountable towards responsibly recommending different MPLADS projects in their constituencies. Finally the scheme should get subsumed in the district and state plan after five years.

By Nripendra Misra, Director, PIF & Tannu Singh, Research Associate, PIF

Why bureaucracy baulks at decisions, should omit draconian provisions in Prevention of Corruption Act

Our Prime Minister has time and again appealed to bureaucrats for taking fair and objective decisions based on sound evidence and designed to serve the national interest. Manmohan Singh exhorted civil servants to fight the tendency of not taking decisions because of the fear that things might go wrong and the civil servants might be penalised for that.

In his speech on Civil Services Day, 2012, he had observed, “It is our government’s commitment to put in place a system and create an environment in which our civil servants are encouraged to be decisive, and no one is harassed for bona-fide mistakes of errors of judgement. We stand committed to protecting honest and well-meaning civil servants who might have made genuine errors in their work. And I sincerely hope that these intentions of our government are shared by the state governments too.”

In order to appreciate the mindset of senior civil servants, both IAS and IPS, perhaps performance-tracking of both the central and the state government would be revealing. It would emerge that the central and state governments have not lived up to the commitments and the civil servants, both serving and retired, have been left to fend for themselves even where objective, fair and transparent decisions emerging from the deep analysis of the subject have been taken for the best interest of the country. More often than not, it is the political leadership that has yielded to spot expediency.

Our Prime Minister has great expectations from the civil servants in terms of contribution to the society.

There is a draconian provision, section 13(1)(D)(III) of the Prevention of Corruption Act, 1988, as one of the criminal misconduct by a public servant.

It reads, “While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.” It could be interpreted that a public servant could be prosecuted if he has taken a decision that results in pecuniary gain to an individual without any public interest.

In today’s scenario, most public servants are required to make a decision to facilitate growth. Private sector is often the key partner in most developmental endeavours. It is difficult to imagine a scenario where the key economic actors, i.e., private, public or both, that would not gain from any decision that encourages or sets in motion an economic activity.

Whether it is tax rationalisation, amendment in the duty, fee or any other form of tax levying, disposal of public assets including disinvestment, or incentives for making a trade competitive, they all have features that impact pecuniary gain while undertaking such activities. A day may come when tax exemptions announced with good intentions may also be interpreted as criminal misconduct.

Our Prime Minister has cautioned against a “mindless atmosphere of negativity and pessimism”. There is no certainty that the honest and innocent would be spared from harassment as long as such provisions exist in the Act. There is a fair possibility that many of the economic decisions could be interpreted differently with the dynamics of the rationale taking different shades at different times.

It is now left to an investigating officer to interpret a decision as one of criminal misconduct. It is also important to note that the public servant cannot only be prosecuted during the active service but any time after the retirement till death.

It was against this background that the Committee on Civil Services Reform ( Hota Committee) in its report has strongly recommended a review of the section 13(1)(D)(III) of the Prevention of Corruption Act, 1988. The committee had observed that all the commercial decisions benefit one party or the other and it is often difficult for a public servant, even though acting in good faith and national interest, to ensure conformity with the aforesaid provision of law.

It observed that the easiest course for the civil servant is to avoid taking a decision or refer it to a larger body or committee to take a decision. This would largely explain the present atmosphere of safe play and lack of decision by pushing the file.

Unless this draconian provision is omitted, civil servants will always be inhibited from taking bona-fide commercial decisions. It is also important to note that the provision does not even require some kind of material nexus between the officer and the concerned pecuniary gainer.

(This article was published in the Economic Times on 3rd December, 2012)

Empowering poor children

The Right to Education Act, 2009, is a landmark Act, but certain crucial provisions of it for the empowerment of marginalised children have not been implemented ever for the session of 2012-‘13, three years after the Act was notified.  This is due to certain ambiguities, which could have been avoided with timely intervention and joint ownership of the revolutionary project by both Centre and States. Clearly, its execution still needs a great deal of detailed homework before we can claim its successful take-off at the ground level.

The point under examination is Section 12 of RTE Act, which mandates both public and private schools to reserve 25 per cent of their seats for children from backward backgrounds. Against this 25 per cent quota the private schools will be subsidised /reimbursed by the State at the rate of average per learner costs in the government schools. This 25 per cent reservation for underprivileged children takes into account both social and economic backwardness.

The Supreme Court recently upheld the constitutional validity of this Section which requires schools, both public and private, to give one quarter of their seats to low-income, socially underprivileged children. Two judges of the three-Bench panel ruled that the law does not violate the constitutional rights of those running private schools. The Bench however did make an exemption for private ‘minority’ institutions, saying that the Act ‘infringes on the fundamental freedom’ of such schools.

One of the arguments being offered by private schools against the implementation of the 25 per cent compulsory pro-poor quota is that children from disadvantaged groups and economically-weaker sections will face serious adjustment challenges in an elite setting. However, it is not hard to find instances of unaided private schools that have successfully addressed this problem of social integration within the classrooms. Nevertheless, the deeper-latent concerns of these private schools over economic implications as well as other ambiguities cannot be written off.

The Act is a central one, but for its success an important pre-requisite is that it is combined with empowering ‘Model Rules’, the formulation and promulgation of which is the state’s jurisdiction and responsibility.

While the unceasing debate over the 65:35 finance sharing between the Centre and the States towards the implementation of the Act still forms a bone of contention, the modality for the economic reimbursements to private schools due from state governments against the 25 per cent quota has still not been worked out for many states.

For the purpose of truly implementing this 25 per cent quota the model rules of the state government needs to ponder over certain very important questions that if not dealt with now, may prove to be serious impediment for the future. Questions like, will the State contribute towards other peripheral costs like commuting expenses? Will the State share the burden of remedial classes and counselling that might be a necessity given the fact that underprivileged children will start to school straight form Class I along with other economically better-off students who may already have attended 2-3 years of schooling? Will these underprivileged kids be deprived of other benefits/assistance that a State/Centre chooses to provide socially and economically backward children enrolled in government schools like scholarships, free uniforms, free textbooks, free schoolbags, writing materials, etc? How will the government ensure that these children going to private schools under the 25 per cent quota are not left out of the ambit of the mid-day meal that acts not only as an important motivation for school-coming for these poor children, but is also an important intervention tool for fighting hunger and ensuring the nutritional needs of these needy children?

So far, the experience with the state governments has not been very forth-coming. To take the example of a few economically well-off states: Andhra Pradesh has put the onus of non-implementation of this 25 per cent quota for the year 2012-’13 on the Centre, saying that it has no funds to reimburse fees for students. As per media reports, the Andhra government estimates that nearly Rs 90 crore is needed to admit the 25 per cent quota students in Class I in private schools this year, which will increase by Rs 100 crore every year in the next eight years, as the RTE promises free education till Class VIII. Therefore citing financial crunch as the reason, the Andhra government has exempted certain elite schools that are affiliated to the state board but collect high fees.

In Gujarat private schools are reportedly not admitting under-privileged children under the 25 per cent quota for 2012-’13. The State says that it is waiting for a response from the Centre regarding the required funds.

More draconian are the frequent cases of targeted social ostracisation of the children from underprivileged backgrounds who sometimes make it to private schools. As per a news report, in one of the private schools of Karnataka, four children were forced to attend school in humiliation after the private institution allegedly cut off tufts of hair on top of their heads. This was reportedly done to distinguish these children, admitted under RTE quota, from other students.

If the idea of the 25 per cent quota for children from under-privileged background in public and private schools is to further empower this section with choices of better opportunity, then it should not be at the cost of the of other benefits that they are entitled to by the government, like the mid-day meal. The states need to be more motivated to take-up the ownership of this Act only then the real spirit with which this Act was conceived will be kept alive. The long-term implementation of this Act at the ground level through the dynamic involvement of local bodies cannot be ensured without the proactive initiative and participation of the state governments.

(This article was published in the New Indian Express on 30th November, 2012)

Elections and Creative Accounting

All political parties confirm the truth that contesting elections costs big money and as a rule it is usually over and above legally prescribed limits. This electoral compulsion for enormous amount of funds has become the fountainhead of the “super structure of corruption”.

The Election Commission of India (ECI) determines the ceiling on election expenditure by candidates from time to time. Based on its 2003 notification, the current maximum limit on election expenses for contesting parliamentary constituencies is Rs. 25 lakh. This limit varies from state to state, with the smaller states such as Goa having a ceiling of Rs. 14 lakh and bigger states such as Uttar Pradesh having a limit of Rs. 25 lakh.Despite individual candidates filing an account of their election expenditure, there are no authentic estimates of election expenditure by various candidates in parliamentary elections. To understand the scale of expenditure involved, it is necessary to draw some assumptions and relate these to ECI’s election ceiling limit. For estimation purposes, there are 543 parliamentary constituencies and approximately 15 candidates contesting from each constituency. This has been determined on the basis of the total number of candidates who numbered more than 8,000 in the 2009 general election. If we take the limit of Rs. 21 lakh as the approximate median limit on election expenditure —calculated by averaging the ceilings across 28 states, which range from Rs. 14-25 lakh—the total cost of elections to the 543 parliamentary constituencies works out to around Rs. 1,710.45 crore. In other words, Rs. 1,710.45 crore would be the approximate official election estimate to the 2009 Lok Sabha elections as calculated by ECI.

To relate this official expenditure to the actual expenditure incurred by candidates would be to make a farce of ECI’s ceiling on election expenses, which is totally unrealistic when contrasted with the ground-level situation. The cost of transport alone, including fuel and hired vehicle charges, spent by candidates in each constituency will work out to be more than Rs. 20 lakh. This has been estimated on the assumption that a single candidate hires around 20 vehicles for the 45-day campaign period, covering on average of 200km per day with a fuel efficiency of 8km per litre, calculated at the rate of Rs. 70 per litre. In addition, there is the fee of hiring 20 vehicles for the campaign period of 45 days at the rate of Rs. 1,000 each per day. This, however, excludes other expenditures essential to an election campaign such as money spent on party workers, boarding, printing of pamphlets, dole for supporters, etc.

The majority of members of Parliament (MPs) informally admit that the expenditure by candidates in each constituency ranges from Rs. 1-5 crore, with some prestigious constituencies exceeding even these amounts.

When trying to relate the approximate actual election expenditure made on the modest assumption of Rs. 2 crore to the annual income of major political parties for fiscal 2010, it becomes apparent that there is an anomaly between the two. If we take, to give one example, the Bahujan Samaj Party, it contested from 500 constituencies incurring an expenditure of Rs. 105 crore based on the average ceiling limit of Rs. 21 lakh. But its annual income for that fiscal was Rs. 57 crore. This inconsistency requires further probing by the election authorities.A more detailed analysis raises the question of the relevance of imposing such a ceiling on election expenditure, one that is clearly out of sync with the actual expenditure incurred by parties and candidates at the time of elections. Even more worrisome is the fact that these expenditure ceilings apply to the candidates and do not apply to the costs borne by well-wishers, party workers, friends and relatives. In order to rationally account for this, it would be good if the law ministry immediately revises the election expenditure ceiling, raising it to a level that reflects ground realities.

While ECI has made serious efforts to track election expenditure by strengthening the disclosure requirements by candidates and parties, it seems that a huge amount of funds expended remain undisclosed and unaccounted for in official records. Along with a thorough scrutiny of election expenditure, ECI needs to play a more proactive role in enforcing a bare minimum of financial discipline among political parties. This must include full compliance to its operational guidelines on financial reporting on voluntary contributions received and income and expenditure statements.

Based on the information made available by ECI, more than 80% of registered political parties had not submitted both their annual audited account statements and their annual contribution reports. Without the basic maintenance of party accounts including their audit by auditors empanelled with the Comptroller and Auditor General of India, public accountability and transparency in the election expenditure of political parties will remain a pipe dream. After all, as former prime minister Atal Bihari Vajpayee observed, why should an MP begin his/her career in Parliament by embracing an untruth.

(This article was published in Mint on 11th June, 2012)

Get cracking on corruption!

The issue of ending endemic corruption, including combating the menace of black money, needs to be addressed with both sincerity and speed. The government claims to have taken a series of measures to meeting the challenges posed by corruption in public life. However, the impression remains that it is ineffective in tackling the scourge of corruption, which is affecting all walks of our life and making the common citizen, who has no ‘Mai Baap’ (money or influence), its victim.

The United Progressive Alliance chairperson Sonia Gandhi in December 2010 outlined a concrete 5-point agenda before the 83rd Congress plenary session that included fast-tracking of all corruption cases to restore people’s faith in the political system; full transparency in public procurement and contracts through a clear legislation and procedures; relinquishing discretionary quota by all Congress ministers at the Centre and in the states; and formulating an open and competitive system of exploiting natural resources.

A review of the status of implementation of these action-points reveals that much more needs to be done. The new system of fast-track courts to handle corruption cases is yet to take shape and court proceedings continue as before. Even the demand for fixing a time-frame for deciding pending criminal cases against elected representatives has not materialised, with a number of public interest litigations being filed on the subject. There is a popular demand for electoral reforms, specifically to prohibiting criminals from contesting elections. The new public procurement law is facing stiff opposition from vested interests in the government. The issue of complete withdrawal of discretionary powers has happened sporadically at certain levels of government functioning but this is not being practised uniformly throughout the government set-up.

An open and competitive system of exploiting natural resources is still at the examination stage. The Chawla Committee has submitted its recommendations but this remains a complicated subject, requiring time and expertise to give shape to it completely. Even the simplest of the 5-point programme that requires an austere, simple lifestyle and refraining from indulging in a vulgar display of wealth has not been converted into an action programme. It is because of this slow pace of implementation that the Centre has received flak from the public.

Along with this, the Union government has addressed socio-political challenges of combating corruption as a law and order issue. Having been responsible for maintaining law and order during my career, I can say with some conviction that the police forces can handle the challenges of law and order effectively, if there is clarity of the mission to be accomplished. Socio-political challenges should have been addressed through good governance made possible by effective and timely processes of government decision-making. Unfortunately, law and order issues and socio-economic challenges intermingled in the government’s response to public agitations by Baba Ramdev and Anna Hazare creating confusion.

The Lokpal Bill has been finally introduced in Parliament and is currently awaiting the nod of the Rajya Sabha. Perhaps, it may not see the light of the day in its present form. One fails to understand the political attempts to complicate matters that can be kept simple. The institutions of the Lokpal and Lokayukta need not be set-up under an overarching law. Even if it is legally and constitutionally tenable, one needs to respect the federal character of the Indian polity, particularly when many states already have a state-level Lokayukta and only require upgrading their powers.

There is no need for the apex anti-corruption body of the Lokpal to have an organic link with the Citizens’ Right to Grievance Bill, whose objective is to reform the state of public service delivery by giving every citizen the right to time-bound public services. Why have an overarching Citizens’ Right to Grievance Bill, when many states have already enacted their own public services guarantee acts? At best, the government could have enacted a model Lokayukta and right to public services law for the states to adopt and emulate. Perhaps, the imperative to meet the challenges from Team Anna led to the series of measures which have not been examined thoroughly either in terms of its acceptability by states, or its administrative and financial feasibility and its effective implementation.

Now certain individuals from Team Anna have made unwelcome remarks on the proceedings and MPs. The issue is that Parliament need not take cognisance of every utterance made by a few organised groups. To protect the sanctity of Parliament, members could have passed a law similar to those uploading key national symbols like the national flag, protecting them from the onslaught of public outrage. By debating Team Anna’s utterances, Parliament has given undue recognition to a select group of social activists, enabling them to garner more political mileage than is due. Individuals and groups trying to weaken parliamentary institutions are no doubt hurting the cause of democracy. The institutions responsible for running the wheels of democracy have to respond with greater care. Let them not give undue recognition to those who are not mindful of propriety.

The real answer to Team Anna is through concrete actions taken on key demands made at different points of time, be it on electoral reforms or on curbing the role of black money in the economy. The government need not reinvent the wheel on these issues; instead it should refer to the useful suggestions and legislations made by various government-appointed committees like the Law Commission and Administrative Reforms Commission that lie in the public domain.

Parliament members would do well to debate these recommendations than to discuss the conduct of a few activists. With so many important Bills pending before Parliament including The Judicial Standards and Accountability Bill, The Electronic Services Delivery Bill, The National Food Security Bill, Citizens’ Right to Grievance Redress Bill, The Lokpal and Lokayuktas Bill, etc, the time to act for the central government is now. With the clock ticking before the next public outburst on corruption erupts, Parliament cannot afford to delay the passage of the Lokpal Bill for want of time. As the old adage goes, action, not words, is the most effective tool to silence critics.

(This article was published in the New Indian Express on 9th June, 2012)

Salient Recommendations of Various Committees on Electoral Reforms

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

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

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

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

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

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

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

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

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

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

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

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

Political Party Reforms: Bringing Transparency in their Functioning

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

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

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

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

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

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

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

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

Time is Ripe for Immediate-Concurrent Action

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

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

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

Promises to keep in the upcoming UP elections

The election to the UP Assembly in 2012 is likely to be the most hotly-contested and closely-watched political event of next year.  As the election date approaches, there are attempts by various political parties to strike a rainbow coalition across socio-economic lines, one that will assure electoral success.

As is widely acknowledged, the role of primordial identities like caste and community will figure prominently in the political strategies of the contesting parties.  But there is also a discernible aspiration among the people of UP for a higher growth model and rapid economic development.

This change would require a paradigm shift in the electoral campaigns of political parties—one that downplays the role of caste and community and replaces it with a developmental agenda. It remains to see whether the main political forces at work are able to weave a vision for all-round economic and social development in securing the people’s mandate.

The challenges facing UP are enormous; the state suffers from a ‘hindu’ rate of economic growth and its people enjoy poor health outcomes and a low per capita income.  Being primarily an agrarian state, it has comparatively low levels of urbanization.  The boom in the services and manufacturing sector experienced in other parts of the country has largely bypassed the state. There is a critical shortage in power generation, coupled with a skewed transmission and distribution network. The power units are financially unviable, wholly dependent on government subsidies to make up for revenue gain and tariff imbalances. The state has no world-class infrastructure to boast about.  The roads are in dire need of up-gradation and the low road connectivity is a major constraint for both agriculture and industries.  There is also serious shortage of skilled manpower within the state.

The IT network, which is a prerequisite both in delivery of public services and economic development, is still very weak in the State.  All in all, the investment climate is far from attractive, and the low morale of the civil and police administration gives little hope for speedy course correction.
If there is to be a political turnaround, the political parties must develop a time-bound list of ‘doables’ or actionable milestones that reflect widely-felt aspirations of the citizens of the state. More than ever, the state needs to break free of its image of being “bimaru”, a byword for corruption and political misgovernance that has characterized everyday life, and set itself on the path to development and good governance.

The first and foremost programme that needs to be taken up in the party manifestoes is good governance. Although this has been promised in all previous elections, specific action on it has largely evaded the voter.   To begin, there should be a State Civil Service Commission for administering the postings and transfers of IAS/IPS/PCS and PPS officials so as to de-politicise such bureaucratic decisions.  There must be strong commitment to introduce police reforms within a year based on the directives of Hon’ble Supreme Court. In addition, a white paper giving a broad outline of work undertaken on the implementation of police reforms should be published in the public domain within the first 100 days of the new government.

Similarly, it is not enough to publicly declare that the scourge of corruption would be routed out.  A concrete plan that lays down systemic reforms for curbing corruption is necessary.  The existing Lokayukta Act of UP suffers from many weak provisions, rendering it an ineffective institutional arrangement at tackling endemic corruption.  It is therefore imperative that model Lokayukta Act circulated by Colloquium of Lokayuktas in 2010 is immediately adopted. In fact, very recently the State of Uttarakhand has passed a strong Lokayukta Act, whose model could be replicated in UP as well.

The buzzword of governance at the cutting-edge level is public convenience and accountability, one which includes an element of citizens’ grievance redressal.  In this regard, it is important that a law ensuring citizen-friendly public services accessible to one and all be introduced in the state.  The States of Madhya Pradesh, Bihar, Punjab and Delhi have already enacted laws ensuring essential public services to the people in an assured and time-bound manner.  They have provided legal teeth to largely ineffectual citizens’ charter, thereby making them legally enforceable public entitlements.  Further, these laws fix the accountability of non-performing officials for delays and denials, enforcing penalties which can then be claimed by the aggrieved citizens as compensation.

The political parties should promise to enact a law which incorporates provisions for compulsory and annual disclosure of movable and immovable property and assets by bureaucrats and politicians as well as confiscation of illegally-acquired properties by them.

The state needs to leverage its comparative advantage in the agriculture sector.  The political parties in their election manifesto must promise to relax all restrictions on procurement, processing and marketing of agricultural produce by farmers.  This would require amending the ‘Agricultural Produce Market Committees’ Act which will reduce the burden of cess placed on transactions that take place outside the ‘mandi’ and for auction of a specified quantity of agricultural produce or sale. With the help of ‘mandi’ cess already available with the state, an efficient supply chain upgradation could be made benefitting farmers.

The promise of “water to all” should also be included in the party’s manifesto.  The state has enjoyed an efficient irrigation system, with the number of main and feeder canals successively expanding.  There should be a concrete and viable plan for replenishing the depleting underground water levels as well as other schemes for water preservation in drought-prone areas like Bundelkhand.

The state has an inadequate power supply, poor road connectivity and a sluggish transport network.  Any strategy proposed by political parties for the infrastructure up-gradation must focus on these critical areas along with strengthening existing power and transport networks.  Given that the state is poor in power generation, with an inefficient transmission and distribution system, it is important that the government within two years covers and connects all villages with a population of more than 500 persons with a regular power supply. In addition, the state can make use of the abundance of Central Government assistance in constructing new roads connecting the rural hinterland with peri-urban and the rapidly urbanizing town and cities across the state.

Despite the plethora of welfare schemes and large fund flows, the poor remain mostly unserviced and outside safety-net programmes.  A good beginning could be made by integrating all existing welfare schemes in single-window delivery system for the poor.  In fact, the Delhi Government with the help of non-governmental organisations has experimented with a scheme called “Mission Convergence”, wherein it aims to overcome both the supply and demand side challenges that affect welfare service delivery.  A similar convergence of welfare schemes aimed at the poor could also be implemented in the state.

To improve its poor track record in the implementation of Right to Education Act political parties should promise the adoption of the Act in full earnestness. Further, to make up for the state’s education deficit, a public-private partnership may be struck for the establishment of world-class school infrastructure so that schools remain easily accessible and within every child’s reach. Such a partnership would also address capacity-building issues relating to teachers’ training and course curriculum development.

There should also be a well-structured scholarship programme for SC/ST students upto class XII.  Special hostel facilities should be made available for girl students, who are forced to drop out of the educational system. Such a network of hostels could be identified in collaboration with colleges and located near block headquarters.  Like in Bihar, all girls going to junior high school should be given free cycles.  These programmes should be seen as removing the social disabilities that hamper the spread of education.

Equally important is the modernization of the health sector and expansion of the reach of state-wide health schemes.   A computerized health insurance scheme to cover all citizens with a token contribution by subscribers must be assured.  This scheme could be availed in both private and public hospitals with reimbursement of cost made possible through a Smart Card facility.  Such a programme has already been experimented successfully by the Labour Ministry, Government of India.  Further, to build up state healthcare facilities, district level training centres can be set-up for training of para-medics, nurses and lab assistants to equip them with the latest medical know-how.  A pilot programme to provide widely-prescribed medicines for common diseases could be introduced at primary schools with the placement of trained paramedics which would help reduce the morbidity rate of the state and generally improve health conditions.

To encourage the growth of modern industries, the parties should commit to a cluster programme for the development of industries, making full- use of economies of scale. To attract private capital, there must be concerted effort to end the license-permit raj system with its circuitous process of bureaucratic clearances and inspection.  Government regulation should be exercised through a self-reporting system that places value on performance obligations and provides monetary incentives.

Finally, there needs to be greater decentralization of power in the Panchayati Raj System with an emphasis on building their capacity in terms of funds, functions and functionaries.  Such devolution needs to be participatory with citizens to work as equal partners in grassroots development.

It is clear that UP faces daunting challenges of governance and development. The hope is that whichever political party is elected to power will adopt a pragmatic and action-oriented plan—one which ensures not just law and order but also all-round prosperity for all.

Urgent need for political party reforms

An RTI application unearthed the fact that only 8% of 1,196 registered political parties have submitted annual reports regarding contributions above Rs 20,000 to the Election Commission. And only 15% have submitted their audited financial statements!

Political party reforms are critical in the context of electoral reforms and need to be addressed urgently. The only reference to political parties in the Indian Constitution is in the Tenth Schedule of the Constitution incorporated by the Constitution (52nd Amendment) Act, 1985. This deals with the disqualification of a person as a member of either house of parliament or the legislative assembly/council on grounds of defection.

Framing and administering rules and regulations governing political parties comes within the juridical purview of the Election Commission of India (ECI). It is the ECI that has the ultimate power to register or deny registration to any association or body of individuals as a political party; and to accord recognition and status of political parties to “the association or body of citizens of India”.

Article 29A (1) and (2) of the Representation of People Act (RPA), 1951 makes it mandatory for any association or body of individuals of India calling itself a political party to make an application to the ECI for registration as a political party, within 30 days following the date of its formation. Article 29A (5) requires that the application be accompanied by a copy of the memorandum or rules and regulations of the association or body, wherein the association or body shall affirm true faith and allegiance to the Constitution of India. Further, sub-section (7) of Section 29A adds stringency to the above provision by stating that no association or body shall be registered as a political party under this section unless the memorandum or rules and regulations of such association or body conforms to these provisions, that is, the provisions of sub-section (5) of Section 29A. The Election Commission’s decision in this matter is final.

As regards accountability related to reporting on the regular functioning, expenditure and income of registered political parties, there are certain provisions already present that empower the ECI. First is Section 29C of the RPA that compulsorily directs all registered political parties to submit an annual report to the ECI on all contributions in excess of Rs 20,000, without which no political party is eligible for any tax relief provided to political parties under the RPA. The second important provision in the same context is Guidelines and Application Format for Registration of Political Parties, under Section 29A of the Representation of the People Act, 1951, issued by the ECI which, under Article VIII of Rule 3(i) and under Rule 3(xix), lays down clearly a mandatory requirement for all political parties to submit their audited annual financial statements to the ECI. Third is the most significant section, sub-section (6) of Section 29A of the RPA, which provides that the ECI may call for such other particulars as it deems fit from the association or body making the application for registration as a political party.

Public Interest Foundation (PIF), an NGO, sought information under the RTI Act to find out the status of compliance with various mandatory provisions under the jurisdiction of the ECI. On the compliance status under Section 29(c) of the RPA regarding submission of annual reports to the ECI of all contributions in excess of Rs 20,000, PIF received a reply from the ECI that, till now, only 98 registered political parties out of a total of 1,196 registered political parties have submitted annual reports regarding contributions above Rs 20,000. Compliance therefore is a mere 8%. Further, the ECI has not recommended any action to the income tax department against the defaulting political parties; only copies of contribution reports received from the political parties have been referred to the income tax department. Perhaps the ECI could have educated the general public in this regard so as to enable them to make an informed choice whilst casting their votes during elections.

Through another RTI application, PIF sought information specifically on compliance with the mandatory guidelines issued by the ECI under Article VIII of Rule 3(i) and Rule 3(xix) of the Guidelines and Application Format for Registration of Political Parties under Section 29A of the Representation of the People Act, 1951 which calls for the mandatory requirement of submission of annual audited financial statements by all registered political parties within six months of the end of each financial year. In a reply to the RTI application, the ECI made the shocking revelation that out of a total of 1,196 registered political parties only 174 have actually submitted an annual audited financial statement for the year 2010-2011; 85% of registered political parties had not complied with the mandatory guidelines.

The efficacy of powers granted to the ECI with regard to accountability and reporting on regular functioning, expenditure and income is seriously compromised in the absence of any provision for penalising defaulters. This routine practice, where repeated defaulters go unnoticed and unpunished, gives rise to a culture of blatant disobedience among registered political parties. The ECI, while exercising its powers to register a political party under Section 29A of the Act, acts quasi-judicially, but once a political party is registered, the ECI has no powers to review the order registering a political party for having violated provisions of the Constitution or for having breached the undertaking given to the ECI at the time of registration. The only conditions under which the commission can de-register a party are when it is found later that a party has obtained its registration through fraudulent means, or it has been declared by the government as unlawful, or when a party itself intimates the commission that it has ceased to function or has changed its party constitution, or will not function in accordance with the provisions of the law. Moreover, the sanctity of the provision is all the more diluted by the fact that parties that do not subscribe to secularism, socialism and democracy may be denied registration by the ECI, but they are still not barred from contesting elections.

Rightly aggrieved over these merely symbolic powers, the ECI sent a proposal, in July 1998, to enable it to issue orders regulating registration and de-registration of political parties. The government has yet to grant the ECI this very important power.

If governments have no laws stating what parties can and cannot do, nations risk engaging in ruthless politics with little or no public accountability. One does not have to invent a new wheel. There is a draft bill called the Political Parties (Registration and Regulation of Affairs, etc) Act, 2011, prepared by the Centre for Standards in Public Life (CSPL) under the guidance of former Chief Justice of India M N Venkatachaliah. This draft bill attempts to address a wide spectrum of issues ranging from the formation of political parties to registration, governance, accountability, regulation of political parties, functions of parties and their discipline. It compulsorily lays down the condition for maintenance and reporting on accounts and all contributions above Rs 20,000 by political parties, clearly noting that compliance with provisions of the Act and the declaration submitted by political parties at the time of registration would be legally binding on them, on a continual basis. Strict norms have been laid down for the observance of internal democracy like no nominations and periodic free and fair elections for selecting various office-bearers within a political party. Addressing the existing discrepancy where even unregistered parties can contest elections, the draft bill calls for registration with the ECI as a necessary criterion for contesting elections. Moreover the registrar, through this draft bill, is empowered to direct a special audit of the accounts of any year of a party or of any local unit. The draft bill strongly talks about penalties to be meted out to political parties in case of deviance from the provisions laid down by the bill, by way of a fine of Rs 10,000 per day of non-compliance, imprisonment of up to three years, as well as withdrawal of registration. Other significant grounds for de-registration of a political party by the registrar, according to this draft bill, is the non-contesting of more than one general election, or not securing a prescribed minimum percentage of votes polled, or not taking part in mainstream political activities.

Amongst high-level government reports on this issue, there is the Law Commission’s ‘170th Report on Electoral Reforms’ (1999), the National Commission for the Review of the Working of the Constitution report on electoral reforms (2002) and the ECI’s recommendation on electoral reforms (2004). Though these reports strongly advocate the regulation of all political parties through law, they recommend the inclusion of this law as part of the already existing RPA, rather than enacting an exclusive Act for the regulation of political parties in India.

In its ‘170th Report on Electoral Reforms’, the Law Commission suggested the inclusion of a completely new Part–IIA, titled ‘Organisation of Political Parties and Matters Incidental Thereto’, to be introduced in the Representation of the People Act of 1951. This new Part-IIA, comprising Section 11A to 11I, provides for internal democracy in political parties; complete adherence of the aims and objectives or goals and ideals of political parties with that of the Constitution of India; registration with the ECI without which no political party will be permitted to contest elections; general organisation of political parties; maintenance of regular accounts of political parties — of amounts received by the party, its income and expenditure — properly audited and submitted to the ECI. Part-IIA also details the punishment to be meted out to political parties in case of non-compliance of these sections, in the form of a penalty of Rs 10,000 for each day of continued non-compliance after notice, as well as withdrawal of registration of the said political party. Additionally, the report by the Law Commission emphasises the insertion of another new Section 78A to the RPA whereby it provides for stringent punishment of political parties in case of non-compliance with the maintenance and disclosure norms regarding clear and full annual accounts of receipt and expenditure incurred by the political party.

The minimum that citizens can be promised is the provision that seeks to regulate the regular functioning of political parties in terms of maintenance of accounts and contributions, along with a clause for legal punitive action in case of non-compliance. Moreover, there should be the mandatory requirement for an appropriate authority to generate public information regarding defaults by political parties on binding disclosures so that a true public image of the political party may be constructed in the minds of the common citizenry. Can the ECI deliver this gift to the nation without waiting for major legislative changes in electoral laws?

(This article was carried by infochangeindia.org)

Fixing the ‘right’ to public services

The states and the Centre recently skirmished over federalism, following contentious legislation like the Lok Pal Bill, the National Counter-Terrorism Centre (NCTC) and a proposed amendment of the Railway Protection Force Act, 1957. Now, the Centre is planning to step into troubled waters once again by transgressing the federal structure of governance through its draft bill on the right to public services and grievance redressal.

The Central Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievance Bill, 2011 was introduced in the Lok Sabha on December 20, 2011. It has been referred to the Standing Committee on personnel, public grievances, law and justice.

The present draft militates against India’s federal character by seeking to enforce cutting-edge public services from the state governments through Central diktat. In the Bill’s statement of objects and reasons, it has been argued that an over-arching structure is necessary, as the impact of various legislations by state governments has been diffused and limited. But it is difficult to appreciate that the rights-based approach being adopted by state governments in their various Acts has no or little merit, especially given the fact that while the Centre still drags its feet on the Right to Public Services bill, 15 states have already either enacted such a Right or have Bills at the proposal stage.

The main objective of this Central Bill is to regularise, simplify and make more transparent the receipt, by the common man, of public services as a right. Yet services due from state governments are very different from those the Centre is tasked with providing. Thus, it is very important that this Central Bill should abstain from strictly laying down rules for the delivery of services which fall within the purview of state governments.

Having the states adopt a similar bill on their own motivation will show up as a huge advantage in terms of ownership as well as the arrangement for the financial obligations the legislation will entail. In addition, a model advisory outlining the essential characters to be a part of all state laws guaranteeing the delivery of public services may be issued by the Centre; this can act as a guideline for all states.

Some other critical issues that require attention in this Central draft are its coverage, the appellate body (and links with a Lok Pal), an over-emphasis on uniformity, motivational-orientation, and financial viability.

Over-burdening the system from the very beginning, in terms of too many complaints due to excessive service coverage, or in terms of complications involved as a result of spreading the system’s coverage to all levels of government (like panchayats, blocks, municipalities etc.) through one integrated act, would impact its efficiency and transparency.

Rather than forming a parallel bulky system of grievance redressal, fixing the final accountability with the head of department of each public office, backing it up with a penalty for non-compliance, will prove to be an important catalyst for this system to function efficiently.

Moreover, the involvement of a Lok Pal/Lok Ayukta should be restricted only to forwarding of those cases where a case of corruption is being built out of some grievance. The intermixing of the roles of the Lok Pal/Lok Ayukta with the delivery of public services listed out in the citizens’ charter will only lead to jurisdictional conflicts.

All the various tiers of government are linked organically, and differ greatly in nature. Each level of government should be allowed the flexibility to work out finer procedural details on its own. An excessive emphasis on procedural and functional uniformity across levels threatens to take away the efficiency and dynamism that this institutional reform hopes to achieve.

Motivation-orientation towards the adoption of this Act, created through a culture of performance-related incentives, rewards and promotion will help create an environment in which attitudes change — which in turn will ensure the sustainability of the reform. Finally, the financial viability of the new system’s operations over time, both at the level of the Centre and the states, needs to be accounted for separately, as these are going to be important factors impacting its administrative workability.

If adopted without disrupting the federal nature of our governance, this Bill will mark a significant step forward, especially given that it assigns a large role to grievance redressal born out of complaints about any quantitative/qualitative aspect of public-service delivery. It is important to remember that, if the right to service encompasses only the timely delivery of services and penalties for non-compliance, then it leaves out a significant aspect for citizens’ welfare — the power to approach an appropriate authority about the quality of the service they have received.

Establishment of empowered commissions at both the Centre and the states, vested with whatever oversight powers are appropriate, would go a long way towards transforming the modus operandi of public service delivery. The power of these commissions should be broad-based to include the ability to recommend additional changes in the procedures for service delivery to make them more transparent and citizen-friendly.

(This article was published in Business Standard on 8th April, 2012)