4 potential legal issues of President Trump

In addition to the investigation of election funds and the relationship with the Russian side, President Trump also faces several other legal problems.


Not only the investigation by Special Prosecutor Robert Mueller about the connection between the 2016 presidential campaign with Russia, President Trump is also facing legal problems. Other headaches no less.

1. President Trump’s swearing-in ceremony

On December 13, the Wall Street Journal reported that the Commission for the inauguration ceremony of Mr. Trump’s President in 2017 is under investigation for federal crime.

The committee received up to $ 107 million in funding, including $ 14 million from sponsors working for investment and securities companies and nearly $ 10 million from real estate agents. product. The total amount for Mr. Trump’s swearing-in ceremony is nearly double that of his 2009 Barack Obama predecessor.

Investigators are currently investigating how much money the sworn-in commission has been used and whether regular sponsors seek to reach the new government.

6 van de phap ly tiem tang cua tong thong trump hinh 1

A report by ProPublica on December 14 expressed the concern of a “top event organizer” that, Trump International Hotel in Washington “rates” room, food and facilities provided for The committee is in charge of Mr. Trump’s oath and this may violate tax laws.

When asked about the information WSJ posted, White House Press Secretary Sarah Huckabee Sanders said, “This is not related to the President or the First Lady”. Even if this is true, there are many friends or close relationships of Mr. Trump and his daughter, Ivanka, that are deeply involved in the swearing-in plan.

2. Foreign influence

The focus of Special Prosecutor Robert Mueller’s investigation is to see if there is any relationship between Russia and Trump’s campaign. However, according to recent reports, doubts have extended the relevance of other countries.

The Daily Beast article said, stage 2 in the prosecutor Mueller’s investigation will begin next year and includes a record of the relationship between Mr. Trump’s campaign with Saudi Arabia, Israel and the United Arab Emirates (UAE).

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The New York Times said that New York investigators are considering whether any foreign characters illegally funded President Trump’s inauguration committee.

Mueller Prosecutor’s investigation team is also said to be investigating Trump support groups to see if the groups will receive money from overseas during the 2016 election campaign. Saudi Arabia and the UAE are once again mentioned, along with Qatar.

3. Trump Hotel

Shortly after his election, Mr. Trump announced that his business would donate all income originating from foreign governments to the US Treasury.

In March, Trump Foundation funded $ 151,470 in interest from foreign governments in 2017, although the organization did not provide details. This procedure is done to avoid omitting regulations on foreign earnings in the US Constitution, thereby prohibiting federal officials from receiving gifts or payments from foreign officials or representatives.

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Although the President’s lawyers said that this procedure is not mandatory, Mr. Trump is committed to doing so to avoid missing or exceeding what the Constitution requires.

However, in June 2018, the head of the judicial department of Washington DC and Maryland sued Mr. Trump, accusing Mr. Trump of benefiting from the expenses the foreign government spent on Trump hotels. especially the hotel is located not far from the White House in Washington DC.

4. Trump Fund

New York investigators are also conducting a review of the Trump charity. The head of the New York state judicial agency, Barbara Underwood, accused Trump – a tax-exempt charity, be used as a tool to serve Mr. Trump’s political purpose.

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During the 2016 presidential campaign, the Washington Post reporter, David Fahrenthold, revealed how Mr. Trump used the money from charitable funds – mostly funded by friends and close relationships – to settle business lawsuits and finance activities to build support for his campaign.

If this allegation is true, Mr. Trump may face financial fines, a 10-year ban on any nonprofit organization in New York. In addition, his three children, Eric, Ivanka and Donald Jr. may also face a similar ban within a year.

 

 

 

 

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 )

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)

Aam Aadmi Party Manifesto Sans Accountability

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

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

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

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

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

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

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

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

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

The RTI Juggernaut

The unanimity of India’s political class to promulgate Right to Information (Amendment) Bill, 2013 to categorically exclude registered or recognised political party under the Representation of People Act (RPA), 1951, from being considered “public authority” under the Right to Information Act, 2005 has raised scepticism on the potential for depreciatory intent at guarding the clandestine activities of political parties. The move to counter the pronouncement of the Central Information Commission (CIC) to list political parties, which include AICC/INC, BJP, CPI(M), NCP and BSP, as public authorities under Section 2 (h) of the RTI, 2005 was perceived as a respite to scathing criticisms encountered by political parties.

Explaining the reasons for introducing the amendment bill, the statement in the bill points to the already existing provisions in the RPA, 1951 and Income-tax Act, 1961 as effective in dealing with the financial transparency of political parties. But implementation of these provisions has been a grave challenge to the Election Commission of India (ECI). Section 29C of the RPA, 1951, 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.  In response to RTI applications by the Public Interest Foundation (PIF), the ECI has informed that only 8% of 1196 registered political parties have submitted annual reports in 2010-11 regarding contributions above twenty thousand rupees  to the Election Commission. The Commission also revealed that that out of a total of 1196 registered political parties only 174 have actually submitted an annual audited financial statement for year 2010-11.  The efficiency of these provisions are explicitly questioned by the response of the ECI dated 20 November 2013 to an RTI application filed by Public Interest foundation on further actions undertaken by the ECI against registered political parties who failed to submit the annual audited account of the fund after issuing of letter by the ECI on 14 July 2011. The Commission responded that, “since nowhere under the Representation of the People Act, 1951 or the Conduct of Election Rules (ensuring compliance of which come under the purview of the Commission) the political parties are mandated to submit their annual audited accounts, Commission is not in a position to take any action against the parties who have not submitted their annual audited report”.

The reasoning of amendment bill asserts that political parties are neither established nor constituted under the Constitution or by any law made by Parliament. This point of objection does not gain credit against the provisions under fifty second amendment to the Constitution which amended Articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats and disqualification from membership of Parliament and state legislatures and added a new Tenth Schedule to the Constitution setting out certain provisions as to disqualification on grounds of defection. The political parties were vested with exceptional power to remove those elected representatives elected by the people of India. Although not created by the Constitution, but wielding of this unique authority in itself suffices the need to regulate political parties by the common citizens who have been rightfully bestowed with the Constitution of India.

Reaffirming this thought is the recommendation of the Law Commission of India in its 170th that it is necessary “to introduce internal democracy, financial transparency and accountability in the working of the political parties”. The report of the National Commission to review the working of the Constitution headed by Mr. Justice MN Venkatachaliah, Former Chief Justice of India made significant remarks on the need for legislations to encompass political parties in transparency and accountability. The report states, “There is a need for a comprehensive legislation (may be named Political Parties (Regulation) Act) regulating the functioning of political parties in India”. The amendment bill tabled before the Rajya Sabha has clearly not considered any of the recommendations proposed by the Commissions formed by the governments in the past.

The visible outrage prompted the government to refer the amendment bill to the Standing Committee on 5 September 2013 granting hope for restoration of sanity in our polity. The defence of the political parties that deserve serious consideration is regarding dangers of unrestricted disclosure possibly impeding their internal administration and strategic deliberations. The discussions and decisions of a political party on participation in the electoral process along with their political schemes could be exempted by suitably amending Section 4 of the RTI Act, 2005. Nevertheless, there is an absolute necessity for transparency in the finances and accounts of the political parties. Absence of any law for regulating finances of political parties poses a great threat to functioning of democratic institutions in India which are deeply entwined with one another. An active disclosure of their financial details would unquestionably enable an objective audit from the informed citizenry.

By Nripendra Misra, Director, PIF & Annapoorna Karthika, Research Associate, PIF.

Public Interest Foundation’s reactions to the recent pronouncements of the Courts and the order of the CIC

SC order on freebies in manifestos of political parties

Significantly, the Hon’ble Supreme Court in the verdict of 5 July 2013 directing the Election Commission of India (ECI) to frame guidelines for regulating the contents of election manifesto has observed that the manifestoes even if announced before the notification of election dates, should be brought within the code of conduct as an exception.  The order of the SC explicitly finds strength in Article 324 of the Constitution which entrusts the responsibility for conducting elections in a free and fair manner to the ECI.  It is a landmark decision to ensure transparency, accountability and level playing field to all the political parties. Unlike in India, all promises of financial nature during elections are subjected to serious scrutiny by the media, think tanks and the televised debate in other developing countries.  Political parties in India only compete with each other to upscale the ‘free’ products. If honestly implemented, the political parties would not resort to the divisive policies and freebies to attract the “vote bank”. The most serious challenge before the Election Commission is its capacity to enforce various rules and regulations and also model code of conduct. The efficacy of powers granted to the ECI is seriously compromised in the absence of a specific provision for imposing penalty on defaulting political parties.  The Apex Court judgement of 10 May 2002 states that the present act and rules do not empower the ECI to de-register a political party. In the absence of any regulation on parties, the nation risks an atmosphere of ruthless politics with little or no public accountability.  Therefore, the Law Ministry without further delay should at least initiate legal reforms based on ECI proposal on issues which are non-controversial.

SC order on those convicted MPs, MLAs and MLCs will be disqualified unless an appeal is pending

The path-breaking judgement of the Hon’ble Supreme Court on 10 July 2013, which strikes down Section 8(4) of the Representation of People Act, 1951 restores the intent of Section 8(3) of RPA, 1951, which disqualifies a person convicted of any offence and sentenced to imprisonment for not less than two years from contesting elections and the disqualification is for a period of six years.  However, the Bench has recognized the powers of the appellate courts to stay the convictions under Section 389(1) of the Criminal Procedure Code.  The historic role of liberating of Indian legislative bodies from the criminals is a commendable contribution of the Hon’ble Supreme Court.

The striking down of the sub-section 8(4) of the RPA, 1951 is being widely debated on all forms of communication networks.  Even so, a straightforward analysis has been caught up in the interpretations leaning toward the subject of rising criminals in politics, which is exclusive to the declaration of sub-section 8(4) of the RPA, 1951 as ultra-vires the Constitution.  The judgment has only affirmed that the Parliament has no power to enact sub-section (4) of Section 8 of the RPA, 1951 vis-a-vis Article 102(i)(e) and 191(i)(e) of the Constitution.

Crucial to the judgment of the SC regarding Section 8(4) of RPA, 1951 is that it solely relates to disqualification after conviction.  The stage of conviction in majority of the cases is not reached because of the heavy pendency at the court level and deliberate efforts of the accused to delay the judicial process.  It is because of this reason that Justice Verma Committee Report on Amendments to Criminal Law, 2013 had proposed amendment to Section 8(1)(a) of the RPA, 1951 with the inclusion of offences punishable under the Indian Penal Code (IPC), 1860.  This proposal needs to be urgently adopted for defining serious and heinous offences where the term of punishment amounts to an imprisonment of five years or more resulting in disqualification of candidates on charges being framed by the court.  This would require amendments to Sections 8(1), 8(2) and 8(3) of the RPA, 1951. The establishment of Special Fast Track Courts for time bound disposal of cases of the candidates charged with serious and heinous offences is a necessity that complements toward efficacious implementation of the judgement as it could act as a deterrent to those with cases of criminal offences pending against them in the court from contesting elections in order to avoid a speedy and time-bound adjudication of the case.  These Fast Track Courts should be enabled to take up the cases of elected representatives to minimize political uncertainty in Parliament/State Assemblies.

SC order that those in jail cannot contest

Although this verdict of the Hon’ble Supreme Court is in absolute sync with upholding of the Constitutional morality of India’s democratic order, the judgement requires a review of the Court in the present fractious political climate marred by mounting criminalization. It is inferred that in the reading of the Representation of People Act, 1951, the Court could have inadvertently missed the potential of the words of the judgement to be blatantly abused and misused by competing political parties during elections. For instance, the arrest of cartoonist Aseem Trivedi in 2012 on serious charges of sedition for his anti-corruption cartoon is a reflection on the umbrage the nation felt at the abuse of law, especially by the political class. Extreme caution in the use of law and its language is demanded at a volatile situation of present parliamentary order. The judgement should be urgently reviewed to examine the need for any possible amendments for clarity on the subject.

Allahabad HC order on caste-based rallies

The judgement of the Allahabad is considered widely as a profanation of the Fundamental Rights guaranteed by the Constitution to the citizens of India with respect to the right to assemble peacefully without arms under Article 19(1)(b) of the Constitution. This Fundamental Right can be restricted by law only in the interest of the sovereignty and integrity of the country. It is impossible to feign that a caste-based rally is not essentially the quintessential stroke in the wheel of social justice. It is pivotal to define a caste-based rally. Could a rally held by the nation to mark its indignation at an incident like that of Khairlanji massacre be called a caste-based rally? Those caste-based political rallies intended at demanding votes in an election are dealt under electoral offence and they don’t demand absolute ban on the rallies.

CIC order to bring political parties under the ambit of RTI

The Central Information Commission  on 2 June 2013 have given a decision that the listed political parties, i.e. AICC/INC, BJP, CPIM, CPI, NCP and BSP are public authorities under Section 2(h) of the Right to Information Act, 2005. Thus, requiring pro-active disclosure put in the public domain.  It also grants right to the citizens to seek information from the listed political parties.  This order mainly seeks disclosure of financial nature, donations, funding of election which, in some manner, is already required by the ECI.  It is expected that the parties would not be required under RTI to provide rationale for selection of candidates, internal management of the party etc.  Perhaps, there is a case for clarification regarding the nature of information to be made available under RTI.  This would soften the all-round opposition to the pro-active disclosure and the political parties ganging up to challenge the decision may be dissuaded.

By Nripendra Misra, Director, Public Interest Foundation and Annapoorna Karthika, Research Associate, PIF

(This article was published in Dainik Bhaskar on 1st August, 2013)

Election Commission empowered to enforce clean politics

The Hon’ble Supreme Court in its order dated July 5, 2013 has directed the Election Commission of India (ECI) to frame guidelines for regulating the contents of election manifesto.  Further, the Supreme Court has observed that the manifestoes even if announced before the notification of election dates, should be brought within the code of conduct as an exception.  It is evident that the order of the Hon’ble Supreme Court to ECI is under Article 324 of the Constitution which entrusts the responsibility for conducting elections in a free and fair manner to ECI.  It is a landmark decision to ensure transparency, accountability and level playing field to all the political parties.  If honestly implemented, the political parties would not resort to the divisive policies and freebies to attract the “vote bank”.  Promises on freebies by political parties have no  linkage with the financial health of the State, likely tax burden and impact on the state revenue.  In the USA, all promises of financial nature during elections are subjected to serious scrutiny by the media, think tanks and the candidates are often called upon during the televised debate to balance the implications of receipt and expenditure.  Political parties in India do not have such obligations, and they only compete with each other to upscale the ‘free’ products.  While working in a State Government, I had once advised against promise of higher cane price on grounds of poor sugar recovery and very heavy cane arrears.  The truth was that the poor farmers did not get  their cane dues for 3-4 years, because the sugar mills were unviable under the cane price dispensation.  On the other hand, the farmers were coerced to make repayment of agricultural credit.  The point being made is that the value of freebies is not really free gift voucher, but short-term gain to a political party.

Recently, Central Information Commission have given a decision that the listed political parties, i.e. AICC/INC, BJP, CPIM, CPI, NCP and BSP are public authorities under Section 2(h) of the Right to Information Act, 2005.  This order mainly seeks to ensure a pro-active disclosure of financial nature, donations, funding of election which, in some manner,  is already required by ECI.  It is expected that the parties would not be required under RTI to provide rationale for selection of candidates, internal management of the party etc.  Perhaps, there is a case for clarification regarding the nature of information to be made available under RTI.  This would soften the all-round opposition to the  pro-active disclosure and the political parties ganging up to challenge the decision may be dissuaded.

The above two developments, i.e. order of the Hon’ble Supreme Court and the decision of the Central Information Commission, are very much in line with the various commissions constituted by the Government which have highlighted the need for regulating financial transparency and inner democracy within the political party system.  Our Constitution, except for the Schedule dealing with the disqualification of a person as a Member of either House of Parliament or the Legislative Assembly, does not make a specific mention of political parties.  The very bedrock of Indian parliamentary system was left to the evolution of healthy convention and respect for rights of the association of body of individuals to constitute a political party registered by the ECI.  Hon’ble Supreme Court in the judgment of July 5, 2013 has stated that the Parliament should frame a new law to regulate political parties in the country.  This was earlier recommended by the Law Commission of India and also by Justice Venkatachalliah Commission on the Review of the Constitution.  Former Chief Justice of India, MN Venkatachalliah  has guided the Centre for Standards in Public Life in the preparation of a draft bill on political parties.  Therefore, the Government does not have to invent a new wheel and it could initiate a dialogue amongst political parties to arrive at  least intrusive law relating to the affairs of political parties.

The most serious challenge before the Election Commission is its capacity to enforce various rules and regulations and also model code of conduct.  Few examples would highlight the point being made.  Section 29C of the Representation of People Act, 1951,  requires all registered political parties to submit an annual report to the ECI on all contributions in excess of twenty thousand rupees for being eligible for any tax relief.  In response to an RTI application, ECI has conveyed that only 8% of 1196 registered political parties have submitted annual reports in 2010-11 regarding contributions above twenty thousand rupees  to the Election Commission.    ECI  under section 29A of the RPA 1951 requires political parties to submit their audited annual financial statements within six months of the end of each financial year.  ECI has made a shocking revelation that out of a total of 1196 registered political parties only 174 have actually submitted an annual audited financial statement for year 2010-11. Further follow-up action is not known.   As the power to withdraw the eligibility of tax exemption is with the Finance Ministry, ECI has sent the list of the parties who are in non-compliance to that Ministry.

The efficacy of powers granted to the ECI is seriously compromised in the absence of a specific provision for imposing penalty on defaulting political parties.  A culture of blatant disobedience among registered political parties has taken roots.  Does the ECI have powers to de-register a political party?  The judgment of the Apex Court dated 10.05.2002 is that the present act and rules do not empower the ECI to de-register a political party.   At least 500  registered  political parties do not have authentic addresses and have never participated in  any  State or national level election.  The ECI proposal sent in 1998 to Government of India to empower ECI with de-registration is still under consideration.

In the absence of any regulation on parties, the nation risks an atmosphere of ruthless politics with little or no public accountability.  The citizen today is aghast to notice that main national political parties are even trivializing the acts of terrorism threatening the national security.  It is a pity that well-established security and investigative agencies are being debated  with half baked information ultimately causing great damage to the integrity of the institutions.  The well-established conventions have been given a go-bye and selective leak is no longer perceived as a serious breach of indiscipline.

In conclusion, three action points emerge for immediate attention.    Firstly, the ECI should frame guidelines under the model code of conduct for election manifesto of political parties; secondly, the Law Ministry without further delay should at least initiate legal reforms based on ECI proposal on issues which are non-controversial.  The power to ECI for de-registration of political parties is one such example. Thirdly, the Government should act upon the order of Hon’ble Supreme Court and also the Law Commission recommendations for major electoral reforms and regulating of the political parties.  The minimum that citizens can be promised is an authentic public information regarding defaults by political parties on binding disclosures.  Is it too much to ask in this great democracy?

(This article has been published in The New Indian Express on 15th July, 2013 and Dainik Jagran on 11th July, 2013)

Common Minimum Programme for all Political Parties

Dear friends,

Reference : Soliciting esteemed support on key agenda for political parties in General Elections 2014

General elections 2014 are round the corner, and the political parties will soon get busy with their promises. Public Interest Foundation (PIF) has listed issues of prime public concern which in our opinion, must be flagged for immediate ownership and action by political parties.

ABOUT THE FOUNDATIONPublic Interest Foundation (PIF), a NGO, working towards the advocacy of good governance practices since 2008. The Foundation is currently chaired by Mr. Naresh Chandra, former Ambassador to the United States and ex-Cabinet Secretary, Government of India. The other members of the Governing Council of PIF include Dr. Bimal Jalan (Economist and former Governor of Reserve Bank of India), Mr. B. G. Verghese (Columnist, Author, currently visiting professor at the Centre for Policy Research), Mr. Harshvardhan Neotia and Mr. Suresh Neotia (Industrialists), Ms. Shailaja Chandra (Former Chief Secretary, Government of NCT of Delhi), and Mr. Tarun Das (Former Chief Mentor, Confederation of Indian Industry).

Given the disjointed and populist nature of the present polity, only a strong case made out through widely disseminated and supported public opinion on specific agenda can be counted upon to make any dent on the present reluctant pace of peoples’ oriented reforms adoption by political parties. And thus the role of collective voice of common citizens/CSOs/NGOs is of pivotal importance in being able to put together such an advocacy campaign.

The following Common Minimum Programme in our view should form an essential part of the manifesto of all political parties towards the 2014 General Elections. Our listing of issues in the draft has also been limited to restrict to only those that can be tracked in terms of performance after elections. Thus the issues covered, may not be exhaustive but are basically very fundamental agendas that every common man should have a right-based claim on.

PIF has shared the same with 45 registered state parties and registered national political parties insisting on their commitment by incorporating the issues raised in their party manifesto towards the General Elections due for 2014.

PIF solicits your support towards this agenda on Common Minimum Programme for political parties.

Nripendra Misra,
Director, Public Interest Foundation

BROADER AGENDA KEY ISSUES BACKGROUND
A. INCLUSIVE GROWTH i. Provide drinking water in each village As against the target of 7,98,967 habitations* for coverage under National Rural Drinking Water Programme (NRDWP) during the Eleventh Plan, the coverage up to 31 March 2012 was 6,65,034 (83 per cent). (Source 12th Five Year Plan, Planning Commission)(*The rural habitation is often a unit of differentiation used to define a community based on caste and creed and also by members who by and large share common language and cultural characteristics.)
ii. Self-sufficiency in power(Minimum of 8 hours of power supply to rural areas to be ensured)

 

The Eleventh Plan estimated a terminal year (2011–12) requirement of electricity generation from utilities at 1,038 billion units (BU), implying growth rate of 9.1 per cent (CAGR) per annum over the gross generation level of 670.65 BU in 2006–07 (the terminal year of the Tenth Plan). As against the above, the actual generation from utilities in 2011–12 was 876.88 BU, a shortfall of about 16 per cent, implying an annual growth rate of only 5.51 per cent for power from the utilities. This has resulted in a demand–supply gap. On 31 March 2012, it was estimated that the peak deficit gap was 11.1 per cent and energy deficit was 8.5 per cent.
iii. 100% enrolment of children in elementary schools Average enrolment rate is 96% for 2011-12. But average retention rate at primary level is stagnant at 74-76% since 2009
iv. Health insurance for all, upto a defined amount Rashtriya Swasthya Bima Yojana or RSBY launched in 2008 is a very innovative programme. The objective of RSBY is to provide protection to BPL households from financial liabilities arising out of health shocks that involve hospitalization. Beneficiaries under RSBY are entitled to hospitalization coverage up to Rs. 30,000/- for most of the diseases that require hospitalization. Government has even fixed the package rates for the hospitals for a large number of interventions. Pre-existing conditions are covered from day one and there is no age limit. Coverage extends to five members of the family which includes the head of household, spouse and up to three dependents. Beneficiaries need to pay only Rs. 30/- as registration fee while Central and State Government pays the premium to the insurer selected by the State Government on the basis of a competitive bidding.A beneficiary of RSBY gets cashless benefit in any of the empanelled hospitals. He/ she only needs to carry his/ her smart card and provide verification through his/ her finger print. For participating providers it is a paperless scheme as they do not need to send all the papers related to treatment to the insurer. They send online claims to the insurer and get paid electronically.
v. Women empowerment:

  • Education specific special provisions for girl child (eg. computer, cycle, scholarship,etc.)
  • Political empowerment of women (eg. Reservation in elected bodies)
  • Protection of women against major social problems (eg. taking a firm stand against retrograde steps like khap panchayat, valentine’s day celebration)
Policy measures such as the ones suggested below maybe emphasised upon to promote women empowerment in various aspects of lie:a) Name of mother compulsory in admission of students in school
b) 50% reservation of women in panchayat, zila panchayat and local elections
c) Special scheme for villages who have all women administrative body
d) No Stamp duty on properties bought in name of woman
e) For conversion of lease hold property into free hold property less stamp duty to be charged in case the property is getting registered in the name of the women of the household. This is already done by the Delhi Development Authority (DDA) where duty at the rate of 6% in case of men and 4 % in case of women has to be paid to or Land and Development Office (L&DO)
f) Passing of Women’s Reservation Bill requiring reservation of one-third seats in Parliament for women candidates
vi. Growth focus on employment generation especially for age group of 18 to 35 According to Planning Commission Report on Entrepreneurship of the year 2012, “India needs to create 10 – 15 million jobs per year.”
B. DEVELOPMENT / GROWTH i. Transparent, open & discretion free process for allocation of resources under the state
ii. Effective measures to curb the role of black money in Indian economy
C. PUBLIC SERVICES DELIVERY i. Ensure enforcement & compliance to Right to Public Services & Grievance redressal So far 17 states have passed such an Act but the services notified are very restricted
ii. Electronic delivery of services The Electronic Delivery of Services Bill, 2011 was introduced in the Lok Sabha on December 27, 2011 by the Minister of HRD and Information Technology. The Bill was referred to the Standing Committee on Information Technology on January 5, 2012, which gave its report in August 2012.
iii. Minimum standard of civic services to be declared & maintained
D. ETHICS IN PUBLIC LIFE i. Lokpal for senior political functionaries & top most civil servants The Lokpal and Lokayuktas Bill, 2011, introduced on December 22, 2011, was passed by the Lok Sabha on December 27, 2011.  The Bill was taken up for consideration and passing in the Rajya Sabha, which referred it to a Select Committee (Chairperson: Shri Satyavrat Chaturvedi).  The Committee submitted its report in November 2012.
ii. Lokayukta in each state for senior political functionaries & civil servants Till now only 19 states have the enacted the Lokayukta Act
iii. Institutional framework for administering civil servants
iv. Transparent institutional framework for appointment to constitutional/ statutory authorities Collegium  comprising of representation from ruling party, opposition party and judiciary to be formed for all such appointments
v. Concrete steps towards police reforms Recommendations towards this have come in the form  National Police Commission Model Bill, 1980, recommendations have also been made by the National Human Rights Commission (NHRC), the Law Commission, the Ribeiro Committee, the Padmanabhaiah Committee, the Malimath Committee, and the Soli Sorabjee Committee, but no concrete steps towards its implementation.Supreme Court of India in 2006 had asked the state to choose any of the models on Security Commission suggested by National Human Rights Commission (NHRC), Ribeiro Committee and the Soli Sorabjee Committee, all of which recommended it to be a multi-member body with sufficient representation from civil society and judiciary.

Six years after ushering in police reforms, the Supreme Court on April 11, 2013 took the first step for its implementation in “letter and spirit” and asked states to furnish within a week status of the Security Commissions which were to be set up to insulate the police from political interference.

E. POLITICAL PARTY, ELECTORAL & LEGISLATIVE REFORMS i. Time bound fast tracking of trial  cases against elected public functionaries convicted of serious/heinous crimes Time-bound fast tracking of all cases against elected public functionaries convicted of serious/heinous crimes and punishable with an imprisonment of five years or more, does not require any legislative amendment. It only requires an administrative order by Supreme Court in consultation with the Law Ministry. There are Public Interest Litigations before the Supreme Court of India on this issue.
ii. Politicians convicted by court to be denied tickets for contesting elections The political parties need to commit loud & clear
iii. Ensuring decriminalization of politics through appropriate changes in election laws Concrete recommendations towards this have been made by a number of highly valued Committees 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; Justice Verma Committee Report of 2012
iv. Ensured submission of annual asset statement by all MPs & MLAs & putting all such information in public domain Lok Sabha & Rajya Sabha laid down rules for asset declaration stipulates the one-time submission of asset details of MPs within 90 days, but the annual compliance to such a rule for asset declaration is not a part of these rules. Moreover, these one-time declaration of assets of MPs are not put in public domain as they are considered confidential documents that can be shared only  with the approval of the Speaker/Chairperson of the House
v. ECI to be empowered on   registration and de-registration of political parties
vi. Making Parliament functional Ensuring uninterrupted functioning of the Parliament for a fixed minimum of days to make sure that the national interest is not jeopardised
F. LAND ACQUISITION & LAND REFORMS a) Concrete policy measures to ensure that besides compensation, a long-term source of livelihood generation (through an employment or appropriate equity participation) is ensured to the owner of the land (especially in case they are farmers).
b) Maintaining the balance to ensure that industrial and infrastructural growth also gets their due focus.

Round Table Conference on Decriminalization of Politics

A Round Table Conference was organized today, April 5, 2013, by Public Interest Foundation on the subject of Decriminalization of Politics.  Public Interest Foundation has already filed a PIL before the Hon’ble Supreme Court along with Common Cause, Transparency International and Gandhian Satyagraha Brigade seeking direction by the judiciary to the Government of India to enact legislation so as to debar those charged with serious offence from contesting elections.  The PIL also seeks the establishment of fast track court to expedite criminal cases of elected members. Further, it requests the Hon’ble Supreme Court to declare section 8(4) of the Representation of the People Act, 1951, which provides a safe haven to elected representatives even after conviction in case an appeal has been preferred, as ultra vires.

The keynote addresses were delivered by Justice M N Venkatachaliah, former Chief Justice of India and Mr. Ashwani Kumar, Minister of Law & Justice.  Mr. D P Tripathi and Mr. Dinesh Trivedi, Members of Parliament also made significant remarks highlighting the exigency to formulate concrete consensus on the subject.  Chief Election Commissioner (CEC) Shri V S Sampath and the former CEC Dr. S Y Quraishi made strong case for decriminalizing Indian politics and empowering Election Commission toward conducting free and fair elections.

Justice Venkatachaliah in his keynote address emphasized the urgency in placing the parliamentary process on sound tenets of democracy.  He particularly emphasized the need for intra-party democracy in the political parties in nominating candidates with criminal antecedents.  Acknowledging major reforms being canvassed for judiciary, Justice Venkatachaliah urged that reforms with respect to decriminalization of politics should not be delayed awaiting an holistic reforms in other institutions of democracy. He was of the view that a person charged with heinous offences and in which cognizance has been taken notice of by the court should not qualify to contest elections.  He particularly disowned the idea benefitting to the election candidates till the conviction has been finally determined at level of the appellate court.  He strongly affirmed that the plentitude of the powers of the Election Commission recognized by the Supreme Court should be adequately utilized, especially to curb the role of black money in elections. Concluding his observations, Justice asserted that the disenchantment of the common man with the democratic institutions of the country could be dramatically shifted solely by educating and rigorously registering the young voters of the country encouraging them to place faith in the country’s democracy. Law Minister Mr. Ashwani Kumar, agreeing on the broad agenda for electoral reforms, assured the participants that the reforms are high on his performance radar and he hopes to deliver concrete results at the earliest.  He also conveyed that all the proposals received till now for electoral reforms have been sent to Law Commission and the Commission is expected to send concrete proposals after due consultation with the stake holders.  However, he strongly argued against altering the presumptions of innocence that could potentially disqualify a candidate charged with a criminal offence in terms of the individual’s right to participate in the democratic process.  He particularly drew the attention of the participants to the fact that unchecked authorization to institutions may be abused and the individual which is the nodal point of democracy.

The two Members of Parliament strongly argued for major structural changes and expressed strong discontent toward any attempt to tackle the problem in isolation and piecemeal manner.  They were of the view that broader socio-economic changes and awareness should be the precursor before launching any major electoral reform relating to decriminalization.  Mr. Dinesh Trivedi also drew attention to non-compliance of judicial pronouncements of Vohra Committee report which was given about 15 years back pointing out the unholy nexus between the criminals and politicians.  CEC V S Sampath reiterated Justice Venkatachaliah’s view favouring the disqualification of individuals with criminal backgrounds from contesting elections. The CEC reasserted the demand to provide constitutional authority to Election Commissioners as a necessary precedence toward ensuring independence of the ECI. The broad consensus was that reforms must be introduced before the next General Elections failing which the role of criminals and black money would go unchecked and the future of democracy would be at peril.

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)