NATIONAL COMMISSION TO REVIEW THE
WORKING OF THE CONSTITUTION
A
Consultation
Paper*
on
REVIEW OF ELECTION
LAW, PROCESSES
AND REFORM
OPTIONS
* The views expressed and the suggestions contained in
this paper are intended for the sole purpose of generating public debate
and eliciting public response.
January 8, 2001
VIGYAN BHAVAN ANNEXE, NEW DELHI – 110 011
E-mail: <ncrwc@nic.in> Fax No.
011-3022082
Advisory
Panel
On
Electoral
Reforms; Standards in Political Life
Member-In-Charge
Dr.
Subhash C. Kashyap
Chairperson
Shri R.K.
Trivedi
Members
q
Shri P.A. Sangma
q
Shri Mohan Dharia
q
Shri N.N. Vohra
q
Shri S.K. Mendiratta
q
Dr. Vir Chopra
q
Smt. Nalini Singh
q
Prof. R.B. Jain
Special Invitees
q
Shri R.N. Mirdha
q
Shri U.C. Aggarwal
q
Shri S.D. Sharma
q
Dr. V.A. Pai
Panandikar
Member-Secretary
Dr. Raghbir Singh
ACKNOWLEDGEMENT
This Consultation Paper on ‘Review
of Election Law, Processes and Reform Options’ was prepared by the Advisory
Panel on Electoral Reforms; Standards in Political Life. It is based on a paper prepared by the
Centre for Policy Research (CPR), New
Delhi for the
Commission. The CPR entrusted
the preparation of the
Paper to Dr. Vir Chopra
under the guidance
of Dr. Subhash C. Kashyap and with the aid and advice of a Committee
consisting of Dr. Subhash C. Kashyap, Dr. V.A. Pai Panandikar, Shri P.K. Dave,
Dr. Ajit Mazoomdar and Shri K.C. Sivaramakrishnan.
The Commission places on record its appreciation of and gratitude
to the CPR and all others involved for their contribution.
CONTENTS
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Pages |
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ABSTRACT AND PROLOGUE |
475 |
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PART I Introduction Electoral
Laws The
Magnitude of the Electoral Exercise Our
Experience with Elections The
Problems The
Suggested Reform Options |
476 476 476 480 480 481 482 |
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PART II Electoral
Rolls and Voter ID Electronic
Voting Machines Booth
Capturing and Rigging President’s
Rule During Elections Communal
and Caste Hatred Use
of Muscle Power Criminalisation
of the Electoral Process Election
Expenditure – The Money Power Disqualification
on Ground of Corrupt Practices – Election
Petitions The
Question of Representation and Winning on Minority
Vote Compulsory
Voting Negative
Voting Defections
and the Tenth Schedule Delimitation
of Constituencies Problems
of Instability Issues
of Political Morality Miscellaneous
Suggestions |
484 484 487 488 488 488 489 489 491 494 496 500 500 501 502 502 504 505 |
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SUMMARY SELECT BIBLIOGRAPHY QUESTIONNAIRE |
507 514 525 |
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ABSTRACT
AND PROLOGUE
A general
election in India is a gigantic exercise. It is equal to holding polls in
Europe, the United States, Canada and Australia all put together. General
elections to Lok Sabha and State Legislative Assemblies in India are held under
the supervision, direction and control of a constitutional body - the Election
Commission of India. Elections to local
bodies – Panchayats and Nagarpalikas – are the responsibility of State Election
Commissioners.
Nearly
fifty years of experience has brought to fore many distortions, some very
serious, that have crept into the conduct of India’s elections generating a
deep concern in most quarters. There are constant references to 3 MPs, viz.
money power, muscle power and mafia power and to 4Cs, viz. criminalisation,
corruption, communalism, and casteism.
Also, majority of our representatives are elected by a minority of votes
cast thereby making their representative credentials doubtful. The result is that the legitimacy of our
political process gets seriously compromised.
After a
review of various reports, research papers by activist organisations and concerned citizens, newspaper reports and
analyses, and other literature available on the subject of elections, this
paper attempts to create a discussion and consultation agenda.
The paper
emphasizes that the basics of an electoral system i.e., the preparation and
maintenance of electoral rolls and a foolproof voter ID needs the highest and
resolute attention which by itself has the potential to help take care of some
of the serious problems such as impersonation and rigging. Also, it addresses
the divisive nature of our electoral campaigns and criminalisation of the
process and attempts to find ways that would help contain these.
The paper
raises the fundamental question of the high cost of elections and legitimate
sources of funding political activity and election campaigns. In this connection the need for drastically
bringing down the costs and the Gandhian model of decentralization and a
bottom-up instead of the present top down approach are also mentioned.
It is felt
that it would be necessary to impart effective political education in democracy
and for democracy and in citizenship responsibilities so that the right kind of
representatives are elected and kept fully accountable to the people. For, in the ultimate analysis, the objective
of all electoral laws and processes is to provide to the nation truly
representative legislators of good quality who in turn can give us a good and
development oriented governance and a citizen friendly administration.
The paper
reflects on some of the more important electoral reform options and treats them
in a way that should help the readers form their own informed views. The purpose basically is to generate a
national debate and elicit reactions and not to advocate any particular course
of action or reform agenda.
Summary of
the suggestions made and options offered in the paper is given at the end.
PART I
1. Introduction
1.1 Basic to
democratic polity is the concept of sovereign powers vesting in the
“people”. In modern democracies, the
people govern themselves through their elected representatives. In a
parliamentary system, the executive comes out of the legislature and remains
part of it and responsible to it. The
election of members to the houses of legislatures is conducted through an
institutionalised electoral process. This electoral process therefore, no
matter how it is designed and conducted, forms the foundation of a
parliamentary democracy. Elections are
critical to the maintenance and development of
democratic tradition because at one level, these are influenced by the
political culture in which they operate, but at another, they also generate
strong influences that can improve or distort this political culture.
1.2 As a
representative parliamentary democracy, India has a well-established system of
direct and indirect elections to man its institutions. This may be described briefly as follows:
1. Direct
Elections:
a. Of the two
Houses of Parliament, the Lok-Sabha is directly elected from defined single
member territorial constituencies under universal adult suffrage (above 18
years) and on the basis of first-past the post system (FPTP). Similarly, adult
voters directly elect all State Legislative Assemblies from territorial
constituencies within their respective States.
2. Indirect
Elections:
(a) The
constitutional Head of the State, the President of India, is indirectly elected
by an electoral college. Other indirect elections elect the Vice-President, the
Rajya-Sabha and the Legislative Councils at State level.
3. Elections
to Local Bodies:
(a) Elections to the Panchayat Raj
Institutions (PRIs) that have been made mandatory by the 73rd and 74th Amendments to the Constitution are governed
by the constitutional provisions of Part IX and Part IX A (articles 243 to 243
ZG) and State laws on PRIs.
All of these elections, except
item 3 above, are under the supervision, direction and control of an
independent constitutional body called the Election Commission of India
(article 324). Elections under item 3 are under the supervision and control of
the State Election Commissioners (article 243 K & 243 ZA).
1.3 Since the
commencement of the Constitution on 26 January 1950, there have been thirteen
general elections to the Lok Sabha and many more to State Assemblies.
2. Electoral
laws
2.1 India has a
comprehensive structure of laws to administer and conduct its elections. The
formal legal framework for all these elections rests on certain provisions of
the Constitution, the Representation of the People Act 1950, the Representation
of the People Act 1951, the Presidential and Vice-Presidential Elections Act
1952, the Delimitation Act 1972, and the various rules and regulations framed
and orders issued under these statutes. In addition, certain provisions of the
Indian Penal Code and a few other acts are relied upon to provide for
punishment as well as disqualification of candidates and members of the various
Houses.
2.2 The more important provisions in the
Constitution relating to elections are:
Articles 54-58, 62, 66-68 and 71 which
prescribe the terms of office and manner of electing the President and the
Vice-President.[1]
Articles 80-83 lay down the composition and
duration of the Rajya-Sabha[2]
and the Lok Sabha.
Article 84 prescribes the minimum
qualification for a member of Parliament in terms of citizenship and age.[3]
Article 101 states that no person can be a
member of both Houses of the Parliament or of the Parliament and a State
legislature.
Article 102 lays down disqualifications for
membership of Parliament.[4]
Articles 168-173 and 190-192 contain
similar provisions for the Constitution, composition, duration and
qualifications and disqualifications for membership of State legislatures.
Article 324 provides for the
appointment of the Election Commission and its functions.[5]
Article 326 provides that elections to the
House of the People and to the Legislative Assemblies of the States shall be on
the basis of adult suffrage i.e., citizens of minimum 18 years of age
(this was reduced from 21 years by a constitutional amendment w.e.f. 18th
March, 1989).
Article 329 lays down a bar to interference by
courts in electoral matters inasmuch as any law relating to delimitation of
constituencies or allotment of seats cannot be questioned in a court of law and
no election to a House of the Legislature can be called in question except by
an election petition.
2.3 The
Representation of the People Act 1950 and Representation of the People Act 1951
between them provide for the allocation of seats, delimitation of
constituencies, preparation of electoral rolls and conduct of elections. The
important provisions of the former relevant to this consultation paper are:
Sections 13A – 13CC which deal
with the electoral organisation at the State and district level.[6]
Sections 14-25 provide for the preparation
of electoral rolls for each constituency under the supervision, direction and
control of the Election Commission and cover the qualifications and
disqualifications for registration of an elector and other conditions
applicable to the preparation and revision of the electoral rolls.
Section 32 deals with punishment in case of
breach of official duty in connection with the preparation of electoral rolls.[7]
2.4 Similarly,
the relevant provisions of the Representation of the People Act 1951 (R.P.A.)
are:
Sections 3-6 which deal with qualification of
candidates for Parliament as well as State Legislative Assemblies and
Legislative Councils.
Section 7-11 dealing with disqualification of
candidates on grounds of their being convicted for certain offences under the Indian
Penal Code or some other Acts of Parliament, electoral offences like
impersonation, bribery as well as on grounds of corrupt practices and for
failure to lodge account of election expenses.[8]
Sections 19-25 provide details of the administrative machinery for conducting elections.
Section 29A deals with the registration of
political parties.
Section 58A empowers the Election Commission
for suspension of a poll or for
countermanding of elections.[9]
Section 77 lays down that an accurate account
of all expenditure by the candidate and his election agent is kept but
explanation (1) excludes expenditure made by his political party or any others
from such account.[10]
Section 79-122 lay down the procedure for
dealing with electoral disputes and disposal of election petitions.[11].
Sections 123-136 specify in detail corrupt
practices and electoral offences and punishments prescribed for the same.[12]
2.5 The Indian Penal Code, 1860 is used to categorise certain
actions in connection with elections as punishable offences. There are two sets
of disqualifications envisaged. The first is a disqualification for six years
from the date of conviction for certain offences.[13]
The second set of disqualification, when convicted for certain other listed
offences, is also for a period of six years but not from the date of
conviction. It is for a period of six years from the date of the release of the
person from such conviction.[14]
In addition, any persons convicted of any offence and sentenced to imprisonment
for not less than two years also attract a six year disqualification from the
date of release from such conviction. However, the Act (section 8(4)) provides
that if this conviction is against an MP or an MLA in any State, the
disqualification shall not take effect for three months or if within this
period there is an appeal, then till the appeal is disposed of by the court.
2.6 As for the
Delimitation Act 1972, the duty of the Delimitation Commission was to readjust
on the basis of the 1971 census figures the allocation of seats between
different States in the House of the People and the division of each State into
territorial constituencies. According to the Act, the Delimitation Commission
was made up of three members two of whom, appointed by the Union government,
should be or should have been judges of the Supreme Court or of a High Court
and the Chief Election Commissioner was to be an ex officio member. However, the Constitution Amendment Act,
1976 placed an embargo on fresh delimitation – both inter-state and intra-state
till publication of census figures taken after the year 2000. There have been no revisions of
constituencies because of this embargo which is now sought to be extended
further.
2.7 With regard
to the administrative machinery required for the elections, each State has a
Chief Electoral Officer (CEO) under the supervision, direction and control of
the Election Commission. These CEOs in turn have District Election Officers in
each district. The Election Commission may nominate an observer to watch the
conduct of elections in a constituency or a group of constituencies. For every
constituency, for every election to fill a seat or seats in the Rajya Sabha,
and for every election by the members of the Legislative Assembly of a State to
fill a seat or seats in the Legislative Council of the State, the Election
Commission, in consultation with the Government of the State, designates or
nominates a returning officer who is an officer of Government or of a local
authority. The Election Commission may also appoint assistant returning
officers and subject them to the control of the returning officer. Conducting
the election is the duty of the returning officer. In addition, the Election Commission requisitions from the State
government staff for appointing as presiding officers at polling stations and
polling officers to assist these presiding officers. In fact, the staff
deployed for elections not only consists of employees of Central Government and
the State Governments but also of local authorities, autonomous bodies,
Government Companies, etc. All these
staff including the returning officer are deemed to be on deputation to
Election Commission for the period commencing on and from the date of the
notification calling for such election and ending with the date of declaration
of the results of such election and accordingly such officers are during that
period, subject to the control, superintendence and discipline of the Election
Commission.
3. The Magnitude of the
Electoral Exercise
3.1 A general
election in India is a gigantic exercise. It has been said that holding general
elections in India is equal to holding polls in Europe, the United States,
Canada and Australia all put together. Statistically, the number of voters in
India is in excess of 600 million (60 crores). The number of polling booths all
over the country adds up to about 900,000 (9 lakhs), making an average of 667
voters for each booth. However, the population is not so uniformly spread over
unequal territorial constituencies and usually a polling booth caters to no
more than 1200 voters even in highly populated metropolitan areas. Five persons
are needed for each polling booth making a total of 4.5 to 5 million election
personnel to be mobilized and administered. These polling personnel are drawn
from the Central and State governments and other bodies. In addition to this
about 2 million security personnel need to be used to maintain law and order on
polling day. These basic figures give some idea about the enormity of the
exercise to elect some 545 members of parliament. Once you take state and local
elections into account the figures become truly staggering. India has upwards
of about 3.2 million (32 lakhs) directly elected peoples’ representatives
spread over various tiers of governance.
4. Our Experience with Elections
4.1 Our fifty years of experience with successive elections at
various levels has highlighted that generally people are able to deliver
electoral verdicts in a democratic way. But this general statement hides
substantial irregularities at the micro level. In fact, our experience with
elections has also brought out to fore many distortions, some very serious,
that have crept in either due to loopholes in the electoral laws or due to the
incapacity of the system to punish deviant and in many ways unacceptable
behaviour. There have been constant references to 3 MPs – money power, muscle
power and mafia power – and to 4 Cs – criminalization, communalism, corruption,
and casteism. Basically all of this has vitiated the political atmosphere in the
country and even compromised the legitimacy of the political process.
4.2 In recent
years, in full recognition of the problems that the malformation of our
electoral system has created, there have been many exercises aimed at reforming
it. In the last ten years, there have been at least three major formal
exercises by the government addressed to electoral reforms. These are:
- The Goswami Committee on Electoral Reforms
(1990)
- The Indrajit Gupta Committee on State Funding of
Elections (1998)
- The Law Commission’s report on Reform of the
Electoral Laws (1999).
- In addition, the Election commission has also
documented its own thoughts based on the recommendations of these three
organizations as well as based on their own experience of ground
realities.
A resolution
on electoral reforms was unanimously passed by the Lok-Sabha. This was moved by
L K Advani and based itself to an extent on the Goswami Committee’s
recommendations.
4.3 There have
also been many voluntary organizations and activists who have written
extensively on the need for electoral reforms. And, there are a significant
number of articles by many eminent citizens and columnists in newspapers and
journals creating a sizeable literature on the subject. (See Select
Bibliography) The suggestions made in
this literature run into several hundreds and range from the very basic to the
very radical. The Commission proposes
to tabulate the suggestions received from public.
5. The Problems
5.1
In all of the above reports and literature, the main
problems that have been generally recognized and debated are as follows:
- Increasingly money hungry elections leading to
unethical, illegal and even mafia provided electoral funding. The terribly high cost of elections in
turn, has led to increased corruption, criminalisation and black money
generation in various forms.
- With the constituents/electors being the same
for all directly elected representatives from the lowest Panchayat level
to the Lok Sabha level, there are competing role expectations and conflict
of perception e.g. the constituents expect even members of the
Union Parliament to attend to their purely local problems.
- With the electorate having no role in the
selection of candidates and with majority of candidates being elected by
minority of votes under the first-past-the-post system, the representative
character of the representatives itself becomes doubtful or so to say
their representational legitimacy is seriously eroded. In many cases, more votes are cast against
the winning candidates than for them.
One of the significant probable causes may be the mismatch between
the majoritarian or first-past-the-post system and the multiplicity of
parties and large number of independents.
- The
question of defections and the Tenth Schedule.
- Inaccurate and flawed electoral rolls and voter
ID leading to rigging and denial of voting right to a large number of
citizens.
- Problems
in the conduct of elections:
- Booth capturing and fraudulent voting by
rigging and impersonation.
- Flagrant use of raw muscle power in the form of
intimidating voters either to vote against their will or not to vote at
all, thus taking away the right of free voting from large sections of
society and distorting the result thereby.
- Involvement of officials and local
administration in subverting the electoral process
- Engineered mistakes in counting of votes
- Criminalisation of the electoral process -
increasing number of contestants with serious criminal antecedents.
- Divisive and disruptive tendencies including the
misuse of religion and caste in the process of political mobilization of
group identities on non-ideological lines.
- An ineffective and slow process of dealing with
election petitions, rendering the whole process meaningless.
- Fake and non-serious candidates who create major
practical difficulties and are also used to indirectly subvert the
electoral process.
- Incongruities in delimitation of constituencies
resulting in poor representation.
- Problems of instability, hung legislative houses
and their relation to the electoral laws and processes.
- Last but not the least, loss of systemic
legitimacy due to decay in the standards of political morality and decline
in the spirit of service and sacrifice in public life.
5.2 Elections in
parts of the country have become synonymous with intimidation of voters
specially poorer sections, rigging, booth capturing, violence against and even
killing of candidates and political workers, connivance of officials at the
polling stations and at times a complete hijacking of the polling process by
unruly and criminal elements. Unfortunately, over a period of time local police
forces have also allegedly become involved in the above by becoming partisan
and by being guided by local loyalties, caste considerations, as well as by
being easily bribed for connivance. What is disturbing are the sporadic
allegations of even the central forces acting in a partisan way in some places.
Reports of above irregularities in the conduct of elections have become so
commonplace that these are not news anymore. Many suggestions have been made to
address these issues and most relate to implementing our existing rules and
laws effectively. But experience has shown that laws in a low accountability
society like India are known more for violation than for any degree of
compliance.
6. The Suggested
Reform Options
6.1 The suggestions for reform can generally be placed into three
broad categories. The first category
attempts to tackle the problems within the boundaries of the current electoral
system. The second category goes a bit
further and takes a stand that the present electoral system itself needs to be
modified. (The emphasis is on
modification or reform and not on altering the basic framework of the system).
Both of these categories have to be dealt with together because there is considerable
overlapping between the two and we have to view reform suggestions as an
integrated package and not piecemeal.
6.2 There is a
third approach which seeks to strike at the root of the problem which is that
of the terrible high costs of elections and the question of finding legitimate
funds for the purpose. The suggestion
is to cut down the costs drastically by following the Gandhian principles of
decentralization of power down to the grassroots levels and building multitiers
of Government from below in a bottom-up instead of the present topdown
approach. It is stated by those
advocating this approach that the only way to conduct a meaningful electoral
exercise in this country is to have direct elections only at local levels with
the upper tiers filled by representatives indirectly elected by an electoral
college consisting of the representatives manning the lower tiers.
A true democracy as advocated by Gandhi ensures that local,
state and national representatives are accountable to the people for local,
State and national matters respectively through effective transparency. Such
one-to- one accountability may promote responsible politics and attract
patriotic and competent professionals and social workers to politics. Our
present system based on diffused accountability breeds corruption and attracts
self-seekers to politics. For this
breed, interests of national development, welfare of the people and needs of
god governance take lower priorities, if any.
The elected representative is too far
removed from the people as there are an average of
one million voters for each Lok-Sabha constituency spread over a large
geographical area. To influence the choice of such a large and geographically
dispersed number of voters, social action on the part of the candidate is
totally inadequate. And, this creates space and scope for using both money and
muscle power. It is no surprise therefore that the candidates have to spend huge amounts of money at the time of campaigning to “purchase”
the votes of these distant voters. And this is done mostly through a host of
intermediary brokers who become the link in this transaction. These huge
election expenses breed huge corruption. This also means that the electors are
in no position to hold the candidate accountable nor does the candidate
consider himself accountable to these people.
6.3 Based on the
Indian ethos, Gandhi had advocated a low-expense election system linked with
watchdog councils and separate elected chief executives at each local level. He
proposed a highly democratic and, what is more important, a highly accountable
system. More thought out and more in keeping with the evolution of political
culture in our country, many scholars have in recent years adapted these
thoughts in their work and advocated a system of direct elections only at the
grassroots of the Indian democracy. They propose that without in anyway
interfering with the basic structure or features of the Constitution and while
fully continuing the parliamentary system, some reforms be brought in the
electoral system. Direct elections
should be held on the basis of adult franchise at the level of Panchayats and
other local bodies. Panchayats and other local bodies could elect the zila
parishads and they could together elect the State legislature. These three
could elect the Parliament and in the last analysis the four of these could
elect the President. The Prime Minister and the Chief Ministers could be
elected by the Parliament and the State Legislatures concerned. The President, the Prime Minister and the
Chief Ministers in order to be elected should each necessarily secure no less that 50%+1 of the votes cast. Once elected, the Prime Minister or a Chief
Minister should be removable only by a constructive vote of no-confidence.
The fact that the directly elected representatives are all
at the grassroots level where they are in contact with their electors on a
daily basis, would mean that their accountability to the people will always be
high. Corruption will not get the kind of boost and inducement that it gets
presently because of an unaccountable remote representative doing what he
pleases.
6.4 The
representatives elected at the grassroots level will also have to win on a
50%+1 vote principle so that their appeal is more universal than parochial.
They would then be truly legitimate representatives of their people. In the alternative, at the lowest tier
double-member or multiple member constituencies could be considered. Local elections do not entail heavy costs.
The cost to political parties of indirect State and national elections will be
low. Since the national and State governments will handle only higher-level
infrastructure and coordination, indirect elections backed by party primaries
will facilitate emergence of the best leadership. The ills in the present
“first-past-the-post” system will be eliminated because local governments will
handle all social issues and State and national governments shall be
accountable to local governments as advocated by Gandhi who will have elected them.
This will nurture culture, education and values and gradually eliminate social
discords. Also, this election process, it is claimed, has the greatest
potential to bring public service spirited and sacrifice oriented people to the
fore.
6.5 There are strong arguments in favour of this Gandhian model
and it would be worthwhile that this option is studied deeply and debated
widely.* Part II,
however, discusses some reform options that may be possible and found necessary
within the four walls of the existing system of elections.
PART II
7. Electoral Rolls and Voter ID
7.1 The beginning of the electoral system is the preparation of
electoral rolls. It is, by now, a
well-established reality that electoral rolls in India have large-scale errors
in them. The Goswami Committee on
Electoral Reforms also formally acknowledged it and stated rather tactfully
that there were acts of “omissions and
commissions” on the part of officials in addition to the flaws in the system
itself. An indirect way of stating that the system was being subverted.
The Dinesh Goswami Committee
recommended a more stringent punishment for breach of official duty in
connection with preparation of electoral rolls (see para 1.3, chapter 4,
‘Electoral Rolls’ of the Report of the Dinesh Goswami Committee). The said recommendation made by Dinesh
Goswami Committee has since been implemented with the enactment of
Representation of People’s (Amendment) Act, 1996.
Activist organizations like for example the Hyderabad based
Lok Satta have conducted sample household surveys and found an incredible 40%
to 50% errors in urban electoral rolls. According to them, even a casual glance
at electoral rolls in urban areas shows the obvious discrepancies and
inaccuracies. Taking advantage of these defects, political parties and
influential persons manage large-scale registration of bogus voters, or
large-scale deletion of names of “unfriendly” voters. It is quite possible that
in the rural areas there may be fewer errors, but informal estimates by most observers
put these errors at 15% to 20%. These
are all educated guesses and the real position is not known. What is known,
however, is that there are serious irregularities and a large number of
electorate is disenfranchised partly by default and partly by impersonation
that is made easy by the current flawed electoral rolls. Given that large
swings in seats that are won are caused by small swings in voting percentages,
and again given that the margins of victory are generally narrow, the need to
have accurate electoral rolls becomes all the more critical. This apart, electoral rolls are very close
to people and the irregularities in them are exposed very quickly at the
grassroots level. There have been cases of entire sections of villages
disenfranchised leading to immense cynicism. Therefore, the legitimacy of the
whole electoral process is compromised because of faulty electoral rolls.
7.2 It is easy
to see that any serious attempt at electoral reform in India must tackle the
question of faulty electoral rolls at the very outset. If this is set right, at
least some of the other problems will thin out. Why are the electoral rolls everywhere full of inaccuracies? Some
of it may be the result of inefficiency and a flawed system but certainly, as
pointed out by the Goswami Committee, some of it is also the result of
purposeful tampering which may happen due to partisan attitude of the local
officials who may have their own local affinities and/or may be bought over by
vested interests. The many rules and laws to punish erring officials in this
respect have been totally ineffective. Recognising this, the Goswami Committee
had recommended that more stringent punishment should be provided for breach of
official duty in this regard. While commending the 1996 Amendment to RPA we
need to recognize that punishment is not a substitute for systemic corrections.
Basically we should have a reasonably fool proof method of
preparing the electoral roll right at the lowest constituency of a voter and we
should supplement this further by creating a foolproof voter ID. And both
should be related to each other. The benefits of this exercise at the bottom
level of our democracy would be immediate in the sense that it would serve the
objective of contributing to cleaning up the electoral process and curbing
impersonation and rigging. In the long run, it would create widespread belief
in the fairness of our electoral process thereby providing it a high degree of
institutional legitimacy. We would do well to remember that significant political
change happens at the lower levels first and only then spreads to higher
levels.
7.3 The Goswami Committee had suggested that Post offices should
be made the focal point of preparation and
maintenance of electoral rolls as well as keeping of electoral rolls up to date
and the upkeep of records. This may or
may not be the solution particularly because in this case the responsibility is
diffused over different organisations, which usually makes it nobody’s responsibility.
If there is non-compliance, there is no way of pinning it on any one
organisation because there will always be insurmountable problems of
coordination and there will be no way of taking any stringent action against
anyone. The work will automatically stabilize at a low level of efficiency. Also, post offices today do not enjoy the
credibility that they did earlier.
Their efficiency stands seriously eroded.
7.4 In today’s
technological age we should not be talking about a generally antiquated post
office structure of the country, where government servants work to their own
notions of efficiency. Given the technology today, it is not a difficult task
to create a good scheme of things, systemically sound, for the preparation and
maintenance of electoral rolls and voter ID cards. The Election Commission says it is alive to these problems
and in May 2000 it has issued
instructions for a new voter ID card numbering system with a unique code for
each of the 4072 assembly constituencies of the country. Some of what is suggested below may be
already at least partially in the action pipeline by the Election
Commission. To take the scheme of
things a few logical steps forward, it is felt that the effort should not limit
itself to Assembly constituencies and through them to Parliament constituencies
only.
7.5 In this
scheme of things, it is most essential that there is a coordinated effort at
preparing accurate electoral rolls beginning at the lowest constituency that a
voter belongs to. If this is done well, everything else will fall into place.
At the moment the EC is responsible for preparing the electoral rolls for
assembly and parliamentary constituencies. The State Election Commissioners are
responsible for electoral rolls for local body elections. In some States, the
EC and State Election Commissioners have agreed to coordinate the preparation
of electoral rolls. This is as it
should be. There should be no
duplication of effort and a single exercise should be enough for preparing
electoral rolls covering the lowest to the highest constituency that a voter
belongs to. This makes perfect administrative sense. The task could be handled
by the E.C. or by the SECs or by the two in coordination. This means that at the level of gram
panchayat (or the relevant local level), a voter must have his/her name
properly placed on the electoral roll. This would automatically identify the
voter to be a part of the electoral roll of the assembly constituency, which
contains this particular panchayat. Likewise, the voter would be automatically
identified on the electoral roll of a particular Lok Sabha constituency, in
which both his assembly constituency and panchayat are included. In addition
the identity of the voter could easily be linked to his polling station.
7.6 The electoral rolls should be updated constantly and not just
at election time. Every 1st of April, the electoral roll as of
previous 31st December should be made available. This information
should be posted on the web site of the Election Commission and CD ROMs should
be available to all political parties or anyone interested, at a reasonable
price. In any case, the cost of this will only be a fraction of a printed list.
(It is understood that this has been already initiated by the EC). Prior to
elections these rolls should be printed and publicly displayed at the post
offices in each constituency, as well as at the panchayats or relevant
constituency HQs. This would improve public access to this information which
today, even though theoretically available, is very hard to get in practice. As corrections take place, the rolls would
be updated through addendums on the web and therefore be available straightaway
to interested parties. At the time of elections it is these latest rolls that
will be made available at polling stations. We may use the help of post offices
covering various polling stations in preparation of these rolls as well as to
display and make available to general public these rolls at election time, but
the responsibility for accurate execution will remain with the EC/SEC.
7.7 Electoral
rolls are intrinsically linked to the question of Voter ID. Election Commission is said to have taken
action to help in issuing of proper voter ID cards in various States and these
are reportedly at varying stages of completion in most States at the moment.
The pity is that these have been issued to an old design that does not create a
unique ID number for each voter. The new cards to be issued now will
incorporate the constituency code as designed by the EC but as mentioned
earlier this is an assembly constituency upward exercise only. It appears from
the records at the EC that about 2/3rd of the voters in the entire
country have already been issued the old voter ID cards. Haryana with a
reported 88% and Bihar with a reported 37% are at the head and the tail of the
table of performance of all States in this regard. The exercise for identification of voters is said to have worked
well in the last elections in Haryana where some identification document was
made mandatory for voting. Most, though not all, voters brought their voter ID
cards.
7.8 The Goswami
Committee had recommended a scheme of a multi purpose photo identity card in
coordination with other ministries and government departments so that the
possession of this card would become compulsory for all adult citizens. In
their view, this citizenship card could be used as an ID for many benefits that
are provided by government agencies. For example the issuance of a ration card,
a passport, driving licence, any agricultural inputs that are distributed
either free or at a subsidized rate, telephones for individuals, applications
for a government or even private sector jobs, admission of wards to schools or
colleges, for opening bank accounts, for transfer of one’s property and many
such things. In other words, the possession of this identity card would be in
the citizen’s own interest and therefore he/she would make sure that this was
applied for in the proper format.
Because the present voter ID card, in various stages of preparation in
different States, is not a multipurpose card, whatever number of cards have
been issued, further issue of the same should be put on a hold until these are
redesigned in the fashion outlined below. After all the remaining cards are
issued, the older ones should also be replaced over a period of time.
7.9 This ID card
apart from all necessary personal details should list one visible
identification mark. This is necessary as with age the photo can look very
different after a while. If it is an old photograph then sometimes the likeness
is missing. Also a visible identification mark is difficult to reproduce even
if the photograph is fraudulently changed on the card. For an electorate of
about 600 million on an all-India basis, an automated and well-designed online
system, broken down to district level, can be created without much hassle. As already stated, the basic work in this
direction has been done by the EC, so the learning curve is already favourable.
It just needs to be extended to the lowest level constituency. PRIs and local
post offices should be involved to help with the creation and distribution of
these IDs, but only to help not to control. When the ID is right at the
Panchayat level, it will be by design, right for each higher constituency.
7.10 But, of
course, if the card is multipurpose and required compulsorily, the
implemen-tation of this suggestion would also make it obligatory for the
government to create an agency that would do this job in a citizen friendly
way. The idea here is not to create one more agency, which can extort money
from the hapless citizen just to issue him/her the ID card. This is a real
possibility if we have to go by our experience of the last few decades, which
indicates that even for a ration card a citizen, particularly from lower
economic classes, must pay money. It is better to recognize it at the outset
and work our way around it.
This job may be carried out by a
professional agency/ies appointed by the Election Commission. There should be a
pre-qualified consultancy company appointed to draw up specifications in
consultation with the EC. This pre-qualified consultant would also oversee that
the contracted companies do their job efficiently. When private agencies are
doing this job and persons responsible can be held accountable for not doing it
accurately, the results will contain only a tiny percent of acceptable human
errors. The database containing these electoral rolls would be centrally
computerized by the EC (this is already being done) and each Voter would have a
unique bar-coded ID number. The card would also have a number/code that would
indicate the holder’s base constituency e.g., the panchayat level or the
relevant local constituency, leading to the next higher level of constituencies
till the parliamentary constituency. Any change of address would automatically
change everything else except his unique ID Number. This ID number would be for
life and in the long run the best bet against any impersonation. The
consultancy organization and through it the EC would maintain a database of all
polling stations with their respective association to the relevant constituency
i.e., Panchayat, Nagar-Palika, Municipal Corporation, Assembly or
Parliament. With technology available today this can be easily done. There is
enough expertise available within the Election Commission, if we go by their
web site, to guide this exercise. In any case India is in the forefront of
information technology and this is an easy job. The first time exercise may be
a large one but subsequently it will fall into a routine.
7.11 Like in the
USA, the penalty for false declaration for this purpose, or any tampering with
the card or impersonation based on a stolen or fraudulently prepared card
should be heavy with a prompt mandatory prison sentence and a heavy fine. The
law should take this into account. If
it is a multipurpose card, it may even be feasible to charge a small amount for
its issuance, say Rs. 10 in urban areas and Rs. 5 in rural areas. This would
make it partly self-financing and would add personal value leading to voters
taking more care of it rather than keep applying for duplicates.
7.12 The benefits
of a ID card designed in a technology-friendly way are immeasurable because in
future it might even be possible to have hand held devices at each polling
station, beginning with sensitive constituencies straightaway, which would
eliminate any invalid card automatically. This would include any and all
fraudulent duplicates because the ID card numbers will never match. There is already a high degree of
urbanization in India and in all likelihood it will accelerate. All changes of
constituencies for adults, moving from rural to urban areas or from one place
to another as economic opportunities change within regions, will become easy with
every citizen having an ID with a unique number.
7.13 An extension
of the arguments above is that all elections should be under an integra-ted
institutional electoral machinery. The
local level elections have been made the responsibility of State Election
Commissioners. And, different States have different rules of the game. This may
need to be reviewed because in reality the local elections are a lot more
important for cultivating our grassroots democracy. If democracy is subverted at the local level, it is subverted all
the way up. We also need to remember
that it is the local elections that really can make a difference to people’s
lives. The fear of going to polling
stations with an independent mind and free spirit must be eradicated first of
all at this local level. Only then can we remove it for other far removed
elections.
7.14 The impact of
proper electoral rolls and voter ID together with Electronic Voting Machines
(EVMs) will be first felt at the local level and will help create a level playing
ground for State and national elections. It will send a message through the
system that the country takes all electoral exercises seriously, which are by
definition designed to give people voice.
8.1 Introduction
of Electronic Voting Machines in all constituencies to counter the
possibilities of booth capturing may deserve consideration. In case of the sensitive constituencies
particularly, this could be done straightaway.
It is suggested that as a matter
of policy, the use of EVMs should be increased at as rapid a rate as possible.
The movement in this direction has already started as a result of the EC’s
initiative and EVMs are already being used successfully in limited
constituencies and all bye-elections. Any doubts about this technology were
amply removed during the deliberations of the Goswami Committee. Not only were
the EVMs satisfactorily demonstrated to all politician members, several
electronic experts of the Government of India also testified that the machines
could be used at our elections without any misgivings. The advantages of EVMs
in preventing large-scale rigging are quite apparent as the machine locks up
and will permit only one hit every so many seconds. Currently this has been set
at five seconds but it can easily be changed if so required making the process
of even keying in a few bogus votes rather time-consuming at each polling
station. This by itself would prevent rigging on a large-scale due to time
constraints. This is borne out by ground level experience wherever these EVMs
have been used in urban and in rural areas. This also makes counting easy and
non-contestable and theoretically the results could be available within a very
short time if the system wanted to make prompt announcements of the winning
candidates.
9. Booth Capturing and Rigging
9.1 On the
questions of booth capturing, rigging and intimidation of the voters, the
proposals of the Goswami Committee to the effect that EC should be empowered to
take more stringent action should be accepted and implemented in full.
Vide
Representation of People (Amendment) Act, 1996, in addition to returning
officers, observers appointed by the Election Commission of India have also
been empowered to send report to the Election Commission in respect of booth
capturing, etc., and the Election Commission authorized to issue appropriate
directions for countermanding the elections or order repelling in certain
polling stations where booth capturing has taken place, on the basis of such
reports (see Section 20B of R.P. Act, 1951).
Other
proposals of the Committee included the following:
(i) Under section 58A
of the Act, the Election Commission should not only be empowered to countermand
the election and order a fresh election as now provided under the law, but also
should be empowered to declare the earlier poll to be void and order only a
re-poll in the entire constituency, instead of a re-election there, depending
on the nature and seriousness of each case.
(ii) Election Commission may also be empowered to initiate
investigations of booth capturing and other violations of the electoral law
through the Central or State police investigating agency and/or by the
establishment of special courts and/or by appointment of public prosecutors.
To further discourage booth capturing/the EC might consider
having some form of tamper-proof video cameras or surveillance equipment as a
deterrent in sensitive areas. But, if this is done, the punishment to offenders
should be swift and heavy.
10. President’s Rule
during Elections
10.1 Chief
Election Commissioner Shri Gill has for sometime been suggesting that in order
to free the electoral processes from the partisan influence of political
parties in power and the misuse by them of official machinery in the States,
President’s rule should be promulgated over all the States for the duration of
elections, say for about two months.
Shri Gill perhaps has the Bangladesh experience in view. The analogy however is phoney. (1) There is no provision for President’s
rule over India. (2) President’s rule
over the States would in effect mean removal of the elected Government of the
majority party in the State and in its place rule by the Government or the
party or parties in power at the Union level acting through Governors. (3) Nominated Governors acting at the behest
of the Government in Delhi are not likely to be more impartial or above
board. Before any such proposals can
even be considered it may be necessary to review the procedure and criteria for
appointment of Governors. (4) Absolute power in any hands is bad. The proposals of the Chief Election
Commissioner, pushed to their logical conclusions, might imply that – with the
President’s rule imposed during the elections all over the country – the
primacy of the powers of the Chief Election Commissioner, though technically
confined to election process, might tend towards its own ascendancy in the
governing process. These possible
consequences might have to be contemplated before any such proposal is
accepted. However, to the extent of
making the power of superintendence of the Chief Election Commissioner
effective to ensure the purity of the electoral process, appropriate
alternative proposals need to be examined.
11.1 Campaigns which
are crafted to create or exacerbate tensions between communities and/or to
incite feelings of hatred on the basis of caste , community, religion, race, or
language attract disqualification at present but effective implementation of
laws is lacking. This deserves the highest degree of attention and in addition
these offences should be punishable with mandatory imprisonment for three years
instead of discretionary as currently provided under section 125 of
Representation of the People Act, 1951. This should be within the powers of
special courts for election petitions proposed later in this paper. However, if
the suggestion to only have winning candidates on the basis of 50%+1 vote also
made elsewhere in this paper is accepted,
candidates and political parties would have to broaden their appeal and
in their own self-interest their agenda and rhetoric will change.
12.1 To curb
muscle power, it is important that fire-arms are not allowed to be carried on
polling days anywhere in the vicinity of the polling stations. Not only the
present law in this respect which makes it a cognizable offence needs to be
effectively implemented, but imprisonment in this case should be made mandatory
and stiff. The Election Commission should increase the number of observers in
sensitive constituencies and take rapid action on their request under Section
20B of the RPA as amended in 1996.
13. Criminalisation
of the electoral process
13.1 “A candidate contesting in Bihar has 174
criminal cases against him and he is on the most wanted list not only in Bihar
but in Delhi, Mumbai and Uttar Pradesh. Yet flouting all rules and regulations
he is openly campaigning” …… “a sitting MLA is now contesting as an independent
while he is still serving a life term in jail. He was convicted in a kidnapping
case but an appeal has been entered in the high court.” (Times of India,
11.2.2000).
The above is just one of the many “no longer shocking”
quotations from a newspaper with regard to well-known criminals contesting elections
with impunity. Due to reasons that need not be listed here, politics and
therefore elections in India have progressively attracted criminal elements.
During the election period, particularly in the states of Bihar and U.P.,
newspapers are usually full of information about the number of criminals in the
field sponsored by every party. It is a
disgrace for the country that several hardened criminals who may have many
cases of murder, rape and dacoity against them are actually occupying the seats
in the highest representative forums of this country namely the State
assemblies and the Lok Sabha.
13.2 Vohra Committee appointed by the Government had stated in
strong terms that the nexus between crime syndicates and political
personalities was very deep. According to the CBI report to the Vohra
Committee: “all over India, crime syndicates have become a law unto
themselves.” ..... “Even in the smaller towns and rural areas, muscle-men have
become the order of the day. Hired
assassins have become part of these organizations. The nexus between the criminal gangs, police, bureaucracy and
politicians has come out clearly in various parts of the country. The existing criminal justice system, which
was essentially designed to deal with the individual offences/crimes, is unable
to deal with the activities of the Mafia; the provisions of law in regard to
economic offences are weak; there are insurmountable legal difficulties in
attaching/confiscation of the property acquired through Mafia activities”. The
committee quoted other agencies to state that the Mafia network is “virtually
running a parallel government, pushing the State apparatus into irrelevance.”
The report also says “in certain States like Bihar, Haryana and Uttar Pradesh,
these gangs enjoy the patronage of local politicians cutting across party lines
and the protection of the functionaries. Some political leaders become the
leaders of these gangs/armed senas and
over the years get themselves elected to local bodies, State assemblies and
national parliament. Resultantly, such elements have acquired considerable
political clout seriously jeopardizing the smooth functioning of the
administration and the safety of life and property of the common man causing a
sense of despair and alienation among people.”
13.3 The visible presence of many criminals is in fact a very large
factor in the loss of legitimacy for politicians as a whole. This is also
extremely dangerous for the country because apart from distorting the political
culture of the country, criminal elements progressively get to influence
leadership and governance. The spectacular success of some criminals in
politics invites emulation. The signal to the society by such a process is that
it is acceptable to muscle your way through everything because in the last
analysis the system rewards you. A petty dada
soon becomes a respectable and feared representative of the people. And many
become ministers with power to distribute spoils and parade themselves as
rulers. It is a surefire recipe for long-term disaster.
13.4 Although the exact numbers of criminals in political positions
are not known, the EC at one time was reported to have stated that the number
of candidates with criminal records who contested Lok Sabha 1998 elections was
around 1500 out of a total of 13952. They were under prosecution for crimes
like murder, dacoity, rape, theft and extortion. As many as 820 of these 1500,
came from Bihar and U.P. If the objective of this public statement was to even
moderately influence political parties to stay away from criminals, the EC
failed because parties simply shrugged off this information and continued to
induct criminals. Of course, the raison
d´être being that it was these criminals who the parties thought could win
the election for them.
13.5 From the side
of the administration there has been a half-hearted attempt to stop these
criminals because of the fact that all political parties use these criminals in
their attempt to ensure themselves a certain number of seats in the State
Legislative Assemblies as well as in the Lok Sabha. But this issue really needs to be tackled head-on. The Law
Commission suggests unambiguously that if charges relating to certain crimes
have been framed by a competent court against a person then this particular
person should not be permitted to contest elections. This suggestion may pose
problems of misuse but it needs to be considered, may be with some
modifications.
13.6 There is a
school of thought that fears that such a regulation might be used against
innocent candidates who are perceived to be a threat to those in power. Also,
fears are expressed that such regulations might be used against dalits and
members of other socially backward and poor communities or against political
workers participating in movements and agitations. Given India’s record of
corruption, it is conceivable that false framing of charges may happen.
Therefore, a suggestion of having special electoral courts set up by the
Election Commission for pronouncing summary decisions in regard to eligibility
may be considered. If there is a candidate against whom charges have been
framed by the police and he wishes to contest an election, he may take the
matter to this special electoral court. The decision need have no bearing on
the actual case, which as we know might go on for years. This may help to keep
habitual and hardened criminals away. But, the suggestion merits further
discussion from a judicial point of view.
13.7 In 1997, The
EC issued an order that candidates for election to State Assemblies and
Parliament need to submit an affidavit about their convictions in cases covered
by Section 8 of the Representation of the People Act 1951. The EC held that
even if the trial court had convicted the candidate, this was enough to attract
disqualification. But there are other issues. The Election Commission wrote a
letter to the Prime Minister in September 1997 that there were grave
incongruities in the existing provisions of sub-sections (1), (2) and (3) of
the said Section 8 of the Representation of the People Act, 1951, illustrating
the case of a rapist, convicted and sentenced to ten years imprisonment, being
disqualified only for six years under sub-section (1) and being free to contest
elections, even while in prison serving the last four years of his sentence.
The Commission had suggested that the law may be simplified by amending said
Section 8 to provide that whoever is convicted of any offence by a Court of law
and sentenced to imprisonment for six months or more should be debarred from
contesting elections, for a period totalling the sentence imposed plus an
additional six years. This suggestion has been supported by several other
organisations and concerned citizens and therefore merits full consideration.
13.8 Currently, if
a member of any House is convicted, there is no action for three months and if
the case goes for an appeal within this time, then no action is taken till the
appeal is disposed off. This may not be very justified. If an elected representative gets convicted
on charges related to specific crimes, he should be required to withdraw until
he is cleared. It is also worth
considering that when political parties are seen to abet criminalization by
fielding criminals, there should be some provisions to enable action against
them including their derecognition.
14. Election
expenditure – the money power
14.1 This is one
of the most critical problems facing the Indian electoral system. As against
the limits prescribed by our electoral laws, the campaign expenditure by
candidates is in the range of about twenty to thirty times the said limits. As
a result contesting elections is becoming a very costly affair, which keeps
many good candidates out and it also creates a high degree of compulsion for
corruption in the political arena. This has progressively polluted our entire
system. Corruption, because it erodes performance, becomes one of the leading
reasons for non-performance and compromised governance in the country.
14.2 The sources of some of the election funds
are believed to be unaccounted criminal money in return for protection,
unaccounted funds from business groups who expect a high return on this
investment, kickbacks or commissions on contracts etc. No matter how we look at
it, citizens are directly affected by it because apart from compromised
governance, the huge money spent on elections pushes up the cost of everything
in the country. It also leads to
unbridled corruption and the consequences of wide spread corruption are even
more serious than many imagine. When people find progressively that they are
trapped in a corrupt environment of no hope, this will provide a possible
burning ground that can ignite given a spark. Electoral compulsions for funds
are really the foundation of this whole super structure of corruption.
14.3 In the ultimate analysis, the reality
seems to be that political parties and serious contenders have a single point
agenda “to win” and then to remain in power. Everything else, whether issues of
good governance or even long term national interest, come second. Once we
accept this, we realize that political parties as well as candidates will take
all those actions that contribute to this objective. Both political parties and
political candidates, in order to win, will do all they can and all that the system
will permit them to do. Political
parties and candidates have found that by spending money on intermediaries to
buy votes, by distributing liquor and other goodies, by directly bribing
officials, and by patronizing, through the spending of money, most rowdies and
“goondas” of the locality, their chances to win become better. This is what has
become the norm therefore. They do this, however, because the system, directly
or indirectly, permits them to collect a far greater sum of money if they win
the election. Therefore, the money spent on elections is like a mandatory
investment. In the eventual analysis, costs can only be controlled if we
control the way in which politicians can generate money through corrupt means
once they are in power. If this is not entirely possible within the current
scenario, then whatever rules and regulations we bring about can only have a
limited influence toward achievement of this objective.
14.4 The question
is how do we go about reducing the role that money can play? The answer to this
one is not easy. The fact is that political parties need tons of funds for
political activity, which includes campaigning for elections. Political parties should have legitimate
sources of these funds. If they don't have these funds legitimately and then if
(and this is the critical part) the
system permits them to do so, they will find illegitimate funds. This is what has been happening in India and
with illegitimate funding the spending has also been comparatively limitless.
One party started it but others soon caught on. However, it is also true that if the system did not permit the
kind of spending that is happening, the various candidates would have found
their equilibrium at a much lower level.
14.5 Various attempts have been made in the
past to regulate this expense; as well as various suggestions keep coming
through in this regard. The primary suggestions are two-fold: first set relates
to fixing “more reasonable limits” for campaign expenditure. The argument is
that election campaigning costs money. It is best for us to recognize this and
estimate what would be reasonable costs taking everything into account – the
need for public meetings, handouts, election workers, agents, posters,
vehicles, staff movement, loudspeakers and microphones and communications etc.
If, the argument goes, we fix “reasonable” limits for all of this, then the
candidates would not have to spend more than these amounts that are permitted.
There would be no need for illegal spending. This suggestion has been made by
all - the Goswami Committee, the Indrajit Gupta Committee, the Law Commission
as well as a number of other organisations. In fact, the limits have been
raised to Rs.15,00,000 for most Lok Sabha (compared to Rs.4,50,000 before) and
Rs.6,00,000 (compared to 1,50,000 before) for most assembly constituencies.
These limits also may need to be continuously under review by the Election
Commission and perhaps be linked to the cost of living index. But, the basic
question will always arise that if a Lok Sabha election costs upwards of a
crore then how does fixing the limit at 15 lakhs help? And in any case where is
even this 15 lakhs going to come from? That means there must be an active plan
to reduce the cost of election to this magical figure of 15 lakhs. But clearly
an approach such as this has to be also backed up by a strong deterrent against
overstepping the limits sanctioned. On this there is not much action.
14.6 The other problem is that the present
rules have a significant loophole in the shape of explanation 1 to section
77(1) of the Representation of the People Act 1951, under which the amounts
spent by persons other than the candidate and his agent themselves, are not
counted in his election expenses. This means that all extra expenditure, even when
known and proven, can be shown to have been incurred by the party or by any
friends and it remains outside of the enforceable limits. Even the Supreme
Court has commented that this needed to be changed. However, this remains as it
was. This anomaly should be immediately removed. For, in any case the returns of election expenses filed now are
almost invariably false and there is hardly any way the prescribed limits can
be really enforced even though the Supreme Court has laid on the candidate the
onus to prove that the extra expenditure was not from his funds.
The second
set of suggestions is that political parties as well as individual candidates
should be subject to a proper audit of the amounts they receive and spend. At
the end of the election each candidate should submit an audited statement of
receipts and expenses, head-wise. Any violation or misreporting should be dealt
with strongly. These two suggestions have also received agreement from most
activists and non-governmental organisations.
Most persons recommend that these be implemented.
14.7 The Indrajit Gupta Committee on State
Funding of Elections portrays a third set of suggestions. According to them,
there should be at least a partial though non-cash state funding of elections.
Theoretically, at least, it means that the candidates and parties have to spend
less for campaigning with the state taking care of some aspects. Whatever levels of permissible expenditure
we may fix, unless we have a) a reasonably foolproof method of enforcing these
and b) to take action when these are violated, these exercises may turn out to
be meaningless. At the current moment we do not seem to have any foolproof
mechanism. Also for obvious reasons, the political will to enforce this appears
to be missing. Regarding partial state funding, till such time that there is an
effective systemic acceptance of full audit of party funds including a full
audit of campaign funds, deletion of explanation 1 to section 77(1) of the
Representation of People Act 1951, a foolproof mechanism to deter expenditure
violations, and until the government is convinced that these improvements have
been institutionalised and are no longer being breached, the question of state
funding should not even arise. The Law Commission in their report have voiced
similar sentiments. To quote them, “We are, therefore, of the opinion that the
proposals relating to state funding contained in the Indrajit Gupta Committee
Report should be implemented only after or simultaneously with the
implementation of the provisions contained in this report relating to political
parties viz., deletion of Explanation 1 to Section 77, maintenance of accounts
and their submission etc., and the provisions governing the functioning of
political parties contained in chapters
I and II of Part IV and chapter I of Part III. The funding even if partial,
should never be resorted to unless the other provisions mentioned aforesaid are
implemented lest the very idea may prove counter-productive and may defeat the
very object underlying the idea of state funding of elections.” If any state funding is permitted without
the above it simply means an additional burden on the state exchequer and the
taxpayers. And, for no particular public or systemic benefit whatsoever. Political parties and candidates will
happily accept this additional bounty and still continue to spend whatever else
they perceive is required by the competitive ground realities in order to win
elections. If they get elected, they find ways to repay it many times over.
14.8 Another view on state funding is that a
national election fund should be created out of the consolidated fund of India
in order to specifically subsidize election expenses and more generally to
support legitimate political activity. The suggestion is to pay at the rate of
Rs. 5 or 10 for each vote polled by a political party in any constituency
provided they have polled at least 2 % of the votes cast. It should be
compulsory to get audited for the use of this fund and to spend at least half
of this amount on election campaign. Parties which do not hold internal
elections to its highest decision making body should be ineligible for this
fund. The legitimacy of any such suggestion may be extremely doubtful. In any case the necessary control mechanisms
simply do not exist.
14.9 Sensibly enough, an indirect way of state
funding has in fact already been put into practice in the form of giving
recognized political parties far greater time, free of any charge, on equitable
basis on State owned television to use for their election campaigning at the
time of general elections. But this
does not seem to have helped in reducing any campaign expenditure.
14.10 The situation can be helped only by bringing
transparency in this whole exercise. Transparency fights corruption and deviant
behaviour. We strongly feel that we need to create more and more transparency
in the receipt and spending of election expenses. It is a bit odd that while we
do talk about the expenditure statement from the candidate, we do not ask for the
source of this money.
14.11 The Goswami Committee, for reasons that
appear more political that economic, recommended that there should be a ban on
any corporate or company donations to political parties or political
candidates. The only purpose a recommendation
or rule of this kind serves is that it drives contributions underground. Political parties need money and this money
is going to be generated one way or another.
If through our misguided rules and regulations we block legal and more
transparent sources of funding, we can be totally sure that illegal and
non-transparent channels will immediately open up and substitute for the legal
ones. There may be no justification to
ban corporate contributions including contributions from trade unions and professional
associations. In fact, these should be permitted within the limits that already
exist. The effort should be to make them transparent. Thus, all donations and
contributions should be allowed legally, subject to over all limits, as was the
case prior to 1985. In fact corporate donations should be encouraged by making
them tax exempt within certain limits so that maximum funds become visible. For
example, tax exemptions should be limited to say 25,000 for individuals and
10,00,000 for companies provided that the contributions are made to party funds
and not to individuals. In the case of corporate contributions, the Board of
Directors may approve up to say 1,00,000 and anything over this amount may be
approved by the shareholders. Political funding should be separate head in the
accounts and annual report of the company. This will ensure transparency. The
tax loss to the state should be treated as partial state funding of the
electoral process. The more we push contributions above ground into public eye,
the better control we will have in the end. There may be a clear rule that all
political party accounts, much like the accounts of a public company, should be
published yearly with complete disclosure under pre-determined account heads.
Failure to do so should invite action including de-recognition. Also it may be
made obligatory for campaign expense accounts – both receipts and expenses - of
all candidates being made public in their constituencies. In addition, a full
audit should not only be mandatory but it should be enforced by Election
Commission by appointing a council of at least two auditors say for 10
constituencies each. The funding issue is quite universal and almost everywhere
including U.K. and U.S.A. the debate on this has focused on a high level of
transparency as the only long term effective instrument. It is felt that only
transparency can create a strong public opinion or a possibility of public
censure and as a result have a moderating influence on excessive or devious
political sources or application of funds.
14.12 Transparency means that both, the means of
finance as well as where these have been spent are listed out in an audited
statement. If we can make the
politicians list the sources of their revenue, this can be a damper because
each contribution that they show can be checked back by the income tax
authorities. In the first instance there will be much resistance to this idea
both from the politicians and also from the business. What if they have
contributed to the wrong party? The opponent who wins might make their life
miserable. But over a period of time, this may settle down and the long-term
effect may be beneficial. Also instead
of looking at creating more rules and regulations for monitoring electoral
expenses, there should be a serious attempt at reducing election expenses and
this can be done by perhaps changing the ground rules for electoral campaigns –
partly by encouraging the use of electronic and digital technology to campaign
at state cost and simultaneously by totally and effectively banning other overt
and wasteful tamashaas of campaigning
including the use of auto-traffic to ferry people to election rallies of any
kind. The maximum money is spent by
parties to ensure attendance for their so-called popular rallies. It should be possible to stop this by common
agreement between the political parties/candidates or by law. This apart, the Law Commission and many
others have suggested that some reasonable restrictions should be placed on the
following:
1. Wall
writings
2. Display of
cut-outs, hoardings and banners
3.
Hoisting of flags (except at party officers, public meetings
and other specified places)
4.
Use of more than a specified number of vehicles for election
campaign and for processions
5.
Announcements or publicity by more than a specified number
of moving vehicles
6.
Holding of public meetings beyond the specified hours
7.
Display of posters at places, other than those specified by
the district/electoral authorities.
14.13 It is said that strong penalities are
already provided for violations of expenditure ceilings under the RPA, 1951 and
that most of the above points are generally covered by the model code of
conduct and instructions of E.C. and can be implemented as the EC deems fit. As
long these are the same for all candidates, the ground realities will adjust to
them. But, the costs of elections can
only come down if the people so elected are unable to make money out of their
positions. This would require reform in other and more critical areas.
14.14 All the suggestions relating to rules and
regulations for controlling political funding may come to naught unless we have
an effective mechanism for imposing these rules and an effective ability to
hand over deterrent punishment even leading to complete disqualification in case
of transgression. Regrettably, our experience of fifty years has taught us that
rules and regulations are known more for violation than for compliance. Finally, suggestions for reducing the cost
of elections, for state funding etc. cannot be considered without first
considering reforms in the system and structure of political parties, reduction
in the number of parties, role of independents etc.
(Please see the consultation paper on Political Parties)
15. Disqualification on ground of corrupt practices –
election petitions
15.1 The
Representation of the People’s Act 1951, Section 8A, provides for
disqualifyca-tion on ground of corrupt practices. The current practice is that
once the High Court hands out the judgement on an election petition holding the
candidate guilty of corrupt practices, the case goes to the Secretary of the
concerned State Legislature or the Secretary General Lok Sabha or Rajya Sabha,
as the case may be. It is then forwarded to the President who in turn forwards
it to the EC. Only then does the EC get jurisdiction to tender its opinion to
the President based on which the disqualification order is issued. The EC has
suggested that the President should determine the period of disqualification on
the direct opinion of the EC and avoid the delay currently experienced. This can be done by resorting to the
position before the 1975 amendment to RPA, 1951.
15.2 The High
Court is expected to give the judgement on all election petitions within 6
months, which in itself is quite a long time. In actual practice, there is
quite some delay from the High Court in delivering of these judgements. Out of
a total of 81 election petitions pertaining to the 1998 State Assemblies
elections, 61 (75%) are still pending. In the opinion of many activists and
eminent persons, all election related petitions should be heard by a separate
judicial set up as suggested in the previous section, and these petitions
should be decided within a time bound period by dedicated benches of those
special electoral courts. If so, much of the present in-built delays will be
taken care of. At the moment election petitions can remain pending for years
together. There are many cases where the petition is not decided within the
term of the house after which it has lost most of its significance apart from
having subverted the rules and law in this regard. For example, there were 49
petitions relating to 1996 Lok Sabha. Of these 13 (27%) are still pending four
years later. Of the 52 petitions relating to Lok Sabha 1998, 13 (25%) are
pending as on date. For the Lok Sabha 1999, out of 64 petitions, 62 (97%) are
still pending and 100% of all State Assembly petitions of 1999 are pending, indicating that in about one year
hardly anything has moved. Other data relating both to Lok Sabha and State
Assemblies is provided in the table below:
|
Sr. no. |
Election held |
No. of election petitions filed |
No. of election petitions pending |
Percent
pending |
|
|
|
|
|
|
|
1 |
Lok-Sabha
1999 |
64 |
62 |
96.88% |
|
2 |
Lok-Sabha
1998 |
49 |
13 |
26.53% |
|
3 |
Lok-Sabha
1996 |
52 |
13 |
25.00% |
|
4 |
Lok-Sabha
1991 |
86 |
15 |
17.44% |
|
|
State
Assemblies 2000 |
|
|
|
|
5 |
Bihar 2000 |
12 |
12 |
100.00% |
|
|
State
Assemblies 1999 |
|
|
|
|
6 |
Andhra Pradesh |
25 |
25 |
100.00% |
|
7 |
Karnataka |
26 |
26 |
100.00% |
|
8 |
Maharashtra |
32 |
32 |
100.00% |
|
9 |
Arunachal Pradesh |
2 |
2 |
100.00% |
|
|
State
Assemblies 1998 |
|
|
|
|
10 |
Madhya Pradesh |
42 |
32 |
76.19% |
|
11 |
Rajasthan |
11 |
11 |
100.00% |
|
12 |
Delhi |
4 |
4 |
100.00% |
|
13 |
Meghalaya |
2 |
2 |
100.00% |
|
14 |
Himachal Pradesh |
10 |
5 |
50.00% |
|
15 |
Gujarat |
12 |
7 |
58.33% |
|
|
State
Assemblies 1996 |
|
|
|
|
16 |
Assam |
11 |
4 |
36.36% |
|
17 |
Haryana |
20 |
5 |
25.00% |
|
18 |
Kerala |
17 |
11 |
64.71% |
|
19 |
Tamilnadu |
8 |
6 |
75.00% |
|
20 |
Pondicherry |
3 |
3 |
100.00% |
|
21 |
West Bengal |
22 |
17 |
77.27% |
|
|
|
|
|
|
Source: Election
Commission records
16. The Question Of Representation And Winning On
Minority Vote
16.1 The multiplicity of political parties, combined with our
Westminster based first-past-the-post system results in a majority of
legislators and parliamentarians getting elected on a minority vote. In other
words, they usually win by obtaining less than 50% of the votes cast i.e.
with more votes cast against them than in their favour. There are States where 85% to 90% of the
legislators have won on a minority vote (i.e., by having obtained less
than 50% of the votes cast). In many cases candidates have won by getting less
than 20% of the total votes cast in their constituency. To quote a few
examples: in Uttar Pradesh, over the last three assembly elections an average
of only 11% legislators won on a majority vote. In other words, almost 90%
legislators won on a minority vote. The same proportion for Bihar is 18% and
82%; for Madhya Pradesh it is 40% and 60%; for Assam 29% and 71% and for
Karnataka 31% and 69%. Only Tamilnadu displays a different characteristic where
a large proportion of legislators have won on a majority vote –1991 - 90%, 1985
- 83%.
At the national level, the proportion of MPs who have won on
a minority vote is over 67% at an average for the last three Lok Sabha
elections. Three years data for Lok Sabha and for some States is appended. It
has taken into account at least three recent elections for a number of sample
States which give a fairly representative picture on an all-India basis. This
means that at an average, at the very least, two-thirds of our legislators all
over India win on the basis of a minority vote.
16.2 In the first
place, in a hugely divergent society such as ours, this has created a vested
interest for political parties to progressively appeal to narrower loyalties.
Clearly, if a candidate can win on less than one-third share of the votes
polled, he does not need to generate a wider appeal. In the long-term, this has
even more serious consequences for India, as the existing cleavages will only
deepen thus dividing the society further. We have certainly seen it on the
communal and caste fronts. By making caste and community a factor in political
power play, we have made the divide even wider and deeper in the Indian society
and made it nearly impossible for Babasaheb Dr. Ambedkar’s vision and wish of a
casteless and classless society ever coming true.
Secondly, given that we have territorial constituencies from
which voters elect a representative, it is strange that most people of the
constituency do not vote for a particular candidate yet it is he who becomes
their representative. A question can arise: whose representatives are such
candidates when a majority of voters did not want them?
16.3 The seriousness of this issue has
generated suggestions from many quarters focused primarily on two possibilities. The first follows the list system somewhat along the
lines of the German Bundestag whereby recognized political parties, in addition
to winning seats on the FPTP system, get a further number of seats based on the
number of votes polled by them. In the second approach many eminent persons
have suggested that we should only have representatives who win on the basis of
50%+1 vote. If, in the first round, nobody gets over 50%, then there should be
a run-off contest between the top two candidates so that one of them will win
on the basis of over 50% of the votes polled.
To save on the cost and trouble of a run-off, another suggestion made is
that of each voter being asked to give an alternative vote so that in case of
no one getting 50+ votes in the first count, the alternative votes get
counted. With EVMs and technology
available now counting of alternative votes need cause no delay or other
problem.
16.4 One major
change proposed by the Law Commission was the “list system” in addition to the
“first-past-the-post-system” being followed presently. The objective was to
generate better representation by providing seats to recognized political
parties in proportion to the votes obtained by them. It was suggested that the
number of MPs in Lok Sabha should be increased by 25% and this additional
number of MPs should be made up of candidates pre-nominated by political
parties and the number should be in accordance with their share of the votes
polled. They suggested that the strength of the Lok Sabha should be increased
to 688, with about 138 candidates nominated on the basis of a list to be
provided by various political parties.
The Law Commission suggested that political parties that secured less
than 5% of the valid votes cast in the Parliament or Legislative Assembly
elections would not be entitled to any seat, based on their list system, in
that legislature. It was also suggested that while bigger States would
constitute a territorial unit for this purpose, the smaller States should
either be clubbed with a bigger State or they should all be clubbed together
for forming a territorial unit for elections to the Lok Sabha. Another variant
of this suggestion was that voters be asked to vote on two ballot papers. One
for the candidates and the other for one of the political parties. The votes polled
by political parties would be considered for selecting the candidates on
pre-nominated lists.
16.5 In whatever
manner perceived, such suggestions of the Law Commission may be open to serious
objection both on grounds of principle and practicability. Adoption of the partial list system would
create two very unhealthy long-term trends in a multi-faceted society like
India. In the first place, it would
create even more difficulties in providing a stable government. Proportional
representation is famous for creating non-majority legislatures where
coalitions are a rule rather than an exception. This has serious implications
for governance in India, as already borne out by our experience of the past few
years. Because each coalition partner wields negative influence, the government
may have to ignore even flagrant abuse of political positions by coalition
partners. The idea of the “List System” runs against the grain of attempting to
provide stability in the government because with many parties present with
small but sometimes determining numbers it potentially enhances horse-trading
to create artificial majorities for forming and maintaining governments. Weak
governance results. Also, the
suggestion would create two classes of members of Parliament in Lok Sabha –
those elected directly by the people and those coming through party lists.
16.6 There is an
interesting recent quote from Sir Peter Lloyd, MP from a House of Commons
debate on proportional representation (2 June 1998), “When I visited the Netherlands
earlier this year…some of our Dutch hosts said that they had heard that the UK
was changing to PR. They could not understand why we might want to abandon a
system that, in their view, had produced great governmental stability. They
obviously admired the clarity and the personal involvement of the single member
constituency system, which they do not have.” He went on to say that “the
additional member system, which produces two classes of members of Parliament,
one with a constituency link and the other with none, is presumably favoured by
the party hierarchy.” There may be a message here for India.
16.7 Secondly and
even more important, elections should be used to unite our very divided
society, which is progressively getting more divided because individual players
are constantly mobilizing support based on narrow loyalties. The idea of any
form of proportional representation will aid in the divisive tendencies, as it
will now pay the politician to appeal to a small group if he feels that he has
a good chance of getting their vote en-bloc. The moment political parties are
given the opportunity to have representatives in the Lok Sabha or the State
assemblies based only on the number of votes that they obtain, it takes away
the incentive to make their electoral appeal broader. Also, the parties which
can have the resources to put up a large number of candidates even in areas
where they do not hope to win, will have a distinct advantage under any scheme
of additional seats through list system.
It will then pay the political party to address itself to narrow
interests because that may be the only safe way for it to ensure itself a few
seats in the house. It should never be enough in such a diverse society as
India to maximize support among a narrow grouping and then rely on being needed
as a part of a coalition government. On the contrary a party must appeal
broadly across the electorate. The Law
Commission recognized this and stated that this could aid and enhance caste-based
politics, yet it made a slightly toned down recommendation that instead of
having 50% seats on the basis of list system, let us have 25%. The smaller
percentage, however, does not take away from the negative influence that this
policy is likely to create.
16.8 Proportional
representation of this kind assumes a well educated and aware electorate and a
type of matured political behaviour from both the electorate and the elected
representatives and can only work for good governance if there are very strong
conventions of behaviour that cannot be transgressed at all. India is really
very far from it at the moment. This therefore, can only be left for posterity
to decide when the time comes, if ever.
16.9 Several eminent persons, including the distinguished former
President Shri R Venkataraman have therefore opposed this suggestion. They have
however proposed that the option of
electing only candidates with over 50% of the votes cast in their favour is a
far better way to achieve the same objective of better representation. Here,
each legislator is elected on a majority vote and can therefore be said to be a
representative of a majority from his constituency. The Law Commission, who
evaluated this suggestion in their report albeit with the inclusion of a
“negative vote” did comment in their report that this was an excellent
suggestion but they felt that there might be insurmountable practical
difficulties with implementing it because of the run-off election that will
happen at least in 2/3rd of the cases at present. The Election Commission however, does not
feel so. The Chief Election Commissioner, has stated that he had himself made
this suggestion of 50%+1 vote on a number of occasions and he confirmed that
the daunting task of run-off elections
can be managed by the Election Commission. Actually, the run-off vote is like a
re-poll in certain constituencies. There is no revision of electoral rolls, no
fresh nominations, no fresh campaigning or the like. It is the same polling
booth with the same administration and therefore it should not be complicated.
16.10 A serious effort at implementing this suggestion should be
possible. There are two substantial
advantages of following the policy of 50%+1 vote. On the one hand, it resolves
the problem of representation. On the other, it also makes it in the
self-interest of various political parties to widen their appeal to the
electorate. It can help push political rhetoric in a direction that the
mobilizing language might take on comparative “universal” tones as opposed to
“sectoral” tones of the present day. Currently the possibility of winning on a
minority of votes polled has encouraged parties to function on caste, communal
or other sectoral bases. When such parties get into positions of power, they
also follow a sectoral agenda. With the need to be more broad based in their
appeal, issues that have to do with governance rather than with cleavages and
narrow identities might start to surface in the vocabulary of the politicians.
On this count alone it may be considered worth pursuing.
16.11 Of course, the
EC would have to find a practical way of handling the run-off election without
permitting any distortions. With EVMs we can easily plan on a two-day election
all over the country. The second day may be for run-offs. This means that at
the end of the day, through the use of computer technology, the constituency
will know whether someone has won by getting over 50% or that it is a run-off.
If it is the latter the announcement would mention the names of the two
candidates. The final results can be announced with all others. No doubt, there
will be initial problems in this, but with 50 years of experience with us, we
are in a much better position today than we were ever before, to find a way to
implement this as well as to anticipate what intended and unintended
consequences might follow this policy.
The positive aspect of this will follow if all goes as planned. But what
if it does not? Let us, therefore, attempt to look at the possible unintended
results of this policy.
16.12 The main
question might be that once a run-off is decided leaving only two candidates in
the field, would it not lead to even more attempts at rigging and/or violence
because now it would be a matter of do or die for each of these two candidates?
Given our experience with elections and the political culture in which these
have operated, yes, this may be possible. If not muscle
power, it is also conceivable that yet bigger amount of money might change
hands to get intermediaries to bring block votes to the polling station. This is
also may be a possible scenario. It is
also possible that for the run-off election the voter turn out will be lower
due partly to election fatigue and mainly to the fact that one of the
candidates may use muscle power to keep unfriendly voters away.
16.13 If the
suggestion of holding election on two consecutive days is accepted (the second
day being for run-offs), there will simply not be time enough to generate fresh
violence or to indulge in other malpractices like horse trading and using money
power to buy votes. As for voter turn
out, battle lines being more sharply drawn between only two contestants, it is
equally likely that the turn out may be better. But, the administration at
least when the policy is first introduced, would of course have to be prepared
to make special arrangements at sensitive constituencies.
16.14 If the two-day
election plan is difficult or not acceptable, there should in any case not be a
long gap between the main election and the run-off election. No further
campaigning should be permitted. The less the time available between the two
polls, the less are the chances for the candidates to create hurdles in the way
of the system. Secondly, and more
importantly, any electoral offence in the run-off should carry a higher penalty
for the candidate than the original election. The possibility of
disqualification and perhaps a mandatory hefty imprisonment and a hefty fine,
should loom large on the horizon for both the finalists.
16.15 We would do
well to remember that if implemented properly, this suggestion has the
potential of forcing political parties and candidates to think of strategies to
obtain over 50% votes in the first election itself. This will discourage the
non-serious candidates and fringe players from jumping in the fray and it will
encourage making of pre-election agreements between parties and if viewed
together with the suggestions on defection, this should lead to moderation and
stability. The proposal of run-off elections may push up the cost of elections
marginally only. The mobilization is
one time and when EVMs are used, there are no ballot papers to print
either. Also, while on the first
occasion, there may be many run offs, with each successive election the number
may be reduced to only a few.
17.1 Some scholars
and concerned citizens have suggested that voting should be made a citizenship
obligation. Voting is compulsory in
countries like Australia, Argentina, Belgium, Bolivia, Brazil, Chile, Costa
Rica, Cyprus, Ecuador, El Salvador, Finland, Greece, Gutemala, Guinea,
Honduras, North Korea, Luxembourg, Madagascar, Mexico, Morocco, Panama,
Paraguay, Peru, Phillipines, Singapore, Turkey, Uruguay, Venezuela and
others. Interestingly, in Egypt, voting
is compulsory for men only. There may
be some very strong arguments in favour of making voting compulsory in India
for all men and women. But, in our
situation, there may be several management and legal enforceability problems
and difficult questions of penalty for not voting, Perhaps, we could think along the lines of providing some
incentives to help increase the electoral turnout, particularly of sections
that are now not voting. For example, we could consider a tax deductible
expense of say Rs. 2500. Or this could be linked to the schemes of tax rebate
on total amount of tax payable by the person subject to some pre-determined
limits. Or for non tax-payers other small incentives or token benefits in the
matter of rations, speed of granting certain licenses, passports, etc. could be
considered. The revenue lost as a result could be treated as partial state
funding of the electoral process. Such policies might help push electoral
turnout up. An additional counterfoil in the voting paper could be given to the
voter as his certificate of voting. It
is felt these suggestions for increasing popular participation in the
democratic exercise of elections are certainly worth debating.
17.2 Arguably, the
above would help to bring more voters out to the polling booths. The process of
voting would meanwhile be simplified by the introduction of EVMs and in the
long run it would be possible to have, particularly for sensitive
constituencies, mobile polling stations with EVMs that can reach the voter
rather than the voter reaching them.
18. Negative Voting
18.1 Some
eminent persons like the Vice-President Shri Krishna Kant have been suggesting
for many years now that the voters should have a choice to say ‘no’ to all the
candidates on the voting paper if they find all of them to be undesirable. This can be done by adding a column in the
voting paper saying ‘none of the above’.
The Law Commission has also advocated provision of such a negative
vote. The proposal has to be
accompanied by a provision that if a certain specified percentage of votes cast
is that of negative votes then the election would be void.
With different parties putting up candidates only on
grounds of their winning ability, the result sometimes is that all the
prominent candidates in a constituency are known criminals or undesirable
characters. In this context, the
suggestion of a negative or ‘none of the above’ vote does make lot of sense
intellectually and as a matter of principle.
It may however not at all be a practicable proposition for several
reasons: (1) The proposal is negative in character. (2) Maximum effort and
money of every candidate has to be devoted to getting the voters to the polling
booth to vote for him. Thus, as it is,
those who come come only to vote for someone.
It may be unrealistic to expect a reasonable percentage of voters to
come simply to say that they do not wish to vote for any of the
candidates. (3) It may require a
massive and costly movement to motivate people to stand in queues to cast
negative votes. Also, if such a
movement can be mounted, those doing it can as well do the more positive thing
of putting up a candidate they consider desirable. (4) Where some candidates win with 20, 15 or even less percentage
of votes cast, it would not be easy to decide what percentage in the negative
vote category should suffice to invalidate the election. (5) It would hardly be easy for the largely
illiterate Indian electorate to understand the concept of negative vote.
19. Defections and The Tenth Schedule
19.1 The question
of defections has now haunted the Indian polity for over three decades. Between
the fourth and the fifth general elections in 1967 and 1972, from among the
4000 odd members of the Lok Sabha and the Legislative Assemblies in the States
and the Union Territories, there were nearly 2000 cases of defection and
counter-defection. By the end of March,
1971 approximately 50% of the legislators had changed their party affiliations
and several of them did it more than once – some of them as many as five times.
One MLA was found to have defected five times to be a minister for only five
days. Defections were always rewarded thereby establishing the fact that these
“floor crossings” were engineered and bought. This was sought to be eliminated
by the Tenth Schedule but all that has happened that while individual
defections have become rare, en bloc defections are permitted, promoted
and are amply rewarded. Therefore, despite Tenth Schedule, or because of it,
countless defections have taken place without incurring any
disqualification. In fact, on an
average more defections per year took place after the Anti-defection Law (10th
Schedule) came into force than ever earlier.
19.2 What has been
even more disconcerting is that some of the Speakers have tended to act in a
partisan manner and without a proper appreciation – deliberate or otherwise –
of the provisions of the Tenth Schedule. Almost everyone dealing with this
subject agrees that defections flout people’s mandate and cannot and should not
be permitted, neither singly nor in a group. The fact is that most candidates
get elected on the basis of the party that has given them a ticket. Defections
allow these candidates to theoretically go to the polar opposite of this party,
which is not the basis on which people elected them. Simply because there is no
accountability vis-à-vis the people, such a practice continues unabated.
Defections encourage corruption of the highest level. Defectors usually are
gifted with political positions and other such perquisites so openly that it
really makes a mockery of our democracy.
19.3 The rule
should be clear and unambiguous. If a candidate has an insurmountable problem with his party he should resign and
go back to the people for a fresh mandate. He cannot be permitted to use the
old mandate to “live-in” with new partners on whose ticket he might even have
forfeited his deposit. This is a negative power, used only for pelf and our
legislators and parliamentarians can and should do without it. There should be
no debate and no discretion for the Speaker or anyone else to interpret
it. The disqualification for a defector
should be automatic and immediate and his vote should be annulled. If votes are not annulled, the defectors may
succeed in toppling or forming governments before they are disqualified.
In the same vein, just to ensure
that the party machinery does not misuse this power either, what constitutes
defection should be re-defined. At the moment any disagreement with the party
organisation and a vote against party directive on any issue can subject a legislator to disqualification under the
Tenth Schedule. This is not what should happen. The whip should only be
applicable for any matter where the life of the government is in danger and not
to all voting as at present under the Tenth Schedule. In other words except on
voting concerning a finance bill, or confidence motion or no-confidence motion,
whip should not apply from the point of view of anti-defection law. The
question of defection will then only arise when a legislator actually changes
allegiance or defies party directives on critical issues of affecting its life.
19.4 Some
activists and scholars still accept the idea of a split. The argument is that
in view of the lack of internal democracy in political parties splits should
not be barred. This school of thought wants to introduce what in their view
might be better regulations to monitor splits. But even here there is unanimity
that defecting members should not be permitted any spoils of office. It is
suggested that the members who split from their parent party shall not be
eligible for any ministerial or other position at least for a period of one or
two years or until they get reelected. However, conceptually splits are wrong.
Party members can always split if ideologically there is a big disagreement, or
really for any other reason, but they must go back to the people for a fresh
mandate if they are members of any legislature at that time. Permitting the
concept of splits will ensure that some indiscreet politicians will find a way
to work around the regulations. The Law Commission had also felt that when a
person becomes a member of a political party, accepts its ticket and contests
and succeeds on that ticket, he renders himself subject to the discipline of
this party. Therefore, the concept of “splits”
as provided in the Tenth Schedule should be done away with. Alternatively, there may be every case for
our debating the repeal of the anti-defection law which has fulfilled no
objective and served no purpose except to legalise and institutionalize group
defections.
20. Delimitation
of Constituencies
20.1 Since 1971,
the number of seats in the Lok-Sabha allocated to different States was frozen
upto the year 2000. No fresh
delimitation commission has been formed. The Law Commission deliberated on this
issue but was persuaded that a fresh delimitation exercise for Lok Sabha would
place those States, particularly the Southern States, which had carried out a
successful family planning programme and had curbed the rate of growth of
population, at a considerable disadvantage compared to the others. Indeed it
would appear to reward the States with poor population control by granting them
a bigger representation in the parliament.
20.2 Of course, freezing the delimitation exercise goes against the
grain of one-man one vote because the value of the vote becomes unequal. For
example the average Lok Sabha constituency in Rajasthan in 1991 consisted of
1,060,540 voters compared to 769,046 of Goa and only 31,665 at the bottom of
the table for Lakshwadweep. Within States the oft quoted example is that Outer
Delhi Lok Sabha constituency has a number of over 29,00,000 voters whereas
Chandni Chowk parliamentary constituency has only about 3,68,000 – about 13% of
the former. Clearly the value of an individual vote in Outer Delhi is only
about 1/8th of Chandni Chowk. There are many similar cases all over
the country.
There is no general agreement on this issue. The opinion is
divided so far as inter-State delimitation is concerned. Some have agreed that
fresh delimitation between States should be frozen; others argue that this goes
against the grain of our Constitution. In any case this exercise has already
been frozen for another 10 or 25 years
according to newspaper reports.
20.3 However,
there is no difference of opinion on intra-State delimitation exercise. But
even this has remained pending. The EC had at one time suggested that it was
well qualified to do this and was also generally accepted to be a neutral and
impartial body, but successive governments have not taken up this matter. At
least within a State this anomaly should be removed and a decision taken to
authorize the EC to come up with its proposals. The delimitation exercise is not only important for Lok Sabha constituencies
but equally so for assembly constituencies. This could perhaps be done by the
Election Commission in coordination with the State Election Commissioners in a
visibly neutral fashion.
21. Problems of Instability, Hung Parliament and
Assemblies and
their relation to the electoral laws and processes.
21.1 The last few
decades have seen a great deal of political instability in India. During the
last ten years there have been seven governments at the Union level. Being
minority governments, these have been unable to provide stable administration
and stable policies. The reasons are not far to find. We adopted the
Westminster model of FPTP system of elections but forgot that it works mainly
in communion with a two par;ty system or a limited number of parties. Even
today there are only two major political parties in the UK. In our case,
politicization at ground level coupled with a highly fragmented society, has
given rise to a large number of political parties, each one existing not on a
different ideology or economic programme, but on the basis of having nursed a
narrow parochial, mostly caste or religion based, identity for itself and its
band of followers. Even this support is usually earned not by doing some
positive work for the concerned group but negatively by bad-mouthing and demeaning
others and all the time pitting one group against the other. The political
system and the politicization of caste and communal identities have proved to
be very divisive of society and disruptive of the national ethos. It has become increasingly difficult to get
a workable majority to form a government and make a success of coalition
arrangements.
21.2 This has had
very negative repercussions on the quality of governance because to cobble up a
workable majority to form government, compromises had to be made and ideology
or notions of quality of governance may sometimes have taken a back seat. The consequences are pretty severe. Law and
order suffers because control mechanisms break down or become very loose. It becomes
difficult to take strong measures to curb corruption and provide clean and
quality governance. In the end, it is
the citizen who is the victim of all the misgovernance.
21.3 There is a
bi-polar spread on this issue and there have been many strong views on both
sides. One insists that for a parliamentary democracy to work there must be a
limit on political parties as well as on the number of independents that are
allowed to contest elections. The other view challenges this on the pretext
that a democracy like India, which has a huge cultural, religious and
linguistic diversity, needs to articulate its differences through a share for
most participants in the power structure. Therefore there should be no
curtailment whatsoever. There are many other moderating views that work between
the two extremes.
21.4 The Law
Commission dealt with this issue in some detail and suggested rather radically
that ideally the effort should be to have only one election every five years
for Lok Sabha and all the legislative assemblies. Although the Commission clarified
that it was not their intention to suggest a fixed five-year term for the
government, the implication of their suggestion was clearly in that
direction. The Law Commission also
stated that in if a political party received less than 5% of the valid votes
cast in the parliamentary or legislative assembly election, they should not be
entitled to any seat and Independents should be barred from contesting
elections. This would, the Commission thought, consolidate the presently
fragmented vote and provide for possible stability.
21.5 Many activist
organisations and eminent persons have disagreed with this suggestion but many
have not only agreed but also gone a step further to suggest even other methods
to reduce the number of parties or
political alliances participating in the electoral process. One of the other suggestions is for actively
pursuing the ideal of building a healthy two party system essential for the
success of the parliamentary system.
Former President, Shri R. Venkataraman and others have suggested that
political parties that secure less than 10% of votes cast should be
de-recognised by the EC. After the first such election the party that secures
lowest number of votes in each subsequent general election should be
de-recognised until the number of parties left is only two. The de-recognised
parties would lose the right to get a common symbol for their candidates.
21.6 The argument
about independent candidates to be discouraged if not altogether barred from
elections is based on the fact that out of 1900 independent candidates who
contested the general election in 1998, only 6 (0.65%) succeeded. 885 (47%)
lost their deposits. Likewise out of the 10635 candidates, who contested the
1996 Lok-Sabha elections, only 9 (0.08%) won and 10,603 (99.7%) lost their
deposits. It is also known that most of these so-called independent candidates
are in fact dummy candidates or defectors from their parties on being denied
party tickets. These candidates only
vitiate the sanctity of the electoral process. This was carried to ridiculous
limits when a Lok Sabha constituency in Andhra Pradesh (Nagonda 1996) had 480
contestants. The first three received 82% of votes and the balance 477 got 18%
of votes. Similarly there have been assembly constituencies reaching over 1000
candidates. What a waste of resources and effort!
21.7 The more
moderate suggestions on the question of independents contesting elections are
that such candidates should be proposed by a certain minimum number of
Panchayat Sarpanches or municipal councilors from their constituency. This
would ensure that only persons who have some political standing in their
constituency contest the election. In
the alternative, some have proposed that only such independent candidates
should be permitted to contest who have already a track record of having held
some other elective political office, e.g., panchayat or zilla
parishad or municipality or a cooperative etc.
The suggestions need further debate and consideration.
21.8 One other set
of suggestions centers around permitting only recognized “national parties” or
qualifying pre-poll alliances to contest national elections to Lok Sabha. In
their view this would, by prompting pre-poll alliances, automatically
consolidate the vote and help in evolving some sort of federal parties or
alliances providing more stable governments. Candidates who thus come to occupy
seats in the national parliament will have a more national perspective on
things as opposed to those who come on a purely local or regional platform.
21.9 Some
suggestions are centered around reducing the number of recognized national
parties or pre-poll alliances by changing the present criteria for their
recognition. For example, at the moment a political party in order to be
recognised as a national party needs to secure at least 6% votes in 4 States or
have one MP elected for every 25 MPs from four States. It is proposed by some
scholars and elder statesman like the former President Shri R. Venkataraman
that this percentage should be increased to 10% of votes polled. It is also
proposed by some that the number of States should be increased to half of the
total States and Union territories. This would certainly trim down the list of
national parties/alliances. A de-recognition would mean the loss of many
benefits including a common symbol nationwide. Coupled with the suggestion that
non-national parties should not be permitted to contest national elections,
this would force many pre-poll alliances or growth of federal parties.
21.10 It has also been
suggested that in a situation of so called ‘hung’ house, the best course would
be to have the house elect its leader as it elects the Speaker. The leader so elected may be appointed the
Prime or Chief Minister and his government should be removable only on a
constructive vote of no-confidence. This really means that at the time of
introducing the vote of no-confidence, a simultaneous vote of confidence has to
be passed in favour of an alternative leadership, which will be sworn in if the
vote goes through. In other words, there may be a change of leadership, or even
a change of government but the country would not go back to polls, nor would
there be time for horse-trading after the fall of a government to cobble up
artificial majorities. The period of office for Lok Sabha and Assemblies should
be reduced to 4 years. If India can have only one election every four years
this would be a huge national saving apart from creating stability that at
least gives a chance for better and development oriented governance. Some have
suggested that if a vote of no confidence is proposed and is defeated in the
House, a fresh vote of no-confidence should not be permitted for a period of
time say a year or two. Most of these suggestions do not call for
any amendment in the provisions of the Constitution and all that may be needed
may be a simple legislative amendment or a modified rule of procedure.
Also, all the suggestions are permutations and combinations
of the same set of proposals to achieve the objective of more stability in the
system of governance as
contradistinguished from the suggestions of some to provide fixed terms to the
government or to the legislators. The
latter cannot be considered legitimate.
If a leadership is performing poorly and/or making grievous errors,
deliberate or compulsive, in running of the nation, or even when it fails to
provide the basics of governance, it cannot be allowed to continue for any
fixed term.
21.11 Many of the
above issues in the long run will be addressed if the proposal of winning on a
majority 50%+1 vote is accepted. Many non-serious candidates and even fringe
parties will go out of the electoral fray, as it will be impossible for them to
contemplate a win. It will certainly push many of them into better formed and longer
lasting political alliances in order to win.
22. Issues of
Political Morality:
22.1 The decay in
political morality is an issue that occupies centre-stage in India’s political
discourse but there are really no remedies and we appear to be on a downhill
course with getting rich-quick anyhow and competitive consumerism having become
the highest virtues. If the question is asked how can we reverse this trend,
the answer would have to be that there are no magical formulas or laws and
regulations for moral regeneration that can help in creating a better sense of
higher values and a general political conscience. It can only be done by
building and nursing strong conventions that politically and even more
importantly, socially ostracize deviant behaviour.
22.2 One of the
ways in which this may be attempted is by educating India’s masses about their
fundamental rights and duties, by driving home the message that political
position holders are not “rulers” in the sense of the “mai-baap” of the
colonial era or “maharajas of the
feudal vintage”. They are elected to
positions of authority to serve the society’s needs. Strong public opinion has to be created against political
corruption making sure that no one gets to enjoy the fruits of corrupt
actions. Above all, we may need a
renaissance of the old values of sacrifice and service in public life and
politics based on some moral principles.
This would need politicians who are not for power for its own sake or
for promoting their own narrow self interests but who enter public life
motivated by a mission and a desire to serve the people or ones fellow
citizens. For this the government would
have to keep on a constant communication with the populace at large. For whatever it is worth, immediate
appointment of one or more ombudsmen or Lokpal may be suggested once again. To
keep a tab on issues of public morality and ensure that transgressions are
widely debated and the culprits brought to book, a beginning should be made to
include some secular constitutional values and citizenship obligations in the
curriculum of schools and colleges so that the next generations will grow up
with this information and perhaps wisdom to form a formidable social force
against the kind of decaying political morality of today.
23. Miscellaneous Suggestions:
23.1 Some other
suggestions need mention. These may need to be considered. The feedback and
views received may help in framing arguments and reaching some conclusions in
regard to the following:
- Debar all legislators from being appointed as
chairpersons of various state undertakings, also debar them from any
non-ministerial post other than chairmanship of legislative committees.
- There must be a bar on ministries that are
larger than 10% of the house. No other position with executive or
financial powers to be considered for legislators. Also, the power to create Minister
level or Cabinet rank posts should be strictly regulated.
- There must be a limit of two terms for any
political position. So one may be a member of the panchayat for two terms,
of State assembly only for two terms even if non-contiguous and MP for two
terms. This may reduce the number
of life-time professional politicians who have no other sources of
livelihood except political office.
- The EC should be appointed by a neutral body
consisting of the Prime Minister, the Vice President, the Speaker, the
Leader of the Opposition and the Chief Justice of India. This would make
his position totally impartial in the eyes of all political parties and
factions. The EC should not be appointed to any other office after
retirement.
- An independent auditing authority should be
appointed for auditing annual statements of accounts of all political
parties and the audited accounts should be published for public scrutiny.
- Rotation of seats should be done for SC seats
and non-scheduled area ST seats.
- There seems to be a general agreement on the
need to have more women members.
The question is whether political parties should be asked to put up
women candidates for at least one-third of the seats they contest both for
State and Parliament elections or
one-third seats should be reserved for them by rotation. Another suggestion being made is that
there may be a 30% increase in the
number of seats in each house and these additional seats be filled by
women party candidates on the basis of a list system.
- The minimum number of valid votes polled should
be increased to 25% in order not to forfeit the deposit. Also, the amount
of deposit should be again increased substantially. These two steps would further reduce
non-serious candidates.
- All candidates should be required to clear all
government dues e.g. huge I.T. arrears before their
candidature is accepted. This pertains also to holding on the
accommodation, telephones, and government facilities used while in power.
- EC should have full disciplinary authority over
the officials who are involved in election duty. It is said that at
present there are too many complaints of compromised or partisan officials
but EC is unable to take any stringent action. The question however is whether the Election Commission
could have the same disciplinary powers over all the officers and staff
engaged on election duty as that of the appointing authority.
- Create multi-member or double-member
constituencies to eliminate or at least reduce narrow appeals based on
religion or caste.
- Hold State level and parliamentary level
elections at the same time. This would reduce expenditure.
- Every candidate to an elective office at the
time of filing nomination and every holder of a political position
annually must declare his assets and liabilities as also the assets and
liabilities of his close family members.
- For Legislative Councils, eliminate the
Teachers’ and Graduates’ constitue-ncies, which provide extra votes to
some electors and have politicized educational institutions.
15.Subsequent to the 73rd and 74th amendments,
ensure that criminalization does not engulf our PRIs and there must be a
serious debate on the issue with a view to substantive reform.
16.For constesting elections to the Rajya Sabha, the requirement of a
candidate being ‘ordinarily resident’ in the State should be interpreted to
mean that he or she should be actually residing in that State.
SUMMARY*
PROBLEMS
1.
With majority of representatives elected by a minority of
votes cast, the representational legitimacy of the FPTP system of elections
stands seriously eroded. There is
mismatch between FPTP and the multi-party system. Hung houses make stable Government formation difficult.
2.
With the constituents and electors for all directly elected
representatives from the Panchayat to Parliament levels being the same,
competing role expectations and perception conflicts result e.g. even a
member of the Union Parliament is expected to attend to purely local problems
in the village or town.
3.
With large constituencies, multiplicity of parties and
candidates, absence of ideology, politicization of caste and communal
identities and building of vote banks, elections have become terribly
expensive. Huge amounts of money are
needed to contest any election.
Legitimate sources are difficult to find. Corruption and black money are generated. Politics gets criminalized. Mafia gangs and others with money and muscle
power assume importance.
4.
Many malpractices and acts of violence, corruption, etc.
have polluted the electoral processes.
Misuse of the Government machinery and connivance of polling staff with
miscreants are also not uncommon. With
very faulty electoral rolls and rampant impersonation, booth capturing and
rigging, large sections of people are in effect disenfranchised.
(Para 5)
THE GANDHIAN MODEL
To strike
at the root of most of the problems, one option suggested for consideration is
that of the adoption of the Gandhian model of decentralization of power down to
the grassroots people’s level and a bottom-up instead of the present top-down
approach with multi-member or double-member constituency-based direct elections
being held to the primary tier of governance and all the upper tiers being
filled up by representatives elected by electoral colleges of representatives
manning the lower tiers.
The Prime Minister/Chief Minister may be elected by
the House and be removable only by a constructive vote of no-confidence.
This would mean a low-expense
electoral process with representatives being more representative of the people,
more responsible to them and responsive to their needs and aspirations. This
could ultimately lead to people, development and citizen-friendly, stable and
good governance at every level.
(Paras 6.2 – 6.5)
OTHER REFORM OPTIONS AND SUGGESTIONS
Other reform options to tackle
different problems broadly within the existing electoral system are summed up
below:
Electoral Rolls and Identity Cards
- Electoral roll should be updated at the lowest
constituency level with a clear link to the higher constituency levels
till the parliamentary constituency.
- There should be a mechanism for constantly
updating these rolls and during each 1st week of April the
updated rolls as of 31st December of the previous year should
be posted on the web.
- Multipurpose voter ID cards or citizenship card
should be designed with a bar coded unique voter ID number. Over an
acceptable period of time these should become mandatory for all elections.
- This job should be entrusted to a pre-qualified
professional organisation and should include designing the implementation
of the scheme in coordination with and under the EC. PRIs and local post
offices to be involved in helping in its implementation.
- The designing of Electoral Rolls and ID should
be coordinated with a view to the future.
- The responsibility for the electoral rolls and
ID should rest with one integrated
machinery under the EC/SECs.
(Para 7)
Electronic Voting Machines
- Introduce Electronic
Voting Machines in all constituencies as rapidly as possible. For all
sensitive constituencies use them straightaway.
(Para 8)
Booth Capturing
and Rigging
- Reference section 58A of the Representation of
the People Act 1951, give Election Commission the authority to take
decision regarding booth capturing not only on the report of the returning
officer but even otherwise if it is satisfied.
- Again, under section 58A of the Act, the
Election Commission should not only be empowered to countermand the
election and order a fresh election as now provided under the law, but
also should be empowered to declare the earlier poll to be void and order
only a re-poll in the entire constituency, instead of a re-election there,
depending on the nature and seriousness of each case.
- Make booth capturing punishable with more
stringent punishment and empower the Election Commission, to investigate
booth capturing and other violations of the electoral law, through the
Central or State police investigating agency; by the establishment of
special electoral courts.
- Consider use of tamper-proof video and other
electronic surveillance at sensitive polling stations/constituencies.
(Para 9)
Caste and
Communal Hatred
- Any campaign on the basis of caste or religion
and any attempt to spread caste and communal hatred during elections
should be punished with immediate disqualification and mandatory
imprisonment.
(Para 11)
President’s
Rule during Elections
13. CEC’s
suggestion to impose President’s rule over all the States for the duration of
elections may not be considered logical or feasible.
(Para 10)
Criminalisation
- Once charges relating
to certain crimes have been framed by a court against a person, he should
not be permitted to contest elections unless cleared.
- A potential candidate against whom charges have
been framed by the police may take the matter to a special electoral
court. This court would be obliged to enquire and take a decision in a
strictly time bound manner. Basically, this court may decide whether there
is indeed a prima facie case justifying the framing of charges. If
yes, the person should not be allowed to contest.
- Eliminate incongruities in the existing
provisions of sub-sections (1), (2) and (3) of Section 8 of the
Representation of the People Act, 1951, whereby a rapist convicted and
sentenced to ten years imprisonment, may be disqualified only for six
years under sub-section (1) and thus remain free to contest elections,
even while in prison serving the last four years of his sentence. The law
should provide that whoever is convicted of any offence by a Court of law
and sentenced to imprisonment for six months or more should be debarred
from contesting elections, for a period totalling the sentence imposed
plus an additional six years.
- Under
Section 8(4), sitting members are not disqualified even when convicted
until their appeal is decided. This should be deleted.
- If an elected representative gets convicted on
charges related to specific crimes, he should be required to withdraw from
the legislature for six months and if within that period he fails to get
an acquittal, he should be disqualified.
- Political parties, when they are seen to be
abetting criminalisation should face derecognition and other action.
(Para 13)
Disqualification on ground of corrupt practices – election petitions:
- Amend current practice that once the High court
hands out the judgement on an election petition holding the candidate
guilty of corrupt practices, the case goes to the Secretary of the
concerned State Legislature or the Secretary General Lok Sabha or Rajya
Sabha, as the case may be. It is then forwarded to the President who in
turn forwards it to the EC. Only then does the EC get jurisdiction to
tender its opinion to the President based on which the disqualification
order is issued. Instead of this round about procedure a direct reference
between the High Court, the Election Commission and the President should
be created to cut unnecessary delay.
- Create special electoral courts for deciding on
election petitions. These should be decided in a time bound way within 6
to 12 weeks unlike the present where it can take years by which time they
have lost their meaning.
(Para 15)
Election expenditure - the high cost of elections and
abuse of unaccounted money power
- The basic problem is that the present rules have
a significant loophole in the shape of explanation 1 to section 77(1) of
the Representation of the People Act 1951, under which the amounts spent
by persons other than the candidate and his agent themselves, are not
counted in his election expenses. This means that there can be never any
violation of the expenditure limits. All extra expenditure, even when
known and proven, can be shown to have been spent by the party or by any
friends and it remains outside of the enforceable limits. This must be
rectified and all expenditure made by or on behalf of the candidate must
be included in his expenditure limit as provided under the rules.
- Political parties as well as individual
candidates should be subject to a proper statutory audit of the amounts
they spend. At the end of the election each candidate should submit an
audited statement of expenses, head-wise. The audit should not only be
mandatory but it should be enforced by the Election Commission appointing
a council of at least two auditors say for 10 constituencies each. Any
violation or misreporting should be dealt with strongly.
- Partial state funding of elections through time
provided on national media for campaign activities of recognised parties
may continue.
- For other proposed state funding, it has to be
linked to the political parties being regulated by law and to creating a
foolproof mechanism to implement financial limits strictly and to deter
expenditure violations.
- Bring in transparency into all political
funding.
- Permit corporate donations within prescribed
limits and keep them transparent.
- Make all legal and transparent donations tax
exempt and treat this tax loss to the state as its contribution to state
funding of elections. For example, tax exemptions could be limited to say
25,000 for individuals and 10,00,000 for companies provided that the
contributions are made to party funds and not to individuals. In the case
of corporate contributions, the Board of Directors may approve up to say
1,00,000 and anything over this amount may be approved by the
shareholders. Political funding should be separate head in the accounts
and annual reports of the company. This will ensure transparency.
- All political party accounts, much like the
accounts of a public company, should be published yearly with complete
disclosure under pre-determined account heads. The Election Commission
should have these accounts audited.
- Also make it obligatory for campaign expense
accounts – both receipts and expenses - of all candidates to be made
public in their constituencies.
- There should be a serious attempt at reducing
election expenses and this can be done by perhaps changing the ground
rules for electoral campaigns – partly by encouraging the use of
electronic and digital technology to campaign at state cost and
simultaneously by totally and effectively banning other overt and wasteful
tamashaas of campaigning
- Place
reasonable restrictions on the following:
Wall
writings, Display of cut-outs hoardings and banners, Hoisting of flags (except
at party offices, public meetings and other specified places), Use of more than
a specified number of vehicles for election campaign and for processions,
Announcements or publicity by more than a specified number of moving vehicles,
Holding of public meetings beyond the specified hours, Display of posters at
places, other than those specified by the district/electoral authorities.,
Strong penalty for violation of expenditure ceiling, During election times
rallies only under covered roofs should be allowed. No outdoor public rallies
should be permitted.
- Create an effective mechanism to implement these
rules and create an effective deterrence against violations.
(Paras 14)
The
Question Of Representation And Winning On Minority Vote
- Let candidates both at state level and
parliamentary level win only on the basis of a majority vote meaning 50%+1
of the votes cast. This will create a majority representation and also
push political parties and serious contenders to widen their appeal to
their electorate.
- For this let there be a run-off election if
required between the top two candidates who get the highest and the second
highest number of votes.
- When using EVMs have election spread over two
days and keep the second day for possible run-offs. This will save considerable
resources.
- If this is not possible have the shortest
possible gap between the main election and the run-off. No further
campaigning should be permitted.
- Consider providing incentives to voters for
casting their vote by providing of some simple facilities in order to push
up the electoral turn out. Together with the 50%+1 vote scheme this will
have a salutary effect on the campaigning rhetoric of the candidates and
political parties because they will have to reach a higher number of
voters now.
- Electoral offences in the run-off elections
should have a higher punishment prescribed.
(Para 16)
Compulsory Voting
While
compulsory voting may not be feasible or advisable at present, a scheme of
suitable incentives for increasing voter participation may be considered.
(Para 17)
Negative Voting
Sound
on principle, the suggestion for a provision of negative voting may be found
impracticable and unnecessary.
(Para 18)
Defections
and The Tenth Schedule
- Whether by an individual or a group, defections
should not be permitted. If a legislator wishes to leave his party or vote
against it he should vacate his seat. Let him/her contest on a fresh
platform. The vote cast by a
defector should also be invalidated.
In the alternative, the 10th Schedule should be
repealed.
- As a corollary to this, the role of whip should
be reduced. Whip should be allowed to be used only for those votes in the
House which might threaten the life of the government.
- Defectors should not eligible for any public
office until re-election.
(Para 19)
Delimitation of Constituencies
- Have intra-state
delimitation exercise undertaken by the Election Commission to eliminate
anomalies like the Chandni chowk Lok Sabha constituency being only 1/7th
of the voter size of the Outer Delhi Lok Sabha constituency. The same
should be done for assembly constituencies.
(Para 20)
Problems
of Instability:
- Independent candidates should be discouraged.
Permit only those who have a track record of having won any local
election.
- Let only recognised national parties or pre-poll
alliances contest elections to Lok Sabha.
- It should be possible without any constitutional
amendment to provide for the election of the Leader of the House (Lok
Sabha /State Assembly) along with the election of the Speaker and in like
manner under the Rules of Procedure.
The person so elected may be appointed the Prime Minister/Chief
Minister and the Government constituted by him may be removable only on a
constructive vote of no-confidence.
(Para 21)
Issues of
Public Morality
- Educate India’s masses about their fundamental
rights and duties, by driving home the message that political position
holders are not “rulers” in the sense of a “mai-baap” or a “maharaja” but
are elected into positions of authority to administer and serve the
society’s needs. Create a strong
public opinion against political corruption and by making sure that no one
gets to enjoy the fruits of their corrupt actions.
(Para 22)
Miscellaneous
- Debar all legislators from being appointed as
chairpersons of various state undertakings, also debar them from any
non-ministerial post other than chairmanship of legislative committees.
- There must be a bar on ministries that are
larger than 10% of the house. No other position of profit, executive
authority or discretion should be available to legislators.
- There must be a limit of two terms for any
political position. So you may be a member of the panchayat for two terms,
of state assembly only for two terms even if non-contiguous and MP for two
terms.
- Some policy should be devised to encourage
public-spirited “professionals” to contest elections and give to the
legislature the benefit of their expertise and experience for a term or
two.
- The EC should be unanimously appointed by a body
consisting of the Prime Minister, the Leader of the Opposition, the Chief
Justice of India and the Presiding Officers of Lok Sabha and Rajya Sabha.
This should also be done for the State Election Commissioners.
- The
EC should not be appointed to any other office after retirement.
- An
independent auditing authority should be appointed for auditing annual
statements of accounts of all political parties.
- Rotation of seats should be done for SC seats
and non-scheduled area ST seats.
- There is every case for their being more women
representatives. Political parties
should be asked to put up women candidates for at least one-third of the
seats they contest both for State and parliament elections or the same
number of seats should be reserved for them by rotation.
- The minimum number of valid votes polled should
be increased to 25% from the current 16.67% as a condition for the deposit
not being forfeited. Also the amount of deposit should be increased. These steps would further reduce
non-serious candidates.
- All candidates should be required to clear
government dues before their candidature is accepted. This pertains
specially to payment of taxes and bills and to holding on the
accommodation, telephones, and government facilities used while in power.
- Create multi-member or double-member constituencies
to eliminate or at least reduce narrow appeals based on religion or caste.
- Hold State level and parliamentary level
elections at the same time. This would reduce election expenditure.
- Every candidate at the time of election and
every holder of a political position annually must declare his assets and
liabilities along with those of his close relatives.
(Para 23)
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