Role Of Political Parties In Electoral Reforms

CHAPTER V ROLE OF POLITICAL PARTIES IN ELECTORAL REFORMS Political parties are a central institution of our democracy; "the life blood of the entire constitutional scheme."1 Political parties act as a conduit through which interests and issues of the people get represented in Parliament. They play a key role in the Indian political system and Indian democracy. Democracy implies reference to certain norms, standards, value, character and behaviour but today these norms are disappearing in India. The number of politicians who believe in principles is declining. We all are aware of the fact that the most successful candidates in election of these days are people who have money and muscle power. Some politicians take support of criminals because they lack faith in themselves and feel that they would not be able to win elections without the help of musclemen. They spend a huge sum of money and have been trying to come to power by hook and crook. The painful fact is that today constitutional morality or ethics has become irrelevant and corruption is the pervasive force in our political life and its worst manifestations is the decline of standard of Parliamentary institutions. The short duration of government causes huge loss to nation. After the era of outside support, unholy alliances, formation of coalition governments', critninalisation in politics and frequent dissolution of Lok Sabha and State Legislative Assemblies prematurely have become the order of the day and the foundations of all the democratic institutions have been shaken beyond repair. Therefore, for speedy progress and development we need stable governments. There has been a big question mark on the credibility of the institutions like Parliament, Judiciary, Bureaucracy, Police etc. Today, voters are disappointed by their own representatives whom they send to Parliament or the Assembly. To their utter dismay, their elected representatives keeps on changing colours for quick personal gains and this state of affairs has led to growing sense of frustration and despair. The conduct of our elected representatives has shaken the very faith of the people in

1

Subhash Chandra Agarwal v. Indian National Congress and Others, [2013] CIC 8047
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the system of governance. There has been sharp erosion in this respect that people used to have for politicians. In a democracy the ultimate power is with the politicians who control the legislature and the executive. Election plays crucial role and therefore, there is need for drastic improvement in present electoral system and to bring stability and good governance in the country. However, there are certain trends going on to improve the situation. They are as follows:

1. Political Parties and Electoral Reforms: Political parties are essential actors in a democratic political system. In a democratic set up, • political parties form the government after seeking mandate of the people. Political party is a group of persons who agree on some ideology and seek to capture the power and form the government on the basis of collective leadership. The political parties are generally united on the basis of traditions, ideology, mutual common interest, psychological orientations etc. They are considered by many as intermediate link between the citizen and the government. C.) They are regarded as having an important place in a democracy, carrying the weight of expectation and aspiration upwards from citizen to government, and the burden of policy downwards from government to citizens. Indian Constitution promises secularism, social justice and political equality to smooth operation of democratic institutions. The social structure of Indian society is deeply mbedded in the complex Indian caste structure. Communalism in India has been a long standing problem keeping in view the traditional background of Indian social political setup. We must confess that religion, caste or community has continued to play its role in electoral politics. There is nothing new about this statement that today there is greater emphasis on religion and caste than ever before. Political parties, some of the State Governments, and the superior judiciary, all of them have to share the responsibility for this menace. Politicians are equally responsible for mixing religion and caste with politics for their electoral gains. The government is responsible by making caste the only basis of reservation of appointments and judiciary by recognizing caste as sole factor for identifying backward classes for the purpose of reservations aforesaid. Of these all, the most unfortunate aspect of Indian polity has been

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the mixing up of religion and caste with politics and exploiting religious sentiments and caste feeling for achieving political power through the ballot box.2 Several political parties with their potently communal identity were not only recognized or registered as political parties but they are frequently contesting elections with their communal manifesto.3 For example, Muslim league, Shiromani Akali Dal, Bajrang Dal, Shiv Sena, Hindu Maha Sabha, Vishva Hindu Parishad etc. continue to enjoy recognition by the Election Commission. The Representation of People Act, 1951 was amended in the year 1989 to provide for registration with the Election Commission of association and bodies as political parties.4 Along with the application for registration, every political party is required to submit a copy of memorandum or rules and regulations which shall contain a specific provision that the party shall hear true faith and allegiance to the Constitution of India as by law established and to the principles of socialism, secularism and democracy and should uphold the sovereignty, unity and integrity of India. This is the only step so far taken to delink religion from politics. But mere paper declaration of bearing true faith and allegiance to the Constitution is not sufficient. Until and unless there is a provision to ensure that the political parties act strictly in accordance with the principles enunciated in section 29-A of the Representation of People Act, 1951, secularism will remain a distinct goal. At present, mere filing a memorandum regarding true faith and allegiance to the Constitution or secularism etc. has become a farce and formality to be complied with for securing registration and forgotten thereafter the consequences of breach of faith in this respect needs to be clearly spelt out. Since the law permits the formation of religious or communal parties, it would be only natural that such parties might use the communal or religious cards for winning an election. Thus, the legacy of communal parties is continued under the nose of law. Therefore, the first step to delink religion from politics should be to ban all communal parties from contesting elections to the Legislatures and second, to enforce ruthlessly the provisions of

2

In 1993 the Central Government attempted to introduce the Constitution (Eightieth Amendment) Bill to de-link religion from politics and thereby to amend the Constitution. The said Bill was accompanied by the Representation of People (Amendment) Bill, 1993. 3 There is no mention or definition of political party in the Constitution even Tenth Schedule which was added to the Constitution by the Constitution (Fifty Second Amendment) act, 1985 does not define a 'Political Party'. 4 Representation of the People Act , 1951, Section 29-A; if a political party violates its own declaration to abide with the Constitution or Secularism then there is n provision to de-register such a party.

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section 123(3) and (3A).5 It will be difficult to root out the problem of communalism unless drastic steps are taken for such electoral reforms. Banning the communal parties should be an essence of the secular democracy. It is significant to note that there is no law which requires compulsory registration of political parties or regulating their formation, internal function or the manner and mode of election of their office bearers etc.6 Even an unrecognized or unregistered body or association or party can participate in elections to the Legislature. The result is that the parties tend to be a collection of individuals who can walk in or out of the party at their convenience. There is always a possibility that number of parties can increase at any time through the splitting of existing parties, or formation of new ones without any distinctive policy of viable programme. Even every dissident leader can float a new party with his own caste combinations and vote banks. The consequence of this menace is the unmanageable number of candidates standing in elections and ultimately ridiculous to democracy itself.7 Therefore, it is needed that political parties should be properly regularised. Intra-party democracy has to be maintained as the basic principle of democracy. It was certainly assumed by the framers of our Constitution that in the process of development, secular loyalties will emerge and ethnic or caste based loyalties would get submerged. But the trend is quite reverse and disturbing. Infact today, no explanation of provincial or local politics in any part of India is possible without reference to caste or community. In addition to this, there is linguistic regionalism. The comfort that minorities availing under the Constitution is also being misused for collecting vote-banks or forming communal parties. Thus, the divisive forces still continue to play dubious role in post-independence India. Though India claims to be a largest democracy of the world, but the subject of electoral reforms has been consistently and consciously neglected by all the political parties since independence. In 1972, a Joint Committee on Amendments to Election Law submitted its

5

Ibid, Section 8A, if a candidate or agent indulge in a corrupt practice, not only the election is liable to be set aside, but the candidate also incurs disqualifications. 6 Ibid, section 29-A, under this section registration of political party is voluntary. 7 C.P. Bhambhri, "Electoral Reforms and Party System in India Elections and Electoral Reforms in India', IJCPS 53 (1971).

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121 page report to the Parliament. Somnath Chatterjee, Atal Behari Vajpayee and L. K. Advani were its members. Nearly three decades have elapsed since then and these venerable members have gone places in their political careers and have even retired from political life but these political reforms have remained where they were. The Goswami Committee on Electoral Reforms (1990) had rightly underlined that electoral reforms are correctly understood to be a continuous process. But the attempts so far made in this area did not touch even the edge of the problem. Again, political parties have talked about the urgent need of undertaking electoral reforms in their election manifestos but these promises have remained on paper. In the last two decades, every incoming government assured the public that it would introduce a comprehensive Bill for Electoral Reforms in Parliament but in actual practice it has never been made effective. -I:he only serious effort made in this regard was during the tenure of the government led by V.P. Singh in 1989-90 but since the government lost majority in the House, this initiative could not be implemented.8 Even the special session of Parliament called during the term of the government led by P.V. Narsimha Rao failed to arrive at any consensus on the outstanding issues relating to electoral reforms. In october 1999, once again Bhartiya Janta Party (BJP) led coalition government announced that a comprehensive electroai reforms Bill will be brought to cleanse the poll process and introduce proxy voting for defence and security forces, but it never saw light of the day. Though the Election Commission emerged as prominent figure and caught the attention of people during and after the tenure of T.N. Seshan as Chief Election Commissioner. The previous commissioners too had worked silently and diligently on the subject of electoral reforms and had submitted their reports to the Central Government from time to time regarding proposals for electoral reforms in detailed and highly sensible manner. Unfortunately, these did not receive any attention of the government in force.

8

Goswami Committee on Electoral Reforms, Ministry of Law and Justice, Legislative Department, Government of India, New Delhi, May 1990.

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2. Political Defection and Electoral Reforms: The endless game of defection and toppling of governments is the most glaring example of the erosion of the democratic and moral values in the Parliamentary life of India. In the era of outside support and the coalition governments in the States and at the Centre, it is an admitted fact that the representatives of the people in the assemblies and the Parliament 0 accept money to support a particular government.9 Hence, Member of Parliament (MP) and State Assemblies became a marketable commodity and a subject of sale and purchase or horse-trading. Defection is shifting loyalty from one political party to another either for the benefit of the person who shifts or for a group of persons to deny the benefit to others. The incentives may be monetary gain or official assignment. The famous Jharkhand Mukti Morcha (DIM) Party easel10 is one of the illustrating case in this regard. Most often in almost all political system, at one point of time or another, by virtue of switching over the loyalty of party members from one to another. the ruling government is defeated and new government is formed under the changed leadership of the same party when there is formation of new party or by virtue of third party forming the government. In Andhra Pradesh, Telugu Desam Party (TDP) headed by N.T. Rama Rao, the then Chief Minister lost his government on similar grounds. There are instances where all political parties have condemned and criticised the defection but unfortunately, when there is a need, the defection is supported. Nevertheless, constitutional amendment was made and it has been inserted in 111 the seventh schedule of the Constitution regarding anti-defection. Law Commission of India • in its 170th report on the Reform of Electoral Laws suggested deletion of Para 4 which dealt C./ with the merger in the tenth schedule of the Constitution. It also suggested to delete Para 3 of the tenth schedule. It suggested to insert the following definition to replace the existing definition of original political party: "Political party in relation to a member of a House, means the political party on whose ticket that member was elected and where such political

9

Report of the Committee on Defection, 7th January 1969, Observed: following the fourth General Elections in the short period between March 1967 and February 1968, the Indian political scene was characterized by numerous instances of change of allegiance by legislators in several states, compared to roughly 542 cases in the entire period between the first and fourth General Election, at least 438 defection occurred in these 12 months alone. 10 Narshimha Rao v. State (CBI/SPE) etc., AIR 1998 SC 2120.

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party is a part of a front or coalition formed before a general election for contest in such election, such front or coalition, provided that the Election Commission is informed in (-Th writing by all the constituent parties in the front/coalition before the commencement of the poll such a front/coalition has been formed." Politics of India gradually degenerated into a struggle for power for personal ends, general interest and well-being of the people is a (Th secondary thing for the present day politicians. This is a depressing feature of India's Parliamentary democracy.11 Defection and counter defection from one party to another is a routine affair in India in which the only thing which guides the politicians is their lust for power. They change political parties to suit their needs.12 The spirit is so essential for the working of a coalition government is nonexistent among the politicians. On several occasions, coalitions had been entered into between the political parties which are ideologically opposed to each other. Very often, MPs and MLAs quarrel over sharing the spoils of power, which lead to political tal instability with its deleterious effect on the entire body politics.13 The first Anti-defection bill was introduced in Lok Sabha in 1973, which however, lapsed on account of dissolution of the House.14 Again the Constitution (Forty-eight Amendment) Bill, 1979 was introduced which also lapsed and it was followed by the Bill which was enacted into the constitution (Fifty-second Amendment) Act, 1985: as of now the tenth schedule to the constitution of India. The objective underlying the provisions in the tenth schedule is to curb the evil of political defections the remedy proposed is to disqualify the member of either House of Parliament or the State Legislature who is found to have defected, from continuing as a member of the House. The anti-defection law provides for disqualification of a member of a House on account of: (i) his voluntarily giving up the membership of his party or (ii) his voting or abstaining from voting contrary to the party's direction or whip. Under the law, the disqualification of a member on ground of defection does not apply in case of a split in the legislature party so

11

The 52nd Constitutional Amendment Act The Hindustan Times, 6 Jan 2000, p. 13 13 I'bid, February 1998, p.11. 14 The Constitution (Thirty-Second Amendment) Bill, 1973 12

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long as the group of splitters consists of at least one third of the party members. Similarly, the disqualification of a member of the House on the ground of defection does not apply in cases of a merger of his original political party provided that not less than two-thirds of the members of legislature party concerned have agreed to such a merger.15 Former President of India, Shri R. Venkatraman rightly says that defection from a party is an affront to the electorate and the law should be amended to deprive the defector of the membership of the elected body and other political party in future. The defector should not be eligible for admission to any political party including the party to which he originally belonged. Action should be taken against members for not abiding by the whip and directions of the party.16 16 The proposal of the Law commission of India in its 170th report on the Reform of Electoral Laws will become an important contribution towards anti-defection. However, the following measures are also equally important in curbing the defection: 1.

The defection should be concluded by when there is a split in the party with not less 0 than 50% of the elected members of the Parliament of Assembly.

2.

The defection is concluded when the elected MPs of MLAs refuse to accept the order 0 of the whip of the party whenever there is need for casting in the no confidence motion or any other occasions where there is party decision.

3.

The defection falls with the jurisdiction of the speaker only to recognise defection and not to regulate the defection in any other manner than strict rule of 50%.

4.

The defection should be considered as an electoral offence which attracts disqualification of not contesting the immediate two general elections.

To incorporate them, suitable amendments may be incorporated in the tenth schedule and other election laws. A sound anti-defection law is passed in Parliament in December 2003. According to it, the defector has to seek a fresh election and is disqualified to any office until re-elected. The law has come into force.17 124 15

Constitution of India, Tenth Schedule, Paragraph 2(1)(a), (3), (4) and (6), paragraphs 3 and 4 The Hindustan Times, April 9, 2000, p. 12. 17 Dr. P. Rathana Swamy, Electoral Reforms Law and Institute of India and World 125 (Book Well, New Delhi, 2004). 16

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Finally, a code of ethics should be worked out on defining the manner and spirit in which the political parties should discharge their functions and responsibilities. Unless character of our leaders is improved, the sordid game of defections cannot be curbed which is eroding people's faith in the efficacy of our democratic system.

3. Electoral Reforms and Criminalisation of Politics: •Criminalisation of politics and politicisation of criminals has become a shocking reality of • our democratic nation. In early days, criminals and notorious elements of society were by large kept away from the direct involvement to the political process, but today they have acquired a political base of their own and are a law unto themselves. Since it is the reach of power that determines the degree of immunity, persons with criminal antecedents have found a way to foist themselves on the legislature.18 Criminals have also made in-roads in all 6 political parties whether at the national or regional level. In 1996 in Lok Sabha elections, 0 more than 1500 candidates have a criminal background. A survey was conducted by the Weekly Magazine Outlook which comprises of a panel of former Supreme Court judge, 0 Kuldeep Singh, Social activist Swami Agnivesh and Madhav Godbole, who compiled a list of 72 candidates contesting elections in Lok Sabha in 1998 against whom criminal proceedings were pending. Within the short time which was available between the filing of • the nominations and the holding of elections. the panel could compile and scrutinise the data • in respect of only 500 out of the 4693 candidates in the fray. G.V.G. Krishnamurthy, the then Election Commissioner, had observed the much needed role played by media, the number of C) Lok Sabha candidates with criminal records had reduced from 1500 in 1996 to around 150 in the 1998 elections.19 It was however, disconcerting that in the elections to the Bihar Assembly in February 2000, more than 12 notorious criminals were elected as MLAs and both major political parties were fighting with each other to seek their support to form ministry.

18

According to survey conducted by the then Chief Election Commissio Shri T.N. Sheshan in 1993 in Uttar Pradesh Legislative Assembly, out of the total 425 legislatures, 180 were criminals, The Hindustan Times, August 28, 1998, p. 1. 19 The Indian Express, 9 August, 1999, p. 3.

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Winnability has become the sole criteria for selection of candidates by political parties.20 A Karnataka Member of Legislative Assembly was facing charges of rape and extortion. He had contested the 1999 State Assembly elections from prison.21 But, it will be wrong to blame only the political parties. Criminals have often fought elections as independent candidates and people have voted for them with open eyes. Pappu Yadav, who is facing murder charges, fought the Lok Sabha poll in 1999, as an independent candidate, from Purnia Jail and managed to get 66.3% votes which were the highest in State of Bihar.22 The fact that Yadav was elected with a lead of over two lakh votes shows that the influence of caste continues to dominate in Bihar, as in several other parts of the country. For once, Bal Thackeray is right when he says, in India, People don't cast their vote, they vote their caste23. Pappu Kalani, a noted criminal in Maharashtra, who won as an independent candidate in the Assembly polls held in 1999, has been detained in the Yerwada jail and seems to be enjoying five star facilities. The nexus between criminal gangs, police, bureaucracy, politicians and industrialists has come out openly in various parts of the country. The Vohra Committee Report gives enough hints to come to the conclusion that criminalisation of politics and corruption in high levels is destroying the very system and edifice of our Parliamentary democracy, political authorities and civil servants and even the judiciary.24 The committee revealed in its report that in 2004 Lok Sabha members, 47 members were having criminal records of serious crimes like murder, rape, kidnapping etc. In August 1997, the Election Commission revealed that nearly 40% of Parliamentarians were involved in criminal cases which were pending against them, where nearly 700 members of the Legislative Assemblies out of 40072 were involved in 0 criminal cases and trials were pending against them.25 In the 14th Lok Sabha out of the 5436

20

Madhav Godbole, 'Crime and Blandishment: My Thug is Better than yours', The Times of India, 18 April 1997; The Changing Times: A commentary on Current Affairs, Orient Longman, New Delhi, 2000, p. 50. 21 Lok Salta, 7 November, 1999 22 The Times of India, 6 November 1999. 23 Outlook, 8 November 1999 24 The Committee was constituted on 9th July 1993 comprising of Shri N.N. Vohra, the then Union Home secretary and four other officers of the Government of India, the report on criminalization of politics dated 5-10-1993 is made on the basis of the data supplied to the committee by different agencies- RAW, CBI, Intelligence Branch and Revenue Intelligence of the Government of India etc. 25 Harbansh Dikshit, 'Where seven hundred State Legislative are Tainted', The Hindu, August 28, 2002.

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candidates who contested polls, about 100 with cases pending against them have made it to the Parliament.26 The Constitution of India empowers Parliament to make laws from time to time with respect to all matters relating to, or in connection with elections to Parliament or the Legislature of a State, for securing the due consideration of each House or Houses.27 The provision of the Representation of People Act, 1951 therefore, exclude person of criminal background of the kind specified therein, from standing as candidate as well as voters.28 It is distressing to note that a person who is in jail or in police custody due to any reason cannot vote, but he can contest election and more so he is qualified to be a member of the legislature till his conviction is affirmed by the court of law.29 In case if such a convicted person is sitting member of the House and has appealed against his conviction he is not disqualified until that appeal is disposed of by the court.30 The main hurdle in the enforcement of these laws is the political interference and enforcement of official's corruption as is evident from the Vohra Committee Report. In fighting criminalisation in electoral arena, the Delhi High Court came out with a landmark judgement on November 2, 2000. The judgement was the result of the Public Interest Litigation filed by Kamini Jaiswal on behalf of the Association of Democratic Reform (ADR) in December 1999. The High Court observed that the Election Commission must gather information of candidates, assess their suitability for holding public office and publicise it widely. In january 2001, the then Government of India formally appealed against the judgement in the Supreme Court.31 The court pronounced its judgment on May 2, 2002 directing the Election Commission to call for the following information from candidates in exercise of its power under Article 324 of the Constitution of India by way of an affidavit to be filed by the candidate along with his or her nomination form. (C)

26

Vineet Pandey, 'Tainted Netas Make a Big List', The Hindustan Times, August 22, 2004. The Constitution of India, Article 327. 28 The Representation of People Act, 1951, Section 8. 29 29 Ibid, Section 62(5), 8(1), 8(2) and 8(3). 30 30 Ibid, Section 8(4). 31 Trilochan Sastry, 'Electoral Reforms and citizens initiatives', Economic and political Weekly, March 24, 2002. 27

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1.

"Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past, if any, whether he is punished with imprisonment or fine?

2.

Prior to six month of filing of nominations, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof.

3.

The assets (immovable, movable, bank balances etc.) of the candidate and his/her spouse and that of dependents.

4.

Liabilities, if any, particularly whether there are any over dues of any public financial institution or government dues.

5.

The educational qualifications of the candidate.

The Supreine ows gave the Election Commission two months to implement the judgement. The Election Commission urged upon the government to undertake the necessary amendments in consonance with the judgement. The government did not show any interest in amending the and asked the Election Commission to seek more time from the court. Since there was no extension of time granted by Supreme Court, the Election Commission issued an order on June 28. 2002. implementing the Supreme Court Judgement.32 Aggrieved bt the ,..ourt directives the government drafts an Amendment Bill to the Representation of People Act and send it to the President to proclaim an ordinance. The draft bill was widely criticised by every section of the society and finally on August 22, 2002, the President A.P.J. Abdul Kalam return the ordinance initially for reconsideration, it was promulgated and eventually enacted as law unanimously whereby the President has no other option but to sign. The Government of India then amended section 33 of the Representation of the People's Act, which stipulated "notwithstanding anything contained in any judgment" of any court or any order or any other instructions issued by the Election Commission, "no candidate shall be liable to disclose or furnish any such information in respect of his election,

32

Narayan Prakash, 'Comments on the Presidents Decision to Return the Poll Reforms Ordinance,' The times of India, Ausut 24, 2002.

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which is not required to be disclosed or furnished under the Act or the rules made there under." The amended Representation of People Act also provided that the candidates have to give details of only such criminal cases, in which cognizance has been taken by the court. It further stipulates that only elected candidates were required to give details of their assets and liabilities. It, however, did not make any provision for declaring their educational qualification. The new ordinance was challenged in the Supreme Court by the organisations , namely, People's Union for Civil Liberties (PUCL), Loksatta and Association for Democratic Reforms (ADR). They questioned the Constitutional validity of the Electoral Reform Ordinance as it violates the citizen's right to know. The Supreme Court ultimately overruled the ordinance and upheld the .‘m-lier order made by itself and Election Commission directives. The judgement declared that while tiling nominations for elections, the candidate has to mandatorily furnish the information which is to be scrutinised by the concerned Returning Officers. The Supreme Court quashed a part of electoral reforms ordinance of the government and simultaneously resorted the order and directives of its own and those of the Election Commission of May and June 2002 respectively. The court also declared the newly included provision 33 as unconstitutional and held the Amendment Act null and void. The court also held that "a voter has a fundamental right to know the criminal antecedents of a candidate" and this right was independent of the statutory rights under the election law.33 To keep further check on criminalisation of Politics the Supreme Court on 6th January 2005 has made an exception in the election law to allow continuance of a Member of Parliament or Member of Legislative Assembly even convicted during his/her term could not be used to contest the next pol1.34 This order was delivered by a five judge Constitution Bench headed by Chief Justice of India R.C. Lahoti, while allowing a petition filed by Ramesh Dalai challenging the election of Nafe Singh of Bahadurgarh in Haryana. Under section 8(4) of Representation of People Act, 1951 sitting member of Legislative Assemblies and Member Parliament, if convicted and sentenced to two years of imprisonment during their tenure as member of the Assembly or Parliament were allowed to continue if their appeals against the

33 34

Jagdeep S. Chhokar, Reforming the Electoral System, Seminar, 521, Jan 2003, pp. 61-64 The Representation of People Act, 1951, Section 8.

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order of conviction was pending with a High Court. However, it was noticed by the court that many of these MPs and MLAs were using this exception to convince the Returning Officer, while filing nomination for the next elections that their conviction had been stayed under the exception clause and hence be allowed to contest the elections. Justice Lahoti writing on his behalf and on behalf of Justice S.V. Patil, B.N. Sri Krishna and G.P. Mathur observed that the saving from disqualification was pre conditioned by the person convicted being a member of a House on the date of conviction. The benefit of such saving is available only as long as the house continues to exist and the person continues to be member of it. The saving ceases to be a member of the House." The court noticed the anomaly being practiced in the acceptance of nomination of persons who were convicted while being a sitting MLA or MP.35 Despite efforts by Supreme Court, Election commission and Parliament criminalisation of politics could not be eliminated. Large number of candidates having criminal records are being fielded by various political parties and some of them are also getting elected to Parliament and State Assemblies. In 14th Lok Sabha for which elections were held in 2004. there was no sign of much improvement as number of candidates having cases pending against them have made their way to Parliament. The Reform Bill passed by Parliament in 2003 could hardly make a dent in the present mess.36 Thus, the subject of criminalisation of politics can only be checked by political parties themselves and through public opinion. Under the law, it should be obligatory for the political parties to file a declaration with the Election Commission that they will not field candidates of criminal background or give tickets to those who are charged as criminals, power should be given to the Election Commission to derecognise or deregister political parties who are found putting up such candidates. Political parties should be legally banned for collecting funds from the candidates seeking tickets, because persons of character and integrity having no money can never expect political positions, if such practice continues. Whenever a criminal case is reported against any one regarding violation of election law, an

35 36

Mohd. Nafees Ahmad Ansari, "Criminalization of politics and Electoral Reforms" 34 IJP 143 (2005). Ibid, p. 146.

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immediate action should be taken against him. At Least judiciary must give priority to cases relating to political corruption and electoral offences. Canvassing by the criminal gangs should be completely banned. The main issue of electoral reforms is to restore the moral foundations of Indian democracy by rescuing it from the pernicious influence of money and muscle power in elections. The suggestions given by the Election Commission and other Commissions may be helpful to check the entry of criminals in politics. The Parliament must consider these suggestions and amend the law accordingly.

4. Election Expenditure and State Aid: The principle of government funding of political parties or candidates or election campaign activities is well established across the democratic world. The idea of State Funding was also discussed during_ constituent assembly debates. K T Shah, one of the Constituent assembly's members had moved an amendment seeking that election expenses be borne by the state.37 The Government did not oppose the principle underlying the amendment but maintained that it would impose an unbearable burden on the state exchequer. Money plays one of the most important roles in elections. In the present political and economic context, the conduct of elections and electioneering campaign led by candidates and political parties have tend to be costly. While the 1952 elections to Parliament and State legislatures cost Rs. 10.50 crore, the 1980 election to the Lok Sabha alone cost about Rs. 52 Crores notwithstanding all the economy measures taken to keep cost down.38 It must be stressed here that this is conservative estimate based perhaps on the returns filled by the candidates to the Election Commission. These returns show less expenditure than actually incurred. Certainly with the present system of conducting elections, the cost will escalate at least in proportion to the rise in the cost of living.

37

Supra note 11, at 1887 AND 11 was: B Venkatesh Kumar, Funding of Elections- Case for Institutionalized Financing, ECONOMIC & POLITICAL WEEKLY 1884 (1999) 38 S.L.Shakkder, 'Framework for Electoral Reforms', 19 Mainstream 7 (1980).

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State funding can be either full or partial and can be organized into four categories, which exist in

a

variety

of

combinations

in

different

countries.

These

are:

firstly,

direct

grants/reimbursements to political parties/candidates not tied to particular expenditures; secondly, specific grants earmarked for particular items of expenditure; thirdly, provision of (Th certain services, free or subsidized, by the government or government-owned organizations for instance, free radio or TV time on state-owned media; and fourth, indirect subsidies such as tax credits to donors or tax exemptions to parties or candidates. The criteria for allocation per seat or per vote basis, it can be on the basis of performance in the recent election. After considering the recommendation made by various committees regarding State funding, of public funds can be on the basis of seat or vote share in the last election, usually on the basis of complicated formulae. In some cases where election expenses are reimbursed on as the Law Commission accepted the suggestion of Inderjit Gupta Committee for partial state funding of elections in kind on an experimental basis by providing facilities for organizing meetings, allocating time on the radio and television and facilitating printing of election literature and postage etc. The committee also recommended imposing simultaneously restrictions by law on the number of cut-outs, banners, wall posters, hoardings, flags, vehicles to be used etc. The Law Commission has also recommended disqualifying a person against a criminal charge has been framed by a Court of law if the offence involved moral turpitude, from contesting at an election or continuing as a Member of Parliament or of a State Legislature. Over the years there has been a steady deterioration in the functioning of our legislature. Explanation 1 added in 1974 to section 77 of the Representation of the People Act, 195139 made a mockery of the election expenditure ceiling, by excluding the expenditure incurred by parties and others from the purview of ceiling limits. The intention of the legislature to tamper with election laws was evident by the addition of Explanation I to S. 77, so as to

39

Explanation 1. - Notwithstanding any judgment, order or decision of any court to the contrary, any expenditure incurred or authorized in connection with the election of a candidate by a political party or by any other association or body of persons or by any individual (other than the candidate or his election agent) shall not be deemed to be, and shall not ever be deemed to have been, expenditure in connection with the election incurred or authorized by the candidate or by his election agent for the purposes of this sub-section.

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nullify the judgment of the Supreme Court in Kanwar Lal Gupta v. Amar Nath Chawla40 case. The very meaning of a ceiling is lost due to this. This amendment made the purpose of a ceiling on election expenses an exercise in futility. The validity of this explanation was challenged in P. Nalla Thampy Terah v. Union of India41. A constitutional bench of the Supreme Court in the case observed that the petitioner in the case was not unjustified in criticizing the provisions contained in Explanation 1 as diluting the principle of free and fair elections, which was the cornerstone of any democratic polity, but it was not for the court to lay down policies in matters pertaining to elections. As the said amendment in sub-section (1) did not violate the constitution, it could not be declared to be invalid although the court did not approve the policy which underlines the amendment. The court further interpreted Explanation I to Section 77 to lay down that unless the expenditure is in fact incurred or authorized by the candidate or his election agent, he couldn't be saddled with that expenditure. In order that explanation 1 to Section 77 of the Act may apply, it must therefore be proved that the source of the expenditure incurred was not out of the money of the candidate or his election agent.42 But the Supreme Court in C. Naravanswamy v. C.L Jaffer Sharief,43 has recognized the harm that explanation 1 has caused. The Supreme Court observed that Section 123(6) of RPA, which makes incurring or authorizing expenditure in contravention of Sec. 77, a corrupt practice has become nugatory and redundant because of Explanation 1 to Sec.77. The court further said that the persons investing funds, in furtherance of the prospect of the election of a candidate must be identified and located and the candidate should not be allowed to plead ignorance about the persons who have made contributions and investments for the success of the candidate. The court exhorted the parliament to take care of the present situation and to remedy the negative impact of Explanation 1 to S. 77(1).44

40

[(1975) 3 SCC 646]. [AIR 1985 SC 1133]. 42 Chandrathud J. in P.Nalla Thampy Terah v. UOI, AIR 1985 SC 1133. 43 1994 (SUPP) 3 SCC 170. 44 N.P Singh J. in C Narayanswamy v. C.L Jaffer Sharief, 1994 (SUPP) 3 SCC 170. 41

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The Supreme Court reiterated the above judgment in Gajanan Bapat v. Dattaji Meghe45 and also held that the political parties must disclose how much amount was collected by them and from whom and the manner in which it was spent so that the court is in position to determine "whose money was actually spent" through the hands of the party. Thus, it is important that Explanation I under Section 77 of the Representation of the People Act 1951 should be repealed. There should he reasonable ceilings imposed from time to time and all expenditure by parties, candidates and their friends should be included in the ceiling limits. Any illegitimate expenditure to give inducements to voters, bribe officials or indulge in electoral malpractices should result in fines and penal proceedings.46 It is imperative that the authorities enforce these reforms and cleanse our electoral process of the vicious circle of corruption and black money which threatens the very foundation of our democracy. Unless drastic and radical steps are taken to cleanse public offices by the government, political parties and people at large, corruption will continue to corrode the vitals of the country.

5. Minimum Educational Qualification for a Legislator: Political parties should in their constitution provide for establishing some institutional mechanism for planning, thinking and research on crucial socio-economic issues facing the nation and educational cells for socializing their party cadres and preparing them for responsibilities of governance. There was a demand in the Constituent Assembly • that some minimum educational may be prescribed as eligibility for contesting elections to • the Lok Sabha and State Legislative Assembly. In such background, it has to be admitted that the founding fathers wisely decided against any such step at that time, considering the level of literacy in the Country and the need for building up a united country and creating a sense of belonging and social cohesion in which all citizens are treated equally. After Indian's Independence, it is however, time to consider whether a minimum education qualification \„) may be prescribed now. The educational profile of the legislators has been showing considerable improvement over the years. While it is possible to argue that democracy is 45 46

(1995) 5 SCC 437 C. Rajashekhar, "Ensuring Free and Fair Elections: Role of Election Commission of India" 26 IBR 48 (1999)

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much more than governance, looking to the complexity of issues of governance, which come before legislatures, it is only appropriate that the legislators are able to comprehend the issues and contribute to the deliberations in the House. It is difficult to argue that while it is necessary to have a minimum educational qualification for the post of a person or a messenger or a clerk, no such qualification need to be prescribed for a legislator who is to be a law giver of the land. Against this background, it is necessary to lay down that a degree should be the minimum educational qualification for contesting an election as Member of Parliament or legislative Assembly. There is no dearth of suitable persons with such qualification even in tribal areas, leave aside other rural areas. It is also submitted that if prescribing the educational qualification is not possible then some sort of post-election trainimz, orientation course or the like programme should be initiated for the new members so as to acquaint them with their duties and responsibilities the Country's political system, Parliamentary practice and procedure and a bare idea about the Constitution.

6. Ban of independents and Electoral Reforms: The Election Commission of India had been from time to time reporting to the government about the trouble of non-serious candidates, particularly the independent candidates, and had recommended the elimination of such frivolous contests.47 It is often suggested that there should be a total ban on contesting elections by independent candidates in the view of Law Commission; the time is now ripe for debarring independent candidates from contesting Parliamentary and Assembly Elections48. This will be an unreasonable restriction, particularly when in the typically Indian party System persons who are not professional politicians hardly ever get an opportunity to contest elections as party candidates. It cannot be denied that there is a need for induction of eminent persons from various fields in the politics of the Country. It should also be noted that after the State funding scheme is

47

J.P. Sharma, "Election Commission Reports; A content Analysis Election Reforms in India" IJCPS 201 (1971); Second Annual Report election Commission of India, 1984 p.78. 48 Law Commission Of India, 1984., p. 186.

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introduced, the fact that such funding will not be available to the independent candidates for contesting election. Vide the Representation of People (Amendment) Act, 1996, security deposit for independent 0 candidates was enhanced to twenty times of the earlier limit, number of proposers for independent candidates increased and it had been provided that the names of the independent candidates would be listed in the ballot paper below the names of the candidates set up by the political parties. It was also amended so that a person could contest at the most from two constituencies. These measures to some extent succeeded in reducing the number of non-serious independent candidates. But, more needs to be done.

7. Disclosure by the candidate standing in the Election: One point is very important for the politician for standing for an election i.e. transparency. He should disclose all information that is required to be disclosed to the public. The public has to know the candidate for whom they are going to vote for. They need to trust the person so that they know they are not electing someone who is fraud. Their trust & belief will lead them to vote. Non-Disclosure of any vital point if released later will create mistrust in the mind of people who have voted for and the person might lose support of them in future. In Common Cause case,49 the Court dealt with an issue that elections that are held in India 41 was fought with the help of black money and collecting black money would become easier if they win which in turn will help them in re-election. So if in the affidavit the candidate reveals all the personal information about his funds it will be easier for the voters to know about it and decide whom they want to vote for and not elect law breakers. The Supreme Court states that the voters have the fundamental rights to know about the candidates who are standing for election as it is very significant in the democracy in India. The screening of candidates resulted in huge opposition among the general public and the concerned parties had to remove the candidates with a criminal record. Due to huge pressure

49

(1996) 2 SCC 752.

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from the general public, the parties will prevent themselves from nominating candidates with criminal record. EC notification on June. 2002 made it mandatory for the politicians to disclose their1) Criminal Records which included Convictions, charges that are pending and case that are taken cognizance, 2) Financial Records which includes assets, liabilities and dues from the public financial institution of election candidate, spouse and family member. In Union of India vs. Association for Democratic Reforms and Another,50 it was held that Citizens have a right to know about public functionaries and candidates ,for office, including their assets and criminal and educational backgrounds, which right is derivedfrom the constitutional right to freedom of speech and expression." And "(1) When the legislature is silent on a particular subject and an entitte tin this case, the Election Commission) has been granted implementation authority with respect to such subject, the Court assumes that the entity has the power to issue directions or orders to fill such a void until a suitable law on the subject is enacted; " The court directed that the following information should be revealed by the candidates for the public:1) All convictions. 2) Charges framed 3) Cases of which cognizance was taken should be revealed. In terms of Section 33A of the Representation of the People Act, 1951, read with Rule 4A of Conduct of Election Rules, 1961, each candidate has to file an affidavit,51 giving information on the following:  50

51

All the cases for an offence other than the offences mentioned in the RP Act 1951 and have been sentenced for one year or more. Convictions involving a sentence of one year or more, and

(2002) 5 SCC 294. Form 26 appended to the Conduct of Election Rules, 1961.

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

Pending charges (framed by a magistrate) entailing a sentence of imprisonment of two years or more.

Non-disclosure (non-filing of affidavits) will clearly be a ground for rejection of nomination." So disclosure of all information by the candidates is mandatory as this is a democratic country and the public is entitled to know about the candidates who stand for election for transparency. General awareness of the candidates is one of essentials for free & fair election. Article 19(1) of the Constitution also states the right of people to have knowledge about the candidates standing in the election.

8. Negative Voting

The concept of negative voting provides the choice to a voter to reject a candidate she or he does not find them suitable. In the current practice of adult suffrage in India, the voter in fact adopts a process of elimination than selection. Suppose when a voter is faced with a situation where he finds none in the list to be suitable enough to represent him/her, what does s/he do? He either votes for the one s/he 'dislikes the least' or she or he just skips voting. In both these circumstances the freedom of the citizen to elect his or her representative is only partially met, which may not be called as a free will but a forced will. System of negative voting operates in two forms. In the first form_ the voter is given two options, one is 'for' and the other is 'against'. He can vote for the candidate he finds most suitable and against he considers highly undeserving. During the counting of votes all the `for' and 'against' votes are added separately and then added to each other to get the sum total of it for a particular candidate. The candidate getting the highest number of 'for' votes (or least number of 'against' votes as the case may be) is declared elected. This suggestion is a radical one. In the other form, which is also known as neutral voting, simply one more option indicating 'none of the above' is added to the ballot paper. Here the voter will have the option of rejecting all the candidates if s/he finds them unfit to represent him or her. The Election Commission of India (EC) recommended in 2001 and again in 2004 that "Rules 22 and 49 B of the Conduct of Election Rules, 1961 may be suitably amended adding a 138

proviso that in the ballot paper ... there shall be a column 'None of the above', to enable a voter to reject all the candidates, if he chooses so." The main advantage of the incorporation of NOTA is upholding and recognition of the right of the citizens to not cast a vote while maintaining secrecy during such abstinence. The true spirit of democracy lies in the right of the citizens to be able to choose their representatives Liperiodically. Obviously the ends of democracy can be met only when majority of the citizens exercise this right. However, at the same time it must be ensured that the citizens are not compelled to choose the best from the worst (which, unfortunately is the case more often than not). This is exactly what NOTA seeks to achieve. The driving force behind the decision of the Supreme Court in People's Union for Civil Liberties & anr. v. Union of India & anr52 was the fact that introduction of NOTA in EVMs would compel the political parties to project candidates with a so to speak "clean background" in the various constituencies. NOTA is a powerful device in the hands of he voters who, if dissatisfied with the quality of the candidates may choose to use it. This consequently has the effect of a constant pressure on the political parties to ensure that only qualified and suitable candidates represent their political party in the elections. The consequence of this entire procedure: a much cleaner political future for India. At least this was the entire idea behind the Supreme Court passing a 0 Judgment in favor of introduction of NOTA. NOTA is a step forward in achieving the ends of democracy. This recommendation has fallen into deaf ear of successive governments. The Election Commission of India has also not attempted to bring in such a provision on its own despite it having the power to do so.53 The Supreme Court also played safe hand and called for a larger political consensus when it has been approached by concerned citizen for acting proactive to bringing in this provision. The system of negative voting operates in countries like Nevada State (United States), in Massachusetts (United States), Spain , Switzerland etc. in various forms.

52

WRIT PETITION (CIVIL) NO. 161 OF 2004 (In Mohinder Singh Gill case of 1978 and A.C. Jose case of 1984, the Supreme Court held that the EC has power to bring in such reforms on its own). 53

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This reform will in all likelihood bring back the disaffected voters back to the election process as he now has option to vent out his displeasure toward the candidates. If the numbers of negative voting in an election is too large, it shall bring moral impact on the political parties to redefine their criteria for candidate selection.

9. Model Code of Conduct for Political Parties: The Election Commission of India is regarded as guardian of free and fair elections. In every election, the ECI issues a Model Code of Conduct for political parties and candidates to conduct elections in a free and fair manner. The Commission circulated its first Code at the time of the fifth general elections, held in 1971. Since then, the Code has been revised from time to time. The Code of Conduct lays down guidelines as to how political parties and candidates should conduct themselves during elections. A provision vas made under the Code that from the time the elections are announced by the Commission. Ministers and other authorities cannot announce any financial i4rant, lay foundation stones of projects of schemes of any kind, make promises of construction of roads, carry out any appointments in government and public undertakings which may have the effect of influencing the voters in favor of the ruling party. 0 MCC has no statutory backing and many of its provisions are not legally enforceable. However, public opinion is the moral sanction for its enforcement and hence. the Model Code of Conduct has evolved to be a Moral Code of Conduct. The Commission has been effectively using the MCC as a tool to ensure honest, free and fair elections in India. Though ECI has quite effectively neutralized the challenges of muscle power and incumbency power, 0 it is concerned that corruption and money power can pollute the electoral process and undermines its real potential. Political party reforms are critical and need to be addressed on an urgent basis in the content 0 of electoral reforms. The only reference to political parties in the Indian Constitution is mainly in the Tenth Schedule of the 'Constitution incorporated by the Constitution (52nd Amendment) Act, 1985. It deals with the disqualification of a person for being a member of either House of Parliament or the Legislative Assembly/Council on grounds of defection.

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The major onus of framing and administering the rules and regulations governing political parties comes within the juridical purview of the Election Commission of India (ECI). It is the ECI which has the ultimate power to register or deny registration to any association or body of individuals as a political party; and to accord recognition and status of political parties to "the association or body of citizens of India". There is a need for a comprehensive legislation regulating the functioning of political parties in India. The legislation should provide conditions for the constitution of a political party and for recognition, registration and de-registration. Until now the recognition and registration of political parties is done only for the limited purpose of allocating symbols. Political parties are registered with the Commission under the provisions of Section 29 A of the Representation of the People Act, 1951. The Section, as it stands. suffers from a certain looseness by which just about any small group of persons, if they so desire, can be registered as a political party, by making a simple declaration under Section 29A(5). This has resulted in the mushrooming and proliferation of a large number of non-serious parties, which creates a considerable system load in the management of elections.54 The Election Commission has also suggested that under the existing Section 29A of the Representation of People Act, 1951. Another clause may be introduced authorizing the Election Commission to issue the necessary orders, regulating the registration and de-registration of political parties.

Law Commission in its 170th Report on Electoral Reforms had suggested for the inclusion of a completely new Part — 11A, titled 'Organization of Political Parties and matters incidental thereto' to be introduced in the Representation of the People Act of 1951. This new Part-IIA, comprising of Section 11A to 111 provides for the internal democracy of the political parties; the complete adherence of the aims & objectives or goals & ideals of the political parties with that of the Constitution of India; its registration with the ECI without which no political party would be permitted to contest elections; general organization of the political parties; maintenance of regular accounts of the political parties of the amounts received by the party, its income, and expenditure, have them audited and submit the same to the ECI. This Part-

54

B. Venkatesh Kumar, "Critical Issues in Electoral reforms" 63 JJPS 82 (2002).

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IIA also details out the punishment to be met out to the political parties in case of noncompliance of these sections in the form of penalty of Rs. 10,000 for each day of continued noncompliance after notice, as well as withdrawal of registration of the said political party. Additionally, this report from the Law commission emphasizes the insertion of another new Section 78A to the RPA. whereby it provides for stringent punishment for the political parties in case of non-compliance with the maintenance and the disclosure norms regarding the clear and full annual account of the receipt and expenditure incurred by the political parties. The minimum that citizens can be promised is the provision that seeks to regulate the regular functioning of political parties in terms of maintenance of accounts and contributions along with a clause for legal punitive action in case of non-compliance. Moreover, there should be a mandatory requirement for the appropriate authority to generate public information regarding defaults of Political Parties on binding disclosures so that the truthful public image of the political party may be constructed in the minds of the common citizenry. Over the years, the Election Commission has conducted a number of creditable electoral reforms to stremzthen democracy and improve the fairness of elections. Nowadays, election has not become so easy and smooth. Corrupt practices have taken place in election these days. 'Criminal entry' in politics has become a regular or general practice. It should be checked in a proper and effective manner. It is not so easy task but Sincere and genuine efforts are required by all side; especially the 'political parties' should be neat and clean in this matter. The main problem is not lack of laws, but lack of strict implementation of these laws. In order to eradicate these unfair practices in election, there is a need to strengthen the hands of the Election Commission and to provide them more legal and institutional powers. A meeting of mind should be developed in political arena that all types of reforms in the election is the utmost need of the time. This is necessary to protect the democracy in the country.

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