Archive for December, 2012

Electoral Reforms: An overview and the way ahead

Posted on December 27, 2012. Filed under: Elections, Politics |

Electoral Reforms: An overview and the way ahead

Jagdeep S. Chhokar

Talk delivered at the

XI Biennial Conference of the All India Lawyers Union

New Delhi, December 27, 2012

Ladies and Gentlemen:

At the outset, let me say that I am very grateful to the All India Lawyers Union for giving me this opportunity of speaking to this enlightened gathering. I am delighted to be here. Having worked on electoral and political reforms for 13 years now, I consider it to be a unique opportunity to share my views with the members of the legal profession to which I am a recent entrant.

There has been a lot of discussion and debate concerning electoral reforms in recent months and years. One of the reasons for this among many others, I am sure, is the dissatisfaction with the state of governance in the country. While governance happens at many levels and many areas, the one that attracts most comment is political governance. Since “We, the People” adopted and gave unto ourselves, representative democracy as the chosen form of government, through the agency of the members of the Constituent Assembly, and elections are the mechanism through which decisions about who will govern the country are taken; whenever we find something wrong or wanting in the governance process, we tend to think of elections, and how they must be improved so that governance can be improved.

The most recent, and stark, examples are those of the working, or not working, of the Parliament over the last four sessions, and the recent session of the West Bengal state assembly in one of which a few members were even physically injured. When lay citizens see such dismaying spectacles on television, they think about the system that gets such people in these temples of democracy, and they think about electoral reforms.

We have just been through two state assembly elections. The Election Commission is happy that the voter turnout of over 70% in one of the two states set a new record. The supporters and sympathisers of one of the political parties are happy that their party has formed the government for the third time in a row. Similarly, the supporters and sympathisers of another political party are happy because their party has wrested political power after a gap. It indeed is a great tribute to the voters that they continue to turn out in such large numbers — much better than some of the so-called developed countries and mature democracies. But, are we, the voters, happy at what we go through and do we participate in this celebration of democracy enthusiastically and happily? I am not sure. Let me read to you part of a letter written to the editor of one of the newspapers in one of the states soon after the polling.

“Thank God! The vulgar cacophony, throwing of abuses and trading of charges by political parties with each other is over.

All political parties have made narrow-minded, extremely bigoted … statements against each other as if they were in the race to prove who was more conservative and backward and who would be the first to destroy this nation by such ideologies, as Taliban has done for Afghanistan!

No wonder people showed fatigue and displayed lack of enthusiasm in the type of democratic exercise now repeatedly held to elect the begging candidates so that on being elected they can sit in power and loot us, and amass wealth and power for their dynasties.

Their slogan seems to be, ‘Cast your vote in favour of one whom you want should amass wealth!’

Are our aspirations being fulfilled, even minimum security of life and basic services like food, water, shelter being met by the system created?
. . .
What democratic values these bunch of self-appointed leaders will propagate with such narrow-minded approaches. Our democracy ends the day we cast our vote.”

The writer seems to be concerned, and so should we be, at the quality of people that are in the electoral process. I believe we, as concerned citizens, should also be concerned with the process that brings such people into our legislatures.

A peep into history of electoral reforms

While the talk about electoral reforms rises and goes into oblivion from time to time, it has a long history.

Let me share with you some observations:

“Leaving now our laurels alone, it become imperative to take stock of the present state of affairs which causes concern and anxiety because of the existence of the looming danger threatening to cut at the very roots of free and fair elections.

The role of money and muscle powers at elections deflecting seriously the well accepted democratic values and ethos and corrupting the process; rapid criminalisation of politics greatly encouraging evils of booth capturing, rigging, violence etc.; misuse of official machinery, i.e. official media and ministerial; increasing menace of participation of non-serious candidates; form the core of our electoral problems. Urgent corrective measures are the need of the hour lest the system itself should collapse.

Electoral reforms are correctly understood to be a continuous process. But attempts so far made in this area did not touch even the fringe of the problem. They appeared to be abortive. Some of the recent measures like reduction of voting age and anti-defection law are no doubt laudable and the basic principles underlying those measures should be appreciated. But there are other vital and important areas in election field completely neglected and left high and dry.”

Does the above sound familiar, contemporary? It was written in May of 1999 in what has come to be known as the Goswami Committee Report, officially called the Committee on Electoral Reforms. It went on to say, “All these four decades, especially after 1967, the demand for electoral reforms has been mounting up.”

Following the “demand of electoral reforms” over four decades, the then Prime Minister, V.P. Singh called an all-party meeting on January 09, 1999, as a result of which a committee was set up under the chairmanship of Shri Dinesh Goswami, the then Law Minister with the following as members:

1. Shri H.K.L. Bhagat M.P. (Indian National Congress)
2. Shri L.K. Advani M.P. (Bharatiya Janata Party)
3. Shri Somnath Chatterjee M.P. (Communist Party of India)[Marxist]
4. Shri Ghulam Rasool Mattoo M.P. (National Conference)
5. Shri Chimanbhai Mehta M.P.
6. Shri Indrajit M.P.
7. Shri Homi F. Daji Former M.P. (Communist Party of India)
8. Shri Era Sezhiyan Former M.P. (Janata Dal)
9. Shri V. Kishore Chandra Deo Former M.P. (Congress (S))
10. Shri L.P. Singh Former Governor
11. Shri S.L. Shakdher Former Chief Election Commissioner

The Goswami Committee made 107 recommendations. I do not have an exact count of how many of the 107 recommendations have been implemented, and to what extent, but I can assure you that a very large proportion of these have not been implemented, or even considered seriously or even considered at all

If we go strictly by the limited descriptor “electoral reforms”, the next important event was in 1998 but before that there was a development in 1993 which has a very strong bearing on this issue and which has come to be known as the Vohra Committee Report. It was prepared by Shri N.N. Vohra, then Home Secretary to the Government of India, who is now the Governor of Jammu and Kashmir. The committee actually consisted of the following five officials of the government:

(i) Home Secretary Chairman
(ii) Secretary (R) Member
(iii) DIB Member
(iv) Director CBI Member
(v) JS(PP) MHA Member Secy.

The committee was set up “to take stock of all available information about the activities of crime Syndicates/Mafia organisations which had developed links with and were being protected by Government functionaries and political personalities.”

Though it was set up as a committee, the Chairman felt, during the first meeting itself, that some of the members were not forthcoming. The report actually says, “In the course of the discussions, I perceived that some of the Members appeared to have some hesitation in openly expressing their views and also seemed unconvinced that Government actually intended to pursue such matters. Accordingly, I addressed separate personal letters to each of the Members of the Committee seeking their well considered suggestions and recommendations.” The Chairman summarized their responses, and then gave his conclusions. Interestingly, the Chairman writes, “In the normal course this report would have been drafted by the Member Secretary and finalized by the Committee. Considering the nature of the issues involved, I did not consider it desirable to burden the Members of the Committee with any further involvement beyond the views expressed by them. Accordingly, I decided to personally dictate this Report.”

The report goes on to say, “I have prepared only three copies of this Report. One copy each is being submitted to MOS (IS) and HM, the third copy being retained by me…After an initial discussion at the level of MOS (IS) and HM, I could send a copy of this Report to FM, before the issues are discussed with him.”

As far as is known, the report has not been made been made public but, given the open society that we are, it is freely available on the Internet, and its contents have not been denied. The major contribution of the report, in the context of electoral reforms, is the coining of, or at least popularizing, the phrase “criminalisation of politics and politicization of crime.” It was the first time that the effect of crime, organized and unorganized, on the electoral process was officially recognized, though not made public.

The next formal attempt at electoral reforms was in 1990 in the form of what has come to be popularly known as the Indrajit Gupta Committee Report. This committee, officially called the “Committee on State Funding of Elections” was set up in 1998 with the following members:

1. Shri Indrajit Gupta Chairman
2. Shri Somnath Chatterjee Member
3. Dr. Manmohan Singh Member
4. Shri Madhukar Sarpodar Member
5. Prof. Vijay Kumar Malhotra Member
6. Shri R. Muthiah Member
7. Shri Digvijay Singh Member
8. Shri Ram Gopal Yadav Member

The Indrajit Gupta Committee report is about the most often quoted report on electoral reforms and it is always quoted to support state funding of elections, a topic that I shall come to a little later but at this point it is worth sharing the opening paragraph of the “Conclusion” of the report which says, “Before concluding, the Committee cannot help expressing its considered view that its recommendations being limited in nature and confined to only one of the aspects of the electoral reforms may bring about only some cosmetic changes in the electoral sphere. What is needed, however, is an immediate overhauling of the electoral process whereby elections are freed from evil influence of all vitiating factors, particularly, criminalisation of politics. It goes without saying that money power and muscle power go together to vitiate the electoral process and it is their combined effect which is sullying the purity of electoral contests and effecting free and fair elections. Meaningful electoral reforms in other spheres of electoral activity are also urgently needed” (Emphasis added).

The next, and in my opinion the most important, document on electoral reforms till date is the 170th report of the Law Commission of India submitted to then Law Minister, Ram Jethmalani, in May 1999. This report, titled “Reform of the Electoral Laws” was prepared by the 15th Law Commission which was chaired by Justice B.P. Jeevan Reddy, a retired judge of the Supreme Court of India. Other members of the Commission were Justice Leila Seth, a retired Chief Justice of Himachal Pradesh High Court and Dr. N.M. Ghatate. The member secretary of the commission was Mr. Subhash C. Jain. Given that piecemeal attempts had not yielded anything worthwhile, as we have seen, and given the complexity of our electoral system the Law Commission was requested to take a comprehensive look at the entire electoral system in the country and suggest what reforms were needed to make the electoral system in tune with the needs of the society. The Commission did exactly that and in a very comprehensive manner and studied all components of the entire electoral system before making their recommendations with detailed rationale and justification. Nothing much has been done by way of implementation of the recommendations.

This was followed by the National Commission to Review the Working of the Constitution, headed by Justice M.N. Venkatachaliah, former Chief Justice of India, set up by the government headed by Atal Behari Vajpayee on February 23, 2000, consisting of the following as members:

1. Justice Shri B.P. Jeevan Reddy, Chairman, Law Commission of India
2. Justice Shri R.S. Sarkaria, former Judge, Supreme Court of India
3. Justice Shri Kottapalli Punnayya, former Judge, Andhra Pradesh High Court
4. Shri P.A. Sangma, former Speaker, Lok Sabha; and Member of Parliament
5. Shri Soli J. Sorabjee, Attorney General for India
6. Shri K. Parasaran, Senior Advocate and former Attorney General for India
7. Dr. Subhash C. Kashyap, former Secretary General, Lok Sabha
8. Shri C.R. Irani, Chief Editor and Managing Director, The Statesman
9. Dr. Abid Hussain, former Ambassador of India in the USA
10. Smt. Sumitra G. Kulkarni, former Member of Parliament, (Rajya Sabha)

The NCRWC, as it came to be called, submitted its report on March 31, 2002. The report had a separate chapter (Chapter 4) which it chose to title as “Electoral Processes and Political Parties”, and made 38 recommendations. Sadly, nothing significant has been done to implement any of the recommendations.

The Election Commission of India has been making recommendations to the Government of India from time to time about various reforms in the electoral system that the Election Commission cannot make within its own authority, some of which require making some changes in the Conduct of Election Rules 1961, the Representation of People Act, 1951, and other similar rules and legislations. While the government has made some of these changes from time to time but any major worthwhile changes have been consistently ignored. The Election Commission compiled 22 of these ignored recommendations and the then Chief Election Commissioner wrote to the Prime Minister giving details of these recommendations on July 05, 2004, and published these on July 30, 2004 to put these in the public domain. There has been no specific reaction from the government to these recommendations.

Then came the report of the Second Administrative Reforms Commission in 2008 which also contained some significant observations on the electoral system, and made some serious recommendations for electoral reforms. Sadly, those recommendations have also not found favour of the government for implementation.

Finally, on December 09, 2010, the then Law Minister, M. Veerappa Moily, and the then Chief Election Commissioner, S.Y. Quraishi, announced in a joint press conference that seven regional and one national consultations will be conducted to evolve a national consensus on electoral reforms, and that will be followed by a comprehensive new legislation on electoral reforms. The seven regional consultations were indeed conducted in 2011, in association with the ECI, the last one being held in Guwahati on June 05,2011. These were to be followed by a national consultation for which time has not been found so far. There were also reports that a draft bill on electoral reforms had been prepared and had been discussed by the Law Minister with the Prime Minister on more than one occasion. During this time, the Law Minister has changed twice and there has been no known progress on electoral reforms.

The latest episode in this continuing saga was the letter that the then, and outgoing, Chief Election Commissioner, Dr. S.Y. Quraishi, wrote to the Prime Minister on April 13, 2012, before demitting office on June 10, 2012. Dr. Quraishi was personally involved in extensive and repeated discussions with the then Law Minister, Veerappa Moily, before the latter was replaced by Salman Khurshid. Some excerpts from the letter, accessed by filing an RTI application, given below exemplify the frustration of those trying to improve the electoral system in the country:

“Hence allow me Sir, to place before you the Commission’s deep disappointment over the fact that a necessary legislation in this regard is yet to be materialised despite an assurance given to us by the Hon’ble Minister of Law and Justice.”

“However, the quality of our elections often gets questioned on account of certain weaknesses in our electoral process. Commission’s reform proposals have always aimed at addressing this predicament. Though certain minor reforms have been adopted by Government and Parliament, the substantial ones have been actually left out allowing the allegations that politicians are not keen about the reforms because of their vested interest.”

“I would like to bring to your kind notice that some proposals which are of technical nature and require only amendment of Rules within the competence of the Ministry of Law and Justice, have also been pending for a long time. This raises questions about the lack of political will, which causes us deep distress” (Italics added).

This, ladies and gentlemen, is the brief history of electoral reforms in the country for the last 45 years, since 1967. Let us now turn to the content of the electoral reforms…what needs to be done and what can be done.

Content of electoral reforms

Given the complexity of the electoral system and its intimate linkages with several other systems of the country, it is not possible to go into anything like complete details in a talk such as this, so I will, of necessity, confine ourselves to some major issues. Let me begin with what might be called the “representativeness” of our electoral system which looks at how representative is the outcome of the election of what might be perceived as the “will” of the People.

Let us look at a hypothetical scenario. For ease of calculation and understanding, let us assume that a constituency has 100 eligible and registered voters. It is important to remember that the number 100 is that of people who are eligible and actually registered to vote, or, in other words, whose names exist on the electoral roll, or what is commonly called “voter list”. Let us further assume that there are six candidates contesting a particular election in this constituency. Given that voter turnout is usually around 50 to 60 per cent in most elections (thought it did exceed 70 per cent in the latest election in Gujarat), taking the voter turnout to be 60 per cent, 60 out of the 100 registered voters actually vote in the election, making the votes polled to be 60. With six candidates in the fray, if one of the candidates gets 11 votes, four get 10 votes each, and one gets 9, the one who gets 11 votes wins, and this win is considered legitimate making this person legally the “elected representative” for that constituency. What gets missed out are some vital facts such as the elected person got only 11 divided by 60, i.e. 18.33 per cent of the votes polled, or, in other words, only 18.33 percent of those who voted, voted in his/her favour. The flip side of this is that 60-11= 49 people voted against the candidate who was elected. 49 out of 60 works out to 81.67 per cent! This is when we consider only the votes polled. If we look at the registered votes, then we find that out of the total of 100 registered voters, only 11 have voted in his/her favour, which means that 100-11=89, or 89 per cent did not vote for this candidate! Can we call a person who has got the active support of only 11 per cent of the total registered voters in a constituency, the duly elected, or truly representative of the constituency? I will let each one of us decide this for ourselves. The next question, that also each of us has to answer for ourselves, is whether it is reasonable to even expect such a person to look after the interest of the entire constituency, or the entire electorate of the constituency.

Why and how does this happen?

This happens because of the “first-past-the-post” system of election that we have adopted. This system when seen in the context of multiplicity of political parties, results in such anomalous outcomes. Leaving aside our hypothetical example that I just described, actual data is not much different. In the last Lok Sabha election in 2009, a total of 433 Lok Sabha MPs (out of 543, i.e. 79.74%) were elected with less than 50% of the votes cast/polled, out of which 257 (47.33%) were elected with votes cast/polled between 41-50%, 142 (26.15%) were elected with less than 40% of the votes cast/polled, and 34 (6.26%) were elected with less than 30% of the votes cast/polled.

If we consider the total number of registered voters, then the percentages are even more revealing. In this case, 539 out of 543 (99.26%) were elected with less than 50% of the votes cast/polled, out of which only 31 (a mere 0.0570%) were elected with votes cast/polled between 41-50%, 142 (26.15%) were elected with less than 40% of the votes cast/polled, 216 (39.78%) were elected with less than 30% of the votes cast/polled, and 3 (0.0055%) were elected with less than 30 % of the votes cast/polled.

It should by now be clear that the current system results in something like 70 percent or more votes, which indeed is the majority, going waste; and this proportion of the electorate is left without representation or voice in the elected body, Parliament or State Legislatures. How representative such “elected representatives” are of the entire electorate does not require much imagination.

Another outcome of the “first-past-the-post” election system is that often a party with as little as 30-35 percent of the total votes cast in the country can end up with as much as 70-75 percent of the seats in Parliament or State Assembly, whereas another party which may have polled 27-28 percent of the votes, might get only about 25 percent of the seats. As a psephologist would say, a “swing” of 2 to 3 percent in votes can result in a huge difference in the number of seats won. The Law Commission reviewed all the 212 parliamentary electoral systems listed in The Global Distribution of Electoral Systems in order to assess what might be the most appropriate for us.

A useful way to judge the efficacy of election systems is to assess how closely they translate national votes into parliamentary seats won. This assessment requires that one looks at both, the vote-seat relationship and the level of wasted votes. After analysing all possibilities, the Commission has suggested a combination of the “first-past-the-post” system and the “list system”. The proposed addition of the “list system” would require that the number of seats in the Lok Sabha be increased by 25 percent, and these additional seats be filled from lists submitted by political parties at the time of filing nominations, in proportion to the percentage of votes polled by parties nationally, the party polling the highest number of votes getting the highest number of seats, and so on.

Another outcome of the above is what might be called the fragmentation of the polity. This can also be referred to as the “divide and rule” phenomenon which is popularly associated with the British Government in India. What is often not recognised is that we seem to have also inherited this “divide and rule” policy, and its operation has continued over the last many years to the overall detriment of the nation. An interesting question is who is using this “divide and rule” policy? Why? And How?

The answer is contained in the question itself. Who can use such a policy except the rulers? And who has been ruling the country for the last 60-some years? The answer: The Politicians.

Why have the politicians being dividing the nation? Simply because it gets them elected. And they have been doing so by continuing to split political parties into smaller and smaller factions, thereby also fragmenting the electorate and the polity at large.

To begin with the big ones, the Indian National Congress has undergone five major splits since 1969 giving rise to eight different formations in addition to the so-called “parent” grouping. The greatest achiever in the regard is what was called the Janata Party in 1977. After splitting countless times, the number of formations it has resulted in seems to add up to 24! The regional parties too suffer from such splits. Starting with the DK of Periyar Ramaswamy, we now have the DMK, AIADMK, MDMK, and the PMK in Tamil Nadu. The irony of parties splitting was captured in a recent newspaper headline “Further Split in Janata Dal (United)”. Possibly, the ultimate practitioner of this art was once a Young Turk and later Elder Statesman, Chandra Sekhar, who appears to be in a party all by himself. This fragmentation of the polity seems to call for replacement of the phrase “unity in diversity” with “utility of diversity” at least for the politicians.

At this juncture, let me clarify that it is quite common, particularly these days, to put almost the entire blame of the current state of affairs on the so-called political class in the country. But all those who would have us believe that all that is wrong has been caused by the political class seem to overlook the fact that the political class does not exist or develop in isolation or in vacuum, but that it emerges and evolves out of the society at large. Therefore the society at large, of which all of us are a part, cannot escape responsibility for the existing state of affairs. While the so-called political class cannot be assigned the complete responsibility for the current state of affairs, they cannot be entirely absolved of it either. I will come to this later but first I would like to suggest that a substantial portion of the behaviour of the political class can be explained as a logical response to the broader social system within which they have to operate. And the electoral system is a major and immediate part of that broader social system. Consequently, one way to change the behaviour of the political class would be to change the system in which they have to operate and to which they have to respond. This is where a comprehensive view of electoral reforms becomes important.

There are other proposals for reducing the fragmentation of the polity. One such stems from, but does not end with, the so-called “right to reject”. The Law Commission presented it as “an alternative method of election”.

It has two major components. One, according to this method, no candidate would be declared elected unless s/he has obtained “50 percent plus one” of the valid votes cast in the constituency. In case no candidate gets more than 50 percent votes, then there would be a ‘run-off’ election between the two candidates receiving the highest number of votes. The rationale for this is “to curtail the significance and role played by caste and community considerations in the electoral process, since there is hardly any constituency in the country where any one particular caste or community can command more than 50 percent of the votes. This means that a candidate has to carry with him/her several castes and communities to get elected.” The second component of the “alternative method of election” is the possibility for voters to cast what is called a “negative vote”, by which the voter indicates that s/he is not inclined to vote for any of the candidates on the ballot paper. The reason for suggesting a negative vote is “to put moral pressure on political parties not to put forward candidates with undesirable records such as criminals, corrupt elements, and persons with unsavory background.”

What the Law Commission termed as the “negative vote” has now come to be called the “right to reject”. It is also referred to as the demand for a button with the option “None of the above” or NOTA for short, on the EVMs. A petition filed by the PUCL (Peoples’ Union for Civil Liberties) is pending before the Supreme Court on the inclusion of the NOTA button on the EVMs.

One standard response, actually a retort, to this has been that a voter has a variant of this even today in the form of Rule 49-O of the Conduct of Election Rules, 1961. Under Rule 49-O, a voter not wanting to vote for any of the candidates on the ballot, has the option of informing the Presiding/Presiding Office of his/her intention. The PO/RO is then required to get the voter to sign on Form 17-A, and cross out the voter’s name from the electoral roll, in acknowledgment of the fact that the vote has indeed been cast, so that it cannot be cast by someone else, an imposter, in an unauthorized way.

There are however two limitations or problems with the exercise of Rule 49-O.

The first is that the principle of the vote being secret is violated by using 49-O since the voter is required to sign Form 17-A and thus a record exists for this voter not having voted for any of the candidates.

The other is that the votes cast under this rule are not counted. They become wasted votes and they have no effect on the outcome of the election. For example, suppose there are 100 voters in a constituency and only two candidates. Even if 97 of the voters use Rule 49-O and do not vote for any of the candidates, and two voters vote for one candidate and one voter votes for the other candidate, under the First-Past-the-Post system that we follow, the candidate who gets two votes will get elected!

The second problem can be solved by adapting the Law Commission’s recommendation of “Fifty percent plus one”. The adaptation is as follows:

1. With a NOTA button on the EVM, the votes cast in favour of NOTA should be counted.

2. If NOTA gets the highest number of votes cast, none of the candidates should be declared to be elected, and a fresh election should be held.

3. In the fresh election, the candidates who contested the earlier election should not be allowed to contest since they have already not being chosen by the electors, and fresh slate of candidates should contest.

4. In the fresh election, the candidate who gets the largest number of votes should be declared to be elected, provided s/he secures “Fifty percent plus one” or more of the votes cast.

5. If the candidate who gets the largest number of votes cast does not get “Fifty percent plus one” votes cast, then there should be a “run-off” election between the top two candidates who get the largest number of votes cast.

I realize that this does sound complicated when described in a talk like this but in actual practice, it is not difficult to organize, and if we want our electoral process to even approach being truly representative, I am afraid there are no simple choices.

It is in this context of reducing the fragmentation of the polity and improving the representativeness of the electoral system that the Law Commission has made another recommendation which may be considered somewhat controversial. This is that only those political parties be allowed representation in parliament who poll at least 5 percent of the vote on a country-wide basis. The total votes polled by each party are to be tallied at the end of the election and candidates of those parties who have polled less than 5 percent of the total vote on a national basis will not be declared elected even if they have polled the highest number of votes in their constituencies. In such cases candidates securing the next highest number of votes will be declared elected provided, of course, the political party of such a candidate has polled more than 5 percent of vote nation-wide.

Once again, this sounds complicated but I am sure the Indian people have the genius to discuss such proposals knowledgably and come to informed conclusions provided there is a true and open discussions on the merits and possibilities of various options. We need to choose a system which is appropriate to our stage of democratic evolution in keeping with our social realities and also our aspirations. But such a debate has not happened in the last many many years.

The next major issue I would like to deal with is that of financing. Financing is often thought of in terms of financing of elections and that is where the Indrajit Gupta Committee Report is most often, and very widely, quoted. However, there are two issues involved here: one of financing of elections and the other the financing of political activity in general, and financing of political parties in particular.

It is claimed very often, if not universally, that the Indrajit Gupta Committee recommended state funding of elections. This is not entirely true. The Indrajit Gupta Committee recommended only partial funding of elections by the state, and that too only in kind and not in cash.

All those who quote the Indrajit Gupta Committee report in support of state funding of elections seem to overlook the opening paragraph of the “Conclusion” of the report which I have already mentioned but which is worth repeating: “Before concluding, the Committee cannot help expressing its considered view that its recommendations being limited in nature and confined to only one of the aspects of the electoral reforms may bring about only some cosmetic changes in the electoral sphere. What is needed, however, is an immediate overhauling of the electoral process whereby elections are freed from evil influence of all vitiating factors, particularly, criminalisation of politics. It goes without saying that money power and muscle power go together to vitiate the electoral process and it is their combined effect of which is sullying the purity of electoral contests and effecting free and fair elections. Meaningful electoral reforms in other spheres of electoral activity are also urgently needed” (Emphasis added).

The issue of state funding also attracted the attention of the Law Commission of India who devoted one full part (Part IV) of their 208-page 170th report to “Control of Election Expenses”. This part (Part IV) of the Law Commission’s report contains an 11-page chapter on “State Funding”. The entire chapter should be read to get a proper understanding of the complexity of state funding, but here mentioning only the concluding paragraph (4.3.4) would suffice. It says:

“Conclusions – After considering views expressed by the participants in the seminars and by various persons and organizations in their responses and after perusing relevant literature on the subject, the Law Commission is of the opinion that in the present circumstances only partial state funding could be contemplated more as a first step towards total state funding but it is absolutely essential that before the idea of state funding (whether partial or total) is resorted to, the provisions suggested in this report relating to political parties (including the provisions ensuring internal democracy, internal structures) and maintenance of accounts, their auditing and submission to Election Commission are implemented. In other words, the implementation of the provisions recommended in Chapter one Part three should be pre-condition to the implementation of the provisions relating to partial state funding set out in the working paper in the Law Commission (partial funding, as already stated, has also been recommended by the Indrajit Gupta Committee). If without such pre-conditions, state funding, even if partial is resorted to, it would not serve the purpose underlying the idea of state funding. The idea of state funding is to eliminate the influence of money power and also to eliminate corporate funding, black money support and raising of funds in the name of elections by the parties and their leaders. The state funding, without the aforesaid pre-conditions, would merely become another source of funds for the political parties and candidates at the cost of public exchequer. We are, therefore, of the opinion that the proposals relating to state funding contained in the Inderjit 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 state 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 every object underlying the idea of state funding of elections” (Emphasis added).

The National Commission to Review the Working of the Constitution, 2001, headed by Justice Venkatachaliah refrained from specifically commenting on the desirability or otherwise of State funding of elections but reiterated the point of the Law Commission that the appropriate framework for regulation of political parties would need to be implemented before proposals for State funding are considered. The actual wording of the NCRWC’s report is, “Any system of State funding of elections bears a close nexus to the regulation of working of political parties by law and to the creation of a foolproof mechanism under law with a view to implementing the financial limits strictly. Therefore, proposal for State funding should be deferred till these regulator mechanisms are firmly in position” (Emphasis added) (Para 4.14.5).

There is no reliable data available for the expenditure during elections. An analysis of expenditure affidavits of 5743 candidates after the 2009 Lok Sabha elections showed that only 4 candidates had declared expenditure above the then limit of Rs.16 Lakhs. Thirty candidates had declared that they had spent between 90 to 95 percent of the limit. The remaining (5743-4-30=) 5,719 or 99.58 percent said that they had spent between 45 to 55 percent of the limit. At the same time there is widespread clamour that the ceiling on expenditure is too low and it should be increased. There is obviously a mismatch somewhere, and all estimates of election expenditure are far above the limit.

In addition to funding of elections, a very crucial issue is the funding of political activity in the country in general, and that of the funding of political parties in particular. The financing of political parties remains one of the most closely guarded secrets in the country despite the almost chilling observations contained in the Vohra Committee report.

When a civil society organization applied for copies of income tax returns of political parties under the Right to Information Act, it was opposed, and strongly, by pretty much all political parties. The application had to go all the way up to the Central Information Commission who decided, despite arguments by senior advocates on behalf of political parties to deny the information, that the income tax returns should be accessible to citizens.

Information gleaned from the thus disclosed income tax returns combined with the statement of donations that political parties are required to file with the Election Commission of India under the Representation of People Act to avail of 100 percent exemption from income tax, reveal that explanations are available for only 20 percent of the total income of political parties. Eighty percent of the income is unexplained. In the 20 percent that were disclosed, there were also some cases of large scale corporate funding, some of which appeared, at least on lifting the corporate veil, to be possibly of foreign origin.

Requests to political parties under the RTI Act to provide information on their financial affairs have been denied on the pretext that they are not “public authorities” under the provisions of the RTI Act. An appeal is pending with the Central Information Commission on this issue.

The above situation, combined with the Law Commission’s observation that “people are generally likely to enter politics or contest election for getting rich overnight,” raises certain uncomfortable issues. Taking in to consideration the recommendations of the Indrajit Gupta Committee, the Law Commission of India, and the NCRWC, the following conclusion seems inescapable.

No worthwhile measures concerning financing of elections can even be contemplated till there is reliable data about the cost of elections. The largest proportion of election expenditure is presumably done by political parties. As of now, there is no reliable data about the financial affairs of political parties. The foremost requirement for getting a clear and comprehensible picture of financing of elections is to get financial transparency in the financial affairs of political parties. Any discussion of state funding either of elections or of political activity or political parties can only be discussed after transparency of financial affairs of political parties is ensured.

The detailing of this can of course be worked out and a lot of proposals are available. For example, the Election Commission recently got the Institute of Chartered Accountants of India (ICAI) to draw up guidelines concerning the formats, frequency, scrutiny, etc. of the accounts to be maintained by political parties. These guidelines should be made mandatory, and any failure to comply with these should lead to automatic de-registration of the party. This has apparently been discussed with political parties and seems not to have found favour with them.

The last issue concerning electoral reforms that I would like to discuss pertains to the functioning of political parties. It is obvious and does not need any discussion that political parties are absolutely necessary for the functioning of a representative democracy such as ours. The Law Commission has also said that a democracy and particularly a parliamentary democracy without political parties is inconceivable. Even the Supreme Court has held that political parties are integral to the governance of a democratic society. They perform the critical function of mobilising and organising public opinion and will, and function as a link between the public at large and the government, particularly its political wing.

While they are a necessary mechanism for the functioning of a democracy, it is interesting to note that our Constitution is silent on the issue of functioning of political parties. As a matter of fact the expression “political parties” does not even appear in the main text of the Constitution, and figures only in the Tenth Schedule which was added by the Constitution (Fifty-second Amendment) Act, 1985, with effect from March 01, 1985, which refers to anti-defection provisions.

Some of us might find it surprising that the Constituent Assembly did not deem it necessary to mention anything about political parties in the Constitution. In my opinion this is because it was a group of principled and high-minded people who drafted the Constitution. In their deliberations for the future of the nation, they were perhaps influenced by their idealism, particularly in the immediate after-glow of independence. I assume they must have thought that people similar to them will lead the country even in the years to come. The Indian genius has certainly evolved over the last 65 years and at least in some ways, the socio-political milieu of India has changed almost beyond recognition. Some of the assumptions and expectations of members of the Constituent Assembly are, therefore and unfortunately, not valid today.

This issue of lack of internal democracy in the functioning of political parties also engaged the attention of the Law Commission. The Commission had prepared a working paper which they had circulated widely and also discussed in four seminars across the country. After considering the vast number of responses received in response to their working paper and the views expressed in the four seminars, the Law Commission observed that “if democracy and accountability constitute the core of our constitutional system, the same concepts must also apply to and bind the political parties which are integral to parliamentary democracy. It is the political parties that form the government, man the Parliament and run the governance of the country. It is therefore necessary to introduce internal democracy, financial transparency and accountability in the working of the political parties. A political party which does not respect democratic principles in its internal working cannot be expected to respect those principles in the governance of the country. It cannot be dictatorship internally and democratic in its functioning outside”.

After coming the above conclusion, the Commission proposed that a new part titled “Organization of Political Parties and matters incidental thereto” be added to the Representation of People Act. This will specify things such as regular holding of elections, transparency of financial affairs. Non-observance of these provisions will attract de-recognition as a political party. It will mean that the party will cease to exist legally as a political party and consequently will neither be able to put up candidates for elections nor be entitled to facilities and benefits that would be available to registered political parties. These recommendations suggesting legal provisions for the functioning of political parties are possibly the most significant part of the Law Commssion’s entire report, and this, in my humble opinion, is the most significant and urgent reform needed to correct our electoral system.

I have not mentioned one reform which brought me in this area of work, and that is trying to eliminate or reduce the impact of criminalisation on the electoral process. I am sure everyone here knows that candidates contesting elections to Parliament and State Assemblies have to now file affidavits as an essential part of their nomination forms, disclosing their criminal, financial, and educational antecedents. This came about through Public Interest Litigations (PILs) filed and pursued in the Delhi High Court and the Supreme Court by the civil society organization that I am associated with. While some progress has been made but the work of removing criminal elements from the political arena is far from complete, and efforts are continuing in that direction too. This is another critical area of electoral reforms.

How will electoral reforms happen?

The initiation, formulation, and implementation of electoral reforms rest with the government of the day, under the overall guidance and direction of the Parliament. We are therefore in the quagmire where politicians are the ultimate authority to decide whether reforms which disturb their existing, familiar, and comfortable arrangement should be implemented or not. Given the current political milieu of the country, it is any one’s guess what is likely to happen. My view is that it is extremely unlikely that any significant recommendations will be implemented. I say this because of the peep into history of electoral reforms that I gave you in the earlier part of this talk.

Politics is not, and does not have to be an undesirable activity. Dictionary meanings of politics are “the science or art of government”, or “the affairs or activities of those engaged in controlling or seeking control of a government.” As has already been said, political activity and political parties are an essential requirement for the functioning of a democratic society because they provide the necessary link between people at large and the government. In a broad sense, politicians serve the function of mobilising and crystallising public opinion and translating it into executive action. If done conscientiously and with due diligence, this should result in the good of the public. It is, in fact, the very highest form of public service. Notwithstanding this, politicians tend to attract derisive comments from their publics the world over. The situation in India seems to be particularly acute. In the words of the Law Commission “there has been a steady deterioration in the standards, practices and pronouncements of the political class, which fights the elections. Money-power, muscle-power, corrupt practices and unfair means are being freely employed to win the elections.”

The events of the last couple of years have not helped in improving the public image of the political class but improve this, we must.

So, what can we, as Indian citizens first, and then as lawyers do? However, having worked in this area of electoral and political reforms for 13 years now, it does seem clear to me that unless pressure is created from the public at large, neither the electoral system nor the political class is going to be reformed. What is needed to generate this pressure from the public at large is sensitisation of the public, and mobilisation and organization of public opinion. Unfortunately this is a task in which the political class specialises. However, “We, the People”, owe it to the country and its future to do whatever we can in this regard.

I thank you for your patient listening.

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    This blog contains Jagdeep S. Chhokar’s views, opinions, and comments on variety of issues.

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