Elections

Chasing black money: How parties are resisting transparency in funding

Posted on November 8, 2014. Filed under: Black money, Elections, Financial transparency, Political financing, Political parties |

Chasing black money: How parties are resisting transparency in funding

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Electoral Reforms: Law Commission’s Recommendations, Talk delivered on Oct 08, 1999

Posted on January 6, 2014. Filed under: Elections, Political financing, Political parties, Politics | Tags: , |

Electoral Reforms: Law Commission’s Recommendations

Fourth Lecture on Governance delivered at

Wagh Bakri-AMA Centre for Governance,

Ahmedabad Management Association, on October 8, 1999,

by

Jagdeep S. Chhokar

Professor, Indian Institute of Management, Ahmedabad.

 Let me begin by sharing with you what I plan to do this evening. I will begin with some observations on the electoral situation in the country.  I will then tell you in brief what the Law Commission is and the process they have followed to come up with their recommendations on electoral reforms. That will be followed by a discussion of some of the major recommendations. I will then spend some time discussing the prospects of implementation of those recommendations. I will end with one example of enlightened public action for electoral reforms.

We have just been through the third national general election in three years. The Election Commission is happy that the overall voter turnout was around 60%. The supporters and sympathisers of the National Democratic Alliance and the BJP are happy that this grouping is likely to form the next government. Similarly, the supporters and sympathisers of the Congress are happy because it seems to have done better than the last election in  UP, Karnataka, etc. It indeed is a great tribute to us, the voters, that we continue to turn out in such large numbers — much better than some of the so-called developed countries and mature democracies.  But, are we happy at what we have gone through and did 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 here in Ahmedabad on September 9, 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 qualilty of people that are in the electoral process. Other issues of concern are:  How long will this arrangement last? When will destabilisation begin? Will an alliance of 11 or 18 or 24 parties last? And what will it be able to do? Above all, we should be concerned with the over 100 deaths which occured as a result of poll-related violence.

Regardless of which political formation one sympathises with, the prospect of having three elections in three years should be disturbing for any one who has the welfare of the nation in mind. Of course there are political groupings who publicly proclaim that a hung parliament is in their best interest. And that they would prefer a majboor sarkar (dependent government) instead of a mazboot sarkar (strong government). It seems difficult to believe that hung parliament and majboor sarkar are in the overall interest of the nation. Instability of government and discontinuities in the governance of the country are just one outcome of an infirm electoral system. Another disturbing outcome is the damage the current political and electoral climate is doing to the moral fabric of the country. This can be seen quite clearly in the way the younger generation, particularly those who are just qualifying to vote, views the whole election and political scenario in the country. The disenchantment and scepticism of the younger generation about the entire electoral process does not appear to augur well for the future of the country.

It is quite common 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, as a student of human behaviour, 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 electoral reforms, especially those recommended by the Law Commission, become important.

Now a little about the Law Commission. The Law Commission of India is appointed by the Government of India and is required to apply its mind to matters of importance which have a bearing on the legal and judicial system of the country. The 170th report of the Commission on the subject of electoral reforms has been prepared by the 15th Law Commission which is chaired by Justice B.P. Jeevan Reddy, who is a retired judge of the Supreme Court of India. Other members of the Commission are Justice Leila Seth, a retired Chief Justice of Himachal Pradesh High Court and Dr. N.M. Ghatate. The member secretary of the commission is Mr. Subhash C. Jain. These are all legal luminaries of unimpeachable reputation and standing. As a matter of fact I am told one of them was offered the governorship of a state but declined. I am not sure how many politicians would decline an offer of governorship.

Piecemeal and sporadic attempts at reforming the electoral system have been made from time to time over the last many years particularly whenever it suited the party in power.  The recent statement of Mr. L.K. Advani that a draft bill to ban candidates contesting Lok Sabha election from more than one constituency is just the latest instance of this. Given the complexity of our electoral system it should be obvious that piecemeal attempts at reform are not going to achieve anything worthwhile. It is for this reason that I find the comprehensive look that the Law Commission has taken at all components of the entire electoral system, and the rationale and justification that they have given for their recommendations, to be a valuable opportunity. Like all opportunities, even this one is unlikely to bear fruit unless it is implemented in right earnest. Before discussing how to implement it, let us first see what the Law Commission has done and how it has gone about doing so.

Let us first see the how. The 15th Law Commission undertook a thorough review of the Representation of People Act, 1951, and associated legislation with the underlying objective “to make the electoral process more fair, transparent and equitable. The effort was to reduce the several distortions and evils that had crept into the Indian electoral system.” The Law Commission prepared a working paper which contained several proposals and their justifications. This working paper was communicated to all the recognised political parties both at the national and state level, the Houses of Parliament, the State Legislatures, the High Courts, Bar Associations, Election Commission, prominent media personalities, associations and organizations interested in electoral reforms, and many other persons for their comments, observations and suggestions. A large number of responses were received. Subsequently the Law Commission held four seminars, the first and the fourth in Delhi, and one each at Thiruvananthapuram and Bangalore. After thoroughly analysing the views obtained from various quarters, the Commission prepared their 170th report containing recommendations which in their opinion were “essential to make our electoral system more representative, fair and transparent, to strengthen our democracy, to arrest and reverse the process of proliferation and splitting of political parties and to introduce stability in our governance.”

Now to what the Commission has done. Considering that the primary duty of the electoral system is to represent the wishes of the electorate as effectively as possible, the Commission has made a large number of recommendations. We cannot of course discuss all the recommendations here given the limited time, but I will try and give you a flavour of the recommendations and share with you some of the major recommendations and their rationale. For ease of presentation it is useful to group them into a few broad categories.

The first set pertains to the functioning of political parties. The Commission maintains that a democracy and particularly a parliamentary democracy without political parties is inconceivable. It quotes from a Supreme Court judgement to say 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 paradoxical that a number of them are highly undemocratic in their own internal functioning. We all know of political parties, and leading ones at that — both nationally and regionally — in which internal elections are hardly ever held. It is these internally undemocratic parties which often claim to be the upholders of the democratic tradition in the country or in their respective states. The total lack of transparency of the financial affairs of political parties is another anomaly.

Our Constitution is silent on the issue of functioning of political parties. Some of us might find it surprising that the Constituent Assembly did not deem it necessary to mention anything about this. 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 50 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.

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”.

The Commission came to the conclusion that it is necessary to introduce internal democracy, financial transparency and accountability in the working of political parties…by law. In this connection, it has 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 entire report.

The second set of recommendations refers to ensuring representativeness as an outcome of the election process and reducing the fragmentation of the polity. The latter can also be referred to as preventing 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 50 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 is the Elder Statesman of today and the Young Turk of yesteryears, 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.

As I mentioned earlier, it is easy but not completely correct to blame the political class for this fracturing of the nation. The political class has also evolved over the years in response to the conditions prevailing in our society. And one such important and defining condition is our electoral system.

One major feature of our electoral system which encourages fragmentation is the “first-past-the-post” system of election.  This system when seen in the context of multiplicity of political parties, results in candidates being elected with as little as 30 percent or less of the valid votes cast. The remaining 70 percent or more votes, which indeed is the  majority, goes waste and is left without representation or voice in the elected body, Parliament or State Legislatures. Given that the percentage of eligible voters who actually vote may range from 50 to 70 percent, we possibly have people declared elected with as little as 15 percent of the total eligible votes. How representative they 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, 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.

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 two recommendations which have caused considerable controversy. The first of these 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.

The second controversial recommendation is that of debarring independent candidates from contesting elections for Lok Sabha. These recommendations have attracted a fair amount of negative publicity even to the extent of calls to reject the entire report. The rationale for these is reducing the fragmentation of the polity, and thus of the society, and to discourage  frivolous and nonserious candidates from contesting the elections.

There is no dearth of political parties in India. As a matter of fact their number seems to be increasing progressively. The Law Commission has observed that “the proliferation of political parties appears to be mainly inspired by regional, caste, religious/communal and linguistic considerations, besides personality clashes between the leaders of a given political party. Very often splits take place in political parties not on the basis of any ideological differences but mainly on account of personality clashes and personal rivalries and ambitions…The process of splintering is increasing with every general election which is not based on any ideological differences but lust for power.” The requirement of the minimum of 5 percent of the national vote to qualify for representation in parliament is to curb this phenomenon.

On the question of independent candidates the Law Commission report mentions that out of 1,915 independent candidates who contested the election for the 12th Lok Sabha, only 6 were elected. In percentage terms this means that only slightly more than 0.3 percent of all the independent candidates won the seats contested by them. As many as 1,883 of the 1,915 lost their security deposit. In the 1996 election, only 9 out of 10,635 independent candidates won the election. The winning proportion here works out to 0.08 percent. As many as 10,603 (99.7 percent) forfeited their deposits.

A combination of the “first-past-the-post” system and independent candidates encourages a candidate to divide the total vote in the constituency in ways that cut into the votes of the opponents. This division of voters can be on the basis of caste, religion, language, or any other system of grouping.  Sometimes this acquires farcical proportions as when a large number of candidates with the name V.K. Malhotra contested the election from a constituency in Delhi. Obviously all but one of the V.K. Malhotras had been put up by rivals of the one V.K. Malhotra who was a serious candidate. The combination of the “first-past-the-post” system with multiplicity of political parties and a provision for independent candidates to contest elections, results in a situation where the elected candidates represent increasingly smaller proportions of the electorate. The proportion of wasted votes often is as high as 70 percent or more, and it results in gross unrepresentativeness. It also makes a large number of people disinterested in the election process when they repeatedly experience that their vote really has no bearing whatsoever on the outcome of the election process, leading us into a vicious cycle.

Attempts have been made in the past  to discourage independent candidates. For example,  the Election Commission increased the security deposit of independent candidates to something like Rs.2 lakhs for this purpose. This action of the Election Commission has been criticised on the ground that it will make the elections even more the exclusive play ground for moneyed people where the poor would not even be able to think of gaining an entry. It has been suggested that a more useful method to eliminate nonserious independent candidates would be to increase the number of proposers to something like 1000 or even 5000, so that before aspiring to contest the election as an independent candidate, one would have to work with the electorate and build a support base, instead of merely having to arrange a large amount of money as security deposit.

The Law Commission is of the view that we should move towards consolidating the political processes in the country so that the representativeness of the election process can be enhanced, fragmentation of the polity reduced, and we can have greater stability in the governance of the country than we have had in the recent past; and their arguments in favour of this appear to be very persuasive. Whether we, as the people, accept their recommendations as they are in full, or accept them in part or with some modifications, or reject them; it should be for us to decide. But first we must become aware of them and discuss them.

The next set of recommendations is aimed at providing some stability in the governance of the country. The two major recommendations here pertain to no-confidence motions in parliament and the Anti Defection Act. The Commission recommends that a motion of no-confidence in the Lok Sabha be necessarily accompanied by a motion of confidence in an alternate Prime Minister, and that these two motions be debated and voted upon simultaneously. In addition, once a motion of no-confidence or confidence has been voted upon, no such motions should be allowed for a period of two years. It is interesting to note that in this respect, the Commission appears to have shown remarkable foresight by almost anticipating the situation which caused the last election.

The second component needing attention for enhancing stability in governance is that of defection after the election. This of course was attempted to be corrected through the Anti Defection Act. It has not proved to be enough of a corrective because of the provision that if one third or more elected members of a political party leave that party, it does not attract the provisions of the Act. In addition, the phenomenon of several parties providing support to another party in the formation of the government from the outside and then withdrawing the support without attracting the provisions of the Anti Defection Act, has also become a major source of instability in the governance of the country. To guard against these, the Commission has recommended that the exemption from disqualification in the case of parties “splitting” or merging should be removed. This takes care of the sarcastic comment which was made about the Anti Defection Act even when it was enacted, that while it outlawed retail trading of MLAs & MPs, it permitted wholesale trading. Another recommendation is that any pre-election front or coalition should be treated as a political party and withdrawal from such a front or coalition should attract the provisions of the Anti Defection Act. The Commission has made very interesting observations in the regard while saying “the membership of house does not become (a member’s) private property nor can he trade in it. It is a trust and he is in the nature of a trustee.” How many members of parliament and state legislatures think this way is any one’s guess.

In addition to the three main sets of recommendations the Commission has also considered and made recommendations on several other issues pertaining to the electoral system.  One such issue is the intrusion of crime into politics and the increasing nexus between politicians and criminals. In a national seminar on electoral reforms, a former Speaker of the Lok Sabha himself raised the question of what should be done if a political party puts up candidates with criminal background. The editor of a national newspaper mentioned that these two were feeding on each other resulting in “criminalisation of politics and politicisation of crime”. The police find themselves unwilling and unable to take action against criminals because of the nexus between politicians and criminals. At the same seminar several participants expressed strong opinions about the politicians taking the help of criminals not only at the time of election but even at other times, as well as to the direct entry of criminals themselves into the politics. The Commission has recommended that it should be necessary for a candidate seeking to contest election to furnish details regarding criminal cases, if any, pending against him. The Commission cites the suggestions of the Election Commission that framing of charges by a court should be enough to disqualify a person from contesting the election. In this context the Commission upholds people’s right to information while observing that “before allowing people to enter public life, the public has a right to know the antecedents of such persons.” The Commission has also suggested changes in the relevant laws to make enhanced penalties compulsory for lodging frivolous complaints with a view to discourage these.

On another critical issue, that of state funding of elections, the Commission has reiterated all the recommendations of the Indrajit Gupta Committee which had recommended partial state funding of political parties, generally on the same lines as what has come to be called the Dinesh Goswami Bill of 1990. It is worth recalling that the Dinesh Goswami Bill was based on a consensus of all political parties, which itself is a rarity. The Law Commission is however emphatic in saying that “it is absolutely essential that before the idea of state funding (whether partial or total) is resorted to, the provisions suggested in the report relating to political parties (including the provisions governing their internal functioning ensuring internal democracy), and maintenance of accounts, their auditing and submission to Election Commission, and deletion of Explanation 1 to Section 77 of the Representation of People Act are implemented.” I will talk about Section 77 a little later. This is just one example of the interconnectedness and comprehensiveness of the Law Commission’s recommendations.

The Commission has also discussed what it has called “an alternative method of election”. This was included in the working paper prepared by the Commission on the basis of suggestions received from what the Commission calls “certain eminent persons with long experience in public life”. It has two major components. One, according to this method, no candidate would be declared elected unless he/she 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 he/she 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.”

As required by law, the report has been submitted to Mr. Ram Jethmalani, the Minister of Law, Justice, and Company Affairs. The implementation of the recommendations contained in the report now rests with the political arm of the government. We are therefore in the quagmire where politicians are the ultimate authority to decide whether recommendations 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 politicians do not seem to enjoy a very good reputation. It is worthwhile discussing why this is so. A basic question is “Is politics bad?”

It does not have to be. 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. 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.”

While there has been a deterioration of standards in all walks of public life in the country, the extent of this deterioration seems much greater in the political arena. I think the Law Commission reflects broader public opinion when they say that “people are generally likely to enter politics or contest election for getting rich overnight.” Why has this situation arisen? One possible answer to this question is that the “politicians” want it to be, and like it, this way. While this may appear to be an extreme answer, let me cite just one example in support.

Section 77 of the Representation of People Act entitled “Election Expenses”, as originally enacted mentioned that every candidate at an election should maintain a complete account of all expenditure in connection with the election incurred or authorised by him/her or by his/her election agent. There is also an upper limit specified for such election expenses by the Election Commission which, I believe, currently is around Rs.15 lakhs for the Lok Sabha election. Section 123 of the Act also mentions that the incurring or authorising of expenditure in contravention of Section 77 is a corrupt practice which disqualifies the person from contesting the election for the next six years. The politicians decided to observe the letter of the law but violate its spirit by maintaining that incurring of expenditure by the political party or by the friends and supporters of the candidate were different from the expenditure incurred or authorised by the candidate or by his/her election agent, and therefore the expenditure incurred by friends and supporters, and by the party, did not come under the purview of Section 77. When this matter came for consideration of the Supreme Court in 1975, the Supreme Court maintained that “a party candidate does not stand apart from his political party and if the political party does not want the candidate to incur the disqualification, it must exercise control over the expenditure which may be incurred by it directly to promote the poll prospects of the candidate. The same proposition must also hold good in case of expenditure incurred by friends and supporters directly in connection with the election of the candidate. This is the only reasonable interpretation of the provision which would carry out its object and intendment and suppress the mischief and advance the remedy by purifying our election process and ridding it of the pernicious and baneful influence of big money.”

True to character, our politicians did not like this. Soon after the above judgement, the Cabinet recommended to the President an ordinance amending Section 77 by inserting Explanation 1 in subsection (1) of Section 77. The President, in keeping with conventions, approved of and issued the ordinance. The President supposed to be above party politics, but it might be interesting to think how many of our Presidents have not been involved in politics for major parts of their lives! Explanation 1 clarified that “any expenditure incurred or authorised 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 authorised by the candidate or by his election agent for the purpose of this section ….” In effect the ordinance, which was subsequently passed as an amendment to the Representation of People Act, completely nullified the object and purpose of the Supreme Court judgement and underlying Section 77 (1) read with Section 123 (6) of the Act. The Supreme Court has reiterated its stand in several cases and judgements subsequently and has also said that since laws have to be made and amended by the Parliament, and the courts can only interpret and implement them, it is for the Parliament to correct this situation by removing Explanation 1. But our politicians in Parliament have not considered it worthwhile to rescind the amendment for nearly 25 years now. Why? Because it is convenient and comfortable for the politicians to have a system which can be manipulated. Big money is brought into the elections under the garb of Explanation 1 (which in the opinion of the Supreme Court has removed even the “fig leaf to hide the reality” of the impact of big money on the outcome of elections). Big money is contributed by those elements who look for favours and paybacks in kind from the politicians after they get elected. And the politicians are an active and willing party to the arrangement. This is why it seems to me that left to the politicians, implementation of significant recommendations particularly those considered uncomfortable by politicians, is unlikely.

So, what can we, as common citizens, do?  I am not an activist and am, therefore, not in a position to suggest an activist’s agenda. However 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, as the public, owe it to the country and its future that we do whatever we can in this regard.  Sensitisation of public opinion is precisely the objective of this gathering here this evening.

As an example of enlightened public action, let me mention an initiative in Andhra Pradesh taken by a registered society which describes itself as “a non partisan movement for democratic reforms.” They decided to take up the cleansing of the electoral process of corruption and criminality.  They invited the public to inform them of candidates in the last election who had either been convicted in criminal cases or had criminal cases pending against them. They received thousands of letters from the public giving details, and a screening committee consisting of 16 eminent men and women examined these cases.  Based on their perusal, they found 52 candidates who had either been convicted or had major criminal cases pending against them. The charges ranged from conviction with a sentence of life imprisonment to several murder charges, bomb blasts, rigging of votes and booth capturing, rioting, loot, arson, abduction and criminal intimidation. The candidates belonged to all major political parties including the Congress and Telugu Desam, the two main parties in Andhra Pradesh. These details have been publicised for information of the general public.

Such public spirited action obviously requires a lot of effort, time, and energy in addition to money. Above all, it requires public spirited citizens who are willing to spend all these for a public cause without any individual or material benefit for themselves. I don’t think there is a dearth of such citizens in a state as progressive as Gujarat.

Before I close, let me summarise.

1.         There is an urgent need to reform the electoral system in the country if democracy is to continue and succeed, resulting in overall social and economic progress for the country as a whole.

2.         The recommendations contained in the 170th report of the Law Commission provide a very useful opportunity for initiating a process of electoral reform. Legal stipulations for the internal functioning of political parties is possibly the most important of the recommendations.

3.            Substantive electoral reforms are unlikely to happen if left only to wishes and whims of the political establishment in the country.

4.         The people at large have to take initiative on their own, however difficult it may be to organise it, if significant electoral reforms are to happen and the chances of democracy succeeding and overall development happening are to be increased.

Thank you.

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Jagdeep S. Chhokar (Ph.D., Louisiana State University, USA) is a professor at the Indian Institute of Management, Ahmedabad, since 1985, where he teaches organizational behaviour, cross-cultural management, and international marketing.  He has also taught at universities in Australia and the US.   Before becoming an academic, he worked for 12 years in a variety of engineering and managerial positions, including four years as an international marketing manager.  His broader interests include electoral reforms, informed choice, and world affairs.

He can be reached by email at chhokar@iimahd.ernet.in.

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Conspiracy of silence: Applicability of RTI to political parties

Posted on June 21, 2013. Filed under: Elections, Political financing, Political parties, Politics, Right to Information, RTI |

Conspiracy of silence: Applicability of RTI to political parties

The June 03, 2013 decision of the Central Information Commission (CIC) declaring six national parties as public authorities under the Right to Information Act (RTI Act) is explained, along with implications of being a “public authority” for political parties. The major apprehensions of political parties are also discussed.

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Show us the money

Posted on April 13, 2013. Filed under: Elections, Political financing, Politics |

Show us the money

Jagdeep S. Chhokar
Published in Indian Express, April 08 2013
Political parties must be made to account for the bulk of their fundingThree actions of the government in the last couple of months seem to give a lie to its intentions on political and electoral funding. Let’s start with the latest action. On March 26, it was reported that the government had blocked the Election Commission’s move to make party funding more transparent.

Article 324 of the Constitution gives plenary powers to the EC for the superintendence and direction control of the conduct of all elections to Parliament and the state legislatures. The overall scheme is laid down in the Representation of the People (RP) Act, 1951. The practicalities of how elections are to be conducted are laid down in the Conduct of Election (CoE) Rules, 1961.

The RP Act was amended on September 11, 2003. Section 29B, which was inserted, permitted a political party to receive “contributions voluntarily offered to it by any person or company other than a government company”. Section 29C, also added then, required every political party to submit to the EC a statement of all donations above Rs 20,000 “in such form as may be prescribed”. The law ministry prescribed Form 24A for such reports. The income tax law was amended on April 1, 1979, by adding section 13A, whichgranted political parties 100 per cent exemption from income tax on the donations received by them.

Recently, the total income of political parties as revealed by their income tax returns was compared with the donations received, as reported in Form 24A, both accessed under the RTI Act by the Association for Democratic Reforms (ADR). It revealed that the statement of donations reported in Form 24A accounted for only about 20 per cent of the total income of political parties. The source of 80 per cent of their income was unknown. Several parties claim that this share comes through donations of less than Rs 20,000, often in cash or through what is called “sale of coupons”, of which no record is kept.

Last year, the EC wrote to the law ministry, asking it to make Form 24A more transparent about contributions. The law ministry responded by saying “no compelling reasons” had been mentioned to necessitate such amendments. The EC then reminded the law ministry that “the objective of filing contribution reports is to bring transparency in the funds received”. It pointed out that the proposed modifications would make political funding more comprehensible to citizens. One of the suggested modifications was that the total funds received by political parties be declared, not just those received in tranches of more than Rs.20,000. The law ministry replied that the modifications were not in keeping with section 29C of the RP Act. It seems obvious that the law ministry is taking a narrow, legalistic view and is overlooking the broader purpose of the legislation. It would still be legalistic, but more progressive, if it initiated amending Section 29C. But the law ministry, and the government, do not appear to see anything wrong in 80 per cent of the income of political parties being shrouded in mystery, even if that spreads scepticism about the way political parties function.

The second action happened on March 13, 2013, when the Centre submitted an affidavit to the Supreme Court, saying that section 10A of the RP Act, 1951, gives the EC the power to disqualify a person only if she does not file an account of election expenses. She could not be disqualified for any other reason, “including the correctness or otherwise of such accounts.”The government’s contention seems to be that the EC can only accept the account submitted by a candidate. It has no authority to scrutinise it and take action.

This goes against the SC judgment in the case of R. Shivarama Gowde vs P.M. Chandrashekar, where it had rejected this very contention: if “an account is found to be incorrect or untrue by the EC after enquiry under Rule 89, it could be held that the candidate had failed to lodge his account within the meaning of Section 10(A) and the EC may disqualify the said person.” The legalistic law ministry does not seem to be aware of the SC’s pronouncements.

The third event happened on January 23, 2013, when the Justice Verma Committee released its report. It stated that electoral reforms were necessary “to the achievement of gender justice and the prevention of sexual offences against women”. It then made proposals in this regard, including stripping the legislature of persons who have criminal cases pending against them, proper scrutiny of affidavits, transparency of electoral and political funding. Soon after the report was made public, the Union law minister said the report would be referred to the Law Commission. If the law ministry can forget the Supreme Court ruling, how can the law minister be blamed for not knowing that a Law Commission report on electoral reforms has been lying with his ministry since 1999?

The tussle continues, with the EC and citizens pushing for greater transparency. At the other end, the government and political parties seem to be trying to stonewall change by using a time-tested principle: “delay is the deadliest form of denial.”

The writer is former professor, dean, and director-in-charge at IIM, Ahmedabad. Views are personal

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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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Win elections, stay in power

Posted on November 13, 2012. Filed under: Elections, Politics |

The Tribune, November 13, 2012

OPED — GOVERNANCE
http://www.tribuneindia.com/2012/20121113/edit.htm#6

WIN ELECTIONS, STAY IN POWER

All actions of political parties seem to indicate that the only purpose for which political parties exist is to win elections, acquire state power and then start working to win the next elections.

Jagdeep S. Chhokar

BEFORE reading the two articles on the Oped page on October 04 by Kapil Sibal of the Congress and Ravi Shankar Prasad of the BJP, a reader might expect to see what the two leading political parties have in mind about the governance of the country. What the reader actually gets is Sibal and Prasad speaking against the BJP and the Congress, respectively.

Sibal: “Clearly between 2010 and today, all issues raised in Parliament were not at the instance of the principal Opposition party. In fact, the BJP has no agenda. It has no issues to raise. It is obvious that it paralysed Parliament in the last session without debate with an eye on elections in Gujarat and Himachal Pradesh.”

Prasad: “The Congress strategy is very clear. First, deny the allegation, then abuse one who exposes corruption. In this even a constitutional body like the CAG has been condemned in the most abusive terms by Congress leaders, including ministers. The last part of its strategy is to cover the flanks and shield the corrupt. Accountability is brushed aside with impunity. This is the true record of the Congress.”
Why do our political leaders behave like this-running the other down, all the time?
This question can of course be best answered by political leaders themselves but some speculation may be in order in the absence of explanations from the “horse’s mouth”.

Next poll on mind

The first explanation that comes to mind follows from what political leaders think is the purpose of political parties. All actions of political parties seem to indicate that the only purpose for which political parties exist is to win elections, acquire state power, and then start working to win the next elections. As a matter of fact, a supremo of one of the very important regional parties gave this advice to Anna Hazare and Arvind Kejriwal on August 16, 2011 when Anna Hazare was arrested, “My suggestion to these people is that they should form a political party, contest elections in 2014, satta mein aayaen, aur phir jo marzi karein (Come to power and then do whatever they like).”

The thought that one of the purposes of “coming in to power” is to govern or administer, does not seem to be a matter of concern to our political parties!

Even when some sections of the political establishment do think of governance, there seems to be a very serious disconnect between what the citizens expect from governance and what the political establishment expects from it. A common expectation, as reflected on the Wikipeida, says, “A reasonable or rational purpose of governance might aim to assure, (sometimes on behalf of others) that an organisation produces a worthwhile pattern of good results while avoiding an undesirable pattern of bad circumstances. Perhaps the moral and natural purpose of governance consists of assuring, on behalf of those governed, a worthy pattern of good while avoiding an undesirable pattern of bad. The ideal purpose, obviously, would assure a perfect pattern of good with no bad.”

Good and bad outcomes

Following this, citizens expect that governance by elected parties will lead to “good” outcomes for them; the citizens, and “bad” outcomes will be avoided. However, political parties which come to power as a result of elections seem to think that the essential purposes of “governance” are (a) to stay in power as long as possible, and (b) take all steps necessary to ensure winning the next elections.
Since given the overall political and electoral climate in the country, the most important requirement to win elections seems to be only larger and larger amounts of money, the sole purpose of winning elections and coming into power, for all political parties seems to be to make as much money as possible by whatever means possible.

The parties that do not win the election and consequently do not come to power, feel that they have nothing to do with “governance” and their sole purpose seems (a) to prevent the so-called ruling party from governing, and (b) to get the government to fall, so that a fresh election can be held, giving them a shot at whatever governing is.

Sometimes a situation develops when the so-called opposition party while trying to prevent the so-called ruling party from governing, does not really want to topple the government in power. The cause of this unusual phenomenon is that the Opposition is not confident that it would actually get elected and acquire power if a fresh election is held. On the contrary, it is seriously doubtful of being elected. This is the situation that currently prevails.

Given this understanding of political parties, we can bid good-bye to that evasive entity called national interest. Unless the understanding of political parties changes, partisanship and parochialism would prevail, Parliament would not function, governance would not happen, and political parties would continue to do as they like.

It is for the governed, for whom a worthy pattern of good is not emerging and an undesirable pattern of bad continues, to change this by making the functioning of political parties subject to some form of check.

The writer is a former Professor, Dean, and Drector in-charge of the Indian Institute of Management, Ahmedabad.

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Internal democracy missing in political parties

Posted on November 13, 2012. Filed under: Elections, Politics |

The Tribune, November 13, 2012
OPED — GOVERNANCE
http://www.tribuneindia.com/2012/20121113/edit.htm#6

Internal democracy missing in political parties

Political parties have evolved into fiefdoms, owned and controlled by a single individual or a coterie of persons

GIVEN the increasing clamour against corruption in the recent years, and it being traced to the political system in the country, a question often asked is: what, if anything, can be done to correct the political system in the country? One possible response is to set up a new political party and then attempt to change the system by example, by putting pressure from within the system. This is the route chosen by a section of the Anna Hazare movement. Such attempts must be lauded and encouraged but the chances of their success are debatable as they amount to swimming against the current, the current being the existing system.
There can, however, be another approach, that of putting pressure from the outside of the existing political system. Recognising that the most fundamental building block of the political system in a representative democracy such as India, consists of political parties, it is quite possible that if the behaviour and functioning of political parties can be improved, or corrected, the entire political system would also start functioning in a way that is productive for national and public interest.
The main reason political parties tend to overlook national interest in their narrow, self-interest is that they neither consider themselves as public institutions nor do they behave like public institutions. The root cause of this behaviour is the evolution of parties into fiefdoms, owned and controlled by a single individual or a coterie of persons. Given this structure and constitution, it is no surprise that the interest of a particular individual or group of individuals takes priority over everything else, including national interest.

Being a public institution

This is also why the mere concept of being a public institution is an anathema to all political parties. It became clear, yet again, when in a recent hearing in the Central Information Commission, all political parties, except the CPI, argued spiritedly that they are not public authorities for the purposes of the RTI Act. Even the CPI, who had earlier sent a letter saying, “Yes, we are a public authority under section 2 (h) (d) (ii) ‘non-government organisation substantially financed, directly or indirectly by funds provided by the appropriate government’,” took a somewhat different stand in the hearing. One of its prominent leaders argued that while political parties do have a moral obligation to be accountable and answerable to the citizens, technically they should not be covered under the RTI Act.

The solution to this doublespeak by political parties — when they say one thing and do its exact opposite, as when all of them claim to be the champions and defenders of democracy in the country while being completely undemocratic in their internal functioning — is to make them internally democratic by law. The Law Commission of India suggested this in 1999 in their 170th report, in the following words: “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” (Para 3.1.2.1).

Since it is the representatives of political parties in Parliament who make laws, the trickiest part is getting Parliament to enact such a law. That is where the citizens need to put pressure on the political system. — J. S. Chhokar

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No appointment with transparency

Posted on October 3, 2012. Filed under: Elections, Politics, Uncategorized |

No appointment with transparency

Jagdeep S. Chhokar

Published in GovernanceNow, September 01-15, 2012, pp.36-38.

The law minister announced
recently that the government
would soon bring in
a constitution amendment
bill to change the system of
appointment of judges to
higher judiciary, the supreme court and
the high courts. But focusing only on
higher judiciary is akin to counting the
trees and missing the forest. Several issues
come up if we look at the forest – of
appointments.

The first is why and how do our law ministers
get concerned about issues. Nearly
20 months ago, the then incumbent got
concerned about electoral reforms and
announced, with much fanfare, accompanied
by the then chief election commissioner,
about seven regional and one
national consultations. The regional consultations
did happen, in fits and starts,
but then that minister was shifted and the
current incumbent was brought in. The
national consultation never happened, a
couple of draft bills on electoral reforms
were prepared, media reported that the
minister had had meetings on the issue
with the prime minister, the chief election
commissioner of the day demitted office,
but the end result has been naught, at
least so far. Now, there does not even appear
to be talk of electoral reforms.

All of a sudden, the current minister
is so concerned about appointments to
higher judiciary that a constitutional
amendment is being contemplated. True,
the constitution has been amended many
times but most of the amendments happened
in a different political climate in
the country when the polity was not so
fragmented and not so brazenly partisan.

“We are fully committed to changing
the procedure for the appointment of
judges,” said the law minister, an accomplished
lawyer himself. The current
procedure has been in place since 1993,
when the supreme court put it in place.
The detailed rationale is given in the case
Supreme Court Advocates-on-Record Association
and another vs
Union of India, Writ Petition (Civil)
1303 of 1987, the judgment for which
was pronounced on October 6, 1993. It is
debatable if the situation of the judiciary,
one of the three pillars of democracy, has
deteriorated significantly more than the
other two pillars: the legislature and the
executive.

Yes, the judiciary has its weaknesses,
some of them glaring, such as huge backlogs
but then who is the biggest litigator
in the country, being the petitioner or
respondent in the maximum number of
cases in the higher courts—one estimate
says it is the government. And whose
counsels seek the maximum number of
adjournments? Another estimate points
to the government again.

The minister is also reported to have
said that the government was only trying
to bring in transparency in every
constitutional body in the larger interest
of democracy and good governance and
that the government was not bothered
about the “problems” it would have to
face as happened in the case of the Right
to Information (RTI) Act.

In this context, looking at the forest,
it might be appropriate to think about
transparency or otherwise of all other
appointments made by the government.
Since the minister referred to the
“problems” with the RTI Act (which was
championed by his own government,
and for which it rightly deserves to be
commended), it might be instructive to
reflect on how the appointment of information
commissioners have been made,
and continue to be made.

It is ironic that appointments under a
law, the raison d’etre of which is transparency,
are completely non-transparent.
An inspection of the file related to these
appointments some time ago, done using
the provisions of the RTI Act itself,
revealed that the concerned bureaucrat,
the secretary of the department of
personnel and training (DoPT), puts up
a note to the committee consisting of
the prime minister, the leader of the opposition
in the Lok Sabha, and a “union
cabinet minister nominated by the prime
minister” who is invariably the minister
in-charge of the DoPT, obviously “duly
constituted” as per the RTI Act, informing
the committee of the number of vacancies
for information commissioners
that exist, and suggesting or proposing
a list of names that should be appointed
for those posts. The committee usually
approves the names and those are
forwarded to the president for formal
appointment. Differences of opinion are
rare, in those cases where the name of
a seemingly controversial person is proposed
and the leader of opposition has
an objection. (The most celebrated case
of such a difference of opinion was that
of PJ Thomas’ appointment as central vigilance
commissioner that finally led the
supreme court to enunciate the doctrine
of institutional integrity.)

The process through which the proposed
list is arrived at is shrouded in
total secrecy. When the file was inspected,
resumes of a large number of people
were found in it, some who had offered
their own candidature and some who
had been recommended by “dignitaries”.
No information was forthcoming
about how some of these “candidates”
were “chosen” to be “recommended” for
appointment. The fact that more than
one secretaries of the DoPT have been
appointed as information commissioner
may contain a story of its own.

It is also somewhat baffling that the
desire to “bring in transparency in every
constitutional body in the larger interest
of democracy and good governance”
does not seem to have touched one of the
oldest constitutional positions, that of
governor of a state. Inspection of the file
concerning appointment of governors,
done again courtesy the RTI Act, revealed
even more startling information. All the
file had was a note initiated by the prime
minister’s office that, referring to a discussion
between the prime minister and
the home minister, said that it had been
decided to appoint the following persons
as governors of the following states. The
home ministry then got into action, obtained
the consent of the chief ministers
of the respective states, prepared the
warrants of appointment, sent it to the
president, and the same were issued. The
whole process took all of 24 hours! Talk
of speed and efficiency of operation, and
of course, of transparency.

When a body with such a track record
wants to bring in transparency in the
appointment of higher judiciary, and is
willing to go to the extent of even trying
to amend the constitution, is it not
legitimate to look for the motivation
behind such an action? Is it, by an outside
chance, a possibility that despite its many
drawbacks, weaknesses, and faults, the
judiciary is the only institution, along
with the election commission, that still retains
significant independence from the
executive, and occasionally pronounces
judgments that the government of the day
and the entire political class do not like?

This is a question to which we can
never have a definitive answer and each
one of us has to make one’s own judgment.
It is also a warning to the judiciary
to act quickly, and decisively, to make
improvements in its own functioning before
the political class makes inroads into
its independence.

Chhokar is a former professor, dean, and
director in-charge of IIM Ahmedabad. Views
expressed are personal.

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Income of political parties

Posted on September 16, 2012. Filed under: Elections, Politics |

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Can undemocratic parties serve a democratic nation?

Posted on September 16, 2011. Filed under: Elections, Politics |

 Can undemocratic parties serve a

democratic nation?

Jagdeep S. Chhokar

The Indian ExpressFriday, September 16 2011

http://www.indianexpress.com/news/can-undemocratic-parties-serve-a-democratic-nation/847244/0

Suhas Palshikar (‘By the ballot alone’, IE, August 6) presented an elegant case against internal democracy in political parties. How persuasive, though, was it?

Professor Palshikar reminded us about the Congress’s attempt to elect its leader by an internal vote in 1966 and its aftermath, a “deep and long-running factional fight within the party leading to a split in 1969.” Lack of democratic spirit was in evidence as far back as 1939, when the elected president of the party, Subhas Bose, was expelled. The non-democratic Congress “System” may have been appropriate for a mass movement seeking independence from a colonial power. The inherent contradiction of undemocratic political parties in a democratic country arose only after the Constitution came into effect. The contradiction multiplies, as all political formations that have come into being subsequently continued to adopt the Congress “System” as the model for their internal functioning.

Prof Palshikar points out, rightly, that a real election for leadership brings the fissures out in the open. But the real question is: Is it better to hide fissures, and let members indulge in covert sabotage, or is it better to get things out in the open, face them, and deal with them — even at the cost of a split so that both parts can do whatever they want in a focused way?

The observation that “this predicament is common to any large party and raises difficult questions about running a mass-based party in a ‘democratic’ manner” is disturbing. It smacks of an elite bossing over the hoi polloi. Yes, the questions involved in running any large political party, mass-based or otherwise, are difficult but, as the saying goes “if you cannot stand the heat, don’t get into the kitchen.” Oligarchic political parties are a glaring inconsistency in a democracy.

Prof Palshikar also suggests “large parties do have something like internal democracy.” The key phrase here: “something like”. All MLAs “authorising” the high command to name a chief minister is “something like” democracy! A coterie or a family “running” a party is “something like” democracy!! What is the need to settle for “something like”? Why can’t we work towards a “real” democracy?

We are also warned that “knowing that the leadership issue will be settled not by mutual give-and-take or ‘consensus’, but by a vote, potential contenders will start strategising during the period of candidate selection and election campaign.” The implicit assumption that this does not happen now is untenable. Pretending that the contenders don’t strategise now is akin to saying “something like” democracy is democracy.

Another purported risk of internal democracy is that “even while we democratise the space called intra-party competition, it would lead to much more chaos and power-mongering than we currently experience.” Why not give internal democracy a chance before rejecting it as the greater of the two evils?

Another observation that invites comment: “The Congress party, which itself has been the architect of the consensus approach, caricatured and distorted it in the name of ‘high command’. But we need to keep aside that distortion and look at the innovativeness in not following the Western model for managing intra-party competition.” This so-called “distortion” is the reality. Yes, we can “keep aside” the reality, and keep congratulating ourselves and taking pride in “not following the Western model”, but that can only be done at a tremendous cost. We have seen some of these costs rather graphically over the last couple of years.

And let’s not forget, real inner-party democracy is not limited only to the election of leaders and thus only superficial, it actually means going all the way down, and decisions on choice of candidates within parties being taken by popular vote amongst party workers and members.

While the BJP may have attempted to take the credit for the secret ballot election of D.V. Sadananda Gowda to replace B.S. Yeddyurappa, it is clear as daylight to anyone who cares to see that democratic practice was as far away from BJP’s intentions as it can be. The suggestion that “this development portends the death of the idea of a party and the survival of factions engaged in a ‘democratic’ fight over competitive extraction of public resources” deserves serious consideration. It also raises perhaps the most critical question: Should we not also worry about the “death of the idea of a nation” even if the parties survive?

The writer is a former director of IIM-Ahmedabad and a founding member of the Association for Democratic Reforms


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

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