BGP

BACKGROUND PAPER ON ELECTORAL REFORMS
(PREPARED BY THE CORE-COMMITTEE ON ELECTORAL REFORMS)
LEGISLATIVE DEPARTMENT MINISTRY OF LAW AND JUSTICE GOVERNMENT OF INDIA CO-SPONSORED BY THE ELECTION COMMISSION OF INDIA
December, 2010
Background paper
Core-Committee on Electoral Reforms
Contents
CONTENTS........................................................................................................................................... 2 I.EXECUTIVE SUMMARY..................................................................................................................... 3 II.APPROACH TO BACKGROUND PAPER.........................................................................................5 III.INTRODUCTION............................................................................................................................... 6 IV.CRIMINALISATION OF POLITICS................................................................................................... 8 V.FINANCING OF ELECTIONS.......................................................................................................... 12 VI.CONDUCT AND BETTER MANAGEMENT OF ELECTIONS........................................................17 VII.REGULATING POLITICAL PARTIES........................................................................................... 2 VIII.AUDITING OF FINANCES OF POLITICAL PARTIES..................................................................31 IX.AD!UDICATION OF ELECTION DISPUTES.................................................................................33 X.REVIE" OF ANTI#DEFECTION LA"............................................................................................. 3$ XI.ANNEXURE% UPDATE ON ELECTION COMMISSION RECOMMENDATIONS...........................36
December 2010
Background paper
I.
Executive Summary
India stands as a model for many emerging democracies around the orld! "ree and fair elections are the hallmark of a ell functioning democracy! #hile e are $ustifiably proud of our democracy% there are a number of areas hich need to be strengthened for us to realise the true potential of a ell functioning democracy! &ur election system% from the selection of candidates% to the manner in hich funds are raised and spent in election campaigns% are in dire need of significant changes! 'here has been a gro ing concern o(er the years in India about se(eral aspects of our electoral system! 'he Election Commission has made changes in se(eral areas to respond to some of the concerns! 'here ha(e also been a number of committees hich ha(e e)amined the ma$or issues pertaining to our electoral system and made a number of recommendations! But there remain some critical issues that might need legislati(e action to bring about the re*uired changes! 'he criminalisation of our political system has been obser(ed almost unanimously by all recent committees on politics and electoral reform! Criminalisation of politics has many forms% but perhaps the most alarming among them is the significant number of elected representati(es ith criminal charges pending against them! ' o measures recommended by pre(ious committees are discussed in this paper+ enforcement of the disclosure of criminal antecedents of candidates% and eligibility restrictions for candidates ith criminal cases pending against them! 'he financing of elections has become a ma$or issue in the past fe decades! It is idely belie(ed that the cost of fighting elections has climbed far abo(e the legal spending limits! 'his has resulted in lack of transparency% idespread corruption% and the per(asi(eness of socalled ,black money-! 'his paper summarises proposals made on the follo ing issues+ limits on campaign e)penditure% disclosure and audit of assets and liabilities of candidates and parties% methods of reducing the cost of political campaigns% as ell as state funding of elections! 'he conduct of elections also has a number of issues that need to be addressed! #hile the massi(e si.e of the electorate makes holding elections a daunting task% it should not ser(e as a $ustification for the presence of issues such as booth capturing% intimidation of (oters% tampered electoral rolls% large-scale rigging of elections and other polling irregularities/ the proliferation of non-serious candidates/ and the abuse of religion and caste in the mobili.ation of (oters! 0otential solutions to these problems are outlined in this paper!
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Background paper
'his paper also takes consideration of ma$or issues dealing ith the role of political parties in the electoral system+ proliferation of non-serious parties/ process of recognition and derecognition of political parties/ disclosure of assets and liabilities of parties/ and audit and publishing of assets and liabilities! Resolution of election petitions and disputes% as ell as rulings on defections% are t o important processes seen to be operating in a slo and inefficient manner by many per(ious committees! 'his paper re(ie s recommendations made to mitigate these problems! 'he 2inistry of 3a and 4ustice% 5o(ernment of India% has constituted a Committee on Electoral Reforms! 'he main purpose of the Committee is to recommend to the go(ernment concrete ays in hich our electoral system can be strengthened! 'he Committee ill take into account the opinions of political leaders% 5o(ernment ser(ants% legal e)perts% 65&s% scholars% academics% $ournalists% and other stakeholders! 'he purpose of this background paper is to recap some of the key issues ith our electoral system% and to briefly e)amine the recommendations made by some recent committees in this regard! It is hoped that this background paper ill be a starting point to rene a national dialogue on the important changes that need to be brought about to strengthen our electoral system!
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Background paper
II.
Approach to Background Paper

The purpose of this paper is to provide background information on issues in our electoral process and outline some electoral reform options that have been considered in the past, in order to serve as a platform for a renewed national dialogue on electoral reforms.
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In this background paper% the Committee on Electoral Reforms does not endea(our to make any recommendations of its o n/ rather it presents the recommendations made by (arious committees to date in order to fulfil its purpose of pro(iding background information for substanti(e dialogue in regional and national consultations! 'he topic of electoral reforms has been taken up by numerous go(ernment committees in the recent past% including but not limited to+ 5os ami Committee on Electoral Reforms 81990: ;ohra Committee Report 81991: Indra$it 5upta Committee on <tate "unding of Elections 8199=: 3a Commission Report on Reform of the Electoral 3a s 81999: 6ational Commission to Re(ie the #orking of the Constitution 82001: Election Commission of India > 0roposed Electoral Reforms 82007: 'he <econd ?dministrati(e Reforms Commission 8200=: 'here has also been a great deal of substanti(e ork on the topic of Electoral Reforms undertaken by (arious ci(il society groups% hich ha(e contributed significantly to the public discourse on the sub$ect! #hile ackno ledging the contribution of these groups% the Committee limits its discussion of reform recommendations in this paper to those published by the committees mentioned abo(e! ? number of committees ha(e discussed ma$or structural reforms of the electoral system% such as a shift a ay from the "irst 0ast the 0ost 8"0'0: system of representation! #e ill e)plore options for electoral reform ithin the frame ork of the current system and ill not address these larger structural issues in this paper! 'his background paper is also being made a(ailable on the ebsite of the 3a 2inistry! It is hoped that many more stakeholders ill be able to pro(ide inputs either online or by post to the 2inistry of 3a and 4ustice% 5o(ernment of India! 'he ork of this Committee ill be enriched by such inputs% and the Committee looks for ard to ide participation in the eeks ahead from e)perts and ordinary citi.ens!
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December 2010
Background paper
III. Introduction
1!1 'he founding fathers of India opted for a 0arliamentary democracy as the appropriate model for a large and di(erse country like ours! 'he general elections in India are a mammoth e)ercise% ith o(er A00 million (oters% and about one million polling booths in the country! 'his a e inspiring effort is idely hailed as a model for the conduct of free and fair elections!
1!2 In our e)perience of holding elections for si) decades% a number of issues ha(e come to the fore from time to time! 3egislati(e changes ere made% the Election Commission de(eloped a Code of Conduct% and passed se(eral strictures ith a (ie to conducting elections in a smooth manner! But in recent years% there ha(e been some alarming trends that ha(e been noticed hich can potentially $eopardise the democratic freedoms e en$oy in India today!
1!1 ?t a more fundamental le(el% if citi.ens do not ha(e faith in the ay our elected representati(es are chosen% there is danger to the (ery idea of democracy itself! #idely held (ie s among the public ith regard to criminalisation of politics% the use of money po er in securing (otes% the paid-ne s disease are some of the issues that are enlarging the trust deficit ith regard to our elections! 'his needs to be stemmed at the earliest and in a clear and transparent manner to regain the trust of the citi.ens in our democratic process!
1!7 Ci(il society groups% $ournalists% and other obser(ers of the process ha(e been playing an important role in identifying a number of the eaknesses of our e)isting system! 'here ha(e been efforts to use the courts to seek to push reform on this important issue! 'he idely kno n practice of e(ery candidate ha(ing to declare their assets% liabilities and pending criminal cases came about as a result of a landmark court $udgement!
1!@ 'he Election Commission has been at the forefront of initiating efforts to strengthen the electoral system! But its o n mandate can sometimes be a limiting factor! In this conte)t it ould be necessary to e)amine the issue ith regard to the legislati(e and other changes that ill be re*uired to make the electoral system ork better for all our citi.ens!
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1!B In recent years a number of committees ha(e e)amined se(eral aspects of our electoral process and ha(e recommended important changes to the system! <ome of these recommendations ha(e been implemented and yet there is much more to be done!
1!A In order to take the agenda for ard% the 2inistry of 3a and 4ustice% 5o(ernment of India has constituted a Committee on Electoral Reforms! 'his Committee seeks to hold regional consultations follo ed by a national consultation in order to de(elop a set of actionable recommendations! E(ery effort ould be made by this Committee to reach out to a ide set of e)perts and stakeholders and to benefit from the insights and e)perience of all concerned! 'he ob$ecti(e of these recommendations ould be to pro(ide the basis of de(eloping legislati(e and other proposals hich can then be taken for ard!
December 2010
Background paper
IV.
Criminalisation of Politics
Most recent Committee reports on electoral reforms have almost universally acknowledged the criminalisation of our political system at both national and state levels and across party lines.
'he criminalisation of our political system has been obser(ed almost unanimously by all recent committees on politics and electoral reform! Criminalisation of politics has many forms% but perhaps the most alarming among them is the significant number of elected representati(es ith criminal charges pending against them! ' o measures recommended by pre(ious committees are discussed in this paper+ enforcement of the disclosure of criminal antecedents of candidates% and eligibility restrictions for candidates ith criminal cases pending against them! 'he ;ohra Committee Report on Criminalisation of 0olitics as constituted to identify the e)tent of the politician-criminal ne)us and recommend ays in hich the menace can be combated! In Chapter 7 of the report of the 6ational Commission to Re(ie the #orking of the Constitution% cites the ;ohra report as follo s+ C'he ne)us bet een the criminal gangs% police% bureaucracy and politicians has come out clearly in (arious parts of the countryD and that Csome political leaders become the leaders of these gangsEarmed senas and o(er the years get themsel(es elected to local bodies% <tate assemblies% and national parliament!D 'his point becomes self e(ident hen one looks at the number of elected representati(es ith pending criminal cases against them at all le(els in our federal system! ? number of remedies ha(e been proposed by the (arious committees on the criminali.ation of politics in the country!
4.1
Disclosure of criminal antecedents of candidates
Currently% Rule 7? of the Conduct of Election Rules% 19B1% prescribes that each candidate must file an affida(it 8"orm 2B appended to Conduct of Election Rules% 19B1: regarding 8i: cases% if any% in hich the candidate has been accused of any offence punishable ith imprisonment for t o years or more in a pending case in hich charges ha(e been framed by the court% and 8ii: cases of con(iction for an offence other than any of the offences mentioned in <ection = of Representation of the 0eople ?ct% 19@1% and sentenced to imprisonment for one year or more! In addition to this% pursuant to the order of the <upreme Court the Election Commission on 2arch 2A% 2001% has issued an order that candidates must file an additional affida(it stating 8i: information relating to all pending cases in hich cogni.ance has been taken by a Court% 8ii: assets and liabilities% and 8iii: educational *ualifications! 'he affida(it is gi(en in a form prescribed by the Election Commission of India!
December 2010
Background paper
<ection 12@? of the R!0! ?ct% 19@1 prescribes penalties for ithholding or pro(iding incorrect information on "orm 2B% hich amount to imprisonment of up to si) months% or fine% or both! In its report entitled 0roposed Electoral Reforms% 2007 the Election Commission of India notes that Cin some cases% the candidates lea(e some of the columns blankFthere ha(e been cases here candidates are alleged to ha(e gi(en grossly under(alued information!D
Recommendations
In its report on 0roposed Election Reforms% 2007% the Election Commission of India recommended that an amendment should be made to <ection 12@? of the R!0! ?ct% 19@1 to pro(ide for more stringent punishment for concealing or pro(iding rong information on "orm 2B of Conduct of Election Rules% 19B1 to minimum t o years imprisonment and remo(ing the alternati(e punishment of assessing a fine upon the candidate! It also recommended that "orm 2B be amended to include all items from the additional affida(it prescribed by the Election Commission% add a column re*uiring candidates to disclose their annual declared income for ta) purpose as ell as their profession! 'he 3a Commission of India Report on Reform of the Electoral 3a s% 1999% suggested that an amendment be made to the Representation of the 0eople ?ct% 19@1% to insert a ne section 7? after section 7 to make declaration of assets and criminal cases pending against the candidate part of the *ualifications necessary for membership to the Gouse of the 0eople!
4.2
Eligibility of candidates with criminal cases pending against them
<ection = of the Representation of the 0eople ?ct% 19@1% pro(ides for dis*ualification of candidates from contesting an election on con(iction by a Court of 3a ! In subsection 81:% it lists certain crimes and stipulates a dis*ualification period of si) years from the date of con(iction! In subsection 82: it lists a different set of crimes and pro(ides for the candidate to be dis*ualified from the date of con(iction and for a period of si) years since his release! In subsection 81:% it pro(ides that any candidate con(icted for a crime for hich the minimum imprisonment is t o years shall also be dis*ualified from the date of con(iction and ill continue to be dis*ualified for si) additional years after his release!
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Background paper
Recommendations 'he Election Commission proposed in its 2007 report that <ection = of the Representation of the 0eople ?ct% 19@1 should be amended to dis*ualify candidates accused of an offence punishable by imprisonment of @ years or more e(en hen trial is pending% gi(en that the Court has framed charges against the person! In the report the Commission addresses the possibility that such a pro(ision could be misused in the form of moti(ated cases by the ruling party! 'o pre(ent such misuse% the Commission suggested a compromise hereas only cases filed prior to si) months before an election ould lead to dis*ualification of a candidate! In addition% the Commission proposed that Candidates found guilty by a Commission of En*uiry should stand dis*ualified! 'he report CEthics in 5o(ernanceD of the <econd ?dministrati(e Reforms concurred ith the recommendation of the Election Commission! In Chapter 7 of its report% the 6ational Commission to Re(ie the #orking of the Constitution proposed se(eral measures! "irstly% it proposed that <ection = of the Representation of the 0eople ?ct% 19@1% be amended such that a candidate accused of an offence punishable by imprisonment of @ years or more be dis*ualified on the e)piry of a period of one year from the date the charges ere framed against him% and unless cleared during that one year period% he shall remain dis*ualified until the conclusion of his trial! It also recommended that in case a candidate is con(icted by a court of la and sentenced to imprisonment of si) months or more% he shall be dis*ualified during the period of the sentence and for si) additional years after his release! Candidates (iolating this pro(ision should be dis*ualified and political parties putting up such a candidate ith kno ledge of his antecedents should be derecognised and deregistered! 'hirdly% the Commission has stated that any person con(icted for any heinous crime such as murder% rape% smuggling% dacoity% etc!% should be permanently barred from contesting political office! "inally% the Commission proposes the establishment of <pecial Courts to decide cases against candidates ithin a period of si) months or less! 0otential candidates against hom charges are pending may take the matter to the <pecial Court% hich can decide if there is indeed a prima facie case $ustifying the framing of the charges! <pecial Courts ould be constituted at the le(el of Gigh Courts and decisions ould be appealable only to the <upreme Court! 'he 1999 3a Commission of India Report takes a separate stand% suggesting that <ection = remain unchanged! It suggests% ho e(er% the addition of a ne section > <ection =B% hich ould pro(ide a separate set of penalties for electoral offences and
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Background paper
offences ha(ing a bearing upon the conduct of elections under sections 1@1? and @0@ I0C and serious offences punishable ith death or life imprisonment! 'he proposed <ection =B ould pro(ide that framing of charges shall be a ground of dis*ualification but this dis*ualification shall last only for a period of fi(e years or till the ac*uittal of the person of those charges% hiche(er e(ent happens earlier! If a candidate is found guilty they ould automatically be dis*ualified under <ection =!
4.3
Negative or Neutral Voting
'he criminalisation of politics% idespread corruption in the system% and use of (iolence% (oter intimidation% etc may result in there being no desirable candidates ithin those contesting elections in a particular constituency! Currently there is no ay for (oters to e)press their dislike for all candidates! 'he lack of such a pro(ision may further contribute to the decay in the system in such cases by encouraging only those (oters ho support such compromised candidates to (ote% returning those same leaders to po er again and again! Recommendations Both the Election Commission and 3a Commission of India recommend that a negati(e or neutral (oting option be created! 6egati(eE neutral (oting means allo ing (oters to re$ect all of the candidates on the ballot by selection of a Cnone of the abo(eD option instead of the name of a candidate on the ballot! In such a system there could be a pro(ision hereas if a certain percentage of the (ote is negati(eEneutral% then the election results could be nullified and a ne election conducted!
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Background paper
V.
inancing of Elections
It is widely believed that in many cases successfully contesting an election costs a significant amount of money that is often much greater than the prescribed limits.
? Consultation 0aper to the 6ational Commission to Re(ie the #orking of the Constitution% 2001% noted that Cthe campaign e)penditure by candidates is in the range of about t enty to thirty times the legal limitsD! 'here are many negati(e social impacts of this high cost! Chapter 7 of the Report of the 6ational Commission to Re(ie the #orking of the Constitution% 2001% notes that the high cost of elections Ccreates a high degree of compulsion for corruption in the public arenaD and that Cthe sources of some of the election funds are belie(ed to be unaccounted criminal money in return for protection% unaccounted funds from business groups ho e)pect a high return on this in(estment% kickbacks or commissions on contracts% etc!D It also states that CElectoral compulsions for funds become the foundation of the hole super structure of corruptionD! ? number of remedies ha(e been recommended by pre(ious committees for curbing the negati(e impact of the high cost of elections+
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!fficial limits on campaign e"penditure
Currently% limits on campaign e)penditure are fi)ed at certain amounts depending on the nature of the election! Go e(er% it is belie(ed that these limits are (iolated ith audacity! 'his is mainly attributed to the fact that the actual cost of running an election campaign is often much greater than the prescribed spending limit! Recommendations
'he 6ational Commission to Re(ie the #orking of the Constitution% 2001% recommended that the e)isting ceiling on election e)penses for the (arious legislati(e bodies should be suitably raised to a reasonable le(el reflecting increasing costs! 'he ceiling is currently Ra 2@ lakhs for a 3ok <abha seat and Rs 10 lakh for an ?ssembly seat! In order to cope ith rising e)penditures o(er time% this ceiling should be fi)ed by the Election Commission from time to time and should include all the e)penses by
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Background paper
the candidate as ell as by his political party or his friends and ell- ishers and any other e)penses incurred in any political acti(ity on behalf of the candidate by an indi(idual or corporate entity! ? Consultation 0aper to the 6ational Commission to Re(ie the #orking of the Constitution% 2001% entitled HRe(ie of the #orking of 0olitical 0arties <pecially in Relation to Elections and Reform &ptionsH largely concurred ith the abo(e opinion but also suggested a much bolder one+ 8a: either the statutory limit should be scrapped altogether and replaced by a selecti(e ban on certain kinds of e)penditure! &r the e)isting pro(isions should be amended to pro(ide for+ 8i: much higher ceiling than hat currently e)ists/ 8ii: regular re(ision of the ceiling before e(ery general election/ 8iii: all the e)penditure% irrespecti(e of ho paid for it% to be brought ithin the pur(ie of this pro(ision/ 8i(: mechanism for routine (erification Eauditing of the return of the e)penditure/ and 8(: publicity of the returns filed by the candidate in the local press! 'he Election Commission of India recommends that the ceiling on election e)penditure be rationali.ed from time to time!
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Disclosure audit of assets and liabilities of candidates
In an order dated 2arch 2A% 2001% the Election Commission of India issued an order% in pursuance of the <upreme Court $udgment dated 2arch 11% 2001 in the Peoples Union for Civil Liberties & Another Vs. Union of In i! case% that candidates for electoral office must submit an affida(it disclosing his assets and liabilities! It has been noted by the Election Commission of India in its report 0roposed Electoral Reforms% 2007% that Cthere ha(e been many cases here the candidates are alleged to ha(e gi(en grossly under(alued information% mainly about their assets!D Recommendations 'he 6ational Commission to Re(ie the #orking of the Constitution recommended a follo -up action to the declaration of assets and liabilities by candidates - that the particulars of the assets and liabilities of both candidates and political parties should be audited by a special authority created specifically under la for this purpose! ?ccounts of candidates and parties should be monitored through a system of checking and cross-checking through the income ta) returns filed by candidates% parties% and their ell ishers! ?t the end of the election each candidate should submit an audited statement of e)penses under specific heads!
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Background paper
In 2007 the Election Commission recommended than an amendment be made to "orm 2B of Conduct of Election Rules% 19B1% to include disclosure of assets and liabilities by candidates! 'o enforce complete compliance by candidates on "orm 2B% the Commission recommended that <ection12@? be amended such that there is more stringent punishment for concealing or pro(iding rong information on the form! 'he amendment ould pro(ide for minimum t o years imprisonment and remo(al of the alternati(e punishment of assessing a fine upon the candidate!
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#urbing the cost of campaigning
It has been noted by pre(ious committees that in order to remedy the negati(e impact of the e)cessi(e cost of elections% the first step should be to reduce the cost of elections themsel(es! Recommendations
It as obser(ed by both the Indra$it 5upta Committee on <tate "unding of Elections% 1999% and the 6ational Commission to Re(ie the #orking of the Constitution% 2001% that many of the tools used for campaigning > such as all ritings% rallies on public property% using loudspeakers for campaigning > are not only costly% but are also a public nuisance! Curbing these acti(ities can both reduce the public nuisance caused by them and also reduce the amount of money needed to fight elections! "or this purpose the Committees suggested that a suitable la should be enacted pro(iding penalties or reasonable restrictions against damaging or desecrating public or pri(ate property by candidates% political parties% or the agents% through painting of slogans or erecting cut-outs and hoarding or putting up banners and buntings% all ritings% hoisting of flags 8e)cept at party offices% party offices% public meetings and other specified places:% etc! In addition% the 6ational Commission to Re(ie the #orking of the Constitution% 2001% suggested the follo ing measures+ 8i: <tate and 0arliamentary le(el elections% to the e)tent possible% should be held at the same time/ 8ii: the campaign period should be reduced considerably% and 8iii: candidates should not be allo ed to contest election simultaneously for the same office from more than one constituency!
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$tate %unding of Elections
? ma$or concern associated ith the high cost of elections is that it pre(ents parties and candidates ith modest financial resources from being competiti(e in elections! It is also
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Background paper
feared that if candidates need to raise funds from a (ariety of sources% then their policy decisions after being elected as policy makers may be some hat biased in fa(our of groups that fund them! <tate funding of elections 8in (arious forms: has been proposed as a potential solution to this problem! Recommendations
'he Indra$it 5upta Committee on <tate "unding of Elections% 199=% backed the idea of state funding of elections on principle% stating that C'he Committee see full $ustification constitutional% legal as ell as on ground of public interest% for grant of <tate sub(ention to political parties% so as to establish such conditions here e(en the parties ith modest financial resources may be able to compete ith those ho ha(e superior financial resources!D It added t o limitations% namely 8i: such funds could not be doled out to independent candidates% and only to national and state parties ha(ing granted a symbol and pro(en their popularity among the electorate% and 8ii: in the short-term% <tate funding may be gi(en only in kind% in the form of certain facilities to the recognised political parties and their candidates! Go e(er% despite strongly backing full <tate funding of elections principle% it stated that only partial <tate funding ould be possible in the short-term gi(en the pre(ailing economic condition of the country! 'he 1999 report of the 3a Commission of India concurred ith the Indra$it 5upta Commission% stating that Cit is desirable that total state funding be introduced% but on the condition that political parties are barred from raising funds from any other sourceD! It also agreed ith the Indra$it 5upta Commission that only partial state funding as possible at the present time gi(en the economic conditions of the country! ?dditionally% it strongly recommended that the appropriate regulatory frame ork be put in place ith regard to political parties 8pro(isions ensuring internal democracy% internal structures and maintenance of accounts% their auditing and submission to Election Commission: before state funding of elections is attempted! 'he Report CEthics in 5o(ernanceD of the <econd ?dministrati(e Reforms Commission also recommended that Ca system for partial state funding should be introduced to reduce the scope of illegitimate and unnecessary funding of e)penditure for elections!D 'he 6ational Commission to Re(ie the #orking of the Constitution% 2001% did not comment on the desirability of <tate funding of elections but reiterated the point of the 3a Commission that the appropriate frame ork for regulation of political parties ould need to be implemented before proposals for <tate funding are considered! 'he
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Election Commission is not in fa(our of state funding as it ill not be possible to prohibit or check candidate-s o n e)penditure or e)penditure by others o(er and abo(e that hich is pro(ided by the <tate! 'he Election Commission-s (ie is that for addressing the real issues% there ha(e to be radical changes in the pro(isions regarding receipts of funds by political parties and the manner in hich such funds are spent by them so as to pro(ide for complete transparency in the matter!
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Background paper
VI. Conduct and Better !anagement of Elections

The massive size of the Indian electorate makes general elections an enormous and daunting exercise. ut this should not prevent us from finding more ways of making the election process free and fair.
?ccording to the Election Commission of India% the si.e of the electorate for the 2009 elections to the 1@th 3ok <abha as more than A17 million! 'he 6ational Commission to Re(ie the #orking of the Constitution% 2001% noted in its report that Cthe holding of general elections in India is e*ual to holding them for Europe% the Inited <tates% Canada% and ?ustralia all put together!D <uccessful administration of the electoral process re*uires more than @0 lakh personnel and almost 1 million 810 lakh: polling booths! 2illions of security personnel are re*uired to promote a peaceful and incident-free (oting e)perience! 0re(ious committees ha(e recommended se(eral changes in the conduct of the electoral process to properly address the challenges mentioned abo(e! 2a$or problems in the conduct of elections and proposed solutions are outlined belo !
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'rregularities in polling
Irregularities in polling procedure ha(e been identified as important issues that need to be addressed in our electoral system! Rigging of elections ha(e become common facets of our electoral system! B!1!1 Importance of electoral rolls 'he 6ational Commission to Re(ie the #orking of the Constitution% 2001% rightly noted that C'he electoral process begins ith the preparation of electoral rolls! If the rolls are incomplete or defecti(e% the hole process is (itiated!D ? Consultation 0aper to the 6ational Commission to Re(ie the #orking of the Constitution noted that Cpolitical parties and influential persons manage large-scale registration of bogus (oters% or large-scale deletion of names of CunfriendlyD (oters!D 'he 5os ami Committee on Electoral Reforms stated that irregularities in electoral rolls are e)acerbated by purposeful tampering done by election officials ho are bought by (ested interests or ha(e partisan attitudes! ?side from intentional tampering% the structure of the system set up to create electoral rolls may contribute significantly to the idespread inaccuracies! In the current system% the Election Commission prepares electoral roles for 0arliamentary and
December 2010 1A
Background paper
?ssembly constituencies% and the <tate Election Commissions prepare electoral rolls for local elections! #hile some states ha(e coordinated their electoral rolls ith those prepared by the Election Commission% there are still some states that significantly modify them! <ome states e(en ha(e different *ualifying dates for the <tate rolls from the Election Commission rolls% hich is inefficient for both the Commissions in(ol(ed and confusing for the (oter! 'he duplication of essentially the same task bet een t o different agencies is also an unnecessarily costly affair! Recommendations 'he 6ational Commission to Re(ie the #orking of the Constitution recommended in its 2001 report that an automated online database should be created by the Election Commission! In such a system% each (oter ould be pro(ided ith a uni*ue bar-coded ID number% assigned for life! 'his bar-coded ID card and number could be (erified at the polling booth by a hand held de(ice! 'he electoral rolls in this system could be prepared at the panchayat or district le(el! ?long ith this% the Commission also recommended that the task of electoral roll preparation should not be duplicated as it is no % possibly by entrusting it to an outside agency under the super(ision of the Election Commission! ? centrali.ed% computeri.ed system could pro(ide for the easy public a(ailability of the electoral rolls as ell! 'he 2007 report on 0roposed Electoral Reforms% the Election Commission concurred ith the 6ational Commission to Re(ie the #orking of the Constitution that there should be common rolls for all elections% ith the 0arliamentary and ?ssembly rolls adapted to suit the needs of local bodies elections! 'his is primarily recommended by the Commission for the purpose of sa(ing on e)penditure and to make the process more efficient! 'he 5os ami Committee of 1990 recommended that 0ost &ffices should be the agencies for preparation and maintenance of electoral rolls! 'his solution may ell be outdated in today-s society here efficient computeri.ed systems can be created! 'he Committee% did ho e(er% recommend a multi-purpose ID some hat along the same lines as that proposed by the 6ational Commission to Re(ie the #orking of the Constitution! B!1!2 Rigging through muscle po er and intimidation Rigging of elections is possible not $ust through tampering of booths% ballots% and electoral roles% but also out of sheer ,muscle po er- and intimidation of (oters! Recommendations
December 2010
1=
Background paper
'he 5os ami Committee Report of 1990 recommended that the Election Commission should be empo ered to take strong action on the report of returning officers% election obser(ers% or ci(il society in regards to booth capture or the intimidation of (oters! 'he 6ational Commission to Re(ie the #orking of the Constitution recommends that the Election Commission should ha(e the po er under <ection @=? of the Representation of the 0eople ?ct% 19@1% to order a fresh election% (oid the election results% or order a re-poll in such cases! It further recommended that the Election Commission should make use of electronic sur(eillance e*uipment as a deterrent to booth capture or intimidation of (oters!
&.2
(roliferation of candidates
'here is a proliferation of candidates in Indian elections! ?ccording to the Election Commission of India% Ctoo many candidates in the election fray puts unnecessary and a(oidable stress on the management of elections and increases e)penditure on account of security% maintenance of la and order% and re*uires e)tra number of balloting units of (oting machines% etcD! It has been obser(ed that a large number of candidates in the fray are nonserious candidates% hich according to the 3a Commission of India% makes elections Ccumbersome% e)pensi(e and unmanageable > indeed farcical in some cases!D 'he 6ational Commission to Re(ie the #orking of the Constitution notes that out of the 1900 independent candidates ho contested the general election of 199=% only si) actually on! Recommendations 'he Election Commission of India% 3a Commission of India% and 6ational Commission to Re(ie the #orking of the Constitution all recommend measures to check the proliferation of non-serious candidates! In their reports% all the Committees mentioned recommended increasing the security deposit of candidates! 'he recommendations of these Committees ere enacted through the Representation of the 0eople 8?mendment: ?ct% 2009% hich increased the amount! 'he Election Commission further recommends that it be gi(en the po er to prescribe deposit amounts prior to each election so that repeated amendments to the Representation of the 0eople ?ct are not necessary! 'he 3a Commission of India Report on Reform of the Electoral 3a s goes e(en further and declares that independent candidates should be debarred from contesting elections to the 3ok <abha! 'he 6ational Commission to Re(ie the #orking of the Constitution proposed a system of discouraging independent candidates from running for office% by
December 2010
19
Background paper
implementing the follo ing measures+ 8i: the e)isting security deposits for independent candidates should be doubled% 8ii: the deposit should be doubled e(ery year for those independents ho fail to in and still keep contesting elections% 8iii: if any independent candidate fails to in fi(e percent of the (ote or more% he should be debarred from contesting as an independent for the same office for si) years% 8i(: an independent candidate ho loses election three times consecuti(ely for the same office as an independent should be permanently debarred from contesting election to that office! &.3 )easures for Election #ommission 'he Election Commission of India has recommended a number of impro(ements in electoral la to allo it to continue functioning in an effecti(e and independent manner! Recommendations Clause 8@: of ?rticle 127 of the Constitution% inter alia% pro(ides that the Chief Election Commissioner shall not be remo(ed from his office e)cept in like manner and on like grounds as a 4udge of the <upreme Court! Go e(er% Clause 8@: of ?rticle 127 does not pro(ide similar protection to the Election Commissioners and it only says that they cannot be remo(ed from office e)cept on the recommendation of the Chief Election Commissioner! 'he pro(ision% in the opinion of the Election Commission% is inade*uate and re*uires an amendment to pro(ide the (ery same protection and safeguard in the matter of remo(ability of Election Commissioners from office as is pro(ided to the Chief Election Commissioner! 'he Election Commission recommends that constitutional protection be e)tended to all members of the Election Commission! 'he Election Commission also recommends that the <ecretariat of the Election Commission% consisting of officers and staff at (arious le(els is also insulated from the interference of the E)ecuti(e in the matter of their appointments% promotions% etc!% and all such functions are e)clusi(ely (ested in the Election Commission on the lines of the <ecretariats of the 3ok <abha% and Ra$ya <abha% Registries of the <upreme Court and Gigh Courts etc! 'he third recommendation of the Election Commission is that its budget be treated as CChargedD on the Consolidated "und of India!
&.4 *estrictions on +overnment sponsored advertisements
December 2010
20
Background paper
It has been noted by the Election Commission that on the e(e of election% the Central and (arious <tate 5o(ernments are able to ad(ertise for the purpose of influencing elections% $ustifying it by pro(iding information to the public! 'he e)penditure on such ad(ertisements is likely incurred from the public e)che*uer! 'he Election Commission feels this practice allo s the misuse of public funds and pro(ides the ruling party an undue ad(antage o(er other parties and candidates! Recommendations 'he Election Commission proposes that here any general election is due on the e)piration of the term of the Gouse% ad(ertisements of achie(ements of the go(ernments% either Central or <tate% in any manner% should be prohibited for a period of si) months prior to the date of e)piry of the term of the Gouse% and in case of premature dissolution% from the date of dissolution of the Gouse! Gere% ad(ertisements E dissemination of information on po(erty alle(iation and health related schemes could be e)empted from the pur(ie of such a ban! 'he Commission also recommends that there should be specific pro(isions that name or symbol of any political party or photograph of any of the leaders of the party should not appear on such hoardingsEbanners!
&.
*estriction on the number of seats which one may contest
<ection 11 of the Representation of the 0eople ?ct% 19@1% a person can contest a general election or a group of bye-elections or biennial elections from a ma)imum of t o constituencies! 'here ha(e been se(eral cases here a person contests election from t o constituencies% and ins from both! In such a situation he (acates the seat in one of the t o constituencies! 'he conse*uence is that a bye-election ould be re*uired from one constituency hich apart from in(ol(ing a(oidable labour and e)penditure on the conduct of that bye-election!
Recommendations
'he Election Commission is of the (ie that the la should be amended to pro(ide that a person cannot contest from more than one constituency at a time!
December 2010
21
Background paper
&.&
,mendment of law to provide for filing of election petition even against defeated candidates on the ground of corrupt practice
?s per the e)isting la % election petition can be filed only for challenging the election of a returned candidate! If a defeated candidate has indulged in corrupt practice% there is no pro(ision for election petition or a declaration against such candidate!
Recommendations 'he Election Commission has recommended in its letter dated 27 th ?pril 2009 that the la should be amended to pro(ide for filing election petitions in cases of commission of corrupt practice by a losing candidate! In the same letter% it as also suggested that the period by hich the candidates are re*uired to file their account of election e)penses should be reduced to 20 days from the present 10 days% so that more time is a(ailable for others to scrutini.e the accounts and to take the matter to the Court in Election 0etitions in cases of spending in e)cess of the ceiling! ?lternati(ely% the period for filing Election 0etition may be increased to B0 days!
&.-
*estrictions on opinion polls
0re(ious committees on electoral la ha(e debated the possibility of hether opinion polls are misused to manipulate (oters on the e(e of elections!
Recommendations
'he Election Commission had recommended that there should be pro(ision in the la putting restrictions on publishing the results of opinion polls and e)it polls for a specified period during the election process! By the recent amendment of the Representation of the 0eople ?ct%19@1% a ne <ection 12B? has been inserted in the ?ct prohibiting conducting of e)it polls and publishing results in any manner% during the period starting from 7= hours before the close of poll in an election! In a multiphased election% the prohibition ill last till the close of poll in the last phase!
December 2010
22
Background paper
Go e(er% the amendment does not co(er opinion polls! 'hus% results of opinion poll can be published e(en on the day of election polling! ?lthough dissemination of results of opinion polls ould be prohibited during the 7= hours period before the conclusion of poll by (irtue of <ection-12B 81: 8b: on electronic media% there is no pro(ision of la to restrict dissemination through print media 8since 12B 81: 8b: does not apply to print media:!
&..
(rohibition of #ampaign during the /ast 4. 0ours
<ection 12B of the Representation of the 0eople ?ct% 19@1% prohibits electioneering acti(ities by ay of public meetings% public performance% processions% ad(ertisements through cinematograph% tele(ision or similar apparatus during the period of 7= hours before the time fi)ed for conclusion of poll! 'hus% political ad(ertisements in '; and Radio are prohibited during these 7= hours! Go e(er% since this <ection does not refer to print media% the political parties and candidates issue ad(ertisements in ne spapers during this period including on the day of poll! 'hey also undertake house-to-house (isits! 'he logic behind the restriction on campaigning during the 7= is to allo citi.ens to decide their option ithout being pre$udiced by any last moment appeals!
Recommendations
'he Election Commission recommends that <ection 12B should apply to print media as ell! "urthermore% it recommends that house to house (isits by candidatesEsupporters should be specifically prohibited during the said 7= hour period! It is the opinion of the Commission that the house-to-house (isitE contact in the last hours pro(ides that opportunity for indulging in malpractices such as trying to bribe electors ith cash!
&.1
2an on transfer of officers li3ely to serve elections
It is the opinion of the Election Commission that such transfers% often made on grounds other than administrati(e e)igencies% disrupt the arrangements then under ay for conducting smooth and peaceful elections!
December 2010
21
Background paper
Recommendations
'he Election Commission had recommended in 199= that <ection 11 CC of the Representation of the 0eople ?ct% 19@0% and <ection 2=? of the Representation of the 0eople ?ct% 19@1 should be amended to pro(ide that no transfer shall be made% ithout the concurrence of the Commission% of any officer referred to therein% as soon as a general electionEbye-election becomes due in any 0arliamentary or ?ssembly Constituencies! 'he Commission has suggested that in the case of a general election either to the Gouse of the 0eople or to <tate 3egislati(e ?ssembly% the ban may come into operation for the period of si) months prior to the date of e)piry of the term of the Gouse concerned% and in case of premature dissolution% from the date of dissolution of the Gouse!
&.14 %alse declaration in connection with elections to be an offence
<ection 11 of the Representation of the 0eople ?ct% 19@0% contains a pro(ision pro(iding for punishment ith imprisonment up to one year for making a false declaration in connection ith preparationEre(ision of electoral roll! 'here is no such pro(ision in the Representation of the 0eople ?ct% 19@1% in relation to conduct of elections! During the course of an election% the Election Commission has obser(ed se(eral cases of such false statementsEdeclarations before the election authorities such as by candidates% representati(es of political parties etc! ? pro(ision for punishment for false statement E declaration ould be a deterrent against fri(olous complaints and petitions!
Recommendations
'he Election Commission recommends that there should be a pro(ision for penal action against those making any false declarations in connection ith an election! <uch a pro(ision ould pro(ide for a similar punishment for false declarations in connection ith conduct of elections% such as false complaints of booth capturing or false complaints about the conduct of election officials!
&.11 (unishment for electoral offences to be enhanced
December 2010
27
Background paper
Indue influence and bribery at elections are electoral offences under <ections 1A1B and 1A1C% respecti(ely% of the I0C! 'hese offences are non-cogni.able offences% ith punishment pro(ision of one year-s imprisonment% or fine% or both! Inder <ection 1A15% publishing a false statement in connection ith an election ith intent to affect the result of the election is only punishable ith a fine! <ection 1A1G pro(ides that incurring or authori.ing e)penditure for promoting the election prospects of a candidate is an offence! Go e(er% punishment for an offence under this <ection is a small fine of Rs @00!
Recommendations
'he Election Commission feels that considering the gra(ity of the offences under the aforesaid sections in the conte)t of free and fair elections% the punishments under all the four sections should be enhanced! 'his as recommended by the Commission in 1992!
&.12 *estoring the cycle of biennial retirement in the *a5ya $abha6/egislative #ouncils
? petition as submitted in the 0atna Gigh Court last year on the topic of restoring the cycle of biennial retirement in the Ra$ya <abha and 3egislati(e Councils! 'he Gigh Court% in its order% obser(ed that the 5o(ernment and the Election Commission may consider the matter for a solution!
Recommendations
In its December 2007 the Election Commission reiterated the earlier proposal for amending the la so as to ensure retirement of 1E1rd of the members in the Ra$ya <abha and <tate legislati(e councils after e(ery t o years!
&.13 E"penditure ceiling for election to #ouncil #onstituencies
0resently the e)penditure ceiling for candidates applies only for the 3ok <abha and ?ssembly elections!
December 2010
2@
Background paper
Recommendations 'he Commission has in its letter dated 10th 2ay 200A proposed that this should also be applicable in the case of legislati(e council elections from the Council Constituencies! 'he candidate should also be re*uired to submit the account of election e)penses!
&.14 )isuse of religion for electoral gain by political parties
'he 3iberhan ?yodhya Commission of In*uiry recommended% inter alia% that complaints of misuse of religion for electoral gain should be speedily in(estigated into by the Election Commission! 'he Election Commission informed the go(ernment 83etter dated 4anuary 29% 2010: that such in(estigations should be carried out by the in(estigating agencies of the state! Go e(er% the Election Commission in(ited the attention of the go(ernment to the Representation of the 0eople 8<econd ?mendment: Bill% 1997% hereby an amendment as proposed pro(iding for pro(ision to *uestion acts of misuse of religion by political parties before a Gigh Court! <imilar recommendations made by the 5os ami Committee ere included in a Bill introduced in the Ra$ya <abha in 2ay 1990! 'he 5o(ernment ithdre this Bill in 1991% stating that a re(ised Bill ould be introduced! Go e(er% these pro(isions ha(e ne(er been considered since then!
Recommendations
'he 5os ami Committee on Electoral Reforms% in its report in 1990% made the follo ing recommendations+ CElection Commission shall ha(e the po er to make recommendations to the appropriate authority 8a: to refer any matter for in(estigation to any agency specified by the Commission 8b: 0rosecute any person ho has committed an electoral offence under this ?ct or 8c: appoint any special court for the trial of any offence or offences under this ?ct 8R0 ?ct 19@1:!D
'he Election Commission recommends that abo(ementioned pro(isions should be reconsidered!
&.1
7otali8er for counting of votes
December 2010
2B
Background paper
Currently (otes are tallied by indi(idual E;2s at indi(idual polling stations! 'his e)poses the trend of (oting in a particular (oting station% making the electorate of that area (ulnerable to backlash by candidates or elected officials in retribution!
Recommendations
'he Election Commission recommends an amendment be made to the Conduct of Elections Rules to pro(ide for the use of ,totali.er- for counting of (otes cast at more than one polling station here E;2s are used% so that the trend of (oting in indi(idual polling station areas does not get di(ulged and the electors may not be sub$ected to any harassment or (ictimi.ation on that account!
&.1& *e9e"amination of the provision of 7eachers: and +raduates: #onstituencies
Inder ?rticle 1A1 81: 8b: J 8c : of the Constitution% one-t elfth of the seats in the 3egislati(e Councils are to be filled up by graduates and another one-t elfth by teachers ho ha(e been engaged in teaching in educational institutions not lo er in standard than that of a secondary school! ?s per the pro(isions of this ?rticle% a teacher teaching in the lo er primary section in a secondary school is eligible to be enrolled as an elector for the 'eachers- constituency% hereas a teacher teaching in the middle school in a middleEprimary school ill not be eligible to be an elector!
Recommendations 'he Election Commission recommends that the pro(isions of ?rticle 1A1 81: 8c: should be amended so as to pro(ide that all teachers of specified institutions irrespecti(e of the le(el of the school ould be eligible to be electors for the 'eachers- constituency! "urthermore% the Commission is of the (ie that the concept of special representation for graduates and teachers should itself be reconsidered!
&.1- Victimi8ation of officers drafted for election duties
December 2010
2A
Background paper
'he Election Commission utili.es the ser(ices of a large number of go(ernment officers for election duties% ho perform important statutory functions in connection ith preparation of electoral rolls and conduct of elections! 'he Election Commission has obser(ed many of these officers are later sub$ected to humiliation and e(en (indicti(e disciplinary action by the go(ernment!
Recommendations
'he Election Commission recommends that in the case of the go(ernment officers performing statutory functions in connection ith preparation of electoral rolls% or in the conduct of elections% consultation ith the Election Commission and its concurrence should be made compulsory before initiating any disciplinaryElegal proceedings by the go(ernment! In the case of those officers ho ha(e ceased to hold election related positions% consultation ith the Commission should be mandatory for initiating any disciplinaryElegal proceedings for a period of one year from the date on hich the officer ceased to hold election related position!
&.1. Dis;ualification for failure to lodge election e"penses
Inder <ection 10? of the Representation of the 0eople ?ct% 19@1% the Election Commission may dis*ualify a candidate for three years for failure to lodge the account of election e)penses as per the re*uirement of the la ! 'hus% the period of dis*ualification may end by the time of the ne)t general election to that Gouse! 'herefore% no effecti(e purpose is ser(ed by the dis*ualification 8e)cept that the person cannot contest in the odd bye-election that may be held during the 1 year period:!
Recommendations
'he Election Commission recommends that the period of dis*ualification under <ection 10? should be increased to @ years% so that the dis*ualified person does not become a candidate at the ne)t general election to the Gouse concerned!
December 2010
2=
Background paper
VII. "egulating Political Parties

0roliferation of political parties is stated as a ma$or concern by many pre(ious committees! <ection 29? of the Representation of the 0eople ?ct% 19@1% allo s for small groups of people to form political parties by making only a simple declaration! In its 2001 report% the 6ational Committee to Re(ie the #orking of the Constitution states that Cit is a desirable ob$ecti(e to promote the progressi(e polarisation of political ideologies and to reduce less serious political acti(ity!D ?ccording to the Election Commission% a large number of non-serious parties create e)cessi(e load on the electoral system! &f the more than 1100 parties registered ith the Election Commission in 2009% only about 1B0 actually contested the general election that year! 'he Commission also states that part of the problem is that there is no specific pro(ision to de-register a party! 'he 6ational Commission to Re(ie the #orking of the Constitution adds that hile proliferation of smaller parties creates CconfusionD% any tightening of regulation on the sub$ect must also take into account Cthe need to reflect the aspirations of a plural society!D Recommendations 'he Election Commission proposes that an amendment be made to <ection 29? of the Representation of the 0eople ?ct% 19@1% adding a clause Cauthorising the Election Commission to issue necessary orders regulating registration and de-registration of political parties!D 'he 6ational Commission to Re(ie the #orking of the Constitution% 2001% recommended that Cthe Election Commission should progressi(ely increase the threshold criterion for eligibility for recognition so that the proliferation of smaller parties is discouraged! &nly parties or a pre-poll alliance of political parties registered as national parties or alliances ith the Election Commission be allotted a common symbol to contest elections for the 3ok <abha! <tate parties may be allotted symbols to contest elections for <tate 3egislatures and the Council of <tates 8Ra$ya <abha:!D "urthermore% the abo(e Commission recommended that Cthe rules and by-la s of the parties seeking registration should include pro(isions for+
December 2010
29
Background paper
8a: ? declaration of adherence to democratic (alues and norms of the Constitution in their inner party organisations% 8b: ? declaration to shun (iolence for political gains! 8c: ? declaration not to resort to casteism and communalism for political mobilisation% but to adhere to the principles of secularism in the achie(ement of their ob$ecti(es% 8d: ? pro(ision for party con(entions to nominate and select candidates for political offices at the grass root and <tate le(els 8e: ? code of conduct 8 hich each political party should e(ol(e for itself:% 8f: <ome institutional mechanism for planning% thinking% and research on crucial socio-economic issues facing the nation and educational cells for socialising their party cadres and preparing them for responsibilities of go(ernance% 8g: Implementation of legal pro(isions regarding representation to omen and eaker sections of society in party offices and in candidacy for elections to Gouses of 3egislaturesD
December 2010
10
Background paper
VIII. Auditing of inances of Political Parties

?s mentioned pre(iously in this report% the high cost of elections pro(ides a logic for corruption in the public arena! 'his affects not only candidates% but parties as ell! In an order dated 2arch 2A% 2001% the Election Commission of India issued an order% in pursuance of the <upreme Court $udgment dated 2arch 11% 2001 in the Peoples Union for Civil Liberties & Another Vs. Union of In i! case% that candidates for electoral office must submit an affida(it disclosing his assets and liabilities! 'his order% ho e(er% does not apply to political parties! Recommendations 'he 2007 report of the Election Commission declared that political parties should be re*uired to publish their accounts 8or at least an abridged (ersion: annually for information and scrutiny of the general public and all concerned% for hich purpose the maintenance of such accounts and their auditing to ensure their accuracy is a prere*uisite! 'he auditing may be done by any firm of auditors appro(ed by the Comptroller and ?uditor 5eneral! 'he audited accounts should then be made public! 'he Election and &ther Related 3a s 8?mendment: Bill% 2002 8introduced in 3ok <abha on 19th 2arch% 2002: sought to introduce section 29D in the Representation of the 0eople ?ct% 19@1 in this regard! 'he Department-Related 0arliamentary <tanding Committee on Gome ?ffairs hile e)amining the matter desired that the audit of accounts of donation recei(ed by the political party may be done through Chartered ?ccountants appointed by it as at present% as per the pro(isions of the Income-ta) ?ct 8section 11?:! In (ie thereof the Committee recommended deletion of entire section 29D in Clause 2 of the Bill!
In 2001 the 6ational Commission to Re(ie the #orking of the Constitution recommended that Caudited political party accounts like the accounts of a public limited company should be published yearly ith full disclosures under predetermined account headsD!
December 2010
11
Background paper
'he 3a Commission% in its 1999 report% recommended steps be taken to amend the Representation of the 0eople ?ct% 19@1% to insert a ne section A=? re*uiring the maintenance% audit and publication of accounts by political parties! 'o enforce compliance% <ection A=? ould prescribe the follo ing penalties+ 8i: a political party hich does not comply shall be liable to pay a penalty of Rs! 10%000E- for each day of non-compliance and so long as the non-compliance continues/ 8ii: If such default continues beyond the period of B0 days% the Election Commission may derecognise the political party after affording a reasonable opportunity to sho cause/ 8iii: If the Election Commission finds on (erification% undertaken hether s"o #ot" or on information recei(ed% that the statement of accounts filed is false in any particular% the Election Commission shall le(y such penalty upon the political party% as it may deem appropriate besides initiating criminal prosecution as pro(ided under la ! In order to further transparency in the funding of political parties% the Election Commission recommends the follo ing measures+ 8i: any receipt by a political party either directly or through the e)ecuti(es or the party functionaries should be deposited in the Bank ?ccounts of such parties% 8ii: all payments by the political party e)ceeding Rs!20%000E- to a person should be made by crossed account payee che*ue and 8iii: all contributions or donations or gifts by any person to a party functionary other than those by hisEher relati(e8s: shall be deemed as receipts of the political party and it ill be accounted for by the political party!
December 2010
12
Background paper
I#. Ad$udication of Election %isputes

Disputes relating to elections of the <tate 3egislature and Inion 3egislature are ad$udicated upon e)clusi(ely by the Gigh Courts before hom election petitions under <ection =0 and =0-? of the Representation of 0eoples ?ct% 19@1% are filed!
<ections =B8B: and =B8A: of the Representation of the 0eople ?ct% 19@1% pro(ide that the Gigh Court shall make an endea(our to dispose of an election petition ithin si) months from its presentation and also as far as practicably possible conduct proceedings of an election petition on a day to day basis!
In practice% ho e(er% cases in(ol(ing election petitions are rarely resol(ed in a timely manner! ?ccording to the report CEthics in 5o(ernanceD of the <econd ?dministrati(e Reforms Commission% Csuch petitions remain pending for years and in the mean hile% e(en the full term of the house e)pires thus rendering the election petition infructuous!
Recommendations 'he 6ational Commission to Re(ie the #orking of the Constitution% recommended that special election benches designated for election petitions only should be formed in the Gigh Court! 'he Election Commission has also made a similar recommendation! 'he <econd ?dministrati(e Reforms Commission% in its report CEthics in 5o(ernanceD% recommended in detail that+ C<pecial Election 'ribunals should be constituted at the regional le(el under article 129B of the Constitution to ensure speedy disposal of election petitions and disputes ithin a stipulated period of si) months! Each tribunal should comprise a Gigh Court $udge and a senior ci(il ser(ant ith at least @ years e)perience in the conduct of elections 8not belo the rank of an ?dditional <ecretary to the 5o(ernment of IndiaE0rincipal <ecretary of a <tate 5o(ernment:! Its mandate should be to ensure that all election petitions are decided ithin a period of si) months as pro(ided by la ! 'he 'ribunals should normally be set up for a term of one year only% e)tendable for a period of B months in e)ceptional circumstances!-
December 2010
11
Background paper
#.
"evie& of Anti'%efection (a&
In the report CEthics in 5o(ernanceD of the <econd ?dministrati(e Reforms Commission% it is noted that CDefection has long been a malaise of Indian political life! It represents manipulation of the political system for furthering pri(ate interests% and has been a potent source of political corruption!D 'he report further notes that Cthere is no doubt that permitting defection in any form or conte)t is a tra(esty of ethics in politics!D 'he ?nti-Defection pro(isions of the 'enth <chedule of the Constitution% enacted in 19=@% fi)ed a certain number abo(e hich group defections ere permitted! 'he 6ational Committee to Re(ie the #orking of the Constitution noted that although indi(idual defections became rare after this% group defection ere Cpermitted% promoted and amply re arded!D 'he 91st ?mendment to the Constitution% 2001% changed this by making it mandatory for defectors to resign their positions regardless of hether they defected as an indi(idual or as part of a group! Currently the issue of dis*ualification of members of 0arliament or a <tate 3egislature is decided by the <peaker or Chairman of the concerned Gouse! ?side from those concerning the 'enth <chedule all other matters of post-election dis*ualification are decided by the 0residentE5o(ernor% on the ad(ice of the Election Commission! 'he Election Commission% in its 2007 report% noted that Call political parties are a are of some of the decisions of the Gon-ble <peakers% leading to contro(ersies and further litigation in courts of la !D 'he 6ational Committee to Re(ie the #orking of the Constitution noted that Csome of the <peakers ha(e tended to act in a partisan manner and ithout a proper appreciation > deliberate or other ise > of the pro(isions of the 'enth <chedule!D Recommendations 'he 6ational Commission to Re(ie the #orking of the Constitution recommend that Cthe po er to decide on *uestions as to dis*ualification on ground of defection should (est in the Election Commission instead of in the Chairman or <peaker of the Gouse concerned!D 'he Election Commission and CEthics in 5o(ernanceD report of the <econd ?dministrati(e Reforms Commission also both recommended that the issue of
December 2010
17
Background paper
dis*ualification on grounds of defection should be decided by the 0residentE5o(ernor concerned under the ad(ice of the Election Commission% instead of relying on the ob$ecti(ity of the decision from the <peaker!
December 2010
1@
Background paper
#I. Annexure) *pdate on Election Commission "ecommendations

'he 2inistry of 3a and 4ustice has prepared a table re(ie ing progress made on the recommendations suggested by the Election Commission in 2007! In 4uly% 2007% the Election Commission has sent a set of 22 proposals on Electoral Reforms! "urther% the entire matter of electoral reforms as referred to the Department Related 0arliamentary <tanding Committee on 0ersonnel% 0ublic 5rie(ances% 3a and 4ustice for e)amination by the Chairman% Ra$ya <abha in the year% 200@! &ut of 22 proposals the Gon-ble <tanding Committee ga(e its recommendations on si) proposals including criminali.ation of politics! 'he Department has taken initiati(e and rele(ant pro(isions of the Representation of the 0eople ?ct% 19@0 and Representation of the 0eople ?ct% 19@1 ha(e been amended to pro(ide for 81: ?ppointment of ?ppellate ?uthority in districts against orders of Electoral Registration &fficers/ 82: to increase the security deposit of candidates/ 81: E)it 0olls/ 87: ?ll officials appointed in connection ith conduct of elections to be included in clause 8A: of section 121/ and 8@: <implification of procedure for dis*ualification of a person found guilty of corrupt practice! 'he Gon-ble <tanding Committee did not fa(our the proposal on carrying out any amendment relating to the Criminalisation of politics!
December 2010
1B
Background paper
Brief details of each of the proposal and remarks thereon are as under+<l! 6o! 0roposal of the Election Commission 1! ?ffida(its to be "iled by Candidates on Criminal ?ntecedents% ?ssets% etc! <tatusERemarks! 'his relates to the merger of t o affida(its filed by a candidate one in terms of section 11? of the Representation of the 0eople ?ct% 19@1% read ith rule 7? of the Conduct of Election Rules% 19B18in "orm 2B: and another in the format prescribed by the Commission (ide its order dated 2A!1!2001% in pursuance of the Gon-ble <upreme Court-s $udgment dated 11!1!2001 in Ci(il ?ppeal 6o! 790 of 2002 80eoples Inion for Ci(il 3iberties J ?nother ;s! Inion of India:! Enacted vi e Representation of the 0eople 8?mendment: ?ct% 2009 8?ct 71 of 2009:! 'he 5o(ernment had re*uested the 0arliamentary <tanding Committee to gi(e its recommendations on the proposal of the Election Commission of India! 'he Committee in its Eighteenth Report on the sub$ect inter !li! disagreed ith the aforesaid proposal as it is a ma$or departure from the la of the land that a person is not guilty until he is con(icted by the highest court of the land! 'he Committee% ho e(er% recommended that proclaimed absconders under section =2 of the Criminal 0rocedure Code be dis*ualified from contesting polls!
2! 1!
6eed to Increase the <ecurity Deposit of Candidates Criminalisation of 0olitics 'his proposal relates to dis*ualify any persons accused of an offence punishable by imprisonment for fi(e years or more% from contesting elections e(en hen trial is pending% pro(ided charges ha(e been framed against him by a competent court!
7!
Restriction on the 6umber of <eats from In the all party meeting held on 22!@!199=% it hich &ne 2ay Contest as decided to retain the present pro(ision of allo ing a person to contest from t o 'his proposal is to amend the la to constituencies of same nature! pro(ide that a person cannot contest from more than one constituency at a time or if the present pro(ision is retained then there should be a pro(ision hich ould mandate to deposit a definite sum in case a person get elected from both seats! E)it 0olls and &pinion 0olls Enacted vi e Representation of the 0eople 8?mendment: ?ct% 2009 8?ct 71 of 2009:
1A
@!
December 2010
Background paper
putting a restriction on publication and dissemination of results of e)it polls! Restriction of opinion polls needs to be e)amined! B! 0rohibition of <urrogate ?d(ertisements <ection 12A? deals only ith publication of in 0rint 2edia! pamphlets% posters% etc!% but does not include ad(ertisement in ne spapers! 'he said section <ection 12A? of the Representation of can be amended so as to include ad(ertisement the 0eople ?ct% 19@1 may be suitably in print media also! Go e(er% the matter of amended% adding a ne sub-section regulating ad(ertisements in the print media 82?: to the effect that in the case of any pertains to the 2inistry of Information and ad(ertisements E election matter for or Broadcasting and 0ress Council of India and the against any political party or candidate proposal can be considered on the basis of in print media% during the election inputs from them! period% the name and address of the publisher should be gi(en along ith the matter E ad(ertisement! <ub-section 87: should also be suitably amended to include in its ambit the ne proposed sub-section! 6egati(e E 6eutral ;oting 'he Committee on Electoral Reforms 8Dinesh 5os ami Committee: did not fa(our it and as of the (ie that it does not ser(e any purpose!
A!
=!
?ppointment of ?ppellate ?uthority in Enacted vi e Representation of the 0eople Districts against &rders of Electoral 8?mendment: ?ct% 2009 8?ct 71 of 2009:! Registration &fficers Compulsory 2aintenance of ?ccounts by 0olitical 0arties and ?udit thereof! 'he Election and &ther Related 3a s 8?mendment: Bill% 2002 8introduced in 3ok <abha on 19th 2arch% 2002: sought to introduce section 29D in the Representation of the 0eople ?ct% 19@1 in this regard! 'he DepartmentRelated 0arliamentary <tanding Committee on Gome ?ffairs hile e)amining the matter desired that the audit of accounts of donation recei(ed by the political party may be done through Chartered ?ccountants appointed by it as at present% as per the pro(isions of the Income-ta) ?ct 8section 11?:! In (ie thereof the Committee recommended deletion of entire section 29D in clause 2 of the Bill! 'he proposal re*uires further e)amination!
9!
10!
5o(ernment <ponsored ?d(ertisements!
December 2010
1=
Background paper
'he Commission proposes that here any general election is due on the e)piration of the term of the Gouse% ad(ertisements of achie(ements of the go(ernments% either Central or <tate% in any manner% should be prohibited for a period of si) months prior to the date of e)piry of the term of the Gouse! 11! 0olitical ?d(ertisements on 'ele(ision and Cable 6et ork!
?d(ertisements on po(erty alle(iation and health related schemes could be e)empted! ?d(ertisements re(ealing information on matters of urgent public interest could also be e)empted! "urther% since ad(ertisements could be prohibited from carrying the name of any political party or photographs of leaders and 2inisters!
'he issue of ad(ertisements on tele(ision and cable net orks% led to a lot of confusion during the recent general election! 'he Cable 'ele(ision 6et ork 8Regulation: Rules% 1997% 'his relates to consider amending the prohibit ad(ertisements of political nature! rele(ant pro(isions of the Cable 'he matter pertains to the 2inistry of 'ele(ision 6et ork 8Regulation: Rules% Information and Broadcasting and that 2inistry 1997 to pro(ide for suitable is able to $udge the feasibility of e(ol(ing a ad(ertisement code and monitoring suitable ad(ertisement code and monitoring mechanism! mechanism for ad(ertisement on tele(ision and cable net orks in consultation of the Election Commission and 3egislati(e Department!
12!
Composition of Election Commission It as decided to include it as a proposal for and Constitutional 0rotection of all regional and national consultation! 2embers of the Commission and Independent <ecretariat for the Commission! E)penses of Election Commission to be 'reated as Charged! 'he proposal to make the e)penses of the Election Commission of India ,charged- as considered by the Dinesh 5os ami Committee but as not fa(oured! In 1997% the 5o(ernment% ho e(er% introduced the Election Commission 8Charging of E)penses on the Consolidated "und of India: Bill% 1997 in 3ok <abha on 1B!12!97 hich lapsed on the dissolution of the 'enth 3ok <abha! 'he Department-Related 0arliamentary <tanding Committee on Gome ?ffairs in its 27th Report on the said Bill presented to Ra$ya <abha on 2=!11!199@ and as of the considered (ie that there is no need of passing the proposed Bill and recommends
11!
December 2010
19
Background paper
that the Bill be dropped 'he Election Commission of India again made a similar proposal in 199A hich as placed before political parties in the all party meeting held on 22!@!199= but no (ie as taken! ?gain% the Election Commission of India made the same proposal in 2ay% 2001 and on the direction of the then Gon-ble 0rime 2inister the same as placed before the political parties in the all party meeting held on 29!10!2001! 'he debate on the proposal remained inconclusi(e! 17! Ban on 'ransfers of Election &fficers on 'his is to amend section 11CC of the the E(e of Elections Representation of the 0eople ?ct% 19@0% and section 2=? of the Representation of the 0eople ?ct% 19@1 to pro(ide that no transfer shall be made% ithout the concurrence of the Commission% of any officer referred to therein% as soon as a general electionEbye-election becomes due in any 0arliamentary or ?ssembly Constituencies! ?ll &fficials ?ppointed in Connection ith Conduct of Elections to be included in Clause 8A: of <ection 121! ?nti-Defection 3a 'he *uestion of dis*ualification of members on the grounds of defection should also be decided by the 0resident and 5o(ernors% on the opinion of the Election Commission! 1A! Ise of Common Electoral Rolls at Elections Conducted by the Election Commission and the <tate Election Commissions 1=! <implification of 0rocedure for Dis*ualification of a 0erson "ound 5uilty of Corrupt 0ractice! 19! <ame 6umber of 0roposers for all It as decided to include it as a proposal for 'he matter has been e)amined and decided to a ait the outcome of the discussion bet een the Election Commission and <tate Election Commissions to sort out the modalities in this regard! Enacted vi e Representation of the 0eople 8?mendment: ?ct% 2009 8?ct 71 of 2009:! Enacted vi e Representation of the 0eople 8?mendment: ?ct% 2009 8?ct 71 of 2009:! 6o (ie has been taken!
1@!
1B!
December 2010
70
Background paper
Contesting Candidates -?mendment of regional and national consultation! <ection 11 of the Representation of the 0eople ?ct% 19@1 20! 2aking of "alse Declaration in Connection ith Election to be an &ffence! 2aking of any false statement or declaration before the Election Commission% Chief Electoral &fficer% District Election &fficer% 0residing &fficer or any authority appointed under the Representation of the 0eople ?ct% 19@1% in connection ith any electoral matter should be made an electoral offence under the said ?ct! 21! Rule 2aking ?uthority to be ;ested in Election Commission 2aking authority under the Representation of the 0eople ?ct% 19@0 and Representation of the 0eople ?ct% 19@1% should be conferred on the Election Commission% instead of on the Central 5o(ernment% ho should% ho e(er% be consulted by the Election Commission hile framing any rule! 22! Registration and De-registration of 0olitical 0arties - <trengthening of E)isting 0ro(isions Inder the e)isting section 29? of the Representation of the 0eople ?ct% 19@1% another clause may be introduced authorising the Election Commission to issue necessary orders regulating registration and de-registration of political parties! 'he (arious legal pro(isions re*uired to curb the illful furnishing of incorrect information in electoral procedures to ensure the free and fair election are already there in the Election 3a s! "urther% keeping in (ie a large population of this country being illiterate% there ould be fre*uent instances of furnishing incorrect information inad(ertently or ithout any malafide intention by the common man hile the process of preparation of electoral rolls% etc! and hence% the proposal may create the fear in the minds of people abstaining themsel(es from the democratic process of the country! Rule making po er has to be (ested only ith the 5o(ernment since rules are in the nature of subordinate legislation% the making of it shall be only ith the 5o(ernment hich is ans erable to 0arliament! Rules are re*uired to be laid before 0arliament and can be modified and nullified if the Gouses of 0arliament resol(e to do so! If rules ere to be made by the Election Commission then amendment or modification by 0arliament may lead to contro(ersy! In (ie the gro ing number of political parties registered ith the Election Commission for perpetuity a(ailing all the facilities like% ta) e)emption% political fund contributions% hereas the number of political parties regularly contest elections being limited to certain number of registered political parties% it is orth hile to consider the proposal of the Election Commission!
December 2010
71
Background paper
In addition to the aforesaid 22 proposals the Election Commission of India has made% the 2inistry of 3a has a certain other proposals on electoral reforms% hich are as under+81: Election E)penditure in respect of the Inder section AA and A= of the R!0! ?ct% 'eachers and 5raduates constituencies+19@1 e(ery candidate in the election to the 3ok <abha and the 3egislati(e ?ssemblies of <tateEI's is re*uired to maintain correct account of e)penditure incurredEauthori.ed in connection ith his election and to lodge it ith the DE& ithin the 10 days of election% hereas rule 90 of the Conduct of Elections Rules 19B1 has prescribed a ceiling for e)penditure that can be incurred in connection ith these elections! Go e(er% there is no such pro(ision under election la s re*uiring maintaining or lodging the account of election e)penses or prescribing any ceiling of e)penditure in the case of elections to the Council of <tates and the <tate 3egislati(e Council!
'he Election Commission is of the (ie that in the interest of free and fair election% there is urgent need to bring the elections to the 3egislati(e Councils from the 'eachers and 5raduates- constituencies ithin the ambit of section AA and A= of the R0 ?ct% 19@1 and also prescribing a ceiling of e)penditure that can be incurredE authori.ed in these elections! 82:?mendment to the Conduct of Election 6o (ie has been taken! Rules% 19B1 to pro(ide for use of 'otaliser for counting of ;otes recorded in E;2s! 81: Restoration of Cycle of Ra$ya <abha and 3egislati(e Council+Inder article =0 and 1A1 of the Constitution e(ery second year as nearly as possible one-third member of the Council of <tate and 3egislati(e Council shall retire e(ery second year! Due to non a(ailability of the 3egislati(e ?ssembly in certain <tatesEInion 'erritory for continuous years% the cycle of the Ra$ya <abha could not be maintained and e(entually all the
72
December 2010
Background paper
2embers of the Council of <tates from that <tates get elected for a period of <i) years! ? similar situation is being faced in the case of 3egislati(e Council in respect of the <tates of Bihar% I!0!% Karnataka etc!% due to non a(ailability of 3ocal Bodies% ?ssemblies for longer periods! In this regard it may be submitted that the Election Commission has suggested some methods to be adopted to sort out these e(entualities in future! 'he 3d! ?ttorney 5eneral for India is of the (ie that the sanctity of the pro(isions of the Constitution may be maintained and the cycle of retirement of the 2embers of Ra$ya <abha and 3egislati(e Council should be restored! <7: ?ppointment of Chief Election Commissioner 8CEC: and other Election Commissioners 8EC: and conse*uential matter+&ne of the Chief Election Commissioner s has re*uested the 5o(ernment to ha(e a collegium consisting of the 0rime 2inister and 3eader of &pposition etc! ho is empo ered to make recommendations for appointments of the CEC and ECs! "urther% it has also been suggested that there should be complete ban for ten years after retirement from the post of CEC to any political post!
December 2010
71

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BACKGROUND PAPER ON ELECTORAL REFORMS

(PREPARED BY THE CORE-COMMITTEE ON ELECTORAL REFORMS)

Core-Committee on Electoral Reforms

Core-Committee on Electoral Reforms

Core-Committee on Electoral Reforms

Core-Committee on Electoral Reforms

Approach to Background Paper

Core-Committee on Electoral Reforms

Core-Committee on Electoral Reforms

Core-Committee on Electoral Reforms

Disclosure of criminal antecedents of candidates

Core-Committee on Electoral Reforms

Eligibility of candidates with criminal cases pending against them

Core-Committee on Electoral Reforms

Core-Committee on Electoral Reforms

Negative or Neutral Voting

Core-Committee on Electoral Reforms

!fficial limits on campaign e"penditure

Core-Committee on Electoral Reforms

Disclosure audit of assets and liabilities of candidates

Core-Committee on Electoral Reforms

#urbing the cost of campaigning

$tate %unding of Elections

Core-Committee on Electoral Reforms

Core-Committee on Electoral Reforms

Core-Committee on Electoral Reforms

VI. Conduct and Better !anagement of Elections

Core-Committee on Electoral Reforms

Core-Committee on Electoral Reforms

Core-Committee on Electoral Reforms

&.4 *estrictions on +overnment sponsored advertisements

Core-Committee on Electoral Reforms

*estriction on the number of seats which one may contest

Core-Committee on Electoral Reforms

*estrictions on opinion polls

Core-Committee on Electoral Reforms

(rohibition of #ampaign during the /ast 4. 0ours

2an on transfer of officers li3ely to serve elections

Core-Committee on Electoral Reforms

&.14 %alse declaration in connection with elections to be an offence

&.11 (unishment for electoral offences to be enhanced

Core-Committee on Electoral Reforms

&.13 E"penditure ceiling for election to #ouncil #onstituencies

Core-Committee on Electoral Reforms

&.14 )isuse of religion for electoral gain by political parties

'he Election Commission recommends that abo(ementioned pro(isions should be reconsidered!

7otali8er for counting of votes

Core-Committee on Electoral Reforms

&.1& *e9e"amination of the provision of 7eachers: and +raduates: #onstituencies

&.1- Victimi8ation of officers drafted for election duties

Core-Committee on Electoral Reforms

&.1. Dis;ualification for failure to lodge election e"penses

Core-Committee on Electoral Reforms

VII. "egulating Political Parties

Core-Committee on Electoral Reforms

Core-Committee on Electoral Reforms

VIII. Auditing of inances of Political Parties

Core-Committee on Electoral Reforms

Core-Committee on Electoral Reforms

I#. Ad$udication of Election %isputes

Core-Committee on Electoral Reforms

"evie& of Anti'%efection (a&

Core-Committee on Electoral Reforms