India is the world’s largest electoral democracy. Our electorate has expanded dramatically as our population increased from 362 million in 1951 to 1.25 billion today. Initially, it was thought that the real areas of menace were bribery, undue influence, appeals to religion, caste, language and the like, using the bureaucracy, falsity of affidavits and so on — this is reflected in the Representation of the People Act, 1951 (Sections 123-126). But this was not enough. There were two other kinds of criminalisation. The first was booth-capturing and election violence — these were dealt with by amendments in 1989 and 1996 (Section 135A). The second was legislators convicted of offences continuing in office or fighting elections until their conviction was decided by the Supreme Court. This was taken care of by Lily Thomas (2013), which mandates immediate disqualification upon conviction, unless the conviction is suspended by the court of appeal.
The other major challenge was money power. This has received insufficient attention. In Citizens United (2010), the US Supreme Court took the astounding decision that corporates could make unlimited campaign contributions to political parties. Mercifully, India does not quite permit this kind of corporatisation of elections. The Law Commission’s 255th report, which was submitted to the government on March 13, recommends that candidates account for contributions from the date of notification of elections — rather than just from the date of nomination — to the date of declaration of results.
The report has also proposed that corporates contribute funds to political parties only through their annual general meetings. But why not a similar proposal for candidates? The real question is, how large do the contributions have to be for these clauses to kick in? Any amount? For parties and candidates, the “any amount” question is far from academic. Suppose 90 per cent of a political party’s funds have come from a few corporate conglomerates — they will have unwarranted financial control over the party. Take another scenario: the party works out that just 100 marginals could swing the elections. Corporate benefactors can influence the result by zooming in to supply funds for just these constituencies by generally funding the party, not the candidates. The answer to the money power problem is not transparency alone, but also limits and consequential action. True, Rule 90 of the Conduct of Election Rules, 1961, prescribes unrealistically low limits — let’s set that aside for now. The consequence for not providing the accounts of a constituency election is disqualification for three years. Is this also the case for crossing expenditure limits, prohibited for constituency elections under Section 77(3)?
But there are no restraints on general contributions to political parties other than disclosure (Section 29B-C). Today, India faces not just direct election goondaism, but also corporate takeover of elections at all levels. With the Law Commission rejecting state funding of elections, dealing with this should be a priority.
The second interesting issue brought out by the report is to do with inner-party democracy. When I argued George Fernandes’s case before the surly chief election commissioner, T.N. Seshan, he announced that inner-party democracy must be ensured. But with what result? In the Congress case (2002), the Supreme Court decided that the failure of a political party to act according to the principles of the Constitution, including socialism and secularism, would not entail the cancellation of its registration, unless its declaration were fraudulently amended to abjure the Constitution’s ideals or the party itself were declared unlawful. How do we move away from autocracy and ensure inner-party democracy when each party is required to have its own constitution? This issue has been looked into by the Law Commission (1990 and 2015), the Administrative Reforms Commission (2008) and in a draft bill (2011). The Election Commission’s guidelines on the issue are not adequate. In its report, the Law Commission has proposed that Section 29A of the Representation of the People Act be amended and that parties undertake to shun violence as well as caste, gender and religious discrimination. But how do you enforce this? The failure to comply with these formal declaratory requirements would entail a daily fine of Rs 25,000. And the failure to hold elections for 10 consecutive years would result in the cancellation of registration by the Election Commission. But this is silly. A party dictator may not hold elections for nine years and then hold them in the 10th year, and then again in the 20th and so on.
Third, the Law Commission has suggested that anti-defection cases be decided by the president or governor acting on the advice of the Election Commission. This is a doubtful proposal and would obviously require and result in the strengthening of the Election Commission. Further, the Law Commission is not in favour of proportional representation (which has created havoc in Nepal), compulsory voting or the right to reject and recall. But it does seek to limit the right to contest from two constituencies simultaneously — whether for the Upper or Lower House, assembly or by-election. This is generous. A Rajya Sabha member contesting a Lok Sabha election (as Arun Jaitley did) would have to resign first. Contesting two elections at the same time (as Narendra Modi recently did) would be wrong. According to the Law Commission, the rules should be: resign as a legislator, then contest, with no safety net of fighting two elections at the same time. The commission’s suggestions that independent candidates be eliminated only strengthens party autocracy.
Fourth, the Law Commission proposals concerning the media, including treating paid news as advertisement and requiring transparency, are unexceptionable. But the suggestion that government-sponsored advertisements cease during as well as six months before elections needs tweaking. Normal government advertisements should continue because many newspapers would collapse if this were not the case.
The issue of electoral reform has produced the Goswami (1990), Vohra (1993), Gupta (1998), Law Commission (1999), National Commission to Review the Working of the Constitution (2001), Election Commission (2004) and Administrative Reforms Commission (2008) reports. They are an inconsistent lot. The present report of the Law Commission catalogues issues, travels to other countries and perfunctorily reviews the past. It is written in haste and half-baked.
The writer is a senior advocate at the Supreme Court