Electoral Reforms- Part I

Simultaneous Elections, Electoral Bonds, Proxy Voting, State Funding of Elections

Electoral Reforms- Part I
Electoral Reforms in India

The encyclopedia Britannica defines elections as a formal process of selecting a person or accepting or rejecting a political proposition by voting. Some would argue that elections are an opportunity for voters to hold the elected officials accountable. However it is more than that, it is a fundamental principle that every person in the society has an equal claim to the public goods. It is equivalent of saying every person of a society has an equal say in its public wealth as well as governance. A public transport is public because the ‘transport’ is owned by all of us in equal measures. This means both rich and poor have an equal share in the public wealth. Elections are merely ways to choose a public representative to take care of this public wealth that belongs to all of us equally.

It is here how the chosen representative can uphold the democracy by efficiently and competently taking care of the public goods and make sure that it is available to each one in the society. It is a principle of trusteeship, where elected representatives are trustees on behalf of the people who have chosen them and it is the primary duty of the trustee to take care of what they are trustees of.

Once we have learnt the relationship between people, elected representatives and public goods and the role electoral process plays in it, it is easy to understand that to keep this relationship healthy and fruitful ‘free and fair’ elections are a must. Free and fair elections connotes to the fact that no one is in bondage to another under the electoral process. While exercising the right to vote one is not under undue influence of political parties, religion, race, caste, creed, sex, language, region and also corrupt practices. There are a few conditions that have evolved as pre-requisites to ensure the purity of elections such as

  1. To create and maintain an atmosphere where the electorate can choose their representative freely without pressure or undue influence there should be a set of election laws. Such laws should protect the electorate from any nefarious activity indulged in by the candidate to influence the votes. The elections laws should also protect those who are willing to contest the elections and all civil liberties should be extended to him for campaigning.
  2. The elections laws should contain the principle of universal suffrage, principle of one man one vote, fair procedure for casting vote and declaration of election results.
  3. The conduct of elections must be assigned to an independent authority that is free from external pressure. The conduct of elections should be left unhindered in the hands of this authority.
  4. The supervision of disputed elections should be assigned to a judicial authority which can determine if there has been a valid election on the basis of election laws. Election disputes must be resolved expeditiously in conformity with the procedures laid down by law.
  5. There should be cooperation between citizenry and government officials. Government officials must not exercise power unless it is established by law and the citizens should obey the law.

In India the election laws are governed by the Constitution of India (CoI). Articles 324 to 329 of Part XV of the CoI contain provisions for the electoral system of the country. Article 324 provides for an independent Election Commission of India (ECI) to ensure free and fair elections. Article 324 ensures that the superintendence, direction and control of election to be vested in the ECI. It says that the ECI shall consist of a Chief Election Commissioner (CEC) and such other numbers of election commissioners as the president may determine from time to time. Also, when any other election commissioner is appointed the CEC acts as the chairman of the EC. Article 324 also provides for regional commissioners to be appointed by President after consultation with the ECI to assist the ECI. The conditions of service and tenure of office of the election commissioners and regional commissioner is determined by the CEC can only be removed by in the same manner and ground like a judge of Supreme Court. Other election commissioners and regional commissioners can be removed only on the recommendations of the CEC. This particular article provides for the independent authority that has been mentioned in the pre-requisites of the free and fair elections.

Article 325 provides that there should be one general electoral roll for every territorial constituency and no person shall be eligible for any special electoral roll on religion, race, caste, creed or sex. Article 326 provides that elections to the Lok Sabha and state legislative assemblies to be held on the basis of adult suffrage. The CoI provides the Parliament by Article 327 to make provisions with respect to elections to either Lok Sabha or Rajya Sabha or to the legislative assemblies or legislative councils in the states including preparation of electoral rolls, delimitation of constituencies and any other matter for securing due constitution of such houses or houses. The CoI also provides such power to the state legislature with respect to elections but only on subjects that have not been looked upon by the Parliament. In this respect the Parliament has passed the Representation of Peoples Act 1950 and Representation of People Act 1951 (RPA 1951) and passed the Delimitation Act from time to time for demarcation of constituencies.

Article 329 bars the interference of courts in electoral matters. The validity of any law relating to the delimitation of constituencies or allotment of seats to such constituencies made under Article 327 and 328 shall not be called into question in any court. Further no election to Lok Sabha or legislative assemblies or legislative councils shall be called into question except by an election petition and in such manner as may be provided for under any law made by such the appropriate legislature.

The CoI only lays the principle of allocation of seats in Parliament and legislative assemblies (article 81 and 170 respectively) and the principle to be followed for allocation of seats to Lok Sabha and legislative assemblies. It has left the actual allocation of sears to be provided by law. Therefore Representation of Peoples Act 1950 (RPA 1950) was passed. The RPA 1950 provides for the allocation of seats and delimitation of constituencies for the purpose of election of Lok Sabha, state legislature, qualification of voters, preparation of electoral rolls and such other matters.

However, RPA 1950 did not cover all the provisions relating to elections. The provisions for actual conduct of elections to Parliament or state legislature, qualification and disqualification for the membership of these houses etc. were left out. Hence, RPA 1951 was enacted. The RPA 1951 contains provisions relating to

  • Qualification and disqualification of membership to Parliament and state legislature
  • Notification of general election
  • Administrative machinery for the conduct of elections
  • Registration of political parties
  • Free supply of certain materials to candidates of recognized political parties
  • Disputes regarding elections
  • Corrupt practices and electoral offences
  • Disqualification which covers the powers of ECI in connection with inquiries as to disqualification of members
  • Bye-elections

Despite the high standards set by the CoI and statutory laws, still a lot of distance has to be covered to ensure free and fair elections in the country. The increasing and illegitimate role of money, use of muscle power, rise of paid news and role of social media in influencing voters and most importantly the erosion of character and value system of voters has tainted and corrupted the whole election process. Reforms have been taken since the 61st Constitutional Amendment Act 1989 but still much needs to be done. Over the years many committees and commissions have suggested numerous reform measures that should be taken to make elections more democratic in nature. In the recent years the reforms related to simultaneous elections, electoral bonds, proxy votes, paid news and state funding of elections have become the most prominent.

Simultaneous elections

Since the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice Came out with Its 79th report in 2015 and suggested simultaneous elections, the idea has captured the imagination and attention of the regular taxpaying citizens mostly because Prime Minister Modi has campaigned hard for the same. The first time when simultaneous elections were mentioned in Indian polity would be in 1983 when ECI recommended holding synchronized elections for both Lok Sabha and legislative assemblies. The Law Commission of India (LCI) in its 170th report on “Reform of Electoral Laws” (1999) recommended simultaneous elections. In 2017 NITI Aayog prepared a working paper titled ‘Analysis of simultaneous elections: the What, Why and How?’ Most recently in 2018 the LCI published a draft report on simultaneous elections.

By the basic definition, simultaneous elections would mean elections of all the 3 tiers of the government in India- Lok Sabha, legislative assemblies and local bodies taking place in a synchronized manner i.e. a voter casts his vote for all elections of government on the same day. However the 3rd tier is enormous in size and falls in the state list of the Seventh Schedule of the CoI. The elections of local bodies are directed and controlled by the respective state election commission. Hence it would be extremely tardy to synchronize elections schedule of the 3rd tier with that of the Lok Sabha and legislative assemblies.

During the election years of 1950-51, 1957, 1962, 1967 elections to the Lok Sabha and legislative assemblies were held simultaneously. However the subsequent years of 1968 and 1969 saw dissolution of some legislative assembles followed by dissolution of Lok Sabha in 1970 followed by general election of 1971. These events saw the disruption of the cycle of simultaneous elections which had worked fine if not smoothly for 2 decades since independence. The frequent use of Article 356 also contributed for the disruptions. Now it has been clearly understood that one part of the country is witnessing an election in any given year.

Elections are massive affairs and frequent elections incur massive expenditure. In addition to the government expenditure, contesting candidates and political parties also incur huge election expenditure. For conducting election to the Lok Sabha the expenditure is borne by the Government of India (GoI) and for legislative assembly by the concerned state. When elections for Lok Sabha and legislative assemblies are held simultaneously the cost is shared in the ratio of 50:50. According to the data provided by ECI the expenditure incurred is related to

  • Setting of polling station and arrangements at the polling station/counting centres
  • Payment of TA/DA to electoral staff
  • Transport arrangement
  • Purchase of election material exclusively utilized for that particular election such as indelible ink, ammonia paper etc.
  • Miscellaneous expenditure

In 2014 the Andhra Pradesh election were held simultaneously with the general elections and the expenditure incurred was about Rs. 489 crore. In comparison, in Maharashtra the expenditure in Lok Sabha elections was about Rs. 487 crore and for legislative assembly it was around Rs. 461.86 crore. In Delhi the election expenditure for 2014 Lok Sabha election  and legislative assembly elections after 2014 was  about Rs. 34.5 crore and Rs. 98.76 crore respectively. In Haryana the election expenditure for 2014 Lok Sabha elections and legislative assembly elections after 2014 was about Rs. 28.9 crore and Rs. 33.72 crore respectively. The figure above shows the drainage of public money due to frequent elections. Segregated elections lead to outflow of public wealth and take away any opportunity to optimize.

Elections to the Lok Sabha and legislative assemblies are held using electronic voting machines (EVMs). Same EVMs are used for elections in various states. Simultaneous elections would need procurement of new EVMs which would in turn which would in turn require more polling material, polling staff and additional vehicles. However the LCI in its draft report cites that the demand for additional vehicles and personnel would be only marginally higher. In the 16th Lok Sabha elections, the ECI took service of 10 million polling officials for supervising approximately 9.3 lakh polling station of the country much of which were school staff, teaching professionals, central and state government officials and employees of public undertakings. In addition to this 1349 companies of Central Armed Police Forces (CAPF) were used along with state armed forces, homeguards etc. The role of security forces start much before the start of the election and ends after voting and counting is finished. Such a situation take a huge portion of country’s armed forces for election duty which could be otherwise be used for other internal security purposes. Teaching professionals and school staff would spend less time in election duty and not inhibit their primary duty if elections are synchronized. Same case stands true for the employees of central and state government and public undertakings who are assigned election duty.

The Model Code of Conduct (MCC) is a set of norms evolved with the consensus of political parties that lays down several do’s and dont’s that political parties, contesting candidates, parties in power have to strictly abide to during the process of elections. The MCC is enforced from the date of announcement of the electoral schedule by the ECI and is operational till the process of election is over. During general elections MCC is applicable throughout the country and during legislative assembly elections throughout the state. After MCC is imposed the government refrains from:

  • Announcing any financial grants in any forms
  • Laying the foundation stones etc. of new projects or scheme of any kind
  • Make provisions of construction of roads, provision of drinking water facilities etc.
  • Make any ad hoc appointments in government, public undertakings etc

The Parliamentary Standing Committee in its 79th report stated that the MCC puts on hold the entire development programmes in the poll bound state. It even effects the normal governance and frequent elections leads to policy paralysis.

Former CEC Dr. S.Y. Qureshi in a recent interview noted that elections accentuate casteism, communalism, corruption and crony capitalism. He opined that if the country is in continous election mode there is no respite from these evils and simultaneous elections is a way out. Frequent elections disrupt normal public life and adversely impact delivery of essential services. Moreover political rallies disrupt road traffic and leads to noise pollution. In this case Parliamentary Standing Committee held that simultaneous elections can be limited to a predetermined period of time.

Few questions that have been raise for the viability of simultaneous elections such as- how the elections to the Lok Sabha and legislative assemblies will be synchronized? What would happen is houses are pre-maturely dissolved? How bye-elections would be held if any? Would it have adverse affect on the voting behavior? Will it disrupt the accountability of politicians which frequent elections ensure? The last of these is not so much a question but an observation that frequent elections create jobs and boost economy at the ground level.

Before going into the how the elections would be synchronized lets understand a few provisions of the CoI. Article 83(2) provides for the tenure of the Lok Sabha to be for 5 years from the date of first sitting unless pre-maturely dissolved. Further Article 83(2) also provides that when proclamation of emergency is underway the term of Lok Sabha can be extended for a period of 1 year at a time by the Parliament by law and not extend beyond 6 months in any case after proclamation has ceased to operate. Similarly Article 172(1) provides for 5years term for legislative assemblies from the day of first sitting.  These articles clearly indicate that the tenure of the houses cannot be extended beyond 5 years except in case of emergency but can be prematurely curtailed.

Article 85(2) of the CoI provides the President with the power to dissolve the Lok Sabha. Similarly Article 174(2) (b) provides power to the governors to dissolve the respective legislative assembly. In addition to the above Article 356 can prematurely dissolve the legislative assemblies. These articles imply that the fall of an elected government cannot be predicted.

In the current electoral cycle there are 5-7 elections every year. And therefore it would be impossible to synchronize state and Lok Sabha elections without one time extension or curtailing existing tenure of most houses. Hence there needs to be a onetime adjustment to hold simultaneous elections. In this regard the Parliamentary Standing Committee in its 79th report recommended a two-phase approach. The committee envisaged holding of elections of some legislative assemblies at the midterm of Lok Sabha and remaining at the end of tenure of Lok Sabha. Building upon this idea the NITI Aayog in its working paper suggested that the 1st phase to be in sync with Lok Sabha election of 2019 and the 2nd phase to be midway in the term of Lok Sabha i.e. 30 months later after the 1st phase around October-November 2021. Thereafter it envisaged conducting elections after every 2.5 years until the entire electoral cycles of Lok Sabha and legislative assemblies are synchronized.

However the above process can only help start the process of simultaneous election but cannot sustain it because CoI does not fix the term of Lok Sabha and legislative assemblies. What would happen if there is a coalition in the house and it loses confidence in the house? In order to avoid premature dissolution it has been recommended that any ‘no confidence’ motion should be followed with a ‘confidence’ motion in favour of a government to be headed by a named individual and voting for the two motions should be carried out together. If the dissolution cannot be avoided then for the remainder of the term of the Lok Sabha or legislative assemblies there could be provision for the President/Governor to carry out the administration of the country/state on the aid and advice of council of ministers appointed by him till the next house is constituted at the prescribed time. If the remainder of the term is long then elections can be conducted and the term of the house should be for the rest of the original term. Further for holding bye-elections there could be two windows of one and half months each in a particular year.

For the question of what effect would simultaneous election have on voting behavior or even would the national party benefit over the regional parties the LCI draft report becomes relevant. The LCI reported that in 2014 general elections the mood was heavily towards the current ruling party. But ECI data shows that the ruling party of Odisha increased its vote share from 37.23% in 2009 to 44.77% in 2014. Contrary to the general opinion, national parties are at a disadvantage to the regional parties because they have to mobilize their election machinery to contest all seas of the Lok Sabha as well as legislative assemblies. Voting share getting carried away would be a naïve opinion if regional parties address the issues of electorate effectively.

To the question of accountability it is important to point here that the democratic nature of Indian polity does not provide permanency to the legislature. Every politician needs to go back to her electorate for re-election ensures accountability. Judicial oversight and accountability of council of ministers to the legislature makes the whole question flimsy. Similarly, the notion that frequent elections boost Indian economy is tactless. Such economic boosts are temporary and its sustainability is questionable. Further, as soon as elections are over politicians set into recovering the election expenditure fuelling corrupting and parallel black economy.

Electoral bonds

The Union Budget 2017 dedicated a whole section to political funding and introduced a bond scheme to check illegal cash transactions. In January 2018 the GoI notified the Electoral Bond Scheme (EBS). The  former Finance Minister stated that the EBS would infuse ‘white money’ in the political system which would curb black money. Electoral bonds are bearer instruments in the form of promissory notes and interest free banking instruments whereby a citizen or corporate body is eligible to purchase the bond from a notified branch of State bank of India. The electoral bonds are available for 10 days in the months of January, April, July and October. A 30 day additional period is provided in an election year. The electoral bonds can be purchased for any value in the multiples of Rs. 1000, Rs. 1 lakh, Rs. 10 lakh and Rs. 1 crore. Electoral bonds are valid only for 15 days from the date of purchase during which they can be used to make donations to political parties.

The electoral bonds are aimed to make political funding transparent. The banks would be able to track the buyers through KYC details and ensure clean money comes into the system. However, not all political parties can receive electoral bonds. Only those political parties registered with the ECI which have secured not less than 1% votes polled in the most recent elections to Lok Sabha or legislative assembly are eligible to accept. The electoral bonds would then be encashed by the political parties only through a designated bank account with an authorized bank.

Proxy voting

 The central government in 2018 passed a bill in the Lok Sabha that amended the RPA 1950 and RPA 1951. The bill proposed to allow registered non-resident voters to use proxies on their behalf in elections.

Proxy voting was first introduced in 2003 for Lok Sabha and state elections in a limited scale. At present only a ‘classified service voter’ belonging to the armed forces or paramilitary forces is allowed to nominate a proxy to cast votes on her behalf, in her absence as long as the proxy is also a registered voter in the same constituency.

If the bill for proxy voting is passed, a common Indian citizen will be able to participate in Indian election in 3 ways- in person, by post and through a proxy. There are about 1 crore Indians settled abroad. With all the money they remit proxy voting would be a way to make them feel valued and counted. Also with proxy voting NRIs will be able to exercise their franchise without spending their hard earned foreign currency to come to India.

Paid news

The problem of ‘paid news’ is a widespread phenomenon. Paid news and its variant political advertising which is presented as news should be treated equally. The Press Council of India recommended that paid news should be made a corrupt practice. In a study conducted by the ECI during the assembly elections of 2011-2013, 1987 cases were found where notices were issued to the candidates for paid news. Of these 1987 cases, 1727 cases were confirmed by the District/State level committees appointed by the ECI for the purpose. Right to have accurate information is necessary for free and fair elections. Paid news negatively influences the voters to make an informed choice.

To make matters worse paid news involves use of money which is unaccounted and candidates who are involved in such malpractices underreport such expenditure. This undue influence of money affects the level playing field for candidates of dissimilar statures. The ECI has proposed an amendment to the RPA 1951 to prevent the ill effects of paid news. It has proposed to make ‘paid news’ an electoral offence under Chapter III Part VII of the RPA 1951 with minimum imprisonment of 2 years. Also LCI in its 255th report (2014) recommended that an election to be liable to be declared void by the High Court if it finds influence of paid news. For this purpose it recommended to make paying for news a ‘corrupt practice’ under section 123 of RPA 1951.

State funding of election

Ever since political funding through electoral bonds has started more than Rs. 1407 crore has flowed to the political parties. Until 2016 political funding was done through Electoral Trusts. The electoral bonds scheme removed the 7.5% cap on corporate funding provide by the Companies Act 2013. As per the available data the contribution from electoral trust for FY 2017-18 was INR 194 crore, whereas first tranche of bonds garnered INR 222 crore (March 2018). This clearly indicates that individual corporate who earlier used to make their contribution through Electoral Trusts in a limited manner now route the same through the new channel without any cap. The clearest proof of this is that nearly all bonds (99.9%) purchased are of high value denominations between INR 10 lakh and INR 1 crore, implying corporates are preferring bonds channels for political donations.

Further there is a complete lopsided flow of donation from the bond scheme. 95% of the donation has gone to the ruling party which undermines the principle of equality in political finance. It was forewarned by experts that the scheme would remove the level playing field in terms of political funding. To remove this skewed form of political funding, ‘state funding of elections’ is a potential solution. The state funding of elections was first recommended by a multiparty Parliamentary committee headed by Indrajit Gupta in 1998.  The committee made a strong case for state funding of because political parties play an important role in sustaining democracy. However it recommended that such funding should be confined to national and state parties and the candidates fielded by them.

The committee had recommended only partial funding because the economic situation of the country is not strong enough to sustain total funding.  The committee, suggested that political parties should be discouraged from seeking external funding to run affairs, carry out programmes and conduct election campaign. The committee laid emphasis on the need for insulation between political parties and private contributors. Such means would effectively restrict business houses and entrepreneurs to influence government decisions. In order to curb the election expenses of parties and candidates, the committee advised for reasonable restrictions on wall writings, the display of cutouts, hoardings, banners and posters, the number of vehicles used for election campaigns, and the time and venue of public meetings.

-To be Concluded-

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