The law Commission of India today
submitted its Report No. 255 on “Electoral Reforms” to the Union Law and
Justice Ministry. Informing this to the Media persons here in New Delhi Justice
Shri A. P. Shah, Chairman Law Commission of India said the 201 page report has
come after due consideration and deliberations with the stake holders including
of register national and state political party and extensive and in-depth
analysis of various issues by the commission. He said this report is sequel of
the request of Ministry of Law and Justice made in January 2013 to the
Twentieth Law Commission of India to consider the issue of ‘Electoral Reforms’
in its entirety and suggest comprehensive measures for changes in the law.
While working on the subject, the Supreme Court of India, in the matter of
‘Public Interest Foundation & Others V. Union of India & Anr- Writ
Petition (Civil) No. 536 of 2011, directed the Law Commission of India to make
its suggestions on two specific issues, viz., (i) ‘curbing criminalization of politics
and needed law reforms’; and (ii) ‘impact and consequences of candidates filing
false affidavits and needed law reforms to check such practice’. In the light
of this judgment, the Commission worked specifically on these two areas and,
after series of discussions, followed by a National Consultation held on 1st
February 2014, submitted its 244th Report titled ‘Electoral
Disqualification’ on 24th February 2014 to the Government of India.
Justice Shah further said that
after the submission of Report No. 244, the commission circulated another
questionnaire to all registered national and state political parties seeking
their views on ten points, the response received was not very encouraging,
though. However, the Commission undertook an extensive study to suggest
electoral reforms, held various rounds of discussions with the stakeholders and
analysed in-depth the issues involved. After detailed deliberations, the
Commission has come up with its recommendations which are put in the form its
final Repot, Repot No.255, titled ‘Electoral Reforms’, which been submitted
for for consideration by the Government.
Following is the summery of the
report on various issues discussed in the report. The amendments to the
Constitution, RPA, Election Rules and any other laws have been made in track
changes in the Annexure appended to this Report. The detailed report is
available on the website of the commission:
1.Election
Finance
The Law Commission has
proposed wide ranging reforms on the issue of candidate expenditure limits;
disclosure obligations of individual candidates and political parties; and
penalties imposable on political parties; as well as examining the issue of
state funding of elections.
a. Section
77 of the RPA, regulating the election expenses incurred or
authorized by candidates or their election agents, currently extends from the
date of nomination to the date of declaration of results. This period should be
extended by amending section 77(1) to apply from the date of notification of
the elections to the date of declaration of results. [Para 2.31(a)1]
b. Section
182(1) of the Companies Act, 2013 should be amended to require the passing of
the resolution authorising the contribution from the company’s funds to a
political party at the company’s Annual General Meeting (AGM) instead of its
Board of Directors.
[Para
2.31(a)2]
c. The
existing disclosure obligations of individual candidates are limited to
maintaining an account of electoral expenses under sections 77 and 78, RPA.
This is sought to be amended by inserting a new section 77A
to require candidates or their election agents to maintain an account and
disclose the particulars (names, addresses and PAN card numbers of donors and
amounts contributed) of
i.
any
individual contribution received by them from any person or company, not being
a Government company and
ii.
any
contribution by the political party from the date of notification of elections,
which have to be made by the party by a crossed
account payee cheque or draft or bank transfer.
[Para
2.31(b)3]
d. Section
78 should be amended in light of the proposed amendment to section 77A
above, and the reference to more than one returned candidate should be removed.
[Para
2.31(b)4]
e. A new
section 78A should be inserted requiring the district election officer to make
publicly available, on his website or on file for public inspection on payment
of prescribed fee, the expenditure reports submitted by every contesting
candidate under section 78.
[Para
2.31(b)5]
f. Political
parties should be required to maintain and submit annual accounts, duly
audited by a qualified and practicing chartered accountant from
a panel of such accountants maintained for the purpose by the Comptroller and
Auditor General, to the ECI every financial year. These accounts
will fully and clearly disclose all the amounts received by the party
and the expenditure incurred by it. The ECI will then upload these accounts
online or keep them on file for public inspection on payment of fee.
[Para
2.31(b)6]
g. Disclosure
provisions governing political parties has been substantially recast, with the
existing 29C being deleted and replaced by a new section 29D requiring all
parties to:
i.
mandatorily
disclose all contributions in excess of Rs. 20,000;
ii.
include
aggregate contributions from a single donor amounting to Rs. 20,000 within its
scope;
iii.
disclose
the names, addresses and PAN card numbers (if applicable) of these donors along
with the amount of each donation above Rs. 20,000;
iv.
disclose
such particulars even for contributions less than Rs. 20,000 if such contributions
exceed Rs. 20 crore or 20 % of the party’s total contributions, whichever is
less. Consequential amendments will need to be made to the Election Rules and
the IT Act.
[Para
2.31(b)7]
h. A new
section 29E to be inserted in the RPA requiring the ECI to make
publicly available, on its website or on file for public inspection on payment
of prescribed fee, all the contribution reports submitted by all political
parties under section 29D.
[Para
2.31(b)8]
i.
ECI’s
transparency guidelines prescribing, first, a “statement of election
expenditure” to be filed with it, by every party contesting an election within
75 days of the Assembly elections and 90 days of the General elections
election; and second, expenses incurred by political parties to be
usually in the form of cheque or draft, unless banking facilities are not
easily available or the payment is made to a party functionary in lieu of
salary or reimbursement, should be given a statutory basis vide a newly
inserted section 29F.
[Para
2.31(b)9]
j.
The
disqualification of a candidate for a failure to lodge an account of election
expenses and contributions reports under section 77 and proposed 77A should be
extended from the current three period up to a five year period, so that a
defaulting candidate may be ineligible to contest at least the next elections.
[Para
2.31(c)10]
k. Express
penalties, apart from losing tax benefits, should be imposed on political
parties vide section 29G for the non-compliance with the disclosure
provisions of proposed section 29D of the RPA. This should include a daily fine
of Rs. 25,000 for each day of non-compliance, with the possibility of
de-registration if the default continues beyond 90 days. Further, ECI may levy
a fine of up to Rs. 50 lakhs if its finds any particulars in the party’s
statements as having been falsified.
[Para
2.31(c)11]
l.
A
new section 29H should be inserting penalising parties that contravene the
stipulations of section 29B, RPA and section 182 of the Companies Act in terms
of accepting contributions from impermissible donors, by levying a penalty of
five times the amount so accepted.
[Para
2.31(c)12]
m. A new
Part IVB, section 29I should be inserted to the RPA dealing with the
“Regulation of Electoral Trusts”, and detailing provisions pertaining to their
entitlement to accept contributions, disclosure obligations, and penal
provisions (apart from losing income tax exemptions) so that the RPA can be
amended in line with the changes already made to the IT Act and the ECI
guidelines on “Electoral Trust Companies” of 2013.
[Para
2.31(c)13]
n. The
Commission does not consider a system of complete state funding of
elections or matching grants to be feasible, given the current conditions of
the country. Instead, it supports the existing system of indirect in-kind
subsidies, with section 78B of the RPA being possibly amended in the future to
expand these subsidies.
[Para
2.31(d)1-4]
2.Regulation of
Political Parties and Inner Party Democracy
a. The
Commission recommends amending sub-section (5) of section 29A of the RPA requiring
that the accompanying memorandum/rules/ regulations with the
party’s application under sub-section (1). This accompanying document, by
whatever name it is called, should also contain a specific provision stating
that the party would shun violence for political
gains, and would avoid discrimination or distinction based on race, caste,
creed, language or place of residence.
[Para
3.17.4, 1]
b. A new
Chapter IVC should be inserted dealing with the “Regulation of Political
Parties” and incorporating the Commission’s previous recommendations in its 170th
Report with certain modifications. Thus, sections 29J to 29Q will deal with
internal democracy, party Constitutions, party organisation, internal
elections, candidate selection, voting procedures, and the ECI’s power to
de-register a party in certain cases of non-compliance.
c. Another
section, section 29R should be inserted in the same Part, providing for the
de-registration of a political party for failure to contest Parliamentary or
State elections for ten consecutive years.
[Para
3.17.4, 2]
3.Proportional
Representation
It is clear that both
the electoral systems come with their own merits and demerits – proportional
representation theoretically being more representative, while the FPTP system
being more stable It is also clear, from the experience of other countries that
any changes in India’s electoral system will have to follow a hybrid pattern
combining elements of both direct and indirect elections. This, in turn will
necessitate an increase in the number of seats in the Lok Sabha, which raises
concerns regarding its effective functioning.
[Para
4.19.1]
As a result, the Law
Commission recommends that the findings of the 170th Law Commission
Report on the proportional system may be examined by the Government to
determine whether its proposals can be made workable in India at present.
[Para
4.19.2]
4.Anti
Defection Law in India
The
Law Commission recommends a suitable amendment to the Tenth Schedule of the
Constitution, which shall have the effect of vesting the power to decide on
questions of disqualification on the ground of defection with the President or
the Governor, as the case may be, (instead of the Speaker or the Chairman), who
shall act on the advice of the ECI. This would help preserve the integrity of
the Speaker’s office.
[Para
5.22]
5.Strengthening
the office of the Election Commission of India
The ECI should be
strengthened by first, giving equal constitutional protection to all
members of the Commission in matters of removability; second, making the
appointment process of the Election Commissioners and the CEC consultative; and
third, creating a permanent, independent Secretariat for the ECI.
a. Article
324(5) of the Constitution should be amended to equate the removal procedures
of the two Election Commissioners with that of the Chief Election Commissioner.
Thus, equal constitutional protection should be given to all members of the ECI
in matters of removability from office.
[Para
6.9]
b. The
appointment of all the Election Commissioners, including the CEC, should be
made by the President in consultation with a three-member collegium or
selection committee, consisting of the Prime Minister; the Leader of the
Opposition of the Lok Sabha (or the leader of the largest opposition party in
the Lok Sabha in terms of numerical strength); and the Chief Justice of India.
Elevation of an Election Commissioner should be on the basis of seniority,
unless the three member collegium/committee, for reasons to be recorded in
writing, finds such Commissioner unfit. Amendments should be made in the
Election Commission (Conditions of Service of Election Commissioners and
Transaction of Business) Act, 1991 to reflect this.
[Para
6.12.5]
c. A new
sub-clause (2A) should be added to Article 324 of the Constitution to provide
for a separate independent and permanent Secretariat for the ECI along the
lines of the Lok Sabha/Rajya Sabha Secretariats under Article 98 of the
Constitution. This will further improve the independence of the ECI.
[Para
6.19 & 6.20]
6.Paid
News and Political Advertisements
The issue
of paid news and political advertisements should be regulated in the RPA in the
following manner:
a. The
definitions of “paying for news”, “receiving payment for news” and
“political advertisement” should be inserted in section 2 of the RPA.
[Para
7.48.4 & 7.48.5]
b. The
consequences attached to those indulging in such practices should be delineated
by creating
i.
an
electoral offence of “paying for news” / “receiving payment for news” in a
newly inserted section 127B of the RPA - Not only will the incorporation of
this electoral offence make paying for news / receiving payment for news penal,
the stringent punishment will ensure that if the candidate themselves are found
guilty, then, in all likelihood, they will be disqualified pursuant to section
8(3) of the RPA;
[Para
7.49.1]
ii.
a
corrupt practice of paying for news under newly inserted sub-clause (iii) in
section 123(2)(a) of the RPA.
[Para
7.50]
c. In
order to curb the practice of disguised political advertisement, disclosure
provisions should be made mandatory for all forms of media. The purpose of
disclosure is two fold; first, to help the public identify the nature of
the content (paid content or editorial content); and second, to keep the
track of transactions between the candidates and the media. Thus, a new section
127C should be inserted in the RPA to deal with the non-disclosure of interests
in political advertising. The ECI can regulate the specifics of the disclosure
required.
[Para
7.51.2]
7.Opinion
Polls
Section
126(1)(b) of the RPA, which prohibits the display of any election matter
forty-eight hours before polling begins, is limited to display by means of
“cinematograph, television or other similar apparatus”; and does not deal with
the independence and robustness of the opinion polls themselves. Thus:
a. The
ban on opinion polls in the electronic media does not extend to the print media
and section 126(1)(b) should be amended to prevent the publication, publicity,
or dissemination of any election matter by print or electronic media.
[Para
8.27.1]
b. Section
126(1)(b) should also provide for cognizance being taken only on the basis of a
complaint made by order of, or under authority from, the ECI or the Chief
Electoral Officer of the State.
[Para
8.27.2]
c. The
regulation of opinion polls is necessary to ensure that first, the
credentials of the organisations conducting the poll is made known to the
public; second, the public has a chance to assess the validity of the
methods used in conducting the opinion polls; and third, the public is
made adequately aware that opinion polls are in the nature of forecasts or
predictions, and as such are liable to error. Consequently, new sections 126C
and 126D should be inserted in the RPA.
[Para
8.28.3]
Compulsory
Voting
The Law Commission
does not recommend the introduction of compulsory voting in India and in fact,
believes it to be highly undesirable for a variety of reasons described above
such as being undemocratic, illegitimate, expensive, unable to improve quality
political participation and awareness, and difficult to implement.
[Para
9.24]
8. Election
Petitions
Wide-ranging reforms
have been suggested to Part VI of the RPA dealing with “disputes regarding
elections” and the proposed amendments have been drafted in the annexure
appended to this Report. These include, inter alia:
a. The
introduction of one or more “election benches” in each High Court, designated
so by the Chief Justice of the particular High Court, exercising jurisdiction
over all election disputes under the RPA. A single Judge
shall ordinarily exercise such jurisdiction, although the Chief Justice can
assign more judges, if they so desire.
b. The
procedure for presenting election petitions should be made simpler and less
formalistic by:
i.
requiring
election petitions to be ordinarily filed in the Principal seat of the relevant
High Court, although this can be shifted to another bench or place in the
interest of justice;
ii.
removing
requirement of impleading those candidates who have lost their security deposit
as respondents to an election petition, if the petitioner makes an additional
declaration that he himself or any candidate has been duly elected; and
iii.
removing
non-compliance with section 117’s stipulation of security for costs as a ground
for summarily dismissal under section 86.
c.
The
trial of election petitions by the election bench of the High Court should be
expedited by providing for
i.
daily
trial;
ii.
minimising
adjournments, with the possibility of imposing exemplary costs;
iii.
a
time limit of 45 days to file a written statement, with a further extension of
15 days, after which such right shall be forfeited;
d. The
trial should be concluded within six months from the date of presentation of
the petition; otherwise, a report should be sent to the Chief Justice of the
High Court explaining the reasons for the delay.
e. The
election bench of the High Court should pass its order under section 98 within
ninety days from the conclusion of arguments.
f. A new
provision, section 98A, should be inserted pertaining to the collection of data
(such as the number
of election petitions filed and pending, the status of each petition, the names
of the parties, and designated election bench) by the High Court and uploading
it on its website. The ECI has been mandated to prepare an annual report after
compiling such data from all the High Courts across the country.
g. Appeals
to the Supreme Court should now only be on the basis of a question of law,
instead of the earlier provision permitting questions of fact or law as
grounds for appeal. This appeal should be filed within 30 days of the High
Court’s order, although an extension of a maximum of 30 more days can be
granted, with nothing thereafter. The Supreme Court should try and conclude the
appeal within three months from the date of appeal.
h. The
security for costs has been increased from the existing Rs. 2000 to Rs. 10,000,
although section 117 has been amended to empower the election bench of the High
Court to grant an extension of time, as considered reasonable, to deposit this new
security amount.
[Para
10.37]
9.NOTA
and the Right to Reject
The
Law Commission currently rejects the extension of the NOTA principle to
introduce a right to reject the candidate and invalidate the election in cases
where a majority of the votes have been polled in favour of the NOTA option.
This is premised on the fact that, first, the underlying premise of the
Supreme Court’s decision in NOTA was the importance of safeguarding the
right to secrecy, and this secrecy rationale does not pre-empt the right to
reject. Second, good governance, the motivating factor behind the right
to reject, can be successfully achieved by bringing about changes in political
horizontal accountability, inner party democracy, and decriminalisation.
However, the issue might be reconsidered again in the future.
[Para
11.15]
10. The
Right to Recall
The Law
Commission is not in favour of introducing the right to recall in any form
because it can lead to an excess of democracy, undermines the independence of
the elected candidates, ignores minority interests, increases instability and
chaos, increases chances of misuse and abuse, is difficult and expensive to
implement in practice, especially given that India follows the first past the
post system.
[Para
12.20]
11. Totaliser for Counting
of Votes
The Commission
reiterates and endorses the ECI’s suggestion for introducing a totaliser for
the counting of votes recorded in electronic voting machines to prevent the
harassment of voters in areas where voting trends in each polling station can
be determined. Prior to the introduction of EVMs, ballot papers could be mixed
under Rule 59A of the Election Rules, although this was not permitted for EVMs.
Using a totaliser would increase the secrecy of votes during counting, thus
preventing the disclosure of voting patterns and countering fears of
intimidation and victimisation.
Thus, similar to the
existing Rule 59A, the Commission proposes to amend Rule 66A to empower the ECI
to decide when, and in which constituency and polling booths, to employ a
totaliser, after taking into consideration various factors and the overall
context of the elections.
[Para
13.7]
12.Restriction
on Government Sponsored Advertisements
The Commission
recommends regulating and restricting government sponsored advertisements six
months prior to the date of expiry of the House/Assembly to maintain the purity
of elections; prevent the use of public money for partisan interests of, inter
alia, highlighting the government’s achievements; and ensure that the
ruling party or candidate does not get an undue advantage over another in the
spirit of free and fair elections.
This can be achieved
by inserting a new Chapter VIIB in Part V of the RPA prohibiting State/Central
government sponsored advertisements in the print or electronic media or by way
of banners and hoarders, six months prior to date of expiry of the term of the
Lok Sabha/Vidhan Sabha. However, an exception has been carved out for
advertisements highlighting the government’s poverty alleviation programmes or any
health related schemes
[Para
14.6]
13.Restriction
on the Number of Seats from which a Candidate May Contest
The
Nomination of Candidates
from only one constituency.hcih e determinede has been
used,--High Courts across the country.rome Con Commission recommends an
amendment of section 33(7) of the RPA, which permits a candidate to contest any
election (parliamentary, assembly, biennial council, or bye-elections) from up
to two constituencies. In view of the expenditure of time and effort; election
fatigue; and the harassment caused to the voters, section 33(7) should be
amended to permit candidates to stand from only one constituency.
[Para
15.4]
14.Independent
Candidates
The Law
Commission recommends that independent candidates be disbarred from contesting
elections because the current regime allows a proliferation of independents,
who are mostly dummy/non-serious candidates or those who stand (with the same
name) only to increase the voters’ confusion. Thus, sections 4 and 5 of the RPA
should be amended to provide for only political parties registered with the ECI
under section 11(4) to contest Lok Sabha or Vidhan Sabha elections.
[Para
16.16&16.17]
15. Preparation
and Use of Common Electoral Rolls
The Law
Commission endorses the ECI’s suggestions regarding the introduction of common
electoral rolls for Parliamentary, Assembly and local body elections. However,
given that introducing common electoral rolls will require an amendment in the
State laws pertaining to the conduct of local body elections, the Central
Government should write to the various States in this regard. We hope that the
States will consider amending their laws based on the suggestions of the ECI
and the Law Commission.
[Para
17.6]
*********
ST/rs