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Law Commission targets money influence in elections, bats for greater transparency in donations and party accounts

PraptiPatelThe Law Commission of India has suggested sweeping reforms to India’s electoral system in its 255th report, which was submitted to the Union Ministry of Law and Justice on March 12, 2015. The report follows growing public dissatisfaction with the lack of transparency and accountability in India’s electoral system. It targets the influence of money in elections and bats for greater transparency in donations and party accounts. It has also dealt with the issues of “paid news”, independent candidates, the “none-of-the-above” vote and the right to reject, the use of totalisers for counting votes, and the reorganisation of the office of the Election Commission of India. Significant among the previous efforts to examine the challenges of conducting free and fair elections in India have been the 170th report of the Law Commission of India in 1999 and the 2004 report from the Election Commission of India.

Period of election finance regulation

Section 77 of the Representation of People Act, 1951 regulates the amount of money that can be spent by candidates or their agents. The report recommends an amendment to this provision so that the regulation applies for a longer period, that is, from the date of notification of elections to the date of declaration of results. Currently, this section only applied to money spent from the date of nomination to the date to declaration of the results.

More controls on private donations

Calling for stricter laws on donations by private entities to political parties, the report recommends that a company must necessarily pass a resolution at an annual general meeting to authorise a contribution to a political party, instead of simply consulting its Board of Directors, as is the rule currently.

Greater disclosure of donations by candidates

The existing rules on the subject merely require candidates to maintain an account of electoral expenses but the report recommends greater disclosure obligations, requiring candidates to not only maintain an account but also disclose the names, addresses, and PAN card numbers of donors and the amounts they have contributed. It also recommends provisions for the disqualification of a candidate for failing to lodge an account of election expenses and reports of contributions.

Greater disclosure of donations by parties

All parties must be required to disclose all contributions in excess of Rs. 20,000, including aggregate contributions from a single donor amounting to Rs. 20,000. Previously, the provision only required candidates to disclose contributions in excess of Rs. 20,000 without any rule on aggregate contributions, leading to multiple cheques of a smaller amount or cash transactions.

The Election Commission must also prescribe guidelines for a “statement of election expenditure” that should be filed by every party contesting an election within 75 days of the elections to the state assembly and 90 days of the general elections.

Image above is from Al Jazeera English's photostream on Flickr. CC BY-SA 2.0

Image above is from Al Jazeera English’s photostream on Flickr. CC BY-SA 2.0

Audit and public inspection of political party accounts

The report recommends that political parties must compulsorily maintain and submit annual accounts to the Election Commission. These accounts need to be duly audited by a chartered accountant chosen from a panel maintained by the Comptroller and Auditor General. The Election Commission must also be authorised to levy a fine of up to Rs. 50 lakhs if its finds that any particulars in the party’s statements have been falsified. This information must be available for public inspection as framework for such rules exists, currently.

Changes to anti-defection law

An amendment has been recommended to the Tenth Schedule of the Constitution of India by which the power to decide on questions of disqualification on the ground of defection will be with the President of India for the Parliament and the governors of the states for the legislative assemblies, instead of the current practice of decision-making by the Speaker or the Chairman.

Strengthen the Election Commission of India

Currently, the office of the Election Commission of India consists of Chief Election Commissioner (“CEC”) and two Election Commissioners and while the office of the CEC is granted the same level of constitutional protection as that of a judge of the Supreme Court, the removal of the Election Commissioners can be affected by the President. The Law Commission has recommended that all three members receive equal constitutional protection.

The issue of appointment of the CEC and the ECs was also discussed in the report, calling to make the process more consultative by having a statutory provision under which the President must consult the Prime Minister, the Chief Justice of India, and the Leader of Opposition in order to make these appointments. This is a step up from the current practice in which the President takes the decision by himself.

Lastly, the report also recommended the creation of a permanent, independent secretariat.

Paid news and political advertisements

Justice (Retd.) A.P. Shah is the Chairman of the Law Commission of India.

Justice (Retd.) A.P. Shah is the Chairman of the Law Commission of India.

Paid news and political advertisements, the report recommended, must receive recognition in the Representation of People Act. The terms “paying for news”, “receiving payment for news”, and “political advertisement” need to be defined and treated as electoral offences and strict punishment should be prescribed for them. All forms of media should also be required to make disclosures so that disguised political advertisement can be prevented.

Opinion polls

The Report has suggested recommendations to the Representation of Peoples Act to ensure that organisations releasing opinion polls possess the necessary credentials and to make the public aware that such polls are simply forecasts liable to error.

NOTA and the right to reject

The Law Commission is of the opinion that good governance can be achieved by bringing about changes in accountability, transparency, and decriminalisation, and without invalidating elections through the extension of the “none-of-the-above” vote to a right to reject a candidate.

The use of a totaliser for counting votes

The Law Commission has endorsed the Election Commission’s suggestion of introducing a totaliser for counting votes recorded in electronic voting machines. The main reason for this is that the current system of counting votes reveals voting patterns in each polling station, leaving the voters vulnerable to potential harassment and victimisation. If a totaliser is employed, it can connect to voting machines of up to 14 polling stations, which will go a long way in maintaining secrecy and preventing the disclosure of voting patterns.

The recommendation on restriction of government sponsored advertisements

The report has also recommended restrictions on government-sponsored advertisements six months prior to the date of the expiry of the legislature. This means that the party in power cannot use its position and influence as a means of advertising its achievements. An exception has been suggested for advertisements highlighting the government’s poverty alleviation and health-related schemes.

Restrict the number of seats from which a candidate can contest elections

Section 33(7) of the Representation of People Act permits a candidate to contest any election (parliamentary, assembly, biennial council, or by-elections) from up to two constituencies. The Law Commission has recommended an amendment to restrict candidates to one constituency.

Independent candidates

The Law Commission has also called for disallowing independent candidates from contesting elections since it is of the opinion that most of them are “dummy/non-serious candidates”, only serving to increase confusion among voters.

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Out of the courts and into the social process – the careers of Harish Narasappa and Amba Salelkar

AtreyeeMajumder_CraftingLawCareers

As a fresh law graduate, Harish Narassappa went to court to be handed a file numbered 1 of 1956. He thought to himself that it must have been a mistake – it must be 1 of 1996, but no, the number was right. Such was the extent of delays in the judicial process, he learnt. In this post, we meet two lawyers who picked up their first legal instincts inside courts – Harish Narasappa and Amba Salelkar – both having taken law degrees at NLSIU, the former in the mid-nineties, the latter in the mid-2000s. They remind us of Ramanathan’s sustained engagement with the question of law and poverty in diverse theatres, but these two lawyers built institutional edifices in furtherance of their queries about law’s role in the social process.

Having completed two stints of corporate practice, in London and in Mumbai, Narasappa returned to his hometown of Bangalore in 2005 and rented a space where he would begin an office. At this point, his vision was to do policy-related work. Two of his friends, Siddharth Raja and Roopa Doraswamy, also alumni of the National Law School of India University, had also quit their jobs, and asked if they could use the space. Over time, this space emerged as a corporate law firm. Their emphasis was on cultivating a space where young lawyers would be recruited and nurtured, where there was gender equity, humane working hours, and so on. The firm, eventually named Samvad Partners, grew over time to have a presence in four Indian cities, but Narasappa’s earlier desire to engage in policy matters had remained unfulfilled.

He started Daksh India in 2006. An idea initially, it took a couple of years to be registered. As a defining question of Daksh, Narasappa and his colleagues were interested in testing the efficacy of ‘democratic institutions’.

“…lot of people do things which makes change visible – volunteer time for a school, give some computers. I wanted to intervene at an institutional level…”

In sheer numbers, India carries an arrogant epithet of the largest democracy, but it is a democracy where the citizen’s capacity is numbed in the five-year period between elections. Further, he may have some form of accountability from elected representatives, but he doesn’t have the same from bureaucrats or other government agencies who may affect his well-being. Often, there is no recourse or clarificatory procedure available unless there has been a violation of a legal right, for which he can go to the courts. He does not know what the stance of his MP or MLA is on important issues like the Lokpal Bill, how he is going to argue in the house, and what his representative’s performance in the house has been like.

Harish Narasappa

Daksh and Narassapa designed a survey, which initially ran in Karnataka, but in the past two years, in other states such as Rajasthan and Bihar as well. The survey results were reflected in ‘scorecards’ for MLAs. Before the 2013 Karnataka assembly elections, leading Kannada newspapers carried their surveys. The representatives who had performed well on the scorecards were happy, those who hadn’t, claimed that the right criteria had not been taken into account. There was great support from people who said that they appreciated knowing these things as they went in to vote. Daksh’s intervention was to make the electoral process more effective by making crucial information available in the public domain, in local languages, for citizens to be able to exercise the franchise effectively. Daksh’s new intervention – the Rule of Law project – addresses the issue of judicial delay. With it, Narasappa attempts to strengthen the bridge between the two legs of his practice – in law and in public policy.

Amba Salelkar moved from a litigating career in a Mumbai criminal law firm to working in disability law and policy, when she quit her Mumbai criminal law career and moved to Chennai to join the Inclusive Planet Centre for Disability Law and Policy. Her work in this realm concerned large sections of the public who suffered physical disability themselves or were caregivers or associates of others who suffered disability, legislators, law implementers, non-legal NGOs, and disability professionals.

After the switch, she could no longer take for granted the literacy in legalese on the part of the large and diverse constituency who were now her colleagues and associates. The other thing she began to get used to was the slow and seemingly non-eventful nature of policy work, involving long hours of deskwork and academic research. Initially, Salelkar wasn’t particularly interested in disability issues. It was the conviction and energies of Rahul Cherian, another older alumnus of the National Law School of India University that drew her in. She started working with Cherian on a shadow report on mental health law in India, something that interested her as she had received treatment for mental health concerns in her own life.

Amba Salelkar

Amba Salelkar

“Rahul Cherian envisaged the Inclusive Planet Centre for Disability Law and Policy as an offshoot of sorts from discussions which were taking place on inclusiveplanet.com. The latter was a social networking website which was accessible for persons with disabilities, and it was through this that Rahul was exposed to the gap in policy and legislative interventions on behalf of persons with disabilities. Rahul was heavily involved in the “right to read” movement, which was seeking an exception to copyright law to allow for published material to be converted into accessible formats, and found that there was a lot more to be achieved when it came to advocacy under the United Nations Convention on the Rights of Persons with Disabilities….”

After Cherian’s death in February 2013, she came to lead the organisation. Apart from work in the legislative domain, trying to influence bureaucrats and legislators, Salelkar’s advocacy operations take her to teaching disability law to a series of concerned groups. Her objective is to breathe life into a legal imagination of a person with disability as a citizen, a professional, a worker, a consumer, and a service-receiver. She attempts to equip people like caregivers with tools from the Constitution (like fundamental rights) that can be used to their benefit. For instance, understanding the right to equality and the vast jurisprudence under Article 21 (right to life) and other constitutional law principles including the tradition of courts having used international conventions as the Supreme Court did in the Vishaka judgment, can be used for strategic litigation.

“Some people are fascinated by the law….Some people are jaded. They say the law promised us so much, especially with the 1995 Act, and it never delivered… My job is give them a realistic perspectives on the things that a legal avenue can offer. I don’t want to give people too much hope….My job is to tell them you may be right, but it doesn’t mean you will get a judgment in your favour….”

Salelkar sees her role as having live intersections with other rights-based movements – especially, queer and feminist movements, recognising the absence of support within the legal and judicial system for a category of person that does not match the standardised legal imagination of the ‘normal’ person. Disturbing the ‘normal’ is at the core of her long journey within and without the law.

We will continue talking about Narasappa and Salelkar as we look at their institutional energies in a larger ecosystem of policy reform.

(Atreyee Majumder is an anthropologist. She teaches at the School of Development, Azim Premji University.)

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NOTA will provide visible data about those we assumed were politically inert

ManuChaturvedi_NOTA_therightnottovoteDespite its incontestability, some fascinating prospects emerge for abstention. Firstly, by providing the abstaining electorate with a legitimate platform to cast such a vote, one would allow — even morally persuade — a huge number of potential electors who do not currently participate in the electoral process, to register their presence. This, one hopes, will have practical implications like reduction in bogus voting.

If that possibility seems a tad utopian, one can be forgiven for thinking that a “None of the Above” (“NOTA”) option will at least allow the electorate to reflect on its own motivations. It gives the electorate the ability to gauge, contrast, and project the quantum of disapproval as against approval.

Consider the context. The 2009 General Elections saw 4707 candidates contesting for 541 declared Lok Sabha seats. 768 of those candidates, that is, more than 16%, had criminal records. Eventually, 150 such candidates won from their respective constituencies and are now Parliamentarians, thus marking a conversion rate of around 20% for candidates with criminal records. 300 million voters stayed at home.

There is no way to know how many abstained out of genuine disapproval and how many stayed away due to other reasons. There is no way to know if tainted candidates would have secured as many votes from an electorate incentivised by a right to formally abstain. There is no way to know if abstentions provide any incentive at all. With no scope for empiricism, attempts to address these issues are confined to speculation. Now however, visible results will replace speculation. Interesting data will become available for the negligible expense of adding the NOTA option to EVMs. This in itself is quite an achievement.

The idea of incentives and electoral margins takes us to the related issue of NOTA as a vote katua. Vote katua, in the parlance of central Indian politics, refers to ostensibly insignificant candidates and political parties who do not enjoy enough popular support to garner a majority vote to win a seat; but are popular enough to prompt vote migrations from other candidates’ vote-banks into their own. In turn, these vote-migrations translate into percentage losses and corresponding gains for all candidates in the fray for election, significantly impacting the outcome.

2009GeneralElections_CandidatesWIthCriminalRecords.jpgUndecided voters aside, whether some or all candidates lose a portion of votes to the vote katua or are able to insulate their votebank from its influence depends upon the vote katua’s ability to incentivise voters to make the switch. Astute candidates usually counter such persuasions by tailoring their candidacy suitably through measures such as incorporating the vote katua’s agenda to blur the distinction between them.

Traditionally of course, vote katuas come in all shapes and sizes. Most are not averse to partisanship and political opportunism; they too indulge in gimmickry and fantastic rhetoric while prioritising short-term electoral gain. The resultant tweaks that they effect in the political discourse therefore, can be as banal and trifling as any.

But the “NOTA” candidacy is a unique vote katua paradigm precisely because it is incontestable and politically inert. It is not swayed by vote-bank sentiments and its appeal does not lie in making arresting promises or meeting an elector’s expectations. Conversely, it lies in the perceived inability of all other candidates (including the “lesser evil”) to honour the expectations of an elector whose faith has all but eroded. In other words, it serves as a reservoir of disapproval or distrust of all candidates. Every vote it garners is evidence of an elector who is not as much disenchanted by the democratic process as she is by its leading agents.

IndelibleInk_IndianvoterSeen in this light, political parties will find it a relatively novel, if not tougher, task to reclaim votes deposited under the NOTA candidacy. It will require political innovation that transcends the usual politics practised on fractured vote-banks by most parties, partly in the shared hope that attention will be deflected from pertinent issues of governance, and that electoral expectations will gradually decline amidst a barrage of illusory exchanges and carpet-bagging. Parrying the NOTA threat, one feels, will require greater attention to satisfying the abstaining elector’s expectations — whatever they might be.

Of course, political deference to electoral margins notwithstanding, there is no gainsaying that some political parties might still abandon the inconvenient pursuit of an abstaining electorate and fail to view NOTA electors as a reclaimable vote bank. Equally, there is nothing to stop our politicians and electors from drowning the voice of the abstentious in the obscure music that accompanies their politics. Others might rightly argue that I am waxing lyrical about an incontestable NOTA candidacy that comes without the electoral incentives that are necessary to attract voters. Still more adept analysts will suggest that the Supreme Court stopped well short or trudged too far down the measured path of judicial engagement.

To conclude however, broadening the spectrum of electoral expressions to allow formal abstentions is significant even if it simply helps consolidate an incontestable position. This is so because formalising abstentions makes the politics of those (few?) who have been assumed up until now to be politically inert, somewhat visible, collectivised, and amenable to new interpretations. Leaving comparatives aside, the fact that collating this data entails almost no additional expense significantly weakens any argument patently against its inclusion. All in all, the Supreme Court has acknowledged the desire of democratic actors to remain perceptibly relevant in their electoral capacity and give it some form.

(Manu Chaturvedi (manuchaturvedi@gmail.com) practices law at the Supreme Court of India.)

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NOTA — Negative or neutral?

ManuChaturvedi_NOTA_therightnottovoteThroughout its verdict in People’s Union for Civil Liberties v. Union of India, the Supreme Court’s sporadic and interchangeable use of the terms “negative vote” and “neutral vote” to describe the electoral right not to vote, muddied the status of the “None of the Above” (“NOTA”) candidacy.

After all, if there is an electoral right to cast a “negative” vote, a contestable NOTA candidacy would naturally follow. This means that in constituencies where the NOTA candidacy garners a majority vote, all candidates would stand rejected and a re-election would be necessary. On the other hand, if the right is “limited” to a “neutral” vote, the NOTA candidacy would just be a reservoir of abstentions that will not affect the election result.

To add to the interpreter’s maladies, the judgment concludes with an inspiring yet mystifying observation — “…when the political parties will realize that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.” Can this be characterised as yet another rhetorical flourish or a gamely attempt to posit the NOTA candidacy as a contestable one?

Other aspects of the judgment however, suggest that the right not to vote has been understood by the Supreme Court as a limited right to cast a valid yet incontestable vote of abstention. For instance, the Supreme Court illustrates its argument in favour of the right not to vote by drawing on the provision of abstentions in the voting mechanism adopted by legislative assemblies. The Court points out that rather than disallowing an abstaining legislator from casting a vote at all (as in the case of voters participating in constituency-based elections), the voting process recognises her right to positively assert an intention to abstain and allows her to cast a valid vote which is, well, innately incontestable.

Importantly, the Supreme Court employs abstention as the intended analogy to the right not to vote, while giving a go-by to the “no” or “negative” vote, even though this option is also available to legislators.

SupremeCourt_NOTA_rhetoricalflourish.jpgSecondly, while directing that a NOTA button be provided in EVMs, the Court observes that such a step is necessary since: “A voter may refrain from voting at an election for several reasons including the reason that he does not consider any of the candidates in the field worthy of his vote. One of the ways of such expression may be to abstain from voting, which is not an ideal option for a conscientious and responsible citizen”.

The Supreme Court also stops short of addressing the second prayer of the petitioners — that if more than fifty per cent of the electorate exercise the ‘NOTA’ option, re-elections must be held. Unless this is taken as a sign of misplaced brevity or implied acquiescence, it demonstrates the Supreme Court’s view that the right not to vote is really a right to register abstentions by casting a valid yet incontestable vote.

Even after its judgment, the Supreme Court has demonstrated that it isn’t inclined to take any other view of the matter (or more accurately, to supplement its finding or clarify its position). Last week, a bench headed by the Chief Justice declined to direct the Election Commission to hold re-elections even if the NOTA candidacy garnered a majority of the votes polled. Interestingly, the basis of refusing to issue such directions was not a substantive revaluation or clarification of its own findings in the judgment (discussed above) but a view that such directions would constitute judicial overreach. This insight into the court’s motivations for limiting electoral expression to abstention could well be the subject of yet another debate; but that it has chosen to take a “neutral” view of the electoral right to not vote is clear.

Seen in this light, the right’s scope and impact certainly cannot be equated with a contestable vote to reject candidates and potentially necessitate a re-election: itself a daunting socio-economic prospect. In the present scheme, while the cumulative expression of abstention by the electorate will be compiled, recorded and published by the Election Commission, it will not a have direct bearing on the overall result of the election.

In my next post, I will discuss the impact of formalising abstentions in this manner.

(Manu Chaturvedi (manuchaturvedi@gmail.com) practices law at the Supreme Court of India.)

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NOTA – Protecting the expression in voting

ManuChaturvedi_NOTA_therightnottovoteA decade ago, in People’s Union for Civil Liberties v. Union of India, the Supreme Court held that the mandatory public disclosure of the criminal records of candidates contesting constituency-based elections enjoyed the legal tutelage of Article 19(1)(a) of the Constitution of India.

Established jurisprudence dictated that the paradigm of speech and expression also entailed ancillary rights including the right to receive information that could best inform speech and expression. This view, adapted from several cases, drew on the catalytic relationship between awareness and the (right of) free expression. The Court had perused the nature of the right to vote and held that even though it was a statutory right, the final act of voting was a form of electoral expression and a vital source of sustained democratic engagement. The elector therefore, had a right to know the criminal antecedents of contesting candidates under Article 19(1)(a).

This year, the Supreme Court revisited the paradigm of electoral expression on the limited question of whether the principle of “secret ballot” applied to those citizens who — though statutorily eligible to cast a vote — wished to exercise the “right not to vote”. Tasked first with finding if such a right even existed in the electoral scheme, the Court pointed out that Section 79(d) of the Representation of People Act, 1951 (“RP Act”) defined an electoral right to include the right to vote as well as the right to refrain from voting. Moreover, Rules 41(1), 41(3), and 49-O of the Conduct of Election Rules, 1961 recognised the electoral right of voters not to cast a vote by laying down procedures to be followed in case such a right was exercised.

Having found in favor of its existence, it examined its nature, and concluded that a positive “right not to vote” was part of the expression of a voter within a parliamentary democracy. It had to be given effect to in the same manner as the right to vote — including a provision for maintaining the secrecy of ballot. Needless to add, it also came within the sweep of electoral expressions that, as held previously, enjoyed the protection offered by Article 19(1)(a) of the Constitution.

electronicvotingmachineThe Court reviewed the electoral scheme to see if electors exercising their right to not vote were treated at par with electors who cast a vote in favour of contesting candidates and found that only the voters who came out in support of a contesting candidate were able to cast a valid vote on the electronic voting machines in a manner that maintained secrecy of their ballot. Electors who wished to exercise their electoral right to not vote however, could not do so. They were instead forced to contend with the impugned provisions of Rule 49-O which laid down an elaborate procedure of identification and registration, thus, compromising the principle of secrecy extended to other voters.

In order to remedy this discriminatory treatment, the Court directed that the option “None of the Above” should be provided on voting machines in order to accommodate the expression of those exercising their right not to vote. The provisions of the RP Act and the Conduct of Election Rules, 1961, which compromised secrecy, were also held to be unconstitutional and struck down.

In my next post, I will deal with the Supreme Court’s use of the terms “negative vote” and “neutral vote”.

(Manu Chaturvedi (manuchaturvedi@gmail.com) practices law at the Supreme Court of India.)