political parties – the myLaw.net blog

The Law Commission of India has suggested sweeping reforms to India’s electoral system in its 255^th 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 170^th 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

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.

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.

The definition of “public authority” in Section 2(h) of the Right to Information Act, 2005 (“RTI Act”) is elastic. Every now and then, its boundaries are stretched to bring yet another body within it. A recent order of the Central Information Commission (“CIC”) did exactly that when it directed political parties to appoint Central Public Information Officers and Appellate Authorities to respond to RTI applications. The Board of Control for Cricket in India has received a temporary reprieve, but the CIC may still decide whether the top governing body for cricket in India fits within those elastic limits.

First, let’s take a look at Section 2(h).

““public authority” means any authority or body or institution of self- government established or constituted — (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any — (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government”

Figuring out whether a particular case fits into the boundaries of statutory language is at the heart of the judicial process. Often, the answer is obvious, like the 2010 judgment of the Delhi High Court, which said that the Chief Justice of India came within the meaning of “public authority”. The case of political parties was trickier. The CIC admitted as much, when it said that they did not fit into clauses (a), (b), (c), and (d). After all, in spite of their role in the political process, political parties were quite clearly “not-government”.

Eventually, the CIC went beyond the notions of governmental origin and control and resorted to the term “substantially financed” in clause (ii). It relied on the expansive interpretation given to the term “includes” in a 2011 judgment of the Punjab and Haryana High Court, which said that non-Government organisations substantially financed by government funds was an independent category of “public authority”, distinct from those established or constituted by law made by the centre or the state.

When it interprets Section 2(h), the CIC is deciding on its own jurisdiction. That gives us reason to treat those interpretations with suspicion, but the provision itself is probably the clearest indication of the legislative intent to recognise a far-reaching right to information. In this context, the CIC referred to a similar provision — the definition of “state” under Article 12 of the Constitution — and said that the Section 2(h) net was intended to catch a lot more. It held that the Congress, the BJP, the CPI(M), the BSP, and the NCP have been substantially financed by the Union government. The Commission took note of the fact that all these parties had received land from the government at well below the market rate and that they could advertise for free on Doordarshan and All India Radio during election campaigns. The argument that government financing was not substantial was dismissed. “Substantial financing”, the CIC said, need not mean “majority financing”, just “not-trivial financing”. The crucial role of political parties in a democracy, and in particular, their powers under Schedule X of the Constitution, was also considered, but these were only secondary factors in arriving at the final conclusion.

The BCCI receives tax waivers, and until recently, was exempted from customs duty on the import of sports goods. Electricity and security at cricket stadiums is often subsidised, but it is not clear whether all this will amount to substantial financing. The CIC however, may not have to resort to clause (ii) of Section 2(h) because some BCCI operations can be controlled by the government. For instance, the Union government can use its power under Entry 10 of Schedule VII of the Constitution to make law on “foreign affairs; all matters which bring the Union into relation with any foreign country” and restrict the BCCI’s ability to represent India at international competitions. It can also restrict the BCCI’s ability to use the term “India” while referring to its team, under Section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950.

On the other hand, autonomy from government is a prized virtue for sport, and the Olympic movement is unlikely to take kindly to a judicial determination that cricket’s top governing body in India is controlled by the Indian government.

(Aju John is part of the faculty on myLaw.net.)

Images above are from Wikimedia Commons and the first three (from L to R) have been published here under CC BY-SA 3.0, CC BY-SA 2.0, and CC BY-SA 2.0 licenses respectively.