Decriminalization of politics
Present Status :
1) Sections 8, 8A and 9 of RP Act, 1951 provide for disqualification of persons convicted of specified offences. The list is comprehensive and reasonable.
2) The provisions obviously failed to achieve the desired result. The Election Commission pointed out that more than 700 of the 4092 legislators at state level have criminal record against them.
3) Lok Satta released a list of 45 candidates, most of them nominated by major parties in Andhra Pradesh in the general election for Lok Sabha and Vidhan Sabha in 1999. The names of about 20 more persons with suspected criminal record could not be revealed for want of verifiable evidence. With the backing of major political parties, several of them were elected. Several citizens' initiatives made similar efforts elsewhere.
4) Section 8(4) of RP Act, 1951 gives a grace period of three months to incumbent legislators before disqualification comes into effect in case they are convicted of an offence, or if an appeal is filed within three months, until the appeal is disposed of by the court. Unfortunately this provision was misinterpreted by election officials consistently until 1997, and any candidate, who had been convicted but filed an appeal, was exempted from disqualification until the appeal was disposed of. The Election Commission gave guidelines in 1997 effectively closing this loophole.
1) Many known criminals are still in the electoral fray and often get elected. The problem is getting worse with successive elections.
2) The conviction rate in criminal cases is a pitiful 5-6%
3) Disposal of criminal cases is excruciatingly slow, and most cases take years to dispose of. Technically, the murderers of Rajiv Gandhi were perfectly free to contest elections in India for 7 years after the dastardly crime until 1998 when they were convicted, provided they are Indian citizens and are otherwise eligible. This obviously is an unacceptable situation.
4) If the persons facing criminal prosecution are disqualified indiscriminately, there is a real danger of trumped up charges against political opponents. This is particularly likely in a system in which police function directly under the control of the government, and the government has specific powers to withdraw prosecution, order investigation and grant parole and pardon.
5) Mafia dons and organised gangs often escape even prosecution for want of tangible evidence.
6) There are rowdy sheets and history sheets opened by the police against certain individuals with criminal record. Annexure - I gives the criteria applicable in one State. However, if they are solely relied upon to disqualify a candidate, there is danger of misuse of such powers.
7) The period of disqualification under RP Act 1951 for conviction varies with the offence, and this variation does not always seem to have a rational basis. Annexure -II gives a table indicating the offence and the period of disqualification.
8) While the list of offences under Sections 8,8A and 9 of RP Act 1951 is fairly large and comprehensive, certain offences seem to have been left out. Annexure-III gives an illustrative list of offences conviction for which should incur disqualification as recommended by the Law Commission.
Possible proposals for electoral reform :
1) The anomalies in respect of period of disqualification may
be corrected broadly in line with the recommendations of the Law
2) The punishments for certain offences should be altered, and certain new offences should be included, so that there are more rational criteria for disqualification of candidates as proposed by the Law Commission. The list should include conviction for corrupt electoral practices under section 99 of RP Act, 1951
3) Any person against whom criminal charges are framed by a magistrate for any offence listed under section 8 of RP Act 1951 or any warrant case should be disqualified to contest in elections as long as charges are pending against him/her.
4) Any person in respect of whom a History sheet or a Rowdy sheet or a similar record by whatever name it is called, has been opened and is kept open in any police station within the Indian union in accordance with the provisions of the appropriate laws or police standing orders, should be disqualified as long as such History sheet or Rowdy sheet is kept open.
In order to ensure that there is no misuse of this provision to harass political opponents, a safeguard should be provided in the form of judicial scrutiny. Any person who is aggrieved by the opening of History sheet or Rowdy sheet and who wishes to contest the election may appeal to the Sessions Judge at least two months before the date of election notification, and thereupon the Sessions Judge shall hold a summary enquiry and decide within a month whether or not the opening of such History sheet or Rowdy sheet is valid. The order of the Sessions Judge shall be binding on the police authorities.
5) Every candidate for an elective office shall file at the time of nomination before the Returning Officer an Affidavit in Annexure IV. The nomination of those persons who do not file such an Affidavit shall be rejected.
If any misleading or incorrect information is furnished in the Affidavit, or if any facts are concealed, such a person shall be disqualified for a period of, say twelve years. In case such a person has been already elected, his election stands nullified and he shall be disqualified for twelve years. In such cases a complaint shall be filed before the Election Commission, whereupon the Commission shall issue notices to the compliant and the candidate and after summary enquiry give its decision within 90 days from the date of complaint. The decision of the Election Commission shall be final and binding.
6) Similar disqualification provisions should be incorporated in respect of elections to local governments.
Note: A few critics have expressed the concern that decriminalization efforts might inadvertently hurt the interests of the dalits and backward classes. Given the power-centered nature of our society and the iniquitous nature of our polity, there is always the danger of influential sections manipulating the system in their favour and marginalising disadvantageed sections. Also often the so called upper castes may remain in the back ground and use the dalits and OBCs as canon fodder to execute crimes, thus escaping disqualification.
However, empirical evidence shows that criminalization of politics is not the monopoly of any caste group. In fact, there are more organised criminal gangs with political connections among the so called upper castes. When criminal record of candidates is carefully compiled, there are more upper caste candidates with such a record. Also once disqualification is applicable to all crime __ violent as well as white-collared, __ there is greater probability of the provisions being applicable to all sections equitably. For instance if wilful defaulters of bank loans are disqualified, there is greater chance of influential sections being made accountable.
There are other concerns expressed about the fairness of disqualification of candidates facing criminal charges or those listed as rowdy sheeters etc. Firstly only charges framed by a magistrate in warrant cases after prima facie enquiry are included. Once there is judicial application of mind, it acts as a reasonable safeguard to protect individual interest. Secondly, there have to be certain reasonable standards with uniform and objective application, and there can never be absolute certainty about a person's guilt. There are cases of conviction which are set aside on appeal. There are known cases of innocent persons having been found guilty of capital offences and executed. If we wish to apply exacting standards, we should wait until the final appeal is heard, which obviously defeats the objective of decriminalization of politics. Thirdly, there are fears that police records about rowdy sheeters etc could be highly subjective and arbitrary. In fact, the criteria for opening such records are well laid down and are objective. To eliminate the risk of political manipulation, a provision is made for judicial determination of the fairness of the police records at the level of the Sessions Judge.
Fourthly, when there is a clash between the society's right to have fair and proper representation in legislatures and the individual's right to represent the people, clearly society's rights take precedence over individual right. The right to contest elections is not a fundamental right. The harm done by denying an occasional innocent person a chance to contest is much less than allowing a criminal to be elected. In fact the balance today has swung against decent citizens in elections, and this distortion ought to be corrected.
Fifthly, these proposals are meant to reduce the role of criminals in politics, and cannot in themselves be adequate to eliminate the flaws and distortions in the criminal justice system. That requires a different, and far-reaching reform effort. However, the failure to reform, the criminal justice system cannot militate against reform of the electoral system. Electoral reform is central to the fairness of representation and health of a democracy.
Finally, when there is overwhelming distortion in electoral politics and money power and criminal involvement have come to dominate elections, effective and far-reaching reforms are required to safeguard public interest. Tentative and half-hearted reforms will fail to cleanse our political and electoral system.
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Curbing unaccountable use
of money power
Present Status :
1) Expenditure ceilings: A candidate is allowed to spend a maximum of Rs.6,00,000 in an Assembly election Rs.15,00,000 for Lok Sabha (in Andhra Pradesh). These new ceilings came into effect in December 1997 in place of the earlier ceilings of Rs.1,50,000 and Rs.4,50,000 respectively. In reality, the actual expenditure is often 15 to 20 times the present ceiling.
2) Prior to 1969, Section 293 of the Indian Companies Act permitted contributions to political parties. Such contributions could be upto 5% of the profit with the approval of the Board of Directors and unlimited with the approval of the shareholders.
In 1969, corporate contributions were banned.
In 1985, again companies were permitted to contribute upto 5% of the profit.
In reality, there are believed to be huge undisclosed and unaccounted corporate contributions to political parties and candidates.
3) Section 13A of the Income Tax Act (IT Act) exempts from tax the income of a party from house property, other sources and voluntary contributions.
4) Parties are bound by law to maintain accounts regularly, record and disclose the names of all donors contributing more than Rs.10,000 and have the accounts audited by a qualified accountant as defined in Section 288(2) of the IT Act.
5) In 1978, Section 139(4B) was added to the IT Act by the Janata Government. This provision, read with Section 13A, makes it mandatory for the political party to furnish return of income every year.
Every major party is said to have violated this statutory requirement of furnishing returns if its income exceeded the normal taxable limit.
6) In general, no party is believed to insist on accepting contributions only by cheque. Some time ago, BJP made an announcement that they would like to accept contributions by cheque. But it is believed that most contributions after that were undisclosed.
Obviously contributions to parties by cheque are exceptional, and the bulk of the funding is undisclosed.
7) The press reported that on Supreme Count's directives in a public interest litigation filed by the Delhi-based Common Cause, the income tax officials have sent notice to all political parties to file tax returns disclosing the receipts and sources of contributions. So far there is no evidence of parties having submitted these returns. Noting further is known of the outcome of this initiative.
8) The uncorroborated Jain Hawala scandal reports suggest that large amounts of tainted money from highly questionable sources is flowing into party coffers.
9) Legal penalty for not filing election expenditure returns is disqualification for three years. If the expenditure exceeds the ceiling prescribed, the penalty is six years' disqualification.
10) By an ordinance in 1969, later made into law in 1974, the expenditure incurred by the party or an association or a friend is exempt from expenditure ceilings.
11) Candidate should report the expenses to the District Election Officer within 30 days of completion of elections. The accounts have to cover the period from the date of notification to the conclusion of election.
1) It is generally acknowledged that the expenditure in elections is astronomical. In some States, the expenditure of Rs.1 crore for Assembly election and Rs.3 - 4 crores for Lok Sabha is common.
2) The expenditure is not only above the ceilings prescribed, but most of it is for illegitimate purposes and is illegal. Often such undisclosed expenditure is incurred in inducing voters through money and alcohol, bribing election officials, polling staff or police personnel for favours and partisan conduct, and hiring hoodlums and 'workers' to indulge in large scale personation, booth capturing and rigging. Often criminal gangs are hired to browbeat the voters or prevent them from voting.
3) The expenditure of major parties in the general election for Lok Sabha and Legislative Assembly in Andhra Pradesh in 1999 has been estimated (anecdotal evidence) at about Rs.600 crores.
4) The expenditure of candidates for the municipal elections in AP in 2000 is estimated at Rs.100 crores (anecdotal evidence). The total annual income of the 107 municipalities (excluding municipal corporations) probably does not exceed Rs.100 crores!
5) In the absence of strong legislative framework, the Election Commission's efforts to curb expenditure have merely pushed most expenditure underground. The ostentatious expenditure for visible campaigning is on the decline, whereas the illegitimate expenditure has been on the rise.
6) In the absence of strict disclosure norms, parties are not inclined to receive contributions openly. Almost always political contributions are obtained through extortion, or received as a consideration for past or future favours out of turn.
7) The Tatas groups made a genuine effort to create a fund for campaign contributions. However, in the absence of an enabling climate, and the difficulty in providing corporate funding to all parties on objective criteria, the initiative did not make any progress.
8) Unaccounted election expenditure has become the root cause of corruption. Political funding and corruption are inextricably linked.
9) The entry of honest citizens into political and electoral arena is rendered almost impossible on account of the inexhaustible appetite of the political system for unaccounted funding.
10) Honest citizens and corporate groups have no incentive to fund political activity.
11) Candidates are often chosen on the basis of their capacity to spend in elections, rather than their ability to serve the public. Good candidates with limited means are discouraged from seeking public office. Disparities in campaign resources have reduced electoral competition.
12) Parties in power use public money with impurity for personal aggrandizement and for publicity to individuals and the parties.
13) Large scale mass mobilization is the norm, involving huge expenditure and little political education or public awareness. A large political rally involving about 100, 000 people typically costs Rs.3-4 cores.
14) Abuse of power is common in raising resources or organizing political rallies and meetings.
15) Party finances are neither regulated nor transparent.
16) Party workers are no longer volunteers inspired by ideology, great leaders or good goals, but hired supporters
Proposals for campaign funding reform
A) Measures to encourage political funding:
1) All individual contributions to individuals or parties for political and election activity shall be exempt from income tax subject to a ceiling of, say Rs.10,000
2) All corporate contributions from companies upto a ceiling of 5% of the net profit shall be exempt from corporate tax
3) Companies may contribute subject to the following norms
a) No contribution shall be made above 5% of the profit
b) A company which receives state subsidy or has a decision or contract or license pending with government shall not contribute
B) Measures to prevent abuse of office
4) Government shall not issue any advertisements containing the name of a person or party or photograph of any leader
5) No government advertisement shall be issued listing any achievements of a particular government.
6) Government transport or infrastructure shall not be used for political campaigning
7) No contribution shall be received from any person or corporate body in respect of whom any decision or license or contract or claim of subsidy or concession of any nature is pending with the government.
C) Measure s to enforce disclosure and accountability
8) Every individual contribution exceeding Rs.1000/- and every corporate contribution shall be disclosed to the Election Commission and the Income Tax authorities. Penalty for non-disclosure will be fine equal to ten times the contribution and in addition case of corporate bodies, imprisonment for six months.
9) Every political party and candidate shall get the receipts and expenditure fully audited and make the audited accounts for the financial year public by Sept 30.
10) The audited statement of accounts shall be submitted to the Election Commission as well as the Income Tax authorities in the prescribed proforma. (Annexure V) Copies shall be made available to any member of the public by the Election Commission on payment of a nominal fee.
11) Along with the audited statement of accounts, the party or candidate shall submit a complete list of all contributions exceeding Rs.1000/- with the full identity, address and other details of the donors. These lists shall be made public and furnished to the Election Commission and Income tax authorities. Election Commission shall make available to the public this list on demand for a nominal fee.
12) Penalties for not furnishing audited accounts by a candidate will be disqualification for a period of six years or until accounts are furnished, whichever is later.
Penalties for non-disclosure of donations by a candidate will be disqualification and a fine equivalent to ten times the amount covered by non-disclosure, disqualification for six years and imprisonment for one year.
13) Penalties for not furnishing audited statement of accounts shall be derecognition of the political party until accounts are furnished. Penalties for non-disclosure of donations by a party will be a fine equivalent to ten times the amount covered by non-disclosure, imprisonment of the persons responsible for a period of three years and derecognition of the party for a period of upto five years.
D) Measures to limit campaign expenditure
14) There shall be a reasonable ceiling on expenditure in elections as decided by Election Commission from time to time. All expenditure including that incurred by a political party or any individual or group to further the electoral prospects of a candidate shall be included in the election expenditure.
15) Penalty for violation of ceiling shall be a fine equal to five times the excess expenditure. Penalty for wilful non-disclosure of any expenditure shall be disqualification of the candidate for six years, fine equal to ten times the non-disclosed amount and imprisonment for six months.
16) There shall be reasonable ceilings fixed on television/radio/newspaper advertisements.
17) During election time, rallies held under covered roofs alone shall be permitted, and outdoor public rallies shall be prohibited. However, there shall be no restrictions on all other campaign related individual or group activities.
E) Measures for public funding
18) Free television and radio time shall be given in state media to recognised parties as prescribed by the Election Commission
19) Private electronic media shall earmark time for recognised parties as prescribed by the Election Commission for election-related campaign
20) There shall be election debates telecast and broadcast live by all electronic media as per the directions of the Election Commission
21) Every candidate/party obtaining 2% of the valid votes polled in a constituency shall be entitled to receive public funding to a tune of Rs.5 per vote. The Election Commission shall receive these claims, ensure the candidates and party's compliance with all norms of auditing, disclosure and expenditure ceilings, and award the public funds.
22) The Election Commission shall be the final authority to determine compliance or otherwise of these norms, and to impose penalties.
23) Public funding to party candidates shall be contingent upon the party candidates being selected democratically by secret ballot by members of the party or an assembly of elected representatives of the party members in the constituency.
24) Any expenditure to give inducements to voters, distribute gifts, bribe public officials involved in conduct of election, or hire any workers or gangs for any unlawful activity shall be unlawful. Penalties for such unlawful expenditure shall be disqualification of the candidate for six years, a fine equivalent to ten times the expenditure incurred and imprisonment for three years.
25) Every candidate shall make a declaration of his/her income and property at the time of nomination, along with income and properties of the members of his family. The proposed form of declaration is given in Annexure VI. False or incomplete declaration shall be invite disqualification for six years and imprisonment for one year. Non-declaration will invite automatic disqualification.
The Election Commission shall determine the compliance of this provision and make public these declarations. The EC shall be the final authority to decide on complaints of false declaration.
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Measure of curb polling
1) In the actual conduct of elections, the pre-polling activities including printing of ballot papers etc are fool-proof and largely free from any irregularities.
2) Similarly the post-poll activities including transport and storage of ballot boxes and counting are fool proof and there are effective safeguards against mischief.
3) The irregularities are largely limited to the polling process itself. In fact most electoral politics is now reduced to manipulating the polling process including influencing appointment of election and polling officials in certain states.
4) Electoral registration law is near-perfect. However, the procedural flaws allow for serious distortions.
5) Prior identification of the voter by verifiable means is not insisted upon as a precondition for voting. Therefore false voting by impersonation is unchecked.
The only check is the opportunity for the polling agent of a candidate to object (challenged vote). However, often polling agents do not know all the voters. In urban areas it is impossible to have knowledge of even a fraction of the voters. Sometimes the polling agents are in conclusion with opponents. There are areas where the dominance of one caste or group is so pronounced that polling agents may not even be available for certain candidates, or when available, are intimidated.
6) Tendered ballots are given to those voters in whose name a vote was cast earlier by impersonation, and who can establish their identity. However, the provision is not widely known. Even if a tendered vote is cast, under the present law it has no validity. In fact the false vote already cast and inserted in the ballot box is counted, and the legitimate vote cast as tendered vote is kept in a sealed cover separately, and is not counted. This sealed cover is opened only in the event of a court order on an election petition. In effect, impersonation is rewarded in elections.
7) A tendered vote is indisputable proof of rigging. No matter what form rigging takes, its one inevitable manifestation is a false vote being cast in the name of another person. Tendered vote is thus the surest means of proving personation and rigging, provided there is great publicity and voters attach value to tendered vote.
8) Use of ballot papers involves several logistical difficulties including printing of ballots, large scale personnel deployment, tampering with ballot papers, forcible entry into a polling station and at times massive rigging by rapid unauthorised stamping of ballots and insertion in ballot box.
9) Voter identity cards are introduced, and the law and rules have been amended. However, though Rs.1000 crores have been spent, identity cards have not been made mandatory for polling. Only in Haryana in the recent Assembly elections, voter identity cards have been made mandatory along with other means of identification, and the experiment has been successful.
10) Electronic voting machines (EVM) can now be used, and the law has been amended. EVM technology is available, and they have been used successfully on pilot basis in select constituencies. They can be manufactured on large scale and their introduction actually reduces election expenditure in the medium and long-term. EVMs also reduce the scope for rigging, and make polling simpler and counting faster.
1) There are large scale errors in electoral rolls. Lok Satta conducted sample household survey of five urban polling booths. The survey reveals 40-50% or more errors in electoral rolls. Either the names of eligible persons residing in the locality are omitted, or the names of ineligible, or fictitious persons, or those not residing in the locality find place. Annexure 7 gives the results.
2) Similar surveys in other urban areas reveal equally glaring irregularities in electoral rolls. These are corroborated by anecdotal evidence.
3) In the rural areas, the errors may be fewer, probably to a tune of 5-10%
4) Lok Satta is now undertaking a scientifically designed random sample survey in the State of Andhra Pradesh, covering every district, to establish the degree of inaccuracy.
5) Errors in electoral rolls disenfranchise many eligible voters, while allowing organised personation on a large scale.
6) Often the margin of victory in an election is no more than 5-10% of the valid votes polled.
7) Lok Satta conducted a sample house-to-house survey of five polling station areas after the 1999 general election. The survey revealed that upto 22% of the votes cast might have been by personation. A large number of persons who are supposed to have voted have either migrated to other areas, cities or countries, or cannot be traced, or have not actually voted. This survey was based on the electoral rolls in which the names of those who voted had been marked by polling agents of candidates. Annexure 8 gives the findings.
8) Lok Satta offered to conduct a more scientific survey of polling stations on random sampling basis and sought the official lists of voters who actually voted in the last election. However, the Election Commission officials denied us access to these electoral rolls indicating those who have actually voted, for fear of litigation in the event serious irregularities in polling are proved.
9) Electoral rolls are in theory available to citizens for a price. However, in reality the process is difficult and rarely if ever citizens have actually been able to obtain copies of electoral rolls. The process involves fixation of a price by the CEO of the state, a head of account, payment through a government challan, and prior knowledge of simple data like the constituency number, polling station number etc. Even for well-informed and influential citizens access is in effect denied. Lok Satta could obtain electoral rolls officially only after several weeks of relentless effort.
10) Citizens are supposed to have access to electoral rolls at the time of revision. However, in reality it is a cumbersome and ineffective process.
11) Revision of electoral rolls is supposed to be done with public knowledge. However, the process is obscure, and citizens have little access and no real opportunity to correct errors.
12) Applications for addition and deletion of names are long and difficult for ordinary voters to fill out.
13) These applications are often not available to voters. When available, the filled out applications have to be handed in personally, or sent by post, a costly and difficult process for most citizens.
14) There is an acknowledgement printed with these applications (Forms 6,7,8, 8A and 8B). The acknowledgment is rarely if ever given to citizens on application.
15) Anecdotal evidence shows that in many cases applications for addition and deletion of names are ignored and no action has been taken. There is a section in the application indicating action taken, which is supposed to be sent to the applicant. However there is almost no known instance of such communication.
16) Even a casual glance at electoral rolls in urban areas shows the obvious discrepancies and inaccuracies. Taking advantage of these defects, political parties and influential persons ensure large scale registration of bogus voters, or large scale deletion of names of voters who might have favoured their opponents.
17) There is overwhelming anecdotal evidence at the time of election suggesting serious irregularities in electoral rolls or polling. Many citizens find that their names are missing, though they voted in the earlier election or they applied for voters enrolment.
18) Equally commonly many voters are disappointed to learn that someone else has already cast the vote in their name. Often these disappointed voters are not even advised about the 'tendered vote' , and are sometimes actively discouraged by the polling personnel from seeking it (to avoid additional work or for fear of having to report and explain large scale personation).
Proposals for reform
1) The local post office shall be made the nodal agency for electoral registration
a) Electoral rolls for the polling stations covered by the post office shall be made available to citizens across the counter for a price. They can be purchased like any postal stamps or stationery.
b) Copies of electoral rolls shall be displayed and made available for scrutiny when asked.
c) The forms of registration, deletion of names and correction (in English and local language) shall be made available to citizens free of cost or for a nominal price of say, 10 paise.
d) All such forms shall be received by the post office and acknowledgement given to the applicant. They shall then be forwarded to the electoral registration officials.
e) The post office shall maintain a register showing details of applications, and shall receive action taken reports from electoral registration officials. This register shall be open to public for scrutiny.
2) Voter identity cards shall be mandatory in any election. The exercise of distribution of these voter identity cards shall be completed within one year. All other suitable means of identity__ ration card, driving license, pattadar pass book, bank pass book, passport, credit card, employer's certificate, tax receipt etc shall be permitted in lieu of voter identity card.
3) Electronic voting machines shall be introduced in every polling station.
4) Ballot papers shall be limited to those on official election duty or members of the armed forces. Measures should be evolved to facilitate voting of such persons in time. Proxy voting for soldiers on duty by their relations with prior authorization is one such method.
5) If the tendered votes in a polling station exceed 1% of the valid votes polled, there shall be automatic re-polling in that polling station.
6) If the tendered ballot papers are below 1% in a polling station, they shall be counted as normal ballot papers. (The vote polled by a legitimate voter is thus counted. Tendered ballots may not be relevant if voter identity cards are universally implemented and identification is made mandatory. Rules need to be framed regarding tendered votes in case of Electronic Voting Machines).
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Internal democracy in
1. Art 19 of the constitution accords citizens the right to form associations, thus implicitly recognizing the right to form political parties.
2. Election symbols (Reservation and Allotment) order, 1968, issued by the Election Commission under Art 324 of the constitution, read with the provisions of RP Act, 1951 and conduct of Election Rules 1961 provides for recognition of political parties.
3. A party will be recognized by the Election Commission as a State-level party and alloted a common symbol for its candidates if it has been engaged in political activity continuously for five years, and had obtained at least one out of 25 members of Lok Sabha or one out of thirty members of State Legislative Assembly or 4% of the total valid votes caste at the election in the State.
4. A party satisfying these conditions in four or more states is recognized as a national party.
5. The symbols allotment order, 1968 has been recognised by the Supreme Court as a self-contained code and can be treated as one of the important land marks in the evolution of regulation of political parties. (RP Bhalla). The Court upheld the order in the Sadique Ali Vs Election Commission of India, case.
6. Section 77 of RP Act, 1951, amended in 1974 mentions a political party for the first time in a statute. This amendment excludes expenditure incurred by a party from the statement of accounts lodged by a contesting candidate.
7. Tenth Schedule was added to the constitution in 1985 through 52nd amendment. This is the only reference to political parties in the constitution. Tenth Schedule provides for disqualification of members for voluntarily giving up membership of a political party or violating party whip.
8. Section 29A was inserted in the RP Act 1951 making provision for registration of political parties with the Election Commission.
1) Parties have become arbitrary, autocratic and unaccountable.
2) As parties are integral to democratic politics, their undemocratic functioning has weakened Indian democracy and politics.
3) The choice of candidates for the voters is essentially limited to parties. Non-party candidates have very little say in elections. (Annexure - 9)
4) As a party represents decades of effort, dreams, aspirations, history, nostalgia and emotions, new parties cannot be easily formed. The only effective way of improving the quality of a democracy is by improving the functioning of political parties.
5) Entry into a party is often tightly and arbitrarily controlled by the leadership. Strict, but objective and uniform norms as applicable to communist parties are welcome. But in most mainstream parties the leadership denies membership to those with the potential to challenge their position. Similarly persons utterly opposed to party's stated ideology are admitted as members when it suits the leadership.
6) Disciplinary powers are invoked and expulsions are resorted to habitually only to safeguard the position of leadership of a party. No healthy debate and democratic dissent are tolerated.
7) Leadership choices at various levels are rarely made by democratic voting. In most parties, internal elections are rarely held, or when held, are perfunctory. Even membership rolls are not available.
8) Party leadership is utterly unaccountable to its members as well as the public regarding contributions made and expenditure incurred.
9) Choice of candidates is left to the discretion of the party bosses. There are no democratic procedures of member choice and secret ballot for candidate selection.
10) Party policies are rarely debated or decided in party fora. Members have no role in shaping party's policies. Manifestoes are written in a cavalier manner, and if the party is elected to office, promises are disregarded with impurity.
11) Lok Satta conducted a survey of leading political parties at the grassroots level. This survey was initiated by Sri LC Jain's idea of a Political Party Development Index to act as a pressure point for parties to reform. Constituencies for study of each party were short-listed based on the party's consistent good performance over the past four general elections, and the final choice was made by the party concerned. In effect these constituencies represented the best face that the parties could offer. The findings of the study confirmed all the ills of our party system outlined above.
1. Membership of a party should be open to all citizens of India, subject to their subscribing to the party philosophy, and uniform membership norms and barriers of entry.
2. Rules governing membership of the party and registers of current members should be available and open to inspection by any member of the party or the representatives of Election Commission.
3. There shall be internal mechanisms for adjudicating disputes within the party, including those concerning the interpretation of the party constitution.
4. Disciplinary action shall not be initiated on the grounds that a member has opposed the leadership or espoused a view contrary to the leadership's view.
5. The party constitution should contain provisions on:
a) The name, register office and activities of the party,
b) The admission and resignation of members,
c) The rights and duties of members
d) Admissible disciplinary measures against members and their exclusion from the party,
e) The general organisation of the party,
f) Composition and powers of the executive committees and other organisations
g) The preconditions, form and time limits for convening meetings of members and representatives and the official recording of resolutions.
h) Matters which may only be decided upon by a meeting of members and representatives.
i) An overall vote by members and the procedures to be adopted when the party convention has passed a resolution to dissolve a party or merge with another party. The result of the overall vote determines whether the resolution is confirmed, amended or rescinded.
j) The form and content of a financial structure which satisfies the rules of financial accountability
6. A member may only be expelled from the party if he or she deliberately infringes the statutes or acts in a manner contrary to the principles or discipline of the party and thus seriously impairs its standing.
7. The Election Commission decides upon appeals on expulsion from the party. The rights to appeal to a higher court is guaranteed. Decisions must be justified in writing.
8. There shall be democratic election by members through secret ballot for filling all vacancies of office bearers and the highest executive body. The executive committees at various levels shall be elected at least every second calender year.
9. All decision making in party organs shall be by majority vote, and the ballots shall be secret at the executive committee, delegates' and representatives' assemblies. Voting at other levels shall be secret if the members ask for it.
10. Party's assets, receipts, income and expenditure shall be audited and the audited statements shall be furnished to the Election Commission by September 30 next. Public shall have access to there records and may obtain copies from EC on payment of a nominal fee. (Annexure 5)
11. All contributions more than Rs. 1000 shall be disclosed to the public and the Election Commission. The commission shall make available copies to the public on payment of a nominal fee. Any violation of disclosure norms shall invite de-recognition and imprisonment of members of executive committee for three years.
12. Candidates for election to any public office must be chosen by secret ballot. The nomination procedure shall be governed by the party statutes. A person may only be named as party candidate in a constituency if he or she has been selected in an assembly of party members in the constituency or in a special general assembly of representatives elected for this purpose. The candidates and the representatives for the assemblies of representatives shall be selected by secret ballot.
Selection of candidates for other public offices shall be by secret ballot at the appropriate level.
13. A provision similar to Article 21 of the German Basic Law should be incorporated in the constitution to facilitate effective regulation of parties.
"21(1) political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organization must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds.
21 (3) Details shall be regulated by federal laws."
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Elections to Local
Article 243 K and 243 ZA provide for a State Election Commission to survervise, direct and control elections to local governments.
The following lacunae exist in elections to local governments:
a) For each stage separate law needs to be enacted to implement these reforms.
b) Electoral rolls have to be prepared separately for local governments.
c) Political parties registration and symbols allotment may have to be separately taken up by the State Election Commission in each State.
All these are redundant. A simple constitutional amendment providing for common electoral rolls, common Union electoral law for all the elections and common registration of parties and allotment of symbols would be necessary to improve local government elections.
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Elections to Rajya Sabha
Under Article 80 (4) of the constitution the representatives, of each State in the Council of States shall be elected by the elected members of the Legislative Assembly. Under Article 83 (1), the council of states shall not be subject to dissolution, but as nearly as possible one third of the members thereof shall retire as soon as may be on the expiration of every second year.
This resulted in three difficulties:
1.) As the Rajya Sabha membership gives almost equal powers and privileges compared to Lok Sabha, and it is for six years without fear of termination of membership upon dissolution, the demand for it has gone up. State Legislators are wooed assiduously and money is often paid to purchase votes in Rajya Sabha election.
2.) Though Rajya Sabha is the Council of States, and is supposed to represent the will of the States at the Union level, in reality Rajya Sabha often represents the composition of the dissolved State legislature and not the current one.
3.) Rajya Sabha has coequal powers of legislation with Lok Sabha (except on Finance Bills). The government formed with majority support in the House of the People (Lok Sabha) often finds that though Lok Sabha represents the will of the people at a point of time, Rajya Sabha is at loggerheads with Lok Sabha. Almost no legislation can be enacted in the Parliament without the willing cooperation of Rajya Sabha despite people's mandate for a government. This leads to legislative impasse and compels unhealthy back room deals.
One simple way of remedying the situation is by electing all the representatives of a State in Rajya Sabha at one time immediately after the constitution of the State Legislative Assembly. The Rajya Sabha members so elected from a State will be conterminous with the State Legislative Assembly. The Rajya Sabha will thus reflect the will of the people of the State at all times. There will be greater likelihood of its composition being closer to Lok Sabha, facilitating easier passage of legislation.
As the election is held for all members of Rajya Sabha from the State simultaneously immediately after the constitution of the Assembly, there will be reduced chance of money being paid for voting in Rajya Sabha election. Legislators freshly elected by the people are more likely to respect the people's mandate.
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