| Loksatta-Corruption-Eradication |
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.
Problems :
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
Commission.
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.
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.
Problems:
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.
Miscellaneous
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.
Measure of curb polling
irregularities
Present status
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.
Problem
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).
Internal democracy in
Political Parties
Present status:
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.
Problems:
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.
Proposals
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."
Elections to Local
Governments
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.
Elections to Rajya Sabha
Present Status
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.
Problem:
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.
Proposal:
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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