Representation of People’s Act

Issues in Elections in India

• Autonomous functioning of EC
• Money power in Elections
• Transparency in Funding
• Criminalization of Politics
• Simultaneous Elections
• Effectiveness of NOTA
• Participation of Women
• False Advertisement among voters
• Trustworthiness in Elections
• Elections in unstable regions

Autonomous Functioning of Election Commission

Article 324 states that the superintendence, direction and control of preparation of and conduct of elections to the Union and state legislatures and to the offices of President and Vice-President shall be vested in the Election Commission.

Hence the EC is primarily responsible and accountable for the conduct of free and fair elections in the country. The essentials for achieving the same are laid down discretely in the aforementioned Article of the constitution

Appointment of EC members

• Article 342(C) advocates selection of EC members on law established by the parliament
• Vacuum of Legislation: Currently, however, no law has been made by the parliament regarding the selection of members of ECs
• SC has advised to make a law regarding the same so that constitutional provisions are accounted for and members of EC remain neutral, fair and non-partisan
• Currently, President of India appoints Election Commission on the recommendation of the government; many have called to replace this with a collegium system similar to SC where the CEC is chosen by seniority to instil security from executive interference

Administrative Powers of Election Commission 

• Delimitation of Constituencies
• Registration and De-registration of political parties
• Design, Enforce and Implement ‘Model Code of Conduct’
• Ensure a level playing field by keeping a check on the spending of all political parties

Advisory Powers

• Possesses advisory jurisdiction on disqualification of sitting members of parliament or state legislatures which is binding on the president or governor whomsoever it may be tended to
  • Disqualification of AAP MLAs for holding the office of profit
• Advices SC and HC on post-election disputes (SC in case of disputes of elections to the office of president or vice-president)

Read Also Features and Provisions of the Constitution

Quasi-Judicial Powers of EC

The EC has quasi-judicial powers and cannot own its own initiate judicial proceedings against candidates or sitting members of parliament or legislatures.

• Power to settle disputes with respect to recognition granted to political parties and disputes between splinter groups of political parties
• It has the power to settle disputes with regard to use of symbols in elections
• It has the power to disqualify any candidate on the grounds of
  • Failing to declare his election expenses
  • Providing wrongful information in affidavit
  • Wrongful propagation among voters through advertisements
• The decisions of the commission can be challenged in HCs or SCs through election petitions

Should the EC be armed with contempt of court?

The Election Commission has recently demanded for powers of contempt of court similar to what the judiciary holds. It was in response to allegations of biased functioning of the EVMs.

EC in response has asked to be vested with contempt of court powers which would enable EC to take action against individuals or 6cgroups who engage in contempt of EC’s functioning.

Removal of Election Commissioners

Article 324(5) provides provision for removal of Election Commissioners including the CEC. The CEC can only be removed by the President and holds powers similar to that of Supreme Court Judge. However, other Election Commissioners can be removed via recommendation of the CEC.

Currently, a petition is pending in the SC arguing that election commissioners be provided with the same protection as the Chief Election Commissioner.

All commissioners are appointed for a period of 6 years or till they reach 65 years of age, whichever is earlier

Independence of Commission Issues

1. No Security of Tenure for Commissioners: Article 324(5)
2. Expenditure of ECI not charged on CFI and thus subject to vote
3. Appointment Process of Commission members by the Executive: Need to implement Article 342(C)

Transparency in Funding

Finance Bill, 2017

• Removes 7.5% limit on a profit of companies that can be donated to political parties
• Companies need not reveal the party and the amount donated
• Limits cash donation to 2,000
• Electoral bonds were introduced to enhance transparency in the funding of political parties during elections –
  • Reduce Black Money: Bonds purchased through KYC forged banksà Accounted moneyà Clean Money
  • Anonymity: Electoral bonds can serve to sever the vindictive culture in which political parties penalise donors for funding other political parties
  • Transparency: The quantum of money received by parties is made public through audit returns

Non-Electoral Features of the Act

• Linking Aadhar card to PAN card for monitoring the tax base or payments
• Excess authority for IT officials to raid without warrant or reason
• In cases of unaccounted wealth, IT officials can provisionally confiscate the property

Concerns

• Opaque Process: Donors are able to remain anonymous through electoral bonds or by providing donations worth less than 2,000. Under Section 29C, political parties are exempted from mandatory reporting of details of donations made through bonds
• Increasing money power in elections: Electoral bonds provide an anonymous medium for parties to amass wealth while parties also have the opportunity to claim a bulk of donations less than 2,000. If so, the level playing field may be further distorted
• The opacity of Electoral Bonds
  • Finance bill removes restrictions on parties to submit records of electoral bonds or income tax returns.
  • Only certain entities are aware of the donor-recipient identities. This again promotes opacity with regard to public information
• Electoral Bond and Ruling Party: A government owned bank holding information of donors threatens to alienate those wanting to contribute to opposition for fear of victimization
• Crony Capitalism: Removal of cap on company profità Larger donations from corporatesà Lobbying + Crony Capitalismà Civilian and Environment Rights Compensated
• Financial transparency and accountability in the working of political parties has degraded as the political parties are still outside the RTI act

Way Forward

• Increase Transparency in Electoral Funding: Identity of donors need to be revealed and candidates should be statutorily obligated to declare amount collected from various donors. Digital transactions can be used for funding.
• Auditing Mechanisms:
  • Political parties should be enforced to submit audit reports to ECI as per section 29 of RPA, 1951
  • Social Audit: Political parties can be brought under the ambit of RTI act to provide avenues for social audit to enhance accountability and transparency in funding
• Remove the exception of Cash Funding: The current exception which allows parties to receive donations less than 2,000 and not display the sources should be done away with and identity of donors irrespective of donations should be made available in the public domain
• State funding of elections can be explored
• A national electoral fund where donors can contribute and distribute among parties according to their previous performances can be thought of to ensure a level playing field

Money Power in Elections

                According to Association of Democratic Reforms, the percentage of crorepati winners in Lok Sabha elections rose from 58 to 88% over the past 3 Lok Sabha elections pointing to an increased role of money power in our election process.

Issues and Consequences

• Skewed Playing Field: Affects Fairness of Election Process due to inequitable spending capacity of partiesà greater moneyà greater resourcesà better propagation and mobilizationà greater chance of winning election
• Dilution of Class Representation: With ever increasing number of crorepati candidates, India stares at becoming a Rich Man’s democracy with the poor and less influential getting further marginalized in India’s political space
• Crony Capitalism:
  • The lifting of 7.5% on proportion of profits through Finance Act 2017 that can be donated has facilitated increased donations to political parties from corporates
  • As per data from the ADR INDIA, corporate donations have risen to staggering 422 crore from 26 crore in 2004-05
  • Increased corporate donations cast aspersions on the ability of parties to govern without compromising public interest and without vested bias or interest
• Foreign Funding and Sovereignty Issues:
  • The amendment of the FCRA has opened the gates for political parties to accept foreign funding from foreign companies registered in India
  • Foreign funding can pose issues to the sovereignty in governance and policy making
• No Submission of Annual Audit Report: Political parties do not submit audit reports to the ECI nor do they come under the RTI act. Thus, there is effectively no means of transparency or accountability to their funding mechanisms.
• Freebiesà Voters: Sometimes used to buy votes by luring voters through freebies in the form of liquor, drugs, electronic items, bribes etc.
• Loss of trust: A money driven democracy and party systems lose the trust of the public. Thus, democracy itself reduces to an exercise rather than a necessity of the people

Benefits of State Funding of Elections

                The Indrajit Gupta Committee and the Dinesh Goswami Committee has recommended for state funding of elections to reduce the money power, promote inter-party democracy and reduce corporate and criminal interests in the election process.

• Fairer Elections:  State Funding of elections has been mooted to reduce the money power and improve fairness in elections. It would give all candidates equal opportunity to propagate their ideology and secure votes.
• Eliminate Black Money in Elections: State funding of elections would help root out the high prevalence of unaccounted money in meeting election expenses of parties and candidates.
• Promote Internal Democracy in Parties: State funding would break the domination of moneybags and affluent sections within political parties allowing meritorious candidates to come through
• Greater Credibility and Transparency: State funding can enhance morality on polity, governance and security. Political parties would earn greater credibility and transparency in election process.

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• Reduce Nexus Between Corporates and Political Parties: It would take one of the main avenues of undesirable cooperation and bias between political parties and corporates enabling parties to remain neutral and take decisions and formulate policies on the basis of welfare rather than on bias
• Enhance Class Representation: State Funding can reduce money power and curtail the dominance of crorepati candidates allowing better representation for the marginal classes of society

Disadvantages of State Funding

• Fiscal Burden: A large portion of tax payers’ money will be utilized by political parties once again thus burdening the already burdened state exchequer. 
• Antithetical to Democracy: Citizen participation is fundamental to any democracy. State funding denies private funding and participation of genuine donors who feel embedded in ideology of political parties and therefore reduces the participatory nature of electoral democracy

• Not a Panacea: Without decriminalization of politics, introduction of inner party democracy, electoral finance reform, transparency and audit mechanisms and stricter implementation of anti-corruption laws, there is no point moving towards state funding of elections.
• Unviable in Indian Context: Introducing state funding and complete prohibition of private funding is not practical in Indian context

Method of Implementation

1. Who is eligible for state funding?
   
   The most common eligibility condition is share of votes gained in the previous elections. In addition, number of seats in legislative bodies is also used as a criterion. Usually, a lower limit for votes or share of votes is kept to prevent misuse of the provision by floating new parties that contest large number of seats

Overseas Proxy Voting extended to NRIS

Union cabinet cleared a proposal to extend proxy voting to overseas Indians the facility which was earlier available only to service personnel.

Simultaneous Elections

The concept of One Nation One Election was mooted by the Central Government recently at the NITI Aayog governing council meeting striving to hold elections to centre, state and local government at the same time.

Why Simultaneous Elections?

• Economies of Scale: Simultaneous elections can help in reducing expenditure for elections by combining both centre and state elections.
• Resource Augmentation: The governance machinery is freed from being in constant poll mode. It enables better usage of government resources- human and infrastructural with regard to conduct of elections
  • Deployment of CAPF for internal security purposes rather than for elections
• Development Works: The constant enforcement of Model Code of Conduct in background of elections hinder developmental activities in states. Simultaneous elections can liberate governments from the stranglehold of MCC
• Convenience of Election Commission due to it having the same voters list and personnel for conducting elections
• Cooperative Federalism: The uniformity in time period of incumbent governments at Centre and state enables better cooperation and synchronization in achieving common objectives set out at the start of the incumbent period

Drawbacks of Simultaneous Elections

• Dismissing existing elected state governments: Simultaneous elections necessitate dismissal of existing state governments hindering the realisation of people’s mandate
• Downfall of state or Union government: Parliamentary Governments at Centre and Stateà High instability-à Unsuitable for simultaneous elections. A newly installed government gets a cut short period fracturing the mandate of the people
• Dilution of People’s Mandateà If state governments elected after loss of confidence only exists for remaining term, it does not provide sufficient time to set and achieve development agenda
• Bandwagon Effectà Threat to Federalism: With both centre and states going to polls at the same time, regional issues may be submerged at the expense of central issues that gain predominance during period of election. The base of the regional parties may erode at the expense of Pan India parties threatening the spirit of federalism
• Accountability Issues: The constant elections in various parts are seen as litmus test for ruling parties in other states and at centre. A single election reduces accountability of state and central governments.
• Resource Constraints: Massive election requires great resources, feasibility to be observed
• Constitutional Amendment: The realisation of the proposal requires a constitutional amendment that needs the nod of half of the state legislatures. Such an amendment can be questioned on the grounds of federal framework which is a basic feature of the constitution as held by the Supreme Court

Recommendations of Law Commission for Simultaneous Elections

1. Leader of the majority party to be elected as CM or PM in the lower house in state and central legislatures
2. Once a government falls, the new government that ascends will remain in office only for the remainder of the period ensuring that the chain of simultaneous elections is maintained
3. A no confidence motion in the lower house should be followed by a constructive confidence motion to install a new government
4. Introduction of simultaneous elections would require the amendment of the constitution, Representation of Peoples’ Act and the Rules and Procedure of Lok Sabha and Assemblies