Electoral reforms – a recipe for vibrant democracy

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AS India ElectionsPrime Minister Narendra Modi continues to dwarf his adversaries within the BJP and bulldoze his political opponents by waging a full-blown war against corruption and black money. His ever-rising popularity has made him a household brand despite post-demonetisation pains. Apparently, still not looking content with the tag, Modi has revealed his mind to take his fight to the next level by rolling out electoral reforms in a bid to purge the political parties, if his recent message to the BJP Parliamentary Party to lead by example is any indication. Even trans-India, we find a global debate igniting for the insulation of free and fair poll in the wake of alleged ‘trumping’ of the US Presidential electoral process by the Russian President Vladimir Putin.

No democracy, needless to say, can flourish unless the sovereignty of “we, the people…” is reflected in any form of governance. The perpetual electoral reforms are, therefore, imperative to ensure and continually secure free and fair election, which is elemental to any democratic polity. The Supreme Court has repeatedly ruled that the “…heart of the Parliamentary system is free and fair elections held periodically, based on adult franchise…”

 The forefathers of the Indian Constitution had opted for Parliamentary democracy primarily because the British ethos ingrained in our psyche adapted the institutional derivatives with necessary modifications to suit our domestic milieu. Curiously, in the run up to the ensuing assembly elections to five Indian states early February, dubbed as the semi-finals for 2019 Lok Sabha polls, various burning issues such as political funding, criminalisation of elections, partisan exit polls, deceptive ads in electronic and print media, including paid news, compulsory voting, dissection of electorate along the caste, regional and religious lines, state funding of elections, simultaneous polls to Lok Sabha and state assemblies and the like come intofovus again.

Our electoral system, by and large, worked satisfactorily without any major glitch till the fourth general elections held in 1967. With the passage of time, however, a number of procedural deficiencies and inadequacy of control mechanism came to the fore because of various intrinsic snags and stultifying factors. The electoral fissures were diagnosed, for the first time, during the fifth general elections held in 1971, which kept growing in succeeding elections, especially in those held in the 80s’ and thereafter.

Committees on electoral reforms
Smarting under the judicial dynamism and media trial, the Election Commission (EC) took up the cudgels to ensure free and fair polls and provide a level-playing field for all stakeholders. It kept nudging the government of the day about the inevitability of disinfecting the existing laws in order to eliminate electoral malpractices. Consequently, over the years, several committees were formed to examine major challenges impacting India’s electoral purity, which gathered momentum only in early 2011 when Team Anna turned the public sentiments hysterical during his 14-day fasting at Delhi’s Ramlila Maidan.
A comprehensive set of proposals on electoral reforms were, accordingly, chiselled by various committees formed from time to time with specific mandate are as following:

Legislative reforms
An epoch-making watershed in the electoral laws, however, was the lowering of the voting age from 21 years to 18 years through Constitution (61st Amendment) Act, 1989 by amending Article 326 of the
Indian Constitution, pertaining to the the Lok Sabha and assembly polls. It electrified the entire electoral environment throughout the length and breadth of the country. It split the youth from the old even within the same family. The phenomenal emergence of Modi during the 2014-Lok Sabha elections is attributed mainly to the vertical division of votes between the old and the youth.

 Likewise, several amendments were made in the Representation of the People Act, 1951 in the recent past. Open ballot voting for elections to the Rajya Sabha and voting through proxy for voters in the armed and paramilitary forces were stipulated by amending the IBID Act in 2003. Enrolling of overseas Indian citizens in electoral rolls in 2010 was another jump to ensure wider participation. Introduction of electronic voting machines (EVMs) and seizing disciplinary control over central and state officers engaged on election duty turned the EC into a powerful sentinel of free and fair polls. Substitution of printed electoral rolls with computerised photo electoral rolls is yet another milestone. An Indian voter can now proudly cherish the possession of an elector’s photo identity card (EPIC), to the chagrin of his foreign counterparts elsewhere.

Judiciary-driven reforms
It was primarily due to the judicial interpretations that the EC emerged as a powerful watchdog flogging the defiant political parties to fall in place. The first landmark judgement came in 1952 in N Ponnuswamy’s case wherein the SC held that Article 329B of the Constitution removed the jurisdiction of courts to entertain challenges against any action taken by the EC or its officers in conducting elections before the elections were completed.

This was further elaborated by the SC when it termed the bar against the limitative challenges to electoral steps taken by the EC and its officers as a blanket bar in Mohinder Singh Gill’s case way back in 1978. In that case, Article 324 was interpreted and showcased as a reservoir of power for the EC to deal with dynamic, unforeseen situations in the midst of election process for which the law does not contain enough provisions. That was, in fact, the turning point in the historical emergence of the EC as the ultimate institute of electoral management.

Another landmark judgement was delivered in 1995 in Common Cause case in which the SC directed that the political parties file income tax returns and that the EC could ask the parties to submit the expenses accounts under Article 324.

It is indeed amazing to see how Article 324 lying dormant since its inception in Part XV of the Constitution was identified and resurrected by the SC to be the omnipotent instrument of electoral revolution in the country.

Further, in 1986, the SC upheld the constitutional validity of the Symbols Order, 1968, notified by the EC to provide recognition to political parties and the allotment of symbols. This judgement in a way conferred the power of making subordinate legislation on the EC. This position was further reaffirmed in 2012.

The SC took the electoral reforms to the next level through another landmark judgement given in 2003 wherein it was held that the electors had the right to know the background of the contesting candidates enabling them to make an informed choice. In pursuance of this judgement, the EC has prescribed a format in which the candidates have to file affidavits about their criminal antecedents, assets, liabilities and educational qualifications, among others.

Table

Electoral reforms in chronological order

An illustrative list of various prominent electoral reforms made from time to time is categorised in chronological order as under:

1988
The staff/employees engaged in the election process were declared to be on deputation with the EC so as to ensure their responsiveness.

1989
The 61st Constitutional Amendment Act, 1989
reduced the voting age from 21 to 18 to tap the participation of youth.
Electronic Voting Machines (EVMs) were used for the first time in selected constituencies of Rajasthan, Madhya Pradesh and Delhi but Goa was the first state where the EVMs were pressed into operation in one go in 1999. Adjournment of elections in the event of booth capturing.

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l2016022977872Budget MAY be presented before polls

The Union Budget is scheduled to be presented on February 1, 2017 three days before voting starts in five Indian states going to the polls from February 4 onwards. The advancement of the budget from February 28 to February 1 has supplied political ammo to the opposition parties, which are alleging the ruling dispensation of bribing the voters by splashing populist sops, MCC notwithstanding.

Union Finance Minister Arun Jaitley has already hinted at lowering taxation slabs, ostensibly to balm the post-demonetisation pains. The merger of the railway budget with the general budget is also likely to further provide relief to regular commuters. Jaitley argues that the governance at the national level cannot be deactivated only on this account, quoting “…even in 2014, the budget was presented before the poll”. But, he needs to be reminded that in 2012, on the contrary, the budget was postponed when the assembly elections were held.

The Prime Minister has also defended that the advancement of the annual budget would enable the transfer of funds at the beginning of the fiscal, which would have a bearing on the growth of the economy.

It would be interesting to watch who blinks first. Whether the Union Government succumbs to the pressure or the opposition reconciles or the EC flexes its muscles to act tough or the matter is dumped at the SC’s door for adjudication.

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1996
The contesting candidates were categorised as those from recognised parties, registered non-recognized parties and Independents. Their names in ballot paper were to be arranged in the above order and in alphabetical order inter se.

A person was debarred from contesting elections for six years to the Parliament or state legislature under the Prevention of Insults to National Honour Act, 1971.

Prohibition on sale of liquor in polling area 48 hours prior to the date of polling. Punishment of imprisonment up to six months or fine up to 2,000 or both was stipulated. The number of proposers for a non-recognized party candidate was fixed at 10 and for a recognised party at one.
In case of death of a candidate of a recognized political party before the date of polling, the elections were not to be countermanded as was the practice before but seven days’ time was given to propose another candidate.

Bye-elections were to be held within six months of occurrence of the vacancy in any house of parliament or state legislature. But this condition was not applicable in two cases: when the remainder term of the member whose vacancy is to be filled is less than one year, and when the EC in consultation with the Centre holds that it was difficult to hold elections within the stipulated period.

Besides open ballot system, requirement of domicile or residency of a candidate contesting for Rajya Sabha was introduced

A paid holiday on the day of polling.

A candidate would not be eligible to contest from more than two parliamentary or assembly constituencies at a general election or at the bye-elections which are held simultaneously. Similar restrictions were imposed for biennial elections and bye-elections to the Rajya Sabha and state legislative councils. Prohibition of arms in the premises of the polling station and exemption to returning officer, presiding officer and police staff. Its breach was considered as a cognizable offence leading to imprisonment upto two years besides the cancellation of arm license. The gap between the last date for withdrawal of candidature and the polling date was reduced from 20 to 14 days.

Number of proposers and seconders for a Presidential election was raised from 10 to 50 and that of Vice Presidential election from 5 to 20. Security deposit was also raised from 2,500 to 15,000.

Number of proposers and seconders for a Presidential election was raised from 10 to 50 and that of Vice Presidential election from 5 to 20. Security deposit was also raised from 2,500 to 15,000.

1998
The employees of local authorities, Government undertakings could be requisitioned for deployment on Election Day.

1999
Provision of postal ballot for a notified class was made.

2003
Facility to vote through proxy to the defence forces and members belonging to a force to which provisions of the Army Act apply. Such service voters would, however, give prior intimation to the concerned returning officer.

Candidates contesting elections to parliamentary constituency or state assemblies are expected to furnish the following details in the nomination paper:

Whether the candidate was convicted or acquitted or discharged of any criminal offence in the past? Whether the candidate was imprisoned or fined?

Whether the candidate was accused in a pending case of any offence punishable with imprisonment for two years or more, prior to six months of filing his/her nomination. Declaration of assets (all kinds and dependents’ assets too) and declaration of liabilities too. Educational qualification. Giving any false
information in this respect constitutes an electoral offence punishable with imprisonment upto six months or fine or both. Requirement of domicile or residency of a candidate contesting polls to Rajya Sabha was introduced, besides open ballot system.

Travelling expenditure incurred by campaigning leaders was exempted from being included in the election expenses of individual candidates.Free supply of electoral rolls and specified items to candidates of recognised political parties.

Political parties were made free to accept contribution from any individual or a company other than public companies. It was also exempted from taxes. However, any amount exceeding Rs 20,000 was to be reported to the EC. Allocation of electronic media was made to recognised party candidates.

2009

Restriction on exit polls with punishment of imprisonment up to two years or fine or both in the event of breach.

Time limit of three months was given to specified authorities to investigate the cases for disqualification on account of corrupt practices which was to be reported to President or Governor as the case may be.

The security deposit for a candidate contesting election to Lok Sabha was increased from 10,000 to 25,000 for general candidates and 5,000 to 12,500 for SC/ST candidates. Likewise, the security deposit for a candidate contesting election to state legislative assembly was also increased from 5,000 to 10,000 for general candidates and from 2,500 to 5,000 for SC/ST candidates.

2010

A provision was made to confer voting rights on the citizens of India residing outside the country.

2011

The ceiling on election expenditure increased to 40 lakh for bigger states and for other states or UTs it ranged between 16 lakh to 40 lakh for a Lok Sabha constituency and for state legislative assembly it was increased to 16 lakh in bigger states and between 8 lakh to 16 lakh in smaller states or UTs.

2013

None of the Above (NOTA) option debuted in general elections to state assemblies of Delhi, Rajasthan, Madhya Pradesh, Chhattisgarh and Mizoram.

Model code of conduct

Model code of conduct (MCC) has been evolved by the EC to provide a level-playing field for all stakeholders, providing ‘do’s and don’ts’ for them. With the announcement of poll schedule by the EC, model code of conduct comes into play with immediate effect for political parties and the candidates. The first MCC came on the eve of fifth general elections held in 1971. It has been revised from time to time ever since then. The MCC also prohibits a minister or other authorities from announcing  any financial grant, laying foundation stones of projects, making promises of any kind, carry out any appointments in government and public undertakings, which may influence voters in favour of the ruling political party.

For example, during the 2003-Himachal Pradesh Assembly elections, the EC had issued directed the political parties to abstain from the use of plastic and polythene for preparation of posters and publicity material. But the political parties, particularly the BJP and the BSP, put up a large number of saffron and green publicity flags made of polythene.

Similarly, during the 2002 Punjab Assembly elections, the Congress unleashed an aggressive advertisement campaign against the Chief Minister Parkash Singh Badal and his son, accusing them of corruption and bartering away the interests of Punjab. The Akali Dal too hit back with vengeance against the Congress leaders. The EC clarified that under the MCC, personal allegations couldn’t be allowed, though criticism of policy decisions and performance was permitted. Likewise, the EC held Modi and Sonia Gandhi responsible for violation of the MCC for making controversial remarks during polls campaign in the 2007 Gujarat Assembly polls.

EC intervened to clarify that personal allegations couldn’t be allowed though flaying policy decisions was permitted

CONCLUSION 

Despite landmark judgements delivered by the SC and efforts by the EC, the system continues to be prone to mischief. To stamp out these tendencies, there is a need to strengthen the EC to punish errant politicians and defiant political parties. Maintaining the sanctity of electoral process requires a multi-pronged approach, including removing criminal elements and money bags in politics, disposing poll petitions, introducing internal democracy and financial transparency in the functioning of the political parties, and regulating opinion polls and paid news.

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