AN UNDOCUMENTED WONDER : The Making of the Great Indian Elections

by S.Y. Quraishi

If a candidate’s expenses exceed the prescribed ceiling, this is treated as a corrupt practice under the Representation of the People Act, 1951, for which any candidate can file a case in the High Court within forty-five days of completion of elections. This practice is also punishable under the IPC. If convicted, the offending MP/MLA is unseated from his position and disqualified from contesting elections for a period of six years. However, as courts normally take a long time to decide such cases, this remedy is not adequate to curb the practice.

One such case involved the identical news report being published in two or three rival newspapers. Election officials got suspicious about how different journalists could be using exactly the same language. Thereafter, it has been noticed that is the usual pattern when a news item has been provided by the candidate and is published across different newspapers.

Tamil Nadu had earned notoriety for the practice of cash-for-votes by political parties. This was reported even in US diplomatic cables, as accessed by WikiLeaks. ‘Bribes from political parties to voters, in the form of cash, goods or services, are a regular feature of elections in south India,’ one cable noted. Another cable spoke about a particular Union minister’s winning formula. It quoted a confidante of the leader as saying that the minister was paying up to 5, 000 ($81) per voter in Thirumangalam, Madurai district of Tamil Nadu (January 2009 bye-elections). Over the years, the vicious practice has come to be referred to as the ‘Thirumangalam formula

The Council on perusal of record and the report of the Inquiry Committee held the respondent newspapers Amar Ujala and Dainik Jagran guilty of ethical violations and adopting the observations of the Inquiry Committee. It cautioned the media to refrain from publishing news masquerading as advertisements and vice versa. It also decided that adjudication along with all the case papers may be sent to the Election Commission of India for such action as deemed fit by them.

The DEO, Badayun, reported that the expenditure for these advertisements was not shown in the account of election expenditure submitted by Umlesh Yadav, nor was any intimation under Section 127A of the Representation of the People Act, 1951–, received from the publishers for the advertisements.

The Election Commission declared Ms Yadav disqualified for a period of three years for failure to submit correct accounts in the manner prescribed, under Section 10A of The Representation of the People Act, 1951*. Her appeal in the High Court was dismissed. The case is now in the Supreme Court.

The Commission took the considered view that it had undoubted jurisdiction under Section 10A of the Representation of the People Act, 1951 to go into the question of alleged incorrectness or falsity of the return of election expenses maintained by the respondent under Sections 77-1 and 77-2 and lodged by him under Section 78 of the act.

The High Court passed an interim order directing the Election Commission to stop all intrusive measures. While the Election Commission complied with the order, a few counter petitions were also filed by NGOs and the Citizens Forum for Electoral Integrity in favour of the EC’s actions and opposing the interim order of the High Court. The Forum for Electoral Integrity, led by the indefatigable Ms Devasahayam, displayed tremendous courage, which deserves appreciation. Finally, the Division Bench headed by the Chief Justice, while deciding on the public interest litigations, clinched the issue with a clear verdict that: ‘It is the duty on the part of the respondents (ECI) to see that the Elections Code of Conduct is scrupulously followed.’ The litigation greatly taxed the EC’s time and energy in the thick of election arrangements, not just in Tamil Nadu but in four other states as well, but ultimately, the Commission was able to stand its ground.

The EC was faced with a legal dilemma. Though the Election Commission is expected to conduct free and fair elections, the law does not provide any expenditure regulation during elections to the Rajya Sabha (Council of States). There is no provision for reporting expenses either by a party or by candidates. However, we could not have closed our eyes to this rampant play of money power. Therefore, we decided to refer the case to the Investigation Directorate of the Income Tax Department in Jharkhand and asked it to keep a close watch on the movement of cash on the eve of elections. The result was immediate. The next day (March 30, 2012), in the wee hours of the morning, I was woken by a phone call, telling me that cash worth 2 crore ($450, 000) had been seized by the Income Tax Department from a vehicle belonging to the son-in-law of an independent candidate.

There has long been persistent demand to ‘rationalize’ the ceiling on election expenditure to make it realistic. No consensus has emerged on what would constitute a rational ceiling. The Election Commission does not fix the ceiling. It is fixed by the government. The ECI has suggested that this power should be delegated to it so that it can rationalize the ceiling, from time to time, in consultation with political parties. This is part of pending electoral reforms proposals.

The ECI can disqualify a candidate for any discrepancy even if his/her expenses are well within the ceiling.

A political party which is not maintaining audited and authenticated accounts and has not filed the return of income for the relevant period cannot, ordinarily, be permitted to say that it has incurred or authorised expenditure in connection with the election of its candidates in terms of Explanation 1 to Section 77 of the R.P. Act’ (para No.24 Sub-para No. (5)).

Unfortunately, while the ECI registers political parties, it has no power to de-register them.

While political parties are yet to fall in line, at least the auditors can be compelled by ICAI to follow these guidelines, since violators can lose their licences.

However, the Commission strongly feels that state funding of elections is no solution to control money power, especially black money power. Instead, the ECI has been asking for amendments to laws to bring in transparency and accountability in the functioning of political parties and candidates. The EC’s attempts have been to control expenditure by candidates by strictly enforcing election laws and the Model Code of Conduct. The decision to reduce the campaign period from twenty-one to fourteen days was aimed at reducing overt and covert spending. Recent practices such as the EC itself distributing voter slips has saved parties and candidates a lot of expenditures on printing and staff, and on the facilitation counters (kiosks) they used and put up outside every polling booth.

The fact that the Anna movement whipped up public anger so much that things almost went out of hand showed how widespread the anger against corruption is. It is a mystery how the movement fizzled out. It will, however, be a mistake to rule it out in the future. The dramatic success of the Aam Aadmi Party in the Delhi Assembly elections, 2013, has demonstrated this in unmistakable terms.

A possible way out is state funding—certainly not of elections, but of political parties. This can be easily done by the state paying a fixed sum to a party for every vote secured. Thus, if a political party gets, say, one crore votes, it is entitled to state funding of 100 crore (@ 100 per vote). In the year 2009–2010 the funds raised by major national parties from all sources (including donations and contributions) were as follows: (figures in bracket indicate the percentage of funds received as donations and contributions): INC 468 cr (21%), BJP 258 cr (86%), BSP 56 cr (50%), CPM 73 cr (40%), NCP 45 cr (40%) and CPI 1.3 cr (47%)

Let me explain how this could be implemented. In the General Elections 2009, the total number of votes cast was 42 crores ($6.7 million approx.). Even if we discount the independents and presume that all these votes went to candidates of political parties, at the rate of 100 per vote, the total amount of state funding would come to 4,200 crores. Taking into account the state elections, bye-elections and mid term polls, the figure will double. With increasing voter strength and turnout the subsidy could go up to say 10,000 crores in five years. This roughly corresponds to the funds they (reportedly) collectively raise in five years through all kind of means, including dubious ones! The collection of money from corporates and anonymous donors will then be completely banned. The subsidy would be a small price to pay for bringing transparency to our political system, and free it from dependency on corporate and tainted funds and restore the dignity of our political parties and our democracy. The system may be freed from crony capitalism and backseat driving of government by big corporates and dubious financiers. Even the negative image of corporates will be salvaged.

A study of ‘Political Finance Regulations Around the World’ by International Institute of Democracy and Electoral Assistance (IDEA) (2012) in 180 countries showed that seventy-one countries have the facility of giving state funds based on votes obtained. Direct funding of political parties is practised in 86 per cent of countries in Europe, 71 per cent of Africa, 63 per cent of the Americas and 58 per cent of Asia. If it is working well in so many countries, there is no reason why it will not in India.

All of them missed the larger perspective. The facts of the matter are that some people had petitioned the Supreme Court to ask the UP government to stop the construction of statues of the chief minister and the elephants in public parks, at public expense. It was also demanded that the elephant, as the party’s symbol, should be frozen because these statues, in their hundreds, would be a permanent advertisement for the party at public expense, disturbing the level playing field among political parties. The Supreme Court referred the matter of the party symbol to the ECI.

The Commission heard the representation to freeze the elephant symbol in its quasi-judicial capacity assisted by a battery of lawyers from both sides. It decided that it would be an extreme step to freeze the symbol, though there was a lot of merit in the complaint that a huge amount of public money had been spent in building these statues, which were in fact logos of the ruling party. I consider it desirable to reproduce the operative parts of our order. It has to be borne in mind that the BSP is a National party and the symbol ‘elephant’ is reserved for it in the whole of the country, except Assam. Before taking any decision with regard to the withdrawal of the above symbol from the party, as prayed for by the petitioners, the Commission has to carefully weigh the implications which such withdrawal of symbol may have and cause confusion in the minds of millions of electors, apart from members, supporters and workers of the party, across the country, who identify the party with its symbol ‘elephant’, on account of some action taken by one of the State Governments[…] 44. However, at the time of elections, the Commission would, no doubt, take appropriate steps and measures to see that the statutes of Ms. Mayawati and BSP’s symbol ‘elephant’ do not disturb the level playing field and give undue advantage to BSP vis-á-vis other political parties.

After all, why are even photographs of the ruling prime minister and chief ministers removed from walls of government offices before elections? Even a calendar with a picture of a serving political personality is removed!

The records of the CEO of Uttar Pradesh, however, show that the total expenditure on covering the statues was 2,23,191 in NOIDA and 66,900 in Lucknow (Total 2,90,091).

Following the EC’s censure, Salman Khurshid issued statements that apparently challenged the authority of the EC, a constitutional body, and we were confronted with an unusual situation. Contrary to general perception, criticizing the EC is not a violation of the MCC; indeed, the Code does not bar anyone from criticizing the EC. This case, however, was that of a Law Minister challenging a constitutional authority instead of upholding it. This was something unprecedented in the history of India. It would have been unworthy of the positions the three of us were holding in the EC if we had been mute spectators. We decided to take what we thought was the most appropriate action, of writing to the President of India. The President immediately referred the letter to the Prime Minister. Before the PM could react, the minister tendered an unconditional apology which the EC accepted and dropped the matter.

The fact is that the ECI feels that opinion and exit polls will interfere with free and fair elections. This is based on well-known perceptions that opinion polls in India are non-transparent, often sponsored, motivated and biased. With such infirmities, these may amount to disinformation designed to cause ‘undue influence’ which is an ‘electoral offence’ under the IPC and a ‘corrupt practice’ under the Representation of the People Act.

The demand for a ban on opinion polls was not a whimsical suo motu act by the ECI. It was the result of unanimous demands at two all-party meetings in 1997 and 2004. The only difference of opinion among the political parties was whether the ban should apply from the announcement of the poll schedule or from the date of notification.

The difference between media opinion polls and the ones that the ECI commissions is that the ECI’s surveys are not meant to mislead or fool anyone—including ourselves!—but only to give insights into how plans for voter education campaigns should be formulated. It will be fair to conclude that opinion polls would be fine if their integrity were beyond doubt. Perhaps an independent regulator, as is the practice in the United Kingdom, would be a viable option.

Open ballot voting for elections to the Rajya Sabha and voting through proxy for voters in the armed and paramilitary forces were introduced by amending the act in 2003. A provision for enrolling overseas Indian citizens in electoral rolls was made in the most recent amendment in 2011. Introducing a provision empowering the Commission to use electronic voting machines, conferring disciplinary jurisdiction over officers (including police officers appointed for conducting elections) to the Commission—these reforms have all strengthened the EC and streamlined its functioning.

the Supreme Court judgement of 1995 (Common Cause versus the Union of India and others) in which the court directed that political parties had to file income tax returns, and that the Election Commission, under Article 324, could ask parties to submit their election expense accounts to it for scrutiny. Since then, the Election Commission has been obtaining detailed election expenses of recognized political parties for all general elections to the Lok Sabha and elections to legislative assemblies. These details are put in the public domain through the Commission’s website.

Broadly, there are three sets of reforms proposed: (1) those that will reinforce the independence of the Election Commission; (2) those that will help cleanse politics; and (3) those that will make the working of political parties more transparent.

Unless the whole Commission is insulated from Executive pressures, it is always possible that the Commissioners might feel as if they were on probation and, at least theoretically, might be tempted to tow the government line and outvote an inconvenient CEC by a 2:1 majority, thus rendering him ineffective. Equally, the Commissioners should not feel threatened by the CEC.

Now, while these officers enjoy the protection of the Commission during the elections, they are left to the mercy of the party afterwards. This problem becomes acute if the injured party or candidate comes to power and chooses to be vindictive towards officers who stopped their electoral malpractices.

the Commission has recommended that there should be legal provisions banning the transfer of election officials for six months before the date of elections without consulting the EC. Even after the elections, officers may need protection for some time, say a year. If any disciplinary action is contemplated against any officer by the government, consultations with the Election Commission should be made mandatory.

(a) the Commission’s budget should come directly from the Consolidated Fund of India, as in the case of the CAG and the Supreme Court; and (b) an independent secretariat on the model of the secretariats of the Rajya Sabha, the Lok Sabha and Supreme Court Registry should be appointed for the Commission.

The law (Section 8 of the 1951 Act) disqualifies anyone who has been convicted of a crime and sentenced to imprisonment of two years or more from contesting elections. For certain specified offences, even conviction without sentence of imprisonment invites a ban on contesting election. This restriction would be acceptable our courts conducted trials and issued verdicts in reasonable periods of time. Unfortunately, our legal procedure being painfully slow, the completion of a trial in criminal cases takes long years, and persons facing trial for very serious offences often continue

Moreover, if a person already elected Member of Parliament or member of any state legislature is convicted during the period of his membership, the law (Section 8-4 of the 1951 Act) protects his membership. All he has to do is to file an appeal against the conviction order. His membership is then automatically protected for the duration of the House. During this period, the convicted member continues to be a law maker.

In a landmark judgement in 2013 (Lily Thomas vs Union of India and others), the Supreme Court declared Sec 8-4 of the Representation of the People Act, 1951, as ultra vires of the Constitution, as it violates the fundamental right of equality of all citizens. Consequently, the protection from disqualification from contesting that the legislators have been enjoying despite conviction withdrawn, stands.

the Election Commission issued an order on 28 June 2002, prescribing a format in which candidates standing for all elections were to furnish this information. This prompted Parliament to amend the 1951 Act on 24 August 2002, inserting two new sections (33A and 33B) to stipulate that candidates shall give information only on cases in which charges have been framed for offences punishable with imprisonment of two years or more and cases of conviction with sentence of imprisonment of one year or more, and that candidates were not liable to disclose any other information notwithstanding any court order or directions of the Election Commission.

In its judgement of 13 March 2003, the Supreme Court struck down Section 33B, which said that candidates were not required to furnish any information other than what was required to be furnished under the amended law. The court reiterated that information on all pending cases, assets, liabilities and educational qualifications had to be furnished by the candidates, and directed the Commission to issue a fresh order in this regard.

The Commission’s proposal was that if the court had framed charges against an accused person for an offence punishable with imprisonment for a term of five years or more, he should not be allowed to enter the election fray unless and until acquitted of the charges. The proposal was based on the proposition that framing charges would mean that the court, an independent authority, had arrived at the conclusion that there was a prima facie case against the accused person.

In 1999, the Law Commission, in its 170th report1 also recommended disqualification from contesting elections for a certain period upon framing of charges for serious offences. The National Commission for Review of the Working of the Constitution, too, in its report submitted in 2002, recommended disqualification on framing of charges with the rider that disqualification may commence after one year of framing charges.

the Supreme Court* held that the decision of registering a political party by the Election Commission is a quasi-judicial one, and in the absence of express provisions in law for de-registration, the Election Commission cannot de-register a party on complaints of its having violated its own undertaking. In a way, this is a rare case where the Supreme Court upheld a narrow interpretation of the EC’s power to register a political party and thus actually restricted the EC’s power to hold a political party accountable, thus making it toothless.

In 1996, the Election Commission conducted a review of intra-party elections among recognized parties and found many remiss on this score. The Commission sent notices to parties and directed them to complete their organizational elections within a timeline. From then on, the Commission has been monitoring the holding of internal elections in about fifty recognized national and state parties. In case a political party is not able to conduct its elections in time for any reasons, it approaches the Commission for an extension, explaining its reasons for the same. The Commission, while agreeing to extend the time, binds the party to abide by the extended limit.

The Election Commission declared eleven independent candidates in the Kadappa Lok Sabha constituency as ‘dummy candidates’ and withdrew all the privileges given to them. Of the eleven, the EC issued notices to seven. Three were found to be campaigning for Y.S. Jaganmohan Reddy of the YSR Congress party, while two others were supporting the Indian National Congress candidate D.L. Ravindra Reddy. The EC served show cause notices to both Jaganmohan and Ravindra Reddy, asking them why the expenditure incurred by these independent candidates should not be treated as their expenditure.

Once caught, dummy candidates are deprived of privileges like vehicles, nominating agents in polling booths and permission to be present at counting stations.

Before the introduction of EVMs in 1998, voters wanting to exercise the option of non-voting in secrecy would simply put a blank ballot paper in the ballot box. Some deliberately spoiled the ballot by stamping it at more than one place to make it invalid. Interestingly, many just wrote sab chor hain (they are all thieves) on the ballot. All these amounted to invalid votes. They were counted but did not impact the result.