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Monday, August 9, 2004

On July 30, the Election Commission (EC) sent several proposals for electoral reforms to the Prime Minister, Dr.Manmohan Singh. The EC sent a total of 22 proposals. It is important for all thinking citizens to be informed of these proposals, and to participate in the public debate on the subject.

Many of the recommendations of the EC are of a technical nature, which have no serious bearing on the nature of elections. For instance, the EC proposed changing the format of the various affidavits to be filed by the candidates in order to have a single affidavit. Similarly, the EC proposed more stringent punishment of two years’ imprisonment for willful concealment of information or furnishing wrong information. The security deposits of candidates are proposed to be doubled – to Rs. 10,000 for Legislative Assembly, and Rs. 20,000 for Lok Sabha. Also surrogate advertisements are proposed to be banned so that the expenditure ceilings for elections can be effectively implemented. The District Collectors, who are also District Election Officers, are proposed as appellate authorities on voter registration, instead of the Chief Electoral Officer in the state. Another proposal is to make it mandatory for political parties to maintain accounts and get them audited, and make the audited accounts public. Government sponsored advertisements are proposed to be banned for a period of six months before a general election. The EC proposes common electoral rolls for all elections – local, state and national. (Andhra Pradesh is the first state to implement this). Another proposal is to make any false declaration before election officials a criminal offence. Most of these recommendations are reasonable, and there should be no problem in acting on them.

There are several other recommendations that seek to strengthen the Election Commission, or give it a greater role in certain matters. One proposal seeks to give the other Election Commissioners the same status and protection which is available under Article 324 (5) to the Chief Election Commissioner (CEC). At present, the Constitution prescribes that the CEC cannot be removed from office except in like manner and on like grounds as a Judge of the Supreme Court. In other words, the CEC can be removed only by an impeachment motion which is carried in both Houses of Parliament with two-thirds majority. However, the other Election Commissioners can be removed by the President on the recommendation of CEC.  The EC now suggests a constitutional amendment to give the same protection to other commissioners as provided to the Supreme Court Judges. While this recommendation is sound  in principle, it may be unnecessary to resort to a constitutional amendment for this purpose. We have established sound traditions of independence of the EC, and it is unlikely that any government will attempt to remove an Election Commissioner for partisan reasons, or any CEC will oblige a government by capriciously recommending such removal. The EC also recommended an independent secretariat to the Commission. This is also a mere formality, as the Election Commission Secretariat does function independently now. Similarly, the EC proposes to make the expenses of the Commission charged to the consolidated fund of India, on par with other constitutional authorities. A Bill pending before the 10th Lok Sabha to this effect lapsed.

The EC also proposes that no transfer of officials should be allowed during six months prior to the general election without its prior consent. Similarly, all officials in connection with conduct of elections are sought to be included in clause (7) of Section 123 of the Representation of the People Act, 1951, so that obtaining the help of any of them would become a corrupt electoral practice under law, and an election can be set aside on that ground. The EC proposed that all disqualifications under the anti-defection law (Tenth Schedule of the Constitution) should be decided by the President (for MPs) or Governor (for MLAs and MLCs) in consultation with the Election Commission. At present, the Speaker or Chairman has the power, and such power has been exercised in a partisan manner on several occasions. Articles 103 and 192 of the Constitutions provide for post-election disqualification of legislators on other grounds to be decided by the President or Governor in consultation with the Commission. Such a procedure for acting under anti-defection law is certainly desirable, and the parties and government should respond positively.

One important proposal is that once a person is found guilty of corrupt practices by the High Court, the Election Commission officials should be empowered to initiate action for disqualifying such a person. Now, the Secretarial of the concerned House sends a proposal to the President or Governor, who in turn will act in consultation with the Election Commission. Obviously, the Presiding Officers have been often acting in a partisan manner and delaying action. Therefore, this is a sound recommendation. The EC also proposed that the power of making rules under electoral laws should vest in the Commission (instead of the Union government), which will exercise them in consultation with the government. The EC also proposed that it should be empowered to deregister political parties, which are non-functional.

As can be seen, most of the recommendations mentioned above are reasonable, and the government and parliament should act swiftly and positively on them. But there are five substantive recommendations which need closer examination. The first such recommendation is to the effect that negative or rejection voting should be permitted by inserting a column ‘none of the above’ on ballot paper. In extreme cases where no major party puts up a desirable candidate, the voters can reject all the candidates. Such a provision will have moral and persuasive power, and will hopefully make parties nominate desirable candidates. But such a negative vote will be effective if the law is amended to make a reelection mandatory if negative votes exceed 50 percent of all votes polled, and in such a case the candidates earlier nominated shall be prohibited from contesting in the reelection. Such reelections will be very rare, but the provision for negative voting will certainly make parties more sensitive to public opinion.

The second substantive recommendation is to allow candidates to contest from only one seat. Earlier, candidates were allowed to contest from four constituencies, and now they can contest from a maximum of two constituencies. If a candidate is elected from both seats, he / she will have to vacate one of them, causing an unnecessary bye-election at huge public expense. The Commission’s recommendation is fair and reasonable.  The Commission proposes that a candidate should be permitted in only one constituency at a time, and if for some reason the parties are not willing to amend the law in such a manner, a candidate who vacates a seat after winning two seats should pay the government the cost of conducting the bye-election.  This recommendation should be accepted without delay.

The third substantive issue relates to cable and television advertisements.  The Election Commission earlier banned such advertisements on the ground that the rules under the Cable Television Network (Regulation) Act prohibit Political advertisements.  Such a ban was clearly unconstitutional and unwarranted on two grounds. First, it was a clear violation of freedom of speech on a vital issue of democratic choice in elections.  Second, the election law has been amended in September, 2003 to actually provide free broadcasting time on private and government channels.  This is not implemented because the government failed to make rules to prescribe the procedure for such allocation of time.  The Election Commission now suggests that the Rules should be amended to provide for suitable advertisement code and monitoring mechanism.  Here the Election Commission failed in its duty.  What is required is to implement the 2003 law, and provide free time to recognized parties on television.  For such allocation, there can be a suitable code and monitoring mechanism.  Therefore, this issue needs to be examined in an integrated manner, and the law providing for opportunity to reach out to people free of cost must be implemented forthwith.  Only then will honest candidates without money power be able to effectively communicate their message to voters.

The fourth major recommendation is to impose restrictions on exit polls and opinion polls.  The Election Commission’s point is valid that opinion polls too close to the poll, or exit polls until all the election process is completed will unduly influence the electorate, and therefore should be restricted.

Finally, the Election Commission proposed disqualification of all persons who are charged with offences punishable by five years imprisonment to be disqualified from contesting, until they are cleared of those charges.  While such a provision should be considered seriously, the Election Commission’s proposal is too sweeping.  Many persons charged with trivial offences may be disqualified. We do need to disqualify candidates facing charges; but it should apply only to extremely grave charges like murder, terrorism, abduction, rape, dacoity etc. I will discuss this in greater detail in the next issue.

Though the Election Commission made many recommendations, and most of them can be implemented quickly, they will not change the nature of our politics or quality of governance.  Real improvements in governance are possible only when our electoral system and functioning of political parties are transformed.  But these proposals can be implemented while a consensus emerges on the larger, more fundamental reforms of the electoral system.