By Inderjit Badhwar

Newspaper editorials, public interest bodies, educational institutions and good governance advocates periodically issue calls for electoral reforms, but most of them fade from public attention until the next election comes along. Actually some of the very best proposals—most of them still languishing—have come from the Law Commission of India. This august executive institution was established in 1955 and is appointed every three years to advocate reforms which would help the country maintain its legal robustness under the constitution and the rule of law.

Unfortunately, the Commission has no independent authority with legislative teeth and functions as an advisory body to the Ministry of Law and Justice. The ministry, being a political entity, is not bound to heed recommendations if it finds them politically unpalatable. So most of the suggestions wind up gathering dust.

It is with this in mind that I feel it fit to rake up the Twentieth Law Commission’s Report No 255 which focused squarely on electoral reforms. These reports may lack enforcement teeth but they will certainly gather moral force and catalyse public opinion if they are regularly dinned into the public conscience by the press. This particular one made comprehensive recommendations for changes in the law, following a Supreme Court of India order, (Public Interest Foundation & Others V. Union of India & Anr- Writ Petition (Civil) No. 536 of 2011), and directed the Commission to make its suggestions on two specific issues: curbing criminalisation of politics and needed law reforms; and impact and consequences of candidates filing false affidavits. After a year of deliberations, the Commission headed by Justice AP Shah submitted its report on February 24, 2014. It made several recommendations of which these are still the most significant and relevant:

• Section 182(1) of the Companies Act, 2013 should be amended to require the passing of the resolution authorising the contribution from the company’s funds to a political party at the company’s Annual General Meeting (AGM) instead of its Board of Directors. These accounts will fully and clearly disclose all the amounts received by the party and the expenditure incurred by it. A new section 29E to be inserted in the Representation of Peoples Act (RPA) requiring the ECI to make publicly available, on its website or on file for public inspection on payment of a prescribed fee, all the contribution reports submitted by all political parties.

Unfortunately, the Law Commission has no independent authority with legislative teeth and the law ministry is not bound to heed its recommendations.

• Express penalties, apart from losing tax benefits, should be imposed on political parties vide section 29G for the non-compliance with the disclosure provisions of proposed Section 29D of the RPA. This should include a daily fine of Rs 25,000 for each day of non-compliance, with the possibility of de-registration if the default continues beyond 90 days. Further, ECI may levy a fine of up to Rs 50 lakh if its finds any particulars in the party’s statements as having been falsified.
• A new Chapter IVC should be inserted dealing with the “Regulation of Political Parties” and incorporating the Commission’s previous recommendations in its 170th Report with certain modifications. New sections will deal with internal democracy, party constitutions, party organisation, internal elections, candidate selection, voting procedures and the ECI’s power to de-register a party in certain cases of non-compliance.
• The Tenth Schedule of the constitution should be suitably amended to vest power to decide questions of disqualification on the ground of defection with the president or the governor, as the case may be, (instead of the Speaker or the Chairman), who shall act on the advice of the ECI. This would help preserve the integrity of the Speaker’s office.
• The ECI should be strengthened by first, giving equal constitutional protection to all members of the Commission in matters of removability; second, making the appointment process of the Election Commissioners and the CEC consultative; and third, creating a permanent, independent secretariat for the ECI.
• The issue of paid news and political advertisements should be regulated in the RPA. Such practices should be curbed by creating an electoral offence of “paying for news”/“receiving payment for news” in a newly inserted section 127B of the RPA. “Not only would this provision make paying for news/receiving payment for news penal, the stringent punishment will ensure that if the candidates themselves are found guilty, then, in all likelihood, they will be disqualified pursuant to section 8(3) of the RPA.
• In order to curb the practice of disguised political advertisement, disclosure provisions should be made mandatory for all forms of media. The purpose of disclosure is two-fold; first, to help the public identify the nature of the content (paid content or editorial content); and second, to keep track of transactions between the candidates and the media. Thus, a new section 127C should be inserted in the RPA to deal with the non-disclosure of interests in political advertising. The ECI can regulate the specifics of the disclosure required.
• The regulation of opinion polls is necessary to ensure that first, the credentials of the organisations conducting the poll are made known to the public; second, the public has a chance to assess the validity of the methods used in conducting the opinion polls; and third, the public is made adequately aware that opinion polls are in the nature of forecasts or predictions, and as such are liable to error. Consequently, new sections 126C and 126D should be inserted in the RPA.
• The trial of election petitions by the election bench of the High Court should be expedited by providing for daily trial; minimising adjournments, with the possibility of imposing exemplary costs; a time limit of 45 days to file a written statement, with a further extension of 15 days, after which such right shall be forfeited.
• Appeals to the Supreme Court should now only be on the basis of a question of law, instead of the earlier provision permitting questions of fact or law as grounds for appeal. This appeal should be filed within 30 days of the High Court’s order, although an extension of a maximum of 30 more days can be granted, with nothing thereafter. The Supreme Court should try and conclude the appeal within three months from the date of appeal.
• Amend section 33(7) of the RPA, which permits a candidate to contest any election (parliamentary, assembly, biennial council, or bye-elections) from up to two constituencies. In view of the expenditure of time and effort; election fatigue; and the harassment caused to the voters, section 33(7) should be amended to permit candidates to stand from only one constituency.
• Independent candidates be disbarred from contesting elections because the current regime allows a proliferation of independents, who are mostly dummy/non-serious candidates or those who stand (with the same name) only to increase the voters’ confusion. Thus, sections 4 and 5 of the RPA should be amended to provide for only political parties registered with the ECI under section 11(4) to contest Lok Sabha or Vidhan Sabha elections.

Here’s a final note from the Commission that sums up the fate of this tough, no-nonsense report: “Justice Shah further said that after the submission of Report No. 244, the commission circulated another questionnaire to all registered national and state political parties seeking their views on ten points, the response received was not very encouraging, though.”

—Inderjit Badhwar is Editor-in-Chief, India Legal. He
can be reached editor@indialegallive.com