Dialogue  July-September,  2012, Volume 14 No.1

Electoral Reforms : Role of Election Commission and its Functioning

N. K. Singh, IPS ( Retd.)

The writer has been in active politics for over15 years now and has contested Lok Sabha elections thrice, though, unsuccessfully, but, none the less, vigorously. Earlier he was in police service for 34 years and has had experience of law enforcement, as District S.P, in elections, in 1962 and then 1972. What is written here is, therefore, based on ground experience, legal text and important judicial pronouncements on electoral laws and practices.

An electoral process through which the people give their verdict is integral to democracy. Inaugurating the third conference of heads of election management bodies of the SAARC countries on April 30, 2012, in New Delhi, Chief Election Commissioner, S. Y. Qureshi, put it succinctly, when he said that "democracy, elections and voting were connected by a single thread, and together they help in the emergence of a responsive moral society that avoids coercion and force. …. They also allow people recurrently to choose their own leaders and determine their own destiny. It is, however, imperative that people’s verdict, is free from any form of exterior influences."

Under our system of parliamentary democracy, the government of the day must enjoy the support of majority members in the Lok Sabha ( house of the people), to which they are directly responsible. Similar is the constitutional position in states. Fundamental rights, like, (i) right to equality, (ii) right to freedom, i.e., freedom of speech, protection of life and personal liberty, (iii) freedom of religion, etc. are justiceable. The citizens can approach the Supreme Court, for enforcement of these rights. The constitution has provided for adult franchise and all adults above the age of 18, have been given the right to vote ( Art 326). Art 325 of the constitution specifically prohibits any discrimination in this regard, on the grounds of religion, race, caste, sex etc.

Our constitution provides for an independent body to hold elections in the country. The Election Commission of India has been made a constitutional body and accorded an independent status in matters of conduct and holding of elections. Under article 324 of our constitution, superintendence, direction and control of elections to the Parliament, and to the state legislatures and to the elections of the office of the President, and the Vice-president, are vested in the Commission. Article 329 of the constitution bars the courts, except in certain specified areas, from interfering in the conduct of the elections by the Commission. Holding elections in India of over one billion people, which will be equal to holding elections simultaneously in Europe, the USA, Canada and Australia is no easy task. And holding it in a fair and free manner is both stupendous and daunting task. Over the period, the strength of the Election Commission has been augmented and it is a 3-member body now. The founding fathers of the constitution also provided for adequate safeguards to enable the Commission to act independently. Under article 325 (5), the Chief Election Commissioner, (and other two Election commissioners also) are removable from office only in the manner provided for the Judges of the Supreme Court and their terms of service can not be changed during their tenure.

We have had the first general elections in 1952 on the basis of adult franchise, which was largely peaceful and fair. It was, undoubtedly, a bold venture. The prophets of doom, both inside and outside the country proved to be wrong. Well-known editor of the day, C.R. Srinivasan, is quoted by historian, Ramchandra Guha, describing 1952 elections as ‘the biggest gamble in the history’. The journal of Rashtriya Swayamsewak Sangha , Organiser, had prophesised that Prime Minister, Jawahar Lal Nehru "would live to confess the failure of universal adult franchise in India". The RSS was echoed by a British member of the Indian Civil Service, who claimed that "a future and more enlightened age will view with astonishment the absurd farce of recording the votes of millions of illiterate people". 1952 elections changed all these. The entire western world acknowledged our commitment to democracy. The News Chronicle of London wrote: "They have shown triumphantly that democracy is no dark mystery of which western countries alone have the secrets." On March 4, 1952, the leading newspaper of Germany, Frankfurter, known as Times of Germany, wrote an editorial, under heading, : ‘Ray of hope for India’. It said, with the exception of Nehru, every other living statesman would have shrunk away from holding elections on the basis of adult franchise—Chinese Marshal, Chiang Kai Shek never had the courage to face such an experiment. The editorial then added, : Nehru’s experiment at the democratic process and triumph was ‘more overwhelming than of any other statesman of our day’.

But after some years, say, in 70s, things started deteriorating. Today, there is lot of cynicism even about survival of democracy in the country. Luckily, however, of late, there have been perceptible healthy changes in people’s attitude. They are getting more and more involved with democratic process. This is reflected in high percentage of polling now. But much more need to be done. Parliamentary democracy would be a farce, if the process to elect the representatives of the people, be it at the state level or at the central level, was not totally free and fair. United States of America is the oldest democracy in the world and yet the fight continues to keep the electoral process free from malefic influences, Recently, President Barrack Obama said, "what we are facing is no less than a potential corporate takeover of our elections….. This should not be a Democratic issue or Republican issue, This is an issue that goes to whether or not we will have a government that works for ordinary Americans – a government of, by, and for the people. That is why these reforms are so important and that is why I am going to fight to see them passed into law."

In fact, of all the political reforms being talked about today, Electoral Reforms are perhaps the most important ones. These can effectively check the use of ‘money power’ and ‘muscle power’ which have, over the years, tended to vitiate the entire electoral process and making things easy for corrupt and criminal elements to enter law-making bodies and seats of power, both at the centre and in states. Let it be clearly understood that democracy is all about elected representatives now. Days of City States and direct democracy are gone. All these recent talk of people’s direct participation in making of law is unpractical and humbug. It is the people’s representatives who run the government. It is imperative, therefore, that right people are sent to the Parliament and state Legislatures. The people, therefore, must be helped with effective electoral reforms, and stringent electoral laws.

Over the years, some reforms in the electoral process have already been put in place:

The Election commission has direct and specific responsibility under the constitution, to prepare genuine electoral rolls for all eligible voters. There were numerous complaints about inclusion of bogus names in the list or exclusion of the names of genuine voters. To get over this problem and prevent voting by proxy, the possession of photo-identity cards has been made compulsory.

Started on experimental basis, after fine-tuning, it has now been made universal and compulsory. All authorized representatives of candidates are given demonstration and allowed to inspect the machines, before commencement of the polls. These are sealed, thereafter.

3. Restrictions on publicity: On the basis of consensus reached in all-party meeting, the Commission has, laid down ‘Model Code of Conduct’, for the parties and candidates and introduced stringent curbs on ;

4. Installation of close-circuit cameras and Video-recording of voting process at the polling booths.

This device is of recent origin and needs to be further fine-tuned. It was tried, largely successfully, during the assembly elections held in Bihar in November, 2005. It can act as an effective check to detect mal-practices at the booths and for identification of miscreants.

There can be no true commitment to democracy unless political parties have a transparent system of elections in a free and democratic way. This innovation is of recent origin and is yet to be fully implemented. None-the-less, a beginning has been made, which is a welcome development.

The political parties are given recognition by the Election Commission, under Election Symbols (reservation and allotment) Order, 1968. In a recent judgment, the Supreme Court upheld the ultimate authority of the Commission to lay down criterion to determine the status of the parties.

It has now been raised to 40 lakhs from earlier 25 lakhs and 10 lakhs for Lok Sabha and assembly elections respectively. On the basis of his own experience while contesting Lok Sabha elections thrice in 1998, 2004 and in 2009, the writer can say that even the earlier ceiling of 25 lakhs for Lok Sabha election was adequate to meet the genuine expenditure. I am of considered view that huge money is required not for fighting elections but for corrupting them and perverting the process. He also does not buy the argument that rising expenses in fighting elections, is one of the causes of growing political corruption It is more of an excuse than a cause. It is like putting the cart before the horse. In fact, those who make money through corrupt practices and acquire enormous resources are corrupting the elections. Combating corruption, therefore, should be the first step to check electoral mal-practices, of course, with curbs on expenses on election simultaneously continuing. Indrajit committee on State funding of elections (1998) made suggestion for at least non-cash partial funding. This has not found acceptance so far. So also repeated suggestion for making the donation by corporate houses legal and transparent.In addition, some of the following measures, also in place, needed to be fine-tuned:

Some of these factors continued to plague the election process, particularly, in northern states, say, Bihar, UP, Haryana, to name a few glaring ones. But, ironically, it was in Bihar that things looked up, for the first time, when the Commission was able to ensure a completely free and fair poll in the elections to the Bihar assembly held for the second time in November, 2005. In fact, it should be an interesting subject matter for case study, as to how this sea-change took place, only in about a year’s time. The first thing that struck was sudden fall in average percentage of polling roughly from about 60/61 % to 45/46%. We checked up in our area and found that those present had, in fact, participated in large numbers. But the villages were almost half-empty. This was all because of large exodus of the labour-class and youths to different places in the country for jobs and work. In earlier elections, apparently, the gap was filled-up by bogus voting, which had now stopped. But how this free and fair poll? Was it because of the presidential rule, Buta singh, not withstanding, with honest bureaucracy asserting itself or presence of Election Commission officer K.J. Rao, with the Election Commission backing him to the hilt or a determined people who had decided for a change ?

In recent years, through some of its landmark judgments, the Supreme Court has set at rest certain ambiguities, if at all there was any, which were sought to be misused to scuttle the existing constitutional provisions and laws. These provisions and sections of law are given below.

First case in which the supreme Court intervened was of Tej Prakash Singh, son of the slain Punjab Chief minister, Beant Singh. In 1996, Tej Prakash was inducted in the Punjab Government as Minister, without being a member of the legislature,. To scuttle the requirement that he should become a member of a house within six months, in a most blatant and vulgar misinterpretation of the constitutional provision, he ceased to be a minister and then was reinducted and sworn-in as such. In August, 2001, Supreme Court bench, headed by Chief Justice, A.S. Anand firmly ruled that a non-member of a legislature can not continue to occupy ministerial post beyond six-month period, if he or she failed to get elected to the house within that period of six-month. The Court made it crystal clear that art. 164(4) of the constitution was only in the nature of an ‘exception’ and meant to be used in extra-ordinary situation. The standard rule was that only members of the legislature can become a minister. The Court gave a firm blow, to quote its own words, ‘the seductive temptations of clinging on to office regardless of constitutional restraint.’

Only about a month later, on September 21, 2001, the highest court pronounced another verdict, settling similar issues of huge significance, in Mrs. Jayalalithaa’s case. She was sworn-in as the Chief Minister of Tamilnadu, on May 14, 2001, by the Governor, Mrs. Fathima Beevi, even though on that day, she stood convicted in Tansi corruption case, carrying a punishment of more than two years. She was, thus, disqualified to contest elections under section 8(2) of the Representation Act. Her appeal against the conviction had been admitted by a competent court, which had kept the sentence of punishment suspended. The appointment as Chief minister was sought to be justified on the grounds, that (a) a person could be made a Minister without being a member of a house of the legislature for six months under art 164(4) of the const., (b) once the conviction and sentence were stayed, the disqualification under representation act also stood stayed, and that (c) in a democracy, an overwhelming people’s mandate should be respected. The Supreme Court categorically and firmly rejected all these contentions and quashed the appointment of Smt. Jayalalithaa as Chief Minister. Holding that her appointment ‘was not legal and valid,’ Chief Justice S.P. Barucha, speaking for himself and Justice Y.K.Sabharbal said, ‘We are satisfied that in the appointment of Ms. Jayalalithaa as Chief Minister there has been a clear infringement of…. constitutional provision …’ and then clarified that a ‘non-legislator could be made Chief Minister or Minister under art. 164 only if he/she had the qualification to become a member of the legislature, as enshrined in art 173, as was not disqualified by reason of the disqualification set out in Article 191.’ The court also held that ‘a person who is convicted for a criminal offence and sentenced….can not be appointed the Chief Minister of a state under art. 164(I) read with (4) and can not continue to function as such.’ Rejecting the argument of presumption of innocence till disposal of appeal, the Court said, ‘ when a lower court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates and the accused has to undergo sentence…. In many cases, the accused is released on bail so that the appeal is not rendered infructuous, at least in part, because the accused has already undergone imprisonment.’ The court held that the ‘conviction and sentence it carries operates against the accused in all their rig-our until set aside in appeals’ and the disqualification attached ‘to conviction and sentence’ very much applies. The court observed…. ‘it is difficult to conceive that a person who is not an elected member, does not posses even the minimum qualification of for being chosen as a member, could be appointed as a Chief Minister or a Minister.’ On the repeated assertion of K.K.Venugopal, counsel for Jayalalithaa, during the hearing, that the will of the people must be respected, the bench comprising Chief Justice, S P Bharucha, Justice, G B Pattanaik, Justice Y K Sabharwal, Ms. Justice Ruma Pal and Justice Brijesh Kumar, said ‘ We are not concerned with the mandate of the people. The Constitution is supreme. That is what we are interpreting, not the people’s mandate.’ When Mr. Venugopal persisted that disqualification of Ms. Jayalaithaa will go against the will of the people which was supreme in democracy, the bench said, ‘Please consider what you are saying—that regardless of ‘conviction’ she (her party) has won the election. Today, it is a question of sentence of two to three years. Tomorrow, it may be sentence of murder. Are we left with no standards at all.’ The court finally ruled that the will of the people prevails if it is in accordance with the Constitution. Ms. Jayalalithaa, it may be added, was restored as Chief Minister, after she won the appeal and the conviction order was set-aside by the appellate court. The orders of the Supreme Court, none-the-less, settled the following laws,:

Of far reaching significance has also been the intervention of the Supreme Court in giving real substance and meaning to right of vote by enlarging its scope. On May 2, 2002, the Supreme Court, gave orders directing the Election Commission, to make it compulsory for candidates, contesting parliamentary and assembly elections to furnish certain personal details and set the deadline of July 2 for compliance. The Court had stressed in its judgment, that knowing more about the candidates in the electoral fray may afford an opportunity to the ‘little man’, (voter) to think things over ‘before making a choice of electing law breakers as law makers.’ In one of the stinking observations of misuse of money power in elections and for retaining power with the help of black money, the highest court said,

"….elections in the country are fought with the help of money power, which is gathered from black money, and once elected to power, it becomes easy to collect tons of black money, which is used for retaining power and for reelection." At another stage, the court said, " The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted."

The Election Commission, in turn, asked the central govt. to take necessary measures to implement the directive of the Supreme Court. After government failed to initiate measures to that effect, and with deadline date of July 2 approaching, the Commission was left with no choice than to act itself and issued directives, making it mandatory for candidates to provide details about their financial status, their criminal record, if any, and their educational qualifications. On July 8, 2002, an all-party meeting of leaders of 21 parties unanimously rejected the directive of the Election Commission, requiring the candidates to furnish certain antecedents with nomination papers and instead asked the government to come out with a comprehensive bill to address the issue of criminalization of politics. It was the job of the Parliament to make laws and not of the court or election commission, they said. They asserted that the Election Commission or the Supreme Court, by this action was, usurping the law making power of the Parliament, an assertion which was totally mis-placed because no new law had been made. In the light of Supreme Court’s guidelines and after the government had failed to act in time, the Commission, through its directive was only making the election process more transparent and extending to the voters their basic right of information, under Art. 19(1) of the Constitution.

When elections to J&K assembly approached, the government, fortified with the views of all-party of August 2, 2002, decided to promulgate an ordinance, doing away with the need by candidates to file affidavits regarding criminal records and possession of assets at the time of filing nomination papers, and stipulating in stead that elected members would file their assets statements before the presiding officer of the house to which one was elected. The President ultimately, after the cabinet resubmitted it, accorded his assent to the ordinance, which was followed by Representation of People’s (amendment) Act, nullifying, in so many words, the May 2, 2002 orders of the supreme court, requiring the candidates to furnish declarations regarding their criminal records or absence of it and their assets, along with their nomination papers. Section 33B of the amended Act provided, ‘not-with-standing anything contained in any judgment of any court or any order of Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this act or rules made there-under.’ The government and all the parties, however, were in for a rude shock. On 13, March, 2003, a three-judge bench, comprising Justice M B Shah, Justice P Venkatarama Reddy, and Justice D M Dharmadhikari, struck down the controversial provision of the amendment, by holding that portion of the amendment as ‘unconstitutional’. In a landmark judgment for electoral reforms, the court held that a voter ‘has a fundamental right to know the antecedents of a candidate’ and the right was independent of the statutory right under the election law. Further, ‘a voter is first a citizen of the country and apart from statutory rights, he is having fundamental rights conferred by the constitution.’ Conceding that the legislature is entitled to change the law with retrospective effect which form the basis of a judicial decision, the court held, ‘but, this exercise of power is subject to constitutional provisions and, therefore, it can not enact a law which is voilative of the fundamental right’. Enunciating a landmark interpretation of the rights under the Constitution, the court held that voters had fundamental right under Art. 19(I)(a) to know the antecedents of a candidate for various reasons. Justice M.B. Shah said, "right to vote would be meaningless unless citizens are well-informed about the antecedents of a candidate….There can be little doubt that exposure to public gaze and scrutiny is one of the surest means to change our democratic governing system and to have competent legislature," He wondered, whether there was any necessity to keep the voters in the dark about the murder, dacoity, or rape committed by a candidate or about his ill gotten money which could be used for elections. Justice Dharmadhikari said that the new amended act was only half-hearted attempt in the direction of electoral reforms by the government and much improved electoral system was required to make the election process both transparent and accountable so that the influence of tainted money and physical force of criminals did not make democracy a farce—the citizen’s fundamental right of information should be recognized and enforced. Welcoming the quashing of the controversial provision of the amended act, the Chief Election Commissioner, T.S. Krishnamurthy told the Hindu on March 13, 2003: "We sincerely hope that this judgment will pave the way for purity in electoral process and further strengthen democracy." Welcoming the judgment the C.P.I General Secretary, A.B. Vardhan, suggested on March, 14, 2003, that all political parties and the Parliament should ‘gracefully’ accept the judgment, which had struck down the amended electoral reforms law.

A free and fair poll, undoubtedly, reinforces people’s faith in representative government and a participating democracy. But that is not enough. The electoral system must ensure that those who get elected are not the ones, who will destroy the very system, which enables them to enter the legislatures, the Parliament and seats of power. In 1993, Vohra Committee (a Committee, comprising chiefs of concerned central police organizations and enforcement agencies, with the then Union Home Secretary, N. N. Vohra, as Chairperson) reported that there existed parallel governments in several parts of north Indian states, where mafia gangs and violent extremist elements ruled the roost and called the shots. There must be, therefore, law to prevent such elements. Law breakers should not be allowed to become law makers.

This has been engaging the attention of the Election Commission, the Law Commission and right thinking sections of political class.

Now after the Supreme Court order of March, 2003, the candidates are required to file affidavits, indicating their antecedents, along with nomination papers. But this has failed to prevent the criminals/mafia from entering Parliament and state assemblies. There is no provision for disqualification in case their affidavit is found false. Only a prosecution can be launched under section 125A of the representation act, which provides for punishment for imprisonment for a term upto six months or fine or both, for furnishing wrong information or concealing any information in Form 26. The disposal of the prosecutions in the courts of law, takes years. Some of the cases of 2004 Lok Sabha elections are still pending and the violators are merrily continuing to be members of the Lok Sabha. Those facing trials in courts, of grave crimes, including cases of corruption, carry no disqualification. Some of them are members of the Union Cabinet. A few had to resign as ministers, when the trial courts issued warrants of arrest against them, to be re inducted once they were released on bail, although they continue to face charges of murder or corruption in courts. There have been cases when some members of the Parliament have spent the entire tenure in the Jail.

The truth is that political parties across the board give tickets to winnable candidates, irrespective of their records and criminal background. In 1997, the Election Commission collected details of candidates, state-wise, who were history-sheeters, (a sheet maintained at the Police stations, containing criminal records of habitual criminals and those involved in serious crimes for surveillance, crime detection and preventive works). It read as follows, with criminal record-holders shown in the brackets. Bihar-1,448 (350), Uttar Pradesh-3,297 (520), Punjab-259(50), Jammu & Kashmir-110(30), Andhra Pradesh-1,462 (180), Assam-137(30), Rajasthan-677-(65), Maharashtra-1068(190), and Madhya Pradesh-1,046(140). Thus, some 1,555 candidates with criminal records (of heinous crimes, such as, murder, dacoity, rape, robbery, kidnapping, and extortion) entered the contest and at least 40 of them got elected. At that point of time, out of 4,120 members of the 25 state assemblies, some 700 were with such criminal records. That was the situation in 1997. Things would be far worse today. On the eve of golden jubilee year of Independence, the Lok Sabha met in a special session and passed an unanimous resolution, which inter alia, said ‘ that more especially, all political parties shall undertake all such steps as will attain the objectives of ridding of our polity of criminalization or its influences,’ It remained a pious resolution. Hardly had the ink dried on this pious resolution, on July 8, 2002, an all-party meeting of leaders of 21 parties unanimously rejected the draft, prepared by the NDA government which sought to disqualify those against whom charges had been framed in a court of law in two or more cases of heinous crimes, like, murder, rape etc. They asserted that there could be no disqualification unless a person was convicted. Coming out of the all party meeting, of August 2, 2002, Congress leader Mr. Bhardwaj (now Governor of Karnataka) reportedly justified rejection of the proposed draft bill, by saying that a bill for a ‘civil society’ was needed. … Mr. Laloo Yadav reportedly went a step further and suggested that only final convictions (i.e., upheld in the appellate court) should be taken into account, for disqualification. He cited the case of Tamilnadu Chief Minister Smt. Jayalalithaa, whose conviction ( in Tansi case ) was set aside in the appellate court. President K.R.Naraynan made specific appeal to political parties not to give tickets to persons with criminal records. The appeal fell on deaf years.

Most of the political parties are opposed to any such reform, ostensibly on two grounds, namely, (i) a person is presumed to be innocent till found guilty in the court of law, and (ii) possibility of motivated action against political opponents by the ruling party. (objection (ii) has already been taken care of by the Commission in the above proposal). The above objections can be (further) countered on the following grounds;

Consensus on this contentious issue seems difficult. The two national parties, the B.J.P. and the Congress, profess commitment. But how serious are they? They continue to field candidates with criminal background, some facing charges of grave crimes. Comparatively, C.P.I. seems to be more earnest. But majority of the regional parties are likely to oppose. There is one silver lining, however. Times have changed. Movement led by Anna Hazare, not-with-standing some wrong moves and utterances of some of the team members, admittedly, has aroused, in a big way, people, especially, youth not against not only corruption, but also need to prevent ‘corrupt’ and ‘criminals’ from entering Parliament and state Assemblies. There is new awareness. If Lokpal bill can not be delayed for long, so is the case of proposals which have come from the Election Commission of India to disqualify those, facing charges of serious crimes in court of law from contesting elections. People, by and large, are not going to take it for long now.