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GS Paper: Representation Of People’s Act

  • Secrecy of Vote must in any election: SC

    The Supreme Court has again held that in any election, be it to Parliament or State legislature, the maintenance of secrecy of voting is “a must”.

    What is the Secret Vote?

    • The secret vote/ secret ballot is a voting method in which a voter’s choices in an election or a referendum are anonymous.
    • It aims for forestalling attempts to influence the voter by intimidation, blackmailing, and potential vote-buying.
    • The system is one means of achieving the goal of political privacy.

    What did the Supreme Court rule?

    • Secrecy is a part of the fundamental right of freedom of expression.
    • The confidentiality of choice strengthens democracy.
    • The principle of secrecy of ballots is an important postulate of constitutional democracy, the court said.
    • It is the policy of the law to protect the right of voters to the secrecy of the ballot.
    • Even a remote or distinct possibility that a voter can be forced to disclose for whom she has voted would act as a positive constraint and a check on the freedom to exercise of the franchise.

    Voter’s discretion is allowed

    • A voter can also voluntarily waive the privilege of non-disclosure.
    • The privilege ends when the voter decides to waive the privilege and instead volunteers to disclose to whom she had voted.
    • Nor can a complaint be entertained from any, including the person who wants to keep the voter’s mouth sealed as to why she disclosed for whom she voted said the court.

  • How poll results are challenged, and when courts have set them aside

    West Bengal CM has filed an election petition in the Calcutta High Court challenging the Assembly election result of Nandigram constituency, where she had contested and lost.

    What is an election petition?

    • The Election Commission’s role ends with the declaration of results, that is once the Returning Officer has signed the final result sheet (Form 20).
    • After that, an election petition is the only legal remedy available to a voter or a candidate who believes there has been malpractice in an election.
    • Such a person can challenge the result through an election petition submitted to the High Court of the state in which the constituency is located.
    • Such a petition has to be filed within 45 days from the date of the poll results; nothing is entertained by courts after that.
    • Although the Representative of the People Act of 1951 suggests that the High Court should try to conclude the trial within six months, it usually drags on for much longer, even years.

    On what grounds can an election petition be filed?

    Under Section 100 of the RP Act, an election petition can be filed on the grounds that:

    • On the day of the election, the winning candidate was not qualified to contest.
    • The winning candidate, his poll agent or any other person with the consent of the winning candidate has indulged in a corrupt practice. Section 123 of the RP Act has a detailed list of what amounts to corrupt practice, including bribery, use of force or coercion, appeal to vote or refrain from voting on grounds of religion, race, community, and language.
    • Improper acceptance of the nomination of the winning candidate or improper rejection of a nomination.
    • Malpractice in the counting process, which includes improper reception, refusal or rejection of any vote, or the reception of any vote which is void.
    • Non-compliance with the provisions of the Constitution or the RP Act or any rules or orders made under the RP Act.

    What happens if the court finds that a contention of malpractice is correct?

    • This depends on relief that is claimed by the petitioner in her election petition.
    • Under Section 84 of the RP Act, the petitioner may ask that the results of all or the winning candidates may be declared void.
    • In addition to that, the petitioner may also ask the court to declare her (in case the petition is filed by a candidate) or any other candidate as the winner or duly elected.
    • So the verdict on an election petition, if found in favour of the petitioner, may result in a fresh election or the court announcing a new winner.

    Have there been any election results that were declared void because of an election petition?

    • There are many examples, the most famous being the Allahabad High Court verdict of 1975 which set aside Indira Gandhi’s election from Rae Bareli constituency, four years earlier, on grounds of corrupt practice.
    • The election petition was filed by her nearest rival Raj Narain who had lost by over one lakh votes.
    • The High Court found that Indira Gandhi’s election agent Yashpal Kapur, the DM of Rae Bareli, the Superintendent of Police of Rae Bareli and the Home Secretary of UP government helped in the arrangements for her election tour.
    • This amounted to a corrupt practice under Section 123 (7) of the RP Act.

  • Electoral bonds

    The article highlights the issues with the political funding through electoral bonds.

    Changes made for the electoral bond and issues with them

    • Earlier, only profit-making domestic companies could contribute to political parties; now loss-making companies can too.
    • Earlier, foreign companies or companies where the controlling stake was held by a foreign company couldn’t contribute; now they can. 
    • India’s political parties could theoretically be fully funded by a foreign company operating in India or by a foreign entity through a shell company.
    • Only the ruling party via the State Bank of India (SBI) has a full account of all donations being made via electoral bonds, to itself and to Opposition parties.

    Issues in the Supreme Court verdict

    • In March 2021, the Supreme Court refused to stay the sale of electoral bonds before the West Bengal elections.
    • Instead, the judgment listed several documents which supposedly establish a paper trail on donations and do some ‘match the following’.
    • This is impractical and plainly incorrect.
    • The Right to Information (RTI) Act of 2005 enables easier access to information held by public authorities.
    • Suggesting a “match the following” is incorrect for three reasons.

    1) Full scale of registered entities in unknown

    • If we set aside individual donors and focus just on registered entities, we will find that the full scale of registered entities is unknown. 
    • According to back-of-the-envelope calculations, there are close to 25 lakh potential donors comprising just companies and firms.
    • This includes about 12.6 lakh active private limited companies as of January 31, 2021.
    • Firms, unlike companies, have no regulatory mandate to submit their annual reports except for filing their annual tax returns, since their functioning is regulated by Acts other than the Companies Act of 2013.

    2) No disclosure by companies about donation to political parties

    • Even if registered companies filed annual financial statements, many do not disclose political donations.
    • Conveniently, the Finance Bill of 2017 amended Section 182 of the Companies Act of 2013 to remove the requirement for declaring disaggregated donations to political parties.
    • Even if registered companies filed annual financial statements, many do not disclose political donations.

    3) Political parties do not need to disclose their donor

    • Crucially, political parties do not need to disclose their electoral bond donors either.
    • Strictly speaking, political parties are not even supposed to know their electoral bond donors.
    • The only requirement is the annual audit reports with a total of all donations received via electoral bonds.
    • These reports are submitted with great delays.
    • Even if these reports are submitted on time, there is no way to match a donation of a company to that received by a political party as only aggregate amounts are available.

    Implications

    • Electoral bonds give political power to companies, wealthy individual donors, and foreign entities, thus diluting the universal franchise of one voter-one vote.
    •  Every vote is not equally valuable if companies can influence policies through hidden donations.
    •  The winner of this arrangement is the ruling party, whether at the Centre or in a State, and the loser is the average voter.

    Way forward

    • Companies and political parties could exercise moral leadership and voluntarily disclose the identity of recipients and donors, as the Jharkhand Mukti Morcha recently did.

    Conclusion

    Opacity in political funding goes against the basic tenets of democracy. What we need is a system of political funding which is transparent and fair.

  • Simultaneous Elections in India

    The article deals with the issue frequent elections in the country and highlights the need for debate on the idea of “one nation, one election”.

    Need for debate on one nation one election

    The idea has been around since at least 1983, when the Election Commission first mooted it. The concept needs to be debated mainly around five issues.

    1) Financial costs of  conducting elections

    • The costs of conducting each assembly or parliamentary election are huge and, in some senses, incalculable.
    • Directly budgeted costs are around Rs 300 crore for a state the size of Bihar.
    • But there are other financial costs, and incalculable economic costs.
    • Before each election, a “revision” of electoral rolls is mandatory.
    • The costs of the millions of man-hours used are not charged to the election budget.
    • The economic costs of lost teaching weeks, delayed public works, badly delivered or undelivered welfare schemes to the poor have never been calculated.

    2) Cost of repeated administrative freezes

    • The Model Code of Conduct (MCC) has economic costs too.
    • Works may have been announced long before an election is announced, but tenders cannot be finalised, nor work awarded, once the MCC comes into effect.
    • Time overruns translate into cost overruns.
    • But the huge costs of salaries and other administrative expenditures continue to be incurred.
    • Add to this the invisible cost of a missing leadership.
    • Important meetings and decisions get postponed, with costs and consequences that are difficult to calculate.
    • A NITI Aayog paper says that the country has at least one election each year.

    3) Visible and invisible costs of repeatedly deploying security forces

    • There are also huge and visible costs of deploying security forces and transporting them, repeatedly.
    • A bigger invisible cost is paid by the nation in terms of diverting these forces from sensitive areas.

    4)  Campaign and finance costs of political parties

    • There is little doubt that the fiscal and economic costs of an election are not trivial, and that two elections, held separately, will almost double costs, including those incurred by political parties themselves.

    5) Question of regional/smaller parties having a level playing field

    • There are fears about the Centre somehow gaining greater power, or regional parties being at a disadvantage during simultaneously held elections.
    • However, fixed five-year terms for state legislatures in fact take away the central government’s power to dissolve state assemblies.
    •  Until 1967 when simultaneous elections were the norm.
    • The Constitution and other laws would need to be amended is obvious, but that is hardly an argument against the proposal.

    Consider the question “There are huge costs associated with the frequent elections in the country. Is simultaneous elections a solution? What are the issues involved?”

    Conclusion

    As the elections in four states and one Union territory in March-April are suspected to have contributed to the second wave of Covid infections, a well-reasoned debate on a concept as important as “one nation, one election” is called for.

  • The Election Commission of India cannot be a super government

    The article highlights the issue of lack of clarity on the extent of the power of the Election Commission of India.

    Where ECI derives its power from

    • Supreme Court held in Mohinder Singh Gill vs Chief Election Commissioner that Article 324 contains plenary powers to ensure free and fair elections.
    • These plenary powers are vested in the ECI which can take all necessary steps to achieve this constitutional object.
    • Thus, the model code of conduct has been issued in exercise of its powers under Article 324.
    • Besides the code, the ECI issues from time to time directions, instructions and clarifications on a host of issues which crop up in the course of an election.

    The model code of conduct

    • The model code of conduct issued by the ECI is a set of guidelines meant for political parties, candidates and governments to adhere to during an election.
    • This code is based on consensus among political parties.
    • The model code is observed by all stakeholders for fear of action by the ECI.
    • However, there exists a considerable amount of confusion about the extent and nature of the powers which are available to the ECI in enforcing the code as well as its other decisions in relation to an election.

    Issues with model code of conduct

    1) Issue of enforceability

    • As the code of conduct is framed on the basis of a consensus among political parties, it has not been given any legal backing.
    • A committee of Parliament recommended that the code should be made a part of the Representation of the People Act 1951.
    • However, the ECI did not agree to it on the ground that once it becomes a part of the law, all matters connected with the enforcement of the code will be taken to court, which would delay elections.
    • But then the question about the enforceability of the code remains unresolved.
    • Paragraph 16A of the Election Symbols (Reservation and Allotment) Order, 1968 says that the commission may suspend or withdraw recognition of a recognised political party if it refuses to observe the model code of conduct.
    • But it is doubtful whether this provision is legally sustainable.
    • When the code is legally not enforceable, how can the ECI resort to a punitive action such as withdrawal of recognition?

    2) Transfer of officials

    • Observers of ECI report to it about the conduct of certain officials of the States where elections are to be held.
    • Transfer of an official is within the exclusive jurisdiction of the government.
    • It is actually not clear whether the ECI can transfer a State government official in exercise of the general powers under Article 324 or under the model code.
    • Transfer of an official is within the exclusive jurisdiction of the government.
    • It is actually not clear whether the ECI can transfer a State government official in exercise of the general powers under Article 324 or under the model code.
    • Further, to assume that a police officer or a civil servant will be able to swing the election in favour of the ruling party is extremely unrealistic and naive.

    3) ECI’s intervention in administrative decisions

    • According to the model code, Ministers cannot announce any financial grants in any form, make any promise of construction of roads, provision of drinking water facilities, etc or make any ad hoc appointments in the government. departments or public undertakings.
    • These are the core guidelines relating to the government.
    • But in reality, no government is allowed by the ECI to take any action, administrative or otherwise, if the ECI believes that such actions or decisions will affect free and fair elections.
    • A recent decision of the ECI to stop the Government of Kerala from continuing to supply kits containing rice, pulses, cooking oil, etc is a case in point.
    • The Supreme Court had in S. Subramaniam Balaji vs Govt. of T. Nadu & Ors (2013) held that the distribution of colour TVs, computers, cycles, goats, cows, etc, done or promised by the government is in the nature of welfare measures and is in accordance with the directive principles of state policy, and therefore it is permissible during an election.
    • So, how can the distribution of essential food articles which are used to stave off starvation be electoral malpractice?

    Consider the question “The model code of conduct issued by the Election Commission of India is in the forms of guidelines and lacks legal backing. In light of this, examine the issues that arise due to the lack of legal backing.”

    Conclusion

    There is no doubt that the ECI, through the conduct of free and fair elections in an extremely complex country, has restored the purity of the legislative bodies. However, no constitutional body is vested with unguided and absolute powers.

  • Need to remove the secrecy around the electoral bonds

    The article highlights the issues with the electoral bond scheme and suggests an alternatives.

    Secrecy in donations

    • Before the electoral bond scheme, every transaction of more than Rs 20,000 was reported to the Election Commission.
    • Now even Rs 20 crore or Rs 200 crore could be donated anonymously. 
    • Why should donors want secrecy? To hide return favours, like contracts, licences and bank loans.
    • Both the RBI and ECI, standing up to their mandates, had registered their strong protest.

    How electoral bond scheme led to changes in provisions of other Acts

    • To make way for electoral bonds amendments were introduced in the Reserve Bank of India Act, Companies Act, Income Tax Act, Representation of the People Act and Foreign Contribution Regulations Act.
    • There were three serious changes which did not receive the deserved attention.

    1) Limit of 7.5 per cent removed

    • First, the limit of 7.5 per cent of its profits which a company could donate was not just increased but completely done away with by amending section 182 of the Companies Act, 2013.
    • Thus a company could donate 100 per cent of its profits to a political party.
    • Even a loss-making company could make political donations.
    • This is a sure step to legitimise and legalise crony capitalism.

    2) Requirement of resolution removed

    • The requirements for a resolution by the board of directors for a company to make donations to political parties and to declare the political donations in the profit and loss accounts were also removed.
    • This would allow keeping the donations secret not only from the public but the owners of the company, the shareholders — ironically, all in the name of transparency.

    3) Secrecy in contribution from foreign source

    • Section 29B of the Representation of the People Act, 1951 prohibits all political parties from accepting any contribution from a “foreign source.”
    • Section 3 of the 2010 Foreign Contribution (Regulation) Act bars candidates, legislative members, political parties and party officeholders from accepting foreign contributions.
    • When the High Court of Delhi in 2014 found Congress and BJP having accepted foreign funds in violation of the FCRA 1976, the government passed a retroactive amendment through a 2016 Finance Bill which repealed the 1976 Act and replaced it with the modified 2010 statute.
    • If any foreign country is financing our elections, it will now be a protected secret.

    Way forward

    • The Supreme Court’s concern about the possibility of misuse of funds is very pertinent.
    • The EC has been demanding that a law be passed to make political parties liable to get their accounts audited by an auditor from a panel suggested by the CAG or EC.
    • If the government don’t want to abolish the electoral bond scheme it should just make changes to it to disclose the donor and the recipient.
    • Another alternative is to do away with private fund collection altogether and replace it with public funding of political parties.
    • This is not likely to be more than Rs 10,000 crore every five years, if we were to go by the entire collection all the parties make together.
    • Another feasible option is to establish a National Election Fund to which all donations could be directed.
    • This would take care of the imaginary fear of political reprisal of the donors. 

    Consider the question “What were the changes introduced in various Acts for the introduction of the electoral bond scheme? What are the issues with these changes?”

    Conclusion

    We must not forget the finance minister’s opening statement in the 2017 Budget speech that “without transparency of political funding, free and fair elections are not possible”.

  • Election Commission’s new rule for polling agents

    The Election Commission’s recent decision to change the rules for appointing polling agents has sparked off a debate in West Bengal.

    Who is a Polling Agent?

    • A polling agent is a person appointed as a representative of a political party as it is not possible for a candidate to be physically present at every polling booth on the day of the elections.
    • Therefore, the Election Commission allows a candidate to appoint a polling agent who keeps an eye on the voting process.

    What is his/her role?

    • As per the EC’s rules, a polling agent should be familiar with the rules and procedures to conduct elections using EVMs and VVPATs, and with the working of these machines.
    • Towards this end, a polling agent attends the demonstrations arranged by the Returning Officer, where the functioning and operation of these machines are explained.

    How were they appointed earlier?

    • As per the earlier practice, polling agents had to be voters of the same polling stations or at least the neighbouring polling stations of the booth where she has been posted at.

    Try this PYQ from CSP 2017:

    Q.Consider the following statements:

    1. The Election Commission of India is a five member body.
    2. Union Ministry of Home Affairs decides the election schedule for the conduct of both general elections and bye-elections.
    3. Election Commission resolves the disputes relating to splits/mergers of recognized political parties.

    Which of the statements given above is/are correct?

    (a) 1 and 2 only

    (b) 2 only

    (c) 2 and 3 only

    (d) 3 only

    Answer: D

    What does the new rule say?

    • The ECI, revising the rule, has allowed a party to nominate a polling agent for any booth within the assembly segment where the person is an electorate of.
    • So, any voter from within an Assembly constituency can be a polling agent of any booth within that constituency.

    Issues with the rule

    • The political parties are opposing the change in rules, calling it “arbitrary, motivated and biased”.
    • They have also written to the Election Commission seeking withdrawal of the order.

    What is the EC’s stand?

    • The poll body has defended the change in a rule saying that the new norms have been formulated so that every political party gets to appoint polling agents.
    • It is difficult to convince people to sit at the booths amid the Covid-19 pandemic.

    Back2Basics: Election Commission of India (ECI)

    • ECI is an autonomous and permanent constitutional authority responsible for administering election processes in India at national and state level.
    • The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, State Legislative Councils and the offices of the President and Vice President of the country.
    • It operates under the authority of the Constitution per Article 324 and subsequently enacted the Representation of the People Act.
    • The commission has the powers under the Constitution, to act in an appropriate manner when the enacted laws make insufficient provisions to deal with a given situation in the conduct of an election.
    • Being a constitutional authority, Election Commission is amongst the few institutions which function with both autonomy and freedom, along with the country’s higher judiciary, the UPSC and the CAG.

  • Bureaucrats cannot be State Election Commissioners: SC

    The Supreme Court gas held that independent persons and not bureaucrats should be appointed State Election Commissioners.

    No bureaucrats in SEC

    • The judgment came on an appeal against an order of the Bombay High Court which had set aside the election notification issued by the Goa State Election Commission in some municipalities.
    • Justice F. Nariman, in a judgment, said giving government employees the additional charge of State Election Commissioners is a “mockery of the Constitution”.
    • It said government employees holding the post of State Election Commissioners as additional charge should give up the post.
    • The Supreme Court said its direction should be followed strictly.

    Why such a move?

    • Under the constitutional mandate, it is the duty of the State to not interfere with the functioning of the State Election Commission.
    • The independence of Election Commissions cannot be compromised at any cost, the Bench said.

    State Election Commission

    • Under the 73rd and 74th constitutional amendment acts, State Election Commissions were created for every state to conduct elections to panchayats and municipalities.
    • The SECs came into as envisaged in Articles 243K and 243ZA of the Constitution of India.
    • The above Articles provide that the superintendence, direction and control of the preparation of electoral rolls for, and the Conduct of all elections to the Panchayats and Municipalities shall vest in the SEC.
    • The Constitution itself has facilitated provision for smooth, free and fair, regular elections to the Local bodies and has, therefore, entrusted the SEC with the responsibility for holding such elections.
    • In the domain of the elections to the local bodies, the SEC functions independently and has the same powers and duties as that of the Election Commission of India.

    Try this PYQ:

    Q.The Constitution (Seventy-Third Amendment) Act, 1992, which aims at promoting the Panchayati Raj Institutions in the country, provides for which of the following?

    1. Constitution of District Planning Committees.
    2. State Election Commissions to conduct all panchayat elections.
    3. Establishment of State Finance Commissions.

    Select the correct answer using the codes given below:

    (a) Only 1

    (b) 1 and 2 only

    (c) 2 and 3 only

    (d) 1, 2 and 3

    The Election Commissioner

    • The State Election Commissioner is appointed by the Governor.
    • It has the status, salary and allowance of a Judge of a High Court and cannot be removed from office except in the like manner and on the like grounds as a Judge of a High Court.
    • The Election Commissioner is also the Chairman of the Delimitation Commission.

    Its duties

    • The first and foremost duty of the SEC is to prepare the elector rolls of Panchayats, Municipalities and Municipal Corporation and conduct their elections.

    In addition to the above functions, the State Election Commission has also the following functions:

    1. Conduct of elections to the offices of the Mayor/Chairman/President/Deputy Mayor/Vice Chairman/Vice President and the no-confidence motion against them.
    2. Conduct of the Elections to various Standing Committees and their Chairpersons
    3. Determination of disqualification of elected members/Councilors.
    4. Determination of disqualification of elected members on the ground of defection.

    Back2Basics: Election Commission of India (ECI)

    • ECI is an autonomous and permanent constitutional authority responsible for administering election processes in India at the national and state level.
    • The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, State Legislative Councils and the offices of the President and Vice President of the country.
    • The EC operates under the authority of the Constitution per Article 324 and subsequently enacted the Representation of the People Act.
    • The commission has the powers under the Constitution, to act in an appropriate manner when the enacted laws make insufficient provisions to deal with a given situation in the conduct of an election.
    • Being a constitutional authority, EC is amongst the few institutions which function with both autonomy and freedom, along with the country’s higher judiciary, the UPSC and the CAG.

  • Donation reports of only 3.39% registered unrecognized parties available in public domain

    The contribution reports of only 78 (3.39%) of the total 2,301 registered unrecognized political parties are available in the public domain for 2018-19 reports the Association For Democratic Reforms (ADR).

    Classification of Political Parties in India

    (A) National parties

    A registered party is recognised as a national party only if it fulfils any one of the three conditions listed below:

    • A party should win 2% of seats in the Lok Sabha from at least three different states.
    • At a general election to Lok Sabha or Legislative Assembly, the party polls 6% of votes in any four or more states and in addition, it wins four Lok Sabha seats.
    • A party gets recognition as a state party in four states.
    • A party recognised as a National party can be derecognized if it fails to maintain the criteria.

    (B) State parties

    A party has to fulfil any of the following conditions for recognition as a state party:

    • A party should secure at least 6% of valid votes polled in an election to the state legislative assembly and win at least 2 seats in that state assembly.
    • A party should secure at least 6% of valid votes polled in an election to Lok Sabha and win at least 1 seat in Lok Sabha.
    • A party should win a minimum of three per cent of the total number of seats or a minimum of three seats in the Legislative Assembly, whichever is higher.
    • A party should win at least one seat in the Lok Sabha for every 25 seats or any fraction thereof allotted to that State.
    • Under the liberalized criteria, one more clause that it will be eligible for recognition as state party if it secures 8% or more of the total valid votes polled in the state.

  • Maharashtra to introduce ballot papers along with EVMs

    Maharashtra Assembly Speaker has directed the State Law and Justice Department to prepare the draft of a Bill which provides an option to voters to exercise their franchise on ballot papers along with electronic voting machines (EVMs).

    Manner of holding elections

    • Article 328 of the Indian Constitution and number 37 of the State List of the seventh schedule of the Constitution provide rights to the State legislature to formulate a law on the manner of holding elections within the State.
    • The state cannot abolish the EVMs completely.
    • They are just demanding an additional provision of ballot paper as well for whoever wants to use that.
    • Directions have been given to check the constitutional validity of the argument and prepare the draft of a Bill.

    Background

    • The Election Commission has been conducting all elections through EVMs since 2001.
    • The Indian EVM is a direct recording device, which is a stand-alone machine.
    • The Election Commission has clarified several times that Indian EVMs don’t talk to any machine outside its own system – be it through a wired network, internet, satellite, and WiFi or Bluetooth.
    • The EVM is not connected to the server, so cyber hacking of Indian EVMs is not possible unless an authorised person acts with malafide intention.
    • In 2014, a whopping 55.38 crore people cast their votes in EVMs in the parliamentary elections.

    Considerations behind such a move

    • On EVMs, a voter can never be 100% sure about whom he or she has voted and whether that particular candidate has received the vote.
    • It is a right of every voter to be 100% sure about it and also essential for the democratic process.”
    • Over the past few years, serious concerns and doubts had been raised over the EVMs and whether those could be manipulated.
    • The option of ballot voting would boost people’s confidence in the electoral process which would ultimately lead to an increase in voting percentage.

    Q.The EC’s role in ensuring the people’s faith in democracy is paramount. The loss of public faith in democracy and its protector institutions spells nothing but disaster. Discuss.