Electoral Reforms through the years

It is a well-worn cliché that ‘People get the leaders they deserve’. It perhaps hides and distorts as much as it reveals the real processes at work in a democracy. After all, the closely intermeshed network of agencies and institutions through which democracy is actualised may appear like an enigmatic labyrinth with too many closed doors. The electoral process, in a way, if we may paraphrase Foucault, ‘makes windows where there were once walls’. While other institutions of democracy may be difficult to penetrate and change for the common people, the key to its pinnacle in the form of the electoral process remains in the hands of masses. Herein lies the importance of the electoral process for democracy. Digging through the ruins of many a failed democracies and exploring the success of many others, it becomes obvious that the nitty-gritty of the electoral process could write the epitaph of democracy or infuse it with energy and vitality.

Just like currency in the economy, a political system is as valuable as people think it to be. Thus, the trust of the people or legitimacy is the foundation on which any democratic system works. Participation of people in the electoral process is a crucial element of the legitimacy enjoyed by a political system. The World is replete with examples where lack of participation of people in the electoral process has robbed the elected government of legitimacy and led to serious political crises in those countries. However, India has been an example of success in this aspect of democracy whether it be the implementation of the universal adult suffrage or bringing down the age of voting or a thriving participation in the institutions of local governance at Panchayat level. 

However, there are other elements of the electoral process which imbue meaning and value to the concept of democracy. Beyond the outer shell of democracy, defined by the electoral participation of people, there is an inner core which needs constant nurturing. It is self-evident that democracy can flourish only in an environment of openness, transparency, voluntary participation, freedom of ideas and personal liberty exercised without fear or inducement. The burden of ensuring such a system lies on the shoulders of the electoral process a country adopts. Apart from this, a strong democracy also requires the existence of robust institutions capable of safeguarding the fundamental values of democracy without getting sucked into the flux and flow of politics as it unfolds on the ground. Judiciary, Media and bureaucracy are among these institutions which invigorate and protect democracy not merely in its form but in terms of its real content also. It would be wrong to look at democracy simply as a given body of institutions and structures. It is actually a dynamic process which requires a constant infusion of new ideas and activities to reflect the aspirations of people. Democracy, as it were, is forever an unfinished project.

Electoral reforms, in the wider context of the need for the deepening of democracy, thus acquires a central position in this project. The reality remains that Indian democracy has a long way to go before it rids itself of the demons of deviancy. This has been articulated quite forcefully on public forums by our political leaders which is a source of hope. It underscores the urgent need to engage with the dark alleys of corruption, money power and crime that could poison the tree of democracy. No matter what, the country will have to dig dipper into its moral reserve to administer the right medicine, even if bitter, for this malaise. Only by confronting the fatal weaknesses of our valued political system headlong can we hope to evolve and protect the deep self of democracy that touches the lives of the weakest in society and works as the transformative elixir. Let’s have no doubt- People deserve this!

Introduction

Elections in India over the years have gone from strength to strength largely through a series of electoral reforms. Yet, there are still some areas of concern that need to be addressed. 

Election law has undergone numerous amendments to meet the requirements of new challenges and changing situations. The path-breaking changes were the lowering of the age for enrollment as an elector from 21 to 18 in 1989, open ballot voting at elections to the Rajya Sabha and voting through the proxy for voters belonging to armed forces and paramilitary forces in 2003. Provisions for enrolment of overseas Indian citizens in the electoral roll was made in the most recent amendment in 2011. Empowering the Commission to use electronic voting machines, conferring disciplinary jurisdiction on the Commission over the officers including police appointed for the conduct of elections have strengthened the EC. Printed electoral rolls have now been substituted by computerised photo electoral rolls. The elector’s photo identity card (EPIC) is by now a cherished possession of all citizens. 

Judicial Support 

The Courts have also strengthened the hands of the Commission through their positive interpretation of the law.

• The first landmark judgment came in 1952 itself (NP Ponnuswamy vs Returning Officer, Nammakkal) in which the Supreme court ruled that the bar in the Constitution [Article 329(b)] against questioning elections except through election petitions, till the election process was completed. 
• This was further elaborated by the Apex Court in 1978 in Mohinder Singh Gill vs Chief Election Commissioner and others when it held that the bar against limitative challenges to electoral steps taken by the Commission and its officers was a blanket ban.
• In 1995, in the case of Common Cause vs Union of India and others, the Court directed that the political parties had to file their income tax returns. 
• In 2003, the Supreme Court, in another landmark judgment, ruled that the electors have the right to know their candidates. They have to file affidavits about their criminal antecedents, assets, liabilities and educational qualifications.

Election Commission’s Innovative Steps 

Many reforms have come from the Election Commission itself. 

• The Model Code of Conduct, initiated by political parties, was codified by the Commission and put to strict implementation from the 1990s. 
• The election law did not make any provisions for registration and recognition of political parties and allotment of symbols to them. But, the Commission took the initiative before the first general elections in 1951-52 itself to recognise political parties and to allot symbols. Later, the Commission issued the Election Symbols (Reservation and Allotment) Order, 1968, as the consolidated set of instructions. 
• In the late Seventies, the Election Commission started to explore the possibilities of polling through voting machines and all elections to Lok Sabha and Legislative Assemblies are now being conducted using voting machines from 2000 onwards.
• Towards the end of the 1990s, the Commission computerised the electoral rolls of all constituencies. 
• For further improving the fidelity of electoral rolls, the Commission started the institution of Booth Level Officer (BLO) for each polling station in the country. For closer participation by the political parties in this exercise, every recognised party can appoint a BLA (Booth Level Agent) as a check on BLOs neutrality. 
• In 1993, to prevent bogus voting, the Commission introduced electoral photo identity card for all the electors. 
• From the 1990s again, the Commission has used the central Election Observers as a very effective tool for monitoring the process of elections, the deployment of central police forces, videography and posting of micro observers at sensitive polling stations. 

Emerging Concerns 

There are several areas where the people at large, civil society organisations, NGOs, social activists and political parties, are still feeling concerned. Broadly, there are three sets of reforms proposed: 

• Reinforcing independence of Election Commission of India: Chief Election Commissioner and the Election Commissioners are appointed by the President, as per the advice of the Cabinet. The fact that the government appoints the Chief Election Commissioner and Election Commissioners could in itself be a reason to suspect the neutrality of the incumbent. The appointment to this very important office should be based on wider consultation with an electoral college. .However, it should apply only at the entry level when a new Election Commissioner is selected. The elevation to the position of CEC must strictly be by seniority, as in the case of the Chief Justice of the Supreme Court. It will be useful to make the outgoing Chief Election Commissioner as one of the Members of the Collegium for the appointment of a new commissioner. While CEC cannot be removed except through impeachment, it is necessary to provide similar protection to the other Election Commissioners as well. 

• Cleansing Politics: Concerned about the criminalisation of politics, the Election Commission sent a proposal to the government in 1998 for debarring a person facing charges for serious offences from contesting the election. Many political parties opposed this on the ground that false criminal cases may be filed by their opponent. The ruling parties may use this ploy to deny them electoral victory through this devious way. This concern is legitimate. However, EC had offered three safeguards: (1) Not all criminal cases will lead to the bar. Only heinous offences like murder, dacoity, rape, kidnapping or moral turpitude, (2) the case should have been registered at least six months before the elections, and (3) the court should have framed the charges. Keeping the person away from contesting would be a reasonable restriction in larger public interest. The opponents of the proposal argued that jurisprudence followed in the country is that a person is deemed to be innocent until proved guilty. I have a counterpoint that about two-thirds of the people lodged in jails are under-trials, and not convicted, and are, therefore, ‘innocent’. Yet they are locked up in jails, denied of their fundamental rights of liberty, freedom of movement, freedom of occupation and right to dignity. If fundamental rights of an undertrial could be suspended, what is the fuss about temporarily suspending the right to contest election, which, incidentally, is only a statutory right.

• Enhancing Transparency of Political Parties

• Issue of Registration and De-registration of Political Parties: Political parties are registered with the Election Commission under statutory provisions in the Representation of the People Act, 1951. One of the statutory requirements for a valid application for registration as a political party under Section 29A is that the Constitution of the Party should contain an undertaking of allegiance to the Constitution of India and the principles of socialism, secularism and democracy, and to uphold the unity, sovereignty and integrity of India. Although the political parties, at the time of registration, bind themselves to follow the constitutional provisions and the principles of democracy, etc., there are no legal provisions enabling the Commission to take punitive action against them or to withdraw the registration in case of violation of such understanding. The Commission had recommended an amendment to the law, empowering the Commission to regulate the de-registration of political parties.
• Inner Party Democracy: One of the pre-conditions for registration as the political party is a commitment to democratic process in its decision-making, and democratic elections to various offices and committees of the Party at prescribed periodic intervals. The Election Commission, however, does not oversee their internal electoral process.
• Transparency in the Accounts of Political Parties: The present law fixes a ceiling on the election expenses of individual candidates but not of political parties. Further, there is no regulation of the manner of raising and spending funds, nor are their accounts in the public domain for scrutiny by the people at large. To bring transparency, the Commission has proposed that the accounts of political parties should be audited by the Chartered Accountants from a list specified by the Election Commission. Furthermore, these audited accounts should be put in public domain.   

Other suggestions/concerns relating to elections

1. Right to Reject:  There have been proposals of late from social activists, seeking the right to the electors to reject all the candidates when they find none of them worthy through the provision of NOTA (none of the above). In 2013, SC granted this provision but not to create the right to reject. The way the right to reject is to be operationalised is through providing a button on the EVM with ‘None of the Above’ (NOTA) option. It is important to note that NOTA is not an endorsement of the right to reject. Even if 99 voters opt for NOTA, and only one voter for a candidate, for EC the candidate is the winner. The 99 voters are just blank, or ‘invalid’ votes! The proposal of the Election Commission for NOTA option was to ensure secrecy of neutral or non-voting.
2. Right to Recall: Right to recall is another electoral reform demanded by activists like Anna Hazare. In essence, Right to Recall is a mechanism for voters to unseat an elected MP or MLA by following the recall process. But this is fraught with the strong possibility that defeated candidates will resort to the tool immediately after they lose the election. In such a scenario, the elected representative would not even get the time to settle down.
3. Compulsory voting: Another electoral reform often mooted is compulsory voting in response to chronic voter apathy, especially in urban areas. My consistent view has been that compulsion and democracy do not go together. The Commission is, therefore, of the considered view that enhanced voters’ participation can be achieved through voter education, as amply demonstrated in the elections held in 22 states since 2010, besides the general election of 2014, crossing even 80 percent in some cases. These steps led to the highest ever turnout in sixty-year electoral history. My consistent view that motivation and facilitation rather than compulsion should be the way to address the issue, has been clearly vindicated. 
4. The relevance of FPTP System: Another emerging concern flowing from a low turnout is the candidates getting declared elected with just 10 percent to 20 percent of the total votes in their favour. This leads to the questioning the relevance of the prevalent FPTP system. Elections to the Lok Sabha and Legislative Assemblies, the lower houses of the legislature, are held from single-member territorial parliamentary and assembly constituencies, through direct election. The First-Past-the-Post (FPTP) system is followed in these elections. Elections to Rajya Sabha and Legislative Councils are under the system of proportional representation through single transferable vote. In the FPTP system followed in India, voters vote for one candidate from among those contesting election in their constituency. The candidate polling the highest number of votes among contesting candidates is declared elected. Per centage of votes of the winning candidate is irrelevant. Winner may or may not get absolute majority of votes. If two or more candidates poll the same number of votes, the winner is decided by draw of lots among such candidates. The following are the advantages of FPTP system: It is easy to understand for electors, Counting is simple, Winner is known immediately, Voters can elect representative of their choice, There is an identified representative for each constituency, accountable to his electorate, All candidates get to know their relative support in the constituency, The system has given, by and large, stable governments at the Centre and in the states.
5. Proportional Representation System: The opponents of the FirstPast-The-Post (FPTP) system advocate the introduction of Proportional Representation System, though they have not spelt out any details. The demand is becoming louder after the general election of 2014 when a party like the BSP ended up without a single representative despite over 20 per cent vote share. This does seem to create an anomalous situation. The PR System has several variants. One such variant is single transferable vote, as followed in elections to the Rajya Sabha and State Legislative Councils. 
6. Misuse of Religion for Electoral Gain: A Bill was introduced in the Lok Sabha in 1994 [R.P. (second amendment) Bill, 1994], whereby an amendment was proposed providing for provision to question before a High Court, acts of misuse of religion by political parties. The Bill lapsed on the dissolution of the Lok Sabha in 1996. The Commission has proposed that the provision in that Bill should be considered again as religious fanaticism is a serious threat to fair elections and needs to be handled with tough hands. Hate speech arousing communal tensions also need to be dealt with stringently.
7. Paid News: The scourge of paid news is a recent phenomenon. The Commission has proposed amendment in the Representation of People Act, 1951, to provide that publishing and abetting the publishing of `paid news’ for furthering the prospect of election of any candidate or for prejudicially affecting his prospect be made an electoral offence under chapter-III of Part-VII of Representation of People Act, 1951 with punishment of a minimum of two years imprisonment. 
8. Punishment for Electoral Offences to be Enhanced: Undue influence and bribery at elections are electoral offences under Sections 171B and 171C, respectively, of the IPC. These offences are, however, non-cognizable offences, rendering the provisions virtually ineffective. Under Section 171-G, publishing a false statement in connection with the election with intent to affect the result of an election, is punishable with fine only. Section 171H provides that incurring or authorizing expenditure for promoting the election prospects of a candidate is an offence. However, punishment for an offence under this Section is a meagre fine of Rs.500/-. This amount may have been a deterrent sixty years ago, but now is laughable. These punishments were provided as far back as in 1920. Considering the gravity of the offences under the aforesaid sections in the context of free and fair elections, the punishments under all the four sections need to be enhanced and made cognizable, if they are to serve the intended objects. There should be a ban on advertisements on achievements of the government during its last six months. Essential advertisements/ dissemination of information on useful announcements like health-related schemes, drought and flood measures, etc. could be exempted from the ban. 

Conclusions

During the last four decades, there have been as many as seven national level committees and commissions who have given a number of suggestions on electoral reforms to cleanse the political system, not to speak of the Election Commission’s own recommendations and repeated reminders. All the aforesaid reforms have been pending with the government for ten to twenty years. Meanwhile, people’s faith in the political system has been going down. If the declining faith of the people in the democracy is to be addressed seriously, the government must act urgently before a situation gets out of control. Writing on the wall is clear. We only need to resume our blinkers.

Election commission of India (ECI), constitutional body constituted under article 324 of the constitution of India, has given following suggestions as electoral reforms-

1. Election commissioners should be given the security of tenure similar to chief election commissioner.
2. ECI should have contempt power same as the court in India. Frequent contempt affects the dignity of the institution.
3. There should be transparency in the funding of political parties.
4. ECI should be given the power to make rules under Representation of people act 1951.
5. ECI should have the power to audit the accounts of political parties. 
6. Election to the legislative assembly and to the parliament should be conducted simultaneously. 
7. Debar the candidate from contesting election if the criminal cases are pending against him. 
8. Make paid news an offence.
9. Do not allow one candidate to contest from more than one constituency. 

The law commission of India is constituted by the government to suggest the legislation required on various topics. The law commission has recommended following electoral reforms- 

1. The political parties should be brought under the ambit of the RTI. 
2. There should be internal democracy in political parties. 
3. greater financial accountability of parties
4. opening party affairs to public
5. experimenting with State Funding of election model to check black money in elections; among others. 

The government has taken following actions as per the recommendations of ECI and law commission- 

1. NOTA was introduced to provide an alternative to the voters. 
2. Limitation on funding to political parties, Electoral bond was introduced to improve the transparency in electoral funding.

However, on Govt’s part, except for the recent proposal for electoral bonds and the ceiling on cash donations from anonymous sources, the Parliament has rejected other proposals with following excuses: 

1. Under vindictive politics candidates often try to sabotage the rival candidates with false complaints 
2. EC cannot be a body at par with the judiciary to try for contempt
3. suggesting RoPA to be more than sufficient a measure to tame erring legislators etc. 

Way forward – 

The legislators may have no reason to put their own selves into question by amending laws to their own disadvantage. This is one stumbling block which very few democracies have actually crossed, as it demands a high sense of moral conscience on part of the ruling parties to do such a thing in keeping with the true ethos of democracy. This is also the litmus test for a higher evolution of a political society which if passed lays way to many more inter-related developments. A clamour for such demand is definitely impending whether it comes from the civil society or the judiciary or the govt itself.