Article 327 and 328 of the Constitution confers the power on parliament and state legislature respectively to make rules for election to Parliament and the state legislature. Consequently, the Parliament has passed RPA, 1951 to provide for grounds of disqualification of candidates and legislators.
Salient features of the Representation of People’s Act (RPA act, 1951)
RP act provides for
Conduct of elections of the Houses of Parliament and to the House or Houses of the Legislature of each State.
Details about the structure of administrative machinery for the conduct of elections.
Qualifications and disqualifications for membership of those houses.
Corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.
For Lok Sabha elections, a maximum of 70 lakhs except in case of north eastern and hilly states which is 54 lakhs rupees.
For state assembly elections, a maximum of 28 lakhs except in case of north eastern and hill states which is 20 lakhs rupees.
Disqualifications under constitution
- If he/she is of unsound mind.
- If he/she is an undischarged insolvent.
- If he/she is not a citizen of India or has voluntarily acquired the
citizenship of a foreign state.
- If he/she holds an office of profit.
Disqualifications under RP act
- Found guilty of election offences/corrupt practices.
- A conviction for any offence resulting in imprisonment for 2 or more years. A conviction for promoting enmity between different groups.
- Failed to lodge an account of his election expenses within time.
- Having an interest in government contracts, works or services.
- If dismissed from government service for corruption or disloyalty to the state.
- If punished for practising and preaching social crimes like sati, untouchability, etc.
Election offence covered under RPA
Any form of gratification for electors for voting or refraining from voting, and to the candidates for withdrawing or not withdrawing nomination is considered as a corrupt practice.
It includes any direct or indirect interference with the free exercise of any electoral right by the candidate or his election agent.
Appeal to vote or refrain from voting on the ground of his religion, race, caste, community or language, etc.
The promotion of feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language.
The propagation of the practice or the commission of sati or its glorification.
The publication of any false statement of fact in relation to the personal character or conduct of any candidate.
Booth capturing by a candidate or his agent or other person.
Obtaining any assistance from any person in the service of the Government for the furtherance of the prospects of that candidate’s election.
Dilution of disqualification grounds
SC in Lily Thomas case 2013 invalidated section 8(4) on the grounds that it is against principle of equality as envisaged under article 14. But parliament tried to bring an amendment to save the section 8(4) by giving a cooling off period of 90 days. But the amendment was soon taken out due to public pressure.
Dilution of Office of Profit clause has also been observed in multiple cases where persons holding important political position and office of profit simultaneously are exempted fromdisqualification by passing a law that specifically protects them from disqualification. Recently the Delhi legislature passed a law that said that parliamentary secretaries do not hold Office of Profit.
EC first issued a MCC for political parties at the time of the fifth general elections, held in 1971. Since then, code has been revised from time to time and lays down guidelines.
In 1998, ECI made it compulsory for all the candidates to submit their past criminal antecedents with the election affidavit. The above order is an effective step to make democracy healthy and unpolluted.
It has introduced EVMs which has saved money, solved several logistical issues. Commision is also charging nominal fee of Rs.10000 to arrest the trend of non-serious parties contesting election.
In order to ensure that the parties practice internal democracy in their functioning, the commission requires them to hold their
organisational elections regularly.
EC has fixed legal limits on the amount of money which a candidate can spend during the election campaign. The contestants
are also required to give details of expenditure within 30 days of the declaration of the election results.
In an attempt to improve the accuracy of the electoral rolls, the Election Commission in 1993 ordered the issuance of electors photo identity cards (EPICs) for all voters. During the 2004 Assembly elections, it was mandatory for people possessing EPICs to furnish it at the time of voting.
The appointment of CEC and other EC according to Article 324, shall be done as per the law made by the Parliament in this regard. This leaves the appointment of such a crucial post solely to the executives.
The constitution has not prescribed the qualifications of the members of the election commission.
Constitution has not debarred the retiring Election commissioner from any further appointment by the government.
There is also no clarity regarding the power division between the Chief Election Commissioner and other Election Commissioners.
Recent amendments to RP act
Insertion of section 126A which banned publishing exit polls till the time of elections were over.
Section 8(4) which allowed convicted MPs, MLAs to stand for elections by filing a complaint was repealed. It is a step towards
Insertion of Section 62(2), which allowed a person post detention to contest elections as he is no longer ceased to be an elector as his name is included in the electoral roll.
The recent amendment included Section 20A of RPA, which now allows NRI to vote from their current residence via a postal ballot system.
SC has asked EC to introduce NOTA button. Now instead of boycotting elections, voters can practice their right to reject.
In ADR, 2002 case, the Supreme Court has made it mandatory for candidates to provide a comprehensive list of information at the time of filing nomination.
In Jan Chaukidari vs Union of India judgement, all those in lawful police or judicial custody will forfeit their right to stand for election.
In Lily Thomas vs Union of India, the SC declared Section 8(4) of the RP act, 1951, which allowed legislators a three-month window to appeal against their conviction as unconstitutional.
With a view to bringing about purity in elections, the SC held that a voter could exercise the option of negative voting and reject all candidates as unworthy of being elected. The court directed the EC to provide the NOTA button in the EVM.
SC in the case of Subramanian Swamy case has held that VVPAT is indispensable for free and fair elections. In accordance to that, the SC has directed the EC to equip EVMs with VVPAT systems.
Supreme Court said that freebies promised by political parties in manifestos shake the roots of free and fair polls and directed the Election Commission to frame guidelines for regulating contents of manifestos.
The Allahabad high court stayed caste-based rallies in Uttar Pradesh, a move that will block off a key avenue that the major
political parties use to expand their support base, especially before elections.
In 2015, SC held that even after a Returning Officer has declared the result, the election can be nullified if candidate has not disclosed criminal records.
Various sections of RPA to keep a check on criminals
Disqualification for certain offences is provided for in Section 8.
Section 33A under which each candidate has to file an affidavit furnishing details about cases in which he has been accused of an offence punishable with 2 or more years.
Section 125A provides for punishment of imprisonment for a term upto six months or with fine for declaring wrong information.
Section 123 deals with corrupt practices.
Section 29C mandates parties to furnish reports about their financing to keep a check on illegitimate funding by criminals.
Recent demands by ECI
Section 126 of RPA currently prohibits the publication of ads by political parties in electronic media (TV, radio) and recently added social media, 48 hours before voting ends. The ECI wants print media to be included in Section 126 of the RP Act.
It has demanded constitutional protection for all three of its members as opposed to just one at present. It also demanded that the senior-most EC should be automatically elevated as CEC in order to instil a feeling of security in the minds of the EC’S.
It has also sought absolute financial freedom from the Law Ministry. Like the CAG and UPSC, the ECI wants its budget to be charged to the Consolidated Fund.
It has also proposed an independent secretariat for itself with which it will not have to depend on DoPT to appoint its officers. It can also draw competent professionals and experts from the job market.
It has pushed for the introduction of totaliser machines for counting of votes. The totaliser machine increases the secrecy of voting by counting votes polled at 14 polling booths together, as against the current practice of announcing booth-wise results.
ECI wants bribery during election season as the cognisable offence. ECI also supports making paid news an electoral offence punishable by two years of imprisonment. EC has recommended that the Representation of the People Act, 1951 to be amended to this effect.
Effects of application of MCC
The present code contains guidelines for the conduct of political parties and candidates (no attack on private life, no appeal to communal feelings, the prohibition against Ministers etc).
Ministers and those holding public offices are not allowed to combine official visits with electioneering tours.
Issue of advertisements at the cost of public exchequer is prohibited.
Grants, new schemes cannot be announced. Even the schemes that may have been announced before the MCC came into force, but that has not actually taken off in terms of implementation on field are also required to be put on hold.
It is through such restrictions that the advantage of being in power is blunted and the contestants get the opportunity to fight on more or less equal terms.
Is MCC an hindrance in the developmental activities
One often gets to hear the complaint that the MCC is coming in the way of developmental activities.
However, even during the short period when MCC is in operation, the ongoing development activities are not stopped and are allowed to proceed unhindered, and only the new projects, etc., which have not taken off on the ground that have to be deferred till the completion of elections.
If there is any work that cannot wait for any reason, the matter can be referred to the commission for clearance.
Legalising the MCC will be an attempt to fill the loopholes in the laws. However, these loopholes can be easily plugged by inner party democracy and pragmatic election commission’s decisions.
MCC into RP act
MCC is a set of guidelines issued by the Election Commission to regulate the conduct of political parties. It is intended to provide a level playing field for all political parties, to keep the campaign fair and healthy, avoid clashes and conflicts between parties, and ensure peace and order. It was initiated in 1968 and various initiatives were made from time to time by the EC.
The Model Code of Conduct does not have statutory backing and it is more a consensus-driven code arrived at after consultation with all political parties. The Parliamentary Standing Committee on Law and Justice recommended in its 2013 report that statutory status be accorded to the MCC.
Arguments for MCC into RP act
Most of the stipulations of the MCC are already contained in various laws like the violation of the secrecy of voting, causing enmity among communities, etc., are present in RP act, 1951. The remaining stipulations in the MCC should also be accorded statutory backing.
It will become a legal framework which can be justiciable in the court.
It will also seek to regulate activities in social media.
This will enable EC to take adequate action as per the violation committed by political parties.
It will create a fair play for all the contestant without vitiating the atmosphere which can lead to law and order problem.
The decision making power will go to the judiciary and thus the swiftness, expedition and promptness in dealing with the cases of violation of MCC will be gone.
The legal codification of these norms would be a potential nightmare, exposing the entire electoral process to needless litigation. The broad objectives of MCC are best achieved by the oversight of an impartial election watchdog.
Various political parties have also seen this move of legalising the MCC as an attempt of taking the power of election commission.
Supreme Court, in Union of India vs Harbans Sigh Jalal, opined that legalising MCC may not be a suitable option.
Following can be done
The increase in quantum of punishment in case of violation which is already backed by laws under RPA and IPC.
Creating more awareness in political parties about MCC by training and awareness programmes.
Use of whip office in parties to regulate activities during elections. Discouraging the violation of social media by amending IT act. Criminalisation of politics
The latest report by election watchdog Association for Democratic Reforms, 33% MPs in the current Lok Sabha have criminal cases and 21% of MPs have been named in serious criminal cases such as kidnapping, hate speech, and those of crimes against women. Reasons for the criminalisation of politics
Loopholes in the functioning of election commission: Loopholes in the electoral process and lack of powers to election commission of India to scrutinize and prevent criminal elements. Common people hardly come to know the rules made by the commission. MCC is openly flouted by candidates without any stringent repercussions.
Nexus between politicians and criminals: Political Parties are biased towards candidates having money and muscle power because they believe that they can win elections compared to a clean candidate with no money.
Winnability: Many voters who feel that our country’s criminal justice system has broken down actually prefer to vote for those candidates, criminal or otherwise, whom they feel can deliver justice to them. Many perceive the institutions of state to be outside their reach.
The apathy of the voter: Today voters have become accustomed to demanding their price. This further perpetuates the nexus between political parties and criminals.
Denial of justice and rule of law: Toothless laws against convicted criminals standing for elections further encourage this process. In December 2017, the Government announced to set up 12 fast-track courts across the country to try criminal cases pending against sitting MPs and MLAs. 40 per cent of pending cases have been transferred to special courts of which judgments have been pronounced in just 136 cases (11%).
India is seen as a soft state where people do not have fear for laws and or for undergoing punishments, due to which there is no deterrence to indulge in criminal activities. RP act fell short of stopping criminal elements
As per Section 8, a person is disqualified from contesting election only on conviction by the court of law. Due to the huge pendency of cases in courts, the conviction is getting delayed.
There is no clear provision for follow-up action in the event of candidates filing false affidavits.
ECI has no power to call off election based on electoral offences, these are tried in HC which leads to legal hassles and low conviction. Even in corrupt practices which come under ECI do not include provisions of paid media, hate speech, money power etc.
RP act has not been successful in curbing money and muscle power. Muscle power has not even been defined by the act. Money limit has often been breached using different means. For example, donations were split into amounts of less than Rs.20000 for evading reporting.
MCC is not legally enforceable and often parties do not agree voluntarily on what is/are ethically right and wrong.
Hence, despite being a well-framed legislation, RPA can’t tackle criminalisation alone. It needs reforms in internal democracy, financial transparency, partial state funding, empowered ECI, strong judiciary, to ensure that criminals are not allowed to enter the political arena. Electoral reforms
A report from the Association of Democratic Reforms (ADR) shows that 75% of the sources of funding for political parties are unknown which further become one of the major cause of corruption.
Capping of single source donations to rupees 2000 in cash. This would lead to lesser donations in cash.
Allowing political parties to receive donations through cheques and digital means enhance transparency.
Issue of electoral bonds by banks. The electoral bonds which will be issued by notified banks can be redeemed by recognised political parties within a prescribed time limit to ensure anonymity in funding.
Asking parties to file their income tax returns in time would lead to disclosures.
It will help in reducing the problem of financing of political parties using black money.
Money power in elections will decrease significantly as parties can now accept only up to Rs. 2000 in cash.
The functioning of political parties will become more transparent and thus become more accountable towards the public.
It will reduce nexus between big corporate houses and political parties.
In long term it will result in ethical politics and reduction in criminalisation of politics.
Proposed amendments to the RBI Act, IT Act and RP Act would leave the RBI and IT department with no means to probe funding of the political parties.
Electoral bond perhaps leads to anonymous donations.
Political parties will continue to receive most of their funds through anonymous donations which are shown in cash. Unless the source of the Rs. 2,000 contribution is known, the ceiling does not matter.
Despite the order of CIC, political parties have refused to come under the ambit of RTI Act and the recent budget made no punitive measures to bring political parties under the purview of RTI Act.
There is no point of revamping political funding if there is zero accountability on the expenditure of the political parties.
The budget does not promise scrutiny of income declared by political parties from various sources and corresponding measures of penalisation without which the reforms will remain incomplete. Unless scrutiny of accounts of political parties is taken up by a body approved by CAG or ECI, parties declared income is unlikely to reflect their true income.
There is a need to put cap on funding by big corporate houses. Such donations should be made public as done in the US. Also, the law could be enacted to prohibit political parties giving any undue benefits to corporates.
Political parties should be brought under the ambit of RTI as followed in countries like Bhutan, Germany etc.
Budget should have placed a cap on the amount a party may receive in cash as a donation.
Partial state funding of elections should be considered as recommended by Indrajit Gupta committee.
To ensure transparency stricter provisions should be enacted so that parties maintain list of donors and which can be scrutinised easily by IT department.
The funds of the political party should be audited by an independent auditor. The responsibility should not be given to the inside auditor. The details should be placed in public domain.
Arguments in favour of State funding of elections
State funding increases transparency inside the party and also in candidate finance, as certain restrictions can be put along with state funding.
State funding can limit the influence of wealthy people and rich mafias, thereby purifying the election process.
Through state funding, the demand for internal democracy in party, women representations, representations of the weaker section can be encouraged.
The parties depend upon funding by corporate and rich individuals and thus lead to quid-pro-quo.
Arguments against State funding of elections
Through state funding of elections the tax payers are forced to support even those political parties or candidates, whose view they do not subscribe to.
State funding encourages status quo that keeps the established party or candidate in power and makes it difficult for the new parties.
State funding increases the distance between political leaders and ordinary citizens as the parties do not depend on the citizens for mobilization of party fund.
Political parties tend to become organs of the state, rather than being parts of the civil society.
Due to lack of inner party democracy and rampant internal corruption within political parties, the state funds would get misused by the political parties.
Parties would start fielding non-serious candidates just to grab more and more funds from the state. This would lead to wastage of citizens monetary resources.
Software written onto a one-time programmable chip.
Standalone machines that are not networked.
The lack of any frequency receiver or wireless decoder that will allow for communication externally.
Advancements in newly deployed machines that allow for self-diagnostics to render the machines tamper-proof among other
Combining this with administrative safeguards that allow for rigorous checks at various levels, such as after manufacture, during deployment, and so on.
The randomisation of deployment of machines, a listing of candidates in alphabetical order rather than on party basis on ballot units.
Sealing of machines by political party representatives after polling.
Storing in high-security strong rooms. Universal adult suffrage in India
The democracy in India is said to be of the people, for the people and by the people. The realisation of this maxim was to be brought about through the Universal Adult Franchise. The aim was to make India a vibrant, deliberative, impartial and participatory democracy.
This concept was chosen because of the colonial experience where council seats were non-elective and were based on a restricted franchise. This led to the inclusion of zamindars, rajas and other nobility class people in councils who had no interest in raising public issues.
Success of the concept
The voter participation has been increasing.
The share of votes from rural and marginalised section has seen a greater turnout aiming to steer the ship of governance.
We can see a rise in women voters and the universal adult franchise has served as a tool for empowerment.
Poor governance by parties has resulted in their exit as a result of the universal adult franchise.
The universal adult franchise has ensured that minorities wield sufficient power so as not to get neglected.
Role of election commission in this regard
EC has managed the mammoth logistics associated with conducting elections in huge country like India.
EC has been able to maintain fair conduct of elections through Moral Code of Conduct (MCC) and efficient administration.
Enlisting, updating and issuing of voter cards to eligible citizens irrespective of race, gender, class, caste etc. Launch of National Voter Service Portal to provide these services.
Making sure polling booths are accessible to people residing in remote places. Postal ballots for Army and NRIs
Anonymity on choice of voter is vital and EC has been able to manage that.
EC has been taking timely and painstaking efforts to ensure that citizens understand the importance of voting.
However there exist some issues like election rigging on account of bogus polling, political and money, muscle power which need to be addressed.
Political parties under RTI
The move to place political parties under RTI had drawn up sharp protests from all major parties. The issue is still under debate and political parties still don’t come under RTI.
RTI act section 2 includes owned, controlled or substantially financed bodies by Government under its ambit. As political parties are allotted government land at subsidised rates and are allotted free time on AIR and Doordarshan among other things, they must be covered under the RTI act.
Political parties are the direct link between the government and the citizens. If we expect transparency from the government there must be a similar expectation from the political parties.
Although parties have to declare to the Election Commission all donations in excess of Rs. 2000 they receive, they resort to under-reporting to evade this clause. So the inclusion of them can curb black money and can reduce the influence of money in elections.
Public respect for political parties is already at an all-time low. This will increase the credibility of parties and increase voters confidence in them.
It would also strengthen internal democracy among the parties as parties try to project themselves more democratic than others.
It can give morale boost for all the NGOs to disclose their revenues etc.
Political rivals with malicious intentions would file RTI applications, thereby adversely affecting the functioning of the parties.
Political parties do not maintain the documentation needed to respond to wide ranging RTI queries and they now need to establish a new organisation only to fulfil the RTI obligations.
According to the political parties, divulging certain details under the RTI act may distort the entire process of internal democracy of the party.
RTI will adversely affect cash contributions or will further discourage parties from reporting them.
Benefits of being recognised as national party
The candidates of recognised parties are entitled for free supply of certain materials like such number of copies of electoral rolls.
National party recognition leads to a reserved symbol for its candidates contesting from across the country.
Candidates from a national party require only one proposer to file their nominations and are entitled to two sets of electoral rolls free of cost.
National parties get dedicated broadcast slots on public broadcasters Doordarshan and AIR during the general elections.
A national party can have a maximum of 40-star campaigners while a registered unrecognised party can nominate a maximum of 20 star campaigners, whose travel expenses are not accounted for in the election expense accounts of candidates.
The proposed amendments to the Representation of People act, 1951 for the introduction of state funding of election provides for extending financial assistance only to the recognised party.
Right to recall
A recall election (recall referendum) is a procedure by which voters can remove an elected official from office through a direct vote before their term has ended. This is not a new concept for India. Rajdharma concept, wherein the lack of effective governance was a cause for removal of a king, has been spoken about since the Vedic times.
MN Roy, in 1944, proposed a shift to a decentralised and devolved form of governance, allowing for representatives to be elected and recalled.
Advantages of right to recall
A free and fair election is the right of the citizens of the country. When their elected representatives no longer enjoy the confidence of the people, the people must have a right to remove them.
A right to recall option enhances the accountability of the elected representative.
Right to Recall is a right that would act as a significant check on corruption along with ongoing criminalisation of politics.
Having a process to recall could also limit campaign spending, as morally skewed candidates weigh the risk of being recalled.
This right would help engender direct democracy in our country, broadening access and raising inclusiveness.
What could be done
It is necessary to ensure that a recall process is not frivolous and does not become a source of harassment to elected representatives.
Thus, the process should have several built-in safeguards such as an initial recall petition to kick-start the process and electronic-based voting to finally decide its outcome.
Furthermore, it should ensure that a representative cannot be recalled by a small margin of voters and that the recall procedure truly represents the mandate of the people.
To ensure transparency and independence, chief petition officers from within the Election Commission should be designated to supervise and execute the process.
State election commission (SEC)
Bringing SECs under ECI
Bringing SEC under the control of ECI will give it the required independence from state governments.
This would also ensure a commonality of approach in the electoral process.
Repeal SECs and amend powers of ECI
However, one independent constitutional authority cannot function under another constitutional authority. The only alternative would be to repeal Article 243K and amend Article 324 entrusting local elections to the Election Commission of India.
Article 324 provides for the appointment of Regional ElectionCommissioners. A Regional commissioner could then be appointed for each state under this provision and it could function as the SEC for local elections.
Only strengthen SEC
Against this, it has also been argued that, as the number of local bodies is so large, the ECI would hardly have the time to attend to election-related matters in respect of local governments.
Now that every State has constituted its SEC, repealing Article 243K and abolishing these offices would be impractical. So the focus should be on strengthening the independence of the SEC.
SEC should be appointed by a collegium comprising the Chief Minister, the Chief Justice of the high court and the leader of the opposition. Uniform criteria need to be evolved and institutionalised regarding the qualifications, tenure and age of retirement.
SECs should be accorded the status of a judge of a High Court in the same manner as CEC in the Election Commission of India is accorded the status of Judge of the Supreme Court.