Reforms in Need

 

    Reforms in Need

 

ACCOUNTABILITY OF CIVIL SERVANT
Meaning:
  • In all democratic countries, civil servants are accountable both to the political executive and to citizens for ensuring responsive, transparent and honest policy implementation and service delivery.
  • But ensuring accountability for performance is not a simple task in government service; there are immense complexities involved in making public officials answerable for outputs and outcomes.
  • Setting performance targets and their measurement is easier in respect of service delivery agencies particularly when the service provided is tangible and thus an easily measured unit but for many public organizations where the output is policy related and therefore, not very concrete, assessment of performance becomes much more complicated.
  • The diffusion of responsibility and authority across different levels in Government and the lack of linkage between authority and accountability also lead to a system where plausible alibis for non-performance abound, particularly for activities that cut across departmental dividing lines or across different functional divisions within departments.
  • Accountability of the executive arm of government to Parliament and to the citizens of the country is of course the fundamental feature of a democracy.
  • The final expression of accountability in a democracy is through the medium of periodic elections which is an instrument for punishing and rewarding the Government of the day, and therefore, serves as an ultimate instrument of accountability.
  • An independent judiciary embodies the constitutional “Doctrine of separation of powers” and is another important element in the system of checks and balances that exists in any democratic country.
  • In India, constitutional and statutory bodies such as the office of the Comptroller & Auditor General, the Election Commission, and the Central Vigilance Commission (CVC) are examples of other oversight mechanisms that are autonomous but lie within the framework of the State.

 

Public perception about civil servants:
  • The public perception today is that government servants are unresponsive to the needs and concerns of citizens and the system does not address this problem because the mechanisms to ensure accountability, integrity and efficiency of public servants do not appear to be adequate.
  • The common perception is that initiation of disciplinary action against incompetent and erring government servants is more an exception than the rule. This is supported by a plethora of anecdotal evidence.
  • Data obtained from the UPSC and the CVC clearly bring out that there are very few cases where disciplinary proceedings result in imposition of substantial penalties.
  • In 2006-07 alone, 379 disciplinary cases were dealt against Group A civil servants and 3 were dismissed from the service.

The life-long job security provided to a government servant further leads to such a distorted incentive structure because it is a fact that under the present system, very rarely is a government servant punished or removed for poor performance. As a result, an element of complacency and inertia has got internalized in the civil services.

While the performance of government organizations and their sub-units are periodically subjected to in-depth reviews, seldom are efforts made to link organizational performance to the performance of an individual civil servant.

In fact, at present, annual confidential records of civil servants are the only mechanism to assess the performance of a government servant and these records are used to evaluate the fitness of a civil servant usually at the time of promotion.

 

Ways to Promote Accountability to Citizens:
  • Accountability also means answerabilitye. questions asked of public officials have to be answered by them.
  • There are two types of questions that can be asked.
  • One type as under the RTI Act merely seeks information/data and involves one way transmission of information. It promotes transparency and to a much lesser degree accountability in Government.
  • The second type of question enquires not just as to what was done but why; and therefore involves a consultative two-way flow of information with the citizens usually providing a feedback in respect of the working of government departments and service delivery of public agencies. Such mechanisms include citizens’ charters, service delivery surveys, social audits, citizens’ report card and outcome surveys.

 

Civil Servant’s Accountability for Good Governance
  • The civil servants have always played a pivotal role in ensuring continuity and change in administration. However, they are dictated by the rules and procedures which are formulated taking their advice into account.
  • It is the ‘rule of law’ rather than the ‘rule of man’ that is often blamed for widespread abuse of power and corruption among government officials.
  • The explosion of media in the recent past has opened civil servants to external scrutiny and called for transparent accountability mechanisms in terms of outcomes and results not processes.
  • The issues of accountability of civil servants in service delivery have come to the forefront in all dialogues regarding civil service reforms. The credibility of civil service lies in the conspicuous improvement of tangible services to the people, especially at the cutting edge.
  • Conceptually, the civil servants are accountable to the minister in charge of the department, but in practice, the accountability is vague and of a generalised nature.
  • Since there is no system of ex ante specification of accountability the relationship between the minister and the civil servants is only issue-sensitive.
  • The civil servants deal with the minister as the issues present themselves. The accountability relationship can be anything from all-pervasive to minimalistic and it is left to the incumbent minister to interpret it in a manner that is most convenient to him.

 

2nd ARC Recommendations to promote accountability:
  • A system of two intensive reviews – one on completion of 14 years of service, and another on completion of 20 years of service – should be established for all government servants.
  • The first review at 14 years would primarily serve the purpose of intimating to the public servant about his/her strengths and shortcomings for his/ her future advancement. The second review at 20 years would mainly serve to assess the fitness of the officer for his/her further continuation in government service. The detailed modalities of this assessment system would need to be worked out by government.
  • The services of public servants, who are found to be unfit after the second review at 20 years, should be discontinued. A provision regarding this should be made in the proposed Civil Services Law. Besides, for new appointments it should be expressly provided that the period of employment shall be for 20 years. Further continuance in government service would depend upon the outcome of the intensive performance reviews.

 

 

 

PERFORMANCE BASED EVALUATION

The Conventional Performance Management System
  • Traditionally governance structures in India are characterized by rule-based approaches. The focus of the civil services in India is on process-regulation: compliance with centrally prescribed standards and rules; in other words, how things should be done and how inputs should be aligned.
  • With such focus on processes, systems in government are oriented towards input usage- how much resources, staff and facilities are deployed in a scheme, programme or project and whether such deployment is in accordance with rules and regulations.
  • The main performance measure thus is the amount of money spent and the success of the schemes, programmes and projects is generally evaluated in terms of the inputs consumed.
  • While such an approach satisfies the considerations of economy of inputs and compliance with process regulation, it fails to indicate what are the results achieved by the activities of government in general and deployment of public funds in particular.
  • In fact, the focus on input for accountability and control has led to a situation in which civil servants are rarely held accountable for the outcomes. Compliance with rules is not sufficient for achieving outcomes.
  • Obviously, the objective must be to shift the focus away from traditional concerns such as expenditure and activity levels towards a framework that would manage for results by developing robust indicators to assess performance in terms of results.
  • Performance management as it exists in government includes conventional tools like the budgetary exercise, annual reports published by the Ministries/Departments, performance budgets and the recently introduced outcome budget.
  • Ministries and departments of government have varying practices of periodically reviewing their organizational performance.
  • In addition, special studies are also commissioned from time to time. These are the basic requirements of a performance management system and much more is required to be done.

 

Prevailing Performance Appraisal Systems for Civil Servants:
  • As performance of an organization/agency is dependent on the performance of individual civil servants, over a period, an elaborate mechanism to evaluate the performance of individual government servants has evolved.
  • These individual performance appraisal systems can be categorized as follows:
1.      Conventional closed system of ACR (Annual Confidential Report) This is the traditional system, where at the end of a pre-set period (usually a calendar year), achievements of the officer are recorded and graded, absolutely or relatively. The significant feature of this method is the complete secrecy of the exercise, both in process and results, unless the rules specifically mention otherwise. Adverse remarks are communicated to the officer reported upon.
2.      Performance Appraisal with openness

 

This system is an improvement of the above, with the added feature of transparency and involvement of the officer at different levels. It involves setting goals at the start of the assessment period, reviews during the period and final assessment against achievement of goals. Finally, performance excellence is decided by a number (grades of 1-10) to be assigned by the reporting officer.

 

System in India
  • The performance of every Government servant is assessed annually through his/ her Confidential Report, which is an important document providing the basic and vital inputs for assessing the performance of the Government servant and his/her suitability for his/her further advancement in his/her career on occasions like confirmation, promotion, crossing of EB, selection for deputation, selection for foreign assignment etc.
  • Performance appraisal through confidential reports is a tool for human resource development in order to enable a Government servant to realise his/her true potential. It is not a fault finding process, but a development one.
  • The Reporting Officer, at the beginning of the year, has to set quantitative/ physical targets in consultation with each of the Government servants, whose reports he/ she is required to write. Performance appraisal is meant to be a joint exercise between the Government servant reported upon and the Reporting Officer.
  • While fixing the targets, priority should be assigned item-wise, taking into consideration the nature and the area of work.
  • The Confidential Report is initiated by the Government servant to be reported upon, who gives a brief description of his/her duties, specifies the targets set for him wherever applicable, achievements against each target, shortfalls, if any, constraints encountered and areas where the achievements have been greater.
  • In accordance with the recommendations of the Committee constituted under the Chairmanship of Lt Gen. (Retd.) Surinder Nath in 2002, the Performance Appraisal System for All India Service Officers has been modified and the salient features include setting of goals in consultation with the appraised officer, a numerical grading system (scale of 1 to 10), introduction of a pen picture of the appraisee, sharing the entire PAR with the appraisee officer, etc.

 

Analysis of the Present Performance Appraisal System for Civil Servants

The prevalent closed system for appraisal of civil servants in India (other than the All India Services) has major limitations. These include:

  • It lacks in quantification of targets and evaluation against achievement of targets.
  • Confusion still prevails among civil servants regarding what is good performance and the level of performance expected from them, by their department, superiors, and the public. The system is affected by unclear performance standards, possible bias on the part of superiors, political influence, etc.
  • The existing performance appraisal does not solve the problem of poor performance.
  • Performance appraisal becomes meaningless in certain cases where the job fitness is ignored while posting an officer, and where there are frequent transfers. At the same time, perceived clash between an individual’s career goals and organizational goals further compounds the situation.
  • The format may be good but sometimes the way it is filled up shows lack of due care and seriousness. This could also be because of the large span of supervision of most Government officers, which mandates them to write the ACRs of so many officers, some of whom they may not even personally recognise.
  • Since the present system shares only an adverse grading, a civil servant remains unaware about how he/she is rated in his/her work.
  • Many reporting officers pay little attention to distinguish good and average workers while grading them. Consequently, most Government officials end up getting very good/outstanding grading which is considered “good for promotion” and hence there is no motivation for real performers.
  • The system of deciding on representations against an adverse entry sometimes take so long that reporting officers avoid giving an adverse entry. Many a time, for want of evidence against the reported civil servant, the reporting officer is in a defensive position and thus unable to justify his/her adverse remarks.

The focus still continues to be on ratings and evaluation rather than on performance planning, analysis, review development and improvements which ultimately enables employees to achieve superior performance.

 

Gaps in Performance Management System:

Present

• Individual rankings

• Appraisal

Periodicity – annual

• Outputs .

• Performance and

pay not related

Ratings

Top-down

Directive

Monolithic

Present Desired
  • Individual rankings
  • Appraisal
  • Periodicity – annual
  • Outputs .
  • Performance and pay not related
  • Ratings
  • Top-down
  • Directive
  • Monolithic
  • Process
  • Joint review
  • Periodicity – more periodic
  • Outputs/Outcomes
  • Performance related pay
  • Ratings – Consultative
  • Supportive
  • Flexible

 

360 Degree Evaluation:

During the past few decades, the 360 degree feedback, also known as “multi-source feedback” has gained momentum in performance management literature. Its application today transcends national boundaries. 360 degree feedback augments the traditional practice of self-supervising performance appraisal by getting feedbacks from multipurpose sources which include:

  • Self
  • Superiors
  • Peers
  • Subordinates
  • Internal Customers
  • External Customers
  • Others

 

Government has taken a step forward towards introduction of a performance management system by making a provision in the proposed Public Services Bill 2007 which provides that the Government shall, within a period of twelve months from the coming into force of this Act, establish a Performance Management System for Public Service employees, including-

  • The priorities, objectives, indicators and targets as part of the Government’s strategic plans, availability of resources, constraints on performance and outcomes and skills of the public servants.
  • Preparation of performance indicators and its periodical review, preparation and submission of Performance Appraisal Report of each employee with well-defined principles for achievement of targets set for the year.

 

2nd ARC Recommendations:

The existing performance appraisal system should be strengthened on the following lines:

  • Making appraisal more consultative and transparent – performance appraisal systems for all Services should be modified on the lines of the recently introduced Performance Appraisal Report for the All India Services.
  • Performance appraisal formats to be made job specific – the appraisal format prescribed for civil servants should have three sections i.e.
  • a generic section that meets the requirements of a particular service to which the officer belongs,
  • another section based on the goals and requirements of the department in which he/she is working, and
  • a final section which captures the specific requirements and targets relating to the post that the officer is holding.
  • Performance appraisal should be year round – provisions for detailed work-plan and a mid-year review should be introduced for all Services.
  • Guidelines need to be formulated for assigning numerical rating – DOPT should formulate detailed guidelines to guide the reporting and reviewing officers for assigning numerical ratings for their subordinates. Training modules for implementing performance management systems should be designed and introduced for training programmes for civil servants.
  • Government should expand the scope of the present performance appraisal system of its employees to a comprehensive performance management system (PMS).
  • In implementing PMS in government, it must be emphasized that the PMS should be designed within the overall strategic framework appropriate to the particular ministry/department/organization. It is also necessary to link individual contributions to strategic objectives of the organization. It will therefore be necessary for each ministry/department/organization to customize its PMS relevant to them, while incorporating the general features
  • Annual performance agreements should be signed between the departmental minister and the Secretary of the ministry/heads of departments, providing physical and verifiable details of the work to be done during a financial year. The actual performance should be assessed by a third party – say, the Central Public Services Authority – with reference to the annual performance agreement. The details of the annual performance agreements and the result of the assessment by the third party should be provided to the legislature as a part of the Performance Budget/Outcome Budget.

 

 

CODE OF ETHICS AND WORK ETHICS

CODE OF ETHICS

  • Ethics is a “set of principles of right conduct”.
  • It has been defined as a “set of values and principles which helps guide behaviour, choice and actions. It helps to decide whether ones’ actions are right or wrong”.
  • Organizations as well as individuals have ethical standards. These standards help ensure that individuals belonging to an organization have a consistent approach in carrying out their responsibilities and making decisions.
  • They also ensure that members of an organization maintain a consistent and appropriate behaviour towards one another and towards clients and persons outside the organization.
  • Civil servants have special obligations because they are responsible for managing resources entrusted to them by the community, because they provide and deliver services to the community and because they take important decisions that affect all aspects of a community’s life.
  • The community has a right to expect that the civil service functions fairly, impartially and efficiently. It is essential that the community must be able to trust and have confidence in the integrity of the civil service decision-making process.
  • Within the civil service itself, it needs to be ensured that the decisions and actions of civil servants reflect the policies of the government of the day and the standards that the community expects from them as government servants.
  • The expectation that the civil service will maintain the same standards of professionalism, responsiveness and impartiality in serving successive political governments is a key element of the way our democratic polity functions.
  • In a democracy, an efficient civil service must have a set of values that distinguishes it from other professions. Integrity, dedication to public service, impartiality, political neutrality, anonymity etc are said to be the hallmarks of an efficient civil service.

In India the current set of ethical norms are the Conduct Rules contained in the Central Services (Conduct Rules), 1964 and analogous rules are applicable to the members of All India Services or employees of various state governments.

The code of behaviour as enunciated in the Conduct Rules, while containing some general norms like ‘maintaining the integrity and absolute devotion to duty’ and not indulging in ‘conduct unbecoming of government servant’ is generally directed towards cataloguing specific activities deemed undesirable for the government servants. These Conduct Rules do not constitute Code of Ethics.

There is no Code of Ethics prescribed for civil servants in India although such Codes exist in other countries. There should be a clear and concise statement of the values and ethical standards that a civil servant should imbibe. These values should reflect public expectations from a civil servant with reference to political impartiality, maintenance of highest ethical standards and accountability for actions.

In addition to commitment to the Constitution these values should also include:

  • Adherence to the highest standards of probity, integrity and conduct Impartiality and non-partisanship
  • Objectivity
  • Commitment to the citizens’ concerns and public good
  • Empathy for the vulnerable and weaker sections of society.

Drawing from seven principles of public life enunciated by the Nolan Committee in UK, following principles in the Code of Ethics for civil servants in India can be included:

  • Integrity: Civil servants, should be guided solely by public interest in their official decision making and not by any financial or other consideration either in respect of themselves, their families or their friends.
  • Impartiality: Civil servants in carrying out their official work, including functions like procurement, recruitment, delivery of services etc, should take decisions based on merit alone.
  • Commitment to public service: Civil servants should deliver services in a fair, effective, impartial and courteous manner.
  • Open accountability: Civil servants are accountable for their decisions and actions and should be willing to subject themselves to appropriate scrutiny for this purpose.
  • Devotion to duty: Civil servants maintain absolute and unstinting devotion towards their duties and responsibilities at all times.
  • Exemplary behaviour: Civil servants shall treat all members of the public with respect and courtesy and, at all times, should behave in a manner that upholds the rich traditions of the civil services.

The Draft Public Services Bill, 2007 proposes the necessary first step towards evolving a code of ethics. It states in Chapter III:

  • Values of Public Service: The Public Service and the Public Servants shall be guided by the following values in the discharge of their functions:
  • patriotism and upholding national pride
  • allegiance to the Constitution and the law of the nation
  • objectivity, impartiality, honesty, diligence, courtesy and transparency maintain absolute integrity
  • Review of Public Service Values: The Central Authority may from time to time review the adoption, adherence to and implementation of the Public Service Values in the departments or organizations under the Central Government and send reports to the Central Government.
  • Public Services Code: The Government shall promote the Public Service Values and a standard of ethics in the Public Service operations, requiring and facilitating every Public Service employee:
    • to discharge official duties with competence and accountability; care and diligence; responsibility, honesty, objectivity and impartiality; without discrimination and in accordance with law
    • to ensure effective management, professional growth and leadership development
    • to avoid misuse of official position or information and using the public moneys with utmost care and autonomy
    • function with the objective that Public Services and Public Servants are to serve as instruments of good governance and to provide services for the betterment of the public at large; foster socio-economic development, with due regard to the diversity of the nation but without discrimination on the ground of caste, community, religion, gender or class and duly protecting the interest of poor, underprivileged and weaker sections.
2nd ARC Recommendations:
  • Civil Services Values’ and the ‘Code of Ethics’ should be incorporated in the proposed Civil Services Bill.
  • Conduct Rules for civil servants need to be redrawn based on the values and code of ethics like:
    • Integrity
    • Impartiality
    • Commitment to public service
    • Open accountability
    • Devotion to duty
    • Exemplary behaviour

 

 

WORK ETHICS

 

Work ethicis a belief that hard work and diligence have a moral benefit and an inherent ability, virtue or value to strengthen character and individual abilities.

  • It is a set of values centred on importance of work and manifested by determination or desire to work hard.
  • Social ingrainment of this value is considered to enhance characterthrough hard work that is respective to an individual’s field of work.

 

Factors of good work ethics:
  • Proponents of a strong work ethic consider it to be vital for achieving goals, that it gives strength to their orientation and the right mindset.
  • A work ethic is a set of moral principles a person uses in their job. People who possess a strong work ethic embody certain principles that guide their work behaviour; to develop and process a strong work ethic will inevitably result in the production of high-quality work which is consistent. The output motivates them to stay on track. 
  • A good work ethic fuels an individual’s needs and goals, it is related to the initiative by a person for the objectives. It is considered as a source of self-respect, satisfaction, and fulfilment.

 

Factors are:
  • Goal-oriented actions: It is not about making plans or the next logical steps; it’s about getting things done so that the work invested wouldn’t be counter-productive.
  • Prioritized focus: Focusing on qualitative activities that a person is responsible for and in areas where they can make a difference or a high impact based on objectives.
  • Being available and reliable: Spending time on the work and building oneself up for the task.
  • Conscientiousness: A desire to do a task well, being vigilant and organized.
  • Creating a rewarding routine/system: Engaging in tasks that provide strength and energy which can be transferred to your ultimate goals, creating a habit and a habitat for success.
  • Embracing positivism: Shape a problem with the statement “good, (action) (problem)”, e.g. “I’m tired and it is time for a workout” leads to “Good. Workout tired”.

 

A negative work ethic is a behaviour of a single individual or a group that has led to a systematic lack of productivity, reliability, accountability and a growing sphere of unprofessional/unhealthy relationships (e.g., power politics, lack of social skills, etc.).

 

Meaning:
  • Ethics is grounded in the notion of responsibility and accountability. In democracy, every holder of public office is accountable ultimately to the people. Ethics provides the basis for the creation of such laws and rules. Our legal system emanates from a shared vision of what is good and just which forms the basis of ethical governance in India.
  • Ethical governance denotes administrative measures, procedures and policies that fulfill criteria required for the ethically good or acceptable handling of public affairs, such as in public administration, public health care, education, and social security.
  • In the context of public administration, ethically good or acceptable behavior is often defined in terms of justice, fairness, equality, and integrity. Thus, ethical governance is a normative expression and not a purely descriptive one.

 

 

Minimalist concept of ethical governance

The minimalist concept of ethical governance states absolute prohibitions that public authorities and civil servants are forbidden to violate in all circumstances. They include prohibitions of all forms of corruption (e.g., bribery, graft, and nepotism), extortion and coercion, deception, theft, and discrimination.
Maximal concept of ethical governance The maximal concept of ethical governance additionally invokes positive commands, such as ‘Be fair and impartial’, ‘Safeguard the well-being of citizens’, and ‘Take good care of the administrative tasks entrusted to you’.

 

Components of Ethical Governance:
  • Accountability – Decision-makers in government, the private sector and civil society organizations should be accountable to the public as well as to institutional stakeholders. This accountability differs depending on the organization and whether the decision is internal or external to an organization. For example, Citizen charter is one of the ways through which ethical governance can be upheld.
  • Transparency – Transparency in governance basically means people should be able to access public information when they want it. They should be able to know what public officials are doing and how the policies are being implemented. Citizens demand greater transparency from governments and require information on who, why and how of decision making. For example, Right to Information is the foremost tool to maintain transparency.
  • Rule of Law – The rule of law primarily means that everything must be done according to law. Applied to the powers of government, this requires that every government authority which does some act which would otherwise be a wrong or which infringes on a man’s liberty, must be able to justify its action as authorised by Law and in nearly every case this will mean authorised directly or indirectly by legal provisions. For example, following the letter and spirit of law during riot situations.
  • Citizen’s Participation – Citizen’s Participation in governance is fundamental to democracy as the ultimate power vests with the people. Interaction is one important aspect in governance. There are complex ways in which public, private and social organizations interact and learn from one another. It is also the manner in which citizens contribute to the  ethical governance system, directly and indirectly through their collective participation in civil, public and corporate institution. For example, Social audit is one of the prime examples of Citizens participation.

 

2nd ARC Recommendations to ensure Ethical Governance:

Reform of Political Funding

  • A system for partial state funding should be introduced in order to reduce the scope of illegitimate and unnecessary funding of expenditure for elections.

 

Tightening of Anti-Defection Law

  • The issue of disqualification of members on grounds of defection should be decided by the President/Governor on the advice of the Election Commission.

 

Disqualification

  • Section 8 of the Representation of the People Act, 1951 needs to be amended to disqualify all persons facing charges related to grave and heinous offences and corruption, with the modification suggested by the Election Commission.

 

Coalition and Ethics

  • The Constitution should be amended to ensure that if one or more parties in a coalition with a common programme mandated by the electorate either explicitly before the elections or implicitly while forming the government, realign midstream with one or more parties outside the coalition, then Members of that party or parties shall have to seek a fresh mandate from the electorate.

 

Appointment of the Chief Election Commissioner/Commissioners

  • A collegium headed by the Prime Minister with the Speaker of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the Law Minister and the Deputy Chairman of the Rajya Sabha as members; should make recommendations for the consideration of the President for appointment of the Chief Election Commissioner and the Election Commissioners.

 

Expediting Disposal of Election Petitions

  • Special Election Tribunals should be constituted at the regional level under Article 323B of the Constitution to ensure speedy disposal of election petitions and disputes within a stipulated period of six months. Its mandate should be to ensure that all election petitions are decided within a period of six months as provided by law.

 

Grounds of Disqualification for Membership

  • Appropriate legislation may be enacted under Article 102(e) of the Constitution spelling out the conditions for disqualification of Membership of Parliament in an exhaustive manner. Similarly, the States may also legislate under Article 198(e).

 

Ethical Framework for Ministers

  • In addition to the existing Code of Conduct for Ministers, there should be a Code of Ethics to provide guidance on how Ministers should uphold the highest standards of constitutional and ethical conduct in the performance of their duties.
  • An annual report with regard to the observance of these Codes should be submitted to the appropriate legislature. This report should include specific cases of violations, if any, and the action taken thereon.

 

Enforcement of ethical norms in Legislatures

  • An Office of ‘Ethics Commissioner’ may be constituted by each House of Parliament. This Office, functioning under the Speaker/Chairman, would assist the Committee on Ethics in the discharge of its functions, and advise Members, when required, and maintain necessary records.

 

Office of Profit
  • The Law should be amended to define office of profit based on the following principles:
    • All offices in purely advisory bodies shall not be treated as offices of profit, irrespective of the remuneration and perks associated with such an office.
    • All offices involving executive decision making and control of public funds, including positions on the governing boards of public undertakings and statutory and non-statutory authorities directly deciding policy or managing institutions or authorising or approving expenditure shall be treated as offices of profit, and no legislator shall hold such offices.
    • If a serving Minister, by virtue of office, is a member or head of certain organizations like the Planning Commission, where close coordination and integration between the Council of Ministers and the organization or authority or committee is vital for the day-to- day functioning of government, it shall not be treated as office of profit.

Code of Ethics for Civil Servants

  • Public Service Values’ towards which all public servants should aspire, should be defined and made applicable to all tiers of Government and parastatal organizations. Any transgression of these values should be treated as misconduct, inviting punishment.
  • Conflict of interests should be comprehensively covered in the code of ethics and in the code of conduct for officers. Also, serving officials should not be nominated on the Boards of Public undertakings. This will, however, not apply to non-profit public institutions and advisory bodies.

 

Code of Ethics for Regulators

  • A comprehensive and enforceable code of conduct should be prescribed for all professions with statutory backing.

 

Ethical Framework for the Judiciary

  • A National Judicial Council should be constituted, in line with universally accepted principles where the appointment of members of the judiciary should be by a collegium having representation of the executive, legislature and judiciary. The Council should have the following composition:

 

    • The Vice-President as Chairperson of the Council
    • The Prime Minister
    • The Speaker of the Lok Sabha
    • The Chief Justice of India
    • The Law Minister
    • The Leader of the Opposition in the Lok Sabha
    • The Leader of the Opposition in the Rajya Sabha
    • In matters relating to the appointment and oversight of High Court Judges, the Council will also include the following members:
    • The Chief Minister of the concerned State
    • The Chief Justice of the concerned High Court
    • The National Judicial Council should be authorised to lay down the code of conduct for judges, including the subordinate judiciary.
  • Speeding up Trials under the Prevention of Corruption Act:
    • A legal provision needs to be introduced fixing a time limit for various stages of trial. This could be done by amendments to the CrPC.
    • Steps have to be taken to ensure that judges declared as Special Judges under the provisions of the Prevention of Corruption Act give primary attention to disposal of cases under the Act. Only if there is inadequate work under the Act, should the Special Judges be entrusted with other responsibilities.
    • It has to be ensured that the proceedings of courts trying cases under the Prevention of Corruption Act are held on a day-to-day basis, and no deviation is permitted.
    • The Supreme Court and the High Courts may lay down guidelines to preclude unwarranted adjournments and avoidable delays.

 

Corruption Involving the Private Sector

  • The Prevention of Corruption Act should be suitably amended to include in its purview private sector providers of public utility services.
  • Non-Governmental agencies, which receive substantial funding, should be covered under the Prevention of Corruption Act. Norms should be laid down that any institution or body that has received more than 50% of its annual operating costs, or a sum equal to or greater than Rs 1 crore during any of the preceding 3 years should be deemed to have obtained ‘substantial funding’ for that period and purpose of such funding.

 

Protection to Whistle-blowers

  • Legislation should be enacted immediately to provide protection to whistle-blowers on the following lines proposed by the Law Commission:
  • Whistle-blowers exposing false claims, fraud or corruption should be protected by ensuring confidentiality and anonymity, protection from victimisation in career, and other administrative measures to prevent bodily harm and harassment.
  • The legislation should cover corporate whistle-blowers unearthing fraud or serious damage to public interest by wilful acts of omission or commission.
  • Acts of harassment or victimisation of or retaliation against, a whistle-blower should be criminal offences with substantial penalty and sentence.

 

Serious Economic Offences

  • A new law on ‘Serious Economic Offences’ should be enacted. A Serious Economic Offence may be defined as :
  • One which involves a sum exceeding Rs 10 crores; or
  • is likely to give rise to widespread public concern; or
  • its investigation and prosecution are likely to require highly specialised knowledge of the financial market or of the behaviour of banks or other financial institutions; or
  • involves significant international dimensions; or
  • in the investigation of which there is requirement of legal, financial, investment and investigative skills to be brought together; or
  • which appear to be complex to the Union Government, regulators, banks, or any financial institution.

 

Constitutional Protection to Civil Servants – Article 311

  • Article 311 of the Constitution should be repealed.
  • Simultaneously Article 310 of the Constitution should also be repealed.
  • Suitable legislation to provide for all necessary terms and conditions of services should be provided under Article 309, to protect the bona fide action of public servants taken in public interest; this should be made applicable to the States.
  • Necessary protection to public servants against arbitrary action should be provided through such legislation under Article 309.

 

Ombudsman at the Local Levels

    • A local bodies Ombudsman should be constituted for a group of districts to investigate cases against the functionaries of the local bodies. The State Panchayat Raj Acts and the Urban Local Bodies Act should be amended to include this provision.

 

Citizens’ Initiatives

  • Citizens’ Charters should be made effective by stipulating the service levels and also the remedy if these service levels are not met.
    • Citizens may be involved in the assessment and maintenance of ethics in important government institutions and offices.
    • Reward schemes should be introduced to incentivise citizen’s initiatives.
    • School awareness programmes should be introduced, highlighting the importance of ethics and how corruption can be combated.

 

False Claims Act

  • Legislation on the lines of the US False Claims Act should be enacted, providing for citizens and civil society groups to seek legal relief against fraudulent claims against the government. This law should have the following elements:
  • The economic offences unit of states need to be strengthened to effectively investigate cases and there should be better coordination amongst existing agencies.
  • Any citizen should be able to bring a suit against any person or agency for a false claim against the government.
  • If the false claim is established in a court of law, then the person/ agency responsible shall be liable for penalty equal to five times the loss sustained by the exchequer or society.
  • The loss sustained could be monetary or non-monetary as in the form of pollution or other social costs. In case of non-monetary loss, the court would have the authority to compute the loss in monetary terms.
  • The person who brought the suit shall be suitably compensated out of the damages recovered.

 

Role of Media

  • It is necessary to evolve norms and practices requiring proper screening of all allegations/complaints by the media, and taking action to put them in the public domain.
  • The electronic media should evolve a Code of Conduct and a self regulating mechanism in order to adhere to a Code of Conduct as a safeguard against malafide action.
  • Government agencies can help the media in the fight against corruption by disclosing details about corruption cases regularly.

 

Using Information Technology

  • Each Ministry/Department/Organization of Government should draw up a plan for use of IT to improve governance. In any government process, use of Information Technology should be made only after the existing procedures have been thoroughly re-engineered.
  • The Ministry of Information and Technology needs to identify certain governmental processes and then take up a project of their computerisation on a nationwide scale.

 

Integrity Pacts

  • The Commission recommends encouragement of the mechanism of ‘integrity pacts’. The Ministry of Finance may constitute a Task Force with representatives from Ministries of Law and Personnel to identify the type of transactions requiring such pacts and to provide for a protocol for entering into such a pact. The Task Force may, in particular, recommend whether any amendment in the existing legal framework like the Indian Contract Act, and the Prevention of Corruption Act is required to make such agreements enforceable.

 

Reducing discretion

  • All government offices having public interface should undertake a review of their activities and list out those which involve use of discretion. In all such activities, attempt should be made to eliminate discretion. Where it is not possible to do so, well-defined regulations should attempt to ‘bound’ the discretion. Ministries and Departments should be asked to coordinate this task in their organizations/offices and complete it within one year.
  • Decision-making on important matters should be assigned to a committee rather than individuals. Care has to be exercised, however, that this practice is not resorted to when prompt decisions are required.
  • State Governments should take steps on similar lines, especially in local bodies and authorities, which have maximum ‘public contact’.

 

Ensuring Accessibility and Responsiveness

  • Service providers should converge their activities so that all services are delivered at a common point. Such common service points could also be outsourced to an agency, which may then be given the task of pursuing citizens, requests with concerned agencies.

 

Monitoring complaints

  • All offices having large public interface should have an online complaint tracking system. If possible, this task of complaint tracking should be outsourced.
  • There should be an external, periodic mechanism of ‘audit’ of complaints in offices having large public interface.

 

Intelligence Gathering

  • Supervisory officers should assess the integrity of his/her subordinates based on his/her handling of cases, complaints and feedback from different sources. This could then become an important input for risk profiling of officers.

 

Vigilance Network

  • A national database containing the details of all corruption cases at all levels should be created. This database should be in the public domain. Identified authorities should be made responsible for updating the database regularly.

 

Conclusion

Ethical governance is a continuing focus, starting with the administration and extending to all citizens. With transparency and unwavering ethics, people will seek to earn the trust of those they partner with, forge lasting service relationships and strengthen business over the long term.

 

 

ELECTIONS AND ELECTORAL REFORMS

 

ELECTION COMMISSION OF INDIA (Art. 324 – 329)
Background
  • Election Commission of India is an independent constitutional body responsible for administering the free and fair election system and process of both the Union and State elections of India, in order to uphold the true spirit of democracy.
  • Part XV, Article 324 – 329 deals with the powers, function, tenure, eligibility, etc. of the commission and the member.
  • Article 324 of the Indian Constitution provides for an independent Election Commission for the ‘superintendence, direction and control of the electoral roll and conduct of the elections’ in India.
  • Election Commission is an all India body that conducts the elections to
  • Parliament
  • State Legislature
  • Office of President
  • Office of Vice President.
  • Though in its inception it was a single member body from 1950 to 1989 and from 1990 to 1993, thereafter once again it became the multi-member body and has remained to cope with the increased work of the Election Commission.

 

Objectives
  • To uphold the spirit of democracy and values enshrined in the Constitution.
  • To conduct free and fair elections.
  • To ensure participation of all eligible citizens in the electoral process.
  • To engage with political parties and all stakeholders in the interest of electoral process.
  • To promote awareness about the electoral process and electoral governance.

 

Composition Of ECI

Since its inception the commission had only one election commissioner but after the Election Commissioner Amendment Act 1989, it has been made a multi-member body. According to Art. 324 of the Indian Constitution provides the following provisions in relation to the composition of the election commission:

  • The Election Commission consists of the chief election commissioner and such number of other election commissioners, determined by the President.
  • The President appoints Chief Election Commissioner and Election Commissioners.
  • Chief election commissioner acts as the chairman of the election commission when other election commissioners are appointed.
  • The President may also appoint regional commissioners after consultation with the election commission.
  • The conditions of service and tenure of office of the election commissioners and the regional commissioners shall be determined by the President.
  • The Chief Election Commissioner and the two other Election Commissioners enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India.
  • The Chief Election Commissioners and the two Election Commissioners have equal powers to take all decisions relating to elections as a collective body.
  • In case of difference of opinion amongst the Chief Election Commissioner and/or two other election commissioners, the matter is decided by the Commission by majority.

 

Duties And Functions Of ECI

The powers and functions of the election commission are mentioned below:

  • Determines the territorial area of the electoral constituencies in accordance with the Delimitation Commission Act.
  • Prepares electoral rolls and revises them from time to time.
  • Notifies the schedule of the election.
  • Receives and scrutinizes the nomination papers from all the candidates in the elections.
  • Registers political parties, providing election symbol and grants recognition to them.
  • Provides the status of national or state parties to the political parties on the basis of their performance in the elections.
  • Resolves disputes regarding the recognition of political parties and allotment of symbols to them.
  • Appoints officers to enquire into disputes relating to electoral arrangements.
  • Ensures that the Model Code of Conduct (MCC) is followed by all the political parties and all the candidates.
  • Advises the President and Governor under its advisory jurisdiction on matters relating to the disqualification of the members of the Parliament and State Legislature respectively.
  • Supervises election machinery in order to ensure free and fair elections.
  • Cancels polls in the event of irregularities and wrongdoings during an election.
  • Advises the President whether the elections can be held in a state under President’s rule.

 

Independence Of ECI
  • The Chief Election Commissioner can be removed from office only through a process of removal similar to that of a Supreme Court judge on the basis of a resolution passed to that effect by both the Houses of Parliament on grounds of ‘Proved misbehaviour or incapacity’.
  • The service conditions of the chief election commissioner cannot be varied to his disadvantage after his appointment.
  • Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the Chief Election Commissioner.

 

Limitation And Flaws
  • The Constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members of the Election Commission.
  • The Constitution has not specified the term of the members of the Election Commission.
  • The Constitution has not debarred the retiring election commissioners from any further appointment by the government.
  • Over the year’s influence of money and criminal elements in politics has increased along with violence and electoral malpractices resulting in criminalization of politics. (Eg -Delhi elections goli maro launching of Namo tv, freebies, biopic, ASAT mission, etc.) The ECI has been unable to arrest this deterioration.
  • There has been rampant abuse of power by the state govt who at times make large-scale transfers on the eve of elections and posts pliable officials in key positions, using official vehicles and buildings for electioneering, flouting the ECI’s model code of conduct.
  • The ECI is not adequately equipped to regulate the political parties. The ECI has no power in enforcing inner-party democracy and regulation of party finances.
  • In recent years, an impression is gaining ground that the Election Commission is becoming less and less independent of the Executive which has impacted the image of the institution.
  • One of the major institutional drawbacks is non- transparency in election of CEC and other two commissioners and is based on the choice of presiding government.
  • There have been allegations of EVMs malfunctioning, getting hacked and not registering votes which corrodes general masses’ trust from the institution.
  • Anonymous feature of Electoral Bonds, in which neither the donor nor the political party is obligated to reveal whom the donation comes from defeats the fundamental principle of transparency in politics.

 

National Party Status

A party is recognized as national party by the Election Commission if it fulfils at least one of the following qualifications:

  • If it secures six per cent of valid votes polled in any four or more states at a general election to the Lok Sabha or to the legislative assembly; and, in addition, it wins four seats in the Lok Sabha from any state or states; or
  • If it wins two per cent of seats in the Lok Sabha at a general election; and these candidates are elected from three states; or
  • If it is recognized as a state party in four states.

 

National People’s Party
  • Got the National Party status from ECI in 2019
  • Recognised as a State Party in 4 states namely Arunachal Pradesh, Manipur, Nagaland & Meghalaya.
  • First political party from North East to get the status of National Party.
  • 8th Party to get the National Party status after INC, BJP, BSP, NCP, CPI, CPI(M) and TMC.

EC, however, has no power to de-register political parties.

 

Trust Deficit in the Election Commission
  • Issue: Earlier, the trust deficit was limited only to political leaders and the voters. However, it has now spread to a poisonous combination of deficit between the EC, voters and the political parties. The deficit began with the EVM/VVPAT (Voter Verified Paper Audit Trail) saga and spread due to inaction on part of the EC against the ruling party’s leaders.
  • Examples: A group of sixty-six retired bureaucrats and diplomats wrote to the President that the EC was suffering from a “crisis of credibility”, stating that the EC is failing to discharge its constitutional responsibilities.
  • The Prime Minister repeatedly invoked the Indian Army for votes while the Indian Railways served tea in cups adorned with the BJP campaign slogan.
  • It was also surprising that the dissent of Mr. Ashok Lavasa, Election Commission was not made public.
  • Suggestions: The Law Commission in its 255th Report recommended three changes for this:
  • Firstly, awarding constitutional protection regarding removal to the Election Commissioners;
  • Secondly, altering the appointment process from a system of unilateral appointment to a consultative process and;
  • Thirdly, creating a permanent, independent secretariat of the EC. Most importantly, it is imperative to restore trust in the Election Commission, for it is the guardian of elections in India, the very foundation of Indian democracy.

 

Challenges With The State Election Commission:

  • Lack of Safeguard for SEC: Though the State Election Commissioner shall not be removed from his/her office except in like manner and on the like grounds as a Judge of a High Court (Art 243K(2)), yet it has been diluted on many instances.
  • Non Uniform Service Conditions for SECs: Article 243K(2) states that the tenure and appointment will be directed as per the law made by the state legislature and thus each SEC is governed by a separate state Act.
  • Lack of Autonomy: Although the state election commission on many occasions tried to exercise its duties enshrined in the constitution of India, they struggled to assert their independence.

 

ELECTIONS AND ELECTORAL REFORMS

  • 324-329 of Part XV deals with the electoral system in our country.
  • 324 provides for an Independent Election Commission.
  • There is one general electoral roll for every territorial constituency.
  • This electoral role is used for both center and state legislatures.
  • The Constitution has abolished the system of communal representation and separate electorates.
  • The Constitution has accorded equality to every citizen in the matter of electoral franchise.
  • Elections are done on the basis of adult franchise (61st Amendment Act 1988 reduced the voting age from 21 to 18 years)

 

Conditions to vote
1 Citizen of India
2 18 years of age
3 Should not be disqualified on grounds of Non Residence, Unsound Mind, Crime or corrupt or illegal practice.

 

  • Parliament can make provision relating to electoral rolls, delimitation of constituencies and other matters necessary.

 

In this regard govt has enacted Representation of People Act 1950 dealing with:-
1 Qualifications of voters
2 Preparation of electoral rolls
3 Delimitation of constituencies
4 Allocation of seats in Parliament and State Legislatures

 

Parliament has also enacted Representation of People Act 1951 dealing with:-
1 Administrative machinery dealing with elections
2 Election offenses
3 Election Disputes
4 By-elections
5 Registration of Political Parties

 

The Representation of the People Act, 1951

  • The holding of free and fair electionsis the sine-qua-non of democracy. To ensure the conduct of elections in a free, fair and impartial manner, the Constitution – makers incorporated  324-329 in the constitution and empowered Parliament to make laws to regulate the electoral process.
  • The ECI is the watchdog of freeand fair elections in the country and  324 of the Constitution provides for its establishment.
  • In this context, the Parliament has enacted the Representation of the People Act (RPA), 1950 and Representation of the People Act,1951.
  • The Representation of People Act, 1951 is enacted by the provincial government of India to scrutinize the election process before the first general elections.

 

Recent Cases related to RPA 1951
1 Hate Speech in Delhi Election {RPA Section 123(3A)}
2 The RPA, 1951 provides that only those political parties which are registered under section 29A of the RPA, 1951 are eligible to receive electoral bonds, thus providing a mechanism to track the source of political funding and ensuring transparency in electoral funding.
3 Section 10A of the Representation of Peoples Act 1951 and Section 77 of the Representation of Peoples Act 1951 to contain the menace of Paid news during elections.

 

Differences between RPA 1950 and RPA 1951

 

RPA, 1950 RPA, 1951
·        The allocation of seats in, and the delimitation of constituencies for the purpose of election to the House of the People and the Legislatures of States;

·        The qualification of voters at such elections;

·        The methodology of preparation of electoral rolls;

·        The manner of filling seats in the Council of States

·        Methodology for the conduct of elections of the Houses of Parliament and to the House or Houses of the Legislature of each State;

·        The qualifications and disqualifications for membership of those Houses;

·        The corrupt practices and other offences at or in connection with such elections and;

·        The decision on doubts and disputes arising out of or in connection with elections.

 

The Representation of People Act, 1951:
  • Regulates the actual conduct of elections and by-elections.
  • Provides administrative machinery for conducting elections.
  • Deals with the registration of political parties.
  • Specifies the qualifications and disqualifications for membership of the Houses.
  • Provides provisions to curb corrupt practices and other offences.
  • Lays down the procedure for settling doubts and disputes arising out of elections

 

Salient features of the RPA 1951:
  • Qualification for Contesting Elections in India:
  • A person must be an elector in the constituency.
  • The person must be a member of a Scheduled Caste or Scheduled Tribe in any state/UTs if he/she wants to contest a seat reserved for them.
  • The minimum age for becoming an MLA/MPs (Lok Sabha) is 25 years.
  • At the panchayat and municipality levels, the minimum age limit for contesting elections is 21 years.
  • Qualification for membership of the Rajya Sabha:
  • A person shall not be qualified to be chosen as a representative of any State or Union territory in the Rajya Sabha unless he is an elector for a Parliamentary constituency.
  • Right to Vote:
  • Apart from Article 326 of the Constitution ( that guarantees the right to vote to every citizen above the age of 18 years, unless disqualified by any law), Section 62 of the RPA,1951 also ensures that every person who is in the electoral roll of that constituency is entitled to vote.
  • If a person is confined in a prison, whether under a sentence of imprisonment or transportation, then he is not eligible for voting, however, in the case of preventive custody, he can vote.
  • In 2014, the ECI had said that the person under preventive custody had the right to vote, but not under-trials and convicts.
  • However, the Act allows those serving sentences less than 2 years to contest elections from prison.
  • Provisions Related to Political Parties:
  • Part IVA of the Representation of the People Act, 1951 deals with the registration of political parties.
  • Every association or body in order to become a political party must be registered with the ECI whose decision regarding registration will be final.
  • Registered political parties, in course of time, can get recognition as ‘State Party’ or’ National Party’.
  • Change in name and address of a registered political party must be communicated to the ECI.
  • The ECI cannot derecognise a party.
  • Right to Information:
  • Candidates need to furnish information whether he/she is accused of any offence punishable with imprisonment of 2 years or more in a pending case or has been convicted of an offence.
  • Section 126 of the RPA, 1951:
  • Displaying of any election matter by television or similar apparatus in a constituency is prohibited 48 hours before the polling ends or concludes.
  • Section 126 is not applicable to the print media, news portals and social media
  • Section 126A prohibits the conduct of exit poll and dissemination of its results during the period mentioned.
  • Declaration of Assets and Liabilities:
  • Individuals contesting elections have to file an affidavit, declaring their criminal records, assets & liabilities and educational qualification.
  • After getting elected, MPs are required to file a declaration of assets and liabilities with the Speaker of Lok Sabha and the Chairman of Rajya Sabha.
  • These declarations have to be made by MPs within 90 days of taking their seats in Parliament.
  • Voluntary Contributions:
  • Part IVA focuses on the funding of political parties in India.
  • According to Section 29B, political parties may accept contributions of any amount from any person or company except a government company or foreign source.
  • Voluntary contributions by any person or company within India ( other than a government company) can be accepted by the registered political party.
  • It is mandatory for the political parties to submit to the ECI a list of donations they received above Rs. 2,000.
  • Now, political parties are eligible to accept contributions from foreign companies defined under the Foreign Contribution (Regulation) Act, 2010.
  • Corrupt Practices:
  • All government or non-government officials are included within the scope of corrupt practices.
  • Bribery: Any gift/offer/promise or gratification to any person as a motive or reward.
  • Undue Influence: Any direct or indirect interference/attempt to interfere on the part of the candidate with the free exercise of any electoral right.
  • The publication by a candidate any statement of fact which is false in relation to the personal character/conduct of any candidate
  • The hiring or procuring of any vehicle by a candidate of any elector to or from any polling station.
  • Disqualification of MPs and MLAs:
  • The RPA, 1951 lays down certain rules for disqualification of MPs and MLAs.
  • Section 8 (3) of the Act states that if an MP or MLA is convicted for any other crime and is sent to jail for 2 years or more, he/ she will be disqualified for 6 years from the time of release.
  • Section 8(4) allowed convicted MPs, MLAs and MLCs to continue in their posts, provided they appealed against their conviction/sentence in higher courts within 3 months of the date of judgment by the trial court.

 

Significance of the RPA:
  • Direct Democracy: The provision of direct election for every constituency makes the process of election more democratic and participatory by encouraging and empowering people to play an active role in choosing appropriate candidates.
  • Equal Representation: The RPA, 1950 provides for delimitation which brings equality in the process of election by ensuring roughly an equal number of electors in each constituency.
  • Federalism: The acts strengthened the federal polity of the country by giving due representation to each state in the Parliament.
  • Decriminalizing Indian Politics: The RPA, 1951 plays the significant role in breaking the politicians, police & criminal nexus (which is one of the greatest threats to the rule of law in India), by prohibiting the entry of persons with a criminal background into the electoral process, thus decriminalizing Indian politics.
  • Accountability and Transparency: The RPA, 1951 provides for the expenditure monitoring mechanism which ensures the accountability and transparency of the candidate in the use of public funds or misuse of power for personal benefits.
  • Clean Election: The RPA, 1951 prohibits corrupt practices like booth capturing, bribery or promoting enmity etc., and ensures the conduct of free & fair elections which in turn encourage political liberalization and democratization.
  • Legible Political Funding: The RPA, 1951 provides that only those political parties which are registered under section 29A of the RPA, 1951 are eligible to receive electoral bonds, thus providing a mechanism to track the source of political funding and ensuring transparency in electoral funding.

 

 

Important Sections of the RPA

 

Sections Applications
Section 8(1) A person convicted of an offence punishable under certain provisions of Indian Penal Code, Prevention of Corruption Act 1988, etc. shall be disqualified from contesting election.
Section 11 Empowers the Election Commission to remove or reduce the period of disqualification.
Section 126 Prohibits election campaign activities through public meetings, processions, etc., and displaying of election matter by means of television and similar apparatus 48 hours before voting day
Section 29A Registration of political parties by the Election Commission.
Section 123(3A) Prohibits promoting feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language

 

 

Issues with RPA
  • False Disclosures – Even after the provision of the declaration of assets and liabilities in the RPA act, candidates do not disclose all the assets and provide wrong and incomplete information regarding their assets, liabilities, and income and educational qualifications.
  • The Bureaucratization of Politics In spite of the inclusion of several provisions aimed at making the ECI as an independent body, it is still dependent on the Union for financial mattersthat paves the way for political parties to manage to get the officers in their favour through money and muscle power.
  • Dual Responsibility of the ECI – The ECI does not have independent staff of its own so whenever elections take place, it has to depend upon staff of Central and State Governments hence the dual responsibility of the administrative staff, to the govt for ordinary administration and to the ECI for electoral administration is not conducive to the impartial and efficient functioning of the Commission.
  • Misuse of Government Machinery – The RPAs lack clear provisions and guidelines on the matters related to the misuse of official machinery that gives an unfair advantage to the ruling party at the time of elections and leads to the misuse of public funds for furthering the prospects of candidates of a particular party.
  • No Expenditure Limit: The Representation of People Act (RPA), 1951 imposes no limitations on the expenditure incurred by leaders of a political party in disseminating messages under transportation expenses. Other expenses incurred to support a particular candidate are eventually added to the expenditures incurred by the candidate.

 

Representation of People (Amendment) Bill, 2017  – This bill, which was passed by the Lok Sabha, seeks to allow proxy voting for NRIs.

 

Solutions:
  • Restriction on Opinion Polls: By an amendment made to the RPA 1951, conducting and publishing results of exit polls have been prohibited.
  • There should be a similar prohibition or restriction on opinion polls also as several manipulated opinion polls could impact the voting pattern.
  • False Declaration as Offense: The RPA ,1951 should be amended to include all the items related to the election disclosure in the affidavit and making false declarations in connection with the election to be an offence.
  • Independent ECI: In order to curb the practice of bureaucratization of politics and to secure complete independence of the Election Commission, its expenditure should be charged on the Consolidated Fund of India.
  • De-listing of Valid Electorates: Parliament must pass a law dealing with the serious problem of delisting of valid electors from electoral rolls because illiterate electorates residing in far villages cannot watch over the publication of electorate lists.
  • State Funding of Elections: To minimise the role of money in elections, provisions should be made for state funding of elections.
  • Committees/reports that highlighted the prospects of state funding of elections:
    • Indrajit Gupta Committee on State Funding of Elections (1998)
    • Law Commission Report on Reform of the Electoral Laws (1999)
    • National Commission to Review the Working of the Constitution (2001)
    • 2nd Administrative Reforms Commission (2008)

 

STAR CAMPAIGNERS
  • Recently, Election Commission (EC) ordered the removal of two senior BJP leaders from its list of star campaigners for Delhi assembly elections on the ground that comments made by them violated the Model Code of Conduct (MCC).
  • A recognised political party can have 40 star campaigners and an unrecognised (but registered) political party can have 20.
  • The list of star campaigners has to be communicated to the Chief Electoral Officer and Election Commission within a week from the date of notification of an election.
  • The expenditure incurred on campaigning by such campaigners is exempt from being added to the election expenditure of a candidate. However, this only applies when a star campaigner limits herself to a general campaign for the political party she represents.
  • Candidates cannot afford to breach their expenditure limit.

 

Delimitation Commission

NEWS – Delimitation will be done in Jammu and Kashmir based on the Census of 2011 in accordance with the provisions of the Jammu and Kashmir Reorganisation Act, 2019.

  • Delimitation is the redrawing of the boundaries of parliamentary or assembly constituencies to make sure that there are, as near as practicable, the same number of people in each constituency.
  • Article 82Parliament enacts a Delimitation Act after every Census which establishes a delimitation commission.
  • Article 170States also get divided into territorial constituencies as per Delimitation Act after every Census.
  • The Delimitation Commission is appointed by the President of India and works in collaboration with the Election Commission of India.
  • Equally populous constituencies allow voters to have an equally weighted vote in the Legislature.
  • It is a high power body whose orders have the force of law and cannot be called in question before any court.
  • These orders come into force on a date to be specified by the President of India on this
  • The orders are laid before the Lok Sabha and the respective State Legislative Assemblies. However, modifications are not permitted.
  • Delimitation commissions have been set up four times in the past — 1952, 1963, 1973 and 2002 — under Delimitation Commission Acts of 1952, 1962, 1972 and 2002
  • The Delimitation Commission in 2002, undertook readjustment and rationalization of territorial constituencies in states based on Census 2001, without altering the number of seats allotted to each state.

 

Government froze delimitation in 1976 until after the 2001 Census by the 42nd constitutional amendment (1976). This freeze was extended to 2026 by the 84th constitutional amendment (2002).

The aim of this move was to promote family planning and population stabilization in the country. Thus an incentive was given to states towards working for family planning programs, without worrying about changing their political representation in the Lok Sabha.

 

Issues with Delimitations
  • Violates concept of equal representation – Current representation deviates from the core principle of universal adult suffrage as a voter representation from Kerala (6.3 MPs per crore persons) is 42% higher than that of a Rajasthani voter (4.4 MPs per crore persons).
  • Poor Urban Governance – Lack of proportional representation of cities in Parliament (largest city having over three million electors, and the smallest less than 50,000 ) leading to lack of funding and paucity of infrastructure development
  • Fixed allocation of seats – Basing the 1971 Census figure of 54.81 crore to represent today’s population (121 crore) presents a distorted version of our democratic polity and is contrary to what is mandated under Article 81 of the Constitution.
  • Freezing seats did not solve the problem – Concerns expressed by the States in 1976 which necessitated the freezing of seat allocation on the basis of 1971 population figures would appear to hold good even today.
  • Increase in the number of Parliamentary members would make it a difficult task for the presiding officer to ensure smooth functioning of the House.
  • Delimitation may favour one party over another, as in the case mentioned above in Sikkim’s attempt to reduce the representation of racial minorities.

 

Way forward:
  • Delimitation provisions of Articles 82 & 327 and related Articles are not specific. Thus, principles governing the procedure for periodic delimitation need to be enriched.
  • Provision of strict procedures and guidelines to ensure administrative process of delimitation not liable for political interference.
  • Provision for judicial review where erroneous process is found in delimitation of constituency.
  • Increasing the seats in Lok Sabha and State Assembly according to the population ratio.
  • Provision for reservation for women in proportion to their population.

 

Demand For Contempt Power By ECI:
  • The Election Commission is unlikely to reiterate its demand for powers to initiate contempt proceedings.
  • This was to be done against people and parties for making allegations against them without credible evidence.
  • In a letter in April, the Commission had urged the law ministry to amend the election laws so that it could use the ‘Contempt of Courts’ Actagainst such parties
  • It had pointed out that several election management bodies, including those in Kenya and Pakistan, have “direct powers” to initiate contempt proceedings.

 

Arguments in favour and against of contempt powers

 

In Favour Against
●       International examples – Election management bodies (Kenya, Pakistan) have direct power to initiate contempt proceedings.

●       To Maintain Credibility – Certain allegations affect the credibility of the commission as one of the important guardians of the democratic process.

●       Knee-Jerk Response: It is an unwarranted and poorly thought-out response to

●       some strident accusations of partisan functioning

●       Need transparency– The body, custodian of secret ballot, should choose transparency rather than contempt powers to maintain its track record of honesty and fairness.

●       Undemocratic – Contestation is part and parcel of elections. Thus, powers to Silence criticism will undermine this democratic process.

●       Against freedom of expression – Because of this reason even big democracies such as the USA and Canada have not given contempt powers to election panels.

●       Rejected earlier – Dinesh Goswami committee on electoral reforms, three decades earlier, had rejected this proposal.

●       Satisfaction of people is supreme – EC does not have to satisfy every

politician. It enjoys public confidence and a reputation of impartiality. Thus, it just needs to reach out to people and explain the process transparently.

 

 

MODEL CODE OF CONDUCT

NEWS – In the run up to the Indian General Election for the 17th Lok Sabha, various instances of violations of the Model Code of Conduct were witnessed.

  • It is a set of guidelines laid down by the Election Commission to govern the conduct of political parties and candidates in the run-up to an election.
  • This is in line with Art. 324 of the Constitution, which gives the Election Commission the power to supervise elections to the Parliament and state legislatures.
  • It comes into force the moment an election is announced and remains in force till the results are declared. This was laid down by the Supreme Court in the Union of India vs. Harbans Singh Jalal and Others Case.
  • 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. So, there are guidelines on general conduct, meetings, processions, polling booths, observers, election manifesto of political parties.
  • Its main aim is to ensure that the ruling party, either at the Centre or in the states, does not misuse its official position to gain an unfair advantage in an election. There are guidelines on conduct of ministers and other authorities in announcing new schemes, using public exchequer for advertisements etc.

 

Evolution of Model Code of Conduct
  • The origins of the MCC lie in the Assembly elections of Kerala in 1960, when the State administration prepared a ‘Code of Conduct’ for political actors.
  • Subsequently, in the Lok Sabha elections in 1962, the ECI circulated the code to all recognised political parties and State governments.
  • Implementation of MCC up to 1991 was not up to the mark as it was largely ignored by the political parties who often resorted to corrupt electoral practices such as populist announcements and fielding pliant officials, in lieu of fierce political competition.
  • At the time of the Lok Sabha elections, both the Union and state governments are covered under the MCC.

 

Legal Status of Model Code of Conduct
  • The MCC is not enforceable by law. However, certain provisions of the MCC may be enforced through invoking corresponding provisions in other statutes such as the Indian Penal Code, 1860, Code of Criminal Procedure, 1973, and Representation of the People Act, 1951.
  • The Election Commission has argued against making the MCC legally binding – stating that elections must be completed within a relatively short time (close to 45 days), and judicial proceedings typically take longer.
  • In 2013, the Standing Committee on Personnel, Public Grievances, Law and Justice, recommended making the MCC legally binding and the MCC be made a part of the Representation of the People Act, 1951.

 

Impact of MCC on Development and Governance
  • As there are restrictions on the working of the ruling governments when the MCC is in place, there is a debate whether it impedes the governance of state as-
    • The govt. cannot announce any new project, scheme or policy.
    • Politicians who hold portfolios cannot combine official visits with campaigns.
    • Any campaign by the government cannot be done at the cost of the public exchequer.
    • The ruling government cannot make any ad-hoc appointments in Government, Public Undertakings etc.
  • Recently, the Law Commission raised such observations, but the ECI has brushed aside arguments that the model code of conduct brings governance to a halt during polls.
  • Further, the ECI also highlighted that as and when government departments approach it with ‘references’ to clear proposals and schemes during poll time, it takes a fast decision understanding the urgency involved.

 

Contemporary Challenges in implementing Model Code of Conduct
  • Manipulation through the media – The misuse of the media is difficult to trace to specific political parties and candidates.
  • Weakened capacity of the ECI to respond to violations of MCC
  • Weak or Delayed Response by ECI – to inappropriate statements by powerful political actors. Consequently, political actors are regaining the confidence to flout the MCC without facing the consequences.
  • Digital Content – Most of the (election-related) information flow does not happen via the IT cells of political parties, but through third-party contracts. Even though the ECI has evolved a self- regulatory social media code for major players, still many platforms such as Telegram are becoming increasingly relevant for political mobilization.
  • Debate over some issues – such as national security, disaster management. Some political parties alleged that the ruling party has misused such issues. But, the Election Commission has said that these issues do not fall under the ambit of MCC.

 

Arguments for and against of MCC:

 

Arguments for MCC into RP act Arguments against
Most of the stipulations of the MCC are already contained in various laws like the violation of 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. 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.
It will become a legal framework which can be justiciable in the court. 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 oversight of an impartial election watchdog.
It will also seek to regulate activities in social media. Various political parties also seen this move of legalising the MCC as an attempt of taking power of election commission.
This will enable EC to take adequate action as per the violation committed by political parties. Supreme Court, in Union of India vs Harbans Sigh Jalal, opined that legalising MCC may not be suitable option.
It will create a fair play for all the contestant without vitiating the atmosphere which can lead to law and order problem.

 

Implications of Poll Code Violations

  • Weakens the position of Election Commission– whereby the credibility and authority of the commission is undermined.
  • Erodes the principle of free and fair elections– whereby incidents such as use of money power or muscle power, does not allow equal competition between all participants.
  • Shifts the narrative from performance to identity– whereby political parties ignore the MCC guidelines against using caste and communal feelings to secure votes.
  • Erosion of public trust in Indian democracy– as the promise of free and fair elections is seemingly defeated.

 

Way Forward

  • Need to include people in the MCC– through mobile apps such as ‘cVIGIL’ to enable citizens to report on violation of election code of conduct. If people reject candidates and parties that violate MCC, it will create an inherent pressure on contestants to abide by MCC.
  • Fast Track Court for Election Dispute– so that whenever, the ECI takes a punitive action, its final order is obtained as soon as possible.
  • Strengthening Election Commission of India– by greater transparency in appointments and removal of the election commissioners, reducing dependency on Central Government for paramilitary forces among others.

ELECTRONIC VOTING MACHINE (EVM)

  • EVMs were 1st used in 1982 Kerala Assembly elections (by-election). However, SC struck down the election since Representation of People Act, 1951, and Conduct of Elections Rules, 1961, did not allow use of EVMs.
  • RP Act 1951 was amended in 1988 to allow usage of EVMs.
  • In 1999, they were used for the 1st time in the entire state for Goa Legislative Assembly elections.
  • In 2004, EVMs were used for the 1st time in Lok Sabha elections.
  • EVMs are electronic voting machines which enable the voter with a button for each choice of candidate. It is attached by a cable to an electronic ballot box.

 

EVM comprises two units
Control unit The Control unit is with the Election Commission selected polling officer
Balloting unit The Balloting Unit is in the voting section into which the voter enters to cast their vote in secret by pressing the button against the name and sign of the candidate of their choice

 

EVM runs on a single alkaline battery fitted in the control unit, and can even be used in areas that have no electricity. They are manufactured by Electronics Corporation of India Limited (ECIL) and Bharat Electronics Limited (BEL).

 

Safety Features within EVMs

  • No external communication
  • Non-reprogrammable
  • Secure Source Code
  • It allows a voter to cast the vote only once.
  • Time stamping of votes
  • Secure against post-manufacturing tampering
  • There are also various procedural checks and balances (Standard Operating Procedure)

 

Arguments for going back to ballot system

  • Not transparent: An electronic display of the voter’s selection may not be the same as the vote stored electronically in the machine’s memory. To bridge this gap, VVPATs were introduced.
  • Not verifiable: Only the vote number can be verified and not the voting choice.
  • Not secret: Counting in EVMs is equivalent to booth-wise counting, which allows one to discern voting patterns & renders marginalized communities vulnerable to pressure.
  • Possibility of hacking: Accusations of EVMs getting hacked or even the possibility of them being hacked creates a mistrust about electoral processes in the minds of the public.
  • Malfunctioning EVMs: Though provided with specific training for correct usage of EVMs, officers sometimes don’t pay attention & connect machines in wrong order.

 

Issues with EVM
Security

 

▪        Not easily, but can be hacked and tampered with.

▪        The time gap between the voting and the counting of votes is a risk to possible tampering, as the ballots are physically stored after votes.

Technical Issues ▪        Malfunction in the software can give out errors.

▪        Hardware can cause issues too if the EVM is not handled with care.

 

Arguments in favour of continuing with EVMs

  • Ease of use and accessible: EVMs are found to be easy to use, even by illiterate voters who just need to recognize the symbols of the parties. Electronic voting makes voting more accessible for e.g. enabling disable people to vote independently.
  • Safe and secure: The instances of booth capturing, rigging and stuffing ballot boxes with ink have been checked by the use of EVMs.
  • Further, the EVMs in itself is a secure machine which is highly improbable to be hacked.
  • Faster results and build trust: For other countries, particularly large ones like Brazil, India and the Philippines, electronic voting and electronic counting means that people can get official election results within hours, instead of weeks.
  • Completely auditable: One of the reasons our electronic voting system has been praised so highly is that it’s designed around the idea that all parties, citizens and election commissions are able to audit the electoral process at every stage, including before an election has even begun.
  • Elimination of the possibility of invalid and doubtful votes which, in many cases, are the root causes of controversies and election petitions.
  • Reduction in the use of paper during the elections.

 

Way forward

Cost and efficiency considerations are secondary to the integrity of the election. EC must ensure that any unjustified suspicion in the minds of public is removed through:

  • 100% deployment of VVPAT in all elections and by-polls and on detection of any faulty EVM in a constituency must entail the VVPAT hand-counting of all the EVMs in that constituency.
  • EC must introduce Totalizer Machines for counting of votes. It increases the secrecy of voting by counting votes polled at 14 polling booths together, as against the current practice of announcing booth-wise results.
  • Regular demonstrations must be organized by EC in all the poll-going States to reduce the information gap on EVMs.
  • EC should provide training to officers in small batches and focus on hands-on-learning.
  • As a long- term structural reform, EC must be provided with an independent secretariat so that it can have a dedicated cadre of officers.

 

VOTER VERIFIED PAPER AUDIT TRAIL (VVPAT)

  • VVPAT is an independent verification printer machine and is attached to electronic voting machines.
  • It allows voters to verify if their vote has gone to the intended candidate.
  • When a voter presses a button in the EVM, a paper slip is printed through the VVPAT. The slip contains the poll symbol and name of the candidate.
  • After being visible to the voter from a glass case in the VVPAT for seven seconds, the ballot slip will be cut and dropped into the drop box in the VVPAT machine and a beep will be heard.
  • VVPAT machines can be accessed by polling officers only.

 

Supreme Court’s Order on VVPAT

  • Earlier, VVPAT slips from only one Electronic Voting Machines (EVM) in every Assembly segment/constituency was subjected to physical verification.
  • SC has now directed that in general elections, VVPAT slips of five EVMs in each Assembly segment of a Parliamentary Constituency would be subjected to physical counting.
  • In State Assembly elections, this would extend to five random EVMs in each Assembly constituency.
  • Notably, there was a demand from Opposition parties for VVPAT verification in 50% or 125 polling booths in each constituency.

 

NONE OF THE ABOVE (NOTA)

  • The NOTA option was introduced in India following a 2013Supreme Court directive in the People’s Union for Civil Liberties v Union of India.
  • NOTA option aims to allow voters to disapprove all the candidates while delivering their vote. SC remarked that NOTA will indeed compel the political parties to nominate a sound candidate.
  • Its symbol was introduced in 2015.
  • However, NOTA in India does not provide for a ‘right to reject’. The candidate with the maximum votes wins the election irrespective of the number of NOTA votes polled.
  • The NOTA votes have not been counted while calculating votes polled by candidates for making them eligible (1/6th of valid votes) for getting back their security deposits.
  • ECI currently has no plenary power to call a fresh election even if NOTA secures the highest votes.
  • SC has ruled that NOTA option is applicable only for direct elections and not indirect elections such as the Rajya Sabha polls.
  • To give greater sanctity to NOTA and even order a fresh election, Rule 64 of Conduct of Election Rules will have to be amended and can be done by the law ministry. It will not require Parliament sanction.

 

Rule 64 – It refers to “declaration of result of election and return of election”. But the rule does not consider a situation where NOTA votes may be higher than those polled by any candidate.

 

NOTA In Rajya Sabha Elections

  • The Supreme Court scrapped the use of ‘None Of The Above’ (NOTA) option in Rajya Sabha polls.
  • SC held NOTA option is meant only for universal adult suffrage and direct elections.
  • So, it is not for polls held by the system of proportional representation by means of the single transferable vote as done in the Rajya Sabha.
  • NOTA can harm an electoral process where open ballot is permissible and party discipline reigns.
  • NOTA will destroy the concept of value of a vote and representation and encourage defection that shall open the doors for corruption which is a malignant disorder.

 

NOTA vs Right to Reject

  • NOTA in India does not provide for a ‘right to reject’.
  • The Election Commission currently has no plenary power to call a fresh election even if NOTA secures the highest votes.
  • The candidate with the maximum votes wins the election irrespective of the number of NOTA votes polled.
  • Whereas in “right-to-reject” system, if the majority of voters opt for “none of the above”
    option, no candidate will be declared the winner and a fresh election will be called.
  • Also, the NOTA votes have not been counted while calculating votes polled by candidates for making them eligible (1/6th of valid votes) for getting back their security deposits.

 

Arguments in Favour And Against of NOTA:

 

In Favour Against
·        Apex court held that not allowing a person to cast a vote negatively “defeats the very freedom of expression and the right ensured in Article 21 i.e., the right to liberty.”

·        NOTA option will encourage the voters to exercise their franchise even if they are not satisfied with any of the candidates contesting.

·        Negative voting will lead to a systemic change in polls as political parties will be forced to project clean candidates. This may also help in controlling the criminalisation of politics.

·        NOTA gives an option to the voters to express their disapproval of all the candidates contesting in the election and provide a way to express their disenchantment in the contemporary political system of the country.

·        Colombia, Ukraine, Brazil, Bangladesh, Finland, Spain, Sweden, Chile, France, Belgium and Greece allow their voters to cast NOTA votes. The US also allows it in a few cases.

·        There are some scholars of the opinion that NOTA is a waste of votes since it does not hold any electoral value.

·        NOTA would be meaningless if no mandatory re-election was held in cases where NOTA polled the majority of votes.

·        When NOTA was introduced, some political leaders said that voting should be made mandatory to enhance the effect of the NOTA option.

·        In 2016, a PIL was filed in the Madras High Court seeking the full ‘right to reject’ instead of NOTA.

·        There have also been suggestions that candidates rejected should not be allowed to contest for a fixed period of time.

·        Another suggestion is that political parties whose candidates lose to NOTA should bear the cost of re-election.

 

 

 

Internal Democracy in a Political Party

Internal democracy in political parties, also known as intra-party democracy, refers to the level and methods of including party members in the decision making and deliberation within the party structure.

 

Significance

  • The quality of a democracy ultimately depends on internal democracy (or the lack of it) in political parties.
  • One should assess the importance of intra-party democracy in the success of a democracy.
  • In its 170th report in 1999, the Law Commission of India underscored the importance of intra-party democracy by arguing that a political party cannot be a “dictatorship internally and democratic in its functioning outside”.
  • Intra-party democracy is essential to sustain broader political democracy in a country.

 

Criminalisation Of Politics:

  • The Supreme Court (SC) has ordered political parties to publish the entire criminal history of their candidates for Assembly and Lok Sabha elections along with the reasons that forced them to field suspected criminals.
  • The order was a reply to the contempt petition about the general disregard shown by political parties to a 2018 Constitution Bench judgment (Public Interest Foundation v. Union of India)to publish the criminal details of their candidates in their respective websites and print as well as electronic media for public awareness.
  • The SC passed an order while exercising powers under  129 and 142 of the Constitutionwhich deals with the contempt power of the Supreme Court and enforcement of its decrees and orders.
  • According to the prevalent law, the lawmakers and candidates are barred under the Representation of Peoples Act (RPA) from contesting elections only after their conviction in a criminal case.
  • The current verdict was pronounced on a question whether lawmakers facing criminal trial can be disqualified from contesting elections at the stage of framing of charges against them.

 

Role Of Judiciary In Decriminalising Politics
Declaration on Affidavit In 2002, the Supreme Court provided that candidates shall declare details of criminal cases pending against them on an affidavit to returning officer. This can help educate electorate and elicit informed choice, at the same time, it can dissuade candidates from fielding tainted candidates
Lily Thomas Case (2013) SC held that legislators would incur immediate disqualification if convicted effectively eliminating the protection of 90 days provided in Section8(4) for appealing the conviction
Public India Foundations Case (2014) SC ruled that criminal trials particularly those involving heinous offences and corruption involving elected representatives should be completed in a year
PIL seeking life ban on convicts (2017) SC asks the centre to set up a mechanism for speed trial of lawmaker pointing out that it takes years to complete trial of politicians by which time they would have served as law makers or ministers several times over.

 

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 up to 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 Supreme Court Judgement on criminalisation of Politics:
  • A two-judge Bench of Supreme Court recently delivered a judgment on the contempt petitions regarding the criminalization of politics in India and the non-compliance of the directions of a Constitution Bench of Supreme Court in Public Interest Foundation and Ors. v. Union of India and Anr (2018) case.
  • The Court issued the following six directions(though these directions were given in 2018, they were not followed by the parties).
  • It shall be mandatory for political parties to upload on their website detailed information regarding candidates with pending criminal cases along with the reasons for such selection.
  • The reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls.
  • This information shall also be published in:

 

    • One local vernacular newspaper and one national newspaper;
    • On the official social media platforms of the political party, including Facebook & Twitter.
    • These details shall be published within 48 hours of the selection of the candidate or not less than two weeks before the first date for filing of nominations, whichever is earlier.
    • The political party concerned shall submit a report of compliance with these directions with the Election Commissionwithin 72 hours of the selection of the said candidate.
    • If a political party fails to submit such compliance report,the Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court.

 

Reasons for Criminalisation Politics
  • Vote Bank: As the SC has observed that we as a voter are not yet organically evolved, therefore, majority of the voters are manoeuvrable, purchasable.
  • Corruption: The past three Lok Sabhas have seen an increasing number of legislators with criminal background or pending cases against them – 124 in 2004, 162 in 2009 and 182 in 2014.
  • Loopholes in The Functioning of Election Commission: For the past several general
    elections there has existed a gulf between the Election Commission and the voter.
  • Model Code of Conduct is openly flouted by candidates without any stringent repercussions.
  • Denial of Justice and Rule of Law: Toothless laws against convicted criminals standing for elections further encourage this process. Only 40 percent of pending cases have been transferred to special courts — of which judgments have been pronounced in just 136 cases (11%).
  • Though the Representation of the People Act (RPA) disqualifies a sitting legislator or a candidate on certain grounds, there is nothing regulating the appointments to offices within the party.
  • 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.
  • Apathy of the voter: Today voters have become accustomed to demanding their price. This further perpetuates the nexus between political parties and criminals.
  • 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.

 

Impact of Criminalisation of Politics
  • Lawbreakers get elected instead of lawmakersADR data for the 17thLok Sabha, 43% of the elected members of parliament have criminal cases pending against them pointing to the great danger of criminalization of Indian politics.
  • Loss of Public Faith in Judiciary – De- politicization is an imminent requirement to ensure the survival of judicial system as well as to arrest the decreasing trust of common citizens in judiciary for politicized police systems hamper the delivery of justice the most.
  • Violates the spirit of Democracy – conducting free and fair elections is one of the most important priorities of healthy democracy, but the growing criminal activities in electoral process hinders the very idea of democracy.
  • Criminalization of politics perpetuates itself and deteriorates the overall electoral culture.

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 huge pendency of cases in courts, 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 the 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.

 

Committees on Criminalisation of Politics

 

The Santhanam Committee Report 1963 It referred to political corruption as more dangerous than corruption of officials and recommended for Vigilance Commission both at the Centre and in the States.
Vohra Committee Report (1993)

 

It studied the problem of the criminalization of politics and of the nexus among criminals, politicians and bureaucrats in India. However, even after the submission of the report 25 years ago, the report has not been made public by the government.
Padmanabhaiah Committee on Police Reforms

 

It found that Corruption is the root cause of both politicization and criminalization of the police. Criminalization of police cannot be de-linked from criminalization of politics. It is the criminalization of politics, which has produced and promoted a culture of impunity that allows the wrong type of policeman to get away with his sins of commission and omission.

 

Way forward

  • There is a need to curb the high cost of campaigning to provide a level playing field for anyone who wants to contest elections.
  • As recommended by the Law Commission of India’s report on Electoral Disqualifications, by effecting disqualification of tainted politicians at the stage of framing of charges, with adequate safeguards, the spread of criminalisation of politics may be curbed.
  • Filing of a false affidavit should qualify as a ‘corrupt practice’ under the Act. Conviction on the charge of filing of a false affidavit must be grounds for disqualification as recommended by the Law Commission.
  • The Election Commission must take adequate measures to break the nexus between the criminals and the politicians.

 

SPECIAL COURTS FOR TRYING POLITICIANS

  • The Centre should frame a central scheme for setting up of special criminal courts exclusively to deal with criminal cases involving political persons.
  • The directive for a commoncentral scheme comes with the Centre’s argument that setting up such courts would depend on the availability of funds with the States.
  • The court also said that the scheme should provide details of the funds required to set up such courts.
  • These courts would function on the lines of the fast track courts.
  • The Centre should also submit a report card on the status of around 1500 criminal cases pendingagainst MPs and MLAs at the time of the 2014 elections.
  • It is also required to report if the court’s earlier orderto complete the trial in all these cases within a year’s time had been complied with or not.
  • Besides, the SC said that it would directly interact with the State governmentson issues regarding such special courts.

 

VOTE BANK POLITICS

  • The term ‘vote-bank politics’ was first used in a research paper in 1955 by noted sociologist MN Srinivas.
  • He used it in the context of political influence exerted by a patron over a client.
  • Caste-based vote-bank politics, rather than economic issues and social policy have determined India’s electoral choices. .
  • By participating in the modern political system, caste is now exposed to divisive influences and a new form of integration resulting from a new scheme of universalistic-particularistic relationships.
  • It denotes the voting behaviour of the people on the basis of their identity and how political parties try to influence voters on such basis.

 

Positive Side of Vote Bank Politics
  • Increases both the individual and collective bargaining power – when a particular group aligned on the basis of caste, sect, religion, or language is recognised by one or more political party, the chances of their demands and aspirations getting fulfilled are much higher than that of a group or community that is not recognised as a vote bank. E.g. Persons with disabilities, Women.
  • Helps address diverse needs- especially in a country like India, where uniform policies may ignore critical issues. E.g. Gender Budgeting has ensured that women are given a particular portion of resources, which they might not reap due to social subjugation and economic dependency.
  • Leads to effective representation in legislature-as people from all segments of society like minorities, transgender, farmers, traders make it to the law making process, which reflects in the holistic nature of the acts made in a country.
  • Helps safeguard constitutional provisions- such as abolition of untouchability, elimination of manual scavenging. If the ruling party and legislature is dominated by upper caste/ class/ elites, which disregard lower strata of society, then the constitutional safeguards may be ignored by the administration. This pressure ensures that there is no dilution in peoples’ rights.
  • Help better distribution of resources- through welfare economics such as subsidies, interest subvention which help poorer segments of society to rise above the poverty line.
  • Makes parties more and more inclusive- as parties try to field candidates so as to include all available vote banks in a state. The parties try to portray an inclusive image.

 

Negative Side of Vote Bank Politics
  • Reduces the identity of a citizen- No self-respecting citizen wants to be seen only as a voter with a community stereotype.
  • Used as a market tool- where, a political party or leader sees the masses merely as voters, who are a tool to elect, re-elect or defeat the contestants during elections once in five years.
  • Ignores voting based on performance- such as on promises, infrastructure, poverty alleviation, access to basic facilities among others for people of the constituency.
  • Allures parties towards win-ability of candidates- as locally powerful individuals are approached by the political parties to mobilise voters of their caste/community. It has also led to criminalization of politics.
  • Voter Appeasement- through the use of freebies, pampering of segments using unjust means and creating a spiral of counter-appeasements by other political parties.
  • Could lead to bad economics- due to promises like loan waivers, freebies, income support schemes which have a huge burden on the financial discipline of the state exchequer.
  • Halts the long-term vision for the nation- as the parties make tall promises to win the immediate elections. This does not allow the election discussion to focus on long term goals for the nation such as defence procurement, national security strategy, electoral reforms, environmental conservation.
  • Creates fractures in the society- based on class, caste, creed, race, religion, region, language etc which leads to factionalism in the society.

 

Way forward

  • Given its potential for cynical misuse, vote- bank politics should be seen as an instrument to be deployed by citizens, and not by the political class. Vote-bank must develop on issues and people should decide what should be the discourse of an election. New issues such as environment conservation, electoral reforms, movement against criminalization of politics could be asked by citizens. It can lead to a healthy democracy practice.

 

FEMINISATION OF POLITICS

  • According to a list compiled by the Inter-Parliamentary Union (IPU)Rwanda ranks first with 61% of its lower house representatives being women.
  • As a region, Nordic countries (relating to Scandinavia, Finland, Iceland, and the Faroe Islands) are leaders with an average of about 40%. The UK and the US are relative laggards with 32% and 23%, respectively.
  • Even Pakistan with 20% participation from women is ahead of India.
  • In India, the 17th Lok Sabha will see the highest number of women parliamentarians, 78 in all.
  • Women’s representation has steadily increased in the Lok Sabha. In the first-ever election, only 5% of the House consisted of women. Now, that has increased to 14%

 

Need for Women in Politics
  • Constitutional and International Mandate – The Constitution of India promises in the Preamble to secure to all its citizens ‘JUSTICE, social, economic and political’, as well as ‘EQUALITY of status and of opportunity’.
  • Valid indicator of the efficacious growth of democracy in any country.
  • India has ratified the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) adopted in 1979 by the UN General Assembly.
  • Controlling corrupt practices in politics – In terms of corruption, the rate at which women accumulate assets while in office is 10 percentage points lower per year than among men.
  • Economic Aspect: Raising the share of women is not only likely to lead to better representation of women’s and children’s concerns in policymaking, it is also likely to lead to higher economic growth.
  • The roles of women in the decision making process in the society is critical to strengthen women’s agencies for building a progressive society with equality of opportunities among all citizens.

 

Strategies for Enhancing Participation of Women in Politics
  • Women’s Reservation in Politics: There have been proposals for introducing reservation of seats (33%) in legislative bodies for women. Such steps have already been taken at local level governance (PRIs).
  • Improving capacity building, gender training and awareness raising is also crucial. For instance, a new scheme called ‘Nai Roshni’ to empower and grow confidence among minority women, including their neighbours from other communities living in the same village/locality.
  • Further it is important to improve their access to education and work on gender sensitization of both girls and boys at the educational level.

 

Factors Restricting Women’s Participation In Politics
  • Slow Parliamentary Procedures/ Lack of Political Will
  • Illiteracy: Lack of education and leadership training often act as a barrier in women participation in politics
  • Lack of Understanding: Lesser exposure to politics often considered as a liability in some parts of the country and they do not know about their basic and political rights, hence most of the political decision are being taken by the male member of the family.
  • Work and Family: uneven distribution of household work between men and women also one of the important factors in this regards.
  • Social and Cultural Norms: In few parts of the country the age old patriarchal mentality treat women as second class citizen and think women are only for domestic responsibilities.
  • Lack of financial support: Women do not get adequate financial support from the political parties to contest the elections.
  • Prevailing cultural attitudes regarding the roles of women in society

 

The Economic survey for 2017-18 tabled in Parliament said factors such as domestic responsibilities, prevailing cultural attitudes regarding roles of women in society and lack of support from family were among main reasons that prevented them from entering politics.

 

Way Forward

  • It is theneed of the hour in a country like India to have equal participation of women in mainstream political activity.
  • Society needs to deconstruct the stereotype of womenas limited to household activities only.
  • All political parties have to arrive at a consensus and ensure the passage of Women’s Reservation Bill,which calls for reserving 33 percent of seats in Parliament and all state legislative assemblies for women.
  • Around the world, more countries follow the idea of reservation in political parties. Sweden, Norway, Canada, the UK, and France are examples.

 

PAID NEWS

  • Press Council of India – defines paid news as “any news or analysis appearing in any media (print & electronic) for a price in cash or kind as consideration”.
  • It is considered a “grave electoral malpractice” on the part of candidates to circumvent expenditure limits. However paid news is not an electoral offence yet.
  • The news is much like an advertisement but without the ad tag.
  • The payment modes for paid tax usually violate tax laws and election spending laws.
  • More seriously, it has raised electoral concerns because the media has a direct influence on voters.

 

Reasons For Rise In Paid News

Parliamentary Standing Committee on Information Technology in its report titled “Issues Related to Paid News” identified following reasons for paid news: –

  • Corporatization of media, desegregation of ownership and editorial roles, decline in autonomy of editors/journalists due to emergence of contract system and poor wage levels of journalists.
  • Inadequate punitive powers of statutory regulators like the PCI and Electronic Media Monitoring Centre (EMMC).
  • The conflict of interest inherent with appointment of media-owners as members of the PCI or self- regulatory bodies.
  • Inaction by Government: on various recommendations of the PCI and Election Commission of India (ECI).
  • Concentration of media ownership: The lack of restriction on ownership across media segments (print, TV or internet) or between content and distribution gives rise to monopolistic practices.

 

Consequences of paid news

  • Disturbs level playing field for candidates
  • The electorate get misinformed
  • Increases the role of money in politics
  • Against free and fair elections and disturbs the democratic credentials of the country
  • Eroding image of media.
  • Paid News causes undue influence on voters and also affects their Right to Information.

Recommendation

  • The Press Council of India has recommended amendment to the Representation of the People Act, 1951 in order to make the incidence of paid news a punishable electoral malpractice.
  • The ECI has also recommended for including paid news in the category of corrupt practices or electoral offences.
  • Law commission recommendations: Report on “Electoral Reforms” 2015 – The definitions of “paying for news”, “receiving payment for news” and “political advertisement” should be inserted in the Representation of the People Act, 1951.
  • Adoption of international best practices: On the lines of the Justice Leveson Report on the press and existing regulatory structure in the UK.

 

CHANGING NATURE OF ELECTION

 

 

 

Changes

 

●       Electoral campaigning is becoming more personality based where political parties are focussing on individual leadership rather than local issues and local representatives.

●       Narrative capture where election outcome is decided by “artificial issues” rather than state specific or local issues and diversion of attention from genuine public concerns.

●       Change in voters’ attitude as an issue of national leadership is central in determining voter decisions. Voters know which individuals it wants but not necessarily which parties or policies.

●       Weak political culture, weak opposition also limit the scope for genuine public debate.

 

 

Concern

 

●       Undermining parliamentary systems where voters elect local representatives, on the basis of local concerns, to make laws.

●       No genuine separation of powers- The legislature cannot truly hold the executive accountable since electors have won in the name of their leader. It leads to undermining the legislature. Frequent disruptions in the Parliament further aggravate this problem.

●       Turncoat candidates (persons changing parties) who found it difficult earlier to get elected are now overpowering the personality of the leader makes it easier for them to get elected. This leads to corruption, criminalisation, and a fall in ethical values in politics.

●       Populism and personality-based politics weaken the spirit of democracy and reduce space for critical debate.

 

ELECTORAL REFORMS BEFORE 1996

Lowering of Voting Age –

  • The 61stConstitutional Amendment Act(1988) reduced the voting age from 21 years to 18 years for the Lok Sabha and assembly elections.

 

Deputation to Election Commission –

  • A provision was made in 1988 which said that the officers and the staff engaged in preparation, revision and correction of electoral rolls for elections will be considered to be on deputation to the Election Commission for the period of such employment.

 

  1. Increase in Number of Proposers –
  • There was an increase in the number of proposers for election to Rajya Sabha and Legislative councils in 1988.
  • The proposers (number of electors who are required to sign in nomination papers) for elections to the Rajya Sabha and state legislative council had been increased to 10 percent of the electors of the constituency or ten such electors, whichever is less.

 

Electronic Voting Machines (EVM) –

  • The use of EVMs in elections was enabled by a provision in 1989.
  • The EVMs were used for the first time in 1998on an experimental basis in selected constituencies in the elections to the State assemblies of Rajasthan, Madhya Pradesh and Delhi.
  • The EVMs were used for the first time in the general elections (entire state) to the Assembly of Goa in 1999.

 

Booth Capturing –

  • A provision was made in 1989 for adjournment of poll or countermanding of elections in case of booth capturing.

 

Booth capturing involves –

  • seizure of a polling station and making polling authorities surrender ballot papers or voting machines;
  • taking possession of polling station and allowing only one’s own supporters to exercise their franchise;
  • threatening and preventing any elector from going to polling station; and
  • seizure of the place being used for counting of votes.

 

Elector’s Photo Identity Card (EPIC)

  • The use of electors’ photo identity cards by the Election Commission is surely making the electoral process simple, smoother and quicker.
  • A decision was taken by the Election Commission in 1993 to issue photo identity cards to electors throughout the country to check bogus voting and impersonation of electors at elections.

 

ELECTORAL REFORMS IN 1996

Listing of Names of Candidates –

  • The candidates contesting elections are to be classified into three lists –
  • Candidates of recognised political parties.
  • Candidates of registered-unrecognised political parties.
  • Other (independent) candidates.
  • Their names in the ballot papers have to appear separately in the above order.
  • In each category these have to be arranged in the alphabetical order.

 

Disqualification for Insulting the National Honour Act –

  • A person who is convicted for the following offences under the Prevention of Insults to National Honour Act of 1971 is disqualified to contest in the elections to the Parliament and state legislature for 6 years
    • Offence of insulting the National Flag.
    • Offence of insulting the Constitution of India.
    • Offence of preventing the singing of the National Anthem (not national song!!)

 

Prohibition on the Sale of Liquor –

  • No liquor or other intoxicants are to be sold or given or distributed at any shop, eating place, hotel or any other place whether public or private within a polling area during the period of 48 hours ending with the hour fixed for the conclusion of the poll.
  • Any person who violates this rule is to be punished with imprisonment up to 6 months or with fine up to Rs. 2,000 or with both.

 

Number of Proposers –

  • The nomination of a candidate in a Parliamentary or assembly constituency should be subscribed by 10 registered electors of the constituency as proposers, if the candidate is not sponsored by a recognized political party.
  • In the case of a candidate sponsored by a recognized political party, only one proposer is required.

 

Death of a Candidate –

  • Earlier, in case of death of a contesting candidate before the actual polling, the election used to be countermanded and the election process used to start all over again in the concerned constituency.
  • Now, the election would not be countermanded.
  • If the deceased candidate belonged to a recognised political party, the party concerned would be given an option to propose another candidate within seven days.

 

Time Limit for By-Elections –

  • Now, by-elections are to be held within six months of occurrence of the vacancy in any House of Parliament or a State Legislature.

 

This condition is not applicable in two cases –

  • where the remainder of the term of the member whose vacancy is to be filled is less than one year; or
  • when the Election Commission in consultation with the Central Government, certifies that it is difficult to hold the by-elections within the said period.

 

  • Holiday to Employees on the Polling Day –
  • The registered voters employed in any trade, business, industry or any other establishments are entitled to a paid holiday on the polling day. This rule applies even to the daily wagers.

 

Contestants Restricted to Two Constituencies –

  • A candidate would not be eligible to contest from more than two Parliamentary or assembly constituencies at a general election or at the by-elections which are held simultaneously.

 

Prohibition of Arms –

  • Entering into the vicinity of a polling station with any kind of arms is to be considered a cognizable offence, punishable with imprisonment of up to two years or with fine or with both. Further, the arms are to be confiscated and the related license is to be cancelled.
  • These provisions are not applicable to the returning officer, presiding officer, any police officer or any other person appointed to maintain peace and order at the polling station.

 

Effective Campaigning Period Reduced –

  • The minimum gap between the last date for withdrawal of candidature and the polling date has been reduced from 20 to 14 days.

 

Restrictions Imposed on Exit Polls –

  • According to Representation of the People (Amendment) Act, 2009, conducting exit polls and publishing results of exit polls would be prohibited during the election to Lok Sabha and State Legislative Assemblies.

 

Time-Limit for Submitting a Case for Disqualification –

  • Representation of the People (Amendment) Act, 2009 made a provision for simplification of the procedure for disqualification of a person found guilty of corrupt practices.
  • 3 months’ time was provided to specified authority who will have to submit the case of a person found guilty of corrupt practice to the President for determination of the question of disqualification.

 

All Officials Included in Corrupt Practice –

  • Representation of the People (Amendment) Act, 2009 made a provision for the inclusion of all officials, whether in the government service or not, appointed or deputed by the Election Commission in connection with the conduct of elections, within the scope of corrupt practice.

 

Increase in Security Deposit –

  • Representation of the People (Amendment) Act, 2009 increased the amount of security deposit to be paid by the candidates contesting elections to the Lok Sabha and State Legislative Assembly too. This was to check the multiplicity of non-serious candidates.

 

Appellate Authority within the District –

  • Representation of the People (Amendment) Act, 2009 made a provision for appointment of an appellate authority within the district against the orders of the Electoral Registration Officers, instead of the Chief Electoral Officer of the state.
  • A further appeal will now lie before the Chief Electoral Officer of the state.

 

Voting Rights to Citizens of India Living Abroad –

  • Representation of the People (Amendment) Act, 2010 made a provision to confer voting rights to the citizens of India residing outside India.

 

Ceiling on Election Expenditure Increased –

  • In 2011, the Central Government raised the maximum ceiling on election expenditure by candidates for a Lok Sabha seat and Assembly seat.

 

VARIOUS COMMITTEES ON ELECTORAL REFORMS

Dinesh Goswami Committee

In 1990, Dinesh Goswami Headed a Committee made the following recommendations –

  • The ordering of re-poll or countermanding should not only be on the report of the returning officer, but also otherwise and, also to give the Election Commission the requisite powers to appoint investigating agencies, prosecuting agencies and constitution of special courts.
  • There is a need for an amendment to the anti-defection law to restrict disqualification only to those cases, where an elected member voluntarily gives up his membership of the political party, or when he votes or abstain from voting contrary to party whips, directions etc. only in respect of motion of vote of confidence. The question of disqualification of members should not be decided by the speaker or the Chairman of the concerned House.
  • Changes in the voting pattern and shift to proportional representation of the list system, instead of present voting system should be made (However, this matter was to be further discussed amongst experts.
  • There should be fresh delimitation on the basis of 1981 census and there should be a provision for rotation of reserved seats for Scheduled Castes and Scheduled Tribes.
  • No candidates should be allowed to contest an election from more than two constituencies. The age of Candidates for assembly seats should be reduced to21 and for the Council to 25.
  • A model code of conduct be framed which would include issues relating to-the use of official machinery, transport, media, funds etc
  • There should be a ban on transfer of officials and staff concerted with the elections.
  • There should be a six month time limit for holding bye-elections.
  • Army and Para-military personnel, diplomats and others placed outside India should be allowed proxy voting.
  • Extensive restructuring of the accounting of election expenses is needed.
  • Speedy trial of election disputes through the help of ad-hoc judges should be ensured.
  • EVM should be used to put an end to manipulating and tempering.

 

Jeevan Reddy Committee

Justice Jeevan Reddy has proposed far reaching Electoral Reforms. The Following are the Highlights-

  • The Commission advocated a total ban on splits and mergers of political parties during the term of the Lok Sabha or Legislative Assembly.
  • Once a member has been elected on a ticket of a particular recognized party, then he should remain in that party till the dissolution of the House or till the end of his membership by resignation or otherwise.
  • The Commission has recommended an adequate representation.
  • To curb criminalization of politics, the Commission has suggested that a person should be disqualified from contesting elections to the Lok Sabha or an Assembly if a court has ordered framing of charges in respect of offences listed in the Representation of the People Act, 1951.

 

Tarkunde Committee

Tarkunde Committee made the following recommendations:

  • The election Commission should be a three member body.
  • The minimum age for voting should be 18 years.
  • The TV and Radio should be placed under the control of autonomous statutory corporations.
  • The committee recommended the formation of a voter’s council in as many constituencies as possible which can help in free and fair elections.

 

HYBRID SYSTEM

  • A hybrid/mixed system refers to an electoral system in which two systems are merged into one combining the positive features from more than one electoral system.
  • In a mixed system, there are two electoral systems using different formulae running alongside each other. The votes are cast by the same voters and contribute to the election of representatives under both systems.
  • One of those systems is a plurality/majority system (or occasionally an ‘other’ system), usually a single member district system, and the other a List PR system.
  • There are two forms of mixed system –
  1. Mixed Member Proportional
  2. Parallel System

 

Various types of Electoral Systems

  • First Past The Post System
  • Proportional Representation
  • Mixed systems also sometimes referred to as Hybrid System

 

 

** In India we follow both FTP & PR. FTP in Lok Sabha Election and PR in Rajya Sabha, President & Vice President Election

 

 

Why did we chose FPTP?

  • Simplicity – As, most of the population was not literate at the time of independence, PR SYSTEM would have been complex to understand.
  • Familiarity – Before independence several elections were held regularly on FPTP basis.
  • Favour to stability – PR system seemed unsuitable to the parliamentary government due to the tendency of the system to multiply political parties leading to instability in government.
  • PR SYSTEM establishes the party as a major centre of power whereas FPTP gives an individual as a representative of the people of a certain specific area. Given India’s condition at the time of independence this was a big concern for our leaders as people connected more to their leaders rather than a certain political party.

 

Comparison of FPTP and PR system of election

 

FPTP PR
The country is divided into small geographical

units called constituencies or districts.

Large geographical areas are demarcated as constituencies. The entire country may be a single constituency
Every constituency elects  one representative More than one representative may be elected from one constituency
Voter votes for a candidate Voter votes for the party
A party may get more seats than votes in the legislature Every party gets seats in the legislature in proportion to the percentage of votes that it gets
Candidate who wins the election may not get of

majority (50% + 1) votes

Candidate who wins the elections gets majority votes.
Examples: U.K., India Examples: Israel, Netherlands

 

Why is there demand for Hybrid Election System?

  • According to some Parliamentarians, “majority aspirations”and the “actual will of the people” is not getting reflected in election results
  • The first-past-the-post systemhad worked well in the beginning because there was one-party domination (of the Congress)
  • Earlier, the voting percentagewas also very high. But now because of a division of votes, a party with even a 20% share does not get a single seat.
  • This system is followed by various European countries successfully.
  • The Law Commission’s 170th and 255th report also suggested that 25% or 136 more seats should be added to the present Lok Sabha and be filled by Proportional Representation.
  • Many point out that the current system reflects a “Minority democracy” which has been ruling the country since independence.

 

SIMULTANEOUS ELECTION

  • The “One Nation, One Election” idea envisages a system where elections to all state assemblies and the Lok Sabha will have to be held simultaneously.
  • It means structuring the Indian election cycle in a manner that elections to Lok Sabha and State Assemblies are synchronized together under which voters in a particular constituency vote for both State Assembly and Lok Sabha the same day.
  • It does not mean that voting across the country for Lok Sabha and State Assemblies needs to happen on a single day
  • Earlier, SEs were held in India till 1967 which was disrupted due to premature dissolution of Assemblies.
  • Elections to the third tier of democracy cannot be included in SE because it is a part of state list as well as the number of local bodies is huge.

 

Advantages of Simultaneous elections
  • It will reduce enormous costs involved in separate elections.
  • It will reduce the burden on the manpower deployed.
  • The system will help ruling parties focus on governance, instead of being constantly in election mode.
  • It reduces the distractions from long-term planning and policy goals.
  • It will boost voter turnout, according to the Law Commission.
  • It would increase convenience for the Election Commission. Since voters, polling personnel, and polling booths are all the same, it does not matter if the voter is casting her vote for one election or two or three.
  • Frequent elections lead to disruption of normal public life and impact the functioning of essential services. Also, during elections caste, religion and communal issues gain attention and frequency in the process perpetuates such dividing issues across the country.

 

Disadvantages of Simultaneous elections
  • Holding simultaneous elections is likely to affect the judgment of voters as the national and state issues are different.
  • It will reduce the accountability of the government to the people as the elections will be held once in five years. But repeated elections keep legislators on their toes and increase accountability.
  • It may curtail or extend the tenure of State legislatures to bring their elections in line with the Lok Sabha poll dates.
  • There is a serious question of what happens if the government at the Centre falls.
  • There will be a blow to democracy and federalism when the President’s rule will have to be imposed in the interim period in a state. This may be due to the postponement of election in a State until the synchronised phase arrives.
  • In a Parliamentary democracy, the legitimacy of the executive is responsible to the legislature would be undermined by taking away the legislature’s power to bring down a minority regime by mandating a fixed tenure.
  • It will, in all probability, benefit the dominant national party or the incumbent at the Centre while disadvantaging the smaller regional party and issue.

 

ELECTORAL FUNDING REFORMS

Money is central to the issue of political corruption in India and political parties are suspected to be the largest and most direct beneficiaries. Corruption in elections reduces accountability, distorts representation, and introduces asymmetry in policymaking and governance. The issues in electoral funding in India are: –

  • Opacity in donations: Political parties receive the majority of their funds through anonymous donations (approximately 70%) through cash.
  • Lack of action against bribes: The EC sought insertion of a new section, 58B, to RPA, 1951 to enable it to take action if parties bribe voters of a constituency, which has not come to light.
  • Unlimited corporate donations: The maximum limit of 7.5% on the proportion of the profits a company can donate to a political party has been lifted, thus opening up the possibility of shell companies being set up specifically to fund parties.
  • Allowing foreign funding: Amendment of the Foreign Contribution (Regulation) Act (FCRA) has opened the floodgates of foreign funding to political parties, which can lead to eventual interference in governance.
  • Lack of transparency: Despite provisions under section 29 of RPA, 1951, parties do not submit their annual audit reports to the Election Commission. Parties have also defied that they come under the ambit of RTI act.

 

Consequences of Lack of Transparency In Electoral Funding

  • Quid pro quo: Donors to political campaigns can demand for favourable laws and policies, favourable government contracts, and exceptionalism in law enforcement as returns on their investments.
  • Hampers political equality: Lobbying for advantageous laws can simply redistribute advantages to particular groups instead of allocating them more fairly and productively. This hampers political equality as money power determines legal rules which could otherwise be formulated with broader concern for all the members of an electorate.
  • Criminalization of politics: When black money becomes the source, it brings the criminal elements into the fold of politics.
  • Free and fair elections cannot happen if political outcomes are determined by the financial capacity of candidates. This discourages genuine candidates from contesting, and winning elections.

 

THE CASE FOR STATE FUNDING OF ELECTIONS

Various committees have suggested state funding of elections as a way to reduce the role of money in elections. Recently, a private member’s bill has also been introduced that seeks implementation of state funding of elections.

 

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.
  • It will check quid-pro-quo and can help curb corruption.
  • Through state funding the demand for internal democracy in party, women representations, representations of weaker sections can be encouraged as it gives a level playing field to all.
  • In India, with high levels of poverty, ordinary citizens cannot be expected to contribute much to the political parties. Therefore, the parties depend upon funding by corporate and rich individuals.
  • Various committees including Indrajit Gupta Committee 1998, Law Commission of India, 2nd ARC, National Commission to Review the Working of the Constitution, have favored state funding.

 

Arguments against state funding of elections

  • Through state funding of elections, the taxpayers are forced to support even those political parties or candidates, whose view they do not subscribe to.
  • State funding encourages a status quo that keeps the established party or candidate in power and makes it difficult for the new parties and independent candidates.
  • State funding increases the distance between political leaders and ordinary citizens as the parties do not depend on the citizens for mobilization of party funds.
  • Political parties tend to become organs of the state, rather than being parts of the civil society.
  • It may lead to candidates running for elections just for the sake of availing monetary benefits.
  • There is a possibility of state funding being used as a supplement and not as a substitute for a candidate’s own expenditure.

 

ELECTORAL BONDS

  • According to an ADR (Association of Democratic Reforms) analysis, 69% of the total income of national and regional parties between 2004-05 and 2014-15 was contributed through funding from unknown sources.
  • The 255th Law Commission Report on Electoral Reforms observed that opacity in political funding results in “lobbying and capture” of the government by big donors.
  • Electoral bonds were announced in Union Budget 2017-18 and the required amendments in Reserve Bank of India Act, 1934 (Section 31(3)) and the Representation of People Act, 1951 were made through Section 133 to 136 of Finance Bill, 2017.

 

Pros of Electoral Bonds

  • Tackling Black Money in Political Funding: As electoral bonds will be purchased through KYC compliance therefore it would induce funding through clean money.
  • Increasing Transparency and Accountability – Filing of returns is a welcome step in evaluating the quantum of money received by political parties as donations.
  • Anonymity – will help guard against India’s “vindictive” political culture in which parties could penalise donors for funding rival political forces.
  • Short span of 15 days for redeeming the electoral bonds will prevent it from being a parallel currency.
  • Stringent clauses of eligibility will filter out political parties that are formed on the pretext of tax evasion.

 

Cons of Electoral Bonds

  • Opacity – The knowledge of the quantum
  • Political parties are legally bound to submit their income tax returns annually under Section 13Aof the Income Tax Act, 1961. However, the finance bill also sought to exempt electoral bonds from the IT Act. Thus, removing the need to maintain records of names, addresses of all donors.
  • Favours ruling partySBI being a government owned bank will hold all the information of the donors which can be favourable to the party in power and also deter certain entities from donating to opposition due to fear of penalisation.

 

Way Forward

  • Switching to complete digital transactions.
  • Donations above a certain limit are made public to break the corporate-politico nexus.
  • Political parties should be brought under the ambit of RTI as followed in countries like Bhutan and Germany.
  • Establish a National Electoral Fund where donors contribute and funds are distributed among different parties according to their respective performances in the last elections. This will also weed out black money as well as ensure anonymity to donors.
  • State funding of elections has been suggested in the past in response to the high cost of elections.

 

Schemes/Initiatives of Election Commission of India

Introduction of the c-VIGIL mobile app

  • The c-VIGIL App provides time-stamped, evidence-based proof of the Model Code of Conduct / Expenditure Violation, having live photo/video with auto location data.
  • Any citizen can lodge a complaint through the Mobile App. Flying Squads will then investigate the matter and the Returning Officer takes the decision.
  • The status of c-VIGIL can be shared with the c-VIGIL complainant within a specified time limit.

 

Systematic Voters’ Education and Electoral Participation program-SVEEP

  • It is the flagship program of the Election Commission of India for voter education, spreading voter awareness and promoting voter literacy in India.
  • SVEEP’s primary goal is to build a truly participative democracy in India by encouraging all eligible citizens to vote and make an informed decision during the elections

 

PPRTMS

The Election Commission of India has launched a “Political Parties Registration Tracking Management System (PPRTMS)”.

  • The salient feature in the PPRTMS is that the applicant, who is applying for a political party registration from 1st January, 2020 will be able to track the progress of his/her application and will get status updates through SMS and e-mail.
  • Registration of political parties is governed by the provisions of Section 29A of the Representation of the People Act, 1951.

 

Postal Ballot

  • It is also called Electronically Transmitted Postal Ballot Papers (ETPB) and under this ballot papers are distributed electronically to electors and are then returned to the election officers via post.

 

Beneficiaries

  • Members of the armed forces like theArmy, Navy and Air Force, members of the armed police force of a state (serving outside the state), government employees posted outside India and their spouses are entitled to vote only by post. While prisoners are not allowed to vote, people under preventive detention can cast their votes through postal ballots.
  • Special voters such as the President of India, Vice-President, Governors, Union Cabinet ministers, Speaker of the House and government officers on poll duty have the option to vote by post.
Recently, a new category of ‘absentee voters’ was introduced in which they can also opt for postal voting. These voters are employed in essential services and unable to cast their vote due to their service conditions. Currently, officials of the Delhi Metro Rail Corporation, Northern Railway (Passenger and Freight) Services and media persons are notified as absentee voters.
Recently, senior citizens above the age of 65 and voters who test positive for COVID19 or are suspected to be COVID-affected were allowed to cast their vote by post.

 

Facial Recognition in Election

In the upcoming Telangana urban local bodies polls, the State Election Commission (SEC) will be using a facial recognition app for verification and real-time authentication of voters on the pilot basis in 10 selected polling stations.

  • The use of facial recognition for election will be a first-of-its-kind in India.
  • It will help to counter impersonation by votersduring polling.
  • The facial recognition is proposed as an additional tool to validate the identity of the voterin addition to the existing procedures prescribed including use of photo electoral rolls, the insistence of photo ID proof in addition to the personal scrutiny by the polling agents appointed by the contesting candidates.

 

Suggestions for strengthening of ECI

  • Election commissioners should be given the security of tenure similar to chief election commissioners.
  • ECI should have contempt powers same as the court in India. Frequent contempt affects the dignity of the institution.
  • There should be transparency in the funding of political parties.
  • ECI should be given the power to make rules under Representation of people act 1951.
  • ECI should have the power to audit the accounts of political parties.
  • Election to the legislative assembly and to the parliament should be conducted simultaneously (One Nation, One Vote).
  • Debar the candidate from contesting election if criminal cases are pending against him.
  • Make paid news an offence.
  • Do not allow one candidate to contest from more than one constituency.

 

THE LAW COMMISSION OF INDIA’S SUGGESTIONS

  • The political parties should be brought under the ambit of the RTI.
  • There should be internal democracy in political parties. Introducing internal democracy and transparency within political parties is important to promote financial and electoral accountability, reduce corruption, and improve democratic functioning of the country as a whole
  • Greater financial accountability of parties. Due to under reporting of election expenditure and opacity of political contribution the commission has been realistic in describing the current situation in a sub-section titled Understanding the reality of election financing today,
  • Transparency of Party affairs. It makes extensive and detailed recommendations, maintaining that “Disclosure is at the heart of public supervision of political finance and requires strict implementation of the provisions of the RPA, the IT Act, the Company Act, and the ECI transparency guidelines.”
  • The chapter Paid News and Political Advertising details several “instances (which) highlight the ways in which paid news and disguised political advertisements are growing deep into the process of democratic elections in India. The amount of money being spent on these practices has risen at exponential levels
  • State Funding of election model to check black money in elections; among others.

 

2nd ARC Recommendations

  • A system for partial state funding should be introduced in order to reduce the scope of illegitimate and unnecessary funding of expenditure for election.
  • Enforcement of Code of Conduct for elections binding in all respects, issuing directions regarding timings of campaigns, prohibition of festoons/cut-outs, insistence on daily expenditure statements, appointment of a large number of observers, ordering of re-poll in specific polling booths and other such steps.
  • The issue of disqualification of members on grounds of defection should be decided by the President/Governor on the advice of the Election Commission.
  • The Constitution should be amended to ensure that a common programme is framed before the elections or implicitly while forming the government. If there is realignment midstream with one or more parties outside the coalition, the coalition has to seek a fresh mandate from the electorate.
  • A collegium headed by the Prime Minister with the Speaker of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the Law Minister should make recommendations for the consideration of the President for appointment of the Chief Election Commissioner and the Election Commissioners.
  • Special Election Tribunals should be constituted at the regional level under Article 323B of the Constitution to ensure speedy disposal of election petitions and disputes
  • The term office of profit needs to defined, though the contours of it are set by SC but the law needs to be amended.