For a vibrant democracy, financial transparency

Jagdeep Chhokar

THE results of the 2024 Lok Sabha elections appear to have signalled a shift in the political and electoral scene in the country. Whether this shift is of any significance or sustainable, only time will tell but the election has, once again, highlighted the need for electoral reforms. While electoral reforms are a huge issue with implications for the entire political spectrum, the following six reforms seem to be the most significant and urgent.

 

Every political party must function in a democratic manner within itself

The single most important reform needed is internal democracy in the functioning of political parties. We have a very incongruous situation. While the country claims to be a vibrant democracy, none of the political parties, the so-called ‘pillars’ of democracy, are democratic in their internal functioning. The Law Commission of India said in its 170th report in May 1999:

“It is therefore, necessary to introduce internal democracy, financial transparency and accountability in the working of the political  parties.”

“Internal democracy” as used by the Commission means (a) demonstrable democracy, and (b) candidates should also be chosen democratically, not on the whims of the party leadership.

A draft bill titled The Political Parties (Registration and Regulation of Affairs, etc.) Draft Bill 2011 was prepared by a committee chaired by Justice M.N. Venkatachaliah, former Chief Justice of India. This draft bill was sent to all political parties in 2011 but nothing has been heard from any of them.

 

Citizens have the right to know how political parties are being funded

The excerpt from the Law Commission’s report reproduced above specifically mentions “financial transparency and accountability”. Governments of all hues have maintained that citizens/voters have no right to know the source of funds of political parties but the Supreme Court (SC) has said in the recent Electoral Bonds judgment that citizens do have this right.

This issue has also been taken up under the Right to Information (RTI) Act in the past. The Central Information Commission (CIC), the highest statutory body in the country under the RTI Act, in a unanimous, full-bench decision on June 3, 2013, held that six national political parties were public authorities under the RTI Act. All the six parties blatantly refused to follow the directions of the CIC. The matter has been pending in the Supreme Court since 2015.

 

Independence of the Election Commission is essential for the working of democracy

This is a fundamental issue regarding the conduct of elections in India which the Constituent Assembly (CA) had discussed at length. The primary concern was to make the Chief Election Commissioner completely independent of the Executive. A consensus could not be arrived at and, as a compromise, it was left to Parliament to make a law in this regard but this was never done and the CEC and the ECs continued to be appointed by the government of the day.

The SC, on March 2, 2023, directed Parliament to legislate on the issue, and said that till a law was made, the appointments should be done on the recommendation of a committee consisting of the prime minister, the leader of the opposition, and the Chief Justice of India (CJI). In December 2023, Parliament did make a law, leaving out the CJI and replacing him with a minister nominated by the prime minister, which negated the spirit of the SC judgment and the CA debates.

Given that the independence of the Election Commission of India (ECI) is fundamental to democracy, it has been proposed that the following process be followed for the appointment of the CEC and the ECs.

a.   An existing committee of Parliament, or a new committee formed for this purpose, should propose the qualifications and requirements for persons to be appointed as ECs/CEC.

b.   The proposal of the committee should be put to Parliament and should be considered approved only if approved by a two-thirds majority of the members of Parliament present and voting.

c.   Once the qualifications and requirements are approved by Parliament, the same committee should be entrusted with the task of searching for and selecting individuals proposed to be appointed as ECs/CEC.

1. The committee should invite nominations of and applications by individuals appropriate for and interested in being appointed as ECs/CEC.
2. Out of the nominations and applications received, the committee should short-list persons considered appropriate.
3. The committee should meet the short-listed persons in open hearings which should be accessible for viewing by people at large through video transmission.
4. After the hearings, the committee should select individuals proposed to be appointed as ECs/CEC.

d.  The committee should send its recommendations to Parliament for consideration.

e.   Recommendations of the committee should be considered approved by Parliament only if approved by a two-thirds majority of the members of Parliament present and voting.

f.   Once Parliament approves the recommendations, these should be sent to the President for approving the appointments.

g.   Once appointed, such persons should stay in their positions for six years or till the age of 75 years, whichever is earlier. Persons above the age of 69 years should not be appointed.

 

More power should be given to the ECI to discipline political parties

Article 29A of the Representation of the People Act, 1951, gives the ECI power to register political parties. Normally, a registering authority also has power to deregister. However, the SC, in a judgment on May 10, 2002 (Indian National Congress (I) vs Institute of Social Welfare and others), held that though the ECI does have the power to register political parties, it does not have the power to deregister them. This puts India in a unique position in the world where a political party, once registered, will continue to exist till eternity!

This makes the ECI totally powerless to discipline political parties and puts political parties, once registered, almost completely above the law of the land. There is therefore an urgent need to review this judgment.

 

A law is needed to bar candidates with criminal cases pending against them from fighting elections

Consequent to judgments by constitutional courts, since 2003, candidates contesting elections to Parliament and state assemblies have to disclose criminal cases pending against them. As a result of these self-disclosures, data from the 2004 elections onward shows a consistent progressive increase in the number of members of the Lok Sabha with criminal cases pending against them from 25 percent in 2004 to 46 percent in the 2024 elections.

Political parties have not stopped giving tickets to such people despite repeated appeals by several sections of society, and being fined by the SC.

It has been recommended by several agencies, including the ECI, that persons (a) against whom a criminal case has been registered at least one year before the date of the election, (b) the prescribed punishment for the offence is two years or more of imprisonment, and (c) charges have been framed by a court of law should be barred from contesting elections.

Parliament has not done this despite repeated requests. The SC has refused to step in, saying making laws is the job of Parliament, but has repeatedly made fervent appeals to Parliament to do this. If it is not done, a time will come when more than 50 percent of the members of the Lok Sabha will have criminal cases pending against them.

 

Take NOTA seriously so that people get better candidates

The SC, in a landmark judgment on September 27, 2013, directed the ECI to make provision for voters to express their desire not to vote for any of the candidates on the ballot, without violating the secrecy of their vote, by providing a NOTA (None Of The Above) button on the EVMs.

The ECI provided a button. The rule regarding counting of NOTA votes says that out of a total of 2,000 registered voters, if 1,999 votes are cast in favour of NOTA and even one vote is cast for one of the candidates, that candidate will be declared elected. This follows the letter of the law but absolutely ignores and violates the spirit of the judgment which is captured in the following sentence:

“When the political parties will realize that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.”

To implement the SC judgment in the right spirit, the following has been suggested:

1. If NOTA gets the highest number of votes, no one should be declared elected and a fresh election should be held.
2. In the fresh election, the candidates who contested the earlier election should not be allowed to contest.
3. In the fresh election, if NOTA gets the most votes, there should be a run-off election between the top two candidates who secure the most valid votes.

This has been implemented by two State Election Commissions, of Maharashtra and Haryana, and the ECI should also do this so that the SC judgment is implemented in the right spirit. 

 

Jagdeep Chhokar is a founder of ADR and a concerned citizen.