DHANANJAY MAHAPATRA IN THE TIMES OF INDIA
Elections energize a common man to push a small button on a voting machine with a prayer that his vote goes to a responsible person who as the people’s representative in the assembly or Parliament will safeguard his interests and better his conditions. Since poll speeches are not on signed stamp paper, politicians often attempt to promise the moon to the electorate. In the process, many stray outside the Model Code of Conduct zealously enforced by the Election Commission to keep the polls an even contest between ruling party candidates and other hopefuls.
Prior to appointment of T N Seshan as chief election commissioner on December 12, 1990, the model code of conduct was violated by candidates with impunity. Seshan cracked the constitutional whip and succeeded in cajoling strict adherence to the model code of conduct by political parties and candidates.
Elections are meant to send responsible persons as people’s representatives. But often, elections stir the political and social atmosphere to the extent of making even the most sober among the politicians give statements in clear breach of the model code of conduct.
First, it was law minister Salman Khurshid who made a poll promise of carving out quota for Muslims in jobs. Within a week of him being chastised by the EC, fellow Congressman Beni Prasad Verma repeated the mistake and dared EC to take action. Why did Khurshid, who knows law better than most, commit such a folly? And despite his clear indictment, why would his colleague follow suit?
If these two incidents were not enough, another minister Sriprakash Jaiswal goofed up by declaring that if a Congress government was formed in Uttar Pradesh after the elections, there would be President’s rule.
Threat to impose central rule in a state in the midst of a multi-phase election process is a serious breach of model code of conduct capable of influencing people to cast votes in a particular way.
Whatever be the motive behind these statements, a particular dumbness appears to infect politicians during elections when they refuse to learn from mistakes. They forget that democracy flourishes only in a democratic atmosphere and under democratic conditions.
The same cannot be true of Press Council of India chairperson Justice Markandey Katju, a retired judge of the Supreme Court. It was least expected of Justice Katju, who has tremendous knowledge of law and apex court judgments, to threaten a state government with dismissal.
Looking into certain incidents of violence against journalists in Maharashtra and the state government persistently ignoring PCI’s notices, Justice Katju recently issued a showcause notice accompanied with a threat that if this time the state failed to respond, he would recommend to President to “dismiss the state government” under Article 356(1) of the Constitution.
The Congress-NCP government must be laughing as Justice Katju’s threat is more hilarious than legal. Those who have read the apex court’s landmark judgments on Article 356 in S R Bommai case, Kihoto Holohon case, State of Rajasthan case and the latest one in Rameshwar Prasad case would be scratching their heads in bewilderment. For, the Constitution vests the governor of the state concerned and none else with the power to recommend dismissal of a state government.
The streak of irresponsibility found in persons holding high offices had made the Supreme Court to say, “It is incumbent on each occupant of every high office to be constantly aware of the power in the high office he holds that is meant to be exercised in public interest and only for public good, and that it is not meant to be used for any personal benefit or merely to elevate the personal status of the current holder of that office.” [Rameshwar Prasad vs Union of India, 2006 (2) SCC 1].
For similar reasons, Seshan, despite transforming the Election Commission from a constitutional “lamb” to a “roaring tiger” ready to bite rogue politicians, too faced the apex court’s flak when he imagined himself to be the sole dictatorial protector of elections, which is the heart of democracy.
In T N Seshan vs Uuion of India [1995 (4) SCC 611], the SC had said, “His (Seshan’s) public utterances at times were so abrasive that this court had to caution him to exercise restraint on more occasions than one… This gave the impression that he was keen to project his own image. That he has very often been in newspapers and magazines and on television cannot be denied… The CEC has been seen in a commercial on television and in newspaper advertisement… The CEC is, it would appear, totally oblivious to sense of decorum and discretion that his high office requires even if the cause was laudable.”
We sincerely hope politicians and holders of high offices will take a look at the 1995 judgment and bring sobriety into their public utterances.
- Where’s the ‘indictment’? (indialawyers.wordpress.com)
- Reforming the Press Council (indialawyers.wordpress.com)
- No Press Freedom in Bihar: Markandey Katju (ibtimes.com)
- Law Minister is defiant: EC Complainst to President (indialawyers.wordpress.com)
- Don’t break the code (indialawyers.wordpress.com)
TS KRSHNAMURTHY IN THE INDIAN EXPRESS
The Election Commission (EC) and the Supreme Court of India can be considered as the crown jewels of Indian democracy. Both these institutions, although non-elected, have been rendering a great service in preserving and protecting the civil rights of citizens in no small measure.
It is indeed disturbing, if not shocking, to know that there is a move to convert the Model Code of Conduct into a law. The present proposal, though not officially confirmed, seems to be motivated to check the assertive authority displayed by the EC during elections, from the announcement of election dates to the declaration of results, so that any action that violates the Code will perhaps be dealt with by a court of law and not the EC. Seemingly innocuous, such a move is fraught with dangerous consequences as it will not only diminish the authority of the Election Commission in effectively enforcing the rules of behaviour by political parties and the candidates but also destroy the quality of representative democracy so zealously provided for in our Constitution.
The Model Code of Conduct had its origin quite some decades back, thanks to an initiative taken by police officers in Thiruvananthapuram in 1960 to bring about a consensus among political parties to ensure a level-playing field in fighting electoral battles. Recognising the merit of a code in ensuring free and fair elections, the Election Commission of India, after evolving a consensus among political parties, brought into force the Model Code of Conduct to be complied with by all parties and contesting candidates for all elections. In April 2001, the Supreme Court gave its seal of approval to the enforcement of the Code of Conduct as an important instrument for conducting free and fair elections.
Although the Code of Conduct has been in use for quite some time, there have been some limitations in its enforcement both from the point of view of political parties and the Election Commission of India. There is also a view that the Code of Conduct stands in the way of prompt execution of developmental projects, which in my opinion is a myth as the instructions of the commission are clear about allowing development projects/ emergency measures by officials. The Code, being an informal agreement among political parties, does not have legal authority but its utility as a tool for free and fair election management has been well recognised by the Supreme Court. However, political parties tend to take the Code very lightly, as they think that the EC can at best express displeasure or defer the election without any direct adverse consequence to the party or the contesting candidate.
The weakness in the enforcement of the Code is no doubt inherent but over a period of time its impartial enforcement by the EC has been well received by all stakeholders and independent observers. In fact, the symbols order, which is the basis for allotment of symbols to all political parties/candidates, does contain a provision to the effect that the EC can even withdraw a symbol of a party in case of gross violation of the Code of Conduct. The symbols order has also been recognised and approved by the Supreme Court in its judgments. In a nutshell, it may be noted that the Model Code of Conduct has proved its utility in ensuring free and fair elections.
The proposed attempt to convert the Model Code of Conduct into a separate law may appear to be well intended giving the impression that it is easy to enforce compliance through an Act rather than by a Code. Unfortunately, there is a catch in this move. If the proposed law provides that all violations thereunder have to be taken up before a court of law, the very objective of conducting a free and fair election will be given a death blow. The superiority of the Code is that its enforcement power is with the EC as it is able to swiftly swing into action and take appropriate measures to create the necessary impact for the voters to feel that an unbiased body has taken stern and severe action as a result of which no one is at a disadvantage.
There are a number of instances in which violations of the Code have been dealt with by the Election Commission within a week, thereby checking abuse of authority and misuse of money power and muscle power. For example, there was a case of a chief minister who took a state aircraft up to the border of his state and after crossing the border used a party vehicle for election canvassing in another state. Obviously, this person was misusing his authority to get unfair political gains. After a showcause notice, his party was asked to reimburse the cost of his air travel to the state exchequer. Similarly, there was another case where the photograph of a chief minister was displayed on school bags supplied free by the government. The entire scheme was ordered to be withdrawn immediately. In yet another case, the entire election was countermanded as a result of violation of the Model Code of Conduct. Very often, such decisions are taken within a week or 10 days after inquiry and giving opportunity to the concerned. Such swift action cannot be taken if the cases are filed in a court of law for adjudication, as judicial process takes months and years for judgment to be given. Time is of the essence as action in such matters has to have an immediate impact.
My view is that if at all a legislative shape is to be given to the Model Code of Conduct, the power to deal with offences and to impose punishment should be given to the Election Commission. This will strengthen it in its election-management exercise. The punishment in such offences can be confined to monetary fine, disqualification and withdrawal of recognition to political parties depending on the nature of the offence. On the other hand, if the power to launch prosecutions and punish these offences is passed on to the court, it will be a retrograde step, contributing to the decline of the credibility of the EC and the election process. If the proposed move shifts the authority to enforce the rules of the game to the court, it will result in devaluing the Election Commission’s authority.
The writer is a former chief election commissioner
- Law Minister is defiant: EC Complainst to President (indialawyers.wordpress.com)
- For a model conduct (mayawatistatues.wordpress.com)
- EC to drop further proceedings against Khurshid (thehindu.com)
A delegation comprising Shri Shanti Bhushan, Shri Prashant Bhushan, Shri Arvind Kejriwal, Shri Manish Sisodia and Ms. Kiran Bedi met the Commission on 31st October, 2011. There was exchange of views on various issues, particularly on electoral reforms. The delegation made several suggestions including those relating to ‘Right to Recall, ‘Right to Reject’, checking corruption in electoral process, preventing criminalization of politics and strengthening of electoral system. The Chief Election Commissioner Dr. S.Y. Quraishi, Election Commissioners Sh. V.S. Sampath and Sh. H.S. Brahma and the senior officers of the Commission responded to the suggestions made by the delegation. There was complete unanimity about the need to end corruption from public life, especially elections.
Dr. Quraishi informed the delegation about various proposals of electoral reforms submitted by the Commission to the Government, from time to time. He also informed them about the recent country-wide consultations on electoral reforms, taken up jointly by the Election Commission of India and the Ministry of Law & Justice. Seven Regional Consultations have already been held in the last about 1 year and an all party meeting was now awaited. The CEC also shared with the delegation the latest developments in the area of speeding up of the proposed reforms. He also briefed them about various administrative and regulatory measures taken by the Commission in the recent months to check corruption, improve transparency and increase peoples’ participation in elections.
The suggestion about the ‘Right to Recall’ was discussed in detail. CEC explained various implications involved in the implementation of the suggestion, like, the minimum percentage of voters who may file the petition for recall, verification of authenticity of thousands of signatures and whether those signatures have been given voluntarily or under coercion, minimum time after which such petition for recall could be presented, the further exercise of calling for a referendum in the constituency and the holding of a subsequent election where the petition succeeds. He also mentioned that such a move would bring instability as the losers could start such a campaign from the day one. He further pointed out that this would also hamper development activities because of frequent elections and imposition of Model Code of Conduct too often. The delegation agreed that the matter needed to be further examined by them keeping all the above implications in mind.
The ‘Right to Reject’ issue was discussed in detail. The Commission informed the delegation that it had already proposed to the Government in December 2001 to make a suitable provision in the rules to introduce a button in the balloting unit of the Electronic Voting Machine (EVM) so that electors could exercise ‘none of the above’ option. The ‘Right to Reject’ will however require an amendment in the Representation of the People Act, 1951. The Commission pointed out that ‘Right to Reject’ may lead to more frequent elections. The delegation was however of the opinion that the ‘Right to Reject’ will not lead to more frequent elections as it will act as a deterrent on the Political Parties to sponsor more worthy candidates and will also help in curbing muscle and money power. CEC observed that the demand for ‘Right to Reject’ would only have an impact if the voting percentages were really high. What is the use of exercising this right if half of the voters do not turn up for voting? The Commission mentioned that the matter is also before the Supreme Court.
The CEC requested civil society groups to extend support to the ongoing positive efforts of the Commission to enhance voters’ participation in elections and strengthen democracy. The delegates assured the Commission that they would campaign for higher public participation in electoral process
The delegation expressed concern over the growing criminalization of politics. The Commission informed them that a proposal for debarring candidates, against whom charges have been framed by the Court of law for heinous crimes, from contesting elections has already been sent to the Government way back in 1998 and the same is at an advanced stage of consideration by the Government. They were of the view that if the ‘Right to Reject’ was provided for in the law, then it would also have a salutary effect on the political parties.
There were discussions on several other issues including state funding of elections, paid news and other reform proposals. The delegates requested for a complete brief on the latest set of electoral reforms proposals. The Commission handed over a written brief on the matter to the delegation. The meeting was extremely cordial and positive.
Election Commission of India
New Delhi, 01th November, 2011
- Time to Make a Start (indialawyers.wordpress.com)
Thirteen ways to cleanse the system
RAMACHANDRA GUHA IN THE TELEGRAPH
In an article published 50 years ago, the great Indian democrat, Chakravarthi Rajagopalachari, deplored “the unconscionable and grievous expenditure on elections, which gives overwhelming advantage to money-power.” Rajaji argued that “elections now are largely, so to say, private enterprise, whereas this is the one thing that should be first nationalized.” Towards this end, he recommended that the government issue voter cards, take votes not at fixed destinations but at mobile booths that went from home to home and hamlet to hamlet, and provide State funding to parties and contestants.
In the decades since Rajaji wrote, money-power has become even more pervasive and influential. A candidate for Parliament requires crores of rupees to fight an election. These costs are obtained through party funds, which rest not (as they should) on membership fees and small voluntary donations, but on commissions creamed off government contracts, and on bribes given by industrialists to whom the parties have granted favours. The funds provided to (or gathered by) contestants are then used to seek to bribe voters. The money spent in fighting elections is recovered many-fold in case the party or contestant wins.
In Rajaji’s time, a minority of politicians (perhaps 20 per cent or so) were corrupt. And virtually none were criminals. Now, certainly less than 20 per cent of politicians in power are completely honest; and somewhat more than 20 per cent have criminal records. That said, the electoral system itself is relatively transparent. Sterling work by successive election commissioners — such as T.N. Seshan, J.M. Lyngdoh, N. Gopalaswami and S.Y. Quraishi — have largely put an end to the practice, widespread in the 1970s and 1980s, of capturing booths, doctoring ballot papers and ensuring that those who were not likely to vote in your favour were kept away from the electoral process. Also on the positive side, voter turnout remains high, far higher, in fact, than in older and otherwise more mature democracies. Besides, the poor vote in larger numbers than the middle-class and the rich.
Indian elections, then, are by no means a farce; but they are surely in need of reform. They need to be made independent of money-power, and less captive to the interests of crooks and criminals. Recognizing this, the ministry of law and the Election Commission have been holding a series of meetings in different parts of India, soliciting views on how best to reform the electoral system. Asked to speak at the meeting in Bangalore, I took as my manifesto (the word is inescapable) a submission prepared by the Association for Democratic Reforms, a remarkable organization that has single-handedly made electoral malpractice and the criminalization of politics topics of national debate. (It was a public interest litigation filed by the founding members of the ADR that resulted in a Supreme Court judgment making mandatory the declaration of assets and criminal records of all those seeking to contest assembly and parliamentary elections.)
The note submitted by the ADR to the ministry of law and the Election Commission makes 27 recommendations in all. These are listed in detail on the ADR website. I will here highlight 13 recommendations, which I shall divide into two categories — those that are immediately practicable, and can be put in place at once; and those that are highly desirable, and can perhaps be tested first in the Lok Sabha elections of 2014 and then implemented in subsequent parliamentary and assembly elections.
The seven proposals made by the ADR that can be implemented with immediate effect are:
1. Barring criminals from politics: A person charged with serious offences like murder, rape, kidnapping, or extortion, against whom charges have been framed by the police or the courts and which are punishable by sentences exceeding two years’ imprisonment should be prohibited from contesting elections. To prevent vendetta by political opponents, the law can specify that such action will be taken only if the case and charges were filed six or perhaps even nine months before the date of the election which the person wishes to contest;
2. Sources of income: Along with the declaration of assets and liabilities (now mandatory), candidates for state and national elections should also make public their yearly income and its sources;
3. Appointments of election commissioners: At the national level, this should be done by a multi-party committee consisting of the prime minister, the leader of the Opposition in the Lok Sabha, the Speaker of the Lok Sabha, and the Chief Justice of the Supreme Court of India. Likewise, state election commissioners should be chosen by a committee comprising the chief minister, the leader of the Opposition, the assembly Speaker, and the chief justice of the relevant high court. Further, to obviate bias and harassment, the chief election commissioner of the state should be a person from outside the state cadre;
4. Provision for negative voting: The electronic voting machines, while listing the names and affiliations of candidates, should have, as a final option, ‘None of the above’;
5. Bar on post-retirement jobs: All election commissioners should be barred from accepting government posts of any kind for a period of five years after their retirement, and from joining a political party for a further five years;
6. Financial transparency: It should be made mandatory for political parties to declare accounts annually, indicating their sources of funding, patterns of expenditure, etc;
7. Curbs on publicity at public expense: Six months prior to the expiry of the House, the government should be forbidden from taking out advertisements in the media trumpeting their achievements (real or imagined);
Six further proposals made by the ADR, which can be made operational in the next few years are:
1. The winning margin of candidates should be at least one vote more than 50 per cent of those cast. If no candidate gets a majority of votes, then the two top candidates in a constituency can ‘run-off’ against one another;
2. Elections should be funded by the state. The mechanics of this process have to be carefully worked out, to establish how much money is allocated to state parties, how much to national parties, how much to independent candidates, etc. But surely a committee composed of a selection of India’s many world-class economists can work out a formula that is both efficient and equitable;
3. The internal reform of political parties such that they have (a) regular elections (based on secret ballots); (b) term limits for office bearers;
4. The classification of political parties as public authorities, so that their finances and other activities come under the provision of the Right to Information Act;
5. The prompt detection of those who bribe voters with gifts of alcohol, televisions, etc., and their punishment by having their candidacy set aside;
6. The provision of annual reports to constituents by MPs and MLAs.
In recent months, the issue of political corruption has dominated the headlines — from the Commonwealth Games through the 2G scandal and the mining and real estate scams on to the controversy over the lok pal bill. Public discussion has been high on indignation and low on constructive proposals for reform. The document prepared by the ADR is an excellent starting point to move the debate from rhetoric to substance, from talk to action. For, to cleanse the election system is to cleanse the political class, and, thereby, the process of governance itself.