UPSC IAS exam preparation - Governance in India - Lecture 17

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Electoral system in India

1.0 Introduction

Articles 324 – 329 of Part XV of the Indian Constitution deal with elections. Article 324 declares that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under the Constitution, shall be vested in the Election Commission. Article 325 declares that there shall be one general electoral roll for every parliamentary constituency for election to either House of Parliament or either House of the Legislature of a State and that no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them. This article, read with article 326, confers a right upon every citizen of this country to be included in the electoral roll provided he has completed 18 years of age on the specified date and is not otherwise disqualified under any of the provisions of the Constitution, or any law made by Parliament or the appropriate Legislature. Article 327 empowers the Parliament to provide by law with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the Houses of either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

Announcement of General Elections 2019

1.1 Election Commission of India (ECI)

The architects of the Indian Constitution attached special significance to an independent electoral machinery for the conduct of elections. The Constitution of India provides for an Election Commission of India which is responsible for superintendence direction and control of all elections. It is responsible for conducting elections to both the Houses of Parliament and State Legislatures and for the offices of President and Vice-President. Besides, it is also responsible for the preparation revision, updation and maintenance of lists of voters. It delimits constituencies for election to the Parliament and the State Legislatures, fixes the election programme and settles election disputes. It performs many other functions related to elections.

1.1.1 Composition

The Election Commission consists of the Chief Election Commissioner and such other Election Commissioners as may be decided by the President from time to time. Ever since the first Chief Election Commissioner was appointed in 1950, there was no other Election Commissioner till 1989. The Chief Election Commissioner was assisted by a larger number of officials. The Election Commission became a multi-member body on 16 October 1989 when the President appointed two more Election Commissioners. The senior of the two Election Commissioners is appointed as the Chief Election Commissioner.

1.1.2 Tenure and removal

Chief Election Commissioner and other Election Commissioners are appointed for a term of six years, or till the age of 65 whichever is earlier. It is important that the Chief Election Commissioner and other Election Commissioners should be free from all political influences. Therefore, even if they are appointed by the President, they cannot be removed by him. And no changes can be brought in the conditions of service and the tenure of office to their disadvantage after their appointment. The Chief Election Commissioner cannot be removed from office, except on the grounds and in the manner on which the Supreme Court judges can be removed. However, since the other Election Commissioners and the Regional Election Commissioners work under the Chief Commissioner, they may be removed by the President on his recommendations.

Powers and functions of the Election Commission

The primary function of the Election Commission is to conduct free and fair elections in India. For this purpose, the Election Commission has the following functions:

1.2 Delimitation of constituencies

To facilitate the process of elections, a country has to be divided into several constituencies i.e, a territorial area from where a candidate contests elections.

The task of delimiting constituencies is generally performed by the Delimitation Commission consisting of five serving or retired judges of the Supreme Court and the Chief Election Commissioner who is its ex-officio member. All secretarial assistance (at all levels, national, state, district) is provided to the Delimitation Commission by the Election Commission. The Delimitation Commission is constituted by the Government from time to time.

1.3 Preparation of electoral rolls

Each constituency has a comprehensive list of voters. It is known as the Electoral Roll, or the Voters' List. The Commission prepares the Electoral Roll for Parliament as well as Legislative Assembly elections. The Electoral Roll of every constituency contains the names of all the persons who have right to vote in that constituency. The electoral roll is also revised from time to time generally before every general election, by-election and mid-term election in the constituency.

The revision is carried out from house to house by the enumerators appointed by Election Commission and all eligible voters are registered. A person can be registered as a voter if he/she fulfils the following conditions:

He/she is a citizen of India.
He/she is 18 years of age.
He/she is a resident of the constituency.

1.4 Recognition of political parties

One of the important functions of the Election Commission is to recognise political parties as all India (National) or State (Regional) Political Parties. If in a general election, a particular party gets four percent of the total valid votes polled in any four states it is recognised as an all India (National) Party. If a party gets four percent of the total valid votes in a state, it is recognized as a State or regional party.

1.5 Allotment of symbol

Political Parties have symbols which are allotted by the Election Commission. For example, Hand is the symbol of the Indian National Congress, Lotus is the symbol of the Bharatiya Janata Party (BJP) and Elephant is the symbol of Bahujan Samaj Party. These symbols are significant for the following reasons:

They are a help for the illiterate voters who cannot read the names of the candidates.
They help in differentiating between two candidates having the same name.

2.0 Officers on election duty

To ensure that elections are held in free and fair manner, the Election Commission appoints thousands of polling personnel to assist in the election work. These personnel are drawn among magistrates, police officers, civil servants, clerks, typists, school teachers, drivers, peons etc. Out of these there are three main officials who play very important role in the conduct of free and fair election. They are Returning Officer, Presiding Officer and Polling Officers.

2.1 Returning Officer

In every constituency, one officer is designated as the Returning Officer by the Commission in consultation with the concerned State government. However, an Officer can be nominated as Returning Officer for more than one constituency. All the nomination papers are submitted to the Returning Officer. Papers are scrutinised by him and if they are in order, accepted. Election symbols are allotted in accordance with the directions issued by the Election Commission. He also accepts withdrawal of the candidates and announces the final list. He supervises all the polling booths, counting of votes and announcement of the final result. In fact, the Returning Officer is the overall incharge of the efficient and fair conduct of elections in the concerned constituency.

2.2 Presiding Officers

Every constituency has a large number of polling booths. Each polling booth, on an average, caters to about a thousand votes. Every such booth is under the charge of an officer who is called the Presiding Officer. The presiding officer supervises the entire process of polling in the polling booth and ensures that every voter gets an opportunity to cast vote freely. After the polling is over, he seals all the ballot boxes (EVMs) and deliver them to the Returning Officer.

2.3 Polling Officers

Every Presiding Officer is assisted by three to four polling officers. They check the names of the voters in the electoral roll, put indelible ink on the finger of the voter, issue ballot papers and ensure that votes are secretly cast by each voter.

Indelible ink - This ink cannot be removed easily. It is put on the first finger of the right hand of the voter so that a person does not come again to cast vote for the second time. This is done to avoid impersonation.

3.0 Electoral Process

The following process has been laid down for conducting free and fair elections in India.

3.1 Notification for election

The process of election officially begins when on the recommendation of Election Commission, the President in case of Lok Sabha and the Governor in case of State Assembly issue a notification for the election. Seven days are given to candidates to file nomination. The seventh day is the last date after the issue of notification excluding Sunday. Scrutiny of nomination papers is done on the day normally after the last date of filing nominations.The candidate can withdraw his/her nomination on the second day after the scrutiny of papers. Election is held not earlier than twentieth day after the withdrawal.

A person who intends to contest an election is required to file the nomination paper in a prescribed form indicating his name, age, postal address and serial number in the electoral rolls. The candidate is required to be duly proposed and seconded by at least two voters registered in the concerned constituency. Every candidate has to take an oath or make affirmation. These papers are then submitted to the Returning Officer designated by the Election Commission.

3.2 Security deposit

Every candidate has to make a security deposit at the time of filing nomination. For Lok Sabha every candidate has to make a security deposit of Rs. 10,000/- and for State Assembly Rs. 5,000. But candidates belonging to Scheduled Castes and Scheduled Tribes are required to deposit Rs. 5,000/- for if contesting the Lok Sabha elections and Rs. 2,500/- for contesting Vidhan Sabha elections. The security deposit is forfeited if the candidate fails to get at least 1/6 of the total valid votes polled.

3.3 Scrutiny and withdrawal

All nomination papers received by the Returning Officer are scrutinised on the day fixed by the Election Commission. This is done to ensure that all papers are filled according to the procedure laid down and accompanied by required security deposit. The Returning Officer is empowered to reject a nomination paper on any one of the following ground:

If the candidate is less than 25 years of age.
If he/she has not made security deposit.
If he/she is holding any office of profit.
If he/she is not listed as a voter anywhere in the country

The second day after the scrutiny of nomination papers is the last date for the withdrawal of the candidates. In case that day happens to be a holiday or Sunday, the day immediately after that is fixed as the last day for the withdrawal.

3.4 Election campaign

Campaigning is the process by which a candidate tries to persuade the voters to vote for him rather than others. During this period, the candidates try to travel through their constituency to influence as many voters as possible to vote in their favour. The Election Commission has granted all the recognised National and Regional Parties, free access to the State-owned electronic media, the All India Radio (AIR) and the Doordarshan to do their campaigning. The total free time is fixed by the Election Commission which is allotted to all the political parties. Campaigning stops 48 hours before the day of polling. A number of campaign techniques are involved in the election process.

3.5 Model Code of Conduct

During the campaign period the political parties and the contesting candidates are expected to abide by a model code of conduct evolved by the Election Commission of India on the basis of the consensus among political parties. It comes into force the moment schedule of election is announced by the Election Commission. The code of conduct is as follows:

Political Parties and contesting candidates should not use religious places for election campaign.
Such speeches should not be delivered in a way to create hatred among different communities belonging to different religions, castes and languages, etc.
Official machinery should not be used for election work.
No new grants can be sanctioned, no new schemes or projects can be started once the election dates are announced.
One cannot misuse mass media for partisan coverage.

3.6 Scrutiny of expenses

Elections in India are not state funded. Though the Election Commission provides free access for a limited time to all the recognised National and State parties for their campaign, the political parties and the candidates contesting elections usually spend large amounts on their election campaigns. The Election Commission has the power to scrutinise the election expenses to be incurred by the candidates. There is a ceiling on expenses to be incurred in Parliamentary as well as State Assembly elections. Every candidate is required to file an account of his election expenses within 45 days of declaration of results. In case of default or if the candidate has incurred (expenses) more than the prescribed limit, the Election Commission can take appropriate action and the candidate elected may be disqualified and his election may be countermanded.

4.0 Polling, Counting and Declaration of Result

In order to conduct polling, large number of polling booths are set up in each constituency. Each booth is placed under the charge of a Presiding Officer with the Polling Officers to help the process. Voting is by secret ballet. After the polling is over, ballot boxes are sealed in the presence of agents of the candidates. Agents ensure that no voter is denied right to vote, provided the voter turns up comes within the prescribed time limit.

4.1 Electronic Voting Machines (EVMs)

The Election Commission has started using tamper proof electronic voting machines to ensure free and fair elections. Each machine has the names and symbols of the candidates in a constituency. One Electronic Voting Machine (EVM) can accommodate maximum of 16 candidates. But if the number exceeds 16, then more than one EVM may be used. If the number of candidates is very large, ballot papers may be used. The voter has to press the appropriate button to vote for the candidate of his/her choice. The machine is easy to operate, and with this the use of ballot paper and ballot boxes is done away with. When the machine is used, the counting of votes becomes more convenient and faster. The EVMs were used in all the seven Lok Sabha constituencies in Delhi in 1999, and later in all the State Assembly constituencies. In 2004 General Elections EVMs were used all over the country for Lok Sabha elections.

The sealed ballot boxes or EVMs are shifted in tight security to the counting centre. Counting takes place under the supervision of the Returning Officer and in the presence of candidates and their agents. If there is any doubt about the validity or otherwise of a vote, decision of the Returning Officer is final. As soon as counting is over, the candidate securing the maximum number of votes is declared elected (or returned) by the Returning Officer. If a duly nominated candidate belonging to a recognised party dies at any time after the last date of nomination and before the commencement of polling, the Election Commission orders countermanding the elections. This is not just postponement of polling. The entire election process, beginning from nominations, is initiated afresh in the concerned constituency.

5.0 Shortcomings of Indian Electoral System

There has been universal appreciation of the Indian electoral system. People have hailed the manner in which elections have been conducted in India. But there are weaknesses. It has been seen that in spite of the efforts of Election Commission to ensure free and fair elections, there are certain shortcomings of our electoral system. Some notable weaknesses are discussed below:

5.1 Money power

The role of unaccounted money in elections has become a serious problem. The political parties collect funds from companies and business houses, and then use this money to influence the voter to vote in their favour. The business contributions are mostly in cash and are not accounted for. Many other corrupt practices are also adopted during election such as bribing, rigging or voters intimidation, impersonation and providing transport and conveyance of voters to and fro the polling stations. The reports of liquor being distributed in poor areas are frequent during elections.

5.2 Muscle power

Earlier, criminals used to support the candidates by intimidating voters at gunpoint to vote according to their directions. Now they themselves have come out openly by contesting the elections leading to criminalisation of politics. As a result violence during elections has also increased.

5.3 Caste and religion

Generally the candidates are given tickets by the political parties on the consideration whether the candidate can muster the support of numerically larger castes and communities and possesses enough resources. Even the electorates vote on the caste and communal lines. Communal loyalties of the voters are used at the time of propaganda campaign.

5.4 Misuse of government machinery

All the political parties do not have equal opportunity in respect of access to resources. The party in power is always in advantageous position then the opposition parties. There is widespread allegation that the party in power accomplishes misuse of government machinery. All these features lead to violence, booth capturing, rigging bogus voting, forcible removal of ballot papers, ballot boxes burning of vehicles, etc. which result into loss of public faith in elections.

5.5 Electoral Reforms

In order to restore the confidence of the public in the democratic electoral system, many electoral reforms have been recommended from time to time by the Tarkunde Committee and the Goswami Committee which were particularly appointed to study and report on the scheme for Electoral Reforms in the year 1974 and 1990 respectively. Out of these recommendations some have been implemented. In fact, it was under the chairmanship of the then Chief Election Commissioner, T.N. Seshan, that Election Commission initiated many more measures to ensure free and fair elections. Some of the reforms which have been implemented so far are as follows:

The voting age has been lowered from 21 years to 18 years. This has helped increase the number of voters and response confidence in the youth of the country.
Another landmark change has been the increase in the amount of security deposit by the candidate to prevent many nonserious condidates from contesting elections with a ulterior motive.
Photo identity cards have been introduced to eradicate bogus voting or impersonation.
With the introduction of Electronic Voting Machine (EVM) the voting capturing, rigging, and bogus voting may not be possible. The use of EVM will in the long run result in reducing the cost of holding elections and also reduce the incidence of tampering during counting of votes.
If a discrepancy is found between the member of votes polled and number of total votes counted, the Returning officer away report the matter forthwith to Election Commission. Election Commission on such report may either declare the poll at the particular polling station as void and give a date for fresh poll or countermand election in that constituency.
The SVEEP programme was launched by ECI to motivate more people to vote. SVEEP = Systematic Voters Education and Electoral Participation. It has given encouraging results. The voter turnout in 2014 General Elections was 66.44%, higest ever.

There is no doubt that India needs drastic poll reforms but still the fact remains that Indian elections have been largely free and fair and successfully conducted. Our reputation of being the largest democracy in the world rests majorly on our ability to hold free and fair elections.

6.0 cONDUCT OF ELECTION RULES

Democracy in India has not only to survive, it has to thrive in the interest of our country and our people. Free, fair and impartial elections where everybody gets the chance to exercise the right to vote are indispensible for the success of a democratic set up. Curbing money power in elections is a must to ensure the same. To quote Shri N. Vittal, former Central Vigilance Commissioner, "Black money is the oxygen for corruption and corruption is the oxygen for black money. A commitment to combat corruption should figure in any strategy to establish good governance in the country". As a research study of the secretariat of the Lok Sabha points out, "Parliament is expected to reflect the social diversity of the society. Economically weaker sections should not face a disadvantage".

6.1 Enabling provisions in Representation of the People Act 1951 and Conduct of Election Rules 1961

Regulating the financing of elections and strict monitoring of the expenditure incurred by candidates is essential for the success of a participatory democracy. Therefore, the thrust of political finance reform in democracies world wide had four main characteristics:

Public funding, full or partial, of elections
Limits on expenditure (including sublimits on particular expenditure)
Limits on contributions from individuals and organizations
Reporting and disclosure of election, party and candidate finances in some form.

Section 77 of the Representation of the People Act 1951 (RPA Act) states that "Every candidate at an election shall either by himself or by his election agent keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive".

Section 78 provides for lodging of account with the district election officer, stating that "Every contesting candidate at an election shall within 30 days from the date of election of the returned candidate, lodge with the District Election Officer an account of his election expenses which shall be a true copy of the account kept by him or by his election agent under Section 77".

Incurring or authorizing of expenditure in contravention of Section 77 is deemed to be a corrupt practice U/S 123(6) of the R.P. Act. The Hon'ble Supreme Court of India in L.R. Shivaramagowde vs T.M. Chandrasekhar (1998) has ruled that the Election Commission of India can go into the correctness of the account of election expenses filed by the candidate and may disqualify the candidate for three years U/S 10A of R.P. Act 1951 if he/she fails to lodge the account at all or lodges incorrect account or untrue account of election expenditure. Not submitting a true day-to-day account of expenditure can thus result in disqualification of a candidate even if he has won the election. Exceeding the prescribed ceiling of expenditure can be a ground for an election petition against a winning candidate.

Each candidate is required to maintain a day to day account of his election expenditure in a register given to him by the Returning Officer at the time of filing of nomination papers. The particulars have been laid down in Rule 86 of the Conduct of Election Rules, 1961 according to which following particulars in respect of each item of expenditure from day to day are to be maintained.

They are as follows:

the date on which the expenditure was incurred or authorized,
the nature of expenditure (as for example, traveling, postage or printing and the like),
the amount of expenditure,
the amount paid,
the amount outstanding,
the date of payment,
the name and address of the payee,
the serial number of vouchers, in case of amount paid,
the serial number of bills, if any, in case of amount outstanding, and
the name and address of the person to whom the amount outstanding is payable.

A voucher shall be obtained for every item of expenditure unless it is not practicable to obtain a voucher.

The Election Commission has clarified that in fairness to the contesting candidates they will be permitted to file returns of election expenses in English, Hindi or the local language(s) in which the electoral rolls are printed.

Rule 87 stipulates that the district election officer, shall, within two days from the date on which the account of election expenses has been lodged by a candidate under section 78, cause a notice to be affixed to his notice board specifying the date on which the account has been lodged and the time and place at which such account can be inspected as per Rule 88. Any person, shall, on payment of a fee of one rupee, be entitled to inspect any such account. Rule 90 provides the maximum election expenses (which was hiked to Rs 16 lakh per assembly constituency for Kerala elections vide notification dated 23.2.2011).

7.0 Provisions in the Indian Penal Code

Sec 171 B stipulates that whoever gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right commits the offence of bribery. Sec 171 F prescribes the punishment for undue influence or personation at an election. Sec 171H deals with illegal payments in connection with an election whereas section 171 I states that "whoever being required by law for the time being in force or any rule having the force of law to keep accounts of expenses incurred at or in connection with an election fails to keep such account shall be punished with fine which may extend to five hundred rupees".

7.1 Exclusive bank accounts to be opened

From the general elections to the Bihar Legislative Assembly in 2010, the Election Commission has embarked on a new experiment as regards monitoring of election expenditure. It is stipulated that each candidate shall open a separate bank account for election expenditure. This account shall be opened at least one day before the date on which the candidate files his/her nomination papers before the Returning Officer. The account number of this bank account shall be communicated by the candidate in writing to the Returning Officer. All election expenditure shall be made by the candidate only from this account. All money to be spent on electioneering shall be deposited in this account, irrespective of the source of funding. A certified copy of the account statement of this bank account shall be given by the candidate to the District Election Officer along with the statement of account of expenditure maintained by him/her. If a candidate is contesting election from more than one constituency, he is required to maintain and lodge a separate account of his election expenditure in respect of each such constituency.

The concept of expenditure sensitive constituencies has also been newly introduced. On the basis of past history, profile of the constituency and other developments, the Chief Electoral Officers have been directed to identify the constituencies which are prone to high expenditure and corrupt practices. The candidates have also been directed to furnish affidavits along with nomination paper indicating the following details as well

PAN of candidate, spouse and dependents
Movable and immovable assets, purchase price and development cost of immovable property, approximate current market price of asset
Liabilities (government dues, loans from banks, financial institutions etc.)

7.2 Expenditure observers and micro-observers

In most of the elections held in 2009 and 2010, there was only one kind of observer, general cum expenditure, rolled into one. Bihar assembly elections saw a radical change in the mechanism of monitoring election expenditure through the reintroduction of the concept of expenditure observers with a view to keep a strict vigil on surreptitious and discursive ways of spending money to influence voters. Expenditure observers are appointed under Section 20B of the RP Act 1951. Expenditure micro observers are appointed by the expenditure observer from a list of Central government employees provided by the District Election Officer. Ideally there should be at least one expenditure micro observer per candidate. Video surveillance teams, video viewing teams, expenditure monitoring cell and complaint monitoring system are all parts of the new mechanism to monitor election expenditure. It is stipulated that the expenditure register shall be produced before the expenditure observer for inspection at least three times during the campaign period by the candidate or his election agent. This schedule shall be given wide publicity through the press.

7.3 Legal and illegal election expenditure

Election expenditure can be broadly classified into categories:

expenditure permissible under law (public meetings, vehicles, banners, posters etc.)
expenditure not permitted by law (money, liquor etc. distributed to voters with intent to influence voting).

The aim of expenditure monitoring is two fold. As regards the first category, it must be ensured that the expenditure is truthfully reported. For instance, as regards rallies, the candidates are required to submit an expenditure plan along with the application for permission. As regards vehicles, details of all vehicles used for election campaign (including two wheelers and cycle rickshaws) are required to be furnished by the candidate. If a vehicle is found being used for campaigning and its details have not been furnished to the authorities, it shall be considered unauthorized campaigning for the candidate and will attract Section 171 H of the IPC and the expenditure on this vehicle will be added while considering the election expenses of the candidate. As regards the second category, the Election Commission of India envisages that the system must be robust enough to catch such expenditure as well. It must not only be included in the account of election expenditure, but also action must be taken against the errants vide the relevant legal provisions (which may range from lodging of FIR to filing of complaints before the competent magistrate). These illegal items of expenditure include: (i) appointing booth wise agents to purchase floating votes, (ii) donations to clubs to influence its members, (iii) rented crowds for party meetings, (iv) presence of candidates in mass weddings and feasts where gifts are given on their behalf, (v) issue of cash coupons and coupons for free purchase of TV, bike etc.

(The above list is illustrative and by no means exhaustive.)

7.4 Seizure of undisclosed cash

Gratification of voters is generally done out of undisclosed income. Any undisclosed cash can be seized under the Income Tax Act

(Sec. 132). If it is out of illegal foreign exchange, the Enforcement Directorate can seize. If it is suspected to be for bribery, police authorities can seize it. Carrying cash is not illegal under any law and is not anathema to regular business. But it can be seized if its end use is suspected to be for an illegal purpose. As the Hon'ble Supreme Court ruled in Rajendran Chingaravelu vs R.K. Mishra (Civil Appeal No 7914 of 2009), "any bonafide measures taken in public interest and to provide public safety or to prevent circulation of black money cannot be objected as interference with the personal liberty or freedom of a citizen…. The carrying of a huge sum itself gives rise to a legitimate suspicion, the intelligence officers are therefore entitled to satisfy themselves not only that the money is from a legitimate source, but also that such a large amount is being carried for a legitimate purpose".

In fact, the Hon'ble Courts have contributed to election reforms by encouraging the Election Commission to innovate where there are no legal sign posts to indicate the jurisdiction and the limits thereof (J.M. Lyngdoh). As the Hon'ble Supreme Court observed in Mohinder Singh Gill vs Chief Election Commissioner (1978) ISSC 405 "Once the appointment is made by the President, the Election Commission remains insulated from extraneous influences and that cannot be achieved unless it has an amplitude of powers in the conduct of the elections - of course in accordance with existing laws. But where these are absent, and yet a situation has to be tackled, the CEC has not to fold his hands and pray to god for divine inspiration to enable him to exercise his functions and to perform his duties or to look to any external authority for the grant of powers to deal with the situation. He must lawfully exercise his power independently in all matters relating to the conduct of elections".

Keeping in tune with the spirit of these observations, the following actions have been ordered by the Election Commission of India:

Flying squads placed in such a way that important roads are kept under constant vigil with instructions that unexplained cash of Rs. 1 lakh and above suspected for bribery of voters should be seized
Investigation Directorates to keep surveillance teams at major railway stations, airports, hotels etc.
Key financial brokers, pawn brokers, cash couriers etc. to be kept under surveillance
Banks directed to report suspicious cash withdrawals above Rs. 1 lakh
Hotels asked to report scan-reports indicating huge cash being carried by the guest(s)

Any suspicious deposit of cash in the account of Self Help Groups or non governmental organisations will be monitored so that this route is not misutilised for delivering cash to the voters.

Taking note of the fact that in schemes like MNREGS, workers could be paid over and above their fixed wage as bribe, the ECI ordered that disbursement of wages under government schemes should be done strictly by government officials. No party functionary should be present on such occasions.

7.5 Benchmarks for expenditure assessment

The District Election Officer shall notify the rates of various items of election expenditure for his district within three days of the announcement of the election. These rates should include hiring charges of loudspeaker, construction of podium/pandal of standard sizes, cloth banner, posters etc. If a candidate feels that the rates notified are not reasonable, he may apply to the District Election Officer in writing within 24 hours of the notification and the District Election Officer shall consider every such application within 24 hours of having received it and pass an appropriate order on it.

7.6 Shadow Expenditure Register

A shadow expenditure register shall be maintained by accounting teams for each candidate in the same format in which the expenditure register is maintained by the candidate. It is open to the public as well as candidates. Any discrepancy between the register maintained by the candidate and the shadow expenditure register shall be brought to the notice of the candidate at the time of inspection. The notices so issued and replies received if any shall be duly considered by the District Election Officer in forming his opinion about the truthfulness of the account of expenditure submitted by the candidate after the declaration of result.

7.7 Deemed expenditures

Explanation 1 of section 77(1) of the RP Act 1951 declares that

"The expenditure incurred by leaders of the political party on account of travel by air or by other means of transport for propagating programme of the political party shall not be deemed to be the expenditure in connection with the election incurred or authorized by a candidate of that political party or his election agent for the purpose of this subsection".

Explanation 2 clarifies that the expression leaders of political party means

"Where such political party is a recognized political party, such persons not exceeding 40 in number and

Where such political party is other than a recognized political party such persons not exceeding 20 in number

Whose names have been communicated to the Election Commission and the Chief Electoral Officers of the states by the political party to be leaders for the purpose of such election within a period of seven days from the date of notification ... ."

If such intimation is not received from the party within the stipulated time, expenditure on travel of such leaders will also be shown to be the candidate's expenditure. The Hon'ble Supreme Court of India in its judgement in Kanwar Lal Gupta vs Amar Nath Chawla has held that expenditure incurred by the political party which can be identified with the election of a given candidate as distinguished from expenditure on general party propaganda would be liable to be added to the expenditure of that candidate as being impliedly authorized by the candidate. "If a candidate were to be subject to the limitation of the ceiling but the political party sponsoring him or his friends and supporters were to be free to spend as much as they like in connection with his election, the object of imposing a ceiling would be completely frustrated and the beneficent provision enacted in the interest of purity and genuineness of the democratic process would be wholly emasculated."

In this connection, it may also be noted that the validity of explanation 1 to section 77 was challenged in P. Nalla Thampy Terah v. Union of India. A constitutional bench in the case observed that the petitioner was not unjustified in criticizing the provisions contained in explanation 1 as diluting the principle of free and fair elections. In C. Narayanswamy vs C.K. Jaffer Sherief, the Supreme Court observed that "as the law stands in India today, anybody including a smuggler, criminal or any other antisocial element may spend any amount over the election of any candidate in whom such person is interested." In Gajanan Bapat vs Dattaji Meghe, the Supreme Court held that the practice followed by political parties of not maintaining any accounts of its candidates defeats the purpose of explanation 1 to S.77(1) of R.P. Act. Explanation 1 to Section 77 was also at the centre of the issue in the case of Common Cause v Union of India.

The legal position when the leader of a political party covered under explanation 2 to section 77(1) happens to be himself a candidate has been clarified by the Election Commission:

"When he goes out of his constituency to other constituencies or comes back to his own constituency from other constituencies as a star campaigner, expenditure on his travel from his constituency to others and back would fall within the exempted category. Once he reaches his constituency and travels within his own constituency, expenditure on such travel would be liable to be accounted for by him in his election expenditure".

7.8 The ground reality

It is estimated that about Rs. 7000 crores is spent by all major parties and candidates in Lok Sabha and State Assembly elections over a period of 5 years in India. This reality on the ground was exemplified in the words of the former CEC, James Michael Lyngdoh himself. "Every one knows the actual expenditure per candidate, even for an Assembly election, now runs into several crores. In other words, most of the candidates would seem to have committed a corrupt practice under the electoral law and the elections of the winners are apparently liable to be set aside on appeal to the High Court. Unfortunately Indian voters are wined and dined by candidates. Travel expenses of 40 national leaders on behalf of the candidate of a national or regional party are now excluded from his election expenses. The expense on helicoptering these national leaders alone would run into crores. That this is a permissive step is confirmed by the Revenue Department's instructions allowing donations to political parties complete tax exemption. The Representation of the People Act needs to be amended to formally enable the Election Commission to question a party whose expenses, including travel expenses on campaigning national leaders in all the contested constituencies is in excess of the funds indicated in the annual audit and to take action if necessary for the deregistration of the party".

7.9 Observations of the Hon'ble Supreme Court

"Hundreds and thousands of vehicles of various kinds are pressed onto the roads… Millions of leaflets and many millions of posts are printed and distributed or posted all over the country. Banners by lakhs are hoisted. Flags go up, walls are painted and hundreds of thousands of loudspeakers play out the loud exhortations and extravagant promises. VIPs and VVIPs come and go, some of them in helicopters and air taxis. The political parties in their quest for power spend more than one thousand crore of rupees in the General Election, yet nobody accounts for the bulk of the money so spent and there is no accountability anywhere. Nobody discloses the source of the money. There are no proper accounts and no audit. From where this money comes, nobody knows. In a democracy where rule of law prevails this type of naked display of black money by violating the mandatory provisions of law cannot be permitted.. Unless the statutory provisions meant to bring transparency in the functioning of the democracy are strictly enforced and the election funding is made transparent, the vicious circle cannot broken.."

High election expenditure, buying of votes and polling irregularities have become the norm in order to gain electoral advantage in the Westminister model. This high expenditure forces parties and politicians to extort money from a variety of sources, legitimizes corruption, encourages political recruitment of those willing to spend large amounts of ill-gotten black money, discourages public spirited citizens from contesting and leads to a cycle of corruption, greed and extortion which undermines our democracy. Political parties need funds for three activities: election campaigns, inter-election maintenance of their organizations and political activities and support of infrastructure for the parties.

In this scenario, a shift towards proportional representation in which a party's representation depends on the overall percentage of votes in each state is worth considering. Such a shift will act as a disincentive to polling irregularities, as any effort of a candidate to gain unfair advantage locally may run counter to the party's objective of maximizing its vote in a whole state (Jayaprakash Narayan). Perhaps, we also have to take a leaf out of the provisions of the German Law on Political Parties of 1967, Section V whereof creates a statutory obligation upon all political parties to maintain clear and correct accounts, have them audited and submit the same to the President of the German Bundestag. Or from the French experience where it is provided that every candidate receiving State funding shall execute a bond and furnish a bank guarantee so that in case he got less than 8% of total votes polled, he would forfeit his bond. Or from the American experience where despite high cost of electioneering all campaign financing is fully accounted for and disclosed and all expenditure is legitimate and open. It is also high time that we sit back and think about the statistics of Indian and US elections which points out that in purchasing power terms, Indian election expenses are probably five times those in the US, making our per capita expenditure higher - an absurd situation considering our low income per capita (Jayaprakash Narayan).

8.0 The debate about Article 8 (4)

The controversy over the Supreme Court decision declaring Section 8(4) of the Representation of the People Act, 1951 ultra vires the Constitution turned into a legal debate. Legal experts are asking how come such an order was passed by a Division Bench when a Constitution Bench had already declared that the provision was "not unreasonable". Section 8(4) allowed convicted MPs, MLAs and MLCs to continue in their posts, provided they appealed against their conviction/sentence within three months of the trial court judgment.

Senior lawyer and former Rajya Sabha member of the DMK R. Shanmugasundaram told The Hindu that he had doubts whether the latest verdict would stand the test of law. For, the Constitution Bench, in the K. Prabhakaran vs. P. Jayarajan case, said on January 11, 2005: "The persons falling in the two groups [those who are convicted before the poll and those convicted while being MPs/MLAs or MLCs] are well defined and determinable groups and, therefore, form two definite classes. Such classification cannot be said to be unreasonable as it is based on a well laid down differentia and has nexus with a public purpose sought to be achieved."

The Bench - headed by the then Chief Justice R. C. Lahoti and consisting of Justices Shivaraj V. Patil, K. G. Balakrishnan, B. N. Srikrishna and G. P. Mathur - even observed that Section 8 (4) was an "exception." Sub-section 4 "operates as an exception carved out from sub-sections (1), (2) and (3) of Section 8 of the RP Act."

Legal experts pointed out that the Constitution Bench in 2005, while dealing with Section 8 (4), had observed:

"Once the elections have been held and a House has come into existence, it may be that a member is convicted and sentenced. Such a situation needs to be dealt with on a different footing. Here the stress is not merely on the right of an individual to contest an election or to continue as a member, but [on] the very existence and continuity of a House democratically constituted.

"If a member was debarred from sitting in the House and participating in the proceedings, no sooner [than] the conviction was pronounced followed by sentence of imprisonment, entailing forfeiture of his membership, then two consequences would follow. First, the strength of membership of the House shall stand reduced, so also the strength of the political party to which such convicted member may belong. The government in power may be surviving on a razor-thin majority where each member counts significantly and disqualification of even one member may have a deleterious effect on the functioning of the government.

"Secondly, a by-election shall have to be held which exercise may prove to be futile, also resulting in complications in the event of the convicted member being acquitted by a superior criminal court. Such reasons seem to have persuaded Parliament to classify the sitting members of a House in a separate category. "..The disqualification provision must have a substantial and reasonable nexus with the object sought to be achieved and the provision should be interpreted with the flavour of reality bearing in mind the object for enactment."

"Sub-section (4) operates as an exception carved out from sub-sections (1), (2) and (3) of Section 8 of the RPA. Clearly the saving from the operation of sub-sections (1), (2) and (3) is founded on the factum of membership of a House. The purpose of carving out such an exception is not to confer an advantage on any person; the purpose is to protect the House."

The above is from the Hindu dated 13th July, 2013.

9.0 Conclusion

The Supreme Court of India has observed that

"If there is continuous community involvement in political administration punctuated by activated phases of well discussed choice of candidates by popular participation, much of unnecessary expenditure which is incurred today could be avoided. Considerable distance may not have to be travelled by candidates nor hidden skeletons in political cupboards tactically uncovered, propagandist marijuana skillfully administered nor violent demonstrations attempted. The dawn-to-dawn multiple speeches and monster rallies, the flood of posters and leaflets and the organizing of transport and other arrangements for large numbers would become otiose. Large campaign funds would not be able to influence the decision of the electors if the selection and election of candidates becomes people's decision by discussion and not a Hobson's choice offered by political parties".