Prof. V.P. Gupta,Director, Rau’s IAS Study Circle, New Delhi – Jaipur – Bengaluru
This article caters to the Polity and Governance portion of General Studies-Paper II and for Essay Paper in UPSC Main Examination
The conduct of elections in India
Constitution of India provides for an Election Commission for superintendence, direction and control of the preparation of electoral rolls, conducts of all elections to Parliament, to the Legislature of every State and of elections to the offices of President and Vice-President. The Constitution provides that elections in India shall be on the basis of adult suffrage. It means that every person who is a citizen of India and who is not less than eighteen years of age and who is not otherwise disqualified under the Constitution or any other law on grounds of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be eligible to be registered as a voter. The Constitution further provides that no person shall be ineligible for inclusion in any such roll or claim to be included in any special roll for any constituency within the territory of India on grounds of religion, race, caste, sex or any of them. Thus, to fulfil the constitutional mandate of conducting elections, Parliament has enacted The Representation of the People Act, 1950 (RPA, 1950) and The Representation of the People Act, 1951 (RPA, 1951).
The RPA 1950 provides for the allocation of seats and the delimitation of constituencies for the purpose of election to the House of the People and the Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls, the manner of filling seats in the Council of States to be filled by representatives of Union Territories. Whereas, RPA 1951 provides 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 of doubts and disputes arising out of or in connection with such elections.
Every society develops and matures over a period of time and so has ours. In this case, the Election Commission of India has evolved not only as an institution of impeccable credibility but also as a gold standard through the world to conduct elections. In its long and arduous journey, the Election Commission has been ably guided by the Hon’ble Supreme Court through important judgments and the Law Commission through its various reports. Let us go through some of the changes which have been incorporated recently in our election process so as to move towards free, fair and clean elections.
Abolition of Election Tribunals
Prior to the year 1966, the Representation of People Act, 1951 provided for an Election Tribunal to decide matters related to elections. A three-tier structure emerged to decide election petitions which was to be initially decided by the Tribunal, which would then go to the respective High Court and finally to be decided by the Supreme Court of India. However, this modality of dispute settlement consumed much time to effectively decide election disputes. The Election Commission in one of its report recommended abolishing Election Tribunals and allowing High Court to handle election disputes. The Government of India after accepting the recommendations made by Election Commission in its Report on the Third General Elections in India in 1962 moved The Constitution (Nineteenth Amendment) Act, 1966. This amendment abolished Election Tribunals and accordingly the jurisdiction to hear election disputes was transferred to the High Court. This was facilitated by adding Section 80A to the Representation of People Act, 1951. This facilitated a smooth conduct of election process without disruption caused by filing of frivolous cases.
Supreme Court on appeal on religion or caste to garner votes
In a seven-Judge Constitution Bench, Supreme Court debated whether appealing for votes in the name of religion amounted to corrupt practice under India’s election laws. Supreme Court held that politicians cannot use religion, caste, creed or language for seeking votes as it amounts to corrupt practice under Section 123 (3A) of Representation of the People Act, 1951. The Court further held that conduct of election is a secular exercise and that the relationship between people and whom they worship is an individual choice. The Court disallowed state to use the compassion of religion, caste or language in the name of seeking votes. The Court further held that mixing religion with State power is not permissible within the constitutional framework. The Constitution guarantees freedom to practice, profess and propagate religion of one’s choice but the same cannot be misused for electoral gains. The State as conceived by the Constitution is secular and prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. Thus state collectively cannot identify itself with any one of
the religions or religious denominations during the conduct of elections.
Decriminalisation of Politics
Decriminalisation of politics means prevention of people having a criminal background or those involved in criminal offences to enter into political arena. Section 8 of Representation of People Act 1951 provides for disqualifications to stand for election in case of conviction on certain grounds. Thus, to prevent criminalisation of politics, it was necessary to know about such people involved in criminal cases so as to prevent them from entering the political arena. Accordingly, Supreme Court of India in the year 2002 in a landmark judgment (Union of India v Association for Democratic Reforms and Another) directed the Election Commission to call for information on affidavit under Article 324 on criminal background including previous conviction, acquittal or discharge along with fine; declaration of assets of the candidate and his/her spouse along with number of dependants; liabilities including debts owed to any financial institution or otherwise; and educational qualification of the candidate. This judgment increased awareness among voters about the potential candidates from their respective constituencies. Again in the year 2005, the Supreme Court in Ramesh Dalal vs. Union of India held that a sitting Member of Parliament (MP) or Member of State Legislature (MLA) shall also be subject to disqualification from contesting elections if he is convicted and sentenced to not less than 2 years of imprisonment by court of law. These judgments effectively disallowed people having criminal background to enter political field.
Supreme Court in Public Interest Foundation and Ors. v. Union of India and Another requested the Law Commission to expedite recommendation on the following issues:(1) Whether disqualification should be triggered upon conviction or upon framing of charges by the court or upon the presentation of the report by the Investigating Officer. (2) Whether filing of false affidavits under Section 125A of the Representation of the People Act, 1951 (RPA) should be a ground for disqualification. Law Commission of India in its 244th Report did not favour electoral disqualification at the stage of filing of the police report because of lack of sufficient application of judicial mind at this stage as it can be easily misused against rival political parties. However, the Law Commission did favour electoral disqualification at the stage of framing of charges with adequate legal safeguard. Thus, even Law Commission in its report has suggested measures to curb criminalisation of politics which will further help in cleaning our electoral process.
Introduction of EVMs in India
In India, Electronic Voting Machines (EVM) were introduced to be used on an experimental basis for the first time in sixteen selected Assembly Constituencies in the States of Madhya Pradesh, Rajasthan and National Capital Territory of Delhi in their respective Legislative Assemblies held in November, 1998. The use of EVM was further expanded to 46 Parliamentary Constituencies in 1999 Lok Sabha Elections1. EVMs were then used in three consecutive elections of Lok Sabha conducted in 2004, 2009 and 2014. Use of EVM in the electoral process led to a more transparent process of conduct of elections. It saved government’s expenditure from printing papers used in the earlier process for conduct of elections. Use of EVM also saved time and relentless painstaking human effort in counting votes. Thus, electronic counting of votes has reduced the number of invalid votes due to human negligence or malpractice. EVMs thus reflect the choice of the voters more transparently and have effectively ensured a cleaner and more transparent process of counting of votes.
EVMs with VVPAT
Voter-verified paper audit trail (VVPAT) is a method to know with certainty that the vote casted has gone to the desired candidate. Under VVPAT, a printer-like apparatus is linked to Electronic Voting Machine (EVM). When a vote is cast, a receipt is generated showing the serial number, name and symbol of the candidate for whom the vote was casted. It confirms the vote and the voter can verify the details. In a Public Interest Litigation (PIL) in the year 2013, Supreme Court directed the Election Commission of India (ECI) to introduce VVPAT in a phased manner. Thus, accordingly ECI started using VVPAT at selected constituencies for elections to State Assemblies and also in Parliament Election for 2014. However, in the recent Gujarat Assembly election, as per another Supreme Court directive, VVPAT was used in the entire constituency of Gujarat. ECI has also confirmed that VVPAT shall be used in all the parliamentary constituencies for the conduct of elections to Lok Sabha in 2019.
Use of NOTA
Supreme Court in PUCL & Another v. Union of India & Another in 2013 had allowed the use of NOTA (None of the Above option) for 2014 Lok Sabha elections. Election Commission in its notification dated 24th January, 2014 had made the use of NOTA mandatory for elections to Rajya Sabha. Thus, the use of NOTA in any constituency reflects the desires and choice of voters that they were dissatisfied with the candidates fielded by the political parties. As of now, the votes casted for NOTA do not have electoral significance. However, votes casted for NOTA do not amount to Right to Reject. Law Commission in its 255th Report has rejected the concept of extending NOTA to right to reject and has suggested introducing the concept of right to reject at a future date. Thus, use of NOTA is another evolution in our electoral process as it allows voter the right to protest even though without having any electoral significance.
Special Court to try Politicians
The Supreme Court of India in a recent judgment has asked the Indian Government to frame a central scheme for setting up Special Courts on the line of fast track court exclusively for expedite trial of people from political background involved in criminal cases within a year. Politicians when involved in a criminal case use their political influence and power to affect the proceedings of the law by creating impediments at different processes of investigation. This affects the continuous trial due to such impediments. Thus, the whole idea is to remove the political or bureaucratic influence exerted during investigation while the case is being pursued in a Court of Law. The Law Commission in its 244th Report has mentioned about The National Commission to Review of the Working of the Constitution (2002) where it had recommended setting up of Special Court at the level of High Courts to assess the legality of charges framed against potential candidates and dispose of the cases in a strict time frame. The Central Government has accordingly proposed to set up twelve special courts to dispose cases pending against Member of Parliament and State Legislative Assemblies within a year. This will not only complete the ongoing cases within a scheduled timeframe but will effectively either convict or acquit such persons involved in criminal cases.
Changes made in political funding
In an effort to make the process of electoral funding more transparent, Finance Act of 2017 had introduced the use of electoral bonds, which is exempt from disclosure under the Representation of the People Act, 1951. Political parties will be entitled to receive donations by cheque or digital mode from their donors. This will effectively stop disbursement of cash to political parties by companies or other organisations. Finance Act 2017 amended Reserve Bank of India Act, 1934 to enable the issuance of ‘Electoral Bonds’ which a donor can buy from authorised banks against cheque or digital payments only. Such bonds shall be redeemable only in the designated account of a registered political party. Finance Act 2017 further amended the Companies Act, 2013 and relaxed funding norms for corporates. The amendment has removed the earlier cap on donation which barred companies from donating more than 7.5 percent of their Average Net Profit to a political party. The companies are also no longer needed to disclose the name of the party to which the donation has been made. Finance Act, 2016 had amended the Foreign Contribution Regulation Act (FCRA) 2010 to allow foreign companies with subsidiaries in India to fund political parties in India. Thus, the government in a way has tried to regulate political funding through the introduction of electoral bonds.
The success of any democratic country lies in the success of the development and evolution of its institutions and organisations and their adherence to the principle of rule of law. India since independence has not only evolved but also matured as a civilsed democracy and is reflected through the growth of its institutions and their respect for rule of law. Election Commission as an institution to conduct election has also evolved and so has the laws governing elections in India. The changing law with respect to conduct of fair and transparent elections is a signal of a thriving and dynamic society which is ready to change for the betterment of its people. q