RESULTS of recently held elections to the 16th Lok Sabha preceded by high decibel and most expensive campaign underline the dark side of largest democracy in the world. We may take note of few facts to understand the malaise in our electoral process.

USE OF

MONEY POWER

The pernicious influence of big money in derailing the democratic process was noticed by the Vohra committee. This report of 1993, noted the nexus between politicians, bureaucrats and corporates in various scams in the last two decades which have become hallmark of the neo-liberal regime involving transfer of public assets into private hands. The link between corporate big money and funding of elections of those political parties who have facilitated the plunder of public resources comes out very glaringly.

As per media reports, the BJP has spent around Rs 1000 crores in the campaign through advertisements in print and electronic media; campaigners travelling in aircrafts and helicopters; expenses incurred on transport, social media and advertisements through radio network. If this amount is added to the expenditure of individual candidates of that party then it can be estimated that each candidate has spent more than Rs Two crores apart from what the individual candidate might have spent in his constituency. Other political parties of the similar or same hue at national level and the regional parties did not lag behind. In Tamil Nadu and Andhra Pradesh the distribution of money and costly gifts to the voters was widely reported in the press.

Expenditure of the individual candidate disclosed in the statement of expenditure to the election commission usually does not reflect the true state of affairs. The amount spent by individual candidates of political parties with the exception of the parties of the Left far exceeds the limit of expenditure fixed by the government at the recommendation of the Election Commission which in itself is a very big amount. In this election the limit was fixed at Rs 70 lakhs. On the one hand the elected members of Parliament declare that they had spent about 50% of the permitted amount and on the other, an upward revision of this expenditure limit is regularly sought for and acceded to. It would be interesting to mention that an analysis of expenditure affidavits of 5,743 candidates after the 2009 Lok Sabha elections showed that only four candidates had declared expenditure above the limit of Rs 16 lakhs. Thirty candidates had declared that they had spent between 90 to 95% of the limit. Remaining 5,719 which comes to 99.58 % stated that they had spent between 45 to 55 % of the limit. At the same time there is a wide spread demand that the ceiling on expenditure should be increased. The election commission remains a mute spectator to this blatant misuse of money power in elections.

The Supreme Court considered the cumulative effect of three statutory provisions, namely, Section 293-A of the Companies Act, 1956, Section 13-A of the Income Tax Act, 1961 and Section 77 of the Representation of People Act 1951 in Common Cause (A Registered Society) v. Union of India (1996) 2 SCC 752 while dealing with election expenses incurred by political parties and submission of returns along with the scope of Article 324 of the Constitution and observed:

“..The political parties in their quest for power spend more than one thousand crore of rupees on the General Election (Parliament alone), yet nobody accounts for the bulk of the money so spent and there is no accountability anywhere. Nobody discusses the source of the money. There are no proper accounts and no audit. From where does the money come 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.”

The Court held that the expression “Conduct of election” appearing in Article 324 is wide enough to include the power to issue directions in the process of conduct of election, to the effect that the political parties shall submit to the Election Commission, for its scrutiny, the detail of the expenditure incurred or authorised by the parties in connection with the election of their respective candidates.

Here we may note that Clause (a) to the Explanation of Section 77 of The Representation of the People Act, 1951 permits exclusion of expenditure incurred by leaders of political parties from the expenditure incurred by a candidate.

Clause (a) of Explanation no. 1 attached to section 77 of the Representation of the people Act, 1951 provides: “(a) the expenditure incurred by leaders of a political party on account of travel by air or by any 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 purposes of this sub-section”

The National Commission to Review the Working of the Constitution (NCRWC)  also recommended that the expenses incurred by the political party, well wishers, friends and the election agent should be included in the expenses of the candidate. The Commission in Para 4.14.2 of its report observed:

”The present provisions of law have a significant loophole in the shape of Explanation 1 to section 77(1) of the Representation of the People Act, 1951 under which the amounts spent by persons other than the candidate and his agent themselves are not counted in his election expenses. This means that there can be never any violation of the expenditure limits. All extra expenditure, even when known and proven, can be shown to have been spent by the party or by any friend and it remains outside of the enforceable limits.  In view of increasing cost of election campaigns, it is desirable that the existing ceiling on election expenses for various legislative bodies be suitably raised to a reasonable level reflecting the increasing costs. However, this ceiling should be fixed by the Election Commission from time to time and should include all the expenses by the candidate as well as by his political party or his friends and his well wishers and any other expenses incurred in any political activity on behalf of the candidate by an individual or a corporate entity. Such a provision should be the part of a legislation regulating political funding in India. The Commission recommends that Explanation 1 to section 77 (1) of the Representation of People Act, 1951 should be deleted”

Another lacuna in the existing law is that the candidate is required to disclose his assets and liabilities along with assets and liabilities of his spouse and dependent children at the time of filing of nomination in the form of affidavit and after the election the candidate is required to file a statement of expenditure. There is no requirement of disclosure of source of income of the candidate which information is necessary for the social audit of the candidate by the electors. Another requirement which can make the existing system effective is the necessity of audit of the statement of expenses by an independent body.

In 1998 the Inderjit Gupta Committee recommended partial funding of elections by the state in kind and not in cash. Following Para of the committee’s recommendation is worth quoting: “Before concluding, the committee cannot help expressing its considered view that its recommendations being limited in nature and confined to only one of the aspects of electoral reforms may bring out some cosmetic changes in the electoral sphere. What is needed, however, is an immediate overhauling of electoral process whereby elections are freed from evil influence of all vitiating factors, particularly, criminalisation of politics. It goes without saying that money power and muscle power go together to vitiate the electoral process and it is their combined effect which is sullying the purity of electoral contests and effecting free and fair elections. Meaningful electoral reforms in other spheres of electoral activity are also urgently needed.”

The Law Commission of India in its 170th report also recommended the state funding of the elections.

COMMUNALISATION

OF ELECTION CAMPAIGN

The second most important aspect of the election reforms is the communal propaganda to polarise the electorate on religious basis. Secularism is the foundation of our nation. It is one of the basic features of our Constitution. We the people of India that is Bharat (not Hindusthan) had solemnly declared ourselves a Sovereign Socialist Secular Democratic Republic.

Use of religion for soliciting votes and promoting feeling of enmity or hatred between different classes of the citizens of India on the ground of religion is a corrupt practice according to section 123 of the Representation of the People Act, 1951.

In the elections to the 16th Lok Sabha, an intense communal campaign was conducted by the RSS and the BJP and the affiliates of the parivar. Communal riots were triggered in UP and Bihar to polarise the electorate on communal basis. This can be stopped only if the Constitutional functionaries learn to take stand and action on such corrupt practices. The Election Commission which functions under the oath of allegiance to the Constitution looks the other way when brazen violation of secular values and ethos are brought to its notice. Using religious symbol like trishul (trident) or displaying picture of Hindu God on the dais of an election meeting if, is not the use of religion, then what it is? The judiciary and the Election Commission will have to play pro-active role in it since these constitutional authorities are under the oath of safeguarding the conscience and secular values of the Constitution.

UNREPRESENTATIVE CHARACTER

OF THE ELECTION RESULTS

Unrepresentativeness of our electoral system is another serious concern calling for the reform of the election laws. The outcome of results of election by  the present method of election which has come to be known as first-past-the post method hardly represents the will of the people. In order to illustrate this point some statistics from the recent election results are necessary.

The BJP with 31% vote share won 282 seats in Lok Sabha which comes to 52% strength of the House of people; the NDA with 37.3% of vote share got 336 seats (62% of the house) ; In Delhi, the AAP drew a blank even after receiving 33% of votes; In west Bengal, the Left Front won only two seats though the front scored 29.61% of votes where as TMC won 34 seats with 39.36% of vote share, Congress was declared victorious in 4 seats getting 9.58% votes whereas BJP could win in only 2 parliamentary constituencies even after getting 16% votes; In Kerala, the UDF was able to win 60% seats with 42.02% of votes and the LDF with 40.17% votes got success in 40 % of seats and the  BJP with 10.83% of vote share drew a blank. It is not that this picture emerges as an abrasion. If we look at 2004 and 2009 figures a clear cut mismatch between the  vote share and the seats won by the political parties can be noticed. Janta Dal (United) with 22.36% votes in 2004 could win only 6 seats. Shriromani Akali Dal in Punjab was able to win only 4 seats with 33.85% of votes in 2009 whereas it had scored victory in 8 seats in 2004 with 34.28% vote share; In Andhara Pradesh, the TDP won 5 seats on the basis of 33.12% of vote share in 2004 but in 2009  though its vote share reduced by 8.19% to 24.93% it was able to increase its tally by 1 seat; In Tamil Nadu, the AIADMK with 34.54% of votes drew a blank in 2004 but in 2009 with reduced vote share of 22.88% it got 9 seats; In west Bengal, the CPI(M) with 38.57% of votes won 26 seats in 2004 whereas in 2009 it could win only in 9 seats with 33.1% of votes. In the recent elections to the Lok Sabha, the BJP with 42.3% of votes in UP won 71 seats out of 80.

The only conclusion which emerges from the statistics given above is that first-past-the post method does not represent the true will of the people.

The Law commission reviewed all the 212 parliamentary electoral systems listed in the Global Distribution of Electoral Systems in order to assess and to recommend what might be appropriate for us. The Commission has suggested a combination of the “first-past-the–post system” and the “list system” by raising 25% of the House of people and state Assemblies and to fill these additional seats by the list method. The suggestion is worth consideration.