Amit Shah

Sonia Gandhi

Prakash Karat

For a thriving dem

Jagdeep S Chhokar

lectoral reforms have

been discussed in the
country for quite a
few years now and as
a result, we now have
a new report from
the law commission
of India, the 255th report, titled Electoral Reforms. It has
been submitted in response to a request by the government of the day in
January 2013 to consider the issue of
Electoral Reforms in its entirety and
suggest comprehensive measures for
changes in the law. The 261-page report, submitted to the law ministry on
March 12, 2015, is a significant input in

20 GovernanceNow | April 1-15, 2015

what needs to be done to improve the

electoral system to make it more representative, meaningful, and relevant to
the stage of evolution of democracy in
the country today.
The opening chapter of the report
draws attention to the 244th report
of the commission which was submitted on February 24, 2014, in response
to a supreme court order passed on
December 16, 2013. The 244th report
was titled Electoral Disqualifications
and dealt with two specific issues: decriminalisation of politics and disqualification for filing false affidavits. The
message of the first chapter is to let the
reader know that the two reports, the
244th and the 255th, submitted now,
should be read together to get a complete sense of what needs to be done to
reform the electoral system.

Election finance reform

The next chapter titled Election Finance Reform is the most important

one of the report. There are many indicators of its importance. One, it is the
first substantive chapter. Two, it is the
longest, comprising almost 31 percent
of the report (It is 64 pages long, the
second-longest being 29 pages). It deals
with the issue of election finance very
comprehensively, listing out the current law on election finance and the
need for reform. This is followed by
a listing and discussion of the current
laws regulating election expenditure,
contributions, and disclosure. Next
is a comparative analysis of electoral
expenditure, disclosure, and contribution laws from some of what are considered more mature democracies, the
UK, Germany, the USA, Australia, Japan, and the Philippines, followed by a
comment on state funding of elections.
The chapter concludes with comprehensive set of recommendations.
A very important part of this chapter is the section titled Understanding
the reality of election financing today.

AB Bardhan

Mayawati

mocracy
In this section, the commission makes
very significant, and realistic, observations, some of which are worth reproducing in full.
Although there are legal provisions
limiting election expenditure for candidates and governing the disclosure of
contributions by companies to political
parties, the same is not properly regulated, either due to loopholes in the
law, or improper enforcement (Para
2.27.1).
This is evident from the 2001 Consultation Paper of the NCRWC (National Commission to Review the Working of the Constitution) on Electoral
Reforms, which estimates that actual
campaign expenditure by candidates is
in the range of about twenty to thirty
times the said limits. In fact, one of the

GN P hotos

Law panel has largely made the right

recommendations though it could have
done more. But political parties have little
interest in implementating them

major concerns regarding expenditure

and contribution regulation is that the
apparently low ceiling of candidate
expenditure increases the demand
for black money cash contributions
and drives campaign expenditure underground, causing parties to conceal
their actual source of funds and expenditure (Para 2.27.2).
Therefore, there is clearly underreporting of election expenditure and
opacity of political contribution. Part
of the explanation lies in the lacunae in
the law, and part in black money and
poor enforcement (Para 2.27.6).
There are various loopholes in the
laws regarding election expenditure,
contribution and disclosure (2.27.7).
(M)ost importantly the subject of
regulation under Section 77 of the RPA

This sounds ironic when the highest authority for implementing the Right to Information Act, the central information commission (CIC) says that it is bereft of the tools
to get its orders complied with. See CICs decision of March 16, 2015 regarding noncompliance of CICs order declaring six national political parties as public authorities under the RTI Act which the six parties have ignored and not implemented even

Sharad Pawar

only covers individual candidates,

and not political parties (2.27.7).
(R)egarding political contribution,
the `20,000 disclosure limit can be easily evaded by writing multiple cheques
below `20,000 each, or giving the money in cash. Nor is the profit-linked contribution limit of 7.5% a significant restriction for large companies while
the law creates incentives for disclosure vide tax exemptions, it can be outweighed by the disincentive created by
the loss of anonymity, especially given
that in many instances big donors support multiple parties, or change their
support, and do not want this information to be disclosed for fear of reprisal
(Para 2.27.12).
(D)isclosure norms need to be
strengthened (T)he ECIs [election

after 21 months have elapsed since the order was issued on May 3, 2013. The March
16, 2015 order of the CIC can be seen at http://www.rti.india.gov.in/cic_decisions/CIC_
CC_C_2015_000182_M_149924.pdf, and the original May 3, 2013 decision can be seen
at
http://www.rti.india.gov.in/cic_decisions/CIC_SM_C_2011_000838_M_111223.pdf.
[Also see Opacity of Politics on page 29.]

www.GovernanceNow.com 21

people politics policy performance

Substantive Democracy

commission of Indias] transparency

guidelines do not have statutory authority and there is no legal consequence for non-compliance. Further,
unlike many of the countries political parties and candidates file their returns with the ECI, without putting up
the information online (on the ECIs
website) or making it easily available
for public inspection (barring an RTI).
This is essential to bring about trans-

accountant from a panel of such accountants maintained for the purpose by the Comptroller and Auditor General. This differs from the
current practice where political
parties choose their auditors entirely on their own.
n Today, political parties are not required to disclose the source of any
contribution or donation which is
less than `20,000. There are instanc-

A political party which does not respect democratic principles

in its internal working cannot be expected to respect those
principles in the governance ... It cannot be dictatorship
internally and democratic in its functioning outside.
parency in the public domain and to
let the voters know the donors, contributions and expenditures of the
parties and candidates. Moreover, in
many cases such as compliance with
section 29C of the RPA [Representation
of Peoples Act] (regulating political
party disclosure) the only penalty for
non-compliance is losing the income
tax exemption. This is not a significant enough deterrent to parties (Para
2.27.14).
The primary rationale followed by
the commission is that Disclosure is
at the heart of public supervision of
political finance. Ensuring disclosure, according to the commission,
requires strict implementation of the
provisions of the RPA, the IT [Income
Tax] Act, the Company Act, and the
ECI transparency guidelines, which
need to be given statutory backing.
In addition, the evasion or dilution of
disclosure has to be tackled through
a stricter implementation of the anticorruption laws and RTI and improved
disclosure norms.
The essence of the recommendations is to amend various laws, the
RPA, the IT Act, and the Companies Act.
The most significant amendments suggested, as could be expected, are to the
RPA. Some of the major recommendations are the following:
n The accounts of political parties
should be audited by a qualified and practising chartered

22 GovernanceNow | April 1-15, 2015

es of parties who declare donations

worth hundreds of crores (yes, hundreds of crores), claim and get income tax exemptions on that, and
do not disclose the source claiming
that each of the donations was less
than `20,000. The report recommends that political parties disclose such particulars (the names,
addresses and PAN card numbers of
these donors along with the amount
of each donation) even for contributions less than `20,000 if such contributions exceed `20 crore or 20
percent of the partys total contributions, whichever is less. It recommends consequential amendments
to be made to the Conduct of Election Rules and the IT Act.
n Political parties today are very lax
about submitting their election expenditure statements and the ECI
does not have any explicit powers to take any action or discipline
the defaulting parties. As a matter
of fact, the law ministry, on behalf
of the government of India, stated
in an affidavit submitted to the supreme court in a case about a year
ago that the ECI, under Section 10A, had power only to receive the
statement of election expenditure
of a candidate but not to scrutinise it! The law commission report
recommends that Express penalties, apart from losing tax benefits,
should be imposed on political

parties for the non-compliance

with the disclosure provisions of
proposed section 29D of the RPA.
This should include a daily fine of
`25,000 for each day of non-compliance, with the possibility of de-registration if the default continues beyond 90 days. Further, ECI may levy
a fine of up to `50 lakh if it finds
any particulars in the partys statements as having been falsified.
n The commission makes significant
observations on the functioning of
electoral trusts. It recognises that
while The IT Act has been amended to provide for tax relief on donations to the electoral trusts, set
up for the sole purpose of making
donations to political parties and
the ECI regulates electoral trusts
as well through its Electoral Trust
Companies scheme , there is no
disclosure provision under the
RPA corresponding to the changes
in the income tax laws. Additionally, the only penalty prescribed
for non-submission of an annual
report of contributions to the ECI
as per the prescribed format (detailing the names and addresses of
donors and donations given to parties), before the due date of filing
of tax returns is that adverse notice shall be taken of the failure to
comply with the instructions. The
law commission, therefore, recommends introduction of a new chapter pertaining to the Regulation of
Electoral Trusts, to provide for the
regulation of electoral trusts with
appropriate penal provisions for
enforcement in case of default.

Regulating the inner functioning

of political parties and inner-party
democracy

This is the next issue that the law

commission takes up. It makes a very
important distinction between procedural democracy (the practice of universal adult franchise, periodic elections, secret ballot) and substantive
democracy which it describes to refer
to the internal democratic functioning
of the parties, which purportedly represent the people (Italics added).
It makes a further distinction

between the regulation of party practice and party ideology as components

of internal and inner party democracy and says Of primary relevance in
this chapter, is the first concern regarding the regulation of the practice of political parties in terms of internal elections, recruitment of party cadres, and
development and training activities.
Noting that Currently, there is no
express provision for internal democratic regulation of political parties in
India, and Consequently, there is no
mechanism to review a partys practice against the principles enshrined in
the constitution or against the requirements of the ECIs Guidelines and Application Format for the Registration
of Political Parties under Section 29A,
it seems to follow the lead given by its
predecessor, the 15th law commission
which submitted the first comprehensive report on electoral reforms in May
1999, the 170th report of the law commission titled Reform of the Electoral
Laws. The 15th law commission had
observed the following:
On the parity of the above reasoning, it must be said that if democracy
and accountability constitute the core
of our constitutional system, the same
concepts must also apply to and bind
the political parties which are integral
to parliamentary democracy. It is the
political parties that form the government, man parliament and run the
governance of the country. It is, therefore, necessary to introduce internal
democracy, financial transparency
and accountability in the working of
the political parties. A political party
which does not respect democratic
principles in its internal working cannot be expected to respect those principles in the governance of the country.
It cannot be dictatorship internally and
democratic in its functioning outside
(Para 3.1.2.1).
With a view to introduce and ensure
internal democracy in the functioning
of political parties, to make their working transparent and open and to ensure
that the political parties become effective instruments of achieving the constitutional goals set out in the preamble

and parts III and IV of the constitution

of India, it is necessary to regulate by
law their formation and functioning
(Para 3.1.2) (Italics added).
Following the above, the 20th law
commission, in the current, the 255th,
report makes very significant recommendations, two critical ones of which
are the following:
n Insert a new chapter (IV-C) into the
RP Act dealing with the Regulation of Political Parties and incorporating the (15th law) commissions previous recommendations
in its 170th report with certain
modifications. Thus, sections 29J

into account the difference between

paid news and political advertising, the
legal and constitutional frameworks,
the fundamental right to freedom of
speech and expression, the use of information technology, and practices in
some other democratic countries.
After taking all this into account, the
commission has gone on to define paid
news and political advertising as:
n Paid news is any news or analysis appearing in any media (Print
& Electronic) for a price in cash or
kind as consideration.
n Political advertisement means any
advertisement paid for by any po-

If political parties were transparent about their financial affairs

or were made to be transparent, it would not only be possible
but would actually be quite easy to fix an actual, viable limit of
such a cap.
to 29Q will deal with internal democracy, party constitutions, party
organisation, internal elections,
candidate selection, voting procedures, and the ECIs power to deregister a party in certain cases of
non-compliance.
n Another
section, section 29R,
should be inserted in the same part,
providing for the de-registration of
a political party for failure to contest parliamentary or state elections for 10 consecutive years.
These recommendations for internal democracy, internal elections, candidate selection, voting
procedures, and the ECIs power
to de-register a party in certain
cases are extremely important and
praiseworthy.

Paid news

Another critical issue that has the potential to very seriously distort democracy in the country, even to the extent
of making it a complete farce, which the
commission has dealt with head-on, is
of paid news and political advertising.
In dealing with this issue, it has rightly taken a very broad approach taking

litical party, candidate of a political

party, any other person contesting
an election, or any other person
connected therewith or associated
thereto, carrying necessary disclosures as notified by the election
commission in this regard.
After the definitions, the commission has recommended that paying for news/receiving payment
for news be made an electoral offence by inserting a new section
(127B) in the RP Act. It expects that
Not only will the incorporation of
this electoral offence make paying
for news/receiving payment for
news penal, the stringent punishment will ensure that if the candidates themselves are found guilty,
then, in all likelihood, they will be
disqualified pursuant to section
8(3) of the RP Act. It has also recommended that paying for news
be declared a corrupt practice by
inserting a new sub-clause (iii) in
section 123(2)(a) of the RP Act.

Strengthening the election

commission

Another long ignored area that the

http://judis.nic.in/supremecourt/imgs1.aspx?filename=40835, accessed on March 19, 2015.

www.GovernanceNow.com 23

people politics policy performance

photos: Arun kumar

Substantive Democracy

law commission has dealt with is the

strengthening the office of the election commission of India. For this it
has recommended that equal constitutional protection be given to all members of the commission in matters of
removability. This will require amending Article 324(5) of the constitution to
equate the removal procedures of the
two election commissioners with that
of the chief election commissioner.
The law commission has recommended that the constitution be so amended.
The law commission has also recommended that The appointment of all
the election commissioners, including
the CEC, should be made by the president in consultation with a three-member collegium or selection committee,
consisting of the prime minister; the
leader of the opposition of the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha in terms of
numerical strength); and the chief justice of India. Elevation of an election
commissioner should be on the basis
of seniority, unless the three-member
collegium/committee, for reasons to be
recorded in writing, finds such commissioner unfit. These changes will go

with the task of conducting elections

throughout the country, be fully insulated from political pressure or executive interference to maintain the
purity of elections, inherent in a democratic process.
Another recommendation of interest and importance is that of giving
the ECI power to de-recognise and deregister political parties under certain
conditions. The power to de-register is
particularly important as it had been
expressly denied to the ECI by a decision of the supreme court in the Indian
National Congress (I) vs Institute of Social Welfare case [(2002) 5 SCC 685].

Having limits on the election expenditure of candidates

and not having such limits on the election expenditure
of political parties is obviously inconsistent. It would
have been worthwhile for the commission to make some
recommendation, or at least some observations, to resolve this
inconsistency rather than ignore or evade the issue.
a long way in removing uncertainties
in the functioning, and increase public
confidence in the working, of the ECI.
Lastly, it has recommended the creation of a permanent, independent
secretariat for the ECI, along the lines
of the Lok Sabha/Rajya Sabha secretariats, and the registries of the supreme court and high courts. This is
something that was recommended by
the Goswami committee as far back
as 1990. The law commission is of the
view that It is of paramount importance to ensure that the ECI, entrusted

24 GovernanceNow | April 1-15, 2015

Other recommendations

The commission has also considered

and made recommendations on a variety of other issues. Some of these are:
n State funding of elections: Not
recommended.
n First-past-the-post vs proportional
representation: No clear preference. Government to examine the
findings of the 170th law commission report on the proportional
system to determine whether its
proposals can be made workable in
India at present.

Anti-defection law: Power to decide

on questions of disqualification
on the ground of defection, to vest
with the president or the governor
(as the case may be) who shall act
on the advice of the ECI. A constitutional amendment to this effect
would also help in preserving the
integrity of the speakers office.
n Opinion polls: The ban on opinion
polls in the electronic media should
also extend to the print media. Law
should be amended to ensure proper regulation of opinion polls to
ensure that first, the credentials of
the organisations conducting the
poll is made known to the public;
second, the public has a chance to
assess the validity of the methods
used in conducting the opinion
polls; and third, the public is made
adequately aware that opinion
polls are in the nature of forecasts
or predictions, and as such are liable to error.
n Compulsory
voting:
Not
recommended.
n Election petitions: Wide ranging reforms recommended, including introduction of one or more election
benches in each high court; procedure for presenting election petitions to be made simpler and less
formalistic; daily trial; requirement
for collection of data (such as the
number of election petitions filed
and pending, the status of each petition, the names of the parties, and
designated election bench) by the
high court and uploading it on its
website; ECI to prepare an annual
report after compiling such data

n
n
n

n
n

from all the high courts across the

country; appeals to the supreme
court should now only be on the
basis of a question of law, instead
of the earlier provision permitting
questions of fact or law as grounds
for appeal.
NOTA and the Right to Reject: Extension of the NOTA principle to introduce a right to reject the candidate and invalidate the election in
cases where a majority of the votes
have been polled in favour of the
NOTA option, rejected.
Right to Recall: Rejected.
Totaliser for counting of votes:
Recommended.
Government-sponsored advertisements: Regulation and restriction
of government-sponsored advertisements six months prior to the
date of expiry of the house/assembly recommended.
Restriction on the number of seats
from which a candidate may contest: Candidates to be permitted to
contest from only one constituency.
Independent candidates: To be
completely barred.
Common electoral rolls: Common
electoral rolls to be used by ECI
for parliament and assembly elections and by state election commissions for local body elections
such as municipal corporations
and committees, and panchayats
recommended.

What could the law commission

have done differently?

While most of the recommendations

are unexceptionable and some are
even praiseworthy, there are a few that
could have been different. Some of
these are discussed below.
The first issue is a possible limit or
cap on election expenditure by political parties. While the commission has
not made a specific recommendation
in this regard, it has mentioned this issue at least at two places which clarifies
what it feels on this issue. The commission observes in Para 2.28.3, Political
parties are free to spend any amount as
long as it is for the general party propaganda, and not towards an independent

candidate. Thus, there is no ceiling on

party expenditure. It is recommended that the law on this point does not
change, namely that there are no caps on
party expenditure under the RPA given
that it would be very difficult to fix an actual, viable limit of such a cap and then
implement such a cap. In any event, as
the experience with section 77(1) discussed above reveals, in the 2009 Lok
Sabha elections, on average candidates
showed election expenditures of 59 percent of the total expenses limit. There is
no reason why the same phenomenon
of under-reporting will not transpire
amongst parties (Italics added).
It is further observed, in para 2.28.4,
that Placing legislative ceilings on
party expenditure or contributions
will not automatically solve the problem, especially without putting in place
a viable alternative of complete state
funding of elections (which in itself is
next to impossible right now). Our previous experience in prohibiting corporate donations in 1969 did not lead
to a reduction in corporate donations.
Instead, in the absence of any alternative model for raising funds, it greatly
increased illegal, under the table and
black money donations.
The above two paragraphs read in
the context of the chapter on Election
Finance Reform, give the impression
that the commission is accepting lesser
of the two evils, preferring expediency
over doing the right thing. Its observation that it would be very difficult to
fix an actual, viable limit of such a cap
is debatable at best. It is admitted that
it is indeed very difficult to fix an actual, viable limit of such a cap but one

also has to go into the reasons why it

is so difficult. The obvious reason that
the commission seems to have refused
to see is lack of financial transparency
in the functioning of political parties.
If political parties were transparent
about their financial affairs or were
made to be transparent, it would not
only be possible but would actually be
quite easy to fix an actual, viable limit
of such a cap. How to make political
parties financially transparent is the
question that needs to be gone into to
take this issue to its logical conclusion
which regrettably the law commission has stopped short of doing. Some
action is already on in this regard as
mentioned in footnote 1.
Staying with the same issue, if as
the commission has observed, (T)
he experience with section 77(1) discussed above reveals, in the 2009 Lok
Sabha elections, on average candidates showed election expenditures of
59 percent of the total expenses limit.
There is no reason why the same phenomenon of under-reporting will not
transpire amongst parties, then why
did the commission not recommend
removing the limits placed on election
expenditure by candidates?
Having limits on the election expenditure of candidates and not having
such limits on the election expenditure
of political parties is obviously inconsistent. It would have been worthwhile
for the commission to make some recommendation, or at least some observations, to resolve this inconsistency
rather than ignore or evade the issue.
The next issue on which the recommendations are debatable is that of

www.GovernanceNow.com 25

people politics policy performance

Substantive Democracy

NOTA. The commission has rejected

the extension of the NOTA principle
to introduce a right to reject the candidate and invalidate the election in cases where a majority of the votes have
been polled in favour of the NOTA option. It has, however, been generous
in saying that the issue might be reconsidered in the future. With due respect to the commission, it seems it has,
obviously inadvertently, fallen into the
trap of formulating the issue in a particular way that invited rejection.
This is somewhat surprising in itself
since the commission has mentioned
clearly in its report that it is evident in
the (supreme) courts judgment that
the judgment was just about NOTA and
was not about the right to reject which
was not prayed for by PUCL. Instead,
the court focused on how it hoped that
NOTA would eventually pressurise
parties to field sound candidates.
It is also surprising that the com-

judgment of the supreme court which

is the first paragraph of the section titled Conclusion in the judgment. This
is what the paragraph says:
Democracy being the basic feature
of our constitutional setup, there can
be no two opinions that free and fair
elections would alone guarantee the
growth of a healthy democracy in the

Electronic voting has now been in use for many years all over
the country and consequently the practical difficulties
foreseen by the 15th law commission in the 170th report either
do not exist or at least are not as insurmountable as they were
in 1999 when the 170th report was prepared. To reject making
NOTA more effective and operational on the basis of the
situation prevailing in 1999 appears to be less than fair.
mission formulated the issue combining NOTA and the right to reject when
in para 11.5 of its own report it says
However, as former CEC SY Qureshi
points out, NOTA is not the same as the
right to reject.
The commission begins para 11.4 of
the report saying, The premise of the
supreme courts decision was that secrecy of voting is crucial to maintain the
purity of the electoral system, though
it recognises later in the same para that
it would foster the purity of the election process by eventually compelling
parties to field better candidates, thereby improving the current situation. In
this context, it is worth reproducing in
full the relevant paragraph of the NOTA
3

country. The Fair denotes equal opportunity to all people. Universal adult
suffrage conferred on the citizens of India by the constitution has made it possible for these millions of individual
voters to go to the polls and thus participate in the governance of our country.
For democracy to survive, it is essential
that the best available men should be
chosen as peoples representatives for
proper governance of the country. This
can be best achieved through men of
high moral and ethical values, who win
the elections on a positive vote. Thus in
a vibrant democracy, the voter must be
given an opportunity to choose none
of the above (NOTA) button, which will
indeed compel the political parties to

http://eci.nic.in/eci_main/PROPOSED_ELECTORAL_REFORMS.pdf, accessed on March 18, 2015, Page 25

26 GovernanceNow | April 1-15, 2015

nominate a sound candidate. This situation palpably tells us the dire need of
negative voting (Italics added).
In view of the above it should be
clear that the interpretation that the
judgment was premised only on maintaining the secrecy of voting is not
the most comprehensive one.
The, current, 255th, report opens
the discussion on NOTA with a reference to the 170th report of the 15th law
commission, saying The proposal to
introduce negative voting to reject all
the candidates if voters found them unsuitable was first discussed by the law
commission in its 170th report in 1999,
as part of its alternative method of
election where candidates would only
be declared elected if they obtained
50%+1 of all the valid votes cast. Although agreeable with the 50%+1 idea,
on which negative voting was predicated, the commission citing practical
difficulties did not issue any final recommendations on the topic of negative
voting (Italics added).
In this connection, it is worth reproducing in full two relevant paragraphs and the recommendation of the
170th report of the law commission.
These are:
8.7 If the above practical difficulties and problems can be overcome,
the idea of 50%+1 vote and even the
idea of negative vote (as explained
hereinabove), can be implemented. We
may mention that if electronic voting
machines are introduced throughout
the country, it will become a little more
easier to hold a run-off election in as

much as it would then be not necessary

to print fresh ballot papers showing the
names of the two candidates competing
in the run-off or for that matter, for
holding a fresh election (in case the idea
of negative vote is also given effect to)
(Italics added).
8.8 Alternative method mitigates
undesirable practices. Probably, the
aforesaid problems arise because of
the vastness of the country and lack of
requisite standards of behaviour and
also of cooperation and understanding
among the political parties to ensure a
peaceful poll. As a matter of fact, the
election offences are not decreasing
but are increasing with every passing
election. This is really unfortunate.
Even so, we may make every effort to
mitigate the undesirable practices and
the alternate method of election set out
in this chapter is certainly a step in that
direction (Italics added).
8.9 Recommendation. We accordingly recommend that the government
and parliament may take a decision in
the matter on a consideration of all the
aforesaid circumstances.
It should be clear from the above
that the 170th report categorically said
that the practical difficulties will become a little more easier (sic) if electronic voting machines are introduced
throughout the country. Electronic
voting has now been in use for many
years all over the country and consequently the practical difficulties foreseen by the 15th law commission in the
170th report either do not exist or at
least are not as insurmountable as they
were in 1999 when the 170th report
was prepared. To reject making NOTA
more effective and operational on the
basis of the situation prevailing in 1999
appears to be less than fair.
Lastly, the arguments that the (supreme) court was too optimistic in
thinking that NOTA would lead to cleaner politics, and that it is not worth pursuing as 1.1 percent of the total votes
polled, or just less than 60 lakh votes,
were cast in favour of NOTA in the
2014 Lok Sabha elections. The supreme
court, like all other institutions in the
country, has to be optimistic if there is
going to be any change for the better.
If all institutions were to be realistic

and recommend and attempt only

what they think can be done easily, we
can bid good bye to any significant improvement in the governance of the
country or in the lives of citizens.
As for only 1.1 percent of the total
votes polled (being) cast in favour of
NOTA, it is clearly a case of chicken or
the egg having come earlier. It is obvious that voters will not cast their votes
in favour of NOTA when they know
that their votes will make no difference
to the result.
It might have been more helpful if
the commission could have gone not
by the letter but the spirit of the supreme court judgment and made recommendations to make NOTA more
effective and useful somewhat on the
following lines:
n In case the NOTA button gets more
votes than any of the candidates,
none of the candidates should be
declared elected and a fresh elec-

highest number of votes cast, or if

none of the candidates gets at least
50%+1 of the votes cast, then there
should be a run-off between the
two top candidates.
A similar issue is the right to recall.
The commission says it is not in favour
of introducing the right to recall in any
form because it can lead to an excess of
democracy, because the threat of recall
undermines the independence of the
elected candidates, ignores minority interests, increases instability and chaos,
increases chances of misuse and abuse,
is difficult and expensive to implement
in practice, especially given that India
follows the first-past-the-post system
(Italics added). Two points in the argument seem strange.
What exactly constitutes an excess
of democracy is not clear. The solution to problems of democracy is more
democracy is a well-known saying. It is
strange that the law commission seems

It might have been more helpful if the commission could

have gone not by the letter but the spirit of the supreme court
judgment and made recommendations to make NOTA more
effective and useful...
tion should be held in which none
of the candidates in the first round
are allowed to contest.
n In the fresh election, with fresh
candidates and with a NOTA button, only that candidate should be
declared elected who gets at least
50%+1 of the votes cast; if even in
this round the NOTA option gets the

to be arguing for less democracy.

Another issue worth considering is
should a society be doing a cost-benefit
analysis on matters such as improving democracy? If something leads to
more democracy and is considered
worth doing, then should it be rejected
on the basis that it is expensive to implement, particularly without working

www.GovernanceNow.com 27

people politics policy performance

Substantive Democracy

out the estimates of how much it would

actually cost to implement it? And how
would the benefits of an improved
electoral and democratic system be
computed to be compared to the costs?
And how will the damage being done
to the country and society by defective electoral systems be computed in
cost-benefit terms? Admittedly, these

enough safeguard. It would have been

worthwhile for the law commission to
take this proposal of the ECI on board.
What will the law commission report achieve?
The law commission has done its
job and, without any doubt, has done it
very well. The question is what happens
next. Its chairman, justice AP Shah, sent

What exactly constitutes an excess of democracy is not clear.

The solution to problems of democracy is more democracy
is a well-known saying. It is strange that the law commission
seems to be arguing for less democracy.
are larger questions but they do need
consideration before possibilities to reform the electoral and political systems
are rejected.
The last issue that the commission
could have dealt with differently is
that of the powers of making rules.
Para 16.13 of the report reads Further,
given that the RPA currently does not
empower the ECI to frame rules under section 169 or prescribe the cap on
election expenditure by an individual
candidate under section 77 and Rule
90 of the Election Rules, the Law Commission does not recommend amending
section 34 to vest such power with the
ECI (Italics added). Section 169 of the
RP Act says The central government
may, after consulting the election commission, by notification in the official
gazette, make rules for carrying out the
purposes of this Act.
In this context, the ECI had proposed
as far back as 1998 that Rule-making
authority under the Representation of
the People Act, 1950 and Representation of the People Act, 1951 should be
conferred on the election commission,
instead of on the central government,
who should, however, be consulted by
the election commission while framing
any rule.3
Not having the power to make rules
hampers the effective and timely functioning of the ECI and would go a long
way to enable it to do its job better.
Providing for mandatory consultation with the government is a strong

28 GovernanceNow | April 1-15, 2015

the report to minister of law and justice

DV Sadananda Gowda for consideration by the government, on March 12.
A similarly comprehensive report,
the 170th report of the commission,
was submitted by the then chairman
of the 15th law commission, justice BP
Jeevan Reddy, on May 29/June 9, 1999,
to the then minister for law, justice and
company affairs Ram Jethmalani. Justice Jeevan Reddy did not send it only
for consideration by the government
but said, in the last paragraph of his
letter, that The commission is of the
considered view that there is urgent
and crying necessity to implement the
aforementioned measures to reform
the electoral system and to strengthen
the democracy in our country.
The experience with the 170th report was not encouraging, to say the
least. Various governments, of different
persuasions, during the last 15 years
have not felt if necessary or desirable to
table it in parliament and hold a discussion on it. Or, perhaps, parliament has
not had time to discuss it. Some minor
recommendations of that report have
occasionally been discussed but nothing substantial or significant has been
taken up seriously for implementation
for which the then chairman of the law
commission felt there was urgent and
crying necessity to implement.
Independent of the fate of the 170th
report, the 255th report itself contains
some very revealing, and disturbing, data which may be considered to

be a pointer to its possible fate. Its

first, introductory, chapter says that
out of the 157 responses that the commission received to its first consultation paper, only two were from political parties, including one from a party
called the Welfare Party of India. In
the second round of consultation, it
sent out a questionnaire which, sadly
again, did not do much better. It received responses from two national
parties and three registered state parties, two of which are the Zoram Nationalist Party and the Peoples Party
of Arunachal Pradesh.
The simple inference that automatically follows the above is that an overwhelming majority of the mainstream
political establishment, including most
of the major political parties, have
no interest in electoral reforms. That
this inference may not be too far off
the mark is evidenced by the developments referred to in footnote 1 earlier.
The political situation in the country over the last five to 10 years seems
to have been undergoing a slow metamorphosis which seems to have accelerated over the last three-four years.
A government has full majority in the
Lok Sabha after 30 years. Power at
the centre has changed hands after 10
years. A new and emerging political
party which evolved out of a peoples
movement has won an unprecedented
majority in the Delhi assembly. The
youth who are in a majority seem to be
restless with the current situation.
Whether this changing situation
will also cause a change in the fate that
this report will meet is a question only
time will answer.
One hopes not only the government but the entire political establishment will rise to the occasion and do what democracy
needs to survive, if not thrive. n
Chhokar is a former professor, dean,
and director in-charge of IIM-A,
and a founding member of Association for Democratic Reforms (ADR)
and National Election Watch (NEW).
A collection of his articles on electoral
reforms
can
be
browsed
at:
governancenow.com/users/jagdeep