FREE AND FAIR ELECTIONS IN INDIA: ISSUES AND CHALLENGES

Constitutional Law

Submitted by

Ankita Sharma

SF0113009

4th Year (8th Semester)

National Law University, Assam

 Contents

Particulars Page Number

Table of Cases ...iii

Table of Statutes.....iii

Table of Abbreviations...........iv

Introduction..........1

Objectives........3

Scope and Limitations.........................3

Review of Literature.................3

Research Methods......4

Types Of Research
Types Of Data

Electoral System in India..6

Issues in Electoral Politics of India..8

Political Instability.8
Castism
Communalism
Lack of Moral Values in Politics
Proliferation
Money Power10
Muscle Power...11
Misuse of Government Machinery.11
Corruption12
Non-Serious Candidates in Political Parties..12

i
 Criminalisation of Politics...12
Evading Code of Conduct...14
Illiteracy14

A New Electoral Strategy: A Recent Development in the Election Reforms.15

Candidate disclosure16
Limiting the size of Council of Ministers...16
Curbing the Cost of Campaigning.16
Increase in Security Deposits and Number of Proposers.17
Booth Capturing..17
Checking Criminalisation in Politics..17
Limits on Expenditures made by a Candidate..18

Recommendations and Suggestions...18

Conclusion21

Bibliography..............................v

ii
Table of Cases

Peoples Union for Civil Liberties and ors v. Union of India and Anr, (2003) 4 SCC 399

S.S. Dhanoa v. Union of India, 1991 SCC (3) 567

Table of Statues

1950 - Constitution of India

1973 - Code of Criminal Procedure

1951 - Representative of Peoples Act

1961 - Conduct of Elections Rules

iii
Table of Abbreviation

AIR All India Reporter

Anr Another

CJI Chief Justice of India

CrPC Code of Criminal Procedure

CPC Code of Civil Procedure

Del Delhi

Ed. Edition

ILR Indian Law Review

IPC Indian Penal Code

Ltd. Limited

Or. Order

Ors. Others

R. Rule

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

UOI Union of India

v. Versus

Vol. Volume

iv
Abstract

The essence of any democratic system is the healthy functioning of political parties and,
consequently, free and fair elections. Conducting fair elections requires not only a legal
framework and a transparent electoral process, but an institutional structure regulating
campaign finance which adequately ensures that governance caters to the welfare of general
public and not special interests. It symbolises the sovereignty of the people and provide
legitimacy to the authority of the government. Thus, for the success of democracy, free and fair
elections are indispensable. But today elections are not being hold in perfect conditions because
of the vast amount of money required to be spent and large influential power needed for winning
the elections. The major defects which come in the path of electoral system in India are: money
power, muscle power, criminalisation of politics, poll violence, booth capturing, communalism,
castism, non-serious and independent candidates etc. Here in this paper the researcher have
indicated the total happenings in the present days electoral exercise and recognises the far
reaching impact of campaign financing on future governance after elections and argued that
most of the vices prevalent in current campaign finance system of India can be dealt with by
doing away with expenditure limits and by introducing contribution limits in its place. The
researcher in this paper, therefore, argues for a systematic change in electoral law to promote
transparency in the financing of election campaigns in India.

Introduction

An Election is a moral horror, as bad as a battle except for the blood; a mud bath for every
soul concerned in it.

- George Bernard Shaw

India has the distinction of being the largest democracy of the world. One of the most important
and integral part of the democratization process in India is Election which is held at a
systematic period. While politics is the art and practice of dealing with political power, election
is a process of legitimization of such power.1 It is an official decision-making process by which a

1
Dr. Bimal Prasad Singh, Electoral reforms in India-Issues and Challenges, (2013) 2 (3) IJHSSI.

1
population elects an individual to hold public office. It can also be defined as a system by which
voters or electors, select their representatives by casting of votes.2

The Electoral System in any Country should support and strengthen the empowerment of the
people of the country to use the system to guarantee an equitable Framework of economic and
Social Justice.3 Democracy can indeed function only upon this faith that elections are free and
fair and not rigged and manipulated, that they are effective instruments of ascertaining popular
will both in reality and in form and are not mere rituals calculated to generate illusion of
difference to mass opinion, it cannot survive without free and fair elections. Free and fair
elections are indispensable for a healthy democracy. India has an indirect form of democracy
which implies that the government draws its authority from the will of the people. It is the
citizens who have the sovereign power to elect the government and this government is
responsible to the people who have elected them. The election at present are not being hold in
ideal conditions due to various reasons like misuse of offices, money power, large muscle power
needed for winning the elections, corrupt officials, etc. The elections today more or less have
become a determined investment undertaking, where everyone wants to try their hand at. Money
power, mounting election expenditure, corruption and other electoral misconducts alter the
electorate's results. Uncultivated corruptions in public life and criminalisation of politics result to
distortions where the democratic credentials of the electoral system is being questioned
seriously. This Trend of corruption in Electoral process was not new but gradually in a time span
of several years, they increase in the process. Therefore, each and every step of election practice
is packed with loads of inappropriateness.

Taking cognizance of these grave faults, there have been a number of reports and
recommendations on what is essential to be done. Some of the significant examples are the
Indrajit Gupta Report, the Dinesh Goswami Report, the 170th Report of the Law Commission of
India on Review of the working of political parties and Electoral Reforms and the
Recommendations of the National Commission to Review the Working of the Constitution
(NCRWC), Election Commission of India with Proposed Electoral Reforms, 2004 and the

2
Sia Shruti, Election Reform in India and challenges before the Election Commission, Available at:
http://www.mightylaws.in/905/election-reforms-india-challenges-election-commission.
3
M.Vijaya Kumar, Need of Electoral Reforms in India: Background Paper, All India Progressive Forum (AIPF),
2009.

2
Second Administrative Reforms Commission 2008.4 These committees first drawn the alarming
deviation and irregularities of the Election process and then made recommendations for its
implementation. The significant facts however is that almost none of the recommendations of
these learned and thoroughly prepared reports have been applied.

Objectives of the Study

To examine the status of electoral system in India.

To analyze the problems suffered by the electoral system in India.
To suggest various speedy remedial measures to curb the problems suffered by electoral
system in India

Scope and Limitations

The scope of the study of the project is not very wide. The topic is restraint to the electoral
system in India only. So, the researcher did the study of her project only to the extent of
problems suffered by the Indian electoral system.

Review of Literature

A survey on literature focused on Indian electoral system reveals that there is an urgent need to
adopt certain reformative measures for electoral system in India.

Dr. Bimal Prasad Singh, Electoral reforms in India-Issues and Challenges, (2013) 2 (3)
IJHSSI.

This article examines the current state of the Indian electoral system. It examines the evolution of
the Indian jurisprudence on the matter of right of the people to vote and choose the Head of the
State. It provides the researcher with the analysis that even after a number of recommendations
and suggestions for electoral reforms made by the Election Commission, we urgently need
fundamental political reform, including a referendum on electoral reform, much greater co-
operation across party lines, and changes to our political system to make it far more transparent
and accountable.

4
Sia Shruti, Election Reform in India and challenges before the Election Commission, Available at:
http://www.mightylaws.in/905/election-reforms-india-challenges-election-commission

3
 M.Vijaya Kumar, Need of Electoral Reforms in India: Background Paper, All India
Progressive Forum (AIPF), 2009.

This paper outlines the problems faced by electoral system in India and that there is an urgent
need of electoral reforms. The role played by money power, muscle power, booth capturing, etc.
is a stigma on electoral process and makes it difficult to conduct the election in free and fair
manner. The paper suggests that the dangers of electoral corrupt practices and electoral offences
cannot be met by existing legislation alone and that legal measures must be supplemented by a
country-wide drive to educate the electorate about their duties with the adoption of certain more
legal measure to meet the danger of use of corrupt practices and electoral offences in elections.

Dr. M. Bhaskara Raju, Indian Electoral System - Major Issues and Remedies (2015)
4(11) IJR

This article made an attempt to highlight major issues related to Indian electoral system and also
suggests some of the remedies to be adopted to resolve the same. The article also suggests some
remedial measures for improving the system and provides that there is an urgent need to adopt
certain legal measures to meet the problems faced by the electoral system in India as the electoral
system in India is confined by so many hitches and humiliating factors which encourage the anti-
social elements to jump into the electoral dispute.

Shreedhar Barki, Electoral Reforms in India Since Independence (2016) 5(5) IJR

The article charts Indias path to justice in its last 60 years, the barriers she faced and the
challenges that await her in the new world. It discussed in detailed the concept of voting rights in
India and how it is accessible to the citizens. The concept of right to vote itself necessitates that
we identify and recognise the peoples right to choose the head of the state with free and fair
elections as they directly correlate with the rights they are blessed with.

Research Methodology

Types of Research

The researcher conducted Doctrinal type of research to collect proper data and to gather
appropriate information. The use of library sources and internet sources has greatly

4
supplemented our research. Various books, articles, journals pertaining to the subject (as
mentioned in the Literature Review and Bibliography) have been immensely helpful in guiding
our research.

Types of Data

To ensure a quality study of the subject matter, the researchers collected the following two types
of data: -

(a) Primary Data- The researchers collected the primary data by going into statutory laws
such as Constitution of India, etc
(b) Secondary Data: Though primary data is very valuable and precious; still the importance
of the secondary data cannot be overlooked. So, the researchers also collected secondary
data through various books, articles, reports, journals and other sources.

5
Electoral System in India

Elections form the mainstay of our Indian Democracy. Our democratic setup bestows on us the
right to elect the representatives of the state. Besides, the elected people have the right to choose
the Head of the State. The elections in India have a long history. India has both General and State
elections as promoted by our federal structure. Both the General and State Elections are held as
per the rules prescribed by the Election Commission. The Election Commission of India is the
apex body that conducts elections in India. The Constitution of India has vested in the Election
Commission of India the Superintendence, direction and control of the entire process for conduct
of elections to Parliament and Legislature of every State and to the offices of President and Vice-
President of India.5

Election Commission of India is a permanent Constitutional body established in accordance with

the Constitution on 25th January 1950. Dr. B.R. Ambedkar expressed the objectives of the
Election Commission of India in the following words:

Our country is vast, consisting of different races, languages, cultures, religions,

classifications etc. So, the Election Commission consisting of the Chief Election Commissioner
for all India level is required to prevent injustice which may otherwise happen to mixed
population. This central body works with, free from local influences and shall have the control
over the entire election machinery in the country.6

This Commission is composed of high-ranking government officials and a great degree of

autonomous power is bestowed on the Election Commission to exercise control over the election
process. Even the judiciary has no right to intervene while the electoral process is on.

The Electoral system in India has been broadly divided into two, i.e., the Direct election based on
territorial constituencies and Proportional representation by means of a single transferable vote.
The first system is followed for the election of the members of Lok Sabha, State Assemblies and
Union Territories assemblies. The second, election held on the basis of proportional
representation by means of a single transferable vote for the President and the Vice-President of
India, members of Rajya Sabha and members of Legislative councils.

5
Ibid.
6
Dr. Bimal Prasad Singh, Electoral reforms in India-Issues and Challenges, (2013) 2 (3) IJHSSI.

6
The electoral system in India is confined by so many hitches and humiliating factors. Such
problems encourage the anti-social elements to jump into the electoral dispute. Our system was
completely free from any major flaw till the fourth general elections happened in the year 1967. 7
The alterations in its working appeared, for the first time, in the fifth general elections (1971) and
these got increased in the succeeding elections, especially in those held in the eighties and
thereafter.8

Many a time, the Election Commission has conveyed its concern and fretfulness for removing
hurdles in the way of free and fair polls. It has had made a number of recommendations and
suggestions and repeatedly prompted the government the need of changing the existing laws to
check the electoral malpractices. The Tarkunde Committee Report of 1975, the Goswami
Committee Report of 1990, the Election Commissions recommendations in 1998 and the
Indrajit Gupta Committee Report of 1998 and other committees reports produced a
comprehensive set of proposals regarding electoral reforms.9 Some of the Electoral reforms that
have occupied the Election Process includes EVMs that is, Electronic Voting Machine which
results in more transparency and creditability of elections, Universal Adult Franchise initiated by
61st Amendment, 1988 which has reduced the age of voters from 21 years to 18 years and Anti-
Defection Law which curtails the criminals from taking tickets of various political parties and
also bestows on them the right to extract the contesting candidates profile. Besides, Section 58A
has been inserted in the Representative of the Peoples Act by Act 1 of 1989 providing for
adjournment of pole or revoking of elections because of booth capturing.

The Constitution of India also provides sufficient and efficient provision to control elections
under Part XV- Election and Article 324 to 329. Electoral systems are the thorough
constitutional activities and voting systems that alter the vote into political decision. Indian
democracy has the First Past the Post (FPTP) as its electoral system to provide representation to
voters in State Assemblies and in the Parliament of India. Free and fair elections are the hallmark

7
P.P. Rao, Indias Ailing electoral System: Need for Reform, Available At:
http://www.vifindia.org/article/2013/may/02/india-s-ailing-electoral-system-need-for
reforms#sthash.bw3p8NT7.dpuf.
8
Sumandeep Kaur, Electoral Reforms in India: Proactive Role of Election Commission, (2008) 56 Mainstream
Journal.
9
<http://www1.imp.unisg.ch/org/idt/ipmr.nsf/ac4c1079924cf935c1256c76004ba1a6/9eb8196a99f94770c125722
d004709e2/$FILE/IPMR_7_2_2006_ARORA_FINAL_001.pdf>.

7
of a well-functioning democracy. Though India is considered as the largest democracy in the
world, but there are a number of areas which need to be strengthened to realise the true potential
of a well-functioning democracy which can be done only with some improvements in our
electoral process. With the Development in other fields, India is also developing their electoral
process. The secret ballot is a relatively modern development, but it is now considered crucial in
most free and fair elections, as it limits the effectiveness of intimidation.10

Issues in Electoral Politics of India

The election at present are not in a very good position because of the amount of money required
to be spent on fighting elections and large influential power needed for winning the elections,
make the condition of the electoral process even worst. The foremost defects which come in the
path of electoral system in India are money power, muscle power, criminalisation of politics, poll
violence, booth capturing, communalism, castism, non-serious candidates and independent
candidates etc. Some major issues which the election commission should look forward to and
made some improvements in the machinery are s follows11:

Political Instability

There has been a great deal of political instability during the last decades. Politicization at
ground level coupled with a highly fragmented society, has given rise to a multiplicity of
political parties. Each one of these exists not on a different ideology or economic programme,
but on the basis of having nursed a narrow parochial, mostly caste or religion based, identity for
itself and its band of followers. Even this support is usually earned not by doing some
constructive work for the concerned group but negatively by bad-mouthing others and all the
time pitting one group against the other.12 The resultant divided vote has made it increasingly
difficult for single parties to get a workable majority to form a government at the centre. The

10
Sidhant Chandalia and Anirudh Lekhi, Regulation of Election Campaign Finance in india: Making Election truly
free and fair (2013) 6(3) NUJS Law Review < http://nujslawreview.org/2016/12/05/1660/>.
11
Dr. M. Bhaskara Raju, Indian Electoral System - Major Issues and Remedies (2015) 4(11) IJR
<https://www.worldwidejournals.com/paripex/file.php?val=November_2015_1446637758__11.pdf> accessed on
10th May 2017.
12
R. B. Sundriyal and Sharde Dighe, Electoral Reforms Shree Publishing House, New Delhi, 1997 p.122.

8
result has been unstable administration and unstable policies, the hallmark of minority
governments.

Some of the main reasons for political instability are as follows:

Castism: Although there is hardly any instance in India of a political party being totally
identified with any particular caste group, yet there are cases of certain castes lending
strong support to particular political parties. Thus while political parties struggle among
themselves, to win different caste groups in their favour by making offers to them by
promising to bring betterment to their society or bring them cultured lifestyle, caste
groups too try to pressurize parties to choose its members for candidature in elections. In
many political parties, in place of ideological polarization there occurs the determination
of policies and programmes as well as the nomination of electoral candidates and the
extension of support to them on caste consideration. Caste dominates the political field,
especially at the lower level.13 The emergence of regional parties and the withering away
of national outlook and spirit thus sets off another crisis. Candidates come to be selected
not in terms to accomplishments, ability and merit but on the appendages of caste, creed
and community. Ultimately caste becomes the deciding factor on selection. Caste based
politics and castism are eroding the unity principle in the name of regional autonomy.
Communalism: Communal politics in India has led to enormous bloodshed and misery to
the vast majority of the people belonging to different religions. The emergence of India
as a secular state, the Diplomacy of communalism and religious fundamentalism in the
post-independence era has managed to a number of isolated movements in different parts
of the states and regions of the country. Communal divergence, rather multi-polarization,
has posed a menace to the Indian political philosophy of pluralism, parliamentarianism
and federalism.14 Despite the adoption of the principle of Secularism as a constitutional
credo, which fatefully lets communal parties to contest, the trend towards communalism
and fundamentalism in Indian politics have been increasing day by day.

13
Dr. Bimal Prasad Singh, Electoral Reforms in India Issues and Challenges (2013) 2(3) IJHSSI
<http://www.ijhssi.org/papers/v2(3)/version-2/A230105.pdf> accessed on 7th May 2017.
14
M.Vijaya Kumar, Need of Electoral Reforms in India: Background Paper, All India Progressive Forum (AIPF),
2009.

9
 Proliferation: In every Election there is a proliferation of candidates. It has been
observed by the Election Commission that a large number of candidates in the Elections
are non-serious candidates, which according to the Law Commission of India, makes
elections cumbersome, expensive and unmanageable indeed ridiculous in some cases. It
puts unavoidable stress on the election commission and sometimes it becomes
unmanageable for them to control the process.
Lack of Moral Values in Politics: There has been very sharp erosion in the ideological
orientation of political parties. In the election process, both the politicians and political
parties have lost their credibility, the ultimate value that should bind them with the
masses. There seems to be a crisis of character amongst the politicians, as the system
does not encourage the honest leader. Because of the falling moral standards both in the
public and among the leaders, criminalisation of politics and politicization of criminals
has become the norm. Due to degeneration of leadership, parties have been entangled in
power struggle for the sake of personal ends.15

Money Power

Electioneering is a costly affair in every democratic polity which plays a more important role in
India. Money power affects destructively the working of periodic elections in Indias electoral
system. It leads to all round corruption and contributes mainly to the generation of black
economy which gives any person to rule the democracy. 16 A prospective candidate in each
constituency/region has to spend millions and millions of money towards transport, publicity and
other essential items of election campaign. Campaigning is also the very essential part of every
election and it is the base on which the political parties build their reputation and agenda in the
political market and because of which the political parties needs to spend tons of money on
successful run of the election campaign.17 In recent years the expenses on election have
increased beyond any limits due to the desire on the part of every political party to spend more
than their competitors in the competition. Today only those people can participate in elections as

15
Amancleep Kaur, Electoral Reforms in India: Problems and Needs (1989-2009), Unistar Publication, 2009.
16
Shukia & Subhash, Issues in Indian Politics, Anamika Publishers, 2008, p.219.
17
Singhvi, Elections and Electoral Reforms in India, Sterling Publishing House, 1971, p.165.

10
a candidate who has a lot of money in his hand. Because of this entire problem, vote is no more a
right of a common man as today votes are not cast rather they are purchased.18

Muscle Power

Violence, pre-election pressure, victimisation, most of the supports of any type, booth capturing
etc. both silent and violent is mainly the products of muscle power of politics. It is a very serious
as well as a common problem in India where voters are prevented from exercising votes
according to their own choice by use of force and violence. Application of muscle power to win
in election by hook or by crook is an age old process followed by political parties in India. In this
process, the parties hire notorious criminals who campaign door to door and threaten the
innocent villagers to franchise votes in favour of a particular political party or otherwise failure
to do the same would result in dire consequences. These kinds of activities are exist in many
parts of the country like Bihar, Western Uttar Pradesh, Maharashtra etc. and this Havoc disease
is slowly spreading like a wild fire to south like in Andhra Pradesh. Criminalisation of politics
and entrance of criminals in politics are like two sides of the same coin and are mainly
responsible for the indicator of muscle power at elections.19

Misuse of Government Machinery

It is generally complained that the government in power at the time of election misuse official
machinery to further the election prospects of its party candidates. The misuse of official
machinery takes different forms, such as issue of advertisements at the cost of government and
public exchequer highlighting their achievements, disbursements out of the discretionary funds at
the disposal of the ministers, use of government vehicles for canvassing etc. The misuse of
official machinery in the ways mentioned above gives an unfair advantage to the ruling party at
the time of elections. This leads to misuse of public funds for furthering the prospects of
candidates of a particular party.20

18
Sidhant Chandalia and Anirudh Lekhi, Regulation of Election Campaign Finance in india: Making Election truly
free and fair (2013) 6(3) NUJS Law Review < http://nujslawreview.org/2016/12/05/1660/>.
19
R. B. Sundriyal and Sharde Dighe, Electoral Reforms, Shree Publishing House, New Delhi, 1997, p.122.
20
L.M. Singhvi, Elections and Electoral Reforms in India, Sterling Publishing House, New Delhi, 1971, p.165.

11
Corruption

Widespread and increasing corruption is responsible for the rapid fall in moral value and
distortion of the Indian polity. The culture of corruption is deeply intertwined with the ways in
which power is won, exercised and retained in India's democracy.21 In Indian elections, money
has acquired a vital place. In spite of adopting several measures, the Election Commission has
been unable to compel the political parties to keep its expenditures on campaigning within the
legal limit. During elections a large sum of money is spent on the election campaigning and
wooing the voters. But while filling returns most of the political parties quote false returns to the
Commission. Sincere efforts were put by the police to prevent or investigate these crimes but
most of these cases could not be handled successfully because after elections the police
authorities come under the control of the political parties and as a result they cannot act
independently.22

Non-Serious Candidates in Political Parties

In recent years there has been a steady increase in the number of candidates in elections. The
number of candidates has swelled due to the participation of Independents. They contest
elections light heartedly and lose their deposits. Non-serious candidates are largely floated by
serious candidates either to cut sizeable portion of votes of rival candidates or to split the votes
on caste lines or to have additional physical force at polling station and counting centres.23

Criminalisation of Politics

Criminalization in politics has contributed towards a feeble electoral system. The representatives
who stand for elections are stuffed with various criminal charges against them. It is a well known
perspective from a common mans eyes that these politicians take the comfort of criminal
elements to ascend the ladder.

The main reason behind entering of criminals in the political field is to clear their track records
of crime filed against them and not to proceed further. Political parties tap criminals for fund and

21
Sidhant Chandalia and Anirudh Lekhi, Regulation of Election Campaign Finance in india: Making Election truly
free and fair (2013) 6(3) NUJS Law Review < http://nujslawreview.org/2016/12/05/1660/>.
22
Ibid.
23
Ibid.

12
in return provide them with political support and protection from any criminal charges. Rough
estimates suggest that in any state election 20 per cent of candidates are drawn from criminal
backgrounds.24 Mafia dons and other powerful gangsters have shown that they can convert their
muscle power into votes often at gun point. Even National party gave tickets to the candidates
with criminal records. Our politics have been corrupted because the corrupt and criminals have
to entered it. Criminalisation of politics has become an all-pervasive occurrence. At one time
politicians appointed criminals to help them win elections by booth capturing and other
activities. In 2003, a law was introduces to prohibit the entrance of criminals in politics but
however, person with criminal Records continue to hold seats in the parliament.25

Section 8 of Peoples Representation Act, 1951 provides for disqualification of any candidate on
being convicted by a Court of Law. It also includes that such candidate shall be barred from
contesting any election further for six additional years since the date of conviction. This shows
an austere step to control criminalization in politics. But the fact is there is no hardhearted
implementation on the same and person with criminal Records continue to hold seats in the
parliament. The reason for this is the use of money power in politics.

The Election Commission of India issued an order on 27 March, 2003 in pursuance of

the judgment of the Supreme Court in Peoples Union for Civil Liberties &another vs. Union of
India26 that candidates for electoral office must submit an affidavit disclosing his assets and
liabilities. It has been noted by the Election Commission of India in its report Proposed
Electoral Reforms, 2004, that there have been many cases where the candidates are alleged to
have given grossly undervalued information, mainly about their assets. This is taking the
country towards a languishing state. It is not a sign of development. With this attitude, that we
have been noticing so far in our political system will increase crimes and nothing more.

Criminalization in politics is not very new, there were and there are many of the politicians
charged with criminal and corruption records, some of them are : Prakash Singh Badal and
Sukhbir Singh Badal chief minister and deputy Chief Minister of Punjab respectively, were being
held for cheating, possessing asset disproportionate to known sources of income; Ashok Chavan,

24
Dr. Bimal Prasad Singh, Electoral reforms in India-Issues and Challenges, (2013) 2 (3) IJHSSI.
25
Nirwachan Sadan, Election Commission of India Proposed Electoral Reforms, 2004.
26
(2003) 2 S.C.R. 1136.

13
Chief Minister of Maharashtra, in Adarsh Housing Society scam; Suresh Kalmadi, Member
of Parliament for criminal conspiracy and cheating related to 2012 commonwealth games; M.K.
Kanimozhi, Member of Parliament for 2G spectrum; Y.S Jaganmohan Reddy, Member
of Parliament for accumulating huge wealth disproportionate to his known source of income;
B.S. Yeddyurappa, former chief minister of Karnataka, held for Illegal Mining Scam. Moreover,
the 2005 elections in Bihar included 358 candidates charged with criminal acts like murder,
attempt to murder, bribery and robbery. It implies that our democracy ends the day we cast our
votes.27

Evading Code of Conduct

Code of Conduct is a broad guideline for the political parties and contesting candidates. It
mentions how political parties and contesting candidates should conduct themselves during the
election campaign and otherwise. It aims at maintaining peaceful election campaigns, avoiding
incidence of violence and clashes among contesting political parties and candidates and ensure
peace and order during the campaign period and also afterwards until results are declared. At the
time of election the political party in power misuses official machinery to further electoral
prospects of its candidates, this has been a common complaint. In different ways the misuse of
official machinery takes place for example utilization of government transport like helicopter,
cars, jeeps for personal use, issuing of advertisements at the cost of public exchequer, misuse of
official mass media for partisan coverage of political news and publicity regarding their
achievements during election period etc.28

Illiteracy

The problem of widespread illiteracy causes ignorance and prevents adequate understanding of
various democratic practices and processes. Despite of several developmental steps including
opening of schools and colleges across the country still illiteracy is a major problem. With
illiterate population democracy based on adult franchise cannot serve the people properly.29

27
Megha Shankar, An Essay on Electoral Reforms in India
<http://www.academia.edu/1982828/An_essay_on_Electoral_Reforms_in_India>.
28
Ibid.
29
Ibid.

14
A New Electoral Strategy: A Recent Development in the Election Reforms

In order to restore the confidence of the public in the democratic electoral system, many
comprehensive set of electoral reforms have been recommended from time to time by the Joint
Parliamentary Committee on Amendments to Election Law (1971-72), the Tarkunde Committee
Report of 1975, the Goswami Committee Report of 1990, The Constitution Bill 1994 and the
Representation of the People (Second Amendment) Bill, 1994 (passed by Parliamentary), the
Election Commissions Recommendations in 1998 and Indrajit Gupta Committee Report of
1998 etc. Out of these recommendations some have been implemented such as the voting age has
been lowered from 21 years to 18 years which has helped increase the number of voters and
response confidence in the youth of the country. Further the amount of security deposit by the
candidate has been increased so to prevent many non-serious candidates from contesting
elections with a ulterior motive.30

The Election Commission of India has also taken several new initiatives towards suggesting
electoral reforms such as state funding of elections, model code of conduct for parties and
candidates, measures to check criminalization of politics, auditing of financial sources of parties
etc.31 Election Commission of India has framed a set of rules known as the Model Code of
Conduct that must be strictly followed by both political parties and candidates contesting
election. These rules are proposed to make sure that the ruling party at both the national and state
levels may not abuse its official position for gaining an iniquitous advantage in the election.

In recent years, we have seen some Development in our Democratic Reform agenda, and
creating a serious issue for debate. All the changes which come into the picture are not positive
or flawless, but cumulatively they all definitely help to improve the situation, exemplify the
serious concern of political parties about the need to address the electoral and governance reform
issues, and indicate more fundamental, hard-wearing and far-reaching changes in the electoral
system in coming years. Some of the electoral reforms that have been introduced in Indian
electoral system in the last few years are as follows:

30
Shreedhar Barki, Electoral Reforms in India Since Independence (2016) 5(5) IJR
<https://www.worldwidejournals.com/paripex/file.php?val=May_2016_1462628862__82.pdf> accessed on 16th
May 2017.
31
Prakash.Chandra, Changing Dimensions of the Communal Politics in India, 1999.

15
Candidate disclosure

In Peoples Union for Civil Liberties and ors v. Union of India and Anr32, the Apex Court gave
its verdict on candidate disclosures and declared Section 33B of the Representation of the People
Act, 2002 (Amendment Act) as illegal, null and void.33 Supreme Court held that citizens have the
fundamental right to know the backgrounds of candidates who are competing for elective office,
as part of freedom of expression guaranteed under Article 19(1) of the Constitution of India.
Thus, the Election Commission vide its order dated March 13, 2003 mandated that each political
candidate has to file an affidavit containing information regarding his assets and liabilities.34
Now, if candidate does not disclose their general information about their background then their
nomination can be disqualified.

Limiting the size of Council of Ministers

The 97th Constitutional Amendment Act 2011 has restricted the size of the Council of Ministers
at the union and state level to 15% of the strength of the lower house.35 The object of this
Amendment was to have good governance structure and reduce unnecessary expenditure by the
government. The Amendment also has an influence on alliance politics, as the parties now have
to be constrained in doling out ministerial positions for oath of support.

Curbing the Cost of Campaigning

It has been observed by various committees that in order to cure the negative impact of the
excessive cost of elections, the first step should be to reduce the cost of elections themselves.
Funds given by the parties for campaigning should be reduced so that, the misuse of money can
be stopped. For this purpose the Indrajit Gupta committee suggested that a suitable law should be
enacted providing penalties or reasonable restrictions on these kinds of activities.

32
(2003) 4 SCC 399.
33
Politics and Nation, Economics Times, Available At: http://articles.economictimes.indiatimes.com/2014-05-
13/news/49820822_1_criminal-antecedents-apex-courtfundamental-right.
34
Election Commission of India, Order No.3/ER/2003/JS-II, March 27, 2003, available at http://
eci.nic.in/eci_main/ElectoralLaws/OrdersNotifications/Order_Assests_Affidavits.pdf (Last visited on November 1,
2013).
35
Jayprakash Narayan, Electoral and Political Party Reforms in India, Available at: www.loksatta.org.

16
Increase in Security Deposits and Number of Proposers

The amount of security deposit which a candidate at an election to the House of the People or a
State Legislative Assembly has to make has been enhanced as a measure to check the
multiplicity of non-serious candidates.36 The amended law further provides that the nomination
of a candidate in a Parliamentary or Assembly constituency should be subscribed by 10 electors
of the constituency as prospers, if the candidate has not been set up by a recognized National or
State Party.37

Booth Capturing

Section 58A has been inserted in the Representation of the Peoples Act, 1951 by Act 1 of 1989
providing for adjournment of poll or countermanding of elections because of booth capturing.
Booth capturing has been defined in Section 135 A of the Representation of the Peoples Act,
1951. Election Commission on such report may either declare the poll at the particular polling
station as void and appoint a date for fresh poll or countermand election in that constituency.

Checking Criminalisation in Politics

Power is the spoiler of men and it is more so in a country like India, where the hungry stomachs
produce power hungry politicians.38 The Election Commission (EC) has articulated its serious
concern over the entry of anti-social and criminal persons into the electoral field. The
Commission has advised all political parties and political personalities to reach an accord that no
person with a criminal background/record will be allowed to enter in to the political arena. The
candidates to an election are also obliged to submit an affidavit or undertaking in a prescribed
form declaring their criminal records, including convictions, charges pending and cases initiated
against them. The information so furnished by the candidates shall be scattered to the public, so

36
In the case of an election to the House of the People, the amount of security deposit has been increased from Rs.
500 to Rs. 10,000 for the general candidate and from Rs 250 to Rs. 5,000 for a candidate who is a member of a
Scheduled Caste or Scheduled Tribe. In the case of elections to a State Legislative Assembly, the candidates will
have to make a deposit of Rs. 5,000 if they are. general candidates and Rs. 2,500 if they belong to a Scheduled Caste
or Scheduled Tribe instead of Rs. 250 and Rs. 125 respectively as was being previously deposited by them.
37
Shreedhar Barki, Electoral Reforms in India Since Independence (2016) 5(5) IJR
<https://www.worldwidejournals.com/paripex/file.php?val=May_2016_1462628862__82.pdf> accessed on 16 th
May 2017.
38
Sumandeep Kaur, Electoral Reforms in India: Proactive Role of Election Commission, (2008) 56 Mainstream
Journal.

17
that the common public would also came to know about the person to whom they cast their
precious vote.

Limits on Expenditures made by a Candidate

Under the Indian electoral law, the total campaign expenditure incurred by a candidate must not
exceed the amounts specified for each state wise parliamentary and assembly constituency in the
Rule 90 of the Conduct of Elections Rules, 1961. Presently, the law in India allows expenditure
up to seventy lakh rupees in parliamentary constituencies and up to twenty eight lakh rupees in
state assembly constituencies.39 Under the Representative of Peoples Act, 1951, the incurring
or authorizing of expenditure in contravention of the expenditure limits under 77 is a corrupt
practice for which the civil penalty is disqualification from contesting elections for the next six
years.40

The 2003 Amendment Act significantly water down the scope of the loophole provided by
Explanation 1 to 77 of the Act41 which provides that the expenditure incurred by the party or
anyone else in connection with the candidate was to be kept outside the purview of 77 and only
election expenditure that was incurred or authorized by the candidate was to be included for the
purposes of expenditure ceiling. Post the amendment, expenditures incurred by the political party
or third persons in connection with the campaign of a candidate are considered as expenditures
incurred by the candidate himself and are thus included for the purposes of expenditure ceiling.
However, expenditure by the party or third persons on promoting the partys program as long as
it does not promote a particular candidate directly, will not be considered for the purposes of the
expenditure ceiling and can, therefore, remain potentially unlimited.

Recommendations and Suggestions

Efficient Electoral Commission is a requirement of the day to conduct free and fair elections.
Democracy and fearless elections cannot exist without each other. To stop unfair practices in

39
Election Commission of India, Amendment of Rule 90 of Conduct of Elections Rules, 1961, available at
<http://eci.nic.in/eci_main1/current/ImpIns1_06032014.pdf>.
40
Representative of Peoples Act, 1951, 123(6).
41
Representation of Peoples Amendment Act of 1974.

18
elections like rigging by using official machinery and to ensure existence of democracy,
following methods or means should be adopted.42

The CEC should not be at the mercy to Executive and Parliament for its requirements. He
should have separate and independent election department to enhance its objectivity and
impartiality.
For having a true democracy the registration and recognition of the political parties
should be fair and without any kind of influence.
To eliminate the expanding of parties in the political arena, the Election commission
should now registers a party which has at least 100 registered electors as its members and
is also charging a small processing fee of Rs 10,000 to cover the administration expenses.
The election commission should also put restriction on the amount of money invested in
the campaigning of the political parties. Election commission also raised certain
suggestions from time to time. The Commission has fixed legal limits on the amount of
money which a candidate can spend during the election campaign. These limits also have
been studied from time to time.
Parliament must pass a law dealing with this serious problem of de-listing of valid
electorates from electoral rolls because illiterate electorate residing in far villages cannot
watch over publication of electorate lists.
The EC was made a multi-member commission by the government in the stir of certain
controversial decisions taken by the Chief Election Commissioner. In S.S.Dhanoa v.
Union of India,43 the Supreme Court observed that when election commission worked in
so many areas to control the misconduct in the election, a multi member commission
body should also be established to put check on the working of election commission.
Preparation of electoral rolls by EC is to be supervised at village level and certificates
should be given to them from officials who prepare electoral rolls to the effect that the
electoral rolls have been thoroughly revised.

42
Dr. Bimal Prasad Singh, Electoral reforms in India-Issues and Challenges, (2013) 2 (3) IJHSSI.
43
1991 SCC (3) 567

19
 Inclusion of a chapter in the Representation of the people Act, to govern the creation and
functioning of political parties to avoid their rupture and to guarantee internal democracy
and maintenance of funds.
In case of electoral offences and certain other serious offences, framing of a charge by the
court should itself sufficient ground for disqualification, apart from conviction.
Any party, which receives less than 5% of the total votes in election to the Lok Sabha and
Assemblies shall not be entitled to any seat in any political party and shall not be allowed
to contest election.
Those candidates, whose criminal cases pending in the courts should be disposed of
speedily by the courts by creating special courts by the government for speedy trial.
Government should take initiative to introduce a far-reaching effect to this suggestion.
Candidate should also declare their sources of income along with the declaration of their
total assets and liabilities.
Introduce the option of NOTA on the EVMs for better alternatives to the voters. The
option of None of the above should be there on the Electronic Voting Machines
(EVMs) under section 49 (0) to protect the identity and right of the voters.

20
Conclusion

The principle of free and fair elections is an essential postulate of democracy, which in its turn is
a part of the basic structure of the Constitution of India. The system of democracy through
electoral process is the most practical of all systems and the one that offers the greatest
opportunities and happiness with the fewest risks to the common people. It is the only system of
government in which the people can enjoy their most valued rights and liberties. It itself has a
most beneficent effect on the development of the moral and intellectual stature of citizens. But
the system is not without pitfalls. However, its weaknesses or imperfections do not decrease the
excellence of the ideal of this system. The weaknesses of the system are generally found due to
social, economic or historical factors peculiar to it, which can be removed or minimized. Further,
the weaknesses may be remedied, not by less, but by more democracy and, therefore, despite
some weaknesses, this system has great advantages in comparison to all other systems of
Government. This is the reason that it is regarded as the best system of Government in the
modern world.

It has been witnessed that today elections are not being hold in perfect conditions because of the
use of electoral corrupt practices and electoral offences which are affecting and corroding our
electoral process and the very foundations of our democracy is foreshaken. The role played by
money power, muscle power, booth capturing, etc. is a stigma on electoral process and makes it
difficult to conduct the election in free and fair manner. Since the primary object of the law of
elections in every country is to create and maintain that sort of atmosphere in which the elections
can be held in free and fair manner, i.e. the object of the election law is to ensure free and fair
elections. Our electoral law also contains in detail various provisions even though they may
appear to be technical to safeguard the purity of the election process. The study thus, makes clear
that the dangers of electoral corrupt practices and electoral offences cannot be met by existing
legislation alone and that legal measures must be supplemented by a country-wide drive to
educate the electorate about their duties with the adoption of certain more legal measure to meet
the danger of use of corrupt practices and electoral offences in elections.

21
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