Legality of Electoral Bonds

Reading time: 6-8 minutes.

To win an election the most important thing any political party needs is, money. Right from printing pamphlets to the various advertisements of the political candidates, money is something which will keep their aspirations alive in this battle. This inevitably leads to the search for donations and eventually leads to the corruption in the system. Almost three years ago, the ruling Bhartiya Janata Party introduced an Electoral Bond Scheme, apparently to get rid of the black money system. The questions which arise are; whether this scheme really is effective, and what was the purpose intended by it? The Electoral Bond Scheme has several loopholes and has been challenged by a number of political parties and even the Reserve Bank of India and the Election Commission objected to it.

Electoral bonds are promissory notes, which any Indian citizen or company incorporated in India can purchase and then donate, to any political party he wishes to support. The catch in the entire transaction is that the donor’s name will be kept anonymous to the political party. The notification notifying the Scheme was published on 2nd January 2018. It was marketed as a cash alternative that could be purchased, individually or jointly, through selected branches of the State Bank of India, which will be further issued in multiple values of only Rs 1,000, Rs 10,000, Rs 1 lakh, Rs 10 lakh and Rs 1 crore. Political parties that have received at least 1 per cent of the votes in the recent parliamentary or assembly polls are entitled to collect such bonds only through a bank account with the approved bank, and they are ought to encash the bonds within the 15 days of its issue date.

When we discuss the legality of Electoral Bonds, it becomes pertinent to observe in what context we discuss it; whether it is the legality of its existence that is in question or is it their origin itself. The Vidhi Centre for Legal Policy, in its Report of March 2018 stated that, “The introduction of the electoral bond scheme is part of what appears to be a growing trend away from transparency and accountability, two values which were already sparse in relation to Indian political parties”. The way in which the electoral bonds were brought into existence was not at all democratic.

The allegations against the government is how they dismissed the recommendations of Reserve Bank of India and Election Commission, to the effect that these Electoral Bonds Scheme will lead to increased flow in black money through shell companies and will reduce the faith in bank issued currency notes. The other severe criticisms also include the Law Ministry’s assent to the Centre to pass the Electoral Bond Scheme, bypassing the Rajya Sabha, which is apparently illegal and unconstitutional on the face of it, as was also stated by Huffington Post India. This series of events also revealed that the Prime Minister’s Office put a lot of pressure and influence on the Finance Ministry to break its own rule, for the sale of bonds and accordingly the Ministry gave a green signal for the special opening of sales on two different occasions, aside from the scheduled dates. Also, few documents obtained as a reply under the Right to Information Act clearly show that the Finance Ministry had been ‘advised’ by the PMO to open a special 10-day window for issuing Electoral Bonds, to which the Finance Ministry argued that the illegal selling was a “one-off exception”. The Government has, just to fulfil its objective and to bring Electoral bonds into existence, amended the Finance Act 2017, the Income Tax Act, the Reserve Bank of India Act, and the Representation of People Act. 

There has been an ongoing conflict between the people who support this move and those who do not. Those against the Scheme have not only criticized that the identity of the purchaser of electoral bond being kept anonymous, may lead to an influx of black money; they are also asserting that the scheme is intended to help large corporate houses donate money to the political parties without their identity being exposed. The supporters of the Scheme on the other hand, defend it by arguing that the idea of electoral bonds was never to incentivise major corporate houses to make political contributions without being named, infact the Scheme was intended for the individual donor, and to keep tabs on these scrupulous donations that might have been made without any checks and balances. It is well known that funding election campaigns of political parties is not a ‘voluntary’ activity. Corporate organizations need swift decisions and government officials need to look the other way. There are scores of ‘law-breakers’ in the vast web of laws and notifications.

When this issue went to the Supreme Court to adjudicate whether the application of the Scheme should be stayed, the Court turned down the plea for issuing an interim stay. The Apex Court said that the Indian Election Commission should keep a record of the money earned by the political parties through electoral bonds and the specifics of the donation received by the political parties must be given in a sealed form. The Court also indicated that it would review in depth the amendments made to the law to bring electoral bonds into existence to ensure that the balance would not tip in favour of either faction. Although experts are divided on whether the order offers a response to the question of transparency posed by the petitioners, they agree that the interim solution should ensure that there is some transparency. It will be important to see what stance the Election Commission is going to take when the final hearings on the matter begin.

The Electoral Bond Scheme implemented by the Government has so far not produced any desirable outcome; instead, it has further obscured the mechanism of political funding and its source, which was the most fundamental bit of information that voters ought to know, compromising their free will and violating the principles of free and fair elections. Finally, this Scheme cannot be rationalized until and unless substantial reforms have been made, with the support of both the executive and the associated organisations.

Author: Aryan Raj Kashyap, NALSAR University of Law.

Editor: Astha Garg, Junior Editor, Lexlife India.

Code of conduct for electoral campaign

Reading time: 6-8 minutes.

Elections are close in Delhi and no party is leaving even a single stone unturned to give their side an edge over their opponents, for this the representatives of these parties are going at length to show that how foul the other party is but recently for Anurag Thakur and Pravesh Sahib Singh, it has lost the direction on the morality radar, resulting into an embargo by the Election Commission of India. Here in this article let us look into what the matter was and what essentially the Model Code of Conduct is.

Details of the incident

The Election Commission of India (ECI) barred BJP leader Anurag Thakur and West Delhi MP Parvesh Sahib Singh from campaigning for the Delhi Assembly elections for 72 hours and 96 Hours respectively, for violating the Model Code of Conduct.

In Anurag Thakur’s case, while addressing a public meeting in the Rithala Assembly constituency he while giving his views on the Anti-CAA protests, chanted “shoot the traitors of the country” while using slurs against the protestors. After the imposition of the embargo, he told the Election Commission that he did not have the intention to create or promote enmity between different religions, ideologies or communities.

In Pravesh Singh’s case, there were two different accounts where he made objectionable statements during where a public meeting in Vikaspuri firstly and then during an interview with the news agency ANI. He, being an outspoken member of the party, when was asked about the protests against the Citizenship (Amendment) Act in Shaheen Bagh, said the protestors would enter the homes of the common masses and rape their women.

On these accounts, the Election Commission found both leaders liable for the violation of the Model Code of Conduct and Representation of the People Act, 1951 by making an undesirable and objectionable statement which considering the present Indian Scenario was seditious in nature.

What is the Model Code of Conduct?

The Model Code of Conduct is a set of guidelines issued by the Election Commission to regulate the actions political parties and their candidates before elections, so as to ensure free and fair elections. These guidelines have been made in consonance with Article 324 of the Constitution, which gives the Election Commission the power to supervise elections to the Parliament and state legislatures. It becomes operational from the date when the election schedule is announced until the date of results.

Model Code of Conduct for campaign

Model Code of Conduct contains eight distinct provisions dealing with various aspects of elections such as general conduct, meetings, processions, polling day, polling booths, observers, party in power, and election manifestos. All this is to ensure that the elections go on smoothly and there is no malpractice done throughout the elections. Some of the important provisions under various headings are as follows:

  1. General Conduct: Under this, the commission limits criticism of political parties only on their policies, past record and work. Using caste and communal feelings to secure votes, bribing or intimidating voters, or organising demonstrations etc. are strictly prohibited under this.
  2. Meetings: If any party has to organise a meeting with the general public it should first intimidate the local police authorities about the venue and time of such meeting so that they can make adequate security arrangements to avoid any unforeseen event.
  3. Processions: If two or more candidates plan processions along the same route and at the same time, it is to be ensured that the processions do not clash. Carrying and burning effigies of members of other political parties are also not allowed under this heading.
  4. Polling day: Authorised party workers should be given identity badges at the polling booths which have all the important information of that worker and the party he/she is representing.
  5. Polling booths: Under this regulation only the voters and members with valid passes from the Election Commission, are allowed to enter polling booths.
  6. Observers: The Commission appoints an observer who has the job to listen and address the problems of a candidate regarding the conduct of the election.
  7. Party in power: Certain restrictions were also imposed on the ruling party since 1979, so as to regulate the conduct of such parties. Such a party must avoid advertising on public wealth or using official mass media to improve chances of victory in the elections. Ministers and other authorities of the ruling party must not announce any financial grants, or promise any construction of roads, provision of drinking water, etc.  The ruling party must not monopolies the public places and therefore other parties are also allowed to use public spaces and rest houses.
  8. Election manifestos: This heading was added in 2013 under which parties are prohibited from making promises that exert an undue influence on voters.

Is the code enforceable?

As of contemporary times, the Model Code of Conduct is not directly enforceable by law. However, certain regulations are enforceable through provisions in various statutes such as the Indian Penal Code, 1860, Code of Criminal Procedure, 1973, and Representation of the People Act, 1951. It is ironical but the Election Commission has asked not to make them legally enforceable because elections being held for a short period need no long-running judicial proceedings. On the other skill, in 2013, the Standing Committee on Personnel, Public Grievances, Law and Justice, recommended making the MCC legally binding and make it a part of the Representation of the People Act, 1951.

Scope of improvement in election laws

Modern-day elections need a great overhaul because of the stagnancy and the latency that was ever-present in its mechanism. The most significant improvement that could be done in the field of election laws is to make voting compulsory. Though this would not necessarily make a radical change, it would drive a lot more people to the polls and make them aware of their duties as an Indian citizen.

As recommended by the Law Commission in its 2015 report a restriction should be imposed on government-sponsored report advertisements for up to six months before the date of expiry of the House/Assembly because it gives an advantage to the ruling party to issue advertisements that highlight its achievements, which results into an undue advantage over other parties.

To avoid the malpractices that were ever-present in Elections the government should come up with a plan of registration through biometrics so that a person can vote only once thereby reducing the prevalent custom wherein a party worker votes multiple times which leads to an undue advantage to the party.

These are a few but very important points to be observed and revamped in Election Laws. As of now, the overall election system seeks a major overhaul and this is only possible when the governments would take some drastic steps.

Conclusion

Therefore, based upon these observations it could be concluded that the Election Commission is indeed taking necessary measures to conduct fair and peaceful elections in the country. But it cannot be denied that the guidelines mentioned under the Model Code of Conduct are not executed properly which is the greatest lacuna or drawback of the entire system.

For all these reasons, there is a strong need for election reforms in the country which could overhaul the contemporary mechanism and shifts the entire paradigm on a smooth track which is alone is the way to a balanced democracy.

Author: Pratyush Pandey from Rajiv Gandhi National University of Law, Patiala.

Editor: Tamanna Gupta from RGNUL, Patiala

An explainer on the State Election Commissions

Reading time: 6-8 minutes.

Recently the local body elections in the state of Tamil Nadu saw a great deal of defiance towards the State Election Commission of Tamil Nadu whereby DMK accused the election commission of favoring the opposite party namely AIADMK in the declaration of results.

This gives rise to a plethora of questions – What are state election commissions and how are they supposed to function? Are they supposed to be neutral, and why so? Is there any authority to keep a check on their functions? This explainer covers all aspects of State Election Commissions in India.

What are State Election Commissions (SECs)?

The State Election Commissions are vested with the powers to conduct elections to the Corporations, Municipalities, Zilla Parishads, District Panchayats, Panchayat Samitis, Gram Panchayats and other local bodies. The State Election Commissions were constituted under the Constitution’s 73rd and 74th Amendment Acts of 1992 for each State/Union Territory and are independent of the Election Commission of India.

State Election Commissions carry out activities related to the preparation of wards/ election divisions as per the local bodies’ rules, decision of boundaries and distribution of seats along with the preparation of voters list for the local bodies’ organizations as mentioned in the above paragraph.

Legal provisions under which they are created

The State Election Commissions are constituted under Articles 243K and 243 ZA of the Constitution of India. The said Articles provide that the conduct of elections, and the superintendence, control, and direction of the preparation of electoral rolls, to panchayats and Municipalities shall vest in the State Election Commission consisting of the State Election Commissioner.

The State Election Commissioner has the status, salary, and allowance of a Judge of a High Court and can only be impeached on the grounds, and in the manner as a Judge of a High Court is impeached.

The parts IX and IXA of the Constitution of India enable the Panchayats and Municipalities to function as an institution of Self-Government endowed with the powers and authority for preparing and implementing plans and schemes in respect of the matters entrusted to them.

The State Election Commissions have been entrusted with the responsibility for holding elections in a fair manner, so as to inspire the confidence of the general public, in turn, emphasizing the indispensable provision of ‘free and fair elections’ to the local bodies by the Constitution of India.

The Local Self-Government is mentioned in List II of the Seventh Schedule of the Constitution and therefore the State Election Commission can only be established by the State Government. Every state has a different law for their State Election Commission governing the functioning of the SECs.

Function with respect to the Election Commission of India

The State Election Commission is an independent constitutional body vested with the powers and authority to conduct, supervise and direct the local body elections in the states/ Union Territories.

The first and foremost function of the State Election Commission is to prepare the electoral rolls of Panchayats, Municipalities and Municipal Corporations in order to conduct their elections. The Election Commissioner is also the chairman of the Delimitation Commission which is concerned with the redrawing of boundaries of various assembly and Lok Sabha constituencies based on a recent census.

In addition to the above functions, the State Election Commission also performs the following functions:

  1. Conduct of elections to the offices of: Mayor/ Chairman/ President/ Deputy Mayor/ Vice Chairman/ Vice President and the no-confidence motion against them.
  2. Conduct of the Elections to various Standing Committees and their Chairpersons.
  3. Determination of disqualification of elected members/Councilors.
  4. Determination of disqualification of elected members on the grounds of defection.

The Election Commission of India has no role in the conduct of the local body elections. However, the Election Commission may provide help to the State Election Commissions by lending them the EVM machines or sharing the electoral rolls.

Reasons why SEC should be politically neutral

‘Free and Fair elections’ is one of the basic and indispensable provisions of the Indian Constitution. The biased approach of the election commission itself would not only infringe the constitutional right to vote but also would be against the principles of Right to Equality guaranteed under the Indian Constitution.

India is a democracy. The concept of democracy is paramount in the Indian Constitution which has been given by ‘We, the People of India’ unto ourselves. The Supreme Court has also held democracy to be one of the inalienable basic features of the Constitution and forming a part of its basic structure.

The democratic system of governance envisages the representation of people in the Parliament and the State Legislatures by the method of election. Hence, the importance of free and fair elections can be sufficiently made out.

The Election Commissions are entrusted with the responsibility of maintaining the essence of democracy through the conduct of free and fair elections. A biased approach towards any political party would be a grave violation of the Constitution of India and also a deep injustice to the people of India who display their faith in the system.

Functional independence

India is a federal country and the Constitution gives the States and the Union Territories significant control over their respective government. The State Election Commissions are established by the State Governments. These are governed by the different laws prevailing in different states. The Election Commission of India, on the other hand, is established by the Central Government. Therefore both the commissions have different domains and are independent.

The State Election Commissions have the same powers and enjoy the same status as the Election Commission of India, as clarified by the Supreme Court in the case of Kishan Singh Tomar v. Municipal Corporation of Ahmedabad(AIR 2007 SC 269).

The Election Commission itself wrote a letter to all states in 1996 wherein it clarified that its Chief Electoral Officer (who represents Election Commission of India in each State) should not be entrusted with any work related to the preparation of electoral rolls for the local body elections. Hence the independence of the State Election Commission can be sufficiently inferred through the above-stated arguments.

Who checks the corruption of Election Commissions?

The Election Commissions are independent constitutional bodies. There is no individual authority incorporated to check the corruption of the ECs. Also, under Article 329 of the Constitution, the courts cannot interfere in the electoral matters except through the way of an election petition.

An Election Petition can be filed by any candidate for rendering the elections void and also for a further declaration that he himself or any other candidate has been duly elected, as per the Representation of the People Act, 1951. The High Court has the original jurisdiction to take up such matters. However, an appeal can also be filed to the Supreme Court within thirty days of the order made by the High Court.

Section 129 of the Representation of the People Act also provides that any distinct election officer or any member of the police force would not endeavor to persuade or dissuade any person to give his vote at an election or influence them in any other manner. The person guilty of any such offense shall be punishable with imprisonment of up to six months or fine or both.

Moreover, the provision of impeachment of the Election Commissioner is also a mechanism designed to protect against him or her severely violating the provisions of ‘free and fair elections’ and the other relevant rules.

Conclusion

All in all, the State Election Commissions are individual bodies responsible for the conduct of local body elections in all the States/Union Territories of India. These operate without any interference from any court of law. However, the powers are not absolute and can be challenged through an election petition. The recent dispute of the Tamil Nadu local bodies’ elections is the testament to the same.

In the aforementioned dispute, the Tamil Nadu State Election Commission was accused of being politically biased towards the DMK party for which the said party also filed an election petition before the Honorable Supreme Court of India.

Hence, it can be safely inferred that the State Election Commissions are an integral part of the democratic republic of India, with many important powers and at the same time, provisions for keeping in check those powers.

Author: Prachi Gupta from UILS, Panjab University, Chandigarh.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.