Lok Prahari and the Aesop's Fable

The Supreme Court of India resembled the council of rats in Aesop's fables while deciding Lok Prahari v. Union of India. Everyone knew the necessity to rein in the unscrupulous politicians who amass wealth merely by being a legislator or position of power in a political party. The petitioner presented a list of legislators who had 500% enhancement in assets within the span of a single term in legislature. The ultimate question is what the wise old mouse asked, who would bell the cat?

The chequered history of attempts to control ‘money power’ in elections exposes sporadic efforts by the judiciary, which were undercut systematically by the executive and legislature. The legislative inaction does not surprise anyone as our politicians aren't that dumb to kill the goose laying golden eggs.

The acrobatic manoeuvres our elected members of central government and legislature featured to avoid the impact of ADR judgment [(2002) 5 SCC 294] is alive for anybody who follows India’s electoral laws. (Read pages 14-19 of the Lok Prahari judgment for a summary). 

Had there been political will and resolve, the nudge in ADR would have been enough to gain ground in regulating unjust enrichment by our elected representatives. In para 48 (3) of ADR the court had mandated declaration of the following with nomination:

(3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants. 

If this was followed up guided by the spirit of democracy, Jay Shah, Amit Shah’s son would not have had golden touch at his finger tips. Binoy Vinodhini Balakrishnan, son of a veteran Marxist politician would not have been in a position to get sizable amount of loan from an entity in Dubai and land up in a scandal. Interestingly his dues have been recently paid off by undisclosed business person/s. Bineesh Kodiyeri another son just happened to be the Vice President of Mr. Ravi Pillai’s firm. Questioning his qualification for the post wont fetch any tenable answers other than being the son of Mr. Kodiyeri Balakrishnan.

Lok Prahari asked the court to address such problems and the judiciary prescribed some solutions, which needs legislative and executive backing. Ironically, the same group of people who benefit out of inaction. One has to be extremely wishful to expect the legislature to act.

The cat of the folklore will continue to maraud the rats as yet another indicator of a dying democracy. 

Citizens United - Guns – Electoral Bonds in India

An aspect where both the majority and minority opinions in Citizens United v. FEC 558 U.S. 310 (2010) united was on the value of section 203 of Bipartisan Campaign Reform Act, 2002 to democracy. The majority sustained the disclosure norm in section 203 about political contribution, though restriction on political funding was taken down citing first amendment. 

In the wake of yesterday’s Florida School shooting, the President of United States addressed the nation, carefully avoiding the word gun being mentioned even once. The Guardian reports that seven weeks into 2018 there has been already eight shootings in US Schools. Too many too soon to ignore about the issue of guns but only to focus on the mental health of the alleged shooter, especially since shooter is a white American which leaves out other possible narratives. Incidentally one of the first Bills this President signed was to ease conditions for procuring guns by people with mental illness. 

This raises two questions, why should a President do something like enabling mentally ill persons to legally possess guns and what prevents the President from calling the spade what it is. To develop the question further, why does the congress consistently failing to legislate on guns within permissible limits, which any sensible legislature would do? Why are the State legislatures relatively silent on the issue?

Answer to all questions is writ large on the power gun lobby wields in US politics, through electoral funding. The dynamics of lobbying is such that the National Rifle Association and allied actors can sway representatives through contributions.

Citizens United facilitated flow of funds to political parties aiding purchase of policies and laws but did not obliterate the trail of money. Justice Stevens in his dissent had mentioned that ‘a democracy cannot function effectively when its constituent members believe laws are being bought and sold.’ in US at the least there still exist a posibility to link the actions of politicians to their donors as there is disclosure of fund flow. 

India has recently introduced a new form of election funding through ‘electoral bonds.’ These bonds of specified values are issued by designated Banks, which can be bought and presented to preferred political party/ies. The political party need to declare the receipt of encashment of bonds in its Income Tax returns. 

The electoral bonds will keep public completely out of loop and will not reveal who contributed to whom. 'We the people' will have no idea who has bought and sold the law and policies governing ‘us,’ the most dispensable commodity in Indian democray. Government through bank and IT returns will have clear idea who has contributed to whom helping them to profile contributors to rival political parties. Politcal parties will know their benefactors and therefore whose interst to cater. Paradox is that Mr. Arun Jaitly tout this as a step towards transparancy in political funding.

In US, when they are hit by a bullet at least they know who paid for it.

How Transparent Political Parties Can Afford to Be!

The debate has been on for sometime now and the government with the blessings of all political parties have moved the Right to Information (Amendment) Bill 2013. Ironically, it is the same parties who came together to hide behind the veil of secrecy form public eye who otherwise in second breath declare that 'we came clean at people's court' and 'we have people's mandate, which is above all'. After all, who doesn't know, people is a convenient abstraction anyone can use without answerability but for once in five years and there also formulas work than holding one responsible for deeds and misdeeds. In any case it is but logical to expect that the amendment may be challenged for its constitutional validity.

There are three major reasons proffered for keeping political parties out of the gaze of public in the Bill;

• political parties are not public authorities, which the Act intends to cover, 
• transparency in the functioning of political parties are already taken care by the existing laws like the Representation of the People Act, 1951 and the Income Tax Act, 1961 
• opening up political parties to RTI will hamper the smooth internal working and political rivals will adversely affect the functioning of the parties 

The third reason raises the question how transparent political parties can afford to. In the age of social communication, information highways and public debates of public issues there seems to be a lot political parties wants to keep to themselves. 

I am tempted to refer a news item from a German online newsletter (accessible here). Story of a political party that claimed to deviate from its traditional counterparts in transparency norm. From press receiving only official press releases and interviews, this party streamed committee meetings via internet and no screening between what happened and what reached the public ears. Soon they realised "..., with our calls for 'Transparency! Transparency!' we in the Pirate Party have created expectations that are difficult for us to meet," going back to the established party ways it is now felt that the character of the party is lost. This story but has to be read in the context of Germany where transparency norms are ingrained in the law and public disclosure of party finances to the legislature a mandate. Therefore the bar of transparency they were trying to push was already set much high. 

This has to be juxtaposed with the Government of India's stand in Ashok Chavan case (Paid News Case) pending in Supreme Court of India. It has shamelessly declared there that the EC has no jurisdiction to look into the accuracy of the statement of election expenditure filed but need only to verify the timely filing. Moreover, the Income Tax Act requirement is not a foolproof method to regulate party finances nor are the provisions of the Representation of the People Act, 1951. In summary, the norms of transparency and accountability in India is far below the desired as it stands.

Now the remaining question is, can political parties be considered as public authorities? The subsidies, freebees and benefits enjoyed by the political parties which is coughed up by the tax payer makes them definitely accountable to them. The role played by them in the political process makes them an integral part of the public institution though it may not conform to the structural construct of a public authority, rather will suit a free association of people.

It goes without question the action of political parties needs to be transparent. The disclosure norms to begin with should be on the financial side. The decision making side is bit too tricky and needs further thought and evaluation to make it under information dispensation norms. 

There still is an issue whether this amendment stand the test of judicial scrutiny if and when challenged.

Spend as much as you can, account as you like: A comment on the disqualification of elected member under Section 10A of RP Act 1951

Accounting election expenditure would never be easier if the stand taken by the central government in Ashok Chavan (Paid News) case is accepted. Section 10A of the Representation of the People Act, 1951 gives power to Election Commission to disqualify a returned candidate for non-lodge of election accounts as prescribed. 

Section 10A- Disqualification for failure to lodge account of election expenses.—If the Election Commission is satisfied that a person

(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act; and

(b) has no good reason or justification for the failure,

the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.

The Central Government's stand is the literal interpretation of Section 10A, that EC has power to disqualify only on failure to lodge account of election expenses not on its incorrectness.  This gives a very convenient way out for many representatives. Candidates have to file an account thats all but integrity of it is not a matter of concern. The entire Act otherwise does not provide any process to disqualify a candidate who has filed incorrect expenses. This will result in a situation where the law prescribes for filing of accounts, else attract disqualification but is unconcerned about the correctness of the same. Anyone can get away with timely filing of any returns.

It could be argued that the statute does not hand down power to EC than what is expressly given. The question is why is this power given, especially this being an amendment in the backdrop of discussions about cleansing the Aegean Stable of corrupt politics, especially electoral politics. A purposive and dynamic reading of section sure can find a solution in the line what society needs.

Still this will not solve the problem. The disqualification in section 10A is a default action on non submission of expenditure statement and not having a  justifiable reason. Incorrect statement but would need inquiry, marshaling of evidence and finding of incorrectness before disqualification. The section but is silent on this. Naturally the section as it stands is defective and courts, however dynamic in construction, cannot go around correcting the defect in law, here the lacking of process. Now that the situation has arisen and seen the defect in law, it is the Parliament to correct the anomaly. But then who will bell the cat.

A Primer on Election Laws - Contd...

Legislations and Orders – Election – Part II

2. The Representation of the People Act, 1951

The basic legislation that (1) detail the conduct of elections to Parliament and House/s of Legislative Assemblies, (2) prescribe qualifications and disqualifications for membership in the legislative bodies, (3) define and entail consequences for corrupt practices, and (4) provide framework for determination of election disputes.

The Act touches every aspect of the conduct of the elections from prescribing the electoral system to the process. It starts from the issuance of notification of elections to declaration of the returned candidates with meticulous precision.

The legislation has undergone multiplicity of amendments to keep the law relevant to the changing political and technological scenario. For example introduction of Electronic Voting Machine for polls. (Section 61 A)

This legislation covers the administrative machinery of elections (Sections 19 - 29) and the registration of political parties (Sections 29 A to 29 C). A vacuum here is the lack of any provision for deregistration of political parties.

This Act also mandates the declaration of assets and liabilities of returned candidates. (Section 75 A)

Some of the Important Issues

· Disqualification for membership is one of the most contested areas

o Section 8 deals with disqualification due to conviction on certain offences
o One of the most debated issues in election and related laws – criminalisation of politics – is anchored in this provision. (Vohra Committee Report, Law Commission’s 170th Report, Report of the NCRWC, Election Commission’s recommendations on electoral reform)
o The provision disqualifies a person from contesting election on conviction of certain specified offences. The questions here are:
§ Should the disqualification run from the date of FIR/ charge sheeting? The present provision allows one to contest election even from prison
§ Section 8 (4) is also under the line of fire for the exemption it provides for the sitting member of the Legislative Houses. It gives a window period of three months or if a revision or appeal is brought within that period, till the disposal of it by the court
o Section 8 (3) offers another area of debate. It provides that if a person is convicted of an offence other than the prescribed offences (Section 8 (1) (a) to (n) and Section 8 (2), and the period of punishment is more than two years, the disqualification takes effect. One of the issues in Jayalaitha’s case was whether the punishment of two years shall be for an offence/case or is it two years cumulatively in offences/cases. The SC determined the matter holding that it is cumulative years of imprisonment that need to be considered.

· Right to vote

o It has been argued that the right to vote is a statutory right and the right flows from Section 62.

§ Interestingly it is only in the marginal note that the word ‘right’ figures
§ The section is all about the management of the casting of votes. The section is couched in negative language prescribing who shall not vote. One needs to read that all others without the prescribed disqualifications have the right

· Disputes regarding elections

o To be read with Art. 329 (b)
o Jurisdiction with the High Court – through an election petition
o Sections 86 to 99 details out the conduct of the trial of election petitions
o Appeals lie to SC – Section 116 A

· Corrupt practices in election – another contested area, especially in the wake of the hate speech and appeals on the ground of religion

o Section 123
o Bribery, undue influence, appeal on the ground of his religion, promotion of feelings of enmity, propagation or practice of sati, publication of false statements, use of vehicles to transport voters, incurring unauthorised expenditure are the corrupt practices

· Right to information and elections (Sections 33A and B)

o The trajectory
§ The ADR – Election Commission’s Directive to furnish separate affidavits by the candidate – Amendment, bringing in Section 33B – Challenge of constitutionality in PUCL – found unconstitutional

A Primer on Election Laws

This is an effort to chart the major legislations and important judicial decisions of a period in a series for the benefits of the students of Election Laws.

Legislations and Orders – Election – Part I

1. The Representation of the People Act, 1950

This Act deals with:

a. Allocation of seats and delimitation of constituencies (Sections 3 to 13)
b. Establishes posts - election officers (Sections 13A to 13 CC)
c. Provides for the maintenance of the Electoral Rolls (Sections 13D to 27)
d. Deals with the design of filling of seats of Council of States by the representatives of Union Territories (Sections 27 A to 27 K)

One of the basic legislative bulwarks of the conduct of elections to both Parliament and Legislative Assemblies, along with the Representation of the People Act, 1951

Some of the Important Issues

1. The very issue of delimitation and the potential of gerrymandering.

The legislative framework in India – The Delimitation Commission Acts
So far, there have been four Commissions 1952, 1963, 1973 and 2002. The 2002 Commission was established after the 2001 census under the Chairmanship of Justice Kuldip Singh (Delimitation Act, 2002). The recommendations of the Commission were not acted upon till a notice from the SC in 2007 in pursuance of a petition. Later, on 19 Feb 2008, the President approved the recommendations. The conduct of the 2009 general elections was done on the basis of the redrawn constituencies.

2. The issue relating to the conditions to be registered as a voter

a. Qualifications

-Not less than 18 years
-Ordinarily resident (This was one of the issue in Election Commission of India v. Manmohan Singh (2000) 1 SCC 591. This case prompted the 2003 Amendment to Section 3 of the Representation of People Act, 1951, which later gave rise to the Kuldip Nayar decision)

b. Disqualifications

-Not a citizen of India
-Unsoundness of mind – (There is a debate in the disability law circle that this provision amounts to disenfranchisement of a group)
-Disqualified from voting due to corrupt practices or offences in connection with elections

Review Article

EC’s order on the hate speech issue – A summary

Part II of Legal implications of hate speech in the milieu of elections. See Part I here.

EC suo motu took note of the reported incidences of hate speech and issued notice to Varun to explain his actions of violation of clause 1 and 3 of the Item No.1, which specifies General Conduct, of the MCC. The notice also required Varun to explain the charges of (1) attempting to promote enmity and hatred among different class of citizens on the ground of religion, (2) outraging the religious feeling of a particular community, and (3) promoting hatred and ill-will between two classes of citizens provoking a section of the citizens to indulge in violence. Notice was also issued to BJP to explain its actions.

The party in its reply took a safe stance of disassociating itself from the actions of Varun, though later actions of the party are contrary. But then we are not surprised about the actions of the BJP as we are so familiar with the diabolic actions of political parties and their unprincipled stands for gains, aren’t we?

Varun vied the contents of the notice and explained his position denying all the allegations. He contended that the CDs were doctored and what happened is a trial by media. As per the EC, Varun neither accepted nor rejected the contents of the speech, which became a crucial basis of the order of the Commission.

The Commission could not find any merit in the explanation of Varun. EC came down hard on the content of the speech and observed that expressions of this nature are pernicious as also contemptuous of the Constitutional ideals of secularism and democracy. The Commission co-opted the views of the SC of India in cases where such rhetoric has been the issue. (Ziauddin Burhanuddin Bukhari v Brijmohan Ramdass Mehra AIR 1975 SC, Abdul Hussain Mir Vs. Shamsul Huda AIR 1975 SC 1612 and Ramesh Yeshwant Prabhoo Vs.Prabhakar Kashinath Kunte and Others (1996) 1 SCC 130)

Being conscious of the limitations of the powers and the present position of law the Commission advised the party not to field Varun as a candidate. EC condemned the actions of Varun and censured him. Commission had already taken initiative to register criminal cases under IPC and R.P Act. The Commission directed the UP government to investigate and proceed in these matters with swiftness and alacrity. In the light of explanation tendered by BJP the Commission expressed its expectation that the party will not nominate Varun as its candidate.

(To be continued)

Election Law

Right to get registered as a voter

The Hindu of today carry a news - First time and legal - about the National Law School of India University, Bangalore (NLSIU) students successfully registering themselves as voters. Kudos to all who worked for it.

Thought, this could be an occasion to educate ourselves about the legal processes of registering as a voter. The right to be registered as a voter flows from Article 326 of the Constitution of India. This right is extended to every citizen of India who is not less than 18 years of age and not otherwise disqualified by any law made by the legislatures in this aspect. The disqualifications are non- residence, unsoundness of mind, for committing crime,corrupt or illegal practices.

There exists plenty of literature, both academic and case laws, which has debated the nature of the right to vote. The three competing categories to pigeon hole this right are; fundamental right, constitutional right or statutory right. The judiciary in India seems to have put an end to the debate by holding that the right to vote is a creature of the statute and hence a statutory right. Despite this the other line of argument is alive that democracy is basic feature of the Constitution and the right to democratic governance make the right to vote an inevitable fundamental right. The constitutional prescription of 'adult suffrage' in Art. 326 makes it at least a constitutional right if not a fundamental right for some ohters.

The right to register as a voter, qualifications and disqualifications thereof and the process of registering oneself as a voter is scattered in two different but related laws, besides the Constitution . The Representation of People Act, 1950 (R.P Act)and The Registration of Electoral Rules, 1960 are those relevant laws. Part III of the R.P Act contains the provisions about the qualifications and disqualifications to register oneself as a voter. Section 19 of the R.P Act prescribes the conditions for registration. Age and residency are the two criteria to be considered.

The aspect of 'ordinary residency' is the one which has always been contested, especially in the case of students who live for a long duration in hostels or otherwise in places other than their permanent residence. Section 20 of the Act explains ordinary residence and seems to suggest that it is your stay in a place for a considerable period that matters. This section provides for the scope of registration in specific instances of persons in service, elected representatives etc. What one need to be reminded of here is that a person is prohibited to have his/her name registered in more than one constituency or more than once in a constituency. (Sections 17 and 18)

Part I of the Registration of Electors Rules 1960 (Rules), details the process of getting oneself registered as a voter. A person desirous of registering oneself as voter is to submit an application in Form 6 (attached to the Rules) to the designated Electoral Registration Officer. In case the person is already registered as a voter elsewhere that can be deleted therefrom for which the application is to be submitted in Form No. 8A. The decision of the Electoral Registration Officer is appealable ( Rule 27) to the Chief Electoral Officer within 15 days from the date of the order appealed against.

It is heartening to know that the students of NLSIU have taken the initiative to get themselves registered as voters. Casting vote is an important element of active participation in the political process of the country. This becomes special against the background of the fear expressed by many about the apathy of the young educated towards politics and political processes.

Review Article

Legal implications of hate speech in the milieu of elections – Part I

A secular nation can ill afford elections fought on communal lines. The constitution and statute makers were well aware of it and have made provisions in law to curb the menace. Recently, Varun Gandhi is in light for violation of the same. The order of the EC may be seen here.

This piece is an attempt to map the legal implications of hate speech in the locale of elections and to raise certain concerns.

The archangel, the Constitution of India, declares India to be a secular nation. Two streams of law deal with this issue: Indian Penal Code and the Representation of People Act, 1951(R. P Act). Beside these, Model Code of Conduct (MCC) is also relevant while mapping the legal framework. A number of judicial decisions have interpreted and applied these laws, and therefore these too become relevant for the discussion.

R.P Act

The R.P Act classifies condemnable acts during elections into two categories; corrupt practices and electoral offences. Appeal in the name of religion, caste, community or language is a corrupt practice as per section 123 (3) and promotion or attempt to promote enmity and hatred amongst different groups of people is both a corrupt practice [S. 123 (3A)] and an electoral offence [S. 125]. Corrupt practices attracts only the actions of the candidate whereas electoral offences could be committed by ‘any one’.

Finding of commission of corrupt practices will result in disqualification for being a member of the House. Electoral offence will attract penal consequence to the extent of imprisonment for 3 years or fine or both. Section 8 (1) (i) mandate for disqualification for a period of 6 years if punished with only fine or the period of imprisonment plus 6 years, in case punishment involves incarceration.

Indian Penal Code.

Though IPC has a specific chapter on offences relating to elections (chapter IX A), hate speech do not figure in there. The offence and punishment for inflammatory speeches are in Sections 153A, 295A and 505 (2). The punishment ranges from 2 years to 3 years imprisonment and/or with fine.

Incidentally, if the person is found guilty under sections 153 A and 505 (2), minimum of 6 years disqualification will be the result (section 8 (1) (i) and (ii)). If the verdict is for imprisonment for two years under section 295, the disqualification will run for 6 years from release according to section 8 (3) of R.P Act.

Consequences of disqualification

Disqualification have two consequences as per section 7 (b) of the R. P Act. One; being ineligible to contest the election and the other; being ineligible to continue as a member, if already elected. The disqualification of an elected member on the ground of corrupt practice is governed by section 8A of the R.P Act.

Model Code of Conduct

The weak limb in the legal stratum is the MCC. The MCC is not a legislation but is a guideline by the Election Commission (EC). This code draws its legitimacy from Article 324 of the constitution, which vests the power of superintendence, direction and power of conduct of elections with the EC. The fact that MCC bears the endorsement of almost all major political parties is a relevant aspect, though weak in legal tenability.

The EC has the track record of cancelling elections for violation of MCC. Cancellation of bye-election of Kalka constituency of Haryana State Legislature in 1993, Ranipet constituency bye- election to Tamil Nadu State Assembly in 1993. . There are also instances of Chief Ministers reimbursing aircraft charges based on the direction of EC due to violation of MCC (see, S.K Mendiratta, How India Votes: Election Laws, Practice and Procedure (2nd ed.), LexisNexis Butterworths, 2006, 633-643). There are a number of orders passed by the EC for contravention of MCC, the order mentioned earlier against Feroz Varun Gandhi being the latest.

The general conduct guideline in MCC categorically prohibits insinuatory speeches in segregatory planks. The guideline is applicable both to the parties and the candidates.

The MCC becomes operational from the date of announcement of election schedule, (UOI v. Harbans Singh Jalal. Date of Judgment 06-04-01) which in the 2009 general elections is 2/3/2009.

(To be continued)