“The election commission (EC) has been a part of the journey of our republic since its very inception. It has been working with great responsibility from election to election and contributing to taking the nation forward step by step, from one destination to another, from strength to strength and bringing stability to our democratic system. We can be justifiably proud that free and fair elections have been held with regularity in our country in the last six decades. India and democracy have become intertwined concepts and it is hard to imagine one without the other. Democracy, the very essence of our constitution, has become our nation’s identity.
…
As it should, the EC has been making every effort to create a level-playing field between various candidates and has earned the reputation of strictly and impartially monitoring activities of candidates in constituencies through its election observers. The EC has always been willing to use technology for modernisation and for the better conduct of elections. In this context, over the years, several measures have been taken such as computerisation of electoral rolls and photo identity cards for voters.
…
Thus, not only has the EC helped strengthen democracy at home, but also helped enhance the prestige of India’s institutional mechanisms. It is for these reasons that the EC has been called upon often, to share its experiences about the conduct of elections with other countries.
…
In the end, I once again extend my felicitations to the EC, for their achievements in the 60 years of their existence. I am confident that the electoral process and democracy in India will continue to be strong and vibrant.”
Pratibha Devisingh Patil, then president
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“To fulfill its mandate the EC has been adapting itself in a remarkable fashion to changes in society, polity and technology.
…
It was said in the constituent assembly of India that democracy was only a top dressing on an Indian soil that was essentially undemocratic. The EC deserves the nation’s appreciation and gratitude for making our soil more fertile for the seed of democracy.
Hamid Ansari, vice president
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“The EC is one of the pillars of Indian democracy. In the past 60 years, it has acquitted itself exceptionally well in the onerous task of conducting elections to our parliament and to the state legislatures.
…
The EC has also been quick in keeping itself abreast of technological changes and in introducing improvements in the electoral process. Electoral rolls are not printed anymore; they are computerised. A large proportion of our voters have voter identity cards, proceedings in sensitive polling booths are video-graphed, political parties have free time on national television. Ballot papers and ballot boxes have been replaced by electronic voting machines. Results now get declared in one day. Each of these changes was, in some sense, a breakthrough. These improvements have contributed not only to the speedy conduct of elections but also to enhancing the transparency and credibility of the whole electoral process. I once again compliment the EC and all those who are associated with the good work it has done all these years.
…
Once again, I would like to wish the EC all the best in its endeavours. I am sure that the commission will continue to serve our nation with commitment and honour, as it has done in the past.”
Manmohan Singh, prime minister
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These are the words of the three highest functionaries of the government of India on the occasion of the diamond jubilee celebrations of the EC on January 25, 2010. What about the deeds? Let us start with the latest. A “deputy secretary to the government of India, ministry of law & justice, legislative department” submitted an affidavit in the supreme court on March 13 in an ongoing case known as Ashok Shankarrao Chavan versus Madavrao Kinhalkar and others, special leave petition (C) No. 29,882 of 2011. The operative paragraph of the affidavit reads as follows: “That I am advised to say that a plain reading of section 10A of the Representation of People Act, 1951 [RP Act] and Rule 89 of the Conduct of Election Rules, 1961 indicates that power of the EC to disqualify a person arises only in the event of failure to lodge an account of election expenses and not for any other reasons including the correctness or otherwise of such accounts.”

On the face of it, this sounds very innocuous; but read what a former chief election commissioner (CEC) writes about it: “Politicians everywhere are known to indulge in doublespeak and our politicians are no exception. But some recent pronouncements of our law minister only show that our politicians may have very few serious rivals in this sport. Not long ago, the minister was all praise for the election commission of India’s real-time and effective monitoring of election expenses. Now the same minister has told the supreme court that the EC is not concerned with the correctness or otherwise of the account of election expenses submitted by a candidate. In other words, the government wants the commission to do an outstanding non-job!” (N Gopalaswami, ‘Doublespeak on electoral reforms’, The Hindu, April 16).

Analysing the issue in depth, he goes on to say, “Whatever the reason, it is clear that in advancing this plea and trying to whittle down the powers of the EC, the government, contrary to its oft-repeated vehement concerns and commitment to curb money power and paid news in elections, is actually intent on perpetuating the same by making the EC powerless to act even when the submitted accounts of election expenses are absurd in the extreme. That political parties and politicians are reluctant to initiate any electoral reform is no longer a secret. But a government working to undermine the EC is the news now or a ‘scandal’ as The Hindu editorial called it.”

Why would a person who headed the EC from June 30, 2006 to April 20, 2009 be so harsh in his assessment? Let us look at the facts.

The EC, acting on a complaint that Ashok Chavan, the then chief minister of Maharashtra, had indulged in ‘paid news’ during the 2009 elections to the state assembly (that is, he had paid some newspapers to publish good things about him), but had not shown those monies in the statement of his election expenses that he submitted to the EC, had issued a notice to Chavan that since he had filed an incorrect statement of expenses, he is liable to be disqualified and his election was liable to be set aside under section 10A of the RP Act.

Section 10A reads as follows: “If the EC 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 EC 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.”

It is true that the ‘letter of the law’ of section 10A says that the EC can disqualify a candidate if s/he does not “lodge an account of election expenses within the time and in the manner required by or under this Act; and … has no good reason or justification for the failure (to lodge the account)” but is the ‘letter of the law’ the only thing about a law, or is there something called the ‘spirit of the law’ too? No less an institution than the supreme court seems to think there is.

Spirit of the law
Two appeals were filed in the supreme court against the judgment and order of the high court of Karnataka, announced on September 27, 1991 in election petition No. 15 of 1990. The appeals pertained to the election held in November 1989 to the Nagamangala assembly constituency, where LR Shivaramagowda and TM Chandrashekar were among the candidates. The supreme court judgment is known as LR Shivaramagowda, etc. vs TM Chandrashekar etc. announced on December 1, 1998, and is cited as AIR 1999 SC 252. The bench dealt specifically with this very issue: whether section 10A authorises the EC to disqualify a person if s/he lodges an account within time but the account is not correct or fails to present the true and correct picture of the expenses. This is what the court said in para 22 of the judgment:

“Referring to Section 10(A) of the Act, which enables the EC to disqualify a person who had failed to lodge an account of election expenses within the time and in the manner required by or under the Act and had no good reason or justification for the failure, he (the lawyer) contended that the said Section provides only for a situation arising out of failure to lodge an account and not a situation arising from a failure to maintain true and correct accounts. We are unable to accept this contention. In our opinion, Sub-section (a) of Section 10(A) takes care of the situation inasmuch as it provides for lodging an account of election expenses in the manner required by or under the Act. Section 77(2) provides that the accounts shall contain such particulars as may be prescribed. Rule 86 of the conduct of Election Rules provides for the particulars to be set out in the account. The said Rule prescribes that a voucher shall be obtained for every item of expenditure and for lodging all vouchers along with the account of the election expenses. Rule 89 provides that the district election officer shall report to the EC the name of each contesting candidate, whether such candidate has lodged his account of election expenses and if so the date on which such account has been lodged and whether in his opinion such account has been lodged within the time and in the manner required by the Act and the rules. That Rule enables the election commission to decide whether a contesting candidate has failed to lodge his account of election expenses within the time and in the manner required by the Act after adopting the procedure mentioned therein. If an account is found to be incorrect or untrue by the EC after enquiry Under Rule 89, it could be held that the candidate had failed to lodge his account within the meaning of Section 10(A) and the election commission may disqualify the said person. Hence, we do not find any substance in the argument of learned counsel for the first respondent” (Emphasis added).

It seems unbelievable that the law ministry should be unaware of the decision of the supreme court on the very issue on which it was filing an affidavit to the same court!

Going back to the analysis of the affidavit of the government of India, Gopalaswami goes on to write, “If the EC’s powers are curbed, the whole activity of regulating election expenditure will come to a standstill with none having the authority to question and discipline the wrongdoers. If the government is aware of this, has thought about it, and has yet gone ahead to seek through its affidavit to the supreme court a ‘plain reading’ of the provisions of Section 10 A, a euphemism for negating the law laid down by the 1999 supreme court judgment, it is nothing but reprehensible” (emphasis added).

Gopalaswami, being a seasoned bureaucrat, is extremely careful in using the qualifier “if” about the government being “aware”, having “thought about it”, and “yet gone ahead”, but doubting the government’s awareness, thinking capacity, and decision-making capabilities does not come easily to me since I have the highest regard for the government’s deliberative capacity. I therefore have no doubt that the submission of this affidavit is a well thought-out action. I, of course, completely agree with Gopalaswami that “it is nothing but reprehensible”.

The sad part is that the election was held in October 2009 and the legal wrangling is still going on in April 2013 with not much hope of the matter being decided before five years are over in September 2014, and Ashok Chavan would have served his full term as an MLA. This is despite the fact that Section 86(7) of the RP Act specifically mentions: “Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the high court for trial.”

But is it the first, and the only, time that this kind of reprehensible action has taken place? Sadly, no. Let us recount some earlier instances.

Past precedents
The Delhi high court, responding to a public interest litigation by the Association for Democratic Reforms (ADR), ordered the ECI in November 2001 [2001 AIR (Del) 126] to collect affidavits from candidates contesting elections declaring their criminal, financial, and educational antecedents, and to disseminate the information contained therein. The EC had no objection or problem in doing that but the Union of India did. The Union of India filed a special leave petition (SLP) in the supreme court to prevent the EC from doing what the high court had ordered. When the supreme court upheld the decision of the high court, in judgment, (2002) 5 SCC 294, delivered on May 2, 2002, and the ECI issued Order No.3/ER/2002/JS-II/Vol-111, on June 28, 2002, to implement the supreme court’s judgment, the government of India got the president to issue an ordinance on August 24, 2002, to prevent the implementation of the supreme court’s judgment and the ECI’s orders.  It was only when the ordinance was challenged in the supreme court in writ petition (civil) No. 515 of 2002, and the supreme court declared it unconstitutional, “illegal, null and void” on March 13, 2003, that the submission of affidavits was accepted, and followed, by the government of India and the political parties.

This is not all. The then CEC, TS Krishnamurthy wrote a letter no. 3/ER/2004 to the PM, on July 5, 2004, detailing 22 proposals for electoral reforms. Part of what he wrote is as follows:

“My predecessors have been very regularly addressing the government in the last six years on different subjects requiring reform. Certain new issues obviously have come up based on the experiences gathered by us in the recent past.

“I enclose two sets of notes on areas of immediate concern to us in the commission requiring your urgent attention. In the first part, we have set out certain urgent proposals for electoral reforms in areas that have not been taken up in the past by the commission and which have arisen due to implementation of certain laws enacted or based on certain directions given by the supreme court and the high courts. In the second part, we reiterate some of the pending proposals that remain unresolved and which in no way are less important than the proposals in the first part.

“I, on behalf of the commission, would urge the government to give immediate consideration to these issues and if possible, undertake necessary legislation so that the same can be made effective well before the next tranche of legislative assembly elections due in some states.”

Guess what happened to the CEC’s letter? Not even an acknowledgement was received from the prime minister’s office (PMO)! A presumably frustrated EC put the letter and the proposals in public domain on July 30, 2004 in the form of a booklet (see eci.nic.in/eci_main/PROPOSED_ELECTORAL_REFORMS.pdf).

No transparency in party funding
There is of course more but let me give just two more recent examples.

It was reported in the print media on March 26, 2013 that the government had blocked the election commission’s move to make party funding more transparent. A closer look at this incident revealed the following.

The constitution has given, under Article 324, plenary powers to the EC for the superintendence, direction, and control of the conduct of all elections to parliament and the state legislatures. The detailed provisions are contained in the RP Act. The detailed procedures for conducting elections are laid down in the Conduct of Election (CoE) Rules, 1961 formulated and notified by the government of India under the RP Act.

The government of the day decided in 2003 that companies should be permitted to make donations to political parties. For this purpose, the RP Act was amended on September 11, 2003 by inserting Section 29B permitting a political party to receive “contributions voluntarily offered to it by any person or company other than a government company”. Simultaneously another section, 29C, was also added which required every political party to submit to the EC a statement of all donations above '20,000 “in such form as may be prescribed”. The law ministry prescribed Form 24A for such reports. The income tax law had been amended earlier, on April 1, 1979, by adding section 13A, saying that donations received by political parties were 100 percent exempt from income tax.

ADR filed an application under the RTI Act on February 28, 2007, seeking copies of income tax returns of various political parties. On the denial of the request in the original application and also the rejection of the first appeal, ADR filed a second appeal to the central information commission (CIC). The CIC in its order of April 29, 2008, permitted the tax returns of political parties to be made public.

Subsequently, using the RTI Act again, ADR obtained copies of the statement of donations received by political parties from the EC to which political parties have to submit these under Section 29C of the RP Act. A comparison of the total income of political parties as mentioned in their income tax returns with the donations received by them as reported in Form 24A revealed that the statement of donations accounted for only about 20 percent of the total income reported by political parties. The source of 80 percent of their income was unknown. Several parties claimed that this share comes through donations of less than '20,000, often in cash or through what is called “sale of coupons”, of which no record is kept.

When this came to the notice of the EC through press reports, it wrote to the law ministry on September 28, 2012, asking it to make Form 24A more transparent about contributions. The ministry’s response, on November 05, 2012, was that the EC had given “no compelling reasons” to necessitate such amendments. The EC responded on December 10, 2012, reminding the ministry that “the objective of filing contribution reports is to bring transparency in the funds received”. EC also pointed out that the proposed modifications would make political funding more comprehensible to citizens. One of the suggested modifications was that the total funds received by political parties be also declared, not just those received in tranches of more than '20,000.
The ministry responded after more than two months, on February 18, 2013, reproducing clauses (a) and (b) of subsection 1 of Section 29C of the RP Act, and saying, “In view of the said provision proposed at Sl. No. 6(b) of Part-A of the proposed Form 24A is not in conformity with the aforesaid provision. The aforesaid issue was discussed with the officers of ECI on February 13, 2013 and they were (sic) agreed to get the matter reexamined and relooked and get back to this department. It is, therefore, requested that the issue may be reexamined and the considered view of the EC may be conveyed to the department at the earliest.”

“Sl. No. 6(b) of Part-A of the proposed Form 24A” requires the following information to be provided by political parties:
“(i) Total contributions received from all sources permissible under Section 29B of the RP Act,
(ii) Out of (i) above, total amount of contributions received in excess of '20,000 from a person or company as per Section 29C of the RP Act,
(iii) Out of (i) above, total amount received below '20,000 from a person or company.”
Each of the above is proposed to be provided under three heads, ‘Cash’, ‘Cheque/Draft/RTBS’, and ‘Total’.
As an explanation of why this is needed, the EC had stated the following in its letter of December 10, 2012:

“There is no scope in the existing format to provide for the total amount of contribution received by the political party during the year. Information only in respect of contributions exceeding '20,000 with names and addresses of such donors is provided to EC and this makes it difficult for reconciliation of the amount relating to the contributions received exceeding '20,000 and the total amount received. The proposed format provided for summary information about total amount of contributions received and the total amount of contributions exceeding '20,000 in the Part ‘A’ of the format. This will help the public to have a clear picture about the total contributions received by the political party and amount received from donors, making contributions, more than '20,000.”

The EC responded yet again, on March 26, 2013, countering the ministry’s letter of February 18, 2013, as follows:
“2. In this context, clauses (a) and (b) of sub-section (1) of Section 29C has been cited. I am directed to inform that if this is the only intention of the legislators, then there would not have been sub-section (2) which provides, ‘the report under sub-section shall be in such form as may be prescribed’ (Emphasis added). Moreover, sub-section (1) of Section 169 of RP Act, 1951 provides, ‘The central government may, after consulting the EC by notification in the official gazette, make rules for carrying out the purposes of this Act’ and in clause (aaa) of section 169 (2) further expands the scope while mentioning, ‘In particular, and without prejudice to the generality of the forgoing power, such rules may provide for all or any of the following matters, namely: – ... (aaa) the form of contribution report’. Therefore, the modification proposed by the commission are (sic) as per the law.
“3. I am further directed to inform that Section 29 was amended in the year 2003 to add Sections 29B and 29C and the statement of objects and reasons to the amendments as stated by the then law ministry is ‘The bill seeks to bring transparency in the funding of the political parties by the corporate sector and by other persons by streamlining and promoting the donations received by the political parties for elections by giving suitable tax-exemptions and withdrawal thereof in specified circumstances’. The existing form 24A does not serve the intended purpose of bringing transparency in the funding, as many political parties evade filing of contribution report inspite of raising contributions in crores. The apparent logic extended by such parties is that though they have raised amount in crores, all contributions are below '20,000 from any person. The existing form gives them a scope to evade compliance with the spirit behind the law, as it does not provide for total amount of contributions received by the political party. Therefore, for transparency of contributions received by the political parties, the total amount figure is necessary for the public to understand the contribution pattern in its totality. It is further informed that for clear understanding of the public, total amount of contribution received is very vital information, without which the contribution reports, as submitted by the political parties in the existing format is incomplete. The proposed modifications in para 6 (b) only asks for the total amount of contributions received and not the names and addresses of the donors, for corresponding total amount. Moreover, the heading of Section 29C of RP Act reads ‘declaration of donation received by political parties’ and the total donation figure is filed by political parties along with the income tax return before the income tax department, which is made available to the public under the RTI Act. Therefore it cannot be said that the proposed form is not in conformity with clauses (a) and (b) of section 29C (1) of the RP Act.”

The above details should make it clear to the reader whose heart lies where. Not unexpectedly, the law ministry is taking a narrow, legalistic view and is overlooking the broader purpose of the legislation. It would still be legalistic, but more progressive, if it initiated the process of amending Section 29C appropriately if in its opinion that was required. But the law ministry and the government do not appear to see anything wrong in 80 percent of the income of political parties being shrouded in mystery, even if that spreads scepticism about the way political parties function.

Gender and electoral reforms
The second recent example is from January, which has now been made poignant by the passing away of justice JS Verma on April 22. On January 23, 2013, the justice Verma committee released its report. It stated that electoral reforms were necessary “to the achievement of gender justice and the prevention of sexual offences against women”. It then made proposals in this regard, including stripping the legislature of persons who have criminal cases pending against them, proper scrutiny of affidavits, transparency of electoral and political funding. Soon after it was made public, the union law minister said the report would be referred to the law commission for its views and recommendations.

What the law minister did not seem to know was that the 170th report of the law commission titled “Reform of the Electoral Laws” has been with his ministry since May 1999 when it was submitted to one of his predecessors, Ram Jethmalani, under “D.O.  No.6(3)(35)/95-LC(LS)” of “29/05/99/09.06.99” by justice BP Jeevan Reddy, the then chairman of the law commission of India.

But then, if the law ministry can forget the supreme court ruling on the same issue that it submits an affidavit to the apex court, how can we expect the law minister to know what reports are lying with his ministry?

Since I quoted a former CEC in the first example of a “reprehensible” deed, let me end with another former CEC, SY Quraishi, who was personally involved in extensive and repeated discussions on electoral reforms with the then law minister, M Veerappa Moily, before Salman Khurshid replaced the latter. Quraishi wrote a letter to the PM on April 13, 2012, before demitting office on June 10. Some excerpts from the letter, accessed by filing an RTI application, given below exemplify the frustration of those trying to improve the electoral system in the country:

“Hence allow me sir, to place before you the commission’s deep disappointment over the fact that a necessary legislation in this regard is yet to be materialised despite an assurance given to us by the hon’ble minister of law and justice.”

“However, the quality of our elections often gets questioned on account of certain weaknesses in our electoral process. The commission’s reform proposals have always aimed at addressing this predicament. Though certain minor reforms have been adopted by government and parliament, the substantial ones have been actually left out allowing the allegations that politicians are not keen about the reforms because of their vested interest.”
“I would like to bring to your kind notice that some proposals which are of technical nature and require only amendment of rules within the competence of the ministry of law and justice, have also been pending for a long time. This raises questions about the lack of political will, which causes us deep distress”.

Of course, the very latest person to be frustrated in this saga of political and electoral reforms is our vice president who, in his capacity as the chairman of the Rajya Sabha, made some proposals that might have enabled the upper house to function with some semblance of normalcy. Sadly, but not unexpectedly, all the proposals were turned down by all the political parties!

What does all of the above mean? Making the smallest dent in the functioning of our electoral and political system is, and will remain, an uphill battle even for a constitutional authority such as the EC. It is a battle in which only the diehard and foolhardy should engage. But it is also a battle that cannot be given up if India has to function as a functioning democracy with a modicum of reasonable governance.