There are two fallacies in this formulation. One, ballot boxes are not of any use unless citizens, actually cast their votes into the ballot boxes. The other fallacy is about the people elected by those ballot boxes. What type of people are they? Data shows the number of MPs in the Lok Sabha with criminal cases against them has been growing. The Association for Democratic Reforms (ADR) collected this data from the self-sworn affidavits of candidates contesting elections to the Lok Sabha in compliance with decisions of the Supreme Court of India in 2002 and 2003.

Readers can judge the quality of “the people who are elected by those ballot boxes” from this table:

So, what’s new, you might ask? Till the year 2004, voters had no way of knowing what “type” of people they were casting their votes for in the “ballot boxes”. This was because of a specific provision in law that permitted a sitting legislator, convicted in a criminal case, to continue to be in that position and contest further elections, whereas a  common citizen was barred from contesting elections for six years if convicted in a criminal case. But we are getting ahead of our story.

HOW IT ALL BEGAN

Around 1998-99, there were a lot of media reports about people with pending criminal cases against them contesting elections and getting elected. Around the same time, in May 1999, the Law Commission of India submitted its 170th report,  Reforms of the Electoral Laws. In a comprehensive review of all the electoral laws one of the recommendations of the commission was:

“In the interest of transparency, we have also suggested provisions making it obligatory upon every candidate to declare the assets possessed by him or her or by his/her spouse and dependent relations and the particulars regarding criminal cases pending against him/her, in the nomination paper itself.”

A group of public-spirited persons decided to file a Public Interest Litigation (PIL) in the Delhi High Court in December 1999, requesting the implementation of the above recommendation. The Delhi High Court, in a decision on November 2, 2000, upheld the petition and directed the Election Commission of India (ECI) to collect and make the necessary information available to voters.

The Union of India  (UoI) filed an appeal in the Supreme Court against the Delhi High Court’s decision. Several political parties became interveners in the case, in support of the stand of the UoI, opposing the Delhi High Court decision.

The Supreme Court  gave its judgement on May 2, 2002, upholding the High Court judgement, and directed the ECI to get  information on a sworn affidavit from each candidate seeking election to Parliament or the state legislature, as a necessary part of his nomination paper, on the criminal, financial and educational antecedents of the candidate.

The ECI’s implementation of these directions made the entire political establishment very unhappy.  In an all-party meeting on July 7, 2002, it was unanimously decided that the Supreme Court’s decision and the consequent order of the ECI would not be allowed to be implemented, and the Representation of the People Act, 1951 (RP Act), would be amended, in that very session of Parliament if necessary, to nullify the Supreme Court’s decision and the ECI order.

A bill to amend the RP Act was accordingly prepared but it could not be introduced in Parliament as the Lok Sabha was adjourned sine die.  The government then decided to issue an ordinance.

Given that the draft of the ordinance seemed to be prima facie unconstitutional, about 30 civil society representatives met the President and cautioned him about it. When the ordinance was sent to the President, he “returned” it. The Cabinet, however, sent it to the President again and he had to sign it following established convention. The Supreme Court’s decision of May 2, 2002, thus stood nullified.

The struggle did not end here. Three PILs were filed in the Supreme Court challenging the amendment of the RP Act. All three petitioners were civil society organisations: Association for Democratic Reforms, People’s Union for Civil Rights and Lok Satta.

The Supreme Court gave its judgment on March 13, 2003, holding that the amendment of the RP Act was unconstitutional and null and void. It restored the Supreme Court judgment of May 2, 2002, saying it had “attained finality” and that there shall be no appeal against that judgment.

This effort, from 1999 to 2003, is what enabled voters/citizens to know what type of people were “elected by those ballot boxes” and laws made by whom are the “quintessence of democracy”.

THE AFTERMATH

Yet the number of tainted MPs in Lok Sabha has consistently risen over the last four general elections! So, what impact has all this effort had?  On the face of it, the proportion of people with criminal cases pending against them in the Lok Sabha has increased. But if one goes into some details of the electoral process, it is revealed that most of the reasons for this increase can be found in the laws made by the people who are elected by those ballot boxes!

Further, the root of all these mysterious outcomes lies in an institution called “political parties”. What political parties in India are, and what they should be, is best described in the following paragraph of the 170th Report of the Law Commission of India:

“If democracy and accountability constitute the core of our constitutional system, the same concepts must also apply to and bind the political parties which are integral to parliamentary democracy.  It is the political parties that form the government, man the Parliament and run the governance of the country.  It is, therefore, necessary to introduce internal democracy, financial transparency and accountability in the working of the political parties.  A political party which does not respect democratic principles in its internal working cannot be expected to respect those principles in the governance of the country.  It cannot be a dictatorship internally and democratic in its functioning outside.”

The National Commission to Review the Working of the Constitution (NCRWC) chaired by the former Chief Justice of India, Justice M.N. Venkatachaliah, in its report submitted on March 31, 2002, said:

“The Commission recommends that there should be a comprehensive legislation (may be named as the Political Parties [Registration and Regulation] Act), regulating the registration and functioning of political parties or alliances of parties in India.”

These recommendations were made in 1999 and in 2002, but it seems “the people who are elected by those ballot boxes” have not had the time or inclination to implement them.

SEVERAL INITIATIVES 

On the other hand civil society activists, or shall we call them ‘Fourth Generation Warriors’, have been trying to get exactly the same done.

The ADR requested a committee chaired by Justice M.N. Venkatachaliah, to draft a bill to regulate the functioning of political parties. This committee drafted what it called the Political Parties (Registration and Regulation of Affairs, etc.) Bill, 2011. This draft bill has been shared with all the major political parties but none has shown any inclination of taking it up.

In addition, several initiatives have been made by civil society groups to cleanse the electoral and political systems.  Some representative examples are listed below:

• In June 2013, the Central Information Commission (CIC), in response to an application by ADR and S.C. Agrawal, declared in a unanimous, full bench decision, that the six national parties — the BJP, INC, BSP, CPI, CPI(M) and NCP — are public authorities under the Right to Information (RTI) Act, 2005. All six parties refused to comply with the CIC’s order. In May 2015, the same petitioners filed a petition in the Supreme Court to implement the CIC’s order. The petition is still pending in the Supreme Court.
• In July 2013, the Supreme Court set aside clause 8(4) of the RP Act on petitions filed by Lily Thomas, a public-spirited Supreme Court lawyer, and Lok Prahari, a civil society group in Lucknow. As a result, sitting MPs and MLAs were barred from holding office on being convicted in a Court of Law.
• In September 2013, the Supreme Court ruled, in a PIL filed by the People’s Union for Civil Rights, that the right to register a “none of the above (NOTA)” vote in elections should apply and ordered the ECI to provide such a button in the Electronic Voting Machines (EVMs).
• Again, in September 2013, on a PIL filed by Resurgence India, another civil society group, the Supreme Court ruled that no columns or boxes should be left blank in affidavits filed as an essential part of the nomination papers, in terms of its judgment in the 2003 ADR case.
• In March 2014, the Delhi High Court in its judgement in a PIL filed by ADR, held that the BJP and the Congress were both guilty of accepting funds in violation of the Foreign Contribution (Regulation) Act, 1976 (FCRA 1976), and directed the Ministry of Home Affairs and the ECI that appropriate action under FCRA 1976 be taken against them within six months of the judgment. Both the parties first filed appeals in the Supreme Court and then withdrew them. In the meantime, the government amended the FCRA twice, once with retrospective effect, eight years after the Act being amended had ceased to exist! The matter is still sub judice.
• In September 2017, ADR and Common Cause, another civil society group, filed a PIL in the Supreme Court challenging the constitutional validity of the Electoral Bonds scheme introduced by the government, enabling anonymous donations to political parties, in any amount, by anyone (including Indian and foreign companies with branch offices in India).

In an interim order on April 12, 2019, the Supreme Court said that “the rival contentions give rise to weighty issues which have a tremendous bearing on the sanctity of the electoral process in the country. Such weighty issues would   require an in-depth hearing…”. But the learned judges of the Supreme Court have not had time to hear the petition till now, while elections continue to be held and unaccounted money keeps flowing.

The third highest functionary in the security establishment of the country seems to have a lot on his hands in dealing with Fourth Generation Warriors!

The article was originally published on Civil Society.

I sometimes wonder whether we can ever hope to realise the aspirations of our freedom fighters, who sacrificed so much to gain independence from colonial rule. Sadly, foreign domination has been replaced in some measure by our home grown oligarchy that possesses both “money power” and “muscle power”.
– Navin B Chawla, 16th Chief Election Commissioner (2017)

The 17th Lok Sabha elections were not only a resounding victory for the BJP but a victory for money and muscle power, with 43% (233) of elected MPs having declared criminal cases against them (an increase of 44% since 2009), 88% (475) MPs having assets worth Rs. 1 crore and more, and the average assets per winner being Rs 20.93 crore. Crime and money are seen ever so strongly linked with electoral success. According to ADR analysis, a candidate facing criminal charges had 15.5% chances of winning Lok Sabha 2019 elections against a 4.7% chance for a clean candidate. Speaking of winning based on assets, there were 21% chances of winning for crorepati candidates contesting elections against a 1% chance of candidates with assets below Rs 1 crore. This is the grim reality of world’s largest elections, popularly referred as the dance of democracy. One may then ask, ‘dance to whose tune?’

According to a Centre for Media Studies (CMS) study, a whopping Rs 55,000-60,000 crore is estimated to have been spent during the 2019 Parliamentary elections, making them the costliest elections ever. 40% or Rs 24,000 crore have been spent by candidates while parties spent an estimated Rs 20,000 crore (35%). On further analysis, we see that nearly Rs 100 crore were spent per Lok Sabha constituency which, on an average, comes down to Rs 700 per voter (India has approximately 900 million eligible voters).

Throughout the election campaign, media frequently reported about instances of money being spent and distributed to bribe voters. The Election Commission of India (ECI), beginning March 26, 2019, published seizure reports highlighting the amount of cash, liquor, drug/narcotics, precious metals, freebies etc. seized during the campaigning period each day. The total seizure reported by the ECI at the end of elections was a monstrous Rs 3475.76 crore (in contrast to Rs 299.943 crore seized in 2014 elections) with drugs/narcotics topping the list at Rs 1279.90 crore followed by precious metals (gold etc.) at Rs 987.11 crore. 10%-12% voters admitted receiving cash for votes, another two-third acknowledged that voters around them were also bribed. A considerable amount of the total poll expenditure is unaccounted cash which remains outside the purview of the formal system.

Moreover, as political strategizing and campaigning continues to become more sophisticated and competitive, we see crores being spent on political advertising, especially on social media, making it difficult to monitor the indirect expenditure with precision. These elections also witnessed the highest ever anonymous funding (through Electoral Bonds) in the months preceding the general elections; March and April 2019 accounted for purchase of bonds worth Rs 3622 crore – 62% of the total bonds purchased till date and 2.5 times the amount purchased in earlier phases.

While money has definitely grown in prominence, crime is not far behind. As elections grow costlier, so does the demand for wealthy candidates, and accompanying these candidates, are often their dubious reputations blurring the lines between the politician and the criminal. Despite the Supreme Court judgment of 2018 that mandated political parties and candidates to declare the criminal antecedents of every contesting candidate in print and electronic media, at least three times after filing the nomination, 159 MPs with declared serious criminal charges (an increase of 109% since 2009) have been elected to the 17th Lok Sabha.

The reality of tainted candidates fighting for political power is expansive across party lines. This was also true for elections this year. BJP and INC fielded 175 (40%) and 164 (39%) candidates with declared criminal cases respectively, while the proportion of such candidates fielded by CPI (M) and NCP was at 58% and 50% respectively. ADR reports define constituencies which have 3 or more candidates with criminal cases contesting elections as ‘Red Alert constituencies’. Interestingly, there were 265 (49%) such constituencies during Parliamentary elections 2019.

Evidently, crime and money remain the indomitable winners that continue to enjoy stranglehold on India’s electoral politics and solicit immediate attention. In the light of the above, it is very critical for an Indian voter to reflect upon the factors behind the continuing victory of the two ‘Ms’ and how their ever increasing role damages the democratic integrity of our elections. It is important to examine how sturdily these factors will continue to dominate in future.

A total of 1698 political parties are registered with the Election Commission of India, out of which only 464 parties contested the Lok Sabha 2014 elections. So, the important question is ‘why are there so many parties registered with the ECI when three-fourth of them do not even participate in elections, the basic purpose of a political party?’

All eyes are focussed on those political parties which have emerged winners in the recently concluded Lok Sabha elections. But what about hundreds of those political parties which stay registered with the Election Commission of India (ECI) but rarely contest? How many such parties exist and what do they do after getting registered?

According to the ECI notifications¹, as of 17^th April, 2014, there were a total of 1698 political parties registered with the Commission, out of which only 464 parties contested the Lok Sabha 2014 elections. A major chunk of 1,645 or about 97% of registered political parties are unrecognised parties (newly formed parties, those which have not secured enough percentage of votes to become a state party or those which have never contested). It is interesting to note that out of the 1,645 registered unrecognised parties, only 419² or 25% contested in the Lok Sabha elections, 2014.

To focus on a smaller number, about 52 parties got newly registered after the ECI announced the date of Lok Sabha elections (5^th March, 2014). But only 15 or 29% of these brand new parties contested in elections!

The scenario was not very different during the Lok Sabha elections in 2009. Out of 1,000 unrecognised parties³, only 322 or 32% contested⁴ in the General elections.

So, the important question is ‘why are there so many parties registered with the ECI when three-fourth of them do not participate in the democratic process of the country?’

Political parties are completely exempted from paying Income Tax as long as they file their Income Tax returns to the IT Department and submit details of donations received above Rs 20,000 to the ECI, annually⁵. Even if the parties declare that they have not received any amount above Rs 20,000 from a single donor, they would still enjoy tax exemption. So, political parties that do not contest in elections can continue to collect donations and enjoy tax exemption.

A case study:

In 2013, Association for Democratic Reforms (ADR) had obtained a copy of the communication between the ECI and the Central Bureau of Direct Taxes (CBDT) dated 3^rd March, 2006, via an RTI application, regarding scrutiny of contributions reports of two unrecognised parties as their reports indicated “gross misuse of provisions of tax exemption”.

ECI had, in 2007, held meetings with the CBDT regarding enquiry in the case of contribution reports submitted by a few unrecognised parties which were suspicious. Rashtriya Vikas Party, an unrecognised political party, during the Financial Year 2005-06, had declared cash donations amounting to Rs 40 lakhs and a firm had shown contribution of Rs 2 crores in 3 transactions and was hence taken up for scrutiny by the CBDT. The party was told to produce books of accounts and other documents to enable to Assessing Officer (AO) to deduce its income. As the party failed to produce these books stating they have been lost during transportation, CBDT disallowed tax exemption and initiated penalty under IT Act for concealment of income. Also, the jurisdictional AO reported that probability went against the firm having made Rs 40 lakhs of cash donation to the said party.

In the second case, Parmarth Party (currently named Matra Bhakt Party) had declared contributions amounting to Rs 96.43 lakhs for FY 2003-04 and Rs 47.28 for FY 2004-05. The donations report was forwarded to the CBDT to verify the genuineness of the donations. Though the donations were reported to have come from donors assessed to tax, the party’s political activities were surveyed under section 133A of the IT Act. There was no evidence of any political activity being carried out, observed. It was also seen that the contributions to Parmarth Party were being utilized towards investment in shares, loans and advances, jewellery etc. it was also noticed from bank statements that loans and advances were given to trading and business concerns. As no books of accounts or documents were made available despite multiple visits to the party’s office premises, further enquiries into the genuineness of the claims were initiated by the CBDT.

According to the above mentioned communication, the ECI had “time and again written to Hon’ble Prime Minister and the Law Ministry for empowering the Commission in matters regulating the registration and de-registration of political parties and the need of amendment in the law connected therewith but no action has been taken in this regard so far”.

Fate of parties not contesting for more than 6 years:

In 1999, the ECI had issued notices to more than 200 political parties which were registered till 1995 but failed to contest in any elections. Notices to those parties which were returned undelivered parties or parties which failed to respond to these notices were deleted from the list of registered parties, which added up to 150 parties. The same exercise was repeated in 2008 for 220 parties registered till 2000 but failed to contest in elections between 1999 and 2004. Due to lack of man power, the exercise could not be completed by the ECI.

The exercise should continue to weed out any political parties which do not contest in any election for more than 5 years and also as a means to strengthen the registration process.

Conclusion:

From the above case studies, it can be concluded that a number of political parties are being formed as legal entities to ostensibly receive voluntary contribution and evade taxes but not contest in elections. More importantly, Sections 29B and 29C of RPA and the Income Tax Act do not place any condition regarding contesting of election for collecting donations. Thus the above mentioned laws are prone to gross misuse. There is a dire need to look into the proposals of the ECI regarding regulation of registration of political parties so that such blatant misuse of law by those entities which were created to form laws, does not continue.

References:

1. http://eci.nic.in/eci_main1/PolPar/ListofPolParties.aspx
2. http://eci.nic.in/eci_main1/GE2014/ge.html
3. http://eci.nic.in/eci_main/ElectoralLaws/OrdersNotifications/symbols170309.pdf
4. http://eci.nic.in/eci_main/archiveofge2009/Stats/VOLI/02_ListOfPoliticalPartiesParticipated.pdf
5. http://lawmin.nic.in/legislative/election/volume%201/representation%20of%20the%20people%20act,%201951.pdf