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255th Report of Law Commission of India on Electoral Reforms: An Overview

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Supreme Court of India (1978) statement gives us the bird’s eye view about the reforms needed in electoral system. Apex court stated “It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more.”[1]

Election Commission of India has to be strengthen and maintain purity in electoral process, regulating opinion polls and paid news, influence of money and criminal elements in Indian politics are the major issues that have plagued Indian electoral system over many decades. Many committees were set up to bring reforms in the electoral system in India, but they have failed till date as they were not followed by legislative actions. When a report was being made by the government in the 244th Report of Law Commission,[2] Supreme Court on 16 December 2013 had passed an order in Public Interest Foundation v. Union of India, W.P.(Civil) (536 of 2011)[3] and asked the Law commission to expedite consideration to give report on the 2 main issues relating to de-criminalisation of politics and disqualification for filing false affidavits by end of February 2014.

This present report is a second part of Commission’s work which seeks to examine issues relating to bring amendments to Constitution, RPA 1951 and to strengthen Electoral System. This present report has been formed as a result of the works of Ms Srijoni Sen, Ms Vrinda Bhandari, Ms Ritwika Sharma, Consultants to the Commission.[4]

Reforms relating to election funding, candidate and party expenditure also fall under electoral reforms.The main point proposed in Election Finance are reforms required and limits in candidate expenditure, disclosure obligation of individual candidates and political parties, penalties that can be imposed on political parties. Supreme Court in KanwarLal Gupta vs Amar Nath Chawla &Ors on (3 October, 1974)[5] has held that richer candidates and parties have greater chance of winning elections as money play an important part in the successful election campaign.

Under Section 77 of Representation of People’s Act changes recommended are that the period regulating election expenses should be extended by amending this section from date of notification of elections to date of declaration of results. The limit of candidate expenditure is between Rs 54-70 lakhs for parliamentary constituency and 20-28 lakh for assembly constituencies as per the Elections (Amendment) Rules 2014.[6]

Section 182(1) of Companies Act 2013 amendment needed is with regard to the passing of resolutions on the contributions from company’s funds to a political party should be made in company’s Annual General Meeting.[7]

Section 77A to be added in Representation of People’s Act which states that the candidates or election agents should maintain an account and disclose particulars of names, addresses and PAN card numbers of donors and amount they received as contribution.[8]

Section 78 also requires amendment with regard to District Election Officer to be available to public via website. Political parties should maintain annual accounts audited by a CA these accounts should clearly disclose the amounts received by the party and expenditure that they incurred which will be uploaded online for public inspection.[9] Section 29C should be deleted and replaced with New Section 29D and also Section 29E added where ECI should be made publicly available on website or file for public inspection of payment of prescribed fee. ECI’s transparency guidelines are prescribed. If a candidate fails to lodge an account of election expenses his disqualification period should extend from 3 to 5 year period as ineligible to contest next elections. Under Section 29G of Representation of People’s Act increases the penalty for noncompliance with the disclosure provisions is Rs 25,000.00 for each day of noncompliance and de-registration if default continues beyond 90 days. ECI can also levy fine up to Rs 50 lakhs if it finds any statement as being falsely given by any party.[10] Section 29I should be inserted to Representation of People’s Act regarding regulations of electoral trusts. Commission recommends that state funding of elections should be prohibited and alternatively use such amount on poverty reduction, health, education food etc.[11]

Commission also recommends amendments in Regulations of political parties and inner party democracy where a specific provision stating that party would not use violence for political gains, and avoid discrimination based on race, creed, caste, language or place of residence. Adding of Section 29J and 29Q which will deal with internal democracy, party constitutions, party organisation, internal elections, candidate selection, penalties for non-compliance, voting procedures, and ECI’s power to de-register a party for non-compliance and Section 29R to be inserted which provide for de-registration of political party to contest parliamentary elections for 10 consecutive years.[12]

Commission also recommends for proportional representation wherein it will follow a hybrid pattern combining elements of both direct and indirect elections which will increase the number of seats in Lok Sabha that help in effective functioning. Proportional Representation brings in Representativeness, stability and simplicity.[13] The recommendations of 170th Law Commission Report on proportional system can be examined by the government if it can be made workable in India.[14]

Law commission also recommends a suitable amendment to 10th Schedule of the constitution in relation to disqualification on the ground of defection by President or Governor instead of Speaker or Chairman along with ECI’s advice. The Supreme Court, in Rameshwar Prasad v. Union of India and Anr. (7 October 2005)[15] also remarked:“By the 91st Amendment, defection was made more difficult by deleting the provision which did not treat mass shifting of loyalty by one-third members as defection and by making defection altogether impermissible and only permitting merger of the parties in the manner provided in the Tenth Schedule.”[16] Commission further recommends to strengthen the ECI in matters relating to removability, appointment process of Election Commission and Chief Election Commission and creating a permanent independent Secretariat for ECI. Supreme Court in T.N. Seshan,CEC v Union of India (14 July, 1995) held that the CEC was not superior to the Election Commissioners.[17] Election Commission should be appointed by President consulting with 3 member selection committee of Prime Minister of India, Leader of Opposition of Lok Sabha, and Chief Justice of India. Article 324 should be added with a new sub-clause (2A) with regard to separate independent secretariat for ECI.

Representation of People’s Act should regulate the issue of paid news and political advertisements where in Definitions for Paying for News, Receiving payment for News, and Political Advertisement has to be inserted in Section 2 of the RPA. Undue influence as an electoral offence has been considered by the Commission after referring to the Shiv Kirpal Singh v. VV Giri (14 September 1970) where Court held that undue influence can be present at any state of elections.[18] Whoever is attached in these practices should be delineated by creating an electoral offence. Disclosure provisions should be made mandatory for all forms of media to curb the practice of disguised political advertisement.

Amendment to opinion polls is also recommended and expansion of the scope of Section 126(1) of RPA wherein amendment to be brought to prevent the publication, publicity, or dissemination of any elections matter by print. It should also provide for cognizance being taken via complaint or under authority from ECI or Chief Electoral Officer of the state. Regulation of opinion polls is necessary and public should get access to know the methods used in conduction of opinion polls and public should be made aware that opinion polls are just predictions are liable to error and these should be made by adding Section 126C and 126D in RPA.[19]

Law commission has not recommended to introduce compulsory voting in India being it undemocratic, illegitimate, expensive, unable to improve quality of awareness and also difficult to implement.[20] Reforms to be brought in relation to election petitions by introducing one or more election benches in each High Court which shall be exercised by a Single Judge in such jurisdiction but Chief justice can assign more judges if necessary. Presenting the election petitions has to be made simpler. Any trial of election petitions should be expedited and trial should end within 6 months from its presentation of petition. Order should be passed under Section 98 within 90 days from arguments. Section 98A included regarding collection of data by High court and uploading it on website.[21] Any appeals to SC must be on the basis of question of law. Security for costs is increased from Rs 2000 to Rs 10,000.

NOTA principle has been rejected by the Law Commission and has kept this issue for reconsideration again in the future.[22] With regard to right to recall Law Commission is not in favour of it, as it will lead to excess of democracy and ignores minority interest, increase instability and chaos, increases chances of misuse and abuse and it will be very expensive to implement.[23]

Commission also has considered the using of totaliser for counting votes recorded in electronic voting machine, and in which constituency and polling booths it should be used taking into consideration various factors and overall context of the elections. Commission has consider the recent Supreme Court order in PIL, Yogesh Gupta v ECI (16th January 2015)[24] and given its recommendations on the issue of totaliser for counting votes. Regulating and restricting government sponsored advertisements has been recommended by Commission to prevent the use of public money for party interest. Commission has recommended by adding a chapter VII B in Part V of Representation of People’s Act.

Amendment of Section (7) of the RPA has been recommended by Commission where the candidate should contest from only one constituency instead of 2 that is prevailing now. Commission also recommend that independent candidates should be disbarred from contesting elections as they increase the voter’s confusion and amend RPA Section 4 and 5 which should allow only political parties to contest LokSabha elections.[25] Introducing common electoral rolls for Parliamentary, Assembly and Local body elections is also recommended to save anenormous amount of time and effort by the commission.[26] It also recommends that Central Government has to inform the states in relation to this.

by Sushma Javare.

  1. Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, 424, at para 23 (http://judis.nic.in/supremecourt/imgs1.aspx?filename=5266) accessed on 12/03/2015.
  2. 244th Report, Law Commission of India,(http://lawcommissionofindia.nic.in/reports/report244.pdf) accessed on 12/03/2015
  3. Public Interest Foundation v. Union of India, W.P.(Civil) (536 of 2011) (http://lawcommissionofindia.nic.in/reports/Report255.pdf) accessed on 12/03/2015.
  4. Law commission Report 255 (http://lawcommissionofindia.nic.in/reports/Report255.pdf) accessed on 12/03/2015.
  5. Id at 7.
  6. Id at 12
  7. Id at 18.
  8. Id at60.
  9. Id at 48.
  10. Id at 51.
  11. Id at 57.
  12. Id at 79
  13. Id at 83
  14. Id at 88
  15. Rameshwar Prasad v. Union of Indiaand Anr 7th October 2005, (http://judis.nic.in/supremecourt/imgs1.aspx?filename=30237) accessed on 12/03/2015.
  16. Supra note 4 at p. 97 (http://lawcommissionofindia.nic.in/reports/Report255.pdf )accessed on 12/03/2015
  17. T.N. Seshan,Chief Election Commission v Union of India , 14th July, 1995, (http://judis.nic.in/supremecourt/imgs1.aspx?filename=10707) accessed on 13/03/2015.
  18. Shiv Kirpal Singh v. VV Giri , 14th  September 1970, (http://judis.nic.in/supremecourt/imgs1.aspx?filename=1330) accessed on 13/03/2015
  19. Supra note at p. 153
  20. Id at 169
  21. Id at 187
  22. Id at 194
  23. Id at 200.
  24. Yogesh Gupta v ECI, SC Order regarding recommendation on Electoral Reforms dated 16th January 2015 and SC Order regarding Totaliser in Electronic Voting Machines  dated 8th September 2014
  25. Id at 211.
  26. Id at 212.