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© 2012 Sanjeev Sabhlok's revolutionary blog
I had sent this article to TOI for publication more than a month ago, but have not received a response. Therefore, I'm publishing it here, and may consider a shorter version for some newspaper in the future.
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India suffers from misgovernance and corruption. Both go hand in hand. The fact that the middle class is now rising against these issues presents an opportunity, but the populist nature of proposed reforms is sure to disappoint.
Implementing a Lok Pal is unlikely to have any noticeable impact on corruption. Under the current institutional circumstances, it is quite possible that this institution may itself become mired in corruption and misgovernance.
So what to do? My thirty years of policy specialisation suggests that India can benefit from three simple reforms, which relate to the better design and operation of the electoral system.
First, a brief background. In December 2000, I walked out of my large government bungalow in Shillong and left the Indian Administrative Service. Given the effort involved in getting into this job, you might well ask why.
It had long become apparent to me that corruption was being driven from the top, by which I mean the top (no exception). Politicians had corroded and corrupted India's steel frame. While the steel frame still held India together, it had become very, very rusty.
After nearly two decades I had reached the point when I could no longer vouch for the integrity of all my colleagues (and I’m not paranoid). The corridors of government had become a place of ill-repute. I could no longer continue to “report” to such scoundrels for the rest of my career. Working as a pimp would be more honorable than working in the IAS. I was willing to pay the price of self-respect. I left.
The point is this, that we need to stop the continuous flow of criminals into our political system. We must drain the pond. But in doing so we must never lose respect for the law. The principles of natural justice are not negotiable.
Someone not yet convicted of a major crime should not be prevented from entering parliament. (In any event, if we try to do so, criminals will put up dummy candidates – most likely their spouse or child – anyway.)
The (Swami Aiyar) solution to this problem is to fast track the trials of newly elected MPs with criminal cases. Such cases should be be given top priority and heard without break until completed. The Election Commission could be charged with this task.
No doubt, the Commission has no powers to prosecute ordinary criminals, but it has a responsibility to ensure that heinous criminals do not function as our MPs. The Commission should work closely with the Supreme Court to design a process that achieves this goal. A pinch of money (say, Rs. 20 crores) can be given to the Commission to facilitate this task by overcoming resource gaps in the judicial system.
Second, we must vigorously encourage honest people to enter politics. While electoral expenditure is not the only determinant of electoral success, it remains a major contributor. Good people (who, by definition, do not have access to black money) are defeated even before they start by corrupt scoundrels who out-spend them in a ratio of 1 to 100.
We can’t just keep complaining about this. We must address this huge injustice. Fortunately, the solution is quite simple. All candidates should pay a high deposit, but then be reimbursed Rs.15 per valid vote cast. Good candidates will be able to borrow money to help spread their message and even though the bad guys will outspend them, at least the good guys won’t end up losing big money if they lose the election.
State funding of elections on these lines has a proven track record of success in countries like Australia. It not only makes eminent sense to implement this in India’s case, it is also easy to implement. (I speak from extensive experience in conducting, organising, and observing Indian elections.)
The third reform would be to strengthen electoral expenditure audits and relevant punishment.
Today, almost all our politicians enter parliament as liars, having falsified their electoral expenditure accounts.
While the concept of electoral expense limits violates freedom of speech, if we must have these limits then they must be enforced. Punishments for non-compliance must also be significantly increased. I am glad that the Election Commission has started taking this task seriously, but there is enormous scope to improve this aspect of elections.
The Commission must send out an army of observers to record election expenses (through videocameras/ photographs) and a large team of auditors to match observed expenditure with declared expense. The fear of God must be put into our shameless, lying politicians.
These simple reforms will dramatically reduce corruption and significantly improve the quality of MPs and hence the quality of governance in India. While these do not constitute the magic bullet that India is looking for, they come close.
While some of us are working on a package of electoral reform proposals, it would be useful to be aware of the range of suggestions made by various learned organisations/ personalities.
The list on ADR's website is provided below:
To prepare for these consultations a background paper has been created on electoral reforms. The paper can be downloaded from the given link Click HereAlso put together below are various government committees in the past who have taken up the issue of electoral reforms. The reports prepared by these committees and recommendations made by them have been put together in the background paper mentioned above.
- The Second Administrative Reforms Commission (2008) - Click Here
- Election Commission of India – Proposed Electoral Reforms (2004) Click Here
- National Commission to review the Working of the Constitution (2001) - Click Here
- Law Commission Report on Reform of the Electoral Laws (1999) Click Here
- Vohra Committee Report (1993) Click Here
- Indrajit Gupta Committee on State Funding of Elections (1998) Click Here
- Goswami Committee on Electrol Reforms (1990)
ADR and NEW has prepared a document containing its recommendations for electoral and political reforms. To download Click HereLaw Commission' draft for amendments to the Representation of People Act, titled 'Organisation of Political Parties and matters incidental thereto'. To downloadClick HereDraft of Political Parties (Registration and Regulation of Affairs, etc.) Act, 2011, prepared by committee headed by Justice M.N. Venkatachalaih, former Chief Justice of the Supreme Court of India, and the Chairman of the National Commission to Review the Working of the Constitution, 2001. To download Click Here
In addition, I've come across a reform proposal from Swami Aiyar to fast track criminal justice for MPs and MLAs. If you know of any others, please let me know.
Of course, my suggested reforms are outlined in BFN, chapters 4,6, and in blog posts such as these:
- First step in removal of corruption: State funding of elections
- The 'right to reject' is NOT a reform, but an act of irresponsibility
Found these additional ideas:
http://rajan-c-mathew.blogspot.com.au/2012/01/electoral-reforms-for-india-some.html
On a lighter note I'm presenting below the electoral reforms proposed by India's navratan, in my view the greatest comedian and satiricist alive today: who else but Jaspal Bhatti.
Mark Twain would have been hard pressed to rise to the heights of Jaspal Bhatti.
The Chief Electoral OfficerPunjabChandigarhSub: Allowing Mudslinging & Character Assassination in Election CampaignsMadam,It is my suggestion that the Election Commission should not take notice if the rival candidates stoop to mudslinging and even character assassination to some extent. It has the following advantages1. It helps the voter to make up their mind in choosing the candidate who is less corrupt than others. Sometimes choice becomes difficult when two rival candidates are looters of the same level.2. When candidates dig each other’s scandals it provides entertainment to the public and they get involved in the democratic process with greater interest.3. It gives color to the otherwise dry elections.4. It is only election days when those misdeeds and secret properties of the candidates surface naturally before public which otherwise are hard to dig out even by CBI and intelligence bureau.5. Media should in fact offer subsidized rates to those ads in which lampooning of the candidates are done by their rival candidates and parties.6. Cartoons and parodies featuring kaka ji, maharaja or dissidents running from party to party should be in fact encouraged. It evokes creativity of the artists, writers and singers.
Long ago I came across Bhatti's work through Ulta Pulta. He has, in the meanwhile, scaled formidable heights of understated satire. A genius par excellence who can subtly twist the surface reality to calmly demonstrate India's underbelly.
I came across one of his movies today (Shahji ki advice) and would encourage you to watch it. It reminded me (somewhat) of my own life as honest officer (in his movie the honest man is treated as a dunce by the society). I was reminded also of a senior IPS officer from Haryana who (seriously) wrote a book poking fun at honest officers and questioning their sanity.
As vegetable prices go up, Jaspal Bhatti gifts his wife a necklace
I'm posting ECI's proposed electoral reforms below, and will analyse these separately.
Important Electoral Reforms proposed by the Election Commission1. De-criminalization of politics
- For preventing persons with criminal background from becoming legislators, the Commission has made a proposal for disqualifying (from contesting election) aperson against whom charges have been framed by a Court for an offence punishable by imprisonment of 5 years or more.
- Under the existing law (Section-8, ROP Act, 51) there is a disqualification once a person is convicted and sentenced to imprisonment of two years or more (in the case of certain offences mentioned in sub-sections (1) of Section-8, conviction itself leads to disqualification, even without any sentence of imprisonment). The Commission's proposal is for disqualification even prior to conviction, provided the court has framed charges.
- As a precaution against foisting false cases on the eve of election, it has been suggested that only those cases in which charges are framed six months prior toan election should be taken into account for that election.
2. Political parties reforms
- The Commission has suggested that legal provisions be made to regulate the functioning of political parties and the Commission should be empowered toregulate registration as well as de-registration of political parties.
- The political parties should be legally required to get their accounts audited annually. The audited accounts should be put in public domain. There should be transparency in the fund raising and expenditure of political parties.
- Income tax exemption for donations should be given only for those political parties which contest election and win seats in the Parliament/State Legislature.
3. Misuse of religion for electoral gain
- A Bill was introduced in the Lok Sabha in 1994 [R.P. (second amendment) Bill,1994], whereby an amendment was proposed providing for provision to question before a High Court, acts of misuse of religion by political parties. The Bill lapsed on the dissolution of the Lok Sabha in 1996. The Commission has proposed that the provision in that Bill should be considered again.
4. Amendment of law to make `paid news' an electoral offence
- The Commission has been proposed amendment in the Representation of People Act, 1951, to provide therein that publishing and abetting the publishing of 'paid news' for furthering the prospect of election of any candidate or for prejudicially affecting the prospect of election of any candidate be made an electoral offence under chapter-III of Part-VII of Representation of People Act,1951 with punishment of a minimum of two years imprisonment.
5. Punishment for electoral offences to be enhanced
- Undue influence and bribery at elections are electoral offences under Sections171B and 171C, respectively, of the IPC. These offences are non-cognizable offences, with punishment provision of one year's imprisonment, or fine, or both.
- Under Section 171-G, publishing false statement in connection with election with intent to affect the result of an election, is punishable with fine only.
- Section 171 H provides that incurring or authorizing expenditure for promoting the election prospects of a candidate is an offence. However, punishment for an offence under this Section is a meager fine of Rs.500/-
- These punishments were provided as far back as in 1920. Considering the gravity of the offences under the aforesaid sections in the context of free and fair elections, the punishments under all the four sections has been proposed to be enhanced and made cognizable.
6. Government sponsored advertisements
- For six months prior to the date of expiry of the term of the House, there shouldbe a ban on advertisements on achievements of the Government.
- Advertisements/dissemination of information on poverty alleviation and health related schemes could be exempted from the ban.
7. Prohibition of Campaign during the Last 48 Hours‑
- Section 126 of the Representation of the People Act, 1951, prohibits electioneering activities by way of public meetings, public performance, processions, advertisements through cinematograph, television or similarapparatus during the period of 48 hours before the time fixed for conclusion ofpoll. However, this Section does not include print media. The Commission hasproposed that Section 126 should apply equally to the print media also.
- The Commission has further proposed that house to house visits by candidates/supporters should also be specifically prohibited during the said period of 48 hours, to allow the electors period of tranquil to decide their option. Necessary amendments should be carried out in Section 126.
8. Punishment for false affidavit by candidates
- Section -125A of R.P. Act, 51, provides that furnishing false information in theaffidavit filed by the candidate is an offence punishable by imprisonment up to six months or with fine.
- There is no clear provision for follow-up action in the event of candidates filingfalse affidavits.
- There are several complaints of false statements in affidavits, false statements mislead the electors.
- In order to strengthen the disclosure provision, the Commission has recommended that Section-125A of R.P. Act, 51, should be amended to provide that any complaint regarding false statement in the affidavit filed by the candidates in connection with the nomination paper shall be filed before the Returning Officer (RO) concerned within a period of 30 days from the date of declaration of the election and that it shall be the responsibility of the RO to take proper follow-up action Alternatively, complaint can lie directly to the Magistrate Court.
9. Negative/neutral voting
- In the ballot paper and on the ballot unit, after the particulars relating to the last candidate, there should be provisions for a column 'none of the above' to enable a voter to reject all candidates if he so desires.
10. Amendment of law to provide for filing of election petition even against defeatedcandidates on the ground of corrupt practice‑
- As per the existing law, election petition (EP) can be filed only for challenging an election of the returned candidate (winner).
- If a defeated candidate has indulged in corrupt practice, there is no provision for election petition against such candidate.
- Commission has recommended that the law should be amended to provide forfiling of EP in cases of commission of corrupt practice by a losing candidate as well.
11. Ban on transfer of election officers on the eve of election
- In the case of general election, there should be a ban against transferring any election related officer without the concurrence of the Commission for a period of six months prior to the expiry of the term of the House.
12. Rule making authority to be vested in the Commission —
- The Commission should be given the power to frame rules under the R.P. Act, 1950 and1951.
13. Totalizer for counting of votes -
- The proposal is for amendment of the Rules to provide for the use of totalizer for counting of votes at EVM elections.
- Using totalizer , it would be possible to take out the results of votes polled in a group of 14 EVMs together as against the present practice of counting votes polling station wise.
- In such a system of counting, the trend of voting in individual polling station areas would not be known. This will prevent intimidation and post election victimization of electors. The proposal has been referred to a parliamentary committee in 2009.
I gather that "Anna Hazare and his team today met the Election Commission in a bid to raise the pitch for electoral reforms and demanded that 'right to reject' option be included in electronic voting machines (EVMs)" [Source].
I've elaborated at great length earlier why this kind of a "reform" sends a VERY WRONG signal to our educated classes. It sends the signal that you can act high and mighty and reject everyone. Instead, Anna Hazare should reject this option and ask people to OFFER THEMSELVES for election if they think that no good candidate is on offer.
Liberty includes responsibility. The only responsible act is for a citizen to offer his own services as a representative if he finds that representation is of a particularly poor quality.
Let me once again note just one or two paragraphs from my earlier blog post on this topic:
Rule 49(o) of the Conduct of Election Rules 1961
Note that R.49(o) of the Conduct of Election Rules 1961 is NOT "none of the above".
49-O. Elector deciding not to vote.-If an elector, after his electoral roll number has been duly entered in the register of voters in Form-17A and has put his signature or thumb impression thereon as required under sub-rule (1) of rule 49L, decided not to record his vote, a remark to this effect shall be made against the said entry in Form 17A by the presiding officer and the signature or thumb impression of the elector shall be obtained against such remark. [http://lawmin.nic.in/ld/subord/cer1.htm]
This Is is just another way of having your vote NOT COUNTED. There is no record published of these votes. If a majority of the people vote under 49(o) that does not mean the election is to be held again. Even if out of 10,000,000 voters everyone uses 49(o) but 1 voter casts his vote for a particular candidate, that candidate wins, under existing rules.
Note also that this is not a recall provision but merely an administrative record that you came but didn't want to vote.
Genuine electoral reforms
If you want genuine electoral reforms, please read chapters 4 and 6 of BFN - and the many blog posts and articles I've written on the subject.
Apparently Arun Jaitley has today raised the issue of electoral funding. I can't find details, but in the meanwhile I came across the following news report of 2009 (source) which has some truly absurd comments by our "policy makers" and shows why India is so ill-served by its incompetent leaders (Gopalswami is an exception).
State funding of elections is not panacea for all ills facing the electoral system, experts, including Election Commissioner S Y Quraishi, said on Saturday.
"Public funding of elections is not the solution. Who will give guarantee that it will stop the flow of black money," Quraishi said at a seminar on electoral reforms, organised by Foundation for Advanced Management of Elections.He, however, said ceiling for spending in the elections could be increased from the present level of Rs 25 lakh per candidate in the Lok Sabha polls."We can rationalise the ceiling. The ceiling level can be increased," he said.Senior BJP leader Arun Jaitley said that the real threat to the electoral process is coming from the money power."State funding is no answer. It will not stop the huge expenditure," he said.However, former Chief Election Commissioner N Gopalswami favoured state funding as the best possible solution to the issue of flow of illegal money into the electoral system."Money, gifts, jewellery and other things are distributed by candidates during election campaign to get votes. State funding is the best answer to stop such practice," he said.
So what's wrong with all this?
First, we don't want ANY ceiling. That will be a disaster as it will create incentives to cheat. We don't want anyone to be afraid of speaking the truth. Let people spend whatever they wish. Let them disclose it. If even a PAISA is not disclosed, they would lose their election (if they have won). No compromise on accountability. [Also see this blog post of mine]
Second, we don't want any ADVANCE payment. Let political parties and candidate borrow money, if they wish, but what we want is POST-FACTO payment. The purpose of state funding is NOT to stop black money flows (that is one of its purposes, but an incidental one), but to ALLOW good people to contest elections.
By funding me Rs.20 per valid vote, I can spend a bit of my money and contest, with the hope of at least recovering part of it. That is a GREAT INCENTIVE for good people to contest elections.
In brief, we want this:
1. State funding of elections (Rs. 20 per valid vote cast)
2. Remove all limits to electoral funding
3. Ensure the MOST RIGOROUS disclosure requirements for political donations – if even ONE paisa is not properly disclosed, the candidate will lose his election even if he gets the most votes.
In addition we want this:
4. Pay the politicians VERY WELL (and remove all their perks)
If Anna Hazare repeats these last four points, I'll begin to believe that he is genuine about his desire to remove corruption. Till he does that this whole IAC things sounds to me like a big drama of no consequence to India's future.
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