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PERSPECTIVES ON ELECTORAL REFORMS IN INDIA: INSIGHTS FROM THE SUPREME COURT AND LAW COMMISSION
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PERSPECTIVES ON ELECTORAL REFORMS IN INDIA: INSIGHTS FROM THE
SUPREME COURT AND LAW COMMISSION
ABSTRACT
In India, electoral reforms have been
primarily driven by court decisions and legal advice. These reforms have enhanced
the public's perception of the electoral system. In a democracy like India,
perception refers to public opinion gathered through surveys or electoral
studies. Political campaigns, electoral process reforms, and ECI interventions,
as well as judicial rulings on reforms (such as candidate affidavits) and
reports from reform-focused commissions, all aim to reflect this perception.
Successful reforms backed by the judiciary and legal system reinforced the view
that elected officials who hindered such reforms undermined democracy. This
study aimed to examine the role of public perception in judicial and legal
opinions regarding electoral reforms. Specifically, it investigated whether
judicial and legal interventions in the electoral process reflected societal
beliefs about the need for these reforms. Despite government commissions
releasing suggestions for electoral reforms, they went ignored until the
Supreme Court of India (SCI) backed civil society efforts for change and the
Election Commission of India (ECI) aided in their implementation, such as with
candidate affidavit submissions. Similarly, the Law Commission pushed for
various electoral process reforms, highlighted in its reports from 1999, 2014,
and 2015. This study aims to analyze key SCI rulings and Law Commission reports
on electoral reforms to determine if these judicial and legal inputs considered
public perceptions about the electoral process.
Keywords: Election, Electoral reforms,
Election Commission of India, Law Commission of India.
RESEARCH
METHODOLOGY
1.
Literature
Review: We summarized research on Supreme Court decisions, Law Commission
reports, and other sources relevant to Indian electoral reforms.
2.
Case
Study Analysis: We examined case studies
to demonstrate the real-world effects of proposed electoral reforms from the
Supreme Court and Law Commission, highlighting successes and areas for
improvement. We gratefully reviewed key Supreme Court judgments and Law
Commission reports to determine effective reforms and ongoing challenges in the
electoral system.
3.
Interpretation:
Also, examined how court decisions and legal actions in elections reflect
societal beliefs about necessary electoral reforms.
4.
Conclusion:
We analyze key Supreme Court rulings and Law Commission reports to demonstrate
how public opinion influences electoral reforms in India. Specifically,
highlight the role of public perception in shaping these reforms.
INTRODUCTION
India's
electoral reforms have primarily been driven by the courts, the Election
Commission (ECI), and citizen groups. Notably, Parliament has not actively
participated in reform efforts.[3]
Despite the establishment of committees and commissions by elected governments,
elected officials have been hesitant to address critical issues like political
corruption, campaign spending limits, donation transparency, and exploring
alternative voting systems. The Supreme Court of India (SCI) has collaborated
with the Election Commission of India (ECI) to clarify the Representation of
People's Act (RPA). On January 2, 2017, a seven-judge Constitution Bench[4]
headed by the Chief Justice of India ruled on an appeal filed in 1990.[5]
The appeal questioned whether appealing for votes based on religion, race,
caste, community, or language would constitute corrupt practice and warrant
disqualification.[6]
In a
democratic society like India, public perceptions about the electoral process
are ascertained through surveys and election studies.[7]
These perceptions shape political campaigns, electoral reforms, initiatives by
the Election Commission of India (ECI)[8],
court rulings on modifications like candidate disclosures, and official reports
from electoral reform commissions.[9]
Legal interpretations and judicial rulings that supported changes to the voting
system also reinforced the idea that elected officials had failed to take
action to improve the election process, undermining democratic principles. The
repeated and unresolved violations of laws and the public's trust in elections
had eroded confidence in the electoral system itself.[10]
Despite the successful implementation of electoral reforms like electronic
voting and voter ID cards, public perception of the electoral process remained
unfavorable, even though the Election Commission of India (ECI) was widely
trusted as an impartial institution. Reforms aimed at improving the electoral
process alone were insufficient for a healthy democracy; it was equally
essential to gain the confidence of voters in order to drive further necessary
changes. Due to support from the judiciary and legal experts, this study
examines whether judicial and legal involvement in the electoral process
considered perceptions about electoral reforms. Despite recommendations from
government-appointed commissions on electoral reforms, they remained unimplemented
until the Supreme Court (SCI) backed civil society advocacy for reforms and the
Election Commission of India (ECI) facilitated their execution, as seen in the
requirement for candidate affidavits. Like the Supreme Court of India (SCI),
the Law Commission has also emphasized the need for improvements in the
electoral process. Three of their most notable reports, released in 1999, 2014,
and 2015, reflect this stance. This research aims to examine the rulings of the
SCI regarding electoral reforms and the recommendations of the Law Commission.
It will investigate whether the opinions expressed by the public about the
electoral process have been taken into account by both the judiciary and the
legal system when considering reforms.
INSIGHTS INTO PUBLIC PERCEPTION THROUGH
SUPREME COURT VERDICTS
The ECI and civil society through the
judiciary have taken the initiative to implement reforms, even though the
committees' and commissions' recommendations may have been ignored entirely or
in part. The principal court decisions that brought about the reforms that the
government had been putting off since 1990, if not 1973,[11]
were listed below.
A. Association for Democratic Reforms
vs. Union of India (2000)[12]
and People’s Union of Civil Liberties & Anr. vs. Union of India & Anr
(2003)[13]:
The Supreme Court of India (SCI) declared that candidates must submit
affidavits for election transparency. The court recognized that voter access to
candidate information enhances freedom of expression (Article 19(1)(a))[14]
and electoral rights. Voting itself is considered an act of free expression.
However, the SCI struck down Section 33B of the Representation of People (3rd
Amendment) Act, 2002, which imposed strict limits on the dissemination of
information not explicitly mentioned in the legislation. The Supreme Court of
India (SCI) affirmed the importance of Section 33A,[15]
which guarantees the right to information about ongoing legal cases. However,
the court also expressed concern that excluding pending cases from the scope of
disclosure was unreasonable. The SCI criticized the current system where
elected officials declare their assets and liabilities to the Speaker or
Chairman of the House. The court found this inadequate for ensuring
transparency and promoting the right to information of voters.[16]
The SCI emphasized that the Parliament should have mandated the disclosure of
assets and liabilities of elected candidates and their families at the time of
nomination. The court's observation is that the failure to do so violates the
guarantee of freedom of expression under Article 19(1)(a) of the Indian
Constitution.
B. Lily Thomas vs. Union of India &
Ors.[17]:
The Supreme Court of India (SCI) ruled on the disqualification of convicted
candidates for public office. The court examined whether this rule violated the
Constitution in cases where elected officials appealed their convictions within
three months and their appeals were still pending. The SCI held that under the
Representation of the People Act (RPA), disqualification begins on the date of
conviction for specified offenses and remains in effect indefinitely. However,
candidates who were not aware of the court ruling at the time of their
convictions were protected from disqualification. However, future candidates
convicted of these offenses would be subject to disqualification as per the
law. The SCI also stated that sitting members of Parliament and state
legislatures who had been convicted of the specified offenses and whose appeals
were pending "should not, in our view, be permitted to continue as
members, and should be disqualified."[18]
According to the Court, Members of Parliament or State Legislatures who were
sentenced after the judgment in the current case, and are now subject to
disqualification under Section 8 (1)(2)(3) of the Act, will not benefit from
the protection provided by Section 8 (4) of the Act. This is the case even if
they file an appeal or seek a revision of their conviction and/or sentence.
C. People’s Union for Civil Liberties
vs. Union of India &Anr.[19]:The
Supreme Court of India (SCI) emphasized the significance of NOTA (None of the
Above) in a democracy. NOTA allows voters to secretly reject all candidates on
the ballot, a crucial aspect of democratic expression. The court noted that
when voters exercise their disapproval through NOTA, it sends a message to
political parties. This disapproval can drive parties to reconsider their
candidates and ultimately lead to improvements in the electoral process.
Previously, voters dissatisfied with the candidates would often abstain from
voting, creating an opportunity for "undesirable individuals" to
impersonate voters. The court affirmed that the NOTA option (None of the Above)
for Parliamentarians is equivalent to abstention, as the voter explicitly
declares their unwillingness to vote for any candidates presented on the
ballot.[20]
D. Dr. Subramanian Swamy vs. Election
Commission of India[21]:
After implementing Electronic Voting Machines (EVMs), the Election Commission
of India (ECI) considered introducing a paper trail for votes. They tested a
Voter Verified Paper Audit Trail (VVPAT) system in Noksen, Nagaland, and found
it successful in 21 polling stations. The ECI reported that paper slips from
VVPAT would not be counted by the Returning Officer unless requested by a candidate.
However, to ensure accuracy in the pilot case, the ECI counted the paper slips
in Noksen and confirmed their accuracy. After the success of Voter-Verified
Paper Audit Trails (VVPAT), the Election Commission of India (ECI) decided to
implement it gradually nationwide. The ECI requested government approval to
purchase 20,000 VVPAT units (10,000 each from BEL and ECIL) at a cost of
approximately Rs. 38.01 crore.[22]
The Supreme Court of India recognized the importance of the paper trail
provided by VVPAT, deeming it essential for ensuring free and fair elections.
The Court emphasized that voter trust in Electronic Voting Machines (EVMs)
required the introduction of this paper trail. It believed that VVPAT could
enhance voter confidence and increase the transparency of the voting system.
E. Krishnamoorthy vs Shiv Kumar &
Ors.[23]:
The Supreme Court of India (SCI) asserted that disclosing criminal records by a
candidate is crucial and non-disclosure hinders voters' right to make informed
choices.[24] It
considered this non-disclosure a form of interference with their voting rights.
Candidates are aware of any pending cases against them, so failing to disclose
such information during nomination filing constitutes undue influence. Thus,
the Election Tribunal should declare the election null and void according to
Section 100(1)(b) of the 1951 Act.[25]
INSIGHTS INTO PUBLIC PERCEPTION THROUGH LAW
COMMISSIONS REPORTS ANALYSIS
The Law
Commission analyzed Supreme Court (SCI) interpretations of electoral laws and
public perceptions to develop reform recommendations. In its 1999, 2014, and
2015 reports, it proposed reforms covering election financing and alternative
electoral systems. In 2014, the Law Commission cited the SCI ruling in Ashok
Shankarrao Chavan vs. Madhavrao Kinhalkar[26],
which recognized the significant influence of "money power" in
elections. The SCI expressed concern that voters sold their votes for small
amounts of money and were manipulated by dishonest individuals seeking
electoral victory and political power.[27]
A.
Reform of the Electoral Law (1999): In 1999, the Law
Commission of India issued the 170th Report on electoral law reform, proposing
changes to the Constitution and the Representation of the People Act (RPA).[28]
Concerned about the drawbacks of candidates winning on a minority vote share,
the Commission explored the "List System" in Chapter II of Part III
and recommended amending Articles 81 and 170 of the Constitution.[29]
Specifically, the Commission proposed the following amendments:
·
Article 81: Increase the total number of Parliament
members to 530, with 530 elected directly, 20 from Union Territories, and 138
through the List System.
·
Article 170: Define a state assembly as having 60
members, with 60 elected directly and 60 through the List System.
The
amendments aimed to ensure that a significant proportion of Parliament and
state assemblies would be elected through the List System, reducing the potential
for candidates to win on a minority of votes. The proposed List System aimed to
treat the entire country as one unit, as the commission had abandoned its
previous concept of territorial divisions. According to the First Schedule of
the Representation of the People Act (RPA), the number of Lok Sabha seats would
remain fixed for 25 years. To achieve this, an amendment to Article 81(3) of
the Constitution was proposed to extend the freezing of Lok Sabha seats from
2000 to 2025.
The Law
Commission proposed an alternative voting method where candidates must secure
50% plus 1 vote in their constituency, along with the "negative vote"
option. Experts believed this reform would promote integrity in elections by
deterring criminals and other undesirable elements. It would also reduce the
influence of caste and religion in politics. Voters would have the power to
reject unsuitable candidates nominated by political parties. This would
encourage parties and candidates to appeal to a broader voter base with their
ideologies and policies, rather than relying on caste or religious
affiliations. Despite supporting the idea of implementing a negative vote
system, the Commission raised concerns about its feasibility. These concerns
included:
1. Staggered
Elections: Parliamentary and state assembly elections were not held on the same
day, making it difficult to implement a uniform negative vote system.
2. Delayed
Counting: Votes were not counted immediately after each election but after all
elections were completed nationwide, further complicating the process.
3. Run-Off
Elections: In a 50%+1 system, run-off elections would require printing new
ballots and repeating the entire election process, including security
arrangements.
4. 50%+1
Requirement with Negative Vote: Implementing a negative vote with a 50%+1
system could result in no candidate receiving the required majority, even in a
run-off election.
B.
Electoral Disqualification (2014): In 2014, the Law
Commission released its 244th Report on Electoral Disqualification.[30]
This report was commissioned by the Supreme Court of India (SCI) following the
Public Interest Foundation & Ors. v. Union of India[31]
case. Upon releasing its initial consultation paper, the Commission received
only two responses from political parties: the Welfare Party of India and an
unnamed party. Despite releasing a second consultation paper, the Commission
again received a limited response, with only five parties responding, including
the Zoram Nationalist Party and the People's Party of Arunachal Pradesh.[32]
The Law Commission suggested guidelines for disqualifying candidates from
elections based on criminal charges and false affidavits. They advised against
disqualification based solely on charges or convictions due to delays in trials
and convictions, which has been ineffective in preventing the increasing
involvement of criminals in politics. Additionally, the Commission recommended
against disqualification at the charge-filing stage because of the lack of
sufficient judicial review. However, they emphasized that with appropriate
legal protections to prevent misuse, disqualification based on false affidavits
could be an effective tool in combating the spread of criminalization in
politics. To prevent misuse, the Commission proposed these recommendations:
·
Include only offenses carrying a maximum sentence of
five years or more.
·
Excluding charges filed within a year before
election nominations.
·
The provision should expire when an acquittal is
obtained or after six years, whichever comes first.
·
For charges against current MPs/MLAs, trials should
be expedited daily and completed within a year.
Regarding
false affidavits, the Commission recognized their widespread violation due to
inadequate legal protections. They recommended strengthening the Representation
of the People Act (RPA) by:
·
Increasing the minimum sentence to two years.
·
Expanding the definition of "conviction"
to include cases where an individual is found guilty under Section 125A (false
statement in an election return) as a disqualification ground.
·
Classify the filing of false affidavits as a corrupt
practice under Section 123 of the RPA. Additionally, the Commission suggested a
one-week gap between the last day for filing nominations and the paper scrutiny
date, allowing time for objections to be filed against nominations.
C.
Electoral Reforms (2015): In 2015, the Law
Commission released its 255th Report on Electoral Reforms.[33]
The report recommended revisions to campaign finance regulations, requiring
political expenditures to be tracked from the announcement of elections rather
than nomination dates. It also called for companies to receive approval for
political donations through their Annual General Meetings instead of solely
from board members. Regarding electoral systems, the Commission noted that
proportional representation provides better representation, while the First-Past-The-Post system promotes
stability. However, lessons from other countries suggest that changing India's
electoral system would require combining direct and indirect elections, leading
to an increase in the number of members of Parliament (Lok Sabha). The
Commission proposed measures to reinforce the Election Commission of India
(ECI) and address issues like paid news, opinion polls, and compulsory voting.
The report ruled out invalidating elections based on a majority of "None
of the Above" (NOTA) votes, citing the secrecy of the ballot and the
belief that good governance can be achieved through political accountability
and inner party democracy. The Commission rejected the proposal of a right to
recall, expressing concerns about "excessive democracy" that could
undermine the independence of elected candidates and minority interests. It
further highlighted the potential for instability, abuse, and high implementation
costs associated with the right to recall, especially in a FPTP system. The
Commission preferred using vote totalizers to count votes because it would
prevent voters from being harassed by knowing the voting trends at each polling
station. This approach aimed to address concerns about intimidation and
victimization.
CONCLUSION
The election was seen as a beacon of
hope, with voters expressing a deep belief in the power of the vote to create a
more just and equitable society. Despite the persistent inequalities and
injustices, this aspiration served as a driving force behind the election.[34]
This belief underscores the critical importance of electoral reforms, which
were deemed "imperative" by the 2010 Core Committee on Electoral
Reforms. These reforms cover various aspects of the election process, from
candidate selection to campaign financing. Failure to address these reforms
could have serious consequences for the health and integrity of our democratic
system. One major form of electoral
corruption is the high number of elected officials facing criminal charges.
Another concern is the influence of money in elections. Candidates who spend
large sums to get elected may feel pressure to recoup those expenses once in
office, potentially leading to self-serving decisions. Winners may prioritize
the interests of their financial backers over those of the public.[35]
In these cases, candidates may lack the knowledge or motivation to respond to
the needs of their constituents.
The study found that court rulings
and legal actions in the election process also influenced public opinion on
electoral reforms. This was true even when legal decisions went beyond the
issue of electoral reforms. For example, besides the Election Commission of
India (ECI), the courts supported a landmark judgment requiring election
candidates to submit affidavits disclosing their criminal and financial
histories[36]. The
Nirbhaya tragedy in 2012 reignited the debate about criminals in politics[37].
The Justice Verma Committee, tasked with reviewing criminal law amendments,
emphasized electoral reforms. Justice J.S. Verma (Retd.) believed that
electoral reforms were crucial for addressing gender justice and preventing
sexual crimes against women. The Committee expressed concerns about the
potential impact on the fairness of the criminal justice reform process if
legislators involved in the reform efforts have unresolved criminal charges
that a court has acknowledged. According to the Committee, reforms are crucial
to prevent any potential bias or conflicts of interest that could compromise
the legislators' ability to fulfill their legislative responsibilities
effectively. To ensure the integrity of candidates, the Committee proposed two
measures:
1.
Making
a certificate from a High Court Registrar essential for nominating candidates.
2.
Expanding
the list of crimes in Section 8(1) of the Representation of the People Act
(RPA) to encompass all serious offenses. Upon being charged with any of these
offenses, a candidate would be automatically disqualified. Additionally,
candidates who fail to disclose any such offenses in their nomination affidavits
would face similar disqualification.
The Committee believes that elected
officials facing criminal charges should step down from office to demonstrate
respect for their position and the Constitution. Setting such a precedent would
improve public opinion of them. Furthermore, political parties should refrain
from nominating candidates with criminal histories. If such candidates with
questionable backgrounds were nominated for office, the report cautioned that
this could trigger widespread social unrest. For instance, the report
discovered that fielding candidates with criminal records led to a decrease in
women exercising their right to vote.
In societies where elections are seen
as a means to achieve fairness and logical decision-making, electoral reforms
may not only focus on technical aspects but also on how citizens perceive the
outcomes of democracy. The perspectives shared by the Supreme Court of India
(SCI) and the Law Commission of India provide a framework for understanding
these reforms and paving the way for a more robust democratic system.
[4] [The minimum number] of judges who are to sit for the
purpose of deciding any case involving a substantial question of law as to the
interpretation of this constitution or for the purpose of hearing any reference
under article 143. DD Basu, Indian Constitution, Lexis-Nexis India, 2011, 312
(8th ed., 2011).
[5] Abhiram Singh v. C.D. Commachen (Dead) by Lrs. &
Ors. Civil Appeal No. 37 of 1992 & 8339 of 1995 at 57-58.
[6] Promoting or attempting to promote on ground of
religion, race, caste, community, or language, feeling of enmity or hatred,
between different classes of the citizens of India. S. 125 at 71, & 153A,
Chapter VIII of the IPC, Gazette of India, Representation of the People Act,
1951.
[7] NES 2014 Pre-Poll, Lokniti.org, available at
http://www.lokniti.org/nes-2014-pre-poll.php, last seen on 04/02/2017.
[8] Model Code of Conduct for the Guidance of Political
Parties and Candidates, Election Commission of India, available at
http://eci.nic.in/eci_main/MCC-ENGLISH_28022014.pdf, last seen on 04/02/2017.
[9] People’s Union for Civil Liberties& Anr. v. Union
of India, Lok Satta & Anr. v. Union of India and ADR v. Union of India 2003
SC 490, 509, 515.
[10] Ministry of Law and Justice, Government of India,
Background Paper on Electoral Reforms, 2010, at 5.
[11] Recommendations of Goswami Committee Report (1990)
had also considered recommendations of an earlier Tarkunde Committee Report
(1973) that had addressed reforms of Indian electoral system and machinery.
[12] Association for Democratic Reforms v. Union of India
and Anr., AIR 2000 Delhi 126, 2000; (57) DRJ 82.
[13] People’s Union for Civil Liberties & Anr. v. Union
of India, Lok Satta & Anr. v. Union of India and ADR v. Union of India 2003
SC 490, 509, 515.
[17] Lily Thomas vs Union of India & Ors with Lok
Prahari vs Union of India &Ors., 2013 SC 490, 231.
[25] Ibid, at para 86 (d). Section 100(1)(b) of the 1951,
RPA: that any corrupt practice has been committed by a returned candidate or
his election agent or by any other person with the consent of a returned
candidate or his election agent.
[27] Notice of Motion, Association for Democratic Reforms
v. Union of India & Anr. 2014, available at https://adrindia.
org/sites/default/files/ADR_Writ_Election_Expenditure.pdf , last seen on
04/02/2017.
[28] Law Commission of India, Government of India, 170th
Report on Reform of the Electoral Laws, 1999, available at
http://lawcommissionofindia.nic.in/lc170.htm#, last seen on 04/02/ 2017.
[29] Article 81 (1): Composition of the House of the
People (1) Subject to the provisions of Article 331 the House of the People
shall consist of(a) not more than five hundred and thirty members chosen by
direct election from territorial constituencies in the States, and (b) not more
than twenty members to represent the Union territories, chosen in such manner
as parliament may by law provide.
Article
170 (1): Composition of the Legislative Assemblies (1) Subject to the
provisions of Article 333, the Legislative Assembly of each State shall consist
of not more than five hundred, and not less than sixty, members chosen by
direct election from territorial constituencies in the State.
[30] Law Commission of India, Government of India, Report
No. 244: Electoral Disqualifications, 2014, available at http://
lawcommissionofindia.nic.in/reports/report244.pdf, 2014, last seen on
5/02/2017.
[31] Public Interest Foundation & Ors. v Union of
India and Anr.(W/P Civil No. 536 of 2011) quoted from Law Commission of India,
Government of India, Report No. 244: Electoral Disqualifications, 2014.
[32] Jagdeep S. Chhokar, Revisiting
India’s electoral reforms, Livemint, 18/03/2015,
http://www.livemint.com/Opinion/VJe9yfsux8vLD33rOgOn0N/Revisiting-Indias-electoral-reforms.html
last seen on 5/02/2017.
[33] Law Commission of India, Government of India, Report
No. 255: Electoral Reforms, 2015, available at http://
lawcommissionofindia.nic.in/reports/Report255.pdf, 2015, last seen on
5/02/2017.
[35] National Commission for Review of the Working of the
Constitution, A Consultation Paper on Review of Election Law, Processes and
Reform Options, Vol. 2, 481 (2002), available at
http://lawmin.nic.in/ncrwc/finalreport/v2b1-9. htm, last seen on 6/02/2017.
[37] Neeraj Chauhan, Dwaipayan Ghosh & Raj Shekhar,
Delhi gang rape case: Victim battles for life, 3 accused held, The Times of
India (18/12/2012), available at
http://timesofindia.indiatimes.com/city/delhi/Delhi-gang-rape-caseVictim-battles-for-life-3-accused-held/articleshow/17656605.cms?,
last seen on 6/02/2017.
Article Information
PERSPECTIVES ON ELECTORAL REFORMS IN INDIA: INSIGHTS FROM THE SUPREME COURT AND LAW COMMISSION
Authors: SOFTY TIBRIWAL, GANESH SHARMA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/12
- Issue 7
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International Journal for Legal Research and Analysis
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