Law Commission Recommendations on Electoral Reforms in India

Key Recommendations

• Election Finance and Disclosure
  • Expenditure Period: The period for regulating election expenses should be extended to run from the date of notification of the elections to the date of declaration of results.
  • Corporate Contributions: Amendments to the Companies Act, 2013, should require companies to authorize political contributions at an Annual General Meeting (AGM) rather than just through the Board of Directors.
  • Disclosure Obligations: Candidates must disclose particulars (names, addresses, and PAN) of all individual contributions and party contributions. Political parties must mandatorily disclose all contributions in excess of Rs. 20,000, including aggregate sums from a single donor.
  • Auditing and Transparency: Parties should submit annual accounts audited by a qualified chartered accountant from a panel maintained by the CAG. These accounts will fully and clearly disclose all the amounts received by the party and the expenditure incurred by it. The ECI will then upload these accounts online or keep them on file for public inspection on payment of fee. 
  • Penalties: Parties failing to comply with disclosure norms should face daily fines of Rs. 25,000 and potential de-registration
    •  The disqualification of a candidate for a failure to lodge an account of election expenses and contributions reports should be extended from the current three period up to a five year period, so that a defaulting candidate may be ineligible to contest at least the next elections 
• Regulation of Political Parties 
  • Inner Party Democracy: New statutory provisions should regulate internal party democracy, including party constitutions, internal elections, and candidate selection.
    • Non-Compliance with Norms: If a party fails to comply with the internal democracy and organizational requirements of the new provisions, the ECI should have the power to inquire into the matter. If non-compliance continues after a prescribed rectification period, the ECI can impose fines or withdraw the party’s registration
  • De-registration
    • The ECI should have the power to de-register parties for failing to contest elections for ten consecutive years.
  • Ethical Standards
    • Political parties should be required to include a specific provision in their memorandum or rules stating they will shun violence for political gains and avoid discrimination or distinction based on race, caste, creed, language, or place of residence 
• Strengthening the Election Commission of India (ECI) 
  • The ECI should be strengthened by first, giving equal constitutional protection to all members of the Commission in matters of removability; second, making the appointment process of the Election Commissioners and the CEC consultative; and third, creating a permanent, independent Secretariat for the ECI. 
    • Equal Protection: Article 324(5) should be amended to give all Election Commissioners the same constitutional protection in matters of removal as the Chief Election Commissioner (CEC).
    • Consultative Appointments: The CEC and Election Commissioners should be appointed by the President in consultation with a three-member collegium (Prime Minister, Leader of Opposition in Lok Sabha, and the Chief Justice of India).
      • Elevation of an Election Commissioner should be on the basis of seniority, unless the three member collegium/committee, for reasons to be recorded in writing, finds such Commissioner unfit. 
    • Independent Secretariat: A separate, permanent, and independent Secretariat should be created for the ECI
      • A new sub-clause should be added to Article 324 of the Constitution to provide for a separate independent and permanent Secretariat for the ECI along the lines of the Lok Sabha/Rajya Sabha Secretariats under Article 98 of the Constitution. This will further improve the independence of the ECI. 
• Paid News and Political Advertisements 
  • The definitions of “paying for news”, “receiving payment for news” and “political advertisement” should be inserted in the RPA. 
  • Create a separate electoral offence
    • A new Section in RPA 1951 should make both paying and receiving payment for news electoral offences, with stringent punishment.
  • Recognise paid news as a corrupt practice
    • Paying for news should be included as a corrupt practice under Section 123 of the RPA.
  • Disclosure
    • Mandatory disclosure provisions should be introduced for all forms of media to help the public identify disguised political advertisements.
      •  In order to curb the practice of disguised political advertisement, disclosure provisions should be made mandatory for all forms of media. 
        • The purpose of disclosure is two fold; first, to help the public identify the nature of the content (paid content or editorial content); and second, to keep track of transactions between the candidates and the media. 
        • Thus, a new section 127C should be inserted in the RPA to deal with the non-disclosure of interests in political advertising. The ECI can regulate the specifics of the disclosure required. 
• Government Advertisement
  • Government-sponsored advertisements (except for health or poverty alleviation schemes) should be prohibited six months prior to the expiry of the House’s term to ensure a level playing field
    • The Commission recommended regulating and restricting government sponsored advertisements six months prior to the date of expiry of the House/Assembly to maintain the purity of elections; prevent the use of public money for partisan interests of, inter alia, highlighting the government’s achievements; and ensure that the ruling party or candidate does not get an undue advantage over another in the spirit of free and fair elections.
    • It recommended inserting a new Chapter in the RPA prohibiting State/Central government sponsored advertisements in the print or electronic media or by way of banners and hoarders, six months prior to the date of expiry of the term of the Lok Sabha/Vidhan Sabha. However, an exception has been carved out for advertisements highlighting the government’s poverty alleviation programmes or any health related schemes
• Election Petitions and Dispute Resolution 
  • Election Benches
    • It recommended the introduction of one or more “election benches” in each High Court, designated so by the Chief Justice of the particular High Court, exercising jurisdiction over all election disputes under the RPA. 
  • Election Petition
    • The procedure for presenting election petitions should be made simpler and less formalistic by 
      • requiring election petitions to be ordinarily filed in the Principal seat of the relevant High Court, although this can be shifted to another bench or place in the interest of justice;
      • removing requirement of impleading those candidates who have lost their security deposit as respondents to an election petition, if the petitioner makes an additional declaration that he himself or any candidate has been duly elected; and
      • removing non-compliance with section 117’s stipulation of security for costs as a ground for summarily dismissal under section 86.
  • Expedited Trials
    • Trials should ideally be concluded within six months, and appeals to the Supreme Court should be restricted to questions of law only
      • The trial of election petitions by the election bench of the High Court should be expedited by providing for 
        • daily trial;
        • minimising adjournments, with the possibility of imposing exemplary costs;
        • time limit of 45 days to file a written statement, with a further extension of 15 days, after which such right shall be forfeited;
      • The trial should be concluded within six months from the date of presentation of the petition; otherwise, a report should be sent to the Chief Justice of the High Court explaining the reasons for the delay. 
      • The election bench of the High Court should pass its order under section 98 of RPA, 1951 within ninety days from the conclusion of arguments. 
      •  Appeals to the Supreme Court should now only be on the basis of a question of law, instead of the earlier provision permitting questions of fact or law as grounds for appeal. This appeal should be filed within 30 days of the High Court’s order, although an extension of a maximum of 30 more days can be granted, with nothing thereafter. The Supreme Court should try and conclude the appeal within three months from the date of appeal. 
• Voting and Candidates 
  • Contesting Seats: Candidates should be restricted to contesting from only one constituency.
  • Independent Candidates: The Commission recommends disbarring independent candidates from contesting Lok Sabha or Vidhan Sabha elections to prevent the proliferation of “non-serious” candidates.
  • Totaliser for Counting: The use of a “totaliser” for counting EVM votes is recommended to hide voting patterns in specific areas, thereby preventing voter harassment and intimidation.
    • The Commission reiterated and endorsed the ECI’s suggestion for introducing a totaliser for the counting of votes recorded in electronic voting machines to prevent the harassment of voters in areas where voting trends in each polling station can be determined. 
    • Prior to the introduction of EVMs, ballot papers could be mixed under Rule 59A of the Election Rules, although this was not permitted for EVMs. 
    • Using a totaliser would increase the secrecy of votes during counting, thus preventing the disclosure of voting patterns and countering fears of intimidation and victimisation.
    • Thus, similar to the existing Rule 59A, the Commission proposes to amend Rule 66A to empower the ECI to decide when, and in which constituency and polling booths, to employ a totaliser, after taking into consideration various factors and the overall context of the elections.
  • Common Electoral Rolls
    • The Law Commission endorsed the ECI’s suggestions regarding the introduction of common electoral rolls for Parliamentary, Assembly and local body elections.  
• Anti-Defection Law 
  • The Law Commission recommended a suitable amendment to the Tenth Schedule of the Constitution, which shall have the effect of vesting the power to decide on questions of disqualification on the ground of defection with the President or the Governor, as the case may be, (instead of the Speaker or the Chairman), who shall act on the advice of the ECI. This would help preserve the integrity of the Speaker’s office. 
• State Funding of Elections
  • The Commission did not consider a system of complete state funding of elections or matching grants to be feasible, given the current conditions of the country. Instead, it supported the existing system of indirect in-kind subsidies, with section 78B of the RPA being possibly amended in the future to expand these subsidies. 
    • Section 78B — Supply of Items to Candidates
      • Between the election notification and polling date, the Election Commission may supply government-determined items to electors or candidates of recognised political parties. If supplied to candidates, their maximum permissible election expenditure may be correspondingly reduced. 
• Regulation of Electoral Trusts
  • The Law Commission recommended amending the RPA to regulate electoral trusts, including their acceptance of contributions, disclosure obligations and penalties for violations. 
• Rejected Proposals 
  • Compulsory Voting: 
    • The Law Commission did not recommend the introduction of compulsory voting in India and in fact, believed it to be highly undesirable for a variety of reasons including as being undemocratic, illegitimate, expensive, unable to improve quality political participation and awareness, and difficult to implement. 
  • Right to Recall: 
    • The Law Commission was not in favour of introducing the right to recall in any form because it can lead to an excess of democracy, undermines the independence of the elected candidates, ignores minority interests, increases instability and chaos, increases chances of misuse and abuse, is difficult and expensive to implement in practice, especially given that India follows the first past the post system. 
  • NOTA and the Right to Reject (NOTA)
    • The Law Commission rejected the extension of the NOTA principle to introduce a right to reject the candidate and invalidate the election in cases where a majority of the votes have been polled in favour of the NOTA option. 
    • This was premised on the fact that, first, the underlying premise of the Supreme Court’s decision in NOTA was the importance of safeguarding the right to secrecy, and this secrecy rationale does not pre-empt the right to reject. Second, good governance, the motivating factor behind the right to reject, can be successfully achieved by bringing about changes in political horizontal accountability, inner party democracy, and decriminalisation. 
    • However, the issue might be reconsidered again in the future.