Law Commission Recommendations on Electoral Reforms in India

• Structure of EC: Recommended that the Election Commission should be a three-member body.
• Voting Age: Proposed reducing the minimum voting age from 21 to 18 years (later implemented via the 61st Amendment)
• Constitute a broad-based mechanism for appointing Election Commissioners.
• Media Independence: Suggested placing television and radio under the control of an autonomous statutory corporation to prevent government misuse.
• Voter Councils: Recommended forming voter's councils in constituencies to ensure free and fair elections.

• It supported the issue of photo identity cards to voters to prevent impersonation and bogus voting.
• Fill bye-election vacancies within six months so that constituencies do not remain unrepresented for long.
• Restrict candidates from contesting more than two constituencies.
• Increase security deposits to discourage non-serious candidates.
• Strengthen the independence of the Election Commission and election machinery.
  • Appointment of the Chief Election Commissioner in consultation with the Chief Justice of India and Leader of Opposition
  • Similar consultative process for appointment of Election Commissioners
  • Greater institutional autonomy for the Election Commission
• The anti-defection law has to be changed to restrict disqualification to cases, where an elected member voluntarily gives up his membership of their political parties or when he votes or does not vote, against party whips, directions etc, only in respect of motion of vote of confidence. Decisions regarding members' disqualification should not be decided by the Speaker or the Chairman of the concerned House.
• It proposed giving political parties in-kind governmental money (state funding).
• The committee recommended rotation of constituencies reserved for Scheduled Castes and Scheduled Tribes.

• Introduce partial state funding of elections to ensure a level playing field.
• Initially provide assistance in kind rather than direct cash payments.
• Limit state funding to recognised national and state parties and their candidates.
• Make state funding conditional upon proper accounts, auditing and financial transparency.

Addressing Criminalisation and Corruption

• Any person charged with an offence punishable by five years or more in prison should be disqualified if the charges have been framed for more than one year.
• Persons convicted of heinous crimes (e.g., murder, rape, smuggling) should be permanently debarred from contesting elections.
• Special Courts: Special Courts should be established to ensure the speedy disposal (within six months) of criminal cases against politicians.
• Corrupt Practices: To avoid delays, the President should determine disqualification for corrupt practices based on the direct opinion of the EC.
  • Election petitions at present are considered by the High Court. The High Court is expected to give judgement on all election petitions within 6 months, but in actual practice, it takes much longer and often the petitions remain pending for years and in the meantime even the full term of the House expires.
• Expenditure Limits: The Commission recommends that spending by political parties or well-wishers is included in the candidate's election expense.
  • Under the Representation of the People Act, 1951, the amounts spent by persons other than the candidate and his agent themselves, are not counted in his election expenses.
    • This means that there can never be any violation of the expenditure limits. All extra expenditure, even when known and proven, can be shown to have been spent by the party or by any friends and it remains outside of the enforceable limits.
  • It recommended that the ceiling should be fixed by the Election Commission from time to time and should include all the expenses by the candidate as well as by his political party or his friends and his well-wishers and any other expenses incurred in any political activity on behalf of the candidate by an individual or a corporate entity.

Money Power and Election Costs

• Audits: Both candidates and political parties should be subject to mandatory statutory audits.
  • The Commission recommends that the political parties as well as individual candidates be made subject to a proper statutory audit of the amounts they spend.
• Transparency: Candidates must declare their assets and liabilities, as well as those of close relatives, via affidavit at the time of election.

Representational Legitimacy

• The Government and EC should examine prescribing a minimum of 50% plus one vote for election to ensure representatives have majority support.

Defections

• The Tenth Schedule should be amended to require all defectors (individual or group) to resign and contest fresh elections.
• Defectors should be barred from holding ministerial or remunerative political posts for the remainder of the term.
• It recommended that the power to decide on questions as to disqualification on grounds of defection should vest in the Election Commission instead of in the Chairman or Speaker of the House concerned.

Stability of Governance

• A "constructive vote of no confidence" system should be adopted, where a motion must be accompanied by a proposal for an alternative leader.

Independent Candidates

• The Commission recommended that independent candidates be discouraged and only those who have a track record of having won any local election or who are nominated by at least twenty elected members of Panchayats, Municipalities or other local bodies spread out in majority of electoral districts in their constituency should be allowed to contest for Assembly or Parliament.
• Increased Security Deposits: The existing security deposit for independent candidates should be doubled. For those who continue to contest despite failing to win, the deposit should be doubled progressively every year.
• Higher Forfeiture Threshold: To further reduce non-serious entries, the minimum number of valid votes required to avoid forfeiting a deposit should be increased from 16.67% to 25%.
• Mandatory Debarment:
  • Any independent failing to secure at least 5% of the total votes should be barred from contesting for that same office for six years.
  • An independent candidate who loses three consecutive times for the same office should be permanently debarred from contesting for that office.

Regulation of Political Parties

• Comprehensive Legislation: A new "Political Parties (Registration and Regulation) Act" should be enacted to govern the registration and functioning of all parties.
  • The proposed legislation should provide for compulsory registration for every political party or pre-poll alliance. It should lay down conditions for the constitution of a political party or alliance and for registration, recognition and de-registration and derecognition.
• Adherence to Constitutional Values: Parties must swear allegiance to the Constitution, sovereignty, and integrity of India, and their membership must be open to all citizens regardless of caste or community.
• Authority of the Election Commission (EC): The EC would be the final authority for registration, de-registration, recognition and derecognition of parties, with its decisions subject to Supreme Court review only on points of law.
• Inner Party Democracy
  • Regular Elections: Parties must conduct internal elections at all levels every three years.
  • Gender Representation: It should be mandatory to reserve at least 30 percent of organizational positions and 30 percent of party tickets for women.
  • Candidate Selection: Parties should adopt institutional mechanisms, such as party conventions, to nominate and select candidates at the grassroots and State levels.
  • Leadership Conventions: Adopting a leadership convention system is suggested to make the selection of prospective Prime Ministerial candidates more open and democratic.
• Financial Transparency and Accountability
  • The Commission proposes strict financial regulations to curb the influence of "money power":
    • Mandatory Audits: Parties must maintain systematic accounts that are compulsorily audited by an independent body of experts.
    • Public Disclosure: Audited political party accounts like the accounts of a public limited company should be published yearly with full disclosures under predetermined account heads.
    • Funding Regulation: A comprehensive law should consolidate all funding regulations, allowing transparent corporate donations while providing tax exemptions for legal donations up to certain limits.
    • Penalties for False Returns: The proposed law should provide for immediate de-recognition of the party and enforcement of penalties for filing false or incorrect election returns.
• Addressing Criminalisation and Fragmentation
  • The Commission recommends that the proposed law on political parties should provide that no political party should sponsor or provide a ticket to a candidate for contesting elections if he was convicted by any court for any criminal offence or if the courts have framed criminal charges against him. The law should specifically provide that if any party violates this provision, the candidate involved should be liable to be disqualified and the party deregistered and derecognised forthwith.
  • Higher Recognition Thresholds: To prevent the proliferation of "smaller political parties" that may add to political confusion, the EC should progressively increase the threshold criteria for recognition.

Appointment of the Election Commissioners and State Election Commissioners

• The Commission recommends that the Chief Election Commissioner and other Election Commissioners should no longer be appointed through a purely executive process. Instead, they should be appointed based on the recommendation of a bipartisan high-level body consisting of:
  • The Prime Minister.
  • The Leader of the Opposition in the Lok Sabha.
  • The Leader of the Opposition in the Rajya Sabha.
  • The Speaker of the Lok Sabha.
  • The Deputy Chairman of the Rajya Sabha.
• Similar procedure should be adopted in the case of appointment of State Election Commissioners.

Political Funding and Transparency

• Partial State Funding: A system for partial state funding should be introduced to reduce the influence of illegitimate and unnecessary money in elections.
• Auditing Accounts: It should be legally mandatory for political parties to maintain proper accounts, have them audited annually, and make these audited accounts available for public information.
  • While some steps were taken through the Election and Other Related Laws (Amendment) Act, 2003, the Commission argues that these measures would be significantly strengthened if annual auditing was made mandatory under law.
  • The Election Commission of India has repeatedly advocated for this proposal as a necessary step to cleanse the political system.

Disqualification and Criminalization

• Charges of Grave Offences: Section 8 of the Representation of the People Act, 1951, should be amended to disqualify individuals facing charges related to grave and heinous offences or corruption, subjected to the modification suggested by the Election Commission.
  • The Election Commission has suggested that as a precaution against motivated cases, it may be provided that only cases filed six months before an election would lead to such disqualification.
• Comprehensive Disqualification Criteria: Specific legislation should be enacted under Article 102(e) for Parliament and Article 198(e) for State Legislatures to exhaustively spell out the conditions for the disqualification of members.
• False Declarations: Any false declaration made before election officials (such as the Returning Officer) should be classified as an electoral offence.

Anti-Defection and Coalition Ethics

• Deciding Defection Cases: The authority to decide on the disqualification of members on grounds of defection should be shifted to the President or Governor, acting on the advice of the Election Commission, to prevent long delays.
• Midstream Realignment: If a party in a coalition with a common program mandated by the electorate realigns midstream with parties outside that coalition, its members should be required to seek a fresh mandate from the electorate.

Election Commission and Dispute Resolution

• Appointment of ECI Members: A broad-based collegium should recommend the appointment of the Chief Election Commissioner and other Election Commissioners to the President. This collegium should include the Prime Minister, the Speaker of the Lok Sabha, the Leader of the Opposition in the Lok Sabha, the Law Minister, and the Deputy Chairman of the Rajya Sabha.
• Special Election Tribunals: To ensure election petitions are resolved within the legally stipulated six-month period, Special Election Tribunals should be established at the regional level under Article 323B of the Constitution.

Focus: Reviewed criminal law in the wake of the 2012 Delhi gang-rape case.

Key Recommendations

• Expanded Disqualification: Recognising the long timeline of the courts to frame charges, the commission recommended the disqualification of the candidate against whom a charge sheet has been filed and cognisance taken by the court.
• Transparency: It suggested the creation of a publicly accessible database of candidates whose offences have been taken cognisance of by the courts. Onus was placed on the candidate to provide progress reports to the Election Commission every three months on cases pending against him/her.
• Asset Audits: Proposed that the Comptroller and Auditor General (CAG) investigate and attest to the accuracy of candidates' asset declarations.
  • The commission recommended an amendment to the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971, regarding the assessment of a candidate's assets/liabilities. Its objective was to carry out an in-depth investigation of the assets/liabilities declared at the time of filing nominations. If it is not possible to carry out this exercise for all candidates, then it should at least be done for all successful candidates.
  • According to the commission, a certificate issued from the office of the Comptroller and Auditor General of India would attest to correct asset declaration by candidates.

Political Parties

• The Commission recommended a code similar to the UK's Political Parties, Elections and Referendums Act, 2000, in the context of regulation of political parties. This code intended to implement certain principles on the criteria of admission into parties, ensuring internal democracy, transparency in receiving donations, among other things. This was aimed to include political parties in the process of weeding out criminal candidates.