To
Shri Rajiv Kumar
Chief Election Commissioner
Shri A C Pandey
Election Commissioner
Dear S/Shri Rajiv Kumar and Pandey,
The naked display of money power by the political parties in India, as in display right now and amply evident over the years, raises concerns about the integrity of the electoral process itself and the role of the Election Commission of India (ECI). The open defiance of the Model Code of Conduct by the high and the mighty of the ruling political elite both during the recent Assembly elections and the earlier elections to the Parliament and the State Assemblies, without the ECI showing any response whatsoever, gave one the inevitable feeling that those political parties in power were more privileged than the others.
It is a matter of shame that political parties should splurge money all around in transporting legislators in highly expensive chartered aircraft, entertaining them in star hotels and openly treating them as tradable commodities, with the sole objective of retaining power, when millions of ordinary people are rendered homeless by floods and other calamities. Where do those political parties get so much money to spend? How is such expenditure accounted for? What is the role played by the ECI in either exposing the parties’ sources of income or invoking the powers under the Representation of the People Act to enforce limits on expenditure?
Transparency in all electoral processes, including the sources of funding of the political parties and their expenditure, is a mandatory requirement under Article 19 of the Constitution. Section 94 of the Representation of People Act (RPA) mandates secrecy of voting. As a result of institutional inaction, neither of these requirements find adequate compliance.
For example, in the pre-EVM days, paper ballots from different polling booths used to be mixed thoroughly in the presence of the political parties’ agents before they were to be counted. Such mixing of the ballots ensured that no one would know the booth-wise pattern of voting. Now that EVMs have replaced paper ballots, technically it is not feasible to hide the booth-wise voting pattern. Meanwhile, unfortunately, political parties these days are relying more and more on getting electoral advantage by polarising the voters on the basis of their caste, religion and so on, when it is all the more necessary to ensure that booth-wise polling patterns are not revealed. To this extent, the use of the EVM technology violates the secrecy clause in Section 94 of the RPA. As long as the secrecy of voting at the booth level stands violated, it gives a leverage to the political parties to exploit the same at the cost of societal harmony.
Instead of playing its legitimate regulatory role under the RPA, it is inexplicable that the ECI should obstinately defend the EVMs. Unless the ECI addresses this major concern of booth-level secrecy of voting, it will not only lead to possible litigation but also raise questions on the legitimacy and the integrity of the electoral process.
The ECI has prescribed upper limits on election expenses incurred by the candidates. In terms of Section 77(3), read with Section 123(6) of the RPA, exceeding such limits is deemed to be a corrupt practice calling for appropriate action. While the ECI has been making efforts to monitor election expenditure during the elections, in public perception, the expenses reported by many candidates do not correspond to what they really spend. Considering the fact that there is large scale lavishness and profligacy of election expenditure, the ECI in my view should order an investigation of the disclosed expenditure of at least a random sample of the candidates, not only to have a closer look at the disclosures but also to send a strong message to the candidates that the ECI would not countenance a false disclosure.
Coming to the expenditure disclosures made by the political parties, the ECI cannot afford to be a passive spectator to the unsavoury profligacy displayed by the political parties in inducing democratically elected legislators to defect by flying them in chartered aircraft and entertaining them in luxury hotels as the means to win the majority in the legislatures. In every such case, without exception, the Commission should invoke its statutory authority and deploy independent investigating agencies to determine the amounts spent, the business houses that funded the same etc. so that the political parties get a clear message that the Commission would not spare anyone when it comes to curbing the money power.
Both Article 19 of the Constitution and the provisions of the RPA require total transparency in the matter of funds received by the political parties who are required to make a public disclosure of the sources of their funding and the nature of the sources. Until a few years ago, these sources were disclosed by the political parties through the contribution reports submitted by them and displayed at the website of the ECI. As a part of these contribution reports, the political parties are required to append declarations to certify that (i) the companies making the donations have complied with the provisions of Section 182 of the Companies Act and (ii) the donations are not prohibited under the Foreign Contributions Regulation Act (FCRA). This enabled anyone to challenge the certification or question the other aspects of the donations.
Now that a wholly opaque system of Electoral bonds has been introduced by the present government and the amounts flowing into the coffers of the parties through Electoral Bonds far exceed the amounts disclosed through the contribution reports, the citizen stands deprived of his/ her right to know the details of the donors and the legality of the donations, as the banks that receive the donation verify them only from the restricted point of view of “Know Your Customer” but not from the point of view of the prohibitive provisions of either the Companies Act or the FCRA. To this extent, in my view, the Electoral Bond system is legally not sustainable. I am aware that this issue is under judicial scrutiny now. To the best of my knowledge, Hon’ble Supreme Court before whom the natter has come up has not issued any interim order asking the ECI not to discharge its legitimate functions in ensuring that the citizen’s right to transparency is fully safeguarded.
The Electoral Bond scheme does not grant any exemption to the requirement of disclosure of the details of the donors either from the operation of Article 19 or the provisions of the RPA, nor has it curtailed the authority of the ECI to exercise its power to mandate a public disclosure of the donors contributing to the Electoral Bonds. It is inexplicable that the ECI has acquiesced in the political parties failing to make a disclosure of the funds received by them through the Electoral Bonds. The least one would expect from the ECI is that the Commission on its part, as the custodian of free and fair elections under the Constitution, would direct the banks and the political parties to make an authentic disclosure of the details of the donors, whether they have complied fully with the relevant provisions of the Companies Act and the FCRA and so on and displayed the details so mobtained at its website for public knowledge. As I see, there is at present no order of the apex court prohibiting such a public disclosure. Continuing non-disclosure runs counter to the public interest.
I am aware that the ECI had opposed both the Electoral Bonds scheme when it was introduced and the amendments to FCRA when they were enacted. This is perhaps the position rightly taken by the ECI in the counter affidavit filed before the apex court in the matter relating to the petitions challenging the Electoral Bond scheme. A more proactive Commission could have challenged both these legislative measures before the apex court! At least now, the Commission could invoke its authority under the Constitution and direct the investigating agencies to ascertain whether the donors making contributions through Electoral Bonds are in compliance with the provisions of the Companies Act, the FCRA, the Income Tax Act, the law on prevention of money laundering and so on. In my view, there is no valid justification for the ECI not acting suo moto in enforcing transparency as required in Article 19.
Inaction on the part of the Commission in these matters could erode its credibility as the custodian of free and fair elections. The citizens of this country have reposed their confidence in the Commission’s role in safeguarding the integrity of the electoral processes. Unless the Commission, instead of adopting a passive role, proactively safeguards the fairness of the electoral processes, it cannot restore its credibility, which has diminished over the years.
I request you to convene a special meeting of the Commission to ponder over these aspects, which have assumed urgency.
Regards,
Yours sincerely,
E A S Sarma
Visakhapatnam
