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Electoral Reforms GOVERNMENT OF INDIA LAW COMMISSION OF INDIA Report No.255 Electoral Reforms March 2015 D.O. No.6(3)/240/2013-LC(LS) 12 March, 2015 Dear Shri Sadananda Gowda ji, The Ministry of Law and Justice, in January 2013, requested the Twentieth Law Commission of India to consider the issue of “Electoral Reforms” in its entirety and suggest comprehensive measures for changes in the law. While working on the subject, the Supreme Court of India, in the matter of “Public Interest Foundation & Others V. Union of India & Anr - Writ Petition (Civil) No. 536 of 2011, directed the Law Commission of India to make its suggestions on two specific issues, viz., (i) ‘curbing criminalization of politics and needed law reforms’; and (ii) ‘impact and consequences of candidates filing false affidavits and needed law reforms to check such practice’. In the light of this judgment, the Commission worked specifically on these two areas and, after series of discussions, followed by a National Consultation held on 1st February 2014, submitted its 244th Report titled “Electoral Disqualifications” on 24th February 2014 to the Government of India. After the submission of Report No.244, the Commission circulated another questionnaire to all registered national and State political parties seeking their views on ten points, the response received was not very encouraging, though. However, the Commission undertook an extensive study to suggest electoral reforms, held various rounds of discussions with the stakeholders and analysed in-depth the issues involved. After detailed deliberations, the Commission has now come up with its recommendations which are put in the form its final Report, Report No.255, titled “Electoral Reforms”, which is sent herewith for consideration by the Government. With warm regards, Yours sincerely, Sd/- [Ajit Prakash Shah] Shri D.V. Sadananda Gowda Hon’ble Minister for Law and Justice Government of India Shastri Bhawan New Delhi – 110 115 ii Report No.255 Electoral Reforms Table of Contents Chapter Title Page I BACKGROUND TO THE REPORT 1-4 A History of Electoral Reforms in India 1-2 B Consultation Paper Issued by the Law 2-3 Commission C The 244th Report of the Law Commission 3 D The Present Report 3-4 II ELECTION FINANCE REFORM 5-68 A The Current Law: A Summary Snapshot 5-6 B B. Need for Election Finance Reform 7-11 C C. Laws Regulating Election Expenditure, 11-19 Contributions, and Disclosure (i) Laws regulating election expenditure for candidates 11-12 (ii) Laws regulating election expenditure for political 12-14 parties: Third party expenditure (iii) Laws regulating disclosure of election expenditure 14-16 for candidates and parties (iv) Laws regulating contribution to political parties 16-17 (v) Laws regulating disclosure of political contribution 17-19 by parties and companies D Electoral Expenditure, Disclosure, and 19-35 Contribution: A Comparative Analysis (i) United Kingdom 19-22 (ii) Germany 22-25 (iii) United States of America 25-28 (iv) Australia 28-31 (v) Japan 32-34 (vi) Philippines 34-35 E Legal Lacunae and the Under-reporting of 35-59 Election Spending (i) Understanding the reality of election financing 35-37 today (ii) Legal lacunae 37-39 (iii) Recommendations 39-53 F State Funding of Elections 53-59 (i) History of reform proposals 54-55 (ii) Comparative provisions governing public funding of 55-57 elections (iii) Recommendations 57-59 iii G Recommendations 59-68 (i) On Expenses and Contribution 59-60 (ii) On Disclosure 60-64 (iii) On Penalties 64-67 (iv) On State Funding of Elections 68 III REGULATION OF POLITICAL PARTIES 69-79 AND INNER PARTY DEMOCRACY A History of Reform Proposals 69-70 B Laws Regulating Internal Democracy 70-72 C Internal Democracy: A Comparative 72-76 Perspective Germany 72-74 Portugal 74-75 Spain 75-76 D Recommendations 76-79 IV FROM FIRST PAST THE POST TO 80-88 PROPORTIONAL REPRESENTATION A The Current System and Its Alternatives 80-81 B The Merits and Demerits of the FPTP System 81-84 (i) Simplicity 81 (ii) Stability 81 (iii) Representativeness 84 C Merits and Demerits of Proportional 83-88 Representation (i) Simplicity 83 (ii) Stability 83 (iii) Representativeness 84 D The List System in Germany 84-85 E Recommendations of Past Reports 85-87 (i) Report of the ECI on the fifth General Elections in 85 India (1971-72) (ii) Chief Election Commissioner Shakdher’s proposal 86 (iii) 170th Report of the Law Commission 86-87 F Recommendations 87-88 V ANTI DEFECTION LAW IN INDIA 89-98 A Introduction 89-91 B Exceptions to the Law on Defection 91-93 C Procedure under Paragraph 6 of the Tenth 93-98 Schedule (i) The role of the Speaker in deciding petitions 93-95 under the Tenth Schedule iv (ii) History of reform proposals 95-97 D Recommendation 97-98 VI STRENGTHENING THE OFFICE OF THE 99-108 ELECTION COMMISSION OF INDIA A Constitutional Protection of all the Members of 99-101 the ECI B Appointment of the Election Commissioners 101-105 and the CEC (i) Appointment process 101-103 (ii) Comparative practices 103 (iii) Recommendations 103-105 C Permanent, Independent Secretariat of the ECI 105-108 VII PAID NEWS AND POLITICAL 109-137 ADVERTISING A A. Introduction 109-111 B B. Paid News and Political Advertising: 111-112 Defining The Phenomena C C. Issues and Problems with Paid News and 112-116 Political Advertising D D. Legal Framework 116-123 (i) Restrictions on election expenses 116-118 (ii) Disclosure provisions 118-119 (iii) Pre-certification of political advertisements 119-120 (iv) Requirement of maintaining distinction between 120-121 news and advertisement (v) Media Certification and Monitoring Committee 121-122 (“MCMC”) (vi) Inclusion of notional expenditure of paid news into 122-123 the election expenses E Recommendations by Other Studies on Paid 123-126 News (i) Mandatory disclaimer and separation of editorial 123 and management (ii) Amendment to the RPA 124 (iii) Guidelines for determining paid news 124-126 F Constitutional Issues: Article 19(1)(a) and 126-128 Article 19(2) G A Comparative Perspective 129-132 (i) The United Kingdom 129 (ii) Australia 129-130 (iii) Canada 130 (iv) ECHR standards on permissibility of such 130-131 v restrictions (v) US standards on permissibility of restrictions 131-132 H Recommendations 132-137 (i) Definitions 132-134 (ii) Electoral offence 134-135 (iii) Corrupt practice 135-136 (iv) Disclosure for political advertisements 136-137 VIII OPINION POLLS 138-156 A Regulation of Opinion Polls in India – A 138 Background (i) Development of opinion polls in India 138 (ii) 1998 opinion poll guidelines 138-139 (iii) Challenge to the guidelines of the ECI 139-140 (iv) Important developments in 2004 140-141 (v) Amendments to RPA, 1951 – Insertion of Sections 141-142 126A and 126B (vi) Opinion polls and self-regulatory standards 142-143 (vii) Current law and late Mr. Goolam E. Vahanvati’s 143-144 view on opinion polls B Issues with Current Regulations 144-147 (i) Effects on the purity of the electoral process 144 (ii) Potential of opinion polls to influence voters 144-146 (iii) Independence of polling agencies 146 (iv) Issue of robustness in findings 146-147 C Regulation in Other Countries 147-149 (i) United Kingdom 147-148 (ii) Canada 148 (iii) France 149 (iv) Singapore 149 D Opinion Polls – A Case for Regulation, and Not 149-151 Outright Ban E Approach to Amendments 151-152 F Recommendations 152-156 vi (i) Expand scope of Section 126 of the RPA, 1951 152-153 (ii) Add specific sections on disclosures related to 153-156 opinion polls IX COMPULSORY VOTING 157-169 A Compulsory Voting in India: History and 157-159 Context B Evaluating the Arguments For and Against 159-167 Compulsory Voting (i) Participation: Does compulsory voting increase 159-163 voter turnouts and improve the quality of political engagement? (ii) Equality: Does compulsory voting ensure the 163 enfranchisement of the weaker classes? (iii) Democracy: Does compulsory voting increase the 163-165 ‘representativeness’ of the government or is it constitutionally untenable? (iv) Legitimacy: Does compulsory voting increase the 165-166 legitimacy of elected governments? (v) Other arguments for and against compulsory voting 166-167 C Compulsory Voting: A Comparative Perspective 167-169 D Recommendation 169 X ELECTION PETITIONS 170-189 A History 170 B Formalistic Nature of the Current Procedure of 171-173 Filing a Petition C Appeal Procedure 173-174 D Drawbacks in the Present System 174-179 E Comparative Practices 180-184 F Recommendations 184-189 XI NOTA AND THE RIGHT TO REJECT 190-194 A History and Context Leading up to the Supreme 190-192 Court’s Decision in the NOTA Case B Comparative Practices 192-193 C Recommendations 193-194 XII RIGHT TO RECALL 195-200 vii A History and Context 195 B Analysing the Arguments For and Against RTR 195-198 C Comparative Practices 198-199 D Recommendations 200 XIII TOTALISER FOR COUNTING OF VOTES 201-202 XIV RESTRICTION ON GOVERNMENT 203-205 SPONSORED ADVERTISEMENTS XV RESTRICTION ON THE NUMBER OF 206-207 SEATS FROM WHICH A CANDIDATE MAY CONTEST XVI INDEPENDENT CANDIDATES 208-211 A Previous Suggestions 208-209 B Comparative Practices 209 C Recommendations 209-211 XVII PREPARATION AND USE OF COMMON 212-214 ELECTORAL ROLLS XVIII SUMMARY OF CONCLUSIONS AND 215-224 RECOMMENDATIONS (i) Election Finance 215-217 (ii) Regulation of Political Parties and Inner Party Democracy 271-218 (iii) Proportional Representation 218 (iv) Anti Defection Law in India 218 (v) Strengthening the office of the Election Commission of India 219 (vi) Paid News and Political Advertisements 219-220 (vii) Opinion Polls 220-221
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