THE ELECTION COMMISSION OF INDIA – THE ROAD AHEAD
Author: Piyush Gupta, I year of B.A.,LL.B.(Hons.) from National Law Institute University Bhopal
It is often said that the Elections in India are the most celebrated festival. On one hand, while the statement shows the vibrancy of Indian Democracy, on the other hand, it also shows the challenges that elections bring with them, despite the fact that India is conducting elections for more than 70 years with well-functioned machinery in place. With 28 States and 8 Union Territories and a population of over 125 Crore, The Election Commission of India cannot be blamed for this.
When the Election Commission of India announced the election for the Himachal Pradesh Assembly on November 12, it marked the start of an action-packed election calendar for the period of 2022-24. While the general election of 2024 is the most crucial one, the different state elections in between that period are likely to have their own bearing transcending their respective states. The political contest is ready for a fierce battle with Bhartiya Janta Party (BJP) directly at loggerheads with Indian National Congress (Hereinafter Congress) at the national level and with regional parties in their respective regional domain. However, in the difficult times of today, the role of the Election Commission of India headed by Rajiv Kumar is more crucial than ever before.
Among the problems to be faced by ECI, one of the prominent ones is with respect to protecting its image as a neutral arbitrator and independent body. The ECI was set up in 1950 with Sukumar Sen as its first Commissioner and since then it has gained a name for itself in the world as well as in the hearts of Indian people as a body for independently conducting elections. This has buttressed the beliefs of people in India and the world in the democracy of India. However, in recent times, the decisions of ECI have come under a host of criticisms from different sections of opposition parties, questioning the independence and impartiality of the Election Commission of India. Questions have been raised about the proper and uniform enforcement of the Model Code of Conduct (MCC) by the ECI across political parties. The ECI has often been accused of favouring the ruling party while enforcing the MCC. When the previous Election Commissioner Sushil Chandra paid a visit to Principal Secretary to Prime Minister, doubts about the presence of any nexus between the ruling party and the Election Commission of India only got strengthened. Experience in the past few elections of West Bengal, Maharashtra and Madhya Pradesh has not helped ECI to preserve its image as an impartial body. Just when ECI announced the elections for the Himachal Pradesh Assembly, the opposition parties levelled their criticism on the fact that I failed to announce the election schedule for the Gujrat assembly and alleged that it was done to give the PM extra time to announce more schemes. This does not bode well for the credibility of the Election Commission and it is incumbent on it to do all that is necessary to stay true to its core goal of conducting free and fair elections.
The other major problem that EC facing at this point in time is related to the funding of political parties. Political funding refers to the myriad of methods that EC uses to raise funds to finance their candidates, advertising campaigns, reach to voters et cetera. Though there are statutory provisions such as Section 29B and Section 29C of The Representative of the People Act (RPA) for regulation of political funding, their implementation of them is lackadaisical. Section 29B of the RPA allows political parties to accept voluntary contributions by any person or company, except a government company, while Section 29C mandates political parties to declare donations that exceed 20,000 rupees. Such a declaration is made by making a report and submitting the same to the EC. Failure to do so on time disentitles a party from tax relief under the Income Tax Act, of 1961. The way of funding that has come under the fire is related to corporate funding which is governed by Section 182 of the Companies Act 2013. The Government of India (GOI) removed the cap of 7.5% on corporate funding in 2017 by an amendment to Finance Act 2017 and thereby open the floodgates of funding for the political party, of which a major portion has been apportioned by the ruling party. This unrestricted source of funding has often been used in an undemocratic manner and therefore has disturbing ramifications for the electoral eco-system of India. The notorious Electoral Bond Scheme that was introduced in the year 2018 has very quickly become the primary instrument of political parties to hide their source of funding. The problem before the ECI is that the matter related to Electoral Bonds is sub-judice. The fact that there are not any explicit provisions either in the Model Code of Conduct (MCC) or in the constitution that defines the role of ECI in regulating the funding of political parties makes the situation more complex for it. However, maintaining the fact that funding of political parties is an important indicator of its policies, position on different, manifestoes, candidate selection et cetera, it is of utmost importance for ECI to devise some way of regulating the funding of political parties and come with a method that ensures transparency issues and accountability of political parties.
The last major impediment for the ECI to conduct free and fair elections is the booming criminalisation of politics. A report by the Association for Democratic Reforms has analysed 2495 candidates' affidavits and found that 363 sitting MPs and MLAs have declared criminal cases against them. This criminalisation of politics erodes the trust of the voter in democratic values and significantly reduced the efficiency of Assemblies. Credit to the Indian Judiciary which has time and again intervened to stop the criminalisation of politics. In 2002, The Supreme Court directed the candidates to file an affidavit mentioning the details of criminal antecedents, educational qualifications and details of their assets. Also, in Brajesh Singh v Sunil Arora and Ors, 2021, the SC filed a contempt of court case against eight political parties which had failed to adhere to the guidelines given by the court during the time of the Bihar state election in 2020. While the nexus between criminals and politicians has become an accepted phenomenon in society, the ECI should not take it as a foregone conclusion. The directions given by the Supreme Court should guide the actions of the ECI in curtailing the thriving nexus of criminals and politicians.
The Election Commission of India is a very powerful body that has its basis in part XV of the Indian Constitution. There is a number of provisions in the Indian Constitution such as Article 324, 325 et cetera to protect the independence of the Election Commission of India. It is the very basis of ECI to remain neutral and play the role of an impartial arbitrator to conduct free and fair elections. Though there are a number of challenges in front of ECI in upcoming elections, the fact that ECI has successfully conducted elections in India for the last 70 years is an example of resilience and hence more than capable of handling the impending challenges
The Hindu Bureau,’Himachal Pradesh Polls Announced’ The Hindu (New Delhi 14 October 2022) <https://www.thehindu.com/news/national/other-states/assembly-elections-2022-gujarat-himachal-pradesh-poll-schedule/article66009359.ece> accessed on 15 October 2022. Anuradha Raman, ‘Questioning the impartiality of the Election Commission’ The Hindu (New Delhi 20 December 2021) <https://www.thehindu.com/news/national/explained-questioning-the-impartiality-of-the-election-commission/article37995269.ece> accessed on 15 October 2022 The Hindu Bureau, ‘ECI Shows partiality to ruling party: plea’ the Hindu (New Delhi 23 June 2021) <https://www.thehindu.com/news/national/eci-shows-partiality-to-ruling-party-plea/article34939365.ece> accessed on 15 October 2022  Ibid 3 Express Indian Service, ‘EC holds back date for Gujrat’ The Indian Express (New Delhi 15 October 2022)https://indianexpress.com/article/india/gujarat-himachal-pradesh-election-schedule-dates-voting-counting-result-8207823/ accessed on 15 October 2022  The Representation of People Act 1951 (43 of 1951)  The Companies Act 2013 (121-C of 2011) Abhimanyu Hazarika, ‘ Supreme Court to hear plea challenging Electoral Bonds scheme’ The Bar and Bench (New Delhi 13 October 2022) <https://www.barandbench.com/news/supreme-court-hear-plea-challenging-electoral-bonds-scheme-october-14> accessed on 18 October 2022.