Challenges with the Election

1. Criminalisation of Politics:

According to ADR, 187 MPs in Lok Sabha have criminal charges and 113 face Serious criminal charges.

Causes of Criminalisation of Politics:

Vote bank Politics
Black money in elections:- Since candidates with criminal records often possess greater wealth, they ensure greater inflow in money, labour and other advantages that may help a party in successful campaign, and also possess greater ‘winnability’
Lack of Intra-party democracy
Lack of adequate deterrence: Due to the low levels of convictions of MPs and MLAs, and delays in trials political parties are not deterred from giving tickets to criminals.
First Past the Post (FPTP) electoral system: The FPTP electoral system allows a candidate to be declared elected from the constituency on the basis of plurality of votes polled and not on the majority of votes polled. Thus, a candidate with as low as 25-30% of valid votes polled may get elected. Criminals do not find it difficult to secure the votes because of the use of their money and muscle power.

Legal Frameworks related to Criminalization in Politics

Parliament through the RPA has prescribed further qualifications and disqualifications for membership to Parliament or to a Legislative Assembly.

Section 8 of the Act lists certain offences which, if a person is convicted of any of them, disqualifies him from being elected, or continuing as a Member of Parliament or Legislative Assembly.
A candidate to any National or State Assembly elections is required to furnish an affidavit, in the shape of Form 26 appended to the Conduct of Election Rules, 1961.
Failure to furnish this information, concealment of information or giving of false information is an offence under Section 125 of the RPA.

Initiatives taken by SC in this regard

2013: In Lily Thomas v. Union of India, The SC held that Section 8(4) of The Representation of the People Act, 1951 is unconstitutional which allows MPs and MLAs who are convicted to continue in office till an appeal against such conviction is disposed of. The court held that MP/MLA convicted for two years or above would be disqualified immediately.
2018: In Public Interest Foundation & Others Vs Union of India, left the matter of disqualification of politicians carrying criminal charges against them, to the Parliament saying that the court cannot add to the grounds of disqualification. However, it made the following directions:
While filling the nomination forms, candidates must declare their criminal past and the cases pending against them in bold letters.
Political parties are also responsible for putting up details of criminal cases filed against their candidates on their websites.
Candidate and the concerned political party will have to issue a declaration in widely circulated newspapers in the locality and in electronic media about his or her criminal antecedents
2020, the court had asked the particle parties to state “The reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.” If a political party fails to comply, it would be in contempt of this court’s orders.

Recommendations

The Law Commission in its 244th report on Electoral Reforms titled “Electoral disqualifications” had put forward recommendations on the-criminalization of politics. The main recommendations include:

Expediting trials in relevant courts where a case is led against a sitting MP/MLA and to conduct the trial on a day-to-day basis with an outer limit of completing the trial in one year.
The punishment for filing false affidavits under Section 125A be increased to a minimum of two years.
Conviction under Section 125A should be made a ground for disqualification under Section 8(1) of the RPA, 1951.

2nd ARC: The Second Administrative Reforms Commission in its fourth report on Ethics in Governance (2008) made the following recommendations:

Section 8 of RPA needed to be amended to disqualify all persons facing charges related to grave and heinous offences and corruption, where charges have been framed six months before the election.
It also supported the proposal of including filing of false affidavits as an electoral offence under Section 31 of Representation of the People Act, 1950.

2. Political Funding:

Political Funding implies the methods that political parties use to raise funds to finance their campaign and routine activities.

The sources of Political Funding are:-

Individual Persons: Section 29B of RPA allows political parties to receive donations from individual persons.
Corporate Funding: In India, donations by corporate bodies are governed under the Companies Act, 2013.
State/Public Funding: Here, the government provides funds to parties for election related purposes. State Funding is of two types:
Direct Funding: The government provides funds directly to the political parties. Direct funding by tax is prohibited in India.
Indirect Funding: It includes other methods except direct funding, like free access to media, free access to public places for rallies, free or subsidized transport facilities. It is allowed in India in a regulated manner.

Issue of Political funding

One of the biggest disadvantages of the corporate funding is the use of fake companies to route black money.
Influence of people and companies over political parties to which they provide funds.
There are various gaps in Indian rules, the benefit of which political parties take to avoid any kind of reporting.
Hidden sources of funding lead to more spending of funds in election campaigns, thus impacting the economy of the country.

Recent steps taken by Government to check issue of political funding:

(a) Electoral Bond: Electoral bond is a bearer instrument in the manner of a promissory note and an interest free banking instrument whereby a citizen, or a corporate body, in India is eligible to purchase through cheque or digital payments.

Electoral Bond

Benefits of Electoral Bond:

Some element of transparency would be introduced in as much as all donors declare in their accounts the amount of bonds that they have purchased and all parties declare the quantum of bonds that they have received.
According to government the system of Bonds will encourage political donations of clean money from individuals, companies, HUF, religious groups, charities, etc.

Issues with Electoral Bond:

The bonds are not registered in the name of a specific person as a result donations through electoral bonds continue to provide anonymity to donors.
Non- disclosure to Election Commission:- While RoPA,1951 specifies that donations received by political parties in sums greater than Rs 20,000 be disclosed to the tax authorities, the Finance Bill,2017 explicitly provides an exemption from this clause to electoral bonds.
Not enough secrecy:- Another concern raised by political parties against electoral bonds is that the incumbent government can easily find out donor details using KYC details shared with banks. This could make the instruments unpopular.

Suggestion:

National Electoral Fund, as suggested by former Chief Election Commissioner S.Y Quraishi, to which all donors can contribute is another plausible alternative.
To bring all parties on a level playing field and to make private donations less relevant, state funding of elections can also be explored.
Election Commission has suggested that parties be made to disclose contributions received in cash for smaller sums in case they exceed 20% of total funds raised. This can be considered.

(b) Required Amendment in RPA:

Section 62 of RPA, 1951:- Amendment should be done so that a person cannot cease to be a voter while in detention as his or her right is only temporarily suspended.
Section 77 of RPA, 1951: The expenditure incurred by leaders of a political party on account of travel by air or by any other means of transport for propagating programme of the political party shall not be deemed to be the expenditure in connection with the election incurred.
Section 126 of RPA, 1951: Amend Section 126(1) of RPA to impose the “campaign silence period” on print, electronic media and intermediaries.
Section 20A of the Act:- So that Overseas voters can appoint a proxy to cast their votes on their behalf.

3. Paid news:

The issue of paid news has been debated for a long time, most recently during the Gujarat Assembly election, the Jindal Steel Zee news dispute, and disqualification of UP MLA by ECI in October 2011.

Meaning of Paid News

The Press Council of India (PCI) defines paid news as any news or analysis appearing in print or electronic media for consideration in cash or kind.

Issue of Paid News

Display of money power: The payment modes usually violate tax laws and election spending laws. It displays the role of money in elections.
Hits the bottom of democracy: Such news play a significant role in influencing voting tendency of voters as the viewer does not get a correct picture of the personality or performance of the candidate in whose favour or against he decides to cast his vote. This destroys the very essence of the democracy.
Affects free and fair elections: Such practices interfere with free and fair elections in the country by violating democratic principle enshrined in our constitution.
Curbs the faith of people in media: Media is described as the fourth pillar of democracy. Such incidents bring down the faith of people in democratic institutions by conveying incorrect and false information to the people.

Reason for rise in Paid News

The Committee identified corporatisation of media, desegregation of ownership and editorial roles, decline in autonomy of editors/journalists and poor wage levels of journalists as key reasons for the rise in incidence of paid news. The statutory regulators like the PCI and Electronic Media Monitoring Centre (EMMC) lack adequate punitive powers while self-regulatory industry bodies like the News Broadcasting Standards Authority have even failed to take cognisance of the problem.

Major Challenges in Paid News:

The Standing Committee on IT acknowledged challenges in defining and establishing incidence of paid news, citing new manifestations like advertisements disguised as news, denial of coverage to select electoral candidates, private deals between media houses and corporates and the rise in paid content.

Election Commission Guidelines to Curb Paid News:

All state Chief Electoral Officers will have to obtain a list of all TV and radio channels and newspapers in the state as well as their standard advertisement rate cards six months before the term of the Lok Sabha or the State Legislative Assembly expires.
Setting up of Media Certification and Monitoring Committee (MCMC) at district and state level which will have to monitor all political advertisements in relation to candidates.
The committee will intimate the Returning Officer for issue of notices to candidates for inclusion of notional expenditure based on standard rate cards in their election expenses account, “even if they actually do not pay any amount to the channel/newspaper, that is otherwise the case with paid news.”
The expenditure will also include publicity for a candidate by a “star campaigner” or others, to impact his electoral prospects.

Suggestions:

It urged the MoIB to ensure periodic review of the editor/journalist autonomy and wage conditions.
ECI recommended inclusion of indulgence by an electoral candidate in paid news as a corrupt practice and publication of such paid news as an electoral offence.
The Committee recommended the establishment of either a single regulatory body for both print and electronic media or setting-up a statutory body for the electronic media on the lines of the PCI.