Electoral Reforms and Retrograde Measures

According to Sec. 75A of Representation of People Act, 1951 (RPA, 1951), every elected representative of the people has to submit the declaration of his assets and liabilities to the Chairman of the Council of States or the Speaker of the House of the People, as the case may be within 90 days of his taking oath in the house.

According to Sec. 75A(5) of RPA, 1951, the Chairman of the Council of States or the Speaker of the House of the People, as the case may be, may deal with the non compliance of the above (i.e., submission of declaration of assets and liabilities by the members) in the same manner as a breach of privilege of the Council of States or the House of the People, as the case may be.

In reality, we find several elected representatives get away from scrutiny by exploiting the loopholes in the RPA. There is no provision in the RPA that mandates the elected representatives to:

(i) Declare the assets and liabilities in conformity with the same as mentioned in their Income tax Returns.

(ii) Furnish such information within the time limit specified under RPA within which the Chairman of the Council of States or the Speaker of the House of the People, as the case may be has to invoke the breach of privilege clause to punish the members for non compliance of the guidelines under Sec. 75A of RPA.  

Also RPA does not contain any clause which stipulates that the representatives of the people should also submit a copy of their latest IT Returns while contesting in the elections (as a pre condition to contest the elections). This lacunae leads to manipulation or misrepresentation of the facts related to the status of assets and liabilities by the representatives of the people while contesting the elections and post elections on getting elected.

While certain Lokayutka Acts of the states mandate the MLAs and MLCs to submit their annual statements of assets and liabilities before Lokayukta, non compliance of the same by the legislators does not attract any punitive measures. Therefore, there is a need to bring legislative measures to ensure that the people are qualified to contest the elections only on submission of the copies of their latest IT Returns and statement of assets and liabilities that are in line with their IT Returns and ensure that they continue to comply with the same on annual basis subsequent to their getting elected.  

The RPA to be suitably amended to incorporate specific timelines for the Chairman of the Council of States or the Speaker of the House of the People, as the case may be, to invoke the necessary provisions as applicable for breach of privilege against those erring members and take appropriate action.

Sec. 125A of RPA says if a candidate while filing his affidavit to contest in the elections

(i) fails to furnish information relating to accusation or conviction of any offenses alleged to have been committed by him or committed by him as the case may be,

(ii) give false information which he knows or has reason to believe to be false; or

(iii) conceals any information,  

Then it shall be punishable offense with imprisonment for a term which may extend to six months, or with fine, or with both.

However, many times the candidates who have committed such offenses as mentioned above, escape punishment since the onus of proof in such cases lies with the party who claims that the candidate has committed such offense. Most of the cases typically relate to the educational qualifications of the candidates that are questionable or dubious.

In a landmark judgment in 2015 the Central Information Commission (CIC) said that political parties come under the ambit of the Right To Information (RTI) Act, and directed them to designate public information officers and appellate authorities at their headquarters. CIC gave a ruling saying the political parties are construed as public authorities as defined under RTI.

Sec 2(h) of RTI Act that says “public authority” means any authority or body or institution of self government established or constituted—

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government,

and includes any—

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;

The CIC gave its ruling classifying political parties as public authorities though they are non-government organizations as they are substantially financed by the public through donations and they also get tax exemption from the government for their incomes.

Though the CIC order that declares political parties come under the purview of RTI Act has not been challenged in the higher courts, the political parties refused to entertain the RTI queries raised against them. CIC has declared six national parties as public authorities, viz., BJP, Congress, BSP, NCP, CPI, CPI (M). Trinamool Congress Party was subsequently added to this list in September, 2016.

However, unfortunately the Central Public Information Officer (CPIO) of Election Commission took a different stand saying political parties are out of the purview of RTI Act, when a query was raised with regard to the details of the donations received by the six national political parties under the newly introduced electoral bonds.

Electoral Bonds

The electoral bonds concept was introduced in 2017-18 budget followed by detailed electoral bond scheme guidelines in 2018.

Companies Act was amended in order to enable the corporates to donate even beyond the stipulated ceiling of 7.5% of the net profits of the past three years towards the electoral bonds. Income Tax Act was amended in order to facilitate the political parties not to declare the source of donations received by them through electoral bonds for amount exceeding Rs.20,000 per donor. Also Foreign Contributions Regulation Act (FCRA) was amended enabling the political parties not to disclose the source of income/ donations received from foreign countries retrospectively for 42 years.

These amendments to the various acts will not only enable the political parties to do away with the disclosure of the source of such donations received through electoral bonds but will also shield the corporate donors whose identities will be kept as secret.

Cases have been filed in the Supreme Court saying the electoral bonds are opaque and lack transparency and the first hearing is scheduled on 2nd April, 2019. Interestingly, the Election Commission in its affidavit submitted to the Supreme Court on 25th March, 2019 in this case has stated categorically that the electoral bonds would channelize the black money for political funding through shell companies and allow “unchecked foreign funding of political parties in Bharat which could lead to Bharatiya politics being influenced by foreign companies” apart from  causing “serious impact” on transparency in funding of political parties.

The Election Commission has also submitted to the Supreme Court that it had informed the Ministry of Law and Justice about these implications way back in May 2017.

While the Supreme Court is expected to decide on the fate of electoral bonds shortly there is a dire need to address the other major issues raised in this article with regard to Sec. 75A , Sec. 75A(5), Sec. 125A of the RPA and the CICs ruling classifying the political parties as public authorities covered under RTI.


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About the Author

B.N.V. Parthasarathi
Ex Senior Banker, Management and Financial Consultant, Visiting faculty at premier B Schools and Universities. E mail- [email protected]