‘Electoral Bonds Undemocratic, Have Killed Transparency, Legitimised Crony Capitalism’

Bengaluru: Electoral bonds are “undemocratic as they have served to kill transparency in the name of donor anonymity”, S Y Quraishi, India’s former chief election commissioner told IndiaSpend in an email interview.

These bonds--95% of which have come to the ruling Bharatiya Janata Party (BJP) in 2017-18--have “legitimised crony capitalism”, said Quraishi, 72, who ran the Election Commission of India (ECI) from 2010 to 2012.

In the course of an interview, Quraishi commented on a range of topics, many controversial, including the BJP’s idea of a single election for India’s parliament and its states and a kerfuffle in the ECI over a dissenting note by one of the current election commissioners.

The ECI was embroiled in controversy during the 2019 general elections when it decided that dissenting views in the commission would not be recorded. Ashok Lavasa, election commissioner, recused himself on May 4, 2019 from model code of conduct (MCC) meetings after the poll panel cleared Prime Minister Narendra Modi and BJP chief Amit Shah of violating the MCC.

The panel should have made the dissent note “public in the interest of transparency” and avoided controversy, said Quraishi, a civil servant with the Haryana government and several central government ministries--power, youth affairs and sports, and steel--for three decades before he retired in 2006 and was appointed to the ECI.

Election commissioners and the CEC should be selected by a collegium of peers--as Supreme Court judges are--elections should be shorter to curb MCC abuses, especially on social media, and India must consider state funding of political parties, said Quraishi.

Quraishi is the author of An Undocumented Wonder: The Making Of The Great Indian Election and has edited an anthology of essays titled The Great March of Democracy: Seven Decades Of India’s Elections.

Prime Minister Narendra Modi wants to form a committee to explore the feasibility of ‘One, Nation, One Election’. What do you think of simultaneous state and national elections? Would you recommend such a move?

‘One Nation, One Election’ is certainly an appealing idea. After all, no one would object to reducing the ever increasing burden of massive expenditure incurred during elections. In 2019, a whopping Rs 60,000 crore was reportedly spent on the exercise. Due to the imposition of the MCC, it is claimed that government machinery and the life of the ordinary citizens are badly affected. The entire government machinery is involved in conducting elections, and no development activity can happen.

I would also like to add that the 3Cs--communalism, casteism, and corruption--are at their peak during elections. This was on full display in the [recent] elections where political misconduct reached new lows.

As for the ECI, it is convenient and logical to conduct elections all at once. After all the polling booth, the staff, and the voters are all the same. The prime reason for staggered elections is the limited number of security forces that have to be rotated throughout the country. Voters’ security is paramount.

Having said that, I won’t recommend it due to a plethora of constitutional and practical issues. Firstly, India follows a parliamentary system, and a five-year term is not guaranteed. Often, there are very loose coalitions working on the basis of a consensus. What happens if there is premature dissolution? Will all state assemblies go to the polls again? That sounds both absurd and fundamentally undemocratic.

Secondly, it is inaccurate to say that MCC thwarts development works during elections. Only new schemes are stopped as these could be tantamount to enticing or bribing voters on the eve of elections. All ongoing programmes are unhindered. Even new announcements that are in urgent public interest can be made with the prior approval of the ECI.

Additionally, poor people love frequent elections as it ensures that politicians regularly show their face to the voters. The local, state, and national level issues sometimes vary widely due to the diversity of our population and its needs. Our federal polity ensures that national and local issues aren’t mixed up. It will be unwise to subjugate the local mandate to the whims of politics beyond.

To eliminate the plethora of issues associated with frequent elections, there are feasible alternatives available that are just as effective. For curbing the rising costs of elections, the expenditure incurred by political parties can be capped.

During the Rajya Sabha debate on electoral reforms on July 3, Vinay Sahasrabuddhe (MP) of the BJP made a suggestion in the Rajya Sabha [upper house of parliament] that the proposal should be understood as a call for minimum cycle of elections rather than ‘One Nation, One Election’. I support this. The duration of elections can be reduced to 33 to 35 days by raising more battalions of central armed police. As I have said before, the ECI can conduct elections in a single day if there are enough security forces. Violence, social media-related transgressions, and issues related to the enforcement of the MCC, will vanish if the election is conducted in a single day.

‘One Nation, One Election’ might be an attractive choice, but it’s not practical. Minimum cycle of elections is better. My suggestion is that it is unwise to tinker with the constitution until a solid consensus is reached. A committee to discuss the pros and cons of the proposal is however welcome.

There were complaints against the election commission for giving clean chits to PM Modi and BJP chief Amit Shah in complaints regarding violation of the MCC during the 2019 parliamentary elections. Election commissioner Ashok Lavasa, who dissented with the majority view, recused himself from cases relating to such violations. How do you view the ECI’s role in this matter and in the recent elections overall? Are dissent notes unprecedented or are they routine, and how can such situations be prevented in the future?

Unfortunately, this election was to be celebrated as an achievement of 12 million of our polling staff [in conducting elections], but this was overshadowed by several controversies. The repeated violations of the MCC, rampant hate speech, worsening political discourse, the chopper raid in Odisha, the ECI’s delayed response and lack of transparency, the role of money, media and mafia, and the repeated interventions of the judiciary for reminding ECI of its powers sadly stand out. Now that the dust has settled on a truly historic accomplishment, it is time to take stock of the electoral process.

As for dissent within the [election] commission, although such notes are not routine, they are not unprecedented either. I think they should have been made public in the interest of transparency. It was another one of the many such avoidable controversies that the commission found itself in.

I believe it is time to empower the ECI to bring it in tune with the challenges of conducting the world’s largest elections in the 21st century. After all, the commission was envisaged as a fiercely independent body with far-reaching constitutional mandate.

These solutions require political will and consideration of national interest over party political calculations. Depoliticisation of constitutional appointments by selecting the election commissioners and the chief election commissioner through a broad based collegium, reducing the cycle of elections to curb MCC abuses especially on social media, state funding of political parties to curb the increasing influence of black money, and giving ECI powers to deregister recalcitrant and delinquent political parties [are] urgent solutions that will enable the commission to maintain its fierce independence and historic credibility, which seems to be under incredible stress at the moment.

Do you believe the ECI has enough powers to take action against erring candidates or political parties, and to ensure free and fair elections?

I believe that small changes can lead to big improvements. The ECI was envisioned as the most powerful electoral management body in the world, and it has maintained its impeccable record in conducting free and fair elections in the most trying of circumstances.

The MCC has proven to be a moral code; things seem to be getting progressively worse with each election. The unconstitutional conduct of politicians and effects of rampant hate speech extends far beyond the election rhetoric. It is slowly eating into the very vitals of society and causing social fragmentation and discord.

However, contrary to popular opinion, making MCC into law will be counterproductive. It will not only increase the burden of litigation, but transfer powers from the commission to the domain of the judiciary. The EC doesn’t need more powers, and it has never asked for it. It just needs the existing laws be fine tuned. For example, the commission is the registering authority for political parties, but it has no powers to deregister them at present. Thus, recalcitrant political parties get away with gross violations despite repeated advice from the commission. In short, it needs action from parliament on over 40 reform proposals that remain pending over the last four decades.

A complainant is liable for prosecution (under Section 49 MA of Code of Election Rules) if a complaint regarding the malfunctioning of an Electronic Voting Machine (EVM) and voter verifiable paper audit trail or VVPAT is found to be false. The Supreme Court had asked the EC and the Centre to respond to a PIL on the decriminalisation of such complaints. Your comments?

While it is true that there has to be a deterrent against false complaints of EVM malfunction, the present rule needs to be reviewed. For years, the allegation has been made that the EVM may not send every vote to a pre-programmed destination but every other vote, say third or fifth. In this context, at least five, ideally 10 votes must be cast on the suspected EVM before declaring the EVM innocent and the complainant guilty.

The BJP received nearly 95% of the electoral bonds in 2017-18, and nearly Rs 600 crore in the six years till 2017-18 from companies such as DLF and Bharti Enterprises. You said that electoral bonds legitimise “crony capitalism”. What are the solutions and how can transparency be introduced in electoral funding?

The regressive impact of [this] electoral reform was on full display in the 2019 elections. These bonds are undemocratic as they have served to kill transparency in the name of donor anonymity. They have legitimised crony capitalism. It is no wonder that a whopping 99% of the total donations were of Rs 10 lakh and above, most of them to the ruling party. Does the common citizen have the money to donate in such large amounts? Quid pro quo is a common demerit of a system where large corporate donors fund political parties.

My solution is one that I have elaborated upon at length at several places; state funding of political parties. This is different from state funding of elections which is a common prescription. We can never estimate the total expenditure and its various sources in an election, as that will be a logistical nightmare. But political parties can easily be monitored by undertaking CAG [Comptroller and Auditor General] audits of their accounts.

How will the state fund political parties? On the basis of the number of votes obtained in the previous election. Corporate donations will be totally banned under such a system. For instance, Rs 100 can be given per vote. Another option is a National Electoral Fund to which citizens and corporations can donate. The present system is detrimental to the long-term interests of meaningful democracy.

You wrote, “The [Supreme Court’s] verdict [on criminalisation of politics] has arrived as a huge disappointment when seen in the context of the need for untainted parliamentarians.” About 43% of newly elected members of parliament (MP) face criminal charges, a 26% increase from the previous (16th) Lok Sabha. Is this a worrying trend? What needs to change in terms of legislation, and how can the ECI be proactive in such matters?

These are terrifying statistics. How can we expect meaningful and progressive legislation from legislators with criminal cases? What we need are untainted MPs. For the past 20 years, the ECI, frustrated by its own helplessness in the matter, has been crying hoarse to the government, political parties, and the Supreme Court for help in stemming corrupt influences on our legislatures. But the September 2018 verdict was the court’s lost chance as it proceeded to throw the ball back in the commission’s court.

According to Article 102(1) of the Constitution, Parliament is obliged to make a law on the matter. But if history is any indicator, there is a slim chance, if any, that legislative action will follow the Supreme Court judgement. In fact, political parties appear to be competing to field criminal candidates, as their ‘winnability’ is proven to be more. The past three Lok Sabha [elections] have seen an increasing number of legislators with criminal background--128 in 2004, 162 in 2009, 185 in 2014 and 233 in 2019. No wonder within a year of the judgement, the new Lok Sabha has a record number of people with heinous cases against them.

The commission is consistent in its recommendations; bar candidates accused of an offence punishable with at least five years of imprisonment from contesting elections after charges are framed against them by a court. Most political parties oppose this under the garb of either politically motivated convictions or [that they are] innocent until proven guilty. Why isn’t the same standard applied to 300,000 undertrial prisoners languishing in our prisons? 

All criminal cases will not invite a ban; only those concerned with heinous offences like rape, dacoity, murder, and kidnapping. Secondly, the case should be registered at least six months before the elections. Thirdly, a court must have framed the charges. It is up to the parliament to act on the issue, which I am doubtful. Why will it legislate against its own self interest?

Judicial activism has many a time saved this country when the executive and the legislature were unwilling to act. This was an activist measure from the judiciary that would have been welcome.

(Paliath is an analyst with IndiaSpend.)

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