Law Commission rejects 'Right to recall' and Right to reject, suggests barring independent candidates in Elections in its 255th report

The Law Commission of India today came up with its report on Electoral Reforms. The 255th report of the Law Commission mentions recommendations for election finance reforms that include laws regulating election expenditure, contributions, and disclosure and a comparative analysis with laws in United Kingdom, Germany, United States of America, Australia, Japan, Philippines on electoral expenditure, disclosure, and contribution.The Commission also analysed the other aspects of Election law and came up with the report.The Commission also highlighted the legal lacunae and the under-reporting of election spending and recommended that "On a separate note, the authorisation of corporate contribution through a resolution passed at the meeting of the Board of Directors under Section 182(1) of the Companies Act, 2013 should be amended to empower a larger group of people, such as the company's shareholders, in deciding howto use the funds of a company for political purposes. This has been done in the United Kingdom as well. Section 182(1) should be amended to this effect" amongst several other recommendations."On the point of Disclosure, the Commission recommended that, "Additionally, the auditing provisions should be enforced across all the levels of political parties, including the national, regional, local, and sub-local levels. It is pertinent to note that the Law Commission had recommended the insertion of a new Section 78A in its 170th Report in 1999 on the "Maintenance, audit, publication of accounts by political parties".The Commission through its report recommended some additional liabilities on both political parties and Election Commission of India. The Commission recommended, "(a) All parties to submit the names and addresses of all their donors(regardless of the amounts or source of funding) for contributionsgreater than Rs. 20,000 through a new section 29D, RPA. Amaximum of up to Rs. 20 crore or 20% of the party's entirecollection, whichever is lower, can be anonymous;(b) The ECI to upload all the annual returns of the parties (undersection 29E) and the district election officer to upload the electionand contribution expenses of candidates (under section 78A) andkeep the same on record for public inspection for three years.(c) Parties to submit election expense accounts within a specified period after every Parliamentary or State election, pursuant to the Supreme Court's judgment in Common Cause vs Union of India."and the ECI's notifications on election expenses and transparency guidelines through a new section 29F."The Commission also recommended that the penalty to not disclose election expenses be increased from current three years to five years in jail. It also recommended that a defaulting candidate should be disbarred from contesting the next general elections.Importantly, regarding the state funding of elections in India, the Commission recognized the current economic situation and recommended that state funding is an unfeasible option in the current circumstances. It recommended, "Given the high cost of elections and the improbability of being able to replace the actual demand for money, the existing system of giving indirect in-kind subsidies instead of giving money via a National Election Fund, should continue."In the chapter III of the report, the Law Commission discussed the regulation of political parties and inner party democracy. The Commission did a comparative analysis in this case as well, by considering laws from Germany, Portugal and Spain. The report notes, "Although it is open for India to follow Germany/Portugal or Spain's example, it is recommended that any powers to the ECI should extend to the regulation of action and not ideology, given the complex socio-religious-political fabric of the country, its diversity,and secular principles."Accordingly, the Commission suggested, "Section 29A(5) of the RPA should be amended is in accordance with the draft Political Parties (Registration and Regulation of Affairs) Act to require parties to insert a specific provision in their memorandum to"shun violence for political gains, and avoid discrimination or distinction based on race, caste, creed, language or place of residence"."The Law Commission in its report also considered moving on from the current system of first past the post. It considered various other options like proportional representation and analysed merits and demerits of both the systems. However, the Law Commission was unable to provide a conclusive recommendation but instead said, "As a result, the Law Commission recommends that the findings of the 170th Law Commission Report on the proportional system may be examined by the Government to determine whether its proposals can be made workable in India at present."Examining the anti-defection law in India, the Commission recommended,"suitable changes be made in the "Tenth Schedule of the Constitution which shall have the effect of vesting the power to decide on questions of...

Law Commission rejects 'Right to recall' and Right to reject, suggests barring independent candidates in Elections in its 255th report

Gaurav Pathak

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