Common Cause Campaigns for Electoral Reforms
Legal Interventions Made in the Supreme Court Since 1995
By Common Cause Team
Common Cause has been working for electoral reforms for nearly three decades. It has made several democratic interventions to bring accountability in the process of conducting free and fair elections. The idea of electoral reforms for the organisation is a consistent process and not a onetime event.
Common Cause noted with concern that the excessive use of money and muscle power has consistently weakened democracy. The number of candidates and elected representatives with criminal cases pending against them is rising with each successive election. As a civil society watchdog, Common Cause has been making representations with the authorities concerned about cleaning the system. It has filed several writ petitions in the public interest in the Supreme Court of India.
The organisation has continued its crusade for better transparency and accountability in the electoral system despite the reluctance of successive governments to implement electoral reforms. CC’s main legal interventions for cleaner elections are:
Petition for Maintenance and Audit of Accounts of Political Parties
CC approached the Supreme Court (SC) in 1995 (Common Cause v. Union of India & Ors.1 ) to bring transparency to the election funding and source of expenditure incurred by the political parties and candidates in the election process. Although the political parties were required to maintain audited accounts and comply with the other conditions under Section 13A of the Income-tax Act to be eligible for tax exemption, most parties had done neither.
In its landmark judgment, the SC held that the political parties were under a statutory obligation to file return of income for each assessment year. The Court further directed that under Article 324 of the Constitution,
The organisation has continued its crusade for better transparency and accountability in the electoral system despite the reluctance of successive governments to implement electoral reforms.
the Election Commission of India (ECI) has power to issue -- in the process of the conduct of elections -- directions to the effect that the political parties shall submit to the Commission for its scrutiny, the details of the expenditure incurred or authorised by the political parties in connection with the election of their respective candidates. This judgment not only marked a significant progress in the campaign for a cleaner polity, but also paved the way for mandatory declaration of expenditure in election process by the political parties and candidates.
Petition for Directions to Combat Criminalisation of Politics
In 2011, CC along with other civil society members, filed a PIL (Public Interest Foundation & Ors. v. Union of India & Anr.2 ) in the Apex Court for decriminalising politics. This PIL sought expeditious disposal of criminal cases against members of Parliament and Legislative Assemblies. It also challenged the powers of Section 8(4) of the Representation of the People Act, 1951 (RPA), whereby the disqualification of candidates following their conviction was automatically suspended on filing an appeal or a revision application.
On March 10, 2014, the Supreme Court in its interim order held that trials in criminal cases against lawmakers must be concluded within a year of the charges being framed and must be conducted on a day-to-day basis. Unfortunately, even after a lapse of more than 10 years, the order of the Apex Court is yet to be implemented.
In its final judgment, the Apex Court, among other directions, held that each contesting candidate shall submit before the ECI the particulars of criminal cases pending against them.
The prayer of CC to hold Section 8(4) of the RPA as unconstitutional was granted in a separate PIL. The Apex Court held that Parliament did not have the competence to provide different grounds for disqualification of applicants for membership and sitting members.
SLP in Support of the Powers of the Election Commission
In 2011, former Maharashtra Chief Minister Ashok Chavan challenged in the Delhi High Court the power of the ECI to issue notice under Section 10A of the RPA, seeking to disqualify a candidate on account of incorrect return of election expenses. The High Court upheld the ECI’s power to inquire into the correctness of the account of election expenses filed by a candidate. Subsequently, Mr Chavan filed a Special Leave Petition (SLP) against this order. The Union Government claimed that in terms of Section 10A of the RPA and Rule 89 of the Conduct of Election Rules, the power of the Commission to disqualify a person arose only in the event of failure to lodge an account of election expenses and not for any other reasons.
Common Cause made up its mind to put its weight behind the ECI in this matter and intervened in the SLP in 2011, along with other like-minded civil society organisations and eminent citizens.
Dismissing Mr Chavan’s SLP, the SC upheld his disqualification by the ECI for three years. This judgment is a milestone in establishing the right of the ECI to take steps to ensure free and fair elections.
Petition Challenging Electoral Irregularities
Common Cause, along with ADR, filed a writ petition in 2019, challenging electoral irregularities and to ensure free and fair elections and rule of law. The PIL was filed to ensure that the democratic process is not subverted by electoral irregularities and for the enforcement of fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution.
The petition highlighted the
The PIL was filed to ensure that the democratic process is not subverted by electoral irregularities and for the enforcement of fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution.
dereliction of duty on the part of the ECI in declaring election results (of the Lok Sabha and State Legislative Assemblies) through Electronic Voting Machines (EVMs), based on accurate and indisputable data which is put in the public domain and sought a direction from the SC directing the ECI not to announce any provisional and estimated election result prior to actual and accurate reconciliation of data.
They further sought a direction to the ECI to evolve an efficient, transparent, rational and robust procedure/mechanism by creating a separate department/ grievance cell.
PIL for the Disclosure of Accurate Election Turnout Figures
On May 10, 2024, Common Cause, along with ADR, also filed an Interlocutory Application (IA) seeking directions to the ECI to disclose authenticated records of voter turnout by uploading on its website scanned legible copies of Form 17C Part-I (Account of Votes Recorded) of all polling stations after each phase of polling in the 2024 Lok Sabha elections, and to place in public domain a tabulation of the constituency and polling stationwise figures of voter turnout in absolute numbers and in percentage form for the 2024 LS elections. On May 24, the Court did not grant any relief in the IA and directed it to be listed with the original writ petition.
PIL to Check the Wastage of Public Money for Political Advertising
In its bid to ensure that the government in power did not waste public funds on largescale advertisements, Common Cause approached the Apex Court in 2003. Despite the SC judgment in 2015, issuing several guidelines aimed at regulating government advertisements to check the misuse of public funds, the trend continues unabated.
An analysis of the annual audit reports of the political parties submitted to the ECI shows that more than Rs 6,500 crore was spent on elections by 18 political parties, (7 national parties and 11 regional parties), between 2015 and 2020. Of this, political parties spent more than Rs 3,400 crore, or 52.3 per cent, on publicity alone.3
Therefore, Common Cause once again approached the SC in 2022, seeking directions to put a curb on wastage of public money by political parties to gain mileage. The matter is yet to be heard by the Apex Court.
Petition to Challenge the Electoral Bonds Scheme
Common Cause and ADR have challenged the introduction of the Electoral Bonds Scheme as part of the Finance Act 2017 which had made electoral funding of political parties more opaque and legitimised corruption to an unprecedented scale.
On February 15, 2024, in a unanimous judgment, a fivejudge bench of the Supreme Court held that the Electoral Bond Scheme of 2018 was violative of Article 19(1)(a) of the Constitution and hence, unconstitutional.
The bench further held that the proviso to Section 29C(1) of the Representation of the People Act 1951 (as amended by Section 137 of Finance Act 2017), Section 182(3) of the Companies Act (as amended by Section 154 of the Finance Act 2017), and Section 13A(b) (as amended by Section 11 of Finance Act 2017) are violative of Article 19(1)(a) and unconstitutional.
Common Cause once again approached the SC in 2022, seeking directions to put a curb on wastage of public money by political parties to gain mileage.
It was further held by the Court that the deletion of the proviso to Section 182(1) of the Companies Act permitting unlimited corporate contributions to political parties is arbitrary and violative of Article 14.
In addition, the Court issued the following directions:
(a) The issuing bank shall herewith stop the issuance of Electoral Bonds;
(b) The State Bank of India (SBI) shall submit the details of Electoral Bonds purchased since the interim order of the Court dated April 12, 2019, till date to the ECI. The details shall include the date of purchase of each Electoral Bond, the name of the purchaser of the bond, and the denomination of the Electoral Bond purchased;
(c) SBI shall submit the details of the political parties that have received contributions through Electoral Bonds since the interim order of this Court dated April 12, 2019, till date to the ECI. SBI must disclose details of each Electoral Bond encashed by political parties which shall include the date of encashment and the denomination of Electoral Bond.
(d) SBI shall submit the above information to the ECI by March 6, 2024;
(e) The ECI shall publish the information received from the SBI on its official website by March 13, 2024; and,
(f) Electoral Bonds that are within the validity period of 15 days but have not been encashed by the political party yet shall be returned by the political party or the purchaser depending on who is in possession of the bond to the issuing bank. The issuing bank, upon the return of the valid bond, shall refund the amount to the purchaser’s account.
Contempt Petition against Non-Disclosure of Information by the SBI
On March 4, 2024, the SBI filed an application in the Supreme Court seeking an extension of time till June 30, 2024, to furnish information regarding details of electoral bonds purchased and details of each electoral bond redeemed by political parties to the ECI which, was required to be furnished by March 6, 2024.
In response, Common Cause and ADR filed a contempt petition against SBI which was heard on March 11, 2024. It was contended that the information which was directed to be disclosed by the Court can easily be disclosed by the SBI because of the unique number which is printed on the Electoral Bond. Irrespective of whether the unique identification number, which is not discernible to the naked eye, will enable the disclosure of details, the submissions of SBI in the application sufficiently indicate that the information which has been directed to be disclosed by the Court is readily available.
The Apex Court dismissed the extension application filed by SBI and directed it to disclose the details by the close of business hours on March 12, 2024. The Court further directed that ECI shall compile the information and publish the details on its official website no later than by 5 pm on March 15, 2024.
Petition for SIT Investigation in Electoral Bonds Scam
Common Cause, along with Centre for Public Interest Litigation (CPIL), filed a writ petition before the Supreme Court for enforcement of the right of the people under Article 14, 19 and 21 of Constitution seeking direction for a courtmonitored investigation by an SIT into the overwhelming instances of apparent quid pro quo between political parties, corporates and officials of investigation agencies, and other offences, as have been disclosed from the electoral bond data published by the ECI pursuant to judgment in Electoral Bonds Scheme Case.
The electoral bond data released by SBI shows that the bulk of the bonds appear to have been given as quid pro quo arrangements by corporates to political parties for:
» getting contracts/licences/ leases/clearances/approvals worth thousands and sometimes lakhs of crores and other benefits from the governments or authorities controlled by the governments, which were in turn controlled by the political parties that received those bonds;
» electoral bonds given in close proximity to action by agencies like the ED/IT/ CBI raising suspicion of it being “protection” money to avoid/stall action by or in exchange for regulatory inaction by various regulators like the drug controller, etc; and,
» electoral bonds given as a consideration for favourable policy changes.
The investigation in this case would not only need to unravel the entire conspiracy in each instance, which would involve officers of the donor company, officials of the government and functionaries of political parties but also the officers concerned of agencies like the ED/IT and CBI etc., who appear to have become part of this conspiracy.
The Apex Court on April 23, 2024 admitted the writ petition which is pending for hearing.
References
- 1996 SCALE (3) 258
- (2019) 3 SCC 224
- India Spend. (2021, December 26). Big spenders: Election expenses cross Rs 6500 crore, shows data. Business Standard. https://bit.ly/4cOX42v
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