This article deals with ‘Quasi-Judicial Bodies.’ This is part of our series on ‘Governance’ which is important pillar of GS-2 syllabus . For more articles , you canclick here
What is Quasi Judicial Body
Quasi-judicial body
is an organization or individual on which powers resembling a court of law have been conferred but
is not a tribunal within the judicial branch of the government and is not a court exercising judicial
power in the constitutional sense.
Hence , such a body can
adjudicate and decide upon a situation and impose penalty upon the guilty
or regulate the conduct of an individual or entity but is not part of
judiciary .
Emergence of Quasi Judicial Bodies
As the welfare state has grown
up in size and functions, more and more litigations are pending in the
judiciary, making it over-burdened. It requires having an alternative
justice system. As a result , Ordinary judiciary has become dilatory and
costly. Quasi Judicial bodies are part of such alternative justice system
With scientific and economic
development, laws have become more complex, demanding more technical
knowledge about specific sectors. Tribunals have such expert members too.
Conventional judiciary is
suffering from procedural rigidity, which delays the justice which these
bodies don’t
Quasi Judicial Action vs Administrative Action
Distinction between
quasi-judicial and administrative action has become blurred . But it does
not mean that there is no distinction between the two. Supreme Court has
dealt this question in A.K. Kraipak
vs. Union of India,
In order to determine whether
the action of the administrative authority is quasi-judicial or
administrative, one has to see
whether it is done with ‘subjective satisfaction’ or ‘objective
satisfaction’ .
Acts
done with Subjective Satisfaction
Are
Administrative Acts
Acts
done with Objective Satisfaction
Are
Quasi-Judicial Acts
In case of administrative
decision there is no legal obligation, upon the person charged with the
duty of reaching the decision, to consider and weigh submissions and
arguments or to collate any evidence. The grounds upon which he acts, and
the means which he takes to inform himself before acting are left entirely
to his discretion.
Examples of Quasi Judicial Bodies
Some examples of Quasi judicial bodies in India are
National and State Human Rights Commissions
Lok Adalats
Central and State Information Commissions
Central Vigilance Commission
Consumer Disputes Redressal Commission
Central Administrative Tribunals
Competition Commission Of India
Income Tax Appellate Tribunal
Intellectual Property Appellate Tribunal
More about specific Quasi-Judicial Bodies
1 .National Human Rights Commissions
We have already covered this topic in detail in other article. To read about working of National Human Rights Commission, click on the link below
2 . Lok Adalats
We have already covered this topic in detail in other article. To read about working of Lok Adalats, click on the link below
3. Central Information Commissions
We have already covered this topic in detail in other article. To read about working of Central Information Commission, click on the link below
4. Central Vigilance Commission
We have already covered this topic in detail in other article. To read about working of Central Vigilance Commission, click on the link below
5. Central Administrative Tribunals
We have already covered this topic in detail in other article. To read about working of Central Administrative Tribunals, click on the link below
There was
fierce debate regarding the
provisions of the
5th & 6th
Schedule in the
Constitutional Assembly.
Advocates of Assimilation
argued – Creation of Autonomous
Districts and Regional Councils will lead to
their disassociation
from the rest of
the country & centre-state relationship should
not be altered
for the Tribal
and Scheduled Areas.
Some were also in
the favour of
complete isolation of
the tribals.
However, the
provisions of the
fifth and sixth schedule aim at gradual
integration of the
tribal into the mainstream with their own pace
and wish. This
was further stamped when Nehru laid down the Policy of Panchsheel for Tribals.
Schedule 5
Administration and Control of Scheduled Areas and Scheduled Tribes in any states except four states –Assam, Meghalaya, Tripura, Mizoram(AMTM)
Schedule 6
Administrations of Tribal Areas in four states of Assam, Meghalaya, Tripura, Mizoram (we will discuss about 6th Schedule in next article. For more, Click here)
Introduction
Interests of Schedule Tribes outside the North East are protected by Fifth Schedule
5th Schedule is concerned with administration of Scheduled Areas and Scheduled Tribes in any states except four states –Assam, Meghalaya, Tripura, Mizoram (AMTM) Scheduled area has more than 50 percent tribal population.
Why this category was created?
Scheduled Areas need to be treated differently from other areas in country because they are inhabited by aboriginal who are socially and economically backward and special efforts are needed to improve their condition.
Features of Schedule 5
President is empowered to declare an area to be Scheduled Area
Executive Power of state extend to Scheduled Area but Governor has special responsibility
Each State having Scheduled Area has to establish Tribal Advisory Council (TAC) to advise on welfare and advancement of Scheduled Tribes consisting of not more than 20 members, 3/4 of whom must be Tribal Representatives in State Legislative assembly (Prelims : TAC is constitutional body)
State having ST population but not SA can also constitute TAC if President so desire
Governor can direct that particular act of Parliament or State Legislature is not applicable there or applicable with certain modifications and exceptions + Can make regulations for peace and good governance in consultation with TAC after getting assent of President which include transfer of land among members, regulate business of money lending etc
Central Government also give Special Financial Assistance to States under Article 275 for implementation of schemes for development of STs
President should appoint a Commission to Report on Administration of these areas at any time but compulsorily after 10 years. Two commissions till date
1960
UN Dhebar Commission
2002
Dilip Singh Bhuria Commission
Amendment of Schedule 5 : Parliament may from time to time by law
(ie Simple Majority) amend by way of addition, variation or repeal any of
provision of this schedule . No such law shall
be deemed to be Amendment under Article 368
Analysis – Demand of the areas under 5th Schedule to Transfer to 6th Schedule
Fifth Schedule applies to an overwhelming majority of India’s tribes in 9 States. But, Fifth Schedule has failed to create desired impact because it has never been applied the way it should have been.
5th Schedule has limited autonomy provisions compared to 6th Schedule.
Issues with TAC:
In fifth schedule, tribal advisory council have only advisory powers . Unlike the autonomous district councils (ADCs), which have legislative and financial powers .
No clarity on the composition of TAC, especially the remaining one-fourth of the membership
Sometimes cabinet ministers from tribal communities are also appointed as members, which is a conflict of interest because the person heading the state cabinet also chairs the TAC.
ADCs have considerable autonomy
They receive funds from consolidated fund of India to finance schemes for development, health, education, roads
Have real powers to make laws
Otherwise the implementation of PESA needs to be done earnestly. It has been suffering from severely poor implementation, with states showing disdain towards the Act.
States with Schedule 5 Areas
Rajasthan
Andhra Pradesh
Gujarat
Odisha
Madhya Pradesh
Jharkhand
Maharashtra
Himachal Pradesh
Chhattisgarh
2018 : Area under Schedule 5 has been extended in Rajasthan. Scheduled Tribes residing in Banswara, Dungarpur, Pratapgarh, and partial areas of Udaipur, Rajsamand, Chittorgarh, Pali and Sirohi districts of Rajasthan will get benefits of protective measures available under the Fifth Schedule
Constitutionally, Delhi is a Union Territory (UT) (since 1991) with a legislature.
Generally all the budgets of UT’s without Legislature is a part of Home Ministry Budget . Hence, their financial powers are limited . But, Delhi has unlimited Financial Powers as long as it is generating its own resources.
69th Constitutional Amendment , 1991
69th
Constitutional Amendment Act, 1991 provided following provisions
Administrator was designated as Lt. Governor
Strength of Legislative Assembly Fixed
at 70 & Strength of council of Ministers to 7 (10%)
Chief Minister is to be appointed by President(not Lt. Governor)
& other ministers by President on advice of Chief Minister
Lt. Governor can promulgate
ordinance during recess of Assembly but with prior permission of President
Restrictions on power and authority
At present, Delhi Assembly, like
other State Assemblies, has
power to make
laws on all subjects
except on 3 (PPL) ie:
Public order
Police
Land
Legislations on
matters related toMunicipal Governance require the consent
of Lt Governor, Union government and
President . So,
the
Municipal Corporation is
not under the
full control of the
Delhi government.
Debate – Statehood for Delhi
2020
During Delhi elections, this was the major issue raised by Aam Aadmi Party (AAP)
June
2018
Delhi Legislature passed resolution to make Delhi a Full State
2016
Proposal was to make Delhi a state with certain safeguards 1. Keep NDMC (Lutyens and Embassies) under Union Government 2. Appoint Governor instead of Lt Governor 3. Special Cadre of Officers for Delhi
Arguments for statehood to Delhi
Due to present status , Delhi Development Authority (DDA), Police and Municipal Corporation of Delhi (MCD) are not under Delhi Government.
Multiplicity of Governance leading to lack of accountability : With such an overlap of responsibilities, Citizens cant hold governments accountable
Union Government : Lt Governor, Police, DDA
State Government : Water, Electricity, Transport, Health, Education etc
Local Government (MCD) : Birth Death Registration, Sanitation etc
Delhi has population of 2 crore (more than 10 full-fledged states), but democratic aspirations of the people of Delhi cant be met without being granted Statehood
To update infrastructure, Delhi needs to take recourse to market borrowing but, not being a state, cannot do so.
Evolution Process must reach conclusion : Union Territories were created with the idea to provide a transitional status to become states. With time, Goa, Manipur, Himachal Pradesh and Tripura have been granted statehood.
Arguments against full statehood (with way forward)
The capital region has diplomatic areas and other institutions of national interests.
It is not possible for the central government to come under a state government’s administrative jurisdiction.
Constituent Assembly Debates : This issue was raised for the first time by Pattabhi Sitaramayya in 1947 in the Constituent Assembly. But B.R. Ambedkar, Jawaharlal Nehru and others opposed it.
To ensure police accountability to Delhi, statehood may not be necessary. An Oversight Committee consisting of Delhi CM and Union Minister can address local specific problems.
Macro Planning for the National Capital requires long-term thinking and sound technical advice, which the Ministry of Urban Development is far better equipped to provide.
International Practices
Washington DC
– In America, a district (capital) was created that the federal government could administer itself for its convenience. – At the same time, local issues were relegated to its local mayoral government. But Police in Washington is under Mayor .
Canberra
Canberra doesn’t have a same legislative INDEPENDENCE as other Australian States and Australian Governor General is the head of Australia’s capital territory
Beijing
In China , Central Government exercises more control not only over the city of Beijing ,the capital but also over important cities of Shanghai , Tianjin and Chongqing.
Given the global experience & other reasons sited above, it would not be prudent to give full statehood to Delhi. Nevertheless, it is important to recognize the genuine rights of the citizens and balance them against the equally legitimate concerns of national nature.
Supreme Court Judgement : Is Lt. Governor bound by advise of Chief Minister?
Issue that Governor is bound to act on the
aid & advice of Council of Ministers is settled fact by Supreme Court Judgements . But whether extends to Union Territory of Delhi as well
, is matter of debate due to unique position of Delhi (& Pondicherry as
well) under Constitution.
Issue
2015: AAP Government vs LG
Najeeb Jung. Conflict over bureaucratic appointments, including who should be promoted as the chief Secretary
of Delhi.
AAP government blaming the LG
of not clearing the schemes/initiatives/files related to health,
education, PDS, transport, etc. and routinely
referring every matter to President.
2018 Supreme Court Judgement
Supreme Court judgement in
the Government of NCT Delhi vs Union of India case, overturned the August
2016 judgment
Resolving the dispute over the
demarcation of powers between the Union Government and the Government of
Delhi, the Supreme Court laid down a few key principles:
Lt Governor is bound by the aid and advice of the Council of
Ministers in all areas except
3 exempted subjects
Lt Governor will be
advised by Union government on the matters of public order, police and
land.
When difference of opinion arises on “any matter”, the Lt Governor can’t take a decision on its own or
force a decision on the cabinet. He has to refer such matter to the
President of India.
But, LG should not act in a
mechanical manner without applying mind and forward every decision of the Council of Ministers
to the President of India.
Analysis
In a democracy , it is the will of democratically elected government that prevails. LG can only act as check on the abuse of power and cant become power into itself.
Feb 2019 : 2 Judge Supreme Court Bench ruling
After July
2018 Judgement, it was thought that tussles between Union and State has been
resolved .
In a setback to Delhi Government, Supreme Court has ruled that Anti – Corruption Bureau is under the control of Lieutenant Governor which by extension means the center .
On the question of who has the powers of transfers and postings of officers , both judges differed and hence matter has been referred to a larger bench.
Original Constitution did not contain provisions with respect to tribunals.
Added via 42nd Amendment Act of 1976 :
Part XIV-A titled ‘Tribunals’
Two Articles are related to this
Article
323 A
Administrative
tribunals
Article
323 B
Tribunals
for other matters.
1 . Administrative Tribunals
Article 323 A empowers the
Parliament to establish administrative tribunals for the adjudication of disputes relating to recruitment and conditions of service of persons appointed to public services of Center, states, local bodies, public corporations and other public authorities.
In pursuance of Article 323 A, Parliament has passed the Administrative Tribunals Act in 1985 and established one Central administrative tribunal and state administrative tribunals.
Benefit :
Provide speedy and
inexpensive justice to the aggrieved public servants.
Reduced pendency of normal
courts
1 . 1 Central Administrative Tribunal (CAT)
Setup in 1985 with the principal
bench at Delhi
and additional benches in different states. At present 17 benches
CAT exercises original jurisdiction in relation to recruitment and all service
matters of public servants .
Its jurisdiction extends to
All-India services
Central civil services
Civil posts under the Centre
Civilian employees of defence services.
However, members of the defence forces, officers and servants of Supreme Court and the secretarial staff of Parliament are not covered by it.
Composition of CAT
Type
– Multi- member body : Chairman + members – Via Amendment to Administrative Tribunal Act, members have been given status of judges of High Court
Strength
– 1 Chairman + 65 members – Members are drawn from both judicial and administrative streams and are appointed by President. – They hold office for term of five years or until they attain age of 65 years in case of chairman and 62 years in case of members, whichever is earlier.
Other points regarding CAT
Tribunals do not have to follow procedure as laid down under Civil Procedure Code & under Indian Evidence Act but they have to follow the principles of Natural Justice.
Only a nominal fee of 50 is to be paid by the applicant.
Applicant may appear either in person or through a lawyer.
Originally, appeals against the orders of the CAT could be made only in the Supreme Court and not in the high courts. However, in the Chandra Kumar case (1997), SC declared this restriction on the jurisdiction of High Courts as unconstitutional. Now appeals against CAT decision lie with High Court.
1 . 2 State Administrative Tribunals (SATs)
Administrative Tribunals Act of 1985 empowers the Central government to establish the State Administrative Tribunals (SATs) on specific request of the concerned state governments.
So far (2013), SATs have been set up in the nine states of Andhra Pradesh, Himachal Pradesh, Odisha, Karnataka, Madhya Pradesh, Maharashtra, Tamil Nadu, West Bengal and Kerala. However, the Madhya Pradesh, Tamil Nadu and Himachal Pradesh Tribunals have since been abolished.
Jan 2018 : Haryana setup SAT
SATs exercise original jurisdiction in relation to recruitment and all service matters of state government employees.
Chairman and members of the SATs are appointed by President after consultation with the Governor .
The act also makes a provision for setting up of joint administrative tribunal (JAT) for two or more states.
2. Tribunals for other matters
Under Article 323 B,
Parliament
and State Legislatures are authorised to provide for establishment of
Tribunals for the adjudication of disputes relating to :
Taxation
Foreign exchange, import and export
Industrial and labour
Land reforms
Ceiling on urban property
Elections to Parliament and state legislatures
Food stuffs
Rent and tenancy rights
Articles 323 A and 323 B differs in following three aspects
While Article 323 A
contemplates establishment of tribunals for public service matters
only, Article 323
B contemplates establishment of tribunals for certain other matters
(mentioned above).
While tribunals under Article
323 A can be established only by Parliament, tribunals under Article 323 B
can be established both by Parliament and state legislatures
Under Article 323 A, only one
tribunal for the Centre and one for each state or two or more states may
be established.
There is no question of hierarchy of tribunals, whereas under Article 323 B a
hierarchy
of tribunals may be created.
In Chandra Kumar case (1997), the Supreme Court declared those provisions of these two articles which excluded the jurisdiction of the high courts and Supreme Court as unconstitutional. Hence, the judicial remedies are now available against the orders of these tribunals. (In case of Tribunals other than CAT, direct appeal can be made to Supreme Court)
Issue : Tribunalization of Justice
First tribunal was set up in India 25 years ago to take the load off high courts. At last count, there are 93 specialised tribunals in India .
Benefit of Tribunals
Tribunals were established with the object of providing a speedy and cheap determination of disputes
Relief to Courts: system gives the much-needed relief to ordinary courts of law, which are already overburdened with numerous suits.
Specialised Body to adjudicate on special and technical issues as tribunals are manned by judicial as well as technical members.
Flexibility : They do not have to follow any uniform procedure as laid down under the Civil Procedure Code and the Indian Evidence Act but they have to follow the principles of Natural Justice.
Problems with Tribunalisation of Justice
Against Doctrine of Separation of Powers :
Tribunals are part of Executive and their creation to adjudicate matters means shifting powers of adjudication from Judiciary to the Executive
Article 50 (DPSP) : Separation of Judiciary from Executive
Increased the workload of Supreme Court : Government has made a provision that appeal from the decisions of such tribunals shall lie before the Supreme Court. Routine direct appeals to the highest court in commercial litigation affecting individual parties, without there being any issue of national importance, is overburdening Supreme Court=> matters of constitutional importance are not getting the due priority
Conflict of Interest : Central Government has power to appoint the members of the tribunal and in large number of cases, Central Government itself is the stakeholder in the cases before the tribunal.
Accessibility and Cost of Justice Issue : Tribunals are also not as accessible as high courts. For example,
Environmental Tribunals : there are just four benches of the Green Tribunal for the whole country. In comparison, high courts were easily accessible for environmental matters.
SEBI : A shareholder in Kerala or Northeast would have to travel to Mumbai to challenge any order by the SEBI.
Undermining the Authority of Judiciary: Tribunals have largely replaced high courts for disputes under the various Acts. An aggrieved, by an order of an appellate tribunal, can directly appeal to the Supreme Court, side-stepping the High Court.
2015 Supreme Court judgment struck down the National Tax Tribunals (NTT) . Supreme Court said that the tribunal couldn’t decide “questions of law”, adding these could only be decided by constitutional courts.
Tribunals do not follow any uniform procedures but principles of natural justice, adjudicators are unable to have a clear understanding of the procedures to be followed.
Sidestepping high courts: as in some cases, an appeal against the order of an appellate tribunal can directly be filed in the Supreme Court.
Way Forward
Tribunals should be made last word on facts and Supreme Court should restrict itself to the pure question of law.
Law Commission of India (LCI) , in its 272nd report, has laid out a detailed procedure for improving the working of the tribunal system in the country
Selection of the members of Tribunals should be impartial by Separate Selection Committee
Chairman should hold office for 3 years or till he attains the age of 70 years
Tribunals must have benches in different parts of the country so that people may have easy Access to Justice, ideally where the High Courts are situated
In case of transfer of jurisdiction of High Court (or District Court) to a Tribunal, the members of the newly constituted Tribunal should possess the qualifications akin to the judges of the High Court (or District Court)
Elections to Lok Sabha & Legislative Assembly at same time
Why in news
2018 : Law Commission has released a
white paper on Simultaneous Elections
2019 : Parliamentary Committee on Law
& Justice has argued that Elections to Legislative Assembly & Lok Sabha
should take place at same time .
Historical Knowledge : After independence , first four elections were held at same time but after that it couldn’t be continued . This was mainly done by Indira Gandhi , who wanted to cut the wings of regional leaders so that she needn’t depend on them for central power
Points in favour of this
Recommendation of Committees
2018 : Law Commission has released a white paper on Simultaneous Elections.
1999 : Law Commission Report recommended it
2015 : Parliamentary Committee on Law & Justice recommended this
Political Reason
Frequent elections and implementation of Model Code of Conduct leads to policy paralysis and governance deficit impacting development in country
Economic Reasons
Money & resources that are used on elections can be minimised & used on Social Welfare
Social Reasons : Elections in India are polarising events and promotes communalism , casteism etc . Hence, fewer elections are better
Helpful in Internal & External Security
Concurrent polls would free central armed forces and manpower that is deployed at regular intervals for election duty so that they can be used better for their regular functions.
Examples from other countries : held successfully in Sweden & South Africa
Points against this
Against Basic Structure of
Constitution : To
implement this system , there would be need of fixed tenure system .Fixed tenure is against Basic Structure of Constitution
Result in lower Accountability : In present system, same political party has to approach voters
multiple times
(atleast 3 times) in 5 years. It increases the accountability and answerability
Against the federal principle : National parties are going
to benefit as Voters in India are
not mature enough
to vote on central & state issues at same time
There is no report to vouch that development
in India is stopped due to frequent elections
Alternate Way
Former Chief Election Commission Qureshi’s suggestion : Center should provide more paramilitary forces in bigger states like UP, Bihar etc so that election can be conducted in 1 Phase only and reduce time when Model code of conduct is in place
Percentage of Members of Lok Sabha with Criminal Charges is increasing each passing Lok Sabha since independence.
17th Lok Sabha
(2019)
43%
16th Lok Sabha (2014)
34%
14th Lok Sabha (2004)
24%
Chances of winning
of candidate with criminal cases in Lok Sabha is 13% whereas with clean record is 5%
NN Vohra Committee Report (1993)
Spoke about criminalization of politics and of the nexus among
criminals, politicians and bureaucrats in India.
Reasons for Criminalisation of Politics
Increasing Money Power in Elections
Elections require huge expenditure which is impossible for normal
person to fund.
Winnability only criteria
Parties
focus on winnability of the candidate instead of education, morals and social
work
Loopholes in functioning
Voters are not usually aware of the history of the candidate,
qualification and cases pending against him.
Weak judicial system
3.2 crore pendency => takes long time to decide cases and as a
result, criminals sit in Parliament and Legislative Assemblies
Historical Reason
Indira Gandhi’s
1969 decision to ban corporate donations to political parties led to
crime-politics nexus. That action made campaigning dependent on black money
Crisis of morality
In materialistic
society
Impact of Criminalisation of Politics
Decreasing legitimacy of Parliament
Increased Disruptions
People with such tainted
backgrounds have been seen to disrupt the functioning of the Parliament
Funds not used for intended purposes
Such member under utilise
funds like MPLADs
Impact on Police
Padmanabhaiah
Committee on Police Reforms : It is the criminalization of politics that
led to criminalisation of
police
Views of various Committees
NN Vohra
Committee => Criminalisation of Politics is making democracy hollow.
Reforms taken
Lily Thomas Case : Already discussed (Click here to see)
Association of Democratic
Reforms Case : Supreme Court ordered Mandatory declaration of assets and
existing criminal charges in self-sworn affidavits to the
Election Commission of India prior to elections
NOTA Button
introduced to force political parties to put up better candidates .
Expense Monitoring Cell setup by
Election Commission of India
Way forward
Bar candidates against whom charges have been framed by the court in heinous crimes from contesting elections
Lifetime ban on convicted politicians from contesting elections (as suggested by Election Commission of India in Nov 2018)
Set up fast track courts to dispose criminal cases pending against MPs & MLAs within a year.
State Funding of elections => Black money will not be needed
Make informed citizenry using Election Commission of India campaigns and utilising efforts of NGOs like ADR, PUCL etc
To deal with the issue of funding of Political Parties, State Funding of Political Parties can be used. This practice is used in many countries like Britain and various commissions and committees like Indrajit Gupta Committee, 255th Law Commission Report & 2nd ARC Report have also recommended this.
Points in favour of State Funding
State funding can limit the influence of wealthy people and control Crony Capitalism
Creates equal playing field for small and big political
parties .
Corporates never fund smaller
political parties .
In return for giving state
funding, state can demand reasonable perquisites like transparency ,
internal democracy in party, women representations, representations of
weaker section etc
Various committees including Indrajit
Gupta Committee 1998, Law Commission of India, 2nd ARC, National Commission to Review
the Working of the Constitution, have favoured state funding
In India, with high level of
poverty, ordinary citizens
cannot be expected to contribute much to the political parties. Therefore, the parties depend upon funding by corporate and rich
individuals.
Points against State Funding
Tax payers are forced to support even those political parties , whose view
they don’t subscribe to.
State funding encourages status quo and makes it difficult for the new
parties.
State funding increases the distance
between political leaders and ordinary citizens as leaders do not depend on
the citizens for mobilization of party fund.
Political parties tend to
become organs of the state, rather than being parts of the civil society
Difficult to ensure that Parties are not taking funds apart from State Funds even after getting State funds (Election Commission of India also admitted this)
bond will be like a bearer cheque which will facilitate donor’s anonymity
They will be available for any
value in multiples of Rs 1000, Rs 1 Lakh , 10 Lakh, 1
Crore
Electoral bond will have life of 15 days.
Purchase Period : Not
available throughout the year =>
available 10 days of each
quarter
Parties eligible
= secured not less than one % votes in last election to Lok Sabha or
Legislative Assembly.
Know Your Customer norm
applicable
Also the bonds can be encashed by eligible political parties only through designated bank account
Analysis of the working of Electoral Bonds
Government’s Argument
Provide anonymity to buyers => corporate
houses can fund
political parties legally without fear of retribution .
Fears
Decreases Transparency : According to Election Commission of India, it is a retrograde step as far as transparency of donations is concerned .
According to RBI, Electoral Bond has the potential to increase black money circulation, money laundering and cross-border counterfeiting due to factors like anonymity .
Danger to Democracy : All banks report to the RBI which, in turn, is subject to the Central government . Hence, Electoral Bonds although anonymous but ruling party can ascertain donors
Against equality : only those parties are eligible which have won 1% of votes in the preceding election, which pose a formidable entry barrier to new contenders
Ruling party got 94.6% electoral bond cash => designed to help ruling party.
Invisible Number on Electoral Bonds Issue
Quint has confirmed that electoral bonds carry hidden alphanumeric
numbers printed
on them.
SBI : According to SBI, it is
security feature only and Bank don’t keep any record of this number .
– In 1969, PM Indira Gandhi government amended the Companies Act and imposed a total ban on corporate funding given to political parties.
Reason : 1. Official Reason : To remove political corruption 2. Real Reason : Cut wings of Syndicate within Congress which had good relations with Business houses + Increasing Corporate Support to Right wing Swatantra Party and Jana Sangha
Result : This eliminated the most important source of election funds to parties without providing an alternative financing mechanism (such as state funding) & effectively pushed campaign finance underground .
1985
– Rajiv Gandhi Government legalised Corporate Funding recognising previous mistake – But Corporates still prefers to give fund under the table in order to avoid retribution from other party
Problem 1 : Transparency
Loophole in Representation of People Act : All the income of Political Parties are tax exempted provided , they file return of income to IT Department and they tell the source of donations above 20,000 to Election Commission of India annually . Most political parties show donations of less than 20,000 from individuals as their main source .
Data to corroborate this
According to Association for Democratic Reforms (ADR)
69% of Funding of parties is from undisclosed sources
In Regional parties , Undisclosed Funding is even more .
Samajvadi Party = 94%
Shiromani Akali Dal = 86%
Despite provisions under section 29 of Representation of People Act, 1951, parties do not submit their annual audit reports to Election Commission of India
Parties are also out of the ambit of Right to Information act.
Problem 2 : Issue on spending in Elections
Capped Expenditure is for period
starting from EC notification , whereas
parties actually start spending money on campaigns much before that.
There is no ceiling
on party election expenditure —
only candidates’ expenses are capped.
Ceiling on election expenditure
(From 2014)
Lok Sabha
Assembly
Bigger States
₹70 Lakh
₹28Lakh
Problem 3: Problem with IT ACT 1961:
Section 13A of IT act 1961
provide tax
exemption to Political Parties for income
from house property, voluntary contribution, capital gains and other
sources. Case may occur where Political Parties
may be formed only for the sake of avoiding income tax for the property
Remedies wrt Funding of Political Parties
Bring Political Parties under Right to Information
Increase number of days for campaigning . This was done in Britain and is successful
State Financing : Indrajit Gupta Committee, 255th Law Commission Report & 2nd ARC Report has also favoured this . (for more on State Funding,Click here)
Limit on Total Undisclosed Funding that
parties can accept
: Law Commission and Election
Commission favoured this . Undisclosed money should be 20 Crore or 20% of total
funding of party (whichever is less) .
Representation of People’s Act had provision that elector not wishing to vote for any candidate had to inform the Presiding Officer about his decision
Supreme Court’s
decision
– Declared above provision to be ultra vires Article 19 of constitution – Directed Election Commission of India to provide a NOTA option on the EVM and ballot papers (Reason = secrecy).
Positive features in NOTA
Ensures Freedom of expression
Introducing a NOTA button can increase the public participation in an electoral process.
NOTA option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties.
Negative features in NOTA
As per present provisions , candidate who has polled the largest number of valid votes is to be declared elected . NOTA do not mean rejection.
NOTA can only work when it is paired with Right To Recall option where voters can recall candidates they have elected. In such situation, NOTA will act as a pre-cursor to public displeasure.
Right to Reject
June 2018 : Maharashtra State Election
Commission (MSEC) made an order for
local body polls that fresh
elections should be held if NOTA ‘emerges winner’.
Dec 2018 :Haryana State Election Commission
going step further made an order that if all the contesting candidates
individually receive lesser votes than NOTA then not only would “none of
the contesting candidates be declared as elected,” but “all such
contesting candidates who secured less votes than NOTA shall not be
eligible to re-file the nomination/contest the re-election.”
With two State Election Commissions showing the way, the remaining State Election Commissions and the Election Commission of India should follow suit so that political parties are compelled to nominate sound candidates, and are forced to accept the will of the people, as desired by the highest court in the land.
Side Topic : NOTA & Rajya Sabha Elections
Matter came up in
August 2017. It was allowed during Gujarat Rajya Sabha elections
Aug 2018 : Supreme Court scrapped the use of NOTA option in
coming Rajya
Sabha elections.
A Bench, led by Chief Justice of India (CJI) Dipak Misra held that
NOTA option is meant only for universal adult
suffrage and direct elections and not polls held by the system of proportional
representation by means of the single transferable vote as done in Rajya Sabha.
NOTA in indirect elections,
such as in Rajya Sabha, would lead
to horse-trading, corruption and
use of extra constitutional methods to defeat a party candidate.