Election spending and the law

The seizure of huge amounts of cash in the States going to polls establishes the nasty role of money power in elections. It is clear that black money is pumped into elections, despite the categorical expenditure ceiling fixed by the law. It appears that the provisions of the Representation of People (RP) Act, 1951, and the law laid down by the Supreme Court, for free and fair conduct of polls, have proved ineffective.

While the activism of the Election Commission under Mr T. N. Seshan ensured the end of muscle power, money power is very much a part of the poll process. The first general election of 1952 was held in an ideal setting, where considerations of caste, money and muscle power were all but absent. Candidates won on a shoestring budget. But the scenario changed rapidly after that.

SECTION 77

Section 77(1) of the RP Act, 1951, mandates that ‘every candidate at an election shall, either by himself or his election agent, keep a separate and current account of all expenditure in connection with the election incurred or authorised by him or by his election agent, between the date on which he has been nominated and the date of declaration of result thereof, both dates inclusive'.

Section 77(3) says that the total expenditure mentioned in clause 77(1) shall not exceed the ceiling as prescribed. However, to escape the ceiling, expenses incurred by the candidate's political party, friends and relatives weren't included.

The issue came up several times before the Supreme Court, as to whether this expenditure should be taken as part of total election expenditure. From 1954, ( Rananjay Singh v. Baijnath Singh ) to 1971 ( B. R. Rao v. N. G. Ranga ), the Supreme Court held that the expenses borne by the political party, relatives and friends were not covered by Section 77.

However, adopting an activist posture in 1975, it set aside the election of Amarnath Chawala to the Lok Sabha on the ground that he breached the ceiling of expenditure prescribed by law, as the Court included the expenditure made by his party in the candidate's expenditure.

In Kanwar Lal v. Amarnath Chawla , a Constitution bench ruled that “the availability of disproportionately larger resources is also likely to lend itself to misuse or abuse by the political party or individual possessed of such resources”.

The Court added that “it produces anti-democratic effects in that a political party or individual supported by the affluent or wealthy would be able to secure greater representation than a political party or individual who is without any links with affluence or wealth”.

This disqualification of Amarnath Chawla sent a chill down the government's spine, as the election petition against Indira Gandhi was pending before the court.

SPIRIT OF THE LAW

To negate the ruling of the apex court, the government introduced an amendment to Section 77 of the RP Act, 1951, and added an explanation exempting the expenditure incurred or authorised by a political party or any other association or body of persons or any individual (other than the candidate or his election agent) from the purview of the expenditure incurred or authorised under the section. Parliament adopted it, legalising a higher spend than the prescribed limit.

Again, the Supreme Court had to step in, and, in the Gadakh Y. K. v. Balasaheb Vikhe Patil (1995) case, it stressed on the need to repeal this explanation, as it killed the very spirit of the law, aimed at providing a level playing field to all candidates. In Gajanan Krishnaji Bapat v. Dattaji Raghobji Meghe (1995), the Supreme Court again ruled that there was a need to prescribe by ‘Rules of the requirements of maintaining true and correct accounts of the receipts and expenditure by political parties, by disclosing the sources of receipt as well'. But the government didn't take any steps to give effect to this suggestion. The apex court then decided to interpret Section 77 of the RP Act in the light of legal provisions relating to the receipt of donations by political parties. While it is legal for companies to give donations to political parties under Section 293-A of the Companies Act, 1956, and Section 13-A of the Income Tax Act, 1961, provides exemptions to donations made to political parties, there is no legal compulsion for political parties to maintain proper accounts. In Common Cause v. Union of India , the Court laid down that the purpose of these provisions was to ensure transparency in election funding.

As most political parties hadn't been filing returns of their income, the Court issued directions to the Finance Secretary to conduct an investigation against each defaulting political party. The Court ruled that it was mandatory for political parties to file returns, and that the IT authorities had been wholly amiss in discharge of their statutory duties by failing to take action against the defaulter party.

FREE AND FAIR

The ‘lawless law' introduced in the form of explanation to Section 77, to give legitimacy to the use of black money in the election has been virtually done away with. But with political parties using devious methods to circumvent the legal provisions, the courts alone cannot root out this vice. The Election Commission is vested with all powers to conduct a free and fair poll. The Supreme Court has clarified in Mohinder Singh Gill's case that the EC is fully empowered where the law is silent. There is a need for the EC to send such a strong message regarding money power — that breach of the ceiling of expenditure would lead to disqualification of candidates. People should ensure that those breaking the law don't get elected.

(The author is a senior TV journalist and columnist.)