Editor's note: This is the first in a two-part series on the ongoing stakeholder discussions regarding the one-nation-one-poll proposal, called for by the Law Commission. Read Part II here
The proposal to conduct Lok Sabha and state Assembly elections simultaneously, presently undergoing stakeholder consultation, was reinvigorated by a January 2017 position paper published by NITI Aayog. Some of the claims in the position paper deserve a closer scrutiny, at the very least, if not large-scale testing against data and evidence. Moreover, both the NITI Aayog and the Law Commission are yet to reckon with the question of whether simultaneous elections would damage the federal structure or any other basic feature of the Constitution.
Two crucial justifications for simultaneous elections supplied by the NITI Aayog are the "policy paralysis" induced when the Model Code of Conduct (MCC) is applicable in states going to elections, and the large-scale expenditures incurred by political parties that are claimed to fuel corruption and the black economy.
'Policy paralysis' under MCC
The NITI Aayog claims that periodically held elections cause a "policy paralysis", due to the imposition of the Model Code of Conduct. This oft-repeated claim, citing a 2015 Parliamentary Standing Committee Report as its source, is not backed by any data, and has been refuted even by a former Election Commissioner.
The blamed provisions of the MCC forbid "ministers and other authorities" from a list of activities "which may have the effect of influencing the voters in favour of the party in power", "from the time elections are announced by the Commission”. However, elections are announced by the Election Commission "not more than three weeks prior to the date on which the notification is likely to be issued in respect of such elections" as per the MCC, and a notification announcing elections cannot be announced earlier than six months prior to the end of the term of the House. Therefore the MCC can be applicable for a maximum duration of six months and three weeks.
In reality, the MCC binds States for about two months prior to Assembly elections, and the nation, for about three months prior to Lok Sabha elections, as found by the NITI Aayog itself. Curiously, the NITI Aayog states: "in the year 2015, MCC was imposed for about three months – two months when the elections to the state Assembly of Bihar were being conducted and another month and slightly more during elections to the Assembly of NCT Delhi".
As regards 2014, it says "governance and developmental activities due to the imposition of MCC remained largely suspended for about seven months: three months across the country and about two months in Jharkhand and J&K and another 2 months in Maharashtra and Haryana".
These statements are confusing at best, as the MCC only restrains activities within the political unit going to elections, a couple of months at a time. Needless to say, states not going to polls are not required to abide by the MCC. While Jharkhand/J&K and Maharashtra/Haryana were both under MCC for two months each, the whole of India was subject to MCC for only three between March and May 2014.
The forbidden activities range from sanctioning "grants/payments out of discretionary funds", announcing or promising "new projects or programme or concessions or financial grants in any form", laying "foundation stones etc of projects or schemes of any kind", or making "any promise of construction of roads, provision of drinking water facilities etc". The extent of constraint is clarified by the Election Commission itself in the following words:
"These restrictions apply equally to new schemes and also ongoing schemes. But it does not mean that in the case of national, regional and state utility schemes, which have already been brought up to the stage of completion, their utilisation or functioning in public interest should be stopped or delayed. The coming into force of the Model Code of Conduct cannot be given as an excuse for not commissioning such schemes or allowing them to remain idle,"
"At the same time, it should be ensured that the commissioning of such schemes is done by civil authority and without associating political functionaries and without any fanfare or ceremonies whatever, so that no impression is given or created that such commissioning has been done with a view to influencing the electorate in favour of the ruling party. If in doubt, a clarification should be obtained from the Chief Electoral Officer/Election Commission of India."
Therefore, while new schemes cannot be announced and ongoing schemes cannot be revived suddenly to influence the electorate, the MCC is far from suspending all "development programs" and "welfare schemes" to the extent that only "routine administrative activities" become permissible, as the NITI Aayog claims.
Massive election expenditures
In analysing election expenses, the NITI Aaayog claims that candidates "end up spending significantly more than prescribed expenditure limits", which is said to be one of the "key drivers for corruption and black money in the country". NITI Aayog further claims that political parties "worry about the need to keep the inflow of funds and contributions continued" if "elections happen frequently in some state Assembly or the other". This cycle is likewise stated to be "a key driver for corruption and black money in the country”.
We do not need to introduce simultaneous elections to resolve the Indian-elections' black money problem. Instead, strict and non-partisan enforcement of the existing laws on campaign spending, funding and disclosure should be undertaken. For instance, disclosure rules bind political parties to disclose donations over certain quanta, as well as other rules requiring candidates to disclose the source of their assets.
Another obvious remedy for this problem is to regulate political parties' source and quantum of funding. The law however permits any amount of donation to be accepted by political parties from any person or entity that is not a government company. Worse still, the Union government has also permitted political donations through anonymous electoral bonds, that set us back from achieving transparency in political funding.
Another lacunae enabling the status quo of rampant corruption and black money through election cycles is that political parties are also not regulated for their campaign expenditures. While the law prescribes campaign spending limits on individual candidates, and on a per constituency basis, campaign expenses of political parties exist in a regulatory vacuum.
In short, while the expenses incurred by the exchequer in conducting periodic elections is a valid factor in deciding how frequently to schedule elections, the errant ways of parties and candidates towards campaign funding and expenditures cannot be similarly used by the NITI Aayog as a justification for simultaneous elections.
The permissive laws on political parties' campaign funding and the absence of regulation of their campaign spending forms an unholy cocktail when combined with simultaneously conducted elections, that one fears will lead to undemocratic outcomes. Simultaneously held elections will lead to parallel campaigns for both the Parliament and State Assemblies, conducted by national parties alongside regional parties.
This puts larger national parties at a huge competitive advantage, by virtue of the economies of scale of their campaigns, when compared with regional parties. Consider the kinds of funding options open to national parties. Both the BJP and the Congress have participated in widening the kinds of contributions that political parties may receive, most recently, by retrospectively approving foreign corporate contributions received as far back as 1976, if the foreign shareholding in the company is within the foreign investment limits under the Foreign Exchange Management Act.
Now, consider the expense per seat won, incurred by parties in the 2014 General Elections. The BJP and Congress averaged an expense of 2.5 and 11.7 crores per seat won. If elections were to happen simultaneously in the states, each incremental unit of campaign expense for each state would be negligible for national parties that have already invested in media advertisement, campaign strategy and other forms of political consulting for the elections to the Lok Sabha. Thus, the net cost per seat is only likely to go down for the big national parties, while forcing regional parties to battle their national counterparts, without similar economies of scale.
While each individual rule or concession being resorted to by political parties in campaigns might be legal in the strict sense, the combined operation of those laws in an otherwise unregulated vacuum, in the circumstances of enforced simultaneous elections, compromises the capacity of smaller parties to contest the elections competitively.
This might be an overstated worry when national parties work towards forming alliances and building coalitions with regional partners for their electoral success, as we saw in the recent Assembly elections in Goa, Manipur and Meghalaya. However, that is the very concern: the need to build regional alliances will likely be obviated if national parties can campaign on a single, common plank for both the General and Assembly elections – a trend we have already witnessed in several regional election rallies that were personality-centric, led by Union ministers who would ultimately play no role in the state's government.
In Part 2 of this piece, the ramifications of simultaneous elections for federalism and the basic structure of the Indian Constitution will be explored.
The author is a Bangalore-based lawyer, currently working on teaching democracy and active citizenship through experiential learning. She tweets @MaLawdy
Updated Date: Jul 16, 2018 16:01 PM