The point of reference here is the gross indifference to compliance with the existing provisions of the Representation of the People Act, 1951 (RPA). Yes, any new steps towards electoral reform would have to take the legislative route; but how do we explain non-compliance on significant steps of the electoral process that already form a distinct part of the RPA, 1951? According to the law, election petitions have to be expeditiously concluded within six months of filing, to be tried on a day-to-day basis until concluded. The petition has to be filed within 45 days of the election. The exact wording of the relevant section from RPA, 1951 is:
"Section 81: Presentation of petitions - (1) An election petition calling in question any election may be presented on one or more of the grounds specified in by any candidate at such election or any elector [within forty-five days from, but not earliest than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates].
Section 86(6) - The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(7) - Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial."
While the term of the present Parliament will conclude in May 2014, approximately 61 election petitions from the 2009 general elections are pending at various stages, despite clear laying-down of norms on conclusion of trial within six months from the date the petition is presented to the high court. The pending petitions in the states are: Andhra (one), Assam (one), Bihar (four), Chhattisgarh (four), Gujarat (four), Karnataka (four), Kerala (three), Madhya Pradesh (five), Maharashtra (12), Punjab (two), Rajasthan (three), Tamil Nadu (one), Uttar Pradesh (13), other states (five). Except for the petition from Assam, which is pending in the Supreme Court, all other petitions are still under trial at various high courts.
The law's provisions regarding election petitions are intended to ensure compliance with election rules as well as to execute exemplary punishment for non-compliance, as a deterrent for contestants of the following elections. But if the cases drag on for more than four years and the term of the Lok Sabha is getting over, then the entire objective of laying down such clear rules and laws on this very critical issue is vitiated.
The trial of cases relating to offences and corrupt practices in connection with the elections also presents the same dismal picture. A recent report from the Association for Democratic Reforms (ADR) says that 30 sitting MPs and 129 sitting MLAs have declared in their affidavits the cases relating to "offences and corrupt practices in connection with elections". The list is not exhaustive, as it mainly covers the states of Bihar, UP and Karnataka. But the trend is very discernible. The electoral offences relate to corrupt practices during the election period, threats to and inducement of voters, rigging attempts, and denial of the right to vote. These cases are still pending under various stages of trial since 2008, and the candidates accused are not likely to incur any disqualification from contesting in future.
The Public Interest Foundation informally inquired about the status of such cases from the Election Commission. They do not have any record regarding the pendency of such cases in various courts. Most of the violations are under statutes or Acts attracting penal provisions and are mainly pursued by enforcement agencies like the police. Under these circumstances, it is a matter of great concern that candidates being tried for electoral offences in various courts are able to contest elections simply because the accusation has not been adjudicated within a reasonable time.
The demand for electoral reforms is premised on the fact that compliance with the legislation and its rules would be automatic. But, given the case of clear non-adherence to existing laws, one is not very sanguine if any new set of reforms with the backing of the statute will achieve the desired course correction to the Indian electoral process.
The failure to ensure compliance with such crucial steps of the electoral process, like timely adjudication of election petitions and cases relating to electoral offences, has important lessons for our future agenda on electoral reforms. Mere laws and rules, without effective internal built-in checks, are not sufficient. It has to be ensured that compliance with rules and laws is woven into the system by strengthening the office of the Chief Election Commissioner. This institution has served Indian democracy well in the past and it can ensure that such non-compliance does not go undetected and unchecked.
Misra, a former chairman of TRAI, is director of the Public Interest Foundation, New Delhi. Singh is a research associate at the foundation