Sunday, November 1, 2020

Two urgent issues around Bihar Assembly Elections 2020

Issue 1: Association for Democratic Reforms (ADR)'s petition challenging Finance Act, 2017- Electoral Bonds and Removal of company's limit to donate

This petition challenges the Finance Act, 2017 which was enacted as a money bill which introduced the electoral bond scheme for the purpose of electoral funding. The Act has also removed the previous limit of 7.5% of the company’s average three-year net profit for political donations. A company is no longer required to name the political parties to which such contributions are made. The donors’ name is also not revealed to the public. These amendments will result in opaqueness, heighten the odds of conflict of interest and also drastically increase black money and corruption. It will also lead to the creation of shell companies and rise of benami transactions to channelize the undocumented money into the political and electoral process in India.

Previously, ADR had filed two applications (in March, 2019 and November, 2019) for grant of stay on the implementation of the Electoral Bond Scheme, 2018, notified by the Central Government on January 2, 2018.   

  1. ADR's petition was last heard by the Supreme Court on 20-01-2020 and hasn't been listed since then, i.e., for the last 9 months, even though very significant questions concerning democratic functioning of the country are raised in the instant matter which requires urgent adjudication. 
  2. Right before the Bihar Legislative Elections, in the XIV Phase of sale,  the State Bank of India has been authorized to issue and encash Electoral Bonds through its 29 Authorized branches with effect from. 19.10.2020 to 28.10.2020.
  3. Even though a notification, dated 02.01.2018, stipulates sale of electoral bonds in January, April, July and October months of each year; the window was not opened in April and July, but was opened in October'20, right before the Bihar Legislative Elections.
  4.  ADR has moved to the Supreme Court amidst Bihar Assembly Elections 2020 seeking urgent hearing of its 2017 PIL challenging the 2018 Electoral Bonds Scheme.

Issue 2: Reasons for fielding candidates with criminal background

Supreme Court directions dated 13th February 2020 is as under:  

1) It is mandatory for political parties at the Central and State election level to upload on their website detailed information regarding candidates with pending criminal cases including the nature of the offences, relevant particulars like whether charges have been framed, the concerned Court, the case number etc.

2) Political parties will also have to give reasons for such selection and why other individuals without criminal antecedents could not be selected as candidates.

3) The reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls. 

4) This information shall also be published in: (a)One local vernacular newspaper and one national newspaper; (b)On the official social media platforms of the political party, including Facebook & Twitter. 

5) These details shall be published within 48 hours of the selection of the candidate or not less than two weeks 4 before the first date for filing of nominations, whichever is earlier.

6)  A report of compliance shall be submitted by party with the Election Commission within 72 hours of the selection of the said candidate.  

7) Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of this Court’s orders/directions.  

Status (As on 29th Oct'20)

1. In the ongoing Bihar Legislative Elections, only four* political parties ( JDU, INC, CPI(M-L)L and RJD) out of 187, have listed the reasons for fielding candidates with criminal background.
2. Common reasons listed by these political parties are:
  • Popularity
  • Social worker
  • Educational background
  • Cases filed due to political vendetta by rival political parties
  • Cases are old
  • Good effort put in for handling Covid-19 crisis
3. Most of the political parties submitted the reasons post the deadline. 
4. Most of the reasons given by political parties are not rational and justified as clearly directed by the Supreme Court in its order dated 13th February 2020.
5. It is to be noted that out of 187 political parties participating in these elections, there are a large number of political parties which do not have a website.

Taking note of these facts, Maj Gen Anil Verma (Retd.), Head of ADR said, "In the Bihar Phases I & 2, political parties fielded 33% candidates and in the MP, UP & Gujarat Bye-elections around 18% candidates have declared criminal cases against themselves. This shows a complete disregard of the SC & ECI directions by the political parties. Such unfounded and baseless reasons given by political parties like popularity of the person, does good social work, cases are politically motivated etc. are not sound and cogent reasons for fielding candidates with tainted backgrounds. This data clearly shows that political parties have no interest in reforming the electoral system and our democracy will continue to suffer at the hands of lawbreakers who become lawmakers. To strengthen our democracy, the voters have to play a decisive role in refusing to elect tainted candidates and vote for NOTA".

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