Election Finance as a Challenge to Democracy in India: Legal, Policy and Institutional Challenges and Responses

Abstract

India has been struggling to regulate campaign finances for long. A more recent addition to the predicament is the phenomenon of ‘paid news’. Different institutions, the Election Commission of India (EC) and the judiciary being the most active among them, have tried to address concerns surrounding campaign finance with mixed results. Despite their efforts, brazen over-spending beyond legislative limits has become the norm. This paper addresses the issue of campaign spending and maps out the legal regime administering it in India. The monitoring of campaign finance is legislatively entrusted with the EC. Yet actions of the EC are regularly challenged on the grounds of competency to inquire into the specifics of spending. The Supreme Court of India settled the issue of competence of the EC to investigate into campaign spending in Ashok Chavan v. Dr. Madhavrao Kinhalkar (Civil Appeal 5044 of 2014, SLP (C) No.29882 of 2011) through purposive interpretation of the relevant provisions of Representation of the People Act, 1951. Yet in doing so it arguably stretched itself to find this solution. Locating the power with the EC has raised further concerns pertaining to institutional limitations, procedural lacunae, necessity to have a clearer legal prescription, and natural justice issues. These are matters ideally to be dealt with by the legislature, which perhaps is unlikely given the lethargy of the Indian legislature. The article will help to understand the legal regime in India on regulation of campaign finance, and give a glimpse of how law is interpreted and managed by relevant Indian institutions. This paper also attempts to detail the practicalities of the working of campaign finance regulation in India and the need to revisit the same for achieving the desired objectives.