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Companies Bill facilitates corporate funding for political parties and co-option of NGOs

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  • Gopal Krishna
    To Hon ble President of India Rashtrapati Bhawan New Delhi August 8, 2013 Subject- Companies Bill facilitates corporate funding for political parties and
    Message 1 of 1 , Aug 8, 2013
                                  

    To

    Hon'ble President of India
    Rashtrapati Bhawan
    New Delhi

    August 8, 2013

    Subject- Companies Bill facilitates corporate funding for political
    parties and co-option of NGOs

    Sir,

    This is to draw your attention towards the passage of Companies Bill,
    2012 by Rajya Sabha and The Contesting Election on Government Expenses
    Bill, 2012 which is pending in the Rajya Sabha. The latter was long
    due for putting a check on increasing use of black money in elections
    and political activities but the passage of former Bill appears to be
    a regressive step and is directed against State funding of elections.
    With the passage of the Bill yet another opportunity has been lost to
    deal with the menace of black money. I seek your urgent intervention
    in this matter to rectify the Bill.

    I submit that the terms of reference of Shri A K Antony who headed the
    Group of Ministers (GoM) on Corruption includes State Funding for
    Elections role. I wish to know how is this TOR consistent with the
    Section 182 of the Companies Bill, 2012 that provides for funding of
    political parties by companies.  This TOR of the GoM has been made
    meaningless.

    This reveals double speak, insincerity and inconsistency of the Indian
    National Congress led UPA government and the Bhartiya Janta Party. It
    is the Companies Bill should have banned corporate funding for
    electoral campaigns but this has not happened. This is contrary to
    several reports of the Parliamentary and government's committees which
    recommended State funding of elections to deal with black money.

    I submit that the root of rampant corporate crimes committed with
    impunity, environmental destruction, poisoning of food chain and human
    rights violations by security forces has been traced to corporate
    funding of political parties. In the aftermath of industrial
    disasters, frauds and war crimes by companies world over, this Bill
    merits rigorous scrutiny by all sections of legislatures and society.

    It may be noted that Section 182 (1) "Notwithstanding anything
    contained in any  other provision of this Act, a company, other than
    a Government company and a company which has been in existence for
    less than three financial years, may contribute any amount directly or
    indirectly to any political party: Provided that the amount referred
    to in sub-section (1) or, as the case may be, the aggregate of the
    amount which may be so contributed by the company in any financial
    year shall not exceed seven and a half per cent of its average net
    profits during the three immediately preceding financial years".

    I submit that two contradictory things happened in the Lok Sabha on
    December 14, 2011. Companies Bill, 2011 was introduced by Dr Moodbidri
    Veerappa Moily in the afternoon that makes provision for corporate
    funding of parties. Within hours of the introduction of this Bill,
    Manish Tiwari, National Spokesperson of the Indian National Congress
    who stood up to speak about UPA's seriousness in dealing about Black
    money stated, "I feel ashamed to state that black money which is
    linked to our advertisement policy is related to electoral finance
    that needs to be rectified."

    I submit that the Bill which has been passed has the endorsement of
    Shri Yashwant Sinha headed Parliamentary Standing Committee on Finance
    is doing the exact opposite of what was proposed by Indian National
    Congress.

    I submit that the collusion between major parties including Indian
    National Congress that was witnessed in the report Indrajit Gupta
    headed Parliamentary Committee remains unaltered. The silence of the
    left parties is quite deafening in this regard. In the light of this
    development, the reluctance of the political parties except Communist
    Party of India to come under the ambit of Right to Information Act is
    not inexplicable.

    I submit that the 309 page Bill gives greater role to shareholders
    promoting shareholder democracy of sort. This Bill is meant to replace
    the Companies Act, 1956 that provided the legal framework within which
    companies function. It defined the relationship between the management
    of a company, the shareholders who own the company, other
    stakeholders, and the government. It was amended 24 times since 1956.

    I submit that this is being done in pursuance of the concept paper
    issued in 2004 by the Ministry of Corporate Affairs on a new company
    law. The Ministry had constituted an Expert Committee under the
    Chairmanship of Dr J J Irani to suggest a framework for such a law to
    replace the existing Act. The Committee submitted its report in May,
    2005. The history of laws creating companies which are least
    understood is quite old and goes further back in the colonial past
    that will have to be dealt with on some other occasion.

    I submit that when the Companies Bill, 2009 was referred to Shri
    Yashwant Sinha headed Parliamentary Standing Committee on Finance on
    September 9, 2009. The Committee submitted its 375 page report on
    August 31, 2010 recommend that the prescribed maximum percentage for
    contributions to political parties in a financial year may be raised
    to 7.5% from the existing 5% of the average net profits during the
    three immediately preceding financial years, keeping in view the fact
    that the number of political parties in the country has increased and
    such donations are not made every financial year. Clearly, UPA
    government has complied with the recommendations of the Shri Yashwant
    Sinha headed Parliamentary Committee.

    I submit that it is explicable as to how Shri Yashwant Sinha forgot
    that he was a member of the Group of Ministers (GoM), headed by the
    then Union Home Minister, Shri L.K. Advani, to consider
    recommendations of the Shri Indrajit Gupta headed Committee on State
    funding of elections during the Bhartiya Janata Party led National
    Democratic Alliance (NDA) Government. The GoM was decided on August
    17, 2001 by the Union Cabinet, presided over by the then Prime
    Minister, Shri Atal Behari Vajpayee. The Committee on State Funding of
    Election was headed by the former Union Home Minister and veteran CPI
    leader, Shri Indrajit Gupta, had submitted its report to the
    Government on January 14, 1999. The Indrajit Gupta panel had favoured
    State funding of elections, saying it was justified constitutionally
    and legally. It had recommended State funding in kind and not in cash.

    I submit that the Union Government had constituted a Group of
    Ministers (GoM) on January 6, 2011 to consider measures that can be
    taken by the Government to tackle corruption, under your chairmanship
    as Union Finance Minister. Its terms of reference include --State
    funding of elections. The Group of Ministers had called upon the
    Ministry of Law to formulate concrete proposals on Constitutional and
    statutory amendments which are required for introducing reforms
    relating to State Funding of Elections as per a PIB release dated
    October 15, 2011. The Group of Ministers had, in its meeting held on
    6th September, 2011, asked the Ministry of Law to report progress in
    the consultative process already initiated by it. In the 30th
    September, 2011 meeting of the GoM, after the Law Ministry made a
    presentation on the subject, the Group of Ministers directed the Law
    Ministry to formulate specific proposals for consideration and
    decision of the GoM, excluding such areas where consultation with
    political parties was required. The passage of the Bill signals how
    these efforts seem to have been in vain.

    I submit that at the Convention of Indian Youth Congress on November
    29, 2011, Mrs Sonia Gandhi, Chairman, Indian National Congress led
    United Progressive Alliance (UPA) reiterated the need for state
    financing of elections as a measure against corruption in the
    electoral process. Earlier, she had demanded it at the Congress
    plenary in December 2010. Shri Salman Khurshid, the then Union
    Minister for Law & Justice informed the Lok Sabha on November 28, 2011
    that --Group of Ministers constituted by the Central Government is
    considering measures that can be taken by the Government to tackle
    corruption which inter alia include the introduction of state funding
    of elections. The Group of Ministers has discussed certain
    formulations those could be adopted to address this issue but no final
    decision has yet been taken|| in a written reply to a question. The
    passage of the Companies Bill, 2012 shows that what Mrs Sonia Gandhi
    told the Convention of Indian Youth Congress has not been incorporated
    in the Bill.

    In such a backdrop, I wonder as to why does Union Law Ministry pretend
    forgetfulness while approving the Companies Bill that provides for
    corporate funding of political parties about Group of Ministers
    decision asking it --to formulate concrete proposals on Constitutional
    and statutory amendments which are required for introducing reforms
    relating to State Funding of Elections||? It is clear that Union Law
    Ministry is expected to do undertake two contradictory legislative
    works by the Union Cabinet.

    I submit that it appears to be a case of both Congress led UPA and BJP
    led NDA is preaching one thing and practicing just the contrary.

    I submit that it does not appear surprising because controversial
    companies like Dow Chemicals Company cite the opinion of two senior
    officer bears of BJP and Congress in their --Q and A with respect of
    the Government of India's request for a Curative Petition in the
    matter of Bhopal's industrial disaster?. Dow says, --according to the
    formal legal opinions of two respected Indian jurists, Senior Counsel,
    Dr. Abhishek Manu Singhvi and Mr. Arun Jaitely, Dow cannot be found
    liable under the laws of India. Dr Singhvi gave his 10 page opinion on
    the letterhead of National Spokesperson of Indian National Congress.
    Jaitely gave his 15 page opinion on the letter head of the Senior
    Advocate having phone numbers which is used by him as a Member of
    Parliament. Corporate funding manifests itself in myriad disguises.
    The Companies Bill, 2012 shows that it is unmasking itself in
    installments.

    Reference: See the full opinions at:
    http://www.dow.com/sustainability/debates/pdfs/Arun_Jaitley_Opinion_EXPARTE.pdf;
    http://www.dow.com/sustainability/debates/pdfs/Dr.Abhishek_Manu_Singhvi_March_03_2006.pdf

    I submit that the passage of this legislation re-legitimizes corporate
    funding of political parties instead of reversing the trend despite
    witnessing the Nira Radia phenomenon and awarding of contracts to
    biometric technology companies like Accenture and Safran Group that
    work with foreign intelligence agencies.

    I submit that Section 181 of the Companies Bill, 2012 appears is quite
    dangerous. It reads: The Board of Directors of a company may
    contribute to bona fide charitable and other funds: Provided that
    prior permission of the company in general meeting shall be required
    for such contribution in case any amount the aggregate of which, in
    any financial year, exceed five per cent. of its average net profits
    for the three immediately preceding financial years." This is a
    masterstroke to co-opt  bonafide charitable institutions and turn them
    into fake public interest institutions who serve corporate interests.
    Both are divergent interests for sure.

    I submit that the Companies Bill, 2012 provides for excessive rule
    making powers to the executive for subordinate legislation. This is
    not advisable given the poor state of our national governance. The
    Bill makes provision for only one person to make a company-One Person
    Company Limited under Section 193. The India Economic Census 2005,
    revealed that the country has 4.2 million non-farm enterprises and
    less than 3 lakh active companies. This appears to be an exercise in
    the corportisation of the whole of non-farm enterprises. It seems to
    be an engineered act.

    I submit that the provision of corporate funding for political parties
    must be looked at in the backdrop of the decision of Supreme Court of
    USA on January 21, 2010 in the Citizens United case, which was
    denounced by US President Shri Barack Obama, apparently for the sake
    of record. The US Court considered whether there could be a ban on
    corporations using their general treasury funds for elections-related
    expenditure. A majority (5-4) of the Court ruled that such a ban was
    violative of the right to free speech. Essentially, the US Court
    struck down certain campaign-finance limits as a violation. The impact
    of this ruling is that corporate entities in the USA are free to use
    their general treasury funds to incur election-related expenditure, in
    a departure from past precedents. It also raised a question do
    corporations have free-speech rights, just as do individuals? If this
    is the path of corporations very soon, indeed "We The People" will be
    excluded from even representative government because of Corporate
    Personhood. It was said in the newspapers in USA that it would turn
    the political class into prostitutes.

    I submit that following footsteps of the trends in USA, the provisions
    in the Companies Bill and electoral reforms underway is all set to
    turn most political parties into brothels wherein made-to-order
    legislations will have a field day if it is not the case already.
    Given this trend will it be surprising if very soon there will be
    approval for foreign direct investments in myriad disguises to
    facilitate setting up of legislation manufacturing factories?

    I submit that democratic institutions can only be strengthened if
    political parties and other political organizations are given a
    priority by the state through fiscal support for becoming a democracy
    given the fact that it is always a work in progress. Studies based on
    large data sets on political financing in more than 40 democracies
    provide empirical account of campaign finance and have brought to
    light hidden aspects of politics and questioning widespread beliefs
    about political finance, such as the rapid increase of campaign costs.
    The problems associated with the high cost of election campaigns and
    the establishment of a balanced and transparent system for their
    financing merit state's attention.

    I submit that the experience from contemporary European democracies
    shows that political parties are necessary and desirable institutions
    for democracy and direct involvement of the state through financing
    election campaigns is transforming parties from their status as
    voluntary private associations into parties as public utilities.

    I submit that the legislation in question does not appreciate that it
    is the dependence of political parties on non-state actors for
    financing elections that determines their electoral and non-electoral
    performance. It is a flawed legislation which is compromising the
    political outcomes through an inherent political engineering which is
    co-terminus with property based citizens'rights.

    I submit that while it has been admitted that --there is no guarantee
    that economic prosperity ensures democratization, the ulterior motive
    of the sponsors of electoral reforms is the former and not the latter.

    I submit that in the post-Citizens United era and in the era of
    legislated corporate funding through Companies Bill, the parliamentary
    elections in India in 2014 will be rewriting the political geography
    and will reveal its residual democratic content.

    In view of the above, I wish to state that by shaping not only the
    strategies, rational choice but also their goals, political parties as
    institutions structure political situations and leave their own
    imprint on political outcomes. This significance underlines the
    inference that parties cannot be left at the mercy of non-state
    actors. As long as these actors shape the outcome no matter who wins
    in electoral battles, democracy is not a winner because our deformed
    political system is turning legislatures into a forum for legalized
    bribery. The way out could be to recommend that these very corporate
    donations be pooled into an electoral fund which can be used for state
    funding of lections. In connection with this, the six page attached
    Contesting Election on Government Expenses Bill (Bill No. XXXVIII),
    introduced by Shri Prabhat Jha, Member of Parliament merits attention.

    Therefore, I wish to earnestly and solemnly appeal to you to send the
    Companies Bill, 2012 back with an advice to remove provision for
    corporate funding of political parties and substitute it with the
    provision of the political parties.

    Thanking You

    Yours faithfully

    Gopal Krishna
    Citizens Forum for Civil Liberties (CFCL)
    Mb: 09818089660, 08227816731
    E-mail: gopalkrishna1715@...

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