Friday, 3 April 2020

Urgency Of Electoral Reforms

Updated: January 21, 2012 2:35 pm

We are very fond of taking pride in our democracy being the largest and among the few really functioning democracies on earth. But if we look at the state of our democracy today there is much to hang our heads in shame.

The nation is passing through critical times. Our political system is under a severe strain. Faith of the people in the quality, integrity and efficiency of governmental institutions stands seriously eroded. There has been a steep fall in the standards of conduct in public life and administration. There is a crisis of character and values in politics and public administration. Growth of a certain cynicism towards normal democratic processes and an erosion in the respect for political parties, politicians, legislators and civil servants, present a disturbing scenario.

The increasing disconnect between the people and politics and the visible anger against horrendous levels of corruption and abuse and misuse of state power and authority by the organs of government and their functionaries have led to great dissatisfaction and potential for social turmoil and violence.

Modern Democracy, by definition, is a system under which the people rule over themselves through the representatives they elect. At the core of all the problems, therefore, is the existing electoral system. The numbers of persons with criminal antecedents entering the Legislatures, through use of money and muscle power, show an alarming increase. Apart from transparency, accountability etc., the essential pre-requisites for quality governance are that those elected should be endowed with character and competence and motivated by the spirit of public service. While good corruption-free governance would require action on several fronts and involve wide ranging political, administrative, judicial and parliamentary reforms, electoral and political party reforms are the most imperative and deserve the highest priority attention.

The first and the most serious problem that presents itself is that of the representational legitimacy of the elected representatives of the people. As it is, the representative character of the representatives itself has become doubtful. Majority of them are elected by minority of votes cast. In the last general elections to Lok Sabha some 78 per cent of them were elected by minority of votes cast. More votes were cast against each one of them than for them. There have been legislators elected who polled less than 15 per cent of the votes cast. The probable causes are: First-past-the-post system of elections, Multiplicity of parties (over 1300 registered), Large number of party candidates and independents, Non-ideological orientation of parties, and Non-participation of the people in selection of candidates for election, etc.

To ensure representational legitimacy to legislators within the existing system, it could be laid down in order to be declared a winner, a candidate must secure a minimum of 50 per cent plus votes so that it becomes necessary for every winning candidate to woo more than his caste, community or narrow group vote bank and seek a wider consensus. This could be done by providing, if necessary, for a second round or run off between the two top scoring candidates. The representative credentials of those winning under this system would be above reproach and the system is entirely feasible technically and administratively.

At last, the government itself has taken cognizance of the need for electoral reforms and has had the Law Ministry produce a Background Paper along with the Election Commission. The Paper deserves a national debate. But, it is important to note that the Law Ministry document does not address the issue of representational legitimacy with any seriousness.

The other reforms that need to be considered are in regard to (i) reducing the cost of elections, curbing the role of money, muscle and mafia power, (ii) ridding the system of criminals and criminalisation, (iii) modifying the laws and rules to have largely error free electoral rolls, compulsory multi-purpose identity cards for all voters (adult citizens), (iv) outright outlawing of all defections including those on the pretext of merger, (v) preventing misuse of governmental machinery, (vi) regulating the functioning of political parties by law and (vii) educating the voters in regard to their citizenship responsibilities.

Electoral reforms suggested by the Goswami Committee, the Election Commission, the Law Commission and the Constitution Commission (2002) regarding audit of party funds, making accounts open to public scrutiny, all politicians being made subject to full income tax scrutiny, all candidates and MPs being required to declare their assets, forfeiture of ill-gotten wealth, limitation on the number of parties, and giving more meaning and substance to PRIs also deserve to be examined dispassionately.

Much can be said in favour of compulsory voting or rather for voting being made a fundamental citizenship obligation or duty under the Constitution for all elections from Panchayats to Parliament. Meaningful democracy has got to be participatory democracy. Voting at elections is the beginning – and not the end – of citizens’ responsibilities in a democracy. Eminent Indians like President Venkataraman were strongly in favour of compulsory voting for all citizens. This would be seen as performance of citizenship duty and not as a favour to a candidate. The purpose could be achieved through a scheme of incentives and disincentives e.g. certificate of voting being required for getting a driving license, passport, ration card, income tax rebate etc. If right to education can be made compulsory, why not the duty to vote.

The much bandied about suggestions regarding right to recall and a negative vote, however, are not practicable under the existing system.

Right to Recall (RTR) means that an elected holder of public office is by law made responsible to the electors and they are empowered to recall him/her if he/she betrays their confidence or proves by his/her conduct unworthy of continuing in office. RTR is also defined as a direct democracy instrument that allows a specified number or percentage of citizens to demand a vote of the electorate on whether an elected holder of office should be removed from that office before the expiry of his/her term of office.

The actual procedure for recall varied widely from country to country. In some places, it required certain percentage of the electorate ranging from 10 per cent to more than 50 per cent presenting a petition followed by 50 per cent plus vote of the House. It may also entail taking a fresh vote of the entire electorate and only if a majority vote against him, he stands removed/recalled.

As a matter of constitutional principle, every member of our Lok Sabha (House of the People) represents the people of India in their majestic collectivity. And, we the people of India are one and, in constitutional theory, indivisible. Territorial constituencies and their periodic delimitation are only for purposes of electoral convenience. While there may be practical political needs for each member to nurse his/her constituency and attend to the problems of his/her constituents, in case of conflict of interest between the constituents and the people of India, the member must invariably stand for the latter.

Right to Recall at the national level has never been provided by any major democratic country of the world. In the United States, some states at their level only provided for it and there was the case of Recall of a governor. In some Swiss cantons also, Right to Recall prevailed. But, only less than twenty countries made any mention of the right to recall at the national level. The erstwhile USSR and other communist countries usually provided for it. In an overwhelming majority of countries, elected members are supposed to be independent of their electors. To quote the Inter-Parliamentary Union work on Parliaments of the World: in most of the countries “the mandate of a member cannot be revoked by his electors. In these countries, the mandate does not take on the same meaning as it does in the socialist countries because members are not bound to their constituents by any legal obligation. Their independence is reflected in the absence of any procedure for recall”.

The size of Lok Sabha constituencies being very large, sometimes with tens of lakh of electors, it may be extremely impracticable to initiate and complete recall proceedings in any case. It would hardly be feasible to have a petition signed by lakhs of voters, have the signatures verified and authenticated, get the house to agree and then seek a fresh vote of the entire electorate to remove or recall the member and then yet another election to choose a new member in his/her place.

With the majority of members elected by minority of votes, right on the day of election, a large majority of electors are not for them and do not consider them suitable for the office of Member or for being their representatives. Thus majority of members – nearly 3/4th in case of Lok Sabha – may all stand eligible for straightaway recall and fresh elections may not yield better results. Provision for right to recall within the present FPTP system and with over 1300 parties may result in an unending stream of general and bye elections all the year round and extremely fragile and instable governments.

RTR may be feasible at best in situations where the size of electors is not too large e.g. at the level of Panchayats and Nagarpalikas or in case of Rajya Sabha. Also, introduction of RTR at the national (Lok Sabha) or State Assembly level could make some sense only if it was combined with reforms suggested here.

Another fashionable suggestion is that of negative voting i.e. of providing to the voter the option to say “None of the Above” (NOTA). In India, the demand for the right to cast a negative vote has arisen in the background of numerous instances of the electorate feeling unenthusiastic about voting for any of the candidates whether because of their poor performance in their earlier terms or because all the candidates put up by different parties have criminal cases pending against them.

The Rules made under the Representation of the People Act, 1951 concede this right to a limited extent inasmuch as under Rule 49(O), a voter anxious to record his negative choice of not wanting to vote for any of the candidates can ask the Presiding Officer of the Polling Booth for the special form kept for this purpose. These forms are deposited in a separate box. This arrangement is objected to on the ground that the secrecy of the vote is not maintained and the process is discriminatory against those wishing to reject all the candidates by casting a negative vote. Demand is being made for a separate button in the EVMs (Electronic Voting Machines) for casting a negative vote.

While the idea of a negative vote sounds attractive and appeals to some intellectuals and activists, it is no solution to the several basic maladies afflicting Indian politics and, in particular, the electoral system. The main objections to the idea are: the purpose of elections is to elect the representatives of the people while those casting a negative vote are voting for not electing anyone; if no one is elected, the result may be repeated elections, inability to form Government and ultimately anarchy or authoritarian rule; voters who do not like any of the candidates put up by the political parties have all the right and opportunity to join a party of their choice and/or to put up candidates they would like to see elected; people go or are taken to polling booths to vote for some one for varied considerations, it is not conceivable that any sizeable number of voters could ever be motivated to stand in long queues under the sun to say at the end of the ordeal that they did not want to vote for anyone; the nearly 50 per cent of the electors who abstain from going to polling booths for casting their votes are in effect saying that they are not anxious to vote for anyone of the candidates.

The root cause of the NOTA situation is the absence of any role to the people in the selection of candidates who are foisted only by the Party High Commands, The remedy therefore would be to provide for people’s participation through a system of primaries or public meetings.

In a democracy, the real and ultimate masters are the people, the citizens. There is an increasing realisation that little has been done to educate or orient the voters in their responsibilities. The question now is what can be done to impart necessary awareness in citizen’s obligations as voters and participants in the democratic process and how can it be done on a wide scale as a movement?

Ultimately, the citizens would need to be educated in and for democracy and constitutionalism and in the matter of their own citizenship obligations in a representative, participatory democratic polity. There is no reason, why citizens vigilance groups and committees should not come up at every level and on a wide scale.

Finally, we need to remember Gandhiji’s statement that “… real swaraj will come, not by the acquisition of authority by a few, but by the acquisition of the capacity by all to resist authority when abused”. This must be the guiding light in reforming electoral processes. The reforms must lead to representative legitimacy and inbuilt capacity of electors and elected to resist misuse of authority.

By Subhash C Kashyap

(The writer is an eminent expert on constitutional law and political management. He is a former Secretary-General, Lok Sabha)

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