Friday, May 3, 2013

India’s Ailing Electoral System: Need for Reforms


Mr PP Rao, 
Senior Advocate, Supreme Court

Democracy is passing through a difficult phase of institutional decline. The political parties are functioning in a manner detrimental to the interests of the country and its citizens. Persons without any commitment to the Constitution and its values are being elected in large numbers to the Parliament and State Legislatures. There is a growing conflict of interest between them, their parties and the people they profess to serve. Some of the policies they pursue are anti-national and unconstitutional. The National Commission to Review the Working of the Constitution (2002) observed that “the main cause and source of political-decay is the ineptness of the electoral process which has not been able to keep out criminal, anti-social and undesirable elements from participating in and even dominating the political scene and polluting the electoral and parliamentary processes. Political parties, which have a fair share of the Criminal elements, handle enormous funds ostensibly for meeting party and electoral expenditure. Money-power and criminal elements have contributed to pervasive degeneration of standards in public life and have criminalised politics. This is reflected in the quality of governments and of the governing processes. …There is crisis of confidence. There is crisis of leadership. Political leaders, owing to narrow partisan and sectarian interests and desire for short time political gains, are unable even to agree upon broad, common, national purposes.”

In a memorial lecture delivered in 1998, Atal Bihari Vajpayee said: "Barring exceptions, those who get elected to these democratic institutions are neither trained, formally or informally, in law-making nor do they seem to have an inclination to develop the necessary knowledge and competence in their profession. …the electoral system has been almost totally subverted by money power, muscle power, and vote bank considerations of castes and communities. As a result, although casteism and communalism may be weakening in social life, the same are being aided and abetted by the electoral process. Elections are not entirely free and fair; they are not reflecting the true will and aspirations of the people. …The natural inclination of today's MPs and MLAs is to get involved in the executive function - that too without accountability and much capability. The exceedingly high premium placed on capturing power by fair or foul means is because of the elected representatives' conviction that power is the passport to personal prosperity. …The biggest challenge that we, who have preached and practiced probity in public life face, is to restore faith in the political class and rejuvenate the democratic process".

The Law Commission in its 170th Report on Reform of the Electoral laws (1999) observed: "There has been a steady deterioration in the standards, practices and pronouncements of political class, which fights the elections. Money-power, muscle power, corrupt practices and unfair means are being freely employed to win elections. …”

On the functioning of Parliament and the State Legislatures, the National Commission observed: “If there is a sense of unease with the way the Parliament and the State Legislatures are functioning, it may be due to a decline in recent years in both the quantity and quality of work done by them. Over the years the number of days on which the houses sit to transact legislative and other business has come down very significantly. Even the relatively fewer days on which the houses meet are often marked by unseemly incidents including use of force to intimidate opponents, shouting and shutting out of debate and discussion resulting in frequent adjournments. There is increasing concern about the decline of Parliament, falling standards of debate, erosion of the moral authority and prestige of the supreme tribune of the people. Corrective steps are urgently needed to strengthen Parliament’s role as the authentic voice of the people as they struggle and suffer to realise the inspiring vision of a free and just society enshrined in the Constitution. Also, it is of the utmost importance for survival of democracy that Parliament continues to occupy a position of the highest esteem in the minds and hearts of the people.” In the words of Atal Bihari Vajpayee, "Sadly, serious debate has ceased to take place in our elective bodies, which have come to resemble akharas (arenas for fighting bouts) where noisy confrontation is the norm."

Nani A. Palkhivala, the most famous lawyer of his time was a crusader for reforms. He said: "It is high time that, having regard to the lack of character and caliber in the overwhelming majority of our politicians, we should think of making some badly needed changes in our Constitutional Law... The time has come when citizens must wrest the initiative from professional politicians and form political parties, and insist upon men of knowledge, vision and character being chosen as candidates for parliamentary and state elections. It is only such men who can give India the type of government it needs - a government which is strong without being authoritarian and humane without being weak. Poverty can be eradicated only by experts in finance, production and marketing, and specialists in social engineering and deployment of resources.”

Several expert bodies like Dinesh Goswami Committee, Inderjit Gupta Committee, Justice V.R Krishna Iyer Committee, the Law Commission of India, the Election Commission of India and the National Commission to Review the Working of the Constitution and distinguished leaders like Ramakrishna Hegde, C. Subramaniam and Krishna Kant, have suggested comprehensive electoral reforms.

Unity and Integrity of India

Speaking at the inaugural sitting of the Constituent Assembly, Dr. S. Radhakrishnan had said: "India is a symphony where there are, as in an orchestra, different instruments, each with its particular sonority, each with its special sound, all combining to interpret one particular score. It is this kind of combination that this country has stood for. It never asked the Parsis or the Jews or the Christians or the Muslims who came and took shelter there to change their creeds or become absorbed in what might be called a uniform Hindu humanity... "Live and let live" - that has been the spirit of the country."

In the Constituent Assembly Dr. Ambedkar had declared emphatically: "The castes are anti-national, In the first place because they bring about separation in social life. They are anti national also because they generate jealousy and antipathy between caste and caste." In the Constitution, we the people of India had resolved to promote fraternity among all citizens and promote unity and integrity of the nation. Now we find that we are divided on caste and community and sectarian lines by the political class for electoral gains. The British policy of "divide and rule" was limited to playing the Hindus against the Muslims and vice-versa. India is much more divided today than during the alien rule as quite a few political parties thrive by relying on caste and community. In India we have common citizenship and all Indians are entitled to equal rights, but according to the philosophy of the Thackeray's (Late Bal Thackeray, Uddhav Thackeray and Raj Thackeray), Maharashtra is for Maharashtrians, Indian Railways shall recruit only Maharashtrians, all employment opportunities - from the lowest to the highest in public as well as private establishments should be reserved exclusively for Maharashtrians; and every legislator must take the oath only in Marathi language, otherwise they will let loose their senas, paralyse civic life, attack targeted people and destroy their property. Can political parties with such an ideology be allowed to enjoy the benefit of registration and recognition by the Election Commission?

Recommendations

In order to eliminate the influence of caste and community in elections, Krishan Kant, former Vice President of India, had suggested two simple amendments to the election law: (i) to introduce a condition that in order to be declared elected from a constituency a candidate shall secure not less than 50% + 1 vote of the total votes polled, failing which, there shall be a runoff election limiting the contest to the two leading candidates in the first round, and (ii) to add one more slot in the ballot paper "none of the above" for negative vote i.e. for rejecting all the candidates contesting. If a majority of the votes polled reject all the candidates there shall be a fresh election with new faces. If these are implemented, reliance on caste and community will vanish silently. Justice V.R. Krishna Iyer Committee recommended in addition that a party bearing the name of a religion, race or caste shall not be registered as a political party to contest elections. Reasonable time may be given to such existing political parties to change their names, and a party which promotes communalism or seeks to fight elections on communal issues, shall be deregistered and disqualified. To ensure that the elected candidate represents a substantial section of the voters, the committee suggested that if the total vote polled in a constituency is less than 35 percent of the total number of voters in the constituency, there should be a repoll. The Committee's recommendation for regulation of political parties by law to ensure inner party democracy in every political party and maintenance of regular accounts and their audit by them has subsequently been reiterated by the Law Commission of India.

Strengthen the Election Commission

The Election Commission has been doing a commendable job. It would do still better by revising the norms for classification of political parties which grow like mushrooms and help in the emergence of two national parties or at least two combinations of parties. Political parties should be classified into, national, regional and state for proper identification of the nature and size of a political party. Regional parties cannot be called national parties. All political parties have secured registration by giving a written undertaking to the Election Commission of India in terms of Section 29(5) of the Representation of the People Act, 1951 that they shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India. In blatant violation of the undertaking barring a few exceptions, they rely on caste differences and pursue communal, parochial and chauvinistic policies unconcerned about the unity and integrity of India. Now, it does not have the power to withdraw or cancel registration of a party. The Commission needs power to withdraw or cancel the registration granted to a political party if and when the party violates the undertaking given to the Election Commission. There is no law to regulate political parties. The Election Commission is powerless to discipline them. It cannot even cancel the registration of erring political parties. The Commission should be enabled to deregister communal parties which are masquerading as political parties.

Proliferation of Political Parties

The problem in India is that there are too many political parties bereft of ideology, with a burning desire to capture power and retain it by hook or crook. They are destabilizing our democracy. Too many cooks spoil the broth. In 1988, Justice Sarkaria Commission noted: "A large number of splinter groups with shifting loyalties and narrow interests have been thrown up rather than large-size political parties with healthy traditions and broad outlook which could shoulder heavy responsibility if occasion arose. This has tended to encourage irresponsible political behaviour." In the words of the Law Commission: “…there has been a steady deterioration in the standards, practices and pronouncements of the political class. The proliferation of political parties, almost a mushroom growth over last few decades, necessitating the formation of coalitions with all their internal contradictions, pulls and pressures, has resulted in lack of good governance. This has to be checked. A Parliamentary democracy can be run successfully only if there are two or three parties. The Commission has suggested measures to check proliferation of political parties. Democracy cannot work without political parties. Stable and successful democracies like UK and USA function mostly with a two-party system.

From Parliament downwards to a students' union, democracy is by and large, seen as securing votes somehow, by candidates who are mostly ill-equipped, self-serving and ambitious investors in politics who are hungry for limelight and exploitation of power. The people who are the real repository of sovereignty have no say in the choice of candidates. The option given to them is either to vote for one or the other of the candidates contesting or to altogether abstain from voting. Indian democracy has now become a routine ritual. In the words of Zulfikar Ali Bhutto: “the din and noise of election have kept democracy going in India.” The National Commission gave a warning: “There is increasing criminalisation of politics and of the electoral process. If the remedies are not found and implemented speedily there might remain very little of value to salvage.”

Coalition Governments

Horse-trading is part of coalition politics. The traders bargain for lucrative portfolios. They do not permit clean, transparent and effective governance. A Prime Minister or a Chief Minister heading a coalition government dare not drop a corrupt minister so long as the minister commands the support of a coalition partner which has a sizeable strength in the house, unless he is prepared to risk the fall of his own government. Integrity and ability are no longer the main criteria for appointment of ministers. The wishes of the people of India, the repository of political sovereignty, have no say in the selection of candidates by political parties or in the appointment of ministers. The National Commission observed:

"There is pervasive impurity of the political climate and of political activity. Criminalisation of politics, political-corruption and the politician-criminal-bureaucratic nexus has reached unprecedented levels needing strong systematic changes. Black-money, parallel economy and even parallel Governments are the overarching economic and social realities. Legitimate Government will, in due course, find it increasingly difficult to confront them. In course of time these illegal criminal outfits will dictate terms to the legitimate Governments.” This has happened in Orissa and Chhattisgarh when Naxalites kidnapped a District Collector and MLAs.

State Funding of Elections

After considering the recommendations made earlier by various committees regarding state funding, the Law Commission accepted the suggestion of Inderjit Gupta Committee for partial state funding of elections in kind on an experimental basis by providing facilities for organising meetings, allocating time on the radio and television and facilitating printing of election literature and postage etc. The committee also recommended imposing simultaneously restrictions by law on the number of cut-outs, banners, wall posters, hoardings, flags, vehicles to be used etc. The Law Commission has also recommended disqualifying a person against whom a criminal charge has been framed by a Court of law if the offence involved moral turpitude, from contesting at an election or continuing as a Member of Parliament or of a State Legislature.

Structural changes

To make the political executive perform better, it is necessary to carry out a few structural changes in the Constitution with respect to the Executive. B.K. Nehru's suggestion for total separation of the executive and the legislature is not possible, parliamentary democracy being a basic feature of the Constitution. However, it is desirable and possible to separate the executive from the legislature to the extent of making MPs, MLAs and MLCs ineligible to hold any executive office except the post of minister and simultaneously laying down strict conditions of eligibility for the office of minister to keep away undesirable persons. If ministership is made inaccessible to all except the well equipped members of Parliament or a State Legislature, it will ensure good governance.

A provision for direct induction of outstanding persons of ability and experience in the cabinet to handle the key portfolios, without their having to be elected to Parliament or the State Legislature concerned is a felt necessity. They could be made ex-officio Members of Parliament or the State Legislative Assembly or the Legislative Council concerned as the case may be, to facilitate transaction of business in the House. Dr. Rajendra Prasad had mentioned in his concluding address to the Constituent Assembly: “I would have liked to have some qualifications laid down for members of the legislatures. It is anomalous that we should insist upon high qualifications for those who administer or help in administering the law but none for those who make it except that they are elected. A law giver requires intellectual equipment but even more than that, capacity to take balanced view of things, to act independently and above all to be true to those fundamental things of life - in one word - to have character. It is not possible to devise any yardstick for measuring the moral qualities of a man and so long as that is not possible, our Constitution will remain defective.” Palkhivala said: "The grim irony of the situation where the one job for which you need no training or qualification whatsoever is the job of legislating for and governing the largest democracy on earth. You need years of training to attend to a boiler or mind a machine; to supervise a shop floor or build a bridge; to argue a case in a law court or to operate upon a human body. But to steer the lives and destinies of more than 650 millions (now 1200 millions) of your fellow-men, you are not required to have any education or equipment at all... By voting ignorant professional politicians to power, we have kept a singularly gifted and enterprising nation in the ranks of the poorest on earth." C. Subramaniam, former Union Minister and later Governor of Maharashtra, suggested that a candidate for election to an Assembly must possess a minimum educational qualification of Plus Two (HSC) and for Lok Sabha he should be a Graduate from a recognised Institute or have experience in the functioning of the Panchayati Raj Institutions or must have rendered public service in a recognised voluntary service organization.

Apprehensions of Leaders

C. Rajagopalachari had anticipated the present state of affairs 25 years before Independence, when he wrote in his prison diary: "Elections and their corruption, injustice and tyranny of wealth, and inefficiency of administration, will make a hell of life as soon as freedom is given to us. Men will look regretfully back to the old regime of comparative justice, and efficient, peaceful, more or less honest administration…." He added: “Hope lies only in universal education by which right conduct, fear of God and love will be developed among citizens from childhood.” in November 1949, Dr. Ambedkar voiced his concern whether India would maintain her Independence or will lose it again as it happened before due to “the infidelity and treachery of some of her own people”. Dr. Rajendra Prasad in his concluding address to the Constituent Assembly sounded a note of caution: "Whatever the Constitution may or may not provide, the welfare of the country will depend upon the men who administer it. If the people who are elected are capable and men of character and integrity, then they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country." Palkhivala posed the question, “Has the Constitution failed?” and answered it by saying that “it is not the Constitution which has failed the people, but it is our chosen representatives who have failed the Constitution.” It is evident that we have not been able to work the Constitution in the manner expected. To recall the words of Joseph Story, American Jurist: "Republics are created by the virtue, public spirit and intelligence of the citizens. They fall, when the wise are banished from the pubic councils, because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them."

Unless we bring into Parliament, State Legislatures and the Councils of Ministers, the best brains available in the country i.e. distinguished men and women of integrity, ability and vision who can work the Constitution successfully, democracy and the rule of law may not survive. India is one of the richest countries in the world in terms of human resources. There is no dearth of patriots or Statesmen in the country. Besides electoral reforms, administrative reforms (including Police reforms) and Judicial reforms are the need of the hour. Pressure of public opinion alone will make the Parliament reform the system. Only the youth of the country can prevail upon Parliament to amend the laws as they have done in the case of gang rape of a Delhi girl and saw to it that an Ordinance was issued in a record time.

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