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A Paradox of Right to Recall and Reject-A boon or bane”
 

A Paradox of Right to Recall and Reject-A boon or bane”

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That in view of the criminalization of electoral process, it is a high time that the ...

That in view of the criminalization of electoral process, it is a high time that the
government has to bring adequate reform in the electoral process by simply
implementing Right to reject by providing a “none of the above” option in the EVMs, the
voters can be given a choice, a choice to reject all the candidates in fray . If such
negative votes out-number those in favour of the leading candidate, then the election
would be countermanded and the candidates would be debarred from contesting
elections in future.

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    A Paradox of Right to Recall and Reject-A boon or bane” A Paradox of Right to Recall and Reject-A boon or bane” Document Transcript

    • 1 “A Paradox of Right to Recall and Reject - A boon or bane” to be submitted to THE INSTITUTE OF CONSTITIONAL AND PARLIAMENTARY STUDIES 18-21, VITHALBHAI PATEL HOUSE, RAFI MARG, NEW DELHI-11001 INDIA in partial fulfillment of the requirements for the Post Graduate Diploma in Parliamentary Fellowship Programme Compiled by: Sanjeev Kumar Chaswal Post Graduate Diploma in Parliamentary Fellowship Programme
    • 2 Declaration I, Sanjeev Kumar Chaswal a student of Post Graduate Diploma in Parliamentary Fellowship Programme of The Institute of Constitutional and Parliamentary Studies having Roll no 2 do hereby declare that this dissertation paper is an original work of mine and is result of my own intellectual efforts. I have quoted titles of all original sources i.e. original documents as this is a fellowship research Programme and name of the authors whose work has helped me in writing this research paper have been placed at appropriate places and I have not infringed copy rights of any other author. Signature Date ------------- ( Sanjeev Kumar Chaswal ) Place -
    • 3 CERTIFICATE This is to certify that the dissertation entitled “A Paradox of Right to Recall and Reject-A boon or bane” which is being submitted by Mr. Sanjeev Kumar Chaswal for the award of the Post Graduate Diploma in Parliamentary Fellowship Programme is independent and original research work carried out by him. The dissertation is worthy of consideration for the award of Post Graduate Diploma in Parliamentary Fellowship Programme of The Institute of Constitutional and Parliamentary Studies, 18-21, Vithalbhai Patel House, Rafi Marg, New Delhi-11001 India Mr. Sanjeev Kumar Chaswal has worked under my guidance and supervision to fulfill all requirements for the submission of this dissertation. The conduct of research scholar remained excellent during the period of research. Signature The Institute of Constitutional and parliamentary studies 18-21, Vithalbhai Patel House, Rafi Marg, New Delhi-11001
    • 4 ACKNOWLEDGEMENT I feel proud to acknowledge the able guidance of our esteemed Director Mr. Semadhari and I further acknowledge with pleasure of unparallel infrastructural support rendered by ICPS which I have received from The Institute of Constitutional and Parliamentary Studies staff, In fact this work is the outcome of outstanding support of and that I have received from the faculty members of the Institute, in particular Ms. Mukesh Devi who has guided me to finish my research. I find this opportunity to thank the library staff and Administrative Officer Mr. Sunil Kumar of the Institute of Constitutional and Parliamentary Studies. This research work bears testimony to the active encouragement and guidance of a host of friends and well-wishers; In particular mention must be made of Hon’ble Mr. Justice R.L. Khurana and Mr. N.S Bajwa Advocate who have been guiding in this research. It would never have been possible to complete this study without an untiring support from my family. I am greatly indebted to the various writers, jurists and all others from whose writings and work I have taken help to complete this dissertation “A PARADOX OF RIGHT TO RECALL AND REJECT- A BOON OR BANE” Date…………. …………………………………. Place: (Sanjeev Kumar Chaswal)
    • 5 PREFACE That in view of the criminalization of electoral process, it is a high time that the government has to bring adequate reform in the electoral process by simply implementing Right to reject by providing a “none of the above” option in the EVMs, the voters can be given a choice, a choice to reject all the candidates in fray . If such negative votes out- number those in favour of the leading candidate, then the election would be countermanded and the candidates would be debarred from contesting elections in future. It is the citizen’s prerogative right not to vote / right to reject / negative voting / none of the above is a campaign for inclusion of 'None of the Above' button in the Electronic Voting Machines (EVM). It aims to provide all citizens, the right to reject all candidates so as to document their distrust against politicians. Thus it is imperative on the part of the Government to bring adequate electoral reforms, even to the extent of extending or empowering its citizens with the Right to Recall the public representatives The subject research work has been divided in thirteen major chapters and further divided into various sub topics. The first topic which is named as Introduction and this dissertation further consists of other twelve Chapters. The first and second chapter of this work attempts to defined history, emergence constituent assembly Resolution. The Third and Four Chapter gives an overview of formation of constitution of India and electoral laws and systems in India. The fifths and Sixth chapter of this research work is an endeavour to put more stress on Election inconsistencies and scope of legislative accountability in India. The seventh and eighth Chapter deals in respect to electoral reforms and “None of the above” in other countries. The Ninth and Tenth chapter of this dissertation gives view about Right to Reject and Right to Recall.
    • 6 The Eleventh and Twelfth give a final brief view on the Recall mechanism and Indian perspective on recall and lastly conclusion or final word on the research work and certain valuable suggestions in support of Right to Recall and Right to reject of the public representatives and reform of the electoral process. Date…………. …………………………………. Place: (Sanjeev Kumar Chaswal)
    • 7 ABBREVIATIONS AIR All India Reports Apex Court Supreme Court of India BC British Columbia CEC Chief Election Commissioner Cr LJ Criminal Law Journal Cantons Districts in Switzerland EU European Union EC Election Commission EVM Electronic Voting Machine MP Member of Parliament MLA’s Member of Legislative Assembly (NCRWC) National Commission to Review the Working of the Constitution NOTA None of the Above NRS 293.269) State of Nevada, U.S.A, SCR Supreme Court Reports SCC Supreme Court cases UK United Kingdom USA United States of America USD United States of America Currency U.S. Senate United States of America Parliament USEAC United States Election Assistance Commission's voto en blanco Blank Votes in Spanish
    • 8 TABLE OF CONTENTS Chapter Page . Declaration i Certificate ii Acknowledgement iii Preface iv Abbreviations v THE ABSTRACT 1 - 3 CHAPTER–I INTRODUCTION 2 - 7 Historic origins 2 - 6 British period 6 - 7 CHAPTER – II EMERGENCE OF CONSTITUENT ASSEMBLY 8 - 10 CHAPTER – III CONSTITUTION OF INDIA 11–19 Introduction to the Indian Constitution 11- 12 Federal Structure 12-13 Parliamentary Democracy 13 Part XV-Elections 13-16 Governance system of Government 16-17 Amendment of the constitution 17-19 CHAPTER – IV ELECTORAL LAWS & SYSTEM IN INDIA 20- 30 Introduction to Election Commission 20-22 Indian electoral system 22-23 History of political parties 23-24 Changing of the Political parties 24-25 Electoral Process 25 Pre elections 25-26 The voting process 26 The voting day 26 None of the Above 26-27 Post elections 27-28 Electoral Laws 28-29 Electoral System in other Countries 29-30 CHAPTER – V ELECTION INCONSISTENCIES IN INDIA 31- 37 Election inconsistencies 31-33 Criminalisation of Politics 34 Financing of election exceeding the legal limit 34-35
    • 9 Booth Capturing 35 Buying Votes 35-36 Abuse of caste and religion 36 CHAPTER – VI THE LEGISLATIVE ACCOUNTABILITY IN INDIA 37-45 CHAPTER – VII THE ELECTORAL REFORMS 46 –58 Why electoral reforms 46-49 Issues and challenges before the election commission 49-52 Initiatives by the Election Commission on electoral reform 52-54 The De-criminalisation of politics in public life 54-55 Bringing Transparency in Political Party Functioning 55-56 Setting the Stage for State Funding Level- Playing Field for Political Parties 56-57 Is time ripe for Immediate Action? 57-58 CHAPTER VIII NONE OF THE ABOVE IN OTHER COUNTRIES 59-70 None of the above in 59-60 Soviet Union 60-61 Spain Blank ballot 61 Blank seats 61-62 USA 62 Poland 62-63 Protest vote 63 Protest vote can take different forms 63-64 Protest vote and abstention 64-65 Voting for fringe candidates 65 Electing a political newcomer 65-66 Donkey vote 66-67 Spoilt vote 67-68 Unintentional spoiling 68-69 Intentional spoiling 69 Abstention 70 CHAPTER IX RIGHT TO REJECT 71 –80 What is Rule 49-O 71 Text of Rule 49-O 72 Present Implications of Rule 49-O 72 Proposals by the Election Commission of India 72 Is it Negative / Neutral Voting 73 Criticism of proposals regarding negative voting and annulment of polling due to Neutral votes 73-74 Right to Reject 74-77 The reasons why Right to Reject should be introduced: 77-79 The reasons why Right to Reject should not be introduced 79-80 CHAPTER X THE RIGHT OF RECALL 81-88 Countries in which recall is permitted 83 The United States of America 83-84
    • 10 Switzerland 84-85 Philippines 85 Venezuela 85 Uganda 85-86 British Columbia 86 Pleas for and against the use of recall 86 Arguments for recall 86-87 Arguments against recall 87-88 CHAPTER XI THE RECALL MECHANISM AND PRINCIPLES 89-105 Introduction 89 Modalities of the recall mechanism 89 Circumstances for incumbent Recalling 90 Whether an incumbent can be recalled 91-92 Can the elected person being challenged 92-93 stand for re-election 93 Requirements for holding a recall vote 93 Requisition of Number of signatures 93 Deadline for collecting signatures 93 The final recall vote 93-94 The day of the recall vote held 94-95 Holding a simultaneous recall vote and vote to elect a successor 95 Holding two separate ballots 95-96 Restrictions on which Office / officers the mechanism applies to 96 Restrictions on application of the recall mechanism 96 Number of signatures required for Recall ballot 96-97 Verification of Recall signatures 97 Combining the votes on the recall and a successor 97-98 The recall in a party based electoral system 98 CHAPTER XII INDIAN PERSPECTIVE ON THE RECALL The Indian Perspective towards Recall 99-106 Pros and Cons of right to recall in Indian Context 106-107 CHAPTER XIII A CONCLUSION OR FINAL WORD Is there real need for a mechanism on the right to Reject and Recall 108-113 Table of Cases 114 Bibliography 115-117 Appendixes 118
    • 11 TABLE OF CASES Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461 Minerva mills vs. union of India AIR 1980 SC 1789 Woman Rao vs. Union of India AIR 1981 SC 271 S.P. Sampat kumar vs. union of India AIR 1981 SC 271 L. Chandra kumar vs. union of India AIR 1997 SC 1125 Peoples Union for Civil Liberties & another vs. Union of India[ (1997) 1 SCC 301] State of Madhya Pradesh & Ors. v. Shri Ram Singh; AIR 2000, SC 870 P.V. Narishmha Rao vs. State1998 Cri. L.J. SC 2930 State of Madhya Pradesh & Ors. v. Shri Ram Singh; AIR 2000, SC 870
    • 12 BIBLIOGRAPHY 125-140 Books John R. Kahn, Negotiation, Mediation and Arbitration in the Computer Program Industry: Why play hardball with software, pt. III.B (1989).128 Resolving Intellectual Property Disputes Outside of Court: Using ADR to Take Control of Your Case By Alan W. Kowalchyk 128 Reports 132 The Indian Judicial System A Historical Survey By Mr. Justice S. S. Dhavan High Court, Allahabad 98 News Week, Dec. 19. 1959, Challenge of Communism 55 Articles, Papers and Transcripts The justice dispensation system in India[1] ICADR88 58 Mr. H. D. Shourie, Founder Director of COMMON CAUSE, continued his exertions to this end till his last breath. In his letter to Mr. Justice S. M. Raza, Lokayukta, Uttaranchal, dated June 22, 2005, 58 News papers 139 Supreme Court chides itself, govt for judicial backlog Dhananjay Mahapatra, TNN Jan 12, 2012, 05.57AM
    • 13 APPENDIXES The regulation of 1781 22 Regulation of Act 1787 22 Regulation of Act 1793 23 The Madras Presidency Regulation VII of 1816 23 Bombay Presidency Regulation VII of 1827 23 Under the Charter Act of 1833 23 Act IX of 1840. 23 The Act VIII of 1857 24 The Act XIV of 1882 24 The Indian Arbitration Act IX of 1899: 25, 53, Information Technology Act, 2000 27 Arbitration and Conciliation Act, 1996 15,16,46 The Arbitration Act of 1940 61, 63 Industrial Disputes Act, 1947 53, Section 23(2) of the Hindu Marriage Act, 1955 53 The Family Court Act, 1984 54 The Legal Services Authority Act,1987 The Code of Civil Procedure, 1908 47 The Geneva Protocol on Arbitration Clauses, 1923, 75 The Geneva Convention on the Execution of Foreign Award, 1927 75 Legal Services Authorities (Amendment) Act, 2002
    • 14 ABSTRACT “An election is a moral horror, as bad as a battle except for the blood; a mud bath for every soul concerned in it.” - George Bernard Shaw One of the many flaws of our democracy is that the voters have limited options to exercise. The candidates are selected by their respective political parties on the basis of so-called “win ability” formula for representing respective legislative houses and then, the voters are asked to elect one of them. Therefore, sometimes the voters may not have a choice but to vote to candidate having selected by the party to represent that constituency despite of the candidate having criminal antecedents. That this being sole reason on the basis of win ability formula that is why parties are some time select the candidates having criminal antecedents and this can be seen as now a days criminals and corrupt getting into the assemblies and Lok Sabha after every round of elections. That in view of the criminalization of electoral process, the government has to bring adequate reform in the electoral process by simply providing a “none of the above” option in the EVMs, the voters can be given a choice, a choice to reject all the candidates in fray . If such negative votes out-number those in favour of the leading candidate, then the election would be countermanded and the candidates would be debarred from contesting elections in future. It is the citizen’s prerogative right not to vote / right to reject / negative voting / none of the above is a campaign for inclusion of 'None of the Above' button in the Electronic Voting Machines (EVM). It aims to provide all citizens, the right to reject all candidates so as to document their distrust against politicians. It is also a prerogative of the citizen’s to elect their representatives and at the same time to decide whether a non-performing elected representative should continue in office for a full
    • 15 term or not. An elected representative, who is not performing up to the expectation, can only be removed by democratic means, with due procedural laws. Therefore, along with right to elect comes the right to recall also. The 'right to recall' a representative / legislator is a democratic method of removing an elected representative on the ground of non-performance or even misuse of their position. The assumption is that once this right to reject is ex excised by the voter, the political parties will be forced rather have to take the voters’ preferences in to consideration while fielding candidates in legislative fray.
    • 16 Chapter-I INTRODUCTION Historic origins Though it is generally admitted and believed that the concept or principles of democracy and constitutional principles. Although it is generally believed that the concepts of democracy and constitution were instituted somewhere in ancient Athens and it is also believed that initial democratically elected forms of government, in a broader sense, may have coexisted in several demography’s of the world well before the turn of the 5th century. The assumption of democratic principles enunciated within of that broader perspective or sense, so it is plausible assumptions may arise that democracy in one form or in some another form arose as naturally in any of well-bonded group, such as a single community or tribe so this can be indentified as primary democracy liked to small communities or villages, where smaller group of people gather or sit together to meet or discuss in their council or panchayats or village elders l or a headman whose decisions are supported by village elders or other cooperative modes of government.1 Though in the Greek system of democracy the were decisions were taken by the people who have assembled, it was democracy to some extent that where the decisions were made by the assembled people and courts of law controlled the entire political process and a large proportion of citizens were involved constantly in the public business. And even though the rights of the individual (probably) were not secured by the Athenian constitution in the modern sense, the Athenians enjoyed their liberties not in opposition to 1 Wikipedia, the free encyclopedia source
    • 17 the government, but by living in a city that was not subject to another power and by not being subjects themselves to the rule of another person. That the Rome history has helped it to preserve the concept of democracy over many centuries even though the Rome is classified as republic and not a democracy by historians. The historians believed that the Romans invented the concept of classics and many works from Ancient Greece were preserved further the Roman model of governance has inspired many of political thinkers over the centuries and today's modern (representative) democracies imitate more the Roman than the Greek models The inception of early democratic traditions in terms of “Sanghas and Ganas” which had existed as early as the sixth century BCE and continued to persists in few parts of early India until the fourth century CE. Though evidence in relation to its existence is not symmetrical and no pure historical evidence sources show existence of that period. It is believed that some historian of Greek decent has mentioned in his writing that too two centuries after the time of Alexander the Great's invasion of India of the existence of independent, democratic states in India, however the modern historians believes that relevance of word democracy cropped up at the third century BCE but later had been degraded and this could mean of any autonomous state no matter how collectively the governance, it was at that time. The main characteristics of the Gana seem to be a monarch, usually called raja that use to hold a deliberative assembly. The assembly met regularly with Raja in which at least in some Gana states, the attendance was open to all free men and matter of the importance use to be discussed and all major decisions taken after deliberations. This deliberative assembly had also full financial, administrative, and judicial authority all matters with in its ambit. The monarch was elected by the gana and apparently he was always belonged to a family of the noble K'satriya Varna. The monarch coordinated his activities with the assembly and in some states along with a council of other nobles. The Licchavis had a primary governing body of 7,077 rajas, the heads of the most important families. On the
    • 18 other hand, the Shakyas, the Gautama Buddha's people, had the assembly open to all men, rich and poor2 Though many of historians and scholars have differences over how to describe these governments and the vague, sporadic quality of the evidence allows for wide disagreements. The some of scholars emphasize the central role of the assemblies and thus tout them as democracies; other few scholars concentrates on the upper class domination of the leadership and possible control of the assembly and see an collectively or an aristocracy. That obviously power is in the form of assembly but no historians or scholar is able to identify or established if the assembly composition and participation was ever truly popular. The main problem so far has been lack of evidence describing carrying out of popular views of the assembly. The artha shashtra an ancient book guide monarchs’ to how to run smooth and efficient administration in their kingdom or state, the chapter further described to deal sanghas, which includes injunctions on manipulating the noble leaders, being a guide for nobles it does not describe how to influence the kingdom masses.3 The democratic principles gave a birth to a election of representatives for the assembled nobles and this practice got evolved a more sophisticated system of elections as it was used as early in history as ancient Greece and ancient Rome, and throughout the Medieval period to select rulers such as the Holy Roman Emperor and the Pope. The ancient India revolved systems of election around 920 AD, in Tamil Nadu, Palm leaves were used for village assembly elections4 . The palm leaves with candidate names, use to be put inside a mud pot for counting. This was called Kudavolai system. Elections were also used to select rajas by the gana. Ancient Arabs also used election to choose their caliph, Uthman and Ali, in the early medieval Rashidun Caliphate;5 and to select the 2 Robinson, 1997, p. 23 3 Trautmann T. R., Kautilya and the Arthra' shastra, Leiden 1971 4 "Election (political science)," Encyclpoedia Britanica Online. Retrieved 18 August 2009 5 Encyclopedia of Islam and the Muslim World (2004), vol. 1, p. 116-123.
    • 19 Pala king Gopala in early medieval Bengal6 The modern "election", which consists of public elections of government officials, didn't emerge until the beginning of the 17th century when the idea of representative government took hold in North America and Europe. 7 The Moghals introduced elaborate administrative machinery with a hierarchy of officials, particularly in the field of revenue. The Moghal local administrative system lasted over centuries. It was with the collapse of the Moghal strong hold, the British established their hegemony in India. British Period The British came to India as traders, and before long established an inroad into the cultural nexuses of the land. The primary focus of the British Raj was much to do with trade and little to do with governance and development. The local governments were hardly their first priority. In fact till the advent of the British rule in India, the rural republic had flourished and thrived. With the emergence of the British Raj in India, panchayats ceased to play a role that it once played. But, local self government as a representative institution was the creation of the British. That during the British raj or rather the time of India’s pre-independence, when the Muslims habitants have demanded fair representation in power-sharing with the British government along with the Hindus, the British government provided for a separate electorate system for the Muslims. As a result, of the total 250 seats of the Bengal Legislative Assembly, 117 seats were kept reserved for the Muslims. Accordingly, the general elections of 1937 were held on the basis of the extended separate electorates, where only the Muslims voted for the 117 seats, in Bengal. Again, in the Round Table Conferences in 1930-32, the concept of separate electorates for the dalits (also called Dalits) was raised by Dr. B. R. Ambedkar, as a way to ensure 6 History of Buddhism in India, Translation: A. Shiefner. 7 ibid
    • 20 sufficient representation for the minority Dalits, in government. This provision was strongly opposed by Mahatma Gandhi on the grounds that the move would disintegrate Hindu society. If the Dalits were given a separate electorate, then certain constituencies would have been reserved for them, and only the Dalits would have been able to vote for the candidates contesting those seats, thus alienating the rest of the Hindus. Finally, a compromise was reached where there were certain constituencies reserved for the Dalits, where the Dalits could elect 4 candidates per constituency who would then be candidates for election by the joint electorate8 8 Reserved political positions in India Wikipedia, the free encyclopedia
    • 21 Chapter-II EMERGENCE OF CONSTITUENT ASSEMBLY India has a long history of clinging to antique and colonial laws and abstaining from enacting suitable and timely legislations. These absurdities are well beyond any reasonable governance norms ruling the masses of India. At the time of Independence most of our top leaders like M.K. Gandhi, Jawaharlal Nehru and many others were English educated (educated in England) they had great fascination for the administrative system of England. So they adopted Parliamentary system same as that of England. The overall Indian populations, who have been subjected to the colonial rules for which ran through almost for then 150 years, majority of the Indian population were victims of colonization and they had no knowledge to form of government except the module brought by the British government and being subjected to the system of governance the module of running the administration system almost was in the hand of Britisher’s and the Indian majority population were poor peasants except small rulers controlling the local affairs in their own regions or of a particular community, the early 19th century the government affairs were given to the local representatives under controlled or strict supervision of the Britisher’s , who were controlling the affairs of the Government in India the Britisher’s knew of the inherent weaknesses in the system being run to control the governance and were trying to have a system that fit in the modern world. The architects of India’s constitution the constituent assembly, though inspired and derived positive constitutional inputs / principles from many of external sources or countries, majority of the constitutional sections / principles were derived or inserted were most
    • 22 heavily influenced by the British model of parliamentary democracy though British never had any written constitution of its own. The constituent assemble members in addition to principles derived from British model and had also adopted a number of principles of the Constitution of the United States of America, including the separation of powers among the major branches of government, the establishment of a supreme court, and the adoption, albeit in modified form, of a federal structure (a constitutional division of power between the Union (central) government and state governments) In less than three years of attaining freedom, India had framed a Constitution and declared itself a Republic on January 26, 1950. The Constitution was given shape by some of the finest minds of the country who ensured the trinity of justice, liberty and equality, for the citizens of India. The Constitution was made flexible enough to adjust to the demands of social and economic changes within a democratic framework. Adopting the path of democracy, the country held its first general elections in 1952. Elections to the Lower House of Parliament, Lok Sabha, have been held regularly every five years The governance politics of India resolves within the framework of a federal constitutional republic structure, wherein the President of India is head of state and the Prime Minister of India is responsible for running the government as head of government. The executive power is exercised by the President and is independent of the legislature. The legislative power is vested with both the government and the two chambers of the Parliament of India, the Lok Sabha and the Rajya Sabha. The federal and state elections generally take place within a multi-party system, although this is not enshrined in law. The judiciary is independent of the executive and the legislature, the highest national court being the Supreme Court of India. India is a nation that is characterized as "sovereign socialist secular democratic republic" despite the fact that the caste and sub caste system in India still prevails, like the United States, India has adopted a its federal governance structure in the government since the it
    • 23 has adopted, its constitution. However, the central government in India has greater power in relation in comparison to its states and the working governance of the central government is fully adopted the pattern of the British parliamentary system. The central government has the power to dismiss state governments under specific constitutional provisions or if no majority party or coalition is able to form a state government or in the case of the government falls after losing confidence in the floor of the house. The central government has also empowered to impose direct federal rule known as president's rule (or Central Rule) under the guidance of the Governor and further enshrined locally, the Panchayati Raj system, with several administrative functions. The principles adopted from Canada were unitary government with strong center and also distribution of powers between central government and provinces along with placing residuary powers with central government. The constituent assembly had adopted directive principle of state policy from Ireland. The constituent assembly had adopted the principle of suspension of fundamental rights during emergency from Germany. The constituent assembly had adopted the idea of having of Concurrent list of shared powers was used as well and some of the terminology was utilized for the preamble from Australia. The Assembly met in sessions open to the public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution, the 308 members of the Assembly signed two copies of the document (one each in Hindi and English) on 24 January 1950.
    • 24 CHAPTER –III CONSTITUTION OF INDIA Introduction to the Indian Constitution The Constitution of India is the world's lengthiest written constitution with 395 articles and 8 schedules. It contains the good points taken from the constitutions of many countries in the world. It was passed on 26 Nov 1949 by the 'The Constituent Assembly' and is fully applicable since 26 Jan 1950. The Constituent Assembly had been elected for undivided India and held its first sitting on 9th Dec.1946, re-assembled on the 14th August 1947, as The Sovereign Constituent Assembly for the dominion of India. In regard to its composition the members were elected by indirect election by the members of The Provisional Legislative Assemblies (lower house only). At the time of signing 284 out of 299 members of the Assembly were present. The constitution of India draws extensively from Western legal traditions in its outline of the principles of liberal democracy. It follows a British parliamentary pattern with a lower and upper house. It embodies some Fundamental Rights which are similar to the Bill of Rights declared by the United States constitution. It also borrows the concept of a Supreme Court from the US. India is a federal system in which residual powers of legislation remain with the central government, similar to that in Canada. The constitution provides detailed lists dividing up powers between central and state governments as in Australia, and it elaborates a set of Directive Principles of State Policy as does the Irish constitution. The constitution has provision for Schedules to be added to the constitution by amendment. The ten schedules in force cover the designations of the states and union territories; the emoluments for high-level officials; forms of oaths; allocation of the number
    • 25 of seats in the Rajya Sabha. A review of the constitution needs at least two-thirds of the Lok Sabha and Rajya Sabha to pass it. The Indian constitution is one of the most frequently amended constitutions in the world. Infect the first amendment to it was passed after only a year of the adoption of the constitution and instituted numerous minor changes. Many more amendments followed a rate of almost two amendments per year since 1950. Most of the constitution can be amended after a quorum of more than half of the members of each house in Parliament passes an amendment with a two-thirds majority vote. Articles pertaining to the distribution of legislative authority between the central and state governments must also be approved by 50 percent of the state legislatures. The constituent Assembly has inserted certain provision in broader manner in relation to election and its process under PART XV of ELECTIONS, the provision of creation of Election commission was felt a need of hour wherein the executive be kept out of election process directly and the election commission a body be created to conduct, supervise all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President in orderly manner. Federal Structure The constitution of India has made regulation principle and has kept in the lines of three subject lists, the Union list, the State list, and the Concurrent list, the constituent Assembly has further defined the legislative powers of each level of government organ. Being having federal structure of the constitution, the Union government reserves the right to make laws in areas specified on the Union list, the state governments allowed to make laws in areas specified on the State list, and laws in areas listed on the concurrent list may be made at either a state or federal level. The main issues such as foreign affairs, defense, finance, currency and inter state disputes are examples of topics falling under the Union list. The areas of public order,
    • 26 dealings with local governments and certain types of taxes are examples of topics which are on the state lists, where Parliament is forbidden to intervene barring exceptional circumstances. Issues such as education, transportation, forests and criminal law are on the concurrent list, where both state legislatures and Parliament are able to make laws. All residuary powers are vested in the Union of the federal structure. Parliamentary Democracy The President of India is elected by the legislatures of the Parliament and state legislative assemblies and legislative councils on the pattern of proportionate voting and as such not directly by the people. The President is the head of state and all the business of the executive and laws of the parliament are carried out in his / her name. However, these powers are simply nominal and do not have to veto, any act of the executive and the President must act only in accordance to the advice rendered by the Prime Minister and his Council of Ministers. The Prime Minister and the Council of Ministers exercise powers or remain in the offices as long as they enjoy a majority support of the members of the Lok Sabha, the lower house of the Parliament, which consists of members who are directly elected by the people. The council ministers are answerable to both the houses of the Parliament LOk Sabha and Rajya Sabha. The ministers must themselves be elected as members of either the Lok Sabha or of the Rajya Sabha, the upper house of the Parliament. Thus, the Parliament exercises over all control over the Executive and its governance. The similar structure is also prevalent in States, where the directly elected Legislative Assembly legislature and nominated legislative council members hold offices as well as enjoys control over the Chief Minister and the State Council of Ministers. Part XV-Elections Article 324.Superintendence, direction and control of elections to be vested in an Election Commission .-
    • 27 (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission). (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. (3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission. (4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1). (5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine; Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
    • 28 Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. (6) The President, or the Governor of a State, shall, when so requested by th Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1). Article 325.No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them. Article 326.Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; but is to say, every person who is a citizen of India and who is not less than twenty-one years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election. Article 327.Power of Parliament to make provision with respect to elections to Legislatures
    • 29 Subject to the provisions of this constitution, Parliament may from time to time by law made provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. Article 328.Power of Legislature of a State to make provision with respect to elections to such Legislature Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time bylaw make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses. Article 329.Bar to interference by courts in electoral matters.- Notwithstanding anything in this Constitution - (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court; (b) No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. Governance system of government The basic form of the Union Government envisaged in the Constitution is as follows,
    • 30 “A democratic executive must satisfy three conditions: 1. It must be a stable executive, and 2. It must be a responsible executive. To date, both conditions have not been attained to an equal degree concurrently.9 Amendment of the constitution The amendments if any in the Constitution are solely can be made by the Parliament, the detailed procedure for which it is laid out in Article 368 of the constitution. To bring amendment in the constitution, An amendment bill must be passed by both the Houses of the Parliament by a two-thirds majority and voting. Additionally, certain amendments which pertain to the federal nature of the constitution must be ratified by a majority of state legislatures of the respective states. That there have been 115 amendment bills presented in the Parliament so far, out of which 97 have been passed to become Amendment Acts. The most of the amended issues carried out address issues dealt with by statute in other democracies. However, the Constitution of India is so specific in spelling out government powers that many of these issues have to be addressed through constitutional amendment as a result, the some time amendment take place roughly twice a year. That the Hon’ble Supreme Court has ruled in Kesavananda Bharati v. State of Kerala10 case that every constitutional amendment is not permissible or can be diluted, the amendment must follows, respect the "basic structure" of the constitution, which is immutable. To neutralize the affect of doctrine of the basic structure, the Govt. enacted the constitution (42nd Amendment) Act.1979 and added clauses (4) and (5) to art. 368 which provided for exclusion of judicial review of amendments of the constitution made before or 9 Ahir, D.C. (1990). The legacy of Dr Ambedkar (10th ed.). South Asia Books 10 AIR 1973 SC 1461
    • 31 after the 42nd Amendment. It also declared that there shall be no limitation on the amending power of the parliament under article 368. The court held that clause (4) and (5) of art. 368 are unconstitutional as it affects the basic structure of the constitution i.e. judicial review. However, there was difference of opinion on validity of amended article 31- C which gave primacy to all Directive principles over the fundamental rights. Although the minority declared void the amended article 31-C, justice Bhagwati (minority judgment) upheld it by giving a restrictive interpretation in terms of doctrine of basic structure. In Minerva mills vs. union of India 11 The SC by 4 to 1 majority struck down clauses (4) and (5) of article 368 inserted by the 42nd amendment as these clauses destroyed the essential features of the basic structure of the constitution and held that the following are basic structure of the constitution: limited power of parliament to amend the constitution; harmony and balance between fundamental rights and directive principles; fundamental rights in certain cases; power of judicial review in certain cases; Independence of judiciary is part of the basic structure. In Woman Rao vs. Union of India 12 The supreme court held that all amendment to the constitution which were made before April 24th, 1973(i.e.. the date on which the judgment of Keshvananda Bharti was delivered )including those by which the ninth schedule to the constitution was amended from time to time were valid and constitutional. In S.P. Sampat kumar vs. union of India13 the Supreme Court upheld the validity of art. 323-A and the Act as the necessary changes suggested by the court were incorporated in the Administrative Tribunal Act. In a landmark judgment in L. Chandra kumar vs. union of India 14 a seven-member constitutional bench of the supreme court has unanimously while reconsidering the Sampath Kumar's Case, The apex court has struck down clause 2(d) of articles 323A and 11 AIR 1980 SC 1789 12 AIR 1881 SC 271 13 AIR 1987 SC 271 14 AIR 1997 SC 1125
    • 32 clause 3(d) pf art. 323B which provided for the exclusion of the jurisdiction of the high courts under articles 226 and 227 and the Supreme Court under article 32 of the constitution as unconstitutional and invalid as they damage the power of judicial review which is the basic structure of the constitution.
    • 33 CHAPTER –IV INDIA ELECTORAL LAWS & SYSTEM IN INDIA The elections are conducted according to the constitutional provisions, supplemented by laws made by Parliament. The major laws are Representation of the People Act, 1950, which mainly deals with the preparation and revision of electoral rolls, and the Representation of the People Act, 1951, which deals, in detail, with all aspects of conduct of elections and post election disputes. The Supreme Court of India has held that where the enacted laws are silent or make insufficient provision to deal with a given situation in the conduct of elections, the Election Commission has the residuary powers under the Constitution to act in an appropriate manner. Introduction to Election Commission That after passage of almost 65 years to being as Independent county, the Indian democratic system has become little assimilated with many positives and negatives but still follows an asymmetric federal government, with elected officials at the center, state and local levels and at the national level, the head of government is the Prime Minister, who is elected by the members majority in the Lok Sabha, as called the lower house of the parliament of India.15 All members of Lok Sabha except two, who can be nominated by president of India, are directly elected through general elections which take place every five years, in normal circumstances, by an adult franchise. 16 The Members of Rajya Sabha, which is called upper house of Indian parliament, are elected by elected members of the legislative assemblies of states and Electoral College for Union Territories of India.17 15 Basu, Durga D. (2009). "11". Introduction to the Constitution of India. Nagpur, India: LexisNexis Butterworths Wadhwa Nagpur. p. 199. 16 parliamentofindia.nic.in. Retrieved 19 August 2011 17 Rajya Sabha Secretariat. "Council of States (Rajya Sabha)". The national portal of India. Parliament of India. Retrieved 26 May 2012.
    • 34 In 2009, the elections involved an electorate of 714 million18 (larger than both EU and US elections combined19 . Declared expenditure has trebled since 1989 to almost $300 million, using more than one million electronic voting machines.20 That due to large size of the huge electorate mandates that elections be conducted in a number of phases (there were four phases in 2004 General Elections and five phases in 2009 General Elections). As it involves a number of step-by-step processes to conduct elections from the date of filing nominations to final day of the declaration of the result, the announcement or issuance of election dates by the Election Commission of India are usually kept in mind of impending socio, geographical situations prevalent in the particular states, by phase of time the election commission of India, which has brought certain rules of the 'model code of conduct' for the political parties to do electioneering with in the ambit of these rules. The total process of conducting elections entails finally up to announcement of results and submission of the list of successful candidates to the executive head of the state or the centre. The submission of results marks the end of the election process, thereby paving way for the formation of the new government. The office of the Commission has an independent budget, which is finalised directly in consultation between the Commission and the finance ministry of the Union Government. The generally ministry of finance accepts the recommendations of the Commission for its budgetary allocations. The major part of the expenditure is incurred actually on conducting of elections is, however, this expenditure is although reflected in the budgets of the concerned constituent units of the Union - States and Union Territories. If elections are being held only for the Parliament, the expenditure is borne entirely by the Union Government, while for the elections being held only for the State Legislature, the expenditure is borne entirely by the concerned State. In case of simultaneous elections to the Parliament and State Legislature, the expenditure is shared equally between the Union and the State Governments. For Capital equipment, expenditure related to preparation for 18 Shashi Tharoor (2009-04-16). "The recurring miracle of Indian democracy". New Straits Times. 19 EU (25 states) electorate = 350mn <http://news.bbc.co.uk/2/hi/europe/3715399.stm>, US electorate=212 mm <http://elections.gmu.edu/preliminary_vote_2008.html 20 Indian General Election Expenditure, from ECI website accessed 14 May 2006.
    • 35 electoral rolls and the scheme for Electors' Identity Cards too, the expenditure is shared equally. The Chief Election Commissioner heads the Election Commission of India. The President of India appoints the Chief Election Commissioner and two Election Commissioners. They have tenure of six years, or up to the age of 65 years, whichever is earlier. The Chief Election Commissioner can be removed from office only through impeachment moved in the Parliament. Indian electoral system First-past-the-post (abbreviated FPTP or FPP) voting refers to an election won by the candidate(s) with the most votes. The winning candidate does not necessarily receive an absolute majority of all votes cast. Indian democracy has the First Past The Post (FPTP) as its electoral system to provide representation to voters in State Assemblies and in the Parliament of India. First-past-the-post (abbreviated FPTP or FPP) voting refers to an election won by the candidate(s) with the most votes. The winning candidate does not necessarily receive an absolute majority of all votes cast. Indian democracy has the First Past. The Post (FPTP) as its electoral system to provide representation to voters in State Assemblies and in the Parliament of India. FPTP system has played an important historical role in consolidating democracy in the post independence India. With time however, many distortions have crept into the system which have undermined the democratic aspirations of the people. For example, the FPTP may allow political parties to come to power, both in the States and at the Centre, with minority of votes. There are many instances where parties with less than 30% of votes have won a large percentage of seats and had claimed the right to form governments. The vast majority of voters, in this system, are left unrepresented in governance. The present electoral system in India encourages corruption and use of muscle power and communal pull to gain the slight margin of winning votes. Parties that have the power to
    • 36 manipulate voters using their economic power, are more often than not successful in gaining a dominant position in the governance structure. The Parliament of India comprises the head of state — the president of India — and the two Houses which are the legislature. The President of India is elected for a five-year term by an electoral college consisting of members of federal and state legislatures. The House of the People (Lok Sabha) has 548 members, 543 members elected for a five-year term in single-seat constituencies and two members appointed to represent the Anglo-Indian community (as envisaged by the Constitution of India, currently the members of Lok Sabha are 545, out of which 543 are elected for 5-year term and 2 members represent the Anglo-Indian community). The 550 members are elected under the plurality ('first past the post') electoral system.21 Council of States (Rajya Sabha) has 245 members, 233 members elected for a six-year term, with one-third retiring every two years. The members are indirectly elected, this being achieved by the votes of legislators in the state and union (federal) territories. The elected members are chosen under the system of proportional representation by means of the Single Transferable Vote. The twelve nominated members are usually an eclectic mix of eminent artists (including actors), scientists, jurists, sportspersons, businessmen and journalists and common people.22 History of political parties The dominance of the Indian National Congress was broken for the first time in 1977, with the defeat of the party led by Indira Gandhi, by an unlikely coalition of all the major other parties, which protested against the imposition of a controversial Emergency from 1975– 1977. A similar coalition, led by VP Singh was swept to power in 1989 in the wake of major allegations of corruption by the incumbent Prime Minister, Rajiv Gandhi. It, too, lost its steam in 1990. 21 Lok Sabha Secretariat. "Lok Sabha". Parliament of India. Retrieved 26 May 2012. 22 Rajya Sabha Secretariat. "Council of States (Rajya Sabha)". The national portal of India. Parliament of India. Retrieved 26 May 2012.
    • 37 In 1992, the heretofore one-party-dominant politics in India gave way to a coalition system wherein no single party can expect to achieve a majority in the Parliament to form a government, but rather has to depend on a process of coalition building with other parties to form a block and claim a majority to be invited to form the government. This has been a consequence of strong regional parties which ride on the back of regional aspirations. While parties like the TDP and the AIADMK had traditionally been strong regional contenders, the 1990s saw the emergence of other regional players such as the Lok Dal, Samajwadi Party, Bahujan Samaj Party and the Janata Dal. These parties are traditionally based on regional aspirations, e.g. Telangana Rashtra Samithi or are strongly influenced by caste considerations, e.g. Bahujan Samaj Party which claims to represent the Dalits. Presently, the United Progressive Alliance led by the Congress Party is in power, while the National Democratic Alliance forms the opposition. Manmohan Singh was re-elected the Prime minister of India. Changing of the Political parties The evolution of the party system after Independence presents a study of transformation from one-party dominant system to a complex of multi-party configuration. The resulting political system presently reflects trends of fragmentation, factionalism, casteism, communal politics and regionalism. Endemic within this system is a tendency to form opportunistic alliances for seeking a share in the pie of power, irrespective of any strong ideological or programmatic commitments. The last decade of the 20th century saw a sharp rise in political mobilization on the basis of social cleavages based on divisive identities, in particular of religion and caste. Casteism, communalism and personality domination have been the main planks around which the fragmentation of political parties has taken place. Political parties have invariably exploited ensuing instability for gaining electoral support and mobilisation of the
    • 38 voters on issues which are not even remotely of national concern. Structural and functional problems which ail most of the political parties are:- 1. Absence of inner party democracy. 2. Abysmal representation of women in the party leadership. 3. Lack of ideology and values in party politics. 4. Lack of training of party members to inculcate core party ideology and party’s strategy for social change. 5. Lack of funds available for political functioning. 6. Weak and nepotistic party leadership. 7. Increasing role of regionalism, casteism and communalism within the parties. 8. Accommodation of criminals within the Party and acceptance of violence as a legitimate functional mode. 9. Fractionalization within the party and opportunistic coalitions with other political parties. 10. Insensitivity to issues of governance Electoral Process Electoral Process in India takes at least a month for state assembly elections with the duration increasing further for the General Elections. Publishing of electoral rolls is a key process that happens before the elections and is vital for the conduct of elections in India. The Indian Constitution sets the eligibility of an individual for voting. Any person who is a citizen of India and above 18 years of age is eligible to enroll as a voter in the electoral rolls. It is the responsibility of the eligible voters to enroll their names. Normally, voter registrations are allowed latest one week prior to the last date for nomination of candidates. Pre elections At first before the elections the dates of nomination, polling and counting takes place. The model code of conduct comes in force from the day the dates are announced. No party is allowed to use the government resources for campaigning. The code of conduct stipulates that campaigning be stopped 48 hours prior to polling day.
    • 39 The Voting Process The Voting Day is a declared holiday. The enthusiasm is noted at every sphere of the Indian society who queues up from early in the morning in order to cast their polls. The polling is typically conducted by government officials and is held in government schools and colleges, as well as certain other government owned venues. An indelible ink is applied on the finger of the voter once the process is complete; this is done in order to avoid the risk of bogus voting. Presently, the Electronic Voting Machines or EVMs have replaced the traditional ballot boxes in most areas. This was done to counter the great degree of booth capturing and rigging that became a common feature of the elections in certain parts of the country. Voting day Government schools and colleges are chosen as polling stations. The Collector of each district is in charge of polling. Government employees are employed to many of the polling stations. Electronic Voting Machines (EVMs) are being increasingly used instead of ballot boxes to prevent election fraud via booth capturing, which is heavily prevalent in certain parts of India. An indelible ink is applied usually on the left index finger of the voter as an indicator that the voter has cast his vote. This practice has been followed since the 1962 general elections to prevent bogus voting. "None of the above" voting option "None of the above" is a proposed voting option in India that would allow voters who support none of the candidates available to them to register an official vote of "none of the above", which is not currently allowed under India election regulation.[8] The Election Commission of India told the Supreme Court in 2009 that it wished to offer the voter a None of the above button on voting machines; the government, however, has generally opposed this option.23 23 Bagriya, Ashok (29 January 2009). "EC suggests 'none of the above' option on the ballot". IBN Live. Retrieved 23 April 2011.
    • 40 Post elections After the Election Day, the EVMs are stored in a strong room under heavy security. After the different phases of the elections are complete, a day is set to count the votes. The votes are tallied typically, the verdict is known within hours. The candidate who has mustered the most votes is declared the winner of the constituency. The party or coalition that has won the most seats is invited by the President to form the new government. The coalition or party must prove its majority in the floor of the house (Lok Sabha) in a vote of confidence by obtaining a simple majority (minimum 50%) of the votes in the house. Currently, India does not have an absentee ballot system. Section 19 of The Representation of the People Act (RPA)-1950 allows a person to register to vote if he or she is above 18 years of age and is an ‘ordinary resident’ of the residing constituency i.e. living at the current address for 6 months or longer. Section 20 of the above Act disqualifies a non-resident Indian (NRI) from getting his/her name registered in the electoral rolls. Consequently, it also prevents a NRI from casting his/her vote in elections to the Parliament and to the State Legislatures. In August 2010, Representation of the People (Amendment) Bill-2010 which allows voting rights to NRI's was passed in both Lok Sabha with subsequent gazette notifications on November 24, 2010.24 With this NRI's will now be able to vote in Indian elections but have to be physically present at the time of voting. Several civic society organizations have urged the government to amend the RPA act to allow NRI's and people on the move to cast their vote through absentee ballot system.[12][13] People for Lok Satta has been actively pushing combination of internet and postal ballot as a viable means for NRI voting.25 24 gazette notifications". Thehindu.com. 2010-11-24. Retrieved 2012-08-06. 25 "People for Lok Satta- NRI voting campaign". Nrivotingrights.info. 2011-01-09. Retrieved 2012-08-06.
    • 41 The major laws passed by the Parliament are the Representation of the People Act, 1950 and 1951 and Presidential and Vice-Presidential Elections Act, 1952, The preparation and revision of electoral rolls for Parliamentary and Assembly elections are governed by the provisions of the Representation of the People Act, 1950 and 1951 and the Registration of Electors Rules, 1960. The conduct of elections is governed by the Representation of the People Act, 1951 and the Conduct of the Elections Rules, 1961. There are at least 55 articles in the Constitution of India that deal with elections to various offices including special provisions. Electoral Laws The Representation of People Act, 1951 The Indian legislature passed an act the Representation of People Act, 1951 to conduct of elections of the houses of Parliament and to the house or houses of the Legislature of each State, the qualifications and disqualifications for membership of those houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. The said act came in to force in the year 1951 and has been since a backbone to a to conduct election process in the fair manner. The Conduct of Elections Rules, 1961 The conduct of election rules was brought I the year 1961 to streamline the procedure to conduct election in proper manner. Though recently citizens attention has gone to section 49 O of the conduct of election Rules 1961, where in the person my casts his ballot, if he or her does not wants to casts his vote after filing form 17 . Electoral System in other Countries Proportionate Electoral System:
    • 42 Electoral System is being widely practiced in many democracies (such as in Italy and Scotland) of the world. More and more countries are shifting to Proportional Representation. In PR electoral system any party can gain seats only in proportion to the percentage of votes that it gains. There will not be any difference between the percentage of votes and the percentage of seats. This allows parties with a majority voter support to come to power pure popular vote: The presidency of a nation goes to the candidate with the largest plurality. This is the Presidential system being followed in US and other countries. The disadvantage is that it does little to solve the problems of a two party system. In the Indian context this system undermines the rights guaranteed to the states that safeguard the unity of a diverse India. Popular vote with run-off election This is like the pure popular vote option, except that instead of holding primaries followed by a general election, a free-for-all election is followed by a runoff between the two top vote-getters. This is practised, for example, in Egypt and France. Preferential popular vote In this system, the voter gets a chance to mark his or her choices against each candidate and if the voter’s first choice candidate loses, the vote is transferred to the second choice and if he also loses, to the third choice and so on.. The candidate who got the fewest first- choice votes is eliminated (his or her votes being transferred to the voters’ second choice candidates). The least popular remaining candidate is thus eliminated and so on until someone has a majority. This leads to a very complex counting process. This system is commonplace in Australia, New Zealand, and Ireland, with several minor variations in their respective countries. Preferential electoral vote
    • 43 This is an attempt to introduce the advantages of the preferential method into the Electoral College. The voters in each state cast preferential ballots. A state awards its electoral votes according to the first choice vote count. If nobody got a majority of the Electoral College, the votes of losing candidates would be transferred to those voters’ secondary choices, and the electoral vote would be recomputed. Electoral votes would have to be awarded proportionally by each state, not by the winner-take-all. If winner-take-all is used, the preferential part of the system would quite likely to be inoperative. The main disadvantage is that, this is similar to an inaccurate version of weighted preferential popular votes. Popular approval vote Approval voting consists of giving a “yes” vote for every candidate that you put up, and a “no” vote for all those you can not. Simply put, you can vote for as few or as many of the candidates as you wish. It’s like preferential voting system except that it is without a hierarchy of individual ranking. The winner is the candidate with the most total “yes” votes. It has the same advantage as the preferential system, and it’s simpler, imposing no extra difficulties with counting or requiring new voting machinery.
    • 44 CHAPTER- V ELECTION INCONSISTENCIES IN INDIA ELECTION INCONSISTENCIES India is often referred as a vibrant democracy and India stands as a role model for many of emerging democracies around the world26 . As free and fair elections are the main assets of a well functioning democracy, despite of having regular elections But just, or rather far too often, it does not tantamount to that we have an effective democracy. Still we are really proud of our democracy, but there are a number of areas which need to be strengthened for us and we are yet to realise the true potential of well functioned democracy. That we are still long way to go in respect of streamlining our election system, from the selection of candidates, to the manner in which funds are raised and spent in election campaigns and are keeping in view of present state of affairs in mind , bringing significant changes are need of hour.. The election usually can be defined as a system by which voters or electors, select their representatives by casting of votes. It is a cardinal principle of necessity for every democracy to have or making Right to Vote as a Constitutional right for its citizens and conducting election in fair, proper manner. The Constitution of India provides for an Election Commission of India, as it looks after and responsible for superintendence direction and control for conducting of all elections to both the Houses of Parliament and State Legislatures and for the offices of President and Vice-President. India has experienced an epoch of elections for innumerable times and has undergone great transition crossing several upheavals, engrossed with numerous discrepancies crept with in its systems. For last many years the way our legislature and State assemblies function, does not make us proud. One of the major causes for the unruly and unproductive functioning of the legislatures is the quality of people who find their way into 26 Ministry of Law and Justice, Government of India has constituted a Core Committee on Electoral Reforms of 2010
    • 45 the legislatures. The birth of scourges like communalism, corruption, under-development, poverty, etc. can be attributed to the unethical practices, our leaders indulge in. One of the basic reasons for these many inconsistencies is the structural defect in the procedure of election. The process followed in our country is first –past- the- post- system. The ideal principle of election is the ‘majority rules principle’, whichever party gets more than 50 % votes emerge out to be victorious in the polling. But the principal followed in our country i.e., the First-past –the-post-system is based on irrational ground. Since, according to this principle a person can win elections even if the margin is less than 100 votes and the party which gets just 30% – 35% votes will count to emerge victorious in the elections. Hence he or she cannot be the choice of majority. The National Election commission therefore, proposed to replace this system with two staged election. If no candidate gets majority more than 50% then second round will take place consisting of top two candidates and whoever gets more than 51% shall be deemed elected. Off late there has been a concern growing over the years in India about continuance of contradictions amongst several aspects of our electoral system. Though from time to time few changes have been effectively made by the Election Commission but election commission has failed to bring notable changes in several of areas, which are yet to brought in to alley fears amongst vast population of India and we all have to rise to respond to some of the concerns repeatedly raised at present. Though for last many years, several committees have also examined major controversies crept in our electoral system respectively and forwarded number of recommendations for bringing necessary to the Government but the delay and compulsion of coalition partners on the part of the ruling party, the Government had failed to resolve many of e critical issues which might require legislative intervention to bring about the required changes. Another major concern and voices are being raised on the issue of the criminalisation of our political system, recommendation on this issue has been forwarded almost unanimously by all committees on politics and electoral reform held on recent or past. Though criminalisation of politics has many forms in its fold and the most alarming among
    • 46 them is that significant number of elected representatives political all political parties with criminal charges pending against them have entered in to the legislative domain. The other aspect financing of elections has become a major issue. It is widely believed that the cost of fighting elections has increased far above spending limits as prescribed by the election commission. This has resulted in to usage of unaccounted money thus increased the inputs of lack of transparency, widespread corruption, and the pervasiveness of so- called ‘black money’ The journey of corruption in election process did not befall all of a sudden but gradually in a time span of several decades. Initially the requirement of money was felt for campaigning and since the majority voters were illiterate masses so, electioneering was required to be on a large scale. The candidates fetched support, aid and finances from criminals and muscle men. Generation and accumulation of money requires a robust support from the bureaucracy and these tend to encompass the bureaucracy too in the political web. After a while the criminals involved in non- bail able and cognizable offences themselves started participating in politics since they could easily win the elections by threats and coercion. The battle of ballot became battle of bullets. There persists a big swarm of burning issues hampering the democratic piousness and productive representation in our Indian society. The rampant issues bulging out as a handicap to election process are dominance of money power and Muscle power, Criminalisation of politics, financing of election exceeding the legal limit, booth capturing, Intimidation of voters, buying Voters, tampered electoral rolls, large-scale rigging of elections, abuse of religion and caste in the enlistment of voters, etc. The elections today more or less have become an ambitious investment venture, where everyone wants to try their hand at. Therefore each and every step of election process is packed with loads of inaptness as discussed below.
    • 47 Criminalisation of Politics Criminalisation of politics has many forms, but perhaps the most alarming among them is the significant number of elected representatives with criminal charges pending against them. In 2005 elections of Bihar, out of 385 candidates 213 were found to be alleged of non- bail able and cognizable offences. Obscuring of the facts and criminal records acts an as an impediment to the fair election process. In order to combat the said anomaly, the Vohra Committee Report27 on Criminalisation of Politics was constituted to spot the degree of the politician-criminal nexus and suggest conduct to combat the menace. It stated “The nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country and some political leaders become the leaders of these gangs/armed senas and over the years get themselves elected to local bodies, State assemblies, and national parliament.” The election commission projected that any attempt to obscure the antecedent illegal evidence under Rule 4A of the Conduct of Election Rules, 1961 was to be punishable with imprisonment for two years or more, in a pending case in which charges have been framed by the Court. The cases where the accused was convicted for an offence other than any of the offences mentioned in Section 8 of Representation of the People Act, 1951, and sentenced to imprisonment for one year or more, led to imposition of penalty under section 125A of the Representative of People Act, 1951 to provide for more severe punishment for two years imprisonment or imposition of fine. Financing of election exceeding the legal limit The issue of financing of election exceeding the legal limit has adverse repercussion creating compulsion for corruption in public arena. The instance of “Hawala Scam” which unleashed several high profile politicians involved in the perpetrating booth capturing, rigging of elections and aiding dreaded criminals and muscle men. In order to tackle this 27 Vohra Committee Report (1993)
    • 48 issue the national election commission proposed the legal limit or ceiling of the election expenditure to be fixed at a reasonable rate taking into cognizance the present economic scenario concomitant with disclosure of assets and state funding too. Other than that, the EC appoints expenditure observers to keep an eye on the individual financial records of election outlays made by contestants, during election campaign. In pursuance of an order of the Supreme Court judgment, in the Peoples Union for Civil Liberties & another vs. Union of India 28 case, the EC apprehended for electoral office to submit mandatorily, an affidavit disclosing his assets and liabilities. The 2004 report of the Election Commission acknowledged that political parties were required to make public their financial statement. Therefore, refinement of elections is the imperative itinerary by which corruption and maladministration can be cramped. It would not be wrong to say that the whole superstructure stands on the infrastructure of corruption. Booth Capturing The issue haunting the electioneering process is Booth capturing, by which the parties patrons try to manipulate and the number votes in their votes. The tampering of electoral rolls in the elections is done on large scale. To curb such activities the election commission has laid down guidelines to ensure if any booth capturing is going on the returning officer is to notify it to the election commissioner and apt decisions would be taken to declare the polling in that area to null and void. Buying Votes The practice of enticing the voters by distribution of stuffs in cash and kind to the masses are done since they form the major chunk of the voter bank. To the extent they are also served with liquor and drugs to gather votes, thanks to the slothful and sluggish people. And if these tricks don’t fetch votes then intimidation and coercion serves as the last 28 [(1997) 1 SCC 301]
    • 49 resort. By manipulating, tampering of electoral rolls or by use of force, intimidation and coercion the process of rigging of election has been quite successful down the line of several decades. The National Election commission directed the returning officer, civil society and any person to intimate about booth capturing or any kind of rigging to the commission to take strong action against the perpetrator of anarchy under section 58 A of Representation of people Act, 1951. Abuse of caste and religion The question of abuse of caste and religion is of greater magnitude. The political parties tend to allow only those candidates to fight elections who can muster the minority groups and castes to their favour. Communal loyalties are used at the time of election campaigning to attract the minority voters. And it is very well observed that the electorates too cast their vote taking into consideration the case and religious prejudices. The National Election Commission also commended about the paradigm of ‘Neutral Voting.’ This concept states that if the voter does not find any candidate suitable, he may get the ‘Right to Reject’ also with the management of every EVM’s (electronic voting machine) having option in the end as ‘None of the above.’ The basic notion behind this paradigm is to bring transparency in the election process but it has not been implemented yet due to various issues involved. That the numerous issues in relation to conducting of elections that need to be addressed and keeping in view of the massive size of the electorate makes holding of elections without substantial changes as a daunting task, the size of the electorate should not be taken as a justification for not implementing the desired changes but early solutions to the presence of issues such as booth capturing, intimidation of voters, tampered electoral rolls, large-scale rigging of elections and other polling irregularities; the proliferation of non-serious candidates; and the abuse of religion and caste in the mobilization of voters is required at the earliest.
    • 50 CHAPTER- VI THE LEGISLATIVE ACCOUNTABILITY IN INDIA Many modern democracies rest on a combination of two ideas: that those who rule should do so in the public interest or in response to the public will; and that they will be more likely to do so when they are, in some way, representative of, and/or accountable to those they rule.29 As Professor D.D. Basu, an eminent Indian constitutional expert, remarked: “Elected representatives are not placed above the law by way of parliamentary privilege; they are simply granted certain advantages and basic exemptions from legal process in order that the House may function independently, efficiently and fearlessly. “This is in the interest of the nation as a whole... it is difficult to digest that in case of abuse or misuse of such privilege by any Member, no action can be taken by the legislature, the parent body.” If we take above context in to the context of governance, then accountability means that members and agents of government, i.e., politicians, employees and contractors are ultimately answerable to the citizens, who provide the funds for their functioning, through taxes, fees and loans and further persistently public expenditure incurred on poor quality as well as inefficient delivery of public services must be traceable to weak accountability mechanisms operating for individuals (politicians and government employees) and for organizations (ministries and various public sector enterprises). The weak accountability of the public services is central problem of corruption, which contributes to poor quality of public services. The accountability can only be implemented when we have rightly place appropriate 29 Delimiting Democratic Accountability Mark Philp Oxford University POLITICAL STUDIES: 2009 VOL 57, 28–53
    • 51 incentives provision for performance of the individual. In most of occasion of the governance, the incentives and accountability are quite indirect, operating through organizational hierarchies. The only accountable factor for the politicians is that they some how are directly answerable to citizens through contesting elections and the voting is based on aggregate and incomplete assessments by citizens of politicians’ performances in their respective constituencies but routine accountability of politicians works through mechanisms such as the answerability to the party and the executive to the legislature, the oversight of the judiciary keeps general checks and balances of the executive governance. That every year the parliament considers large number of draft bills, whether it is a Civil Nuclear Liability Bill, the Whistleblowers Bill, the Judicial Standards and Accountability Bill or the UIDAI Bill, as these draft laws have major policy implications. However, on many occasions the information about these bills is usually acquired by media and civil society groups post-facto giving very little time for groups to study their contents and respond to these draft bills. In recent times, the lack of transparency and public scrutiny in the drafting of bills has been a subject of intense criticism particularly major bills the government has been trying to push through a “complex legislation with the potential to affect the lives of tens of millions of people” with “stealth, subterfuge and the barest minimum of consultation or understanding its aftermath effects. In many countries, pre-legislative scrutiny is an established process through which citizens are encouraged to give their comments and feedback on proposed legislation. In the UK, new pieces of legislation are often published a whole session before their intended introduction and passage. In view of above, one can categorize two fundamental types of accountability in governance: (1) that of elected officials to citizens and (2) that of other government employees to elected officials. The first can also be termed accountability through “voice”, political accountability or external accountability. The silent voice typically works through the electoral process but one can also view of direct appeals to the judiciary as a form of
    • 52 voice seeking judicial intervention. In India, the broad use of public interest legislation can be seen as citizens’ seeking the judiciary intervention to improve accountability of executive actions / politicians but normally the electoral accountability is weakest amongst all. The second type of accountability is more complex, since there can be vertical and horizontal chains of accountability within government as a whole, and within specific parts of governance. Thus, this type of accountability includes “hierarchy” as a mechanism as well as keeps checks and balances of the governance of the government within. One can also term this as “internal” accountability focussing on internal hierarchies, to keep checks and balances. That wide spread poverty and backwardness continues abate and haunt a large population of India, even after 65 years having fruits of independence from past colonial rule. The governance has failed to lay out proper strategy to alleviate poverty amongst large population, who are still deprived of having minimum wages to earn living for a day, the Planning Commission of government out of reality situation, brazenly mocks at the poor by fixing bracket of poverty line at Rs 32 per day. In terms of planning commission, If one earns a Rs 33 a day, then you are one is not poor and is not below the poverty line. If some one looks at the outrageous spending of the government and the example of brazenness in spending public funds without achieving zero result is then one may look at the spending of the government on the cleaning of the river Yamuna, the ambitious work of cleaning river Yamuna and bringing river life back more than 18 years ago has proved to be damn squib, due to pathetic state affairs of the governance of many states of India many of successive elected governments spent unmindful money on the Clean Yamuna project, ultimately, the Supreme Court took over monitoring of the so called steps taken by the successive governments to make the river water potable. Even the apex court was appalled on hearing that three governments – Delhi, Uttar Pradesh and Haryana had spent more than Rs 5,000 crore in the last two decades, despite of spending enormous public exchequer, the Central Pollution Control Board (CPCB) gave its verdict: Yamuna is a drain with not a single drop of fresh water as long as it flows in its 22 km stretch in Delhi.
    • 53 In other case of this 21st century, the MPs fell back on an old method – took money for raising questions on the floor of the House in question hour. The episode of the disqualification of a MP in the 1950s was no deterrent or was lesson for them. On enquiry as many as 11 MPs of affiliations with different parties faced disqualification for their brazen act “cash-for-query” throwing wind to their integrity, professionalism, parliamentary decorum and their responsibilities and as well as their foremost duties as being representatives of people. This act “cash-for-query” by MP’s is irresponsible political act brazenness coupled with greed and complicity. One will see many instances from the bureaucracy and investigating agencies as well as instances of brazenness in other spheres of governance. The acquisition laws allows the government to acquire land for public purposes to build infrastructure, institutions and industries of utility but the act of ‘public purpose” clause has been brazenly invoked by authorities to acquire precious fertile agricultural land only to be re-categorized and transferred to realtors for their personal gain, turning a blind eye to the plight of the poor farmers and ultimately the wrong acquisition of land for commercial purposes also effects on food grain production at long run. The Comptroller and Auditor General Mr. Vinod Rai recently has set the political ablaze by saying that he was appalled by the brazenness of government economic decisions. He did not elaborate which were those decisions, when were they taken and their effect on the people, country and its economy. Before and during the Emergency, government decisions were inscrutable. They were taken as inviolable diktat because of the rasping repercussions it entailed to those brave hearts who opposed them publicly. This mindset allowed the political class to be brazen about decisions. The post-Emergency, public scrutiny of government decisions gained currency but brazenness seldom exited the power corridors.30 30 ACCOUNTABILITY, CONSTITUTION by DHANANJAY MAHAPATRA IN THE TIMES OF INDIA on November 12, 2012
    • 54 These are only a few of the appallingly brazen decisions and or actions of the governments undertook by the successive governments in the last couple of decades. This could be the reason why people in recent times have started leveling allegations brazenly against the political class and raising fingers on them for non-accountability factor, which solely political class enjoys immunity even doing brazen acts during their tenure as public functionary in India. As infamously demonstrated in the annulled Jharkhand election, Rajya Sabha seats are often auctioned to the rich and the connected. As Shashi Shekhar argues in a recent Rediff.com column, it may be time to consider direct elections to the Rajya Sabha so that it truly represents the interests of the states. It may even help address the disenfranchisement experienced by many less developed parts of the country who feel that New Delhi simply ignores their voice. In any case, it is amply clear that in its current shape the Rajya Sabha serves no real purpose and urgent reforms are required for it to properly discharge its constitutional responsibilities. Indubitably, a substantial number of Parliamentarians face serious criminal charges or are embroiled in corruption scandals. Election Commission guidelines force candidates to publicly disclose their financial assets as well as pending criminal cases. These disclosures are important and the process needs to be further strengthened with enhanced penalties for those releasing incomplete records. Nevertheless, it would be hard to believe that voters are simply unaware of the corruption of their local leaders. And yet, members accused of heinous crimes are repeatedly re- elected either because voters lack true choice or simply because these issues matter much less to the average voter than widely believed. As per Lok Sabha secretariat that there was "no provision either in the Constitution or the Rules of Procedure and Conduct of Business in Lok Sabha defining duties and responsibilities of members of Parliament or through which the accountability can be fixed on non-performing MPs".
    • 55 The Lok Sabha secretariat quoted Article 99 of the Constitution, to say that the members have to "make and subscribe before the President or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule". The person appointed by the President is the pro-term speaker, who takes oath from the President in Rashtrapati Bhavan. Pro-term speaker also signs the roll of members in the House. That in most of the other states assemblies also believes that "there is no provision/rule through which the duties, responsibilities and accountabilities of MLAs are fixed". And there was "no provision in the law through which accountability can be fixed" on non- performing MLAs, it said. West Bengal assembly's public information officer said they too didn't have any specific rules "through which the responsibility and accountability can be fixed". The other major issue is that number of sittings of Parliament and state assemblies over the years in a declined stage. In lesser number of sittings has also marred by a sharp increase in adjournments of the House due to disorderly scenes and interruptions by the legislature, during the disorderly interruptions by the members usually nothing is recorded. Further more the most striking indicator of the declining reputation of Parliament is that it now often functions without the requisite quorum as mandated by the Indian Constitution. Most of the sittings, legislative proceedings are frequently disrupted due to interruptions with no option but to adjourn the house. The disorderly conduct and disruption is being done by members in the house is like many members speaking simultaneously, the Opposition not allows the ministers to make statements and, increasingly, rushing to the well of the House and shouting down the speaker some time have physical fights too. There is a paradox of members having no duties, responsibilities and accountabilities as such also illustrate the relationship between parliamentarians and their constituency. On the one hand, it appears that parliamentarians spend most of their time attending to the
    • 56 affairs of their constituents. On the other hand, parliamentarians seem relatively uninterested or ineffective in utilizing grants and policies for the development of their constituencies. This is exemplified by the extraordinary failure of the Local Area Development (MPLADS) scheme. It also seems that most MPs and their constituents seem to look upon MPs primarily as distributors of patronage rather than as policy makers. MPLADS is perhaps less important than its implications for Parliament as an institution of accountability. In an era when India’s institutions have been severely stressed, the role of Parliament is particularly significant. The implications of inaction by Parliament, both in terms of slow response to pressing national problems and a lackluster commitment to critically scrutinizing legislation, are far reaching and long term. A key constitutional responsibility of Parliament is to exercise accountability over the executive by carefully scrutinizing the budget. Parliament’s indifference to this critical responsibility has resulted in India facing a major fiscal crisis that jeopardizes future generations. The Hon’ble Supreme Court of India has clearly said- (A) Public Servant — M.P. / MLA Members of Parliament are public servants in terms of sub-cl. (viii) of cl. (c) of sec. 2 of P.C. Act, 1988. (B) Sanction of prosecution — for MP / MLA Sanction is not necessary for prosecution of Member of Parliament.31 32 The Supreme Court observed that in the Constitution, the word ‘office’ has not been used in the provisions relating to Members of Parliament and Members of State Legislature but in other parliamentary enactments relating to members of parliament, the word ‘office’ has been used. Having regard to the provisions of the Constitution and the Representation of the People Act, 1951 as well as the Salary, Allowances and Pension of 31 P.V. Narishmha Rao vs. State1998 Cri. L.J. SC 2930 32 Ibid.
    • 57 Members of Parliament Act, 1954, it can be said that membership of Parliament is an ‘office’ inasmuch as it is a position carrying certain responsibilities which are of a public character and it has an existence independent of the holder of the office. A member of parliament thus holds an ‘office’. As regards the question whether a Member of Parliament is authorised or required to perform any public duty by virtue of his office, the words “faithfully discharge the duty upon which I am about to enter” in the Form of Oath or Affirmation which is required to be made by a Member of Parliament show that a Member of Parliament is required to discharge certain duties after he is sworn in as a Member of Parliament. Under the Constitution, the Union Executive is responsible to Parliament and Members of Parliament act as watchdogs on the functioning of the Council of Ministers. In addition, a Member of Parliament plays an important role in Parliamentary proceedings, including enactment of legislation, which is a sovereign function. The duties discharged by him are such in which the State, the public and the community at large have an interest and the said duties are, therefore, public duties. It can be said that a Member of Parliament is authorised and required by the Constitution to perform these duties and the said duties are performed by him by virtue of his office. Member of Parliament holds an office and by virtue of such office he is required or authorised to perform duties and such duties are in the nature of public duties. A Member of parliament would, therefore, fall within the ambit of sub-cl (viii) of cl.(c) of sec.2 of the Prevention of Corruption Act, 1988. In a democracy, the voters are ultimate guarantee of the sanctity and the effectiveness of Parliament. Criticise, but do not disengage is the mantra which should drive all informed voters. Parliament is essential to the success of Indian democracy and the citizenry should be in the forefront of demanding reforms which help improve and strengthen its functioning. The majority of the Indian population has been waiting in vain for decades hoping against hope that one day the political class would fulfill the basic promise “we the people” made to ourselves – “Justice, social, economic and political”. The same political class after winning the election start behaving like a King, as to why has the political class or the successive governments failed to ensure justice to people despite they empowering their
    • 58 representatives with every power under the Constitution, the only answer is lack of accountability and enforceability of the accountability factor is sole reason for many of our ills have got deep routed in to our society and social fabric. That despite of on many occasions the people will has created a loud voice as in the case of ‘NIRBHAYA recently wherein the political class probably, initially has failed understand nuances of the public and further failed to strike a balance between power that is conferred on them and the intent to do justice. The situation reminds one of the famous saying of French mathematician, physicist and philosopher Blaise Pascal, who had said, “Justice without power is inefficient; power without justice is tyranny… Justice and power must therefore be brought together so that whatever is just may be powerful, and whatever is powerful may be just.”
    • 59 CHAPTER –VII THE ELECTORAL REFORMS Why electoral reforms Six decades ago, India opted for a Parliamentary democracy at the time of Independence. The term “Parliamentary democracy” implies that the sovereign power to elect the representatives vests with the citizens. But now the time has come to chew over the points that were we correct in opting for this form of democracy. We should not only blame the politicians alone but also “we the people of this country” because we too are some where responsible for the same. The democratic structure and process of governance of the nation is usually chosen by the people of that nation. The governance is aimed to ensure the overall welfare of the People of the nation, as we in India the constitution was framed to with a view to provide all its citizens Justice, social, economic and political and further ensuring welfare by an equitable distribution of national wealth and resources. Hence Political parties are indispensable in parliamentary democracy. There are thousands of political parties having regional or national base in India and of out of those about few hundreds are active and are functioning. The post-independence India has emerged as a sovereign state with a well developed strategic sector and a growth in basic infrastructure. That still after 65 years of the Governance, a small minority of the population has prospered huge in monetary terms, while the quality of lives of the majority population living in poverty and has rather deteriorated. The uneven growth factor is reflected in massive rural areas where unemployment is still at large, the rural or small cities still lack of adequate health care as well as education, due to constant rise of inflation has created a sharp drop in the purchasing power of the people and a sharp growth in rural indebtedness. We need to ponder ourselves with some of the basic questions of gross
    • 60 inequalities, corruptions in public life and criminalisation of politics have led to multi facet distortions, where one is bound to being questioned seriously with reference to the democratic credentials of the electoral system. Therefore there is a widespread and increasing disenchantment of the people with politics and politicians in India. The public awareness and disenchantment is growing with regard to rampant entry of elements having criminal antecedents into the political arena and system of governance. For example, in the current Lok Sabha, nearly a quarter (23.2%) of the MPs has reported criminal cases pending against them. One out of two among them (over 50%) has cases that could attract penalties of imprisonment of five years or more. Though political parties have been showing lesser interests and only doing lip service and tokenism for reforming the electoral system as such no genuine attempts have ever been made by any party for the last many years to curb criminalisation of the politics and to rectify some these distortions in the political system, It has been observed, whenever, it has particularly suited the party in power, there has hardly been any genuine attempt for bringing any significant changes in the electoral system. The people of India has been expecting from all the political parties, that some honest efforts are required from the political parties to initiate the electoral reform as well as bringing substantial changes in the electoral system, as such the people of India has been giving their moods by swinging election results as way of their expressions in the form of election results. That though there have been numerous reports with many practicable solutions are lying with the government for many years, still no government has shown its genuine efforts or courage to cleanse political system. Some of the significant committee reports and their recommendations given by many of including the 170th Report of the Law Commission of India on Review of the working of political parties and Electoral Reforms and the Recommendations of the National Commission to Review the Working of the Constitution (NCRWC). The topic of electoral
    • 61 reforms has been taken up by numerous government committees in the recent past, including but not limited to: Goswami Committee on Electoral Reforms (1990) Vohra Committee Report (1993) Indrajit Gupta Committee on State Funding of Elections (1998) Law Commission Report on Reform of the Electoral Laws (1999) National Commission to Review the Working of the Constitution (2001) Election Commission of India – Proposed Electoral Reforms (2004) The Second Administrative Reforms Commission (2008) Remarkably, none of the recommendations forwarded by these committees, which were painstakingly prepared after detailed reports, have been implemented so far. The National Commission to Review the Working of the Constitution has come out with a Consultation Paper especially in relation to elections and reform op Electoral reform means introducing fair electoral systems for conducting fair elections. It also includes recuperation of the existing systems to enhance and increase the efficiency of the same. The first and the foremost issues required to be looked in to at this hour is the removal of is money power, muscle power and the mafia power. Besides this some corrective measures are also required to wipe off the nexus of four C’s, corruption, criminalization, casteism and communalism. That once party candidate is elected and becomes the part of the legislature, the legislature turn deaf ear and starts ignoring the same citizens with whose vote he is elected to climb the stairs the legislative chambers.. The many of occasions one has observed that member of Parliament do not discuss those issues, which require serious attention and debates. Rather a debate is never taken on serious issue and on smaller issues the parliament working is stalled for days together without considering the crores of expenditure being incurred on the convening of the parliament that too for few days of the year.
    • 62 If one compare the working culture of the Indian parliamentarian with the parliamentarians of the countries, which have attained freedom also at the same time of India attaining its Independence. The condition is better in other countries. It’s true that we have a robust governing structure as compared to other developing nations but not from free from its ills and we are still lagging behind of our compatriots because of the overall criminalization of politics and continuous deterioration is taking place of the Indian political system due to misuse of offices, money power, corrupt officials, etc. The Politics has emerged as big game changer for the politicians who have become certified Master of Politics. The majority of the middle class or otherwise of the other tangible group politics is a dirty game and as a non-lucrative field. The early sixties, a corrupt person was not regarded as example for the society. For last two decades or so, the same society has reached to such a manifest stage that corruption is accepted as one way of life and corrupt are most respected by the society. The degradation of social and moral values in the social fabric is due to fall out of these values from the top echolean of the society and further fault lies in the political and electoral system which has derailed the social fabric of the country. Issues and challenges before the election commission The elections are the mainstay of our Indian Democratic setup and our constitution has bestows on us of right to elect the representatives of the state. Besides, the elections in India have a long history as general and state elections are part of our federal structure. The Election Commission of India is the apex body that conducts elections in India. Both the General and State Elections are held as per the rules prescribed by the Election Commission. This Commission is composed of high-ranking government officials and is constituted according to the provisions of the Indian Constitution. A great degree of autonomous power is bestowed on the Election Commission to exercise control over the election process. Even the judiciary has no right to intervene while the electoral process is on. Some of the Electoral reforms that have occupied the Election Process includes EVMs that is, Electronic Voting Machine which results in more transparency and creditability of
    • 63 elections, Universal Adult Franchise initiated by 61st Amendment, 1988 which has reduced the age of voters from 21 years to 18 years and Anti- Defection Law which curtails the criminals from taking tickets of various political parties and also bestows on them the right to extract the contesting candidates’ profile. Besides, Section 58A has been inserted in the Representative of the People’s Act by Act 1 of 1989 providing for adjournment of pole or revoking of elections because of booth capturing. One of the most important features of our democratic structure is elections which are held at regular intervals. Free and fair elections are indispensable for a healthy democracy. India has an indirect form of democracy which implies that the government draws its authority from the “will of the people”. It is the citizens who have the sovereign power to elect the government and this government is responsible to the people who have elected them. But there are some shortcomings connected with this form of democracy which we have been carrying since long. The citizens who elect the representatives have no right to “recall or reject the representative” on the ground that they are unsatisfactory for their post unlike Switzerland, pursuing a direct form of democracy. They have the right to recall a representative elected by them if they are not competent to hold their office. But no such system exists in our country. There has been universal appreciation of the Indian electoral system. People have hailed the manner in which elections have been conducted in India. But there are its weaknesses. It has been seen that in spite of the efforts of Election Commission to ensure free and fair election, there are certain shortcomings of our Electoral system and also there are some issues before election commission of India. The role of unaccounted money in elections has become a serious problem. The political parties collect funds from companies and business houses, and then use this money to influence the voter to vote in their favour. The business contributions are mostly in cash and are not unaccounted. Many other corrupt practices are also adopted during election such as bribing, rigging or voter’s intimidation, impersonation and providing transport and conveyance of voters to and fro the polling stations. The reports of liquor being distributed
    • 64 in poor areas are frequent during election. These are some illegal practices perform by the candidates during elections on the basis their money power. The dominant role of money in elections, which is taking newer and outrageous form, is deeply worrying. Instances of politicians paying for news coverage and bribing voters were widespread in 2009-2010 elections and even vote for note scam is one of the biggest examples of money power. On seeing these instances, politics seems to be the market of barter system that is note ke badle vote. As a result violence during elections has also increased. Though these activities does not take place very openly but are still in progress, there are many small town where these activities takes place before and even after the elections and there is nobody to oppose it. Generally the candidates are given tickets by the political parties on the consideration whether the candidate can muster the support of numerically larger castes and communities and possesses enough resources. Even the electorates vote on the caste and communal lines. Communal loyalties of the voters are used at the time of propaganda campaign. This system of caste and religion voting showed up during various election campaigns when the candidates used to give their speeches in favour of one religion. One of the recent examples is Varun Gandhi’s hatred speech toward muslin during the election campaign. All the political parties do not have equal opportunity in respect of access to resources. The party in power is always in advantageous position then the opposition parties. There is widespread allegation that the party in power accomplishes misuse of government machinery. All these features lead to violence, booth capturing, rigging bogus voting, forcible removal of ballot papers, ballot boxes burning of vehicles, etc. which result into loss of public faith in elections. The weaker and vulnerable sections among electors are forcibly prohibited from voting or are made to vote against their free will. Many of the ineligible voters find the place in electoral rolls like dead and shifted voters and even sometimes many of the non citizens also find the place in electoral rolls. Even we found repetitions and duplications on electoral rolls.
    • 65 There are sometimes mistake in the spelling the names of electors, the names of their Father/Mother/Husband (as the case may be), date of birth, address etc. Mistakes in the spelling of names, recording of date of birth/age and the correct recording of addresses have been some of the major irritants as far as the electors are concerned. Because of the hitherto used old techniques of writing the name of the elector in one language and then transliterating it into another (English, Hindi or some regional language), problems have repeatedly arisen in correctly spelling the names of persons or their addresses. This has dented the creditability of electoral rolls. Another challenge associated with the management of electoral rolls in India is matching the correct photograph with the elector’s details of each and every elector whose name finds a place in the roll. Here again, because of the hitherto used old technique of keeping the electors’ details and their photographs separately, mismatch in photographs used to be reported quite often. There is no provision for making online application by the candidate which also reduces the transparency. Citizens have no way to track the application or there is no effective monitoring of tracking application, even most of the people or citizens of India are unaware about their right to track application, they are not aware about whether they can ask for tracking the application of the candidate participating in election. Initiatives by the Election Commission on electoral reform Other than dealing with challenges faced in the election process, the Election commission lays down the model of Code of conduct, since it is the custodian of fair and free elections. But the harsh reality is that political parties never obey the code of conduct. The predicament is not lack of laws, but want of any strict execution. In order to squash out this iniquitous inclination, there is a need to reinforce the hands of the EC and to give it more officially authorized and institutional powers. The EC must be delegated with powers to penalize the wayward politicians who go astray and disobey the electoral laws.
    • 66 The other grave issue with regard to the problem of ‘corruption’ is that besides being a bottleneck in itself, it goes on to hinder and thus stifles the life out of any developmental agenda being undertaken. And the dangers engendered though this issue of corruption becomes all the more omnipotent when it infests the very foundation of democracy i.e. electoral processes. A democracy cannot afford to ignore the populist emotions, and through the entire uprising that our nation just witnessed towards lobbying for the formation of a political will for the establishment of lokpal bill, goes on to establish beyond all doubts that aam aadmi strongly desires definitive action against all forms of corruption. Electoral processes as being a high alert area for corruption is a common knowledge, something that even the leaders of all political parties are in consensus with. There are a number of highly-valued government body recommendations on electoral reforms like the Law Commission’s 170th Report on Electoral Reforms of 1999; recommendations from the National Commission to Review the Working of the Constitution of 2002; Election Commission’s Recommendations on the Electoral reforms of 2004; Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice Eighteenth Report on Electoral Reforms of 2007. Thus, well-recognizing the pressing need for electoral reforms starting with the year 2011, the Ministry of Law and Justice, Government of India, had constituted a core committee to look into various aspects on Electoral Reforms in India. It had decided to hold seven regional consultations across various locations in India to elicit views from various stake holders in order to consensually pave the path for electoral reforms. The Election Commission had co-sponsored this exercise. The consultations attempts to address a number of well established grey areas in the electoral processes like de-criminalisation of politics, de-communalisation of elections, financing of elections, auditing of finances of political parties, conduct, regulation, better management of elections, adjudications of election disputes and media and elections. These seven regional consultations culminated in the National consultation in New Delhi, and attended amongst others by the Prime Minister of India.
    • 67 As a follow-up action to the nation-wide consultation the Law Ministry seems to have already finalized its list of proposed changes to be made to the Representation of People Act, a finalized draft of the same seems to have been forwarded for the consideration of the Cabinet at the Prime Minister’s Office. Complete over-hauling of the electoral processes for the second largest democracy of India, in order to bring about total transparency and accountability into the system will be a gradual evolutionary progression, but there are certain immediate measures that can feasibly be taken to mark the first successful step towards an attempt to cleansing our electoral system even if a little at a time. Some of the areas calling for urgent redressal within the election system are de- criminalisation of politics, political parties reforms, state-funding of elections, adoption of certain ingenious methods like ‘no-vote’ option and the ‘right to recall’ in order to make the political functionaries more accountable to the very general public that they claim to represent. The De-criminalisation of Politics in Public Life That de-criminalisation of politics has been an major area of concern, for which many recommendations have come from almost all the high-powered committees constituted to advise the government on the issue of electoral and political party reforms. The law Commission in its recommendations of 1999, had also emphasized on reforms in this area at two levels, one is debarring of candidates from contesting an election, if charges have been framed against him by any competent court in respect to offences mentioned in the newly proposed section 8-B by the law commission to be incorporated into the Representation of the People Act of 1951. The recommendations from the National Committee to Review the Working of the Constitution (2002) and the Election commission (2004) while agreeing with the essence of the above suggestions by Law Commission, further improvises on it by saying that the law should be amended to provide that any person who is accused of an offence punishable by imprisonment of five years or more should be disqualified from contesting election even when trial is pending, provided charges have been framed against him by a competent court. In the draft being finalized
    • 68 by the Law Ministry and sent for the cabinet’s consideration after rounds of regional and national consultation throughout 2011, seems to have attached an additional clause to the above provision in relation to heinous criminal offences, providing that the above provision however shall not apply in cases where the charges have been framed in less than a year from the filing of nominations, thereby providing for a safeguard against politically motivated cases. Additionally through this finalized draft of 2011 generated after nation- wide consultation, Prime Minister’s Office has also proposed for consideration by the Law commission that a person once convicted by any court of law should be disqualified from elections until he/she is acquitted by a higher court of law, providing for no immunity for a sitting MP or a legislator during the pendency of the appeal. Bringing Transparency in Political Party Functioning That before taking initiatives of cleaning of political system, the reforms of inside working of the political party as an important pre-requisite to cleansing the political and the electoral environment of our country, as well as necessary first step only after which any form of state funding of elections may be considered for the Indian political scenario, has been one area that most importantly needs attention and thus calls for reforms on a most urgent basis. The law Commission in its 170th Report on Electoral Reforms (1999) had suggested for the inclusion of a completely new Part – IIA, entitled ‘Organization of Political Parties and matters incidental thereto’ to be introduced in the Representation of the People Act of 1951. This new Part-IIA, comprising of Section 11A to 11I, modeled after the German Law on Political Parties provides for the internal democracy of the political parties; the complete adherence of the aims & objectives or goals & ideals of the political parties with that of the Constitution of India; its registration with the Election Commission without which no political party would be permitted to contest elections; general organization of the political parties; maintenance of regular accounts of the political parties of the amounts received by the party, its income, and expenditure, have them audited and submit the same to the Election commission. This Part-IIA also details out the punishment to be met out to the
    • 69 political parties in case of non-compliance of these sections in the form of penalty of Rs. 10,000 for each day of continued non-compliance after notice, as well as withdrawal of registration of the said political party. Additionally, this report from the Law commission (1999) emphasizes the insertion of another new Section 78A to the Representation of People Act, whereby it provides for stringent punishment for the political parties in case of non-compliance with the maintenance and the disclosure norms regarding the clear and full annual account of the receipt and expenditure incurred by the political parties. The punishments that have been suggested in this Section 78A are a penalty of Rs.10000 for each day of non-compliance as well as de-recognition of the political party by the Election Commission of India in case this non-compliance continues beyond a period of 60 days after notice. The National Commission for the Review of the Working of the Constitution report on electoral reforms (2002) and the Election Commission’s recommendation on electoral reforms (2004) agrees in essence to the registration norms and compulsory maintenance of accounts by political parties duly audited by an independent agency or an agency specified by the Election Commission, as has been suggested above by the Law Commission in its 170th Report of 1999. Setting the Stage for State Funding Level-Playing Field for Political Parties Indrajit Gupta Committee Report of 1998 while agrees on the importance of state subvention of political parties, so as to establish a level playing field for parties with even modest income to contest election alongside parties with superior financial resources; but at the same time the Committee was of the view that state subvention of political parties was an initiative that could be considered only after or simultaneous to the above discussed political party reforms have been well established ensuring internal democracy; internal structures; maintenance of accounts, their auditing and submission to Election Commission. For if without these pre-conditions state funding is resorted to, it would not serve the purpose at all of eliminating the role of money power in the form of corporate funding or black money from the scene of Indian election processes. The state funding, without political party reforms would merely become yet another source in addition to all
    • 70 others, for the political parties and candidates to exploit at the cost of public exchequer. Moreover, the Indrajit Gupta Committee strongly recommended that given the budgetary constraints and the financial stringencies faced currently by the country, only partial state funding may be resorted to at present which can be disbursed as a relief for financing not only in carrying out their electoral process but also their day-to-day functioning during non- election times. The Committee further elaborated saying that to begin with state funding may be given only in kind in the form of certain facilities to the recognized political parties and their candidates. Is time ripe for Immediate Action For lat few years, the people participation in bringing much needed reforms in electoral process getting pace, many non governmental organisation and the public spirited bodies have been demanding immediate considerable change in the electoral process and expecting the government will bring needed change within the electoral process in India, there are other very innovative steps that are also being widely discussed on public platforms to increase the hold of general public on its own right to adult franchise within a representative democracy. That one of the option which is being discussed presently is under rule 49(O) of the election conduct rules of 1961 though current rule provide for an option, wherein a voter may not vote for any of the candidates in electoral fray, rather this option is being desired to be integrated as a voter choice to be casted directly on the Electronic Voting Machines (EVMs), and this choice has to be registered separately with the polling both in-charge as a ‘no-vote’ option and later has to be counted as negative option . This prevalent procedure of registering a ‘no-vote’ option is not only violates the fundamental principle of secret ballot; but also would prove to be an effort in vain as this vote is not counted for the purpose of counting but is being kept separately as no vote or with cancelled votes, unless steps are taken to secretly and exactly record the number of ‘no-vote’ polled through EVMS and if these polled exceed that of all other candidates, then
    • 71 that constituency should be obliged to conduct a fresh round of elections with a new set of nominees. In strengthening this ‘no-vote’ option appropriately through integration in the EVMs, there are very high chances that general public will finally succeed in forcing the political party to put up suitable candidates in election. Another novel idea doing the rounds in the public domain is that of ‘right to recall’. The recall of the elected representative is a powerful tool to make politicians accountable, since it does not require any corruption charges against the public functionary, all that it requires is 25% to 50% of the electorate to be dissatisfied by the MP/MLA’s performance. But ‘right to recall’ elected representatives for perceived non-performance in the middle of the term can also be arbitrary and problematic especially looking at size of the India’s democracy, moreover it can also lead to politically motivated trouble creation by the losing candidates for the ones who are winning. Another caution against ‘right to recall’ is that it has inbuilt danger of inclining the political functionaries towards short-term populist measures lacking any long term developmental agenda. So without questioning the fact that ‘right to recall’ would go a long way in increasing the efficiency and the accountability of the political functionaries at large, what one really needs to debate and deliberate is the feasibility of its applicability in the present political scenario in India.
    • 72 CHAPTER – VIII “NONE OF THE ABOVE” IN OTHER COUNTRIES Though in India the voices for implementing the right to reject has been echoing for last few years, even the election commission has also favoured the including the option of none above but most of the other counties have been following or included the option in different form of or similar to “None of the Above” but this option has been granted to their citizens way back and has been used by its citizens on many of their elections for many years. None of the Above (NOTA) That around the world, certain countries have been following the option of “None of the Above (NOTA)”, which is also known as "against all" or it is called a "scratch" vote, this is a ballot option in some country jurisdictions or organizations, basically designed to allow the voter to indicate their individual disapproval of all of the candidates in a voting system. This is based on the principle that consent requires the ability to withhold consent in an election, just as in this case an individual voter can franchise by voting no indicating the individual preference on the issued ballot. The countries or entities that include the option of "None of the Above" on the ballots as standard procedure includes countries like Greece indicating white, but unrelated to a any of political party of the similarly sounding name-however, it is symbolic only, In the U.S.A, their state of Nevada has the option of “None of these Candidates”, another country Ukraine former part of erstwhile Soviet Union and other country of EU Spain has also option of (voto en blanco), and another country part of Latin America the country Colombia also has an polling option same like Spain (voto en blanco). Russia had such an option on its ballots (всех) until it was abolished in 200633 as per some report appearing in 33 Russians Divided Over Electoral Reforms: Angus Reid Global Monitor". Angus-reid.com.
    • 73 times of India even our neighboring country the Bangladesh has introduced this option in the year 2008.34 That the countries those which are following the option of “None of the above” are listed on a ballot as option, there is the possibility of NOTA receiving a majority or plurality of the vote and so "winning" the election. In such a case, a variety of formal procedures may be invoked, including having the office remain vacant till next conducting of election another option of having the office filled by appointment or another option of re- opening nominations or holding another election if body operating under parliamentary procedure or it may have no effect whatsoever, as in the state of Nevada, A 1975 law granted Nevadans the right to cast the unique protest vote for "None of These Candidates. As per Nevada election rules (NRS 293.269), the option is provided to the voter to cast vote as "None of These Candidates" This option can be utilised by the voter in the election related to presidential and statewide contests (U.S. Senate, Governor, Lieutenant Governor, Secretary of State, State Treasurer, State Controller, Attorney General, Justice of the Supreme Court. In the year 2011, a lawsuit seeking an injunction to remove the option was filed in federal court and financed by the Republican National Committee. U.S. District Judge Robert Jones ruled in August that "None of These Candidates" was unconstitutional because the ballot option can never win, even if it gets the most votes. The Secretary of State Ross Miller appealed against the ruling and in September, the 9th U.S. Circuit Court of Appeals stayed Jones' ruling, allowing the ballot option to be included for the 2012 election cycle. "None of These Candidates" was not a factor in this year's state Supreme Court races since all three justices ran unopposed. Soviet Union That in the Soviet Union in the year 1991 elections which has led to the break-up of the erstwhile Soviet Union, the Soviet version of "none of above" led to new elections with 34 Bangladesh amends election law incorporating 'no' vote option". Times of India. Jul 14, 2008.
    • 74 new candidates in 200 races of the 1,500-seat Congress of People's Deputies.35 More than 100 incumbents representing the Communist Party of the Soviet Union were defeated in the run-off, leading to Boris Yeltsin to later say the "none of the above" option "helped convince the people they had real power even in a rigged election, and [it] played a role in building true democracy.” Spain Blank ballot That the Spanish voting regulations provide a provision of the blank ballot and it is recognized as “None of the above” but this option has very little chance to influence the distribution of seats within a democratic election of Spain, that blank ballots mostly considered as a statistical indicator of candidatures' disapproval by voters. The blank ballots only increase the amount of valid votes, rising up the threshold of votes (3% and 5% depending on the election) which every political party has to overcome to be fully considered. The parties over the threshold get their seats according to the D'Hondt method. Blank seats Since 1999, several political parties 36 have arisen in order to make visible the “None of the above option” in the parliaments and force empty seats. Currently, "Blank Seats" runs for the Spanish Congress and Senate elections. Its programme is to leave empty the corresponding assigned seats by not taken full possession of their duties as congressperson, senator, etc. According to law, the seat remains assigned to the elected candidate until the possession act takes place, the elected candidate explicitly refuses or new elections are called. In this way, the political party and its candidates stay free from obligations and are not entitled to receive any money from the public funding scheme for politics. By voting such option at the local elections in May 2011, the citizens of the villages of Gironella (Barcelona) and Foixà (Girona) were able to reduce the amount of politicians in 35 Fund, John (September 10, 2012). "‘None of the Above’ Should Be on the Ballot". National Review 36 ESCAÑOS VACIOS (ESCAÑOS VACIOS). Registry of political parties of the Interior Ministry of Spain (spanish).
    • 75 their councils by one and two respectively.37 Overall, citizenship supported Blank Seats at different municipalities, including Barcelona, with 15582 votes (averaging 1,71% of valid votes). This party aims to give blank ballots the meaning of representing empty seats, if the amount of votes indicate so as for any other party, disbanding the party when such law would be approved. USA The origination of the ballot option "None of the Above" in the United States can be traced to the Isla Vista Municipal Advisory Council in its' 1976 resolution to place this option on the official electoral ballot in Santa Barbara County in California. Then council members Walter Wilson and Matthew Landy Steen introduced the legal resolution to amend existing ballot options for elections from then on.38 In the year 1978, the State of Nevada adopted "None of the above" as a ballot option. In the late 1999 in California, citizen proponents of Proposition 23, titled the "None of the Above Act", qualified a new State ballot initiative through circulated petitions submitted to the Secretary of the State. A total of $987,000 was expended in promotion of the ballot option, which was defeated in the March 2000 general election by a margin of 64% to 36%. If passed by the voters, it would have required this new ballot option for all state and federal elective offices, exempting only local judicial races; in determining official election results, the none of the above voter tally would be discarded in favor of the candidate with the greatest number of votes. Poland That in the country like Poland in the year 1989, the legislative election in Poland voters were able to vote against the only candidate running, often from the ruling Polish Communist Party by crossing out the candidate's name on the ballot. As a result, voters 37 Escons en Blanc aconsegueix que tres cadires quedin buides als consistoris catalans. Ara.cat (catalan) 38 http://www.wallstreet-journal/archives/1976
    • 76 defeated the sitting prime minister and dozens of leading Communists because they failed to get the required majority. There are many other forms of expressing the unhappiness of the individual, who usually expressed their anguish and anger through various means of expression through available channel of election as under. Protest vote A protest vote (also known as a blank vote or white vote) is a vote cast in an election to demonstrate the caster's dissatisfaction with the choice of candidates or refusal of the current political system. In this latter case, protest vote may take the form of a valid vote, but instead of voting for the mainstream candidates, it is a vote in favor of a minority or fringe candidate, either from the far-left, far-right or self-presenting as a candidate foreign to the political system. Along with abstention, which is simply the act of not voting, it is often considered to be a clear sign of the lack of popular legitimacy and roots of representative democracy, as depressed voter turnout endangers the credibility of the whole voting system. If protest vote takes the form of a blank vote, it may or may not be tallied into final results depending on the rules. Thus, it may either result in a spoilt vote (which is the case most of the times) or, if the electoral system accepts to take it into account, as a "None of the above" vote. Protest vote can take different forms · Voting for a fringe, ineligible, or fictional candidate. · Spoiling, or marking nothing on, the ballot paper. · Selecting a none of the above (none) or "blank vote" option, if one exists. · Selecting a vote in favor of a different voting system based on a condorcet method · Interpretations to each of the methods mentioned above vary.
    • 77 Sometimes, a person may use even more uncommon, often illegal, methods to protest vote. Examples include physical destruction of the ballot (for example, ripping the ballot apart or eating it), asking other people to vote for them, or selling their ballot (for example, putting their vote on auction sites). Protest vote and abstention Abstention may be considered as a form of protest vote, when it is not assimilable to simple apathy or indifference towards politics in general. Henceforth, the anarchist movement which has since its origins rejected representative democracy in favor of a more direct form of government, traditionally calls for abstention in an active and protest gesture. In states where voting is compulsory, abstention may be seen as an act of civil disobedience. Abstention in compulsory voting systems tends to be somewhat ineffective, as the protest 'message' is likely to be confused with apathy. Voters who do not care who is elected, but are simply voting because they must, may choose to abstain, and the abstention protest votes will be confused with the apathetic abstention votes. A second problem with abstention is it tends to help maintain the status quo, which may be seen as antithetical to the purpose of protesting in the first place. In a system where one candidate has a majority of support, protesting by abstention will increase that majority in the election results. To illustrate this, consider a group of 10 people voting for two candidates, A and B. Six support candidate A and three support candidate B, and one is wishing to protest, using their vote, against either the system or both candidates. If the protestor votes for candidate A, the results would be 70% to 30% (for A and B respectively); if the protestor abstains, the results would be 67% and 33% (A and B respectively); if the protestor votes for B, the results would be 60% and 40% (A and B respectively). In a larger election, the differences are numerically smaller but act to increase/decrease the proportional vote in the same ways.
    • 78 The abstain vote actually increases the proportion of votes for the most popular candidate, while voting against the popular candidate(s) (by voting for any other option(s)) would close the electoral margin. In a wider context, closing the margin may result in a hung parliament, or a smaller difference between the parties in government, reducing the chance of a single party having control over the system, which may be seen as beneficial for the sake of protesting against the system or candidates. Voting for fringe candidates "Protest vote" also refers, in a more derogatory manner, to specific demographic categories, classifying populations according to the frequency and nature of their vote. Thus, in the US, middle-income families vote more often than the working class or marginalised populations. After the 2002 French presidential election, in which far-right leader Jean-Marie Le Pen arrived second behind conservative candidate Jacques Chirac, many analysts put the blame of the surprising result on working class, accused of engaging themselves in "protest vote", For example, French voters were encouraged by the establishment to make a "useful" vote in the 2007 presidential election, i.e., by voting either for Nicolas Sarkozy, candidate of the centre-right Union for a Popular Movement, or for Ségolène Royal, candidate of the centre-left Socialist Party, and not for other candidates considered unlikely to make the second turn of the elections. Electing a political newcomer Significant popular support for a person who had never previously been involved in politics may be seen as a form of "protest vote". Thus, when the 37 year-old Director of the Vanuatu National Cultural Council, Ralph Regenvanu, stood for Parliament in 2008, he was a political newcomer. He campaigned on the theme of bringing a fresh face and a fresh approach to politics, and was elected in his constituency with a record high number of votes. This prompted Transparency International Vanuatu to applaud his election and his first days in office: "Port Vila MP Ralph Regenvanu was elected by the “Protest Vote” –
    • 79 essentially by those people who were sick and tired of the traditional politics, and it is encouraging to see him exercising his mandate." [edit]Protest vote in various countries In the United States, cartoon and other fictitious characters are typically used as protest votes; as Mickey Mouse is the most well-known and well-recognized character in the United States, his name is frequently selected for this purpose. Other popular selections include Donald Duck and Bugs Bunny. A similar phenomenon occurs in the parliamentary elections in Finland and Sweden, although Finns and Swedes usually write Donald Duck as a protest vote because in these countries Donald is more famous than Mickey.[citation needed] Other characters, both real and fictional, are used as protest votes too. One theory has it that the reason for boxer/politician Tony Halme's popularity in one of the Finnish elections was because he was being used as a protest vote. Somewhat ironically, this might mean that protest votes actually got someone elected. Donkey vote Donkey voters vote the way candidates appear on the ballot paper. Sometimes the term "donkey vote" is incorrectly used to refer to an informal vote (submitting a blank or defaced ballot paper) although this use is not included in major dictionaries. In Australia, where all federal and state and territory electoral systems combine compulsory voter turnout with some form of preferential voting, donkey vote refers to the practice of numbering the candidates in the order in which appear on the ballot paper, instead of numbering them according to one's preference. This form of voting is most common when full preferential voting is required, such as at Australian federal elections or in the Australian state of Victoria.
    • 80 There are different versions of the phenomenon applicable in the Australian House of Representatives, Australian Senate and in the Australian jurisdictions that use the Hare- Clark system. Donkey votes are typically cast by uninterested voters, protesting voters or voters ignorant about the voting system. As voting is compulsory in Australia, "donkey votes" are an important measure of protest or apathy. The number of voters who protest against voting by spoiling their ballot or submitting a blank ballot is unknown, as these votes are tallied along with informal votes. The Australian Electoral Commission reported a national informality rate of 5.55% in the 2010 House of Representatives election, and of 3.95% in the 2007 House of Representatives election.39 It is said that parties used to deliberately select candidates with a high alphabetical ranking. In 1984 voting reforms were introduced to lessen this effect, including listing names in a random order. Donkey votes are not limited to Australia: a similar effect has been observed in other democracies, even those without compulsory preferential voting, although the unique presence of these two factors in Australia makes the phenomenon more visible. Donkey voting shows up in US elections, for example, in states which use the "long ballot" for numerous offices, or in multi-seat elections where there are several candidates from the same party. In his book The Rise of Guardian Democracy: The Supreme Court’s Role in Voting Rights. Spoilt vote In voting, a ballot is considered to be spoilt, spoiled, void, null, informal or stray if it is regarded by the election authorities to be invalid and thus not included in the tally during vote counting. This may be done accidentally or deliberately. The total number of spoilt votes in a United States election has been called the residual vote.40 39 "Analysis of Informal Voting: House of Representatives, 2010 Federal Election". Australian Electoral Commission. Retrieved 2 February 2013. 40 Caltech/MIT Voting Technology Project, Residual Votes Attributable to Technology: An Assessment of the Reliability of Existing Voting Equipment, version 2, 3 Mar. 2001,
    • 81 If a voter makes a mistake while completing a ballot, it may be possible to cancel it and start the voting process again. In the United States, cancelled physical ballots may be called "spoiled ballots", as distinct from an "invalid vote" which has been cast. In Canada, the same categories are called "rejected ballots" (given back to the deputy returning officer without a mark or otherwise spoilt, so as not to go into the ballot box), and "spoilt ballots" (ballots from inside the box where intent is unclear, the voter can be identified, or the ballot is otherwise incorrectly marked. In many jurisdictions, if multiple elections or referenda are held simultaneously, then there are separate physical ballots for each, which may be printed on different-colored paper and posted into separate ballot boxes. In the United States, a single physical ballot is often used to record multiple separate votes. In such cases one can distinguish an "invalid ballot", where all votes on the ballot are rendered invalid,[3] from a "partially valid" ballot, with some votes valid and others invalid. Unintentional spoiling Voter instruction is intended to minimise or even preclude accidental spoiling of votes. Ballot design can aid or inhibit clarity in an election, resulting in less or more accidental spoiling. Some election officials have discretion to include ballots where the strict criteria for acceptability are not met but the voter's intention is clear. More complicated electoral systems may be more prone to errors. Group voting tickets were introduced in Australia owing to the high number of informal votes cast in single transferable vote elections. The United States Election Assistance Commission's survey of the 2006 midterm elections reported under voting rate of 0.1% in US Senate elections and 1.6% in US House elections; over votes were much rarer. Some paper-based voting systems and most DRE voting machines can notify voters of under-votes and over-votes. The Help America Vote
    • 82 Act requires that voters are informed when they have over voted, unless a paper-ballot voting system is in use.41 The percentage of accidentally spoilt votes is lowest when the ballot requires voting for only one candidate. Designs such as the butterfly ballot, which alternate candidates between one side and the other with the place to be marked along the seam of the ballot, can make mistakes and spoiled ballots more likely. Intentional spoiling Spoiled votes may be the result of a deliberate act by the voter; some proportion are likely to be protest votes, especially in systems where voting is compulsory. Intentionally spoiling someone else's ballot before or during tabulation is a method of election fraud. The validity of the election may be questioned if there is an unusually high proportion of a spoilt vote. However, in countries such as the UK where spoilt ballots are counted, some voters will deliberately spoil their ballot paper to show disapproval of the candidates available whilst still taking part in the electoral process. This may include signing or printing the voter's name on the ballot slip. Evidence points that this practice dates back to times when electoral wards were assigned a designated scīrgerefa (Old English) or "sheriff" a royal official responsible for keeping the peace throughout a shire or county on behalf of the king and who would pay royalties to those who had shown their support. In multiple-vote U.S. ballots, "voter roll-off" is calculated by subtracting the number of votes cast for a "down-ballot" office, such as mayor, from the number of votes cast for a "top-of- the-ballot" office, such as president. When the election jurisdiction does not report voter turnout, roll-off can be used as a proxy for residual votes. Some voters may only be interested in voting for the major offices, and not bother filling in the lower positions, resulting in a partially valid ballot. Abstention 41 Help America Vote Act Section 301(a)1(A)(iii)
    • 83 Abstention is a term in election procedure for when a participant in a vote either does not go to vote (on election day) or, in parliamentary procedure, is present during the vote, but does not cast a ballot. Abstention must be contrasted with "blank vote", in which a voter casts a ballot willfully made invalid by marking it wrongly or by not marking anything at all. A "blank (or white) voter" has voted, although his vote may be considered a spoilt vote, depending on the each legislation, while an abstaining voter hasn't voted. Both forms (abstention and blank vote) may or may not, depending on the circumstances, be considered to be protest vote. An abstention may be used to indicate the voting individual's ambivalence about the measure, or mild disapproval that does not rise to the level of active opposition. Abstention can also be used when someone has a certain position about an issue, but since the popular sentiment supports the opposite, it might be not be politically expedient to vote according to his or her conscience. A person may also abstain when they do not feel adequately informed about the issue at hand, or has not participated in relevant discussion. In parliamentary procedure, a member may be required to abstain in the case of a real or perceived conflict of interest.42 Abstentions do not count in tallying the vote negatively or positively; when members abstain, they are in effect attending only to contribute to a quorum. White votes, however, may be counted in the total of votes, depending on the legislation. 42 Hernandez, Raymond and Christopher Drew (2007-12-07). "It’s Not Just ‘Ayes’ and ‘Nays’: Obama’s Votes in Illinois Echo". New York Times.
    • 84 CHAPTER IX RIGHT TO REJECT . The Representation of The People Act of 1951 also does not mention the right to reject specifically the rule 49-O of the Conduct of elections rules, 1961 describes the procedure to be followed when a valid voter decides not to cast his vote, and decides to record this fact. But many social and political bigwigs have made statements fro time in media regarding its efficacy or its negative impact on the political system. Going strictly by the golden rule of interpretation of Legal Jurisprudence, if we peruse Section 16 of the General Clauses Act, 1897, the power to make an appointment shall also include the power to dismiss the person so appointed. Thus the power to elect should also include the power to recall. The Supreme Court in its recent judgments has shown a strong wave of judicial activism by which the public demand has been given priority in decision making. A wider ambit has been given to the fundamental rights and several of the Directive Principles have been lifted to give them the character of fundamental rights. The day is not far when the right to recall will also be included within the wide ambit of the Fundamental Rights in the Constitution of India or rather the need for its implementation will dictate its inclusion. What is Rule 49-O? The rule 49-O is a rule in The Conduct of Elections Rules, 196143 of India, which governs elections in the country. It describes the procedure to be followed when a valid voter decides not to cast his vote, and decides to record this fact. The apparent purpose of this section is to prevent the election fraud or the misuse of votes. 43 The Conduct of Elections Rules, 1961
    • 85 Text of Rule 49-O The rule 49-O- the elector deciding not to vote, if an elector, after his electoral roll number has been duly entered in the register of voters in Form-17A and has put his signature or thumb impression thereon as required under sub-rule (1) of rule 49L, decided not to record his vote, a remark to this effect shall be made against the said entry in Form 17A by the presiding officer and the signature or thumb impression of the elector shall be obtained against such remark. 49L, decided not to record his vote, a remark to this effect shall be made against the said entry in Form 17A by the presiding officer and the signature or thumb impression of the elector shall be obtained against such remark. Present Implications of Rule 49-O Since the ballot paper / Electronic voting machine (EVM) contains only the list of candidates, a voter cannot record his vote under Section 49-O directly. He must inform the presiding officer at the election booth. This violates the secrecy of the ballot. However, with paper ballot a different method is used to "waste" one's vote, which is stamping on multiple candidates. In fact this was the standard method of giving null votes without violating secrecy before the advent of the EVM At present, in an election, a winner will be declared irrespective of the number of 'non- votes'. However, a note of every 'non-vote' will be made with the Election Officer, and the total number of non-voters will, presumably, be available under the Right to Information Act. Proposals by the Election Commission of India Among the proposed electoral reforms submitted in 2004 to the then Prime Minister, Dr. Manmohan Singh the then Chief Election Commissioner of India, T.S. Krishnamurthy, suggested the following:
    • 86 49-O is it Negative / Neutral Voting The Commission has received proposals from a very large number of individuals and organizations that there should be a provision enabling a voter to reject all the candidates in the constituency if he does not find them suitable. In the voting using the conventional ballot paper and ballot boxes, an elector can drop the ballot paper without marking his vote against any of the candidates, if he chooses so. However, in the voting using the Electronic Voting Machines, such a facility is not available to the voter. Although, Rule 49 O of the Conduct of Election Rules, 1961 provides that an elector may refuse to vote after he has been identified and necessary entries made in the Register of Electors and the marked copy of the electoral roll, the secrecy of voting is not protected here in as much as the polling officials and the polling agents in the polling station get to know about the decision of such a voter. The Commission recommends that the law should be amended to specifically provide for negative / neutral voting. For this purpose, Rules 22 and 49B of the Conduct of Election Rules, 1961 may be suitably amended adding a provision that in the ballot paper and the particulars on the ballot unit, in the column relating to names of candidates, after the entry relating to the last candidate, there shall be a column None of the above, to enable a voter to reject all the candidates, if he chooses so. Such a proposal was earlier made by the Commission in 2001 (vide letter dated 10.12.2001). Criticism of proposals regarding negative voting and annulment of polling due to neutral votes An argument in favour of provision of neutral voting is that it ensures the individual's freedom to choose whether or not to vote. Russia allows voters to vote "against all" candidates. The proposals of negative voting by the election commission and annulment of polling if neutral votes exceed those of the winning candidate have been criticised by experts. It is the duty of every citizen to educate himself / herself about the agenda of the candidates
    • 87 and to vote conscientiously for the candidate they think is better. The very purpose of an election is that the representatives should be chosen by the people. It encourages people not to express their preferred candidate goes against the intended purpose. For this reason, voting is compulsory by law in Australia. Also, annulling an election would result in much waste of public funds spent to conduct polls. It has been reported that activist Anna Hazare supports the 'Right Not To Vote' The Election Commission of India had submitted before the Supreme Court in the year 2009 that though EC is ready to implement or wished to offer the voter a option of “None of the above” button on voting machines; the government, however, has generally opposed this option. Though recently vide agitation led by Mr., Anna Hazare too have voiced and has promised to bring the 'Right to Reject' law and promises to provide provision to hold fresh elections if majority chooses for 'reject all' option while voting. The "Right to Reject" is a proposed voting option in India that would allow voters who support none of the candidates available to them to register an official vote of "none of the above", which is not currently allowed under India election regulation. Right to Reject That in India now a days, the demand that voters should have the right to reject all the candidates in a constituency is now picking up with many non-government organizations and even the Election Commission have supported the idea. The proposal is to give electors the choice to press the button, which says “None of the Above” if they do not like to vote for any of the candidates listed in the electronic voting machine. This option will come after the name of the last candidate in the voting machine. The spirit that lies behind these suggestions is unexceptionable. The electoral system must guarantee that no ‘wrong’ person enters the precincts of Parliament as its member, and an elected person must remain steadfast in the discharge of his public responsibilities. The point of debate, however, is whether the ‘reject all’ option on the ballot paper and the
    • 88 ‘recall’ of an elected representative mid-stream are suggestions worth implementation. Many believe that they are not and, therefore, better options should be found. The primary goal of holding elections is to give the country a system of democratic governance by putting in place the required political instruments for it. In its basic intent, the electoral process is a positive mechanism aimed at enabling the democratic system to run and not at putting the brakes on it, which the ‘right to reject all’ has the potential to do. Election process cannot be made into a rejection process. The objective of preventing undesirable persons from winning the elections does not necessarily require ‘right to reject’. It can be achieved by prescribing stringent eligibility requirements for candidates. Wherever the existing eligibility rules are not found adequate, suitable changes can be made in them. An alert Election Commission is also a powerful instrument to achieve the purpose. If some people or groups entertain doubts on the efficacy of even a strong legal and administrative framework for improving the country’s electoral process and insist on the option of ‘right to reject all’, they would be advised that, instead of making this demand they participate in elections and provide the voters such candidates that may be better than those offered by various political groups. It would not be appropriate for them to merely find faults with others without themselves assuming the responsibility of providing an alternative. What happens if, through a strong exercise of the ‘right to reject’, a seat remains unfilled and when a re-election is held, no good candidate is found again by the voters. That keeping seats vacant for longer duration cannot be an achievement by itself. The energy that is intended to be put in mobilising people for the victory of the ‘right to reject’ option during the elections should better be used to find good candidates and ensure their victory. In this context, we cannot lose sight of the reality of vote-bank politics based on caste, religion language or ideology. A large component of our voters is attached to one or the other vote-bank. Such voters prefer to remain firm in their party loyalty rather than assessing the quality of its governance. All parties have their big or small vote-banks.
    • 89 However, the BJP and Congress are the parties whose voters comprise the biggest fluctuating component who tend to change their preference based on their assessment on governance issues. In fact, this fluctuating element is very useful in the democratic governance. Because of its nature, it would provide the bulk of voters who may be willing to adopt the ‘reject all’ option on the ballot paper. And the size of the voters for this option in a given election may not always be large enough to cancel the election on the seat, making such votes unnecessarily go waste. The only role played by such votes will thus be to take away sizeable chunks of votes of Congress and BJP and, in turn, benefit those forces which have a political agenda to serve through vote-bank politics. Another point to note is that ‘reject all’ option may lead to reduction in voting percentage. Once this option is put on the ballot paper, there are bound to be efforts from some groups to mobilise support for this option in various constituencies. If the activists are able to convince some voters that none of the candidates named in the ballot paper deserves their vote, such convinced voters may only become indifferent and choose not come to vote at all. High proactive enthusiasm cannot be built among people for negative acts like ‘reject all’. The net result may be a reduced percentage of voting which is not good for democracy. A more productive effort would be to encourage people to come and vote in huge numbers. This will create the much needed fear of uncertainty among all candidates which will be a very positive factor in the election process. That in the year 2001, the Election Commission has first made this proposal and forwarded the same to the Government. The Election Commission had also made the proposals with regard to electoral reform in the year 2004, when Mr. T. S. Krishnamurthy was the Chief Election Commissioner (CEC). In those proposals the commission suggested several measures to check criminalization of politics and to improve transparency in regard to the antecedents of candidates via affidavits filed by them while
    • 90 filing nominations. The commission also had many other suggestions in regard to conduct of political parties and publication of exit polls. In this set of recommendations which was forwarded by the C E C to the then Prime Minister, the Election Commission also expressed itself in favour of giving the voters the right to what is called negative or neutral voting. The commission said it had received proposals from a large number of individuals and organizations that voters must have the provision to reject all the candidates in a constituency, if they did not find any of them suitable. The commission noted that when the conventional ballot paper is used in an election, the voter can drop the ballot paper into the ballot box without marking his vote. However, no such provision is there in the electronic voting machines. Further, under Rule 49 O of the Conduct of Election Rules, 1961, a voter has the right to refuse to vote after he has been identified, his presence is marked in the register of electors and he is issued a ballot paper. However his decision not to vote does not remain a secret because polling officials and polling agents become aware of the voter’s decision. The Commission therefore recommended that the law be amended to specifically provide for negative or neutral voting. This can be done by amending Rules 22 and 49B of the Conduct of Election Rules, 1961 and adding a proviso that in the ballot paper which lists all the names of the candidates, there should be a column after the name of the last candidate which says “None of the Above”. This will enable a voter to reject all the candidates in the constituency. The Commission, while making this proposal in 2004 reminded the government that it had made a similar proposal earlier in December, 2001 and that a petition filed by the People’s Union for Civil Liberties seeking such a provision was pending before the Supreme Court. This case came up a year ago in the Supreme Court before a two-judge Bench and the Bench decided to refer this matter to a five-judge Bench. The court referred to earlier judgments of the court which recognized the voters’ right to information in regard to the assets and criminal past of candidates and said that this had given a new dimension to the conduct of free and fair elections. The reasons why Right to Reject should be introduced:
    • 91 1. Right to Reject gives people power to express discontent. If citizens are dissatisfied with the background or previous performance of the candidates, they may opt to reject all the candidates. 2. Right to Reject would check candidates with criminal records and parties would be forced to give tickets to good candidates. 3. If almost all the candidates on whom political parties spent crores of Rupees are rejected, they would be discouraged to spend their money. 4. Right to Reject would mean true democracy as the people will be able select their ‘representative’ in true sense of the word. The representative in all likelihood would be honest and transparent in his functions as a Member of Parliament because he has gone through rigorous selection procedure. 5. Opinions of frustrated citizens would be known publicly as practically the entire electorate would vote and if the rejections exceeded the votes cast in favor of candidates, all the candidates would be rejected and fresh elections with new candidates would be scheduled. There would be initial inconveniences and setbacks like huge extra expenses on promoting the new candidates, an additional burden on the national exchequer and the taxpayers and the cost of manpower used on the Election Day itself but a new era of integrity would begin. 6. Every political party would regard the electorate as a formidable force to reckon with and would ensure that only honest representatives of integrity were admitted to their party. Hence the representatives would be careful and prudent in their conduct. 7. The Right to Reject would ensure that people with criminal records would never be able to enter politics. Scams and scandals would decrease immensely.
    • 92 The reasons why Right to Reject should not be introduced: 1. With Right to reject at their disposal, people will be able to express their opinion and cast vote rejecting all the candidates but this won’t be counted against the votes cast in the candidate’s favour. The number of selections of ‘None of the above’ must have maximum votes to initiate re-election. 2. On an average 60% of the voters cast their votes. More and more people are disenchanted by the politics today. Right to reject might become a fashion statement among them which would prolong election. 3. There are around 11 million teachers, staff and other officers who assist in conducting general elections. Also, tight security measures have to be taken by police for upholding law and order during elections. It would become tedious and unnecessary burden for everyone to conduct the whole activity again if candidates get rejected. 4. The cost would increase manifold if re-elections would have to be conducted. Increases the burden on the tax payers. Also, political parties would spend huge amount again to campaign for the new candidate. 5. In J&K and some North eastern states, the right to reject may be misused to create political instability. Every candidate presented to the people might be rejected again and again, sending a negative political message. 6. Voting in India is party oriented. Masses don’t care who is representing them. Its the ruling party which matters Rule 49(o) of the Conduct of Election Rules 1961 Note that R.49(o) of the Conduct of Election Rules 1961 is NOT "none of the above". 49-O. Elector deciding not to vote.-If an elector, after his electoral roll number has been duly entered in the register of voters in Form- 17A and has put his signature or thumb impression thereon as required under sub-rule (1) of rule 49L, decided not to record his vote, a remark to this effect shall be made against the said entry in Form 17A by the
    • 93 presiding officer and the signature or thumb impression of the elector shall be obtained against such remark This Is just another way of having your vote NOT COUNTED. There is no record published of these votes. If a majority of the people vote under 49(o) that does not mean the election is to be held again. Even if out of 10,000,000 voters everyone uses 49(o) but 1 voter casts his vote for a particular candidate, that candidate wins, under existing rules. Note also that this is not a reject provision but merely an administrative record that you came but didn't want to vote.
    • 94 CHAPTER – X THE RIGHT OF RECALL The Recall is a term used to describe a process whereby the electorate can petition to trigger a vote on the suitability of an existing elected representative to continue in office. The exact process and form of a recall election varies between those countries which use it but in essence it gives voters the opportunity to remove representatives whom they feel are not doing a good enough job. It is important to note that in most cases the recall rescinds a previous decision by the electorate (to elect the office holder in the first instance) rather than putting new choices before the electorate on the same ballot.1 The level of elected representative susceptible to recall varies as does the signature threshold required on the petition (i.e. the number of signatories has to reach a certain percentage of the total electorate to trigger a recall election). Recall may be called an instrument of direct democracy, which reflects the theory that representatives are merely the delegates of electors, morally bound by the preferences of constituents. With recall, the security of a representative's position is subject to constituency approval. The recall gained a firm footing in the USA’s politics with democratic ideals that burst forth from the American Revolution. Some of the States in the USA incorporated recall provisions into their State legislations as a method of controlling their elected representatives. The recall provisions were mainly concerned with the power of the representatives who served the States in the National General Congress. Seventeenth and Eighteenth century’s version of recall involved the removal of an official by another elected body; which is quite different from the modern day concept of recall that stipulates a different relationship between the elected representatives and general public. The right of an electorate to recall its representatives is a way of ensuring the accountability of the elected legislator towards the people. The recall of the elected representatives to a legislature, Central or State, is considered to be a democratic method
    • 95 by which the citizens are vested the power to remove or in effect de-elect a legislator before the expiry term of office. This power is an important instrument in any democratic set up as it allows the voters to scrutinize the performance of the persons whom they are electing as their representatives. This process of recall is beneficial as it ensures delivery of services and fulfillment of the promises made during an election campaign by a candidate. It becomes the prerogative of the constituent to decide whether a nonperforming representative should be allowed to continue in office for a full term or not, as the government exchequer has to bear the costs of the poor performance, which in fact, is the money of the masses. The right to recall also serves as a check on whether the peoples’ representative is misusing his/her position. Following the MPs’ expenses crisis in 2009 the three largest parties stated that they would support the introduction of recall in the UK. The more famous failed Recall attempt of August 15, 2004 was that of the Venezuelan president Hugo Chavez who survived the scare. But, that was thanks to the Venezuelan National Electoral Council ruling that large number of the 20 per cent signatures of voters collected by the proponents were ineligible. It was Chavez himself who had amended the constitution in 1999 to insert article 72 that guaranteed Recall of elected representatives including that off the head of the state. Another more notable successful recall was that of California Governor Gary Davis in November 2002. In less than a year after being elected as the Governor, Davis had to go and Hollywood action hero Arnold Schwarzenegger was elected. Around 30 states in the US have provision of Recall. The state of California has had Recall since 1911 and till November 2002. In the last 91 years, only on two occasions have state Governors been recalled from office. In another case, a Senator in California in 1913 resigned, while in 1914 a Senator survived the Recall. Whereas, in 1995 only two Assembly members were recalled.
    • 96 Eight states in US require certain preconditions to be met before the Recall petition is filed. Recall initiatives may not reverse the decisions taken earlier and instead could prove counter-productive. The 5 City Councillors of Covina, Los Angeles County had proposed 6 per cent Utility tax in 1993. The Utility tax posed a threat of closure to the local Library and Fire Stations in which 42 employees faced unemployment. And what happened next. The replaced councillors imposed an even higher 8.25 per cent Utility tax! Countries in which recall is permitted The right of recall is used in comparatively few countries throughout the world, with the most well known examples being certain states of the United States of America, six of the 26 cantons in Switzerland, Venezuela, the Philippines and the Province of British Columbia in Canada. It is also used in South Korea, Taiwan and Argentina amongst others.44 The United States of America Recall was first adopted in the US in 1903 when voters approved a new city charter for Los Angeles 7 but recall of state officials is now permitted in the following 19 states:45 The state level recall attempts in the US have been largely ineffectual with only two Governors being successfully removed from office in this way. These were Lynn J. Frazier (North Dakota) in 1921 and Gray Davis (California) in 2003. The latter case led to the election of Arnold Schwarzenegger. Out of 32 attempts in California since 1911 to recall its Governor the election of Schwarzenegger in 2003 was the only successful one.9 In 1988 voters filed enough signatures for Evan Mecham, the Governor of Arizona, to be made the subject of a recall election but he was impeached by the state’s House of Representatives before the date of the scheduled recall election.46 44 Matt Qvortrup, “Hasta la Vista: a comparative institutionalist analysis of the recall”, Representation, vol. 47, No. 2, July 2011, pp161- 70 45 National Conference of State Legislatures: recall of state officials (last accessed 12 September 2011) 46 Richard Rose, International Encyclopaedia of Elections, 2000
    • 97 The recall of state legislators in US has been somewhat more successful then other countries, although still uncommon. Like in California there were 107 attempts to trigger a recall election between 1911 and 1994 and only 4 of these succeeded in reaching the number of required signatures on the petition: 1. A state senator was recalled in 1913 2. A state senator was recalled in 1914, and another state senator survived a recall attempt 3. A state senator survived a recall attempt in 1994 with 59% of the vote 4. Two Assembly members were recalled in 1995 In the year 1983 two state senators were recalled in Michigan for the first time in its history47 . The recall is used much more often at the local level of government. At least 29 states permit recall of local officials.48 Eight US states require certain preconditions to be met before a recall petition can be initiated. These are: Alaska, Georgia, Kansas, Minnesota, Montana, Rhode Island, Virginia and Washington. The signature requirements to initiate a recall election vary between states but are generally based on a formula using the percentage of the vote in the last election as a base. One can have data from National Conference of State Legislatures: recall of state officials. Switzerland The availability of literature on Swiss recalls procedures are limited. Although Switzerland does not employ recall at the federal level, six of the 26 cantons in Switzerland have recall provisions for their cantonal parliaments. As with regard to all other recall systems a certain number of voters must sign the recall petition in order to petition of recall to proceed but in the case of Switzerland it does not appear that this number is based on a percentage of the electorate. like, in Schaffhauses 1,000 signatures are required on the 47 ibid 48 ibid
    • 98 petition of recall but in Ticino 15,000 signatures are required for recall petition. However, as of November 2003, recall had not been used to successfully recall an elected representative. Philippines The country like Philippines also has provision for recall. The recall elections were temporarily suspended on 13 November 2008 due to funding concerns. This was lifted after the gap of three years on 29 January 2009. If the recall petition reaches the signature threshold of 25% (of registered voters in the local government unit concerned) a single election is triggered. This can effectively be seen as a by-election with all the candidates’ names on the ballot including the incumbent. If the incumbent is successful in gaining the most votes then the recall has failed and they retain their position. If, however, another candidate wins the vote then they are duly elected. 49 Venezuela The recall mechanism was introduced into Venezuelan law in 1999 under the new Constitution drafted by the National Constituent Assembly and sanctioned by the electorate in a referendum. Venezuela’s implementation of recall allows the elected head of state to be subject to it. This was most clearly demonstrated, when President Chavez had to fight a recall election on 15 August 2004. Despite opposition allegations of fraud, President Chavez survived with close to 60% of the vote. Uganda In Uganda a member of parliament may be recalled from office on any of the grounds9: physical or mental incapacity rendering that member incapable of performing the functions 49 The Philippines Commission on Elections: press release
    • 99 of the office; or misconduct or misbehaviour likely to bring hatred, ridicule, contempt or disrepute to the office; or persistent deserting of the electorate without reasonable cause. British Columbia The Canadian province of British Columbia adopted recall in 1995 through the Recall and Initiative Act 1995. This gave voters the power to remove their Member of the Legislative Assembly between elections. Under the Recall and Initiative Act 1995, a successful recall petition triggers the removal of a Member of the Legislative Assembly. If the Chief Electoral Officer determines that a recall petition has a sufficient number of valid signatures and meets the requirements of the Act, the Member ceases to hold office and the seat becomes vacant. A by-election must be called within 90 days. 24 recall applications have been approved since 1995 although 23 of the 24 petitions failed because they did not collect enough signatures. Two proceeded to verification. Of these one was found to not have enough signatures and the second was halted because the MLA concerned resigned. 50 The Chief Electoral Officer for British Columbia issued a detailed report on the recall process in November 2003.51 This contains a summary of all recall attempts up to November 2003, and detailed assessment of the procedure and where it might be improved. Pleas for and against the use of recall Arguments for recall • It provides the electorate with the power to remove elected representatives who fail to perform their role to a satisfactory standard or who grossly neglect their duties. • If without recall the electorate must wait until the next scheduled election to voice their opinions on an incumbent’s performance. 50 Elections BC: recall 51 Report of the Chief Electoral Officer on the recall process in British Columbia, November 2003,
    • 100 • The possibility of recall might encourage elected representatives to meet minimum standards of behaviour. Arguments against recall • There is some concern that recall could be abused and used as a political tool with some marginal seats becoming the target of organised campaigns. • If political decisions are restricted by circumstances beyond the control of elected representatives then recalling those that make unpopular decisions does not guarantee that their replacements will be able to reverse them. An example of this is the recall of five members of the city council of Covina, Los Angeles County, because a 6% utility tax was introduced in 1993. As a result of the revenue being lost from the utility tax the library and fire station came under threat of closure and 42 city employees faced redundancy. The councilors who were elected as replacements then introduced an 8.25% tax. • Whilst recall may encourage elected representatives to make popular decisions it also applies in reverse. Some have expressed concern that recall discourages necessary decisions from being made because they may be unpopular. • There is a cost associated with allowing recall because election authorities must be prepared to handle recall petition requests whenever they may arise. Elections BC24 had total costs of C$553,954 for the fiscal years 2002/03 and 2003/04 (up to the publishing of the Chief Electoral Officer’s report in November 2003) as a result of administering 9 recall petitions. The recall election by which Schwarzenegger was elected is reported to have cost more than US$50 million. The arguments for and against recall depend on the systems used. For example, various states attempt to minimise the problem of abuse by placing restrictions on the use of recall. Some US states insist that specific requirements are met such as malfeasance by
    • 101 the incumbent and, in the Philippines; an elected representative can only be subject to recall due.
    • 102 CHAPTER XI THE RECALL MECHANISM AND PRINCIPLES Introduction Broadly, there are two stages to the recall process. The first of these is whereby proponents of the recall initiate efforts to hold a recall vote in relation to the elected person whom they want to recall. Typically, this would require proponents to collect a specified number of signatures in support of the recall. Once the required level of support has been attained and verified, the second stage of the recall process, the recall vote, takes place. Therefore, in addition to the most important structural issues of to whom and when the recall mechanism can be applied, other important issues which must be made clear in the legislation governing the structure of the recall includes: • the requirements for forcing a recall vote; • holding the recall vote; • Selecting a successor if the elected person is recalled. Modalities of the recall mechanism When designing the recall structure, it is clearly important to clarify to which elected positions it may apply. The recall mechanism is found more frequently in systems with full separation of legislative and executive powers, and a distinction may be made between elected members of the executive (for example directly elected presidents, governors or mayors) and elected legislators (members of a congress or parliament and local authority councillors). In addition, judges are elected in some jurisdictions. Recall is used more frequently against elected members of the executive. Within the executive, it may be considered whether recall should apply to all elected persons, or just to some of them. While people may think of the politicians who run a local, state or country
    • 103 administration as possible subjects for recall, voters may also elect people to posts with a much lower profile, such as local education boards. A recall mechanism may also be designed to apply to non-elected officials working within a public administration, such as Chief administrative officers, although it may be questioned whether this is appropriate given that such officials are not initially elected to their positions. Most countries where the recall mechanism is being utilized puts limit the certain positions to which the recall mechanism can be applied. In many places, the recall mechanism extends solely to local and state officials. Latin American country Venezuela, where the directly elected President may be subject to recall, is unique in applying the mechanism so widely. Circumstances for incumbent Recalling It is also important to clarify the circumstances, in which an elected person can be recalled. The design of some recall mechanisms is such that simple unpopularity of the incumbent in question is enough; if sufficient numbers of people are prepared to sign a petition to the effect that they are dissatisfied with the incumbent, and if enough voters support this proposition in a recall vote, that is enough for the incumbent to be recalled. Other designs are based on the idea that the recall mechanism should only be used where there is evidence of some impropriety or incompetence on the part of the incumbent. The constitution of the US state of Minnesota, for example, specifies that an elected official may be recalled only on the grounds of serious malfeasance or nonfeasance during the term of office. If the legal grounds for the recall require that some misdemeanor on the part of the elected person must be demonstrated, it is vital that the relevant law is clear about who is responsible for judging whether the elected person has in fact been guilty of the misdemeanor required to invoke the recall mechanism. Whether an incumbent can be recalled
    • 104 A further issue to consider is when an incumbent might be subject to a recall campaign. Especially in systems with full separation of powers, it is normal for positions to be elected for a known, fixed period of office, and it is possible to identify when a person elected will be subject to re-election (or must leave office if limits on reelection apply). It might therefore be considered prudent to place some time restrictions on when it is possible to hold a recall vote. It could be argued that it would be unfair to an elected person to hold a recall vote within a year of his taking office, because an incumbent should at least be given the chance to perform competently in office (although this argument might not be viewed as applicable if the recall is restricted to cases where an incumbent is judged to have acted incompetently). In Venezuela, for example, the right of recall against the elected president may only be triggered after half of the term of office has passed. Similarly, it might be considered unnecessary to hold a recall vote towards the end of an incumbent’s term of office since it is close to the time at which the electors will have the chance to remove him from office anyway. In the Philippines, an elected local official may not be recalled within either the first or the last year of his term of office. In addition, only one recall petition is allowed against any local elected official in the Philippines during his term of office: if the recall fails, those dissatisfied are barred from trying again. The likely financial and administrative burden of holding a recall vote may be an important consideration. This can be a significant cost for elections at any level, and will be particularly high in absolute terms for higher level elections: it is estimated that the cost of running the 2003 recall elections for the state governorship of California was USD 70m. While this consideration needs to be balanced with the aim of the recall mechanism to give democratic power to voters, it may lead to the conclusion that the period in which voters can change their mind about those whom they have elected should be time restricted. Can the elected person being challenged stand for re-election The legal framework must make clear whether or not a person who is the subject of a recall vote can stand for re-election. There appear to be few arguments to support a
    • 105 design in which a recalled person is eligible to stand for re-election, since this would appear to undermine the entire point of the process; a situation in which a recalled person is subsequently re-elected would appear to render the process an expensive waste of time. The decision on whether to allow the elected person to stand on the ballot for a successor may also be affected by whether or not the recall vote and vote for a successor are held simultaneously or separately. There may be more of a case for allowing an incumbent to stand on the ballot for a successor where the votes take place simultaneously, because the incumbent has not yet been recalled by the voters. Is there an election to appoint a successor to a recalled incumbent? The outline above assumes that, should electors vote to recall an incumbent from his term of office, they will also vote on who should succeed him. However, this is not always the case. A design feature of the Venezuelan recall mechanism is that although a person can still be recalled during the whole of his term of office, a successful recall after a certain point automatically leads to the installation of office of another specified person. Were the recall vote in respect of President Chavez of Venezuela to have taken place just four days later than it did, a vote in favour of the recall would have led to the installation of the Vice- President as President. The logic for this cut-off point may be an issue of timing, although the next Presidential election in Venezuela is not scheduled until 2007 (see When can an incumbent be recalled? above). Requirements for holding a recall vote The legal structure for the recall tool must specify how a group of recall proponents can actually achieve a recall vote. The generally accepted means of doing so is to require proponents to gather a specified number of signatures within a specified period of time. Clearly, the lower the number of signatures required and the longer the period of time allowed collecting them, the more likely it is that recall proponents will be able to achieve a recall vote.
    • 106 Requisition of Number of signatures The number of signatures required in order to hold a recall vote varies. The number of signatures required might be a fixed number (e.g., 500,000 signatures); a proportion of the electorate (e.g., 10% of the number of people on the electoral register); or a proportion of the electorate or number of people who voted for the elected person at the Most recent election (e.g., 15% of the votes cast at the last election). Where, as in a number of US states, provisions for citizen initiative also exist, a higher number of signatures is often required to trigger a recall than is necessary to force a vote on a citizen initiative. Deadline for collecting signatures The number of signatures required to hold a recall vote must usually be collected within a limited time period, in order to prevent recall attempts dragging on indefinitely (potentially for the whole of an incumbent’s term of office). The time allowed to collect the relevant number of signatures generally begins on the date on which a recall initiative is successfully filed with the office responsible for administering the recall process. The time allowed for collecting signatures can be determined in conjunction with the number of signatures required; a requirement for a higher number of signatures might justify a longer period in which to collect signatures. However, when deciding on the timeframe for signature collection, it is also important to consider the impact of the uncertainty that a recall campaign might create, and whether it is productive to design a process that goes on for much longer than, say, four months. The final recall vote
    • 107 Once enough signatures in support of the recall vote have been verified, a recall vote must be held. As the 2004 Presidential recall vote in Venezuela showed, it is important that the verification process is conducted efficiently and transparently. The legal framework governing the recall mechanism must specify the timetable for holding the recall election, and who is to assume responsibility for the process if, for example, the person subject to the recall would normally have some involvement in the election process. In addition, once a recall campaign has achieved the aim of forcing a vote on the recall of an incumbent, the issue of replacing the incumbent if he is recalled becomes immediately important. In some cases, the design of the recall tries to ensure that the recall issue and the issue of a successor are considered separately (by holding two separate votes on the two); in others, the recall vote and the vote for a successor are held on the same ballot. The day of the recall vote held To protect the integrity of the recall process, it must be clear how soon a vote must take place after the requirements have been met. It may sometimes be the case that members of the administration responsible for arranging and managing the recall vote are political colleagues of the person subject to the recall, and it is therefore important that timetables and options for holding the recall vote are clearly specified, in order to avoid accusations of fudging and bias. The legal requirements might require a recall vote to be held within a set period (for example, 60 days) of the date on which the recall measure formally qualified for a vote. Alternatively, the recall vote may have to take place on the date of the next scheduled election, although this could be some time in advance. In practice, a combination of these might be the best approach; for example, a recall vote must be held within 60 days unless another election is already scheduled to take place within the next four months, in which case the recall vote and other election could be held simultaneously. Holding a simultaneous recall vote and vote to elect a successor
    • 108 In some places, for example California, the vote on whether to recall an elected person is combined with the vote on a successor, who will take office only if the incumbent is recalled. If the recall vote is defeated, the vote on a successor is irrelevant and is ignored. However, if the recall vote passes, the candidate who achieves the most support on the second vote is elected as a successor to the person recalled. Whilst there are advantages to holding a simultaneous vote (for example, there are cost savings associated with only running one vote, rather than two), it is important to consider the extent to which combining the votes might confuse voters about the process and prevent voters from focusing solely on the recall issue. Voters might not fully comprehend the implications of the recall vote if it is combined with a ‘normal’ type of election ballot with a list of candidates - especially if the incumbent official is included on the ballot for re-election. A further issue is that combining the recall and successor vote could mean that the vote in favour of (i.e. to retain) an incumbent who is nonetheless successfully recalled is actually higher than the plurality vote in favour of the successor, which could create a legitimacy problem. This scenario might be avoided by using voting systems such as the Alternative Vote or Supplementary Vote which require absolute majorities. However, this would mean that a combined vote would become increasingly complicated for voters. Holding two separate ballots The alternative to holding a simultaneous vote on the recall and successor is to hold the recall vote first. Arguably, this makes the process easier for voters to understand; first, there is a simple yes/no election on whether or not to recall the elected person, there is a second vote on who should replace him if the recall has been successful. Arguments against this design are that holding two separate votes increases the financial and logistical burden of the recall process, and creates a period of uncertainty in the period between the recall of the incumbent and the election of a successor. Restrictions on which Office / officers the mechanism applies to
    • 109 Where a country or state's constitution provides for use of the recall mechanism, relevant legal provisions will need to specify which elected officials the mechanism can be applied to. Only in Venezuela does the recall mechanism apply to a country's elected head of state. However, in most US states, the recall mechanism can be used to recall all elected state officials, from local and county officials up to the office of Governor. Judges may also be the subject of recall campaigns. In some states, some on-elected officials such as administrative officers can also be recalled. Restrictions on application of the recall mechanism In some places that restrictions of recalling officers have been adopted under the recall mechanism, the officers can only be recalled, if it can be demonstrated that they have acted improperly (e.g. the US state of Minnesota, where the grounds for recall of an elected official are serious malfeasance or nonfeasance during the term of office). In others, there are no requirements for officials to have acted improperly or incompetently, and the simple fact of enough signatures being collected is enough to force a recall vote. Number of signatures required for Recall ballot The number of signatures required in order to hold a recall ballot clearly has a significant effect on the likelihood of being able to do so; the fewer the number of signatures required, the more likely it is that a vote on whether an officer should be recalled will take place. At the 2003 California recall, recall proponents were required to gather signatures of 12% of the vote for Governor at the last election in a period of 160 days. Many other US states require 25% of voters to support a recall; California's threshold of 12% is the lowest in the States. Verification of Recall signatures
    • 110 As with the citizen initiative mechanism, the requirement to produce a specified number of signatures in order to hold a ballot creates the need to collect and verify signatures. Signatures are normally only valid if they are collected from individuals who are registered to vote in the jurisdiction of the officer who is the subject of the recall. Verification of signatures is undertaken by the office administering the recall initiative. The importance of the signature collection and the verification process is demonstrated by the high profile Chavez recall initiative in Venezuela, where the National Electoral Council initially ruled that a large number of signatures collected by recall proponents were ineligible. Combining the votes on the recall and a successor One feature of the recall mechanism, which varies in different places, is whether, once a recall petition has collected enough valid signatures, the recall ballot is combined with the vote for a replacement officer, if the recall be successful. In some places, the votes are combined, meaning that voters have to vote on two issues: firstly, whether or not the officer in question, and secondly, who should replace the officer if the recall is successful. In such cases, if the recall vote is defeated, the vote on a successor is irrelevant and is ignored. However, if the recall vote passes, the candidate who achieves the most support on the second vote is elected as a successor to the recalled officer. Alternatively, an initial ballot on whether or not to recall the officer is held, and only if the recall vote is passed is a second vote on a successor held. There are arguments for and against each of these alternatives. One argument against combining the votes is that the combination might confuse voters about the process, and that it prevents voters from focusing solely on the recall issue. Arguably, when voters make a decision about whether to support the recall, they should be able to focus on the issue at hand and the performance of the incumbent, without the distraction of possible successors. On the other hand, combining the two votes leads to cost savings and increases administrative efficiency.
    • 111 A further issue is that combining the recall and successor vote could mean that the vote for (i.e. to retain) an incumbent who is successfully recalled is actually higher than the plurality vote in favour of the successor, which could give a legitimacy problem. This scenario might be avoided by using voting systems such as the Alternative Vote or Supplementary Vote. However, this would mean that a combined vote would become increasingly complicated for voters. The recall in a party based electoral system More generally, there is a question of compatibility of recall with the electoral system. If the electoral system is candidate-based, there is no problem. If however it is party based, should the voters have the right to recall a specific representative nominated by a party? Would there be a difference between representatives chosen by the voters under open list proportional representation? In general, in list systems, does the party or the voters fill the vacancy caused by a successful recall? As The Indian election are basically party based. That right to recall may fall back as the other defeated party may start filing recall memorandum to oust other wining party candidate.
    • 112 CHAPTER XII INDIAN PERSPECTIVE ON THE RECALL The Indian Perspective towards Recall Recall is a mechanism designed to enable voter dissatisfied with an elected representative to remove him/her before completion of stipulated period of office. It is a system wherein voters can in effect de-elect their representatives in the legislature. Through an electoral procedure, this power of removal, constitutionally, is either granted to or reserved by the people, depending on the theory of government and sovereignty in the country in question. The right of an electorate to recall its representatives is a way of ensuring the accountability of the elected legislator towards the people. The recall of the elected representatives to a legislature, Central or State, is considered to be a democratic method by which the citizens are vested the power to remove or in effect de-elect a legislator before the expiry term of office. This power is an important instrument in any democratic set up as it allows the voters to scrutinize the performance of the persons whom they are electing as their representatives. This process of recall is beneficial as it ensures delivery of services and fulfillment of the promises made during an election campaign by a candidate. It becomes the prerogative of the constituent to decide whether a nonperforming representative should be allowed to continue in office for a full term or not, as the government exchequer has to bear the costs of the poor performance, which in fact, is the money of the masses. The right to recall also serves as a check on whether the peoples’ representative is misusing his/her position. The measure has its proponents and opponents as well. For the proponents, the measure acts as a discipline on elected representatives whereas the opponents argue that the recall mechanism completely undermines the representative government by making elected officials afraid to make unpopular but necessary decisions. For the proponents, the measure gives continued opportunity to voters to make democratic decisions about who
    • 113 governs them while the opponents argue that the mechanism could be used irresponsibly by political parties as political weapon against rival incumbents. The origin of the idea of the right of recall is not novel. Indeed the makers of the Constitution had deliberated and acknowledged the absence of a right of recall. However, various State Legislatures (viz. UP, MP etc.) have provisions for the right of recall in the panchayati raj. Preliminary research tends to draw in favour of incorporating such a right. The Courts and the Assembly Debates do not explicitly admit to the requirement of this right but they do incidentally question the absence of it. K. M. Munshi, founder of the educational trust Bhartiya Vidya Bhavan, while speaking in the Constituent Assembly rebuffing the inception of a particular piece of legislation as unconstitutional, drew a pleading that almost to suggest that the absence of a right of recall is a compromise to ensure that the people are not over-empowered. The Planning Commission in a report has commended the right of recall in these panchayats, drawing a direct correlation between this provision and the “enhanced accountability and transparency at the village level”. Even the Supreme Court has acknowledged the academic merit inherent in the right of recall and the efficacy of a device which ensures “direct popular check of the political class” We have given here no right of referendum, no right of recall to the people, and still every fundamental right which has been given has been restricted by something or the other. Late Jayaprakash Narayan had first initiated the demand for right to recall during the Sampoorna Kranti (Total Revolution) movement on the 4th of November, 1974. This was a movement against the Indira Gandhi led Congress Government. This same agitation was followed during the times of the Janata Government in 1977 and the National Front Government in 1989. The fight to achieve the right to recall has mainly been to curb the corruption which has crippled the growth of the Indian democracy since its inception in 1947. In State of Madhya
    • 114 Pradesh v. Ram Singh, the Supreme Court has strongly reprimanded the issue of corruption and has labeled it to be the opposition of democracy. The Indrajit Gupta Committee in 1998 discussed the electoral reforms but was not in favour of the right to recall. The topic of right to recall came up during the debates in the Lok Sabha on the 16th of December 2003 during the discussion on the Constitution Ninety Seventh Amendment Bill in which the then Law and Justice Minister Shri Arun Jaitley accepted that the public demand was to implement the right to recall but said that it will not help in improving the political condition of the country. In 2005 during the short term discussions in the Lok Sabha on the 23rd of December, Mr. Basu Deb Acharia spoke strongly in favour of the right to recall to be granted to the constituents. But Mr. Kapil Sibal did not answer the suggestions of recall. In 2007 during the Commonwealth Parliamentary Conference, Mr. Somnath Chatterjee, the then speaker of the Lok Sabha appeared to be a supporter of the right to recall.The State of Bihar was the latest one to bring in the right to recall in practice. The Nitish Kumar led Government vested the power to remove the elected representatives in urban civic polls directly to the voters in March 2011. Thus, from the development of the right to recall concept in India, we can come to the conclusion that though the public at large has been strongly backing the right to recall, the lack of parliamentary will has prevented this right from seeing the light of day at the state and national levels for the past six decades. But recent trends like the Chattisgarh and Bihar episodes suggest that the right to recall is creeping its way into India and hopefully will become a reality in the near future. In the constitution neither any law to Neither the Indian Constitution nor any of the Central legislations subscribes right to recall in any manner in India. However, in Chattisgarh, Maharasthra and Madhya Pradesh, an attempt has been made to implement the right to recall. Section 47 (recall of president) of the Chhattisgarh Nagar Palika Act, 1961, provides
    • 115 for elections to be held to recall the elected representatives who are unable to perform. On 15th June, 2008, the first recall elections were held in Chattisgarh for the three presidents in Chattisgarh urban bodies. In India the Chhattisgarh recall poll has generated varied many responses curiosity and debate, especially as to whether this form of recall process should also be extended to for members of Parliament (MPs) and members of legislative assemblies (MLAs). Many people feel it is not feasible in the case of conducting recall election of MPs or MLAs as MP’s or MLA’s represent large numbers of the electorate of a particular constituency, and in India we are far from a well institutionalized process for conducting recall. We are also lacking of rules in reference to accountability on the part of elected representatives, and further do not have effective procedural and institutional mechanisms for the realization of good and transparent governance. In India there is hardly any effective or objective assessment tools or monitoring mechanisms to measure accountability of the legislators. To conduct recall polls before that we need to be tested the procedure of recall on the ground and that effective recall tool will give a functional message sitting MPs and MLAs, who do not perform or misuse their official position or office. In that case, the people of the constituency will not have to wait for an electoral sanction for recall, which may otherwise take long to get or may uncertain too. The work of MPs and MLAs – whether it is in the legislative work in the houses or in the constituencies, it should be consistently monitored through various monitoring tools. The other most high lighting and basic points one may ask first necessary question to legislators that who controls them, what are the ways where the elected representatives be made more accountable to the electorate in democratic systems. Whether accountability can be affected by regulatory or supervisory methods or through regular elections, complaint procedures, recall processes, etc. In a democracy, if one can be directly elected by the people then what is a mechanism to de-elect the unworthy or non- performer before the end of the term of non performer office. That by bringing recall
    • 116 process with a detailed or well oiled process will certainly restores the public trust in governance institutions which is a critical necessity in today’s time. Today in India, the legislators’ role in the decision making process is becoming more less than early sixties, which is frequently reinforced by their lack of knowledge, interest, competence, training, discipline and decorum. There have been several long-standing reform issues required to be implemented to revitalize the parliamentary institutions, but unfortunately, these reform issues has less attraction for nay legislature. In Chhattisgarh, there is a two-year moratorium on the use of the recall provision under the act. The urban municipal body should complete at least two years of its existence before initiating such a recall process against the presidents. Once the moratorium period ends, the recall process can start, in this particular case, the process of recall began in January 2007 as a response to reported underperformance. Two of the three presidents recalled are from the Congress, the third was an independent candidate. Chhattisgarh is currently ruled by the Bharatiya Janata Party (BJP). As per Section 47, three quarters of the councillors initiated the process by writing to the district collector stating that they had lost confidence in the presidents and requesting their removal from office. After considering the report of the district collector, the state government recommended that the election commission conduct an election for presidential recall. The report shows that the recent Chhattisgarh recall polls have sent overt messages to the elected representatives about the risks of ignoring the development concerns of their electorates. However, reading between the lines of the Chhattisgarh process of recall polls suggests that there is currently scope for mishandling the provisions and thus the entire process of recall needs to be streamlined. The ousted independent president is reported to have stated that both the BJP and Congress councilors formed an alliance to initiate the process of recall, and there have been allegations from the ousted presidents of the local bodies about misuse of legitimate provisions of the recall. The ground responses also seemed to feature reports of allegations of political bias, supposedly influencing the
    • 117 decisions of the state administration which recommended that the election commission perform recall polls. As it seems that more local elected representatives in Chhattisgarh are being placed under scrutiny and therefore likely to face recall polls, the entire process of this new experiment needs to be looked in for further analysis. Till date ultimately, the recall process is more prone to misuse. We should not allow overuse and mishandling the provisions of the recall mechanisms should be restricted, because of the extensive costs as well as derailment other functioning issues. If recall process used diligently then it is a democratic tool, which can discipline errant legislators and make them answerable to the electorate, the recall could be a democratic disincentive for ill performance and misuse of office. These allegations may not be superficial or negligible and the Chhattisgarh recall provisions need to be strengthened without any loopholes, with non-complicated rather than stringent measures, for the hope of achieving a vibrant democracy. The elected chairman of a municipal body was held in Mangrol Municipality area of Baran district. In a first ever right to recall vote held in Rajasthan, Ashok Jain, chairman of a municipal body, came out victorious. In accordance to the Rajasthan Municipal Act 2009 that furnishes the voter with the 'Right to recall', people of Mangrol municipality voted in the election on Wednesday. Ashok Jain wins "Right to Recall" vote in Mangrol Municipal corporation in Rajasthan. The motion for right to recall against the Chairman Ashok Jain, was passed in January for his alleged under performance. In November 2009, Jain, who had contested as an independent candidate, was elected as the chairman of Mangrol Municipality Board. Ashok Jain won by 3,488 votes and retained the post of Mangrol Muncipal Chairman. Jain, who recently joined Arvind Kejriwal's Aam Aadmi Party said "I am an honest man and due to nexus of Congress and BJP corporators I have been dragged into the poll to Right to Recall." The result would decide whether ‘I am wrong or right,’ he said.
    • 118 In India the right to recall elected representative appeared first time in the government agendas of the Janta Government in 1977 and again during the National Front government in 1989. The right to recall the elected representative has remained notional. The process of formulation any legislation on the subject has been derailed by the political parties. It is well established fact that political leaders are reluctant to enact any legislation which depicts that they are hesitant to maturing into participatory democracy. Right to Recall of elected representatives was put to test in three municipalities of Gunderdehi and Nawagarh in Durg district and Rajpur in Sarguja district of Chhattisgarh on June 17, 2008. Chhattisgarh has legislative provisions in acts of 1956, 1961 and 1993 that provide for Recall of certain elected peoples representatives of local bodies – both in rural and urban bodies like Gram Panchayats, Municipal Councils and Municipal Corporations. However, there is a two-year moratorium on using the Recall provision in the sense that it cannot be used until the civic body completes two years of being duly constituted. Here too, the three recalled municipal council presidents did allege misuse of the provision to settle political scores Probably first time in Indian history the process of recall of Presidents of Rajpur, Gunderdehi and Nawagrah Nagar Plalika in the State of Chattisgrah commenced in Jan 2007 and concluded in Jun 2007, where Ms Bharti Sonkar, woman president of Gunderdehi Nagar Panchayat, getting 1389 votes in favour and 1977 votes against, Sitaram of Nawagarh Nagar Panchayat, getting 865 votes in favour and 1146 votes against and another woman president Khoren Khalco of Rajpur Nagar Panchayat, were voted out from their offices because they did not come up to the expectation of the general public. The Madhya Pradesh Panchayati Raj Act of 1993 also provides for the right to recall the non-performing elected representatives after the expiry of two and half years of office. It has been acknowledged by the planning commission of India that the weapon of ‘Right to Recall’ of elected representatives at the Gram Panchayat level has enhanced the accountability and transparency at the village level3. State of Maharastra has also
    • 119 provides certain provisions for local level bodies. The right has been exercised by the people on numerous occasions in these states. It is unfortunate, India being the largest democracy of the world, where majority of the Indian legislators have not appreciated the concept at all. Pros and Cons of right to recall in Indian Context Recall has been a matter of debate all over the World Recall is a process designed to enable voters dissatisfied with an elected official to replace him before the expiry of his term of office. Recall has been a matter of debate all over the World. The ‘recall’ device has also the potential to encourage the citizens to keep themselves abreast of contemporary public issues in order to monitor the conduct of their elected representatives. The recall maintain that it provides a way for citizens to retain control over elected officials who are not representing the best interests of their constituents, or who are unresponsive or incompetent. This view holds that an elected representative is an agent, a servant and not a master. The Lok Sabha Speaker Mr.Somnath Chatterjee, while delivering the ‘EMS Namboodiripad Memorial Lecture on “democratic consolidation: the Indian experience” in Thiruvanthapuram recommended the introduction of right to call of elected representatives in India. He said "It is time for us to look for devices such as ‘recall’ to ensure accountability of the members of democratic institutions at all levels, before the common man gets totally disillusioned with the prevailing system. The performance and the functioning of the parliament as well as its members would improve if people who elected their representatives to voice their grievances watched the parliamentary proceedings regularly. But, it is not such an easy thing to be resolved in our parliamentary democracy as all the political parties have to arrive at a consensus, which may be a difficult task,"52 It is also argued that it can lead to an excess of democracy, where the threat of a recall election lessens the independence of elected officials. It undermines the principle of 52 5 th June 2008 Indian Express New Delhi
    • 120 electing good officials and giving them a chance to govern until the next election, and that it can lead to abuses by well-financed special interest groups. Country such as India is not in a position to hold election so frequently.
    • 121 CHAPTER XIII A CONCLUSION Is there real need for a mechanism on the right to Reject and Recall The irony is a that India being the largest democracy still isn’t the most effective and has many intra contradictions with in its fold, due to clumsiness of the electoral process in India that it has not been able to keep out criminal, anti-social and undesirable elements from election participation process, due to lack of clear vision on the part of the successive governments in reigning or restricting the participation of criminal elements in political arena has polluted the electoral and parliamentary processes to the large extent rather further irreversible extent. It can be corrected only by putting voters in control by giving “Right of Reject” and ‘Right to recall, in near future, it will become ultimate tool to establish an excellent accountability system with in Indian Political system. That keeping in view of overall scenario prevailing in the country at present, the provision of Reject and Recall is paramount to sustain further erosion of the democratic values with in democratic institutions, as it has been largely observed for last many years that elected representative at all levels carry an impression that they have immunity and have protection under all laws of the country and majority of representative acts solely for self gains not for the welfare of the citizens with whose votes they have been elected. This is one of the main causes for political decay in India as well as brought ineptness in the electoral process has given impetus for participation of criminal, anti-social and undesirable elements in electoral fray and after getting elected, then even dominating the political scene and polluting the electoral and parliamentary processes.
    • 122 The Apex Court in a case53 observed that, “Corruption in a civilized society is like cancer, which if not detected in time is sure to malignise the polity of the country leading to disastrous consequences. It is termed as a plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti-people, but also aimed and targeted at them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic political system in an otherwise healthy, wealthy, effective and vibrating society" Mr. Koda, the former Chief Minister of Jharkhand, is alleged to have looted Rs 4,000 crore from the state. The Reddy brothers, YSR’s family, are just the latest additions. They are the tip of the iceberg. It has been observed that all of them get away with the loot, and continue to be in positions of influence. There is not a single politician who has been put behind bars for corruption. Corruption is a cancer that is not restricted to any particular political party which has been infecting the whole system and an honest politician has become an oxymoron. That due to non democratic functioning of political parties in India has allowed participation of unwanted social elements to reach to top pedestal, dominate and command political system and even after passage of more then sixty years even after attaining educational awareness, the people at large still vote for the party and its symbols, therefore a provision for recall becomes necessary because, as of now, our elected representative at all levels seem to be under the impression that they have immunity from all laws of the country and the main objective of a large majority of them seems to be to recover the expenses of the previous election and to collect funds for the next election. 53 State of Madhya Pradesh & Ors. v. Shri Ram Singh; AIR 2000, SC 870
    • 123 If we accept above analogy, then we need to set the alarm bells ringing for the government to at least bring this issue in to fore and till then no one really knows whether the Right to Recall or Reject is actually going to be implemented by the government. It is a known fact that most elected representatives in India are elected by minority votes, as majority of the people do not vote or the other majority being against them as their votes splintered and goes in smaller variations to other contesting candidates. That according to some rough estimates, on an average, a candidate wins by three crore votes out of a thirteen to fourteen crore strong constituency. Thus, at the very outset each of the elected representatives does not have majority votes not in his favour. Before getting fully in to Right to reject and Recall, we would need to developed, evolve, a comprehensive evaluation system which is objective and easy to understandable to the masses. The evolvement process would not end there, we need to educate people on the issue, its pros and cons and further the results of anti-anti-incumbency votes or signatures would need to be audited by an independent authority under election commission or some newly created agency, which would need to be formed for the purpose. For example, if ten lakh people sign against the incumbent in a constituency, then who will verify and carry out audit of the signatures? Who will manage this process of recall? What if the incumbent challenges this in a court of law? It is most likely that the case would hang for years then, would it not create instability in the system? It would be very easy for the defeated candidates to garner support against the winning candidate from day one. Also, it is a fact that no one can satisfy everybody, no matter how good that person is. So, in the absence of a proper evaluation system and with the levels of ignorance amongst the masses about the government’s policies and procedures, there are high chances of many people taking decisions based on perception and ignorance as against reality and informed decision-making. There is a rationale for having a five-year term plan in our Constitution. It gives the incumbent enough time to implement his schemes. If this term is reduced, then the incumbent’s attention would be divided and he would end up focusing more on the
    • 124 impending elections. Also, the short time period would become a convenient excuse for the incumbent for his schemes not getting implemented. Moreover, if this Right to Recall is implemented, then most politicians would end up announcing populist schemes in the fear of getting vetoed out. It is in the interest of the nation to eliminate those incompetent, inefficient and dishonest legislators, who once elected by hook or by crook, continue to bleed the state exchequer for the fixed term. Current conditions in India where even the peasantry is articulating need for new mechanisms for empowerment demands to have laws enshrining the right to recall must be viewed as important ingredients of the fight for renewal of the polity. In my opinion, there should be a right to recall legislators and other elected officials including members of Municipal Committees/Councils/Corporations in the Indian Constitution also. A committee should be set up by the Government to study the Constitutions of the 18 States of the United States of America where the recall procedure is in existence and come up with solid recommendations regarding recall of the legislators and other elected officials. Actually, I am for reframing of the Indian Constitution on the pattern of United States of America so that we could have elected Governors, Police Officers, Judges, Court Officers and Audit officers etc. but if that demand is not feasible, at least we can have recall of legislators provision so that the legislators do their duties and do not superimpose themselves on their electorates. This is what JP also demanded when he led the agitation against the misrule of Mrs. Indira Gandhi. This electoral device maybe moved whenever the electorate is dissatisfied with the performance of the elected official. Those who wish to remove an official need to raise a petition with the signatures of a percentage of the number of people who voted for that official in the previous election. Signature requirements are based on a formula, which varies with each state. Sometimes, it is also based on the number of eligible voters or other variants. Once the required percentage has been attained, a special election is held.
    • 125 If the majority of those who participate want the official removed, then this happens. Someone voted in through special elections or through subsequent elections replaces the incumbent official. Occasionally, the second half of the form during the recall elections has provision to choose a replacement. The recall provision in a way delineates the fundamental duty of an elected official - being answerable to the electorate that has voted the person to power. It, however, is different from the other provisions like impeachment. Recall is a political device while impeachment is a legal procedure. A referendum maybe conducted for the initiation of a recall procedure, which in effect would be legally binding. As far as the right to reject the contesting candidates is concerned, the proposal has been mooted by the Election Commission of India as well as the Law Commission of India. The issue is also pending before the Supreme Court in a petition filed by the People’s Union of Civil Liberties in 2001. The core committee on Electoral Reforms (Ministry of Law and Justice, Govt. of India, 2010 has made a clear recommendation in view of the criminalisation of politics, widespread corruption in the system and use of violence, voter intimidation resulting in no desirable candidates within those contesting election in a particular constituency. The proposal is to provide a negative or neutral voting option. This allows voters to reject all of the candidates on the ballot by selection of a "none of the above" option. In such a system there could be a provision to nullify the election results if a certain percentage of the vote is negative or neutral. The right to reject will be a hassle free clear-cut and less costly arm of electoral reform in comparison to right to recall. This right to reject could be resorted even to the extent even if there is single contesting candidate in a particular constituency and after implementation of right to reject under none of the above, there would be no unopposed election in any manner as even a single candidate has to get minimum votes from the eople to get elected in the election and there would be no situation like "elected unopposed" .
    • 126 Though arguments in support of Right to Reject may be less in number but they outweigh the other side. Now-a-days, candidates with serious criminal background are imposed upon the public by political parties. This gives us no choice but to exercise our very limited option that is to choose an incompetent/corrupt candidate or not to vote at all. In spite of all the efforts of the Election Commission, the election scenario continues to be dire. In such a situation introduction of right to reject may prove to be a breather for the masses. The issue of introduction of Right to Reject in J&K and some North-Eastern States must be dealt with very tactfully by the Election Commission. It’s up to the Election Commission and the Government now to weigh the Pros and Cons for Right to Reject and decide whether to introduce it or not. But considering the effort of various NGO’s and other eminent personalities lobbying for it, we may hope that we will be granted with the “None of the above” option on the voting machine soon. For starters, an MP or MLA should be educated and should be above sectarian interests, honest and accessible. Undeniably, these would go a long way in reducing corruption. Concluding in the words of The Former Lok Sabha Speaker Mr. Somnath Chatterjee at Thiruvanthapuram where he recommended the introduction of right to call of elected representatives in India. He said “It is time for us to look for devices such as ‘recall’ to ensure accountability of the members of democratic institutions at all levels, before the common man gets totally disillusioned with the prevailing system. The performance and the functioning of the parliament as well as its members would improve if people who elected their representatives to voice their grievances watched the parliamentary proceedings regularly. But, it is not such an easy thing to be resolved in our parliamentary democracy as all the political parties have to arrive at a consensus, which may be a difficult task.” In summing up, the simple question remains core to the debate over electoral reforms. It is about expectations of the people from the public representatives and people desire for bringing a qualitative change, shift from the present rot to a better future where the representative work only for the betterment of its citizens and not otherwise Whereby,
    • 127 our “netagan” should not be a fait accompli for the electorate and they must be made accountable to its electorate. Undoubtedly the right to reject and recall idea will keep the threat dangling over our leaders head that if they don’t deliver their promises or manifesto, they may lose their seat of ‘power’. And the time has come that our leaders should now realize that they cannot take the voters for granted anymore and need to be clean in their conduct. The time has come to make the “MANGO PEOPLE” the true masters of their destiny.