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

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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

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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.

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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

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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 12The 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 28case, 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

32The 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.

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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.

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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.

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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

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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

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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

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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

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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.

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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.

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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.

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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

35Fund, 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.37Overall, 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.

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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.

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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” –

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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.

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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

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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)

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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.

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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

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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:

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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

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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

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‘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.

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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

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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:

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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.

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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

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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.

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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.

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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

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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

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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,

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• 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

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the incumbent and, in the Philippines; an elected representative can only be subject to

recall due.

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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

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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

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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

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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.

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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

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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

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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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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.

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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

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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

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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.

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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.

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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

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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

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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.

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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" .

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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,

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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.