The Tribune, Chandigarh, India

Towards an improved democratic order
Radical electoral reforms provide the answer
by R. Venkataraman

THERE has been widespread discussion on electoral reforms and the Law Commission has submitted a very valuable report on the subject. But there is no consensus so far on many issues. I shall, therefore, put forth my suggestions to stimulate a debate.

In early times there were city-states in Greece and Rome where citizens directly participated in decision-making. They approved or disapproved of administrative proposals. With the advent of larger states, direct democracy became neither feasible nor practicable, and governance through representatives chosen by the people came into vogue. Thus elections became the bedrock of democracy. A representative elected by nefarious methods like booth-capturing, violence, intimidation, bribery or corruption can hardly be called a true representative of the people notwithstanding his polling a striking majority of votes.

Dictators have always been returned with an overwhelming majority of fake votes until they were thrown out by popular agitations.

Likewise, an electoral system, which enables a person getting a minority of the votes cast to be elected as a representative of the constituency, cannot be accepted as a democratic process. Nor can a House constituted by a minority of the votes polled in a general election be called representative of the country.

For instance, in a direct election through territorial constituencies if there are four candidates polling 35%, 30%, 20% and 15% of the votes cast, the candidate with 35% votes is declared elected even though 65% people have not voted for him. Nor can a Parliament constituted in the above manner be called truly democratic.

As an analysis of the Lok Sabha elections from 1952 onwards shows that at no time did our Lok Sabha or the Union Government represent the majority of the votes cast in a general election. In the election to the first Lok Sabha the Congress party secured 364 seats with 44.99% of the votes cast. When Rajiv Gandhi secured a massive 415 seats in the Lok Sabha in 1984, the Congress polled 48.1% of the votes cast. When the Janata Party won 297 seats in the Lok Sabha in 1977, it polled 43% of the votes polled.

Thus the nation has been ruled during the entire period of 50 years since the inauguration of the Republic by a government which secured a minority of votes cast. Such an aberration does not occur in a two-party system where one or the other party necessarily wins a majority.

The German model

The Law Commission has fully taken note of the weakness in the direct election system through territorial constituencies in a multi-party system.

To remedy the hiatus between the votes polled and the seats secured, the commission has suggested the adoption of the German electoral system which provides for 50 per cent seats to be filled by territorial constituencies and the other half by proportional representation according to the votes polled in the general election. The commission has also suggested that the Lok Sabha should be enlarged by 25% of its present strength, and that 25% be filled by proportional representation according to votes polled by the parties. Apart from the scheme being too complicated for our electorate I am not sure that 25% of the seats filled by proportional representation will correct the distortion caused by 75% of the seats elected on the principle of first past the post. Secondly, a person chosen from the list by proportional representation may be undesirable, criminal, or corrupt. The citizen has no right or opportunity to vote him down.

The Lok Sabha is the custodian of the national finances and it is the House that has power to appoint or dismiss a government. The Lok Sabha members are answerable to the electorate. To induct into the Lower House a member who has no constituency to face and no direct obligations to the people is to dilute the primacy of the Lower House recognised in all democracies in the world. I am not sure whether this rule in Germany is part of the constitution drafted by the occupying powers or a later amendment. I wonder if there is any other democracy which has indirectly elected members in the Lower House.

As part of the reform, the Law Commission has suggested the adoption of the rule in the German constitution that if a party secures less than 5% of the votes cast or does not win three seats in the territorial constituency in a general election, the said votes shall be transferred to other parties which are qualified and distributed in proportion to the votes secured by them. I paused and tried to imagine the situation and the consequences. I am a radical and got elected to a seat from a constituency. My party did not secure 5% of the votes cast. So my vote was pooled with others and distributed to the conservative party in accordance with the proportion of votes it got. The result: a vote cast in favour of a radical manifesto goes to strengthen an opponent in political ideology! How can a radical’s vote go to strengthen the conservative party?

A vote is the symbol of the political affinity of the citizen. It is not a chattel to be transferred with or without his consent. In a single transferable vote, the voter expresses his next preference. Whereas in the scheme envisaged the votes of one party are transferred to other parties without its knowledge or consent.

Another suggestion of the Law Commission is that if a party does not secure 5% of the votes polled or win three seats in the territorial constituency system then the member of that party elected in a territorial constituency will forfeit his seat and it will be taken over by the candidate who polled the next largest number of votes. This provision appears neither theoretically sound nor practically wise. To deprive an elected member of his seat except on a judicial finding of commission of election offences is an affront to the constituency and the electorate. As one who had faced the electorate several times, I feel that the suggestion would receive no support.

The French practice

Another suggestion of the Law Commission is that non-party candidates should be debarred from contesting elections. I am afraid it will be violative of the fundamental rights of the citizens. In any event, it will have absolutely no support from any political party or the people, I am not unaware of frivolous candidates cluttering up the ballot paper and causing confusion among the voters. I had earlier suggested that in order to meet the situation it may be provided that the minimum votes for saving the deposit should be raised to 20% of the votes polled, and the candidate who forfeits his deposit in an election to a legislature be debarred from seeking election to any statutory body from the panchayat to the position of the President for a period of six years.

The elaborate recommendations of the Law Commission based on the German model appear to me to be unnecessary. For over a decade I have been suggesting that in order to ensure that the elected member represents the majority in a constituency we may adopt the system of a second vote. In France, a National Assembly candidate who secures 50 plus per cent of votes polled in the constituency will be declared elected immediately. If no candidate gets a majority of the votes cast there is a “run off” (re-poll) within a week between the top two candidates and the winner is declared elected. This system ensures that in all constituencies of the National Assembly each member secures a majority and thereby the House represents the majority of the votes polled. But in India, as I explained earlier, the Lok Sabha has been constituted by a minority of the votes cast for the last 50 years.

Objections have been raised to the proposal for a second vote on the following grounds:

a) that the second vote will delay the constitution of Parliament.

b) That it will be almost like a second general election as none of the candidates will be elected on the first count.

c) That it will involve enormous expenditure.

I am of the view that as the second vote is like a repoll in certain constituencies at the same polling booths with the same original setup with no revision of electoral roles and no fresh nominations, it should not cause a delay of more than a week. Secondly, though initially — till the candidates understand the system in a large number of constituencies there may be a second vote — this will correct itself as the candidates will soon realise that they can no longer get elected with minority votes. And if, as I had suggested elsewhere, severe penalties like debarring those who forfeit deposits from contesting for any statutory office for six years are adopted, frivolous candidates will gradually disappear from the scene. Thirdly, I agree that the second vote will cause extra-expenditure but it is worth spending in order to ensure that Parliament and the government represent the majority of the votes cast in the election. After all, there can be no bargain between democracy and a cheaper form of government.

The Westminster type of parliamentary democracy, which has worked so splendidly in Australia, Canada, New Zealand and Britain, had steadfastly maintained a bipolar parliament for centuries. No splits had occurred in their parties as in India. Every dissident or group of dissidents in India invariably splits the party, and political parties mushroom almost every day. If, for instance, the Conservative Party and the Labour Party each split into two, Britain will enact the same political drama that India is displaying for the amusement of the world. Ivor Jennings, an expert on constitutional law, has hinted at such a contingency in his book, “Cabinet Government”, 3rd edition. He says, “If major parties split up (in Britain) the whole balance of the constitution alters; and then possibly the Queen’s prerogative becomes important”.

The foregoing analysis leads to the conclusion that if the present Constitution has to function satisfactorily, then a two-party system has to be adopted either by statute or by amendment of the Constitution.

I shall proceed to unfold the modus operandi for achieving a bipolar parliament for India. It may be prescribed statutorily that all political parties which secure less than 10% of the votes cast in the next general election to the Lok Sabha shall be derecognised by the Election Commission. Thereafter, the party which gets the lowest number of votes in every succeeding general election shall be derecognised until the number of recognised parties is reduced to two.

Thus a two-party system can be achieved in the course of two or three general elections. This scheme is not violative of the fundamental freedom of association, as the right of the formation of political parties or groups is not taken away from the citizen. Only the right to parties to be recognised as a political party for electoral purposes is regulated. Recognised political parties have certain privileges, the most important one being the right to a common symbol for the candidates contesting elections. This common symbol will be denied to unrecognised political parties under the scheme. I do not think that an amendment to the Constitution is necessary for implementing the scheme. Even if it is found necessary, it has to be resorted to in the paramount interest of the nation.

Even if a two-party system is ushered in, I am not sure that it will ensure the stability of the government. It is still possible for a chunk of ruling party members to defeat the government by defecting to the Opposition. It is a routine feature of our polity. This may be deterred by a more stringent anti-defection law disqualifying the defector, whether, one or one-third of the party from contesting election to any statutory body — from panchayats and cooperative societies to the President of India for a period of six years.

Another suggestion I would like to make is to make voting compulsory for the state and Union Lower Houses. At first sight it may look a formidable and forbidding task. But if we look at the issue from the grassroot level, it will prove that the scheme is eminently feasible. For instance most of the panchayats are small ones with less than a population of 1000 and the number of voters, excluding minors, may be around 500. Is it such a formidable task for the local authority to ensure that these 500 people attend the polls? Instead of candidates distributing slips containing the name and the number of a voter and the polling booth, the panchayat itself may undertake the task and also ensure the voter exercises his franchise. The advantage of compulsory voting is that the voter realises that he is not conferring a favour to the candidate but exercises his duty as a citizen. I advocated compulsory voting during the general debate on the Peoples Representation Bill in the Provisional Parliament in 1951. Dr Ambedkar, who was piloting the Bill, while expressing sympathy for the idea, felt it might be a great burden. True, it might have been difficult in 1952 when we were introducing adult franchise for the first time, but it should be no problem after 50 years of Independence. Compulsory voting has been in vogue in Australia for several years.

One immediate measure to reduce kaleidoscopic changes in the government, which does not require any constitutional amendment or other elaborate changes, is to provide in the Rules of Procedure of the Lok Sabha that a motion of no confidence against the Ministry should mention the name the Prime Minister to succeed the present incumbent if the motion is carried. This system, the constructive vote, prevails in Germany where there is a multi-party system. The motion for the removal of the Chancellor should name the successor in the motion itself so that if it is carried there will be another Chancellor already chosen by the House. The Constitution of India prescribes that the Council of Ministers shall be collectively responsible to the House of the People. It is the Rules of Procedure which define the mode of removal of the Ministry.

Democracy is a form of government by the people themselves through their chosen representatives. The choice is made periodically by holding elections. Unless the elections are free, fair and equitable the democratic system will collapse. This was fully realised by the country and the Representation of the People Act of 1950 and 1951 sought to provide for free and fair elections. During the last 50 years, however, despicable developments have taken roots in the nation which have rendered elections almost a farce. Illegal and immoral steps are resorted to for winning elections. Money power, muscle power, corrupt and unfair practices are increasingly resorted to with impunity. Several other malpractices and improprieties of political parties in the collection and use of funds, bribery and misuse of authority plague our system. The cry for comprehensive electoral reforms has already reached its crescendo, threatening to disrupt our already anaemic democratic structure. Here are major electoral reforms that need to be adopted without delay if we want to salvage the parliamentary form of government for the nation.

A representative government presupposes the existence of political parties. One of the conventions of the British Constitution is that the Crown must call the leader of the majority party to form the government. Yet there was no law in the United Kingdom recognising the political party until the passing of the Ministers of the Cabinet Act, 1937, which defined the Leader of the Opposition and granted him a salary. The Constitution of India recognised political parties in the Anti-Defection Amendment to the Constitution. On the other hand, Article 21 of the Basic Law of the Federal Republic of Germany (1949), which became the constitution of Germany on reunification of the Federal Republic and the German Democratic Republic, provided as follows:

“Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organisation must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds.

“Details shall be regulated by federal laws.”

On the same lines a piece of legislation called the Political Parties Registration and Regulation Act may be passed. The act, inter alia, may provide the following:

(1) That every political party shall be open to all citizens of India without distinction of caste, creed, race, religion or sex and shall have a democratic constitution.

(2) That the said constitution shall provide for a register of members.

(3) That the executive of the party shall be elected at least once in two years.

(4) That disciplinary action against any member shall be taken in accordance with the rules approved by the general body of the party; that there shall be a right of appeal to an internal body against such a decision.

(5) That there shall be at least one general body meeting of the members or of delegates elected according to the prescribed procedure every year.

(6) That true and accurate accounts of receipts and disbursement shall be maintained and the same shall be audited every year by a chartered accountant, and filed with the Election Commission within the date to be prescribed. Such audited statements shall be public documents and be open for inspection and for obtaining copies on the payment of prescribed costs.

(7) That political parties shall enforce discipline and decorum in the legislature and the misbehaving members shall be placed outside the whip (expelled from the party). A political party which fails to do so may be derecognised by the presiding officer of the House apart from any other action taken against the member himself.

(8) That political parties shall ensure that their members observe highest probity and integrity in the discharge of their duties as members of the legislature. Members guilty of misconduct shall be debarred from being members of any political party apart from any other action or actions taken according to law.

In 1978, the Income Tax Act was amended by inserting Section 13A which provides that any income of a political party, inter alia, by way of voluntary contributions from any person shall not be included in the total income of the previous year of such a political party, provided that

(a) such a political party keeps and maintains such books of account and other documents as would enable the assessing officer to properly deduce its income there from;

(b) in respect of such voluntary contributions in excess of Rs 10,000 such political party keeps and maintains a record of these contributions and the name and address of the person who made such contribution; and

(c) the accounts of such political party are audited by an accountant as defined in the explanation below Sub-Section (2) of Section 28.”

It is surprising that this section had remained a dead letter and the Income Tax Department of successive governments has been remiss in enforcing this revenue measure.

That even the Comptroller and Auditor-General of India has not commented on the lapse of the Income Tax Department is surprising beyond measure.

In a public interest litigation filed by Common Cause (a registered society) against the Union of India (reported in 1996), the Supreme Court held:

“1. That the political parties are under a statutory obligation to file a return of income in respect of each assessment year in accordance with the provisions of the Income Tax Act.

“The political parties referred to by us in the judgement — who have not been filing returns of income for several years have prima facie violated the statutory provisions of the Income Tax Act as indicated by us in the judgement.

“2. That the income tax authorities have been wholly remiss in the performance of their statutory duties under law. The said authorities have for a long period failed to take appropriate action against defaulter political parties”.

Of what use is the law if it is not enforced.

Poll expenditure

It is notorious that the ceilings on election expenditure fixed by law to the state and central legislatures are more honoured in breach than in observance. Today election expenses for a parliamentary constituency soar above a crore of rupees and for the state assembly half that amount. This is clearly a nefarious method of depriving an honest and desirable candidate from entering the legislature. With an economy which is financed predominantly by money circulating outside the banking system (black money) the statutory controls over ceilings on election expenditures have become a mockery. Lavish expenditures on cut-outs, decorations, attractive posters, processions with music and drum entertainments like dance or other shows preceding or following election meetings, supply of eatables and drinks directly and indirectly through friends and relatives, bribery of voters with money or things in kind are but a few of the items of extravagant election expenditure.

In a parliamentary democracy the electorate has to choose a party whose policy and programme it approves. Therefore any expenditure by a candidate on anything other than propaganda for its policies and programmes may be declared a corrupt practice and the election of a candidate who engages himself in anything else except the permitted activities shall be set aside.

The valid expenditure for an election shall be the following only:

(1) Holding meetings.

(2) Printing manifestos or brochures.

(3) Meeting people collectively or individually.

(4) Employing volunteers and workers for the distribution of literature, voting slips containing the name, number, and the polling booth, etc.

If this condition is strictly enforced the astronomical expenditure can be cut down drastically and the honest candidate may have a chance.

Seeking votes with false promises of free food, free clothing, etc, or by fabulous advertisements, music, dance and shows really amounts to cheating the electorate and stealing their precious right.

At present the expenditure by a political party is not included in the total election expenditure of the candidate. The Supreme Court in the case of Gupta vs Chawla held that the expenses incurred by the political party in favour of a candidate should be treated as expenses authorised by the candidate and be subject to the ceiling laws.

This decision sought to ensure that candidates and parties are placed on an equal footing and also sought to prevent big money from having an advantage in elections. But Parliament promptly amended the Representation of People Act and excluded expenditure of political parties from the expenditure ceiling of the candidates. In order to ensure a measure of equity among the contesting candidates and also to prevent extravagant expenditure on elections, the amendment to the Representation of People Act needs to be repealed.

Corporate funding of political parties shall be regulated by Company Law. Such funding shall be separately approved by the shareholders at the annual general meeting. Besides, no funds shall be provided to any political party which has been de-recognised by the Election Commission.

State funding

For a long time there has been a clamour for state funding of elections and several committees have gone into it. That a poor and deserving candidate should be enabled to win a seat is undoubtedly a laudable objective. But the ground reality in our country is that such funding will only serve to augment the resources of the affluent candidates. The benefit to deserving candidates will not be commensurate with the heavy burden on the exchequer. Providing assistance like free postal facility or providing accessories like paper for poster or for voting slips etc, is too small to make a dent in the colossal election expenditure and will serve no purpose. Only it will add to the administrative costs and to the already proliferating functions of the government.

With a view to preventing criminals and bad characters from entering the legislatures, the Law Commission had recommended that those against whom charges had been framed may be debarred from contesting. Instead, statutory provision may be made for filing an affidavit along with the nomination disclosing earlier convictions and the current cases in which charges have been framed so that the voters may know the antecedents of the candidate.

It may also be made obligatory for every candidate to disclose his and his dependants’ assets and liabilities in the affidavit mentioned earlier. These statements may help in proving possession of assets disproportionate to their known sources of income.

In order to prevent mushroom parties and frivolous candidates, the Law Commission has advised banning of independent candidates altogether. I am afraid the remedy is worse than the disease. Besides it is a contravention of the fundamental rights of a citizen, unless otherwise disqualified to stand for election to the legislature. On the other hand, I would suggest that the minimum votes that a candidate should poll to save his deposit should be raised to 20% of the votes polled and that a candidate who forfeits his deposit shall be debarred from standing for election to any statutory body, from the Panchayat to the President of India, for a period of six years. Likewise a defector who forfeits his seat shall be similarly debarred from any election to a statutory body from Panchayat to the President of India for a period of six years.

Another matter of grave concern to a healthy democracy is the use of muscle power to distort the elections. Booth capturing, ballot box seizing, intimidation of voters, prevention of voters from going to polling booths etc., should not be treated as ordinary offences but as offences against society and deterrent penalties should be imposed on such offenders. Preventive arrests of such elements should be liberally resorted to to prevent such abuse and a close watch should be kept on such elements right from the start of the election process and not merely on the polling day.

Defection from a party is an affront to the electorate that had returned him. Whether one member or one-third of the members desert the party, it is defection. Defection law shall, therefore, be amended to make defection from the party punishable with deprivation of the membership of the House. It should be further provided that a person who has been found guilty of defection shall not be eligible for admission to any political party including the original party to which he belonged. Similarly, action shall be taken for other acts like refusal to abide by the whip and the directions of the party.

In order to facilitate the polling, electronic voting system and the issue of multi-purpose identity cards may be expedited. The present use of ballot papers is costly and cumbersome.

All the above functions and those ancillary to them should vest in the Election Commission.

Election Commission

The Election Commission shall be an independent body with constitutional status and authority and means to implement its decisions. In order to ensure the independence of the Election Commission, it should be appointed by the President on the recommendation of a panel nominated by the Union Government of three members consisting of the Chief Justice of India, a senior retired civil servant and an elder statesman with experience of facing elections. The unanimous decision of the panel shall be accepted by the President. In other cases, the President, without the advice of the Council of Ministers, shall have the power to appoint the Election Commission. The Election Commission shall have a fixed term and shall not be removable except by the same process as is applicable to the removal of a Judge of the Supreme Court.

Members of the Election Commission shall not be eligible either for extension or reappointment or to any place, position or office in the Union or State government, their agencies or the legislatures.

The Election Commission shall have exclusive jurisdiction over registration, regulation, recognition, derecognition, disciplinary action, and such other matters entrusted to it in respect of all political parties, the conduct of all stages of elections etc.

The decisions of the Election Commission shall be subject to revision by the High Court or the Supreme Court on the grounds only that the Commission

a) had failed to exercise jurisdiction vested in it or

b) had exercised jurisdiction not vested in it or

c) that there was a fundamental error of procedure which had occasioned a failure of justice

Keeping criminals out

Finally, a mature electorate is the only guarantee for a real democracy. If voters will shun the criminal, the corrupt, the political grasshopper, or will not be deceived by false promises of free food, clothing, free electricity and so on, but realise that they are electing a government for themselves and not exercising a patronage in favour of their kith and kin, their neighbour or members of their caste or religious fraternity, many of the suggestions contained in this paper would be totally unnecessary. We have not taught in our schools, the responsibilities of the citizen to the state nor promoted the concept of the Indian nation. We have gloriously boasted about our unity in diversity which is our wishful thinking. We are Bengalis, Gujaratis, Kashmiris and Keralites. Alternatively we are Hindus, Muslims or Christians. But we are not feeling that we are all Indians. When the American constitution was framed, there was no American nation. There were settlers from all parts of the globe. But they welded themselves into a nation.

There must be a national endeavour to build an Indian nation based on equality and fraternity.

This article is based on the address given by Mr R. Venkataraman, former President of India, at the 119th anniversary celebrations of The Tribune.