Elections are inalienable to any democratic system and in order to ensure the free and fair conduct of elections, an efficient and dynamics electoral law is needed.
Introduction
Elections are sacrosanct to the idea of democracy. It is the cornerstone of an election, on which the magnificent edifice of democracy rests. Thus elections need to be free, fair and impartial if the democracy has to function efficiently. However, nowadays, there has been a sharp decline in the fairness of the election procedure. Political parties and candidates use every possible method to win the elections and as a result, such candidates are chosen as representatives who are neither able nor willing to work for the people. In this way, the whole foundation of democracy is shaken. Various methods used to influence the result of the elections are the use of money power, muscle power, misuse of government machinery, criminalisation of politics, paid news syndrome etc. Elections have become so expensive that it’s quite difficult for a common man to contest elections.[1] The same was not the cases in the early years of Indian democracy. According to a survey, the first three general elections which took place between 1952 to 1962 were free and fair to a great extent.[2] However, the situation has worsened in the past few years. The whole electoral system has been flooded with various kinds of malpractices. There have been times when the judiciary has come to the rescue of the people but experience shows that its efforts to reform the electoral system have been deliberately overturned by the politicians. In this paper, the author will try to analyse the ongoing tussle between judiciary and legislature regarding the implementation of electoral reforms. The author will also try to discuss some other defects of the electoral system such as the constitutional freeze on delimitation and will also try to propose some solutions to these problems by analyzing the ongoing movements of the civil societies.
Elections: Need For Reforms
Elections are inalienable to any democratic system and in order to ensure the free and fair conduct of elections, an efficient and dynamics electoral law is needed. Law, by its very nature, needs to be modified regularly or else it either fails to perform its functions or it itself withers away. Indian electoral system faced the absence of reforms for a very long time. While electoral systems in most of the countries are regularly updated as per the needs of the society. In India, however, there has been a severe lack of reforms in the electoral law which has greatly affected the efficiency of our democracy. Introducing reforms in any system is not an easy task as a change is always resisted by a large number of people who see the status quo as the only acceptable position. If we analyse the history of electoral reforms throughout the world, then we find that even some of the basic and inalienable features of the present-day electoral systems faced a severe resistance when they were introduced. It is surprising to note that even the introduction of the ballot system was vehemently opposed and such opposition came not only from the masses but even from celebrated political thinkers such as John Stuart Mill who described it as “a measure promoting downright lying.”[3] Electoral reforms in India are not an exception as any election reform has faced stiff resistance especially from the political parties[4] who view any reform as a threat to their existence. Electoral reform requires that those who have been vested with power by a particular system vote for a new system whose consequences are uncertain.[5] This is the reason why electoral reforms are not easy to introduce in democracies. Thus in this situation when the legislature does not act to reform the system, judiciary and election commission have to step in to reform the system. Election Commission has always strived for the conduct of free and fair elections.[6] Supreme Court has also stated the importance of free and fair elections.
Constitutional Freeze on Delimitation
Constitutional freeze on delimitation is another critical issue with regards to the Indian electoral system. Article 82 of the Constitution, as originally enacted, provided for Readjustment (of constituencies) after each census‟. However, the 42nd amendment to the Constitution of India banned further delimitation of constituencies until census of 2001. Thereafter, the ban was extended to the Year 2026 by the 84th (Constitutional) Amendment Act 2002. The political parties often argue that the motive behind the freeze is to keep a check on the population growth but this argument is far from truth. It is quite hard to digest that if the freeze on delimitation is removed then the states like Tamil Nadu and Kerala will significantly contribute to the population growth as people in these states will change their reproductive behavior in order to compensate for the loss of seats in the parliament.[11] Thus, the only motive which can be traced behind the continuation of delimitation freeze is the political interest of the parties. The politicians never welcome delimitation as they are used to the traits and size of their constituencies[12] and any change in these will force them to reestablish themselves with the help of new strategies.
In the famous case of Kesavananda Bharati vs the State Of Kerala[7], all the seven Judges who constituted the majority were also of the view that the democratic setup forms a part of the basic structure of the Constitution. Further, in the case of Indira Nehru Gandhi vs Raj Narain[8], the Apex Court observed that “Democracy contemplates that the elections should be free and fair.” Further, in the case of Kihoto Hollohan vs Zachillhu[9], it was held that the concept of free and fair elections forms a necessary concomitant and attribute of democracy which is a basic feature. Further, many scholars are of the view that only democracy can give cohesion to India’s dizzying diversity.[10]
This has been criticized by many scholars as a serious threat to representative democracy. The idea behind delimitation is to equalize the population across constituencies and it helps in demarcation of constituencies for certain reserved sections like scheduled castes and scheduled tribes.[13] A.K. Verma opines that the constitutional freeze on delimitation will be detrimental to the Indian democracy as will destroy one basic principle of representative democracy i.e „one person-one vote-one value‟.[14] K C Sivaramakrishnan argues that delimitation at periodical intervals is necessary because as the population changes, the same should be reflected in the delimitation of constituencies.[15] According to one scholar, equal representation is the key feature of any democracy, and the freeze on delimitation denies this basic equality to the citizens of India.[16]
One more problem with the freeze on delimitation is that it does not take into account the migratory population. In the past decades, owing to economic and developmental activities, a large number of people migrate from villages to cities and even the cases of Inter-state migration are also on rise. In such situations, the periodic delimitation becomes necessary as it reaffirms the democratic goal of one person-one vote-one-one value. In the absence of periodic delimitation, areas harboring migrant population are not adequately represented and thus the ultimate losers are the underprivileged sections of the society. Thus there is a dire need of abolition of (unconstitutional) freeze on delimitation.
Conflict Between Parliament And Judiciary
The judiciary has played its important role in curbing the menace of money power and criminalization of politics. Earlier, there was no settled position regarding the matter that while counting the expenditure limit of the candidate under section 77 of the R.P. Act, 1951, whether the expenditure done by the political party should be included. This issue came to the Supreme Court in the case of Kanwarlal Gupta v Amarnath Chawla[17] where the court held that while calculating the expenditure done by a candidate, the expenditure by the political party should be included. The Court further opined that we have to see the intention of the legislature and to take into account the mischief which the legislature sought to correct. The intention of the legislature was to curb the menace of money power in the elections and this was the reason for which the above mentioned section had been drafted. This judgement of the Supreme Court was welcomed as a corrective step to reform the elections.
However, soon after the judgement, the parliament came up with an amendment and inserted an explanation to section 77. This explanation nullified the above mentioned judgement of the Apex court and laid down that the expenditure done by a political party cannot be included while calculating the expenditure limit of the candidate. Thus the reform introduced by the judiciary was nullified by the parliament by just one stroke of pen.
Another instance of the legislative interference in the judicial matters was seen in the famous case of Indira Nehru Gandhi vs Raj Narain.[18] The brief background of the case was that the Allahabad High Court had declared invalid the election of Indira Gandhi on the ground of corrupt practices. Thus, an appeal was filed by her in the Supreme Court, but, in the meantime, the 39th Constitutional Amendment was passed by the Parliament which inserted a new Article 329A to the Constitution of India. The newly introduced provision i.e. Article 329A stated that election of the Prime Minster and the Speaker cannot be challenged in any court in the country. It was further provided that such an election can be challenged only before a committee formed by the Parliament itself. Thus, one may easily decipher that the clear reason of this amendment was to nullify the judgement of the Allahabad High Court.
However, the Supreme Court again acting as the guardian of the Constitution, struck down Article 329A(4) on the grounds that it violates the „Basic structure‟ of the Constitution. The Court further held that free and fair elections, democracy and judicial review are essential features of the Constitution. Thus, the Court again protected the democratic fabric of the country from being destroyed by the political parties.
The Supreme Court again tried to play its role in strengthening the democratic framework of the country by directing that all candidates will have to mandatorily furnish the details of their criminal antecedents and assets. In the famous case of Union of India v. Association for Democratic Reforms[19], the Court held that the voters have a right to know about their candidates who are going to represent them in the government. It also held that it has power to direct the Election Commission to fill a gap present due to the lack of suitable legislation. The court declared that the candidates should mandatorily furnish the following information namely-
“(1) Whether the candidate has been convicted or acquitted or discharged of a criminal offence and whether he has been punished with fine or imprisonment. (2) The educational qualifications of such candidate. (3) Assets of a candidate as well as of spouse and dependents. (4) Details of loan or other liabilities due to government or any public financial institution. (5) Prior to 6 months (of filling of nomination) whether the candidate has been accused in any pending case if such offence is punishable with imprisonment of 2 years or more and, in which charge is framed or cognizance is taken by the court of law.”
There was a huge wave of happiness among the members of civil society who viewed the above judgement as a panacea for criminalization of politics. However, the joy was short lived as the judgement became a great cause of concern for all the political parties[20] as the strict implementation of the above mentioned judgement would have been detrimental to their most popular candidates who were having several criminal cases pending against them along with charges of unaccounted wealth. Soon after the judgement, the political parties including those in the power and those in the opposition jointly came up with an idea of nullifying the judgement by the exercise of legislative power. An amendment was made which inserted Section 33B in the Representation of Peoples Act, 1951 which reads as
33B. Candidate to furnish information only under the Act and the rules.- “Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election which is not required to be disclosed or furnished under this Act or the rules made there-under.”
Here one can note that how the legislature has openly defied the mandate of the Supreme Court and the Election Commission by including the words “Notwithstanding anything contained in any judgment, decree or order of any court or….. by the Election Commission.” The formation of the united front for nullifying the Apex Court‟s judgement shows that how the legislators consider their political interests even more valuable than their political ideologies.
However, once again the Supreme Court had to come to the rescue of the democracy which otherwise would have been devastated by the mundane selfish interests of the politicians. Once again, a civil society group challenged the above mentioned Section 33B as violative of the Constitution. In the case of People’s Union for civil Liberties Vs. Union of India (UOI)[21] , the Supreme Court said that though the legislature have all powers to render a judgement ineffective by removing the very basis of the judgement, but, the legislature does not have any power to ask the instrumentalities to disregard or disobey the orders of the Court. Further, it was also observed by the court that the amended provision i.e. Section 33B of the said Act is directly in contravention of the constitutional guarantee under Article 19(1)(a). Thus, the Court struck down the Section 33B and restored the status as it was before the amendment.
Another reform come from the judiciary through the case of Chief Election Commissioner Vs. Jan Chaukidar (Peoples Watch) and Ors.[22]. In this case, the court held that a person who is in the lawful custody of police cannot contest an election. The reasoning given by the court was that when a person is in the lawful police custody, he is not entitled to vote which means he is not an elector. One of the essential requirements for contesting an election is that the person who wants to contest election should be an elector. The Court opined that since a person in lawful custody cannot exercise his right to vote, he no longer remains an elector, and since he is not an elector, he cannot be eligible to contest elections as being an elector is an essential condition for contesting the elections. Such a proposal has earlier been suggested by the Law commission[23] but was rejected, so it meant that the Supreme Court had merely stepped in to fill the long existing vacuum.
This decision once again tried to decriminalize the politics but again the joy was short lived. The parliament reacted instantly and within three months of the passing of this judgement, the Representation of People Act, 1951 was amended. It is worth noticing that the above mentioned verdict of the Apex Court was delivered on 10th July 2013 and on 23rd September 2013, Presidential assent was given to the amendment which sought to nullify the judgement. The amendment inserted a proviso specifying that even if a person is prohibited to vote, he shall not cease to be an elector. Thus, once again the whole nation witnessed the open battle between two pillars of the democracy.
First Past The Post System
The efficiency and success of any democracy are highly dependent on the systems and processes which are used for ensuring the representation of the people. Thus it may be said that even a small feature of an electoral system may have a significant impact on the whole democratic setup of a country. In the following section, the author will analyse the “First past the post” system of the Indian electoral setup. The author will try to explain the problems with the “FPTP” system which will be followed by the suggestions for the introduction of a new system i.e. a system based on “Mixed Member Proportion” which has been successfully applied in Germany.
The Indian electoral system is based upon the principle of “First past the post”. This system owes its name to the sport of horse racing. In horse racing, the horse that passes the finish post first is declared as the winner. This system does not take into account the “margin” with which the horse wins i.e. it does not matter whether the horse has won by a margin of a mere microsecond or a margin of 2 minutes. Thus, this system does not acknowledge and reward the hard work and labour of the 2nd horse that has lost by a margin of a mere microsecond. Even then, on the face of it, this system looks quite fair and one may wonder why this system is said to be problematic when it is applied to the electoral system. The reason behind this is that though the system looks quite fair, elections are not horse races. In horse races, horses do not represent anybody and therefore if the losing horse is not rewarded, it just means that though that horse had invested hard work and labour the amount of that hard work was not sufficient to cross the threshold limit and thus that hard work is not eligible for the reward. However, the same analogy does not work in the electoral system. If we apply this principle then it will be akin to saying that even if a candidate “A” secures 49% of votes but he loses because his opponent “B” secures 51% votes, then the votes of those who have voted for “A” are completely wasted. This means that 49 % of people will not have their representation in the democracy which ultimately means that everyone is not having the same representation in the democratic process of the country. This is clearly in violation of the fundamental principles of democracy and it also violates the human rights of citizens as Article 21[24] of the Universal Declaration of Human Rights[25] provides that everyone has a right to participate in the governance and it also says that the “will of the people shall be the basis of the authority of government” and such, will” shall be represented through genuine elections and equal voting procedures.” Thus, the First past the post systems strikes a severe blow to the very foundation of the democracy as it promotes
“disproportional” representation.[26]One example of this was seen in the general elections of 2004 when although the BJP-led NDA trailed the Congress-centered UPA by a mere 0.6 percent of the overall popular vote, the latter won a 33-seat advantage.[27]
Conclusion and Suggestions
The article has discussed various issues involved in the electoral system and electoral reform in India. We have seen how the political parties perceive the electoral as a threat to their existence. This is because of the fact that a large number of political leaders base their campaigns on the foundations of various malpractices ranging from the use of muscle and money power to abuse of government machinery. The same is reflected in the pattern of electoral reforms in India. We have seen that Indian civil society had to press hard in order to get the electoral system reformed. Through continuous efforts of civil society groups, some steps have been taken to curb the criminalization of politics. However, there are some major issues which still need to be reformed such as a constitutional freeze on delimitation and “first past the post system”. We have also found that the system of compulsory voting is not feasible for Indian democracy as it is problematic both in theory and in practice. This is because it merely increases the voter turnouts, but does not ensure that there will be effective participation. Thus it works like a dictator whose commands are followed by everyone due to the fear of sanctions, but no one agrees to his commands. Therefore the introduction of such a system may prove detrimental to the Indian democracy. Further, such a system may result in the coerced voting, where if a person does not want to exercise his right to vote, then also he will have to cast his vote, leading in the violation of his right to freedom of expression which comes under the Chapter-III of the Constitution i.e. Fundamental Rights, and thus such right cannot be violated by a statutory provision. Thus, we can say that now it‟s high time that the initiative of electoral reforms is taken by the civil society groups as civil society movement has a vast and long-lasting impact on the political system of the country.
[1] Bodhraj Sharma, Some reflections on the second general elections in India, The Indian Journal of Political Science, Vol. 19, No. 1 (January-March 1958), pp. 73-77
[2] Subhash Shukia, Issues in Indian Politics, Anamika Publishers, (2008). p.219 cited in Dr. Bimal Prasad Singh, Electoral Reforms in India – Issues and Challenges, International Journal of Humanities and Social Science Invention, Volume 2 Issue 3 (March. 2013) pp.01-05
[3] Stanley Hyland, Curiosities from Parliament, Allan Wingate (1955), pp 161-170 cited in L.K. Advani, Indian Electoral System: A plea for reform pp 457-458 in L.M. Singhvi, Elections and electoral reforms in India, Journal of Constitutional and parliamentary studies,(1970)
[4] V.Vijaya Kumar, Electoral reforms, Student Advocate Vol.1 (1988-1989) pp14-16
[5] Ethan Bueno de Mesquita, Strategic and Nonpolicy Voting: A Coalitional Analysis of Israeli Electoral Reform, Comparative Politics, Vol. 33, No. 1 (Oct. 2000), pp. 63-80
[6] Upendra Baxi, The Rule of Law in India, – Int’l J. on Human Rights. No. 7 (2007) p.7
[7] AIR 1973 SC 1461; [8] AIR 1975 SC 2299; [9] 1992 SCR (1) 686;
[10] Marshall M. Bouton, India’s Problem Is Not Politics, Foreign Affairs, Vol. 77, No. 3 (May – Jun., 1998), pp. 80-93
[11] K. C. Sivaramakrishnan, Delimitation, Democracy, and End of Constitutional Freeze, Economic and Political Weekly, Vol. 35, No. 15 (Apr. 8-14, 2000), pp. 1271-1276; [12] Id.
[13] Amrita Dey, Myanmar’s Tryst With Democracy: Lessons From India, US-China L. Rev. Vol. 12, (2015) p827
[14] A.K. Verma, Issues and Problems in India’s Delimitation Exercise, The Indian Journal of Political Science, Vol. 63, No. 4 (December 2002), pp. 371-388
[15] KC Sivaramakrishnan, Constituencies Delimitation Deep Freeze Again?, Economic and Political Weekly, Vol. 36, No. 51 (Dec. 22-28, 2001), pp. 4694-4696
[16] Aditi, Politics of Electoral Reform: Delimitation Deadlock in India, Economic and Political Weekly, Vol. 44, No. 3
[17] 1975 AIR 308; [18] AIR1975SC2299; [19] [2002]3SCR696;
[20] Sanjay Kumar, Reforming Indian Electoral Process, Economic and Political Weekly, Vol. 37, No. 34 (Aug. 24-30, 2002), pp. 3489-3491
[21] AIR 2003 SC 2363
[22] (2013)7SCC507
[23] J V Deshpande, Reforming the Electoral System, Economic and Political Weekly, Vol. 33, No. 51 (Dec. 19-25, 1998), pp. 3235-3238
[24] Article 21.
Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
Everyone has the right to equal access to public service in his country.
The will of the people shall be the basis of the authority of government; this will .shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
[25] United Nations- Human Rights Declaration.
[26] Sudama Singh, Representation In Modern Democracies: Theoretical And Practical Perspectives, The Indian Journal of Political Science, Vol. 52, No. 4 (Oct. – Dec., 1991), pp. 508- 529
[27] Rajeev Dhavan, The Supreme Court today, Eastern Book Company, cited in R. V. Vaidyanatha Ayyar, Public Policymaking in India, Pearson Education India,(2009)
