NECESSITY OF ELECTORAL REFORMS: A NEED OF CORRUPTION FREE GOVERNANCE IN INDIA 402 *Sushim Shukla Elections belong to the people. It's their decision. If they decide to turn their back on the fire and burn their behinds, then they will just have to sit on their blisters. Abraham Lincoln India, the world s largest democracy is about to test its strength and power in upcoming parliamentary elections. As for as the future of any democracy is concerned no doubt it depends upon the degree of free and fair elections. Politics and elections both are complementary to each other as politics means the art and practice to deal with political power whereas elections deal with the legalization of such power. According to the Constitution of India sovereignty vests in the people of country. Therefore, it is the duty of the citizens to reject voting in favour of corrupt and criminal background politicians for the sake of healthy and shining democracy. No wonder at present politics has become a lucrative profession rather than a service to the nation. Particularly a class of people always wishes to remain in power as they all are aware that power begets fortune. This can also be verified with the help of various scams and scandals which have taken place in preceding years. It points towards the slow process of electoral reforms which helps the parliamentarians to become the benefactors of corrupt and criminal ones. As we know that a true democracy nurtures on the choice of representatives, it is closely related with the mode of elections conducted and the way political parties function. Now the time has come to think about the change in election system of our country. This is the reason why people like Anna Hazare 1 through various movements raised voice to provide the provisions for right to reject".the only reason behind it is that voters should be allowed to use this option if they don t like any candidate or according to them candidate is inappropriate for contesting election. The demand for right to reject and right to recall as well as scams and scandals including the names of high profile politicians indicates that something is wrong in Indian electoral process which is no doubt creating hindrance in smooth and swift functioning of *Sushim Shukla, Research Scholar, School of Law and Legal Affairs, Noida International University, Gautam Budh Nagar, Greater Noida, Uttar Pradesh, India. 1 The Hindu, Include Right to Reject in EVM s, 24 Feb. 2012, New Delhi, India. Anna Hazare is one of India's well-acclaimed social activists. A former soldier in the Indian army, born on 15 June 1937, led movements to promote rural development, to increase government transparency, to investigate and eradicate official corruption. He was awarded the Padma Bhushan, the third-highest civilian award by the Government of India in 1992.
democracy. Such conditions raise question marks on the mechanism of election process followed by India. If we look at the last decade picture becomes clear by the dynamics of national and state level politics which gives the witness of the clashes and conflicts between the representatives of people. Corruption is one of the greatest obstructions in the governance of electoral process as spending a huge amount of money is very common during elections for casting of votes in favour of a particular candidate. Therefore, according to the present scenario innovative methods must be introduced to bring transparency and good governance which is prima facie a requirement of healthy electoral process. In order to make positive improvements in electoral process of the country from time to time various committees, commissions including election commission of India submitted their reports with several recommendations. Endeavour of this paper is to spread some light on the efforts of Indian judiciary and election commission to bring electoral reforms required for corruption free governance in India. OBSTRUCTIONS IN FAIR ELECTORAL PROCESS OF INDIA It is evident to focus on the root cause of the obstructions in fair elections. For this purpose here an attempt is made to ponder upon some major issues like criminalization of politics, abuse of unaccounted money power, unaccountable political parties and the curse of defections for personal gain etc. Criminalization of politics Criminalization of politics is a serious issue in India. The citizens, government and political parties must focus on it so as to restrict steady decline in democratic values of all sections of our country. The functioning of political institution is immensely pressurized due to criminalization of politics. For smooth functioning of a democratic setup we should try to maintain the traditions of probity and morality in public life. If certain charges have been framed by a Court of Law against any person for committing an offence with the punishment for two years or more should be debarred from contesting elections. Further, any candidate charged with serious charges like offences against human body including murder, attempt to murder and, rape etc. should be 403
banned from contesting any elections. According to the Chief Election Commissioner of India (July, 2009 to April, 2010) the Government of India through legislations, should debar those candidates who are facing charges for heinous offences. However, parliamentary committees raised the doubt for the misuse of such provisions by the parties in order to retain the power. 2 Apart from it number of recommendations have been made by the Election Commission of India and duly informed the government about the necessity of amendments in existing laws in order to control the electoral malpractices. The Election Commission of India has produced very comprehensive proposals for electoral reforms in India like Tarkunde Committee Report 3, The Gowswami Committee Report 4, and Recommendations of Election Commission of India 5 followed by the Indrajit Gupta Committee Report 6. In this chain of recommendations election commission has also taken certain new initiatives to bring reforms in electoral process of India. Disqualifications of the Convicted Representatives in India The Supreme Court of India on 10 July, 2013 in original jurisdiction writ petition (civil) no. 490 of 2005 7 along with Lok Prahari v. Union of India writ petition (civil) no. 231 of 2005 held that those Member of Parliament, Member of Legislative Assembly including the Member of Legislative Councils who are convicted of a crime will be disqualified as a member of the aforesaid house with effect from the date of conviction. 8 Further in this regard the bench of Honorable Justice A.K. Patnaik and Honorable Justice S.J. Mukhopadhyya also held that Section 8(4) which allow the elected representatives to file appeal against their conviction within three months as unconstitutional 9. By virtue of this judgment Raseed Masood on 01 October 2013, became the first MP to be disqualified from parliament as he was sentenced to four years for cheating, forgery and corruption. 10 The list of the disqualified members by the virtue of this judgment of the Supreme Court is as follows: 2 Naveen Chawla, Needed Urgent Electoral Reforms, the Hindu, 2, Jan. 2013. 3 1975. 4 1990. 5 1998. 6 Ibid. 7 Lily Thomas v. Union of India. 8 Available at indiankanoon.org. last visited on 18/2/ at 12: 49 PM. 9 Representation of People Act, 1951. 10 Disqualification of convicted representatives in India, available at en.wikipedia.org last visited on 22/2/ at 10:34 PM. 404
S.N Name of representative Party House for representation Case Status 1. Raseed Massod MP, Council of States, Uttar 4 years conviction Congress Pradesh. MBBS seat Scam Disqualified MP, House of Peoples, 5 year conviction Lalu Prasad Yadav RJD 2. Saran. Fodder Scam Disqualified MP, House of Peoples, 4 year conviction Jagdish Sharma RJD 3. Jahanabad. Fodder Scam Disqualified Therefore the effect of the Judgment is obvious and gives the evidence that electoral reforms are necessary for good governance and eradication of corruption from society. Abuse of money power At the present the root cause of corrupt practices prevalent among the elected representatives is the outcome of the arrangement of money for election expenses. As the matter of electoral reforms is concerned arrangement of large amount of money is a crucial problem for contesting elections. However limits of expenditure in elections are already prescribed but who cares. The entire political system is progressively polluted. Corruption erodes performance, and opened the doors for non- performance and compromised governance in the country. It was observed in case of People s Union for Civil Liberties (PUCL) & another vs. Union of India and another 11 that the sources of some of the election funds are believed to be unaccounted. Citizens are directly affected by this compromised governance because the huge amount of money spent on elections pushes the cost of everything in the country. The foundation of structure of corruption is based on electoral compulsions for arrangement of funds. Consequently, the entry of poor and honest man becomes difficult into premises of legislatures. The Hon ble Court observed that to save the democracy from the evil influence of criminalization of politics, to save the election from muscle and money power, to maintain true democracy and control corrupt practice in politics, the candidates contesting the elections should 11 (2003) 4 SCC 399. 405
be asked to disclose their antecedents including assets and liabilities. Thereafter, let the voters to decide the fate of candidates contesting elections. 12 Abuse of money power can be avoided if government provides funds for elections like a system existing in US. However, candidates can refuse this government fund and use their own money. This can motivate the economically weaker section of society to ensure their presence in the highest forum of democracy. Political Insatiability The success of Westminster System of parliamentary governance is based on limited number of political parties as we have seen in United Kingdom where there are only two major political parties. In India mushrooming of political parties in highly fragmented society is based on ideological or economical differences. The result of it is the unstable administration and unstable policies which indicate towards the hallmark of minority governments. Indian political system is highly influenced by the voting system based on religion or caste factors. This is one of the main reasons which are responsible for obstructions in free and fair electoral process of India. Right to Reject The Hon ble Apex Court delivered a landmark judgment in the case of People s Union for Civil Liberties v. Union of India 13, this case is also known as the NOTA case. The Writ Petition was seeking permission to extend the secrecy of the right not to vote. It was held that the present Rule 49-O and Rule 17 of the Conduct of Election Rules, which give the voters the right not to vote, violates the Article 19(1)(a) of the Constitution as well as of Section 128 of the Representation of the People Act 14, because it does not provide guarantee of secrecy. Further, according to the suggestions of Election Commission of India, the Court directed that the none of the above (NOTA) button be included in the EVMs.This judgment is considered as a landmark which will be able to bring a change as voters can express their frustration against the 12 Ibid. 13 The court passed an order on a PIL filed in 2004, Writ Petition (Civil) No. 161 (2004) by an NGO, People's Union for Civil Liberties (PUCL), which had submitted that voters be given the right to negative voting. Findings of the Court published in The Statesman, Saturday on 31Oct. 2013, available at www.thestatesman.net, last visited on 22/02/ at 3:00 PM. 14 1951. 406
ineligible candidates by registering their abstention in secret on the EVMs. Apex Court said in a bench headed by Justice P Sathasivam the Hon ble Chief Justice of India that: Negative voting will lead to a systemic change in polls and political parties will be forced to project clean candidates. The Court stated that on one hand the right to vote is a statutory right, and then the right to reject a candidate on another hand is a fundamental right of speech and expression as guaranteed under the Constitution of India. The bench also pointed out the system of negative voting existed in 13 countries. The MPs in Parliament of India also have the option to abstain during a vote. 15 S.N Name of Country Method of Voting Form of Negative Voting 1. France Electronic NOTA 2. Belgium Electronic NOTA 3. Brazil Ballot Paper NOTA 4. Greece Ballot Paper NOTA 5. Ukraine Ballot Paper NOTA 6 Chile Ballot Paper NOTA 7. Bangladesh Ballot Paper NOTA 8. States of Nevada, USA Ballot Paper NOTA 9. Finland Ballot Paper Blank Vote and/or write in* 10. Sweden Ballot Paper Blank Vote and/or write in* 11. United States of America Electronic/Ballot(Depending on State) Blank Vote and/or write in* 12. Colombia Ballot Paper Blank Vote 13. Spain Ballot Paper Blank Vote In the hope of electoral reforms the decision of the Hon ble Court was welcomed by the Former chief election commissioner Mr. Navin Chawla as he considered it a huge step in improving the electoral system. In the same regard former chief election commissioner Mr. SY Quraishi said the order would give a legal stamp to the commission s demand of having a negative voting option on the EVMs. 16 15 People s Union for Civil Liberties v. Union of India, Writ Petition (Civil) No. 161 (2004) filed by an NGO in 2004, available on indiakanoon.org, last visited on 22/2/ at 2: 45 PM. 16 Available at www.hindustantimes.com, last visited on 23/2/ at 9:31PM.. 407
Right to Recall To remove incompetent, inefficient and dishonest legislators is in the interest of the nation is required for the good governance in a democratic setup. At present the conditions for electoral reforms in India are concerned with new mechanisms for empowerment of Indian polity looking towards the incorporation of right to recall. For good governance we need to have a corruption-free government and Hon ble Supreme Court highlighted in State of Madhya Pradesh & Ors. v. Shri Ram Singh 17, that recall of delinquent representatives undoubtedly seems to be one way of protecting the democratic values. Obviously the reason behind demand of recall of corrupt representatives and unworthy officials is to ensure good governance by eliminating them. At present right to recall is not available to every citizen, however it is found in certain states of India like Madhya-Pradesh or Chhattisgarh where people in local bodies enjoy right to recall their representatives. Anti- Defection Law The addition of Tenth schedule to the constitution of India is the result of Anti defection law passed in the year 1985. 18 The main aim behind this amendment was to restrict the evil of defections in political parties. This law deals with the splits as well as mergers of political parties. For split at least one-third of the total membership of concerned party is required on the other hand for merger of political parties, two-third majority of the members of concerned party is required. However, the remaining members of the parent political party will be immune from the subject matter of disqualifications. Anti-defection law raises a number of questions like the incapability of it in preventing bulk defections and also criticized by the legislators that it minimizes the powers, privileges including immunities available to the legislators specifically in respect of freedom of speech and expression. The question was raised in Kihoto Hollohan v. Zachilhu and others 19 that defection law violates the right of free speech of the legislators. This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992. Hon ble Court said that: 17 AIR 2000, SC 870. 18 52 nd Amendment Act, 1985. 19 AIR 1993 SC 412. 408
the anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct above certain theoretical assumptions. It was held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy. 20 Further the Court upheld justifiability of decisions of Speaker or Chairman of the House about disqualification under Tenth Schedule which is subject to judicial review by High Courts and Supreme Court. Apex Court in case of Speaker Legislative Assembly v. Utkal Keshari Parida 21 held that a person interested in the matter of disqualification of any member would be entitled to bring the matter in notice of Speaker or Chairman of the House. Model Code of Conduct and Political Parties Model Code of Conduct (MCC) for political parties and candidates provides a set of norms framed with the consensus of political parties and enforced by the Election Commission of India. The objective behind the Code is to provide a free and fair electoral process for contestants during the time of elections. The Election Commission claims to have powers to punish political parties by the exercise of plenary power given under Article 324 of Constitution and particularly after amendment of its own order made on 18th February, 1994. It can be expedient to give statutory backing to the Model Code of Conduct leaving no vacuum for the Election Commission of India to exercise its residuary power to enforce the Model Code of Conduct. 22 Restriction on number of seats for contesting Elections It is provided under the Representation of the People Act, 1951 that one can contest elections from a maximum of two constituencies. 23 We have witnessed severally that a person contesting election from two constituencies, wins from both the constituencies. In this situation such a person has to vacate one of the seats in these two constituencies. Now the situation for bye-elections arises in one of these two constituencies which again involve unavoidable labour and expenditure for these bye-elections. 20 Available at www.prsindia.org last visited on 20/2/14 at 9:36 AM. 21 AIR 2013 SC 1181. available at www.prsindia.org, last visited on 20/2/ at 2:14 PM. 22 Electoral Reforms- Code of Conduct for Political Parties & Anti Defection Law, 61 st Report, 26 th Aug. 2013, available at www.prsindia.org last visited on 20/2/ at 3:20 PM. 23 Section 33. 409
It is the view of the Election Commission of India that there should be an amended in law to provide that a candidate cannot contest elections from more than one constituency at a time. 24 Conclusion Above study states that number of steps has been taken to ensure the free and fair electoral process to maintain good governance in India. Criminalization of politics is one of the major issues which cause obstruction in free and fair electoral process. However, a milestone judgment of the Supreme Court in Lily Thomas case made it possible to disqualify a legislator from the date of his conviction. This may be a concrete step towards ensuring the electoral process free of criminal background legislators which is necessary for good governance. The inclusion of negative voting option by virtue of the Apex Court s judgment seems to have a long lasting impact on the democratic will of the people. The judiciary as well as the election commission is also cautious about the expenditure of uncounted money during elections which is one of the major causes of corruption. In addition there is also focus on prospective effects of the right to recall after its inclusion in electoral process of the country. The motive behind inclusion of these steps for electoral reforms is to make the election mechanism an effective instrument which ensures more effective and participatory approach of people in electoral process of a democratic setup. To ensure the smooth and swift functioning of a democratic setup model code of conduct needs to be more advanced and followed by the legislators at priority otherwise they are fond of using unparliamentarily language, habitual of throwing chairs and tearing the documents of house as we have noticed the shameful act of spraying chili powder by the parliamentarians in house of the people on Thursday dated 13/02/. Therefore, it is quite clear that good governance through electoral reforms without cooperation of legislators is not an easy task because only judiciary or election commission is not competent to weed out the evil practices prevalent in elections. Hence, the legislators and electors both should realize the need of hour. 24 Background paper on electoral reforms (prepared by the core-committee on electoral reforms) Legislative department ministry of law and justice Government of India Co-sponsored by the election commission of India, December, 2010, available at lawmin.nic.in, last visited on 23/2/ on 4:51PM. 410