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

7/29/2019 A Paradox of Right to Recall and Reject - A boon or bane

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

to be submitted to

THE INSTITUTE OF CONSTITIONALAND PARLIAMENTARY STUDIES18-21, VITHALBHAI PATEL HOUSE,RAFI MARG, NEW DELHI-11001 INDIA

in partial fulfillment of the requirements

for the Post Graduate Diploma inParliamentary Fellowship Programme

Compiled by:Sanjeev Kumar ChaswalPost Graduate Diploma in

Parliamentary Fellowship Programme


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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 -


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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 ParliamentaryStudies,18-21, Vithalbhai Patel House, Rafi Marg, New Delhi-11001 IndiaMr. 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 Constitutionaland parliamentary studies

18-21, Vithalbhai Patel House,Rafi Marg, New Delhi-11001


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ACKNOWLEDGEMENTI feel proud to acknowledge the able guidance of our esteemed Director Mr. Semadhariand 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 Honble Mr. J ustice 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)


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PREFACEThat in view of the criminalization of electoral process, it is a high time that thegovernment 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 citizens 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 Electioninconsistencies and scope of legislative accountability in India. The seventh and eighth

Chapter deals in respect toelectoral reformsand 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.


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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)


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ABBREVIATIONS

AIR All India ReportsApex 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

MLAs 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


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TABLE OF CONTENTSChapter Page .Declaration i

Certificate iiAcknowledgement iiiPreface ivAbbreviations v

THE ABSTRACT 1 - 3CHAPTERI INTRODUCTION 2 - 7

Historic origins 2 - 6British period 6 - 7

CHAPTER II EMERGENCE OF CONSTITUENT ASSEMBLY 8 - 10CHAPTER IIICONSTITUTION OF INDIA 1119

Introduction to the Indian Constitution 11-12Federal Structure 12-13Parliamentary Democracy 13Part XV-Elections 13-16Governance system of Government 16-17Amendment of the constitution 17-19

CHAPTER IV ELECTORAL LAWS & SYSTEM IN INDIA 20- 30

Introduction to Election Commission 20-22Indian electoral system 22-23History of political parties 23-24Changing of the Political parties 24-25Electoral Process 25Pre elections 25-26

The voting process 26The voting day 26None of the Above 26-27Post elections 27-28Electoral Laws 28-29Electoral System in other Countries 29-30

CHAPTER V ELECTION INCONSISTENCIES IN INDIA 31- 37

Election inconsistencies 31-33Criminalisation of Politics 34Financing of election exceeding the legal limit 34-35


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Booth Capturing 35Buying Votes 35-36Abuse of caste and religion 36

CHAPTER VI THELEGISLATIVE ACCOUNTABILITY IN INDIA 37-45

CHAPTER VII THE ELECTORAL REFORMS 46 58Why electoral reforms 46-49Issues and challenges before the election commission 49-52Initiatives by the Election Commission on electoral reform 52-54The De-criminalisation of politics in public life 54-55Bringing Transparency in Political Party Functioning 55-56Setting the Stage for State Funding Level-Playing Field for Political Parties 56-57Is time ripe for Immediate Action? 57-58

CHAPTER VIII NONE OF THE ABOVE IN OTHER COUNTRIES 59-70None of the above in 59-60Soviet Union 60-61Spain Blank ballot 61Blank seats 61-62USA 62Poland 62-63Protest vote 63Protest vote can take different forms 63-64Protest vote and abstention 64-65

Voting for fringe candidates 65Electing a political newcomer 65-66Donkey vote 66-67Spoilt vote 67-68Unintentional spoiling 68-69Intentional spoiling 69Abstention 70

CHAPTER IX RIGHT TO REJECT 71 80What is Rule 49-O 71

Text of Rule 49-O 72Present Implications of Rule 49-O 72

Proposals by the Election Commission of India 72Is it Negative / Neutral Voting 73Criticism of proposals regarding negative votingand annulment of polling due to Neutral votes 73-74Right to Reject 74-77The reasons why Right to Reject should be introduced: 77-79The reasons why Right to Reject should not be introduced 79-80

CHAPTER X THE RIGHT OF RECALL 81-88Countries in which recall is permitted 83The United States of America 83-84


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Switzerland 84-85Philippines 85Venezuela 85Uganda 85-86British Columbia 86Pleas for and against the use of recall 86Arguments for recall 86-87Arguments against recall 87-88

CHAPTER XI THE RECALL MECHANISM AND PRINCIPLES 89-105Introduction 89Modalities of the recall mechanism 89Circumstances for incumbent Recalling 90

Whether an incumbent can be recalled 91-92Can the elected person being challenged 92-93stand for re-election 93Requirements for holding a recall vote 93Requisition of Number of signatures 93Deadline for collecting signatures 93The final recall vote 93-94The day of the recall vote held 94-95Holding a simultaneous recall vote andvote to elect a successor 95Holding two separate ballots 95-96

Restrictions on which Office / officersthe mechanism applies to 96Restrictions on application of the recall mechanism 96Number of signatures required for Recall ballot 96-97Verification of Recall signatures 97Combining the votes on the recall and a successor 97-98The recall in a party based electoral system 98

CHAPTER XII INDIAN PERSPECTIVE ON THE RECALL

The Indian Perspective towards Recall 99-106Pros 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 onthe right to Reject and Recall 108-113

Table of Cases 114

Bibliography 115-117Appendixes 118


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TABLE OF CASES

Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461

Minerva mills vs. union of IndiaAIR 1980 SC 1789

Woman Rao vs. Union of IndiaAIR 1981 SC 271

S.P. Sampat kumar vs. union of IndiaAIR 1981 SC 271

L. Chandra kumar vs. union of IndiaAIR 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 125-140BooksJohn R. Kahn, Negotiation, Mediation and Arbitration in the Computer Program Industry:Why play hardball with software, pt. III.B (1989).128Resolving Intellectual Property Disputes Outside of Court: Using ADR to Take Control ofYour Case By Alan W. Kowalchyk 128Reports 132The Indian Judicial System A Historical Survey By Mr. Justice S. S. Dhavan High Court,

Allahabad 98

News Week, Dec. 19. 1959, Challenge of Communism 55Articles, Papers and TranscriptsThe justice dispensation system in India[1] ICADR88 58Mr. 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, 58News papers 139Supreme Court chides itself, govt for judicial backlog Dhananjay Mahapatra, TNN Jan 12,2012, 05.57AM


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APPENDIXESThe regulation of 1781 22Regulation of Act 1787 22

Regulation of Act 1793 23

The Madras Presidency Regulation VII of 1816 23Bombay Presidency Regulation VII of 1827 23Under the Charter Act of 1833 23

Act IX of 1840. 23The Act VIII of 1857 24The Act XIV of 1882 24The Indian Arbitration Act IX of 1899: 25, 53,Information Technology Act, 2000 27

Arbitration and Conciliation Act, 1996 15,16,46The Arbitration Act of 1940 61, 63Industrial Disputes Act, 1947 53,Section 23(2) of the Hindu Marriage Act, 1955 53The Family Court Act, 1984 54

The Legal Services Authority Act,1987The Code of Civil Procedure, 1908 47The Geneva Protocol on Arbitration Clauses, 1923, 75The Geneva Convention on the Execution of Foreign Award, 1927 75Legal Services Authorities (Amendment) Act, 2002


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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 areasked 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 citizens prerogative right not to vote / right to reject / negative voting / none of theabove 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 citizens to elect their representatives and at the same time to

decide whether a non-performing elected representative should continue in office for a full


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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 ofdemocracy 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 demographys 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 someanother 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

1Wikipedia, the free encyclopedia source


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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 deliberativeassembly 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


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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

2Robinson, 1997, p. 23

3Trautmann T. R., Kautilya and the Arthra' shastra, Leiden 1971

4"Election (political science)," Encyclpoedia Britanica Online. Retrieved 18 August 2009

5Encyclopedia of Islam and the Muslim World (2004), vol. 1, p. 116-123.


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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, panchayatsceased 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 Indias 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

6History of Buddhism in India, Translation: A. Shiefner.

7ibid


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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 certainconstituencies 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

8Reserved 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, J awaharlal 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 Britishers 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

Britishers , who were controlling the affairs of the Government in India the Britishers

knew of the inherent weaknesses in the system being run to control the governance andwere trying to have a system that fit in the modern world.

The architects of Indias 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


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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 J anuary 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 isindependent 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


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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 J anuary 1950.


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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 J an 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


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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 approvedby 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 lawsin 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,


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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 notdirectly 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 enjoyscontrol 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 .-


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(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 J udge of the Supreme Court and the

conditions of service of the Chief Election Commissioner shall not be varied to his

disadvantage after his appointment:


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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 aspecial, 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 otherwisedisqualified 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


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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 notmade 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 presentedto 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,


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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 const itution

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, theConstitution 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 Honble 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 (42ndAmendment) 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

9Ahir, D.C. (1990). The legacy of Dr Ambedkar (10th ed.). South Asia Books

10AIR 1973 SC 1461


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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 India11 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 theessential 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 India12The 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 India14a 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

11AIR 1980 SC 1789

12AIR 1881 SC 271

13AIR 1987 SC 271

14AIR 1997 SC 1125


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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.


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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 wherethe 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 Indiandemocratic 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

15Basu, Durga D. (2009). "11". Introduction to the Constitution of India. Nagpur, India: LexisNexis Butterworths Wadhwa Nagpur. p. 199.

16parliamentofindia.nic.in. Retrieved 19 August 2011

17Rajya Sabha Secretariat. "Council of States (Rajya Sabha)". The national portal of India. Parliament of India. Retrieved 26 May 2012.


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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 particularstates, 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, theexpenditure 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

18Shashi Tharoor (2009-04-16). "The recurring miracle of Indian democracy". New Straits Times.

19EU (25 states) electorate = 350mn , US electorate=212 mm


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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 Statesand 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


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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 mixof 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 otherparties, 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.

21Lok Sabha Secretariat. "Lok Sabha". Parliament of India. Retrieved 26 May 2012.

22Rajya Sabha Secretariat. "Council of States (Rajya Sabha)". The national portal of India. Parliament of India. Retrieved 26 May 2012.


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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 J anata Dal. These parties are traditionally

based on regional aspirations, e.g. Telangana Rashtra Samithi or are strongly influencedby 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 Polit ical 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


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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 partys 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.


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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 incertain 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 whosupport 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

23Bagriya, Ashok (29 January 2009). "EC suggests 'none of the above' option on the ballot". IBN Live. Retrieved 23 April 2011.


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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 thevotes 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 tocast 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

24gazette 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.


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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 section49 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:


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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 systemundermines 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 voters 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 untilsomeone 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


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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. Its 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 its simpler, imposing no extra

difficulties with counting or requiring new voting machinery.


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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 reallyproud 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

26Ministry of Law and Justice, Government of India has constituted a Core Committee on Electoral Reforms of 2010


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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 requirelegislative 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


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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 forcampaigning 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 investmentventure, 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.


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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 theaccused 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 l imit

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

27Vohra Committee Report (1993)


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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 publictheir 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 dont fetch votes then intimidation and coercion serves as the last

28[(1997) 1 SCC 301]


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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 rel igion

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 EVMs (electronic voting machine) havingoption 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 betaken 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.


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CHAPTER- VI

THELEGISLATIVE 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

pa

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