In the last blog, some of the problems with the election system of the largest democracy in the worlds were enlisted. In this blog, all the steps taken up by Parliament and other various bodies will be discussed including, my own suggestions to improve/fix the broken system.
The majority of parliament's time with respect to election reforms or amendment to Representation of Peoples Act, 1951 have been used to amend the ‘office of profit’ provisions and which offices should or shouldn’t be exempted. The idea behind the concept of office of profit – which evolved in England – is to preserve the independence of the legislature by keeping the members away from any temptations from the executive that can come in the way of independent discharge of their duties. It also seeks to enforce the principle of separation of power between the legislative, the judiciary and the executive – a basic feature of the Constitution.
The term 'office of profit' has not been defined in the Constitution. But, Articles 102 (1) and 191 (1) – which give effect to the concept of office of profit -- prescribe restrictions at the central and state level on lawmakers accepting government positions. Any violation attracts disqualification of MPs or MLAs, as the case may be. However, articles 102 and 191 clarify that “a person shall not be deemed to hold an office of profit under the government of India or the government of any state by reason only that he is a minister”.
In Guru Gobind Basu vs Sankari Prasad Ghosal & others, the Supreme Court ruled in 1964 that the test for determining whether a person holds an office of profit is the test of appointment. Several factors such as appointing authority, the authority vested with the power to terminate the appointment, the authority that determines the remuneration, the source of remuneration and the power that comes with the position have to be considered.
Sonia Gandhi, a member of Lok Sabha, was appointed the chairperson of the national advisory council by the UPA 1 government. After the issue of office of profit was raised, she quit as an MP and sought re-election. The prevention of disqualification act was amended in 2006 to add the position of NAC chairperson to the list of exempted posts.
Apart from this, reforms include, Lowering of Voting age; by the Constitution (Sixty-first amendment) Act, 1988 reduced the voting age from 21 to 18 years for Lok Sabha and State assembly elections. This has given the youth of the country an opportunity to participate. Increasing the Security Deposit and the number of proposers; security deposit has been increased to Rs. 10,000.
All this is fine, but the major problems have never been seriously considered by the elected representatives. The model of code of conduct, the set of rules which all the political parties in the country have agreed to honor and follow a model code of conduct during the election campaign. This is the biggest joke. It is an open secret that none of the political parties follow the law in respect of the spending limit in the election campaign. This is mainly because the actual cost of running an election campaign is often much greater than the prescribed spending limit. The National Commission to Review the Working of the Constitution, 2001, advised that the ceiling on election expenses should be suitably raised to a reasonable level reflecting increasing costs, for the various legislative bodies. The current ceiling which has been amended after 2000 is Rs. 40 lakhs for a Lok Sabha seat and Rs. 16 lakhs for an Assembly seat (It varies between 8 to 16 lakhs, depending upon bigger states and union territories). the parties don’t follow the law, we all know we can’t expect them to strictly adhere to Model Code of Conduct which is not even enforceable under the law. So the first basic suggestion is the ‘code of conduct’ should have some enforceability and not just the ‘pinky promise’ of the political parties. Second would be to increase the spending ceiling that is there now. No ways, elections can be conducted with such tight budget. If the limit is increased then there would be some level of transparency as to the actual spending done by the candidate, not the fudged numbers submitted now.
Third, is to repeal the amendment enacted in the year 2003 to Section 3 of The Representation of The People Act 1951, while removing the words “in that state or territory” and inserting “in India” in its place. As a result of this, a person from any constituency in any state can contest elections to Rajya Sabha from any other State. This provision has been used to the extent that the Ex-Prime Minister Manmohan Singh is from Assam constituency, a state which they originally do not belong. What we need is, the contesting member should either be born, resident (name on the local electoral roll) of the constituency to enable proper representation of the seat in the legislative assembly. Also, specifically to the Upper house, (Rajya Sabha) should not have a number of seats with respect to the total number of population. But, each state will have a fixed number of representatives, i.e. suppose each state gets five, which means a small state like Goa would have five members in Rajya Sabha as well as a big state like U.P., therefore, the voice of the smaller states would not get drowned.
Fourth, a suggestion is to tackle the ‘criminalisation in political space’. P. V. Indiresan, Electoral Reforms: Representational Legitimacy suggested that persons against whom a prima facie case has been proved in a competent court should also be disqualified from contesting elections. It is admitted that such a move may also prevent innocent persons from contesting. But in light of the fact that standing for elections is a privilege and should be treated as such, this measure is a necessary evil. But, I think such a large blanket action would be unfair. There are already provisions to disqualify people who have been convicted of offenses. But, for contesting members, I think if any criminal charge-sheet is filed against such person. Then, the person has to move an application before the trial court to get specific permission from it, to contest in the local election. Whereby making it mandatory for the contesting candidate (against whom any criminal case is pending) to file certified copy of the order (giving him specific permission to contest) with his/her nomination papers. The Certified copy should be crosschecked by the returning offer to verify the authenticity of the order.
Fifth, suggestion is most radical and may sound absurd but I think it is the major surgery that is required to fix the patient. I’m suggesting a reset! Two and a half years after the general elections, we should conduct state elections in each and every state. There should be a gap between the election for states and center. Therefore a sentiment for or against a particular party doesn’t mean complete power or complete wipeout. This change would mean the country would get out of the constant cycle of the election. After state elections in U.P., Uttarakhand, Manipur and Goa (March 2017), we have elections in Gujarat, Nagaland, Karnataka, Meghalaya, Himachal Pradesh and Tripura in the following year (January-March 2018). In India, there are elections being conducted in some part or the other. All the parties are constantly in campaign mode. If, we get out of this election cycle; the political parties could take the one eye off the next election and focus on the issue at hand and look at it objectively rather than to be just populist but pragmatic. The opposition who has a very important role in the democracy would not simply oppose for the sake of it but debate and look at the issue without prejudice to the upcoming election. The reset would mean two and half year gap between two set of elections. If there isn’t a clear mandate or no confidence motion is passed then after the subsequent election, the term of the new government would mean only completing the term of old government and not full five years. To be realistic, despite being ‘coalition raj’ such situation (unclear mandate or no confidence motion) in today’s politics is highly unlikely. At least the Coalitions always gets a majority in the house, may not be a single party.
Sixth, Get NOTA to mean something, right now if you don't like any of the candidates who are contesting in an election. The voter can simply select "None of the above" (NOTA) option. But it doesn't mean a negative vote or if the majority voters select NOTA, still the candidate with the majority of votes wins the election. My suggestion is to change this part. That is if the majority of the voters from a constituency use the NOTA option than there should be re-election with the existing contestants not allowed to contest in the re-elections.
Seventh, is to get some sort of education qualification standards for membership. Apart from Age, Citizenship we need to set better qualification standards for our elected representatives. The law-makers should, in my opinion, should at least have a minimum Law degree.
Lastly, as I’ve said it in my previous blog, Regularising Lobbying India thereby getting in better transparency into the election funding and other government functioning and decision-making process. There have been some movement in the past which states that Political parties need to report any contribution in excess of Rs. 20,000 to the EC for claiming income tax benefit. But, this just means many Rs. 19,000/- deposits.
I think these are the solutions to the major problems that we have with the political system and the election process. You may agree to some of them, you may not. One thing we defiantly agree on that system needs to be fixed. Politicians have for too long abused it; played politics along the lines of caste, religion, and sex; used money and muscle power for their political gain. There is a need for change and this change that can only be brought by using the magnificent weapon given to us by our founding fathers. By using the freedom to vote for whomever, we want. We need to make an informed decision, do not vote anybody simply cause your family has been inclined to that particular party in the past. Do not vote a particular person just because his/her father is also a politician or because he/she is making populist claims and giving freebies or giving you money in return. Vote for the one you think is right. Find out about his/her Affidavit submitted declaring wealth, education qualification, experience, plan of action for the constituency, compare if previous promises in the manifesto have been kept or not; then vote. All I’m asking is to make an informed decision and ask him about getting such changes in the system. If you don’t like anybody then use NOTA or contest yourself.
Mahatma Gandhi said, “Be the change you want to see”. If you agree with me that there is a need for systemic change then take pledge yourself that next time you will make an informed decision while voting. Take some time out to find the information. Easily available on www.myneta.info This may not be possible for every Indian but if the 250 million Smartphone users also decide to do this, that would be more than enough. (I’m not counting the literate, just Smartphone users).