Electoral Reforms - Right to Recall (RTR)

Justice Ajit Prakash Shah, Former Chief Justice of Delhi High Court, Chairman, 20th Law Commission of India has evaluated the concept of Right to Recall and published vide 255th Report under Chapter XII rejecting this proposal and the report was submitted to the then Hon’ble Union Law & Justice Minister Mr. D.V. Sadananda Gowda vide D.O. No.6(3)/240/2013-LC(LS) dated 12th March 2015.

The Right to Recall ('RTR') is a process in democracy by which an elected representative is recalled on account of under-performance, corruption, or mismanagement while still in office, by filing a petition that results in Bye-election. Though there are demands for introducing this system at the state and parliamentary level. However, proponents of RTR have not detailed the governing procedural framework, namely the percentage of electors needed to sign the petition; the grounds for initiating recall, or indeed whether any grounds are necessary; the minimum period, after which recall can be initiated; nor specified the authority competent to decide whether to commence the recall based on the satisfaction of certain pre-conditions. Other questions such as determining whether voters who did not vote in the original election can initiate a recall, whether there can be repeated recall petitions, and whether the recall representative is disqualified from standing in the bye-elections from that or any constituency also require democratic consensus.

The National Commission to Review the Working of the Constitution (NCRWC)

Ministry of Law, Justice and Company Affairs Department of Legal Affairs, Government of India has set up the National Commission to Review the Working of the Constitution vide Government Resolution dated 22 February, 2000. The terms of reference stated that the Commission examined, in the light of the experience of the past 50 years, as to how best the Constitution can respond to the changing needs of efficient, smooth and effective system of governance and socio-economic development of modern India within the framework of Parliamentary democracy, and to recommend changes, that are required in the provisions of the Constitution without interfering with its basic structure or features. The Commission submitted its report in two volumes to the Government on 31st March, 2002. It may be noted that the 255th Law Commission Report had mentioned in Chapter 12 Clause 1 that the NCRWC report 2001 did not support the introduction of RTR finding it either 'impracticable or unnecessary'. However the report under Chapter 4 has dealt extensively about the Electoral processes and Political parties wherein the Objectives of the Founding Fathers, Provisions of the Constitution, Magnitude of the task, Successes and failures, Identifying the problem areas, Attempts at reforms, Suggested reform options, Electoral rolls and voter ID, Electronic Voting Machines (EVMs), Booth capturing and rigging, Caste and communal hatred, Criminalization, Corrupt practices and election petitions, High cost of elections and abuse of money power, Reducing the cost of elections, Question of representational legitimacy, Delimitation of constituencies, Defections, Oversized Council of Ministers , Problems of Instability, the eligibility of non-Indian born citizens to hold high offices, Appointment of the Election Commissioners and State Election Commissioners, Candidates owing Government dues, Office of profit, Constitution and Law in relation to Political Parties, Law for political parties, Recognition of parties, Needs for stability, Scourge of criminalization, Funding political parties and Election returns. (This process is prescribed only for provisions under RTR prescribed for local elections in Chhattisgarh, Madhya Pradesh, Rajasthan, and Maharashtra. (Section 47 of the Chhattisgarh Nagar Palika Act of 1961 provides for the right to recall of elected presidents for non-performance. The recall process is initiated when ¾ of the total elected representatives within the urban bodies write to the district collector demanding recall.).It is still a mystery that though twenty years have passed no further study to find out concrete legal solutions have helped to address these issues related to Elections as each and every issue mentioned above still persists to explore the need for expand the electoral reforms in our country.

Hence this article is a small attempt to revisit the arguments put forth For and Against the RTR and the proposal was rejected on the basis of the recommendations of the Law Commission on Analytical basis as no further study has been explored or published as a report in public domain for nearly two decades now and was not considering the same in any form.

Analysing the Arguments For and Against the RTR

The arguments supporting the RTR primarily emphasize the importance of direct democracy in holding elected representatives to account by requiring them to seek post-election approval of their electorates. By providing a tool to dissatisfied citizens to rectify their mistake through 'de- election' of their representatives, RTR serves to deter their underperformance, mismanagement, corruption, or apathy. Hence the arguments for and against RTR were put forth based on non-feasibility and impractical citing examples from other countries without exploring new methods to study and enact new laws in our Indian Perceptive. One can visualize that Bad Examples never justify adopting or reject any argument especially when the dynamism of our Polity has proved to flexible and adaptive to address to perennial issues. It is still inexplicable to find out as to why only few arguments were advanced supporting RTR when compared to many irrelevant and hypothetical statements were submitted against RTR. Let us recall and analyze all the versions submitted before the Law Commission to enlarge the concept of Right to Recall as under:

ARGUMENTS SUPPORTING RTR

SCOPE TO EXPLORE NEW AVENUES

Electoral sanction in the forthcoming elections(often five years away) is the only means of registering dissatisfaction, and given the absence of any continuing monitoring or accountability mechanism, the damage to democratic institutions should be curtailed through democratic mechanisms and the RTR provides a 'democratic disincentive' for poor performance and abuse of office.

Electoral sanctions must include recovery of all salary and allowances including all privileges paid to the member, filing of cases through time-bound adjudication, once convicted heavy cash penalties including imprisonment and banning for life from contesting any elections including any members of his family and confiscation of all movable and immovable assets earned by abuse of power.

Consequent improvement in public trust in governance and encourage many politicians deliver good performances and reduce instances of corruption under threat of recall.

Public Trust and Reduction of Corruption should be inclusive of selection of candidates by his party. No guidelines and Regulations are put in place to exclude or bar all such politicians and his relatives having dubious corruption track record directly or indirectly.

Introducing the RTR may also deter candidates from spending excess amounts during their campaign, for a fear of being recalled.

Election related expenses can always be controlled by intervention of the Regulatory authorities and can be streamlined and performance of the elected and exercise of RTR by the voters will always result in contradictions from the elected and the governed.

Canada provides for the RTR for members of the Legislative Assembly only in British Columbia vide the Recall and Initiative Act 1995 where the Chief Electoral Officer is mandated to decide the validity of the signed recall petition, which can be submitted on any grounds after 18 months.

Recall and Initiative Act 1995 for Canada is very comprehensive and spells out all the procedures for conduct of Bye-elections. Applicability of the said enactment itself prompted the member to resign which only vindicates the strength of the law. Hence this shows that no strong arguments were put forth to evaluate and adopt the same law for our country.

ARGUMENTS AGAINST THE RTR

SCOPE TO EXPLORE NEW AVENUES

RTR can lead to an 'excess of democracy', wherein the threat of recall undermines the independence of the elected representatives - they will either pander to the majoritarian preferences and prejudices at the expense of safeguarding minority interests in passing populist measures.

'Excess of Democracy' and 'Independence of the Elected Representatives' is an undefined concept and they do not fall under the ambit of Constitutional framework. The elected will resort to a 'clientelist distribution of patronage', they will use fear or favour to ensure to ensure that they are not recalled is only hypothetical in a democratic set up.

The legislative wisdom in enshrining a five-year Lok Sabha or Vidhan Sabha term was premised on the need for time to draft and implement good policies and to ensure stability. RTR threatens to challenge that inasmuch as it incentivizes representatives to focus on local, constituency issues instead of larger public interest issues.

Elected representatives are voted to office only for local and constituency related issues and are entrusted with the duties and responsibilities of the population under his area. The question of larger public interest issues can also be adopted and practiced well within his elected constituency and it would help him to enhance his performance.

Former Attorney General of India, Mr. Soli Sorabjee points out, recall 'subjects the elected member to the supervision and control of his constituency. That would impair the free and independent discharge of his function'

The learned counsel failed to understand that the basic framework of our constituency entails all the elected representatives to be monitored and controlled by his electorate facilitating free and independent discharge of his function only for the people only to make the democracy robust.

Former CEC, S.Y. Qureshi noted that the RTR can lead to greater instability and chaos, with various attempts being made by vested interests (either other political parties or opponents within the same party) to trigger the RTR on the smallest of issues .

'Smallest of Issues for few may be Largest of Issues for Many' as there is no yardstick prescribed in any law book. RTR would force the elected to work efficiently and honestly without any complaints at large from his electorate on account of corruption and non-performance

Given this considerable uncertainty and tool for (mis)use by losing candidates, legislators will shift their focus from policy formulation to saving their constituency seat at all costs.

Use or Misuse by losing candidates is part and parcel of politics and the elected cannot be quarantined from criticism both within and outside. Efficiency and Public Integrity and Honesty will show the direct route to save his seat and nothing else.

Mr.Soli Sorabjee observed that recall is fraught with serious consequences for the representative being recalled - for instance, will (and should) the MP/MLA be given an opportunity to be heard, in consonance with the principles of natural justice, and to respond to the allegations in the recall petition.

Being a former Attorney General how he has lost patience and confidence with the Judiciary and its process. These members are also citizens and can also seek relief or redressal from competent courts of Justice under the rule of law be it Civil Court or Special Courts or even High Courts.

RTR ignores the larger issues of political reform such as decriminalization, curtailing money in politics, internal democracy, and increased public awareness necessary to improve the quality of representation. Progress in these areas may eventually make the demand for RTR redundant.

Again this argument appears to be hypothetical. RTR only facilitates decriminalization, corruption and power awareness only to improve the quality of members in terms of Honesty, Efficiency and Public Integrity. RTR will be redundant or irrelevant only when our democracy is fully devoid of Corruption.

Mr. S.Y. Qureshi, former CEC pointed out that populated State and Parliamentary constituencies in India (unlike in Switzerland or even the US) will result in a large number of signatures required to initiate a recall petition, going into lakhs. ECI have to verify the authenticity of every single signature to prevent fraud and determine whether the signatures are genuine and consensual or obtained via fraud or coercion.

This is an obsolete argument. Now EVM is in place and online petitions can be called for from the electorate validating all the personal credentials irrespective of the number through many approved verification of the genuineness of identity and address without giving any scope for fraud and corruption.

Moreover, there is still the question of implementation and the expenditure of time and monetary resources cost in conducting regular bye- elections, supplemented by the fear of election fatigue

‘Election Fatigue' is only an imaginary proposition as it is part and parcel of our democracy. Cost of Bye-elections can always be made good through recovery by means of imposition of high penalties from the errant contestants violating the ECI norms

On the possibility of misuse, there is a fear that the RTR will be used by dominant caste members to harass lower caste elected representatives.

Caste based misuse of RTR can also be easily identified and addressed by inclusion of stringent Rules and Regulations including Implementation as extant laws are already in place to check for its strict compliance.

Hindustan Times, after surveying the experience in several states, reported some case studies on the functioning of the RTR. (Section 19 of the Punjab Panchayat Act, 1994 permits for removal after the completion of half the term, by moving a no-confidence motion against him. This was viewed by many as a tool for the influential against the weak and the poor.

Any such loopholes in the State enacted laws can always be plugged through amendments and improvement in the legal framework. Isolated cases in some part of the country can never be taken as a benchmark or basis to argue against strengthening of the democratic process in terms of election framework. This system can be dropped and secret ballot process can be adopted.

The RTR, is dangerous and liable to misuse in India that follows the first past the post system, where most winning candidates do not have the support and trust of 50% of their electorate in the first place.

RTR mandate can made 75% instead of the present 50% to remove an elected representative through a simple exercise of two options. It is a valid tool and license given to the electorate to monitor the performance of candidates.

In the U.S., 19 states allow the recall of elected state representatives, although there have only been two successful recall gubernatorial attempts - in North Dakota in 1921 and California in 2003 and the process is time-consuming

Comparing with US regarding circulation of petition, verification of signatures, etc is vague as ballot voting system is in place unlike 100% EVM in our country. Genuineness of the voters can always be revalidated using the available government authorized documents for identity and address

Switzerland recognizes the RTR in six of its 26 cantons, although not at the federal level. The required number of signatures in the recall petition does not seem to base on a percentage of the electorate and is instead a fixed number.

Switzerland model of RTR which was successful n November 2003 can always be made applicable for elections in our country when the same is adopted by making few modifications in the number in terms of percentage of voters in any electorate.

Venezuela is the only country to have a constitutional RTR, since its introduction into Venezuelan law in 1999 under the new Constitution’s Article 72. The RTR can also be applied against the Head of State, and was in fact used against President Hugo Chavez, who survived a recall election with 60% of the vote.

Chapter IV Article 72 of Venezuelan law deals with Social Rights for revocation. Once half of the term of office to which an official has been elected has elapsed, a number of voters constituting at least 20% of the voters registered in the pertinent circumscription may extend a petition for the calling of a referendum to revoke such official’s mandate. There is no attempt to study the Venezuela model and justify any reasons to put forth arguments against RTR as the Venezuelan law finds to apparent loopholes for applicability.

The UK is the latest country to introduce the RTR through its Recall of MP’s Bill 2014-15 introduced in the House of Commons on 11th September 2014. whereby a sentence for less than one year of an MP convicted of an offence and , when the 'House of Commons orders the suspension of the MP for at least 21 sitting days—or at least 28 calendar days if the motion is not expressed in terms of sitting days.' The recall petition needs to be signed by 10% of the electorate, following which the seat will be vacated and bye-elections held, where the recalled MP can contest again.

There is no attempt to study the latest RTR law adopted successfully by UK. Law Commission should undertake a detailed review and research on this model for effective adoption and implementation of their RTR model in our Indian Election laws.

Conclusion: There is an urgent need to review the concept of Right to Recall as the present election system warrants a 'practicable or necessary' in our democracy so that the elected members never resort to Resort Politics against the mandate and uphold our democratic principles

 

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