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Suggestions from and views of Youth For Equality on Representation of the People (Second Amendment) Bill, 2008

Submitted to
The Standing Committee on Personnel, Public Grievances, Law and Justice
(Chairperson: Dr. E.M. Sudarsana Natchiappan)

Dear Sir,
It is disheartening to see how political class has become insensitive to the needs of the country. The current bill is a sham exercise in name of reform where, in effect, reforms are conspicuously absent. Like previous efforts, this amendment also fails to suggest any fundamental change in the existing electoral system. The Parliamentary Committee should suggest for immediate withdrawal of the current Bill and should suggest a more comprehensive Bill seeking some definitive, concrete changes in the existing system.

We feel that following steps are necessary for improvement in our parliamentary democratic system:

I. De-criminalization of Politics
In the current assembly elections, as much as 40% of elected MLAs have criminal background. Taken together, one out of every five MLAs in five states where elections were held recently has a criminal background. Even in current Lok Sabha more than 20% members have got a criminal background. There is a need to purge out crime from politics. We feel the below mentioned steps / modifications / amendments are required to achieve this purpose:

  1. Any person who is accused of an offence punishable by imprisonment for five years or more should be disqualified from contesting election even when trial is pending, provided charges have been framed against him by the competent court. The argument of the political class that a person is presumed to be innocent until he is proved guilty, does not hold ground. Keeping a person, who is accused of serious criminal charges and where the Court is prima facie satisfied about his involvement in the crime and consequently framed charges, out of electoral arena would be a reasonable restriction in greater public interests. Secondly, when there is a clash between the society's right to have fair and proper representation in legislatures and the individual's right to represent the people, clearly society's rights take precedence over individual right. The right to contest elections is not a fundamental right. The harm done by denying an occasional innocent person a chance to contest is much less than allowing a criminal to be elected. Such person should be disqualified for being chosen as, or for being, a member of Parliament or Legislature of a State on the expiry of a period of one year from the date the charges were framed against him by the court in that offence and unless cleared during that one year period, he shall continue to remain so disqualified till the conclusion of the trial for that offence. In case a person is convicted of any offence by a court of law and sentenced to imprisonment for six months or more the bar should apply during the period under which the convicted person is undergoing the sentence and for a further period of six years after the completion of the period of the sentence. If any candidate violates this provision, he should be disqualified. Also, if a party puts up such a candidate with knowledge of his antecedents, it should be derecognized and deregistered.
  2. Any person convicted for any heinous crime like murder, rape, smuggling, dacoity, etc. should be permanently debarred from contesting for any political office.
  3. Criminal cases against politicians pending before Courts either for trial or in appeal must be disposed off speedily, if necessary, by appointing Special Courts.
  4. A potential candidate against whom the police have framed charges may take the matter to the Special Court. This court should be obliged to enquire into and take a decision in a strictly time bound manner. Basically, this court may decide whether there is indeed a prima facie case justifying the framing of charges.
  5. The Special Courts should be constituted at the level of High Courts and their decisions should be appeasable to the Supreme Court only (in similar way as the decisions of the National Environment Tribunal). The Special Courts should decide the cases within a period of six months. For deciding the cases, these Courts should take evidence through Commissioners
  6. If any misleading or incorrect information is furnished in the Affidavit, or if any facts are concealed, such a person shall be disqualified for a period of twelve years with imprisonment for two years.. In case such a person has been already elected, his election stands nullified and he shall be disqualified for twelve years along with imprisonment for two years. In such cases a complaint shall be filed before the Election Commission, whereupon the Commission shall issue notices to the compliant and the candidate and after summary enquiry give its decision within 45 days from the date of complaint. The decision of the Election Commission shall be final and binding.
  7. If an elected MP/MLA is convicted and sentenced, he/she will cease to be a member of the house. His/her case will undergo hearing in special Court which will deliver its decision in three months. Even after three months, if found guilty, the legislator should remain disqualified and repeat election should be conducted.
  8. The members of Parliament and the State Legislature should be governed by the same set rule as those applicable to other contesting candidates.
  9. There should be an electronic nomination form for candidates, which should be available on internet for public viewing immediately after filing the nomination.
  10. The voter pool should be enlarged. Every effort should be made to encourage educated electorates to cast their votes. This can be done at two ends: firstly by facilitating internet voting from their home or work place, and secondly, by making voting compulsory.

II. Move away from present First-past-the-post system (FPTP) system of voting

The first-past-the-post (FPTP) or Single Majority (SM) vote system is the major cause of the decline in political culture. In this system, the candidate who achieves maximum number of votes is considered to represent all the electorate. The winning candidate usually secures 25-30% votes and the remaining 70% voters have no representation in the Governance. Similarly, the ruling party also represents only minority of the electorate with consequent marginalization of large segments of public opinion. As only a small fraction of votes is required to win the election, the candidates pay more attention on to develop secure vote banks rather then broad developmental policies. This leads to sectarian politics.

Legislatures elected under FPTP are usually highly unrepresentative of the distribution of political opinion among voters. In India, a further problem arises because most general elections are decided by the 5 per cent or so of 'swing' voters who switch between elections. Campaigning and policies therefore tend to be aimed at this tiny and highly unrepresentative group.

In the present FPTP system, if there are two candidates, each voter has four options: prefer candidate A to candidate B; prefer candidate B to candidate A; consider both A and B acceptable; deem both A and B unacceptable. With only one vote at their disposal, voters can make only the first two choices; they are prohibited, under pain of disqualification, to make the other two. This problem gets aggravated when candidates are many. For instance, where there are a score of candidates, voters are allowed to indicate only their top preference. They are compelled not to voice their opinion on any one of the other candidates. Thus, the prevailing one vote per voter rule is an unfair restriction on the freedom of voters. Worse, it is a mathematical rule that this will silence the majority.

In the FPTP system, there is desperation to somehow win the election in a constituency by all means fair or foul, as each seat becomes critical in the legislative numbers game to form government. The ugly practices adopted by a party at the constituency level become somehow acceptable in this quest for electoral success. Once a candidate obtains party nomination, he and his caste or group often make it an issue of personal prestige to be elected in the winner-take-all electoral and power game. As election in each constituency runs on similar lines, the parties and candidates are not inhibited by the fear that their illegitimate efforts to win a few constituencies might undermine the larger objective of enhancing the voting share in a whole state or the nation.

Another feature of the FPTP system is that reform of the polity becomes more and more difficult. Genuinely reformist groups with significant but limited resources and influence have no realistic chance of success in the FPTP system and they tend to wither away. In a system in which winning the seat by attracting the largest number of votes is all-important, honest individuals or reformist parties fighting against the electoral malpractices and corruption have very little chance of success.

Among the many other electoral systems, the diversity of the Indian electorate makes the Single Transferable Vote or STV system an attractive alternative. STV has several advantages. First, voters have more choice than they do in any other electoral system. Secondly, far fewer votes are wasted, that is, cast for losing candidates or unnecessarily cast for the winner. Most voters can also identify a representative whom they personally helped to elect, and parties have an incentive to present a range of candidates in order to maximize their higher-preference votes. This helps women and minority candidates, who under FPTP are often overlooked in favors of 'safer' candidates. After the election, voters have a choice of representatives to approach with their concerns, rather than just one, who may be unsympathetic to a voter's views, or may even be the cause of the problem. Voters in a constituency can also compare elected representatives.

In STV, instead of voting for their best choice and rejecting even those who were otherwise acceptable, voters are free to indicate which candidates are acceptable in order of preference. Candidates who depend on narrow vote banks will, therefore, be outnumbered by those who have broader appeal. Only those candidates who favor a broad consensus, who promote the welfare of the majority, will succeed. In short, the system will bring to the fore positive-minded leaders who will seek to serve the interests of the majority and thereby reject those who are negative and depend on an assertive minority.

Most importantly, the elected Legislatures far more likely to be reflective of the voters' views. The political parties will also have to accept that in STV there are no safe seats. Candidates cannot be complacent and parties must campaign everywhere, not just in marginal seats. When voters can rank candidates, the most disliked candidates cannot win as STV makes it difficult for them to get second - and third-preference votes. In addition, by encouraging candidates to seek first- and lower-preference votes, STV reduces the effectiveness of negative campaigning in the sense of attacks on other parties or candidates. STV also reduces tactical voting, and creates a more sophisticated link between a constituency and its representatives. There is a greater incentive to campaign and work locally, and the electoral results are likely to be more reflective of the range of local feeling. A possible advantage for India is that successful candidates will generally not know whose votes have helped them, because they may have needed second- and third-preference votes in order to reach the quota. So STV could reduce the importance of vote-banks.

III. Internal Democracy and transparency in working of political parties.

170th report of the Law Commission of India says : "With a view to introduce and ensure internal democracy in the functioning of political parties, to make their working transparent and open and to ensure that the political parties become effective instruments of achieving the constitutional goals set out in the Preamble and Parts III and IV of the Constitution of India, it is necessary to regulate by law their formation and functioning.

The Hon'ble Supreme Court also observed: "It is the political parties that form the government, man the Parliament and run the governance of the country. It is therefore, necessary to introduce internal democracy, financial transparency and accountability in the working of the political parties. A political party which does not respect democratic principles in its internal working cannot be expected to respect those principles in the governance of the country. It cannot be dictatorship internally and democratic in its functioning outside". We request that the recommendations in the Law Commission's report "PART II-A: Organisation of Political Parties and matters incidental thereto", should be introduced/inserted in the RP Act, 1951.

IV. Candidates should not be allowed to contest an election from more than one constituency.

V. Political parties should get their accounts audited by government approved auditors and make these available to the general public.

VI. Surrogate advertisement on behalf of a political party or candidate should be prohibited.

VII. Government advertisements should be prohibited for six months prior to the date of dissolution or expiry of House term except for information on government schemes.

VIII. No Government advertisement should carry the name or photograph of a political person.

IX Include 'none of the above' on the ballot paper for voters who do not wish to vote for any of the candidates listed on the ballot. Introduce this option in existing EVMs.

X. There should be provision of 'Negative Voting'.

XI. The Electorate should have the 'Right to Recall' the elected candidate.

XII. Each candidate must declare possible ideological alliance with other political parties, and should also declare his stand on a number of designated issues, relevant to whole nation, state, and the local constituency. Deviation from any of the above should automatically call for disqualification of the elected candidate.

XIII. There should be an independent, autonomous institution to monitor conduct of legislatures and MPs.

XIV. Allow appeals against the order of the electoral registration officer to be submitted to the district election officer.

Regarding the proposed amendment of Section 24 of the RP Act, 1951, which proposes that the first appeal against a decision of the Electoral Registration Officer should lie with the District Magistrate or the Additional District Magistrate, and the second appeal (against the decision of the District Magistrate or the Additional District Magistrate) should lie with the Chief Electoral Officer, it is felt that the proposed provision will adversely affect the independence of the electoral process. The District Magistrate or the Additional District Magistrate are parts of the existing administration in the state and are unlikely and unable to function independently of the overall state administration which is obviously guided by the political executive in power in the state, and their decisions in such important matters such as granting of the right to vote are likely to be influenced by partisan considerations and interests of the political party in power. This amendment is therefore not in the interest of ensuring and enhancing the purity and impartiality of the electoral processes.

If there is indeed the intention of facilitating the process of appeal by the citizens, then the first appeal should be made to lie with the District Electoral Officer, so that the control of the Election Commission over the voter registration process, which is the bedrock of elections and democracy, is not diluted.

XV. Make the voting mandatory. At the same time facilitate voting by different means. Introduce internet voting or voting by similar electronic media.

XVI. Evolve a fool proof biometric system of identification which does not involve external human factor and the voter need not carry a paper ID proof.

We will be glad to participate and elaborate further on our views and suggestions.

Thanking you
Sincerely yours
Youth For Equality

Contact details:

Youth For Equality
P-91, South Extension Part-II
New Delhi-110049
Phone: 9868340420
Email: info@youthforequality.com

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