Electoral System Needs Change
Before It Is Too Late.
S. N. Shukla, I.A.S. (retd.), Advocate
Democratic form of Government has been held to be an important feature of the basic structure of our Constitution. However in actuality we have only the farce of democracy rather than real democracy. This is borne out by a scrutiny of the results of the Lok Sabha Elections 2004 and UP Assembly General Election 2002. Out of the 80 seats of Lok Sabha from UP only nine winning candidates could secure more than 50% of the votes polled and 20 candidates could not secure even 33% of the votes polled. Likewise, in the State Assembly Elections only 16 out of 401 winning candidates could secure more than 50% votes polled whereas 23 could not got even 25% of the votes polled. The picture becomes more dismal with regard to the votes polled by the winning candidates out of the total voters in the constituency. Even candidates who got votes of only 11 or 12% of the total voters in the constituency were declared elected for the Lok Sabha in 2004 and only 8 could get votes of more than 25% total voters in the constituency. Likewise, out of 401 MLAs only 17 could get votes of more than 25% of the total voters in the constituency whereas 5 could not get even l0%.
This anomalous situation is the restart of the flawed electoral system of ‘first past the post' embodied in the provisions of Sections 65 and 66 of the Representation of the People Act 1951 and Rule 64 of the Conduct of Ejection Rules 1961. These are at variance with the Constitutional provisions for choosing MPs and MLAs. Whereas Articles 81 and 170 required them to be chosen from the constituency, the Act and the Rules provide that the candidate getting the highest number of votes squall be declared elected. There is a world of difference between the two. Whereas, the candidate getting the highest number of votes may be said to be elected by the voters who voted for him, he cannot be said to be chosen by the constituency unless he has the support of majority voters of the constituency, or at least the majority of voters exercising their right of franchise. The word ‘choose' denotes a single entity doing it. When a group has to choose, it has to choose as if the group is one entity. Choosing does not fracture the chooser while electing fractures the electors. That is why if choosing is being done by a group, it has to be by consensus, or by a clear majority.
The word ‘suffrage’ finding place in Article 326 of the Constitution also guides us in the same direction. Suffrage does not go comfortably with the first past the post system. As per the Oxford Dictionary, when used in the context of a group, the word suffrage means “the collective vote of a body of persons” and “the collective opinion of a body of persons; hence, contextually, consensus of opinion; (common or general) consent”.
Thus, as a result of the faulty unconstitutional provisions in the Act and the Rules the so-called public representatives are not chosen by their constituency, but generally represent only the will of minority of the voters casting their vote, and not the will of the electorate of their constituency, or even of those exercising their right of franchise.
Moreover, to equate those getting less than 50% votes polled with those who polled more than 50% votes is also not legally correct and proper as according to the well settled law laid down by the Apex Court treating unequal as equal is also violation of Article 14 of the Constitution.
In the existing electoral system the member of seats won by a party has also no correlation with the percentage of votes polled by it. Hence, the number of seats won by a party is not a true index of its popularity among the voters and, therefore, does not reflect correctly the will of the people. The existing system of first past the post is faulty for this reason also. Thus, it is also violative of Article 19 (1) of the Constitution as it stifles the will and voice of the majority of we the People. The expression “freedom of speech and expression” which, in the case of Peoples Union for Civil Liberties, has been given the meaning to, include citizens' right to know the antecedents of the candidates will certainly include right to be represented in Lok Sabha and State Assembly. The MPs/ MLAs look after the interest of their voters only and the vast majority of the voters who do not vote for them have no voice in Parliament and Assembly.
Thus, the present system is against the basic structure of the Constitution as it amounts to negation of democracy and also fails to ensure free and fair elections, which is the basic requirement of democracy. As held by the Apex Court in (2001) 7 SCC 126 “Parliamentary democracy envisages representation of the People” (which is missing at present) and “The legitimacy of the law would be to ensure that the role of the political sovereign -the people- is not undermined'' (which the existing provisions fail to ensure). Instead, it gives undue weightage to the dominant caste/ community and fosters and reinforces divisive tendencies of casteism and minorities instead of checking them as emphasized recently by the Apex Court.
The existing system is unsuitable on practical considerations also. While it may work in countries like UK, Canada and Australia where there are only two/three parties, it is obviously not suited for our country where there are 7 national parties, scores of State level parties and more than 500 unrecognized registered parties.
Hence the existing system needs to be replaced by the one which requires the winning candidate to get more than 50 percent + l of at least the votes polled, if not of the total voters in the constituency since voting is not compulsory. This can be achieved through the system of proportional representation/single transferable vote or having a second round of polling between the first two contestants if none secures the requisite votes in the first round. It will ensure that no one/two castes/communities can dictate the outcome of the poll as the winning candidate will be required to get support of a much larger number of voters. Thus, it will minimise the politics of ‘Vote Bank’. This will ensure that public representatives, and thereby the Governments, actually have the popular support and legitimacy. Further, it will also check the unhealthy- mushroom growth of political parties and non-serious candidates.
The drawbacks of the present electoral system based on first past the post have been engaging the attention of the Constitutional experts and leaders concerned for the well being of the Nation and the success of democracy in the Country”. In the Constituent Assembly also, Sarva Shri Kazi Syed Karimuddin, K.T. Shah, Mahboob A1I Sahib and Thakur Dass Bhargava had pleaded for the system of proportional representation. The reasons (mass illiteracy, likely instability etc) given by Dr. Ambedkar for not accepting it then are no longer valid now. Way back in 1979 Shri N. A. Paikiwala said: “It seems essential to introduce partial proportional representation in the Lok Sabha”. Similar views were expressed by Sarva Shri B. K. Nehru, P. R. Dubhashi and A. B. Vajpayee in their articles in the ‘Reforming the Constitution’ (1992) edited by Shri Subhash C. Kashyap. Shri Kashyap himself and Sarva Shri Zail Singh, S. R. Mohonot and Iqbal Narain favoured a system under which one must get 50% votes to be declared elected. However, the sage advice of these experts/leaders has remained unheeded.
Dinesh Goswami Committee appointed by the GOI in its report in May 1990 had recommended that the Law Ministry and the Election Commission should consider setting up an Expert Committee to examine the issue. However, nothing has been done till now even though the resolution passed by the Parliament in August 1997 on the occasion of Golden Jubilee of Independence also put electoral reforms high on the agenda for action.
The indifference of the politicians in this regard is natural for obvious reasons since they are the beneficiaries of the existing system. Their self-interest has made them blind to the danger it is posing for the democracy and the Nation itself. Under the circumstances, Supreme Court, as the chief custodian of the Constitution, is the only hope for the Country. The stand taken by it in the Union for Civil Liberties case needs to be repeated. Once the existing provisions in the Act and the Rules are struck down as unconstitutional, the politicians willy-nilly will be forced to come up with an alternative on the suggested lines. We already have mobocracy in some states like Bihar and UP. Soon it may lead to anarchy. The malady needs remedy before it is too late. Otherwise, God save the country.
(Excerpts from the “North-East Quarterly” Vol.2, No.1, March 2009)
