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Right to Recall Elected Representatives: Whether viable in the Indian Scenario?
Sonika Bajpeyee looks into the concept of right to recall closely with an objective to analyse whether conferring the said right on the citizens would be viable in the context of India. |
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RIGHT TO RECALL: THE UNDERLYING CONCEPT
Unfortunately, India is witnessing a constant rise in unethical and irresponsible behaviour on the part of the elected legislators. There are numerous instances which could demonstrate the said preposition, for instance, (i) Sariprakash Jaiswal has openly rejected the findings of the CAG report on the coal-gate scam, (ii) Vilasrao Deshmukh has allegedly been involved in the infamous Adarsh Society scam, (iii) A.Raja had engaged in massive corruption during the allocation of 2G-spectrum etc. It this backdrop, there has been a wide-spread demand to have a right to recall or a right to de-elect our elected representatives.
Recall is basically a process whereby the electorate has the power to remove the elected officials before the expiry of their usual term. Thus recall confers on the electorate the power to actually ‘de-elect’ their representatives from the legislature through a direct vote initiated when a minimum number of voters registered in the electoral role sign a petition to recall.
‘Right to recall’, along with the ‘right to party platform’, finds its justification in the ‘basic structure’ of universal democracy. When a person is voted to power by the people based on his ‘party platform’, the said platform assumes the status of a contract and the elected person is under an obligation to honour the same. In a universal democracy, a default on the part of the elected representative vests in the electorate an ‘inalienable and non-negotiable’ right to recall such a representative. Therefore, the right to recall is a democratic tool which ensures a ‘greater accountability’ in the political system as the electorate retains control over those legislators who are underperforming or are misusing their office for their selfish gains.
The need to have a corruption-free government was highlighted by the Hon. Supreme Court in State of Madhya Pradesh & Ors. v. Shri Ram Singh, and recall of delinquent representatives undoubtedly seems to be one way of achieving that. The very basic objective of recall is to ensure ‘good governance’ by eliminating the corrupt, unworthy officials. But as of today, India does not have a recall provision except in certain states like Madhya-Pradesh or Chhattisgarh where people have the right to recall their representatives in local bodies.
Quite interestingly, India has certain other mechanisms which aim at having ‘good governance’, however, due to their failure to serve the intended purpose, there is a vehement demand for having recall provisions at both State and the National level. Apart from this, the successful recall elections held in local bodies of Chhattisgarh in the year 2008 has further revived the confidence of the proponents of recall to demand the said right.
THE PROCESS OF A RECALL ELECTION:
A COMPARITIVE STUDY OF US, UK AND INDIA
Right to recall is present in various jurisdictions across the world, for instance, United States (US), Canada, Venezuela, Philippines, Switzerland, British Columbia etc. Apart from this, a lot of countries are trying to bring in place a recall system given the various benefits of the said right, for instance, Sweden, New Zealand, Germany, and United Kingdom (UK) etc.
If one looks at any of the existing recall processes or the envisaged ones, there is a fundamental procedures which are is followed across the board. For instance, such commonality of procedure can be demonstrated by comparing the existing recall process of US against the one enumerated in the ‘Recall of elected representatives Bill, 2012-13’ of the UK.
The recall process in US commences with the filing of a notice of intention to circulate a recall petition, however, eight states requires certain grounds to be shown before the filing of such notice. Similarly, in UK the recall would commence only when the Speaker gives the notice to the returning officer indicating that a ‘condition’ triggering recall has occurred.
The next step involved in a recall process is the circulation of the recall petition and getting it signed by a ‘minimum number’ of voters within a ‘specific time’ . Once the requisite percentage of signature has been collected, the process of the verification of these signatures is undertaken. After the said gamut of events, the seat of the recalled representative is automatically vacated and a by-election is held.
India witnessed its first recall election in the year 2008 wherein three local body chiefs were de-elected by the people in accordance with the Chhattisgarh Nagar Palika Act, 1961. The procedure for the recall which is put forth by the said act and followed thereafter in the Chhattisgarh scenario raises various interesting issues when one tries to imported it into the general elections held at both state and the national levels, for instance, who should have the liberty to initiate a recall, whether the requisite number of votes to be cast by the electorate to effectuate a recall is too small a threshold, when can a recall election be initiated, how many chances does one have to recall a particular representative, etc. After putting forth some of the concerns which will require a careful attention and speculation, the basic issue remains the viability of conducting recall elections at state and the national levels.
RIGHT TO RECALL: THE FUNDAMENTAL DEBATE
ARGUMENTS IN FAVOUR OF RIGHT TO RECALL
This line of argument believes that the role of the representatives in the decision making is becoming marginalised with each passing day and this can be attributed to their lack of competence and ethics. The electorate brings a representative on the basis of the party platform and should definitely have a fallback mechanism if the representative fails to honour the same. Recall-provision essentially is the same fallback mechanism which vests in people the control over such unworthy representatives who have failed to secure the best interests of their electorates. Also, right to recall would check corruption as well as the criminalisation of politics.
To put it differently, the proponents of right to recall argue that if an individual can ‘elect’ a representative, then he should also be given the liberty to ‘de-elect’ the same. Such a system of de-electing the representatives would force him to conduct himself in a manner consistent with the interests of his constituency because the security of his position would now be contingent upon the post-election approval of his electorate , which in long term would infuse a ‘greater accountability’ in the system.
Additionally, it is also argued that having the system of recall will deter candidates from spending crores of money in campaigning for the elections because they will always have a fear of being recalled. Apart from this, some proponents of recall perceive it as an ‘option’ to correct wrong decisions without having to wait for the next five years.
ARGUMENTS AGAINST RIGHT TO RECALL
The most fundamental argument against right to recall is that it can lead to an ‘excess of democracy’ where the independence of representatives will go down due to the perpetual threat of being recalled. Apart from this, to escape a recall would demand the representatives to always keep their respective electorates happy, which would force these representatives to succumb to the populist pressure. Thus, recall would inevitably discourage the representatives from using their own judgment and coming up with tough but unpopular stands rather than the populist ones, which militates against the fact that we are a representative democracy wherein MPs and MLAs rise above the local duties and undertake national and state-level ‘duties’ respectively. Such tying up of representatives to their electorates is inherently detrimental to the larger public interest and hence should be avoided at any cost.
Additionally, having a recall system in India would not only create unnecessary chaos due to recurring recall election, but also would destabilise the government. Recall in a country like India would be very vulnerable to abuse by influential political groups and would give us those criminals as our leaders who could use strong-armed methods to prevent the recall being exercised against them . Leaving all these questions aside, there is always a question of practicability of conducting a recall which would involve enormous amounts of money, manpower, time etc.
It is also known that the Indian democracy vests the power of removal of elected representatives in Parliament or the State legislature itself, even though the power to elect them lies with the people. Indian democracy has certainly defied its conservative parentage and has tried to be as inclusive as possible by giving to its citizens a framework which ensures political equality, however, the introduction of recall would bring down this inclusiveness as only politically alert citizens would benefit from it.
Lastly, it is argued that introducing recall would unnecessarily undermine the role and importance of our representatives which, in fact, would weaken our democracy.
ANALYSIS
MPs and MLAs in India are given a lot of privileges and liberties. This is done so with an objective to bestow upon them the requisite independence which enables them to formulate effective policies. However, the introduction of recall (even though being premised on the lofty idea of ensuring a greater accountability), it seems, would irreparably jeopardize such independence. Recall would, in effect, put every legislator under a constant threat to be removed out of the office if the electorate does not seem to like him. To succumb to the demands of the electorate would be the only way to survive for these legislators, which would inevitably bring down the quality of the policies formulated. Apart from this, it is very likely that the system of recall would revive all the evils for which a system of recall is envisaged at the first place, for instance, party politics, instability in legislative bodies, corruption, bribes etc. It seems that having recall in India would shift the focus of the parliamentarians from policy-making to making sure that their seat is secure, which would rather prove to be counter-productive for our democracy.
Also, recall is essentially a means of ensuring vertical accountability as opposed to horizontal accountability. In recall, the power to remove an unworthy representative must be with the people themselves, and not the other representatives. Unfortunately, in Mohan Lal Tripathi Vs. District Magistrate, Rae Bareilly and Ors., the Hon. Supreme Court opined that- “A President who is elected by the entire electorate when removed by such members of the Board who have also been elected by the people is in fact removal by the electorate itself. The Board represents the entire electorate as they are representatives of the people although smaller in body. Such provision neither violates the spirit nor purpose of recall of an elected representative.” However, Hon. Allahabad High Court later in the case of Smt. Ram Beti Vs. District Panchayat Raj Adhikari and Ors. advised that the provisions of removal of the representative could be made more stringent by restoring the old provisions of recall by Gram Sabha i.e. by the electors themselves. The position taken by the Supreme Court appears to be quite dangerous considering the ample scope created for arbitrariness and bias in such recalls, and therefore, the advice given by the Allahabad High Court indeed holds substance. Therefore, the interests of justice and fairness demand that the de facto power to remove the representatives should be with the electorate itself and not the representatives of the electorate.
The next question which needs to be addressed at this stage is whether a system of vertical recall is viable in Indian scenario. The ex-Chief election commissioner S. Y. Quraishi has highlighted various implications involved in introducing such a system in India, for instance, such a system would require a minimum percentage of the electorate to sign the petition for effectuating a recall, the verification of authenticity of those signatures, verification to see whether those signatures were given with free consent or under coercion, minimum time for presenting the petition before the electorate as well as gathering the requisite signatures, holding a subsequent by-election etc. The conduct of a by-election would further require a lot of resources including financial resources, man-power, time etc. Apart from this, it would be difficult for a lot of Indians to appreciate the entire process of recall owing to the low literacy levels in the nation. Keeping all these factors in mind, it seems that recall could at best be introduced in local government level, but not on a State or National level.
Amidst the entire debate surrounding the introduction of Right to recall in India, one must not lose sight of the fact that the said right is a means to achieve certain end-objectives and not an end in itself. Thus, one has to speculate over what that ‘end-objective’ is, and whether we have other ways possible to secure it. It is submitted that any electoral reform, in the present case the right to recall, aims at ‘good governance’. Recall is quintessentially a ‘post-election’ measure to ensure accountability from the elected representatives, however, there are already in existence various neglected ‘pre-election’ measures which aim to achieve the same purpose. Some examples of such pre-election measures would be the provisions relating to disqualification and expulsion of members and the existing vigilance bodies to check corruption etc. These pre-election measures are comprehensive enough to realise the cherished goal of ‘good governance’, however, there is a serious problem with the implementation of the same. Therefore, it is suggested that the introducing the post-election measure of recall would rather be a very ‘premature’ move and hence, the focus should be on a better implementation of the pre-election measures instead.
Apart from this, one also needs to focus on the root-cause of having unworthy representatives warranting us to ask for recall elections and the possible solution of the same. S. Y. Quraishi has opined that increased and informed participation in elections would increase the quality of representation. Therefore if the quality of representatives elected has a direct nexus with the quality and the quantity of voters present, the main focus should be on enhancing the political awareness of masses by various means possible and on ensuring a better turn-out of voters in the elections respectively. In fact, the Election Commission of India has undertaken ‘social marketing strategies’ to increase political awareness and it is in the process of forming alliance with media departments and organizations for ensuring greater participation of people in elections.
CONCLUSION
Right to recall seems like a very attractive idea on theory but introducing such a right would not only entail practical difficulties, but also bring along various undesirable repercussions. The idea to have recall elections does not seem to be the best idea when we already have other measures to ensure good governance. The focus should be on reviving the existing measures as well as finding solutions to the root-cause of having poor quality of representation at the first place.
A right to recall is not viable in India as of today. It might be viable in future, if the system of internet voting is introduced which could eradicate all the practical difficulties which have been already looked into. However, whenever recall is introduced, an attempt should be made to minimise all the foreseeable abuses of the same by devising a robust recall-procedure. For instance, a recall in India should only be triggered when a very high percentage of electors petition for a recall. This would check the institution of frivolous recall petition by the losing parties, more so in the light of our first-past-the-post voting system. Second, a recall should be carried only after conducting proper judicial scrutiny on certain specific grounds and not on vague or ambiguous grounds. Considering the delay that might be caused in the normal court proceedings, it is suggested that the Courts should have a bench that deals with election matters and admits them without any delay. However, whether this bench should be permanent or should exclusively hear election matters is a matter to be decided after an assessment of the probable work-load that it would cast upon the proposed bench. A proper judicial scrutiny by such a bench would ensure that a representative is not recalled on the whims and fancies of the electorate but on proven misconduct on the part of such representative. Third, the recalled representative must be debarred from contesting the by-election held thereafter. This would ensure that there is no scope of the same candidate coming into power otherwise all the money, man-power, time etc in conducting the recall would go in vain. Also, debarring him from contesting the recall election would serve as an ‘actual’ deterrence for him to engage in any kind act leading to such recall. Apart from all these suggestions, the right to recall or de-elect must be given a statutory recognition and the process to effectuate the same must be laid down in clear, unambiguous terms. Lastly, there should be certain methods to analyse the performance of the representatives on a timely basis through an independent body. These records of the performances of various representatives should be made public in order to enhance public awareness thereby facilitating the recall process. If such cautions are undertaken while formulating a recall process for India, we can minimise the risk posed by recall and benefit from being not led by corrupt, unworthy officials.
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| SONIKA BAJPEYEE is a fifth year student pursuing B.A./B.Sc LL.B (Hons.) from National University of Juridical Sciences, Kolkata. She may be contacted at sonikabajpeyee@gmail.com. |
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