CHAPTER – I
INTRODUCTION
The dictionary meaning of the word election is the act of electing or
choosing. It is the expression of free will of a person usually by the votes of a
constituent body1.
Election has been given much importance particularly
where the government is of democratic nature. Democracy means government
in which people rule over themselves. Hearn Shaw, while giving the meaning
of a democratic state, has said, “A democratic state, in short, is simply one in
which the community as a whole possesses sovereign authority, maintains
ultimate control over affairs and determines what sort of governmental
machinery shall be set up because democracy as a form of State is no merely a
mode of government; but is merely a model of appointing, controlling and
dismissing the government”.2
In a democratic state people have the right to give a shape to the
government either to appoint or dismiss it.
The people appoint a new
government after some years through elections and thereby express their will
on important matters through the press or other means.
Election is a device which a modern state creates amongst its citizens a
sense of involvement and participation in public affairs. Democracy is of two
types: 1) Direct, 2) Indirect or representative. In the first type, people express
their will directly of themselves on public affairs and it was originated from the
ancient Greek City States. It is followed in Switzerland. In India also this type
of democracy was seen during the Buddhist periods.
Coming to another form i.e., indirect democracy, the will of the state is
formulated and expressed not directly by the people themselves, but by their
representatives to whom they delegate the power of deliberation and decision
making.3 It is put in practice by following the means known as elections.
Hence the modern tendency has been to identify representation with
election. The reason is that the popular approval as expressed in the vote for a
person or a measure is believed to be the only ground of democratic legitimacy.
It is understood as a ruler’s right to rule. To discover the “will of the people”
election must be held or take place at regular intervals to give people a chance
to express their approval or disapproval of the stewardship of key office.
Representation is a matter of executive fact. Elections when seen in this
context appears to be a method of finding persons who possess this
representative quality4. If we observe the history we can find that apart from
electoral method of selection, representatives may be chosen in different
methods. Choosing representatives on the basis of technical achievements is
followed by the United Nations, German Federal Council etc., Another method
of considerable historical significance is inheritance of the office. House of
Lords in England and some of the French upper chambers rested upon this
basis. But it has become anachronistic for representative purposes in recent
times. Election has suspended it almost completely. In recent times election –
popular election – has become the most widely accepted basis for legitimate
representation.5
To understand the term election, a brief study of the historical
background of the term representation is necessary.
1.1.
Representation:
It is one of the basic aspects of modern government. It is always existed
in the past. Because of lack of awareness the Greek Philosophers also did not
see it. Plato and Aristotle hardly touched on the subject. And even there was
no word for it. It is mainly due to Greek’s failure to build representative
institutions. Romans also followed the footsteps of Greeks. The change came
in the Middle Ages.6
2
The idea of representation rooted in the theological notion that the head
of the Church represents God, the ruler of the Universe on earth. The idea of
making someone present, who is real ruler, because he is not able to take care
of the task himself, is in the modern mind, linked to the notion of election or
deliberate choice.
It may therefore be called voluntary or willed. In the
modern world direct general elections has been generally accepted as the most
rational method for choosing representatives.7
Thus, there is a need to elect a representative. The representative may
be elected by the people through the exercise of the right known as right to
vote. Without this it is impossible to elect representatives in a democratic state.
This was well defined by John Stuart Mill, the most powerful advocate of
women sufferage as, “Democracy postulated the equalities of men, a political
equality can be assured only when all citizens are granted the right to vote.
Laws and policies of the government concern all people and what touches all,
should be decided by all”.
1.2.
Political Representation:
It is the process by and through which the political power and influence
which the entire citizenry or a part of them might have upon gave a mental
action is within their express or implied approval exercised on their behalf by a
small number among them, with binding effect upon the whole community thus
represented. The most essential part of this descriptive definition is contained
in the phrase with their express approval. In this phrase, the recognition is for
constitutional setting of all such representation. It may also refer to the specific
approval of voter in election a particular person or set of persons to represent
them. By that act, these persons acquire representative quality.8
Thus to rule among themselves there is a need for representative. These
representatives may be elected by the people through the exercise of the right
known as right to vote. Without this it is impossible to elect representatives in
a democratic state.
This may be well defined by John Stuart Mill as
3
“Democracy postulates the equalities of men, a political equality can be
assumed only when all citizens are granted the right to vote. Laws and policies
of the government concern all people and what touch at all, should be decided
by all”.9
Whom should be given the right to vote is a controversial question. In
this regard people have different views.
According to Montesquieue, “all
inhabitants ought to have right at the election of representatives except such as
are in so mean a situation as to be deemed to have no will of their own.
According to Rousseau, “every adult should have the right to exercise
franchise”. Duguit is of the opinion that Rousseau’s doctrine led not only to
universal suffrage but to equality of suffrage.10
In America the above theory received support from the leaders of the
revolution like Otis and Paine.
For Franchise many qualifications are
prescribed from time to time. Some opined that proprietary persons only can
understand the importance of law and social order and hence they are able to
possess the franchise. But today it is not supported by the people. And another
qualification prescribed is education. Because illiterate do not know the value
of right to vote. This theory is also not true. The reason is that even in
uneducated persons, there are many intelligents and the laws affect them also.
However at present it is not considered as important to possess the right to
vote. Even women were denied of the suffrage for a long time, as they are
physically weak and may not be able to understand the laws. But J.S.Mill, the
most powerful advocate of woman suffrage said, “I consider it entirely
difference, women require it more than men, since being physically weak, they
are more dependent on law and society for protection.11
All the above lead to the introduction of adult suffrage. In democracy
it’s a great problem that whom should be given the right to vote. Most people
of the view that adult should be given right to franchise. Because the source of
sovereignty is people, it gives representation to minorities. It differentiates
citizens from alien. It even brings awakening in society, imparts political
4
education and brings about national unity. As such, the government enjoys the
confidence of the people.
In democracy political parties play a vital role because during the
elections they create consciousness among the voters.
Normally after the
declaration of election results, the majority party forms the government and if
no party gains absolute majority two or more parties form a coalition
government. The other parties who do not win and join the government acts as
the opposition.
The opposition parties also serve the country through its
criticism of ruling party if it exceeds its power and prevents from becoming
autocratic. Lowell has aptly said that conception of government by the whole
people in any large nation is of course, a chimera, for wherever the suffrage is
wide, parties are certain to exist and the control must really be in the hands of
the party that comprises a majority or rough appropriation to a majority of the
people. There are different types of party systems like single, biparty and
multiparty system. Multiparty system exists where there are more than two
political parties. It is observed in India, France, Italy and Germany. Biparty
system itself shows that there will be two major political parties in the country,
and it is observed in Britain, United States etc. Single party system is mostly
followed in Communist countries.12
Anyway in practice, bi-party and multiple party systems are necessary
for the protection of democracy. The concept of democracy is not new in
India, at the substance of self-government lies embedded in out past history.
This common form of democracy is generally represented by every person
enjoying the right to vote. The democratic way of working is the right means
to achieve the ends by peaceful means. It transforms the pressures which other
forms of government may use over individuals. It is a self discipline for all
particularly for the minority because it is better to accept it rather than to have a
conflict. As an alternative they can try to change power by peaceful methods. 13
During the post Independence in running a parliamentary democracy though it
5
differ to some extent with U.K., Germany where democratic system has
stability.
Prior to Indian Independence and the implementation of constitutional
provisions as prepared by the Constituent Assembly, the country was under the
way of the feudal Lords, the Rajas and Nawabs. There is a restricted franchise
and denial of political rights to the un proprieted or the illiterate or the weaker
sex or sections or racial and other minorities in the country.
Individual
freedom enjoyed by the people in democracy gives opportunity for the
development of each individual. This is the indication of democratic values
granted under the Indian Constitution14. Here it is necessary to quote Gandhi,
in his autobiography, “My Experiments with Truth” that “To safeguard
democracy, the people musts have a keen sense of independence, self-respect
and oneness and should insist on choosing as their representatives only such
persons as are good and true”15.
Parliamentary democracy as envisaged in the Constitution of India is
enjoined through a parliamentary Government which is of the British kind
which means that parliament is not an executive body. It is a deliberative body
supervising and overriding the activities of the Government which is
subordinate to it i.e., the Lok Sabha is elected regularly after every five years
directly by the people on the basis of adult franchise. It implies and includes a
permanent civil service which is neutral in its attitude to the government of the
day and runs on a party system, independence of judiciary, and free and fair
elections, among other things.
All these features of British parliamentary
democracy have been adequately incorporated in the several provisions of the
constitution of India.
The achievement of universal adult franchise in the culmination of a
culmination of a long process of struggle for political freedom and equality. In
our democracy which is based on the principle of the free exercise of franchise,
6
a vote is a valuable asset. It is important to see that the result of an election is
not a mathematical summoning of votes but the declaration of the will of the
people. The significance of the vote serves to emphasis the importance for a
democratic state of seeing that its elections score the real purpose.
For
satisfactory functioning of a democratic form of government, it is essential that
fair and impartial elections are held after regular intervals so that the fear of
being reflected at the next election may keep the ruling party aware of its
responsibilities. Every person of eighteen years, irrespective of caste, creed,
education and sex exercises the right to vote.
To ensure free fair and impartial elections, the constitution establishes
the Election Commission, a body autonomous character and free from political
or executive influence.
The Commission is an all India body having
jurisdiction over elections to Parliament, State Legislatures, offices of the
president and Vice-President. In order to prevent injustice being done to any
section of the people, it was thought best to have one central body which would
be free from local influence and have control over the entire election machinery
in the country. The Election Commission plays a pivotal role in the electoral
mechanism of the Country.16
In India, people mostly illiterates, are swayed by slogans and
sentimental speeches of the candidates and the political parties.
The
brotherhood and caste consideration play major part in the selection or election
of candidates.
The voters feel so much disgusted with their elected
representatives that many of them are carried away by the swift moving
current. Even people woke up from their deep slumber and started to assert
their right for ameliorating their economic conditions. The Indian people have
tried their utmost to bring some solution for the perpetual sorry state of affairs
but day by day conditions are deteriorating. When anybody talks about the
reforms the adult franchise has introduced in the European countries, he forgets
the major fact that the voters of Europe realize the importance of their vote and
7
they also know what benefit they can derive out of the support they extend to
the deserving candidates. So, there is less possibility for misled by any sort of
temptation or consideration. But if we observe out country people have less
experience about democracy. In fact, the vote is the national trust which has to
be exercised to improve higher Interests of the country.
Though the Indian constitution proceeds for the Universal suffrage, yet
no proper steps have been taken to educate the voter to realise the value of the
vote. This is in anyway a disadvantage that the voters are being misguided by
interested persons and parties. And sometimes the elections and the procedure
adopted by the vested interests kindles the progress because it obscures
fundamental changes in social customs and habits and the common interests of
the people. In the words of Dr. S. RadhaKrishnan :
“A Government is not democratic simply because it is voted into
power by the majority. It is not democratic where it is required to vote
only for one party. The test is whether it gives democratic rights to its
subjects, if it allows freedom of thought, speech and association to its
opponents. If a party brooks no rivals outside it and no dissensions
within it, even if it is voted by electorate, it is undemocratic”.17
Election is the foundation of a democracy and it is unfortunate that there
are so many malpractices associated with it in our country. It is a contest
carried on at the lowest common denominator of public morality by the
candidates and their parties. Political parties have weakened the link between
voter and representative by making the representative as the nominee
concerned with wider issues, national policies and promises of pies in the sky.
The voter becomes a spectator and not a participant in national affairs. This
process of alienation is further increased.
The smallest single member
constituency has an electorate of around a million. The voter seldom comes in
contact with the man he wants to vote. It is difficult for democracy to rise out
of the surging flames to which it gets consigned during election periods.
8
Methods therefore need to be devised to restore the individual citizen to his
rightful place in the democratic process.18
In the matter of electoral reforms, a parliamentarian has to go beyond
electoral reforms and deal with the malaise in the country. Otherwise the
situation will become worse. And there will be breakdown of law and order
resulting in the breakdown of economic system. Time has come to develop a
new political culture.
Any foreign electoral or political system cannot be
grafted wholly or completely to be Indian situation. Some modifications will
certainly be needed.19
1.3.
Electoral Systems in Different Countries:
There have been kings, revolutions, constitutions and vast bureaucracies
since time immemorial, but the mass voter is something quite recent. To the
Greeks, democracy means that the vital decisions were made by the assembly
of whole citizenry in the market place. To the English, it means that the whole
citizenry goes and elects representatives, after having been read about them in
the platforms and other views on the newspapers listened to them in a meeting
or over the radio.
A considerable number of people is quite obviously
unqualified to select a modern legislature. On the contrary, the real backbone
of an elective system is the cautious, steadfast men and women of common
sense who can see the forest rather that the trees. To ascertain ‘electoral
methods’ a comparative estimate is very useful.20
1.3.1. English System:
Parliamentary government in England rested for a long time upon
strictly traditional systems of election. It had grown out of the corporational
basis of early parliaments. Until 1832 it abounded with the most abnormal
situations. During the 19th century a series of parliamentary reforms undertook
9
to cope with the problem. Since that time, elections in England have been held
on the basis of what is known as the system of plurality i.e., the relative
majority. Later on elections held in a secret manner. John Stuart Mill pointed
that, the right to votes is a public trust, and should therefore be exercised in
such a fashion to give public a chance to see how it is used. It develops quality
of civic courage. In other words, the English electoral systems is clearly direct
towards the goal of dividing each constituency and thus all England its two
halves, the majority to govern and minority to criticize.
This may mean
permanent voiselessness for a man who belongs to a peripheral minority. 21
The idea of proportional representation appeared in French National
Convention in 1793 without leading to action and it was expounded by Thomas
Hare in 1857. It was further elaborated by the mathematician Gergonne. And
finally a Danish minister of Finance Carl Andrae worked out a system
resembling the Australian plan, but with using ballots. The following year
Hare published his tract.
From this it can be seen that proportional
representation was “in the air’ during the first-half of the 19th century. It has
been debated and experimented with ever since.
It is more important that a majority system of elections oblige the voter
to decide between two or more alternatives than that the constituency be
compulsory. The need of a decision is paramount when the representative
body has over and above everything else, the function of constituting either the
executive more government which is to hold office as long as the representative
body is willing to support it. And such a system of parliamentary government
makes the creative dependent upon and responsible to a majority in the
representative assembly. England resisted the law of proportionalism. The
principle of proportional representation is to secure a representative assembly
with more or less mathematical enactness of the various divisions in the
electoral. There are tow predominant ways of achieving that purpose, the single
transferable vote advocated by Thomas Hare and the List system of
10
proportional representation widely used in Europe. The first scheme gives to
voter to choose between lists of the candidates which contain as many names as
there are representatives to be chosen. It is used as a combination of both the
above in various countries.22
Combining strong executive leadership with parliamentary and popular
influence, the British system of cabinet government is probably the most
extraordinary masterpiece of constitutionalism. Both simple and subtle, it is
the achievement of generations of people developing one of the soundest
political traditions ever possessed by man. Historically speaking the English
cabinet developed as a committee of the Privy Council. It does not, as is
sometimes assumed, comprise all the officials responsible to parliament, but
only to more important among them, including the heads of principal
departments.
Leadership in the House of Commons is less important, for both the
government and the majority party in the house are working under the same
mandate of the people. The British Prime Minister’s position resembles more
and more that of the American President in that the people go to the polls to
vote for him and “his” government.
Prime Minister with his cabinet is
responsible to the parliament. Apart from the legal responsibility of the entire
ministry, i.e., the members of the cabinet, both collectively and individually are
affected by certain actions of parliament which by convention oblige them,
either to resign or to dissolve parliament and to call a general election. It one
of these actions occur, new elections have to be called at the end of five years,
except in wartime, thus preventing indefinite self perpetuation.23
1.3.2. United States (electoral geometry):
Although in the United States the constitutional order is based upon a
separation of powers scheme, the president as chief executive must be elected
11
by a simple plurality. While this might act as a deterrent to the development of
minor parties, certain religious, class and race cleavages might, in the course of
time emerge and plague by their intransigent attitude. Here, an experienced
American wrote in the light of experiments. We have groups of all sorts and
kinds, formed around religious, racial, language, social and other contentious
distinctions. Proportional representation invites these groups of all sorts and
kinds, formed around religious, racial, language, social and other contentious
distinctions. Proportional representation invites these groups to seek to harden
and intensity their differences by bringing them into political action where they
are irrelevant, if not disturbing. A wise election system would invite them to
forget these distracting prejudices.24
The effects of American provisions make it clear that the right of adult
franchise as such is not a constitutional right. The 15th Amendment has been
held to have only a negative implication in so far as it prohibits any
discrimination, direct or indirect, against a Negro by reason of his race or
colour. It does not, however, infer any affirmative right to vote upon anyone
and it is within the power of a states to lay down any discriminatory conditions
such as payment of tax etc, upon the right to vote.25
It appears that all the
States retain some or other of certain qualifications namely, real property, tax
payment, education and literacy qualifications etc.
Therefore, though the
principle that the right to vote in representation in Congress flows from the
Federal constitution, the measure of the right is fined and can be fined under
the American constitution by the suffrage qualifications in several States
resulting in the fact that these is no uniform suffrage even for federal election.26
The President of American plays a pivotal role in the American political
system.27
If his personality is powerful and his political support solid, he is
today the most impressive type of democratic leader. Though restrained by
Congress, the states and the courts, he provides the dynamic direction of
national policy, but always with an eye toward public opinion. The fact that
12
the election come at stated intervals, so that their timing cannot be maneuvered
to suit the party in power, helps to keep this great power under popular control.
Not only the President’s own desire either to be re-elected or to determine his
successor after four years of service, but also the congressional elections every
two years, have this effect; for the President must seek to keep his
congressional support unimpaired. As the successful leader of the majority, the
President has more power at his disposal than any constitutional monarch could
ever dream of.28
The makers of American Constitution were much concerned to secure
for the President a position removed from politics and the “gusts of popular
passion “. When the constitution was drafted, the party had not yet emerged as
the mainstay of popular government which it is today. All that remains of the
electoral college is a mode of electing the President by majorities in the States,
rather than by a majority of the nation as a whole.
1.3.3 Position in another countries:
After 1945, France, Germany, Italy adopted a parliamentary system of
making executive dependent upon the parliament and provided for the
proportional representation. When this failed in France, the Fifth Republic in
1958 reverted to a single member constituency system combined with the
traditional double voting or run-off election.
All the above show that English and American opinions against the
proportional is traditional. At any rate, electoral system should be studied in
relation to the whole constitutional order as well as social and other conditions
of the country concerned. It is possible by working out of a system adopted to
the peculiar needs of the country.29
13
1.3.4 Position in India:
Election is a device which a modern State creates amongst its citizens a
sense of involvement and participation in public affairs. It is through popular
elections that the authority of government is clothed with legitimacy with
elections; peaceful transfer of authority is possible to the new leaders. So, a
good electoral system is therefore, the basic principle of genuine representative
government.30
However it depends on how the electoral system operates i.e., whether
elections are conducted efficiently and impartially by competent administrators
free from political bias. If there exists no confidence over the verdict of the
ballot box, it may destroy the faith of the public in the democratic process and
may tend to bring it into discredit. Realizing the importance of electoral
administration to a democratic systems, Pollock observed, “unless public
elections are conducted with accuracy and efficiency, not only the public
services are discredited but the whole democratic system is endangered.
Similar views are expressed by H.M.Kunzru on the floor of the constituent
assembly. Thus it is generally accepted that the purity and freedom of election
can be ensured only if the electoral administration which is the foundation of
representative democracy, is placed beyond the reach of “party government”.31
1.4 Election Commission of India: Origin
The architects of the Indian Constitution attached considerable
significance to independent electoral machinery for the conduct of elections.
This is clear from the reports of various committees of the Constituent
Assembly.
14
At one stage, the “Fundamental Rights Sub-Committee” also
unanimously agreed that the independence of elections and the avoidance of
interference by the executive in legislative functions might be regarded as a
Fundamental Right and be included while dealing with the subject. The SubCommittee also resolved:
1. That universal adult franchise must be granted by the
Constitution;
2. That elections should be free, secret and periodic; and
3. That elections should be managed by an independent
commission
Set up under the Union Law.32
Consequently it recommended the inclusion of the following clause in
the list of fundamental Rights:
“The superintendence, direction and control of all elections to
the Legislature, whether of the Union or the Unit, including the
appointment of Election Tribunal, shall be vested in the Election
Commission for the Union or Unit as the case may be, appointed
in all cases in accordance with the law of the Union”.
In principle, the advisory committee of the constituent Assembly agreed
with the contents of this clause but it felt that “instead” of being included in the
list of Fundamental Rights, it should find a place in some other part of the
Constitution. This Union Constitution Committee accepted this suggestion of
the Advisory Committee and subsequently incorporated it in its Constitution
plan.
The Drafting Committee, through Article 289 of the Draft Constitution,
made separate provisions for the conduct of Federal as well as Provincial
15
elections.
In the resumed discussion on this Article, in the Constituent
Assembly on June 15, 1949, the Chairman of the Drafting Committee,
B.R.Ambedkar, moved an amendment substituting Article 289 with the
following Article 33.
“The superintendence, direction and control of the electoral rolls for
and the conduct of all elections to to Parliament and to the Legislature
of every State and the elections to the offices of President and VicePresident held under this Constitution including the appointment of
election tribunals for the decision of doubts and disputes arising out of
or in connection with elections to Parliament and to the Legislatures of
States shall be vested in a Constitution”.
The new article he contended, proposed to centralize Election
Machinery in the hands of a single commission, to be assisted by Regional
Commissioners, working under the supervision, direction and control of the
Election Commission and not under the control of the State Government as
envisaged earlier. Ambedkar was fully aware that it undoubtedly constituted a
“radical change”. The centralization of electoral administration, he explained,
was necessary to prevent injustice being done by the Provincial Governments
to people other than those who belonged to the provinces racially, linguistically
and culturally 34.
Dr. Ambedkar said 35:
The Fundamental Rights Committee came to the conclusion that no
Guarantee regarding minorities or regarding elections could be given, if
the election were left in the hands of executive of the day. Many People
felt that if elections were conducted under the auspices of Executive
authority did have power as, it must have, of transforming Officers from
one area to another with the object of gaining support for a particular
candidate who was a favorite in the party in office or With the
16
government of the day, that will certainly vitiate the free Election which
we all wanted.
It was therefore unanimously resolved by the members of the
Fundamental Rights Committee that the greatest safeguard for purity of
elections, for fairness in elections,
Was to take away the matter from the hands of the executive authority and to
hand it over to some independent authority.
Despite vehement opposition from some members, the amended Version
of Article 289 was adopted.
Speaking before the Constituent Assembly at the close of the third
reading of the Constitution, Rajendra Prasad observed 36
“One of the dangers which we have to face arises out of any corruption
Parties, candidates or the government in power may practice …. It is,
Therefore (good) that our Constitution guards against this danger and
Makes provisions for an honest and straight forward election by
Voters”.
A reading of the relevant provisions of the Constitution relating to
elections reveals that the framers of Indian Constitution in their anxiety to
ensure an independent position for such election authority made power of
Parliament and the State Legislatures to make Laws with respect to various
electoral matters.
17
1.5 The Need for Present Study:
In whatever way we may look at the political health of various countries,
they are having similarities in political culture in one aspect or the other.
Commercialization and even criminalization of politics has become more or
less the order of the day. Despite the best intention of founding fathers of
Indian Constitution, elections in India are no longer a true barometer of
people’s power on a genuine expression of their choice. They are an open
manifestation of money, muscle and mafia power 37.
India being one of the biggest countries has to show a path to the world
about the true form of democracy in actual practice. The persons visiting India
from other countries are unfamiliar with Indian Constitution, may find diversity
and get the impression that India instead of being a single nation seems an
aggregate of nations, each one of which is different from the other. As a result
of the confluence of the numerous factors which have maintained their separate
existence for a long, a single stream of Indian culture flows through the
country. After the establishment of democratic system of government in the
sub-continent, there is great scope for the full development of the individual
and the collective social group.
In spite of apparent differences and
distinctions, there has been a heard of unity running throughout the whole
country. Under the democratic system of government, people get opportunity
once in every five years to elect representatives of good caliber. In any case, if
the work done during this period is below the mark and the policy adopted
turns out to be strong or its implementation defective, it is open to the people to
entrust the government to some other party. The Indian Constitution is flexible
which permits all kinds of differences of opinion to be expressed and criticisms
made.
18
The Parliamentary democracy can be more attractive than even higher
levels of income of the people. In case there is poverty and illiteracy, it
becomes difficult for the government to run smooth administration as the
masses are easily exploited to gain some political objective by interested
politicians and parties. The less poor and semi-literate also do not realize the
responsibilities of the government. Due to ignorance of the Parliamentary
procedures and the working of democratic system, lawlessness and disorder are
rampant in India. The position has hone to such an extent that even the elected
representatives in legislatures are not fully aware of their responsibilities with
the result that no discipline or decorum prevails in the legislative bodies in the
country. The question arises, whether the people, placed under the existing
conditions are fit to enjoy the benefits of democracy. Mahatma Gandhi in
Young India of December 1, 1927 said that:
“Democracy is an impossible thing until the power is shared by all But
let not democracy degenerate into monocracy. Even laborer who makes
it possible for you to earn for living will have his share in self
government. But you will have to touch their likes, go to them, see their
hovels where they live packed life sardines. It is up to you to look after
their part of humanity. It is possible for you to make their lives or mar
their lives” 38.
Fair and free elections, freedom of thought, expression and press and
independence of judiciary are the three pillars on which the edifice of
democracy stands. If the elections are not fair and free the other two pillars,
freedom of thought, expression and press and independence of judiciary, can be
destroyed through constitutional means. The question of fair and free elections
is much wider and mere important than the question of clean elections. Use of
money and liquor, arousing of caste and communal feelings to secure group
votes, impersonation and money other things can and do affect the election
results and constitute electoral malpractices. Political education, improvement
19
in the economic condition of the common people, a strong sense of nationalism
which may impel a person to place wider national interests above personal and
party interests and suitable legislation can go a long way in ensuring that the
elections are clean.
If we observe today’s situation there are different types of tendencies
emerging. The governments at the State are changing rapidly. The opposition
members are openly demanding enquiry against some of the ministers. The
discipline used to be found in the rank and file of the workers is declining. The
labour class as a whole was agitated over the low wages. The students were
not concentrating their attention on studies. Even the standing universities
were going to dogs. The students unions were getting political backing and
patronage of rival political parties. In the country as a whole violence was
erupted in all walks of life. On almost every occasion whenever the police had
to force to control riotous mobs to save lives and properties, the political
leaders challenged the police actions and often CBI enquiries are demanded.
The politicians and legislatures interfered in the police administration and tried
to protect the criminals. Sometimes investigations were not allowed to be
conducted independently. The crimes in the country were increasing. The
political and national character of the people was deteriorating. There was a
race for earning more and more money by fair or foul means in the business
circles.
The taxes were; being evaded with the convenience of the tax
authorities. At the back of this deteriorating social system was the unhealthy
policy of the opposition in the country. In a democratic set up no individual
member howsoever well placed he might be was able to solve the present
growing ills in the country.
A right to elect though fundamental to democracy is not a fundamental
right but only a statutory right. So is the right to be elected. So is the right to
dispute an election. “Outside of stature, there is no right to elect, no right to be
20
elected. Statutory creations they are, and therefore, subject to statutory
limitation”.39
Several Articles in the Constitution specification confer legislative
power on Parliament with respect to election matters. Thus Parliament is
empowered to determine by law the manner in which, and the authority by
which; each State is to be divided into territorial constituencies after each
census for purposes of election to the Lok Sabha and the State Legislative
Assembly.40
The main purpose behind part xv of the Constitution are to ensure free
and
to ensure free and fair elections to be conducted under the
superintendence, direction and control of an independent body and the actual
conduct of elections should not be interrupted by other proceedings as far as
practicable.41
One of the most interesting and in a manner controversial
questions is how far the right to superintend, direct and control the preparation
of electoral rolls and conduct of the elections vested in the Election
Commission divest the rights of the citizens given to them under the
constitution to ask for the redress of denial of that right from the courts.
Art.325 of the Constitution is only a negative provision disutilising the State to
deny the eligibility for inclusion in any such roll or claim on the ground of
religion race, caste, sex or any of them.
So far as elections to either House of Parliament or other House of the
Legislature of a state are concerned no dispute or question in respect of the
aforesaid can be gone into except by method of the election petition. This is
well settled by various provisions of the Representation of the people Act.42
Recently many election litigations are cluttered with allegations of
corrupt practices. Such allegations are easy to make but hard to rebet, they are
21
also hard to prove, especially because the courts take the stand that they should
be proved beyond reasonable doubt. It has been said:
The general impression is that election cases are filed more with a view
to harassing the returned candidate than to exposing the unfairness of
the election and getting redress.43
The position will be hardly different if an election has been invalidated
on the ground of corrupt practice cleverly attributed to the returning candidate
and successfully proved against him. In this connection it may be pertinent to
refer to the observations of Fazl Ali J. of the Supreme Court, that
“In a democracy such as ours, the purity and sanctity of
elections, the Sacrosanct and sacred nature of the electoral
process must be preserved and maintained.
In our country
election is fairly costly and expensive Venture and the
Representation of the people Act has provided sufficient
safeguards to make the elections free and fair.
Therefore,
election results cannot be lightly brushed aside in election
disputes”.44
The exercise of franchise in other words the handling of sovereignty
where it came to be vested in the very first stages not highly popular and
enthusiastic. It was easy for the candidate of the ruling party in those days to
preach to the voters that the stigma of opposing at election the party in power
was enough to damen any oppose the ruling party.45
No democracy in the west began with universal adult suffrage as the
franchise was progressively extended with political awakening and education
for the voter. In India, every voter enjoys basic rights as a citizen. Majority of
the voters do not know that they are allowed to cast their votes in secrecy
without any interference of any agency, whether government or private. In our
22
established parliamentary democracy, our leaders have failed to impart political
education to the people who even lack the basic literary education.
The functional anarchy demands a streamlined system with the certainty
of law, but Parliament, also has lost its law making locomotion and the political
parties are busy shadow boxing through ballot ballyhoo. And now a new
menace to party participation in elections held out by the Election Commission.
Surely, there is sound service in Election Commission. Ukase and the parties
have to be bluntly told to play democracy within the party before grabbing
power promoting democracy to the nation. But here a few issues of means and
ends, of process and instrumentality need juristic scrutiny.
The Election
Commission has been busy sending out a spate of orders, instructions,
clarifications and directions for the conduct of fair polls. ; Though there can be
no two opinions that the electoral process needs to be cleansed.
So, the
measures proposed in this regard should be legally valid and implemental
without difficulty. In fact most of the parties and candidates will welcome
effective steps to control election expenses. But if someone disregarding the
commission’s instructions were to be declared later by a court that he had not
violated any statutory requirement, it will turn out to be an unwarranted
imposition of an invalid restriction on those who chose to respect the fiat of
Election commission.47
There is a limit to which certain irregularities and observations in the
electoral process can be removed through mere administrative measures taken
by the Election Commission. Undoubtedly stern measures by the Election
Commission in certain areas are necessary, but by themselves they are not
sufficient. Some basic structural electoral reforms are needed through the
instrumentality of law.
For this Election Commission’s administrative
machinery may help in making electoral contests fair and balanced.
23
Anyway, there should be awareness on the part of voter to create public
pressure on the leadership of the political parties to refrain from resulting to
electoral malpractices like bogus enrolment, impersonation, booth capturing,
rigging, bring the voters through money or liquor, threatening the voters with
muscle power or resort to appeal to religion or creed etc. This should bring
pressure on political parties to conform to statutory requirements of electoral
law regarding ceiling on election expenses and the like, and canvass against
corruption and criminality in the electoral system of the country.
The ultimate goal would be to organize a mass movement for electoral
reform which would tackle the basic maladies of the present electoral system.
This movement may also seek to study and assess the election management
practices of successful democracies in the world to the extent relevant to
management of election in India and its possible adoption of the country. It has
thus incited the researcher to select this area
for critical analysis of the
complications involved for proper implementation of electoral reforms in the
country.
1.6 STATEMENT OF THE PROBLEM
The topic selected for dissertation “Role of Election Commission in
Indian Democracy: A critical Study of the Electoral Reforms in India” is for
the declared object of making an in depth study of the problem of bringing
electoral reforms by the Election Commission. An attempt is made to analyse
critically the new ideas to develop various modes for successful
implementation of electoral reforms in a democratic country like India.
24
1.7 OBJECTIVES OF THE PRESENT STUDY
1. To trace the historical evolution of election and electoral
systems in different countries viz., Britain, United States and
India.
2. To analyse the legal and constitutional provisions relating to
the powers of Election Commission in India.
3. To evaluate the role of judiciary in settling the disputes
relating to electoral malpractices and other corrupt practices
4. To study the recent trends of Election Commission in curbing
electoral malpractices and
5. To identify further electoral reforms to strengthen the Election
Commission of India in order to fill the gaps between Law
and Practice.
1.8 HYPOTHESES
Keeping in view of the above objectives, the following hypotheses are
formulated for the purpose of testing in this study:
1. The concept of election appears as a method of finding persons with
representative quality. The basis for the idea of representation rooted
from the theological notion that the head of the church represents God,
the ruler of the Universe on earth which is developed in the Middle
Ages.
2. The existing statutory and constitutional framework regarding powers of
Election Commission, which is inadequate and in no way useful for the
practical imposition of certain steps taken by it to the court has to be
rectified by enhancement of its powers.
1. The distinction between judiciary and Election Commission in
deciding election disputes is in a confusing manner in which an
aggrieved party could seek remedy from the court.
25
2. The electoral reforms adopted and new guidelines issued by the
Election Commission has impact among the political parties and the
public and would go a long way in ensuring free and fair elections.
1.9 THE APPROACH
Since the present study is purely doctrinal and qualitative one, the
researcher does not propose any empirical study. However, it is proposed to
make in depth study of the problem. The electoral reforms suggested by the
Election Commission and of different ideas relevant and suggested by various
authors are taken for the purpose of the present study.
This study consists of six chapters. The introductory chapter given
apparent view of the problem and compass of the thesis. It also traces the
historical evolution of electoral systems in different countries. Though the
right to vote flows from federal constitution, in fact there is no uniform
suggrage. To cope the problem of representation, a series of parliamentary
reforms undertook during the 19th century.
The experience of British
Parliamentary system and American federalism will be useful in studying the
concept of Election Law in India. The first Chapter, apart from the above, also
comprises in it the need for the present study, the objectives and hypotheses
keeping in view of the objectives of the present study.
The second chapter includes a study of the genesis of Election
Commission and its historical background.
In this the legislative and
Constitutional framework with regard to Election Law in India is mentioned.
The Third chapter contains study of election trends and electoral laws.
It includes the various guidelines issued by Election Commission recently for
preservation of democratic values of the country as a whole to curb growing
electoral malpractices.
26
The Fourth Chapter is devoted for the study of the electoral disputes and
malpractices and the judiciary’s role in dealing with them apart from the role of
Election Commission has been observed in this regard.
Further, Chapter five deals with Role of Election Commission and
Electoral Reforms through which the Election Commission of India can fill the
gaps between Law and Practice thereby render effective, free and fair services
in the administration of elections.
Lastly, Chapter Six deals with conclusions and suggestions after a brief
account of the appraisal of the studies. The conclusions are drawn on the basis
of discussions made in the study. These are drawn logically and essentially
they are tentative. ; It is sincerely hoped that the conclusions drawn and the
suggestions made on the basis of exhaustive study in this discourse will be a
real contribution to the field of election law in a working democracy.
27
CHAPTER - I
FOOT NOTE
1.
Chambers “Twentieth Century Dictionary”, Rev. Thomas Davidson,
(1948) 298.
2.
Hearnshaw: Democracy of the Crossways, from R.C. Agarwal,
Principles of Political Science (1982) pp.17, 22.
3.
R.C. Agarwal, Principles of Political Science, (1982) 296.
4.
Carl. J. Friedrich “Constitutional Government and Democracy” IV Ed.
(1974) 279
5.
Ibid.
6.
Carl. J. Friedrich “The Problem of Representation” Constitutional
Government and Democracy” IV Ed. (1974) 270
7.
Ibid.
8.
Ibid.
9.
“Adult Franchise”, Principles of Political Science, R. C. Agarwal (1982)
392.
10.
Montesquieue, Esprit Deslois, bk.XV, Ch.6, Principles of Political
Science (1982)
11.
Ibid.
12.
“Adult Franchise”, Principles of Political Science, R. C. Agarwal
(1982) 392.
13.
R.K. Bhardwaj, Concept of Democracy, (1980) 1.
14.
Ibid.
15.
Supra
16.
Dr. Ambedkar’s Speech VIII CAD 905-7, “Elections”, Indian
Constitutional Law - N. P. Jain IV Edn., (1994).
17.
R. K. Bhardwaj, Evolution of Democracy in India, Democracy in India
(1980) 32.
18.
S.C. Parasher, “Electoral Reform and Democracy” JOL Constitutional
and Parliamentary Studies Vol.XVIII (1984) 54, 55.
19.
A.N.L. Dasan Nadar “Seminar Proceedings on electoral Reforms in
India” JOL Constitutional and Parliamentary Studies Vol.XVIII (Jan –
June 1984) 153,
20.
Carl. J. Friedrich “Electoral systems in Theory and Practice” 284,
Constitutional Government and Democracy IV Ed.(1974).
21.
Ibid. 285
22.
Ibid. at 297
23.
Carl. J. Friedrich “Chief Executives and Cabinet Systems” 383
Constitutional Government and Democracy (1974).
24.
Carl. J. Friedrich Ch. XV “Constitutional Government and Democracy”
305 4th Ed.(1974)
25.
Lane, V. Wilson 1939 (307) U.S. 268
26.
M. Hidayatullah, Constitutional Law of India, Vol.2, 544, (1986)
27.
Carl. J. Friedrich “Electoral systems in Theory and Practice” 284,
Constitutional Government and Democracy IV Ed.(1974).
28.
Ibid.
ii
29.
Supra
30.
Bhalla “Election Mechanism” Elections in India 1, (1973).
31.
Ibid.
32.
Bhalla “Election Mechanism” Elections in India 1, (1973).
33.
Article 324, Consitution of India.
34.
Dr. Ambedkar’s CAD Vol.VIII, June 15, 1949, P.905.
35.
B. Shiva Rao, The Framing of India’s Constitution: A study (1968)
539-40.
36.
C.A.D. Vol.XI, Nov.26, 1949, 99.
37.
O. P. Khanna “Another Shameful Episode”Competition Master, Aug,
1992.
38.
R. K. Bhardwaj “Concept of Democracy-Democracy in India”,
(1980) 10.
39.
P. Nalla Thampy vs B. L. Shanker, AIR 1984 SC 135.
40.
Art. 82, Art. 170(3)
41.
M. Hidayatullah, Constitutional Law of India, Vol.2, (1986) 538.
42.
Ibid.
43.
Joseph Minatteur, “Election Law”, Annual Survey of Indian Law,
ILI, Vol.XIII(1976) 110.
44.
A. Venkata Reddy V. R. Sultan AIR 1976 SC 1539 at 1664.
45.
Thakur Sen Neg :
Four Decades of Indian Democracy,JOL. Cps.
Vol.XXVII (June – Dec.1993) 74.
iii
46.
V.
R.
Krishna
Iyer.
Political
Parties
Commission-I, The Hindu, (15 Nov. 1994).
47.
Era Sezhiyan, Poll Panel & Electoral Law,
The Hindu (2 Nov. 1994).
iv
and
the
Election