3 Sep 2018 8:09 AM GMT
“The proposal is designed to favour majoritarian politics and centralization of power, and will give room for manipulation of election results through high-voltage campaigns buoyed by money power, and will cut at the root of healthy democratic conventions”.The Law Commission of India(LCI) has favoured the idea of “one nation one poll” and has recommended necessary amendments...
“The proposal is designed to favour majoritarian politics and centralization of power, and will give room for manipulation of election results through high-voltage campaigns buoyed by money power, and will cut at the root of healthy democratic conventions”.
The Law Commission of India(LCI) has favoured the idea of “one nation one poll” and has recommended necessary amendments in Constitution and statutory law to bring in ‘simultaneous elections’. The concept of ‘simultaneous elections’, envisages that elections to Parliament and State Legislative Assemblies will be synchronised and held simultaneously. It is the seeming economic and administrative benefits which persuade the LCI to root for it; however, such benefits will come at a huge cost to healthy democratic practises, as explained below:-
The fundamental feature of parliamentary democracy is that the political executive is accountable to the legislature. This is clear from Article 75(3) of the Constitution of India, which states that the Council of Ministers shall be collectively responsible to the House of the People. Same is the provision with respect to ministers in the political executive of the State Government, as clear from Article 164(2) of the Constitution of India.
The Law Commission recommendation seeks to fundamentally change this basic principle of parliamentary democracy. To facilitate simultaneous elections, fixed term is given to the government. Even if the government loses confidence during the mid-term, it need not step down from power, if the opposition is not able to form alternate government. This will lead to a situation where a government will continue on power even without confidence of the legislature.
In paragraphs 7 and 8 of the recommendation, the LCI states as follows :-
“The Constitution, however, does not mention about a confidence motion or no-confidence motion.Article 75 enshrines that the Council of Ministers is collectively responsible to the House of the People, thus implying that the Prime Minister must enjoy the support from the majority of the Members of Lok Sabha to continue in the office. An alternative to tide over the premature dissolution of the House of People could be that the Members while moving a no-confidence motion, may also put forward an option for forming an alternative government.This could hold good for Lok Sabha as well as State Assemblies. This system is prevalent in Germany.
The 170th Report of the Law Commission suggested a new Rule, i.e, Rule 198A to be added to the Rules of Procedure and Conduct of Business in Lok Sabha and similar amendment to such rules in the State Legislatures. The Report suggested the introduction of motion of no-confidence in the incumbent Government along with a motion of confidence in the alternative government.
This essentially means that even if a government loses no-confidence motion in legislature, it can continue on power if there is no alternate possibility of government formation. The stepping down of government on losing no-confidence motion is made conditional upon the success of the opposition winning a confidence-motion to form government. In the current scenario, losing of no-confidence motion will lead to mid-term polls, if alternate government formation is not possible.
Constitution favours ‘responsible government’ over ‘stable government’
Parliamentary form of democracy with accountability of the executive to the legislature was a conscious and deliberate choice of constitutional forefathers. The members of the Constitutional Assembly, because of their experience during British times, entertained suspicion and mistrust of executive autocracy. They had much greater faith in the legislature as protector of peoples’ rights.
At the time of the framing of the Constitution, Dr. Ambedkar stated as below for preferring the parliamentary Government: A democratic executive must satisfy two conditions: (1) It must be a stable executive; and (2) It must be a responsible executive. Unfortunately, it has not been possible so far to devise a system, which can ensure both in equal degree. The American and the Swiss system (Presidential), give more stability but less responsibility. The British system on the other hand gives more responsibility but less stability. The draft Constitution in recommending the parliamentary system of executive has preferred more responsibility to more stability.(emphasis supplied)
In the Parliamentary system, the assessment of responsibility of the executive is both daily and periodic. The daily assessment is done by Members of Parliament/Assembly, through questions, resolutions no-confidence motions, adjournment motions and debates on Addresses. Periodic assessment is done by the electorate at the time of the election which may take place every five years or earlier. The daily assessment of responsibility which is not available under the Presidential system is, far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution in recommending the Parliamentary system of Government has preferred more responsibility to more stability.
For all its actions, the Government is accountable to the Legislature. It has to defend its policies there and if it is not able to justify itself or a policy decision is defeated in Legislature, it amounts to no confidence against the Government and the Government may have to quit the office immediately. The Government can remain in the office only so long as the House of the People survives. As soon as the Legislature is dissolved, the life of the Government automatically comes to an end. The Government lives and dies with the Legislature. Regarding the accountability of executive to legislature, the Supreme Court expressed as follows:
In India, as in England, the executive has to act subject to the control of the legislature. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, "a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part." (Ram Jawaya Kapoor v. State of Punjab AIR 1955 SC 549).
Now, let us think about the scenario which will arise upon the acceptance of the recommendations of the LCI. It would mean that a government will be able to continue in power, even without the confidence of the legislature, on the basis of the default of the opposition to form alternate government. This ‘default government’ is not accountable to legislature, and gets a fixed term. This can lead to executive autocracy. In this regard, the recommendations of NITI Ayog (which have been referred in Law Commission’s proposal) are far more dangerous.
In the case of Legislative Assembly also, in the event of 'no-confidence motion', it should be mandatory to simultaneously move a 'confidence motion' for formation of an alternative government. This will, in normal course, eliminate cases of premature dissolution of Assemblies. If for any unavoidable reason, any existing Legislative Assembly has to be dissolved prematurely, there should be a provision for the Governor to carry out the administration of the State, on the aid and advice of his Council of Ministers to be appointed by him, or for the imposition of the President's Rule, till period of expiry of term. (emphasis supplied)
The suggestion is a brazen onslaught on basic democratic values, and too much of a cost to be paid for the purported benefit of convenience and economic benefit to be secured through simultaneous elections.
Parliamentary form of democracy with the executive being answerable to legislature ought to be treated as part of basic structure of the Constitution. The manner in which the proposal of simultaneous elections is sought to be implemented by giving extended term of a government which does not enjoy the confidence of house, on default of opposition to form alternate government, and also to enable President/Governor to carry out their rule on the basis of ministers to be appointed by them, tinkers with the basic structure of our Constitution. Stability should not be achieved by sacrificing accountability.
The LCI recommends diluting the rigour of anti-defection law and 10th schedule of the Constitution to maintain the continuity of the government in the eventuality of it losing majority in the house. The LCI also recommends carving out of an exception to anti-defection law and 10th schedule of the Constitution to address such situations, in order to prevent stalemate in Parliament/Assembly in case of hung Parliament/Assembly.
Political defection motivated by lure of office is inherently unethical, which negates the principles of democracy. It was to curtail this unethical practise that 10th schedule was inserted in the Constitution, providing for adverse consequences for defection and violation of party whip. The Statement of Objects and Reasons says that this amendment in the Constitution was made to combat the evil of political defections which had become a matter of national concern. While upholding the validity of tenth schedule and emphasising the necessity of anti-defection to preserve core democratic values, the Supreme Court observed in Kihoto Hollohan v. Zachillu and others AIR 1993 SC 412 as follows :-
These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1) (a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his Membership of the legislature and go back before the electorate.
Rejecting the argument that Tenth schedule violates the basic features of parliamentary democracy, the Court observed as follows :- Any freedom of its Members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence
Now, the LCI recommends the dilution of this salutary principle to further the stability of government. Political morality and integrity cannot be sacrificed for ensuring stability. As explained above, the emphasis of Constitution is on ‘responsible’ government as opposed to ‘stable’ government. The recommendation of LCI, if accepted, will legitimise the nefarious practise of ‘horse-trading’ and easy switch of legislators on the basis of lure of money and office.
Simultaneous elections run counter to the concept of federalism and will skew regional representation. Synchronised elections to Parliament and State Assemblies would mean that regional issues will get subsumed in national issues. There will be definite over-shadow of national issues and national parties over regional issues and regional parties. Statistics provided by NITI Ayog reveal that whenever elections to Parliament coincided with State Assembly elections, it resulted in the victory of one party in both elections in most cases.
This will create a situation more conducive for big national parties flushed with huge funds to knock smaller regional parties out of the race. This can also lead to homogenisation of the composition of Rajya Sabha and Lok Sabha. The Rajya Sabha is intended to act as a counter-weight to populist and majoritarian sentiments of Lok Sabha, by offering wise second-thoughts. Adoption of the proposal can make Rajya Sabha ineffectual.
To counter all the above difficulties emanating from the constitution and law, those advocating simultaneous elections have only reasons of pragmatics to offer. These do not alter or challenge the obstacles as above and help only deflect the focus. That the republic began its journey with simultaneous elections is not of moment inasmuch as the constitutional framework is concerned, as the choice of free-cycle elections was deliberate.
4.1 Policy paralysis by Model Code of Conduct- A Red Herring.
One point often made in favour of simultaneous elections is that free cycle elections hinder the process of decision-making, on account of Model Code of Conduct (MCC). To argue that MCC results in policy paralysis is nothing but a red herring to confuse the public. Is MCC too much of a nuisance? Let us see the restrictions imposed by MCC to analyse that. The restrictions imposed by MCC on the government in power after the notification of election are as follows :-
authorities shall not –
facilities etc.; or
which may have the effect of influencing the voters in favor of the party in power
(From official website of ECI)
The MCC is based on a sound policy that the ruling party should not abuse its power to influence voters by making short-term decisions only with election in mind. This is intended to create a level playing field for all parties. As is evident from above, the ambit of restrictions are clearly defined and limited. The duration of MCC is usually for a period of two months or so. Therefore, the argument that MCC results in a policy paralysis of that sort of a scale warranting change in election cycles, is exaggerated.
Even if the argument is assumed to be valid for sake of argument, when all states and the Union Government go into polls simultaneously, the policy paralysis will be complete and nation-wide. Surely, this raises a graver concern than the occasional, yet partial, delay in the decision-making process. Moreover, this argument also betrays a concealed prejudice that the injunctions contained in the MCC are themselves harmful and are avoidable. If the party in power at the Centre cannot make decisions to influence the electoral process in the States is the idea behind the MCC, it must remain that way for a very real purpose. Further, in an ideal scenario, important legislative or executive business should not have been left for the last two months of the term of the government.
4.2 Hollow argument of election expenditure.
Another argument put forth by many, including the National Commission to Review the Working of the Constitution, is that the momentous expenditure incurred in the course of frequent elections can be avoided. The plea based on the magnitude of expenses incurred by the Government may have merit, but that arises from its obviousness. Surely, the Constitutional Assembly must be presumed to have been alert to this aspect; it did not prevent them from choosing free-cycle elections over simultaneous elections. The consensus of the Constitutional Assembly that Election Commission need not be provided with its own personnel to run the elections was based on the understanding that elections may take place at one point or at different points, implying different amount of work to be carried by the election personnel at different points in time. It was acknowledging the practical implications of keeping permanent machinery in these circumstances that it was constitutionally provided that the Election Commission can require the executive to lend its staff to it. Therefore, the argument based on the heightened requirement of personnel to be deployed for conducting free-cycle elections is in ignorance of the constitutional intent.
The purported advantages of simultaneous elections will come at a severe cost on sound and healthy democratic practise. What may be good economics may not be always good policy. The proposal is designed to favour majoritarian politics and centralization of power, and will give room for manipulation of election results through high-voltage campaigns buoyed by money power, and will cut at the root of healthy democratic conventions.
‘CITIZENS FOR CONSTITUTIONAL GOVERNANCE’ (C.C.G) is an NGO based in Kerala which works in the fields of law& policy research and social action litigations. For details www.ccg.org.in
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