Learning from 2009!

LEARNING FROM 2009!

Rajeev Dhavan

Indian elections 2009 are over. Many lessons are to be learnt from this elections even if some are euphoric in victory and others dejected by defeat.

(i) Let us begin with party democracy. After I had argued for George Fernandez in the JD-Split case, TN Seshan ordered strict adherence to party constitutions, which are placed before the Election Commission under Section 29 of the Representation of People Act 1951 (RPA), including membership rolls, regular elections, annual meetings, proper candidate selection and resurrecting party democracy. Sanjay Gandhi subverted Indian politics by bringing in goondas and ruffians as rank and file party workers, who fought elections for future favours as local power brokers. Rahul wants a more genuine mobilization of youth. Party democracy should be put in the legal framework of a party constitution, which should be insistently followed. Party democracy is the gateway to real democracy from top to bottom.

(ii) Criminality haunts Indian politics. All parties adopt criminals as candidates. Legally, convicted criminals for disqualificatory serious crimes, socio-economic corruption and offences cannot stand for elections. This was breached in Navjot Sidhu’s case (2007), when conviction and sentence were stayed by the Supreme Court. This time round, both in Pappu Yadav’s case and, more significantly, by Chief Justice Balakrishnan in the Sanjay Dutt case (2009), this breach was half-plugged, theoretical room being left for exceptions. The problem persists. In 2009, 150 newly elected MPs have criminal cases pending against them (compared to 128 MPs in 2004). Amongst these, 72 are charged with serious offences. Overall, BJP’s tally was 42 and Congress’s 41, with 17 and 12 respectively facing serious offences. Criminality is writ all over our elections. Prominently, Lalu Yadav is undergoing a slow trial. Ravi Dhavan, J.’s solution in the Patna High Court (2004) was that if people in jail cannot vote [Section 62(5) RPA] they cannot stand for elections – extending this to those on bail. This logic was not accepted by the Supreme Court which had no answers of its own. But Justice Jeewan Reddy (as Chairman Law Commission) proposed that while it would be too early to disqualify a person when an FIR or challan is filed and too late to wait for a conviction, a legal disqualification should be imposed as soon as a court frames charges. This would avoid fictitious imputations of criminality and weed out those who are being tried or are awaiting trial for disqualificatory offences. This one change in the law is necessary. So far political parties have run away from a clear position on this. Its time for change.

(iii) Till this change is made, responsible political parties should make it clear that the criminally charged or tainted will not be set up candidates (e.g. Congress’s removal of Tytler and Sajjan Kumar under public pressure). Not just PM Manmohan Singh, but his MPs must also be clean.

(iv) The EC has done a commendable job of managing a difficult election amidst public controversy within the EC, but what are the Election Commission’s real powers? The Constitution gives them an independent right of “superintendence, direction and control of elections” (Article 324). The Union and State legislatures have the power to make laws “subject to the provisions of the Constitution”. Arguably, Parliament cannot undermine the EC’s constitutional powers. The Supreme Court’s case law swings in both directions in the Voting Machine and other cases. The ultimate power of the EC is to postpone an election but that is usually limited to when voting takes place or becomes impossible. The Code of Conduct must be rooted in some law so that a proper exposure or warning system exists.

(v) Phased elections may be necessary because of the size of the Indian electorate. I am totally against the ban on exit polls. Justice Sawant, former Chairman of the Press Commission, was in favour of such bans. Such bans violate free speech and the right to know. But exit polls do influence an increasingly literate and TV watching populace. The voting poll period should be shorter from a month to a week – preferably the same day. This requires resources, ability and extended vigilance.

(vi) After the election, hung parliaments have become the order of the day. What should the President do? Most of the controversies are artificial. The real fear is that Congress supported Presidents may misuse their discretion to use the ‘largest party’ option to favour Congress, as President Venkataraman did in 1989. Indian politics does not respect conventions. The shameless cannot be shamed. The President must realize that the answer is: arithmetic–arithmetic–arithmetic. There is no sanctity or constitutional recognition to be given to a pre-poll alliance as if that were a political party. The highest majority of a party or combination should be selected. If there is no majority, then it should be the largest minority party or combination. Such simplicity reduces discretionary bias. Since 1967, our governors have played havoc with their discretions. The Bhagwan Sahay, Sarkaria and Constitution Committees have not provided answers. The arithmetic solution should be placed in an Instrument of Instructions of the kind intended by the Draft Constitution.

(vii) There is a ‘corrupt interregnum’ between the declaration of result and the summoning of parliament when the Anti-Defection Law does not apply until Parliament is formed. One part of the Constitution’s Xth schedule declares that a person shall be “deemed” to belong to the party that set him up as a candidate or as an independent as the case may be (Explanation), another part permits disqualification only of members of parliament. The Supreme Court has not really ruled on this. An advisory reference to the Supreme Court will resolve that persons standing on party tickets or as independents cannot change sides after the elections. Alternatively, the law needs to be changed.

(viii) The singularly Indian practice of asking the new Prime Minister to table a confidence motion is pre-emptively absurd. Confidence motions are hara-kiri motions saying “Aa bail mujhe mar” (O Bull, come attack me). Why should newly elected governments be doomed to face self-inflicted confidence motions? Let them survive. If the opposition wants to table a non-confidence motion, let them do so, to risk forcing an election against the wrath of the people. Perhaps a convention should develop that no confidence motions will be tabled for at least a year!

(ix) There are a number of other issues relating to negative voting, voter cards, financing elections etc. which need attention.

Elections come and go and we learn nothing from them except the results. After sixty years and 15 elections (scores more in the states), a high powered Electoral Reform Commission should seriously consider changes in the electoral system. The vulnerabilities of Indian democracy need attention.