Virag Gupta practices at the Supreme Court of India. He is a former IRS officer and has worked with Ernst & Young
The Right to Recall Legislators by their electorate is being hailed as an essential democratic right. BJP MP Varun Gandhi is a proponent and has introduced a Bill which lays down the mechanism of the same. Right to Recall already exists across democracies in multiple forms, with the same being also present at a local level in many Indian states. In the growing age of criminalisation of politics, failure to fulfil election promises and lack of accountability, right to recall is an important idea, which merits serious discussion.
The sole discussion on right to recall was initiated by Loknath Misra in the Constituent Assembly. Suggesting an amendment to one of the provisions, he had termed the right to be “a very real fundamental right.” Loknath Misra correctly identified the party politics and had said, “We know that when we are returned to the Assemblies we come there as representing the masses for five years. But what we care for is the party caucus—the high command—and if it is pleased we are all right. We do not care for the people. I therefore submit that if we are to be real members representing the people, our first concern should be the people. They must be our masters. If we serve them well we are there; if we do not we must go out. But that does not happen now. Therefore it is essential that if people have a right to elect members they must have the right to recall them if things go wrong. The right to recall is a fundamental right in a democracy. Unless we have that we cannot have proper democracy.”
The High Command culture in politics had troubled him to such an effect that he had also stated, “In fact what happens here is, we do not care for the people; there is somebody high up and he selects people. He says so and so must be elected and it is done. Therefore the selected person’s primary business is to look up and not down. It is a bad state of democracy and I say we must stop it.”
However, this sole discussion on right to recall came to a rather terse end when Chairman of the Drafting Committee BR Ambedkar refused to accept the amendment.
The Varun Bill
The Representation of the People (Amendment) Bill, 2016 was introduced in the Lok Sabha by Varun Gandhi. The Bill seeks to amend the already present Representation of People Act, 1951, which governs the election laws. As per the Bill, any voter of a constituency can file a recall petition in case the elector is not satisfied with the performance of the elected representative. However, any such recall petition would require the signature of at least one-fourth of the total voters of the constituency. Thereafter, the Speaker of the House shall confirm the genuineness of recall petition and then refer it to Election Commission for verification of signatures.
The Election Commission shall verify the signatures within ninety days, and if the petition is found genuine, appoint a Chief Petition Officer. The Chief Petition Officer will then within ten days specify the places and days where voters can vote on the recall petition through EVM. Thereafter, within ten days, the Chief Petition Officer will make a public notice with respect to voting for a recall petition. After the completion of voting, the same will be counted and the Chief Petition Officer will forward the result to the Speaker. The Speaker within 24 hours, will have to declare the result of counting. As per the Bill, “A recall petition of a member shall be deemed to be a successful recall petition for the purposes of this Act, if it is signed … by electors whose number is not less than three-fourth of the member of valid votes which that member was polled in his election.” If the recall petition is successful, the seat in the House will get vacated, and the Election Commission shall conduct a bye-election for the same.
Interestingly, the Bill also provides for a jail term of 5 years and a fine of Rs. 10 lakhs to any person vitiating the recall process. The Statement of Objects and Reasons of the Bill detail the fact that the “system exists at the State level in many States of the United States and at the Cantonal Level in Switzerland as well as at the national level in Venezuela.”
At the outset, the Bill is the best attempt at highlighting the issue of the right to recall through legislative means on the national level. The Bill has received the support of Anna Hazare. Right to recall as an idea was fancied by Arvind Kejriwal but his idea has remained in infancy. However, the Bill in its present form is rather a half-baked cake, about which no one has an idea about size or taste. It does not present any estimate on the expenditure these processes would require and leaves a lot of scope of delegated legislation. It is unclear as to why the recall petition should be routed through the Speaker and not go directly to the Election Commission. The limit of having a maximum of ten places in a constituency for the voting on recall petition will limit the number of voters, and thus not a true picture of democracy.
Only about 60 per cent of the total voters vote in an election. Out of those 60 per cent, a candidate getting votes of around 30 per cent clinches the election. In such a scenario, getting 25 per cent of electorate to sign a recall petition could well be fruitless.
The 250th Report of the Law Commission was on Electoral Reforms. The Report published in the year 2015 detailed a whole chapter on Right to Recall. It details that “provisions for RTR are prescribed for local elections in Chhattisgarh, Madhya Pradesh, Rajasthan, and Maharashtra.” It also identified the issues around right to recall as “whether voters who did not vote in the original election can initiate a recall, whether there can be repeated recall petitions, and whether the recall representative is disqualified from standing in the bye-elections from that or any constituency also require consensus.”
Wondering if the demand for the right for recall is correctly placed, Law Commission has stated that the issue is linked with “larger issues of political reform such as decriminalisation, curtailing money in politics, internal democracy, and increased public awareness necessary to improve the quality of representation.”
Finally, the Law Commission recommended that it is not in favour of the right to recall in any form.
In the United States, 19 States have the provisions for the right to recall and process differs from state to state. Till date, only two recall petitions have been successful, in North Dakota in 1921 and California in 2003. In 11 States, any voter, irrespective of the fact whether one voted in the election, can initiate a recall petition without even mentioning the grounds for the same. Often, the reasons for initiating a recall petition are political, as the same has also been noted by National Conference of State Legislatures.
British Columbia in Canada has Recall and Initiative Act, 1995. Since its inception, 24 recall petitions have been approved but only one got enough signatures for recall. However, the process was rendered useless as the legislator in question anyway resigned and thus no bye-election in Canada has been conducted due to a successful recall petition. Switzerland has the provision for recall only in 6 out of its 26 cantons. Moreover, the required number of votes for a successful recall petition is not dependent upon a percentage but is a fixed number in different areas. For example, it is 1000 in Schaffhauses and 15,000 in Ticino. The last successful recall petition was in the year 2003.
The Constitution of Venezuela provides for the right to recall. Its Article 72 allows it to be exercised even against the President. Incidentally, the same was used against President Hugo Chavez who survived the recall by garnering 60 per cent of the votes. In 2016, the right to recall was initiated against President Nicolás Maduro was halted by National Electoral Council.
The United Kingdom provides for the right to recall through Recall of MPs Act 2015. The Bill had to be introduced after scandals of MPs making false expense claims rocked the UK Parliament. The conditions for recall as given in the statute are prison sentence, suspension from the House, or providing false or misleading expenses claims.
Recall in India
India witnessed its first recall election in 2001 in Anuppur in Shahadol district of Madhya Pradesh. The most recent recall elections have been held in 2015 in Harda and Khandwa districts. As per reports, Madhya Pradesh has seen a total of 33 recall petitions, with 17 of them being successful. Even with such a high success rate, R Parsuram, State Election Commissioner is not supportive of extending the right to recall to Assembly and Parliament. As per him, such a right should exist only with respect to executive bodies like municipalities and not legislative ones.
Sangeeta Bansal, who was at the receiving end of a recall petition has stated her dissatisfaction with the process. She stated that grounds for recall were arbitrary as she had no corruption cases against her. She was not given a chance to defend herself and that the layout of ballot paper was confusing. She had also stated that only those who voted in the main election should be allowed to vote in the recall election. Kamalkant Bhardwaj from Nagar Parishad of Chhanera–New Harsud has successfully defended a recall election. Even though he said that ballot paper in a recall petition has only two pictures, one with a person sitting in a chair, the other picture is an empty chair, the voters get confused as they are used to voting for symbols of political parties. Bhardwaj feels that right to recall should be extended to Assembly and Parliament as well.
Favouring Right to Recall
Right to recall is an idea furthering participatory democracy by keeping the elected accountable. It is a great tool to tackle “underperformance, mismanagement, corruption, or apathy” by elected representatives. It is often said that right to recall will keep elected representatives on their toes as the present system of having to contest election after 5 years allows ample time during which the electorate has no option but to suffer. Such a right might also reduce instances of corruption by the elected members and less expenditure on elections as the public will always have the option to recall. India has 1571 legislators having criminal cases against them.
Fast Track Courts for dealing with cases of legislators could add a further spur to recall legislators. If the legislator gets convicted for more than 2 years, then they get automatically disqualified as per judgment of Supreme Court in Lily Thomas case. In case the punishment is for less than 2 years, the voters may exercise their right to recall.
Against Right to Recall
Having a sword looming over their heads at all times could well affect the legislative performance of elected representatives. The needs of their electorate will have higher priority than national interest. Right to recall could well cause a policy paralysis as populist measures will take the fore. Former Attorney General Soli Sorabjee has stated that such a right will no longer keep elected representatives independent. Former Chief Election Commissioner SY Quraishi has stated that right to recall as a principle brings instability and chaos.
The aspect of having enough resources and the financial feasibility of having such a system too merits serious consideration. There is another fear that right to recall will give rise to collusive caste politics. In Chhattisgarh, one independent elected representative had claimed that Congress and BJP came together to recall his election. The Law Commission in its report had also noted, ”In Dewangarh, a hamlet in Patiala in Punjab, which was reserved as a Scheduled Caste constituency in 2008. A brick-kiln worker, Jaswinder Singh, was elected as the sarpanch, although the majority of the village’s residents, who were members of the affluent Jat-Sikh Community, did not welcome this. Consequently, during the first half of his five-year term, his other four colleagues—the panchs—did not attend a single panchayat meeting, and thereafter, exercised the RTR to remove Singh (S. 19 of the Punjab Panchayat Act, 1994 permits the panchs to remove a sarpanch after the completion of half the term, by moving a no-confidence motion against him). This was viewed by many as a tool for the influential against the weak and the poor.”
Right to Recall is a noble idea but not a practical one. The geographical size of India with its huge population presents challenges that could well be beyond the present performance of Election Commission. Changes in
election laws are paramount for a democracy like India, but the changes should be aimed at rectifying anomalies first. Creation of new systems is a second step of the process which should only be initiated after the progress of stage one. Former President and Finance Minister Pranab Mukherjee has already said that India does not have the money to afford such a system. Supreme Court gave us NOTA, but its use is fairly limited.
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