Panel I: Legal & Systemic Hurdles for Candidates in Elections

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Left to Right: Ms. Jyothi Raj, Mr. Sudhanshu Kaushik, Ms. Tara Krishnaswamy

This post is the 7th Installment to Law School Policy Review’s Election Series, 2019.

Introduction to the Series

On March 31, LSPR & Kautilya Society, in collaboration with Vidhi Centre for Legal Policy, organised a conference on Electoral Reforms in India. Titled ‘Freer & Fairer’, the conference was divided into 3 panels, each of which was tasked with debating and proposing reforms for a distinct area of election law & policy.

This blog series will attempt to capture the discourse generated by each panel so that those of our readers who were not able to attend may also be benefited. The series will be divided into 3 posts, each corresponding to one of the panels.

We are immensely thankful to all our Rapporteurs, who diligently noted down the panel discussions, and have been assisting us in formulating the final report.


Introduction to this post

This post summarises the discussion conducted by Panel I on ‘Legal & Systemic Hurdles for Candidates in Elections’. The Rapporteurs for this Panel were Simranjit Singh (IV year) and Vidushi Gupta (I year).

The 3 panellists were:

1. Sudhanshu Kaushik

He is the Founder of Young India Foundation, and has been at the forefront of the campaign for reduction of age of candidacy. He works between the intersection of youth rights, policy and representation with India’s first youth-centric political action committee and advocacy group. He hopes to help usher young people into electoral politics in India. His academic interests include the youth demographic, electoral politics, student politics, economic impacts of elections in India, diaspora relations and the media’s relationship with politics. His dissertation at the University of Oxford was titled ‘Search for an Identity: India’s Young and Protest’.

2. Jyothi Raj

She is the Chief Functionary of ‘Campaign for Electoral Reforms’ and has been one of the most vocal advocates for proportional representation system. She feels that the First Past the Post system has failed to represent equal value for each vote, and that it is designed for a two-party system, and not a multi-party democracy like India. She is a frequent panellist at conferences on electoral reforms.

3. Tara Krishnaswamy

She is the Co-Founder of ‘Citizens for Bangalore’ that has worked on transparency and decentralisation in governance. She is spearheading the Shakti project, which aims to increase women’s representation in politics. She believes that an increase in the number of female politicians is necessary to achieve the constitutional promise of political equality.


Report

The panel focussed on legal and systemic hurdles in ensuring free and fair elections. The Panel emphasised on need to increase access, hence diversity through elections. It discussed the non-representativeness in the present set-up, with a special emphasis on youth and women. It also discussed how the Proportional Representation system can work in India and increase representativeness of its democratic system.

Problem 1 – Lack of Representation of the Youth

Mr. Sudhanshu Kaushik highlighted the issue of age of candidature. The current minimum age is 21 for local bodies elections and 25 for State Assembly and the House of People.

The 2011 census shows that 630 million Indians are below 25 years of age. This makes our democracy highly unrepresentative as almost half of our population is ineligible to contest elections. The problem is graver in states which have added minimum educational qualifications, to the eligibility criteria.

Unlike the United States, there has not been much debate around this issue in India. The issue should be debated in the light of conceptual understanding of Citizenship, for example Aristotle, in his book ‘Politics’ defined ‘citizen’ as a man or a woman, who enjoys right of sharing justice from an office. Also, as John Rawls states it in his theory of Justice that equality of opportunity demands that everyone irrespective of race, gender or even age shall have fair and equal chance to contest. Fair and equal opportunity irrespective of age does not exist in India.

The minimum age for candidature should be lowered in order to ensure fair and equal opportunity required in a participative democracy.


Problem 2 – Systemic Problems with ‘First Past the Post’ system

The electoral system of ‘First Past the Post’, which India follows, stifles democratic governance as citizens have no other alternative. We are made to remain within the system even if our demands are not met and concerns are not represented. In such a scenario, we need to move towards the ‘Proportional Representation’ system which is followed in more than a hundred countries.

The current system needs to be questioned on four key aspects:

  1. Is our democracy mature enough to establish political nationalism? From 1906 onwards, there has always been conflict between political and cultural nationalism in India. Many leaders have fought to establish political nationalism in India. BR Ambedkar’s demand for separate electorates is one such example.
  2. Is our democracy inclusive of all sections in society, especially the Dalits, Adivasis, tribals, other minorities and women?
  3. Is our democracy truly representative in the governance of the country?
  4. Is our democracy substantive?

In India, we equate democracy to merely casting our cotes at the time of elections. But democracy should not be restricted to voting alone, rather it is about being actually represented in the governance of the country. In 2014 Lok Sabha, 69 % of the voting population was not represented in terms of the membership. This includes women, youth and children.

The FPTP system is highly unrepresentative due to the following key reasons:

  1. Allows political parties to come to power with minority votes. Even parties with 10% votes can enter the Lok Sabha.
  2. Contestant with more votes simply wins the entire election, thus shutting out all the other candidates, irrespective of their vote count. In 2009 in Tripura, an MLA won the election by 3 votes.
  3. Parties with less than 30% votes can get more than 50% of the seats.
  4. A party got 20% of votes in 2014 Lok Sabha elections but no seats.
  5. Single member constituency- From one constituency, only one member is elected.
  6. FPTP is generally meant for only two-party countries. But India is multi-cultural, multi-lingual, multi-party in nature. So it cannot be applied to India.
  7. It perpetuates corruption, money, muscle-power, in elections, as the rich can contest elections but the poor cannot win.
  8. By-elections (a lot of money is wasted).

This should be compared with the benefits of the PR system:

  1. Mixed member proportionality (MMP)- In every constituency, more than one member is elected.
  2. Majority under PR is not just securing more votes than opponents. It is more than 50%. But, today no party is capable of getting 50% of votes. So coalition government can bring about the needed 50%.
  3. State sponsored or funded elections.
  4. No by-elections. Party list is there. If a candidate dies or resigns, immediately, the next person in the list will go to parliament. So, money is not wasted.

The PR system will be more representative and at same time, will do away with the need of frequent by-elections.

The demand for PR system has been raised since 1930. In the 1st constituent assembly, two people from minority community raised the issue of PR- Mr. Kazi Syed Karimuddin and Mr. Mahboob Ali Baig Sahib Bahadur. It was rejected, on the basis of only 15% literacy rate in India. Even BR Ambedkar rejected the proposal, but later on he changed his view on August 27, 1955. He said we need multi-member constituencies.

Jawaharlal Nehru in 1930 also raised the issue of PR. In 1968, CPI took a stand. In 1974, Jayaprakash Narayan formed Tarkunde Committee, which recommended the PR system. In 1999, the Law Commission Report was in favour of PR and in 2011, the Supreme Court issued an order to look at PR as an option. Finally, in 2015, the Law Commission sent a recommendation to the Ministry of Law and Justice.

India may learn from other countries which have PR system in place. Germany has adopted Mixed-member proportionate representation system (to reject fascist forces), which involves 50% FPTP and 50% PR. Taking cue from there, a similar system based on 30% from FPTP and 70% from PR. Germany has also put 5 percent as threshold requirement to enter the parliament and also increased the number of members. Norway has a separate Parliament called the Sami Parliament (recognised by the Norwegian Parliament). No police used for elections at all. New Zealand does not have a written Constitution, yet they have MMP. They also have reservations and separate electorates for the Maori community. PR system also adds to diversity and more representation to political minorities.

The Campaign for Electoral Reforms in India proposes that for moving towards PR system, a coalition of political parties should be formed to back the proposal. An independent committee should be formed to look into legal and constitutional issues involved in this transition. There is no need of amending the constitution, an amendment to Representation of The People Act will suffice. An analysis of representative nature of the current system should be undertaken after the 2019 election results.


Problem 3 – Lack of Representation of Women & Minorities

In the last decade, Indian Parliament has witnessed a decline in diversity. It has come to be highly dominated by rich, upper-caste Hindu men.

This has happened because there is a gap in law itself. The unrepresentative nature of the parliament shows that electorally our constitution is not fulfilling its purpose as our electoral laws, electoral bodies and the manner of conducting elections, have failed it. An ideal representative is the one who not only understands the issues but also has had some real experience in the field or has lived in similar geographical conditions etc.

The problem is serious when although 15% of the total Indian population are Muslims, there are only 4 Muslim representatives in the Parliament; the average age of the country is half the average age of the Parliament; more than a third of the Parliamentarians are Crorepatis although less than 1% of India is Crorepatis; 90% of the Parliament is male, majority of the representatives belong to the upper-castes the only reason there is any Dalit representation is reservations. This creates a situation, where discussion is on issues like GST on sanitary napkins is carried out by a body where 90% of the discussants are men. The issue under discussion may be criminalisation of Triple Talaq, but there are no muslim women involved.

Global average of women’s representation is 23%, and the Asian average is 20%. In India there is an abysmally low 11.2% of women’s representation in Parliament. Most of the countries have crossed 30% of women’s representation. These countries, like some in Western Europe, have adopted the PR system of elections.

The standard reason given for giving less tickets to women is their ‘lesser winnability’. However, this is not true, as women have shown higher winning rates and surpass men in clean image and education. There is also a worrying trend of using women as dummy candidates for male members of the family.

The non-representativeness is creating a representative minority even when demographic statistics say otherwise. In June 2018, there was no MP below the age of 30 years. The same applies to women and they are a political minority. However, the socio-cultural minorities are also marginalised as their tickets are decided by upper caste leaderships of the party.

Caste and religion dictate our professions. We need to work on both to find solutions to these problems. The problem here is about input- you cannot get women/dalit/muslims in parliament if you do not field them. The initiative can come from the parties or through reservations (a last resort). The African National Congress had decided to have every third candidate as a woman. Today, women constitute 54% of their Parliament. Media has to play a better role in giving proportionate coverage to all the candidates.

Both political and socio-cultural minorities need to be recognised while looking into the issue of non-representativeness. The legal hurdles like the minimum age limit and cumbersome nomination process needs to be relaxed to allow the youth to contest. There needs to be awareness campaigns amongst youth to encourage them to contest.


Policy Recommendations
  1. The age of candidature needs to be reconsidered and discussed in light of concept of citizenship and just representation. Every citizen should have the right to contest.
  2. Media and the Electoral bodies need to spread awareness among the youth about the nomination process. Media needs to give proportionate coverage as well.
  3. The cumbersome process of nomination needs to be simplified so that first-time candidates find it easier to file their nominations.
  4. An independent expert committee needs to be appointed to analyse the representativeness of the current system after the 2019 General Elections and to look into the legal issues of shifting towards Proportional Representation System.
  5. If Political Parties and the media do not take initiative for more women representation, then as a last resort, reservation of seats needs to implemented.

 

Photographer: Mr. Babu

 

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