| Loksatta-Corruption-Eradication |
Changes in the Tenth Schedule
Problems:
The present provisions of Tenth Schedule under Article 102 (2)
and 191 (2) of the constitution gave rise to several anomalies
1. These provisions incorporated in 1985 failed to prevent
defections. Countless defections took place subsequently without
incurring disqualification.
2. Individual defections invite disqualification, whereas
collective defections are amply rewarded.
3. Speakers have tended to act in a partisan manner often. Even
when defecting members did not constitute one-third of the party
members in the legislature, Speakers sometimes did not disqualify
members. The case of defection of members of BSP in UP Assembly
is a classic example.
4. Since Tenth Schedule applies to any vote in the legislature,
legislators who may honesty differ on a piece of legislation are
forced to submit to the will of the leadership. Muslim Women's
Bill brought in to nullify Supreme Court's verdict in Shah Bano
case, the whip issued by congress party in Justice Rama Swamy's
impeachment case are two telling examples.
5. 'Splits' are engineered in legislature parties without any
real split in the party.
6. As whip applies to Rajya Sabha, the party with people's
mandate in Lok Sabha has no opportunity to persuade Rajya Sabha
to approve any legislation on merits. Only backroom deals with
party leaders can facilitate Union legislation.
Proposals:
1. Any voting on a finance bill or confidence motion or no-confidence
motion against party whip shall invite automatic disqualification
irrespective of the number of members defying party whip.
2. A 'split' in a party shall be recognized only after due
process in the actual party fora with one month's notice to the
Election Commission. A split in a legislature party shall be
recognized only in the event of a split in the party after
following due procedure.
3. In case of such a legitimate and recognized split, the persons
who form the splinter group shall not be disqualified for
violation of the whip issued by the original party.
4. In the event of such a legitimate split, the persons who form
the splinter group shall not be eligible for ministerial office
for at least one year.
5. Whip shall not be issued to members of Rajya Sabha or
legislative council.
6. Whip does not apply to ordinary Bills or on impeachment motion
to remove constitutional functionaries.
7. Violation of party whip on matters other than finance bill and
confidence or no confidence motion shall not invite
disqualification, through it may entail disciplinary action by
the party.
8. The Election Commission shall be the competent body to
determine whether or not a member is disqualified and to
recognize a split.
Fairer representation in
legislatures
Problems of First-Past-the-Post (FPTP) System:
1. Winning in a constituency is the only source of legitimacy in
FPTP system.
2. Broad based Public support is not recognised if a party cannot
win in a constituency.
Local electoral irregularities are encouraged to win at any cost.
There is incentive to resort to irregularities locally to win as
broad public support without winning in a constituency is no use.
Conversely, parties have no desire to appeal to broader
constituency. Nor is there desire to identify candidates worthy
of public office.
3. The gains in a constituency on account of irregularities are
not offset by the risk of losing public support elsewhere.
4. A high proportion of winning candidates obtain less than 50%
vote. (Annexure 10 gives the percentage of votes obtained by
winning candidates).
5. New political groups cannot make an impact in the absence of
the capacity to muster money and muscle power.
6. The system favours entrenched parties and individuals and
stifles reform impulses.
7. The finest citizens are repelled by the ugly electoral
practices, and choose to stay away from politics, leaving the
field open to the entrenched politicians.
8. Local dynasties perpetuate family power for generations.
9. Complete change to proportional representation may lead to
weaking of the bond between people and their elected
representatives.
10. In FPTP System, the party with the largest vote may have
disproportionate presence in legislature. This may promote
majoritarianism stifling dissert or a party which has
concentrated presence in a few pockets may fare better than a
party with widespread popular base, thus distorting verdicts.
Proposal:
Proportional representation combined with constituency - based
election for 50% of the seats.
a. The overall composition of the legislature will depend on the
proportion of votes obtained by the parties.
b. 50% seats are filled by constituency - election.
c. There shall be two votes; one for the constituency election
and the other for the party of choice.
Party vote determines the number of seats a party gets. After
excluding the constituency seats won by the party, the remain
seats will be filled from the party lists.
d. A State shall be the unit for proportional representation or
lists. All union territories together will constitute a unit.
e. A party shall be eligible for allotment of seats on PR basis
only if it obtains at least 10% of the valid votes in States with
10 or more seats. If the number of seats is less, a party shall
have to cross a threshold limit as per the formula.
No. of Valid Votes
No. of Seats to be filled
f. As a party or parties are eliminated for obtaining votes below
the threshold, the seats shall be divided among the remaining
eligible parties as per the following formula:
No. of Valid Votes obtained by the party
X No. of Seats
Total No. of Valid Votes obtained by all
eligible parties
g. First, each party receives one seat for each whole number
resulting from this calculation. The remaining seats are
allocated in the descending sequence of decimal fractions.
h. Any seats which a party has won directly in the constituencies
are deducted from this number, so that the balance number to be
drawn from the lists is decided.
i. The existing reservation provisions will continue for the
constituencies as well as party lists as per a roster of
reservation.
j. If a party wins more constituency seats than it is entitled to
get by proportional representation, it will retain all
constituency seats. The additional number will be added to the
strength of the legislature on a temporary basis.
(Annexure 11 gives the sample calculation showing distribution of
seats in the proposed PR system combined with constituency
elections).
Miscellaneous
issues
1. Redelimitation based on census data should be restored in
respect of constituencies within a State or union territory.
2. The number of seats allotted to States in Lok Sabha / Rajya
Sabha should be frozen at the present level (except where State
boundaries are altered) in order not to penalize the States with
a good population control record. Any redelimitation should be
within the States.
3. Reservation for SC/ST should be continued for a finite period
of, say 20 years, and should not be extended further. Rotation of
seats should be resorted to in case of SC seats and non-scheduled
areas ST seats.
4. In the event of seat reservation for SC's / ST's not being
extended after 20 years, a law may be passed making it mandatory
for the political parties to nominate SC / ST candidates in the
required proportion.
5. Certain qualifying criteria may be imposed on independent (unrecognized
party or non-party candidates) candidates to dissuade non-serious
candidates - higher deposit, endorsement by a prescribed number
of voters (say at least 100 for the Assembly and 1000 for Lok
Sabha).
6. The law relating to registration of parties (Sec 29 A of RP
Act, 1951) should be amended to give the Election Commission the
authority to deregister parties which do not adhere to essential
requirements prescribed in the proposals relating to political
parties.
7. Section on 29 A(5) should be amended to read:
"………….. that the association or body
shall bear true faith and allegiance to the Constitution of India
by law established, and to democratic principles, and would
uphold the sovereignty, unity and integrity of India."
This will make it possible for any democratic party committed to
constitutional principles to be registered without having to
resort to dissimulation.
8. An independent auditing authority should be established for
auditing annual statements of income and expenditure of political
parties and the statement of assets. Alternatively, the accounts
should be audited by an auditor approved by the Election
Commission.
9. An election should be treated as void if the percentage of
polling in a constituency is below 40%. If the polling percentage
is lower, there should be a re-election.
10. The practices described as corrupt practices must be
penalized and prevented by the Election Commission before the
election, and must not be left to election petitions later. An
appropriate amendment should be made to RP Act to this effect.
11. Election Commission should be the final authority to decide
on all election petitions. The Commission shall dispose of
election petitions within 6 months from the date of polling.
12. Election Commission should have the rule making power on its
own in matters relating to supervision and conduct of elections.
13. Bye-elections should be held only in the first three years of
the life of the legislature. Other vacancies must remain unfilled.
Bye-elections should not be held at random times, but only in
February or November. Alternatively, there shall be no bye-election
in the event of a vacancy. In case of Lok Sabha, the members of
Legislative Assembly in the area will elect a member to fill the
vacancy. In case of the Legislative Assembly, the local
governments in the district / area will elect a member to fill
the vacancy.
14. The Election Commission should be made truly autonomous. For
this purpose the following are necessary:
(a) Selection of the CEC by a collegium consisting of the Prime
Minister, leader of the Opposition, the Chief Justice, Speaker of
Lok Sabha and Chairman, Rajya Sabha.
(b) Selection on of the other ECs by the above Collegium and the
CEC.
(c) Making expenditure on the Election Commission charged to the
consolidated fund of India.
(d) Making the EC secretariat independent of the government.
(e) Delegating all rule-making power to the EC.
(f) Prohibiting any non-elective public office for CEC / EC after
retirement.
15 For enhancing Women's representation, the party-quota model
proposed by the Election Commission and endorsed by various
groups including the Forum for Democratic Reforms should be
adopted.
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