Now for real representation

Notwithstanding the availability in the country of enough talent, the choice in the election is often limited. A free and fair poll is essential for a truly representative government. In spite of strong measures by the Election Commission, malpractices continue to erode the fairness of elections. Muscle and money power affect the results. The verdict of such polls is difficult to accept as the electoral mandate. Itaffects the government’s representative character.

The commitment of the elected to constitutional values must form the basis of governance. Issues not individuals must determine the choice. Idolisation of some instead of commitment to a cause impairs democratic values. A representative government has to be issue based and committed to a welfare state. However, the absence of clear issues has made the choice more difficult in recent elections. This is unhealthy for democracy.

The law generally contains satisfactory provisions for a free and fair poll. The difficulty is in the enforcement. Rampant malpractices vitiate the verdict. The remedy of election petitions against corrupt practice is ineffective for several reasons, including failure to produce credible evidence. Electoral laws are violated with impunity. The need is to exclude candidates so inclined from the fray. No party denies the presence of many such in its fold but all plead helplessness. The criminalisation of politics and some control ofgovernance by that factor is an acknowledged phenomenon.

The shifting loyalties of some elected even after the elections for personal gains alter the electoral verdict and produce greater instability.

Governance ceases to reflect the people’s will. The anti-defection law needs close scrutiny and fresh enactment to stop the mockery and ensure that the popular mandate is reflected in the government’s functioning.

To prevent criminalisation of politics the exclusion of candidates with a criminal background or those facing a subsisting charge framed by a competent court by all parties is necessary. In the absence of political will, it must be done by legislation. That would go a long way in ensuring a fair and free poll. More suitable candidates would be available. At present, quite often there is only a Hobson’s choice which hardly reflects the will of the people. They cannot be blamed for the choice they are forced to make in the existing system.

The value base of the Indian polity continues, ofwhich public acclaim of morals is proof. This explains the acceptance of the recent phase of judicial activism to enforce probity in public life and accountability of public men. The people deserve better governance through representatives committed to constitutional values and striving to achieve a welfare state.

Exclusion of unsuitable candidates is necessary to achieve this objective. The electoral process must also be insulated from malpractices to ensure that the verdict reflects the true will of the people.

The right to contest an election is statutory and there is need for the statute to provide for disqualification of persons with a criminal background. A person against whom there is prima facie evidence of criminal conduct, which makes him unsuitable to represent the people, must be disqualified. The disqualification must last during the subsistence of a charge framed by a competent court based on prime facie evidence. If the charge ultimately fails and the person is acquitted, it would bedeprivation of the individual alone. The larger public interest must outweigh an individual’s personal interest. This would promote probity in public life and higher standards in public men.

Another disturbing factor is expensive elections. The need for huge funds confines the contest to a small section with large means. Elimination of a large segment for this reason limits the electorate’s choice and negates democracy. An equal opportunity to every competent person to contest the election is the requirement of equality which is the core value of democracy. The need is to fulfill the constitutional promise.

The ceiling on election expenditure by a candidate has ceased to be even a fig leaf because of the exclusion from it of spending by the political party and its friends. Most of the expenditure is attributed to this exception, which provides an escape route to the returned candidate from an allegation of corrupt practice. Recently, by judicial construction of the statutory provision, the burden has beenfixed on the returned candidate to prove the exception. This is some check but it is not enough to curb malpractice. The provision needs to be amended to give it teeth. The ceiling must cover all expenditure irrespective of its source. Otherwise it is better to delete the provision which is an eyewash. Let the people face reality.

One other matter requires consideration. The growing reluctance of the electorate to vote is because of the absence of a suitable candidate. Low turnout accounts, at times, for the election of the unsuitable. It is time to consider enactment of a provision giving a Right of Rejection of all candidates, if considered unsuitable. A minimum percentage of votes should be necessary to get elected. Or, if the votes rejecting all exceed the highest polled by any, there should be a repoll from which rejected candidates should be disqualified. The results would better reflect the people’s will with the advantage of eliminating the unsuitable.

It is time that the people’s right to a trulyrepresentative government and a participatory role therein is respected. A serious debate to focus attention on real causes and possible solutions is essential for true democracy. The failure is not of the people in giving a fractured verdict.

It lies elsewhere. A system to give opportunity to the people to choose from the best available is needed. This right can only be ignored at great peril.

The writer is a former Chief Justice of the Supreme Court