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07 - Chapter 1
07 - Chapter 1
07 - Chapter 1
INTRODUCTION
Coming to another form i.e., indirect democracy, the will of the state is
formulated and expressed not directly by the people themselves, but by their
representatives to whom they delegate the power of deliberation and decision
making.3 It is put in practice by following the means known as elections.
Hence the modern tendency has been to identify representation with
election. The reason is that the popular approval as expressed in the vote for a
person or a measure is believed to be the only ground of democratic legitimacy.
It is understood as a ruler’s right to rule. To discover the “will of the people”
election must be held or take place at regular intervals to give people a chance
to express their approval or disapproval of the stewardship of key office.
Representation is a matter of executive fact. Elections when seen in this
context appears to be a method of finding persons who possess this
representative quality4. If we observe the history we can find that apart from
electoral method of selection, representatives may be chosen in different
methods. Choosing representatives on the basis of technical achievements is
followed by the United Nations, German Federal Council etc., Another method
of considerable historical significance is inheritance of the office. House of
Lords in England and some of the French upper chambers rested upon this
basis. But it has become anachronistic for representative purposes in recent
times. Election has suspended it almost completely. In recent times election –
popular election – has become the most widely accepted basis for legitimate
representation.5
1.1. Representation:
2
The idea of representation rooted in the theological notion that the head
of the Church represents God, the ruler of the Universe on earth. The idea of
making someone present, who is real ruler, because he is not able to take care
of the task himself, is in the modern mind, linked to the notion of election or
deliberate choice. It may therefore be called voluntary or willed. In the
modern world direct general elections has been generally accepted as the most
rational method for choosing representatives.7
Thus, there is a need to elect a representative. The representative may
be elected by the people through the exercise of the right known as right to
vote. Without this it is impossible to elect representatives in a democratic state.
This was well defined by John Stuart Mill, the most powerful advocate of
women sufferage as, “Democracy postulated the equalities of men, a political
equality can be assured only when all citizens are granted the right to vote.
Laws and policies of the government concern all people and what touches all,
should be decided by all”.
It is the process by and through which the political power and influence
which the entire citizenry or a part of them might have upon gave a mental
action is within their express or implied approval exercised on their behalf by a
small number among them, with binding effect upon the whole community thus
represented. The most essential part of this descriptive definition is contained
in the phrase with their express approval. In this phrase, the recognition is for
constitutional setting of all such representation. It may also refer to the specific
approval of voter in election a particular person or set of persons to represent
them. By that act, these persons acquire representative quality.8
Thus to rule among themselves there is a need for representative. These
representatives may be elected by the people through the exercise of the right
known as right to vote. Without this it is impossible to elect representatives in
a democratic state. This may be well defined by John Stuart Mill as
3
“Democracy postulates the equalities of men, a political equality can be
assumed only when all citizens are granted the right to vote. Laws and policies
of the government concern all people and what touch at all, should be decided
by all”.9
4
education and brings about national unity. As such, the government enjoys the
confidence of the people.
5
differ to some extent with U.K., Germany where democratic system has
stability.
6
a vote is a valuable asset. It is important to see that the result of an election is
not a mathematical summoning of votes but the declaration of the will of the
people. The significance of the vote serves to emphasis the importance for a
democratic state of seeing that its elections score the real purpose. For
satisfactory functioning of a democratic form of government, it is essential that
fair and impartial elections are held after regular intervals so that the fear of
being reflected at the next election may keep the ruling party aware of its
responsibilities. Every person of eighteen years, irrespective of caste, creed,
education and sex exercises the right to vote.
7
they also know what benefit they can derive out of the support they extend to
the deserving candidates. So, there is less possibility for misled by any sort of
temptation or consideration. But if we observe out country people have less
experience about democracy. In fact, the vote is the national trust which has to
be exercised to improve higher Interests of the country.
Though the Indian constitution proceeds for the Universal suffrage, yet
no proper steps have been taken to educate the voter to realise the value of the
vote. This is in anyway a disadvantage that the voters are being misguided by
interested persons and parties. And sometimes the elections and the procedure
adopted by the vested interests kindles the progress because it obscures
fundamental changes in social customs and habits and the common interests of
the people. In the words of Dr. S. RadhaKrishnan :
“A Government is not democratic simply because it is voted into
power by the majority. It is not democratic where it is required to vote
only for one party. The test is whether it gives democratic rights to its
subjects, if it allows freedom of thought, speech and association to its
opponents. If a party brooks no rivals outside it and no dissensions
within it, even if it is voted by electorate, it is undemocratic”.17
8
Methods therefore need to be devised to restore the individual citizen to his
rightful place in the democratic process.18
9
to cope with the problem. Since that time, elections in England have been held
on the basis of what is known as the system of plurality i.e., the relative
majority. Later on elections held in a secret manner. John Stuart Mill pointed
that, the right to votes is a public trust, and should therefore be exercised in
such a fashion to give public a chance to see how it is used. It develops quality
of civic courage. In other words, the English electoral systems is clearly direct
towards the goal of dividing each constituency and thus all England its two
halves, the majority to govern and minority to criticize. This may mean
permanent voiselessness for a man who belongs to a peripheral minority. 21
10
proportional representation widely used in Europe. The first scheme gives to
voter to choose between lists of the candidates which contain as many names as
there are representatives to be chosen. It is used as a combination of both the
above in various countries.22
11
by a simple plurality. While this might act as a deterrent to the development of
minor parties, certain religious, class and race cleavages might, in the course of
time emerge and plague by their intransigent attitude. Here, an experienced
American wrote in the light of experiments. We have groups of all sorts and
kinds, formed around religious, racial, language, social and other contentious
distinctions. Proportional representation invites these groups of all sorts and
kinds, formed around religious, racial, language, social and other contentious
distinctions. Proportional representation invites these groups to seek to harden
and intensity their differences by bringing them into political action where they
are irrelevant, if not disturbing. A wise election system would invite them to
forget these distracting prejudices.24
The effects of American provisions make it clear that the right of adult
franchise as such is not a constitutional right. The 15th Amendment has been
held to have only a negative implication in so far as it prohibits any
discrimination, direct or indirect, against a Negro by reason of his race or
colour. It does not, however, infer any affirmative right to vote upon anyone
and it is within the power of a states to lay down any discriminatory conditions
such as payment of tax etc, upon the right to vote.25 It appears that all the
States retain some or other of certain qualifications namely, real property, tax
payment, education and literacy qualifications etc. Therefore, though the
principle that the right to vote in representation in Congress flows from the
Federal constitution, the measure of the right is fined and can be fined under
the American constitution by the suffrage qualifications in several States
resulting in the fact that these is no uniform suffrage even for federal election.26
12
the election come at stated intervals, so that their timing cannot be maneuvered
to suit the party in power, helps to keep this great power under popular control.
Not only the President’s own desire either to be re-elected or to determine his
successor after four years of service, but also the congressional elections every
two years, have this effect; for the President must seek to keep his
congressional support unimpaired. As the successful leader of the majority, the
President has more power at his disposal than any constitutional monarch could
ever dream of.28
All the above show that English and American opinions against the
proportional is traditional. At any rate, electoral system should be studied in
relation to the whole constitutional order as well as social and other conditions
of the country concerned. It is possible by working out of a system adopted to
the peculiar needs of the country.29
13
1.3.4 Position in India:
14
At one stage, the “Fundamental Rights Sub-Committee” also
unanimously agreed that the independence of elections and the avoidance of
interference by the executive in legislative functions might be regarded as a
Fundamental Right and be included while dealing with the subject. The Sub-
Committee also resolved:
15
elections. In the resumed discussion on this Article, in the Constituent
Assembly on June 15, 1949, the Chairman of the Drafting Committee,
B.R.Ambedkar, moved an amendment substituting Article 289 with the
following Article 33.
16
government of the day, that will certainly vitiate the free Election which
we all wanted.
Was to take away the matter from the hands of the executive authority and to
hand it over to some independent authority.
“One of the dangers which we have to face arises out of any corruption
Parties, candidates or the government in power may practice …. It is,
Therefore (good) that our Constitution guards against this danger and
Makes provisions for an honest and straight forward election by
Voters”.
17
1.5 The Need for Present Study:
India being one of the biggest countries has to show a path to the world
about the true form of democracy in actual practice. The persons visiting India
from other countries are unfamiliar with Indian Constitution, may find diversity
and get the impression that India instead of being a single nation seems an
aggregate of nations, each one of which is different from the other. As a result
of the confluence of the numerous factors which have maintained their separate
existence for a long, a single stream of Indian culture flows through the
country. After the establishment of democratic system of government in the
sub-continent, there is great scope for the full development of the individual
and the collective social group. In spite of apparent differences and
distinctions, there has been a heard of unity running throughout the whole
country. Under the democratic system of government, people get opportunity
once in every five years to elect representatives of good caliber. In any case, if
the work done during this period is below the mark and the policy adopted
turns out to be strong or its implementation defective, it is open to the people to
entrust the government to some other party. The Indian Constitution is flexible
which permits all kinds of differences of opinion to be expressed and criticisms
made.
18
The Parliamentary democracy can be more attractive than even higher
levels of income of the people. In case there is poverty and illiteracy, it
becomes difficult for the government to run smooth administration as the
masses are easily exploited to gain some political objective by interested
politicians and parties. The less poor and semi-literate also do not realize the
responsibilities of the government. Due to ignorance of the Parliamentary
procedures and the working of democratic system, lawlessness and disorder are
rampant in India. The position has hone to such an extent that even the elected
representatives in legislatures are not fully aware of their responsibilities with
the result that no discipline or decorum prevails in the legislative bodies in the
country. The question arises, whether the people, placed under the existing
conditions are fit to enjoy the benefits of democracy. Mahatma Gandhi in
Young India of December 1, 1927 said that:
Fair and free elections, freedom of thought, expression and press and
independence of judiciary are the three pillars on which the edifice of
democracy stands. If the elections are not fair and free the other two pillars,
freedom of thought, expression and press and independence of judiciary, can be
destroyed through constitutional means. The question of fair and free elections
is much wider and mere important than the question of clean elections. Use of
money and liquor, arousing of caste and communal feelings to secure group
votes, impersonation and money other things can and do affect the election
results and constitute electoral malpractices. Political education, improvement
19
in the economic condition of the common people, a strong sense of nationalism
which may impel a person to place wider national interests above personal and
party interests and suitable legislation can go a long way in ensuring that the
elections are clean.
20
elected. Statutory creations they are, and therefore, subject to statutory
limitation”.39
The main purpose behind part xv of the Constitution are to ensure free
and to ensure free and fair elections to be conducted under the
superintendence, direction and control of an independent body and the actual
conduct of elections should not be interrupted by other proceedings as far as
practicable.41 One of the most interesting and in a manner controversial
questions is how far the right to superintend, direct and control the preparation
of electoral rolls and conduct of the elections vested in the Election
Commission divest the rights of the citizens given to them under the
constitution to ask for the redress of denial of that right from the courts.
Art.325 of the Constitution is only a negative provision disutilising the State to
deny the eligibility for inclusion in any such roll or claim on the ground of
religion race, caste, sex or any of them.
21
also hard to prove, especially because the courts take the stand that they should
be proved beyond reasonable doubt. It has been said:
The general impression is that election cases are filed more with a view
to harassing the returned candidate than to exposing the unfairness of
the election and getting redress.43
22
established parliamentary democracy, our leaders have failed to impart political
education to the people who even lack the basic literary education.
23
Anyway, there should be awareness on the part of voter to create public
pressure on the leadership of the political parties to refrain from resulting to
electoral malpractices like bogus enrolment, impersonation, booth capturing,
rigging, bring the voters through money or liquor, threatening the voters with
muscle power or resort to appeal to religion or creed etc. This should bring
pressure on political parties to conform to statutory requirements of electoral
law regarding ceiling on election expenses and the like, and canvass against
corruption and criminality in the electoral system of the country.
24
1.7 OBJECTIVES OF THE PRESENT STUDY
1. To trace the historical evolution of election and electoral
systems in different countries viz., Britain, United States and
India.
2. To analyse the legal and constitutional provisions relating to
the powers of Election Commission in India.
3. To evaluate the role of judiciary in settling the disputes
relating to electoral malpractices and other corrupt practices
4. To study the recent trends of Election Commission in curbing
electoral malpractices and
5. To identify further electoral reforms to strengthen the Election
Commission of India in order to fill the gaps between Law
and Practice.
1.8 HYPOTHESES
25
2. The electoral reforms adopted and new guidelines issued by the
Election Commission has impact among the political parties and the
public and would go a long way in ensuring free and fair elections.
Since the present study is purely doctrinal and qualitative one, the
researcher does not propose any empirical study. However, it is proposed to
make in depth study of the problem. The electoral reforms suggested by the
Election Commission and of different ideas relevant and suggested by various
authors are taken for the purpose of the present study.
The Third chapter contains study of election trends and electoral laws.
It includes the various guidelines issued by Election Commission recently for
preservation of democratic values of the country as a whole to curb growing
electoral malpractices.
26
The Fourth Chapter is devoted for the study of the electoral disputes and
malpractices and the judiciary’s role in dealing with them apart from the role of
Election Commission has been observed in this regard.
Lastly, Chapter Six deals with conclusions and suggestions after a brief
account of the appraisal of the studies. The conclusions are drawn on the basis
of discussions made in the study. These are drawn logically and essentially
they are tentative. ; It is sincerely hoped that the conclusions drawn and the
suggestions made on the basis of exhaustive study in this discourse will be a
real contribution to the field of election law in a working democracy.
27
CHAPTER - I
FOOT NOTE
(1948) 298.
(1974) 279
5. Ibid.
7. Ibid.
8. Ibid.
392.
Science (1982)
11. Ibid.
(1982) 392.
14. Ibid.
15. Supra
(1980) 32.
28. Ibid.
ii
29. Supra
31. Ibid.
539-40.
1992.
(1980) 10.
42. Ibid.
iii
46. V. R. Krishna Iyer. Political Parties and the Election
iv