9th August 2012
A proposed blueprint for India, by Justice Tewatia #1
Justice Tewatia, associated with the now-dissolved Team Anna, has been reading BFN, about which he has formed a positive impression. This Sunday he called me to discuss what I am (or rather what FTI is) going to do about the new political movement led by ex-Team Anna members. Leaving aside that discussion (participation with IAC members is not up to FTI but up to IAC members – I can't keep writing to Arvind Kejriwal and get no response), he mentioned he had proposed a blueprint for India which I have since arranged to get a scanned copy, courtesy Ram Atri.
The blueprint is meant for India, so everyone in India should consider it, so I'm publishing it below (after a quick OCR), and will colour annotate and comment later.
The blueprint forms part of Justice Tewatia's book, A Journey Less Travelled. First, let me post a note about this book from its jacket, and then the blueprint.
A Journey Less Travelled by Justice Debi Singh Tewatia
This inspiring Autobiography, set against the pre-independence backdrop of turbulent India, is a nostalgic memoir. The author recounts his growing up years upto his attaining the esteemed post of Chief Justice of Punjab & Haryana and Calcutta High Courts, a journey which has been long, circuitous and sometimes very painful .He has unraveled the life that he went through that had its own fantasies and heartbreaks and this book can make one feel the indomitable spirit which sustained him through desperate circumstances. This is a classic tale of a person who fought and triumphed against all odds.
After obtaining the degree of Barrister-atLaw from Honb’le Society of Lincoln’s Inn (U.K.), in the year 1955, started practice as a young Advocate in Gurgaon District Courts and then shifted practice to the then Punjab High Court at Chandigarh. After the formation of the State of Haryana, he was elected Member of the First Legislative Assembly of the Haryana State in the year 1967. He was appointed Advocate General of Haryana in the year 1969. During the imposition of Emergency in the year 1976 was transferred to the Karnataka High Court and after lifting of Emergency and the change of Central Government returned to the Punjab and Haryana High Court in July 1977 wherein he was appointed as Chief Justice in the year 1987. He then on transfer took over as Chief Justice of Calcutta High Court in November 1987. Thereafter he resigned from that post in May 1988 , although, in normal course, he was to retire in June 1992 and is now leading a happy and contented life with his family.
REVAMPING “THE DEMOCRACY: THE FUTURE OF INDIA”
D.S. TEWATIA (Ex.-Chief Justice, Calcutta High Court)
“The generation of Indians who fought and suffered for the liberation of the motherland and some of whom even sacrificed their all, entertained for India a vision of great democratic nation ensuring peace and prosperity to all its citizens. That vision virtually stands shattered.
The dubious greatness that however has been achieved in 50 years after independence is of a nation which is most corrupt, most criminalized, most populous, most poor, most illiterate, most parochial and most castiest, a nation almost bereft of good values and work culture. Why such a precipitous fall? What is the basic reason responsible for such a national calamity?
I would lay the primary blame on politico-electoral process chosen by us for governing and managing the nation.
The human history so far has been witness to only three modes or form of governance (a) governance by a monarch/king, (b) rule by a dictator, and (c) democratic governance.
Through a process of trial and error democracy – with all its flaws and ugly moles has come to be accepted as the best form of governance, the governance in which citizens in some measure directly or indirectly participate in decision making.
Direct participation of all adult citizens in decision-making is not possible even in running of the village affairs, what to talk of a large and complex nation like India. So the decision and policy formulation is left to the representatives, freely chosen by voter-citizens, who in turn elect an executive authority for managing day-to-day affairs of the country.
The political parties have acquired a dominant role in not only helping the citizens to elect their representatives but also for effective governance of the country. While their role in politico-electoral process is indispensable and undeniably important, the baneful effects on the nation of their role and of the political-electoral process have assumed such monstrous proportions that the need to inject sanity in the politico-electoral process has acquired utter urgency, for we have virtually failed to imbibe and internalize democratic spirit, the sense of fair play and the spirit of rule of law.
The polity has increasingly assumed feudalistic character. Prime Ministers and Chief Ministers behave as feudal lords and so do their relatives and hangers on. Having tasted and exploited power for pelf and self and aggrandizement, and in fact that having become the sole motto to be in politics, they become hell-bent to continue in power.
In a democratic polity, one can achieve political power only through electoral process. So necessarily one must win election by whatever means, even the foulest and demeaning, unconcerned with the ill-effects thereof on the unity, integrity and the character of the people and on the economy of the nation.
The political boss would, in the first instance, bend his political party to suit his rapacious political ambitions. To queer the pitch for his opponents, he would try to make election process unbearably expensive inter alia by catering to the baser instincts of the voters, using and hiring criminals and gundas to rig the election with the help of easy money secured from underworld mafias, smugglers and black marketeers who in turn under their patronage would easily operate above and outside the law, holding the society to ransom. The criminals would commit with impunity any crime that would appeal to their baser instincts from rape to robbery to murder. Favoured traders and businessmen would think of nothing while fobbing off on the public, fake, adulterated and sub-standard goods. Floating fake companies and cheating even the poorest of the investors of their hard earned money.
Neither of the class, i.e., criminals, dons and dishonest businessmen can operate without the indifference and at times the active connivance of political heavy-weights, some elements in the police, bureaucracy and even judiciary. These important limbs of day-to-day administration, having compromised their probity and integrity, in turn themselves come to indulge in unbridled corruption of all kinds.
Such a state of affairs in due course inexorably results in the capture of political party by the criminals and corrupts, who would invariably select their own kind as the party candidates for election to the elective bodies and in turn political reigns of the government pass into the criminal, anti-national (being anti-social) and corrupt hands. They would stop at nothing. If existing ethnic, caste, religious, regional and linguistic differences can serve their purpose, they would accentuate them. All political parties are already engaged in a mad race in carving out vote banks on language, caste, ethnic regional and religious basis and in the process are creating unbridgeable divide amongst people.
Can something be done to arrest the rot? Minimize exploitation of religion, caste and community and also minimize unbridled use of money power and muscle power in the electoral process and in turn stop criminalization of politics and the polity. The political gangrene afflicting the polity has passed the stage of medication; only drastic surgical steps can restore the democratic governance.
Those whom the existing rotten politico-electoral process has brought at the helm of the polity and of their own political parties, and who alone could, through Legislation, bring about reform, mild or radical, would defy and resist demand for reforms, more so of the surgical nature suggested herein.
1. REDUCTION IN NUMBER OF POLITICAL PARTIES
In the first instance there is a need to reduce the number of the political parties. Those registered all India political parties, which have allowed to pass by, two general elections uncontested or if contested and failed to qualify to be recognized as all India party, should be deregistered. Similarly State level parties to be dealt with accordingly.
[Sanjeev: This begs the question: what is the role of government in political parties, what privilege does "registration" offer. Implications of this suggestion are not clear to me.]
2. No person be allowed to contest as an independent candidate either to the State Assembly or to the Parliament.
[Sanjeev: Unfortunately, I'm unable to agree with this. There is nothing sacrosanct about political parties per se. We need representatives. Let citizens elect.]
3. ABOLITION OF UPPER HOUSES
There is also the need to do away with the Upper Houses both at Central and State level. These are Houses of elders only in the sense that the minimum age related eligibility is higher than that of Lok Sabha member or the MLA—the idea underlying the creation of Upper Houses having been totally lost on the party bosses. If the party bosses are so minded, these Upper Houses may come to be constituted entirely of illiterate and undesirable persons. And mind you more so, when the political parties particularly at State level are no political parties. They are merely family firms. By abolishing Upper Houses, the cash-starved Government would save lot of money. And also this would pave way for expeditious passage of legislative business.
[Sanjeev: There is some merit in this idea. I'm happy for a full fledged review of this concept to be included as part of a new Constituent Assembly. However, there are significant incentive issues involved. Currently the upper house acts as a speed breaker to change. Accordingly, it is (relatively) hard to bullodoze bad idea. On the other hand, the upper house reduces the momentum for change. I don't see this suggestion as a panacea, and would like to study its incentive effects more carefully. Hayek proposed some important constitutional ideas that might be worth considering along with a review of the need for an upper house.]
4. POLITICAL PARTIES AND THEIR FUNCTIONING
No democratic polity, whether of a small or large country as already noted can be run without the political parties—these being essential to politico-electoral process—so it shall have to be ensured that political parties function democratically.
The registration of political parties is ensured by section 29A of the Representation of the People Act, 1951. But the provision stops short at that only. It makes no provision for its democratic functioning and accountability. In this regard I suggest:—
That the funds of political parties be duly audited by statutory auditors and should be open for public inspection.
[Sanjeev: I fully endorse this suggestion]
* Persons manning the command structure, and the active members who form the electoral college for electing the aforesaid, should be duly elected, their election to be supervised by a special cell in the office of Election Commission. Election disputes, if any, pertaining to the apex organ of the party and its Chief Office bearers to be decided by a panel comprised of two retired judges of the High Court and one retired judge of the Supreme Court, requested by Election Commission from a panel, maintained seniority-wise of those judges who voluntarily agree to be on such a panel. The decision of the aforesaid panel to be final.
* The tenure of the ‘active’ members of the said electoral college to be 6 years, 1/3rd of whom would retire every 2nd year. Such of the members as had enjoyed one tenure of six years shall not be eligible for election to the said body for the next 6 years. No member of high command, Election Committee, Disciplinary Committee, President, Vice-President and general-secretary/secretary shall hold the given respective offices for more than three terms of two years, spaced by a gap of six years. The said gap shall not be filled up by any of their prescribed relations or their employees.
* The High Court shall decide the expulsion or suspension etc., of the members of the apex bodies and of the Chief Office bearer of the party.
* The Constitution of all political parties shall conform, in basics, to the model Constitution framed by the Election Commission of India particularly regarding mode of election and the time-frame thereof.
* Any party, which fails to hold election as specified above or fails to act in accordance with its Constitution shall be deregistered by the Election Commission for a period of six years.
* No Indian citizen who is qualified to become a voter and qualified to seek election to the Legislature shall be denied membership of any political party that he/she may choose to join. Denial to provide prescribed enrolment form and denial illegally to enroll would incur the prescribed punishment by Election Commission of India. This is to obviate the political parties from being reduced to family firms as is the case today with most of the political parties.
[Sanjeev: I fully apppreciate the concerns that sit behind these recommendations. However, I believe that the operation of political parties is not (and should not be) part of the constitution or government. While state funding of elections is valid, I'd be concerned if formal government functionaries start adjudicating on party organisational issues. FTI is committed to world-best practice internal governance and we are happy to have retired judges etc. volunteer their time to the party as adjudicators of disciplinary matters, etc. But that is a decision which should be left to the party. I'm willing, as a matter of principle, to allow the Election Commission to be requested to assist parties in their internal elections, etc., but only if requested by the party.
Further, I'm unable to endorse the requirement that parties MUST accept all those who apply for membership. FTI is VERY fussy about who can join. These are basic matters for a party to decide.The fact that parties have become family fiefdoms is not due to the barrier in joining these parties (there is none) but due to other reasons related to the way elections are funded]
5. ELECTION FUNDING
The Election Commission shall maintain and operate election fund. Besides the Central and the State Governments, the corporate houses/bodies and firms as also private individual or body of individuals would be entitled to make contributions to it. Election fund cess can also be imposed if deemed necessary.
The Election Commission shall allot funds as per prescribed norms/criteria to the duly registered and recognized Political Parties for the prescribed purpose/ purposes.
[Sanjeev: I endorse the idea of funding elections, but do not support the idea of funding political parties. My key objection is that it is undemocratic. Why should the performance of a party in a previous election (which is the basis of its registration) have ANYTHING to do with what it gets in a current election. Let candidates be paid a small amount (e.g. Rs.15) for each valid vote cast. That will reflect CURRENT voter preferences, and allow candidates to borrow funds for contesting elections, in anticipation of at least partial recovery of their costs]
6. ELECTORAL ROLE OF STATE AND REGIONAL PARTIES TO BE CONFINED TO THE RESPECTIVE STATE ASSEMBLIES ONLY
For as long as the State and regional parties are allowed to participate in the electoral process for electing a Parliament, they are likely to elect such number of MPs as to make it impossible to have one-party Government at the Centre. The coalition governments of the kind have been a total failure in this country. If the situation is not rectified, the effective governance would become an impossible task.
A coalition partner even if it commands only a few votes can dictate terms which may be against public interest and the acceptance thereof may lead to misgovernance, yet the Prime Minister to save his Government—enjoying paper-thin majority in the Parliament would accept even such terms. Corrupt Ministers of such coalition parties could indulge in corruption and misgovernance virtually with impunity—the Prime Minister being handicapped to exercise control over them.
Also the State-level parties, holding a balance in a coalition at the Centre, could influence the Central Government to financially favour their given State/ States which can lead to heart burning in other States and generate in their people disaffection against the Central Government and the country.
Hence, I suggest that only that Political party be treated as the all India Party/ National Party which in the preceding General Election to the Parliament or the Election to the State Assemblies secured not less than 10 per cent. of the votes cast. And only such a National Party shall be entitled to field candidates to contest election to the Parliament.
The above suggestion would to an extent ensure, in due course, absolute or near absolute majority of a ruling party and in consequence political stability for the Central Government.
[Sanjeev: While I understand the angst of coalition governments and geographical favours to coalition partners, I do not support this idea primarily because it uses PAST election results as a basis for CURRENT decisions. Issues of coalition politics are not a major problem with the First Past the Post System, at least nowhere as bad as other systems (e.g. proportional). With good candidates allowed to contest through state funding of elections as outlined above, this issue should ease off over time.]
7. A NEW MODE OF ELECTORAL PROCESS
The next most important and radical suggestion is that it would be an election fought by the political parties and not by the candidates as such. This suggestion envisages election largely on the basis of lists. There is to be no reservation of seats for any caste or community.
(1) Each political party shall furnish to the Election Commission of India on a prescribed date each State and Union Territory-wise, lists of eligible candidates’, numerical strength whereof would be maximum five times of the Parliament/ Assembly seats respectively in the case of small States and three times in the case of other States—this to provide choice. From this list all members of Centre and State ministries and members of the apex body of the political parties including president, vice president, general-secretary and treasurer shall be excluded as they shall have to actually contest election from the prescribed contested constituencies as candidates.
(a) There shall be a similar list for women candidates whose number shall not be less than 1/3rd of total seats and final allotment of seats won by a political party would place women candidates at serial Nos. 1, 5, 8, 11, 14,17 and likewise further on.
(b) If a State or Union Territory today elects only one member to the Parliament then one more seat to be given to such a State and Union Territory and seat at S. No. 1 shall be for a woman candidate.
(2) In order to ensure that the political bosses do not place high up in the list their close relations or persons connected to the corporate houses, it is suggested that names of prescribed relations of cabinet ministers, members of the ticket giving authority (by whatever name, it is known) and its main office bearers and also of those who are connected with companies and business houses shall not figure in the first half of the said lists arranged for male and female candidates as two separate lists.
The list so formulated and submitted to the Election Commission would be the list of candidates of the given political party for the election to Parliament/ Legislative Assembly as the case may be.
(3) Those whose names have been excluded from the above said lists submitted by the given political parties, shall fight election not from their gold-plated and over fertilized fiefdoms but from such other constituency as may fall to his or her lot on a draw of lot by the Election Commission of India in their presence, such a constituency may be situated anywhere in India in the case of election to Parliament and the given States in regard to the election to the State Assemblies.
(4) Such constituencies are named as the ‘contested constituency’ and the remaining constituencies are named as ‘listed constituency’.
(5) The contested constituencies for the Parliament shall be distributed among the States which send ten or more than ten members to the Parliament, in proportion to the inter-strength of numbers. The contesting candidate of this category shall belong to the different States.
Each political party, I assume, in order to establish its credibility and popularity among all sections of the society shall make their respective list representative. The political parties would not now be heard to say that a Muslim candidate or a Scheduled Caste/Scheduled Tribe candidate or a woman candidate is not a winning candidate and the given party would not like to lose seats by accommodating such candidates.
Since the selection of the winning candidates from the list of parties shall be done by draw of lots by the Election Commission of India in public view, no caste, community and ethnic group could make a grievance that they got less of their members in the Parliament or the Assembly. The list system thus to an extent would create a political climate for reconciliation and unity in the country.
(6) There is to be no by-election on any count. Any vacancy caused by resignation, removal, death, disability, disqualification or defection shall be automatically and instantly filled up by the Election commission by draw of lot from eligible names figuring in the list of candidates of a party already with the Election Commission of India. This suggestion would avoid frequent elections, and the consequent saving of expenditure of money.
(7) Election to the Parliament and Assembly shall always be held together. There shall be no mid-term poll either to the Parliament or to the State Assembly. Parliament shall run for full 5 years and the same would be the case for the State Assembly. The governor rule, when becomes necessary, IF AT ALL, shall run with certain safeguard for the rest of the unexpired period of the Assembly.
[Sanjeev: I pause at this stage to provide comment on the above 7 points. I'm intrigued by this interesting thought process. Clearly Justice Tewatia has attempted carefully to work out a solution that would overcome many of the failures found in the current form of Indian democracy. It is a very innovative system.
Having said that, its main disadvantage is that it isolates candidates from their constituency. This makes it hard: very hard!, for a person to represent the constituency he is elected from. It also gives unfair advantage to those who might have been fortunate to get a constituency that has a regional language they are fluent in. It also creates a huge disruption to the life of the MP, who now has to physically locate to another state with his family for five years, else he will basically be shirking his responsibility to the constituency.
On balance, I believe other much simpler improvements can work wonders in India without going down this very radical and innovative, but extremely untried, path.]
Avoidance of Uncertainty, Instability and Horse Trading.
Instability, particularly at the Center poses the greatest danger to the nation. Horse trading would tempt the foreign powers through multinational companies to set up auction stalls for greedy Legislators (an expanding tribe) and in the process virtually take over the economic and political governance of the country in due course.
In order to avoid the happening of such an eventuality, uncertainty and ineffective governance, it is suggested:
(8) The party or the pre-election coalition which emerges the largest party or the coalition (it is not necessary that it should enjoy then or thereafter the absolute majority in the house) in the Lok Sabha or the State Assembly as the case may be, shall be entitled to form the Government at the Centre or the State as the case may be and remain in power for the full term of 5 years.
[Sanjeev: This is a clear shift from the Westminster system in which a government is entitled to power ONLY to the extent it holds confidence of the house. I'm afraid I'm unable to endorse anything that precludes freedom of choice of the people's representatives. Should the representatives feel, at any stage, that they need to defect, they should have the freedom to do so. The fact that this option can be misused doesn't justify a system which in effect locks the country into a government which may no longer be popular or reflect even the support of the elected representatives.]
The suggestion is not that undemocratic as it may appear in the first flush. Treat the political party/coalition as an entity like an MP or an MLA who are entitled to enjoy a full-term of five years by securing votes larger in number than any of his rival, even though he may have lost his security deposits-having failed to secure minimum number of prescribed votes mandatory to avoid forfeiture of security deposits. I know of one such case from Haryana State.
As to the other possible criticism that how would the ruling party get through the Parliament or the Assembly, as the case may be, its budget and other Legislative business since it may not enjoy absolute majority in the House? I may answer this criticism by posing a counter question. How does a President of United States of America manages his Legislative and budgetary affairs, where his opponents have the majority in the one or both the Legislative Houses?
[Sanjeev: Well, the President has a veto power, but can only exercise the veto only ONCE. The veto can be over-ridden by 2/3rd majority. Here we are talking about a government that is unable to pass its own bills. Are we proposing that it be allowed to pass with 1/3rd of the votes?]
And a positive solution that comes to mind is, if the Legislature fails to take a due decision then President of India or the Governor of the State as the case may be, on the reference made by the given Government shall take the decision, if the failure to have the Legislative measure passed would, in their view, affect the security, the economy and the well-being of the citizen.
[Sanjeev: this is truly undemocratic, and I do not endorse such an extreme power given to a government that can't pass its own bills. It is plausible in this model that there is only 1 MP left (the Prime Minister) and all 541 others have deserted him, but this one MP now has power to pass his bills through the President. The cure is far worse than the disease.]
And another positive side of the given suggestion (apart from ensuring stability of governance and the avoidance of horse-trading) is that the ruling party not being in absolute majority shall have to be accommodative of the opposition point of view and in turn, since the opposition cannot bring down the Government in any eventuality, it too would reconcile to go half way to shake hand with the ruling party. There, thus, would prevail in Parliament/Assembly a spirit of reconciliation and help in getting through the Parliament/Assembly, as the case may be, of any such Legislative measures and policy decisions that are of public and national importance.
[Sanjeev: Let me just note that this is a very Hobbesian view of state power, and while there may be some such value in extreme cases, e.g. Emergency, I am unable to support introduction of a regular provision of this sort. Let's exhaust all other milder solutions first.]
(9) Such a party or coalition shall elect its leader by casting vote in a meeting of members of Lok Sabha presided over by the Vice-President of India. Each member would suggest a name other than his own. The member gaining the highest number of votes shall be invited by the President of India to form the Government and be the Prime Minister of India, who shall continue to be so for full term of five years unless unable to act due to any incapacity or when impeached or convicted. The members figuring at Nos. 2, 3, 4 and 5 shall figure in the cabinet with that seniority and each shall be given any one of the important portfolio as per their competency. Such Cabinet Ministers shall be removable only by impeachment or when they are rendered incapable of effective functioning due to any legal or physical incapacity. Identical procedure shall be followed in regard to the States except in place of Vice-President it is the Governor who would hold the voting and give oath to C.M. and his Ministers. This entire procedure would be enacted in full glare of television cameras.
[Sanjeev: Happy for Election Commission to be allowed to assist a party in such matters of election, IF REQUESTED by the party, but no blank cheque given to Ministers. The Cabinet is responsible jointly to the Parliament. Let the Prime Minister continue to decide the constitution of the Cabinet in consultation with his party. Anything that reduces flexibility of the system is harmful.]
The Prime Minister/Chief Minister as the case may be can fill up rest of the ministerial posts even from a source other than the Parliament or the Assembly—such appointees being only of known competency and experience in running of the affairs of the State. [Sanjeev: I can understand this, in extreme cases, but it should not be made a regular feature.]
Member of Parliament/Member Legislative Assembly, other than those referred to above, when appointed minister shall loose their respective seats in the Parliament and the Assembly as the case may be and on removal from the ministerial post, shall not be entitled to regain their seats in the Parliament/State Assembly as the case may be. This is to obviate, to some extent, the mad and unseemly race to become a Minister. [Sanjeev: The solution to the problem seems to be worse than the problem.]
8: THERE IS TO BE A LOKPAL AND A LOKAYUKT
In order to check the waywardness of the government and its functionaries, the suggestion is that there shall be a Lokpal at the Centre and Lokayukt at the State level with adequate power to investigate and bring to punishment such functionaries including the Prime Minister and the Chief Minister who are found guilty of corruption, grave misconduct and abuse of power or any illegal act or accused of an act of compromising the economy or the security of the country.
The Parliament at the instance of Lokpal shall impeach by 2/3rd majority a Prime Minister and any of its ministers on the ground already enumerated. The same shall be done by the State Assembly. Vacancy of a Prime Minister or a Chief Minister to be filled up in accordance with the procedure already indicated.
In the event of failure of the Parliament to impeach, or otherwise, the Lokpal in the case of the Prime Minister and his ministers and Lokayukt in the case of Chief Minister and his minister shall be competent to file complaint, complete in all respect, in the Supreme Court and the High Court as the case may be against the Prime Minister and his ministers and the Chief Minister and his ministers for offences and misconduct already indicated. The first five senior-most judges of the Supreme Court and a Bench of 3 or 2 senior-most judges of the High Court as the case may be shall try the complaint regarding the Prime Minister or the Chief Minister as the case may be. In the case of Central Ministers, the numbers of such senior judges would be three only. The concerned Court shall hold trial from day-to-day and pronounce judgment within three months.
On being found guilty by the given Court or on impeachment the concerned person shall stand removed from the Parliament or the State Assembly. Additionally on the charges of the kind, such a functionary would also lose all his civic rights and would become ineligible for life to contest any election or to be nominated to any office under the State or Central Government or any public institution. Removal on the charge of corruption and receipt of bribery shall further entail confiscation of all his property, whether held by him or in fact held by any other person for him or on his behalf.
In the event of being found guilty by the Court of the aforesaid kind of offences such person shall additionally suffer prescribed punishment for the given offences.
[Sanjeev: This is a very strong remedy for a problem the key cause of which has not been outlined by Justice Tewatia. I'm not against a strong Lokpal but first we need a situation where socialist policies are abolished and corruption naturally reduced. It would be very unpleasant to have a huge cost imposed on taxpayers to remove on corrupt Prime Minister only to have another super-corrupt Prime Minister take his place. Unless basic policy reform occurs, do not expect ANY reduction in corruption in India merely from a Lokpal.]
9. TERM OF OFFICE TO BE LIMITED
No person shall hold the office of the Prime Minister or Chief Minister for more than two full term of five years—ignoring the additional short period that he may come to enjoy due to well known contingency such as on death, resignation, incapacity, removal etc., of the incumbent—so also no person shall be a minister for more than two terms of five years each.
No person shall be a Member Parliament or MLA for more than four terms in all so that politics does not become a profession or the life support system. This would also ensure infusion of fresh blood in politico-electoral process. [Sanjeev: I'm in principle supportive of this idea]
10. ELECTORAL OFFENCES
Any person who actually committed an electoral offence and party functionary who authorized or ordered or connived at the commission of such an electoral offence shall receive the punishment prescribed by the law. If as a result of any electoral malpractice a seat is vacated then that seat shall be allotted to the party, which secured next position in that constituency. Similar would be the position in the event of seat declared vacant on account of disqualification of any elected member.
[Sanjeev: I don't agree that we need a list based FPTP system – already discussed above.]
11. NUMERICAL MINISTERIAL STRENGTH
Ministerial strength at the Centre shall not exceed thirty-one including the Prime Minister. In the case of State the strength shall not exceed 10 per cent of the assembly or 15 whichever is less.
[Sanjeev: I'm in principle supportive of this idea, although I think that 31 is too high. Not more than 10 Ministers is what I'd recommend. Having said that, this should be ultimately a matter for the relevant political party.]
12. MP & MLA TO BE ONLY A LEGISLATOR
No MP or MLA other than already referred to earlier shall hold any post even in an honorary capacity in any company public or private or any Government organization or public undertaking. No discretionary funds to be placed at the disposal of an MP or MLA as is being done now. He shall al§o be not entitled to any pension.
[Sanjeev: I agree in principle to these suggestions, subject to other associated reforms in salaries of MPs/MLAs]
13. WORKING OUT OF THE ELECTORAL PROCESS OF LIST SYSTEM
To work out the process of election by list systems and avoid rigging following suggestions are necessary:
Not more than one candidate of the same party shall be a candidate from the given ‘contested constituency’. If more than one candidate figures in the draw of lot then the given constituency shall be allotted to the one who first got the constituency in the draw of lots. The Election Commission by draw of lots would adjust contesting candidates from the opposition parties to the above contested constituencies’. No local person of the given State shall figure as a candidate from any of the ‘contested constituency’ of that State.
[Sanjeev: this removes one of my objections noted above, but I'm still not convinced that the overall benefits of list system outweigh the loss of quality representation at the local level. Having said that, there is nothing to prevent any political party from implementing such a system on its own.]
If in a given constituency name of only one political party/candidate figures and no candidate of the ‘contesting category’ from the opposition parties is available then the other Opposition Parties shall be entitled to field any of their candidate from their list in such constituencies.
Army personnel will be on election duty and shall be in charge of the law and order at the polling booths in all the ‘contested’ constituencies up to the time of declaration of result. The ballot boxes too would remain in their custody up to the time of the declaration of result under the watchful eye of the representatives of the contesting political parties and the television camera.
[Sanjeev: I vigorously oppose the idea of involving the Army in the electoral process. Let the Election Commission decide how it wants to ensure security]
The total number of seats of a political party would be equal to the seats won both from the ‘contested’ and ‘Listed’ Constituencies.
PROCEDURE TO SELECT THE CANDIDATES
For example, a political party wins, say, from five listed constituencies, then five names drawn, one at a time, by lot from the first half of the list of the given political party shall be declared elected.
Drawing of lot from the second half of the list shall be resorted to only when the 1st half of the list is exhausted.
While selecting the winners from the separate list of the lady candidates by similar draw of lot, roster criteria for placement already indicated shall have to be complied with and kept in view Numbers 1, 4, 7 and so forth available seats shall be given to the so selected lady candidate/candidates.
Since the election to Parliament and State Assembly/Assemblies would be simultaneous, the contested constituencies for Assembly seats, in the first instance would be those that are comprised in the ‘contested Parliamentary constituency’. If contested Assembly constituencies so located fall short of seats required for contesting category of candidates then, the lot shall be drawn in regard to other constituencies for contesting candidates for State Assembly.
Head of all the contesting political parties or their duly authorized representatives shall submit to the Election Commission the list of their candidates for both ‘listed category’ and of ‘contesting category’ on the prescribed date with as many copies as are the contesting parties. The Election Commission shall supply each such list to each contesting political party.
One of the members of the apex body of the given political party shall also individually verify the nomination papers. The candidate supplying false information in regard to the facts of his eligibility as also in regard to the fact which disentitles a candidate to figure in the first half of the list, shall not only loose his seat but also become ineligible for life for any elective office and for an office of profit under the Government or any public undertaking. (Same would apply to a member of apex body, who at the time of verifying the nomination papers of such a candidate knew about the criminal background or the facts which disentitled the candidate to figure in the first half of the list).
[Sanjeev: This is a matter of detail; I'm not persuaded that such a radical change is necessary in India.]
No political party shall nominate as its candidate any person who has not been member of that political party for a period of less than one year or the person whose name had figured in Basta “B” of the police or who had been charge-sheeted by the court or convicted of an offence involving moral turpitude or who had been declared an absconder, or bankrupt or who has been facing eviction proceeding from Government or public property or the one who owes money to the Government, local body, public undertaking and banks until by the prescribed date he leaves the encroached property and pays up the dues, of course, subject to his right as determined by the Courts.
Same disqualifications would apply to the party high command and high office-bearers of the political parties so that they do not even by mistake give ticket to a person with a disqualification for any elective office.
[Sanjeev: The Constitution already bars some categories. Beyond that, it is up to individual political parties to formulate their standards.]
Minimum educational qualification of a candidate for any high elective office inclusive of Assembly and Parliament shall not be less than graduation or equivalent thereof.
[Sanjeev: This gives exaggerated importance to graduation. I am unable to agree that only graduates should be able to represent India. Anna Hazare is not a graduate, but I'm sure he is qualified to represent his constituency.]
The Election Commission after consulting the views of the political parties shall draw a rational criteria which the political parties shall abide by while selecting its candidates. Such a criteria would have regards to (i) the length of the period of the membership of the party, (ii) educational qualification, (iii) important offices held in the party, (iv) special knowledge of any subject or a person specially suited to be a Legislator or who is possessed of known ability to administer the affairs of the State.
[Sanjeev: I disagree that the EC should have any role in deciding such matters. Let the minimu standards be established in hte Constitution and let parties then decide their own candidates.]
The election by list system in my view has the following advantages.—
a. Caste community, linguistic and regional factors as also money and muscle power factors would play much lesser or no role in the election process qua the candidates. [Sanjeev: Agreed. This is surely an attractive feature of the system.]
b. The party ideology and the reputation of the candidates figuring in the list of a given political party would be the decisive factor in the minds of the voters for voting for a party.
c. No person would go out of the way either to finance or render any other help in the election of any political party for reasons other than the commitment to the ideology of the given political party.
d. Due to uncertainty factor introduced in the allotment of seats won by a political party amongst the listed candidates by draw of lots, no individual politician would nurture his personal criminal gang not knowing as to whether his name would figure in the list of winning candidates or not, nor would any such candidate indulge in rigging of booths or incur expenditure of the kind as is the case today.
e. The money bags open their purse strings to the important party leaders, knowing that if the party wins, he or she would be the Prime Minister, Chief Minister and ministers. But in the suggested list system and the mode of election even sitting Prime Minister, his Cabinet Minister or the member of high command would not be sure of being elected: for two reasons (i) they may land up in a State or a constituency in which they and their party is most unpopular, (ii) even if the party leadership had nurtured criminal gang to rig the election such an effort would be frustrated as the constituency of contesting candidates ‘would be manned and supervised in strength by army personnel.’
[Sanjeev: While this is a desirable thing, the solution has too many other negatives, to be used as the mechanism to overcome this problem]
f. The party bosses not being sure of their own election would be least interested in rigging the election for the sake of others and therefore no political party as such would be rearing brigades of gundas and criminals.
g. In the suggested list system the ladies would bag at least 1 /3rd of the seats.
h. There would be no necessity of juggling of the constituencies, as no constituency would be a reserved constituency.
i. Ladies would be saved the harassment of the rough and tough of fighting the personal election.
j. Intellectuals, deserving social workers and such other desirable person who could be an asset to the political party and for the governance shall not shirk from joining political parties and be its candidates as they too would be spared the rough and tough of fighting a personal political battle for the seat. Both ladies and such categories of persons shall join the election fray as political workers and in due course, I believe the mode of electioneering would change. No longer any body would for their personal motives be touching the feet of the voters or be begging for votes from home to home as is done now.
k. Since the leaders (including sitting Primer Ministers) shall have to fight election from any where in the State or the country as the case may be, then while in power, the ruling party shall devote equal attention to every nook and corner of the country.
l. The emergence of strong State-level parties has made it almost impossible for the national parties to gain absolute or near absolute majority in the Parliament leading to political instability at the Center and rendering Indian State a soft State. This would be obviated.
[Sanjeev: Yes, there are definitely these merits of the proposed system.]
CRITICISM OF THE PROPOSED SYSTEM
One of the criticism against ‘list system’ is as to who in my view would nurse the constituency and secondly would it be democratic?
The party through its party workers would look after the interest and welfare of the constituents. The list system in due course would make all National and State parties a strong cadre based parties. Voters are supposed to repose faith in the political party and it is on this assumption that even now a member who defects from a political party, loses his seat under the anti-defection law. The listed candidates AS PER THEIR CHOICE CAN BE ALLOTED CONSTITUENCIES/ AREAS TO LOOK AFTER POST-ELECTION.
[Sanjeev: As noted earlier, this expects people to physically move their homes upon being elected. Someone may need to move family from Kerala to Mizoram, and vice versa. This is going to be quite a big issue; also the MP will be unable to talk to the bulk of his constituents who don't speak his language.]
Yet another, and more trenchant criticism would be of the procedure to identify the winning candidate by the Election Commission of India by draw of lots. It would be condemned on the ground of introducing lottery system in election.
The answer is simple. Elections, even today are a lottery, that too a tortuous, traumatic, costly and dangerous gamble. The voter would now be expected to vote on the basis of the political ideology of the party and the goodness, competency, qualification and the reputation of its LISTED candidates.
If no rotten name is included in the lists of the political parties then no rotten name would be picked up in the draw of lots as the winning candidate. Since intense and due publicity would be given to the list of the candidates and if a political party in its list have reputed Criminals, Dacoits, Gundas, Smugglers, Black Marketers, Cheats and Swindlers then voters shall hesitate to vote for such party/parties, because of fear that in the draw of lot, the likelihood of scum from the list of such political parties may come to be elected.
The list system does not involve personal defeat or victory. In the prevailing system of election, a candidate stakes his all with no holds barred. Candidates go to the extent of getting their opponents physically eliminated. They and their families, at times even their sub-castes become enemy for life. In the list system defeat involves no personal trauma, as there is no personal defeat and there is no opponent who has defeated him.
The election by list system would inject political sanity and would decrease election-related enmity and feuds.
The elected candidate would not be individually beholden to any individual or group of voters and thus shall be able to maintain his objectivity in public dealings.
Elected candidates too cannot pressurize their party, as they do now, to help them recover their electoral expenditure running into crores or make him a minister, because this time he had won his seat because of the party’s ideology and money.
A cynic may also say, that politics would loose kick and prospects of gain and would become a bit stale and less exciting. This in fact is the very purpose of the given electoral-reform exercise. Because the kick and gain in politics, by and large, has come to attract the criminal, power and money hungry maniacs, and not those who genuinely and truly would wish to serve the society and the nation.
[Sanjeev: Overall, I commend Justice Tewatia for proposing a very innovative system. However, I believe that many, much simpler solutions can resolve most observed problems. Let's try to get these simpler ones implemented, and if they too fail, then this really radical solution can be considered.]
However, nothing would avail unless population growth, which has assumed dangerous proportion, is urgently checked. In this regard I suggest:
Beyond the prescribed date, birth of the third child, not being as a result of delivery of twins, is to be treated as a criminal offence and should attract compulsory sterilization. That family to lose its right to vote, right to contest any election, the right to be nominated to any civic office and right to employment in any Government organization, institution, corporation or public undertaking. Employee parents in such organization shall forthwith lose his or her job.
Non-Registration of birth within 3 months with the panchayat in the village and municipality in the case of town shall be a punishable and cognizable offence. This would also cover, encroachers, slum dwellers and beggars equally. There should be compulsory sterilization of those who cannot support and sustain themselves without begging.
[Sanjeev: This is an extremely incorrect view. Justice Tewatia has not considered the causes, and is proposing a draconian solution. I'm TOTALLY unable to agree to his remedy to the 'population problem' which is essentially a socialist policy problem.]
There is to be compulsory voting in election. Any voter who without a valid reason fails to exercise his voting right shall loose his voting right and to stand for election to any elective office in the next election. If a voter fails to exercise his voting right second time then he would loose for life his right to vote and stand for any elective office.
[Sanjeev: While an interesting idea to explore further, I don't think this addresses any key problem.]
The suggestion for reform of some aspects of the politico-electoral process that I am making in this article, I must admit, would be considered too radical as already acknowledged. However as someone said, every idea is a dream before it becomes a reality. Darkness is dark before it is dawn. Someone may say that the time is not ripe for the ideas mooted here. The time is never ripe until one decides to act. At least then the ideas are there when the time is ripe.
We must decide whether we will continue to walk as doing now, the slippery path blind-folded even though it may lead to darkness and death of the polity, or decide to be ahead of time.
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