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Report No. 255

B. Analysing the Arguments For and Against the RTR

12.4. The arguments supporting the RTR primarily emphasise the importance of direct democracy in holding elected representatives to account by requiring them to seek post-election approval of their electorates. By providing a tool to dissatisfied citizens to rectify their mistake through "deelection" of their representatives, RTR serves to deter their underperformance, mis-management, corruption, or apathy.

Supporters also point out that currently, electoral sanction in the forthcoming elections (often five years away) is the only means of registering dissatisfaction, and given the absence of any continuing monitoring or accountability mechanism, RTR is an important step forward. Simply put, the damage to democratic institutions should be curtailed through democratic mechanisms and the RTR provides a "democratic disincentive" for poor performance and abuse of office.521

521. Vinod Bhanu, Right to Recall Legislators: The Chhattisgarh Experiment, 43(4) Economic and Political Weekly 15, 16 (2008)

12.5. Another strand of the argument in favour of RTR is the consequent improvement in public trust in governance, insofar as many politicians will deliver good performances and reduce instances of corruption under threat of recall. Introducing the RTR may also deter candidates from spending excess amounts during their campaign, for a fear of being recalled. An incidental benefit is that it will result in voters continually monitoring and assessing political performance in a bid to determine whether they want to exercise their RTR.522

522. Ibid., at 504

12.6. Against these arguments, opponents of RTR refer to various principled and practical objections. First, RTR can lead to an "excess of democracy",523 wherein the threat of recall undermines the independence of the elected representative.- they will either pander to the majoritarian preferences and prejudices at the expense of safeguarding minority interests in passing populist measures. Alternatively, they will resort to a "clientelist distribution of patronage", whereby the elected representatives will use fear or favour to ensure that they are not recalled.524

In both cases, short-term gains and instant results will be preferred over long-term, unpopular although beneficial policies. The legislative wisdom in enshrining a five-year Lok Sabha or Vidhan Sabha term was premised on the need for time to draft and implement good policies and to ensure stability.

RTR threatens to challenge that inasmuch as it incentivises representatives to focus on local, constituency issues instead of larger public interest issues.525 As former Attorney General of India, Mr. Soli Sorabjee points out, recall "subjects the elected member to the supervision and control of his constituency. That would impair the free and independent discharge of his function."526

523. Sonika Bajpayee, Right to Recall Elected Representatives, 6(1) INDIAN L.J. (2013)

524. Suhas Palshikar, Why the Right to Recall is Flawed, INDIAN EXPRESS, 14th September 2011,
<http://archive.indianexpress.com/news/why-the-right-to-recall-is-flawed/846143/>

525. Ibid.

526. Soli Sorabjee, It's a Tightrope Walk, HINDUSTAN TIMES, 21st September 2011,
<http://www.hindustantimes.com/columnsothers/it-s-a-tightrope-walk/article1-740561.aspx>

12.7 Relatedly, as former CEC, S.Y. Qureshi notes the RTR can lead to greater instability and chaos, with various attempts being made by vested interests (either other political parties or opponents within the same party) to trigger the RTR on the smallest of issues and as soon as will be permissible.527 Given this considerable uncertainty and tool for (mis)use by losing candidates, legislators will shift their focus from policy formulation to saving their constituency seat at all costs.

527. Qureshi, supra note 1

12.8. Further, as Mr. Sorabjee observes, recall is fraught with serious consequences for the representative being recalle.- for instance, will (and should) the MP/MLA be given an opportunity to be heard, in consonance with the principles of natural justice, and to respond to the allegations in the recall petition. Or which body should be empowered to determine whether the alleged grounds in the petition, assuming that the RTR law provides for the specification of such grounds, are justified or no.- the civil courts, the ECI or any other authority?528

528.Sorabjee, supra note 526

12.9. More importantly, debates on the RTR ignore the larger issues of political reform such as decriminalisation, curtailing money in politics, internal democracy, and increased public awareness necessary to improve the quality of representation. Progress in these areas may eventually make the demand for RTR redundant.

12.10. The biggest practical challenge in implementing RTR has been articulated by the Mr. S.Y. Qureshi who points out that populated state and parliamentary constituencies in India (unlike in Switzerland or even the US) will result in a large number of signatures required to initiate a recall petition, going into lakhs.

Not only will the ECI have to verify the authenticity of every single signature to prevent fraud, it will also have to determine whether the signatures are genuine and consensual or obtained via fraud or coercion.529 Thus, introducing the RTR might have unintended effects in increasing corruption and the use of money and influence if representatives liable to be recalled try and ensure that a recall petition is not initiated against them.

529. Qureshi, supra note 1

12.11. Moreover, there is still the question of implementation and the expenditure of time and monetary resources cost in conducting regular byeelections, supplemented by the fear of election fatigue.530

530. Qureshi, supra note 1; Sorabjee, supra note 526

12.12. On the possibility of misuse, there is a fear that the RTR will be used by dominant caste members to harass lower caste elected representatives. Thus, Vinod Bhanu points to the Chhattisgarh experience where one of the recalled presidents was an independent candidate, who claimed that the BJP and the Congress councillors allied together to initiate the recall process. Bhanu notes that this has to be seen in the larger context of allegations of political bias and misusing the provisions for recall. 531

Hindustan Times, after surveying the experience in several states, reported some case studies on the functioning of the RTR. Pertinently, it gave the example of Dewangarh, a hamlet in Patiala in Punjab, which was reserved as a Scheduled Caste constituency in 2008. A brick kiln worker, Jaswinder Singh, was elected as the sarpanch, although the majority of the village's residents, who were members of the affluent Jat-Sikh community, did not welcome this.

onsequently, during the first half of his five-year term, his other four colleague.- the panch.- did not attend a single panchayat meeting, and thereafter, exercised the RTR to remove Singh (Section 19 of the Punjab Panchayat Act, 1994 permits the panchs to remove a sarpanch after the completion of half the term, by moving a no-confidence motion against him). This was viewed by many as a tool for the influential against the weak and the poor.532

531. Bhanu, supra note 521, at 16

532. Right to Recall?, HINDUSTAN TIMES, 3rd September 2011,
<http://www.hindustantimes.com/newdelhi/right-to-recall/article1-741300.aspx>

12.13. The RTR, as it is usually applied, is especially dangerous and liable to misuse in India that follows the first past the post system, where most winning candidates do not have the support and trust of 50% of their electorate in the first place. The RTR, which (mostly) requires the support of 50% of the electorate to remove the representative, can thus theoretically be used to recall most elected representatives in India. This is because any recall referendum or vote only consists of two options: 'yes' and 'no', or as in Chhattisgarh an occupied and a vacant seat.



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