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Report No. 255

(iii) 170th Report of the Law Commission

4.18.1. This issue was next discussed at length in the Law Commission's 170th Report on the Reform of Electoral Laws (May 1999). It considered the list system of proportional representation, as prevalent in Germany, as a possible alternative to the FPTP system. The conclusion that it reached was that while the FPTP system could not be abandoned outright, it could be combined with a proportional representation system.

4.18.2. Specifically, the 170th Report recommended that while the existing 543 seats of the Lok Sabha continue to be filled through direct elections, the number of seats in the Lok Sabha be increased by an additional 25%, or 136 seats, which are filled by proportional representation following the list system. A similar expansion should take place in the State Assemblies as well. This was essentially a modification of the Shakhder proposal.

4.18.3. However, if no minimum thresholds are prescribed to filter the parties that can nominate members to the list (under the list system), numerous small parties and fringe groups would eventually gain entry into the Parliament.

To address concerns regarding the proliferation of political parties, the 170th Report additionally recommended that a new provision should be made in the RPA to the effect that any political party which obtains less than 5% of the total valid votes cast in the country (in the case of Parliament) and in the concerned State (in the case of a Legislative Assembly) shall not be allowed any representation in the Lok Sabha or in the concerned Legislative Assembly, as the case may be, either through the direct election or the proportional representation system. This means that even if a candidate wins a seat from that political party, that candidate will not be entitled to that seat.

Thresholds such as these are commonly prescribed in countries following the hybrid FPTP and proportional representation system, such as Germany. However, the 170th Report does not detail the consequences of this rul.- whether it would necessitate re-election or whether such seats would be automatically redistributed to parties with more than 5% vote share.

4.18.4. Further, while the provision seems well intentioned, the imposition of a quota can have the effect of creating more problems than it would solve. If a 5% quota is prescribed, only a few parties would fulfil the criteria, undoing the purpose of introducing the proportional representation system. Imposition of such a quota would result in the list system falling in favour of the larger national parties.

The voting patterns in India have been such that the larger national parties receive a substantial proportion of the votes (especially during the Lok Sabha elections). Hence, it would be relatively easier for them to cross the 5% mark while the same may not be true for the smaller/regional political parties.

4.18.5. This is evident from an analysis of the results of the 2009 Lok Sabha elections. Only the four major national parties, viz., the Indian National Congress (INC), the Bharatiya Janata Party (BJP), the Bahujan Samaj Party (BSP) and the Communist Party of India (Marxist) (CPM), would have crossed the quota of 5%.

This became even more pronounced in the 2014 Lok Sabha elections, where only the BJP and the INC crossed the 5% mark, at 31% and 19.3% respectively, with the third being the BSP at 4.1%.176 Hence, it is not sufficient to argue that the list system would ensure representation from regional parties by ensuring their presence in Parliament till the specifics of the list system are clarified.

176. Election Commission of India, Statistical Reportage 2014,
<http://eci.nic.in/eci_main1/statistical_reportge2014.aspx>

4.18.6. To tackle this, state-wise quotas can be imposed but that would complicate the system to a large extent. This raises questions of the viability of introducing an inherently complicated system in place of the FPTP system which, despite its many criticisms, is currently a fairly stable process. Hence, simply a list system envisaging the imposition of arbitrary quotas cannot be adopted for the entire strength of the Parliament/Assembly. This needs to be done in parallel to the existing FPTP system.



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