Right To Recall Elected Representatives in India: A Utopia
Authored by Advocate Aswathy Jayaraj, Kerala
"Recall" in American Jurisprudence is described as a process where a duly elected official can be removed from office either during their term or after a set period through a vote conducted in a special election initiated by a specific number of citizens. The fundamental concept behind the recall is seen as a swift and efficient method for the public to oust an official who fails to meet their expectations and whom the voters no longer wish to hold office. This holds true regardless of whether the official is fulfilling their responsibilities to the best of their abilities and in accordance with their personal convictions.
The Constitution of India does not have a mechanism by which an elected member may be ‘removed’ from his office. Articles 102, 173, 243V etc., of the Constitution specify the grounds on which an elected representative/person is disqualified from being/ being chosen as a Member of Parliament, member of the state legislature, member of a municipality, etc. Though the Constitution talks specifically about the idea of “disqualification” of the elected representatives, it chose to remain silent on the ‘removal’ of the elected representatives. This silence may be used by the contemnors of the Right to Recall, saying that the Constitution did not envisage a scheme of ‘recall’. The Constitution specifically provides for the ‘removal’ of a Speaker, Deputy Speaker of Lok Sabha, Deputy Chairman of Rajya Sabha, Speaker and Deputy Speaker of the State Assembly and Chairman and Deputy Chairman of the Legislative Council separately and specifically, while such provisions are not specifically there for the elected representatives. This may be seen as a deliberate way of preventing any other ways in which the elected representatives may be taken off their seats.
The scheme under the Parliamentary System of Governance in India is such that the government is collectively responsible to the Lok Sabha. There is no specific mention of no confidence motion in the Indian Constitution, though Article 75 of the Constitution says that the Council of Ministers shall be collectively responsible to the Lok Sabha. When this confidence is withdrawn, the government falls. As many as 27 no-confidence motions have been raised against the then existing governments in India until now. Most of them failed, but some did manage to wreck the idea of ‘stability’. The coming of coalition politics has already made the government extremely unstable. Essentially, a coalition government that stands on the support of multiple regional or minor parties is under constant threat of the support being withdrawn by the elected representatives of these parties. Recalling one or a few elected members all at once who offer their support to the government time is not fatal to the stability or life of the government. However, if a substantial number of candidates who extend their support to the government are recalled, the government would be brought down with its interplay with the ‘no-confidence’ motion. The Right to Recall may tend to deepen further the sense of instability that already exists in India by culling out an extra mechanism for pulling out the elected representatives who offer their support to the ruling party, thereby weakening the majority of the government in the House. Similarly, the right to recall may also weaken the opposition in the House if the elected representatives who support the opposition are recalled.
First Past the Post System in India
The ‘First Past the Post System’ coupled with the ‘Right to Recall’ given to the constituency can make the entire electoral system of the country extremely vulnerable. The voting system where the candidate who secures the most number of votes is declared elected and represents the constituency that elected him is called the First Past the Post System. This system is often criticised as not representing the constituency’s actual will; a candidate who is able to consolidate a sizeably small share of votes gets elected, though a significant majority of the constituency that not voted for him. There is usually no minimum threshold of votes that a candidate must secure in order to be declared elected.
A sizeable population of the constituency who have not voted for the current elected representative may petition to recall him. Therefore, the cumbersome process of conducting elections will not yield a “final” result. This vulnerability in a situation can be misused by the candidates who lost the election or by others to have a constant state of campaigning in the constituency. If this situation persists on a large scale among the parliamentary or assembly constituencies, the entire country would be distraught in constant factionalism, political turmoil, and instability.
The Cumbersome Process and The Legal Complications That Would Follow
Multiple states in India, like Jharkhand, Himachal Pradesh, Bihar, Uttarakhand etc. have provisions in their state-level legislation to recall elected representatives at the local level. However, these states do not follow a uniform procedure in the process of recalling the elected representatives. In brief, the procedure can be summarised as follows:
Stage I: Efforts to initiate a recall petition.
A specific group of individuals initiates the recall procedure by expressing their desire to remove a specific elected representative from office.
The recall petition is then presented to the relevant authorities, who assess whether it meets the legal requirements, including the prescribed number of signatures to be gathered and the time limit for gathering these signatures.
Stage II: The Recall Vote
A meeting is held prior to the casting of votes in the recall vote, which discusses the motion. The representative against whom a recall is proposed is heard.
Conducting a recall election: if the electorate votes in majority for the removal of the candidate, his seat falls vacant. Hence, he is recalled by the electorate.
As ‘recall’ meddles seriously with the status and dignity of an elected representative, it is of great importance that the principles of natural justice are complied with. Certain legislation specifically provides for the legal remedies that the aggrieved person can avail of.
Few state-level legislations also provide safeguards for these elected representatives.
Another significant obstacle to the practical implementation of recall elections in India is the country's vast population. As previously mentioned, initiating a recall petition requires obtaining a specific number of signatures from eligible voters. In a densely populated nation like India, the threshold for the number of signatures needed to start a recall petition would be quite high, given the substantial number of voters in each constituency. Once these signatures are collected, the next daunting challenge is verifying their authenticity, a task typically entrusted to an independent body. However, this verification process brings another issue into play: determining whether each signature was affixed voluntarily, under duress, or through some other form of misconduct. It becomes highly impractical for a body like the Election Commission to address such factual questions on a large scale, particularly during election periods.
Dent on the Purse
The primary counterargument against introducing the right to recall into our electoral system revolves around its potential financial impact. Currently, the cost of conducting Lok Sabha elections is covered by the Union Government, while state governments bear the expenses for state legislative assembly elections. In cases where the issues at hand concern both the central and state governments, the expenditure is shared equally between them. With respect to Lok Sabha elections, the cost incurred for law and order maintenance is borne by the respective state governments. The report published by the Centre for Media Studies said that the election expenditure incurred in the Lok Sabha Elections of 2019 was about Rs 55,000-60,000 crores.
Incorporating a recall provision into India's electoral system necessitates a substantial investment in voter education. This includes educating voters about the concept of recall, its procedures, and how it can effectively promote accountability. Organizing awareness programs on a national or state level, particularly in a country as vast as India with a massive number of voters, is both costly and time-consuming. As mentioned earlier, since the right to recall significantly impacts the rights of elected representatives, it also involves the principles of natural justice. Verifying signatures and ensuring that they were provided voluntarily add to the expenses associated with recall elections. Serious violations of these principles of natural justice could potentially invalidate the entire recall process, rendering it a wasteful expenditure of resources. Additionally, logistical costs are a significant concern. This includes expenses related to printing new ballot papers, establishing new polling stations, and maintaining, transporting, and securing Electronic Voting Machines (EVMs), all of which are notably expensive endeavours.
While the concept of the "Right to Recall" aligns with the principles upon which the Indian electoral system is built, the practical implementation of this idea on a national and state level remains a challenging proposition. The real-world obstacles that hinder the integration of this concept into the national and state electoral frameworks are not trivial and cannot be easily dismissed. Elected representatives in national and state legislatures bear a broader set of responsibilities that extend beyond merely representing their constituents. As lawmakers at the state and national levels, their role involves addressing the larger interests of the entire nation rather than being confined to the concerns of their individual constituencies. In such a scenario, there is a need for elected representatives at the state and national levels to have a more autonomous position, considering the complexity and scale of the issues they deal with.