ELECTORAL SYSTEM: ISSUES AND CHALLENGES

Kantipudi. Yajna Sree

Christ Academy Institute of Law, Karnataka State Law University, Bengaluru, India

ABSTRACT

The Indian Constitution is the fundamental law of the land, which governs the people of India. The Indian Constitution provides various fundamental rights for the welfare of the citizens. It protects the rights of the individuals, maintains peace and ensures security. However, there are duties also to be performed by the citizens of the country. The laws in the constitution are applicable to all the citizens of the country, irrespective of sex, caste, class, etc. However, the power of the legislators to amend the laws in the Constitution is vested in the people of India, by whom the legislators are elected.  We, the people of India, choose the representatives by whom we should be governed.  The process by which representatives get elected is the electoral system. The Electoral system gives us an opportunity to elect representatives irrespective of our caste, sex, class, etc., except for the age constraint, where citizens should attain the age of 18 to enjoy the right to vote.  This paper discusses the electoral system in relation to the constitutional law and why the electoral system is established in India. The main question that is going to be dealt with is whether the constitutional bodies are acting according to the established principles. And in India, as it is very prevalent that 30% people are electing a representative, whereas the other 70% reject him, according to the Constitution, 50% citizens should approve to elect a representative. The question here is, by way of such electoral bodies, whether we are complying with the principles of the Indian Constitution.

Keywords: Indian Constitution, Election, Electoral system, Representatives, Citizens.

INTRODUCTION

The electoral system in India is a cornerstone of its democratic framework, ensuring free and fair representation of the people. After India attained independence in August 1947, there was a need to hold general elections to elect a representative government. The constituent assembly laid down the foundation for the electoral process in India by adopting the principle of Universal Adult Franchise. With the help of Article 324, the independent constitutional authority, i.e., the Election Commission of India, was established and was brought into force from 25^th January, 1950.¹ The first general elections were conducted in 1951-1952, and people above the age of 21 were allowed to vote, and later the voting age was reduced to 18² for 489 seats in the Lok Sabha.³ In 1961, electoral rolls were introduced, and in 1998, Electronic Voting Machines were used nationwide. In due time, as it was observed that there was more switching parties in the 1985 anti-defection law⁴ was introduced to prevent elected members from switching parties to ensure stability in the legislature. In 2013, the NOTA option was also included to allow voters to reject all candidates. India has the distinction of having the largest democracy in the world.⁵ Elections are the most vital and integral part of politics in a democratic system of governance, and also a necessity and a core of democracy in each country. While politics is the art and practice of dealing with political power, an election is a process of legitimising such power.⁶

RELEVANCE OF STUDY:

The study of constitutional law and electoral systems is very important in the context of democratic governance. Free and fair elections are important for the legitimacy of any democratic government. A deeper understanding of the constitutional safeguards can help in preventing such issues. By conducting elections, citizens’ trust in the democratic process is tested when elections are conducted transparently in accordance with the constitutional principles. The electoral system must operate within the bounds of constitutional provisions to ensure that it reflects the rule of law. Analysing the constitutionality of the electoral system helps in safeguarding democratic values against violations. Insights from this study will help the readers to understand the accountability, transparency and fairness in the electoral system.

HYPOTHESIS

The electoral system aligns with the constitutional principles in theory, but in practice, it deviates due to issues such as non-interference of the public and a lack of proper implementation.

OBJECTIVES

1. To examine the structure and the constitutional principles relating to the electoral system.

2. To know the reason why India implemented a majoritarian system, while a majority of established democracies use a proportional system.

3. To identify the challenges in the practical implementation of constitutional principles in the electoral system.

ANALYSIS

STRUCTURE OF THE ELECTORAL SYSTEM IN INDIA

The structure of the elections is based on the provisions of the Constitution of India, 1950, the Representation of the People Act, 1951, the Indian Penal Code, 1860, and the Delimitation Act, 1972. With the help of Article 328⁷ of the Constitution, state governments can also make laws without deviating from the provisions of the Central Laws.

THE BHARATIYA NYAYA SANHITA, 2023⁸

Some actions in relation to the elections are said to be as offences under the Bharatiya Nyaya Sanhita 2023; they are:

• Section 169 – Defines candidate and electoral right
• Section 170 – Bribery
• Section 171 – Undue influence at elections
• Section 172 –  Personation at an election
• Section 173 – Punishment for Bribery
• Section 174 – Punishment for undue influence or personation at an election
• Section 175 – False statement in connection with an election
• Section 176 – Illegal payments in connection with an election
• Section 177 – Failure to keep election accounts

THE CONSTITUTION OF INDIA⁹

Articles 54-71, which set down the process for the election of the President of India and the Vice-President of India, are the most relevant provisions of the Constitution concerning elections.

• Article 83 deals with the duration of the House of Parliament, and Article 80 has laid down the Composition of the Council of States

• Article 84 sets down the minimum requirements for a Member of Parliament. (a) has to be a citizen of India and (b) have a minimum age of twenty-five years in case of  Lok Sabha and a minimum age of thirty years in case of Rajya Sabha. Other requirements can also be made necessary from time to time.
• Article 101 says that a person cannot be a member of both houses at the same time.
• Article 102 provides for the disqualification of Members of Parliament, i.e. (a) holding an office of profit under the jurisdiction of the Government; (b) being insolvent; (c) having been found unsound by the competent court; and (d) having willingly obtained the citizenship of another country. Many disqualifications are given by the Representation of the People Act, 1951.
• Articles 168 to 173 deal with the constitution, composition, and membership qualifications of State Legislatures and Articles 190 to 192 provide specific rules on the vacation of seats and the disqualifications of members.
• Art. 324 deals with the superintendence, direction and control of elections to be vested in an Election Commission.  It has gained significance and garnered attention at the present time. It specifies that the President may appoint the Election Commissioner and Other members to the Commission.
• Art. 326 provides that elections to the House of People and the State Legislative Assembly shall be held on the basis of universal adult franchise. The minimum age to be considered and to be an adult was changed from 21 years to 18 years in 1988.
• Article 329 (i) bars the courts from challenging the legitimacy of any law relating to the delimitation of electoral districts or the allocation of seats; and (ii) provides that the election to Parliament or the State legislature can be challenged only by means of an election petition submitted to the authority provided for by statute. The Election Commission was the authority until 1966. In 1966, the jurisdiction was transferred to the High Courts.¹⁰

THE REPRESENTATION OF THE PEOPLE ACT, 1951¹¹

This is the most critical piece of legislation that sets out the “nuts and bolts” elements of the process for elections.

• This sets out specific procedures for the conduct of elections, including nomination, polling, and counting.
• It gives detailed information about the administrative body for the conduct of elections.
• It defines the power of the government to requisition premises, cars, etc., for elections.
• This Act provides a procedure for polling and counting of votes.
• The process to count the votes or polling and the announcement of the polls;
• The prohibition of electoral offences; 
• The condition when election may be suspended, and the registration of parties is needed.
• The deposit for standing in the elections, 
•  The prohibition to impersonate and other similar offences.
• The ceiling of electoral expenses.

THE REPRESENTATION OF THE PEOPLE ACT, 1950¹²

The main provisions of the Act are-

•  The allocation of seats in the lower house is according to the provisions of this Act . The electoral district of the Lower House cannot be split between states.
•  The constituencies in the Lok Sabha are single-member constituencies.
• Since the Sixty-first Amendment Act, 1988, a person who is not below the age of 18 years on the qualifying date and ordinarily a resident of the constituency and not in any way disqualified by law is entitled to vote. The electoral rolls are required to be updated in a timely manner by the Electoral Registration Officers. It can be done either on the application by a person or suo-motu.

WHY INDIA IMPLEMENTED MAJORITARIAN 

There are a wide number of voting systems in the world, but they can be primarily divided into three:

1. The Majoritarian systems

2. The Proportional Representation System

3. The Mixed Electoral System

In India, we have been following the Majoritarian System, which is better known as the “First Past the Post System” (FPTP).  In this, the territories in the nation are divided into single-member constituencies. In this, every voter has one vote, and the person having the most number of votes, irrespective of the proportion of the vote, wins.

There are a few reasons why India implemented a majoritarian system while a majority of established democracies use a proportional system.

There are a few reasons for this-

The origins of the Indian political system were primarily derived from the American, Switzerland and British constitutions. Second, the drafters of our constitution predicted that, like the United Kingdom and the United States, we would also possibly establish a stable two-party system. But this hope didn’t materialise because of the lack of democratic values. The other two majoritarian systems are the Double Ballot system¹³ and the Preferential Voting System¹⁴. They both offer much fairer results but are not suited to Indian conditions. 

This scheme has certain advantages:

• It forms a stable government, unlike the unstable governments experienced by many countries under the Proportional Representation System.  In that case, governments lasted less than six months.
• This avoids the rapid increase in the number of political parties, as in Israel, where a few small parties play a significant role in the two main parties.

The main features of the Indian electoral system:

1. It describes the Election Commission’s functions and responsibilities.
2.  It provides the election procedures, including when candidates are nominated and when results are announced.
3. Describes the process of the election.
4. Provides information about the Universal Adult Franchise.
5. It contains the provisions related to reservation for the Scheduled Castes, the Scheduled Tribes and other Backward Classes.

MAJORITY SYSTEM

The current system of majority rule is the root of many of our issues. It only gives the result of who won the majority of votes among the candidates without considering the percentage of votes they received, because this percentage is sometimes less than 50% of the total votes cast. Even though they win the election, it leads to representing a constituency that has a minority of votes, despite having been elected to represent all of the people.

An alternative is to elect a representative who gets more than 50% voting, and if not received, there should be a run-off election if the top two candidates are not able to make it past the first stage. As a result, it brings a sense of unity among people and a decrease in the use of political devices, such as casteism and communalism. Without the backing of all segments of society, no Political party can win an election.

ELECTORAL SYSTEM OF INDIA: MAJOR ISSUES

In India, a vast amount of money is needed to win in elections. The election system in India is plagued by several severe flaws, such as money power, criminalisation of politics, Opportunistic Coalition Governments, Non-serious candidates in Political parties and paid news.

Money power: Electioneering is a very expensive affair and plays a more vital role in India. A prospective candidate in each constituency had to spend millions of dollars towards transport, publicity and the election campaign. In recent times, election expenses have increased beyond the limits due to the desire on the part of every political party to spend more than their opponents. The elections were not as costly in 1952 as they have become today. Political leaders considered unethical to work with a desire for any reward, but now the scenario has changed. The elections in the Indian polity are becoming increasingly expensive.¹⁵ In the past years, industrialists and businessmen supported political parties, but now they directly participate in elections, run for office by themselves, and sometimes buy seats in state legislatures. 

Criminalisation of Politics: The criminalisation of politics is a big problem in our politics right now. Lawmakers should not have criminal records, so the law should keep them from running for office.¹⁶ If one party wins, then the opponent tries to place the flaws made by the previous government and files cases regarding their corruption, and vice versa. Political parties tap criminals for funds and, in return, provide them with political patronage and protection.¹⁷

Opportunistic Coalition Governments: It is very prevalent in India when it comes to post-election coalitions. Despite their differences in ideology, they joined together to establish the government on the argument that to prevent re-elections. It is against the public sentiment, and post-election coalitions should be prevented by the law.¹⁸

Paid news: The Indian electoral system is now facing a serious challenge of paid news and biased media. Media plays a very important role in influencing the minds of the people, and as we see in present times, some of the channels are confined to one single party, and some political parties own the news channels. 

REMEDIAL MEASURES:

The following are some of the measures that can be taken into consideration in order to make the electoral system free and fair:

• Even after 75 years of independence, the Election Commission of India largely depends on state and central government staff. So, government officials do both the ordinary administration work and the electoral administration work.¹⁹ 
• A candidate involved in corruption should be disqualified.²⁰
• For having a true democracy, the registration and recognition of the political parties should be fair and without any kind of influence.²¹
• Mass Media should play a non-partisan role in elections and as a safeguard of democracy.²²
• Periodic elections are the foundation of a democratic system. For a fair electoral system, every aspiring candidate must have reasonable freedom to offer himself as a candidate for election and to conduct his election campaign in his own way, so long as he keeps himself within the law.²³
• Every voter must be perfectly free to vote as Eve likes without any fear of consequences and without being unduly influenced by anyone by improper means, inducement, or pressure of any kind.²⁴
• The secrecy of voters’ preferences for any candidate should be maintained. The election machinery must function honestly and impartially at every stage.²⁵
• Parliament must pass a law dealing with this serious problem of the de-listing of valid electorates from electoral rolls because illiterate electorates residing in remote villages cannot watch over the publication of the electorate lists.²⁶

CONCLUSION

In a democracy, the sovereignty lies with the people and without their support, an individual cannot become a representative of the people. It is the responsibility of every citizen of India to vote for their desired candidate and also to question the government regarding all the policies being implemented.²⁷ The representatives whoever is being elected by the people always had a responsibility towards the citizens, and even before questioning them, representatives were accountable. Further, in modern times, there was a use for implementing an Act to make representatives accountable and answerable, i.e., the RTI Act, through which the public can ask for any information with some exemptions.²⁸ Therefore, despite Election Commission of India doing their best to conduct free and fair elections, it is not possible until and unless every individual knows their duty towards the state and their moral obligation and ethical values are followed as an individual. At the end, there would be a proper mechanism that is fully operational and properly ready to any consequence.