Defying the Law

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Though amendments have been made to the Representation of the People Act, politicos have shamelessly sold themselves to the highest bidder. Is it time parties sign “prenuptial” pacts with their candidates?

By Neeraj Mishra

It seems like the re-run of last season’s hit and the opening scene is always the same—a luxury bus full of boisterous MLAs entering a luxury resort flashing the V sign.

This is happening with dreadful regularity every time a Rajya Sabha election nears or rumours surface of a shaky state government. It’s inexcusable that the MLAs feel victorious after decimating the best tenets of electoral democracy.

And look at the astronomical figures that float around for the newly acquired technique of resigning from the assembly to bring down elected governments. An MLA can be bought for as much as Rs 25 crore. This is what several defeated chief ministers have revealed. Without going into the source of the funds and how it is delivered, it is pertinent to see the position of voters. Are they to remain mute spectators at this mercenary poll dance and the way elected representatives mouth inanities like “neglect of my area” and “in the interest of my constituency” while performing these artful somersaults?

The Representation of the People Act (RPA), 1951, does not offer much security to voters. It has no option which allows the censure or recall of an elected representative. So once the voter has cast his vote, the MLA or MP can do as he likes, which more often than not is to feather his own nest. The RPA has a provision for disqualification of an elected representative if he is convicted under any of the scheduled offences. But this provision does not consider “cheating the electorate” after securing their vote as a criminal offence.

Should crossing the floor then be considered an IPC offence under the sections related to cheating and befooling a person? No electorate has so far tried to register an offence against its own representative under any of the sections of the IPC, so the courts have not had the opportunity to rule on it.

Section 405, IPC, says: “Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes off that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.” 

The crucial requirement of the Section are “entrustment whether express or implied” and “property”. Should the courts consider the position of the elected representative as “property” and a vote as an entrustment of that property? This should be seen against the background of a turncoat MLA being rewarded with some public office by the ruling party. Should that reward be regarded as “consideration” for disposal of the entrusted property? Either courts or the Election Commission should delve into it.

There have been close to two dozen amendments to the RPA since its inception and some have been significant. The Parliament also passed a law restricting the chances of elected representatives crossing over when the Aaya Ram Gaya Ram politics peaked in the ’80s. The requirement now is that only a group of MLAs, not numbering less than a third of the total number of elected representatives of that party, can decide to either form their own group inside the House or join any other party. This, in turn, has to be ratified by a two-thirds majority of its sitting members. This is to make dissent that much more difficult.

In due course, ambitious and clever individuals found a way to short-circuit this as well. Individual MLAs were made to vacate their seat to make place for some senior party leader or were lured away by the offer of some other public office. But the BJP, buoyed by the confidence that it can get resigning MLAs re-elected once their government is formed, has started a new trend in politics—that of MLAs resigning in bunches which are less than the required one-third strength but enough to bring down a government. This new phenomenon requires more legal strengthening of the bunds.

The much-lauded Swiss initiative of the right to recall an elected representative if at least 25 percent of the electorate does not like his work is now gaining currency around the world. In India, it exists in the Panchayat Acts of Bihar, MP and Chhattisgarh. The process, of course, has been watered down where the district administration holds a Yes or No type of vote in the constituency which demands the recall. These elections are often difficult to bring about and are then managed. They end up as a farce but nonetheless, have delivered some significant changes. The lessons from it should not be lost. The EC and the Executive have often dismissed the possibility of right to recall at the national level, claiming the process could be lengthy, frequent and expensive.

The Supreme Court in Mohan Lal Tripathi vs District Magistrate, Rae Bareilly and Ors had opined that elected bodies or boards can oust their members as they represent the entire electorate. But in another more significant case, the Allahabad High Court had restored the right of gram sabhas to recall. So the right to recall exists in at least three states.

In 2016, BJP MP Varun Gandhi had presented a Private Member’s Bill in Parliament focusing on the need for right to recall. It did not find support even within his own party. Once elected, no one wants to be recalled. They want to continue in office even if it means dodging their own voters with dubious statements to support undemocratic decisions. Can the courts find a way out?

To beat the possibility of MLAs misusing resignation as a tool, why not lay the burden on the elected representative himself? In case he wants to switch sides or resign, he should be required to go to his constituency, lay out the reasons for his decision and seek ratification by his own electorate to change his party or resignation. This should be done by him at his own cost and the ratification process can be conducted by the EC through the district administration. If 50 percent voters agree with his reasons, then he should be allowed to do so. This will have a long-term effect—people will know that their elected representative wants to resign and two, most MLAs/MPs will desist from it, considering the prohibitive costs.

Political parties can sign their own “prenuptial agreements” with the candidate. Before giving tickets, a legally binding contract can be signed between the party and the candidate that if the latter chooses to resign or switch loyalties, he will have to inform the party at least six weeks in advance. And then if he still chooses to resign, he will be barred from contesting any election for at least ten years from any party.

Opponents of this idea may suggest that this will lead to the undemocratic practice of parties dictating terms. In practice, that already exists in the form of whips and party discipline. The key thing here will be advance notice of intention to defect or resign. This will put a stop to the prohibitive and dramatic resort politics that has become the bane of our democracy now.

Lead Picture: UNI

The post Defying the Law appeared first on India Legal.

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