It's a tightrope walk
A legislation to recall elected representatives cannot be enacted in a hurry, least of all under the coercive pressure of indefinite fasts. Soli Sorabjee writes.india Updated: Sep 02, 2011 08:25 IST
Acute dissatisfaction verging on disgust with the behaviour and performance of some Members of Parliament and members of Legislative Assemblies has generated a debate about enacting a legislation for recall of elected members.
Under the present law, an MP or an MLA has a fixed term of office for five years. Articles 102 and 191 of the Constitution specify the contingencies in which a person shall be disqualified for being a member of Parliament or a Legislative Assembly. For example, if he is validly disqualified under the anti-defection provisions in the Tenth Schedule of the Constitution or if he is of unsound mind and so declared by a competent court.
At present there is no provision in the Constitution or in the Representation of People's Act 1951 for the recall of a duly elected member. In essence, recall is a mechanism for voters to un-elect an elected MP or MLA. It thus curtails his fixed term of office. The impelling rationale of a recall mechanism is the belief that the errant MP or MLA should be shunted out of the House.
Any proposed recall legislation would raise several important issues. For example: who should be vested with the power of recall? If power of recall is to be vested in the voters of the member's constituency, what should be the number of registered voters who are signatories to the recall petition? The voters who did not vote for the elected candidates would naturally demand his recall. Therefore, it is necessary to ensure that sufficient number of voters sign the recall petition. What is that sufficient number? In Canada, under the Recall and Initiative Act 1995, the requirement is of more than 40% of the voters. The constitution of Venezuela enables the recall of an elected representative if at least 20% of the registered voters are signatories. In Philippines, the number required is at least 15% of the registered voters of the last election. In different states of the US, the number varies. Introducing a power of recall in its manifesto, the Conservative Party in Britain thought that signatures from 10% of the local electorate would suffice.
Another issue will be about the limitation period for filing a recall petition. In Canada, the legislation prohibits applications for recall petitions during the 18 months following general voting day in order to give the MPs sufficient time to demonstrate their abilities. Besides, such a limitation would discourage the phenomenon of a 'sore loser' sponsoring a recall immediately following an election simply in an effort to overturn the results. Most state jurisdictions in the US have similar limitation periods.
A more serious issue is whether grounds for recall must be specified in the recall petition such as some form of malfeasance or misconduct while in office or unsatisfactory performance like irregular attendance, chronic unpunctuality, sleeping during parliamentary proceedings or not having made a single speech or an intervention during the entire session. These grounds are merely illustrative and may be added or deleted. But there must be specific grounds. A member cannot be unseated merely on the basis of number of signatories to the petition, which is a highly fluctuating factor.
Recall legislation in Canada has led to a host of problems and also legal proceedings. In March 1998, the BC Civil Liberties Association filed a constitutional challenge in the British Columbia Supreme Court. The group asserted that the recall legislation infringed a citizen's right to vote under Section 3 of the Charter of Rights and Freedoms because a recall petition is not a secret ballot and the votes of those not signing a petition are not counted. However, the challenge was withdrawn in June 1999. The Association reconsidered a legal challenge in May 2003, but ruled it out because of limited resources.
Recall is fraught with serious consequences to the member who is sought to be recalled. A vexed issue is whether the concerned MP or MLA should not be given an opportunity in keeping with the principles of natural justice to deal with the specified grounds in the recall petition. Again, who will decide whether the alleged grounds in the recall petition are justified or not: civil courts or an Election Commission or any other authority? In any case, it will be a time-consuming exercise.
A formidable objection to recall provisions is that it subjects the elected member to the supervision and control of his constituency. That would impair the free and independent discharge of his functions in keeping with his conscience. The electorate may be carried away by the frenzy of a popular issue and it would be undesirable to subject an elected member to the changing mood and temper of the electorate. Above all, it must be remembered that if a member is recalled there has to be a byelection in his constituency. The time and the expenses involved is a vital factor to be kept in mind.
The problem of delinquent MPs and MLAs is real and it is necessary to find a proper solution for exiting them from the House. If the electorate exercises its franchise in a wise and sensible manner, and elects the right person, there will not be any need for recall legislation. Alas that is praying for an Utopia. Therefore, if recall or similar legislation has to be enacted, remember that such legislation is complex, has many constitutional and legal implications and requires full and thorough debate prior to its enactment. We should analyse and learn from the experience of other democratic countries which have opted recall mechanisms. It cannot be enacted in a hurry, least of all under the coercive pressure of indefinite fasts.
Soli J Sorabjee is former Attorney General of India. The views expressed by the author are personal.