Elections

Context: Supreme Court sought a response from the States of Madhya Pradesh and Rajasthan on a plea that public funds are being misused to offer irrational freebies ahead of elections. 

Freebies 

The dictionary meaning of the word freebie is something that you’re given free. But in practice, there is no precise definition of freebies.

The services or provisions provided by the state or union government, such as free electricity, free water, free public transportation, waiver of pending utility bills, and farm loan waivers, etc., straining their resources in the hope of electoral benefits, can be regarded as freebies. 

It is important to distinguish them from public-merit goods, expenditure on which brings economic benefits, such as the public distribution system, employment guarantee schemes, states’ support for education and health. 

Issues Associated with Freebies  

• Election Commission observed that the distribution of freebies undoubtedly by influencing the decision of electorate shakes the root of free and fair elections. 
• Governments resort to the freebie culture to cover up their failure in providing adequate jobs or skilling or ensuring decent livelihood to citizen. 
• Critics argue that freebies disrupt state finances and throw governments into a debt spiral. 
• It undermines credit culture and promotes rent seeking behavior among citizens.  
• It distorts prices through cross-subsidisation eroding incentives for private investment. 
• It disincentivise work at the current market wage rate leading to a drop in labour force participation. 
• The widespread practice of offering freebies by politicians, across party lines and for electoral benefits, drains public finances that can be used instead for more concrete policy initiatives. 
• For example, Punjab’s electricity subsidy and its rising cost to the state exchequer is over 16 per cent of total revenues. 

Steps Taken

Guideline Issued by Election Commission Regarding Manifesto and Freebies 

The Commission, in the interest of free and fair elections directed that Political Parties and Candidates while releasing election manifestos for any election to the Parliament or State Legislatures, shall adhere to the following guidelines:  

Supreme Court Cases

• Indira Nehru Gandhi v. Raj Narain (1975)
  • In this case the Supreme Court held “free and fair elections” to be a basic structure of the Constitution.  
• S. Subraminam Balaji v. State of Tamil Nadu & Others (2013)
  • In this case, the Supreme Court ordered the Election Commission to develop election manifesto guidelines after discussing with all recognised political parties.  
  • In light of this, the Election Commission created the rules and included them in the Model Code of Conduct.  
  • The court determined that while the promises made in the election manifestos cannot be considered “corrupt practices” under Section 123 of the Representation of People’s Act, 1951, it is unavoidable that the giving away of freebies of any kind impacts voters. 
• Ashwini K Upadhyay v. Government of National Territory of Delhi (2021)
  • In this case, the Apex Court observed that a poll manifesto does not have statutory backing and, hence, its enforceability is not within the purview of the courts. 
  • So, the court cannot give directions to any Government to pass or provide anything that is promised by political parties in their party manifesto. 

Way Forward:

• The Election Commission has said the issue of freebies should be left to voters as it cannot regulate state policies and decisions which may be taken by the winning party when they form the government. Such an action, without enabling provisions in the law, would be an overreach of powers, the commission has said. 
• For a country with high poverty rates and persistent economic disparities, welfare schemes are a lifeline for huge populations that demand that a clear definition of freebies differentiating them from the welfare programmes should be arrived at. 
• The democratic forum such as inter-governmental institutions can frame the freebies debate and build a political consensus. 
• The parliament, as a representative body, can debate on the freebies and legislate policies to regulate them.  
• It is essential that political consensus are built, involving the Centre as well as states, to arrest the misuse of welfare schemes and the resultant adverse impacts on the country’s fiscal health. 

The promises of welfare made by political parties to their electorates are part of the key process of bargaining in a democracy where the voter’s judgement is paramount. The interference perceived or real, of non-elected institutions can distort the dynamics of electoral democracy.

It also belittles the electorate’s agency and sense of judgement undermining the basic principle of democracy. So, while regulation of freebies is a necessary evil, political education should be promoted among citizens at the same time.

Context: Recently constituted committee under the leadership of former President Ram Nath Kovind to examine and recommend if the constitutional amendments for simultaneous elections would require ratification by the States.

Provisions that may demand amendment of constitution for simultaneous election

Simultaneous elections will need at least five constitutional amendments. The articles that would require amending are:

• Article 83 (2): It says the Lok Sabha's term should not exceed five years, but it may be dissolved sooner.
• Article 85 (2) (b): A dissolution ends the very life of the existing House, and a new House is constituted after general elections.
• Article 172 (1): A state assembly, unless sooner dissolved, shall continue for five years
• Article 174 (2) (b): The Governor has the power to dissolve the assembly on the aid and advice of the cabinet. Governor can apply his mind when the advice comes from a Chief Minister whose majority is in doubt.
• Article 356: Imposition of President's Rule in states.

Law Commission draft report on Simultaneous Election (2018) 

The Law Commission of India chaired by Justice B. S. Chauhan provide the following: 

• It suggested that simultaneous elections would require amendments to various constitutional provisions, the Representation of the People's Act 1951, and the Rules of Procedure of Lok Sabha and State Assemblies. 
• The Commission highlighted that a constitutional amendment to this effect must receive ratification from at least 50% of the States.

Amendment Process Mentioned in the Constitution 

Most of the constitution can be amended through a simple majority of those present and voting in each House of Parliament. Some examples include amendments contemplated in:

• Article 4: changes related to the organisation of States.
• Article 169: abolition or creation of Legislative Councils in States 
• Schedule VI: provisions for the administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram. Etc.

Amendment under Article 368

Under Article 368 Constitution provide for two kinds of amendments 

• Article 368(1): For amending the provision like Fundamental Rights just ‘Special majority’ (not less than two-thirds of the members are present and voting in each House of Parliament as well as a majority of the total membership of each House) is needed.
• Article 368(2): For amendment under this article both a ‘special majority’ and ratification by at least one-half of the State legislatures is required. These are commonly referred to as ‘entrenched provisions’ and are as follows:
  • if there is a change in the provisions regarding elections to the post of the President of India (Article 54 and 55).
  • if there is a change in the extent of the executive power of the Union or the State governments (Article 73 and 162).
  • if there is any change in the provisions regarding the Union judiciary or the High Courts (Articles 124–147 and 214–231). 
  • if the distribution of legislative and administrative powers between the Union and the States is affected (Article 245 to 255).
  • if any of the Lists in the Seventh Schedule is affected.
  • if the representation of the States in Parliament is changed (Article 82).
  • if Article 368 itself is amended.

Constitutional Perspective about the ratification by the states 

• Federal Structure: Dr. B.R Ambedkar was in favour of the ratification by States for the amendment of certain constitutional provisions to ensure that the federal structure of the Constitution remains fundamentally unaltered.
• Principle of separation of Power: Dr. Ambedkar cautioned that permitting all constitutional amendments to take place by a simple majority would defeat the principle of separation of powers among the three organs of the State.

Need of State Ratification: Supreme Court Cases 

Kihoto Hollohan versus Zachillhu (1992): The Anti-Defection case

• In this case the constitutional validity of the Constitution (Fifty-second Amendment) Act, 1985 was challenged on the grounds that the amendment was not ratified by the States. 
• Though the Tenth Schedule was to deal with defection, it also seems to oust the jurisdiction of all courts by virtue of Paragraph 7. 
• The amendment brought about changes with respect to the jurisdiction of the Supreme Court and the High Courts one of the provisions that require ratification by half of the States. 
• A Constitution Bench of the Supreme Court upheld the validity of the Tenth Schedule but declared Paragraph 7 of the Schedule invalid for want of ratification.

Union of India versus Rajendra N. Shah (2021)

• in this case SC struck down provisions of the Constitution (97th Amendment) Act, 2011 to the extent that it introduced Part IX B in the Constitution to deal with co-operative societies. 
• The Court unanimously held that the amendment required ratification by at least one-half of the State legislatures as per Article 368(2) of the Constitution, since it dealt with an exclusive State subject of the Seventh Schedule. 
• The majority judgment invoked the doctrine of severability to make Part IXB operative only insofar as it concerns multi-State cooperative societies.

Context: A committee has been formed under the headship of former President of India Ram Nath Kovind, to look into the feasibility of simultaneous elections to State Assemblies and the Lok Sabha.

About One Nation One Election

• The idea of "One Nation One Election" entails aligning the electoral cycles of Indian Lok Sabha (LS) and State Assemblies, allowing voters to cast their ballots for both on a single day. 
• This practice was prevalent until 1967, but it was discontinued following the dissolution of some assemblies in 1968 and 1969, followed by the dissolution of the Lok Sabha in 1970.

Arguments in Favour

• Firstly, it reduces the frequent imposition of the Model Code of Conduct (MCC), which often leads to policy paralysis and disrupts essential developmental work.
• Secondly, it curtails substantial expenditures incurred by political parties, individual candidates, and other stakeholders.
• Thirdly, it optimises the deployment of security forces, freeing them up for other vital internal security purposes.
• Fourthly, it addresses the issue of frequent elections hindering legislative work, preventing governments from squandering resources on short-term, unproductive freebies.
• Furthermore, it diminishes the divisive influence of caste, religion, and communal issues in society.
• Lastly, it minimises the hidden and unquantifiable socio-economic costs, such as teachers missing from schools, revenue machinery diverted to election-related work, and the economic costs of lost teaching weeks and poorly executed welfare programs for the disadvantaged.

Arguments Against

• Aligning the terms of various assemblies would necessitate constitutional changes, which are currently difficult to implement.
• Additionally, the absence of fixed terms for the Lok Sabha and state assemblies complicates synchronisation efforts.
• Further, this move infringes upon the spirit of federalism, limiting the state legislatures' authority to unseat a government through no-confidence motions.
• It also complicates voters' decision-making as they must weigh national and local issues simultaneously.
• Frequent elections and electoral outcomes serve as mechanisms for governments to make necessary course corrections, and this might be hindered by simultaneous elections.
• Logistic challenges, including arranging Electronic Voting Machines (EVMs), manpower, and security forces, present practical difficulties.
• Moreover, regional parties may face a comparative disadvantage against national parties in such a setup.

The Way Forward

To address these concerns, various suggestions have been proposed.

• One approach is to conduct elections in two phases, as recommended by a Parliamentary Standing Committee. Phase I would coincide with Lok Sabha elections, while Phase II would occur approximately midway through the Lok Sabha's term, resulting in elections every 2.5 years once synchronisation is achieved.
• The Election Commission has recommended measures to avoid premature dissolution, such as moving confidence and no-confidence motions together and conducting fresh elections for the remainder of the term.
• Additionally, the Law Commission has put forward recommendations:
  • It  includes defining "simultaneous elections” in the Representation of the People Act (RPA) of 1951 and amending provisions to ensure that LS and assembly constituencies formed after midterm elections serve only for the remaining term. 
  • The anti-defection law could be amended to prevent stalemates, and the statutory limit for general election notifications could be extended. It's proposed that no-confidence motions could be followed by the option to form an alternative government. 
  • Lastly, the Prime Minister or Chief Minister could be elected to lead the Lok Sabha or Assembly by the entire house, similar to electing the Speaker of the Lok Sabha, providing greater stability to the government.

Conclusion

Implementing simultaneous elections in India is a complex undertaking requiring extensive coordination and consultation among all stakeholders. A phased synchronisation of LS and Assembly tenures, as suggested by a Parliamentary Committee, may be a more feasible approach than an immediate, one-time overhaul of the electoral system.