Dr.Kalpana Gopalan IAS, PhD: A Performance Paradigm Approach to Electoral Reform in India: 19.12.2014

A Performance Paradigm Approach to Electoral Reform in India.

Dr.Kalpana Gopalan IAS, Ph.D & PGPPM, Indian Institute of Management Bangalore. 12/19/2014

ABSTRACT. The paper is an argument for a new approach to electoral reform in India. A detailing of what ails Indian elections is followed by a summary of reform initiatives so far. The paper then argues that while reform efforts so far have focused on supply side regulation, that is, laying down minimum conditionalities for a candidate to contest elections, it is now time to shift to an alternate and complementary paradigm. Demand side regulation, which the paper proposes, works by providing voters a performance report on the status of their constituencies based on certain pre-determined standardized pan-Indian parameters. Operationalization of this strategy is discussed, as well as the distinction between the two reform approaches.

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A Performance Paradigm Approach to Electoral Reform in India. Dr.Kalpana Gopalan. IAS. “If the people who are elected are capable and men of character and integrity, then they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the Country. After all, a Constitution like a machine is a lifeless thing. It acquires, life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of Country before them…. It requires men of strong character, men of vision, men who will not sacrifice the interests of the Country at large for the sake of smaller groups and areas….. We can only hope that the Country will throw up such men in abundance”. (Dr. Rajendra Prasad, President of the Constituent Assembly of India, while addressing the Assembly before putting the motion for passing the Constitution in the House on the 26th November, 1949).

I.

ELECTIONS: THE PRIDE OF INDIA.

Let us take a minute to be proud. On India being the largest democracy in the world. And on the conduct of the Indian elections being the cornerstone of our democratic process. The 2009 elections involved an electorate of 714 million, larger than both EU and US elections combined. In 2014, the electorate increased to 814.5 Million. The 1952 Lok Sabha elections saw 1874 candidates, which rose to 13952 in 1996; 8251 candidates contested in 2014.

The Indian Constitution aspires to empower the citizens of India to become bhagidars (partners) in the democratic process. This is operationalised through the citizens’ power to elect their representatives- members of the parliament and the state legislative assemblies- by exercising their franchise through free, fair and periodic elections. Safeguards have been built into the law, that is, the Representation of Peoples Act, 1951, which prescribes qualifications and disqualifications for persons aspiring to be elected to hold public office as well as the procedures for the conduct of elections. As the Supreme Court held in Mohinder Singh Gill v.

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Chief Election Commissioner, “Democracy is government by the people. It is a continual participative operation, not a cataclysmic periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions… It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more” (1978).

II.

WHY DO WE NEED ELECTORAL REFORM?

The little man, exercising his franchise with a little pencil on a little piece of paper in a little booth, yet having the power to make and unmake governments, is a symbol that has inspired votaries of democracy, from Winston Churchill to the Supreme Court of India. On the other hand, the little man of R.K.Laxman, overwhelmed by a process which renders him insignificant and invisible, is perhaps more real to most of us.

Figure 1: Criminalization of Politics.

Source: (Facebook.com)

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The criminalization and money-driven nature of Indian elections have made reform an urgent imperative. It is much more than our representatives being indifferent to public welfare and incapable of representing us adequately. What we see before us today is a dangerous nexus between corruption, crime and politics.

“Instead of politicians having suspected links to

criminal networks, as was the case earlier, it was persons with extensive criminal backgrounds who began entering politics” (Vaishnav, 2010). The Law Commission of India Report on “Electoral Disqualifications” narrates the gravity of the present scenario: -

18 % of candidates contesting national or state elections have criminal cases pending against them (11063 out of 62847).

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5253 or almost half of these cases involve serious criminal offences.

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The 5253 candidates with serious cases together had 13984 serious charges against them. 31% murder and murder-related offences, 4% rape and offences against women, 7% kidnapping and abduction, 7% robbery and dacoity, 14% forgery and counterfeiting and 5% related to breaking the law during elections).

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Criminal backgrounds are not limited to contesting candidates, but are found among winners as well. 1187 of criminally charged candidates won the elections they contested.

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Overall, including both serious and non-serious charges, 2497 (28.4% of the winners) had 9993 pending criminal cases against them.

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The situation is similar across states with 31% or 1258 out of 4032 sitting MLAs with pending cases, with about half being serious cases.

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In Uttar Pradesh, 47% of MLAs have criminal cases pending. One MLA has 36 criminal cases pending including 14 cases related to murder.

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Winners with criminal cases (23%) are more than candidates without cases (12%). So candidates with a criminal background seem to fare better at elections than those without.

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In the current Lok Sabha, 185 out of the 542 MPs have criminal cases against them; at 34 % this is a rise from 30% in 2009 and 24% in 2004.

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The money-driven nature of elections ensures that tainted candidates overcome the stigma attached to them, as well as enhance their “winnability” by their greater access to resources.

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Consequently candidates with criminal cases against them tend to be given tickets a second time. And even untainted representatives later become involved in criminality. (Law Commission of India, February 2014) (Association for Democratic Reforms, 2014).

III.

INITIATIVES FOR ELECTORAL REFORM.

As the quality of candidates deteriorated, with its inevitable impact on governance, the increasing public disenchantment found expression in a number of reform initiatives, driven by the election commission, the government, non-governmental agencies, courts and civil society. One of the earliest steps towards reform, by the Rajiv Gandhi government in 1985, was the 52nd Amendment that inserted the 10th Schedule to the Constitution. Popularly referred to as the ‘Anti-Defection Law,’ it set the provisions for disqualification of elected members on the grounds of defection to another political party. However, as per the 1985 Act, 'defection' by one-third of the elected members of a political party was considered a 'merger' and not actionable against. The 91st Constitutional Amendment Act, 2003 improved upon this by specifying at least two-thirds of the members of a party have to be in favour of a ‘merger’ for it to be legally valid.

A slew of reform measures have been driven by the Election Commission of India. “After overseeing 15 General Elections to the Lok Sabha, the ECI, in its diamond jubilee year, can with justifiable pride claim to have nursed and strengthened the electoral processes of a nascent democracy. The successes have not been consistent or uniform, but over the last six decades the ECI managed to make the world’s largest democratic processes freer and fairer” (from The Hindu lead editorial of January 29, 2010 quoted in (Chawla, 2013). T.N.Seshan as Chief Election Commissioner became a household name and a middle-class hero by making the ECI truly autonomous and formidable. In 1982, electronic voting machines made a quiet trial entry in the Parur Assembly constituency by-election in Kerala. In 2004, the ECI took the plunge and conducted the entire general election using almost a million machines. A digital database of electors was created, followed in 2009 by a comprehensive photo electoral roll; and deduplication technologies eliminated bogus and duplicate entries. A Booth Level Officer became

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the custodian of the polling station-wise electoral roll, enabling continuous door-to-door verification of electors. Myriad forms of voter assistance were built in on and prior to the polling day. General and Expenditure Observers were supplemented by micro-observers to keep the poll day processes transparent. Video cameras began to record the polling and counting procedures. “Vulnerability mapping,” helped identify localities that did not turn up to vote, which were then enabled to vote. The system of online communication (COMET) made it possible to monitor every booth on polling day. Above all, the Model Code of Conduct was designed to level the playing field between candidates (Chawla, 2013). The ECIs actions of reform and innovation were backed, and occasionally driven, by the supreme court of India, which ensured it a clear field of operation and authority from announcement to declaration of elections. Judicial decisions ushering in electoral reforms started with the Mohinder Singh Gill case 1978, when the SC interpreted Article 324 of the Constitution to invest unbridled powers in the ECI to conduct and supervise elections: "The Constitution contemplates free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the EC. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances" (1978). In 1996, the apex court in the Common Cause case ordered political parties to submit details of expenses they incurred in an election. In the Association for Democratic Reforms judgment of 2002 the court ruled that voters' right to information was fundamental; to enable a voter make an informed choice, every candidate was ordered to submit an affidavit with nomination papers giving correct information about his educational qualification, family assets, and criminal background (2002). A legislative attempt to thwart the judgment by amending the Representation of the People’s Act was struck down as ultra vires the constitution in 2003 (People’s Union for Civil Liberties, Lok Satta & Association for Democratic Reforms vs Union of India and another, 2003). When ingenious politicians left uncomfortable columns blank, the SC in 2013 ruled that if a candidate left columns blank, the returning officer could reject the nomination papers. 2013’s most important judgment on electoral reform ruled that an MP or MLA would be disqualified immediately after being convicted in a serious offence and sentenced to two or more years in prison. Two more

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judgments on electoral reforms flowed from the CJI-headed bench. One allowed a voter to cast a negative vote 'none of the above' (NOTA) and the other asked the EC to provide receipt of vote cast through EVMs to tell the world that we are electronic, transparent and honest when it comes to voting.

IV.

LIMITATIONS OF THE REFORM APPROACH.

Despite the reform measures, popular perception still considers elections “dirty”. Nor is such a perception ill-founded. Clearly, reform efforts have been inadequate, and hence it behooves scholar to examine why this is so. Numerous committees have gone into the subject, such as the Goswami Committee on Electoral Reforms (1990), Vohra Committee Report (1993), Indrajit Gupta Committee on State Funding of Elections (1998), Law Commission Report on Reform of the Electoral Laws (1999), National Commission to Review the Working of the Constitution (2001), Election Commission of India-Proposed Electoral Reforms (2004), The Second Administrative Reforms Commission (2008) and The Law Commission of India Report on Electoral Disqualifications (2014). This section will provide a brief overview of the dominant approaches to electoral reform in India and also attempt to detail their limitations.

Electoral reform attempts in India have generally followed a normative approach. Their regulatory slant may be classified into three broad categories. The first category focuses on the qualifying conditions governing candidates standing for election, emphasizing a two-pronged approach: disqualifying candidates with criminal convictions and regulating campaign financing (Sastry, 2014) (Sridharan, 2012) (Anand, 2014) (North, 2013). It is argued that the campaign funding is directly or indirectly a quid pro quo for contracts and approvals once the government is formed (Gowda & Sridharan, 2012). The solutions proposed such as revising expenditure declaration norms and limits and state funding of election campaigns (Sridharan, 2012) (Venkatesh Kumar, 1999)call for greater transparency and accountability in the functioning of political parties and candidates (Reddy, Seth, Ghatate, & Jain, 1999)

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The second category focuses on the Election Commission, being the institution responsible for conducting the electoral process and ensuring free, fair and credible elections. The EC issues guidelines and monitors the conduct of political parties and candidates throughout the election cycle (Election Commission, 2014). Given its singular importance, reform proponents have suggested the need to strengthen the EC’s independence and institutional structure, enabling it to penalize defaulters regardless of the defaulter’s political influence and power (Iyer, 1996) (Katju, 2006) (EPW Editorial, 2009) (EPW Editorial, 2014).

The third and final category looks at the norms by which electoral outcomes are computed. India elects candidates on the basis of first past the post i.e. the candidate with the highest number of votes wins the election. Concerns have been raised whether such a winner-takes-all algorithm misrepresents voter preferences. This is of particular importance in India’s multiparty system where numerous parties may draw a substantial share of the votes cast, without winning an election (Reddy, Seth, Ghatate, & Jain, 1999). In addition to vote counting mechanisms, electoral outcomes in India are also subject to various reservation quotas, whose mechanics and efficacy continue to be debated (Rai, 1999) (Osborne, 2001) (Ban & Rao, 2008).

Well-intentioned though these reform approaches have been, they yet have suffered from a serious limitation. The current electoral reform practice emphasizes regulation, altering rules governing the electoral process in order to refine and improve it. Its primary mechanisms are interventions that control the conditions for a candidate’s eligibility for political office and tightening the procedural safeguards to ensure smooth conduct of the process. Essentially restrictive in nature, the inherent assumption here is that rule based filtering process through laws, rules and formal institutions and tools can improve the quality of candidates. In a sense, this is supply side regulation, an attempt to correct the process of candidate so that only worthy candidates are enabled to stand for elections, the others being filtered out.

It is perhaps naive to expect that fundamental changes can be effected only by tightening legal or procedural provisions rather than passing fresh legislation. Members of the legislature are

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the direct beneficiaries of the current electoral system. It is therefore unlikely that any reform to radically alter the existing status quo would receive their support (Hagel, 1994) (Rahat, 2004). Given the size and diversity of India, it would quite difficult to secure nationwide support for electoral reforms. In our multi-party democracy, arriving at a working consensus among different major political parties with widely varying self-interests seems to be a distant dream. A party, while in power, may appear to be keen on certain reforms and when out of power, takes a U-turn and questions the justification, fairness or implementability of the proposals. This is the reason why the instances of change in electoral rules have been initiated by the judiciary (the Supreme Court of India) and the executive (the Election Commission of India) rather than by the legislature, usually by re-interpreting the Representation of the People Act of 1951 (Kumar, 2001) (Venkatesan, 2013). However, such re-interpretations of existing legislation provide limited scope for reform. A genuine overhaul of the electoral system would require changes in the statue for which legislative sanction is needed. Given the perverse incentives of the entrenched political class it is unrealistic to expect them to be in the driving seat for electoral reforms that require changes in statute.

V.

AN ALTERNATE PARADIGM FOR ELECTORAL REFORM.

This brings us to an alternate paradigm, or a complementary approach, if you will, to electoral reform. Such an approach to strengthening the legitimacy of elections focuses not on the supply side, but on demand side regulation. In this paradigm, electoral reforms gain the form of a social movement, reliant on information dissemination and active (and discerning) citizenship rather than the traditional dependence on only legal or procedural safeguards.

Indian elections have been frequently described as a ‘mela’ or a ‘tamasha’. Let us conceive of the elections, instead, as a marketplace. Considering its contestability and low entry and exit barriers, such a representation is not entirely inaccurate. The legal tender of the electoral marketplace is the citizen’s vote. But the information asymmetry in this market is huge, in fact information is non-existent. Poor availability of credible standardized information enabling comparisons across constituencies and candidates becomes a serious impediment to the

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proper functioning of the electoral marketplace. It leads the voter to rely on impressions, or less valuable but easily identifiable attributes such as patronage, caste, religion and so on. Once the voter bases his judgment on such parameters, the candidates too base their campaign “selling” strategy on the same non-optimal largely subjective parameters. This perpetuates vicious cycle of an election campaign that is less about public welfare or development outcomes, and more about politics of identity and other forms of sub-optimal vote buying.

In a scenario where little information is available about candidate performance, the electorate willy-nilly falls back upon whatever information is available, such as caste, community, religious identity or the candidate’s own claims of his achievements. If instead, constituency wise performance reports are made available to the electorate, the voting citizen can travel to the booth equipped with information on the contesting performance indices of her contesting candidates. I argue therefore that a demand-based reform paradigm should ensure that information regarding the performance of a constituency be made available to the public in a structured manner that allows voters to make an informed decision at the time of elections. This can be done by tracking development outcomes and the quality of public service delivery at the constituency level. This data is then released in the public domain, leaving it to electors to make informed choices. Such an intervention would fill a crucial gap in the electoral market place, where the information deficit is huge making it impossible for citizens to objectively evaluate the relative performance of elected representatives and political parties to serve their constituency (Khemani, 2013).

The task is not as simple as it seems, but still doable. First, it involves identifying parameters by which service delivery is to be measured. Not all development outcomes lend themselves to tangible measurements. Public service delivery, public infrastructure, policy-making, public and private investment in the constituency are some of the parameters suggested. Certainly the parameters may alter with time and geography. But for the present, it is advisable to rely on a standardized pan-Indian format, separately for MLAs and MPs. Second, it is absolutely essential that the performance reports are prepared with absolute impartiality. In an era where even

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NGOs and think tanks come with built-in political affiliations, it is advisable that the comparative reports are prepared by an independent entity such as the election commission. Certainly, the agency should possess the wherewithal to track development outcomes over at least a five year period; and as the system matures, throw up comparative reports across constituencies and longitudinally, across previous terms.

Third, the dissemination of the

information should be both wide and deep. Not only should the data be released into the public domain, such as the internet, television or radio, but especial care is needed to see that the information percolates at the micro-level, into the corners of the constituency.

If one views elections as a market place where candidates compete for votes, voters can be expected to behave as rational consumers exchanging their vote for a basket of goods and services that has the highest marginal utility for them i.e. produce the most visible improvements

in

development

outcomes

and

public

service

delivery.

Incumbent

representatives would consequently respond to the value being placed on these attributes and compete to outperform one other. An intervention that succeeds in capturing and distributing information on performance across electoral constituencies can be expected to trigger a virtuous cycle where the voter armed with credible information on performance can select/reject candidates on the basis of their performance or credible promise. This would consequently raise the standard for incumbents, who will be forced to work towards measurable improvement in their constituencies. This leads to less value being placed on suboptimal parameters and more on a candidate’s ability to deliver development outcomes and public services ( (Breeding, 2007) (Deshpande, 2000) (Schaffer, 2007) (Sastry, 2014). The proposed framework consequently underlines the need to shift the political discourse towards evaluating a candidate’s ability to serve his/her constituency, the theory being - such an intervention will enable citizens to behave as self-interested rational actors to produce improved electoral outcomes.

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Figure1: Performance Based Election Paradigm.

Performance Report: X Constituency (2014-19) I. II. III. IV. V.

Service Delivery Infrastructure Investment Policy making Others

If the supply side electoral reform attempts to change (from “winnability” to quality) the standards by which the electoral candidates are filtered to contest elections, the demand side regulation reframes the problem; it focuses on changing the standards by which the electorate elects its representatives. Moreover, supply side regulation is based on minimum conditionalities, demand side regulation focuses on maximizing performance. Clearly this is a greater challenge, for it involves a substantial change in voter expectations. Existing Reform Approach

Proposed Reform Approach

Reform paradigm

Supply side

Demand side

Based on

Minimum conditions (to)

Maximum performance (to)

Contest elections

Elect candidates

Addresses

Candidate

Voter

Depends on

Enforcement

mechanisms

election bureaucracy

of Informed choices of active citizenvoter

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Some limitations of the proposed paradigm also require acknowledgment and discussion. First, such a system can only act as a complementary approach to the rule based approach, at least until the electorate and the new paradigm reach a level of maturity. It may take many election cycles to achieve this. Second, it may be argued that a constituency level performance report may at best be a proxy for candidate performance, which it may or may not directly reflect. While there is merit in the observation, a constituency based report is considered advisable as being a more objective tool. Further, it may be argued that such a performance report based decision tool would be inherently biased in favour of the incumbent. Two mechanisms are prescribed to overcome this issue: one, the “credit” or attribution of the performance to any candidate should be avoided it is with this in view that the information is provided constituency-wise and not candidate-wise; second, not just state sponsored programs, but all development outcomes, regardless of agency, is to be included in the performance report. It is also evident that the performance report is no panacea for all that ails Indian elections and democracy; however it is hoped that this is a necessary steps towards refining and maturing the process of elections in India.

VI.

CONCLUSION.

The paper began by reviewing the current thinking on electoral reforms, and explains the limitations of electoral reform by supply side regulation. It then proceeds to develop a conceptual framework that describes an alternate mechanism: demand side reform through information dissemination of constituency-wise performance reports. It then provides details on how such an operation can be strategically rolled out and its limitations. Regular elections in India give citizens an opportunity to review and change their representatives. The key question this paper attempts to address is how an intervention through the electoral marketplace that ensures that citizens are equipped via information to leverage these opportunities to ensure desirable outcomes and election legitimacy. It argues that this leverage can be provided by public distribution of information on key performance indicators of constituencies.

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15 Iyer, R. R. (1996, January 6 ). The Election Commission and the Judgment. Economic and Political Weekly, pp. 37-42. Katju, M. (2006, April 29 ). Election Commission and Functioning of Democracy. Economic and Political Weekly, pp. 1635-1640. Khemani, S. (2013). Buying votes vs. supplying public services : political incentives to under-invest in propoor policies, Volume 1. World Bank. Retrieved from http://econ.worldbank.org/external/default/main?pagePK=64165259&piPK=64165421&theSite PK=469382&menuPK=64216926&entityID=000158349_20130128102901 Kumar, B. V. (2001, June 16). Criminalisation of Politics and Election Commission. Economic and Political Weekly, 2119-2121. Law Commission of India. (February 2014). ELECTORAL DISQUALIFICATIONS: Report No.244 of the Law Commission of India. GOVERNMENT OF INDIA. Retrieved from http://lawcommissionofindia.nic.in/reports/report244.pdf Mohinder Singh Gill v. Chief Election Commissioner, 1 SCC 405, 424 at para 23 (Supreme Court of India 1978). North, A. (2013, September. 25). Why do many India MPs have criminal records? BBC News. Osborne, E. (2001). Culture, development, and government: Reservations in India. Economic Development and Cultural Change, 49(3), 659-685. People’s Union for Civil Liberties, Lok Satta & Association for Democratic Reforms vs Union of India and another, WRIT PETITION (CIVIL) NO.490,509, 515 OF 2002 (SUPREME COURT OF INDIA 2003). Rahat, G. (2004). The Study of the Politics of Electoral Reform in the 1990s: Theoretical and Methodological. Comparative Politics, 36(4), 461-479. Rai, S. M. (1999). Democratic institutions, political representation and women's empowerment: The quota debate in India. Democratization, 6(3), 84-99. Reddy, J. B., Seth, L., Ghatate, N., & Jain, S. C. (1999). 170th Report on Reform of the Electoral Laws . New Delhi: Law Commission of India. Sastry, T. (2014). Towards Decriminalisation of Elections and Politics. Economic and Political Weekly, 4. Schaffer, F. C. (2007). Elections for sale: the causes and consequences of vote buying. London: Lynne Rienner Publishers. Sridharan, E. (2012). Campaign Finance Reforms in India: Issues and Challenges. Observer. Union of India vs Association for Democratic Reforms & Another, CIVIL APPEAL NO.7178 OF 2001 (SUPREME COURT OF INDIA 2002).

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Short note on author. Practitioner, scholar, policymaker, author and mother, Kalpana Gopalan’s 27 year work experience in the Indian Administrative Service & public policy research spans urban and rural development, land management, infrastructure and public private partnerships. Kalpana holds a Masters and PhD from the Indian Institute of Management Bangalore and was Visiting Fellow in McGill, Concordia, Salerno, Syracuse & Sussex Universities. She is Advisor to Greater Bangalore City Municipal Corporation; researches with Institute of Social & Economic Change, Indian Institute of Science, Indian Institute of Management Bangalore, National Institute of Urban Affairs New Delhi and Kuvempu University, Shimoga; and associates with the Grassroots Research & Advocacy Movement, Mysore and Centre for Youth and Development Mangalore for social sector activities. She lives in Bangalore and presents and publishes globally. The views in the article are hers alone, and meant purely for academic discussion only.