Democratic form of Government has been held to be an important feature of the basic structure of our Constitution.However, in actuality we have only the farce of democracy rather than real democracy. This is borne out by a scrutiny of the results of the Lok Sabha Elections 2004 and UP Assembly General Election 2002.Out of the 80 seats of Lok Sabha from UP only nine winning candidates could secure more than 50% of the votes polled and 20 candidates could not secure 33% of the votes polled. Likewise in the State Assembly Elections only 16 out of 401 winning candidates could secure more than 50% votes polled whereas 23 could not get even 25% of the votes polled. The picture becomes more dismal with regards to the votes polled by the winning candidates out of the total voters in the constituency.Even candidates who got votes of only 11 or 12% of the total voters in the constituency were declares elected for the Lok Sabha in 2004 and only 6 could get votes pf the more than 25% total voters in the constituency. Likewise, out of 401 MLAs only 17 could get votes of more than 25% of the total voters in the constituency whereas 5 could not get even 10%.
This anomalous situation is the results of the flawed electoral system of ‘first past the post” embodied in the provisions of the Sections 65 and 66 of the Representation of the People Act 1951 and Rule 64 of the Conduct of Election Rules 1961. These are at variance with the nstitional provision for choosing MP and MLAs. Whereas Articles 81 and 170 requires them to be chosen from the constituency, the Act and the rules provide that the candidate getting the highest number of votes hall be declared elected.There is a world of difference between the two. Whereas, the can candidates getting the highest number of votes may be said to be elected by the voters who voted for him, he cannot be said to be chosen by the constituency unless he has the support of majority voters of the constituency, or at least the majority of voters exercising their right of franchise. The word “choose” denotes a single entity doing it. When a group has to choose, it has to choose as if the group is one entity. Choosing does not fracture the chooser while electing fractures the elector. That is why if choosing is being done by a group, it has to be by consensus,or by a clear majority.
The word “suffrage” finding place in Article 326 of the Constitution also guides us in the same direction. Suffrage does not go comfortably with the first past the post system. As per the Oxford Dictionary, when used in the context of a group, the word suffrage means “the collective vote of a body of persons” and “the collective opinion of a body pf person, hence contextually, consensus of opinion (common and general) consent”.
Thus, as a results of the faulty unconstitional provision in the Act and the Rules the so called public representatives are not chosen by their constituency, but generally represent only the will of minority of the voters casting their votes,and not the will of the electorate of their constituency, or even of those exercising their right of franchise.
Moreover, to equate those getting less than 50% votes polled with those who polled more than 50% votes is also not legally correct and proper as according to the well settled law laid down by the Apex Court eating unequal as equal is also violation of Article 14 of the Constitution.
In the existing electoral system the member of seats won by a party has also no correlation with the percentage of votes polled by it. Hence the number of seats won by a party is not a true index of its popularity among the voters and, therefore does not reflect correctly the will of the people. The existing system of first past the post is faulty for this reason also. Thus, it is also violative of Article 19(1) of the Constitution as it stifles the will and voices of the majority of we the People. The expression “freedom of speech and expression” which in the case of Peoples Union for Civil Liberties, has been given the meaning to include citizens’ right to know the antecedents of the candidates will certainly include right to be represented in Lok Sabha and State Assembly. The MP/MLAs look after the interest of their voters only and the vast majority of the voters who do not vote for them have no voice in Parliament and Assembly. Thus the present system is against the basic structure of the Constitution as it amounts to negation of democracy and also fails to ensure free and fair elections,which is the basic requirement of democracy. As held by the Apex Court in 2001 7 SCC 126 “Parliamentary democracy envisages representation of the People” ( which is missing at present) and “the legitimacy of the law would be to ensure that the role of the political sovereign- the People is not undermined” (which the existing provisions fail to ensure),Instead it gives undue weight age to the dominant caste/community and fosters and reinforces divisive tendencies of castes and minorityism instead of checking them as emphasized recently by the Apex Court.
