Analysis: Right to Recall

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The right to vote is perhaps the simple most right. As such, it is known to every citizen. And yet, the inherent value of this right still remains unexplored and unknown.

Right to Recall (RTR) confers the electorate a right of recall that can be initiated by any elector within a particular constituency through a recall petition signed by not less than one-fourth of the total number of electors. It is found in many contemporary constitutions. Canada and the US also allow the right to recall on the grounds of misfeasance and misconduct.

With a view to strengthening the functioning of a democratic system of government, the intrinsic value of the right to vote in terms of its nature and ambit is required to be constitutionally explored, understood, and appreciated. This would, in turn, prompt the citizens to go to the polling booth and not just to vote but exercise their right to elect their representatives in the light of their judgment. The right to vote could be usefully invoked and applied in making various political arrangements truly functional and thereby provide impetus to the democratic system of governance. The masses are required to be encouraged to participate and exercise their right to vote in the first instance. This indeed was the message of the President of India to the nation on the eve of 65th Republic Day when he said that “each one of us is a voter and has a responsibility. We cannot let India down. It is time for introspection and action. Fractured government can prove catastrophic, cautioned the President, for such a regime is “held hostage to whimsical opportunists. With the increasing participation of citizens, the possibility of a ‘fractured’ mandate is considerably reduced, because, notwithstanding illiteracy coupled with poverty of the large section of our population, their collective vision of a relatively good government they would like to have cannot be faulted

The Right to Recall is not a modern-day concept. Ancient Athenians had a social custom under their unique democracy. In the sixth month of their 10-month calendar, all the people were asked in their assembly whether they wish to hold an ostracism. If the majority wanted it, ostracism was held after some time. Citizens wrote down names of those they wished to be ostracized on shards of pottery. Shards were deposited in a container, and after counting them, whoever had the largest pile of the pieces was banned from the city for ten years. The modern-day right to recall concept is a direct successor of such methods. Canada’s Legislative Assembly of British Columbia has this provision since 1995. In the USA, states of Alaska, Georgia, Kansas, Minnesota, Montana, Rhode Island, and Washington have it. Venezuela, the Philippines, and Switzerland also have a law to recall. In India, the concept has its roots in Vedic times when the lack of effective governance was a cause for the removal of a king.

Recall around the world

There are few examples of a successful recall process where recall was introduced as a populist movement. US constitution does not make provisions for the recall of us senators, representatives to Congress, or the president or vice-president of the country. However, in some states, recall efforts against state legislators come up once in a while. The recall device began in us in the municipality of Los Angeles in 1903. There are some partly successful recall efforts in California, where only four recall petitions qualified for the ballot among 107 recall efforts initiated from 1911 to 1995.

In Canada also, support has been growing for the recall measures. The popularity of the recalled instrument is not in question. The Reform Party of Canada has recalled as a part of its political agenda, and the recall bills were introduced in parliament through a private member’s bill (Marquis 1993).

In Uganda, the constitution itself provides the right of recall to its citizens. Electorates of any constituency and any interest groups (referred to in article 78) have the right to recall their MP from office before the expiry of the term of parliament on any of the following grounds: Physical or mental incapacity, rendering that member incapable of performing the functions of the office; or Misconduct or misbehavior likely to bring hatred, ridicule, contempt or disrepute to the office; or Persistent deserting of the electorate without reasonable cause. The process, in Uganda, requires a petition writing setting out the grounds relied on and signed by at least two-thirds of the registered voters of the constituency or the interest group and the petition to be submitted to the speaker.

 In Guyana, the national assembly recently passed recall legislation. It will enable representatives of parliamentary parties to ask the speaker of the national assembly to declare a seat vacant because the party has lost confidence in a party member. This recall power is not with the electorate but with the parties in Guyana. This legislation was aimed at addressing the issue of crossing the floor or defection. In Switzerland, the provisions for recall currently exist but are seldom used. Venezuela, where the president is elected directly and may be subject to recall, is unique in applying the system very broadly. Countries like Sweden, New Zealand, Zambia, and Germany are also reported to have started debating the recall process of incompetent and corrupt elected members as an essential democratic tool for ensuring accountability among the people’s elected representatives of the recall should not be mishandled. An infallible mechanism without any loopholes, with complicated rather than stringent measures, can add to its significance. Overuse and misuse of the recall process cannot be permitted at any cost.

The need for recall in India

The debate over recall of elected representatives has a long history in the Indian democracy; the matter was discussed in detail in the Constituent Assembly. Several members thought that the Right to Recall must accompany the Right to Elect. The voters must be provided with a remedy ‘if things go wrong.’ However, Dr. B R Ambedkar did not accept this amendment. Some Constituent Assembly members argued that the ‘Recall’ provision would help strengthen the democratic system. Others felt that it would be improper to provide a Recall provision at the infancy of the Indian democracy. 

Humanists such as MN Roy and politicians such as Jayaprakash Narayan have spoken extensively on introducing the right to recall in our electoral system. When Somnath Chatterjee was Lok Sabha Speaker, he also sought to install the right to recall to ensure accountability. Constitution (Amendment) Bill about Voters’ right to recall elected representatives was introduced in Lok Sabha by C K Chandrappan in 1974. Atal Bihari Vajpayee had supported this, but the bill did not pass. BJP MP Varun Gandhi introduced a private member bill, The Representation of the People (Amendment) Bill, 2016 in Lok Sabha. With the increasing impulse of manipulating democracy for the benefit of specific individuals or political outfits, the urgency of having and enforcing the right to recall must be felt with all its seriousness. If the people have the power to elect their representatives, they should also have the power to dismiss them when they engage in misdeeds or fail to fulfill their duties.

It seems that the world’s largest democracy is still hesitant in maturing into a participatory democracy by ignoring the need to introduce the right to recall provision which first appeared in the government agenda in 1977 when the Janata Party was in rule. It was again discussed passionately during the tenure of the National Front government in 1989. Sardar Vallabhai Patel expressed his opinion during this debate by saying, “If there are any stray instances or some black sheep who has lost the confidence of their Constituency still want to continue to represent the Constituency in the House, for some such bad instances we should not disfigure our Constituency. We should leave it as it is, to the good sense of the members concerned”.

Scope for Misuse of RTR

The right to recall would enable the electorate to exercise control over their representatives who do not pay enough attention to their constituents. Recall as a direct democracy mechanism, the critics of direct democracy point out it weakens representative democracy by undermining the role and importance of elected representatives. Since it is unlikely that any democratic system will ever be purely direct, weakening elected representatives harms the democratic system. It is also argued that direct democracy disciplines the behavior of elected representatives, ensuring that they fully consider the likely views of voters when making decisions on their behalf. The other side of the argument is that there would be many potential cases of abuse of this power. Special interest groups can misuse it with money power, and genuine politicians may become victims of this power; even the prime minister and other ministers may be threatened under the sword of recall. A possible recall election may pose a threat to the independence of elected members and can lead to an ” excess of democracy. The likely financial and administrative burden of holding recall vote also may be a matter of issue.

Nevertheless, the recall process enables to re-engage citizens with politics and democracy. MP’s accountable to constituents for performance and the integrity of their conduct activities on behalf of the people. The electorate recognizes the legitimacy of their representation. However, legitimacy cannot be taken for granted, and the principle of accountability cannot be an abstraction. The accountability of elected representatives must convey functional reciprocity. They are accountable to their electorates for their performance in office. There has to be an effective procedural and institutional mechanism for realizing accountability through effective electoral sanction and systematic monitoring process, reporting procedures to inform constituents, standards and enforceable code of conduct, Etc. There is a distinction between horizontal and vertical accountability. Horizontal accountability is effectuated by regulatory and other supervisory bodies composed of officials acting on behalf of the public. The public itself mandates vertical accountability through various mechanisms, including elections, complaint procedures, legal redress, the activities of civil society, organizations, etc. The public sphere is typically a combination of both horizontal and vertical that ensures effective accountability.

Various experiment of RTR

In India, provision for recall of legislators does not exist anywhere other than in Chhattisgarh and Madhya Pradesh. Section 47 (recall of president) of the Chhattisgarh Nagar Palika Act, 1961, provides for the holding of elections to recall elected presidents for non – performance. The recall process starts when three-quarters of the total number of elected representatives within the urban bodies (corporators/councilors) write to the district collector and demand recall. After verifying the circumstances, the district collector can report to the state government. Once the report has been considered, the state government can recommend that the state election commission conduct an election to recall the presidents. The right to recall a legislator is a direct democratic method for removing an elected representative from office for his / her non – performance or misuse of the position. It must be noted that the panchayat raj acts aimed to establish a system of direct democracy by increasing decentralization and empowering village legislative bodies for the development of villages. The initiative, referendum, and recall are the most common tools of direct democracy. However, these instruments are noticeable by their absence in the panchayat raj systems. When we start putting into practice these mechanisms, as demonstrated by the recall polls in Chhattisgarh, we can institutionalize direct democracy and ensure accountability for the elective representative of the people.

In Chhattisgarh, there was a two-year moratorium on the use of the recall provision under the act. The urban municipal body should have completed at least two years of existence before initiating such a recall process against the presidents. Soon after this period of moratorium, the recall process began in January 2007 to respond to reported underperformance. Two of the three presidents recalled are from Congress, and the third was an independent candidate. As per Section 47, three-quarters of the councilors initiated the process by writing to the district collector stating that they had lost confidence in the presidents and requested their office removal.

In 2001, Madhya Pradesh amended its Panchayat Raj Act and gave voters the right to recall their non-performing elected representatives. The 17-year-old incident of Palavika Patel, the former president of Anuppur municipality in Madhya Pradesh, India, and Gray Davis, former governor of California, USA, are two distinct fall-outs of participatory democracy. In 2002, voters of extremely poor Anuppur; and, in 2003, voters of extremely rich California exercised a similar constitutional right, the right to recall an elected representative for non-performance. Patel and Davis were removed from their positions. California’s legislation making has inspired 18 other states in the USA to have adopted the measure. Nevertheless, Madhya Pradesh’s local governance system could not excite India’s legislators in more than one-and-a-half decades.

The right to recall is very crucial in today’s circumstances. The California recall election, the second in the history of the USA due to cuts in the education budget and general economic mismanagement or the impeachment proceedings against President Donald Trump due to subversion of democratic ethics are the illustrations of how a mature republic should function. Why shouldn’t India, a more than seven decades old democracy, have a right to recall those who ruined its economy, its social fabric and are subverting the democratic institutions at their whims? Unfortunately, India is witnessing a constant rise in unethical and irresponsible behavior on the elected legislators. Numerous instances could demonstrate the said proposition. The role of the representatives in the decision-making is becoming marginalized with each passing day. The largest democracy is not the most effective one. It can be corrected only by putting ‘Right to recall’ in place as an accountability tool par excellence.

CONCLUSION

The right to vote should eventually include the ambit of the right to recall. it will be based on a simple axiomatic premise that the ‘right to do’ inheres the ‘right to undo.’ It would, in turn, accentuate the process of systemic change at least with two evident advantages. The current system is seriously flawed because voters have to wait for five years for electoral sanction to remove a person from office even if he shirks accountability. The right to recall can be an effective method by which accountability is ensured in a democratic state. Recall elections will undoubtedly send a solid message to delinquent legislators. It would make representative more accountable on a continual, day-to-day basis, leaving little time and space for them to have recourse to manipulative practices, say, for massive wealth through corrupt means.

Author: Mohammed Raihan, Christ University.

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