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Right to Recall Legislators: The Chhattisgarh Experiment

The recall election in June in three municipal bodies in Chhattisgarh marked a national first in the call to accountability of non-performing representatives of the people. However, it is possible to use this provision to settle political scores as has been alleged in the Chhattisgarh case. Loopholes for such abuse need to be removed to make the right to recall a democratic tool that will ensure accountability.

COMMENTARYEconomic & Political Weekly EPW october 4, 200815in labour law cases, for the citizen or the state in judicial review cases’.Incidentally Pannick deprecates the practice of counsel giving “a radio inter-view to explain and justify the submis-sions he has been making in Court”.The “cab-rank” rule was written into the Courts and Legal Services Act, 1990. Our Rule 11 also has statutory force. Lord Ackner calls it “a point of constitutional importance” for good reason. Civil liber-ties are tested in unpopular causes. Law-yers who defend the unpopular ones in court perform a vital role in the admini-stration of justice.Easily the finest statement of the dutiesof counsel was made by Thomas Erskine in his celebrated defence of Tom Paine when he was tried in 1792 for a seditious libel: I will forever, at all hazards, assert the dignity, independence, and integrity of the English Bar, without which impartial justice, the most valuable part of the English Constitution, can have no existence. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liber-ties of England are at an end. If the advocate refuses to defend, from what he may think of the charge or of the defence, he assumes the character of the judge, nay, he assumes it be-fore the hour of judgment; and in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused, in whose favour the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel (Howell’s State Trials, 1816, Vol XII, p 411).Mushirul Hasan, vice chancellor of Jamia Millia University, has, by deciding to provide legal aid to two students of the university who have been arrested for al-leged acts of terrorism, acted in this fine tradition. He has additionally discharged his duty as paterfamilias towards his stu-dents. It does not lie in the mouth of the Bharatiya Janata Party to criticise his de-cision, considering that L K Advani and other leaders of the BJP were found prima facie guilty of the destruction of the Babri masjid in 1992 by a magristrate and a sessions judge. Mushirul Hasan deserves our support for his decision.Right to Recall Legislators: The Chhattisgarh ExperimentVinod BhanuThe recall election in June in three municipal bodies in Chhattisgarh marked a national first in the call to accountability of non-performing representatives of the people. However, it is possible to use this provision to settle political scores as has been alleged in the Chhattisgarh case. Loopholes for such abuse need to be removed to make the right to recall a democratic tool that will ensure accountability.The electorate’s right to recall legis-lators is one means of ensuring the latter’s accountability towards the people. It is the citizens’ prerogative to determine whether an errant or non-performing representative should continue in office for a full term or not, since their poor performance is at the cost of the public exchequer.The damage to democratic institutions by elected representatives should be checked through democratic means. Indeed, the right to recall legislators can be a wake-up call to our representatives in the legislative bodies. Though there were some earlier attempts at recall in local urban bodies in Madhya Pradesh and Maharashtra, the recall election held on June 15 in Chhattisgarh marked a national first with the successful recall, of three presidents of local urban bodies. The posts of these three presidents therefore fell vacant, and fresh polls are to be held within six months. The verdicts of this election should redeem the trust of the electorate, and restore faith in a legislative system which is continually perceived to be declining in status and efficiency.In India, provision for recall of legisla-tors does not exist anywhere other than in Chhattisgarh and Madhya Pradesh. Section 47 (recall of president) of the Chhattisgarh Nagar Palika Act, 1961, pro-vides for the holding of elections to recall elected presidents for non-performance. The process of recall starts when three-quarters of the total number of elected representatives within the urban bodies (corporators/councillors) write to the dis-trict collector and demand recall. After verifying the circumstances, the district collector can report to the state govern-ment. 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 legislators is a direct democratic method for removing an elected representative from office for his/her non-performance or misuse of the posi-tion. It must be noted that the panchayat raj acts aimed to establish a system of direct democracy by increasing decentra-lisation and empowering village legisla-tive bodies for development of villages. Initiative, referendum, and recall are the most common tools of direct demo-cracy; however, these instruments are noticeable by their absence in the panchayat raj systems. It is only when we start putting into practice these mechanisms, as demonstrated by the recall polls in Chhattisgarh, that we can institutionalise direct democracy and Vinod Bhanu (vinudirect@gmail.com) is with the Centre for Legislative Research and Advocacy, New Delhi.

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