National Law School of India University

Bangalore

Elective Course on

Democracy, Election Laws and Inclusive Governance

V Year XIII Trimester (July-September 2017)

Course Teachers

Prof S N Sangita, Prof Mallar and Prof Vijaykumar

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Course Introduction
India has adopted democracy (parliamentary and federal form of government,

voting and fundamental rights to all irrespective of religion, sex, literacy) with

independent institutions (judiciary; commissions to protect, human rights,

women, SC/ST, election commissions; bureaucracy) to govern the diverse groups

and accelerate development and promote social justice. Many affirmative action

(reservation in employment, and seats in legislative and educational institutions)

and pro-poor policies (land reforms, poverty reduction, and social security -

right to employment, food, and education) have been introduced for the

upliftment of disadvantaged groups.

In spite of these initiatives during the last seven decades, India has not able to

achieve inclusive governance and sustainable and equitable development. A

significant section of our population continues to be poor, malnourished,

unemployed and illiterate. Human development index is very low; corruption is

high; ethnic (religion, caste, language and so on) tensions and conflicts are

widespread; disparities among regions and classes are increasing; human rights

violations are on rise; radicalism and fundamentalism are spreading to a number

of districts. So is criminalism and corruption. This can be attributed partly to

election laws governing the elections and political parties for the selection of

responsive and accountable leaders to promote inclusive governance.

Learning Objectives
This course helps the students to understand the basic concepts and theories

related to democracy (Election Laws, Political Party Laws, Political Finance Laws,

Campaign Laws and Parliamentary Law) and inclusive governance from

interdisciplinary approach bringing together the normative perspective of law

with the analytical perspectives of social sciences. This also enables the student

to familiarise with the existing election legal framework (laws, cases,

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enforcement machinery), as well as to assess its effectiveness in conducting

free, fair and periodic elections for improving the quality of democracy and

promote inclusive governance. Ultimately the course aims to strengthening

students analytical skills to evolve/apply appropriate legal instruments and

policies to prevent and control electoral malpractices (particularly influence of

money, criminal and communal power) and elect responsive and accountable

leaders.

It uses case studies, debates, group discussions, theme presentations and items

from the news to examine how electoral malpractices can affect legitimacy of

democracy, good governance at the national and international levels. It also

examines how new technologies and civil society innovative interventions can

improve the quality of election management and democracy.

This course introduces various aspects of current thinking and debates about

electoral reforms in the context of globalisation, democratic decentralisation,

RTI, technological revolution, civil society/ peoples assertions/ movements and

recommendations of various commissions (National Constitutional Review

Commission, Second Administrative Reforms Commission and Law Commissions)

and reports.

Learning Outcomes
A student who completes this course should be able to:

Define democracy, features of democracy, Type of democracy and

prerequisites for success of democracy, and measurement of democracy

Understand the relation of democracy with the state, civil society/

culture, market(globalisation), electoral system, rule of law, political

parties and citizen and its implication on quality of democracy(responsive

and accountable leaders).

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 To understand, how election laws affect and distorts free and fair

elections and thereby selection of responsive, honest and accountable

leaders which has profound influence on Polity (legitimacy, and political

stability, democracy, rule of law, trust), economy(growth, development,

investment, employment, efficiency) and society(social harmony, poverty,

inequality, human rights violation, atrocities, social conflicts, crime and

extremism) and sustainable development(climate change)

Evaluate the limitations of the existing election laws to prevent and

control electoral malpractices

To understand the relations between political parties and electoral mal

practices particularly financing of election and prevention of criminalism

and communalism

Understand autonomy and accountability of Election Commission to

conduct free and fair elections

Engage with government, civil society and the private sector to develop

and implement effective electoral laws to promote inclusive governance;

The course has been divided into ten modules of six hours each as given below.

1.0.0 Democracy: Ideas, Foundations and Significance

1.0.1 Democracy: Ideas and Issues

1.0.2 Foundations of Democracy

1.0.3 Significance of Democracy

1.0.4 Elements of Democracy

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1.0.5 Democracy and its relation with State, Civil Society, Market, Rule of Law,

Political Parties and Electoral System

1.0.6 Democratic principles in administration: permanent executive and popular

politics

2.0.1 Elections, Political Parties and Quality of

Democracy
2.0.1 Elections (Free and Fair), Leadership and Trust in Democracy

2.0.2 Electoral System and Democracy; Types of Electoral System: Majoritarian

(First Fast the post, Two round, Alternative); Proportional Representation

(Party list proportional, Single transferable vote) and Mixed System;

2.0.3Party System (dominant, Two Party and Multi-Party) and Functioning of

Democracy

2.0.4 Political Parties (Internal Democracy and Transparency) and Leadership-

Laws relating to regulation of political parties)

2.0.5 Regional parties versus national parties in various countries advantages

and disadvantages

3.0.0 Democracy in India: Unique Features and

Achievements
3.1.1 Unique features of Indian Democracy: How does India sustain democracy

when it failed in many developing countries? How does India differ from

developed countries in introducing and consolidating democracy? How does India

maintain unity and integrity of nation, where many countries (such as Pakistan,

Soviet Russia, and Yugoslavia) have failed?

3.1.2 What are its major achievements in other fields?

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3.1.3 Access issues in democracy and political parties increasing access to

public offices for heretofore disenfranchised groups: women in political

positions, dalits in high public offices and so on.

4.0.0 Indian Democracys Disappointments: India and China

started the journey at the same time (1947 for the former and 1949 for the

latter) with some advantages to India in terms of economic development and

international trade. However, after seven decades of journey, China (without

democracy) is much ahead of India in terms of economic development and human

development including poverty reduction. Same is the case with other Asian

countries like Singapore, South Korea, Taiwan, Indonesia, and Malaysia. At the

same time, India is known for the most corrupt country in the world according

to Transparency International. Even, in some other indicators like communal

conflicts and human rights violations, Indias performance is not satisfactory. In

human development index, Indias rank is not up to the mark.

The main issue here is to what extent, this can be attributed to laws related to

Democracy, Political Parties and Elections?

5.0.0 Legislative Bodies: Composition, Powers, Functions,

Leadership and Performance (over the years)

5.2.0 State Legislatures: Composition, Powers, Functions (168-193) and

Performance

5.3.0 Local Governments/Legislators (Rural and Urban): Composition, Powers,

and Functions (73 and 74 Constitutional Amendment) and Performance

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5.4.0 Reservations of seats: SCs/STs in central, state and local legislative

bodies, besides Women/OBC in local bodies (Nomination of Anglo-Indians).

5.5.1 Privileges of legislatures (Parliament and state legislatures)

6.0.0 Political Heads/ Positions of Governments

6.1.1 Vice president (Composition, Powers and Functions (63-71) and Ministers

6.1.2 Governor

6.1.3. Elected Heads of Local Governments (Rural and Urban)

6.1.4 Leader of opposition

6.1.5 Role of cabinet and council of ministers

Does the existing election law facilitate the selection of competent and

committed leaders to reflect the needs and aspirations of the people? To what

extent the reservations in legislative bodies have empowered the marginalized

groups? How effective are the legislatures in enacting sound laws and ensuring

accountability of the executive? Whether leaders are responsive and

accountable to the citizen? If not, How to make our election laws effective and

responsive in this regard?

What is the role of anti-defection law to prevent political expedience? Is there

any need to amend the constitution to create and abolition of State Legislative

Council?

7.0.1 Law, Political Parties and Inclusive Governance

of parties (recognition of national and state parties)?

Are there any comprehensive Laws relating to internal democracy (regular

elections, award of tickets, consultations/meetings) and transparency

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(membership, finances)? How do the political parties select the candidates to

run for the office?

In the absence regulations, political parties are controlled by persons without

ideology and principles (Some of them depend on populism, emotionalism and

money power to win the elections.)

How this problem has been addressed in other countries)?

8.0.0 Electoral Governance (Constitutional Provisions for

Electoral System and Processes

8.1.2 Election Commission: Critically evaluate its autonomy, accountability and

efficiency in conducting free and fair elections to enjoy the trust and

confidence of the people? Indian Election Commission and elections are most

respected in the world, although electoral malpractices are prevailing. Are you

in favor of giving more powers to Election Commission particularly under Anti

defection law?

8.1.3 Expansion of the Election Commission to include 2 more election

commissioners in 1990s: reasons, impact, and future

9.0.0 Laws, Electoral Processes and Outcomes

9.2.0 Who are entitled to vote, procedure to register vote and issue of Identity

cards to vote

9.3.0 Who are entitled to hold office, procedure for submitting

nominations/rejections?

9.3.1 Recognition and Allotment of Symbols to Political Parties

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9.4.0 Supervision and Monitoring of Elections particularly irregularities and

frauds

9.5.0 Exit Polls and Opinion Polls

9.6.0 Declaration of Results and Disqualification of candidates

9.7.0 Election Disputes: Role of Election Commission and Courts

9.8.0 Election Finances: Cap on expenditure and donations and disclosure

9.9.0 Constitutional restriction on constituency demarcation and linkage to

population demographics

9.10.0 Protections against gerrymandering in India (compared to USA)

10.0 Reforms in Legal Framework of Elections and

Political Parties for Promoting Inclusive Governance

10.1.2 Effective Law to Prevent and control of Communalism in elections

10.1.3 Extension of RTI Act to political Parties

10.1.4 Law relating to Transparency in Finances and Expenditure of political

Parties; Financing of Elections (contribution limits, disclosure of contributions)

10.1.5 Law and Party System for regulating number, nature and quality

10.1.6 Effective Law to prevent other Electoral frauds

10.1.7 Prevention of political corruption by stringent laws

10.1.8 Disqualification of legislators: on the grounds of defection (Tenth

Schedule-102(2) and 19(2)

10.0.9 Disqualification for appointment on remunerative political post-361B

10.0.9 Effective law to prevent the influence of black money in the elections

Method of Teaching:

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The method of teaching is largely interactive and participatory. The students

read in advance the material supplied and make presentations in groups on

identified themes in the class followed by intensive discussions. Subsequently,

the written group reports (with individual names) are submitted after

incorporating suggestions. The students also prepare case studies (problem,

analysis and solution) of their choice on contemporary issues or

happenings/events/actions/rulings/judgements as home assignment.

References (Circulated separately)

Important Acts
1. The Representation of People Act, 1951

2. The Representation of People Act, 1952

3. The Presidential and Vice- Presidential Elections Act, 1952

4. The President and Vice- President Election Rules, 1974

Cases

1. Common Cause- A Registered Society v. UOI (1996)

2 SCC 752 2. Union of India v. Assn. for Democratic Reforms (2002) 5 SCC 294

3. Lakshmi Charan Sen v. A K M Hassam Uzzaman AIR 1985 SC 1233

4. K. Venketachalam v. A Swamickan AIR 1999 SC 1723 5. Gajanan Krishnaji

Bapat v. D R Meg AIR 1995 SC 2284 6. Rajendra Prasad v. Sheel Bhadra AIR

1967 SC 1445 7. Bhanu Kumar v. M. Sukhadia AIR 1971 SC 2025

8. R Y Prabhoo v. P.K Kunte AIR 1996 SC 1113

9. B. R. Kapur v. State of Tamil Nadu (2001) 7 SCC 231 10. K.Prabhakaran v.

Jayarajan Judgment dated 11 /01/2005 in CIVIL APPEAL NO. 6691 OF 2002

10 Some other cases will be circulated separately

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