Right To Recall: Applicability In The Present Scenario and Relevance In Future

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Right To Recall: Applicability In The Present Scenario and Relevance In Future

Introduction and Meaning

The songs of any era best reflect the prevailing conditions of that time. And when the lyrics of a bollywood song go like, “Apna kaam banta, bhaad mei jaye janta; goongay behron ki nagri kaun kisi ki sunta” (if our own work is getting done, why care about other people; this place belongs to the deaf and dumb and no one caters to anyone’s needs), then it’s not difficult to understand the gap that exists between the ideals enshrined in the written word and the inability to bring them into reality.

Right to recall is the right given to the public that gives them the power to remove the underperforming and overpromising elected leader before the completion of his or her term in the office to which he or she is elected. It acts as a Damocles sword which hangs over the head of politicians. Recall procedure involves the assessing of performance of an elected leader by the people on their own and if it seems to be unsatisfactory, then they can be removed, the grounds for which can vary.

International Perspective

It is in operation in the US, Switzerland, Venezuela, Canada and Philippines. In USA, different States have different grounds for recalling the elected representatives.

Grounds for Recall in the US:

Alaska:  Lack of fitness, incompetence, neglect of duties or corruption (AS §15.45.510)

Georgia:  Act of malfeasance or misconduct while in office; violation of oath of office; failure to perform duties prescribed by law; wilfully misused, converted, or misappropriated, without authority, public property or public funds entrusted to or associated with the elective office to which the official has been elected or appointed. Discretionary performance of a lawful act or a prescribed duty shall not constitute a ground for recall of an elected public official. (Ga. Code §21-4-3(7) and 21-4-4(c))

Kansas: Conviction for a felony, misconduct in office, incompetence, or failure to perform duties prescribed by law. No recall submitted to the voters shall be held void because of the insufficiency of the grounds, application, or petition by which the submission was procured. (KS Stat. §25-4301)

Minnesota:  Serious malfeasance or nonfeasance during the term of office in the performance of the duties of the office or conviction during the term of office of a serious crime (Const. Art. VIII §6)

Montana:  Physical or mental lack of fitness, incompetence, violation of oath of office, official misconduct, conviction of certain felony offenses (enumerated in Title 45). No person may be recalled for performing a mandatory duty of the office he holds or for not performing any act that, if performed, would subject him to prosecution for official misconduct. (Mont. Code §2-16-603)

Rhode Island:  Authorized in the case of a general officer who has been indicted or informed against for a felony, convicted of a misdemeanor, or against whom a finding of probable cause of violation of the code of ethics has been made by the ethics commission (Const. Art. IV §1)

Virginia:  Neglect of duty, misuse of office, or incompetence in the performance of duties when that neglect of duty, misuse of office, or incompetence in the performance of duties has a material adverse effect upon the conduct of the office, or upon conviction of a drug-related misdemeanor or a misdemeanor involving a “hate crime” (§24.2-233)

Washington:  Commission of some act or acts of malfeasance or misfeasance while in office, or who has violation of oath of office (Const. Art. I §33)

Source: National Conference of State Legislatures, July 2011

Origin Of The Recall

The term recall is associated directly with the word ‘democracy’, which is an amalgamation of two Greek words meaning ‘power of the people’. There was no need of a corrective device, such as the recall, in the historic New England open town meeting because assembled voters enacted all bylaws. Elected administrators were not subject to recall but served the short term of one year and exercised little discretionary authority in carrying out the policies adopted by the annual town meeting and, if any, special town meetings. In 1915, Frank F. Abott traced origin of recall to ancient Rome in the year 133 BC when Tribune Octavius was removed from office by a vote of the people because he voted a Senate Bill. The first authorisation for the use of recall in the United States is found in the Declaration of Human Rights.

In India, the bold initiative to demand the right to recall was taken by Jaiprakash Narayan in 1974 during Total Revolution against Indira Gandhi. After this, the Janata Party tried to implement it, but in vain. Currently, the right to recall legislators is being practiced in Indian States of Madhya Pradesh and Chhattisgarh at the local body level. In 2008, right to recall was used as per Chhattisgarh Nagar Pallika Act 1961. Bihar Government is planning to bring in this feature to empower people at Panchayat/ Municipal level. But, it has largely remained notional. It has also been under a lot of debate ever since activist Anna Hazare’s movement to revolutionise the political system rose up.

Positive Impacts of the Right To Recall

The right to recall helps to reinforce the concept of democracy. The legislators derive their authority from people so all the people should have right to recall the legislators. It results in greater accountability since legislators cannot take their post for granted and may have to stay on their toes all time round. It enforces values and ethics and also acts as a check on corruption.

Cautious Exercise of the Right To Recall

It leads to excess of democracy and this will hamper the independence of legislators. The legislators are expected to plan policies and schemes keeping in mind the greater good with recall in place. Legislators might become indecisive being afraid of the reaction of people if the decision goes wrong.

Moreover, it might lead to a waste of time and useless over-expenditure. The voters are expected to choose the right representatives in the first go as there is no guarantee that the people who cannot choose the right candidates the first time can do it with the second chance, especially in countries like India where the influence of money, manpower and alcohol cannot be ruled out in election times. It poses another threat of leading to weakening of democratic principles as the role of representatives would get undermined and their authority might be challenged. It can threaten the independent working of good officials as the sponsored, well-financed and politically motivated groups might challenge their authority and make them cater to their own needs. Poverty, lack of awareness and availability of resources in a few hands can also act as barriers in exercising the correct choice.

Conclusion

In an era when elections are largely manipulated by businessmen and media houses owned by them, it is not difficult to understand that the confidence before elections can turn into over-confidence afterwards while promises made to the public can turn into personal favours. In this situation, only a right to recall can act as a firefighter to rescue from the situation. Right to recall is a power in the hands of people, which, if used wisely, can help to establish real representatives who serve the people and represent the interests of their constituents instead of their own. Hence, in future this right can become a major tool that would make the representatives accountable for their actions.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Gurjot Singh Khurana

The writer is pursuing BA. LLB (Hons.) at the University Institute of Laws, Panjab University Regional Centre, India. He is a presenter, debater and theater artist and is also associated with anti-drug, blood donation and cleanliness awareness campaigns.