BA LLB sample question and answer first semester

BA LLB sample question and answer first semester:In this post you will read about Write a critical note on Functional Representation

REPRESENTATION

Q. 1. Write a critical note on Functional Representation. So

Discuss briefly, with the help of the constitutions you have studied, the rival claims of territorial and functional representation as a basis of modern democracy.

Ans. Broadly speaking there are two methods of given representation to the electorate – territorial and functional. If the entire country is divided into territorial areas (constituencies) for the purpose of representation in the legislature, the system is known as territorial representation. On the other hand if the representation is given to the people not on the basis of territory but occupations or vocations the system is known as functional representation. In U.K., U.S.A., India etc. the popular Houses are constituted on the basis of territorial representation. This implies that all the voters residing in a particular constituency elect their representatives irrespective of their vocation. This system is based on the feeling that there exists some sort of homogeneity of interests in each locality. But in recent times this system os territorial representation has come in for a good deal of criticism. The critics of this system point out that the voters in any territorial constituency are not homogenous and do not have identical interests. In fact the people belonging to the same profession have identity of interests irrespective of the area or constituency. Distance does not separate their interests. In the second place, it is argued that under territorial representation only the majority community is represented and the minority groups do not find any representation in the government. Due to these shortcomings of territorial representation it is suggested that it should be replaced by the representation of vocations or groups, which is also known as Functional Representation.

The system of functional representation has been advocated by a number of political thinkers, notable amongst them being Mirabeau (France), Brougham (U.K.), Von. Mohal (Germany) and Duguit and G.D.H. Cole (U.K.).

According to Duguil, general will can find proper expression through the representation of various groups. No legislature, in his opinion, can be considered representative of the country till it accords representation to two great constituent elements of the state – individuals and groups of individuals. Similarly Cole said it is impossible for any

one person to represent any other person. Hence the so called representative institution that exist are misrepresentative institutions He felt that the various economic groups, such as farmers, traders. bankers, artisans, landlords, government employees and others would have separate representation in the legislature. Both Duguit and Cole believe that this system is more democratic than the system of territorial representation. Influence of Functional Representation

The theory of functional representation exercised great influence in the thirties of the present century, when the system was adopted by a number of European states. Even in U.S.S.R. at initial stages the system was practised when the All Russia Congress of Soviets consisted representatives of workers peasants and soldiers. During Mussolini’s regime the Italian Senate was also recognized on functional basis. It was composed of the representatives of various trades, professions and employees. The German constitution of 1919 also established a National Economic Council which represented the interests of labour, capital and consumers. The council was given purely advisory functions. The. Constitution of Germany required – that all draft measures relating to social and economic matters were to be submitted to the Council for opinion before they were introduced in the Parliament. In India also the system of functional representation operates on a limited scale. For example seats have been reserved for various interests in the Rajya Sabha, the Upper House of the Parliament, and the State Legislative Councils, the upper chambers of state legislatures. Criticism of Functional Representation

The system of functional representation has been criticised on a number of grounds. In the first place it is pointed out that the legislature is elected to serve the interests of the nation as a whole and not the special interest of particular classes or groups. The system of functional representation forces the people to ignore national interests and promote their particular interests. The system is therefore, inconsistent with national sovereignty. In the second place, under this system the legislature becomes a battle-ground of conflicting interests. Functional representation tends to multiply the number of economic and professional groups in the society and ultimately it become extremely difficult to decide as to how many persons of each group should be represented in the legislature. This certainly operated against the interests of national unity and solidarity. Representatives elected on

behalf of professions will, no doubt, be experts of their own professions, and possess full knowledge of their field, But they shall not have any interest, or shall have only sçcondary interest, in the subjects beyond their professions, As a result, certain subjects, like defence, foreign affairs etc. which do not fall under the purview of any special professional group, will be neglected. This is certainly bound to effect the national integrity. In the third place, it will be difficult to determine the proportion in which different groups must be represented in the legislature. It shall indeed be a vexing problem. It would be difficult to classify house-wives on the basis of their profession. So far no satisfactory system of classifying industries and occupations has been found. In the fourth place, a legislature composed on the basis of functional representation cannot -function as a deliberative chamber. By confining the choice of candidates to a particular group only second rate representatives will reach the legislature. A legislature divided into so many groups is no place for the discussion of national issues. In such a body only functional matters are considered.

A dispassionate study of the system of functional representation compels us to agree with Prof. Laski that “the principle of functional representation has such serious weakness as to make it little, if any, better than territorial representation.” In fact it is far worse a system then the universally accepted system of territorial representation. However, even the critics of functional representation recognize the need of associating these vocational groups with the work of legislation, though in an advisory capacity only.

Q. 2. What are the various methods used for the representation of minorities under a democratic system? What do you consider to be the most satisfactory method ?

Ans. In a true democracy each and every section should be proportionately represented. This implies that the majority should have a majority of representatives, but at the same time the minority should also have a minority of representatives. Under the system of election prevalent in most of the democratic countries a candidate securing 51% votes is declared elected, and a candidate securing 49% votes is defeated. This implies that minority is not represented at all. Further in each state there are political, linguistic, social and religious minorities. True democracy demands that even these minorities should able to secure some representation. J.S. Mill held that withholding from minorities a fair and equal share of influence in the representation is contrary to

all just government and contrary to the principle of democracy.’ Various methods have been suggested for the representation of minorities. Methods of Minority Representation

Various methods of minority representation have been suggested. These include proportional representation, should ballot system, the alternate vote system, the limited vote system, the cumulative vote system, and the single vole system. All these methods, except second ballot system and alternate vote system, require multi-member constituencies. Now let us examine the various methods of minority representation and analysis their merits and demerits, to ascertain which method of minority representation is the best.

1. Proportional Representation. Proportional representation aims at giving representation to all sections in proportion to their voting strength. This means that if in a general election three political parties secure 60%, 35% and 55 votes respectively they should be represented in the legislature in the ratio of 60 : 35 : 5 respectively. The system also ensures that no votes are wasted. Proportional representation assumes two forms – Single   Vote system (Hare Scheme) and the List System. Under both these schemes (i) the constituencies are mulli-member constituencies, (ii) a candidate is not elected by relative or absolute majority but by obtaining a sixed quota of votes, (iii) there is mathematically exact representation of the electorate in the legislature. Let us examine the two variants of proportional representation in some detail.

(a) Single Transferable Vote System. The system was first evolved by a Danish Minister, Carl Andrae, in 1793. In 1857 Thomas Hare of England ‘advocated this system in some detail in his book ‘Election of Representatives’. Therefore the system is also known as Andrae System and Hare Scheme, after the names of these two propounders of the scheme.

This system prevailed in England for the election of four members of the House of Commons from the university constituencies. Even in India the members of the Rajya Sabha are elected in accordance with proportional representation. The basic features of this system are as follows:

(i) The constituencies are multi-member with at least three seats.

(ii) Each voter has only one effective vote, but he can indicate his represents on the ballot paper to the extent the scats are to be filled ” For example, it from a particular constituency four seats have to

be filled up there are ten contestants for those scats, ‘he voter be required to indicate his preference against four names only by making figures 1, 2, 3 and 4.

(iii) A candidate securing a certain number of votes (known as. quota) is declared elected. The quota is determined by dividing the total number of valid votes cast by the number of seats to be filled up plus one and then adding one to the quotient. This can be clarified in the following form :

Total number of valid votes polled /Number of seats be filled up+ tone + 1 (iv) First of all only the first preference votes are counted and a candidate who reaches the quota is declared elected. This surplus first preference votes of an elected candidate, if any, are transferred to candidates not yet elected in the order expressed in the preferences. Similarly the candidature of candidate getting minimum number of votes is eliminated and his votes are transferred to the other candidates are able to reach the quota and get elected..

This system is popular in countries like Denmark, Norway, Switzerland.

(b) The List System. Another variant of proportional representation is ‘The List System’. According to this system che candidates are grouped in lists according to party affiliations. Each party presents a list of candidate equal to the number of seats to be filled up. The voters cast their vote in favour of the party and accept the order of preferences previously determined by the party. Unlike the Hare Scheme, the voter does not enjoy any freedom of choice with regard to a particular candidate. The total number of votes polled by each party is then divided by the quota, to find out the number of seats to which each political party is entitled. The quota is determined in the same way as under the Hare Scheme. If all the seats are not filled up, the party with the largest fractional surplus gets the remaining seat, This can be explained with the help of an example. Supposing the total number of valid votes polled in a eight-member constituency is 320,000 and each party secures votes as follows : Congress 160,000, BJP 60,000, Communists 50,000, Janata Party 40,000, Forward Bloc 10,000. By dividing 320,000 votes by 8 (number of seats) we get 40,000 + 1 as quota, By dividing the votes polled by each party by that quota we find the Congress gets 4, BJP 1, Communist 1, Janata Party 1. One seat still remains to be filled. Some the BJP has the largest fractional quota, this Scat will also go to them.

The list system is prevalent in Belgium, Sweden and Norway, This system is very simple as compared to Hare Scheme and can be easily.. understood by ordinary voters.

Merits and Demerits of Proportional Representations Merits

1. The system of proportional representation ensures representation of all groups and minorities according to their voting strength, and makes the Parliament a true mirror of the Public opinion in the country. Laski as remarked that under this system “There are few shades of national opinion which do not already find their expression in the legislative assembly.” Gettel also feels that ‘proportional voting represents more accurately the real wishes of the voter than the system of majority or plural voting in single-member districts.

2. The system of proportional representation gives to the minorities a sense of security and political contentment. As a result hearty co-operation of the people is available in the implementation of various programmes and projects.

3. There is no loss of votes under this system because every voter is sure that if his vote is not utilised by the candidates of his first preference, it shall certainly be used by the candidates of second, third or fourth preference, as the case may be. This creates a sense of self-confidence in the electorate, and imparts political education to the voters. The exercise of the single transferable vote along with preference is a sort of political education to the voter who has to pause and consider over his choice of the candidate.

4. The system of proportional representation also avoids the evils of ‘gerrymandering which is the inevitable result of the single-member constituency system. Demerits

Prof. C.F. Strong says that although in theory proportional representation has everything in its favour but in actual practice, there is not much. Prof. Strong admits that the system ‘undoubtedly secures the representation of minorities’ and ‘has received growing support in many constitutional states in recent years’, but he asserts that “too often those who have adopted it merely pay lip service to it particularly in the case of France where it has often been a compromise to shut the mouths of its advocates, and in some states where at the end of the First World War, it was introduced only (it is seared) to comply with

 those clauses of the Treaties designed to safeguard the rights of non-national minorities.”

The chief defects of proportional representation are as follows:

1. The system of proportional representation tends to multiply groups and parties. When every group or section is ensured. representation, there is bound to be mushroom growth of political parties with incoherent public policies. The rise of multiple party system is bound to effect the stability of the government and endanger the very existence of parliamentary government. As no single political party is able to capture clear cut majority coalition governments are the inevitable result, which by their very nature are fragile. Such governments fall whenever one section or group of the coalition withdraws its support.

2. The system destroys the national character of the legislature and encourages ‘minority thinking and class legislation. The political groups and parties do not formulate their policies and programmes in such a way as to appeal to the majority of the voters, but their appeal is confined to their respective groups and interests. That is why even Prof. Finer has said that the system ‘contributes to the aggravation of successful sectionalism.’

3. Under proportional representation the constituencies are multi-member ones and are quite big in size ; as a result it is not possible to maintain contact between the representative and their electors. Large constituencies also confuse the voters, who ca properly indicate their preferences. Prof. Strong gives the example of Belgium before Second World Wart where not less than twenty-two members were returned from one constituency, to emphasise this point.

4. The principle of transferable vote is quite complicated and confusing. An average voter finds it quite difficult to exercise his vote correctly. It also places the voters at the mercy of the counting authorities.

5. Bye-elections are a regular and recurring feature of any democratic system, but the system of proportional representation makes no satisfactory provision for bye-elections.

Other Methods of Minority Representation Apart from proportional representation there are certain other schemes of minority representation. However, these methods or schemes who no secure representation in proportional to their voting strength.

Second Ballot System. The Second Ballot system is a device which secures absolute majority for the winning candidate. In modern times instead of old-fashioned duel, there is many cornered fight for

the seats, and the candidate securing relative majority (not absolute majority) is declared elected. For example, if in a constituency lour: candidates contest and A secures 5000 votes, B 4000, C 2000 and D 1500. A shall be declared elected although B, C and D collectively have secured more votes. In other words it is just possible that the representative elected may be enjoying the support of the minority of

voters.

The Second Ballot System eliminates this defect by making a new vote for the second time necessary. As an absolute majority is essential for election, the second ballot is held to eliminate the weakest of the candidates and this is repeated till one of the candidates receives an absolute majority of the votes cast. Gilchrist feels that the second ballot secures a more just reflection of the opinion of the electorate where three or more candidates see election.’

… 2. The Alternative or Contingent Vote System. The alternative or contingent vote system provides for only election, but every voter is permitted to indicate his preferences against the candidates. The candidate of the first preference is declared elected if he gets an absolute majority. However, if none of the candidates is able to get an absolute majority, the candidate at the bottom will be eliminated and his votes also transferred according to the second choice of the voters. This is repeated till a candidate is able to secure absolute majority. This system no doubt eliminates the defects of Second Ballot System, but it does not ensure proportional representation.

3. The Limited Vote Plan. The limited vote plan also provides a fair chance to the minorities to get some representation. Under this system there are multi-member constituencies with at least three seats. However, each voter has less number of votes than there are seals to be filled up. Further each voter is not permitted to cast more that one vote in favour of any one candidate. For example, if there are four seats 10 be filled up the voter will be allowed to cast only three votes, and these votes must also be distributed to three different candidates. This system has been in use in England, Italy and Japan in the past, but no longer prevails at present.

The system no doubt secures representation for large majorities but it fails to work when there are many political parties in the country. It also does not ensure representation to the minorities in proportion to their voting strength. The system also increases the power of the party bosses and reduces the independence of the elected members,

who are expected to act according to the instructions of the party bosses.

4. The Cumulative Vote Plan. Under the Cumulative Vote Plan . each voter has as many votes as there are seats to be filled up from The constituency. A voter can cast all his votes in favour of one or more candidates. In other words a minority can elect its representative by ‘cumulating’ all votes in favour of its candidate. That is why this system is known as ‘Cumulative Vote Plan’ or ‘plumping system’. This system was in vogue in British India, in the general constituencies where seats were reserved for the Scheduled Castes.

The system is very helpful to small minorities, who can elect their candidate by cumulating their votes in favour of a single candidate.

The system has certain defects : (1) It leads to the wastage of votes, because minority candidates get far more votes than they actually need for getting elected. (2) Sometimes the minorities may even capture more seats than they are actually entitled to, by cleverly arranging their votes. (3) The method fails to secure representation of different parties in proportion to their voting strength.

5. Single Vote System. Under single vote system also there are multi-member constituencies but each voter is entitled to cast only one vote. The candidates getting largest number of votes are declared elected. The system has one distinct advantage that it enables the minority parties to capture at least some seats. But the minority parties have to be very exact in their calculation to secure maximum representation.

6. Communal Representation. The communal representation is a novel device discovered by the Britishers in India to secure representation to the minorities. According to this system separate constituencies are formed in which votes of each community vole separately, viz. the Muslims vote for the Muslim candidates, Christians for the Christian candidates, the Sikhs for Sikh candidates and so on. This means that seats are assigned to different communities in the legislature. Another variant of communal representation is that representation may be given to the minorities by simply reserving seats in the legislature for them. This means there is no separate electorate but a joint electorate. The members of different communities vote irrespective of their religious distinctions. But wherever there is reservation of seals, the candidates of the communities for whom the seats have been reserved will be elected, even though there may be Candidates of the other communities getting more votes.

The system of communal representation was introduced by the Britishers in India in 1909 and was extended by subsequent enactments, This was introduced by the Britishers not with a view to providing adequate representation to the minorities but as a well calculated policy of divide and rule’. This ultimately created a wide gulf between the different communities of the country and gave a setback to the feeling of nationalism. Communal representation did much harm to India and ultimately led to the partition of the country. The new Constitution of India has done away with the system of Communal Representation and separate electorates. However, the constitution has reserved seats for the members of Backward Classes and Scheduled Castes. Under the constitution the President has also been authorised to nominate 12 members to the Rajya Sabha to represent certain interests. Similar provision for the representation of minorities and certain categories of persons has been made in the State Legislative Councils.

Thus we find that of this various methods suggested for the representation of the minorities the system of proportional representation by far seems to be the best. All other methods of minority representation only secure some representation for the minorities. In fact under system like second ballot and alternate vote plan the minorities fail to get representation at all. The other methods like the limited vote plan, the cumulative vote plan and the single vote system no doubt sccure representation of the minorities, but they fail to procure representation for them in proportion to their voting strength. It is only the system of proportional representation which secures and hence is the most democratic of all the methods of minority representation. No doubt the method is quite complicated and creates the problem of counting of votes, but these problems are not serious ones and can be

overcome by imparting political education to the voters and training · the officials in the art of counting. Further in recent times the computers can easily help in counting. If these difficulties can be surmounted we well have to agree with the view of Gettel that ‘proportional voting represents more accurately the real wishes of the voter than the system of majority or plural voting in single-member districts.







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