India: Taking election reforms forward — and seemingly, too

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With the current poll processes are expected to come to a close long before the month-end, the Election Commission may need to address the two questions that elections 2019 has raised.

N Sathiya Moorthy 20 May 2019 

During the pendency first and currency, as well of the current round of elections, the EC argued before the Supreme Court that VVPAT, or ‘voter-verified paper-audit trail,’ would lead to a delay in the counting process. It’s rightly so. Yet, the argument also challenges the very integrity of the world’s largest democratic elections. In a way, the general idea of VVPAT or another form of cross-verification itself challenges the basic integrity of the EVM process.

The Election Commission needs to justify to the nation, if not necessary to other constitutional entities like the higher judiciary, the reason for multiphase polling in selected States, and not really, in some others.

As may be recalled, the EVM process was introduced with great fanfare and much expenditure for the Indian State, only to make the electoral process less cumbersome and more credible than what the paper-ballot entailed in its time. However, in the present time, the integrity of that very ‘integrity process’ has been challenged.

The EC’s argument has greater validity if one were to look at the speed of counting alone. In a nation where the elections are held in six or seven phases each time, spread through weeks and months, for the EC to focus on how to speed up the counting process alone sounds less serious, if not deceptive. To this end, the EC needs to justify to the nation, if not necessary to other constitutional entities like the higher judiciary, the reason for multiphase polling in selected States, and not really, in some others.

Shortest polls

For the record, the shortest elections in post-Independence India were held in 1980. At the time, polling for most of the nations was completed within two days, separated by three more — 3 and 6 January, to be precise. For the rest, it was long drawn-out. Yet, to think that even the process of the first general elections of 1951-52 came to an end in around six months raises questions about the very efficiency and efficacy of the current processes, procedures and elections establishment.

At the time, processes had to be invented where they did not exist. Where elections hadn’t been held pre-Independence, everyone, including voters, political parties and the poll bureaucracy had to be taught it all from the scratch. This covered most of the princely States that merged in the Indian Union at the midnight of 15 August 1947.

Today, with more than 70 years of institutional experience, expertise and mechanisms in place, for the Election Commission to cite ‘security arrangements’ as the reason and justification for weeks-long staggering of nationwide elections sounds both unsubstantiated and unsustainable.

Today, with more than 70 years of institutional experience, expertise and mechanisms in place, for the EC to cite ‘security arrangements’ as the reason and justification for weeks-long staggering of nationwide elections sounds both unsubstantiated and unsustainable. Incidentally, over two decades ago single-day polling was introduced in States like Tamil Nadu, and till date it has continued successfully as a means to end massive cross-constituency bogus-voting. However, no explanation has been offered as to why a medium-sized State like 42 West Bengal should have seven-phase polling this time, while a smaller State in Gujarat should have two-phase polling for the State Assembly in 2017, long after the infamous ‘communal riots’ in 2002, if that were a possible reason. As it happened, Gujarat had single-day polling for the State Assembly that very year.

Cash-for-votes

Incidentally, it was after the cancellation of elections in May 2016 in two Assembly constituencies in Tamil Nadu, namely, Aravakurichi and Thanjavur. Post the cancellation, the Election Commission had written to the government for powers to do so, citing ‘cash-for-votes’ as the specific reason. Three years down the line, the EC caused the cancellation of the 18 April election in Vellore Lok-Sabha constituency this time, referring to near-similar reasons.

Citing the report of the Special Expenditure Observer, Madhu Mahajan, “that (income-tax) searches had unearthed a systematic design to influence voters through inducements” the Election Commission news release on the subject said that “such activities come under the ambit of corrupt practices” as per Section 123 of the Representation of the People Act, 1951.” The Special Expenditure Observer was of the opinion that the situation is not conducive for the conduct of free and fair elections, the EC notification said further.

The IT searches/raids related to the Opposition DMK candidate Kathir Anand led to the recovery of Rs. 11.48 crores. In another case of similar raids, which the local media, starting with the social media, claimed that substantial amounts were similarly found, EC officials in the State later clarified to the contrary. Incidentally, across the State and elsewhere, too, across the country, there were constant/continuing reports of ‘cash-for-votes’ in play.

Polls are conducted under Article 324 of the Constitution, which empowered the EC to ensure free and fair polls. When read with Section 54(a), it implied, and continues to indicate, that money power was booth capturing of an alternate kind, which in any case interfered with ‘free and fair polls.’

It is in this context, the EC’s 2016 letter for powers in the matter becomes considerably relevant, if the integrity of the nation’s electoral process has to be maintained. According to reports at the time, the EC had written to the Union Law Ministry, seeking the introduction/insertion of a new Section 58(b) in the RP Act, seeking powers for the adjournment or countermanding of elections in the affected polling areas. It further read that money power was used to influence the polls and asked for the polls to be rescheduled.

At present, the Act provides for countermanding only in the case of booth-capturing, under Section 58(a). In seeking to insert a new sub-section 58(b), the EC additionally sought for a clarification that the phrase ‘countermand the election’ in 2016 should mean ab initio (from the beginning) rescinding of the entire electoral process in the constituency. By presenting to the government the request for a change in law in writing, the EC acknowledged future possibilities of the need for such countermanding/cancellation to curb the use of money power.

However, polls are conducted under Article 324 of the Constitution, which empowered the EC to ensure free and fair polls. When read with Section 54(a), it implied, and continues to indicate, that money power was booth capturing of an alternate kind, which in any case interfered with ‘free and fair polls.’ Nearly three years after the Commission had written to the government, in this regard, there is no specific empowerment clause for the EC either under the Constitution, or under the RP Act.

Nor does the Commission appears to have sent out a ‘reminder’ or spoken about the ‘forgotten missive’ before the news conference, as it used to be earlier. Worse still, as it has since turned out, the supposedly ‘alert’ media too does not seem to have taken notice, or quizzed the three election commissioners when they announced the schedule for elections 2019, so very ceremoniously, as always used to be the case — and proudly and rightly so. After all, Indian elections are not only a pride for the nation alone but also for global democracy as none other and anywhere!

‘Affected’ parties

Where does that leave the ‘affected voter’ with? In the Tamil Nadu incident of 2016, the Madras High Court disposed of a petition seeking re-polling earlier than 13 June as fixed by the EC, after polling for the remaining 232 constituencies ended on 16 May. Initially, the EC had fixed the date for 23 May. The petitioners in the HC and political parties wanted it brought ahead to any day before the counting of votes on 19 May for the remaining 232 seats.

They argued that re-polling after the results could ‘unfairly influence’ the voters in these two constituencies. The HC then asked the EC for its position, which fixed the re-polls then 13 June 2016. Subsequently, it cancelled the countermanded polls in their entirety. Moving ahead, in the Vellore incident, the HC refused to intervene when the ruling AIADMK candidate A.C. Shanmugam, a ‘67education entrepreneur’ like his DMK rival, contested the EC’s decision.

With the current poll processes are expected to come to a close long before the month-end, the EC may need to address the two questions that elections 2019 has raised. One, of course is about the future of electronic voting, and the other is about curtailing money-power in the elections, more than is believed to be. In the normal course, much significance is given to the latter in national and media discourses, but not to the former. With as many as 21 political parties moving the SC, however without a favourable verdict pending it is likely that some of them, and/or many others may knock at the doors of the Election Commission and the Supreme Court — not necessarily in that order.

(The writer is a Senior Fellow at Observer Research Foundation, Chennai Chapter)

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