Tuesday, April 27, 2021

DEMOCRACY, CACOPHONY, ELECTION COMMISSION & RULE OF LAW ANIL K KHAWARE ADVOCATE



DEMOCRACY, CACOPHONY, Election Commission & RULE OF LAW                      

ANIL K KHAWARE

ADVOCATE

The most acceptable definition of Democracy as Abraham Lincon has coined it: it is a government of the people, for the people and by the people. Undoubtedly, despite certain pitfalls of democracy, the system of governance arising out of democracy cannot really be faulted. The constitution of India in its preamble also starts from “we the people of India give ourselves the constitution”. The Power of governance is therefore vested in people and essentially the sovereignty is vested in people and that finds expression in state and its executive. It is indeed a cause of concern as to why India, despite, being the largest and vibrant democracy and proud torch bearer of smooth transition of power to successive governments has not been reflected rightfully  in the democracy index?

The India represents a classical parliament form of Government. The Parliament in India is bicameral i.e Lok Sabha (House of People) & Rajya Sabha (Council for states). Similarly, the provinces/states in India are largely unicameral i.s states are having only State Legislative Assemblies. The states like Andhra Pradesh, Telengana, Uttar Pradesh, Bihar, Karnataka & Maharashtra has State Legislative Councils as well and as such these states are bicameral. The state of Jammu & Kashmir also was bicameral, but post 2019 I & K as a Union Territory only have State Assembly. The election to Lok Sabha or State Assemblies are through direct election i.e by virtue of exercise of votes by electorates through adult suffrage i.e any Indian citizen of 18 years of age or above, whereas, in State Legislative Council or Council for State –Rajya Sabha electoral college shall comprise of Members of State Legislative Assembly and through proportionate representation the Members of parliament (Rajya Sabha) or that of State Legislative Councils are elected. The electoral college of Vice President is members of Parliament only, whereas the Electoral College for President is MLAs and MPs of both houses of Parliament, excluding nominated members. The President and Vice President are elected indirectly by members of an electoral college consisting of the members of both Houses of Parliament in accordance with the system of Proportional Representation by means of the Single transferable vote and the voting is by secret ballot conducted by election commission. Even nominated members could vote for the Vice President, but not for president The Rajya Sabha cannot have more than 250 members and 12 of them could be nominated members who are appointed by President  of India from amongst persons who have special knowledge or practical experience in respect of such matters as literature, science, art and social service. 

It is axiomatic that the right to vote or stand as a candidate for election is a creature of statute or a special law and is subject to the limitations imposed by it. These rights are not absolute nor are held to be constitutional rights. Though fundamental to democracy, the right to elect is neither a fundamental right nor a common law right.  


 

CONSTITUTIONAL MANDATE OF ELECTION COMMISSION

(PART XV)

Part XV of the Constitution constitutes a code in itself, providing the groundwork for the enactment of appropriate laws and the setting up of suitable machinery for the conduct of elections.The Article 324-329 contains the provisions of establishment and powers of Election Commission of India. The object being ensuring free and fair election through constitutional mandate.

S.N

Article

Terms

1.

324

The Election Commission of India is an autonomous constitutional authority responsible for administering election processes in India at national, state and district level. Chief Election Commissioner as Chairman and such other Election Commissioner may be appointed. Regional Commissioners are also appointed.

2.

325

Preparation and finalization of electoral Rolls for parliamentary and Assembly elections.

3.

326

Election of parliament House of Peoples (Lok Sabha) or State Assemblies to be on the basis of adult suffrage.

4.

327

Power of Parliament to make provisions in respect of Election Commission and matters related thereto

5.

328

Power of States to make laws related to election in States, subject to law enacted by parliament 

6.

329

Bar of interference by courts. Article 329 (a) relates to laws of delimitation of constituencies or allotment of seats etc. No court shall interfere.

Article 329(b) bars any challenge to election or its process foe election of house of people or State Assemblies, save by election petition and as per the limitation contained thereto.

7.

329 A

Special Provisions as to election for parliament in the case of Prime Minister and Speaker (introduced by 39th Constitutional amendment on 10.08.1975. However, the same was repealed after Janta Government came in power in 1977( 44th Constitutional Amendment)- w.e.f 30.06.1979.

 



THE STRUCTURE OF ELECTION COMMISSION

 

The commission was established in 1950 and originally only had a Chief Election Commissioner. Two additional Commissioners were appointed to the commission for the first time on 16 October 1989,  but they had a very short tenure, ending on 1 January 1990.
Subsequently, the Election Commissioner Amendment Act, 1989 was adopted on 1 January 1990 by virtue of that the commission was turned to a 3-Member Commission and that is in existence, ever since,  and the decisions by the commission are made by a majority vote. At the state level, Election Commission is assisted by the Chief Electoral Officer of the State and at the district and constituency levels, the District Magistrates (in their capacity as District Election Officers), Electoral Registration Officers and Returning Officers perform election work.

ELECTION LAW MATRIX

S.N

CITATION

REMARK

1.

Kuldeep Nayar Vs Union of India (2006) SCC 1

The petitioner challenges by way of petition under Article 32 of Constitution of India was made to the Amendment of Representative of People Act 2003, whereby the requirement of “domicile” in the State Concerned for getting elected to the Council of States was deleted. Challenge was also made to Sections 59, 94 and 128 of the Representative of People Act, 1951 by which Open Ballet System was introduced.4. There was a further challenge to the amendments in Sections 59, 94 and 128 of the RP Act, 1951 by which Open Ballet System was introduced. The Open Ballot System violates the principle of “secrecy” which, according to the petitioner, is the essence of free and fair elections as also the voter’s freedom of expression which is the basic feature of the Constitution and the subject matter of the fundamental right under Article 19(1)(a) of the Constitution.

 

The supreme court 5 judge constitution bench unanimously t rejected the contentions of petitioner and found no infraction of any constitutional provision or principle.  It was held that India is a federal state of its kind, and  no part of federal principle entails that the representatives of state must belong to that state only. The word ‘representative of each state’ only refers to the members and do not import any further concept or requirement of residence in the state. Similarly, no violation was found in constitutional provision or principle in the amended Section 59 of RP Act insofar as it required election to Rajya Sabha by open ballot. It was held that secrecy of ballot, was not essential feature of democracy, which is a basic feature of our constitution.

2.

Raja Ram Pal Vs Hon’ble Speaker, Loksabha (2007) 3 SCC 184

The action of two house of parliament to expel the petitioner was held to be violative of Article 101-1-03 of Constitution of India and held invalid.

3.

J&K National Panthers Party vs The Union Of India & Ors on 9 November, 2010

There is an express constitutional bar to any challenge being made to the delimitation law which is made under Constitutional provisions. Therefore, the substantial challenge of the appellant in this proceeding is not to be entertained by any Court, including this Court.

4.

T.N. Seshan v. Union of India- WP ( C) 805/1993

Supreme Court (Constitution Bench)

Date of Judgment: 14.07.1995

The Supreme Court unanimously upheld the constitutionality of the Act equating the status, powers and authority of the two Election Commissioners with that of the CEO. The Court held that the CEC did not enjoy a status superior to other Election Commissioners even though there were differences between the service conditions of the CEO and other CEs. The scheme of Article 324, it was held clearly provided for a multi-member body comprising of the CEO and other ECs.

5.

Michael. B. Fernandes v. C.K. Jaffer Sharief

Civil Appeal No. 1310/2001- Supreme Court

The Apex Court’s upheld the amendment incorporated in the Representation of Peoples Act 1951 providing the use of EVM as not violative of Article 14, being not arbitrary or ultra vires the Constitution.

6.

T.A. Ahammed Kabeer v. A.A. Azeez

AIR 2003 SC 2271

Appeal u/s 116 A of Representation of Peoples Act 1951 was preferred challenging the election of a victorious candidate.

New improved version of EVM had taken care of defects as also the Representation of People Act, 1951 and as the Rules there under were accordingly amended, the Apex Courth has   approved the use of EVM. The Supreme Court approved the use of the present version of EVM, wherein it was held possible to get at the disputed impersonated votes by decoding. The identity of the impersonator may not be detected, but then the same was correct in respect of ballot paper also. The appeal of the defeated candidate was rejected.

7.

Smt. Indira Nehru Gandhi vs Shri Raj Narain, C.A. No. 887 of 1975

Described below under Article 329 A

8.

Shri Raj Narain Vs. Smt. Indira Nehru Gandhi, C.A. No. 909 of 1975

Described below under Article 329 A

 

Democracy entails election and its process and hence, it is quintessential to focus on the issue. The Constitution of India contains the provisions of Elections in Part XV of Constitution of India and the provisions are contained in Article 324- 329. The procedure of elections and the issues of elections are contained in Representation of Peoples Act 1950 and 1951. Similarly for Election of President and Vice President are conducted as per The Presidential and Vice-Presidential Elections Act, 1952 and rules framed thereunder and that is in place. The mechanism of challenging the election also finds in place, however that will be subject to Article 329 (b) of the Constitution of India i.e once the process of elections has commenced , till the declaration of result there is blanket ban to any litigation. It is only after the declaration of result that within Forty Five (45) days the election of a winning candidate could be challenged. The said provisions is contained in section 80 of Representation of Peoples Act 1951. One may argue as to if the process of election is over and malpractices being reported and conspicuous, then what are the rationale in not entertaining the challenge of malpractices during election? Isn’t it travesty of justice?



INSERTION OF ARTICLE 329- A & ITS BACKDROP

Through 39th Constitutional amendment Article 329-A was added to Article 329 of Constitution of India. The factual backdrop may be traced to the following case and same is  worth-mentioning.

(i)                Smt. Indira Nehru Gandhi vs Shri Raj Narain, C.A. No. 887 of 1975

(ii)              Shri Raj Narain Vs. Smt. Indira Nehru Gandhi, C.A. No. 909 of 1975

(Decision dated 7-11-1975)

In March 1971 Smt. Indira Gandhi was elected to the House of the People from Rae Bareli Parliamentary Constituency of Uttar Pradesh. Shri Raj Narayan, her rival candidate had challenged her election in Allahabad High Court vide an Election Petition. The High Court, vide its judgment dated 12.6.1975, allowed the election petition and declared the election of Smt. Indira Gandhi as void and it was held that she won election by adopting corrupt practices within the trap of article 123 (7) of Representation of Peoples Act 1951 The judgment of Allahabad High Court was challenged by way of appeal before the Supreme Court. A cross-appeal was also filed by Shri Raj Narayan. However, during the  pendency of these appeals, Parliament passed the Election Laws (Amendment) Act, 1975 and by virtue of the said amendment,  several provisions of the Representation of the People Act, 1951 were amended and that too retrospectively i.e w.e.f back date. In the meanwhile, Parliament also passed the Constitution (Thirty-Ninth Amendment) Act, 1975 and by way of that a new Article 329-A was inserted into the Constitution to provide, inter alia, that the election to Parliament of a person, who holds office of Prime Minister or Speaker of the Lok Sabha at the time of such election or is appointed as Prime Minister or Speaker after such election, shall only be called in question only before a specially prescribed authority and not before the High Court under Article 329 (b) of the Constitution. As if this was not enough, vide the said Amendment Act, Parliament also validated the election of Smt. Indira Nehru Gandhi. It is only natural, thus, that the validity of the above mentioned two Amending Acts also formed subject matter of the appeals. The grounds inter alia was that many members of Parliament were subjected to preventive detention after the Proclamation of Emergency in June, 1975 and, therefore, many such parliamentarian could not vote and thus these Acts had not been validly passed by Parliament. The Supreme Court, though, had upheld the validity of the Election Laws (Amendment) Act, 1975 and also the validity of the Constitution (Thirty-ninth Amendment) Act, 1975, except that part of the Act whereby Parliament had validated the election of Smt. Indira Nehru Gandhi. By implication, thus, while applying the law, as amended retrospectively by the aforesaid Election Laws (Amendment) Act, 1975, the Supreme Court upheld the election of Smt. Indira Gandhi to the House of the People, allowing her appeal, and rejecting the cross–appeal of Shri Raj Narayan.

However, Article 329-A was omitted vide 44th amendment w.e.f 10.06.1979, when new dispensation came to power in 1977.

In this context, it is worthwhile to refer the tinsel world as that is also a reflection of society. In the backdrop of turmoil in 1975 a satire in the name of “Kissa Kursee ka” was made by producer Shri Amrit Nahata and the film could not see the light of the day, until a new dispensation in 1977 had come and still there were several cuts probably rendering the film less meaningful. The political class in itself may be inimical to each other for the sake of their political survival, but glue of polity still binds them as a class.

 


INSTANT JUDICIAL INTERFERENCE IS NOT PERMITTED IN ELECTION

The bare perusal of provisions of Article 324-330 of Constitution of India besides the provisions of Representation of Peoples Act 1951, one may note that seeking instant justice is not the mandate of law and there is a blanket ban to any case during the process of election i.e from notification of election till pronouncement of result. The same is stipulated with a view to ensure that constitutional mandate of having successive Governments after every Five (5) years are not hampered.  The cases, if lodged during the process shall have inherent pitfalls. The constitution maker has made the provision keeping in mind that the road of democracy itself may hit a roadblock and the Lok Sabha or State Assemblies may not be constituted within time as per the trap of Article 172 of Constitution of India, if the litigation in the midst of election is permitted to be raised. There may hardly be any assembly or parliamentary constituencies, where the objection and issues of malpractices could not be raised and therefore insulating the process was felt necessary. The safety valve is nevertheless provided i.e after election and declaration of result, if the alleged malpractices are proved, the election could be declared as void and there have been many instances to that effect. No doubt, the process in court is time consuming as only on the basis of evidence adduced, the judgment could be passed and this entails time and in some cases by the time the terms of the parliamentarian and /or MLAs are over, the elections may be declared void. Of course, the clock cannot be set back to time in that event.   There is no scope to undo what may have been done by such legislature prior to his/her election is declared as void. There is no penalty or compensation envisaged either. It is this aspect which probably needs finality and in future this grey area may be taken up for apt remedy. It is thus, left at that.




 

PROCEDURE TO CHALLENGE OF ELECTION

The relevant provision under which election petition is presented is REPRESENTATION OF PEOPLES ACT 1951. The part II of the Act prescribes Presentation of Election Petitions to a concerned High Court] u/s 80 of the Act. The provisions maybe reproduced as under:

80. Election petitions.—No election shall be called in question except by an election petition presented in accordance with the provisions of this Part. 2

[80A. High Court to try election petitions.—(1) The Court having jurisdiction to try an election petition shall be the High Court.

(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time, assign one or more Judges for that purpose: Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.

(3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court.]

81. Presentation of petitions.—(1) An election petition calling in question any election may be presented on one or more of the grounds specified in 3 [sub-section (1)] of section 100 and section 101 to the  [High Court] by any candidate at such election or any elector  [within forty-five days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates].

[(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.

82. Parties to the petition.—A petitioner shall join as respondents to his petition— (a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition.]

         


CORRUPT PRACTICES

Section 123 of Representation of Peoples Act 1951 contains inter alia  as to what may constitute corrupt practices. The same is as under:

(i)                  Offering of bribe to electorate by a candidate or his agent seeking vote or refrain from vo6ting or seeking any favour and also seeking withdrawal of name by any candidates

(ii)                Receipt of or agreement to receive any gratification whether as a motive or reward by a person for standing or not standing or for withdrawal of candidature

(iii)               Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person for seeking vote or withdrawal of candidate including threat of injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or inducing or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure

(iv)     The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:

(vi)       The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent.

(vi)       The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

(vii)      The publication by a candidate or his agent or by any other person [with the consent of a candidate or his election agent], of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.

(viii)     The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person

The constitution bench of hon’ble Suprme Court in 4:3 majority judgment in a matter captioned as Abhiram Singh Vs CD Commachen 2017 SCC OnLine SC 9  has clearly held that seeking vote in the name of religion, language, caste, community, race etc shall be akin to corrupt practices.

Functions of the Election Commission (EC)

The EC is empowered to frame its set of rules and regulations and may implement it and that is to be followed by the political parties and the candidates during the process of elections.

The Election Commission has omnibus power in respect of election

(i)    Preparing Voters’ list

(ii)  Fixing Election schedule and timings:

(iii) Ensure free and fair poll.

(iv)  Prescribing Model of conduct

(v)  Re-polling or Re-counting:

(vi) Recognition and party symbols



Elections Laws in India

There are various laws related to the conduct of elections in India. The elections for both the centre and the state are conducted differently but the laws governing the conduct of elections of the Parliament and State Legislature are almost the same. These are as follows:

The Representation of the People Act, 1950

The Representation of the People Act, 1951

The Registration of Electors Rules, 1960

Conduct of Election Rules, 1961

Election Symbols Order, 1968

Presidential and Vice-Presidential Act 1952



Anti-defection Law, 1985

In the face of horse trading post election being rampant and very essence of democracy was throttled in as much as the elected members were joining the defeated conglomerate post election to form a government which essentially did not have mandate. The 52nd Amendment Bill was thus introduced and in the Tenth Schedule of the Constitution the same is included popularly known as Anti-defection law. The situation of defection is illustrated therein. For instance, if a member of a House belonging to a particular party “A” voluntarily gave up the membership of his existing political party or votes or abstains from voting, contrary to the directions of his political party he will lose his membership. As regards expenditure, a political party or the candidate cannot spend on the election campaigns according to their desires but there is a limit set by the Election Commission. The Election Commission is therefore watchdog of democracy and has been bestowed with comprehensive power to ensure free and fare elections.   






The recent Election iN Five (5) States

The process of election in Five (5) states are almost complete and only Eight (8th) and last phase of West Bengal Election remains to be conducted at the time of writing this article and that is going to conclude on 29th April 2021.The election process  in Assam, Tamil Nadu, Kerala and Pudduchery are already over. The election results shall be declared on 2nd May 2021 thereby culminating the entire election process. In the midst however and in the backdrop of surge of covid , the hon’ble Madras High Court has directed the Election Commission to come out with a blue print as regards the measures being taken for smooth counting entailing CAP ( Covid Appropriate protocol) failing which the hon’ble high court has made it clear that it will not hesitate to stay the counting process. Moreover, the hon’ble Madras High Court has also equated the alleged apathy of Election Commission officials in being oblivious to COVID norms during election process as serious and observed that even murder charge could be foisted on the officials. The anguish of hon’ble high court that has come in the wake of covid and consequential death of people that this pandemic has caused has to be viewed in the context.  Though, as per section 80 of Representation of Peoples Act 1951, the only way of preferring election petition is after the result is declared in as much as after notification of election and till pronouncement of result as illustrated above, the court is not to interfere in the process. Moreover, there is a blanket ban to any Election Petition till the result is out as per Article 329 (b) of Constitution of India. The high court is a constitutional court and court of record always have extra-ordinary power/jurisdiction to set rights the ills that comes before it in extra-ordinary jurisdiction. True, that writ is generally not entertained, if alternate remedy is available. The remedy in this case is only by way of election petition with certain embargo inherent in it. Still, the anxiety of hon’ble high court of Madras, has to be seen in this backdrop and given the extra-ordinary situation if it calls for extra-ordinary measures, judiciary is the only forum to fall back to. The high court therefore cannot be oblivious to if any institution appears to have allegedly performed inadequately and within its domain to use extra-ordinary jurisdiction to good effect and thus it was clearly spelt out that unless a blue print of counting process in the wake of COVID is ready, the court shall not hesitate to halt the counting process. Though, such a remark is unprecedented, but as a last hope of justice the constitutional court is mandated to secure the ends of justice.

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