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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