This is a summarised report based on the proceedings of a discussion organised by Freedom First in association with the Indian Liberal Group and the Project for Economic Education in Mumbai on May 22, 2004. The focus of the discussion was (a) on the organisation and conduct of the elections by the Election Commission; (b) the issues that dominated the election campaign; (c) what is the message that the voter has conveyed; and (d) the impact of the results on India’s polity.

The discussion was structured to maximise participation. Presentations by discussion leaders were confined to 10 minutes leaving 50 minutes for discussion at each session. This report follows the same pattern. The presentations followed by questions/answers and comments.

There is real danger of the Election Commission (EC) losing its independence. Hence it is important for us, as citizens to ensure its continuing autonomy. At a recent meeting organised by the Leslie Sawhny Programme former Chief Election Commissioner (CEC) Mr. Lyngdoh said he was convinced that the Election Commission was expanded from a single CEC to a CEC plus 2 ECs not because of government’s concern with the burden that the CEC had to bear, but to pack it with its own men. Fortunately as it turned out government’s ploy did not succeed because the two men they appointed proved to be men with minds of their own. They were prepared to stand up for the independence of the Election Commission. Fortunately again, for Indian democracy, the Election Commission continues to be independent with a little help from the Supreme Court of India.

The Election Commission needs government support in for manpower to manage an exercise of this magnitude (see box ‘B’). Between 1967 and 2004 the cost of holding an election in India increased 720 times (see box ‘A’). So governments at the Centre and in the states exploit the EC’s need for personnel and funds.

Funds and Manpower Needs

How can we, as citizens, help in ‘tamper-proofing the Election Commission (EC)? We can, by ensuring that the Election Commission is less dependent on governments for infrastructure support, by requesting or conscripting, if necessary personnel from the corporate world and from the large number of NGOs in our country.

Some Chairmen and CEOs of PSUs were selected to man polling stations. They were furious that they were being asked to do what they considered was not commensurate with their official status. The Electoral Officer of the state said that there had been a mistake. They were ‘excused and staff from these PSUs lower down the line were asked to do the job.

We need to have election observers for monitoring. There were reports in the press that the Election Commission was challenged by the leftist parties (led by CPM in West Bengal) saying, that these observers ‘interfered’ in the election process. The ‘leftist’ party cadres even threatened the observers. Matters went to such an extent that the Chief Electoral Officer of West Bengal filed an FIR against the CPM. The CPM Chief Minister, according to press reports, disclaimed responsibility saying “I have nothing to do with it, the Bengal Government has no problems with the observers, it is the CPM”!

Discouraging Criminals from Contesting Elections

Thanks to two IIM Professors Jagdish Chhokar and Trilochan Sastry, candidates are now compelled to declare their assets, and provide details of criminal records, if any. But thanks to the brouhaha raised by all political parties without exception, candidates who have criminal cases pending against them cannot be disqualified from contesting the elections. This initiative of the two professors must be carried forward. When the election campaigning was on, the Patna High Court delivering a judgement on a PIL ruled that all those who are facing criminal charges cannot stand for election. Sadly, the Election Commission charged with defending the law as it stands was compelled to play the role of the devil’s advocate by appealing to the Supreme Court against the Patna High Court saying: “It may be true that we don’t want criminals but you can’t make a change in the middle of an election campaign.”

Civil society must go all out to compel the government and the parties in the opposition to get the Representation of the People Act amended to deny nominations to those who have criminal charges against them.

Straying Beyond its Jurisdiction

At the same time, the Election Commission should not stray beyond its jurisdiction though, understandably, they do so because the elected executive fails to perform its role as the lawmaker. For instance their suggestion to the Central government that Gujarat be placed under President’s Rule. On the face of it a good suggestion but quite clearly it is not the Election Commission’s business to ask for President’s Rule. It is one thing to say that the ground conditions in Gujarat are not conducive to the holding of elections and another to suggest what is a patently political decision, best left to Parliament to decide.

When the EC asked the Uttar Pradesh administration to register a case against Lalji Tandon for bribing voters, in what has come to be known as the Saree tragedy when 22 women and children were killed in a stampede, the Election Commission perhaps over-stepped its jurisdiction when it asked the UP administration to take legal action.

Checking passenger baggage. The Election Commission asked that any any one carrying Rs.Ten lakhs and above in cash and passing through the airport be questioned and the matter reported to the appropriate authorities. If this was to deal with unaccounted money – the main source of election expenses, one couldn’t have thought of a more stupid method. This is not the business of the Election Commission. In any case it is not a crime to carry cash (see Box ‘C’ below).

Another doubtful area of transgression was demanding a ban on exit polls/opinion polls. The Attorney General of India Soli Sorabjee and a strong advocate of human and civil rights was very clear in telling the Commission that what the EC demanded went against the fundamental right to freedom of speech expression. A similar issue was the censoring of poll advertisements. This saw a fierce debate between the media and the government. The government quietly passed the buck to the Supreme Court which in turn ruled that the Election Commission could decide on surrogate advertisements (Advertisements supporting one or the political party ostensibly sponsored by some non-party NGO but really a cover for the political party concerned).

These are highlighted not with a view to be unduly critical of the Election Commission but to caution it from straying beyond its core competence – which is the organisation and conduct of elections. The Election Commission must always be seen be to be fair and objective. Along with the Supreme Court, the Election Commission is the only other organisation that has kept the Indian democratic system alive and well. It is important for civil society to ensure that the EC continues to perform its duty without fear or favour.

The Discussion

This is a summary of the discussions that followed this presentation.

Code of Conduct

Question: What is the sanctity in law of the Code of Conduct? Is it just adopted by convention, or is there any law to enforce it?

Answer: The Code of Conduct is a set of rules framed by the Election Commission. For violation of the Code, the Election Commission can withdraw recognition granted to a party. The Election Commission originally formulated it. Then the political parties said, they would not go along with the Code, and filed a writ petition in the Supreme Court. The Supreme Court did not want to decide it one way or the other. Then the political parties and the Election Commission arrived at a sort of an agreement and an agreed Code of Conduct was formulated. The Election Commission and the political parties agreed that the Code of Conduct would come into force when the Election Commission makes a declaration that elections are to be held on specified dates. However the Code of Conduct has no statutory basis at all. The Election Commission, pursuant to the powers vested in it, has framed rules under which it can withdraw recognition of the political party, which violates the rules. So far this has not been done though there have many violations.

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In an earlier election during the period the Code of Conduct was in force there was an agitation by cotton growers of Andhra Pradesh demanding that they be allowed to export of cotton. The then Minister of Textiles and the Textile Secretary allowed the export of cotton. The order was passed through the Election Commission. Mr. T. N. Seshan the then CEC put his foot down, saying that it would vitiate the atmosphere and could influence the voters. So he wouldn’t allow it. A letter written to him on behalf of the cotton growers elicited no response. The same letter was faxed to the Chief Justice of the High Court of Andhra Pradesh. He treated this letter as a petition under PIL and summoned the Election Commissioner, the state government and the Union government and to a hearing the day after receiving the letter. The Judge reprimanded the Election Commissioner stating that the Union government ought not to have abdicate their responsibility to the whims and fancies of the Election Commissioner. Mr. Seshan was furious but he had to obey the court order.

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Declaration of Assets by Candidates

Question: About the declaration of assets, if a declaration of assets by a candidate can the Election Commission do something about it?

Answer: Not the Election Commission, but If somebody gives a false declaration, an NGO or some other organisation or any individual can challenge it in a court of law and it can be undone or punished.

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Declaration of Criminal Charges against Candidates

Question: About criminal charges against candidates. Is it a good thing that these criminal charges are now being exposed even though people have not been convicted. Does it not open up the danger that the opponents of a candidate may file flimsy criminal charges against the candidate.

Answer: Merely because a case has been registered against a person I don’t think in this country we can debar him or her from contesting elections. Because cases are registered, false charges can be made, then the inspectors in charge of police stations will become arbiters of who should contest the elections. That is one of the reasons why the Cr.PC. was amended to provide for anticipatory bail. There is a provision already in the Representation of the People Act that persons who have been convicted and sentenced for more than two years would be debarred from contesting the elections. That is why Shahabuddin continues contesting the elections. Though he has been charged with several murder cases but the law as it stands today he is innocent until proved guilty. The Supreme Court, has held, in another case held that a person by being convicted does not lose his other civil rights. He continues to enjoy all the rights under Article 19 of the Constitution of India.

Perhaps one way to deal with this could be that a person who has got cases registered within the last year prior to the declaration of elections is not barred from elections. The one year period or may be six months is to ensure that there are not ‘got-up’ charges which are filed in order to eliminate a person from contesting elections.

On the knotty question of criminal charges against candidates, the above answer above may be technically correct. But realize the consequences. There are criminal charges against a large number of candidates who succeed in getting elected. Shahabuddin is one of them. Once a man is elected, criminal charges against him never get to a finality. There are people who have gone on and on with these charges hanging around their heads and have never been convicted and never will be. Are we going to allow this to happen? Or should we try to change the law such that at least when a man is charged by a court, he is prevented from contesting an election.

We can suggest to the government that whosoever files the nomination to contest an election, no matter whether he wins or loses, if he has admitted the fact that he is facing criminal charges he should be tried in a special court and it should be completed within a month or two months. That will discourage criminals from contesting elections.

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Retired Election Commissioners Joining Political Parties

Question: A precedent has been set which may have a bearing in the long run on the independence of the Election Commission. A former Chief Election Commissioner has been brought into the Rajya Sabha. On the face of it, it is very innocuous. But it is a temptation for future Chief Election Commissioners that after they retire they have this opening. Any ambitious man would start in his own subtle way to cultivate a political party, which offers to send him to the Rajya Sabha or some other sinecure.

Answer: What is so special about former Election Commissioners getting into Parliament. So many judges have gone into Parliament representing various political parties. Where and how are we going to draw the line? Will it interfere with the fair dispensation of justice? Is that the conclusion that we must arrive it? Or are there certain categories of Indian citizens who must be barred from Parliament? It is a far larger issue than saying that an Election Commissioner or a person holding high judicial or a person holding high judicial office has gone into Rajya Sabha. It cannot be dealt with in this fashion. This is a question that considers serious consideration because there cannot be a ‘yes’ or ‘no’ answer.

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When Citizens are Deprived of their Right to Vote

While the Election Commission has not been able to ensure that every registered voter is able to vote it has actually created hurdles which prevent even a registered voter from casting his vote. For example under the Representation of the People Act, when the ID card concept was brought in, it was by description and intent a second qualification of a voter. Suffice it to say that you ought to be an Indian citizen, you ought to be 18 years of age and you ought to be registered. Beyond that you don’t need a qualification to be a voter to cast your vote.
The provision in the Representation of the People Act has to be modified to enable a qualifier new rule to come into being, and the process for doing this is simple. One ought to place on the Table of Parliament the amended rule under the Representation of the People Act for 60 working days even if it is spread over two sittings or two sessions. If nobody objects, it automatically becomes a law. So far I haven’t heard of such a procedure having been followed with regard to ID cards. Why shouldn’t Indians insist that once they register themselves they have the right to cast their vote. Unfortunately, why should I, if I wish to register myself, face the prospect of having to trudge all the way to the Collectorate and make sure that my name is on the voters list? I think the CEC does not have the discretion to disenfranchise a voter simply because of somebody’s clerical mistake. This is a huge assault on the citizens’ right and I think this is an area where Citizens’ Groups ought to come in and tell the CEC that once an Indian citizen is registered the onus is on the Election Commission. Iit should not be difficult to develop software, which makes it unnecessary for people who change their places of residence for example, do not have to register afresh as they are already on the rolls and registration at the new place ought to cancel each other.

The Election Commission has to work only through the State Government. A study in Tamil Nadu revealed that there is an inflation of voters to the extent of 70 lakhs. If you compare the census figures wherein they give the age-wise break-up, the number of those who are 18 and above in Tamil Nadu ought to be 4.25 crores. But there were nearly 4.92 crores voters, an increase of 75 lakhs. So on the one hand there are a large number of bogus names on voters lists and a large number of names of genuine voters missing. Very often, it also happens that a sackful of applications are given by the political parties for adding to the electoral rolls just before the election. So it is the responsibility of the political parties, the government machinery and the voters.

One of the biggest problems in the recent elections in Tamil Nadu was the number of people going to vote possessing voter identity cards finding their names missing in the rolls and therefore unable to vote. Your name is not there, though you have the Voter Identity card, you cannot vote. If you have your name in the rolls and not the card, you can vote. So the sanctity of the card is lost. We must insist that the Identity Card should have sanctity.

Just as the RBI Governor signs on currency notes that he promises to pay the bearer of a five rupee note five rupees which is equal to the value of that note, the CEC should sign on the Voters Identity Card, “I promise to protect the voting right of the bearer of the card”. At least in the assembly constituency, if I have got a card for a particular assembly constituency, I should be free to vote at any polling station in an assembly constituency. Today this freedom is not available because everything is abused. If the elections are staggered, I can vote in one area and go elsewhere and vote again in another area. So the responsibility is not solely that of the Election Commission. The Election Commission has to function through the State Government officers. And the integrity of the State Government officers depends very much on the morality of the State Government as well.

The ideal state institution to ensure the accuracy of vcoters’ lists is the post office. The number of post offices is much more than the number of taluka offices. And the postman is every day on the street. When we change the address, we inform the postmaster and not the tehsildar or the voter concerned. You can keep the electoral roll in the post office. As the regular delivery of mail has come down because of the mushrooming courier services there are umpteen other things that the post offices are doing. So why can’t post offices handle the job of maintaining electoral rolls in their postal areas? There is accountability. The post office has a defined jurisdiction. The postman has a defined beat. For these streets, he is responsible. There is therefore micro-level accountability.

Addressing the problem of many urban people getting disenfranchised, there is an income tax law, which says that you will automatically be in the income tax net if you have one-by-six. So why can’t the Election Commission take the assistance of income tax, the people who are already in the tax net and take them straightway on the rolls?

In Andhra Pradesh too local MLAs and party leaders went round areas to high schools and elementary schools to gather names. They listed the names of elementary school boys and girls and they submitted the list to the tehsildar or the revenue divisional officer concerned who was acting as the registration officer for inclusion in the electoral rolls. As a result the number swelled beyond the total population of the constituency! It indicates how easy it is to cheat by artificially inflating electoral rolls. This makes a mockery of the election process.