The Little Man’s Ballot is Burked If Election Law Not Reformed

Indian democracy was designed by our Constitution’s Founding Fathers after long deliberations in the Constituent Assembly to produce a people-oriented Republic built on the widest adult franchise sans caste, sans creed and greed, sans gender discrimination and vesting a vote in every citizen of and above age 18. They have the right to ballot bravely and elect MLAs and MPs whose powers as members of the Legislature are impregnably large as laid down in the Suprema Lex. We have adopted the British Cabinet System of governance. Election is the oxygen of State Power. The Election Commission is the basic instrument to operate the polls with an elaborate infrastructure of officials who manage the periodic process powerfully and impartially. In broad terms, the system has worked tolerably well since January 1950 although a critical scrutiny of India’s poll performance reveals many serious deficiencies, disruptions, culpable omissions and commissions. Creative changes are needed if we take a dialectical look at Indian humanity, in its electoral functionality. The little Indian has a right to demand many mutations which make his ballot paper grant him a title to govern the country vicariously through his franchise.

The right to vote can be a reality only if there is a list containing valid names and a forum or machinery for recording the ballot. Postal ballots provide for some limited categories under the Representation of People Act; these are instances of voting outside of polling stations. If we take the country as a whole, we will find a large number of people confined to hospitals as employees, doctors, inpatients who, for no fault of theirs, cannot reach the polling booth. Either they must be given the facility of postal ballot or a booth should be installed in every large medical or research institution with necessary safeguards and officers under the Returning Officer. This is not a simple matter. Nevertheless, careful foolproof mechanism with suitable regulations have to be enacted. In the old Soviet Union they had provided booths in hospitals. Another similar situation of persons with right of franchise but deprived of access to mark his vote is the case of undertrials in criminal cases and held in prison. They are presumed to be innocent until convicted. So it is fair to give them an opportunity to vote by having a booth in every large jail which also keeps undertrials. Persons in detention without trial are a similar lot. Careful conditions may have to be set down to prevent misuse. This subject desiderates well-thought-out rules, with the Returning Officer having correctional and supervisory jurisdiction. Very sick persons or those suffering from advanced age and disease inflicting immobility must be afforded appropriate facility to cast their votes, of course, with serious concern for avoiding possible misuse. I do not give an exhaustive enumeration of such situations. If a scholarly Commission studies this dimension of election jurisprudence, a comprehensive provision can be made to cover those who go abroad under compelling circumstances.

What is already a topic of consideration which the Hon. Speaker Somnath Chatterjee has highlighted is the right of recall of members who misconduct so horrendously that they disgrace the House by continuing as members.

The Soviet Law had a provision for right to recall with a special procedure and it had worked well. If parliamentarians take bribes for interpellations and voting or commit open vulgarity and violence or gross contempt of the House there may be other punishments or even recall resulting in forfeiture of membership.

INDIA is a poor country but its elections are extravagantly expensive. The average Indian’s purse can ill-afford even a Panchayat poll battle let alone Parliament candidature. Only the rich and princely persons or fabulously affluent parties can dream of contesting an election. This means that the humble millions are mercilessly priced out of the economic justice dimension of election competition. The political proprietariat, composed of multiple parties or creamy layer personalities alone, can fight for State Power. Democracy becomes the rich man’s game if only power-hungry millionaires and parties can enter the House. The instrumentalities, both Executive and Legislative, find no space for the underprivileged and penurious. This ‘unapproachable’ factor for the have-nots must go and communally ignoble Pluto Power must be dethroned from our socialist, secular republic. All necessary changes to give free access for the weaker sector to contest at very moderate expense for election purposes should be structured. Even this must be functionally financed by the State if participation by the poor in the democratic process is to be a fact of political life. Communalism and corruption, now ubiquitous, must be bete noire if socio-economic barbarity is to be banished and society is to assure every member the right to life in dignity. The election process, now a lunatic, terrorist bedlam operation, manipulated by the political mafia, shall have to undergo a civilising mission. The State must meet poor candidates’ election expenses which are now madly mammonist.

Elections, once the first step of nomination is taken, must flow on without exasperating forensic delays and docket deadlocks. So in a Supreme Court ruling, speaking for a Bench, I held that judicial jurisdiction cannot interfere until the poll process is over. The disgruntled, defeated party may move the tribunal and then the curial power has full play in correcting injustices. It is necessary to make this position plain by appropriate statutory provisions. The Court ultimately rules what binds, lest the Election Commission behaves arbitrarily or illegally and gets away with it. Even here, clear rules of conduct must be prescribed so that the Commission does not become a bully or behave absurdly eccentric. Its authority must, of course, promptly act to make campaigns of candidates just, fair and reasonable and control money power and communal malpractice. Violence must be entirely eliminated by the Commission’s commands with police aid. If parties or candidates are guilty of gross violation, the Commission, after due hearing, may even disqualify the aberrant.

The subject of electoral reform is so profound and so basic to our democracy that deeper research into the working of the system may reveal the need for further amendments. ‘One man, one vote’ is a universal principle since each man’s voice must eventually shape the government by the people. It may be apt to quote the great Justice William Douglas (US Supreme Court) in support of my view that we do require creative mutations to suit our generation’s socio-economic culture and developmental dimensions.

Viable local government may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions. We see nothing in the Constitution to prevent experimentation.

I found, in my visit at election time to Pakistan where Mrs Bhuto was returned to power, that her country adopted a simple practice of counting the vote in each booth at the end of the day in the presence of concerned representatives. The process was easy, the count was public and the candidate’s representatives were informally informed the same day the votes secured by each candidate. Of course, the Returning Officer received from each booth the ballots and after a fresh count finally announced the results of the poll. Why not experiment on these lines with dynamic modifications, even in India? What is static is dead. Philosophically speaking, election is an expression of opinion, a means not an end; a process, not a product.

The author, a distinguished former Judge (now retired) of the Supreme Court, was the Law Minister in the first Communist Party-led State Government in Kerala (1957-59).