AN UNDOCUMENTED WONDER : The Making of the Great Indian Elections

by S.Y. Quraishi

all officers deployed on election duties shall be deemed to be on deputation to the Election Commission during the period of such deployment and that they shall be subject to the control and discipline of the Commission during that period.

It also placed a bar on the interference by courts in electoral matters, and these steps have gone a long way in helping the Election Commission conduct elections and bye-elections.

‘So far as the framing of the schedule or calendar for election […] is concerned, the same is in the exclusive domain of the Election Commission, which is not subject to any law framed by the Parliament.

In most countries the date of the elections is decided by the political executive, except where the date is permanently fixed (like in the USA). In UK, the decision on the date of elections had been the domain of the Prime Minister since 1715. In 2011, however, the Act was amended to create a fixed term Parliament. It has now been decided to hold the future general elections on 7 May every five years, starting from 7 May 2015.

All candidates are entitled to have their agents present at the polling stations and in counting centres to see that polling and counting is done in a free and fair manner. Publication and announcement of results is done after every round of counting to ensure that no manipulation takes place.

Video recording of all critical elements of the electoral process is done.

Even Chief Secretaries, Home Secretaries and Directors General of Police (DGPs) have been removed on reasonable suspicion of political alignment.

In 1982, the Commission had to conduct general elections to the Legislative Assembly of Assam at the height of the violent Assam agitation. Similarly, in Jammu and Kashmir, the Commission has conducted several elections in spite of the problems of militancy.

In this system available figures of the Census are compared to calculate gender ratio, the elector–population ratio and the status of registration of voters in different age brackets. This has become a standard tool for checking the health of the electoral rolls. Similarly, door to door verification, linking with data from birth and death registers, appointing a Booth Level Officer (BLO) who is familiar with the local populace and situation are some of the interventions for maintaining the integrity of the rolls.

In Bihar—History of security breaches and booth capturing, low voter turnouts particularly among females. This was handled by holding elections in seven phases and the deployment of central armed police forces, leading to the most peaceful polls in the state ever. Voter education programmes were launched for the first time leading to the highest turnout in history. In West Bengal—Maoist insurgency, political violence and politicization of the bureaucracy due to the continuous rule of a political formation for thirty-four years. Our response was to hold the elections in seven phases with massive deployment of central armed police forces weeks before the polls and sending IPS observers to the state for the first time ever in the country. In Tamil Nadu—The misuse of monetary power in elections. This was tackled by strict enforcement of the new expenditure guidelines and a strong contingent of expenditure observers. In Uttar Pradesh—History of poll violence and booth capturing, low voter turnout, low literacy, low female voter turnout and low registration of youth. The measures taken were a seven-phase polls with deployment of central armed police and a massive voter education programme. In Punjab—Besides money, alcohol, muscle and gun power, drugs was a serious issue, otherwise not found elsewhere in the country. Special task forces to detect drugs led to the seizure of over 50 kg of heroin, among other hard drugs. In Manipur—Insurgency related threats and poll violence, bogu...

Back then, Sethi and a team of ECI officials would sit together and think of daily objects that the common man could identify with. Many established symbols of political parties—bicycle, elephant, broom—were born of these sessions. Some not so familiar objects too were suggested by this group—a pair of glasses, a nail cutter and even a neck-tie, which was popularly worn by the English-speaking crowd post-Independence. As officials named objects in the meeting, Sethi would sketch them using his kit of HB pencils.

State parties can only reserve their symbols in their respective states. To reserve a symbol, a political party has to field its candidates in more than ten constituencies.

personnel are allotted polling stations on a random basis to avoid bias, and they are not told till the very last moment the name of the polling station where they have to serve so that they cannot be approached and compromised.

A.R. Krishnamurthy, son of B. Rachiah, a former Governor of Kerala, was widely reported to be the first contestant in India to lose by one vote.

Interestingly, not only a one vote margin, even a ‘tie’ has occured at least twice. On 2 February 1988, in the assembly constituency of Kherapara in the West Garo Hills district, Meghalaya, a tie occurred between Chemberlin Marak (Independent) and Roster M. Sangma (INC), both polling 2,591 votes. The returning officer declared Marak the winner by a draw of lots.

Joshi’s final tally was 62,215 votes against Chauhan’s 62,216. He then requested a re-tabulation of the totals of each EVM as totalling is done manually. The result was the same. As a mature and sagacious politician, he lost no time in congratulating the Election Commission for a fair election. Yet, the irony is, as reported, that two members of his family did not turn up to vote on the polling day! Since he was the party president in the state, had he won, he would probably have become the Chief Minister.

Britain, of course, was utterly shocked particularly because the only progress it had made on home turf in this regard was very recent and hard fought. In 1917 Britain had decided to extend suffrage to British women aged over thirty years but with some conditions attached,

Britain, in its three hundred years of democratic history, had the first, and the only woman leader of a major party in 1977, when Margaret Thatcher became the head of the Conservative Party and subsequently the only woman Prime Minister in 1979.

On 27 August 2009, the Union Cabinet approved an increase in reservation for women from 33 to 50 per cent in Panchayati Raj Institutions (PRIs). A number of states have also introduced 50 per cent reservation for women in municipalities and corporations.

we also have traditional matriarchal and matrilineal communities in the Northeast (Khasi tribes of Mizoram) and the south (Nairs in Kerala).

Therefore, in November 2009, the ECI directed all the provinces to amend the format of the application form and the electoral rolls to include a column entitled ‘others’ to enable transsexuals to tick this column if they did not want to be described as males or females.

Consequently, in the aftermath of the first IYY (International Year of Youth, 1985) in India, the sixty-first Constitutional Amendment Act, 1988, was unanimously passed in Parliament, lowering the minimum age of voting from twenty-one to eighteen.

However, the mid-1970s onwards, violence became an integral part of the election process though in a limited manner. After the mid-1990s and early 2000 the issue of election violence became an inevitable factor in electoral management.

It is noteworthy that it was also in Kerala that EVMs were used for the first time during a 1982 bye-election in the 70–Paravur Legislative Assembly constituency in Ernakulam district.

In April 1990, therefore, the expert committee unanimously recommended the use of EVMs without further loss of time.

EVMs have been used in all bye-elections to parliamentary constituencies and Legislative Assembly constituencies since November 1998.

EVMs even have the possibility of identifying the votes cast by individual voters, if necessary under court orders. In election petition 4/2001, T.A. Ahammed Kabeer versus A.A. Azeez, evidence was brought before the Kerala High Court that thirty-one votes had been cast by impersonation.

During the 2011–12 state assembly elections, there was a good deal of debate in the country about the efficacy of the voluntary Model Code of Conduct (MCC) and whether it should be made statutory. The ECI clarified that the MCC was working adequately without being a part of the statute

It was from the tenth general elections to the Lok Sabha in 1991 that the Election Commission started taking proactive measures to ensure strict compliance to the code by all concerned in both letter and spirit.

The MCC comes into effect the day the Election Commission announces or declares the schedule for any election and continues till the final announcement of results.

While the SLP was pending before the Supreme Court, the Union of India and the Election Commission arrived at a mutual agreement that the MCC would be enforced from the time of announcement of elections, but with a rider that the gap between the date of announcement and the date of notification of an election should ordinarily not be more than three weeks.

This provision was also reformulated to relax the ban and permit civil servants to lay foundation stones for projects that cannot be postponed.

The MCC, by its very nomenclature, is a self-regulatory code. It is not the creation of any statute, but the result of a consensus among political parties. Though the Commission cannot impose more than a reprimand, censure or condemnation in cases of MCC violation, political parties and candidates dread nothing more than a notice from the Election Commission under the provisions of the Code, as the action is not only widely reported in the media but also attracts condemnation from society in general.

This is not to say that the Code has no legal backing. Three important judgements have given the MCC judicial recognition.

Legal battles over Code violations are bound to linger for years rendering the exercise futile. The election period is short but charged and packed with incident. Because every activity is time bound, instant and effective action is essential. As a norm, cases of MCC violation are dealt with by the Election Commission in a matter of hours—even minutes. More often than not, the offender is forced to make amends in the quickest way possible. It is the speed and expedience with which decisions and justice are rendered that sustains the credibility of the Code. The Code is thus more about preventive than punitive action, and as a result, the Commission has hardly ever felt the need for statutory recognition for the MCC.

the Commission is not helpless in case political parties do not follow its provisions. Article 324 of the Constitution has been interpreted by the apex court to be a fountainhead of authority for the Election Commission in all those cases where no specific provision of law exists.

in April 2012 in the Rajya Sabha elections in Jharkhand (referred to in Chapter 10), when a large amount of cash was seized and the Commission had reason to believe that this cash was likely to be misused for buying votes while the MCC was in operation, the EC countermanded the election using the powers vested in it under Article 324. The Jharkhand High Court not only upheld the Commission’s order but hailed it as ‘the only step of great consequences taken by the Election Commission after independence of the country

if the budget sessions of their legislatures fall during the election period, to consider bringing in a ‘vote on account’ instead of the regular budget so as not to infringe the MCC. The governments have always accepted this advice.

In May 2012 an unprecedented situation arose in Goa where a bye-election was to take place. The MCC had come into operation when the Election Commission received a representation alleging that the Chief Minister was planning to induct a probable candidate, Alina Saldanha, into the Council of Ministers prior to the bye-election to 27–Cortalim assembly constituency scheduled for 2 June 2012. The complaint was that this would disturb the level playing field as the voters would be swayed in favour of the new minister. The Election Commission issued an advisory to the government to defer the inclusion. The Chief Minister was very agitated and argued that he had an unfettered constitutional right to constitute or expand his Council of Ministers any time he chose. The EC clarified that he indeed had the full constitutional right to do so, yet it reiterated that it was the ‘advice’ of the EC that he not do so. It is to the credit of Chief Minister Manohar Parrikar that not only did he accept the advice and defer the inclusion of the minister, but also remarked that he ‘bows to the moral authority of the Model Code of Conduct, which should take precedence over his constitutional right’. This response was indeed statesmanlike.

in one case in which a helicopter carrying an important national leader landed on a highway, the Commission, besides taking action against the leader under the MCC, wrote to the Director General of Civil Aviation (DGCA) to suspend the pilot’s licence. In another case when a headmaster postponed examinations in a school so that a public meeting by a leader could be organized on campus, the headmaster was suspended and disciplinary action initiated against him at the instance of the Commission.

If any new development work or welfare measure needs to be taken up, the matter can be referred to the Commission which takes an objective view keeping public interest in mind. The litmus test is whether, in the opinion of the EC, a new announcement is meant to induce voters and if the work can wait till the elections are over. The EC uses its good judgement along with multi-stakeholder consultation to make its decision.

I got a call from K.M. Chandrashekhar, the Cabinet Secretary, stating that Finance Minister Pranab Mukherjee was about to begin his reply to the debate on the Finance Bill and wanted to announce an increase in the grant of each MP under the MPLAD scheme from 2 crore to 5 crore. He wanted the EC’s approval in view of the fact that the MCC was in operation because of elections to five states

In view of the urgency the EC’s approval was given then and there with the proviso that the facility will not be implemented in the five poll-going states till the completion of the elections. This illustrates EC’s responsiveness in urgent situations.

A transfer policy requires that all officers who have completed three years during the past four years at the place of posting (or are posted in their home district) must be transferred out.

During elections to the Goa Legislative Assembly in March 2012 some political parties complained that the Government had issued antedated appointment letters after the MCC had come into effect on 24 December 2011, and also accepted the joining reports of the new appointees in an expedited manner. An inquiry revealed that 140 candidates had been issued appointment letters which were antedated 20 December and, of these, 136 joined their places of postings between 24 and 26 December. It was found that two officials had moved the files outside the file monitoring system without entering the details in the diary and despatch registers. The files had also bypassed the secretary of the departments. The Commission had to order the suspension of the director and head clerk.

Ruling parties across the spectrum resort to publicizing the achievements of the government with full page advertisements in newspapers, magazines and on TV channels at huge expenditure, all borne by various ministries and departments of the government. This usually happens a few months before the announcement of elections when the Election Commission cannot intervene. Once the schedule is announced, the Election Commission ensures that all such advertisements involving abuse of public money for political gains are stopped forthwith. However, a new dimension has come to light recently after the phenomenon of ‘paid news’ raised its ugly head. Since the ECI has become vigilant in controlling election expenditure, candidates have started striking prior deals with media houses. The agreement works like this: I, the candidate or party, will give you, the media house, ads worth so many million rupees before the MCC comes into force; you will do stories in my favour without any charge as soon as the MCC becomes operational. This way nobody will catch you or me!

In the Election Symbols (Reservation & Allotment) Order 1968 there is a provision in paragraph 16A which empowers the Election Commission to suspend or withdraw the recognition of a political party for failure to observe the provisions of the MCC.

The Election Commission saw some press reports on 21 February 2012 that the government was considering converting the MCC into a statute. It was further observed from press reports that the Group of Ministers (GoM) constituted to go into the question of corruption proposed to discuss this issue at a very early date on the basis of a ‘secret’ note moved by the Union Law Ministry. The ostensible reason in support of this move was that the MCC should be given sharper teeth. However, for many political analysts, it was a thinly disguised ploy to divest the Commission of its powers to enforce the Code because enforcement would move through executive and judicial channels outside the EC’s control.

The following illustration will demonstrate fully the futility of the MCC being given statutory backing. At the time of the elections to the Karnataka Legislative Assembly in 2008 a sitting minister was found bribing voters. This is both a specific violation of the MCC and an electoral offence, and a corrupt practice under the law. A notice was issued to the minister by the Election Commission for this violation of the MCC; alongside, a police complaint was lodged under Section 171B of the Indian Penal Code. The minister concerned submitted his reply to the Commission within a few hours and was reprimanded promptly, which stopped him from repeating any such misdemeanor. On the other hand, the investigation in the criminal case continued for months after the election. When the Commission reminded it to expedite the investigation, the state government’s cabinet decided in a meeting, at which the aforesaid minister himself was present, to withdraw the case before the trial court. When the Commission decided to intervene and oppose the withdrawal of the case, the state government took the matter to the district judge who held that the Commission had no

locus standi to oppose the state government’s decision. It took a lot of effort and expense by the Commission to get the district judge’s order reversed by the Karnataka High Court. And yet, the case is still pending before the trial court!