Law and practice

Indian electoral law lags behind the growing vigour of its democracy. Consequently, large areas of the electoral process remain on the blind side of the law.

SUKUMAR MURALIDHARAN

FOR an exercise that is almost epic in its scale, the Indian electoral process subsists on a legal foundation that is rather modest. Large areas of the process remain on the blind side of the law. And where the legal basis exists, its enforcement presents a mixed picture.

There are, however, certain clauses in the Constitution that provide a broad measure of empowerment to the Election Commission to supervise, direct and control the electoral process. Because it is so broadly defined, Article 324 of the Constitution provides for a degree of arbitrary interpretation. It is this very vagueness of the constitutional provisions that T.N. Seshan utilised with consummate mastery and an eye to the main chance during his colourful tenure as Chief Election Commissioner (CEC) that ended in December 1996. But where a strategy of discussion, debate and judicious petitioning may well have paid off, Seshan chose to drive the steamroller straight through. For this, he made use of loopholes in the law. Politicians achieved a rare cross-partisan unanimity in deprecating his often whimsical actions as the CEC.

Seshan's most ambitious adventure came in August 1993, when he announced the suspension of all electoral activity in the country pending an authoritative ruling on the scope of Article 324. In particular, he was insistent that all the staff deployed for election duty, irrespective of who their original employer was, came within his exclusive disciplinary jurisdiction. There was a degree of grudging appreciation for Seshan's brassy attitude and his readiness to engage in a bare-knuckles fight with politicians who had till then enjoyed a relatively free run on the election front. But his alacrity in taking electoral democracy itself hostage was met with alarm.

The retaliation was swift, though it did not take effect till the Supreme Court was called upon to pronounce authoritatively on the constitutional issues involved. In October 1993, the Election Commission was augmented with the induction of two more Commissioners. Seshan continued to be first among equals as the CEC. But it was made clear by the order of appointment of M.S. Gill and G.V.G. Krishnamurthy that decision-making within the E.C. would be by consensus and where this was not possible by majority vote. Seshan's dictatorial authority was neutralised in one swoop, though a phase of litigation was to follow in which he seemed till the very end to enjoy the balance of advantage.

Seshan misread the stay that he obtained from the Supreme Court on the operation of the order on the new Election Commissioners as a sanction to step up the pitch of his quixotic meanderings through the Indian political system. When the final pronouncement came from the Supreme Court, it was a stinging rebuff for the man who had begun to utilise blatantly the constitutional protection of his office for personal political aggrandisement. To his credit, Seshan took the blow on the chin and went about the rest of his tenure in elaborate deference to the Supreme Court's order.

His ambition bridled by two colleagues of equal authority and power, Seshan contributed in the latter part of his tenure to a constructive and long-overdue reinterpretation of electoral law. Long-neglected ceilings on election expenses were resurrected and enforced, despite the obvious inadequacy of the amounts stipulated and their failure to adjust to the inflationary processes over the years.

A loophole in the law that allowed political parties to meet a candidate's expenses with little restraint was plugged by a parallel intervention from the Supreme Court. Responding to a public interest petition filed by an independent advocacy group in Delhi, the Supreme Court ruled that no party was exempt from the requirement of submitting income tax returns. As the main defaulter on this count, the Congress(I) was trapped in a rather awkward situation by this ruling, but it managed to meet the deadline imposed by the court.

This dual system of vigilance - between the E.C. and the Income Tax authorities - makes it conceivable that the abuse of money power in elections could be curbed. Yet a number of loopholes exist and they call for attention on a priority basis. Within the given parameters Seshan was a zealous policeman, though never particularly enlightened in suggesting avenues that needed to be explored to place electoral law on a firmer foundation.

Training election officials in polling procedures.

A case in point is Seshan's messianic insistence on the issue of voter identity cards to the entire Indian electorate. Although his deadlines were flexible, the insistence on identity cards for a nation where a large part of the electorate subsists on the margins of political empowerment seemed to suggest an authoritarian intent. With the dilution of his powers and then his superannuation, identity cards ceased to be an issue of election law. The effort to bring in a form of voter registration that can withstand the menace of impersonation and ballot-stuffing continues. But there is a realisation that the best guarantee is the growing politicisation of sections that have till now remained outside the mainstream of electoral activity.

THE rising degree of contestation of elections brings up another problem - of legitimate campaigning often boiling over into intimidation, coercion and, in the final instance, ballot stuffing. One legacy of the Seshan years is the coverage of all polling stations by the Central security forces. The logic is that the State security agencies tend to be more permeable to local influences than Central forces brought in for the occasion.

There is little doubt that levels of voter turnout in recent elections have shown a rising trend and that large numbers of the poor have entered the political process without fearing retribution from the dominant sections. But again, there is a problem of segregating cause from consequence here. It is not clear that the entry of the poor into political activity is on account of assurances of security and protection held out under the law, or whether the latter has been called forth by the sharpening antagonisms arising from the former.

AN immediate challenge is the rising temperature of communal and caste animosities that electoral contests have invariably engendered in the recent past. This is where the enabling provisions of law are the most comprehensive in the powers that they confer on the authorities. But this again is a sphere where action has been modest and the precedents are not specially weighty.

Section 123 of the Representation of the People Act, 1951 holds 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" to be a corrupt electoral practice warranting disqualification of a victorious candidate from elected office. Similarly, Section 125 enables the prosecution of any individual who vitiates an election campaign with appeals on the basis of the same forbidden criteria. There are corresponding provisions in the Indian Penal Code (Section 153A) that enables the proscription of political organisations that spread such propaganda.

Redress is available under these sections only post facto, through an election petition before a High Court. Yet the power of judicial precedent in the enforcement of these provisions was diluted considerably by the 1995 ruling of the Supreme Court in the case of Manohar Joshi and others. While admitting that all the evidence that the Shiv Sena legislators arraigned before it had violated these provisions of the law in appealing for votes in the cause of Hindutva, the Supreme Court let them off on the grounds that their consent for these appeals was not proven. In other words, a candidate could not always be held responsible for the conduct of his election agents.

The decision appalled all those who had watched the growing salience of religion, caste and communal appeals in electioneering with a sense of alarm. But in the context of Elections 1998, which are likely to prove India's most contentious elections so far, a fresh interpretation of these provisions of law is clearly called for. The foremost priority perhaps is an expedient process of judicial determination. The appeals that were disposed of by the Supreme Court in 1995 pertained to elections held in 1989 - well after the legislators concerned had completed their terms in office. Even if the Supreme Court had upheld the ruling of the Bombay High Court, the deterrent value of its judgment would have been undermined by the inordinate delay in decreeing it.

In overturning the disqualification of several legislators, the Supreme Court was clearly guided by the notion that the electoral process establishes its own system of legitimacy - that the judiciary should be extra cautious in pronouncing any decree that may abridge the integrity of the electors' choice. But one more electoral outcome that is determined almost exclusively by community and caste allegiances will perhaps do the far greater damage to the foundations of India's electoral democracy. That is the cruel dilemma that Indian electoral law - which is still in its infancy despite the growing vigour of Indian democracy - has to confront.