‘Model code is like a fire brigade’

Interview with S.Y. Quraishi, former CEC.

S.Y. Quraishi: "The downside of election has been that it has increased polarisation."

AS India’s Election Commission comes under increasing scrutiny for its omissions and commissions during the general election, the timing of the release of the book An Undocumented Wonder: The Making of a Great Indian Election (Rainlight/Rupa, 2014) has gained immense significance. The author, Shahabuddin Yaqoob Quraishi, who was an Election Commissioner (2006-2010) and Chief Election Commissioner (2010-2012), is therefore, highly qualified to unravel the complexities of conducting a general election in the country. In this interview, Quraishi tells about the nuances of conduct and supervision of elections, taking care to avoid controversy. He expands on some of the themes that he deals with in the book in the context of the general election.

In the foreword to your book, Gopalkrishna Gandhi admires your performance as the CEC in curbing the brazen and illicit role of money in our elections. Do you think the E.C. can do more than just intercept a few vehicles and recover what is allegedly black money?

The E.C. has done a lot in this regard, but when we do that, people go to court, and start protesting. There have been many writ petitions also. In Tamil Nadu, a judge made a suo motu PIL [public interest litigation] and he asked us to stop doing what we were doing. After the Gujarat Assembly elections when the matter went to the Supreme Court, the E.C. undertook to tone down its stringent measures.

To know whether black money was moving around, we had to stop every car. Citizens were getting harassed. Particularly in Gujarat where there is a lot of diamond business and crores of rupees are carried just in cash. So they said that you have to strike a balance somehow, but the question is how does one do it. But considering the huge stakes for money power in elections, whatever we do, they [the political class] come up with a new modus operandi . Some slip of paper is given beforehand and one can go and collect the motorcycle later. Likewise, I have identified 40 modi operandi .

In my first press conference [as the CEC], I had said I would address two issues: black money and voter apathy. We set up two divisions—voter expenditure division and voter monitoring division—both of which have been very successful.

You have claimed, on the basis of the E.C.’s experience in conducting elections in Jammu and Kashmir and Punjab, that elections can prevent polarisation of communities. On the contrary, the ongoing election campaign in a few constituencies has witnessed crude communal mobilisation by political parties. You have also said that an emotive election plank polarises the electorate and burdens the election machinery. Is there a paradox here?

The downside of election has been that it has increased polarisation. Communal and caste divisions, which were not so distinct earlier, have become pronounced because politicians try to convert voters into vote banks. People who did not know their caste 60 years ago are now being reminded about their sub-sub-sub caste. As new generations get education, these distinctions should have got blurred. Even though vote bank is referred in the case of Muslims, they are not vote banks. If 15-18 per cent people were voting as a bank they would be in power. But as you know, they are totally disintegrated.

In the book I have said elections lead to reduction of conflict. It helps to diffuse the situation when people get an outlet to express their opinion. In fact, when we took a decision about Kashmir after Amarnath Yatra [2008], it was a very tough call. People will just come out on the streets and throw stones, but once you get busy with elections it brings a hostile situation to normalcy. If they have a grievance, at least they have an MLA to go to. Considering that militants keep giving boycott calls, the voting percentage is very decent.

There is a paradox here. While on the one hand elections and democracy are supposed to dissolve conflict as they offer a political route to solve problems, on the other hand, politicians use caste and communities to polarise. They deliberately accentuate polarisation. There is polarisation post-Muzaffarnagar. In 2008 in Kashmir, there was polarisation between the Hindus and the Muslims, and the valley had boycotted the rest of India, even refusing to take goods from there by stopping trucks. It became fodder for the militants. The Commission was divided on whether to postpone the elections. Many State leaders said that if elections were held then there would be bloodshed. But the militants were getting bolder. Two of us in the Commission, including me, were of the opinion that if we delayed [holding the elections] the situation would worsen. Ultimately, we stood vindicated.

You have observed that 80 per cent of the campaign funds are from the corporate sector. What steps has the E.C. taken or can it take to check this?

Every rupee raised and spent by political parties should have been received by cheque. Say, out of Rs.1,000 crore, they will disclose only Rs.200–250 crore and the rest they will say was collected in cash. This money can be black money, drug money or even foreign money; therefore, this money can be dangerous. To ensure that funding is transparent, we have been demanding an audit by an independent auditor from a panel to be given by us or the CAG [Comptroller and Auditor General]. Otherwise they get an in-house auditor to do a whitewash job. When the party card-holder is the auditor, he cannot give a true picture. The Representation of the People Act [RPA] should be amended for this.

Violation of expenditure ceiling Although there is cap on the expenditure of a candidate, it is violated with impunity. Even if the current ceiling of Rs.70 lakh is given by the state, the candidate will not stop spending the Rs.5 crore that he has already been spending. The more you spend, the more you need to collect and the more you need to collect, you will do everything possible: twisting arm, quid pro quo , striking deals because somebody gives you money. There is no free lunch, and you have to return the favour. The favour will be returned in the form of contracts, licences, change of policy, appointment of officers on their recommendation, even appointment of Ministers. If somebody has spent Rs.5-10 crore to win an election, the first thing he does when becoming Minister is to ask his officers to start collecting that money for him. The officers will then pocket some and give him some. The nexus between politicians and the bureaucracy begins, and when two instruments of governance strike such a deal it is very difficult to stop corruption.

There should be a cap on party spending also. Section 77 of the RPA should be amended for this. Election is about equality and democracy, and everybody should have a chance. Spending should also be transparent. They should declare how much TV or radio time or newspaper space they are buying. There are rate cards for advertising, and anybody who puts his mind to it should be able to sit down and work out the costs.

Per se , paid news is not illegal. If it is declared as an advertising expenditure or it is paid by cheque, it is legal and valid. You can spend all the Rs.70 lakh on media. But when it is not declared, we know that it is all black money, which is suppressed and distributed as cash. This disturbs the level playing field and deceives the voters. Self-regulation of the media sounds good but it doesn’t work. Maybe, an independent regulator that can work autonomously is required.

E.C.’s compositionYou have appreciated the role of the multi-member commission, in contrast to the single-member body that the E.C. was before 1989. You have claimed that there were instances of you moderating the views of the other two members, and you yourself being moderated by the other two. Can you cite a few instances when these happened?

There are benefits to a multi-member commission. During Mr [N.] Gopalaswami’s time [as the CEC], there were three or four cases where the members had difference of opinion and decided by a majority. Unlike in the judiciary where the majority/minority opinions [in a judgment] are known, we give a unanimous decision. We do not allow difference of opinion to come out in the open. For instance, during the Karnataka elections, many people wanted us to postpone the elections as the electoral rolls were not perfect. But electoral rolls are dynamic and can never be perfect. Hundreds of people die and migrate from one place to another, upsetting the rolls. Again, when a member [of the E.C.] gets an idea, he either persuades the other two to accept it or is persuaded to drop it. We want to be united, and any difference of opinion we sort out behind a closed door. There was a time when we used to argue in front of officers and they used to leak the issue, vitiating the atmosphere. So we decided on resolving our differences among ourselves.

Should the CEC have the power to recommend removal of an Election Commissioner?

No. Election Commissioners and the CEC are equal in all respects including the vote and salary. It is only that somebody has to preside over the meeting and be the face of the commission. The appointment of Election Commissioners should be by a collegium. The government of the day appointing us is a weakness in the system. Because fingers can be pointed at the appointees saying that so and so is a Congressman etc. Gopalaswami was appointed by [L.K.] Advani but he did not show the slightest favouritism to anybody, nor did we. But that will be taken care of if the Leader of the Opposition is also a signatory to our appointment. The CEC is the senior-most among the Commissioners and is separately appointed so far, not by an automatic promotion. But legally, the government can bring somebody from outside as the CEC. Also the Election Commissioners should not feel they are on probation. It should be strictly by seniority. Once, the government tried to bring a CEC from outside, but [B.B.] Tandon and [T.] Krishnamurthy [the then Election Commissioners] threatened to resign and the government backed out.

The Constitution-makers deliberately preferred parliamentary democracy, over a presidential system, as the former suits the Indian situation. But if a party adopts a presidential-style campaign to project a leader as the next Prime Minister, what impact will it have on our political process?

We have a Westminster style of parliamentary form of government by choice, and not presidential. If some party has chosen to declare the candidate beforehand it is not a violation of any law. The propriety of it may be a subject of an academic debate only. The framers of our Constitution chose the parliamentary form so that every region is able to exercise its power. Now if a powerful man comes because of his personality, the value of MPs who used to carry the weight will dwindle. The Constitution did not envisage this, but it also did not specify it either way. This goes against the parliamentary form where elected MPs nominate their Prime Minister. But let us see how it works.

Model codeYou have been critical of attempts to provide statutory support to the model code of conduct (MCC), because in your view, the E.C. should not be deprived of its power to stop violations of the code during the elections. But experience shows that the E.C. lacks the teeth to punish violators and also those who defy its authority openly.

The model code is not a substitution for any Act. While it is in the jurisdiction of the E.C., filing of a first information report [FIR] takes it into the jurisdiction of the judiciary. An FIR is also a slow process where it may take years to prove something and secure a punishment. Whereas through the MCC, the E.C. can send a notice, charge-sheet someone and people remember that. The MCC is more like a fire brigade that immediately extinguishes the fire rather than go after the culprit. If somebody uses 11 cars instead of 10 or pastes a poster outside somebody’s house, it is ridiculous to file an FIR for it. We are not trigger-happy. In case of hate speech by a party member, I appeal to political parties to control them. When Salman Khurshid, Beni Prasad Verma and Sriprakash Jaiswal violated the code in succession and continued to defy it, we toyed with the idea of giving a notice to their party [the Congress]. It was unprecedented.

You have supported state funding of political parties on the basis of the votes secured by them, rather than state funding of elections. Can parties not take the fund from the state and still overspend with corporate funding?

If the idea is approved in principle, details can be worked out. We are telling the political parties to not raise money from private sources and sell the nation and lose your dignity. The corporate donor thinks, here comes the beggar. What I suggest is, for every vote you get, take Rs.100. This is the case in 80 per cent of the European countries. We recognise that in a democracy, people need funds to fight elections, but they should be legitimate. The quid pro quo or crony capitalism that happens all the time will go away.

I arrived at the figure of Rs.100 by considering that during the last general election 42 crore votes were cast. Some fund can be created for this. I have calculated Rs.10,000 crore in five years at this rate. If votes increase from 42 crore to 50 crore then it can be increased accordingly. Corporates also don’t want transparency. They say if we give to one party, the other party gets annoyed, or others will also make a beeline. But what they mean is that if I give a crore and in return I get a favour, that nexus will be known to everybody, because it will have to be declared. If government is funding, there will be a CAG audit where truth will come out. Under the proposed system, all parties will get reimbursed by the state after the elections, on the basis of the number of votes they secured.

Do you think opinion polls can influence the electorate? If they can, how about banning only forecasting on the basis of opinion polls since they otherwise yield rich data on many aspects of voting behaviour?

Per se , there is nothing wrong with opinion polls as it is good research. The E.C. also conducts opinion polls. We call it knowledge, attitude, behavioural practice survey. We can refine our methods with this information. But just like paid news, there are also paid opinion polls. Everybody has heard of Coca-Cola because it spends $1 billion on advertising. It has a recall value. If opinion polls project a winner, there is a bandwagon effect. Paid news started with real estate and share market. A couple of shares are bought at high price and the news is leaked in the newspaper that the share value is shooting up. A person reading the news will spend all his savings on it only to realise that it was a bogus transaction. In my book, I have given instances where candidates have won or lost by a single vote. Even if one voter was cheated into believing the bandwagon, it is wrong. Bandwagon effect itself is not wrong, but if it is created out of cheating, then its fraud. An honest and scientific opinion poll is a good thing because every party wants to know the public opinion and change its policies and programmes. Influencing a voter dishonestly interferes with free and fair elections. The Supreme Court has said, “People have a right to correct information, disinformation is a threat to democracy, manufactured opinion poll is disinformation.”

Opinion polls can be banned through an Act of Parliament. In 1997, all parties came to the E.C. and said, use your plenary power under Article 324. In 1998, the E.C. issued an order banning opinion polls under Article 324. Somebody went to the Supreme Court. The court asked the E.C. how it will enforce [the ban] if somebody is found guilty and how it will punish. We withdrew. In 2008, we vetted a draft which said both exit and opinion polls will be banned. Finally, when it was put up before Parliament, they [the MPs] only talked about exit poll ban, not opinion poll ban. Then they [the parties] came back to us crying again. So we told them they should have used the opportunity when the ball was in their court. They only realise it when it goes against them.

The Supreme Court has observed that democracy cannot survive without free and fair elections. One-sided information, disinformation, misinformation and non-information can all create an uninformed citizenry which makes democracy a farce.

While defending the first-past-the-post system, you have expressed your unease with the alternative systems, such as proportional representation and run-off elections (to ensure that the winner gets at least 51 per cent of the votes polled). There have been reasonable arguments in favour of these alternatives.

Proportional representation has some logic in it, but the first-past-the-post system is easy to understand for an illiterate voter. I oppose run-off election because it is also a full-fledged election and, therefore, fatigue sets in.

You have also been critical of the M.P. Local Area Development Scheme (MPLADS) which has been approved by the Supreme Court.

MPLADS is fine, but under the scheme each MP is entitled to spend Rs.5 crore per year. We found that in Uttarakhand, MPs keep on accumulating Rs.5 crore [without spending it every year] and in the end you have Rs.25 crore. In the last six months [before the elections], before the E.C. comes into play, you go out distributing these doles. Though Rs.70 lakh is the ceiling, you are validly spending Rs.25 crore in the constituency, whereas a candidate who is not a sitting MP has nothing. So it disturbs the level playing field. I doubt if this argument was raised before the Supreme Court.