In Erewhon’s court—countermanding the election

If a candidate is permitted to keep another candidate and colleagues in captivity, it’s like seeking advice from Vladimir Putin on electoral conduct.

An Election Commission of India poster in Manipur ahead of the 2024 Lok Sabha election. | Photo Credit: Gunjan Sharma/PTI

We sit here today to consider a matter of some importance, some may say tremendous importance. So important that we have drawn lots to constitute the Bench for this case, to avoid the controversies over the Master of the Roster choosing judges for cases and causes. After all, we frown at the Bar when they shop for judges, it’s best we are not seen to select dispensers of justice, because undoubtedly, each dispenser has a weight, volume, and content of its own. So, lots it is.

We have an interesting group of petitioners. They are all young and represent colleges across the country. They have come with a three-page petition; obviously précis writing is encouraged in our educational institutions, one wishes it were in courts. They say that the basic norm for elections is to secure free and fair elections. They say that if in a college election one candidate kidnaps another and removes the purse from the pocket of the third, the college authorities would have had no hesitation in cancelling the election. They want the same standard applied for the country’s politicians.

At the outset, we asked if they had approached the Election Commission of India, since that is the constitutional body charged with free and fair elections. They say, “No” because this is a body chosen by the group which has committed the acts complained of. Earlier, the Chief Justice of India was on the selection committee and at least there was some faith, but he has been removed and substituted by an ordinary minister. They say they have no faith in such a body, and no one in the country has, and ask if we do. We sternly told them that it was for us to ask the questions, and thus got out of a difficult situation.

Integral part of our democracy

The Constitution, the Representation of the People Act, and law laid down by this court place primacy on free and fair elections as an integral part of our democracy. It is a non-derogable part of the basic structure of our Constitution.

At the heart of every election are candidates who stand against each other and offer the electorate a choice. If one candidate is permitted to keep another candidate and his colleagues in captivity, we might as well ask Vladimir Putin to tell us how we can conduct elections, so that we can be one nation speaking with one voice for one victor. No, that’s not the way we want it and that’s not the way our Constitution wants it. We want our people to have real choice, and we have seen in the past, notably during the Emergency, how well they wielded this power.

Similarly, funds are essential if you are to fight an election. We all know that the limit set in the Representation of the People Act is an absurdity, and that it requires vastly more amounts of money to fight an election. The party in power has a natural advantage in this regard, and if it harnesses the Enforcement Directorate and other agencies to its party office, then it has an unnatural advantage as well. To try impounding the money chest of another party while itself being flush with bonded monies is obvious unfairness even to those unlettered in the law. And even though we frowned on electoral bonds, we didn’t ask the beneficiaries to disgorge their gains. We should have, and like the Consumer Fund in excise duty cases, set up an Election Fund that would provide free broadcasting on TV and radio to candidates on a fair-time basis. A failed opportunity to do some out-of-the-box thinking.

To allow an election under these circumstances would do the deepest damage to our constitutional republic. We cannot allow it and still call ourselves a court charged with protecting the Constitution.

Time to suspend the ECI notification

We therefore suspend the notification of the Election Commission of India providing for the 2024 Lok Sabha election and State elections. Once the conditions for a free and fair election are restored, we will lift this suspension.

In the interim, there will be a caretaker government headed by the President of India. It will consist of representatives of the main political parties. It will be strictly a caretaker government and take no policy decisions. The Model Code of Conduct for elections will be operative. We are aware that there is no constitutional provision for this but neither did the Constitution imagine the present state of affairs. Necessity and public interest suggest their own legal remedy. There is a basic structure in the Constitution, and a basic structure for the country, and free and fair elections is at its root.

Lastly, the ED will now report to this court for its actions and take orders only from this court. We will request a former Chief Justice of this court in whom we have confidence to superintend the agency.

Erewhon (anagram of Nowhere) is based on the novel Erewhon by Samuel Butler set in a fictional country. It is a satire. The court, judge and judgment in this piece are fictional. Sriram Panchu is real. He is a senior advocate at the Madras High Court. He was assisted by Vikas Muralidharan, lecturer, Sai University, and Aprameya Manthena, advocate, Madras High Court.