Crisis of confidence

The Election Commission (E.C.) is yet again faced with a massive challenge. The days of booth capturing are now history because of a proactive E.C., but the menace of cash for votes is casting its long shadow on the conduct of free and fair elections.

Ahead of the 2016 Legislative Assembly election in Tamil Nadu, there were 7,500 “flying squads” for the 12,500 villages in the State, with 500-plus observers and Indian Police Service (IPS) probationers manning them. Besides, there were many teams with attractive nomenclatures, such as Quick Reaction Teams, Static Surveillance Teams, Micro Observers, Video Surveillance Teams and Video Viewing Teams. All complaints were processed with minimal delay and even the Chief Electoral Officer (CEO), the nodal election official in the State, did not interfere with or order raids. Complaints went directly to the flying squad and the squads were despatched with minimal delay. But there were multiple problems. First, though there was a massive force of flying squads, as many as 25 squads for the nearly 30 villages (on an average) in each constituency, they proved ineffective because each village has many hamlets. As local-level leaders got information on the movement of squads, they were well placed to adapt and move.

Second, not all observers were keen on doing their duty with a sense of mission. Some were reportedly seen in Tirupati, while others were in hill stations, despite the E.C.’s extremely rigid rule book on the conduct of such officials.

At other times it was sheer incompetence, such as in the case of Aravakurichi, where the raiding officials did not secure the whole premises but went straight into the main residence of a candidate on a tip-off about his money distribution plans.

E.C. aware of magnitude

It is not as if the E.C. is unaware of the magnitude of the problem of voter bribery in the State. In its order countermanding the elections in Aravakurichi and Thanjavur, the E.C. said in its 29-page order: “From the very early stages of the notification of the election, the Commission started receiving complaints in large numbers with regard to the distribution of money and other gifts in the form of consumable items, etc., to the electors…. In the Commission’s considered opinion, allowing the electoral process to proceed and conduct the postponed poll in the constituencies on June 13, 2016, as scheduled, in such vitiated atmosphere would severely jeopardise the conduct of free and fair election in the said constituencies, and would not be reflective of the true choice of the electorate. If the Commission permits the election process to continue in such vitiated level playing field, it would be failing in its constitutional duty of ensuring free and fair elections for which it has been created as a specially empowered constitutional authority.”

The same logic is applicable to most of the 234 constituencies in the State; only the magnitude of the bribery varied.

In the Compendium of Instructions on Election Expenditure Monitoring, the E.C. instructs that expenditure sensitive constituencies (ESCs) be identified. The Tamil Nadu CEO has carried out this exercise.

“The constituencies where leaders of parties, Ministers and ex-Ministers contested were classified as ESCs . But this entails one expenditure observer for these constituencies. In fact there were 182 expenditure observers for 234 constituencies. The other enforcement measures were unprecedented,” CEO Rajesh Lakhoni said. The flying squads worked in three shifts and “involved 90,000 people round the clock to stop distribution,” he added.

As a candidate files the nomination papers in a constituency, he or she is given a copy of the Handbook for Candidates, updated in 2009. Page 2 of Chapter 1 of the 389-page booklet says: “An important pre-condition for fair election is to curb the money power which undermines the level playing field. This can be achieved by keeping a proper watch on expenditure incurred by the candidates/political parties. The Commission expects you to cooperate with the election machinery for implementation of its instructions on campaigning through vehicles and defacement of public and private properties.”

The provisions for the first statutory disqualification are contained in Section 8 of the Representation of the People Act, 1951. Under this section, a person convicted of an offence is punishable under, among other clauses, Section 171E (offence of bribery) or section 171F (offence of under influence or impersonation at an election). The provisions for the second statutory disqualification are contained in Section 8-A. The section provides for disqualification for corrupt practice in an election. A person found guilty of a corrupt practice by a High Court in an election petition or by the Supreme Court in an election appeal may be disqualified for such period, not exceeding six years, as may be determined by the President in accordance with the E.C.’s opinion.

Theory and practice

This correspondent met more than a dozen experienced officials who had held various positions of responsibility, from the level of conducting elections at the district level to being posted as observers across India. At a private discussion, they said that the E.C. should hold elections only when it is certain that they could be free and fair. The constitutional issues or crisis arising out of a postponement of elections cannot be the E.C.’s problem; its mandate is to hold free and fair elections. “By the E.C.’s Aravakurichi/Thanjavur logic, the entire elections in Tamil Nadu should have been cancelled. Money was moved and distributed systematically and meticulously, with one person in charge of distribution to 30 voters, from what I hear. The E.C. did nothing. Nor did any media highlight it,” said one official.

Instead of focussing on 100 per cent voter turnout, the E.C. should focus on zero per cent bribing of voters, the group said. “Of course, both are impossible ideals but the latter is more credit-worthy,” an official said.

Blaming the media, another official said: “I think the media have been pampering the E.C. for far too long, right from [former Chief Election Commissioner] T.N. Seshan’s days and glossing over its failures. The E.C. did succeed in preventing booth capturing, intimidation of voters and other acts of lawlessness which were problems confined to certain States. But the E.C. has failed spectacularly in curbing the bribing of voters, with politicos always five steps ahead of it, and coming up with ever so many innovations. The E.C. has generated enormous useless paperwork and posted a large number of officials, all to little avail. The E.C. is tough only on the poor bureaucrats and I can't recall a single instance of a powerful politician being punished by the E.C.”

A fourth official offered suggestions on what more the E.C. would need to do to control the menace of widespread, organised cash distribution. “The E.C. has got the entire bureaucratic machinery at its disposal. It is just that its act is more show than substance. For example, if the E.C. is really serious about curbing cash distribution, it should come up with a 10 per cent cash reward scheme as there was in Customs during the V.P. Singh era. Information will start flowing in. Some of it may be spurious but much of it will be actionable. With mobile phones with cameras being ubiquitous, one may even get actionable evidence. The trick is to get info about where money is stored and how it is transported. Any greedy or disgruntled employee will blow the whistle. It is really not that difficult,” he said. “The idea is not to catch at the distribution stage but at the ‘generation’ and ‘transmission’ stages. Drivers, cleaners, watchmen, loaders and unloaders, etc., can all be potential whistle-blowers if you make it worth their while and protect their identity,” he added.

All of them agreed that getting insider information was the only way to curb cash hoarding and transfers. “If you can get details of how the political parties move such large amounts of cash and how the distribution network is organised with proper safeguards against misappropriation and fraud, then it might be worth the effort,” a seasoned former bureaucrat said.

Recalling his experience, another official said: “It is difficult to get at the wholesale network. For instance, as Collectors we were always getting proposals from the police for detaining small-time retail sellers of illicit arrack. I used to ask the officer concerned to bring cases of large-scale storage and transport. I didn’t get any. It needs proper intelligence and the will to take on the big players. If the police are hand in glove, nothing can be done. There is also a lot of public support for this practice.”

Everyone agreed that political will was needed if money power was to be curbed.

Sindhujaa Iyengaar, who works with Amnesty International on advocacy and strategy, said cash for votes appeared to be unstoppable. “From the first general election, the two most common election troubles have been booth capturing and voter bribing. Booth capturing is kind of fixed now, with electronic voting machines (EVMs) and security, etc. Cash for votes appears unstoppable, with the mind’s ability to innovate new methods. Every campaign team has specialists in charge of ‘distribution jugaad’.”

Sindhujaa Iyengaar, who is working on “Electoral Systems and Political Representation: An Evaluation of Alternatives to First Past the Post in India”, for her doctorate, said one of the many alternatives that could be considered was proportional representation. “The first past the post system, wherein a candidate needs maximum votes and not majority votes [in a constituency] to win an election, is resulting in minority governments coming to power. So, even if we have free and fair elections, our outcome remains a democratic fraud, because a minority government cannot ethically claim to represent the majority.”

Views from the affected

Representatives of political parties, barring the All India Anna Dravida Munnetra Kazhagam (AIADMK) and the Dravida Munnetra Kazhagam (DMK), said in one voice that the E.C. had failed in its primary mandate of holding free and fair elections in Tamil Nadu. “It is not lack of power, it is lack of will,” said Viduthalai Chiruthaigal Katchi (VCK) leader Aloor Shanavas,who lost the elections.

The Pattali Makkal Katchi’s (PMK) Anbumani Ramadoss, VCK leader Thol. Thirumavalavan, and Communist Party of India (Marxist) Rajya Sabha member T.K. Rangarajan asked what prevented the E.C. from conducting a forensic audit of costs in each of the constituencies.

Anbumani, who met the Chief Election Commissioner in the first week of June in New Delhi, has demanded a ban on freebies in the election manifestos of political parties, the appointment of civil servants from other State cadre to conduct elections in Tamil Nadu, doing away with the allocation of permanent symbols for elections, fixing a limit for the expenditure of political parties on elections and relieving all political appointees from their positions ahead of elections.

On the Model Code of Conduct that comes into force when an election is announced, he said: “There is no legality in the Model Code of Conduct. The E.C. is a powerless body. They don’t have the power even to frame one small rule. Everything has to go to the Ministry. There are so many rules that can be changed easily.”

In the current scenario, he stressed that it was impossible to hold free and fair elections in Aravakurichi and Thanjavur, the two constituencies were the E.C. rescinded the notification. “First, the same candidates are contesting. Kalaignar [DMK president M. Karunanidhi] says that the AIADMK distributed cash. The E.C. order mentioned the DMK’s candidate. Will he take action against the candidate? The argument should be the same for everyone, right? However much the police and the others come in, they [both Dravidian parties] have mastered the art [of distributing money]. They also distribute tokens. Only cash will lead to trouble, right? So, they distribute tokens.”

Pointing to larger systemic issues, Rangarajan said:

“As long as elections are marketed to people as festivals, instead of as a life-and-death issue for the voter, it will not be possible to control the menace of bribery. Finally, it all boils down to what the neoliberal economic agenda has achieved. The rural rich are not merely content with being landowners anymore. They also own a rice mill or some small factory, control the panchayat, the cooperative lending society, and employ people. They will have a definite say in how the majority of the villagers vote.”

Former CPI(M) general secretary Prakash Karat had submitted a memorandum to the E.C. on accountability issues in August 2006. In it, he had stressed the need to define the E.C.’s accountability so that its decisions are not taken in a non-transparent, arbitrary or subjective manner.

“For instance, why were the polls to Thanjavur and Aravakurichi put off, while the Rajya Sabha polls from Karnataka went on?” asked Rangarajan, who said that the issue in both the cases was the same: the use of massive money power.

Officials and politicians in New Delhi and Chennai said the E.C. was quite aware of the extent of electoral fraud in Tamil Nadu and had asked politicians to work towards giving it more teeth so that it could function better in the coming years.

Standing Committee suggestions

The Standing Committee on Law and Justice submitted its report on “Electoral Reforms: Code of Conduct for Political Parties and Anti Defection Law” on August 26, 2013. Three of its key observations and recommendations are:

(1) Election expenditure ceiling limit: There is a ceiling limit of election expenditure for candidates in different States for Parliament/Assembly seats. The actual expenditure on elections has been more than the ceiling fixed by the E.C. and it is alleged that candidates have been concealing election expenditure. The Committee recommended that election expenditure be substantially enhanced and periodically reviewed.

(2) Statutory backing to the Model Code of Conduct: It is expedient to give statutory backing to the Model Code of Conduct, leaving no vacuum for the E.C. to exercise its residuary power to enforce it.

(3) Power to derecognise political parties: The E.C.’s power to derecognise political parties on account of violation of the Model Code of Conduct may be incorporated into the Representation of People Act, 1951. There has been no action on the report, Member of Parliament Sudarsana Natchiappan says (see interview).

However, one recommendation of the Standing Committee has found favour with the government, clearly a case of cherry-picking what it finds easier, or convenient, to implement. This relates to the 2015 report “Feasibility of Holding Simultaneous Elections to House of People (Lok Sabha) and State Legislative Assemblies”.

The reasons for the need for holding simultaneous elections, as seen on the PRS Legislative Research website, are as follows: The holding of simultaneous elections to Lok Sabha and State Assemblies would reduce (i) the massive expenditure currently incurred for the conduct of separate elections; (ii) the policy paralysis that results from the imposition of the Model Code of Conduct during election time; (iii) impact on delivery of essential services; and (iv) burden on crucial manpower deployed during election time.

Widespread phenomenon

The phenomenon of bribing voters is not confined to Tamil Nadu. There are several studies on the subject of bribing voters in the country.

In a cable sent by the United States (U.S.) Consulate in Chennai (which, at that time, covered Andhra Pradesh as well), and accessed by WikiLeaks (https://wikileaks.org/plusd/cables/09CHENNAI144_a.html), the U.S. Acting Consul General at that time, Frederick J. Kaplan, apart from describing the systematic bribing of voters, notes: “We asked Owaisi point blank whether it was against the law for him to pay for the well and the marriage. Owaisi laughed and said, ‘Of course, but that’s the great thing about democracy.’ He went on to describe the legal spending limit of 2.5 million rupees ($50,000) as ‘a joke’, noting that he would spend 2.5 million rupees on ‘polling day alone’. (Bharat Ballot 09: cash for votes in South India dated May 13, 2009).”

“As election costs have soared, parties have struggled to find legitimate sources of funding, which is a partial reflection of the general decline in their organisational strength,” Milan Vaishnav, Senior Associate, South Asia Programme, Carnegie Endowment for International Peace, said in a 2014 article titled “Crime but no punishment in Indian politics”. “When it comes to campaign cash, candidates accused of breaking the law have a distinct advantage: they both have access to liquid forms of finance and are willing to deploy it in the service of politics,” he added.

In the end, it finally boils down to what happens on the ground. And, for Tamil Nadu, the testing ground will be the two Assembly constituencies where elections were called off because of bribery concerns. One discussion that is doing the rounds among some officials who have overseen the conduct of elections in the past is on postponing them until the E.C. is convinced that they are fair. This would make it extremely expensive for candidates engaging in malpractice.

But will this mean free and fair elections, as and when they are held, in Aravakurichi and Thanjavur? Not one Tamil Nadu politician agreed that it would be. All of them pointed to past experience with byelections, where the ruling party deployed all its resources to win the seats.

This crisis of confidence in the E.C. is a new turning point in Indian electoral politics. How the E.C. responds to this challenge will decide the course of how elections are held in the country.

This is the final part of a two-part article.