Sleepless at the booth

“Seventeen-hundred complaints by the Election Commission (EC) — estimated `5,000 to `10,000 crores of unaccounted money distributed among voters in addition to freebies like laptops and colour television.” This is the summary of electioneering 2011 in Tamil Nadu. The money and the TV sets were all distributed after the election process commenced and before the voting took place. Do our laws tolerate this situation?

Freedom to choose a candidate or party is at the heart of elections. In the words of Sir Winston Churchill, “At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper — no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point”. Now no paper and pencil are needed in India — only the pressing of a button of the Electronic Voting Machine (EVM) is involved. But does the voter have the freedom to choose a button?
World over in every country where elections are part of the political process there are laws to ensure that a voter’s freedom to mark that little piece of paper is not affected by external influences like threats or inducements. In India, the Representation of the People’s Act, 1951, and the rules thereunder, govern the conduct of elections to the Legislatures of the states and the Centre. This law also provides for challenging the validity of an election before a designated court if the victory was allegedly through violation of the laws.
One of the grounds for questioning an election is that the returned candidate is guilty of “corrupt practice”. Section 123 catalogues a long list of “corrupt practices”. On proof of commission of any of them, an election shall not only be set aside but the elected candidate can be debarred from contesting any election for a period of up to six years from the date of the verdict of the court. The law is awesome.
The first among the list of corrupt practices in Section 123 is “bribery”. The expression is defined in the widest possible terms to include any gift, offer or promise by a candidate or his/her agent of any gratification, with the object of inducing a person to stand or not to stand as, or (to withdraw or not to withdraw) from being a candidate at an election, or an elector to vote or refrain from voting at an election. The provision covers much more — suffice to say that offering money to voters or distributing gifts among them is plain bribery, which is the first in the list of corrupt practices that are fatal to the election.
Additionally, the Indian Penal Code provides for a separate chapter of offences — chapter IX-A Ss 171 A to F — relating to elections. These provisions make both giving and accepting of bribe in connection with an election an offence punishable with imprisonment for a term that may extend to one year or fine or both. If the bribery is merely of offering food and drink, the offence is “treating” and the punishment can only be fine.
Chief Election Commissioner S.Y. Qureshi recently confessed publicly that he and his commission had sleepless nights on account of the grotesque situation in Tamil Nadu; may be on account of this the commission was sleeping through the day, facilitating robbery of electoral values. During their nightly insomnia they could have usefully refreshed their acquaintance with the exposition of Article 324 of the Constitution in Mohinder Singh Gill’s case in 1978 (M.S. Gill was a candidate from Ferozepure parliamentary constituency) by Justice Krishna Iyer of Supreme Court in the following immortal words: “Article 324, in our view, operates in areas left unoccupied by legislation and the words ‘superintendence, direction and control’, as well as ‘conduct of all elections’, are the broadest terms. Myriad maybes, too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election. It has been argued that this will create a constitutional despot beyond the pale of accountability; a Frankenstein’s monster who may manipulate the system into elected despotism — instances of such phenomena are the tears of history. To that the retort may be that the judicial branch, at the appropriate stage, can call the bluff, quash the action and bring order into the process...”
Gill’s case arose out of an order of the Election Commission cancelling a parliamentary election because of large-scale violence and destruction of ballot papers during counting. This decision was upheld in the name of “free and fair election” — a phrase not used in the Constitution nor in the laws. This declared law — not enacted one — has grown like a banyan tree protecting areas that were not in view. The Model Code of Conduct that pervades the entire gamut of elections was born out of the power and duty to ensure free and fair elections. Under this the media has been successfully prevented from indulging in publishing exit polls or pre-poll predictions — a restriction on the fundamental right of expression. The EC is empowered to transfer or even suspend any civil servant of any rank during the election process. The powers of the EC are amazingly limitless and expanding to meet the “myriad maybes” and “to reach the goal of free and fair election”.
In Tamil Nadu, when political parties were openly indulging in massive bribery, the EC could have selectively cancelled the polls and ordered re-poll after a few days when the effect of the bribe would have diminished. Repeat the course if the evil recurs. With EVMs in operation — unlike during the ballot paper era — postponing elections is easy. In the name of free and fair elections, T.N. Seshan had cancelled or postponed elections many times over, with the result that in 1995, the Bihar elections stretched from January to April. Mr Seshan was successful in upsetting the electioneering budget of Lalu Prasad Yadav. James Lyngdoh refused to conduct elections in Gujarat on the due date in 2002 to neutralise Narendra Modi’s design to hide the odium of riots behind electoral success. And his order prevailed.
Unfortunately for Mr Qureshi — unlike in the Bihar or Gujarat of the past — in Tamil Nadu “coalition compulsion” was in play; any interruption would not be amusing to those who matter. He should look at his predecessor M.S. Gill and learn.

K.N. Bhat is a senior advocate in the Supreme Court of India and former additional solicitor-general of India. He can be contacted at knbhat1@gmail.com [2]