On May 17, 2021, the Association for Democratic Reforms (ADR) in public interest had filed a writ petition under Article 32 of the Constitution challenging the constitutional validity of the mode of appointment of the chief election commissioner and election commissioners by the Government of India.

It was held that this procedure of appointment of CEC and ECs by the executive without any consultation or concurrence of other entities was violative of Article 14 (equality before law) and Article 324(2) which mandates Parliament to make a just, fair and reasonable law for appointment of members of the Election Commission of India (ECI)

A Big Electoral Reform

This was on the lines of the recommendations of the Law Commission’s 255th Report of March 2015, the Second Administrative Reforms Commission in its fourth Report of January 2007, the Dinesh Goswami Committee Report of May 1990, and Justice Tarkunde Committee Report of 1975.

The landmark judgment of March 2 by a five-member Constitution bench of Supreme Court has ruled that the selection of members of the ECI would be done by a Committee comprising the Prime Minister, the Leader of Opposition or in his/her absence, leader of the largest opposition party in the Parliament, and the Chief Justice of India. This system will be in vogue till the Parliament makes a law in this regard.

Why this change in the selection procedure was necessary is borne out by the way certain decisions were taken by the ECI over the last few years and the manner in which members were appointed by the Government. Successive Governments since the 1950s have failed to enact a law and the appointment of the CEC and ECs was done solely by the Executive. This was incompatible with Article 324(2) and hence arbitrary. Recommendations of various committees as mentioned above were studiously ignored by all Governments.

Perception Matters

Democracy is a facet of the basic structure of the Constitution and in order to ensure free and fair elections and to maintain healthy democracy in our country, the ECI should be insulated from political and or Executive interference. The ECI is not only responsible for conducting free and fair elections but it also renders a quasi-judicial function when disputes arise between various political parties including the ruling party in government and other parties.

Hence the perception amongst the voters, political parties and others about the Election commission must be that it is non-partisan, impartial, independent, insulated from interference by the Executive, and is a fair constitutional body. This perception had unfortunately taken a beating over the last few years.

In March 2021, the Citizens Committee on Elections (CCE) chaired by retired SC judge Madan Lokur examined the 2019 general elections and gave the following observations:

1. ECI deliberately delayed the announcement of elections to enable the inauguration blitz of a slew of projects (157) scheduled between February 8 and March 9.
2. It was the longest election in the country’s history.
3. There was lack of consistency by the ECI in enforcing the Model Code of Conduct and a perception of ECI treating the ruling party with kid gloves thus disturbing the level playing field.
4. The Election Commissioner who dissented and stood his ground was eased out from the ECI.
5. Another disturbing phenomena was the abuse/ misuse of armed forces for election propaganda. This caused anger among the veterans and they wrote to the President but received no response.

When Executive Discretion Ends

The SC judgment will satisfy the ECI too as over the last many years various CECs have been demanding security of tenure. As per the Constitution, the tenure should be 6 years and retirement at 65 years. However if we examine the tenure duration of last few CECs since Dr Nasim Zaidi, the tenures have been: Zaidi 4 years 10 months, Joti 2 years 8 months, Rawat 3 years 3 months, Arora 3 years 7 months, and Sushil Chandra 3 years 3 months. For security of tenure now the same rules are applicable for the Election Commissioners as for the CEC.

The SC also questioned the Government about the lightning speed at which Arun Goel was appointed EC after he sought voluntary retirement, which was accepted, file cleared and he was appointed EC, all in 24 hours. All this happened while the Supreme Court was hearing the case and since the retirement of Sushil Chandra in May 2022, one post of EC had been lying vacant for 5-6 months.

Though criticism of the ECI by political parties may still continue, they will lose their moral authority as they too will have a say in the appointment of the ECs in future. Whether the new selection procedure will improve the functioning of the ECI remains to be seen as ultimately it depends on the integrity of the person occupying the chair. However it is hoped that with the new process of appointment coming into force, the perception about the ECI will change for the better.

The article was originally published on “MoneyControl.com“.

This article is written by Maj Gen Anil Verma (Retd), Head of ADR.

The article was originally published in The Hindu.

On Thursday, the Supreme Court reserved its judgement on a batch of petitions challenging the appointment process of election commissioners, the officers who comprise the Election Commission – the body responsible for conducting national and state elections.

Scroll.in spoke to Jagdeep Chhokar, co-founder of the non-governmental organisation Association for Democratic Reforms and one of the petitioners in the case, about why he filed the petition and what he hopes to achieve.

Edited excerpts from the interview below.

What are the problems in how the election commissioners are appointed today? Does the process have any checks and balances?

According to Article 324(2) of the Constitution, they are appointed by the president subject to any law made by the parliament in this regard.

Then there are other articles in the Constitution that say that the president will work under the advice and guidance of the cabinet. So effectively, what it means is that the cabinet appoints the election commissioners.

And there are no checks and balances. The prime minister sends a recommendation to the president on behalf of the cabinet, and then the president appoints. The Union government has the entire discretion.

The other issue is that when the chief election commissioner’s term gets over, there is always a mystery about who will be made the chief election commissioner.

In general, so far, it has always by and large happened that the senior of the two election commissioners gets appointed as the chief election commissioner. But there is always this speculation about who will be made the chief election commissioner.

The other problem is that while the chief election commissioner cannot be removed from his position unless there is a process of impeachment like that of a Supreme Court judge, the other two election commissioners can be removed from their positions merely on the recommendation of the chief election commissioner.

So that is another problem. Because if the two election commissioners have this thing in their mind that the chief election commissioner can recommend my removal, then perhaps they would find it difficult to take a position against the chief election commissioner.

What’s the relief that you want from the court in this particular case?

In this case, we want that the selection of the election commissioner should be done by a collegium consisting of the prime minister, the leader of the Opposition and the chief justice of India.

The second is that election commissioners should be given the same constitutional protection as the chief election commissioner.

And the third is that it should be laid down, specifically, that the senior-most election commissioner will become the chief election commissioner.

These are the things that we have proposed. There would be many more that we will learn over time.

Have there been any controversies in the past regarding the appointment of election commissioners?

There is a checkered history [regarding election commissioners]. Earlier, the election commission used to be a single-member commission. There used to be only one chief election commissioner. Then somewhere down the line, during the time TN Seshan was the chief election commissioner, he was doing a lot of things that the government did not approve of. So to put a check on his power, so to say, the government [in 1989], through the President, created the post of two more election commissioners.

Now the Election Commission was a three-member commission and the decision will be made by the majority, hoping that these two will check the powers [of the third commissioner].

Then, about three or four years ago, there was one election commissioner who dissented from a decision by the other two. And this happened on some issues which had something to do with allegations of violation of the Model Code of Conduct by the prime minister and the home minister.

So then there were reports that this particular election commissioner, his past was being searched with a fine toothcomb. And there were apparently some kind of raids or intimidation of his wife and his son and so on. So this went on for a while, and then it was reported that this gentleman has been appointed as a vice president in a multilateral body. So he resigned from the election commissionership.

Usually, who are the people who are appointed election commissioners?

All retired bureaucrats, by and large, Indian Administrative Service officers. There are very few exceptions, but they are all also bureaucrats from other central services.

Are there any appointments that raise a suspicion about them being close to the Union government?

A lot of them. I would not like to name anyone. But this is all circumstantial evidence. There could be people from a particular state cadre, who might have a preponderance [towards the government]. And then somebody who has worked with some senior-level politician in the past very closely.

These kinds of things often happen.

One of the reasons why these things are brought up is because how these appointments are made is not known to anybody. So out of the blue, you have an announcement that so and so has been made election commissioner.

For example, this appointment that was made a few days ago – the post had been vacant for something like six months. And the hearing in the court started and an application was filed that there is a vacancy that should not be filled until the case is decided.

And the very next day, a serving Indian Administrative Service officer who was the secretary to the government of India took voluntary retirement from service. He was given voluntary retirement, and the next day he was appointed as an election commissioner.

It could be a sheer coincidence, but when things happen, sometimes it defies that it is a coincidence. So that creates doubts. Actually, a lot of it is a lack of transparency.

If there was a process of selecting election commissioners that was transparent, such doubts will not be raised.

What instances have been there recently where there have been allegations of the election commission acting in a way that distorts free elections?

So there are mysterious things that happen and when not reasonable explanations are coming forth, then one wonders what is going on. Electronic voting machines are found in strange places. There are constituencies where a large number of voters are not found on their voters’ list.

Some people do insinuate that people of particular categories are found to be missing from the electoral rolls. The Election Commission has to answer for it.

Then, there are violations of the Model Code of Conduct. Somebody makes a speech that can be considered to be seeking votes on religious grounds. And that is ignored. Whereas another member of another party says something similar in a slightly different context and that person is given a notice.

So similar kinds of infractions by people of different parties being treated seemingly differently.

Take, for example, on November 7, the Finance Ministry issued a notification that in a year when there is an Assembly election, an additional window of 15 days for the sale of electoral bonds will be available.

But elections are still happening in Himachal Pradesh and Gujarat, and the Model Code of Conduct is in force. And the Model Code of Conduct says that the government cannot introduce any new policy which may have a bearing on the result of the election without taking permission from the Election Commission of India.

So this announcement is a violation of the Model Code of Conduct. And people have written to the Election Commission and there has been no response.

There is also the thing about the announcement of dates. For example, even this time, for Gujarat and Himachal Pradesh elections, the dates when the result will be declared were announced. And dates of polling for Himachal Pradesh were announced, but the dates of polling for Gujarat were not announced.

So some people have felt that this is not the right thing to do and perhaps leeway was being given to a particular political party to do some announcements before the dates of polling are announced. So these kinds of things keep happening, and they create misgivings about the impartial role that the Election Commission should be playing.

Sometimes in a small state, elections are held in seven phases and [other times], in a similar sized state, it is held in one phase. There are rumors that this is being done so that particular people can campaign in every phase, and so on.

A similar process exists for the appointment of the Central Bureau of Investigation director. But still, there have been allegations of unfairness about these appointments also. So will this panel help with bringing fairness to the appointment of election commissioners or will it only be slightly better than the current position?

It will be significantly better. If you recall, in the appointment of the CBI director a year ago, the then chief justice did not agree with what was being proposed and then names were changed.

See, the process is finally managed by three or four people. But if each of them is true to their jobs, then they will do what they think is the best for the country as a whole.

And then if one of them finds that the other two are in collusion, then it would be that person’s responsibility to bring it out in the public domain.

Allegations also exist for state election commissions. For instance, like in West Bengal, there were allegations that the Panchayat polls were influenced in favor of the state’s ruling party. What do you think about the reforms in state election commissions?

State election commissions are a totally different ballgame.

Because there is only one state election commissioner in most places, and the appointment is done by the governor at the recommendation of the state government. And in most places, these are retired officers who are not direct recruits to the Indian Administrative Service but who have been departmentally promoted to the Indian Administrative Services.

So they are sort of supposed to be more malleable than the direct entry Indian Administrative Service officers. And are perhaps amenable to greater pressure than the central Election Commission.

So that is a very different activity. Our petition does not cover the state Election Commissions.

The article was originally published on Scroll.in.

Promises fly thick and fast during election time. Political parties seek to outdo one another in getting the attention of voters. In the heat of the moment, mostly anything goes and voters are none the wiser about how some of those promises will be fulfilled — for instance, where will the money come for that scheme or subsidy.

Can this runaway situation be reined in? Is it possible to make parties and political leaders more accountable even as election promises are being drummed up rather than later when they have failed to deliver on fanciful ideas? Does an answer to the pernicious culture of freebies lie in stricter rules at election time?

The Election Commission of India has proposed that parties spell out their promises in a form that will go along with their manifestoes. The financial implications of every promise, the commission contends, will then be known so that there is a level playing field during elections. No one will be able to promise the moon and get away with it, as often happens now.

The idea was floated by the commission on October 4 in a letter to parties and laid open to discussion, but it has met with protests that the commission is exceeding its mandate, which is to hold free and fair elections, and instead getting into how governments run.

If the commission’s proposal goes through, parties would have to spell out before an election what a promise is going to cost and how this expense will be met. They will have to state whether it will be through rationalizing expenditure, non-tax revenue, additional taxes or loans. To this end, the commission has further suggested that chief secretaries of states provide the budget estimate (BE) and revised estimate (RE) to show what funds are available.

Knowledgeable and impartial activists who have for long been demanding transparency in the running of political parties are baffled by the commission’s proposal. They don’t think it can be seriously implemented. In fact, they fear that such rules will curtail democracy rather than enrich it.

Jagdeep Chhokar of the Association for Democratic Reforms (ADR), which has been campaigning for cleaner elections and accountable parties, says: “I see this with scepticism. Many things in the commission’s letter are less than clear. The entire scheme aseems to be unimplementable and an exercise in showing a lot is being done. My apprehension is that on the ground nothing may happen.”

Chhokar points out the commission had earlier shied away from taking up the issue of freebies, saying it would be an “overreach of powers.” It told the Supreme Court on March 2 that the giving of freebies was a matter of policy, to be decided by the party concerned, and that it was for voters to judge whether the freebies were economically viable or not.

Chhokar quotes the commission as saying in court: “… offering any mass distribution of freebies either before or after the election” was a “policy decision of the party concerned and whether such policies are financially liable or it has an adverse effect on the economic health of the state, is a question that has to be considered and decided by the voters of the state.”

The commission said it could not regulate “such policies” which “may be taken by the winning party when they form the government. Such an action without enabling provisions in the law will be an overreach of powers.”

Chhokar wonders what has changed between March and October for the commission to now say that it “cannot overlook the undesirable impact of some of the promises/offers on the conduct of free and fair elections in maintaining a level playing field for all parties and candidates.”

Chhokar argues the electoral bonds would be a better issue for the commission to take up if what it is concerned about is providing a level playing field. At present, parties don’t need to disclose from whom they have received political donations by way of bonds, it is only the amounts that are known. The matter is in court.

“Now, the promises made by political parties in their manifestoes are of great concern, but, according to the Election Commission, something like electoral bonds does not distort the political field at all. There are many other specifics in this letter I can point to. But, let me add, between March 2 and October 4 there was a significant event. On July 16, the prime minister talked about what is called the ‘revdi culture’ of the country. I don’t know if there is any correlation in these three days,” elaborates Chhokar.

“But for the Election Commission to change its view from March 2 to October 4 without giving any justification for this change is surprising, to say the least, and trying to provide a level playing field only on the basis of what has been said in election manifestoes and not something as glaring as the electoral bonds raises weighty issues. Weighty is the Supreme Court’s word, not mine,” he says.

The issue of unsustainable freebies underlines the much larger question of distinguishing between party and government. The responsibility for executive actions devolves on the government, which when it comes into office has wide responsibilities to those who voted for it or didn’t.

“So, the government that is formed as a result of the elections, is not the party which contested the election and this distinction has got blurred very, very badly. Everyone seems to assume the government is the party and the party is the government. There should be a difference between party and government,” explains Chhokar.

Promises also aren’t only made in manifestoes, Chhokar points out. They are made in speeches during election time and before election time. He refers to a judgment mentioned in the Election Commission’s October 4 letter — S. SubramaniamBalaji versus the state of Tamil Nadu and others on July 5, 2013. In this, the Supreme Court says, strictly speaking, the Election Commission will not have the authority to regulate any act which is done before the announcement of the date of elections.

“This is a fundamental mistake we seem to make — that elections happen only from the date of the announcement of the election till the date of counting of votes. Election is not a process confined to those two to three weeks. Election is a process that goes on 24/7 around the year,” says Chhokar.

“Aren’t the advertisements one sees in national newspapers by governments in one state or the other in the country related to elections?” he asks. “Elections may be two years away but every action that a political party takes has an impact on the election. To assume that the Election Commission should act only after the announcement of the date, is a fallacy.”

Chhokar says holding of political parties accountable is long overdue. But it can’t be restricted to the promises they make at election time. Political parties should be made accountable under the law, which they aren’t at present.

“I have specific instances where so-called leading political parties have got together to amend the law so that the prosecution of parties is avoided. They have come on record saying otherwise there would have been no choice but to prosecute parties. Why shouldn’t political parties be prosecuted if they violate the law? So political parties must be held accountable for all their actions,” he says.

Chhokar’s big fear is that there is an attempt to reduce the electoral exercise to a mechanical process. He worries about talk of reducing the expenditure on elections. So also the Election Commission’s suggestion of BE and RE figures within which promises can be made. “What we are being told is that within this limited area you can do whatever you like and then there will be elections. That is not how a representative democracy works. People choose their representatives and political parties have to represent them,” he says. “Somebody has found it very useful to use this term ‘revdi culture’. And, therefore, the whole country is getting behind it. To me there appears to be a systematic attempt to undermine the entire electoral process,” he cautions.

The article was originally published on Civil Society Online.

In September 2018, a five-judge Constitution bench that included the Chief Justice of India, pronounced an important verdict on criminals in politics. The Supreme Court was hearing a batch of petitions seeking disqualification of candidates who had pending criminal cases. One of these petitions was a PIL filed by the Public Interest Foundation of India (PIF) in 2011. The director of the PIF had written these words even before the results of the 2014 elections were announced. “The next government will face the challenge of curbing corruption… It must be remembered that the government will be on probation as its performance would be critically tracked by a very vibrant civil society and media.”

That Director was later handpicked to become the principal secretary to the new Prime Minister, Narendra Modi, in 2014. The PIF petition had asked for the removal of criminals from the ballot. This was the petition that was disposed of by the Supreme Court in 2018. But its verdict unfortunately stopped short of disqualifying criminally tainted candidates.

The Central government, which was a defendant in the suit, firmly opposed the petition, saying that legislating a new disqualification was not in the domain of the court. It was for Parliament to pass such a law. Besides, the Centre used the old argument, that a person is innocent until proven guilty and cannot be deprived of the right to vote, or the right to contest elections merely based on criminal charges. The court expressed helplessness, and not for the first time. But the court did ask political parties and candidates to widely publicise their criminal records, “at least three times in newspapers and TV channels” after filing nomination papers.

Two years later, the Supreme Court was again hearing a contempt petition, that its 2018 order was being completely ignored by political parties. This time, even the Election Commission joined the PIL and asked the court to make political parties strictly liable for the disclosure of criminal cases of their candidates. The EC is, of course, itself toothless in disqualifying tainted candidates.

This time too, the apex court passed a harsh order, asking parties and candidates to widely publicise criminal histories in local, as well as national newspapers and on social media, including Twitter and Facebook. The published material needs to list details of the offence, charges framed, etc. And most importantly, the political party has to explain why the candidate was chosen despite the criminal taint. Merely saying that the candidate is winnable is not enough. And all this has to be done within 48 hours after the last date for withdrawal of nominations.
The Bihar assembly election is the first time this 2020 order of the Supreme Court is being tested. In the first phase, where 71 of 243 MLAs will be selected, 1,066 are in the fray. Of these, 31 have criminal cases. If you look at the data party-wise, 73 per cent of the candidates from the RJD, 72 per cent from the BJP, 59 per cent from the the LJP, 57 per cent from the Congress, 43 per cent from the JDU and 31 per cent from the BSP have criminal cases, among the major parties. It looks like the percentages of tainted candidates keeps going up in every successive election, just like the cut-off marks for admissions to Delhi University colleges.

Prima facie, the observance of the Supreme Court order is more in the breach. The EC has specified a format (Form 7) for declaring a candidate’s criminal record: the form must list details why the party chose a criminal candidate. Most parties and candidates have written that chances of winning are higher. On this, the parties might actually be totally truthful. But this shows the impunity with which the Supreme Court and the
EC’s orders are being flouted. There does not seem to be even an iota of effort to give tickets to candidates with a “clean” resume.
Can voters punish the tainted candidates? Unfortunately, this is not so easy. In the first phase of Bihar polls, 61 of 71 constituencies are “red alert” ones, meaning each of these has at least three or more candidates who have criminal records. So, the choice for voters is criminal versus criminal. It has been seen by researchers that criminally tainted candidates win, despite their image, perhaps partly because of their ability to raise resources to fund their own elections. No wonder the parties are quoting “winnability” as the reason in Form 7, to justify their choice of candidate. In this current first phase, more than one-third of all candidates are millionaires. Among the major parties, nearly 80 per cent are crorepatis. Since moneyed “bahubalis” have a higher chance of winning, the ratio of tainted legislators is almost double that among the candidates.
This trend of criminality among lawmakers is relentlessly going up. The share of members of Parliament who have criminal cases against them, has gone up from 24 per cent in 2004, to 30 per cent in 2009, 34 per cent in 2014 and is now at a whopping 43 per cent, as of 2019. These cases are not only about offences like loitering, breaking a curfew or defamation, but even serious cases like rape, murder, theft, kidnapping, assault and extortion. If you consider only serious criminal charges such as these, then 29 per cent of the current members of Parliament carry them, and this proportion is the highest in the past 16 years. Among the elected representatives, the proportion of crorepatis has gone up from 30 per cent in 2004 to 88 per cent in 2019.
The Supreme Court, through its 2020 order, thought that perhaps by shaming the parties, it could put some restraint on the rising trend of criminality among candidates. But this is clearly not visible so far in the Bihar assembly elections. And going by the trend of the past 16 years, it is unlikely to change. The only hope, apart from fast-tracking cases, is to disqualify tainted candidates from contesting. This can be done by amending the Representation of the People Act, 1951. Those who are tainted and desirous of being in public service can surely clear their name in a court of law, before contesting elections. Will the lawmakers take up this challenge to cleanse the political system?

The article was originally published on Free Press Journal.

The Supreme Court this week came down heavily on criminalisation of politics. It asked political parties to explain why they need to give tickets to people with criminal backgrounds. The court also asked them to publicise widely, through websites and social media, the impressive “résumé” of these criminal elements. Let the voters know. The judges also asked whether winnability alone counts in ticket giving, and should parties not be doing something to clean the polity. The latest order is actually a reiteration of a similar one passed in 2018, asking parties to give wide publicity to criminally tainted candidates through newspapers. Alas, the top court stopped short of disqualifying tainted candidates. There is no law in the land that prevents criminally charged persons from standing for elections. In the absence of such a law, which seems unlikely to be passed by Parliament, the court could step in, and put a disqualification criteria.

The right to stand for elections is not a fundamental right. So if we put some restriction on who can and cannot stand, it is not like we are suppressing their freedom of speech or right to livelihood. All we have is a 1951law on who is qualified to stand for elections to Parliament and assemblies. That law states a minimum age requirement, and that you must not be convicted of certain crimes (typically those that attract minimum two years of jail). But since our judicial system works slowly, and a conviction in a lower court can be appealed in a higher court, and the process can continue ad infinitum, technically you are innocent until proven guilty by the highest authority. So this law is not able to prevent any criminally tainted person from standing for elections. The unfortunate trend is that in the past two decades the number of criminally tainted elected lawmakers has increased. In 2004, 24 per cent of MPs had pending criminal cases. This went up to 30 per cent in 2009, to 34 in 2014 and is now a whopping 43 per cent in the current Lok Sabha. The upward trend is seen in many assemblies as well. The stats are dismal and depressing.

But there is a predictable howl from politicians. They say most of these cases are frivolous or false charges. And that the ruling party often resorts to filing cases against leaders of the opposition. And the cycle continues with tit for tat. It is as if we have widespread practice of the politics of vendetta. If that is so, then it is the parties themselves that can put a stop to it. Moreover, if indeed a person is innocent and reeling under false charges, then he or she can clear their name in the court of law, get acquitted and then stand for election. Just wait till your name gets cleared. Maybe institute a fast track court for such cases. Surely a nation of more than a billion people should be able to find a few thousand clean, untainted candidates? But there seems to be no progress on this front, as criminalisation just keeps getting worse. In fact in nearly 40 per cent of the constituencies, there are three or more tainted candidates. So voters have no choice but to vote for a criminal candidate. That’s why we need an activist Supreme Court that can introduce a disqualification clause. At least those charged with heinous crimes such as murder, rape, kidnap and dacoity should be prohibited. Some states like Rajasthan tried to disqualify candidates who did not have some minimum education. This was for municipal and panchayat elections. Some states already disqualify you for a sarpanch post if you have more than two kids. These conditions are much more anti-democratic than disqualifying on the basis of criminal record.

While we wait for voters to reject criminally tainted candidates (i.e. the demand side pressure), let us also pass laws to disqualify at least those who have very serious charges against them (i.e. supply side pressure). Only then can we make progress on cleansing politics. Otherwise, our record will keep getting murky (the latest Delhi state election outcome is no exception), and our standing as a robust and vibrant democracy will keep getting embarrassing.

The article was originally published on Mumbai Mirror.

This high-powered committee stated unambiguously that there was a “nexus between criminal gangs … and politicians … in various parts of the country…” and that there were “underworld politicians”.

Responding to a public interest litigation (PIL) by a civil society organisation, the Supreme Court ordered that every person contesting an election to the parliament or an assembly would have to disclose all criminal cases against him/her in a sworn affidavit, as a necessary part of the nomination form.

Data from these affidavits over the years resulted in what were then felt to be startling revelations. Out of 543 MPs of the Lok Sabha in 2004, as many as 128 (24 percent) had criminal cases pending against them. This number increased, and continues to increase, to 162 (30 percent) in 2009, 185 (34 percent) in 2014, and 233 (43 percent) in 2019.

In 2004, the People’s Union for Civil Liberties (PUCL) filed a PIL in the Supreme Court asking for a new button to be provided on the electronic voting machines (EVMs) called NOTA (None Of The Above). The primary purpose was to protect the confidentiality of a voter who wanted to cast his/her vote but did not want to vote for any of the candidates. The existing provision in 2004 was that such a voter would have to sign on a form saying s/he did not wish to vote for any of the candidates. Since these forms were preserved, the identity of the voter could be found out which created the possibility of some of the candidates harassing that voter because s/he did not vote for one of them. Secrecy or confidentiality of one’s vote so that one can vote without any fear of consequences is, in any case, an accepted principle of democracy all over the world.

The Supreme Court in a judgment delivered on September 23, 2013, directed the Election Commission to “provide necessary provision in the ballot papers/EVMs and another button called ‘None of the Above’ (NOTA) may be provided in EVMs so that the voters, who come to the polling booth and decide not to vote for any of the candidates in the fray, are able to exercise their right not to vote while maintaining their right of secrecy”.

The court made very significant observations in the judgment, one of which said, “When the political parties realize that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.”

This was important because it had become clear over the years that political parties continued to give tickets to persons with very dubious records, including those of serious crimes. Lest it be considered an exaggeration, the 2019 Lok Sabha election had nine candidates who had rape
charges pending against them! It is sad that three of them did get elected.

When requested not to give tickets to such people, political parties claim (a) these people have very high “winnability”, (b) other parties also do the same, if we don’t our candidate will lose, and (c) people vote for such candidates.

The last reason is not correct. Regardless of the number of candidates, only about two or three have a reasonable chance of getting elected and these belong to leading political parties. If a voter does not deliberately want her/his vote to go waste, s/he will have no real choice whom to vote for. Data collected over several elections shows that almost half the constituencies have three or more candidates with criminal records.

This is why the Supreme Court’s observation that political parties will be “forced to accept the will of the people and field candidates who are known for their integrity” becomes important. It is worth noting that the Court did not use words such as “motivated” or “encouraged” but said “forced”!

The problem has been with implementation of the judgment. The Election Commission of India decided, in its wisdom, to implement the letter of the judgment while overlooking its spirit. It provided a NOTA button on the EVMs but did not change the process of deciding the winner. The result is that even if the NOTA button gets more votes than any of the candidates, the candidate with the highest number of votes after NOTA is declared elected. This goes completely against the “will of the people” to which the Supreme Court gave primacy.

Another factor that has prevented NOTA from achieving its full potential is that political parties and their leaders have been actively campaigning against NOTA. They have been asking people not to opt for NOTA because these votes have no impact on who gets elected. This, when the votes polled by NOTA have continued to increase gradually. Several constituencies have seen NOTA getting more votes than the winning margin, the difference between the votes polled by the winner and the candidate who came second. There have also been some, very few, cases where NOTA came at number 2, getting more votes than any of the candidates except the winner.

State Election Commissions
(SECs) who are responsible for conducting elections to panchayats and local bodies and are constitutional bodies independent of the Election Commission, have shown remarkable initiative in this regard. The SEC of Maharashtra issued a notification on June 13, 2018, saying: “If it is noticed while counting, that NOTA has received the highest number of valid votes, then the said election for that particular seat shall be countermanded and fresh elections shall be held for such a post.” While this was a very progressive step, it stopped short of giving NOTA the teeth that the Supreme Court intended. It would be possible for the same candidate to contest the fresh election and the situation could repeat itself indefinitely, frustrating the “spirit” of the Supreme Court’s judgment.

Another SEC stepped in and took the matter further. Just a few months after the Maharashtra notification, the SEC in Haryana issued a similar notification on November 22, 2018. This one said that if “all the contesting candidates individually receive lesser votes than … NOTA …,” then not only “none of the contesting candidates will be declared as elected” but “all such contesting candidates who secured less votes than NOTA shall not be eligible to re-file the nomination/contest the re-election”.

This is what makes NOTA what the Supreme Court wanted it to be. One hopes the ECI will follow the example set by the two SECs, honour the spirit of the Supreme Court’s judgment and the “will of the people”, “forcing” political parties “to field candidates who are known for their integrity”.

The article was originally published on Civil Society.

Image Credit: Civil Society