The Election Commission was mandated to exercise its functions so that a candidate or a voter is never substantially prejudiced. Equality of choice ought to be equal in its incidence.
The Constitution of India has envisaged a democratic setup based on an equal universal suffrage. It does not negate voting rights of those in an adverse position as regards access to education. The Election Commission’s decision to go ahead with the polls in a pandemic situation, however, illegitimately reduces the system to an epistocracy. It does so by firstly treating the right to candidacy as inferior to the right to vote. Secondly and cumulatively, the upcoming Bihar elections go on to deprive a select section of the electorate, the crucial right to make an informed decision.
As regards the right to candidacy, jurisprudentially, it is equal to the right to vote and to dispute an election.1 Practically, the former is not merely a pathway to the legislature and the executive, but also the most disruptive means to register protest. For instance, NOTA (None of the Above) could only range from a total vote share of about 0.3% to 2.5% of the total votes cast.2 However, according to a 2018 paper by Sacha Kapoor and Arvind Magesan, the entry of a single independent candidate in an election alone reduces the likely winner’s vote share by about 5%, simultaneously increasing voter turnout by about 6%.3 When a hundred plus farmers declared their intention to do so in Nizamabad, Telangana in 2019,4 notably, it left the conventional political players completely fear stricken. This right becomes doubly important at a time when a farmer in Bihar might want to contend the ruling NDA’s recently enacted farm laws. The election notification by the Commission, however, makes the process of filing nomination slightly skewed in favour of the privileged candidates. A virus-wary citizen of less or barely sufficient means for contesting the elections will have to either physically risk exposure or go online for each of these: filling up an affidavit, depositing security, or to seek elector certification.5 That is assuming operating knowledge of accessing websites on his/her part and minimal literacy. So while candidates with sufficient means have the option of exposing themselves only twice, the less fortunate have to necessarily venture out thrice (securing nomination forms and their submission, depositing security and casting), in effect. Election laws and rules do not contemplate a situation wherein a candidate is unfairly prevented from filing a nomination, and it was for the Commission to fill this gap in an election using its administrative powers.6 While voting under the present setup would subject everyone to equal risk-exposure, the filing of candidacy would not.
Equally notable is the divestiture of the right to exercise an informed vote. The upcoming polls will be the first instance wherein this year’s Supreme Court order mandating advertisement of a candidate’s pending criminal judicial involvement, would find its application.7 8 This is to be advertised by means of television and newspapers. The other criminal antecedents have to be advertised by the concerned party/candidate through newspapers or 2 specific social media platforms. With a dip in circulation of vernacular and other print media due to COVID, the perception of ‘various’ means is again misleading.
Please note that the right to vote/candidature enjoys a ‘statutory’ status. Unlike a fundamental right, it is susceptible to debilitating changes by the legislature. Voting, however, is the formal expression of an informed choice by a citizen holding the fundamental right to free speech.9 The law bars the governance of statutory rights in a manner that abridges the concomitant fundamental right, either by the legislature or any other Constitutional body.10 And for those dismissing the right to candidature as a means to protest, one needn’t go farther than Lalu Prasad Yadav, the greatest disrupter in Bihar politics since the ‘90s. All because he was once socially sanctioned for ‘daring’ to comb his hair, breaching his caste boundaries.11
It all comes down to whether the Election Commission ought to have waited for conditions to be conducive for a (more) legitimate electorate. As attempted to prove, the answer ought to be in the negative. The Commission’s notifications all cite the Representation of People’s Acts of 1950 and 1951, along with Article 172 of the Constitution in justifying the conduct of holdings inspite of the pandemic. However, the concerned Constitutional provision12 only lays down the duration of a legislative assembly in session. The periodicity of elections and frequency of sessions are held to be mutually exclusive phenomena.13 After the expiry of its term, the House is deemed dissolved and a caretaker government with the same composition remains in place. This divorce of Article 172 from a ‘dissolved assembly’ is what exempts the Commission from any time limit to conduct elections. Nor is it specified by the Acts of either 1950 or 1951. In this light, the Commission has been judicially vested with administrative discretion to determine the length of this interim period, by factoring in the permissibility of circumstances.14 This comes with an Apex Court warning dated 1993, stating that timely yet unfair elections could be wholly subversive of democracy.15
These two primary concerns apart, also note that the notifications offer nothing to those wishing to vote exclusively by postal ballots. This is because even the expansive definition of ‘absentee voters’ (permitted to do so), in the framework only includes senior citizens, people with disability and those engaged in essential services. It is pertinent to mention here that we needn’t wait for any of the above-mentioned anomalies to actually pan-out. The mere possibility of an absurd consequence of an administrative power, and not its probability, is the test. The legally appropriate option is therefore that the Commission postpone the entire exercise, or suggest the Hon’ble Governor of Bihar to retract the election notification(s) as the issuer of a Central Government notification.16 17
ABOUT THE AUTHOR
Yash S. Sinha
Yash graduated from N.L.S.I.U, Bengaluru in the year 2019 and has been assisting an advocate based out of Delhi since then. Presently working all the tiers in both Constitutional and a few statutory Courts there, he intends to settle his practise in Election, Taxation, Economic offences, and Constitutional laws at the Appellate/Original side levels. Views/opinions regarding his write up can be shared here.