Originally Published 2013-09-30 05:26:05 Published on Sep 30, 2013
Should the Supreme Court verdict be given practical say in matters of enforcement through amendments to the Representation of the Peoples Act and other laws of the land, then it could mean that at least in constituencies where the nay-sayers have a majority, there has to be a re-election.
Negative vote too may have negatives
"The Supreme Court decision on ’negative vote’ for the adult Indian citizenry to express their views on candidates contesting elections candidly has been hailed as unprecedented, epoch-making and a victory for the rights of the ’silent majority’. Be it as it may, the court verdict at implementation-level can be cause for more institutional problems as much as it seeks to resolve those that are in the realm of ideas and concepts.

"Giving right to a voter not to vote for any candidate, while protecting his right of secrecy, is extremely important in a democracy. Such an option gives the voters the right to express his disapproval with the kind of candidates that are being put up by the political parties," a three-Judge Bench, headed by Chief Justice P Sathasivam, has observed. In doing so, the court also directed the Election Commission to introduce a new button in the electronic voting machines (EVM) for the voter to declare that he wanted ’none of the above’ (NOTA) to represent him.

The court has given the logic behind its current verdict, which is only one of the four in three months, aimed at purifying the nation’s poll processes. "When political parties realise 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," the Apex Court observed.


The observation is based on the assumption that ’men with integrity’ want to enter the political game and electoral arena. If such people are dissuaded from entering the political arena, the reasons are many. In a country like India, where an average Assembly constituency accounts for voters whose numbers added up much more than the population of many nations, staying relevant in popular imagination and sentiment is a task whose calls and compulsions are seldom understood and appreciated.

Yet, for reasons that are not wholly relevant any more, there has been a ’constitutional-freeze’ on the number of Assembly and Lok Sabha constituencies across the country. What was attempted in between was a re-drawing of constituency boundaries so as to ensure that the voter-number in individual Assembly constituencies in individual States was fairly an evenly distributed. Before the re-drawing of the constituencies, there was uneven distribution of voters among constituencies within a State or a Neighbourhood, often attributable to labour-migration and the like.

The last time decennial delimitation of constituencies was undertaken as far back as 1971, there were complaints and criticism that State Governments concerned had got boundaries redrawn so as to facilitate the party in power. This aspect of ’scientific-rigging’, if it could be called so, was witnessed in a different form when in the process of re-drawing constituency boundaries in the last decade, some State Governments came to be similarly charged.

The Election Commission, which was and is charged with effecting such changes, did look into those complaints, at best perfunctorily. It did not, in any of its reports after delimitation, was known to have recommended a way out of the basic malady. The issue, flagged first after Parliament voted to freeze constituency shapes, if not voter-sizes for three decades, to delay decennial delimitation from the Eighties, took a different shape, subsequently.

South Indian States in particular complained that they would be losing even more than already on the number of elected representatives that they would be sending Parliament. Translated, in an emerging era of coalition politics, States and regions that had done well on population control would be penalised in being heard at ’distant’ Delhi. It was a socio-political problem, which needed to be addressed some day. Yet, none seemed wanting to wake up enough to work on the ambiguity and find a permanent and institutionalised way out.

Selective leniency

In his initial reaction to the Supreme Court verdict on NOTA, former Chief Election Commissioner (CEC) T S Krishnamurthy has underlined the time-lapse that has occurred in the EC recommending the process as far back as 2002. The problem was not necessarily with the Election Commission, per se. But on other issues where the ’integrity’ of individual candidates, who have won or lost elections, was at stake, the courts cannot escape the criticism that the judicial processes had taken their time, seeking to resolve individual cases of individual candidates.

Neither Parliament in its wisdom, nor the Judiciary has found an effective way to fix time-lines for pending court cases on ’corrupt practices’ in elections or blatant cases of corruption involving persons elected to high office, as Ministers at the Centre or Chief Ministers of States, continuing in those positions during the pendency of those cases. In the past, Apex Court verdict on election petitions had come out after the notification for the next round of polls full five years later. Corruption cases have taken their sweet-time travelling through the various gates of Justice.

Over the years, judicial processes, through ’selective leniency’, has created situation where corruption cases had languished in trial courts for decades without any conclusive verdict, when alone, as the Supreme Court has now said in the ’NOTA case’, the "political parties will be forced to accept the will of the people and field candidates who are known for their integrity". Elections had been fought, won and lost during the interregnum with no questions asked, either by the voter, or by the courts.

Nor does the court’s current admonition of the political parties resolve the paramount question that relates to ’corrupt leaderships’ of ’corrupt political parties’ that the Bench now hopes would be shamed and/or compelled to take a fresh look at the time of choosing their candidates. In almost every major scam or corruption case pending before the judiciary across the country, it is often the leadership of political parties, not just relatively lower-level office-bearers that are in the dock.

Re-polling or what?

The Election Commission has enthusiastically welcomed the Supreme Court order on introducing a ’NOTA button’ to the EVM, possibly from the upcoming five-State Assembly poll in November-December, followed by the parliamentary polls next year. To be fair, the Apex Court has directed the EC to introduce the ’NOTA scheme’ only under a phased manner, and also obtain the assistance of the Government in the matter. As is evident, the Government has to provide funds and technical support for updating the existing EVMs to include a ’NOTA button’. Technicalities apart, the decision comes at a time when the consistency and consequent legitimacy of the EVM itself has been questioned in political circles and through legal means.

In this context, the EC, the courts and civil society organisations like the PUCL that had approached the Supreme Court on the ’NOTA matter’ should revisit earlier initiatives of the kind to do a cost-benefit analysis in conceptual and implementation levels. Lest it should be forgotten, not very long ago, the Supreme Court introduced a scheme for candidates to declare their assets and criminal records in their nomination forms, so as to make voter aware of the same before they went to cast their mandate.

Initially, the media was enthused about highlighting aspects of candidates’ background gleaned from their nomination forms. Today, it is just a statistic, at the hands of academics and civil society organisations. The voter does not seem concerned overmuch. Worse still, if the idea of the scheme was also to see if political parties were shamed into looking at the background of their electoral nominees, it was not so. Better or worse still, they are all cut from the same cloth in such matters, as their common and ready opposition on the Supreme Court bar on convicted persons from contesting elections, pending the disposal of the cases against them. Public protestations apart, their arguments had logic behind it, which the courts may need to reconsider at appropriate levels and occasions.

The ’NOTA verdict’ is pregnant with silence if a majority of nay-sayers in an election could alter the result, as otherwise a candidate still continuing to get less than 50 percent of the votes when the former might have crossed the half-way mark could still represent a constituency and its population in elected Legislatures. It will then be a fraud on the Supreme Court’s current thinking and consequent verdict, to say the least.

Worse still, a situation like this could trigger social strife for which neither the Election Commission, nor the Supreme Court, nor even the overall constitutional scheme may have prepared themselves - or the nation as a whole. In a situation in which the ’best’ of the ’worst’ kind of candidates get elected over and above the 50-plus mark recorded by nay-sayers, it could lead to civil society agitations, oftentimes taking the shape of political movements and later that of political parties. Contemporary India has been witnessed to the ’Team Anna’ taking the treaded course, already. Court verdicts thus cannot be allowed to be subverted to sub-serve the imaginary cause of a more imaginative mind.

The Apex Court verdict may have held greater validity when abysmally low voter-turnout used to be attributed to the electorate’s frustration with the existing scheme and system. Yet at a time when there is an overall impression that the Indian electoral scheme has come around to meet the expectations of the average voter in ensuring a free and fair level-playing ground, where his voice is registered, adding complexity to the existing situation could backfire, at times.

Over the past couple of decades, a pro-active Election Commission has ensured that elections in the country are held without the power of money, muscle and politico-administrative interfering with the mandate of the voter. This may also have been among the reasons, along with other aspects of voter-education in an era of TV penetration and IT-reach, that successive elections across the country have begun recording higher turnout. It has also meant in most cases that ’anti-incumbency’ has a great say in results of successive elections, keeping the political parties on their toes all the time. If their behaviour has not improved, the reason may lie elsewhere and needed probing.

Should the current court verdict be given practical say in matters of enforcement through amendments to the Representation of the Peoples Act and other laws of the land, then it could mean that at least in constituencies where the nay-sayers have a majority, there has to be a re-election. Because the voters have already rejected all the candidates in the fray, the law should then provide not for countermanding of polls, but to fresh elections along with fresh notification, nominations, etc.

The question will then arise if all those ’rejected’ candidates should be allowed to contest a second time. If not, how long should the bar hold - and how should the law be amended to ensure that. In practical terms, where in particular language and other aspects of Indian demographic and consequent political plurality are among the suspected deciding factors for the nay-sayers, should such candidates be barred from such other constituencies or States, where these are more live and lively issues? Such questions need to be asked, agitated and addressed, too.

Political deadlock?

The question would still remain if in theoretical terms the number of constituencies where nay-sayers have a majority could upset the final tally for government-formation, how should the emerging political deadlock be handled? If the term of the previous legislature had lapsed in between, should the incoming legislature be kept in ’suspended animation’, pending another round of results in the constituencies concerned.

There will be the additional question on the marker that decides the constituencies where such negative voting should be accepted as the people’s verdict, for ordering fresh elections. Will 30 percent nay-sayers, for an argument, be as good as 50 percent in the ordinary circumstances, if the winner otherwise had obtained only less than 30 percent vote? Should in successive elections caused by nay-sayers votes, there is still no clear verdict, what should the Constitution and courts say in matters of government-formation? What about by-elections in particular where there are greater chances of once a nay-sayer always being a nay-sayer?

’Advisory opinion’ from a larger Bench?

Some of the Supreme Court verdicts in recent months, aimed at ensuring purity of the political process and the integrity of the electoral scheme, have come with minimum public discourse or awareness until after the verdict had been pronounced. In the case of the court verdict barring convicted persons from contesting elections, and thereby going beyond the existing legislation on the matter, brought the political class together as never before in the recent past. If the ordinance on the matter does not get the nod, it owed to different reasons and circumstances, some of which may have had to do with the public mood of the times.

Yet, these are also issues where the nation need to be heard by the courts as much as it has to hear the courts - and abide by them, the Judiciary being the watch-dog of the Constitution and of the people in a pluralistic democracy as in India’s. It is not only that such landmark and epoch-making judicial verdicts are pronounced by Benches comprising two or three Judges.

The question of what among these issues constitute the ’Basic Structure’ as outlined (and not defined) by the Fullest Bench of the Supreme Court in the famous ’Keshavananda Bharti case’, and what changes can be made and needs to be made to collate with contemporary thinking has become essential. With court verdicts of the kind already available, or in the pipeline, either as PILs on issue or in individual cases, the Government could consider referring all related matter to the Supreme Court all over again, with a specific submission for a larger, constitutional Bench to address these concerns that have made the highest Judiciary of the land to feel legitimately agitated about them in the first place.

The ’advisory opinion’ of the court in the matter, after possible ’review’, if there is a need, should not be allowed to hang in the air, or just be followed as law by constitutional institutions without reference to the Legislature. Such a course over the past decades (starting possibly with the Supreme Court verdicts in the ’S R Bommai case ’ and the ’Mandal case ’, among others) have made the Legislatures in the country increasingly less relevant in and to matters for which the institution had been conceptualised in the first place. Worse still, having ’judicial review’ in the back of the mind as the final way out of their political predicament and predilections, Legislatures too may have become lazy, if not outright less responsible.

In between, on matters of such importance and widespread relevance impacting on the right of political parties responsible to daily administration of the State and its mechanisms, as on the voice of the larger population, courts should also consider calling upon political parties and other interested institutions and individuals to share their views on the subject, so that the ’opinion’ at the end not only has wider acceptance than already, but also addresses aspects of implementation, if such schemes have to work on the ground and meaningfully and successfully.

(The writer is a Senior Fellow at Observer Research Foundation, Chennai Chapter)

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N. Sathiya Moorthy

N. Sathiya Moorthy

N. Sathiya Moorthy is a policy analyst and commentator based in Chennai.

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