Recently, the Patna high court gave wide-ranging directions to the Election Commission of India to take such action as necessary, even to the extent of cancelling the elections in a constituency, in order to prevent what it perceives to be undesirable criminal elements from participating in the election process. This direction has come suddenly, in the middle of the election process, with little time available to the Commission, the political parties, the affected individuals and intellectuals to react in time to an order which has far-reaching implications for the elections system as laid down by Parliament and our democratic process. The commission on Wednesday rushed to the Supreme Court, which has admitted the matter, in view of its obvious urgency, and a bench under the chief justice is hearing the matter. Now that the issue is before the highest court, we can rest assured that the court will give the necessary directions to protect the essence of our democracy. I do, however, feel it necessary as a former chief election commissioner to offer some comments on the prevailing situation, which is worrying. With little literacy, and rampant poverty, but with an abundance of faith in our people, Nehru and Ambedkar went for full adult franchise. In order to succeed in this brave endeavour, they put a small five article chapter in the Constitution itself on the Election Commission. India alone in the world has such a powerful commission of high status as part of its Constitution. It has served us well, as the world knows. In order to ensure that the election process, organised, controlled and supervised by commissioners of the status of Supreme Court judges, is not thwarted in any manner once the process of elections is set in motion, Ambedkar wisely put in Article 329(b). This provides that once an election is announced, till the process ends, no court can interfere in any manner. As everyone knows, India’s legal system suffers from the overused stay order mechanism, which I think is unknown to England. Those with practical knowledge therefore realised that unless the commission was trusted and left alone during the election period, a plethora of stay orders, sought by parties and candidates, could quickly jam the election process. But for this wise provision, democracy might have been strangled in the early decades by such a process, leading to perpetual appeals and unacceptable delays. Occasionally, in the last five decades, challenges were made through the courts, but the Supreme Court always repelled them. Justice Krishna Iyer — God give him long life, our finest judicial mind — in the Mohinder Singh Gill case said that Article 329(b) is a great wall of China during the election period, even against the Supreme Court. The clear provision of the Constitution, and its emphatic endorsement by the Supreme Court, was obeyed scrupulously by all courts for decades. However, I found in my last years and elections in the commission that high courts, from Kerala and Andhra to Uttar Pradesh, Bihar and others, as I recall, were tending to admit petitions, insist on the Election Commission filing affidavits immediately and forcing it at a vital period of great stress to explain itself and defend itself in different parts of the country. The matters varied. In one case, a court directed the commission to count booth-wise, rather than the then prevailing legal system of mixing and counting. In another case, a court wanted the commission to accept simple certificates from village officers for identification, rather than the commission’s more stringent, laid-down requirements. In another state, a mere deputy superintendent of police, who in the commission’s high judgement was unfit to be retained in the district, for very valid reasons, was also able to challenge the commission, and force it to seek redressal. If I search my memory, which is a bit rusty, I could give many more examples, each stranger than the other. All these were petitions which had nothing to do with the law and were mere administrative directions or challenges to the commission’s work and knowledge. Each one ignored Article 329(b). As we must, and as in this country we always will, we obeyed each direction with great respect to the courts. The commission has only about a dozen officers of any level. I personally spent long hours with them, drafting and redrafting affidavits, which should not have been asked for. Recently, an even more strange order has appeared, asking the CEC himself, rather than authorised officers, as the law allows, to file affidavits on behalf of the Election Commission. It will not be long before the prime minister himself has to file affidavits to defend his government’s decisions. Where necessary, we rushed to the Supreme Court, which always supported and upheld us, and so saved the situation. But the question really is, are we entering a period where the commission, conducting an election for a billion people, with 68 crore voters, spread over a subcontinent, is now to concentrate on repelling doubtful legal challenges, at a time when it should be focussed on the most complex operation the world has known? Please remember, if this tendency is encouraged, with about 25 high courts, with some hundreds of judges, 50 recognised political parties, thousands of candidates, the Election Commission could be swamped with unnecessary judicial work, to the detriment of its real task. Even the Supreme Court has much more important issues to deal with, over-burdened as it is, than the fire fighting at short notice for the sake of our democracy. I had after the then parliamentary elections pleaded through TV and newspapers for everyone to go back to Ambedkar’s wisely drafted Article 329(b), and obey the judgements and endorsements of the Supreme Court. Spare a thought for the Election Commission of India, during this Mahakumbh, when the commission wrestles with every imaginable problem and challenge. It needs the understanding and support of the Indian people and of all other high organs of the Constitution. The Constitution demands it, and all should stay within the Lakshman Rekha of self-restraint at such a vital moment in the country’s life.
