A panel discussion marking the release of a book by Dr S Y Quraishi, former Chief Election Commissioner, brought a distinguished panel to deliberate and converse on what steps are needed to making the system more transparent and reliable. Elections are the current flavour of our times, with five states in full election mode, and 2024 soon to follow with its General Elections. We bring excerpts featuring Fali Nariman, distinguished lawyer; Shashi Tharoor, Congress MP; Neerja Choudhary, leading journalist and author; Shekhar Gupta, also a leading journalist; and the author himself. Moderating the discussion was Nidhi Razdan, former NDTV anchor. The views expressed below are those of the panelists, the publication does not necessarily endorse them.
Nidhi Razdan: This book isn’t just about the election commissioner of India. It’s not just about elections in India. It’s very much about the soul of India and I think that it has come at a very opportune time. We are at a crossroads. We are the mother of democracy on one hand and on the other our institutions including the election commission, are increasingly being scrutinized for what is believed to be their partisan stand on issues.
Fali Nariman: Well, I really think that the Election Commission in our constitution is like a three-legged stool with one leg much longer than the other two so that it’s a bit out of focus and it would’ve been much better if we had a three-legged stool with all three commissioners, election commissioners along with the Chief Election Commissioner having equal status and having equal protection as judges of the Supreme Court, as the Controller and Auditor General. I don’t know why this was a lapse on the part of the people who framed the Constitution, but they expected that Parliament would pass some legislation about it and although Parliament did pass one or two rules and laws, unfortunately it didn’t do too well and I was a little disappointed with earlier decisions of the Supreme Court of India, particularly with regard to Mr Sheshan, because I had great admiration for him.
But there’s one important thing which you must know, and that is that there is an article in the same chapter which deals with election commissioners and that is an Article 329A which is no longer in the Constitution, so you can’t read what is missing there because that was a very, very dangerous provision that was specially enacted once Mrs. Gandhi lost her election in the Allahabad High Court, instead of going directly to the Supreme Court, what very intelligent lawyers did and those who advised her, that we should have an amendment so that ultimately the decision of who is to be elected and who not, would be taken not by the Supreme Court, but it would be taken by the executive who would draft the law.
And you must read this 329A. It’s one of the most monstrous amendments that were ever carried out and fortunately it was the first time that the Supreme Court applied the doctrine of basic structure and shut it down and the rest of it was deleted by the Janta government. So actually, this is one of the very highlights of this election laws that we have in our country and despite everything that’s been said, there is a feeling all over amongst the citizenry that much requires to be done to make the Election Commission have a backbone and at least be far more independent than it appears to be.
Nidhi Razdan: In your book Dr. Quraishi, you’ve dealt with this issue of the Election Commission, the questions about its neutrality in some detail. How do you look at the way today the Election Commission’s credibility is being viewed, having been at the helm of that organization yourself?
Dr. Quraishi: Actually there are four or five articles in the book on neutrality and let me tell you, every time I have been an self-appointed spokesman of the Election Commission. Let me tell you Ashok Lavasa is here; even when he was in office, he would not have that much credibility as I had as a retired chief election commissioner because his job is to defend EVM. It’s not my job to defend EVM, but if I say EVM is dependable, people listen. They trust because I have no interest anymore. So, when I found that the Election Commission was not doing things right, it was a painful decision for me to write something. I tried to use all the command over the English language, which I have, which is very little, to somehow convey it in such a language that it doesn’t sound like a criticism of them.
My typical answer was that every time I hear a criticism of the Election Commission, it hurts me. But the point was that there was criticism which they earned and it was all up to them. But I’ve been a defender because this is an institution I am proud of. This is an institution which has done India proud. There are aberrations here and there, so let us hope that they’re incumbent based with the new incumbent we can have a new expectation.
Nidhi Razdan: Shahi Tharoor, can you weigh in on this? Is it unfortunate that there seems to be also quite a bit of a trust deficit at the moment, at least between opposition parties and an institution like the election commission.
Shashi Tharoor: But it’s come to that because of these developments that you’re looking at a situation where they have specifically been lapses to put it politely on the part of the Election Commission that has given rise to these concerns. When you read in the newspapers that the three election commissions are summoned to a meeting with the principal secretary to the prime minister and they actually go without saying, sorry, it’s not your business to summon us. When you read that in the 2017 Gujarat elections, which had historically always been announced at the same time as two other state elections, that suddenly those two are announced first and nothing is announced for Gujarat.
When you hear about the Lavasa controversy where one election commissioner essentially seeks to dissent and then ends up being sort of packed off to Manila.
It’s very striking that previous governments actually valued the independence of the election commission. It was always headed by a retired bureaucrat, but governments went out of their way to find bureaucrats with a reputation for integrity for no nonsense and corruptibility for people who would not lightly take matters lying down.
Nidhi Razdan: But there were election commissioners that one could say were friendly towards the Congress dispensation? Though I don’t want to take names.
Shashi Tharoor: But I can take names of ones who weren’t even though they were appointed by the Congress, so let’s not go into names. Perhaps they were one or two like that. And that by the way was also something which came up in earlier deliberations about the appointment procedure. But why not have an appointment panel? Right now, as you know, there’s a Supreme Court judgement suggesting a panel that would include the Chief Justice of India, until Parliament rules otherwise. And parliament of course means unfortunately in our present system, the executive. Essentially, once the executive is formed and has a rubber stamp majority in parliament, you are surrendering to the executive the right to create the kind of mechanism admissions. And as you know, the preferred formula of the present government is that the third member far from being an independent justice of the Supreme Court is going to be a cabinet minister named obviously by the Prime Minister.
So, these are questions that that are troubling because in fact, in many ways the independence and neutrality of the election Commission was always one of our great talking points when it came to speaking about India’s elections.
It was no accident that we have been summoned by numerous countries to come and observe their elections, to guide them, to give them advice. It’s only because we have developed over these years and it wasn’t just Congress rule, in all fairness, there were a few other governments in between. We’ve developed a reputation for having an election commission of true neutrality and independence, which has also acquired a lot of expertise in running elections in a country with the kind of challenges we have with many other developing countries and some new democracies found valuable.
Nidhi Razdan: Let me just get Neerja Chowdhary and Shekhar Gupta at this point. Both of you have covered elections in India for decades now. So, you’ve seen how things have changed the kind of chaos our elections used to be. It’s a flawed, but it’s a great system of electronic voting machines. I for one, I don’t buy into the conspiracy theories about EVM’s, but Neerja Chowdhary, in that context then, how important does the perceived independence and the neutrality of the election commission become in the India that we live in today that to ensure that in this chaotic democracy of ours, a level playing field is being provided to all?
Neerja Chowdhary: Look over the years we’ve seen this, and this is before T.N. Seshan. T.N. Seshan was also very close to the Congress. He was part of the Rajiv Gandhi regime, but once he sat in that chair, he was a bulldog. He had the prime ministers, the politicians running in circles. They had to do what he said had to be done for the conduct of free and fair election. And the CCs who followed no matter what their political alignments, they stuck to that. My experience is the stronger the Prime Minister, the weaker the institutions in our country. It is paradox, the weaker the government, if it’s an alliance government, the stronger the institutions, the more the checks and balances that come into play. And because for 25 years we had coalition governments, I think it made it easier for the election commission also to function more autonomously.
But the simple answer to your question is there just simply has to be a political will to do the reforms that are necessary. I don’t expect it to happen unless you have a prime minister, strong prime minister in the saddle who says, okay, I don’t mind if I don’t come back to power the next time round. But these things I will do.
Nidhi Razdan: Shekhar Gupta, just to take off on what Neerja Chowdhary just said in terms of let’s move on to sort of the election electoral reforms that there are so many of them. I mean we could be here all night, but what would you say the election commissioner of India over these decades has really got, right? And what does it need to get right? Is it election funding primarily? You think that we are still in a hole.
Shekhar Gupta: The Election Commission got the mechanics of holding an election right. Mechanics, if anything, have gotten better I would say with every election. It’s not just that counting is so quick and results come quickly, but you get much fewer complaints. People get privacy in the booth. I’ve just had for an audience, a bunch of bankers who said, why can’t voting be online in Bangalore? They want everything to be online, so why can’t voting be online? So, it’s very difficult to explain to them that online means somebody’s voting from their homes. Somebody will walk into the home with two ‘lathies’ and say, I’m watching who you are voting for. So, it’s very important for a voter to go to a booth, get that privacy and get a sense of security. So over time, election after election, that has improved. Those are things that are good and I would say by and large are fair. There are two problems. One is a problem that election committee doesn’t have to address. That’s a problem that the Supreme Court has to address.
One is a problem that the Supreme Court has to address, but that can, a call on anonymous electoral bonds. Before last elections, they said it’s too close to the elections right now. They will say it’s too close to the elections. Five years from now they’ll again say it’s too close to the elections. So, when anonymous electoral bonds were brought in, Arun Jaitley said it’s the first step, at least there will be no cash needed now, but what does the first step mean? This is a completely unfair system because the government knows who has paid how much money to whom, because the State Bank of India is the Government of India. The Government is the majority shareholder, but no other knows. That one single thing has upset the balance in the electoral process.
So, there are challenges. It’s a work in progress. But as far as the electoral process is concerned, this electoral funding now, it’s not a question of cash being passed under the table. Now it’s given legally in such a way that one side knows, only one side knows who’s paying whom.
Nidhi Razdan: And the voters don’t know. We don’t know how parties are being funded.
Shekhar Gupta: And that’s easily fixed.
Nidhi Razdan: Absolutely. And that’s why I spoke right at the beginning about the two institutions in particular who seem to have weakened today, which is the judiciary. As Shekhar rightly said, the Supreme Court will now hear the electoral bonds matter from the 31st of October, not in time I guess for the next round of assembly elections. I want to quickly touch on so many things, simultaneous elections. So, if I sort of be the devil’s advocate here, the logic is it’s going to be cheaper. We are going to get out of this continuous cycle of elections. You don’t need a model code of conduct every time, the business of governance can go on. It’s just a more efficient way to do it. And we started when we were independent, we had simultaneous elections till the early sixties. So why can’t we do it now?
Shashi Tharoor: Well, because the mirror is already cracked and in fact it’s not just cracked in ‘67 when the SVD governments were formed and then it failed and fell at different times. So elections were necessitated later, but now we’ve got the mirrors have completely shattered that you really can’t piece it together again because pretty much every six months there’s an election somewhere.
But frankly that’s not anybody else’s fault but the prime minister’s and the ruling party’s. They have chosen the Prime Minister, the Home Minister, to be the principal campaigners in every stage election, every municipal election in a big city. They don’t have to, that’s not their job. The prime Minister’s job is to run the country, not to win elections for his party. Others can do that. The honest truth is that this is a way of trying to press gag the system into a uniformity that is completely illusory. We are a diverse country. We are a country with a number of different traditions, cultures, political cultures as well. And frankly every state has its own story. Even if somehow artificially by shortening some terms and expanding some terms, all of which will be arguably unconstitutional, you manage to have one set of elections altogether once, which would be a small nightmare anyway, given the number of seats at stake and the number of EVMs required and number of personnel required, all of that, you have it once. What’s to prevent one of these governments falling again six months, nine months from now, if your only solution is keep President’s rule until the next election cycle is due, that’s undemocratic. That would surely be violating of the basic principles of the Constitution. So, I don’t see that this is a feasible reform, let alone whether it’s desirable or not. Because as I say, I mean once the mirror has cracked, you cannot possibly be set together again and get an accurate reflection.
Nidhi Razdan: Mr. Nariman, if I could get your comment on this idea of simultaneous polls. Do you see it as an attempt in a sense to homogenize everything one nation, one election, one leader, dare I say maybe no elections?
Fali Nariman: One president. The whole point is that because it’s a moving towards a presidential system of government, I have convinced that it is at some point of time and therefore we have to be extraordinarily careful if we are saying we are democratic and we hold elections and so on. And what Shashi Tharoor rightly points out the election bonds syndrome is a very, very dangerous syndrome because it’s only the big money bags who can then with whom the ruling party, whichever it is, whether it’s Congress or it’s the BJP, they align itself to, and that’s the greatest danger in our country because you see the whole world today is getting more and more autocratic. And it’s time that we take note of this trend and see what we can do to reverse it. And one of the most important parts of it is the chapter on elections in the Constitution, what sort of laws we need.
Shashi Tharoor: If I may just add given, and we’ve already talked about some of this, given the hollowing out of our democratic institutions and practices, we haven’t even mentioned how parliament has been reduced to rubber stamp. Given all of that, elections are actually the only vehicle for popular accountability, for holding governments accountable for their performance and therefore to reduce their number and frequency itself is undemocratic because the more elections you have, the more opportunity you have to register your views about the government in a concurrent way. In some ways Fali Saab, a presidential system would be more honest. At least you’ll have an independent legislature. Right now, we have the worst of both worlds. We have a parliamentary system being run presidentially and the parliament is completely toothless.
Fali Nariman: In a presidential system, we won’t be able to have a meeting like this.
Shashi Tharoor: Well, that’s a different argument we need to have because I do believe that the logic of the presidential system is complete separation of powers. The executive would not be formed by the legislation, therefore couldn’t control it. But that’s a different conversation.
Nidhi Razdan: You’re talking about the US system. Dr. Quraishi, your views of simultaneous polls not being feasible.
Dr. Quraishi: Actually, the government report, there was a preliminary committee which says that it should be simultaneous, but one basic flaw in the whole argument. Initially Prime Minister said that all three tiers should be simultaneous, but gradually 3 million Panchayat elected person they forgot about. That left us with 4,120 MLAs & 543 MPs. So, it is a dilution of the proposal. Then the parliamentary committee and the Niti Aayog committee come out with a proposal, alright, if not once in five years, let’s do two in five years with that kind of dilution, what moral authority is left in the proposal and then what we hear, look from the beginning, for the first 10 years, there used to be simultaneous election.
Yes, that’s part of history. But what happened in the 11th year because states started falling, we started having separate election. Then finally, among various arguments, there are pros and cons of this. As one MP said, ask the people what do they want? They love elections because that is the only power they have. And the money, if they said it’ll save money. Now the 60,000 crores which was spent by the politicians, it was recycled. It went to the poor people, the labourer, the painter, the auto drivers. So actually, it is doing good to the economy. And I had a very interesting slogan by a girl in a youth parliament in Pune. Jab jab chunav aata hai, garib ke peth mein pulao aata hai (whenever elections are held, the poor are fed well).
Otherwise, how many times we have seen the MP or MLA disappear for five years. So therefore, because of repeated election, they have to go back again and again. And finally, they should know now there are only two or three the stakeholders who will be affected by frequency. Suppose the election is happening in, does it affect you or me? We won’t even know that the election is happening, only the political party who’s contesting and the election commission because we have to be there, everywhere. And the media. Media should be happy because this gives you work.
S Y Quraishi is a former Chief Election Commissioner, a former Haryana cadre officer; a prolific author and political commentator.