P.D.T Achary

| @ | April 16,2019

Governments, in general, show a tendency to rush through with schemes and projects and sops just a couple of months before the general elections. They seem to be in such a hurry to ‘address’ the problems of different sections of the society towards the end of their tenure. Inaugurations of projects are an important and essential part of this last-minute exercise. Many of these inaugurations have plenty of comedy. In a number of cases, projects that have already been inaugurated are inaugurated once again much to the amusement of the people.

The elections to constitute the 17thLok Sabha are beginning in April and all political parties are busy burnishing their weapons to charge at each other. Practically, every day a new earth-shaking announcement about not only the terrestrial projects but celestial ones also is being made by the government to trump their rivals.

The inaugurations and announcements, denunciations and declamations really flummox voters. In the language of the election law, they are being ‘unduly influenced’ by all this and serious-minded citizens should sit up and take note of it.

 

The Model Code of Conduct

 

 

In India, elections are governed by two statutes – the Representation of People Act, 1950 and the Representation of People Act, 1951 plus the rules made by the legislature. Besides, the regulations and orders issued by the Election Commission as also the Model Code of Conduct (MCC) issued by the Commission occupy the field of the elections. Above all, there is the overarching mandate of Article 324 which commands the Election Commission to conduct free and fair elections and use all powers necessary for that purpose.

Of all these laws, rules and regulations the MCC is the most visible regulatory measure. It contains do’s and don’ts for political parties and the government. Thanks to T N Seshan, the former Chief Election Commissioner, the MCC and other directions of the Commission are followed by the political parties. Seshan was a nightmare to the recalcitrant political parties which had perfected the art of booth capturing, particularly in the northern states. A lot of election-related activities could be regulated by the Commission in the interest of free and fair elections.

Nevertheless, elections in India are a gigantic exercise involving 900 million voters and a plethora of political parties and therefore to examine and analyze every activity, every promise made by the government and find out whether it violates the MCC or any other direction of the Commission is a herculean task.

The MCC comes into effect with the announcement by the Commission of the election schedule. In order to avoid being hit by the code, the governments rush in with a lot of projects to influence voters. These projects could have been announced and implemented earlier but the last minute rush is the preferred mode. One advantage is that the government has to merely announce the projects and not implement them. Implementation of a project involves prioritising it, budgeting for it and scheduling the implementation plan and monitoring it. All these things can be avoided if projects are announced at the last minute. The country is presently discussing the farmers’ distress and the agrarian crisis. The present government at the centre announced a plan to give cash assistance of Rs 500 per month or Rs 6000 per year. The debt burden of the small farmers and their suicide was known to this government and also the earlier governments. But even this insignificant assistance of Rs 500 to each farmer has been decided upon only in the fifth year and that too in the interim budget. The reason is that it will conceivably have a greater impact on the farmer voter if it is given just before the election.

 

A Serious Asymmetry

 

 

This approach of a government gives rise to a serious asymmetry between the government and those who are opposed to it in an election battle. It is true that the government is free to announce any welfare scheme in the budget even if the elections are just around the corner. In fact, the government’s right to announce sops just before the elections is not the real issue. The real issue is the constitutional direction that elections should be free and fair. The fairness of the election can be ensured only if a level playing field is provided. This is the crux of the issue.

Section 123(2) of the Representation of People’s Act, 1951 deals with ‘undue influence’ of the voter which is a corrupt practice. Undue influence is defined as direct or indirect interference with the free exercise of an electoral right. But it is clarified that the declaration of public policy does not amount to undue influence. This term has been analyzed and interpreted by the Supreme Court in a number of cases. However, it appears that this has been construed rather narrowly. Undue influence can occur in so many ways; for example, if a government announces a major welfare scheme just before the election schedule is announced by the Election Commission or carries out the test of a new missile which signifies a new milestone, it will certainly have a great influence on the voters. The announcement of welfare scheme or missile test can be done after the election. No harm will be caused to the missile if it is delayed by one or two months. If these are motivated by a desire to influence the voters, it would amount to undue influence. That election eve is chosen for such announcement only shows that the government wants to influence the voters. So there is no reason why such acts of the government should not come under undue influence.

 

 

A relook at the Election Commission

 

 

A free and fair election is the sine qua non of democracy. The Constitution of India has created the system to ensure that elections are free and fair. The system has over the years gathered a lot of moss, which has reduced its shine. The Election Commission has been created as an independent constitutional body with proper safeguards in respect of the tenure and enrolments of persons who head the Commission. This body can afford to insulate itself from the pressures and blandishments of the executive. If a contrary impression is created it would signify the collapse of the constitutional system with its attendant risk of emasculation of democracy. It is definitely a lapse on the part of the Constitution makers that they did not think of providing a foolproof system of selection of Chief Election Commissioner and Commissioners. Appointment by the President means appointment by the Prime Minister of the day. It would simply mean the appointment of the Chief Election Commissioner, as well as the Commissioners, will largely be guided by political considerations which can squeeze out eminence, objectivity, superior merit, etc required for such positions. There is, therefore, a need to take a relook at the appointment procedure of the Election Commissioners and put in place a selection body consisting of persons of eminence and integrity.

Fair election presupposes that all contestants are equally placed, in other words, there should be a level playing field. The government of the day cannot be allowed to hijack the minds of voters to the disadvantage of others. At present, the Model Code of Conduct is the saviour of disadvantaged players in the election arena. But it is more or less like a leaky umbrella which cannot give much protection to those who come and stand under it.

Article 324 vests enormous powers in the Election Commission to conduct free and fair elections. The Supreme Court characterized them as “reservoir of powers”. In exercise of these powers, the Election Commission has, in fact, the power to issue an enforceable direction or order preventing a government from announcing any new scheme or project or any other act which has the potential to influence the voters, during the six months period prior to the expiration of the tenure of the legislature. The government will get full four and a half years to announce and implement their schemes and projects. They do not have to rush in with new projects during the last two months of their tenure. This step will to a great extent create the necessary level playing field in the electoral arena. It will enable voters to make a rational choice.

 

 

Boldness from the Election Commission

 

 

A period of six months is not alien to election law. Section 14 (2) (proviso) of the Representation of People Act, 1951 allows the Election Commission to issue election notifications six months before the expiration of the duration of a legislative house. The logic of the proposal to prevent the governments from announcing new projects, schemes, etc. during the last six month of its tenure is inherent in the above provision. What is required is a bold initiative from the Election Commission to issue necessary orders under Article 324 of the Constitution.

Bold initiatives are the driving force of change. The bold initiatives taken by Jawahar Lal Nehru gave us a Constitution based on equality, liberty, and fraternity. The bold initiatives taken by him gave voting rights to even the poorest of the poor. The bold initiatives taken by him created scientific institutions which gave us space technology, missile technology, rocket technology, and atomic energy. Because of these bold initiatives, a country steeped in ignorance and superstition, poverty and backwards emerged as a modern nation. To create a level playing field in the field of the election, the Election Commission must take the bold initiative of stopping the announcement of sops and projects by the government just prior to the end of its term, so that elections are free and fair in the real sense of the term.

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