Congress protests against ‘unconstitutional expansion of postal ballots facility’ in representation to ECI

The Congress on Friday submitted a representation to the Chief Election Commissioner protesting against what it called “unconstitutional and illegal expansion of postal ballots facility to cover voters of 65 years of age and above, as also COVID-19 patients”.

This referred to an amendment of Conduct of Election Rules, 1961 to expand the postal ballot facility to electors of 65 years of age and above (as also COVID-19 positive patients who are under home or institutional quarantine) by the Union Ministry of Law and Justice on Thursday.

“The manner in which this decision has been taken demonstrates a complete non-application of mind and a shocking circumvention of any consultation process with the key stakeholders (i.e. any other political parties other than the ruling regime). Even upon a cursory examination, the numerous legal deficiencies in this decision become apparent,” the representation,signed by senior Congress leaders Ahmed Patel, Abhishek Singhvi, Kapil Sibal, KC Venugopal and Randeep Singh Surjewala, says.

The representation goes on to point out the “grave infirmities which the said amendment suffers from and to which this Hon’ble Commission has given its ostensible consent to”.

“We request this Hon’ble Commission to utilize its powers under Article 324 of the Constitution of India and direct the immediate withdrawal of this decision and amendment to the Conduct of Election Rules 1961,” the representation says.

Full text of objections raised in the representation:

[I] Secrecy of Voting

Secrecy in voting is intrinsic to constitutional democracy, which as per the Hon’ble Supreme Court is the basic feature of the Constitution of India and is not amenable to the powers of amendment.

What the authors of this decision, i.e. the government in consultation with the ECI, have failed to consider is that in a country like India where a large segment of the population is uneducated, the electors/voters utilizing the postal ballot facility so covered by this facility shall not only be seeking assistance from others but at numerous stages might end up disclosing their preferred candidate, and therefore might completely give up the aspect of maintaining secrecy in their voting.

It is relevant to reiterate the fact that in Kuldip Nayar v.Union of India [AIR 2006 SC 3127], the Hon’ble Supreme Court dealt with the importance of the concept of ‘secrecy’ in voting under the Constitutional Scheme.

“…that it is inherent requirement of the principle of free and fair election that the right to vote be invariably accompanied by the right of secrecy of vote so as to ensure that the freedom of expression through vote is real.

The context in which General Elections are held, secrecy of the vote is necessary in order to maintain the purity of the Election system. Every voter has a right to vote in a free and fair manner and not disclose to any person how he has voted…”

[Emphasis Supplied]

Further, the Hon’ble Supreme Court reaffirmed its judgment in S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra [1980 Supp SCC 53] and observed that:

“…The existence of the principle of "secrecy of ballot" cannot be denied. Secrecy of ballot undoubtedly is an indispensable adjunct of free and fair elections. It undoubtedly is an indispensable adjunct of free and fair elections. The Act statutorily assures a voter that he would not be compelled by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and free from any apprehension of its disclosure against his will from his own lips….”

[Emphasis Supplied]

In light of the above, it is clear that this Hon’ble Commission cannot overlook this vital requirement for the sake of perceived convenience which no one has asked for and on which no other political party has been consulted.

[II] Dual Exposure and Increased Vulnerability

It is respectfully submitted that this amendment to the Conduct of Election Rules, 1961 which purportedly aims to protect senior citizens and to prevent the spread of Covid-19 infection, shall ironically have the exact opposite effect by doubly endangering not just the voters but those around them vis-à-vis exposure to the Covid-19 virus.

First, as per Rule 24 (2) of the Conduct Elections Rule 1961, the Form 13A along with the Postal Ballot Paper, has to be duly attested and notarized. Therefore, the voter/elector who is aged 65 years or is a patient of Covid–19 infection, shall have to personally meet an officer for purposes of notary and attestation. Therefore, this will not only expose the voter/elector but also the officer in charge of notarization to a risk of contracting Covid-19 infection.

Second, the voter shall have to utilize the services of a government postal office to send his or her postal ballot and therefore, will yet again risk either contracting or spreading Covid-19 infection.

Such non-application of mind which jeopardizes the health of senior citizens infects the amendments and also impacts the right of senior citizens to vote effectively.

A better alternative would be to have a separate voting booth for Senior Citizens to minimize risk of infection.

[III] Rejection Rate

As per Rule 23 of the Conduct of Elections Rules 1961, the Postal Ballot paper has to be sent with the following forms, viz., a declaration in Form 13A; (ii) a cover in Form 13B; (iii) a large cover addressed to the returning officer in Form 13C.

Furthermore, as per this Hon’ble Commission’s letter No. 470/INST/2014-EPS dated 30.04.2014, the following grounds had been specified as grounds for rejecting the votes received through postal ballots:

a) If no vote is recorded thereon; orb) If votes are given on it in favour of more than one candidate: or

c) If it is a spurious ballot paper; ord) If it has been so damaged or mutilated that its identity as genuine ballot paper cannot be established; ore) If it is not returned in the cover “B” sent along with it to the elector by the

Returning Officer; or

f) If the mark indicating the vote is made in such a way that it is doubtful to make out the candidate to whom the vote has been given; org) If it bears any mark or writing by which the voter can be identified.

Therefore, the slightest error in the said forms leads to immediate rejection. Furthermore, the rate of rejection (of postal ballots) has always remained high in all elections conducted -close to over 20%-which is why it is an exceptional alternative that is not offered as a substitute for the normal voting procedure. This almost 20% margin of error, once applied to the votes cast by electors of 65 years and above, is enough to completely change the outcome of any election.

In other words, and in light of these numerous requirements, postal ballots are a less reliable alternative and cannot become the norm. The right to vote and the right to participate in the democratic process shall be severely affected by the said notification/amendment with many votes likely to be disqualified on these grounds.

[IV] Administrative Influence

As stated by this Hon’ble Commission on several occasions it is the Constitutional duty of this body to ensure that the administration and Government of the day cannot influence the voters through inducements, allurements, position and pressures. Numerous circulars issued by this Hon’ble Commission since 1951 have been dedicated to this principle.

Yet, in a surprising departure from this tradition, this Commission has lent its support to an amendment which exposes a high percentage of voters to organized administrative influence or influence by the Government or the ruling party or their agents or any number of individuals who shall be able to identify these individuals in advance (with ease) and influence how they vote without the protection of the secret ballot. Endangering the integrity of the voting process and undermining its sanctity in this fashion on a potentially massive scale is simply unacceptable.

[V] Postal Ballots are the exception and not the Rule

As this Hon’ble Commission is aware, Postal Ballots are only applied and utilized in limited situations as provided in the Conduct of Election Rules 1961, viz., (i) Voters in Armed Forces; (ii) Voters engaged in Essential Services; (iii) Voters above the age of 80 years; (iv) Voters suffering from physical disability. Hence, the said practice which was arrived at after careful consideration and due deliberation should remain as it was prior to the amendment and the wanton/ arbitrary extension of postal ballot facility should not be allowed.

Respectfully, in our considered opinion, the present amendment which is being highly publicized as being passed after due consideration with your Hon’ble Commission are a brazen attack on not only the democratic structure of our nation but also represent, with due respect, an abdication of duty by this Hon’ble Commission of its powers and responsibility enshrined under Article 324 of the Constitution of India.

In fact, this amendment directly offends and violates Article 324 by reducing the scope for the conduct of “free and fair elections”, the protection of which is the heart and soul of this Constitutional protection.

Our Request

We request this Hon’ble Commission to utilize its powers under Article 324 of the Constitution of India and direct the immediate withdrawal of this decision and amendment to the Conduct of Election Rules 1961.

We hope the Commission treats these matters with the attention they deserve.