When EC came to the rescue of democracy

Every Indian citizen, optimistic about India’s future as a democracy, would salute Chief election Commissioner Achal Kumar Joti and his colleague, O P Rawat, at the Central Election Commission for resisting the humongous pressure of the BJP - which is the ruling party both at the Centre and the state concerned, Gujarat – and, at the same time, for going ahead with the invalidation of the two votes cast in favour of the BJP candidate in the Gujarat Rajya Sabha election.

Someone can argue, quite legitimately, that what the CEC has done is nothing extraordinary; it has gone purely by the rulebook and upheld the sanctity of the constitutional body. But then rulebooks are not always self-explanatory. They are subject to interpretation, especially in grey areas – areas where the Constitution or the statutes do not explicitly lay out the rules. That is when the interpretation of the rule or provision by the highest authority is what matters. This interpretation is of crucial importance because many top office-holders, even those occupying constitutional positions, often seek to curry favour with the government and interpret the rule in a way that suits the ruling dispensation.

Take this specific case involving the Gujarat Rajya Sabha Election: the provision that was a subject of intense night-long contention on August 8 was Section 39AA of Conduct of Election Rules that specifies the open ballot system for holding the Rajya Sabha elections.

Mind you, such a rule came into existence almost five decades after the first elections were held - during the National Democratic Alliance government headed by Atal Bihari Vajpayee. The Representation of the People Act, 1951, framed after Independence, had clearly provided for secret ballot in all the elections - be it for the Lok Sabha or Rajya Sabha or even the state Assembly – as a secret ballot was considered the sine qua non of an electoral democracy.

The Election Commission of India had clearly mentioned the secret ballot principle in its handbook: “Section 59 provides that voting shall be in the manner prescribed (i.e. prescribed by rules). The rules provide that a voter has to mark the ballot in voting compartment and insert the ballot paper in the ballot box, and that he has to maintain secrecy of vote in the polling station. Any violation of the voting procedure prescribed under the rules will render the ballot paper of the voter concerned liable to be cancelled for such violation.”

But the Vajpayee government decided to effect a change in the voting procedure for the Rajya Sabha election. Its prime concern was that a number of legislators were resorting to cross-voting due to various illegitimate considerations – money, power or privilege. That could be curbed to a large extent by switching over to an open ballot system, the NDA government surmised. But it did not want to go the whole hog. It provided for a limited open system.

Accordingly, the Representation of the People Act, 1951 was amended. It said: “This Act may be called the Representation of the People (Amendment) Act, 2003. In the Representation of the People Act, 1951 (hereinafter referred to as the principal Act)…. In section 59 of the principal Act, the following proviso shall be inserted at the end, namely: -- Provided that the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot.”

After this amendment of the RPA was carried out in 2003, the relevant rules regarding the conduct of elections were also amended to give effect to the new provision. Thus, Section 39AA of the Conduct of Election Rules came into effect that laid out the procedure for the Rajya Sabha elections.

This section reads as follows: “39AA. Information regarding casting of votes – Notwithstanding anything contained in rule 39A, the presiding officer shall, between the period when an elector being a member of a political party records his vote on a ballot paper and before such elector inserts that ballot paper into the ballot box, allow the authorized agent of that political party to verify as to whom such elector has cast his vote.”

The Election Commission of India further clarified the amended procedure in its handbook: “In the case of voting in Rajya Sabha election, a proviso was added in Section 59 to provide that elections to Rajya Sabha shall be by open ballot. The manner of voting in the Rajya Sabha election has been provided by necessary amendment in the Rules stipulating that the electors belonging to political parties, after marking the ballot, have to show the marked ballot to the representative of the party before inserting it in the ballot box.”

Both the amended provision and the subsequent clarification regarding it by the Election Commission in its handbook should have left no one in doubt about the rules when two Congress MLAs in Gujarat while casting vote for the Rajya Sabha election last Tuesday showed their ballot paper to someone who was not the authorized agent of the Congress party. The Congress, citing rules, demanded invalidation of the votes of these two MLAs. But since the BJP candidate was the beneficiary of these two votes, BJP leaders, including top lawyers like Arun Jaitley and Ravi Shankar Prasad, represented to the Election Commission that these two votes should be considered valid.

What was the logic of these eminent lawyers? It was twofold: first, as the amendment to the RPA said that the election to the Rajya Sabha would be by open ballot, an elector showing his ballot to anyone would be permissible. Their second logic was further ludicrous: that the Section 39AA stipulated that an MLA casting vote for the Rajya Sabha election has to show his ballot to his party agent but it has not explicitly forbidden for an MLA from showing his ballot to others! After all, the word ‘only’ was missing before the ‘party agent’!

The BJP leaders were making this point knowing fully well that they had demanded and ensured the invalidation of the vote of the Congress MLA from Haryana, Randeep Singh Surjewala, who had shown his ballot to another person apart from the authorised party representative in the 2016 Rajya Sabha election.

Though both logic and precedent were not on their side, the BJP leaders thought that they would be able to steamroll the Election Commission to accept their contention. The Election Commission was evidently under enormous pressure as half a dozen leading Cabinet members headed by the Finance and Defence Minister of the country made several trips there within a few hours to have their say.

A set of weak election commissioners would have given way – they would have given a spin to the rules to accommodate the ruling party’s interest – possibly to secure their own interest after the expiry of their Election Commission tenure. That way, Indian democracy would have been the casualty.

But A K Joti and O P Rawat showed that they are made of sterner stuff; that they could not be browbeaten into accepting something which was patently illegal. By acting without fear or favour, these two election commissioners reaffirmed the Indians’ faith in the independence of the Election Commission as an institution.