And the winner is Election Commission

Gujarat Rajya Sabha election was BJP versus Congress. But it’s the ECI that covered itself in glory

Written by S Y Quraishi | Updated: August 10, 2017 6:33 am
Election Commission, congress in gujarat, Congress MLA's in gujarat, gujarat news, Election commission on safety of MLA's, India news, national news, latest news, india news Election Commission of India. (File Photo)

No election to a single Rajya Sabha seat has ever generated so much heat as the one that concluded past midnight yesterday. People were glued to the television throughout the day. Social media was abuzz with speculation. What made this election so special? Was it the media hype by the TV channels vying for TRPs, or were the issues involved really serious and unprecedented? It was indeed the interesting issues ranging from the scourge of horse-trading to the operation of the anti-defection law, the power and role of the EC, NOTA, secrecy of the ballot, and the two questionable votes whose secrecy was violated.

The first issue of horse-trading began with large-scale defections from the Congress. Six Congress MLAs joined the BJP, seven more defected later and one cross-voted. When the defection game began, the Congress transported 44 of its remaining MLAs to the safety of Congress-ruled Bengaluru, where they camped at a luxury resort. The unfortunate practice of taking MLAs to secret places, often against their wishes, is nearly three decades old. Remember Aaya Ram Gaya Ram? With rampant money power, it is almost impossible to prevent defections. The purchasability of our legislators is notorious and has popularised the phrase “horse-trading”. We have been seeing it with sickening regularity across the country. The figures mentioned are obscenely high, running into crores — maybe tens of crores.

The debate that ensued over the holidaying MLAs was interesting, where the poachers were heard blaming the party that was trying to save its flock: The proverbial pot calling the kettle black. The fact that none of the holidaymakers defected proves the efficacy of this step. The second issue was the applicability of the anti-defection law. The law did operate in this case when the six MLAs who defected to BJP were unseated and disqualified from voting. However, the seven who crossed over could not be disqualified as the anti-defection law operates only when the whip is violated as a part of legislative proceedings; an election is not part of those proceedings. It is noteworthy that defections become rampant when the term of the House is coming to an end anyway, and the outgoing legislators have nothing much to lose. They suddenly discover some forgotten “principles” or “suffocation from the leadership style” of the erstwhile party.

Another issue that arose was NOTA, which has been in operation since January 2014 but was suddenly discovered by the Congress, which protested about it even alleging mala fide intent against the EC. They took the matter to the Supreme Court which rightly refused to stay the operation, questioning why they had not raised it for three-and-a-half years. The SC, however, will still decide NOTA applicability in the peculiar case of Rajya Sabha elections. Their refusal to stay was rooted in the fact that Article 329 specifically prohibits any judicial interference in the election process that has been set in motion. The EC did invoke this Article. I personally feel that it does need reconsideration, just like the elections of the office of President and Vice President have been kept out of NOTA and have caused repeated confusion in their operation necessitating clarificatory notifications.

The secrecy of the ballot was another debated issue. The normal rule is that all votes in all elections are secret and anyone who shows his vote gets his vote cancelled. There is, however, one exception — the Rajya Sabha election. To checkmate horse-trading, the election rules have provided that the voter in Rajya Saba election would show his vote to an authorised representative of his party and no one else (Rule 39, Code of Election Rules, 1961). In the Gujarat case, two Congress MLAs showed their vote to rival BJP leaders to prove their new loyalty. The Congress lodged a protest with the Election Commission of India (ECI). The BJP raised the issue that the protest is too late as the votes have already been put in the box and cannot be identified.

This was the time when the ECI came under the scanner of the public (read media). Social media buzzed with speculation. Questions were raised about the integrity of the commissioners, both BJP appointees. Both the involved parties launched an onslaught of delegations. Many critics questioned the wisdom of the EC in seeing these delegations repeatedly. I feel that was the right thing for the EC to do as it must hear every conceivable point that may help it to decide the case with watertight credibility and also in deference to the principle that justice should not only be done but appear to be done as well.

Questions were raised by the BJP about the power of the EC vis-a-vis the Returning Officer (RO). In response to public questions, I had tweeted that till the results of an election are announced the power of the EC is total and exclusive though after the result it is zero, and shifts to the high court. It is true that the RO has the ultimate power under the law and if he wanted he could have started the counting and declared the results even if there was a blatant fraud. But to prevent such a possibility, which has happened in the past, the EC sends an observer who can stop the counting and the result till he and the EC are fully satisfied. This is exactly what happened in this case.

An interesting question is: How were the disputed votes identified after these were already mixed up in the box with all others? Such practical “difficulty” can never be a reason to let go of a fraud. Even one bogus vote is enough to “vitiate” a poll on which ground the entire election can be countermanded. That’s why the EC rules provide a safeguard and a procedure. The impugned votes are identified by the unique number printed on the back of each ballot paper.

The ECI came out with flying colours. Contrary to speculation that both the commissioners being appointees of the BJP, (the CEC, in fact, is the former chief secretary of the then-CM of Gujarat, Narendra Modi) would be under pressure to rule in favour of the ruling party, they delivered a brilliant judgment. I would like to mention from my experience that there is a kind of aura around the office of the CEC and the institutional memory and framework that keeps the conscience active. The EC is also conscious of judicial scrutiny and the public image.

The contest was between BJP and the Congress. The winners are [Achal Kumar] Jyoti and [Om Prakash]Rawat. Proud of you, my friends.

The writer is former chief election commissioner of India and a distinguished fellow at Ashoka University.
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