“This Court has consistently held that free and fair elections are a part of the basic structure of the Constitution. Elections at the local participatory level act as a microcosm of the largest democratic structure in the country… ensuring a free and fair electoral process throughout this process, therefore, is imperative to maintain the legitimacy of and trust in representative democracy.” So said the Supreme Court of India in Kuldeep Kumar vs Union Territory of Chandigarh and Others — otherwise known as the Chandigarh Mayor’s election case.
Though the Court has said the same or similar words in a number of its judgments in the past, the Chandigarh judgment, which was pronounced on February 20, 2024, by the Chief Justice of India, D.Y. Chandrachud, and his brother Judges, Justices J.B. Pardiwala and Manoj Misra, has taken on a new resonance. It is the context of this judgment that imparts great significance to these words.
The political discourse now
India is to conduct a general election very soon. This is an election of momentous importance in the history of democratic India. India has remained a powerful presence in the democratic world and has always been looked upon as a beacon of hope for those who believe in a liberal pluralist and secular order, particularly in Asia. It is common knowledge that there are various forebodings about a possible turn that India may take soon towards some form of theocracy. The much-heightened religiosity seen almost everywhere in the country, and the powerful religious idioms being used liberally in the political discourse are straws in the wind. There is a general feeling that drastic changes in the country’s political direction are in the offing.
Although the Chandigarh episode is seemingly an isolated incident, where the Returning Officer, a person with Bharatiya Janata Party (BJP) affiliation, marked and defaced eight valid ballots that had been polled in favour of the Aam Aadmi Party and Congress alliance candidate and then declared them invalid in order to elect the Mayor from the BJP, it is the action of this officer that has great political significance — which was not lost on the Court. The Court was convinced, pursuing first-hand evidence, that the Returning Officer had subverted the electoral process.
The Court has made a significant observation in this context: “We are of the considered view that in such a case, this Court is duty-bound, particularly in the context of its jurisdiction under Article 142 of the Constitution, to do complete justice to ensure that the process of electoral democracy is not allowed to be thwarted by such subterfuges.”
Like enlightened citizens, the lords of the top court, with their incisive intellect, could fathom the depth of the degeneration that has taken place in the system. These words, from the Bench, give the country a heads-up on the serious threat the system could face. That a relatively insignificant office-bearer of a Municipal Corporation had the courage to subvert the electoral process with impunity points to the times we are living in.
It is even more disturbing that senior law officers of the government defended his action in the Supreme Court. It is also instructive that the High Court did not give any relief to the petitioners in the face of such a blatantly illegal act by an officer who is required to protect the integrity of the electoral process. It is baffling that the High Court could not detect the defacing of valid ballots by the officer for obvious political benefits.
The founding fathers of the republic preserved the sanctity of the electoral system through constitutional and legal provisions. Through its judgments, the Supreme Court has only strengthened them. A constitutional body such as the Election Commission of India has been tasked with conducting elections to law-making bodies such as the State Legislatures and Parliament. The two principal laws relating to elections, namely, The Representation of The People Act, 1950 and The Representation of The People Act, 1951, contain a complete code on elections in India. The Constitution and the laws repose confidence in the men who operate the system. But, in an atmosphere of degeneration of institutions, it is idle to pretend that everything in the garden is lovely. Judicial intervention to restore the sanctity of the system as well as to punish the subverters of the system can go a long way in shoring up public morale. This is why the Indian public has widely welcomed the two judgments of the Supreme Court on the electoral bonds scheme and the mayoral elections in Chandigarh.
The people of India will elect a new Lok Sabha soon. There is unprecedented religious fervour in the country today. It is relatively easy to excite the people of India in the name of religion or mythology. It is also natural for religious fervour to be reflected in the electoral outcome. Whether the secular Constitution, laws and law courts can protect the integrity of the electoral system in such a surcharged atmosphere is the cardinal question that confronts citizens today.
The angle of religion
Political parties and their leaders cannot, in the circumstances, carry out any rescue operation. They will only go with the flow. Political parties seem to have almost forgotten Section 123 of the Representation of People Act 1951 which deals with a range of corrupt practices that invalidate an election. In particular, Section 123 Clause (3) lays emphasis on the consequences of using ‘religion’ or ‘religious’ symbols in an election. The law-makers were convinced that the ordinary voter could be easily influenced by an appeal in the name of religion. So, they termed such an appeal as a corrupt practice. Further, the Supreme Court has strongly deprecated such tendencies on the part of the candidate and political leaders.
The Court, in Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdass Mehra & Ors (1975), put the issue of religious appeal in elections in perspective: “We do not consider such speeches to have any place in a democratic set up under our Constitution. Indeed they have none in the world of modern science which has compelled every type of religion, for its own survival, to seek securer foundations than childlike faith in and unquestioning conformity or [of] obedience to an invariable set of religious beliefs and practices”.
In 2017, a seven-judge Bench of the Supreme Court gave a wider interpretation to the appeal in the name of religion (Abhiram Singh vs C.D. Commachen) and held that such an appeal would include even the religion of voters and not merely that of the vote-seeker. This means that no appeal whatsoever in the name of the religion of the candidate or voters is permissible. Political parties would do well to read carefully these judgments before they set out to bombard the voters with their sectarian appeals.
Subversion of the electoral process can take place at different levels, and at different stages of an election. The Returning Officer in the Chandigarh Corporation has shown how easy it is to achieve that objective even at the stage of counting of votes. It is true that the Mayoral election or elections to Corporations are not governed by the Representation of People Act. But, the corporations’ regulations which govern such elections also have the same principles to ensure free and fair elections, which is a part of the basic structure of the Constitution.
There are apprehensions
The Chandigarh episode has created grave apprehensions in the public mind about the future of India’s electoral democracy. But the decisive and timely intervention by the Supreme Court has saved it, at least for the time being. In the normal course of things, legal remedy is a time-consuming affair which keeps alive the possibility of mischievous interventions in the electoral process.
It is not a happy thought that after 75 years of India’s experiment with electoral democracy, Indian citizens are witness to attempts to subvert the electoral process. They should cross their fingers and hope that it does not happen in future.
P.D.T. Achary is former Secretary General, Lok Sabha
