India’s election reboot—The great divide

Live Mint/23 July 2018 
By Professor Khagesh Gautam 
 

New Delhi: The clearest sign that the idea of “mini-simultaneous” elections has entered the realm of possibility is the posturing by opposition parties as they kick off their campaigns early.

Former Haryana chief minister Bhupinder Singh Hooda of the Congress, for instance, has started campaigning extensively to woo farmers, despite the fact that the assembly elections are still a good 15 months away.

The burst of political activity, in fact, takes root in the extensive chatter around the possibility of holding some state elections, especially those that are scheduled six months prior to or six months after the parliament polls, with the 2019 general elections.

Assembly elections in Odisha, Andhra Pradesh, Telangana, Sikkim and Arunachal Pradesh could be held with the general elections as they head for polls almost around the same time. Mizoram, Rajasthan, Madhya Pradesh and Chhattisgarh are scheduled to go to the polls before the general elections, with Haryana and Maharashtra following only a few months later.

“We are very clear that whenever simultaneous elections have to happen in the country, it will have to take place when the BJP is in power because we are the only party which is in favour of it,” said a senior BJP leader, requesting anonymity.

In fact, Prime Minister Narendra Modi has stressed the benefits of simultaneous polls at several public functions, including saving time and money, besides pulling the country out of a perpetual election mode.

However, Congress, along with a few regional parties, has rejected it in its present form, saying it goes against the principles of democracy.

“Why doesn’t Narendra Modi hold simultaneous elections in the BJP-ruled states and at the centre in 2019? Let charity begin at home,” said Trinamool Congress member of Parliament Kalyan Banerjee. “The decision is not only unconstitutional, it is also an attack on federalism. Is the central government implying that it is superior to the state legislature.”

“While the BJP is trying to build a narrative and galvanize around ‘one nation, one election’, the opposition has been raising it because it feels that this is a decisive government and is concerned that the government may push for it in the near future,” said N. Bhaskara Rao, a New Delhi-based political analyst.

On 7-8 July, the law commission held a national-level consultation on the issue with all political parties, and is expected to hold another round of key discussions with all stakeholders, including legal and constitutional experts, before submitting a final report.

However, the roll-out of simultaneous elections will not only require constitutional amendments and legislative tuning, experts say the administrative challenges can be a Herculean task.

Constitutional challenges

In its draft paper released in April 2018, the law commission had suggested a two-phase approach to simultaneous polls to Parliament as well as the state legislatures. It said elections to state assemblies, which were scheduled to go for polls close to the general elections in 2019, could be held together. The remaining, where the elections are close to 2024, can be synchronized with it.

Thereafter, it reasoned, Lok Sabha and assembly elections can be held simultaneously every five years. In order to achieve this goal, the commission had recommended a slew of amendments to the Constitution of India as well as the Representation of Peoples’ Act, 1951, and Rules of Procedure of the Lok Sabha and assemblies.

“Whether it is the state assembly or the Lok Sabha, the presence of Article 356 and a multi-party coalition democracy doesn’t guarantee a five-year term. It may get dissolved at any moment,” argued DMK Rajya Sabha member Tiruchi Siva. “Suppose the Lok Sabha gets dissolved, will they dissolve all the other assemblies?”

Apart from amending the provisions, which look into the tenure of Parliament and state assemblies, the commission had suggested changes in the anti-defection law to avoid “hung assemblies” and had mandated an “alternative” government in case of a no-confidence motion. It had further said the prime minister or chief minister should be “elected”, just like the speaker.

Simultaneous elections are not new to the country. During the first two decades of Independence, Lok Sabha and assembly polls were held at the same time. Constitutionally and legally, it is not prohibited in India. Nothing in the Constitution puts an embargo on the concept of “one nation, one election”. Thus, the centre is not barred from bringing in the relevant amendments, including an amendment to the tenure of the Lok Sabha and state assemblies, according to Article 368 of the Constitution to facilitate the move.

The terms of the state assembly are not entirely inflexible and can be shortened or enhanced within the stipulated framework of the Constitution, says Khagesh Gautam, professor of constitutional law and assistant director, Centre on Public Law and Jurisprudence, at Jindal Global Law School, Sonipat.

“This is routinely done when elections are sometimes called ahead of the schedule. But it is unknown for it to be extended; and can be done only in emergency circumstances,” he said. “However, if the power to enhance or shorten the assembly terms is used for any unconstitutional purposes, the Supreme Court will certainly not look favourably to such an exercise of constitutional powers.”

“In Indira Gandhi vs Raj Narain, the Supreme Court held that ‘free and fair’ elections are part of the basic structure… simultaneous elections may cast a shadow on the elections being fair,” Gautam said. “People vote differently in different elections—Lok Sabha, assembly and panchayat—because the issues are different. If you create a system for simultaneous elections, it does impact my ability to make a free, fair and informed decision, which is my right.”

Former chief election commissioner T.S. Krishnamurthy, does not agree: “A constitutional amendment is required to provide a fixed tenure for all legislatures. If there is a situation where the political party has lost the confidence of the house, there should be a condition prescribed in the amendment that unless the other party brings the leader to command the confidence of the house, the house’s term will continue for five years. There might be initial teething trouble. But, it is feasible.”

Administrative challenges

Officially, the election commission (EC) has said that once the legal and constitutional framework is in place, it will be able to implement simultaneous polls. The key challenges, however, will be to procure enough electronic voting machines (EVMs) and voter verifiable paper audit trails (VVPAT).

According to EC’s estimates before the standing committee of the Rajya Sabha in 2015, “a total of ₹9,284.15 crore will be required to procure EVMs and VVPATs” to hold simultaneous polls.

“The election commission’s stand remains the same. We have always stated that if the legislative and constitutional requirements are fulfilled, EC is ready to implement it. As far as manpower and cost estimates are concerned, everything is just a guess because such estimates make no sense till there is a final decision on the roll-out,” a senior EC official said on condition of anonymity.

Last year, EC had written to Electronics Corp. of India Ltd (ECIL) and Bharat Electronics Ltd (BEL), expressing its intent to buy VVPATs in time for the general elections.

The estimated cost of around 1.6 million VVPATs was ₹3,173.47 crore in 2017-18 and 2018-19. It is expected to buy 807,500 VVPATs by September 2018.

However, the Union home ministry, which oversees the security arrangements for elections across the country, has said that simultaneous elections could ease the burden on its infrastructure. While 500,000 security personnel, including police and central paramilitary forces, will be required, the process will be more streamlined.

“The strain on the security forces would become less as the voters could cast two ballots in the same polling booth. If state X is going to polls next year and it is clubbed with the general elections, then it means that if we station 40 security personnel outside a certain polling station, that number will not change because people will go to cast their vote for both sets of elections in that very poll station,” said a senior home ministry official on condition of anonymity.

The 2014 general elections saw the deployment of 200,000 central armed police forces. However, not everyone is convinced.

“Administratively speaking, we need seven phases to hold elections in states such as Uttar Pradesh. Can we imagine the scale of machinery needed to hold all the states and national polls together?” said Jagdeep Chhokar, founding member of New Delhi-based Association for Democratic Reforms.

Judicial challenges

Several experts said the challenges of holding simultaneous polls could well lie beyond its roll-out. Many say that even if a constitutional framework is put in place, the system may not stand judicial test. “The idea of simultaneous polls in a democracy like India is a surreptitious backhanded attempt at moving towards a presidential form of governance,” Chhokar said. “Even if the Constitution is amended, it will not pass legal scrutiny. That’s because it will extend to changing the basic structure of the Constitution, which was struck down by a 13-judge bench in the Keshavnand Bharti case.”

A section of experts also says that its implementation would alter the core of the multi-level federal democracy, which involves several layers of governance such as panchayats, municipal bodies, state legislative assemblies and the Lok Sabha.

They added that holding state and general elections together would end up giving more importance and dominance to national issues, parties and leaders.

“State polls are fought on local-level issues. When you have both state and national polls together, then you run the risk of national issues and leaders dominating state-level issues and leaders,” said Niraja Gopal Jayal, professor at the Centre for the Study of Law and Governance at Jawaharlal Nehru University (JNU).

Political challenges

In the law commission consultations, four political parties supported the idea of having Lok Sabha and assembly elections at the same time, while nine parties opposed it.

The parties that supported simultaneous polls include Shiromani Akali Dal, the All India Anna Dravida Munnetra Kazhagam (AIADMK), Samajwadi Party (SP) and Telangana Rashtra Samithi (TRS), while Goa Forward Party, Trinamool Congress (TMC), Aam Aadmi Party (AAP), Dravida Munnetra Kazhagam (DMK), Telugu Desam Party (TDP), Communist Party of India (CPI), Communist Party of India (Marxist) (CPM), All India Forward Block (AIFB) and the Janata Dal (Secular) (JDS) objected to the move.

The two national players, BJP and Congress, did not participate in the two-day consultation.

While BJP is of course leading the charge, what has been Congress’ argument for opposing simultaneous elections?

On its part, the Congress has clarified that it will not support the cause at least in its current form. It is of the view that mid-term dissolution of assemblies would result in an added burden to the exchequer and betrayal of the mandate, and that there was no guarantee that governments would serve full five-year terms. It has argued that simultaneous polls endanger the federal and multi-party system.

Experts say the political quotient being attached by parties is significant because it could mark a major shift in India’s polity. “In a sense, this is taking us back to 1967, the last time we had simultaneous elections. Those who are advocating it know that before 1967 the Congress ruled at the centre and in most states. A return to the form of simultaneous election offers the temptation for one party having the mandate to rule both the centre and the states,” said JNU’s Jayal.

The elephant in the room is the absence of electoral reforms such as addressing the nexus between corporates and political parties, the debate over the national election fund and the obvious flaws in the first-past-the-post model India follows.

“If electoral reforms can be implemented without any delay, if there was a law to regulate the functioning of political parties, and if political parties respect the rule of law, accept court verdicts, and conduct themselves in a very transparent manner, there may not be any need for simultaneous elections,” argues former chief election commissioner Krishnamurthy.

However, India seems to be heading towards simultaneous elections, if not now, surely before 2024, if BJP returns to power.

But many troubling issues remain in pushing a unitary model in a diverse and federal nation like India.

 

Dharani Thangavelu from Chennai, and Shaswati Das and Gyan Varma from New Delhi contributed to this story.