Assembly elections 2017: I mourn for Constitution but stand up for democracy

From EVMs to BJP's machinations in Goa and Manipur through governors, the polls were messy.

 |  4-minute read |   20-03-2017
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When I speak of the state elections of 2017 as messy, I do not disparage the Election Commission which has done a grand job under impossible circumstances and succeeded in its constitutional endeavours. Its success is India’s success. The Election Commission is a constitutional body with wide powers. Its interests have to be safeguarded by the Supreme Court.

When TN Seshan was the Chief Election Commissioner, he claimed big–boss status, but was reminded by the Supreme Court that the Commission was a collegiate body. He was represented by Nani Palkhivala, who was not at his best while arguing that one person, Seshan, could alone save democracy.

Tamper tantrums

This Assembly election raised the question whether EVM’s (electronic voting machines) can be tampered with; and if they were tampered. The argument was for "some" re-elections (which is impossible); and in future to abolish EVM’s which many countries found unreliable. For the moment, this complaint seems one of sore losers. The future is subject to discussion.

In AC Jose’s Case (1984), the commission experimented with voting machines in Kerala for only one constituency where 50 voting machines were used. The Supreme Court thought this was without jurisdiction but recognised the commission’s general power where statute and rules did not exist.

The irrepressible Subramanian Swamy lost in the Delhi High Court (2000) seeking an order that a “paper trail” was necessary. He appealed to the Supreme Court to say EVM’s do not meet international standards and are vulnerable to hacking.

The Election Commission responded that it had taken the view that it was going for a full proof version. In 2013, the Supreme Court decided that the VVPAT system be introduced because it has electronic advantages and a “paper trail” which was essential for democracy. If something has to be done, let it be done by Parliament with technical advice or the judges who have taken a view.

bjpbd_032017102805.jpg The BJP’s juggernaut won UP by 325 out of 403 seats.

This election is over and it is essential to recognise its validity. But at the same time, this controversy is far from over. Justice Gogoi, of the Supreme Court has passed orders that VVPAT be established and government should sanction the amount. If the 2017 elections were tainted, an inquiry is essential immediately. The viability of India’s electoral democracy is at stake.

BJP juggernaut

The BJP’s juggernaut won UP by 325 out of 403 seats. The BJP is on a quest to conquer all of India by whatever means. After the UP victory, it says it will win the general election in 2019. This is a big take. What its opponents must now do is an analysis of why they lost.

One part is anti-incumbency against the Samajwadi Party. Why was Akhilesh Yadav watching a jamboree when Muzzaffarnagar was burning? His record was a liability. Mulayam fighting with his son over his brother added fuel to the fire. The Congress alliance failed because, despite his self-hype and mother’s protection, Rahul Gandhi is not a leader of men.

What really went wrong in UP was there was no mahagathbandhan as in Bihar, but each leader following their own ambitions. United we stand and divided we fall. The BJP wants to secure the Hindi heartland. Rajasthan and Madhya Pradesh are due for elections. That the BJP lost miserably in Punjab shows the vulnerability of the juggernaut. In Kashmir, the BJP is also vulnerable on many grounds including the Army’s record and crackdown methods as the only weapon of exchange and persuasion.

In both Goa and Manipur, the Congress was the largest party (in Manipur 28 of 60, with BJP at 21 MLAs; and Goa 17 out of 40, with the BJP at 13). Why did the governors swear in the BJP? Chief Justice Khehar in the Supreme Court orally chastised the Congress in the Goa case (2017) for not going to the governor straightaway. These comments were unworthy. Obviously selection of the chief minister is not done by a race to the Raj Bhawan!

Governor Mridula Sinha gave an interview to the press, saying she got advice from Union minister Arun Jaitley. But for this interview, we would never have known Jaitley’s involvement. In Manipur, the Congress did go to Governor Najma Heptullah first, but she refused to recognise the largest party’s claim.

Majority mandates

Fali Nariman is right to decry these failures of constitutionalism. His view has support from the Constitution and Punchhi Commissions. Each party has a mandate from the electorate, they cannot betray that mandate between the elections and the Assembly’s meeting simply because no anti-defection law applies at this junction.

Alas, governors and the Congress have been biased in the past but that is no reason for swearing them. Modi appointed 26 out of 29 state governors and all seven L-Gs of Union Territories, many with Sangh Parivar leanings. The polls were untidy and messy. It also revealed BJP’s machinations in Goa and Manipur through governors. For the future we need to consider this as hung Assemblies are inevitable.

I mourn for Constitution but stand up for democracy.

(Courtesy of Mail Today.)

Also read: Former CEC SY Quraishi explains why you must trust the electronic voting machine


Rajeev Dhavan Rajeev Dhavan

Supreme Court lawyer.

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