Op EdsOP. ED.

I. Introduction

In recent times, the Speaker’s Office has come under scrutiny in maintaining the tenets of parliamentary democracy. Parliamentary democracy builds upon the free and fair electoral process. People of India have reposed absolute trust in the democratic values by whole-hearted participation during the election. Unfortunately, some post-election developments create an environment of mistrust amongst the people on the righteousness of the electoral system. The ongoing crisis in the Rajasthan is a testimony of such distrust.

Besides numerous political questions in Rajasthan, the Speaker’s decision has raised a substantial constitutional question on the nature and power of the Speaker’s Office. Whether the decision, to serve the show-cause notice to the disgruntled members of the ruling party, taken by the Speaker partakes the partisan character of the Office of the Speaker? What shall be the role of the Speaker in a situation of political uncertainty? The paper focuses on the power and the function of the Speaker in India, along with a reference from the practice in Britain. The work does not examine the ongoing issue of the decision of the Speaker of Rajasthan Assembly on merit. It limits only the expectations from the Office of the Speaker based on the learning of the British practice and the power vested therein and the justification of the judicial intervention.

II. History and Evolution of the Office of the Speaker

The Office of the Speaker owes its origin to the development of the institution in Britain. In the early days, the Speaker’s role in the British Parliament was that of an agent to the Crown. The Speaker served as an interface between  Parliament and the Crown. The Speaker’s role got redefined when the nature of  Parliament changed from that of an appointed body to an elected representative.

Speaker Lenthall described the nature of his Office to King Charles II in 1642: “I have neither eyes to see, nor tongue to speak in this place, but as the House is pleased to direct me, whose servant I am here.”

The Cabinet form of Government in the late 17th century under King William III further changed the nature of the speakership. Speakers started associating themselves with the ministry and often held other government offices. Robert Harley served simultaneously as Speaker and as a Secretary of State between 1704 and 1705. Later, Arthur Onslow (Speaker 1728-61) had initiated the process of distancing the Office of the Speaker from the government. By the mid-nineteenth century, it was the norm that the Speaker should be above party politics. Over a period of time, there has been a transformation in the functioning to ensure the neutrality and impartiality in the functioning. The Speaker needs to resign from the political party on being elected and withdraw from active politics after completing the tenure.[1]Although elected under a political party label and functioning as an elected Member of Parliament representing the interest of constituents, the Speaker is expected to operate with complete impartiality.

During colonial rule, the Governor-General was presiding Central Legislative Council. The Governor-General nominated Sir Frederick Whyte, a former member of the British House of Commons as the first President of Central Legislative Assembly in 1921. The first Indian to preside over the President of the Central Legislative Assembly’s Office was Shri Vithalbhai Patel in1925. Though Speaker’s title came in only with the gaining of independence, the Presiding Officer’s institution is thus somewhat older, dating back to 1921.

III. Significance of the Office of the Speaker in India

Prime Minister Nehru had said, “The Speaker represents the House. He represents the dignity of the House the freedom of the House and because the House represents freedom and liberty. Therefore it is right that, that should be honored position, a free position and should be occupied always by men of outstanding ability and impartiality”.[2]

Though the Constitution provides for the Speaker’s method of election, a healthy convention has developed to elect the Speaker unanimously by the House. On the power of the Speaker, the first Speaker of the Lok Sabha G. B. Mavalankar, aptly said that ‘in the whole setup of a parliamentary democracy, the Speaker is the only autocrat, meaning thereby that his exercise of authority requires no previous consultation of concurrence of anybody and the authority is unchallengeable’.[3] The statement of the first Speaker tacitly acknowledges the unfettered power entrusted upon the Office. The plausible reason for unwritten power relates to the extensive function assigned on the Speaker. It is imperative to say that the office-holder needs to be highly cautious in exercising power. Any exercise of power that would have smacked of suspicion must be rejected on account of the responsibility to preserve democracy entrusted on the Speaker.

Based on the constitutional provisions, Rules of Business of the House, and the Conventions, the Speaker’s powers and functions can be divided into four broad categories which can be to (a) run the business of the House, (b) administrative action, (c) quasi-judicial and (d) other functions. The Speaker facilitates the business of the House, ensures equitable participation of every stakeholder during the discussion, decides on the motions moved by the members, assists the members to hold the executive accountable, plays the role of a disciplinarian by suspending/terminating the member or ask them to withdraw from the House, adjourns the House, expunges the unparliamentary statements and decides on the nature of the Bill. On the administrative side, the Speaker heads the Lok Sabha Secretariat, exercises power over a number of Parliamentary Committees such as the Rules Committee, the Business Advisory Committee, and the General Purposes Committee, and nominates the chairman of various committees in place. In the quasi-judicial role, the Speaker decides on the issue of defection of the members from the political party which influences the composition of the House and the formation/continuation of the government.[4] While deciding the defection matters, the principles of natural justice will guide the exercise of power on the procedural aspect. On the substantive aspect, the Speaker should be guided by the absence of arbitrariness and the inherent characteristics of impartiality.

In addition to this, few other powers are vested in the Speaker which includes the power to exercise a casting vote, to resolve a deadlock over a particular matter. That is, when the House initiates a voting procedure, he does not cast a vote in the first instance but shall have and exercise a casting vote in the case of an equality of votes.[5] Thus, it makes his position as impartial as in the English system of democracy.

IV. Parliamentary Democracy and Partisanship

In England, the Speaker’s independence is ensured by a number of conventions and rules of procedures. Most of these have been adopted in India also either in the Constitution or rules of procedure of the House of people. Thus, as in England the salary and allowance of the Speaker are charged from the consolidated fund.[6] His conduct cannot be criticised except on substantive motion or upon resolution for removal.[7] He doesn’t cast a vote except in the case of a tie.[8] He can be removed only by special resolution.[9] However, the exercise of the power by the Office of the Speakers presents a different narrative.

The practice of partiality goes back to the first Lok Sabha when the first Speaker of the House disallowed an adjournment motion brought in to discuss the lathi-charge by policemen in Manipur. He also refused to give up the membership of the political party to which he belonged after getting elected as a Speaker.[10] In 2004, Somnath Chatterji refused to include the Railway Minister’s name in the resolution passed by the opposition in the aftermath of a train accident.[11] Instances of deliberate delay in deciding the disqualification matters of the members in Tamil Nadu and Karnataka also raised the proprietary’s question on the constitutional design of making the Speaker the sole arbiter in the matter of the disqualification.

The continued affiliation with the political party by the Speaker lies at the bottom of the problem. The problems of partisanship arise because of the structural issues regarding the appointment and tenure of the Speaker.[12] Though the Speaker represents the House but he also continues to represent his constituency. Again, he looks forward to contesting the election from the same constituency, which depends upon the permission from the political party’s leader.

The convention of Speakers resigning from their party membership has not developed in India. A reason for this is that the Speaker’s re-election to the House is not assured. All political parties campaign in the constituency of the Speaker. Even after re-electing to the House, the Office of the Speaker is still open for elections in India. Thus, an electoral system and conventions have not developed where the Speaker can forego his membership, thus he is bound to retain party membership. Neelam Sanjiva Reddy was the only parliamentarian who resigned from the political party after becoming Speaker of the Fourth Lok Sabha.

In the United Kingdom, political parties generally do not field candidates against the Speaker during general elections.[13] During the election the Speaker stands as a Speaker seeking re-election and does not campaign on a political issue. There is a presumption if re-elected to the House he would continue as the Speaker, unless he shows an unwillingness to do so.[14]Also, in Britain, the Speaker refrains from taking the post of Minister after demitting the Office.

The broad power and function of the Speaker expects fair and reasonable decision to strengthen the parliamentary democracy. The Speaker is the custodian of the practices that infuses life in democracy. With or without explicit text in the Constitution, the Speaker shall be bound by all such values that deepen the trust of the people in the functioning of the democracy.

V. Conclusion

In the recent matter of the Speaker of the Rajasthan Assembly, the judicial intervention must be examined in the light of the discussion made. It is not only the procedural aspects but also the substantive element of the decision-making that requires the approval of the constitutional principles. Needless to say, the issuance of the show- cause notice falls in the category of the decision-made by the Speaker. Thus, the judicial scrutiny is warranted in a situation of the allegation of partisanship in arriving at a decision. The constitutional status entrusted upon the Speaker would not refrain the court from examining the evidence he arrived at the interim/final decision. In the absence of the adoption of the convention on non-partisanship developed in the United Kingdom as a part of the constitutional law, the action/inaction of the Speaker will be rightly examined by the court of law without dishonoring the mandate of Article 122 of the Constitution. Otherwise, the ideals of the parliamentary democracy will be held hostage to the culture of high command. Until the Supreme Court’s suggestion to insulate the Office of the Speaker form the political pressures through a constitutional amendment is not met (Nariman, J. in Manipur Legislative Assembly case[15] judicial review to preserve parliamentary democracy satisfies the principles of constitutionalism.


*Associate Professor, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology Kharagpur. Author can be reached at uday@iitkgp.ac.in

[1] National Democratic Institute for International Affairs, Presiding Officers: Speakers and Presidents of Legislatures (https://www.ndi.org/files/031_ww_presiding_0.pdf).

[2] D. D. Basu, Commentary on the Constitution of India, Vol. 4, (8th Edition  2008)

[3] H. Chand, Power of Speaker, Seminar on Constitutional Development since Independence, Indian Law Institute, New Delhi (1973).

[4] Tenth Schedule, Constitution of India, 1950.

[5] Article 100(1) of Constitution of India

[6] Article 112(3)(b),  Constitution of India

[7] Article 94(c) Constitution of India

[8] Article 100(1), Constitution of India

[9] Article 94, Constitution of India

[10] Harsimran Kalra, Decisional Analysis And The Role Of The Speaker, The Hindu Centre for Politics and Public Policy 2013

[11] NDA passes resolution against ‘partisan’ Speaker (2004),(http://articles.economictimes.indiatimes.com/2004-12-21/news/27403375_1_nda-leaders-lok-sabha-opposition-alliance)

[12] Id., note 10.

[13] House of Commons, Office and Role of Speaker, UK Parliament. (http://www.parliament.uk/business/commons/the-speaker/the-role-of-the-speaker/role-of-the-speaker/)

[14] Ibid

[15] Keisham Meghachandra Singh v. Manipur Legislative Assembly,  2020 SCC OnLine SC 55

Case BriefsForeign Courts

Supreme Court of the United States (SCOTUS): A majority opinion delivered by Chief Justice Roberts and joined by Alito J, Gorsuch J. and Kavanaugh J. temporarily reversed a lower court order which had extended the deadline for a political action committee to gather signatures for a ballot initiative electronically.

The respondent is a political action committee which had tried to garner necessary votes for a ballot initiative, but had to halt the campaign for physical signatures in light of the Covid-19 pandemic. Idaho law required “in-person collection of petition signatures,” but this law was not suspended to allow the respondent to collect signatures electronically, which it claimed resulted in a violation of its First Amendment rights guaranteeing the rights of assembly and petition to citizens. The District Court had allowed for an extension of deadlines, enabling the respondent to collect signatures electronically.

The conservative majority did not allow for a relaxation of voting-related restrictions and responsibilities in light of the pandemic, stating that “this is not a case about the right to vote, but about how items are placed on the ballot in the first place.” It found that First Amendment allowed for a scrutiny of the interests of the State whenever a citizen’s ability to place an initiative on the ballot was inhibited and observed that in the present matter, such “reasonable restrictions” are justified in combatting fraud and ensuring that initiatives lacking necessary votes do not clutter the ballot. Moreover, the majority opined that nothing in the Constitution required Idaho, or any other State for that matter, to provide for ballot initiatives. Considering that an extension in the deadline would exacerbate the strain on the State in terms of time and resources and increase the costs it would have to bear in verifying digital signatures, it granted the application for stay on the district court’s orders.

However, Sotomayor J, joined by Ginsburg J, dissented from the grant of stay, holding that a stay would put the respondents in a far more precarious situation than the applicant. The delay cause by the majority’s grant of stay would render the respondent’s First Amendment claims moot before any appellate court could consider its merits, and would make it impossible for them to collect the necessary signatures in time for the November ballot if their case prevails during appeal. Sotomayor J. criticized the majority’s decision for usurping the Court of Appeal’s responsibility to review the District Court’s decision, holding the Court responsible for forgetting that it is “a court of review, not of first view.” [Little v. Reclaim Idaho, 591__US (2020) No.20A18, decided on 30-07-2020]

Case BriefsHigh Courts

Andhra Pradesh High Court, Amravati: A Division Bench of J.K. Maheshwari, CJ and B. Krishna Mohan, J., addressed a Public Interest Litigation wherein a direction was sought to declare the proclamation, attempt or conduct of Andhra Pradesh State Election Commission in not conducting any election/poll for any post where there is only a single candidate in the fray for such post in any constituency, during the ensuing elections to be held for the members of local governing bodies in lieu of notifications and thereby depriving the electors’ of their right to vote in the form of NOTA against such single candidate.

Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006

A Public Interest Litigation was filed referring to the amendment introduced in 2018 to the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006.

In the above-stated Rules, insertion was Rule 35-A was done after Rule 35, which was as follows:

(1)“Notwithstanding anything contained in these Rules, in the Postal Ballot Papers and in the Ballot papers used for conduct of poll at polling stations with Ballot Boxes or Electronic Voting Machines (EVMs), provision shall be made for ‘None of the Above’ (NOTA) option for the benefit of those electors who may wish to exercise their option of not voting to any of the candidates in the fray. The last panel of the ballot paper below the last candidate shall be earmarked for ‘None of the Above’ (NOTA) option.

(2) The State Election Commission may give such directions, as may be necessary, for effective implementation of ‘None of the Above’ (NOTA) option.”

What do the stated Rules say?

In case of  Postal Ballot Papers used for conduct of poll at polling stations with Ballot Boxes or Electronic Voting Machines (EVMs), ‘None of the Above’ (NOTA) provision is required to be made.

When can NOTA be exercised?

NOTA applies in case where there is contest of election and as per the language set up in Rule 35-A of the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006, when there is an election through Ballot Boxes or EVM’s only then the said option can be exercised.

Hence, Court in view of the fact that, in cases where candidates have been declared uncontested, NOTA cannot be applied, dismissed the present petition. [A.V. Badra Naga Seshayya v. State of A.P., 2020 SCC OnLine AP 509 , decided on 20-07-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench of Ajay Kumar Mittal, CJ and Vijay Kumar Shukla, J., dismissed the Public Interest Litigation  for postponement of elections to the three vacancies of the state in the Rajya Sabha, on the ground of maintainability.

The Election Commission had announced that the Poll for three vacancies of the state of MP in the Rajya Sabha will be held on June 19, 2020. Petitioner’s Counsel Abhinav Dhanodkar, had submitted that more than 1/10th of the house will not be represented in the election, if the 24 seats lying vacant in the State Legislative Assembly were not filled up. He had asserted that as per Section 152 of the Representation of People Act, members of the Legislative Assembly will be electors i.e. representing 230 constituencies. However in this case, 24 constituents would be deprived of their rights or representation and the voting by the members will make sufficient difference in the result of the poll. The Standing counsel for the respondents Mr.  Siddharth Seth, argued that in case, there was violation of any statutory right, the petitioner would have a remedy of filing an “election petition” raising all the issues and contentions therein and the petitioner was neither a voter in the elections to be conducted for Rajya Sabha nor any statutory right of the petitioner had been violated.

The Division Bench concurred with the preliminary submissions put forth by the Commission on the ground of maintainability. It observed that the grounds urged by the Petitioner for deferment of the elections do not create any justification to “bypass” the mandate of Article 329 (b) of the Constitution. The Court while dismissing the petition held that they decline to entertain the present writ petition leaving it open to the petitioner to take recourse to the remedy, as may be available to him, in accordance with law.[Aman Sharma v. Chief Election Commissioner, 2020 SCC OnLine MP 1257 , decided on 17-06-2020]

COVID 19Hot Off The PressNews

On 25.02.2020, Election Commission of India announced elections to the Council of States to fill 55 seats of Members from 17 States, retiring in the month of April,2020, which were notified vide Notification No. 318/CS-Multi/2020(1) dated 06.03.2020. After the last date of withdrawal on 18.03.2020, respective Returning Officers declared 37 seats from 10 States filled in uncontested. Now, as per the reports received from the concerned Returning Officers, the biennial elections for 18 seats from the States of Andhra Pradesh, Gujarat, Jharkhand, Madhya Pradesh, Manipur, Meghalaya and Rajasthan are to be conducted  on 26.03.2020 (Thursday) and the date before which election was to be completed as earlier announced by the Commission was 30.03.2020 (Monday).

            On 11.03.2020, World Health Organization has declared Novel Coronavirus COVID-19 a global pandemic. Ministry of Health & Family Affairs and Department of Personnel & Training, Government of India have issued various guidelines and instructions to monitor and contain the transmission of COVID-19. Government of India, vide its press note dated 22.03.2020, has asked all the State Governments to take all measures to break the chain of transmission of COVID-19. This includes suspension of all train services till 31.03.2020 including sub urban rail services; closure of all activities except essential services such as hospitals, telecom, medicine shops, provision stores etc. Subsequently, on 23.03.2020 it has also been informed that the operations of domestic schedule commercial airlines shall cease operations with effective from the mid night 23.59 IST hours on 24.03.2020. State Governments have issued various orders including curb on local transportation accordingly for management and containment of COVID-19. The States of Andhra Pradesh, Gujarat, Jharkhand, Madhya Pradesh, Manipur, Meghalaya and Rajasthan have issued orders of lock down to contain the transmission of COVID-19.

            Commission has reviewed in detail the matter. The prevailing unforeseen situation of public health emergency indicates the need for avoidance of possibilities of gatherings of any nature, which expose all concerned to possible health hazard. The poll process in the above said elections would necessarily include the gathering of polling officials, agents of political parties, support officials and members of respective Legislative Assemblies on the poll day, which may not be suitable in view of the prevailing unforeseen situation and related advisories in the country.

            Section 153 of the Representation of the People Act, 1951 specifies that the Election Commission for reasons which it considers sufficient, may extend the time for the completion of any election by making necessary amendments in the notification issued by it under section 30 or sub-section (1) of section 39; and accordingly, the Election Commission has deferred the poll and extended the period of said election under the provisions of section 153 of the said Act. The list of contesting candidates, already published for the said elections by the respective Returning Officers shall remain valid for the purposes of remaining activities, as prescribed under the said notification. Fresh date of poll and counting for the said biennial elections shall be announced in due course after reviewing the prevailing situation.


Election Commission of India

[Press Release dt. 24-03-2020]

[Source: PIB]

Case BriefsHigh Courts

Jharkhand High Court: Ananda Sen, J. upheld an order passed by the Election Commission of India, dated 1-4-2019, whereby the petitioner — Additional Director General of police, Jharkhand — was forthwith divested from his present assignment and was directed to report to the Resident Commissioner, Jharkhand Bhawan, New Delhi.

A complaint was made against the petitioner that he indulged in electoral malpractices like influencing voters in the Rajya Sabha Elections of 2016. On receipt of the complaint, departmental proceedings were initiated against him and an FIR was registered for committing election offence, on the directions of the Election Commission of India. Meanwhile, elections to the 17th Lok Sabha were announced. A letter was received by the Election Commission with the information of pending inquiry against petitioner. On receiving the letter, the Commission issued an order divesting him of the present assignment and directing him to report to the Resident Commissioner. It was also directed that he shall not be allowed any leave/duty to visit the State of Jharkhand till completion of the electoral process. Aggrieved, the petitioner challenged the aforesaid order.

The High Court noted that Article 324 of the Constitution provides for the establishment of Election Commission of India and vests in it the power of superintendence, direction and control of elections. In Court’s opinion, Article 324 empowers the Commission to issue any notification, circular or direction to conduct free, fair, smooth and uninfluential elections, where there is no special law, either found by the Parliament or by State Legislature to deal with the situation. The Court perused Section 28-A of the Representation of the People Act, 1951 which provides that all the officers which have been ‘designated’ under Part 4 of the Act, shall be deemed to be on deputation of the Election Commission and they will be under control, superintendence and discipline of the Commission.

Notably, the State of Jharkhand has issued a notification designating Additional Director Generals of Police as ‘designated officers’. Therefore, the present petitioner was also a designated officer for the purpose of Section 28-A. Thus, the Election Commission had got full control over the petitioner, a ‘designated officer’, and could give him directions and could also restrict and regulate him. It could decide the nature of the job to be performed by the petitioner and the manner of its performance. The Commission could also restrict or forbid him from performing any work, to achieve the ultimate goal of conducting free and fair elections.

The Court held that the order directing the petitioner to report to the Resident Commissioner in New Delhi was for all-purpose an order of ‘transfer’, which is an incident of service. It was noted that the Election Commission had framed a Model Code of Conduct which, among all other things, formulated the policy of transfer/posting of Government officials during the elections. However, observed the Court, that the MCC is a general provision which cannot be universally applied. It is not a closed document.

Orders of transferring the officers in unforeseen circumstances, will be exceptions to the MCC, and these will be orders passed in the exercise of plenary powers under Article 324 read with Section 28-A.

On the facts of the case, it was found that there was sufficient material before the Election Commission to pass the impugned order. The orders could have been passed by the Commission not only under the MCC but also under Article 324 read with Section 28-A. Thus, there was no illegality in the impugned order. As such, the petitioners challenge to the order divesting him of his duty and directing him to report to the Resident Commissioner was dismissed.

However, regarding the direction that the petitioner shall not be allowed any leave/duty to visit the State of Jharkhand till completion of the election process, the court held that such a blanket order was unreasonable and could not be sustained in the eye of the law. It was directed that if the petitioner applies for grant of leave, the Election Commission should consider the same on its own merit. [Anurag Gupta v. Election Commission of India, 2019 SCC OnLine Jhar 474, dated 03-05-2019]

Hot Off The PressNews

Supreme Court: The 5-judge Constitution Bench comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., stated that the Supreme Court is not in a position to add a disqualification provision in regard to contesting of elections on the basis of charges framed against the candidates.

The Bench stated that “A time has come that Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream.”

The Court also added that “the law making wing of the democracy of this country will take it upon itself to cure the malignancy, as such a malignancy is not incurable.”

Further, several directions have been issued regarding the disclosure of criminal antecedents of the candidates.

Will further update with the detailed judgment.

[Source: https://twitter.com/TheLeaflet_in]

 

 

Hot Off The PressNews

Supreme Court: A 5-Judge Constitution Bench  comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. is likely to pronounce judgment on the petition filed by Public Interest Foundation (a non-governmental organization) seeking disqualification of politicians, including Members of Parliament (MPs) and Members of legislative assemblies (MLAs) from contesting elections, once charges are framed against them.

The Court had earlier, on August 28, reserved the judgment in the matter. The Court had indicated that voters have a right to know the antecedents of candidates and the Election Commission could be asked to direct political parties to ensure that persons, facing criminal charges, do not contest on their tickets using their poll symbols.

The Court started hearing of the matter on August 9. The issues for consideration before the Court were:

  • Whether the court can lay down additional disqualifications beyond Article 102(e) and Section 8 of the Representation of the People Act, 1951?
  • Whether the disqualification should be triggered upon conviction as it exists presently or upon framing of charges by the court?
  • Whether filing of false affidavits under Section 125-A of the RP Act should be a ground of disqualification?

Attorney General K.K. Venugopal, appearing for the Centre, had stated that the Parliament has made a distinction between an accused and a convict and there has been a provision for disqualification in the RP Act upon conviction of a lawmaker. The Centre, deriving strength in its argument from the principle that every man is innocent until proven guilty, had also contended that such course would create a  pre-condition that would adversely affect the right of the candidates to participate in polls; the judiciary should not venture into this legislative arena.

Case BriefsSupreme Court

“Introduction of NOTA will be an anathema to the fundamental criterion of democracy.”

Supreme Court: The Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, while deciding a petition challenging the availability of the option “None of the Above” (NOTA), stated that “it would not only undermine the purity of democracy but also serve the Satan of defection and corruption. ”

The facts of the case pertain to availability of the option of NOTA in the elections held for Rajya Sabha. The petitioner challenged a circular issued in relation to the conduct of elections for the Council of States (Rajya Sabha). He asserted that Election Commission of India had issued directions stating that the option of NOTA could be applicable to elections for the Rajya Sabha, which the petitioner contended to be contrary to Article 80(4) of the Constitution of India and the decision pronounced by the Supreme Court in PUCL v. Union of India, (2013) 10 SCC 1.

On the other hand, contentions, as placed by the respondents, were that the EC had issued a letter which was further reiterated on 12-11-2015 that the option of NOTA would be applicable to elections for Rajya Sabha and as the elections were already conducted, no justification stood for challenging the said direction at such a belated stage.

The Supreme Court, while concluding its decision, emphasized that “In a democracy, the purity of election is categorically imperative”. It opined that on exercising the choice of NOTA in the voting process of the Rajya Sabha, such choice would have a negative impact. Further, it was observed by the Court that provisions for introduction of NOTA as conceived by the Election Commission, on the basis of the judgment mentioned hereinabove, were absolutely erroneous and the introduction of NOTA would certainly lead to the aspect of defection that would indirectly usher in with immense vigour. Holding thus, the Court allowed the petition and quashed the said introduction. [Shailesh Manubhai Parmar v. Election Commission of India,2018 SCC OnLine SC 1041, decided on 21-08-2018]

Op EdsOP. ED.

Free and fair elections are the bedrock of any democracy. In a quasi-federal State like India, elections occur on a three-tier level: Centre, State and local bodies. This means that apart from the Central elections, which occur every five years, every now and then elections are held in some or the other State or local body.

Such frequent elections bring into play a plethora of rules which need to be observed by the parties in order to make the conduct of elections efficient and impartial. This includes the imposition of the Model Code of Conduct (MCC). The MCC lays down a set of norms which the political parties need to abide by during election time. MCC permits activities of routine administrative nature and puts all the developmental and welfare activities on hold till the elections get over.

A system of non-synchronised elections leads to imposition of the MCC in one or the other State every year. Consequently, welfare activities and development plans of the ruling parties suffer. It is primarily due to this reason that the top leadership of the country has once again started advocating the advent of simultaneous elections.

Apart from the aforementioned issue, simultaneous elections are also touted to be more cost-effective. In consonance with this, the Law Commission of India (LCI) has recently released a draft working paper titled, “Simultaneous Elections—Constitutional and Legal Perspectives” and has asked for feedback on the proposal of introducing simultaneous elections in India. Simultaneous elections typically imply holding synchronised elections for all the tiers of the Government.

However, the Law Commission has suggested simultaneous elections only for the State and Central Legislative Assemblies. The idea to hold simultaneous elections is not a novel one but has been already mooted in 170th Report of the LCI in 1999. It is pertinent to discuss the likely (positive and negative) implications of holding simultaneous elections in India. Some of the key suggestions made by the LCI in this regard are as follows:

(i) One of the first hurdles which the introduction of simultaneous elections poses is that of premature dissolution of assemblies at the Centre and States. If all elections are to be conducted in a synchronised manner, what will happen if the Government at the Centre or the States gets dissolved prematurely. The LCI has suggested that in order to avert this issue, along with a no-confidence motion, a confidence motion should also be introduced in Parliament. Hence, while a no-confidence motion would dislodge the incumbent Government a confidence motion would bring about an alternative Government which would see through the remainder of the term till the holding of the next elections.

(ii) One major issue which arises from the aforementioned suggestion is that how would an alternative Government be formed in the presence of a strong anti-defection law. The LCI further suggests that for the purposes of holding simultaneous elections and preventing a stalemate occurring due to hung Parliament an exception from the anti-defection law should be carved out.

(iii) The statutory limit of six months for the issuance of notification of general elections should be extended in order to make simultaneous elections viable.

(iv) The leader of the majority party should be selected by majority consensus in Parliament.

In order to effect the aforementioned suggestions, the LCI has also recommended the amendment of the Constitution and the Representation of the People Act, 1951. Though, the idea of simultaneous elections sounds extremely efficient, its viability in a country like India with a deep-rooted federal structure may pose concerns.

Let us analyse some pros and cons of the introduction of simultaneous elections and the viability of the same.

Pros

(a) One of the major advantages of having simultaneous elections is that the development programmes undertaken by the ruling parties would not be hindered on account of the imposition of the MCC. In an analysis presented by the NITI Aayog, it was observed that on an average the MCC is imposed in some or the other part of the country for a period of 4 months every year. This sets back any welfare plan which the ruling party may have for the State, region or the country concerned as a whole. The holding of simultaneous elections would be an efficient solution to this problem.

(b) The current state of the electoral system leads to incurring of huge financial expenditures on the conduct, control and supervision of elections. The candidates too spend a large amount of money on campaigning. This haphazard holding of elections in the country leads to unnecessary expenditure. Hence, the introduction of simultaneous elections will streamline the process of conducting elections and reduce the financial burden on the country’s exchequers.

(c) Holding of frequent elections also leads to the engagement of military and police personnel for a long period of time, hence affecting the efficient functioning of the system. Simultaneous elections would resolve this issue.

(d) Apart from the above, conducting frequent elections disrupt normal public life and perpetuate divisive factors in the society.

Cons

(a) The biggest challenge to the introduction of simultaneous election is the practical aspect associated with it. The Constitution and the relevant statutes need to be amended, a workable plan needs to be devised in order to address issues such as the premature dissolution of Lok Sabha and State Assemblies. Would the introduction of a new concept at this stage create more chaos than calm in the country’s political milieu.

(b) Impact on voter behaviour: The critics of simultaneous elections also argue that the introduction of a novel concept might confuse the average Indian voter and hence, lead to errors in voting. Moreover, the issues involved at the local and national level are different and a simultaneous election may fuse the two hence, leading to inefficiency in voting.

(c) The detractors of simultaneous elections also argue that such a synchronised system of elections would alter the federal character of the Indian Constitution.

Holding simultaneous elections may be a practical dilemma but once perpetuated properly, it would ease out many creases. Effective implementation of this new system is the key to its success.

The authors would like to make the following recommendations pertaining to the simultaneous elections:

(a) Media should be instrumental in sensitising the common people about the nature and purpose of simultaneous elections. They should be made aware of the process and the fact that two sets of elections—Central and state are going to be held. This is imperative to enable an informed voting behaviour.

(b) Carving out an exception to the anti-defection law in order to give effect to the confidence motion in the alternative Government may give rise to a class of opportunist leaders. More democratic processes may be adopted to tackle with the issue of premature dissolution of the assemblies.

(c) Similarly, basing the selection of the leader of the majority party on consensus may pose issues as it may be difficult for the various political parties to unanimously agree on one individual. It may be more advantageous to create a list based on descending order of votes received at the time of elections and if one party is voted out of power, the second largest party may continue for the remainder of the term.

(d) The process of no-confidence vote may also be made more stringent, as it should not become a tool in the hands of the opposition to frequently dislodge the ruling party

 

* Managing Partner, Corp Comm Legal.

** Associate, Corp Comm Legal.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission (NHRC): The NHRC has taken suo motu cognizance of media reports that a boy, belonging to Dalit Community in Purulia, was mercilessly beaten till he died, allegedly, by the workers of the ruling Trinamool Congress Party in West Bengal. Later, his body was found hanging by a tree. Reportedly, a Poster was also found affixed on the back of the dead body with a message written in Bangla language- “18 bachhor bayose BJP rajneeti. Ebar bojh” which means, “BJP politics at the age of 18. Now take this.”

The Commission has observed that the contents of the news report, if true, amount to gross violation of human rights of the victim. Accordingly, it has issued a notice to the Chief Secretary, Government of West Bengal calling for a detailed report in the matter The DGP, West Bengal has been asked to intimate the present status of investigation in the case and the steps taken to ensure that such incidents do not recur in future. They have been given four weeks to respond.

The Commission also observed that India is a democratic country. Difference of opinion and ideology are obvious in a multi-party democratic political system. Bloodshed in the name of political differences is neither desirable, nor acceptable in a civilized society. Brutal killings of the party workers in such a manner are indicative of deficient law and order situation in the state, which does not allow rival political parties to exercise their political rights. Right to life of the poor Dalit victim has been grossly violated, which is a glaring instance that law enforcing agencies have failed to protect the precious human life.

According to the media report, carried on the 31st May, 2018 that violence continues in Purulia even after the Panchayat elections are over. Several other local BJP leaders have been threatened after the BJP won many seats in the district. The father of the deceased has alleged that his son was killed by the workers of the Trinamool Congress. They had also threatened to kill him on the polling day. The BJP leaders have leveled allegations against the Trinamool Congress party stating that the deceased was killed just because his ideology differed from that of the State sponsored goons.

National Human Rights Commission

Hot Off The PressNews

Senior Advocate Rakesh Dwivedi continued with his arguments before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on Day 29 of the Aadhaar Hearing.

Below are the highlights from Day 29 of the Aadhaar Hearing:

  • Dwivedi: It’s better to tighten the nuts and bolts of Aadhaar rather than demolishing it completely. Information is strictly confined to the purpose of authentication. Interplay of section 8 and 29 pf the Aadhaar Act, 2016 say that core biometrics are not shared. Data shared under section 29 is non biometric data.
  • Chandrachud, J: Section 8(3) combined with section 29(3) means that the requesting entity will know the purpose of the authentication.
  • Dwivedi: If the bench is unsure whether requesting agencies collect information that they are not supposed to then the bench should read down sections 8(3) and 29(3) to make sure that REs do not know the purpose of the authentication or collect any information.
  • Chandrachud, J: A hospital may have data on an individual based on the number of times the individual has requested authentication. This can be helpful information for pharmaceutical or insurance companies.
  • Dwivedi: GDPR provides no curative measures. Aadhaar Act provides enough data protection to citizens. No data protection law can provide hundred percent protection. The test should be ” reasonable, fair and just” protection. Aggregation, analysis or transfer of data is not allowed by the Aadhaar Act.
  • Chandrachud, J: : What use the REs are making of the data, we don’t know right now.
  • Dwivedi: We can only tackle real apprehensions.
  • Chandrachud, J: Real apprehension is that elections are swayed using data analytics. These problems are symptomatic of the world we live in.
  • Dwivedi: Can’t compare this to Cambridge analytica. We don’t have algorithms that Google has.
  • Chandrachud, J: We can’t have a blinkered view of reality.
  • Dwivedi: UIDAI does not have learning algorithms. Aadhaar Act does not authorize it. We have simple matching algorithms. The Bench should not give in to the hyper phobia that the petitioners have created. We have a powerful media and competitive interests to check any misuse of data.
  • Chandrachud, J: Interface of Aadhaar with the world outside is the area of concern.
  • Dwivedi: Examine the design of the Act. We don’t want any scare mongering. We want people of India to trust us. Section 28 of the Act also provides protection of information. The information will be in the control of UIDAI and will be kept secure in CIDR. Section 57 does not allow just anyone to become a requesting entity. It’s a limited exercise. UIDAI will not approve anyone to become an RE unless it is satisfied that the particular entity needs to use the facility of authentication.
  • Chandrachud, J: Why are words “body corporate or any person” used in section 57? That breaks the nexus of the Act with the consolidated fund of India. What is the point of involving private parties in the Aadhaar infrastructure?
  • Dwivedi: Private players are not exempt from constitutional norms. And the divide between public and private sector is narrowing.
  • Chandrachud, J: Section 3 says Aadhaar is an entitlement. How did it become mandatory?
  • Dwivedi: It was made mandatory by other Acts. Aadhaar Act has nothing to do with other linkages of Aadhaar except Section 7. UIDAI is mandate-neutral. The government is making it mandatory under other Acts. The bench can look at these Acts separately. Under the Aadhaar act, obtaining Aadhaar is voluntary.
  • Chandrachud, J: Aadhaar can be made mandatory under a law or through a contract under section 57.
  • Dwivedi: Object of section 57 is not to expand but to limit. Backing of contract is needed. Any paanwalla or chaiwalla cannot become a requesting entity. It has to be pursuant to a contract. UIDAI may still refuse an entity from becoming a requesting entity.
  • Chandrachud, J: How is need for authentication decided? For e.g a taxi service or software app.
  • Dwivedi: There has to be a prior contract and then uidai is approached for request.
  • Sikri, J: Where is the guideline for what will be considered a “need” for authentication and what won’t be.
  • Khanwilkar, J: Prior contract comes before permission from UIDAI is taken. Schedule A of the Act that outlines who call can be REs is very wide.
  • Dwivedi:
    • The rules of IT Act 2000 and the punitive provisions of the Act are also applicable to Aadhaar data under Section 30 of the Aadhaar Act. This is further security. Anyone who attempts to gain unauthorized access to CIDR will be imprisoned for ten years. CIDR comes under critical information infrastructure.
    • Aadhaar is not just an exercise to provide benefits and weed out fakes but also to bring the service providers face to face with the beneficiaries. That’s the revolutionary aspect of Aadhaar.
    • None of the other identification cards are universally held in the country. These cards are only for initial identity and address proof. Nobody will give their wrong name or address when biometrics are involved.
    • Aadhaar is not the panacea for all evils but the problems that were occurring on account of fake identity documents will be solved.
    • Petitioners were arguing that there’s no legal mandate to store information in CIDR. RD quotes section 10 in this regard.
    • Petitioners argued that we have hired foreign suppliers. Only software is used by UIDAI as licensee. The hard disks and servers belong to UIDAI. Even technicians are given access to CIDR only when there’s a problem in the process of UIDAI officials.
    • Another argument that was raised was that Aadhaar is probabilistic. It is not probabilistic, but deterministic.
  • Sikri, J: You have to give a proper response to that. Argument was from the exclusion angle.
  • Dwivedi: Probability governs us everywhere. Nothing is certain. Just because it is probabilistic, it cannot be discarded.
  • Chandrachud, J: If the probability leads to deprivation of fundamental rights, then there should be safeguards in place to ensure that this deprivation doesn’t happen. There should be an administrative machinery in place to ensure no genuine beneficiary is deprived.
  • Dwivedi: I agree that nobody should be denied benefits due to authentication failure. Our submission is inclusion. Section 7 itself provides a fall back mechanism if authentication failure happens. We have to look at effective implementation.

____________________________________________________________________________________________________________________________

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

Case BriefsSupreme Court

Supreme Court: The Bench of RK Agarwal and AM Sapre, JJ refused to extend the last date for the filing of nominations for panchayat polls in West Bengal, saying it cannot interfere with the election process. The Court, however, granted liberty to the candidates to approach the West Bengal State Election Commission for appropriate relief.

Bhartiya Janata Party (BJP) had, in the petition, sought the following directions:

  • issue of nomination forms to the it’s candidates so as to enable them to file their nomination in the ensuing upcoming panchayat elections
  • take immediate steps to make arrangements for submission of nomination papers through email and to provide police protection to it’s candidates so as to enable them to collect and deposit the nomination forms for the purpose of contesting the panchayat elections already notified
  • call for Central Para-Military Forces to maintain the law and order during the conduct of the panchayat elections in the State of West Bengal.

Relying upon the newspaper reports which appeared in the Times of India, Kolkata edition dated 03.04.2018 and 04.04.2018, the Statesmen, Kolkata edition dated 04.04.2018 and the Telegraph e-paper preview, BJP had contended that it’s candidates who want to contest election for the panchayat which is to be held in the State of West Bengal are not allowed to collect the nominations forms and to submit the same on account of violent resistance being put by the supporters of the ruling party.

The Court, however, noticed that the West Bengal Panchayat Elections Act, 2003 has empowered the State Election Commissioner to pass appropriate orders in relation to any grievance, when made by any political party, or/and their individual candidate including any independent candidate with regard to any matter relating to and arising out of the election and election process and

“It is, therefore, essentially for the State Election Commissioner to consider the grievance once made by any party or/and candidate as the case may be and pass appropriate order/s keeping in view the nature of grievance made and relevant factors concerning the election and its process.”

The Court, hence, disposed of the petition by granting liberty to all political parties, their candidates, including any independent candidate/s proposing to contest the election in question, to approach the State Election Commissioner with their any individual or/and collective grievance. The Court said that it hoped thatin order to ensure fair and free election to the panchayats, the State Election Commission will take appropriate steps to remove the apprehensions of the petitioner and/or intending candidates and they may not be deprived of their chance to contest the panchayat elections.

The West Bengal panchayat polls that are scheduled to be held on May 1, 3, and 5. According to the notification, the last date for filing of nominations is April 9 and the last date of scrutiny of the nominations is April 11. [Bhartiya Janata Party, West Bengal v. State of West Bengal,  2018 SCC OnLine SC 337, decided 09.04.2018]

Case BriefsHigh Courts

Uttaranchal High Court: Addressing the present petition highlighting the apprehensions that are being raised upon the functioning of Electronic Voting Machines (EVMs) and Verifiable Paper Audit Trial (VVPAT) Machines, especially in the light of the recently concluded Legislative Assembly Elections in five States, the Division Bench of Rajiv Sharma and Sharad Kumar Sharma, JJ., observed that, Article 324 of the Constitution has a wide ambit and gives the Election Commission powers to cope up with any unprovided scenarios vis-à-vis smooth conduction of elections. Thus the Election Commission can use its residuary power under Article 324 to fill the vacuum and to “meet unforeseen contingencies”. However the Court noted that off late various political parties have started a systematic campaign to tarnish the image of the Commission by casting doubts upon the EVMs. To this, the Court held that, it cannot allow the national parties to tarnish the image of a Constitutional body such as the Election Commission and that freedom of speech and expression doesn’t permit to level unsubstantiated charges against the constitutional bodies.

The petitioner, a politician had expressed certain reservations regarding the use of EVMs. Counsel for the petitioner Arvind Vashisth contended that the role of Election Commission gets over the moment election results are declared, therefore the proposed “EVM Hackathon” on 03.06.2017 as it has been notified in the Commission’s press release dated 20.05.2017, will affect the outcome of the pending election petitions in this Court and other High Courts. The respondent argued that the EVM is not hackable and it cannot be physically tampered during transportation or at its manufacturing stage and the proposed ‘hackathon’ has been undertaken by the Commission to allay the apprehensions of the political parties.

The Court held that broad meaning should be given to Article 324 and the Court also must “promote”, “nurture” and “maintain” independence of constitutional bodies and protect them from criticism. It further stated that use of EVM has been ordered by the Commission while exercising the power under Article 324. The Court lastly held that the faith of people must be safeguarded on fair and free election which is a basic feature of the Constitution, therefore in public interest the Court restrained all political parties, NGO’s and individuals from criticizing the use of EVM, till any decision is reached over the pending election petitions and the decision to hold the ‘hackathon’ challenge was left on the discretion of Election Commission with a caveat that the results of the challenge does not in any way affect the decision in the pending petitions. [Ramesh Pandey v. Election Commission of India, 2017 SCC OnLine Utt 676, decided on 02.06.2017]

 

Case BriefsForeign Courts

Supreme Court of Canada: Determining some vital questions related to election advertising like whether, individuals or organizations who wish to “sponsor election advertising” are required by Election Act RSBC, 1996 to register with Chief Electoral Officer; the meaning of “sponsor” and “election advertising”; and whether individuals engaged in political self-expression come within definition of “sponsor” and need to register, the 7 Judge Bench of the Court headed by McLachlin, C.J., rejected the appeal against the provision of the Election Act RSBC, 1996, which requires people to register before sponsoring political advertising during a provincial election. The Court clarified that Act’s registration requirement does not apply to individuals doing things like wearing political T-shirts or displaying signs on windows.

As per the facts, the British Columbia’s Election Act, R.S.B.C. 1996, c. 106, requires individuals or organizations who wish to “sponsor election advertising” to register with the province’s Chief Electoral Officer. This registration requirement applies to all sponsors of election advertising. In the words of the Bench it was observed that, “Sections 228, 229 and 239 of the Act, read in their grammatical and ordinary sense and harmoniously with the statutory scheme, the object of the Act, and the intention of the legislature, indicate that a ‘sponsor’ required to register is an individual or organization who receives an advertising service from another individual or organization, whether in exchange for payment or without charge. The Court further observed that the individuals who neither pay others for advertising services nor receive advertising services from others without charge are not “sponsors” within the meaning of the Act. [B.C. Freedom of Information and Privacy Association v. British Columbia, 2017 SCC OnLine Can SC 1 : 2017 SCC 6, decided on 26.01.2017]

 

Case BriefsHigh Courts

Bombay High Court: In a recent case,  an application for stay on his conviction by Sessions Court, Pune under Sections 304 and 34 IPC during pendency of the was appeal filed for. The reason being that the applicant  wanted to contest Municipal elections and to support his claim, the counsel on his behalf tried to rely upon Rajbala v. State of Haryana, (2016) 2 SCC 445 wherein it was held that right to vote and right to contest elections are the constitutional rights of a citizen and therefore, he was entitled to contest the elections.

While accepting the aversion of applicant that it was his constitutional right to contest elections, it held that at the same time object of legislature behind Section 8(3) of the Representation of the People Act too needs to be kept in mind. The object of the provision is to keep away the persons convicted of an offence and sentenced to 2 years or more than two years of imprisonment. Justice A.M. Badar decided to interpret the section purposively and held that just because the accused wishes to contest elections, the conviction can’t be stayed to fulfil his desire as it will be contrary to the statute.

Citing Navjot Sngh Sidhu v. State of Punjab, 2007 2 SCC 574 and other landmark cases on the point, the Court went on to declare that stay has to be granted only in exceptional circumstances, by exercising great circumspection and caution. While paying attention to the facts of the case and considering that the victim was injured due to election rivalry, there were chances that he might be trying to rope in as many opponents as possible; it still held that whatever are the facts and however high may the chances of acquittal of the applicant in appeal, it noted that object of legislature in keeping away the convicts from the contest of elections has to be given primacy while deciding such applications. [Navnath Sadashiv Taras v. State of Maharashtra, 2017 SCC OnLine Bom 118, decided on 1.02.2017]