Time, as the essence of Elections

The Andhra Pradesh High Court's judgment in Dr. N Ramesh Kumar v. The State of Andhra Pradesh and Others that struck down the state’s ordinance for cutting short the tenure of the State Election Commission (SEC) recently hit the headlines.

The judgment fails to address a relevant legal issue: the need to prevent the SEC from functioning as an autocrat in our constitutional framework.

As held in Mohinder Singh Gill, a free and fair election is a constitutional imperative. The need to have functional autocracy for the Election Commission was emphasised in TN Seshan v. Union of India. The conduct or postponement of election cannot be at the whims and fancies of the SEC.

Election is a process which needs active participation and involvement of the government machinery and public servants. The SEC, on its own, does not have the sword or purse or human resources to conduct the election. This is why the cooperation by the executive is an imperative in the conduct of election. This position is judicially taken note of in Kishansing Tomar v. Municipal Corporation, Ahmedabad.

Therefore, it was imperative for the Andhra Pradesh High Court to examine the issue as to whether the SEC’s decision to postpone the election was taken after due consultation and required deliberative process. That is to say, apart from posing questions regarding the manner and impact of the impugned ordinance, the Court also should have asked the root cause for an unprecedented legislative move.

But none of the seven issues framed in paragraph 76 of the judgment are anywhere proximate to this crucial question.

The instant judgment, spread over 332 pages, does not even pose the question as to whether postponement of election on March 15 without any clue when the pandemic will subside, and without any consultation with all the stakeholders, was legally and constitutionally correct. The action of the SEC was clearly wrong in the constitutional sense.

Timely election is the rule and postponement must be met with judicial scrutiny. In Kishansing Tomar, the Supreme Court said:

“21. It is true that there may be certain man-made calamities, such as rioting or breakdown of law and order, or natural calamities which could distract the authorities from holding elections to the municipality, but they are exceptional circumstances and under no circumstance would the Election Commission be justified in delaying the process of election after consulting the State Government and other authorities.

...Going by the provisions contained in Article 243-U, it is clear that the period of five years fixed thereunder to constitute the municipality is mandatory in nature and has to be followed in all respects. It is only when the municipality is dissolved for any other reason and the remainder of the period for which the dissolved municipality would have continued is less than six months, it shall not be necessary to hold any elections for constituting the municipality for such period.”

In Election Commission of India v. State Bank of India Staff Assn, it was held,

“23. Article 324 does not enable the Election Commission to exercise untrammelled powers. The Election Commission must trace its power either to the Constitution or the law made under Article 327 or Article 328. Otherwise as was held by this Court in Digvijay Mote case [(1993) 4 SCC 175, 178] (in which one of us, Mohan, J. was a party) it would become an imperium in imperio which no one is under our constitutional order.”

Again, in Mohinder Singh Gill, the Supreme Court held:

“…when a high functionary like the Commissioner is vested with wide powers the law expects him to act fairly and legally. Article 324 is geared to the accomplishment of free and fair elections expeditiously. Moreover, as held in Virendra [Virendra v. State of Punjab, AIR 1957 SC 896 : 1958 SCR 308] and Harishankar [Harishankar Bagla v. State of M.P., AIR 1954 SC 465 : 1954 Cri LJ 1322 : (1955) 1 SCR 380] discretion vested in a high functionary may be reasonably trusted to be used properly, not perversely. If it is misused, certainly the Court has power to strike down the act.“

The ratio that emerges out of these judgments is that elections cannot be dispensed with casually by the SEC, without effective consideration.

A duty is imposed on the Election Commission to act fairly, is in line with its role in the democratic process. The moment such bodies start acting arbitrarily, the lasting impact is on the democratic framework as a whole.

There are instances even in the recent history where the Commissions exceeded their authority and tried grabbing power. In 2017, the Election Commission of India (ECI) asked the Centre to arm it with contempt power so as to deal with those who criticise them politically and sought amendment to the Contempt of Courts Act, 1971, a move that was described as an ‘uncharacteristic demand’.

Again in 2019, the clean chit given to Prime Minister Narendra Modi after attacking former Prime Minister Rajiv Gandhi was taken as an instance that could have led to erosion of faith in the institution of the Election Commission.

Former Chief Election Commissioner of India, SY Quraishi, after taking note of the arbitrary postponement of elections in the surge of COVID-19, said that “countries (unwilling to disrupt their elections) must consider the adoption of voting methods involving minimal outdoor exposure.”

Taking a cue from the recent elections held in South Korea, which showed 66.2% voter turnout, the biggest in 28 years, he argued for novel methodologies in elections in the COVID-19 hit world, with scientific planning and use of digital technology.

The judgment loses sight of the impact of an abrupt prorogation of elections to the local bodies in the midway. The SEC ought to have duly consulted the executive wing and taken other political parties, including the ruling one, into confidence.

The author is a lawyer practicing before the Supreme Court and the Kerala High Court.