India is now at a crossroads. The slogans on the streets calling for protecting the nation sound like those from an independence movement. The agitation in Delhi and elsewhere demanding the resignation of Chief Election Commissioner Gyanesh Kumar is the first of its kind. Many days have passed since such protests began. The government at the Centre, so far, has been keen to protect the CEC at any cost.
Any genuine democracy would find it difficult to accept a situation where the government protects the CEC even when opposition parties and several civil society groups have expressed distrust of him. That the ruling dispensation identifies itself with a body that is supposed to be neutral and impartial poses serious questions about the fairness of our electoral ecosystem. Read with the empirical evidence, now in public domain, there are serious questions about the use of electronic voting machines, the process of finalising electoral rolls with special intensive revisions and the redrawing of constituencies. This, in a constitutional democracy, sends a dangerous signal.
In the Constituent Assembly, B R Ambedkar had advocated for an election commission free from Executive influence. Other members such as Shibban Lal Saxena and H N Kunzru were apprehensive of political interference in the electoral process if the power to appoint the commissioners was vested with the government of the day. Kunzru warned that in such a situation, “democracy will be poisoned at the source”.
It is, however, doubtful if these concerns were adequately taken care of while designing Article 324 (formerly the draft Article 289) of the Constitution. It only said that Parliament would make a law to install the election commission and subject to that, the President (that is, the Executive) would appoint the commission. The Constitution fails to ensure an independent body to choose the umpires of democracy, as one finds in the South African Constitution. Chapter 9 of the South African Constitution enlists “the State institutions supporting constitutional democracy”. Like the Human Rights Commission, auditor general and such other commissions, the electoral commission of that country is visualised as an independent body right in the constitutional text. The Supreme Electoral Tribunal of Costa Rica is a small yet significant example that ensures autonomy of the electoral body from Executive interference.
This deficit in the Indian constitutional text was, however, sought to be set right by a series of judicial pronouncements ranging from Indira Nehru Gandhi vs Raj Narain (1975 ) to the recent Anoop Baranwal (2023). As Justice V R Krishna Iyer would put it, “the little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of his proxy” (in Mohinder Singh Gill,1977).
Thus, Indian democracy, by way of a judicial and political praxis, materialised the idea of political equality which rests on the principle of one man, one vote. Despite the social and economic inequality about which Ambedkar lamented, India became a role model for democracies across the world, in spite of her limitations and occasional aberrations.
But a good section of the public now believes that with a centrally orchestrated disenfranchisement and other manipulative means, elections in India are rigged. This feeling has led to the agitations. The government, however, refuses to understand the spirit behind the agitations and is trying to stifle them brutally. The people’s movement, particularly by students and youngsters, are justified in terms of the fundamentality of their cause and the non-negotiability of the underlying principles.
Unlike the Gen Z movements in Bangladesh, Nepal, Indonesia, Madagascar, Morocco, France, Spain and Greece, the protests in India against the CEC have generally been peaceful. The young people exercised their freedom to assemble and express themselves fearlessly. These fundamental freedoms are constitutionally protected, and governments or the police have no right to suppress them by force.
In the Ramlila Maidan case (2012) the Supreme Court warned that in such a situation, ”State actions should be neither unjust nor unfair, lest it attracts the vice of unreasonableness or arbitrariness, resultantly vitiating the law, the procedure and the action taken thereunder”. Not only the students but even members of Parliament and civil society were manhandled by the police. Hundreds of leaders were illegally detained. Preventive detention laws were widely misused. There was a blockade of the internet. Women activists were dragged by policemen, breaching a basic principle of policing. During transit, many of the activists were beaten. Many among the constabulary in action at Delhi did not even wear the name plates.
The impunity with which they acted is a cause for concern. Even the Supreme Court’s order against torture and illegal detention of students was not honoured by the police. The Executive action violated the principle stated by the Supreme Court in Anita Thakur (2016). In that case, even after noting the turbulent situation in Kashmir at that point, the court said: ”In curbing such violence or dispersing unlawful assemblies, the police have to accomplish its task with utmost care, deftness and precision”. The court warned against the use of “force beyond what is absolutely essential”.
Protest sites are not mere pieces of land or amenities. They resonate with the heartbeat of what remains of our democracy. In Mazdoor Kisan Shakti Sangathan (2018), the Supreme Court came down heavily against the continued ban on public meetings and dharnas at specified sites. Curiously, a separate order by the National Green Tribunal that directed shifting of the protest site from Jantar Mantar to Ramlila Maidan was also an issue in the case. The Court, relying on Article 19 (1)(b) of the Constitution, ordered the retention of Jantar Mantar as a protest site, subject to regulations. It is a tragedy that Jantar Mantar has now been denotified from the list of protest venues.
The present struggle may well go beyond Gyanesh Kumar’s resignation. Rural India, where massive disfranchisement has happened, might need a people’s movement and a place in the opposition’s immediate agenda. Sooner or later, peaceful protesters may be able to abolish unfair electoral practices. Yet even now they have gained a moral victory by rescuing the country from an atmosphere of fear. But between anarchy and dictatorship, the country needs to choose the only wise middle path—which is the constitutional path. The Centre, by defending the indefensible, ignores this first principle of democracy.
Kaleeswaram Raj | Lawyer, Supreme Court of India
(Views are personal)
(kaleeswaramraj@gmail.com)
