The right to vote is a statutory one. However, in the absence of any disqualification, either under the Constitution or the Representation of the People Act, 1951, a citizen has the right to vote. Under Article 324 of the Constitution, the Election Commission, pursuant to a notification issued by it declaring the schedule for the election, is charged with the responsibility of superintending and controlling the preparation of the electoral rolls and the conduct of elections. It is the sole repository of such power and its exercise.
When interpreting Article 324 of the Constitution, the Supreme Court has held that “free and fair elections” is part of the basic structure of the Constitution. What is ‘free’ and what is ‘fair’ is to be decided upon by the Election Commission. Yet, the methodology it adopts in conducting elections is subject to judicial review. In other words, if a procedure is adopted that makes the election suspect, courts can always opine on whether the process adopted was free and fair.
The very foundation of our democratic edifice is based on a free and fair election. While interpreting the word free, the Election Commission must ensure that a voter casts his or her vote free from any undue influence. That is why votes cast pursuant to undue influence as prescribed by the Act of 1951 would subject the candidate to a charge of corrupt practice. Bribing candidates or voters in the course of the election as well as other statutory prohibitions would render the election of the candidate void. The losing candidate can file a petition to that end.
The word fair means that apart from the candidate being free to cast his or her vote, the entire process in the course of the election should also be fair. That is why the Election Commission has guidelines issued for all the returning officers during the course of the polls, the political parties and those voices representing them to ensure the fairness of the procedure in the conduct of the election.
The fundamental premise in any electoral process is for the voters to be satisfied that their votes are cast in favour of the candidate of their choice and are accurately counted. The only method that ensures fairness in this regard is to make sure the voter obtains a ballot paper in any form and places it in a ballot box, knowing that the vote is safely sealed and counted in favour of his or her chosen candidate. Any other method falls foul of fairness not because it necessarily leads to the elector’s vote not being counted towards the intended candidate but because there is no reliable way of verifying the fact of the exercise of the right to vote except the satisfaction of the ballot paper in the hands of the elector, safely sealed in the ballot box.
That is the fundamental premise on which our democratic edifice is based. Absent that, the elector may be freely casting his or her vote, but the procedure adopted by the Commission would be unfair if a machine is used for the purposes of determining that the vote cast is in favour of the candidate qua whom the elector cast his or her vote.It is in this context that the whole controversy about the electronic voting machines (EVMs) used by the Election Commission has arisen. Several polls have suggested that a majority of the citizens of this country find the EVMs suspect. I believe that the elector has the fundamental right to know that the vote cast by him or her is in favour of the candidate for whom the vote is cast. Free and fair elections is part of the basic structure of the Constitution, fairness being an essential element in the voting process.
The court is cognisant of the malpractices that were rampant when ballot papers representing the exercise of the right to vote were manually cast by electors in favour of a candidate. There is some truth to this fear, but technology has so developed over the years that such malpractices can easily be dealt with by the Election Commission. Therefore, the debate that we cannot go back to the ballot paper regime must not provide the rationale for the use of EVMs, which is why in the developed world, the EVM is not regarded as a mode of casting and counting votes.
A report published by the World Economic Forum in 2020 showed that votes are cast by manually marking ballots in 209 of the 227 countries and territories it surveyed. In addition to paper ballots, EVMs are used in only about 10 percent of the countries and territories. EVMs are preferred mostly among smaller nations such as Singapore. Among the larger ones, the report counted the US and India—and the electoral process is being questioned in both these democracies, albeit on different grounds.
It is true that India being a young country and the most populous one, the Election Commission will have to devise ways and means to ensure the procedure in the manual casting of votes is fair. That there would be some hiccups in the process doesn’t mean the system that is presently being adopted is consistent with the basic feature of the Constitution—ensuring fairness in the electoral process. The argument that if the VVPAT is akin to a ballot paper and required to be counted qua every machine, it will delay the results by 3-4 days is a misapprehension. Experts are sceptical about this and some believe that this process will not take more than four hours if approached in innovative and logical ways.
The Supreme Court is confronted with this vexed question. It is perhaps too late, at this point, for the Election Commission to adopt a relatively fair procedure to ensure a fair election. But some day, the Supreme Court will have to consider this issue, taking into account that the political parties in opposition and a majority of the electorates find the EVMs to be suspect.
Given an option, I would think that a couple of days’ delay in pronouncing the result that seeks to ensure a fair procedure in the conduct of the election should be preferred to a non-transparent process in which the machine alone counts my vote without my personal knowledge about in whose favour it has been counted.
Kapil Sibal
Senior lawyer and member of Rajya Sabha
(Views are personal)
(Tweets @KapilSibal)