Elections in themselves are not reliable indicators of a democracy. They happen also in populist autocracies ranging from Russia to Bangladesh.
Take the Russian case. The Central Election Commission of Russia declared that President Vladimir Putin won about 88 percent of the vote in the recent polls. Many of Putin’s critics were either imprisoned or forced to quit politics. Some others, including Boris Nemtsov and Alexei Navalny, died in mysterious circumstances. This does not mean that Putin lacks popular support. Many feel that under his leadership, Russia is formidable enough to defend the challenges from the West and that the country is progressing.
Let us come to the Indian scenario. According to the latest global attitudes survey conducted by the Pew Research Center, a majority of respondents were of the view that either an authoritarian rule or a military rule would be a better fit for India. Several countries have had to pay a heavy cost in the past because of the people’s affinity for autocratic regimes.
B R Ambedkar, who said democracy is only a top dressing in India, is now proven to be correct. His fear against idolatry in politics—as distinct from that in religion—endangering democracy was prophetic. Idolatry is antithetical to constitutionalism, since the Constitution is about institutions rather than individuals. The Constitution does not believe in personal glory.
Indian elections are a process with multiple components and stakeholders. The fairness of elections depends upon the interplay between these factors. It always required protection from money power, muscle power and state power. Article 324(2) of the Constitution says that till parliament makes a law, the chief election commissioner (CEC) and election commissioners (EC) will be appointed by the president. This provision effectively ensured the predominance of the executive of the day in selecting the CEC and ECs.
The Supreme Court, therefore, felt an independent body alone could have appointed independent CEC and ECs. Thus, in the Anoop Baranwal case, the court evolved a committee comprising the prime minister, the leader of the opposition and the chief justice of India for selecting the CEC and ECs. The judgement, delivered on March 1, 2023, stated, “It is important that the appointment must not be overshadowed by even a perception that a ‘yes man’ will decide the fate of democracy and all that it promises.” The court also said “an impartial mode of appointment of the members requires, at the least, the banishing of the impression that the Election Commission is appointed by less than fair means”.
What followed is a matter of concern. Parliament passed the Chief Election Commissioner (Appointment, Conditions of Service and Term of Office) Act, 2023, which came into force on January 2, 2024. Section 7 of the Act contemplated a selection committee consisting of the prime minister, a minister chosen by the prime minister and the leader of the opposition. After the promulgation of the new law, one election commissioner retired and another resigned. New appointments were sought for these vacancies. Thus, Gyanesh Kumar and Sukhbir Singh Sandhu were appointed. They were chosen by the PM’s committee, as envisaged under the new law.
The Supreme Court, on March 22, 2024, dismissed petitions for staying the new enactment and the new appointments based on it. Thus, at least for the time being, the constitution bench decision in Anoop Baranwal remains wishful thinking or judicial romanticism. The verdict is sabotaged by a majoritarian onslaught in parliament.
The CEC and ECs have a duty to act fairly and effectively, and this is why the independence of the body that selects them is important. After the declaration of elections, in an ideal system, issues ranging from the freezing of the Congress’s accounts to the detention of opposition leaders would call for effective intervention by the Election Commission. The office must ensure a level playing field between the political players. As a fourth-branch institution, its independence should be akin to that of the judiciary.
It is duty-bound to invoke the prescriptions in the Representation of the People Act, 1951, Section 123 of which deals with corrupt practices such as bribery. An appeal for vote on the grounds of religion, race, caste, community or language is also a corrupt practice. Section 125 bars “promoting enmity between classes in connection with election“. A poll panel should be able to enforce the law by acting independently, as demonstrated by T N Seshan, whose tenure was an exception, rather than the rule.
Disabling an opposition party from campaigning by freezing its bank accounts, while the ruling regime has captured a major share of the electoral bonds, is clearly unfair. It demolishes the last traces of a level playing field. The possibility of post-election horse-trading and its ostensible link with big money is, sadly, a part of today’s political industry. Ironically, as history would tell us, loss of faith in democracy has only helped demagogues.
An inherent irony of constitutions is that some of them provide for their own suspension or, at times, even their annihilation. Italian thinker Giorgio Agamben has written extensively on the ‘state of exception’, an idea introduced by German philosopher Carl Schmitt. In such a scenario, Rule of Law surrenders before political sovereignty. For example, Article 352 of our Constitution permits proclamation of Emergency, which Indira Gandhi invoked. Yet, the election thereafter was relatively fair, since the constitutional institutions remained almost intact, enabling people to throw away the authoritarian regime.
Today, the institutions—ranging from parliament to the Union cabinet—are almost reduced to being external structures or a hollow rhetoric. People are divided by the regime on all possible counts. I have described this process as ‘deconstitutionalisation’, which can happen to institutions as well as to individuals. An opposition which is incarcerated, pauperised or divided marks our journey towards an electoral autocracy. The Election Commission’s insensitivity to concerns over the possibility of voting machine manipulation has also created a trust deficit.
In many autocracies, the opposition does not believe in the fairness of elections, which motivates them to boycott polls at times. Bangladesh is a recent example. The Lok Sabha election of 2024 has almost lost its constitutional legitimacy. It could be an election that has missed its meaning, content and purpose.
(Views are personal.)
(kaleeswaramraj@gmail.com)
Kaleeswaram Raj | Lawyer, Supreme Court of India