An important issue that has become an extensively debated subject is the conduct of elections during the pandemic. There have been arguments to suggest that the conduct of Assembly elections was responsible for the second wave. This argument has been further extended given the Omicron scare with cases increasing in various cities of India. It is important to recognise that the second wave began in states where there were no elections. That is, the surge in cases began in Maharashtra, Kerala and Delhi—places where there were no elections. To blame it on elections is fairly convenient, even as many ignore that conducting polls is not a choice but rather a constitutional duty.
Let us begin with an example from Uttar Pradesh that has been subject to severe scrutiny even as many have ignored Maharashtra, which happens to have witnessed one of the highest number of cases per lakh population. Uttar Pradesh was to conduct rural civic body elections and the state’s poll panel had given an undertaking to hold them by May 2021. However, a Bench of Justices Munishwar Nath Bhandari and Rohit Ranjan Agarwal rejected the undertaking and ordered the elections to be conducted by 30 April 2021.
The order stated, “As per the mandate of the Constitution, the election of the Panchayat should have been held on or before 13 January 2021”.
The elections were an outcome of a plea filed seeking for the polls to be conducted as per the provisions of Article 243-E of the Constitution, and the court ruled in favour. The Uttar Pradesh government complied with the High Court’s order, yet many were quick to blame it for the same.
The issue of polls during the pandemic is not a new one as there was a request by Bihar’s RJD for the Assembly elections to be postponed. However, elections were conducted on time and Bihar saw a limited spike in Covid-19 cases after the electoral process. That the Election Commission did not delay the polls is largely because it is mandated by law to conduct elections.
Section 153 of the Representation of the People Act, 1951, does enable the EC to extend the time for completing an election, but it is applicable only once a poll process has started. Moreover, the alternative choice available if elections cannot be conducted on time is to either invoke President’s rule under Article 356 or extend the duration of the legislative Assembly by one year. Both would be tantamount to denying the right of adequate representation to citizens of any state.
As ordered by the High Court in the case of Uttar Pradesh, a constitutional obligation will have to be met and the state election commission would have to undertake its duties as per the constitutional framework. Therefore, even if the EC were to delay the elections in any particular state, it would be subject to petitions as in the case of UP to undertake them.
Even as the focus has been solely on the Assembly polls, it is important to recognise that India has had close to 28 different types of elections since the pandemic started—and the bulk of them happened after September 2020. It is noteworthy that despite such elections being conducted, there was no surge in cases between September 2020 and February 2021.
That elections are an important constitutional duty must be well recognised and cannot be wished away as a policy choice. The key question was not whether elections could be conducted amidst a pandemic, but instead how polls can be held while minimising any potential risks of a subsequent surge in cases.
In that context, before the Bihar polls, the EC had sought suggestions from all political parties regarding the conduct of elections amidst the pandemic. The process was geared towards arriving at a mechanism to conduct elections that kept in mind the importance of social distancing (and other constraints imposed by the pandemic) while ensuring free and fair polls.
In that regard, it made several proposals to all political parties, which included the option of banning physical rallies while suggesting digital ones. The move for digital rallies was supported by the BJP keeping in mind the Covid situation. Incidentally, it had initiated a fully digital campaigning mode for the entire election. However, nine opposition parties had opposed the same and they requested the EC to allow conventional rallies. Subsequently, the EC allowed a hybrid mode whereby conventional election rallies and digital were both permitted.
It is important to point out here that despite risks associated with election rallies, several political parties aggressively pushed for traditional rallies as they saw it as a prerequisite to improve their electoral tally in the state of Bihar. Given that the EC agreed for traditional rallies further suggests that the institution has a preference for fulfilling its constitutional obligations of holding free and fair elections in a timely manner.
It is about time that the commentariat recognises that conducting elections is indeed a constitutional obligation of the EC as is ensuring a fair poll process. Therefore, if political parties—more so from the opposition—are against digital campaigning, then we are bound to see massive rallies as an outcome of the electoral process. While it is an ethical dilemma, constitutional frameworks and judicial interventions have eased it by prioritising the right to adequate representation.
Somya Luthra
New Delhi-based legal scholar
Karan Bhasin
New York-based economist
(somyaluthra@gmail.com, karanbhasin95@gmail.com)