Friday, July 20, 2007

EC'S STAND ON ABSTENTION -II

I thank Mr.Arun Thiruvengadam for his suggestion that what was added as "Update" to my previous post on the subject should ideally be a new post as it raises substantive issues.

The AIADMK chief J.Jayalalithaa has rightly revised her stand on abstention by allowing her party MPs and MLAs to vote, even while abstaining herself, blaming the E.C. for not taking a clear stand. In the comments section to the previous post, both Dilip and Srinivasan argue for freedom for parties to peacefully propagate abstention. There is one convincing reason why such a freedom cannot be conceded. I draw your attention to the link relating to ECI's norms for registration of political parties. The link is here.

One of the requirements for registration says:A neatly typed/printed copy of the memorandum/rules and regulations/Constitution of the Party containing a specific provision as required under sub-section (5) of Section 29A of the Representation of the People Act, 1951 in the exact terms, which reads "---------------(name of the party) shall bear true faith and allegiance to the constitution of India as by law established, and to the principles of socialism, secularism and democracy (italics mine) and would uphold the sovereignty, unity and integrity of India". The above mandatory provision must be included in the text of party constitution/rules and regulations/memorandum itself as one of the Articles/clauses.

What are the principles of democracy? Democracy, according to the dictionary meaning, is a country in which the people choose their government by voting for it. How can anyone interpret it to mean it also includes not choosing a government by not voting for it? Voting indisputably is an essential principle of democracy. Individual voters may have the freedom not to vote, because of various reasons, but they ought to be primarily personal. Even a decision not to vote because the voter is dissatisfied with all the available candidates must be entirely a personal one, based on her perception and judgment of what the parties offer or don't offer; this decision cannot be dictated or appealed to by any party, because once the parties try to persuade the voter not to vote, they would lose the rationale for registration.

The EC has certainly misread its own norms for registration of parties. I am glad Jayalalithaa understood the wisdom and the correct legal position of not deciding on behalf of her MLAs/MPs even belatedly and allowed them to vote, even if she had abstained. There is a strong ground for seeking deregistration of political parties which requested non-voting by its Members.

One can ask what about socialism and secularism? Are not parties guilty of going against the principles of these concepts as well at times? Well, my answer is that the violation of these principles is subtle, and difficult to establish sometimes. Even if the violation is blatant, there is always scope for a different interpretation. One would agree that the word socialism was inserted in the Preamble of the Constitution under circumstances which are arguably not relevant today. But democracy? It is so fundamental to the Election Commission's own rationale. There can be no two opinions on what it means and signifies.

4 comments:

Dilip said...

Dear Venkat,

Interesting post and thanks for highlighting an important point. The right to refrain from voting enshrined in section 171A, not being contradicted anywhere else, lends itself to the meaning that voting is a right that people are free to choose to or not to exercise. The principle of democracy too, interpreted in light of this, would imply a right of the people to choose their own government through popular franchise - again the system works not because it enjoins a statutory obligation upon citizens to vote but believes in and depends on their own inherent sense of civic duty to participate sua sponte. Section 29A’s requirement that parties state their ‘true faith and allegiance to the principle of democracy’, as I see it, is only a requirement to respect this notion of participatory democracy. The right to vote, which I interpret to mean the actual act of folks going to the booth and casting their ballot, is no doubt an essential aspect of democracy and parties are bound to respect it but is not the same as the right to appeal to people to vote (or not) which is guaranteed under the freedom of expression. Freedom of speech and expression is clearly important for an electoral event but I would not characterize it as a principle of democracy – participation and electoral choices can still be made in its absence - rather as a prerequisite to make it meaningful, in a sense not unlike security and public order which are also vital. I would therefore argue that the parties’ right to appeal, not being within the meaning of the phrase ‘principles of democracy’, does not enjoin parties to tailor their appeals in any respect save as indicated later in the same section 29A itself viz. sovereignty, unity, etc. In other words, peacefully persuading people to not vote for candidates in the fray in a given election is thus quite different from opposing the right to vote itself or seeking to prevent people wanting to vote from doing so, something they cannot lawfully do. The Third Front parties are registered because they want to participate in elections, so it would be unusual for them to oppose voting itself in principle; militant groups on the other hand try to intimidate voters to stay away from the booth which would amount to interference with the right to vote. Appeals by themselves, assuming no coercion exists, cannot therefore amount to a violation of section 29A of the RPA and would not be a ground for deregistering them.

Srinivasan said...

I would leave the finer points of legality to the experts in this blog but wish to make some practical observations here. There can be genuine cases in an election in which the whole array of candidates is unpalatable to some sections of the electorate (not just to individuals). With the increasing number of candidates with criminal antecedents in recent times this may indeed have happened. Voting for one such candidate might imply endorsing or condoning criminal behaviour and hence a valid case can be made out for not exercising the choice at all. It is even possible to argue that such efforts may nudge the system in positive ways.

One other situation is when the abstention exercise is carried out as part of a political strategy at specific situations by parties/groups to differentiate and position themselves (with future elections in mind).
For e.g the National Front/Left Front combine abstained during the confidence motion a few times in the 10th Lok Sabha with the intention of bailing out the Government, but not willing to be seen publicly doing that. Sometimes the abstentions are done to materially affect the outcome and other times just to make a political point (after realizing the limited options, as in this case by UNPA). In all these cases, this exercise can be made within the ambit of democratic politics without repudiating the fundamental constitutional compact of democracy.

Whereas the naxal and militant groups not just rely on violence and coercion to post facto enforce their will, but their very intention is totally different. Their opposition is not just to a specific election in which the all the choices are unpalatable to them, but to all elections and the fundamental democratic exercise itself. While we need to make the law prevail against such groups and their tactics, it is desirable that we preserve the right of the first category to occasionally use the option of abstention.

V.Venkatesan said...

Dear Dilip,
You have sought to make a subtle distinction between right to vote, and the phenomenon of voting itself, which is a basic postulate of democracy. From this, you are suggesting that parties of the Third Front did not question the right to vote of the electors in the electoral college for the Presidency, but only appealed to them not to exercise their vote. This distinction is nothing but just hair-splitting.

The question here is whether the freedom of expression of the political parties is unrestricted. Section 29A of RPA is clearly a restriction in the sense, it implies that parties cannot use freedom of expression to violate their own undertaking to show true faith and allegiance to the principle of democracy. You are yourself admitting that it requires parties to respect this notion of participatory democracy. When the parties ask the electors not to participate in the Presidential election, are they not going against this undertaking?

Again, you seem to make a subtle distinction between principles of democracy and the parties' undertaking to uphold the sovereignty, unity and integrity of India as required under S.29A. It goes without saying that if the parties are required to bear true faith and allegiance to the Constitution, and to the principles of socialism, secularism and democracy, they need to uphold the latter principles also. How can one infer that they have to uphold only the former, and not the latter? Secondly, by asking the electors not to vote, are they not violating this true faith and allegiance to the principle of participatory democracy, as you put it?

In other words, individuals can have the right to propagate abstention from elections. But registered parties cannot do so even peacefully, because it is against the democratic principle. Here, I think there is some confusion in your reasoning, when you say that the parties’ right to appeal, not being within the meaning of the phrase ‘principles of democracy’, does not enjoin parties to tailor their appeals in any respect save as indicated later in the same section 29A itself viz. sovereignty, unity, etc.

Section 29A does not make a distinction between showing true faith and allegiance to a democratic principle as opposed to demonstrating the faith and allegiance in practice. The fact that the Third Front parties have not challenged the right to vote in principle does not absolve them of their deviation in practice from their true faith and allegiance. The former does not condone the latter.

Lastly, where does S.29A make a distinction between peaceful appeal and an appeal marked by coercion? It is not even implicit.

Dilip said...

Let me explain. You correctly said, “Democracy, according to the dictionary meaning, is a country in which the people choose their government by voting for it”. The question here then becomes, in our country, does it statutorily mean the right of the people to choose their government by voting for it or the duty of the people to choose their government by voting for it? This distinction is real and central to the outcome of the question here. More aptly, with respect to parties’ obligation under section 29A(5), does the undertaking to show ‘true faith and allegiance to the principle of democracy’ enjoin a duty to respect their right to vote or their duty to vote? If it were the latter, I would agree with you all the way. In that case, appealing to the electorate not to vote would mean asking them to act in breach of the democratic principle and therefore a violation of their undertaking to the EC. But section 29A(5) does not define this phrase and we must infer its meaning in light of other provisions, in particular, section 171A: the right to refrain from voting guaranteed there clearly indicates that the democratic principle is a right, not a duty. Adherence to the democratic principle would then only require that should someone choose to exercise that right, parties ought to do nothing, in word or deed, to prevent it. Appealing not to vote does not per se amount to preventing it, only an effort to influence that choice when it is being made and is not inconsistent with the parties’ undertaking.

The remainder of your contentions appear to be derivative of this divergence. I do not disagree that section 29A(5) imposes a restriction on the freedom of expression. My only contention was that the phrase ‘principle of democracy’ alone does not imply a censorship of any kind of appeal, so the domain of this particular aspect of section 29A(5) shares no common ground with that freedom (the dissonance is secondary - since you have contended that censorship of appeals to not vote is implied, you have argued otherwise). Parties are certainly bound by all other requirements of section 29A(5) which impose certain restrictions on that freedom (though I think socialism is a word with such broad connotations that it is impossible to define or enforce and perhaps we agree, should be ignored) to uphold sovereignty, unity, integrity, etc.

Lastly, the distinction between peaceful appeal and one marked by coercion is important to my case because that marks out the boundary for parties between respect for and rejection of the right to vote and thereby the democratic principle. This is again secondary to the arguments in the first para – as you feel that all appeals against voting are a violation, you do not appreciate any difference. Likewise, I see no difference between an appeal by a private individual and a public appeal by a registered party to abstain as they are both equally protected under the freedom of expression – your different reading of that phrase of section 29A(5) leads you to a contrary conclusion.