Wednesday, July 18, 2007

EC's stand on abstention inconsistent

THE Election Commission has issued a clarification regarding the BJP's demand to declare the United National Progressive Alliance (The Third Front)'s decision to abstain from the Presidential elections. The clarification is entirely unconvincing and inconsistent. First it says, political parties cannot issue any direction or whip to their members to vote in a particular manner or not to vote at the election leaving them with no choice, as that would tantamount to the offence of undue influence within the meaning of section 171C of the IPC.

This point is well taken, and the E.C. has for the first time taken a formal decision in this regard, which is welcome. In 1997, the E.C. had declined to endorse the Election Commissioner, G.V.G.Krishnamurthy's personal opposition to the issue of whip as being unconstitutional, even though political parties had broadly accepted his appeal.

Having said that, the E.C.'s press note says those electors defying such a directive from the party, to give effect to their free will at the election will not come within the ambit of disqualification under the 10th Schedule to the Constitution.

The point is that the parties comprising the Third Front could threaten expulsion of the defiant Members from their parties for the defiance, even if they don't suffer disqualification from the House. Forget expulsion, there can be other forms of retribution against a defiant elector, who is willing to risk party indiscipline. Unlike cross-voting (which is impossible to detect due to secret ballot) , it is easier to detect those Members who don't abstain from voting. In a party like AIADMK, which is part of the third front, the prospect of retribution for defiance can make the Member succumb to undue influence, rather than follow his free will.

The E.C. in my view, has misconstrued the scope of Section 171A (b) of IPC by equating voters who have the right to abstain with parties' freedom to request or appeal to abstain. In our democracy, the parties internally don't appeal or request their Members. They just decide, and the decision is binding on all Members of the parties. Hence the cover of 171A(b) cannot be made available to the political parties or a grouping of political parties to decide on behalf of the electors to abstain from voting. Just imagine what would happen, if all political parties decide to abstain. It would defeat the very objective of the election to choose a President in time to fill the likely vacancy in Rashtrapati Bhavan. Can all political parties have similar freedom to request their Members to abstain from voting? Needless to say, such an interpretation would make no sense at all.


Srinivasan said...

I was eager to see if at all EC would react on NDA's memo. It is heartening that EC chose to even speak up on this matter but not quiet forcefully, as Mr.Venkatesan points out.

It is imperative that the choice of an elector to vote for any candidate or not to vote be preserved. As such votes can be sought for or against a candidate by the parties. At best an appeal
to abstain is tolerable; that too stretches the fundamental principle of elections. But the UNPA "decision" to abstain would only mean that they are going to somehow or other make their electors fall in line. This should have been called on as foul play by EC. EC should have asked what mechansim the UNPA parties are going employ to "enforce" this decision and the implications there of.

Dilip said...

You say (and I agree) that parties do not ‘request or appeal’ to members to abstain and in effect, whip or no whip, their decisions are binding on all their members. The EC’s clarification only deals with two possibilities – a whip that can be issued or a ‘request or appeal’ that can be made without taking into account this third possibility that you raise – an ‘informal’ whip or a decision that has binding force even when no threat is actually made. If someone can show that punitive action of any kind was taken against him/her outside of the 10th Schedule because of such defiance, then it would no longer imply that the party’s call was a mere ‘request or appeal’ and the EC’s clarification ought not to apply. I think the EC was being cautious and the paragraph only highlights where the lines are definitively drawn without elaborating on other possibilities – since the courts would be the final arbiters of what constitutes undue influence, I would hesitate to read the clarification’s silence in those respects to imply their permissibility. The cause and effect relationship that would have to be proven to demonstrate implied coercion would admittedly not be easy but for that reason alone interpreting the provision more broadly to eliminate even the possibility of an appeal might have been more difficult to justify and open to challenge on the ground that any such call involving no coercive element is integral to party’s campaign and very much constitutional - as the EC also notes, canvassing against all candidates in the fray is as much of a right as canvassing in favor of any of them. On this point, I agree that if parties appeal to voters to abstain, it might render the electoral exercise less meaningful but still believe the right to do so to be a legitimate one – as long as coercion is not involved, it does not affect the free exercise of anyone’s electoral right and cannot be construed as undue influence. It is extremely improbable that all parties would boycott the poll; it is more likely that the few who do so either do not believe their chances of winning to be bright or simply to make a political point. The only instance otherwise that comes to mind is in areas where candidates and/or voters face violent intimidation from outlawed outfits which is, needless to say, clearly unlawful.

V.Venkatesan said...

Dear Dilip,
Thanks for the well articulated response. But I have some difficulties.

Whether it is request or appeal or a decision, the effect is same. The Members of the party concerned are indirectly intimidated against exercising their franchise. The retribution against such Members may not be immediate, or may not even be tangible, but may be psychological, or even denial of tickets to fight next election.

In such contexts, the Members concerned may not seek the legal remedy. The threat by the party bosses need not be made overtly, so as to invite EC's or court's strictures.

I don't agree that appeal or call to abstain involving no coercive element would be part of the party's campaign.

S.171A only talks about the individual voters' right to abstain. It cannot be stretched to include in its ambit, parties' right to campaign in favour of a poll boycott.

While seeking registration, these parties have reposed their faith in the democratic process of the country. This is a mandatory requirement. For the E.C. to grant the parties a right to propagate poll boycott is anathema to the very concept of democracy.

Canvassing against all candidates in the fray is a right. I agree. But why can't parties practice this in other elections - to Lok Sabha and state assemblies? Obviously, they don't.

Except Naxal groups, and the militants in Kashmir, no moderate political group advocates boycott. Even activist NGOs, encourage voters to come out in large numbers and vote, even if they are dissatisfied with all the candidates. They have to evaluate, and judge who is better among those perceived as unsuitable.

Is the Third Front comprised of parties who share their ideology with the Naxal and the militant groups? For the E.C. to give credence to such a plea, would only stengthen the militant groups. Tomorrow, the militant groups too can " request" and "appeal" against voting, because the political class as a whole has failed to deliver, in their view. They will try to "convince" the voters.

I don't think that could have been the intention of law makers who introduced S.171A in the IPC. This provision is only intended to tell the voter that he will not be penalised if he does not vote, and that he is free to decide to vote or not. But if he decides not to vote, due to extraneous reasons, like parties' appeal or request, or clearly sees adverse consequences of not following such appeal (these consequences are so apparent, that one need not even prove them), then he is clearly under undue influence, and the EC cannot let this go unchecked.

The fact that it is extremely unlikely that all parties will issue similar appeal to abstain does not absolve the E.C. of the responsibility to examine its stand with reference to Third Front. If what is right for Third Front cannot be made universal for all parties, then there is a basic flaw of inequality before law which has to be addressed. The plea that all parties are unlikely to do so, suggests that there is inherent flaw in the stand, which if adopted by all parties, would make democracy a mockery.

Srinivasan said...

Thanks to Mr.Venkatesan for a spirited defence of his position. After reading Dilip's comments I have to concede that there are real problems in muzzling the parties voice. The right to vote or canvass for a vote comes with the equally important right to NOT vote or appealing for abstention. The problem with naxal and militant groups is not that they are calling for abstention or boycott of polls. In and of itself, though it runs counter to democratic prinicples, those calls don't violate anybody's rights.
The problem with those groups is they are prepared to enforce their decision with guns and bombs.

Thus, to equate those groups with mainstream political parties would not be correct. As Ramachandra Guha writes in his new book "India after Gandhi", in many "naxalite" areas of Bihar, people regularly ignore the boycott appeals and vote in sufficiently large numbers. If a call is made in peaceful terms by written appeal or statement or even campaigning, it would still be legitimate as long as no violence or coercion is involved.

But that said, the real issue here is our politcal system, all thru the year mainly functions on the basis of political parties. That imposes a high level of centralization of principles, positions and directions in the hands of party leadership.
But the Presidential election requires the electors to act as independent voters free of any "undue" influence. To expect the system to take a leave of its party centric nature during the presidential elections alone is a bit unrealistic. This will require more maturing on the part of the parties, creating strong precedents
taking the form of conventions in the due course of time.

Dilip said...

Dear Venkat,

Thanks for your reasoned response.
(1)On your first point that retribution can take a variety of forms not expressly stated or easily characterized, I agree. The very nature of such retribution being so amorphous and the link to the causative event quite possibly tenuous is also the reason why, as you state correctly, it may not invite the EC’s or the court’s strictures. The question is whether such a possibility is per se sufficient to impose an absolute ban on calls for abstention at the cost of curtailing the party’s freedom or whether it would be preferable to impose a more limited restriction and expect individuals to come forward with additional evidence before the inference of coercion is made out. The latter has the advantage that it makes no blanket assumption of a party’s guilt and like in most other questions, the burden of proving the allegation would rest on the one making the claim. I readily concede that this position involves a cost as well which you point out - victims might not be willing to come forward in every case or manage to prove their point.

A related matter is that difficulty of determining implied intent might lead to unacceptable censorship. For example, if a leader were to announce simply that he/she would not be voting on that day without exhorting party members to do anything, many people might still interpret that as a signal to abstain and choose to do so – would even such a plain statement of fact then amount to a call to abstention? A charitable explanation is quite possible that members were simply trying to emulate their leader – that would still be within their freely exercised electoral right and hardly unusual in our system.

(2)I agree with your point about section 171(A): the EC seems to have mistaken the right to vote with the right to canvass for votes – two very different things with the latter not being within the provision’s ambit at all. However, there is nothing to prevent a party from canvassing for or even against voting – I do not agree that the latter would be a breach of their obligation as a party because a peaceful and otherwise normal campaign would still be a perfectly acceptable exercise in a free society. Reposing faith in democratic process is about the means, not ends: people not voting may be an anathema to democracy but propagating even an undemocratic idea while allowing its fate to be determined by popular franchise still renders it a democratic exercise and within the precincts of the constitutional order – in that sense, this idea is no different from, say, campaigning for a monarchy. Would that potentially lead to the strengthening of outlawed groups? Not likely in a presidential election but perhaps so in a general election – it may well be a bad idea but there are numerous other bad ideas out there as well that are a part of the normal discourse and it is really for the people to be discerning in their choice and deny their support to those who advocate them.

(3)On the question of similarity between appeals by political parties versus those of militant groups, as Mr. Srinivasan has correctly pointed out, the two carry very different messages because the history and nature of activities of the latter carries with it the implied threat of enforcement by violence.