Questioning the polls ‘rain washes out play’ moments

Getting elected unopposed is perfectly legal in the existing provisions of electoral laws and practice. It is also thrilling. You emerge as the unrivalled representative of the people without the people having chosen you because you are the only choice on the ballot. It is like achieving something without making the requisite e¡ort.

Rule 11 of the Conduct of Election Rules 1961 says: “(1) The returning o§cer shall… cause a copy of the list of contesting candidates to be a§xed in some conspicuous place in his o§ce and where the number of contesting candidates is equal to, or less than, the number of seats to be †lled, he shall, immediately after such a§xation, declare under sub-section (2) or as the case may be, sub-section (3) of section 53 the result of the election in such one of the Forms 21 to 21B as may be appropriate .... ”

Democratic rights, the process

Yes, in such a scenario, there is a victor but there is no ‘vanquished’ party. There are only those who are ruled out under the Rules and those who decided to ‘voluntarily’ withdraw. We must remember the recent example of the Surat Lok Sabha seat where the two candidates were disquali†ed and eight others withdrew. The purpose of this article is not to question the circumstances behind the extraordinary sequence of events but to go deeper into the process underlying the exercise of democratic rights.

Similarly, 10 other Assembly seats were procured in Arunachal Pradesh. Section 53 of The Representation of the People Act, 1951 says: “(1) If the number of contesting candidates is more than the number of seats to be †lled, a poll shall be taken.] (2) If the number of such candidates is equal to the number of seats to be †lled, the returning o§cer shall forthwith declare all such candidates to be duly elected to †ll those seats.”

The question raised by some is that this process does not allow electors to exercise the None of the Above (NOTA) option. The NOTA option was not originally provided for in law but incorporated on court directions to ‘enlighten’ political parties and candidates about what some people thought of them.

That NOTA does not impact the election process in any way might sound insulting to those who think that way. The pity is that it does not even seem to a¡ect political parties in any way whatsoever. Thus, what was conceived to be a progressive reform to inŸuence the political culture hangs over the system like an “ine¡ectual angel, beating in the void his luminous wings in vain”.

However, the real question arises here: what happens if no one opts to contest the election or if all the electors boycott the election and “have failed to elect a person…to †ll the vacancy”?

Is the Election Commission of India bound to call upon the constituency to elect a person again as it happens when say in government procurement there are unresponsive bids or no bids are received?

The nancial rules parallel

Interestingly, the General Financial Rules (GFRs), which is a compilation of rules and orders of Government of India to be followed by all while dealing with matters involving public †nances (it was amended in a comprehensive manner when I was Union Finance and Expenditure Secretary), speak about “a fair, transparent and reasonable procedure” for public procurement. Rule 166, for instance, provides for a ‘Single Tender Enquiry’ that can be resorted to if the supplier is the original manufacturer, or in case of an emergency, or if there is a technical necessity for standardisation purpose. However, it does say in Rule 173(xx) that lack of competition “shall not be determined solely on the basis of the number of bidders. Even when only one bid is submitted, the process may be considered valid provided the procurement was satisfactorily advertised and su§cient time was given for submission of bids, the quali†cation criteria were not unduly restrictive, and prices are reasonable in comparison to market values”.

The procedure followed under the Representation of the People Act (RPA) meets all these requirements although the two are in no way related. The similarity may be in the sense that electors are meant to choose from the available alternatives and if there is only a ‘single bidder’ to represent them they are not required to make a choice.

So, in a sense, the “elector” (de†ned in the RPA as “a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disquali†cations”) is completely excluded from the process of choosing his representative. A person who does not have even a single vote would sit in Parliament to legislate on behalf of the entire constituency.

This to my mind is the dichotomy that the present electoral process creates. It is designed to be pragmatic even if it appears not entirely fair. Unless there is a conŸicting demand on their vote, the voters’ choice is presumed because they have no choice. Does it mean that the election process can be controlled or manipulated by a handful of candidates who have the means to nullify the right of millions of voters? In an extreme situation, all the candidates in 543 parliamentary constituencies (even if they are 10,000 representing di¡erent political parties or independents) could game the system and deny a billion electors their statutory right by complying with the process but seriously wounding the spirit of democracy.

What can be done to remedy this remote but not impossible, extreme possibility?

It could be argued that voters could also be denied their right if there are no candidates to contest. The democratic process is ful†lled only when there is interest among the contestants and the voters. Someone has to seek your vote for you to cast it.

The candidate is at the fore

The system is weighed in favour of the contesting candidates because the RPA provides that a complete boycott will be treated as everyone receiving zero vote and covered under Section 65 which deals with ‘Equality of votes’. It reads thus: “If, after the counting of the votes is completed, an equality of votes is found to exist between any candidates, and the addition of one vote will entitle any of those candidates to be declared elected, the returning o§cer shall forthwith decide between those candidates by lot, and proceed as if the candidate on whom the lot falls had received an additional vote”. The will of the people is replaced by the expediency of the system in identifying who will represent the people who did not participate in the process. It is quite a paradox considering that democracy is de†ned as a “government of the people, by the people and for the people”.

The RPA provides for issuing another noti†cation if there are no candidates †ling their nomination the †rst time but is silent if the same thing is repeated thereafter. However, it has a solution by completely excluding people if they abstain from elections and are deprived from the NOTA option because NOTA has no signi†cance in the democratic exercise. Candidates can nullify the process but people collectively cannot. Does that mean that we consider amending the †rst-past-the-post system by introducing a minimum percentage of votes for the winning candidate? Similarly, if no candidate o¡ers herself for elections the second time, should that seat be transferred to the nominated category where the President of India can nominate a person as per prescribed quali†cations without consulting the government?

These are issues that call for a wide-ranging debate so that we can avoid the prospect of ‘rain washes out play’ or a ‘collusive walkover’ making the election seem ‘free and fair’ without giving people the opportunity to cast their vote without being subdued by fear or swayed by favours.

The Surat and Arunachal Pradesh results are issues that call for debate where an election is made to seem ‘free and fair’ despite people not having cast a single vote