Political Madness &
Bankruptcy of Interpretation
In Re- Biennial
Election to the Council of States by the elected members of the Legislative
Assembly of Gujrat- 2017
The Election Commission’s Order[1]
dated 08.08.2017 in above-named matter, has declared two votes cast by members
(MLAs from Gujrat) of Congress Party to be invalid, on the ground that they had
shown their marked Ballot Papers to another person from a rival party (BJP),
while they were only allowed to show it to their (congress’s) authorised agent
under Section 39AA[2]
of The Conduct of Elections Rules, 1961[3].
While the Returning officer, in his own wisdom decided to reject the objection
& sought commencement of counting of votes from the Election Commission.
The election Commission was again approached by representatives of Indian
National Congress (INC) on same grounds, while representatives of Bhartiya
Janta Party (BJP) Countered the objection on the ground that the election to
Council of States is an ‘Open Ballot’ as laid down by the Parliament, hence
there is no violation of law. The commission finally came to the conclusion
that the two votes were invalid in as much as they were in contravention of
election rules. Resultantly, Congress backed candidate & INC member Ahmed
Patel won the seat to Rajya Sabha.
I must throw a little bit of settled election law
as it exists in India, before moving forward. Through 2003 amendment, Sections
59 & 94 of the Representation of the People Act, 1951[4]
was amended to allow the election to Council of States to be conducted through
Open Ballot. As expected, its vires were challenged in Supreme Court but
were upheld by a constitution bench in Kuldip Nayar vs Union of India &
Ors[5].
The main argument & reasoning of the court in the judgment
hinged upon the effect of the amendment on secrecy of votes as it existed
before the amendment. The Supreme Court held that principle of election law is
different in direct & indirect forms of elections. And in case of indirect
elections, while the constitution envisions voting through secret ballot for
election of President & Vice- President, the mention of similar words is
missing in case of election to council of States. Therefore the amendment was
upheld.
The Election commission merely mentioned Section
59, but it never weighed its legal value in the order it passed. I have
reproduced the text of amended section 59 below-
59. Manner of voting at
elections- At every election where a poll is taken votes shall be given by
ballot in such manner as may be prescribed, and, save as expressly provided by
this Act, no votes shall be received by proxy:
Provided that the votes at every election to fill a
seat or seats in the Council of States shall be given by open ballot.
While the Rule 39AA was notified under powers
conferred by Section 169 of the Parent Act (ROPA), it remains valid for every
election other than those of council of states, especially in light of the
amended proviso of the Parent Act. It is more than settled law that the rule
making power can never contravene the express provision of the Parent Act. Rule
39AA is hence in clear violation of proviso to Section 59 & hence the
Election Commission’s order suffers from a legal vice i.e. being ultra vires
the Parent Act (ROPA). And while the Election Commission sat as a tribunal in a
quasi- judicial capacity, its order could not be biased because of a rule it
had notified in its executive capacity. It should have been dealt with
impartially in this particular case as well, based only on a legal &
factual matrix of the case.
Additionally Section 94 of the ROPA gives further
clarity to the concept of open Ballot statutorily endorsed by the Parliament in
following words-
94. Secrecy of voting not to be infringed- No
witness or other person shall be required to state for whom he has voted at an
election Provided that this section shall not apply to such witness or other
person where he has voted by open ballot.
Though this section was not referred by the
election commission in the present order, the point of secrecy superseding the
‘open- ballot’ in the order runs exactly opposite to amended part of Section
94. While the first part (un-amended) lets upholds the secrecy of voting, to
which Rule 39 AA is an exception, the second part & proviso frees the
person concerned from the fetters of secrecy. It is submitted that the proviso
removes the element of secrecy to the fullest extent & Rule 39AA can not be
used to undo its effect by only allowing authorized agent of the party to see
the marked ballot paper. This would mean that the open ballot is not an open
ballot except for the authorized agent of the party, which is unfair to the
amended statute, the constitutionality of which has been upheld by the
Constitution bench of Supreme Court. Hence, to not give such an amendment its
legal due, is abdication of the duty of the election commission.
No rule set out by election commission can read
down the amendment by restricting the meaning of an open Ballot. The reasoning
of the Election Commission that Since Section 59 provides for voting in “a
manner to be prescribed”, would allow the Election Commission (ECI) to make
rules despite there being a proviso which mandates voting by open ballot. The
election commission indicated that it may prescribe rules for voting by open
ballot even if it means reversing the meaning of open ballot. This type of
interpretation is so wrong on so many levels.
Firstly, even if we assume the stand of ECI to be
absolutely correct. It would only mean that the rule is per se a valid
rule. Be that as it may, but when confronted with a legal & factual
scenario in which a choice has to be made between secrecy of voting enumerated
under Rules 39A & 39AA, and Voting by Open Ballot without bounds of secrecy
under Sections 59 & 94 of the ROPA (Parent Act), the rule has to certainly
give way to the express wording of the statute. Just because the ECI made the
rule, doesn’t mean that it has to be partial to the rules & betray the
Parent Act, though with it exists.
Secondly, no rule can claim to derive its power
from a statutory provision & resultantly engulf the provision itself, by
exceeding its authority. A plain reading of the rules will make it aptly clear
that Proviso to Section 59 undoes the effect of Rule 39AA & Proviso to
Section 94 undoes the effect of Rule 39A. Moreover, the rule 39A predates the
amendment & is theoretically & practically outdated.
Thirdly, ECI must have heard of a very common legal
maxim, well recognized by our Supreme Court- “lex specialis derogat
legi generali”. The special law (amended S. 59 r/w S.94 of ROPA)
governing a specific subject matter (voting for election of Council of States
by Open Ballot), overrides a law (rules 3A & 39AA) governing only general
matters (Conducting of Voting by Ballot, highlighted by the title of chapter as
well). One can beat around the bush, or one can objectively see which one is a
general law & which one is a special law. Even if we apply the mischief
rule of interpretation, it would also weigh in favour of Open Ballot &
transparency of voting, as opposed to secrecy of voting. At the cost of
repetition, I must add, all these interpretational rules only supplement the
argument of the rules being ultra vires of the amended Act.
Fourthly- Its a shame as to how ECI has quoted, a
Handbook for Retuning Officers, purportedly made on the judgment rendered by
constitutional bench of Supreme Court in Kuldip Nayar vs Union of India
& Ors[6], which in
fact upheld the constitutional validity of the amendment in ROPA by which the
Open Ballot system of voting was introduced specifically for election to
Council of States or Rajya Sabha. I am not clear as to which obiter dicta
the ECI has been clinging onto, in engineering the Handbook, vulnerable
Returning Officers are made to rote, or, in rendering the order in question.
But I can only quote a concluding paragraph (4th last) of the
Judgment to clarify what the Supreme Court did mean while discussing the effect
of amendment on secrecy.
“By the amendment, the right to
vote is not taken away. Each elected Member of the Legislative Assembly of the
concerned State is fully entitled to vote in the election to the Council of
States. The only change that has come owing to the impugned amendment is that
he has to disclose the way he has cast the vote to the representative of his
Party. Parliament would justify it as merely a regulatory method to stem
corruption and to ensure free and fair elections and more importantly to
maintain purity of elections. This Court has held that secrecy of ballot
and purity of elections should normally co-exist. But in the case of the
Council of States, the Parliament in its wisdom has deemed it proper that
secrecy of ballot should be done away with in such an indirect election, to
ensure purity of election.”
The Court was referring to the rules such as 39A
(not quoting other rules since they were amended later) and its effects as they
were contrary to secrecy of voting. The obligation to show the ballot
papers to someone else (such as authorised agent of his political party) was
clearly considered to be violating the Secrecy of voting. The Court only
considered if the Voters had a right to secrecy, and concluded that the
amendment without any qualification is constitutionally valid. The Court
nowhere considered the rights of anyone else other than the Voters (MLAs), and
for ECI to hijack that discussion and turn itself into custodian of secrecy of
voting is preposterous. The Court simply upheld cross voting as opposed to
secrecy of Voting as laid down by the amendment to ROPA. The ECI is duty-bound
to follow the letters of the amended law. Even if it does not want to change
its outdated rules or to hold it invalid (questionable power), it simply has to
read the statute first and the rules has to be held to be inapplicable. There
is only one (relevant) obligation Rule 39AA contemplates & if it is
fulfilled, no action can be taken in light of the amended provisions for
violating secrecy of voting.
Some points remain to be addressed, but its already
a lengthy post, hence I will conclude by highlighting something odd,
politically. It was odd that the BJP has not approached the Supreme Court
challenging the ECI order, despite the election being so close that a
successful challenge to the order might almost certainly reduce one member from
INC to Council of States & allow their choice of candidate to win. One must
observe as to the rising number of extremely frivolous politically motivated
petitions are filed in the Supreme Court and many of them are adequately
entertained as well, and yet a very close & bitterly fought political
battle was allowed to drift away by a party in power just because of an ECI
Order, is hard to digest. One can only speculate, if there is a bigger picture
where not approaching Supreme Court is of indirect & long- term benefit to
the BJP. It can also be speculated that there was an intended design in raising
the battle temperature & then letting the fallen horse win in the end. It
is all too neat, for it to be just a coincidence to let the assured numbers in
your hands slip by consciously, for the sake of textbook style ‘violation’
of an election rule every conscious voter follows as a matter of habit. The
'violation' oddly involved a person who in fact engineered a battle out of nowhere, but
ended up being video-graphed, only for the ECI to disqualify the two crucial votes. Oddly, the only 'violation' is 'malum prohibitum'. The
two votes also whisper volumes of the design, where one could not have turned
the game over, and three would have made the contest too one-sided for it to be
considered a close call. It must be noted that if the concerned person
had to confirm who voted for his party & who didn’t, he may also have had
to see other three ballot papers from the voters of other two parties, which
didn’t happen. Maybe I am speculating hard, when all it could mean is that the
BJP didn’t want to embarrass itself by a possible Supreme Court’s rebuke for
the muddied episode, for the sake of stealing one seat when they are gradually
claiming the Rajya Sabha anyway. But I only speculated because no one from BJP
or the MLAs who lost their voting rights or the candidate who lost, has
approached the Supreme Court for any relief. Media has also skipped questioning
this curious & highly questionable political move. But then, its hardly been
three days since that election. But then, three days is a very long time in
such matters. Why is no one asking questions? People took sides, the ones to
win won't question their win because they were so desperate (driven to
desperation) for it. The ones to lose, well, they didn't lose much & maybe
the few who do care, have something to hide. We are sadly devoid of a neutral
affiliation. Hence, the silence. And for the record, the public still doesn’t
know as to whom did the disqualified votes intended for. So, what I have contemplated above would just be one part of the story. Maybe the INC already had numbers, but ...... Well, I would stop contemplating here. Leave something for the reader's imagination, if they find it interesting enough.
[2] Information
regarding casting of votes- (1) Notwithstanding anything contained in rule 39A,
the presiding officer shall, between the period when an elector being a member
of a political party records his vote on a ballot paper and before such elector
inserts that ballot paper into the ballot box, allow the authorised agent of
that political party to verify as to such elector has cast his vote:
Provided that if such elector refuses to show his
marked ballot paper to the authorised agent of his political party, the ballot
paper issued to him shall be taken back by the presiding officer or a polling
officer under the direction of the presiding officer and the ballot paper so
taken back shall then be further dealt with in the manner specified in
sub-rules (6) to (8) of rule 39A as if such ballot paper had been taken back
under sub-rule (5) of that rule.
(2) Every political party, whose member as an
elector casts a vote at a polling station, shall, for the purposes of sub-rule
(1), appoint, in Form 22A, two authorised agents.
(3) An authorised agent appointed under sub-rule
(2) shall be present throughout the polling hours at the polling station and
the other shall relieve him when he goes out of the polling station or vice
versa.
[3]http://lawmin.nic.in/olwing/Election%20Manual/EM_E2/(2)%20THE%20CONDUCT%20OF%20ELECTION%20RULES,%201961.pdf
[4]http://lawmin.nic.in/legislative/election/volume%201/representation%20of%20the%20people%20act,%201951.pdf
No comments:
Post a Comment