Next Round of Seshan Type Election Campaign and Balloting Reforms

 

BRING IN DIGITAL ELECTION CAMPAIGNING AND BALLOTING

(Next Round of Seshan Type Election Reforms)

 

SUBHASH CHANDRA GARG

Former IAS and Finance Secretary, Government of India

 

Election Commission has Constitutional mandate to conduct free and fair elections

The Election Commission has the constitutional mandate to hold free and fair elections and has all the powers of ‘superintendence, direction and control’ over ‘conduct of elections’. Holding election meetings, rallies and campaigning is part of conducting elections. The political parties and candidates have to reach to their electors to convince to vote for them.

The Election Commission has formulated a Model Code of Conduct (MCA). The MCA regulates different aspects of the conduct of parties, candidates, party in power, government officials, Ministers and other persons which has a bearing on the free and fair nature of elections.

The Election Commission administers the MCA. It is now well-settled that the MCA, though issued as guidelines, has the force of law having been implicitly formulated in exercise of the powers of superintendence, direction and control vested in the Election Commission.

The MCA is a mix of two kinds of contents. One, it weaves in the guidelines specific offences relating to the elections described in the Representation of People Act and other offences, which also have bearing on conduct of parties, candidates and other participants in elections specified in other laws like Indian Penal Code (IPC), other central and state laws. Second, it builds in several other aspects which are not offences under any law but the Commission considers necessary for a fair and free conduct of elections.

The offences specified in laws, if committed during the process of elections, are taken cognisance by the courts and guilty punished appropriately after the elections are over. The other aspects of the guidelines are more operational and their enforcement is necessary during the electioneering phase.

The Commission has to secure their due observance by warning candidates and political leaders, debarring candidates/ political leaders from campaigning, cancelling elections, treating expenditures which are not normally treated as part of the ceiling as part of the ceiling each candidate is subject to.

The action of campaigning, holding rallies, holding marches etc. falls in the second category.

A. RETHINKING ELECTION CAMPAIGNING

West Bengal Elections have exposed the risk potential of present mode of election campaigning

Assembly elections in five states- West Bengal, Tamilnadu, Kerala, Assam and Puducherry- were held in the months of March-April-May 2021. The second wave of Covid-19 was quite mild, rising slowly and generally unnoticed when the Election Commission announced the poll schedule for these elections on February 26, 2021 (16,488; seven day average 14,300). The most standout feature of the poll schedule announced by the Election Commission was an eight-phase voting schedule in West Bengal.

Many commentators questioned such an intense schedule in West Bengal, but none flagged surge of Covid-19 as the real risk. Covid-19 cases began to rise menacingly from March 15 from the level of sub 25,000, more than tripling to over 81,000 by April 1, 2021. Whole of April saw the rampage of Covid-19 when West Bengal went through all the campaigning rising to more than 3,60,000 on the last day of poll on March 27, 2021.

The election campaigning in India features large rallies addressed by star campaigners. There is also intense person to person contact besides organisation of larger number of smaller gatherings where candidates and other leaders of the parties interact with party workers and voters. The high voltage campaign in West Bengal witnessed gathering of big crowds in several rallies. There was inflow of lot of political workers from outside West Bengal and intensive interactions and mobilisation of people and other political workers.

Despite unprecedented rise in covid-19 cases in the country in April, there was widespread flouting of all covid-19 safe behaviour norms in West Bengal elections. Similar behaviour was witnessed in other four states as well but the campaigning finished in those states in the early phase of current second wave surge. By the fourth and fifth round of polling in West Bengal everyone recognised the utter disaster which this mode of campaigning and rallying was causing. Many big rallies and meetings were cancelled or tuned down or virtually addressed. 

While it is not fair to attribute massive upsurge in the covid-19 cases all over the country which India witnessed in April and May to the West Bengal elections, the prolonged campaign and excessively risky behaviour of political leaders, candidates, party workers, and people in general did put health of people at severe risk.

Campaigning by parties and candidates during the process of elections has serious implications for the safety and health of the person and property of the residents of the area where elections are conducted and also the religious, caste and other social cohesiveness of people.

Provision in MCA with respect to campaigning are few and outdated

Organisation of big rallies (sometimes attended by lakhs of people) offers big leaders the opportunity to sound tall and reach a very large number of people in one place and one time span.

Current MCA regulates only a very limited aspects of large rallies, meetings and marches. It provides for permission to be taken. It also provides for certain traffic related matters to be taken care of. These requirements have been specified only from the law and order viewpoint and at best orderly conduct of electioneering.

Current regulations have no guidelines from the viewpoint of health and general well-being of people and other participants. Current regulations also ignore the fact that digital alternatives have emerged as very effective way of connecting with people and reaching out to them.

Earlier in the days of no television and digital communications, big rallies were perhaps the only way for the leaders to establish direct contact with people. That is no longer the case. The print, television and digital media has reached to the farthest corners of the country and to every single person and household. Today, the videos circulate with such frequency and promptness that it is possible to reach to any and every individual in no time. In fact, the technology has progressed so much that direct interactive sessions with thousands of people can be organised with face to face contact in ways where it is much closer than any available in physical rallies.

In the digital world of today, the election rallies should become passe. These large gathering serve only the purpose of showmanship and nothing more. It is also true that in many such rallies people are brought in by paying them the wages, food and travel expenditure. Very few come out of admiration or for really listening to these leaders. There is no good evidence that attendance in election rallies necessarily translate in the votes. In many constituencies, the candidates, in favour of whom large rallies were organised by big leaders, have lost elections.

The election rallies pose big threat to not only law and order but increasingly to the health and well-being of people. In the days of covid-19 and other infectious diseases, such events put health of all those participating in such rallies to massive risk. This risk has to be avoided.

Election Commission should ban all rallies of more than 100 people

The issue which India needs to discuss and decide today is: Should India ban holding of election rallies, meetings, marches etc. of more than a small number say 100? Is it right time to bid goodbye to this mode of campaigning in elections?

I think there is a good case for the election rallies, marches and meetings of more than 100 people to be literally banned. This is justifiable at least on three major counts:

First, the health risk to people have to be avoided. While it cannot be anybody’s case that the grave health risk posed by the pandemics like Covid-19 will remain forever, yet likelihood of present pandemic risks to remain for some  time is real. Moreover, it is difficult to say that there would be no more viral attacks in future. Large rallies are big invitation to severe health risk. It is difficult to maintain safe conduct for numerous reasons in such large gatherings. From the health point of view, the large rallies, meetings, marches etc. are a clear no-no.

Second, political parties and candidates have effective alternative. With more than half the people of India having smart phones, a large proportion of Indian household can be reached today directly through the phone system.  The legitimate wishes of the political parties and candidates to reach out to their potential electors can be met by campaigning through short video formats (like Tiktok videos), organising digital rallies where the voters can be reached effectively and literally personally in the comfort of their homes and by designing a campaign through other digital media.

Third, doing away with large physical rallies, marches and meetings is good for law and order and avoids corrupting voters. The demagoguery on display in these large gatherings also muddies the peace and tranquillity in the election process. Writing slogans on every wall during elections 25 years back might have been considered absolutely necessary by political parties and candidates to reach to their voters. Banning thereof by Session during the 1990s made our cities and villages clean. There is no one arguing that this ban adversely affected the rights of political parties and candidates to reach out to their voters. Likewise, banning of large rallies will not impact the electioneering at all.

Can Election Commission ban large rallies?

It requires a courageous Election Commission- of the type headed by Seshan to tweak the Model Code of Conduct to do so. It will require three changes in the Model Code.

First, introduce a new clause in the Part I of the MCA. Part I of the MCA deals with general conduct of candidates and parties. This clause A  can be on the following lines:

“No party or candidate shall undertake any campaigning activity which involves gathering of more than hundred people in any meeting, gathering, rally, march or in any other political activity as such events are likely to put the health of the participants, government servants on duty and other persons connected with election process at risk of any viral or other transmission.”

Second, modify the Part II and III which deals with meetings and processions, by inserting a new clause for permitting and regulating rallies/meetings/processions up to the limit of 100 persons to the effect:

“The party or candidate shall inform the District Collector and Chief Medical and Health Officer (CMHO) of the venue and time of any proposed meeting/procession well in time so as to enable the District Collector to assess, with the aid of CMHO, health risk which such proposed meeting/procession poses and necessary arrangements which will be required to be made for ensuring health and safety of all participating persons and the people residing or working in such areas.”

Third, the Election Commission publishes a comprehensive Dos and Don’ts which is circulated to all concerned for due observance and guidance. This publication can provide a comprehensive section to deal with prevention and management of health risk and other related issues.

This kind of change should preferably come by amending the Representation of People Act and bringing an appropriate law. However, the political parties and the Government are unlikely to take such an action and therefore, it is for the Election Commission to do it.

B. DIGILISATION OF BALLOTING

India has been a pioneer in introducing electronic voting machines. These machines use simple electronic circuitry and operate in a non-internet connected mode. That helps in protecting the digital balloting machines from hacking or otherwise being interfered with. There is some possibility of interfering with the simple programming which these machines carry and also some physical tempering in the post polling phase when these machines remain in storage halls. These two possibilities have also been admirably taken care of by the rigorous protocol and process which the Election Commission has followed to ensure the purity of electoral process in India.

The electronic/digital ballot machines have brought enormous gains in the election process. Time in counting votes has been drastically reduced. Assembly elections results mostly get into deterministic mode within three hours of counting; parliamentary elections in about five hours. There are no dispute about the intension of voter which used to lead to massive disputes in the ink-stamp physical ballot paper days. The need for recounting has also practically disappeared.

It is time now to build on these gains and bring in next set of digitalisation reforms in the balloting process.

Move over service voters to digital ballot box

The voters employed in army, para-military forces, police and other such services are given the option to vote by way of expressing their preference on a physical ballot paper. The whole process is extremely tedious and results in only less than 20% of eligible voters casting their votes. Likewise, the officials and employees deployed in the election process get the facility to vote by casting their votes on physical ballots.

For meeting the special circumstances of a fraction of voters, the Election Commission has to get physical ballot papers printed, dispatched by way of post to each individual’s known address, the person concerned has to express his or her preference and then send the same back by postal means and finally these ballots are counted in much the same way when there were no electronic voting machines.

It is easily possible to create a digital ballot box where the concerned service voter could access the ballot paper and, by clicking on whatever his or her preference is, cast his or her vote. The secrecy of vote can be protected by giving only a password access to the voter concerned. An additional layer of security can also be built by linking the casting of vote to a one-time password delivered on the mobile phone linked to the aadhaar number of the voter.

The votes cast electronically by the service voters could be stored in cyber space. On the day of counting, the concerned returning officers of the respective constituencies can access the digital ballot box and assign the votes to the respective candidates.

The facility of voting through the digital voting machines could be extended to Indian staff working abroad in Indian missions etc. in a similar manner.

This switch over to digital voting for the service and other eligible voters would be positive and inclusive for India’s democracy and complete the transformation of physical voting system into electronic voting system for all the voters in the country.

Optional digital voting for all voters

Election Commission has taken excellent measures in bringing down crowds at the polling stations of both voters and workers of the candidates. Typically, there are no more than 1000 voters in a polling booth and the representatives and workers of the political parties have been pushed at quite a good distance from the actual booth. Distribution of voting chits before the elections to all the voters has also helped in easier location of the names and other details for the voters on the day of voting which smoothens the process of actual casting of votes.

The entire process of casting votes in a polling booth, except the electronic voting machine, is however still physical. The presiding officer and three/four polling officers who have different duties assigned to them in the booth- locating the name of the voter in a physical printed roll, getting the roll signed, placing the indelible ink etc. all the processes are still manual and physical.

In addition to the manual votes casting process, the voters have no option to vote electronically today. Every voter has to go to the booth, wait in line (in many cases there are long lines) and then cast their votes in the manual cum electronic process noted above. There are definitely many voters who do not go to cast their votes to avoid this kind of inconveniences.

In times like the present one, the physical process of casting votes has become a health hazard, more so on account of the risk of spreading and contacting Covid-19. There is no guarantee that such a risk will disappear after the present episode of Covid-19 subsides.

The digital technology has grown massively in last few years. Today, citizens avail many services like banking, insurance, government benefits etc. in a fully secure manner using digital medium on their computers, laptops and even mobile phones. The Government is also using digital media to register for services like Covid-19 vaccine digitally. In fact, the policy preference in many of these cases is to go for exclusively digital mode.

It is time, the Government, the Parliament and the Election Commission take the big bold step of permitting digital voting in addition to the physical voting. Such a digital option can allow voters to vote from the comfort of their home or offices or anywhere else by logging into a secure constituency digital voting system created by the Election Commission on the lines described above. For ensuring that no person other than the voter concerned votes, a face capturing system can be built in the device which will also obviate the need of using indelible ink. The voting digital system would ensure that no same face votes twice.

This would reduce load on the physical polling booths. A smaller but absolutely necessary measure is to transform the physical process in the polling booths to the electronic process. The polling officers can carry election commission’s ipads/ laptops to the polling booth to carry out all the processes which they do today manually. The indelible ink can be replaced by the face capture, or capturing finger prints or an aadhaar linked verification process or a combination of these methods.

CONCLUSION

These two reforms-

First, replacing the physical rallies, public meetings, marches etc. of more than 100 persons by digital campaigning and

Second, replacing the existing manual processes in casting of votes (service voters voting by physical ballots and election process inside the voting booth being still substantially manual except the voting machine)

by digital processes described above would modernise and the avoid health risk.

In addition, time has come to give the voters option to cast their vote by digital means instead of physically going to the electoral booth.

This would also complete the process of  digitalising Indian elections. This would also be in line with the needs of changing times and eliminate health risk.

 

SUBHASH CHANDRA GARG

NEW DELHI 31/05/2021