Report on the Mid-Term General Elections in India 1968-69 Volume 1 (General)

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REPORT

ON THE

MID-TERM GENERAL ELECTIONS IN INDIA

1968-69

VOLUME I (GENERAL)

ELECTION COMMISSION OF INDIA 1970 Inland

Rs. 1.20

Foreign 2 sh. 10 d. or 44 cents.

REPORT

ON THE

MID-TERM GENERAL ELECTIONS IN INDIA

1968-69

VOLUME I (GENERAL)

ELECTION COMMISSION OF INDIA 1970

POTTED BY STHE GENERAL MANAGER, GOVERNMENT MINTO ROAD, NEW DELHI

OF

INDIA

PRESS

K'B-1

F \6-i

PREFACE This Report which deals with the general elections in 1968-69 to a number of Legislative Assemblies (Haryana, Punjab, Uttar Pradesh, Bihar, West Bengal, Nagaland and Pondicherry) and also with the Presidential and Vice-Presidential elections in 1969 consists of two volumes, the narrative and the statistical. Volume I (General) is a comparatively short one but Volume II (Statistical) contains detailed statistical information on a number of subjects some of which are new and were not incorporated in any of the previous reports. A comparative study of the results of the general elections of 1968-69 and the 1967 general tlections shows that there was a small decrease in the percentage of votes polled at the elections of 1968-69. It came down from 57.93 per cent during the general elections of 1967 to 57.48 per cent. One redeeming feature however was that there was a sharp fall in the percentage of rejected votes. It had come down to 2.94 per cent from 5.78 per cent during 1967. This shows that our voters are becoming mature and conscious about the importance of the vote. •'; The basic statistical data were handed over to the Computer Centre of the Cabinet Secretariat and the format of tbe Tables was prescribed by the Commission. The Computer Centre tabulated the material through the computer and the printing of the report was entrusted to the Government of India Press, New Delhi. For the conduct of these elections, the principal credit goes to the huge army of election staff numbering several lakhs, such as, enumerators, inspectors, supervisors, assistant electoral registration officers and electoral registration officers, and polling officers, presiding officers, assistant returning officers, returning officers, district election officers, joint/deputy/assistant chief electoral officers and Chief Electoral Officers at the State level and the Under .Secretaries, the Secretaries and the Deputy Election Commissioners of the Election Commission and the election staff, gazetted and non-gazetted not excluding class-IV employees in the States as well as in the Secretariat of the Commission. It is not practicable to mention the names of all

these four or five lakhs of officers and employees and it will be aa invidious distinction to pick and choose and mention only a few. This much may be said that this work was a grand co-operative venture in the completion of which everybody concerned, by and large, offered his very best. I take this opportunity to express my sincere thankfulness to the various political parties and their leaders and representatives and the candidates who fought the elections for the co-operation received from them. Lastly, I shall be failing in my duty if I do not acknowledge with thanks the help and assistance received from the officers and staff of the Posts and Telegraphs Department, the Press Information Bureau, the All India Radio, the Computer Centre, the Government of India Press, New Delhi, and the Indian Airlines and the Civil Aviation Department. S. P. SEN-VARMA, Chief Election Commissioner of India. New Delhi, the 25th February, 1970.

PRELIMINARY The Fourth General Elections of 1967 brought in its trail a wind of swift changes in the political atmosphere of this country. That wind is still blowing sometimes with the velocity of a storm and at other times at lower speed. Perhaps in a developing democracy as ours is, that is not quite unexpected and may even be regarded as the teething trouble of a healthy growing child. When the results of the Fourth General Elections of 1967 were declared it was found that the Indian National Congress which had till then been the dominant political party throughout India had lost its majority in a number of State Legislative Assemblies and its majority in the House of the People had also drastically dwindled. DEFECTIONS This not only resulted in the formation of non-Congress governments in a number of States but, as there was no single party with absolute majority, the elected representatives of the people in a number of State Assemblies forgot the election promises and pledges held out to the electorate at the time of election by and on behalf of the parties by whom they were sponsored and started defecting in large numbers in quick succession from their respective parties. The elected representatives forgot that defection and re-defection from one party to another is not paying in the long run, and more often than not it acts as a boomerang hitting the person by whom it is resorted to. The moral consequences of defection and floor-crossing are sometimes far-reaching and serious. This is not the place to discuss in detail about defection. A Committee has already gone into this question and made a number of recommendations in this behalf. But it may be pointed out here that even a world renowned statesman like Winston Churchill was never fully trusted by the Conservative party of Great Britain because he crossed the floor three times. He was at first a conservative, then he became a liberal and then in the early twenties of this century he again became a conservative. In spite of his outstanding and versatile genius, he was always regarded with distrust and suspicion in the higher echelon of the

Conservative party. As one of his biographers, Robert Rhodes James Observes in the Chapter headed "The Politician" of the books "Churchill: Four Faces and the Man" at pages 65-66— "By the tune of Churchill's entry into ministerial office in December of 1905, he had changed parties once, and had incurred deep dislike on this account. To a very exceptional and remarkable extent, Churchill stood apart from party in the sense that he had no permanent commitment to any. Few men could indulge in the exchange of party acerbities with greater vigour, yet he always regarded party as essential in the sense that the horse is essential to the rider. Perhaps, unhappily, modern political confederations resent such attitudes particularly as Churchill's shifts of allegiance were never unconnected with his personal interests. Parties like to use men; they intensely dislike being used. 'To his imperious spirit,' as Gardiner commented in 1911, 'a party is only an instrument.' The lines of Pope that he applied to his father were equally applicable to him: 'Sworn to no master, of no sect am I; As drives the storm, at any door I knock.' This lack of total commitment to any party, manifested by his perennial interest in what Asquith once called 'strange coalitions and odd regroupings', goes some way towards explaining many of the vicissitudes of his career after 1905. Churchill's relationship with the Conservative party was stormy almost throughout his career. Between 1901 and 1904 he was a turbulent rebel within their ranks; for the next decade he was among their most vigorous opponents; in the Lloyd George Coalition between 1917 and 1922 he was a colleague, but never viewed with enthusiasm by the Conservatives; in 1924 he rejoined the Conservative party, but broke with the leadership in 1930 and henceforward, until war broke out in 1939, was once again a rebel. It was not altogether to be wondered at that, as Churchill wrote in the late 1920s, 'the Conserva-

tives have never liked nor trusted me'. The feeling was reciprocated. In 1940 their mutual interests brought them together in what was something considerably less than a love match, and, to the end, the Conservative party and Churchill viewed each other with wariness." i think, our defecting legislators should bear the above sayings well in mind. Two thousand and three hundred years ago, Plato in his "Republic" detailed four virtues as essential for the guardians (the legislators and rulers) of the State. They are—wisdom, courage, temperance and justice. In the modern industrial and techno-electronic age when evils and temptations are much more numerous and powerful, these cardinal virtues appear to be absolutely essential for all men holding responsible offices and positions. COALITION GOVERNMENTS AND POLITICAL PARTIES One of the principal causes for defections in a number of States after the 1967-General Elections was undoubtedly a desire for personal power and gain. No single party commanded an absolute majority in some of the States and coalition governments were formed; and this in turn accentuated the evil of defection. Practical experience of life supports the view that an administration formed by a coalition of parties is usually a weak administration, not merely because the combination is unstable but because men whose professed principles differ are likely to be entangled in inconsistencies or driven to unsatisfactory compromises. The number of political parties is a major factor for this unstable state of things. The total number of political parties registered in the Secretariat of the Election Commission is at present 75. Here I am reminded of an interesting incident which took place shortly before the mid-term elections in Bihar. I met the representatives and leaders of all the political parties functioning in Bihar in the Conference Room of the Secretariat Building. It was a fairly large gathering. In the course of the discussions about various aspects of elections, one gentleman, I have exactly forgotten his name now, stood up and informed me that he would like to form a party in Bihar and the name of that party would be "The good men's party". This shows that many people in our country even though they try to dabble in politics have not really understood the nature and implications of 3 party system;

in a representative democracy. With such a lirge number of potties functioning in the country, naturally it sometimes becomes very difficult for a single party to form any government by itself and coalition governments and united front governments sometimes become a necessity. But as pointed out above, coalition or united front governments cannot, by its very nature, always be stable government and cannot pursue any progressive policy with firmness. It has always to proceed on the basis of compromise and patch work. It may not be out of place to mention here parenthetically that politics is a very difficult as well as dangerous art because it is concerned with the power of the State, the supreme human association, and the judicious use of that power in the interests of the governed. It therefore requires immense preparation and intense training. As has been well-observed— "Political education is, in the first place, an education in the possible and the expedient; in the second place, it is an education in the use of power and authority and in the risks of power; in the third place, it is an education in practical ingenuity and versatility." —[C. A. Wilson, "Foundations of Local Government", p. 18.] A political party in a representative democracy can be a powerful iorce for good as well as evil. A party can subserve truly national well being and national interests if it lives by the principles for which it stands and if its leaders do not hesitate to recognise whatever may be sound in the views of the opponents. As Viscount Bryce said in his "Modern Democracies"— "The more a party lives by the principles for which it stands, the more it subordinates its own aims to the strength and unity of the whole people, and the more it is guided by men who can recognise whatever may be sound in the views of their opponents and prevent opposition from passing into enmity, the better will it serve the common interests of its country." Therefore the remedy against defection and against unstable coalition and united front governments is to reduce the number of political parties to a few well-knit, well-organised and well-compacted parties so that a party or a few parties in opposition may legitimately

expect to gain power and control of government at some future time. It should not be forgotten that in a democracy no party can expect to remain in power for all time to come. Perhaps that is neither good for that party nor for the people in general. This is an aspect to which all our right-thinking men and leaders of public opinion should devote their attention. MULTIPLICITY OF PARTIES AND VOTERS' CONFUSION Another serious defect of the existence of a large number of political parties is that the voters become confused because it is very difficult for them to distinguish between the relative merits and demerits of the principles, policies and programmes which are presented before them by the representatives of a large number of parties. The differences in the principles, policies and programmes of a number of parties are slender indeed. Therefore, for the interests of the voters also a large number of political parties is definitely a great handicap. In this connection, I am reminded of a poem written by E. M. Forster as long ago as in 1923. The name of the poem is "A Voter's Dilemma". It gives a true picture as to how a voter's mind worked even in Great Britain when the differences between the Conservative and the Liiieral parties were not very sharp. The poem is as follows:— "A VOTER'S DILEMMA Nice Mr Grey and Mr Brown Have recently arrived from town, Their country's interests to promote. I wonder how I ought to vote? Each is so pleasant and so rich I scarce remember which is which. Each has a wife and a cigar, Two daughters and a motor-car. Each wears a watch-chain, and of course, Each has a Military Cross, Won, during the Allies' advance, Somewhere behind the lines in France. And shares in steel and poison-gas, And oil, and coal, so that-alas!—

6 I scarce distinguish what they say, Nice Mr Brown and Mr Grey. 'Our difference' (they say to me) 'Lies in our fiscal policy'. Mr Brown's a Conservative, And certain products that arrive From certain countries, he would tax — I think he mentioned sealing-wax — While Mr Grey's a Liberal, And wouldn't tax such things at all. Each wears a watch-chain, and of course I wonder how I ought to vote? For if to either I impart The word that's graven on my heart, Nineteen-fourteen, they smile and say "We do not want a war today, We don't want war as yet; our aim Is (save for sealing-wax) the same. We're merely wanting to get in, And then-why then we can begin.' And behind Mr Brown there stands, With glittering prizes in his hands, And jolly words about the dead, The Lord High Galloper Birkenhead. And behind Mr Grey I see Great Churchill of Gallipoli, Who did immortal glory win Through Kolchak and through Denikin. Saved Antwerp, pacified the Turk, And now is needing further work. And thus, whichever way I vote, I get into the same old boat, And Mr Brown and Mr Grey Are rowing it the same old way — The way of blood and fire and tears And pestilence and profiteers —

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The way that all mankind has been Since nineteen hundred and fourteen. Nice Mr Grey! Nice Mr Brown, Why trouble to come down from town?" The sarcasm of this poem is indeed hard-hitting! MATURITY OF THE ELECTORATE The 1967-General Elections also proved for the first time that the Indian voter was reaching maturity and could no longer be taken for granted by any political party, however well-established and wellentrenched it might be. I may point out that the Indian voters, although they may be illiterate, possess a strong fund of commonsense. Before casting their votes, they consider and calculate carefully for whom they would vote. I may narrate here one instance- Only three days before the commencement of the poll in Haryana in May, 1968, I was returning to Delhi after visiting a number of towns and villages in Haryana. I was coming along a road from Gohana at about 4 p.m. I got down from the car in a village whose name I did not know and without disclosing my identity walked straight into the fields where a number of persons, men nd women, were thrashing the harvested corps. I talked to a number of elderly persons present there. They told me in the course of their talk that on the night of the next day all the villagers would meet and discuss among themselves about the relative merits of the candidates and then come to a decision as to the candidate for whom they should cast their votes. Our voters are thus intelligent and full of commonsense. They can no longer be taken for granted. They may give a party a chance on one or two occasions, but if the performance of the candidate elected by them does not come up to their expectation, then, on the next occasion they would not hesitate to exercise their choice in favour of a different candidate. One should therefore be very cautious in relying upon their electoral support. This is a point which must not be lost sight of. Here, I may mention another interesting incident of my own experience. Quite some time after the general elections of 1967, I asked one voter as to whether he would have any objection to tell me for whom he had voted. The voter, an illiterate man but very

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intelligent, told me "sahab apke pas to sach bolunga— main gaya tha to sahab ke gari men lekin vote dia sahab ke liye (Sir, I shall not utter falsehood before you. I went to the polling station in the car of Mr but I voted for Mr )". I am not divulging the names for obvious reasons. This should also serve as an eye-opener to those candidates against whom allegations are made that they do not hesitate to offer bribes to the voters and also convey them free to and from the polling stations. What our voters require is proper guidance on the right lines so that they may cast their votes in favour of the candidate of their own free choice after listening to the discussions and debates of the various political parties and candidates. They are very sensitive and have a sense of self-respect also. If they are treated badly or if they feel that they are being treated with indifference, then they will be most reluctant to cast their votes in favour of the candidate who according to them has not meted out proper treatment to them. This is my personal experience gained by free mixing with the voters in the rural areas of this vast country from the interior villages of Kashmir valley to those in Kanyakumari and from the interior villages of Nagaland to those in Maharashtra. MID-TERM GENERAL ELECTIONS OF 1968-69 One evil effect of defections and re-defections was that the Governments that were formed could not last long and President's Rule was imposed under article 356 of the Constitution in Haryana, Punjab, Uttar Pradesh, Bihar and West Bengal and mid-term general elections had consequently to be held for the constitution of the Legislative Assemblies in these States before the termination of the President's Rule. The mid-term general elections to the Haryana Legislative Assembly were held in May, 1968 and those to the Legislative Assemblies of Punjab, Uttar Pradesh, Bihar and West Bengal were held in February 1969. In addition to these five mid-term general elections in which more than one-third of the entire population and electorate of India were involved, general elections in the normal course were held at about the same time, that is to say in February and March, 1969 in the State of Nagaland and in the Union territory of Pondicherry. These mid-term elections gave an opportunity to the Election Commission to try a number of innovations.

MEETINGS WITH POLITICAL PARTIES AND CODE OF CONDUCT In the first place, before the general elections to the Legislative Assemblies of Haryana, Punjab, Uttar Pradesh, Bihar, West Bengal, Nagaland and Pondicherry, I personally had convened meetings in each State of the leaders and representatives of various political parties functioning in that State. I placed before them a code of conduct for their observance during the elections so that election campaign and propaganda might be carried on in a peaceful atmosphere. Public discussions as to the issues involved in an election have always been regarded in a democracy as more important than even the vote itself. As has been observed by a well known author, Prof. Delisle Burns in his book "Democracy" at pp. 120-121— "The actual voting is clearly less important, as Tocqueville showed, than the discussion which precedes the vote; for this discussion defines policy, illuminates the situation and the forces available for dealing with it and should make all citizens more willing to live in peace with those who disagree with them. It follows that a vote taken in a dictatorship, without preliminary discussion of opposing views and without free criticism of authorities, is not at all the same as a vote in a democracy. Votes under dictatorships are in no sense democratic. They are only cheers for whatever the government proposes, which do not at all imply any understanding of the proposal. The vote then, in a democracy is an expression of an opinion, right or wrong, wise or foolish, following upon free discussion. Public discussion between those of opposing opinions is assumed to have given the vote its quality of intelligent consent.". This free discussion of opposing views is an essential and inherent characteristic of democracy. As Prof. Ernest Barker observed in his book "The Citizen's Choice"— "The thing I mean is government by discussion—government by the free competition of different political ideas, by the process of debate between those ideas, by the method of adjusting competition and debate in a compromise whicfr reconciles differences. No form of government can be true

10 to the process of social thought unless it proceeds on that basis. My fundamental belief is a belief in government by discussion—free, patient, rational discussion. This to me is the highest form of democracy, when a free people, freely thinking its different thoughts, freely expresses them by different parties, freely debates them in a freely elected parliament, and freely reconciles them by the free inter-play and cooperation of parties—government and opposition, cabinet and anti-cabinet—in such a parliament. Government by discussion, by debate, by dialectic, this to me is the true democracy; and it is a thing which is inevitable when the mind of man, duly educated to his high nature of a rational being, is acting in its true and natural mode of operation. You may say that I believe in government by dialectic rather than in government by Demos. I reply that the Demos to which I look forward will necessarily love dialectic, the grand dialectic of public debate. 'Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.' So said Milton. I can say nothing better, or as good; and I have nothing more to say." Or as Justice Holmes of the United States Supreme Court observed in his minority judgment in the famous case of The United States v. Schwimmer in 1929 when he was 89 years of age— "If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we h a t e . . . . I would surest that the Quakers have done their share to make the country what it is.. . .1 have not supposed hitherto that we regretted our inability to expel them because they believe more than some of.us.do in the teachings of the Sermon on the Mount." Thus, free discussion being the life-blood of a democracy it is absolutely necessary and essential that discussions during election campaign and propaganda should be carried on by candidates and political parties hoirlintr opposing views in a most peaceful and orderly manner. Therefore a code of conduct for observance by

11 candidates and the political parties was prepared by the Election Commission. I made a personal appeal to the representatives and leaders of the political parties in the meetings in which I met them in the various States and handed over to them the printed copies of the code of conduct entitled "Role and Responsibilities of Political Parties during Elections: An appeal to political parties for the observance of a minimum code of conduct during election propaganda and campaign." The code is reproduced below:— "ELECTION COMMISSION OF INDIA" Role and Responsibilities of Political Parties during Elections An Appeal to political parties for the observance of a minimum code of conduct during election propaganda and campaign

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Political parties are inevitable in the working of any system of representative government. No free large country has been without them. No one has shown how representative government could be worked without them because there must always be differences of approach and opinions on public and political questions. Walter Bagehot observed in his 'English Constitution, "The House of Commons lives in a state of potential perpetual choice : at any moment it can choose a ruler and dismiss a ruler. And therefore party is inherent in it, is bone of its bone and breath of its breath."

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In a large country with a vast population like India, df there were no party organisations, by whom would public opinion be roused and educated to certain specific purposes? Each party, no doubt, tries to present its own side of the case for or against any principle, doctrine, or proposal, but the public, the electorate, cannot help learning something about the other side also, for even party-spirit cannot separate the nation into watertight compartments; and the most artful or prejudiced party spell-binder or newspaper has to recognise the existence of the arguments he, is trying to refute. Thus, party strife is a sort of education for those willing to receive instruction. As Bryce observed in his 'Modern Demo-

12 cracies'—"The parties keep a nation's mind alive, as the rise and fall of the sweeping tide freshens the water of long ocean inlets." Hence the importance of election propaganda and campaign specially before a general election. But if the parties do not observe certain minimum standards of conduct and behaviour during election propaganda and campaign whereby they try to instruct, inform and educate the voters, then the value of election propaganda and campaign as a democratic process of rousing public opinion may be reduced to nil. The Election Commission of India, therefore, appeals to all political parties to observe the following rules of conduct in connection with the ensuing election, namely:— (1) As election means free choice after discussion, the procedure of violence is diametrically opposite to the democratic process which is a process of free discussion; therefore abjure violence and violent methods in any form in the course of election propaganda and campaign. (2) Whether election propaganda or campaign is carried on by means of meetings and processions, speeches and slogans, posters and placards or by any other means— (a) make it a point not to use words or language wlhich may incite others to violence; (b) do not by any means create mutual hatred or tension between different castes and communities, religious or linguistic; (c) confine your criticism of other political parties to their principles, policies and programmes, their past record and work, but eschew criticism of all aspects of private life, unconnected with the public activities, of the leaders and workers of other political parties. Do not indulge in criticism of other parties and their leaders and workers based on unverified allegations or distortions; (d) do not make any appeal to the electorate on th& ground of religion, race, caste, community or language.

13 (3) Never use any temple, gurdwara, mosque, church or any other place of religious worship as a place for election propaganda and campaign. (4) Avoid scrupulously all activities which are corrupt practices and offences under the election law, such as the bribing of voters, intimidation of voters, personation of voters, canvassing within 100 metres of a polling station, holding public meetings during the period of 48 hours ending with the hour fixed for the close of the poll, transport and conveyance of voters to and from polling stations. (5) Let not your members, supporters, agents and employees create obstructions or disturbances in, or break up, meetings, processions, etc. organised by other parties or individual candidates. Do not lead any procession along, or hold any meeting in, places where processions and meetings are being led or held by any other party or individual candidate. The observance of these minimum, rules of conduct and behaviour will not only ensure free and fair election which is the halfmark of democracy but also greatly reduce the risk of the election of your candidates being declared void in election disputes. S. P. SEN-VARMA NEW DEmr, 26th September, 1968.

Chief Election Commissioner of India."

14 I am glad to note that the political parties and the candidates by and large kept their promise which they made to me in the meetings for observance of the code with the result that the political campaign, and propaganda, with a few minor exceptions here and there, were carried on in a peaceful atmosphere and there was hardly any untoward incident on the date or dates of poll except in a few cases. I take this opportunity of expressing my sincere thankfulness to the leaders and representatives of the various political parties and candidates who fought the mid-term elections. MEETINGS WITH ELECTION OFFICERS AND ELECTORATE la the second place, I made it a point to meet the district election officers, the returning officers and other election officers as well as the electorate as far as possible in Haryana, Punjab, Uttar Pradesh^ Bihar, West Bengal, Nagaland and Pondicherry. In each of these States I met the officers either in batches or in single meetings and gave them detailed instructions regarding the conduct of elections and their duties and functions in elections. In West Bengal, I visited a number of villages in the Sundarbans only 3 miles from the Bay of Bengal. In Nagaland, I personally met the gaonburas (village elders) in a number of villages. The gaonburas of Nagaland promised to me that they would try to make the elections a complete success by exhorting as many electors as possible to goto the polling stations to cast their votes. I am happy to mention that they kept their promise. The poll in Nagaland was conducted in the most peaceful atmosphere; and not only that, the turn-out of voters at the polling stations there was the highest ever recorded in the election history of India. In quite a number of polling stations more than 90 per cent of the voters turned out to cast their votes. This was indeed a proud achievement and does great credit to the electorate of Nagaland. I visited also a number of villages in Pondicherry. There also the election was held in a most peaceful manner. During the course of my tours I met the electors in Haryana, Punjab and Uttar Pradesh also. RADIO TALK In the third place, I also gave a radio talk from the Delhi station of All India Radio just on the eve of the elections on the 1st February, 1969. The talk is reproduced below because it gives th& broad figures and statistics relating to these mid-term elections ire some great detail:—

15 "My Feilow Citizens, You are aware that the poll in West Bengal, Bihar and Punjab will be taken on a single day, the 9th February, the poll in Nagaland on the 6th, 8th and 10th February and the poll in Uttar Pradesh in 420 constituencies on the 5th, 7th and 9th February and in the remaining five constituencies of the three Himalayan districts of Pithoragarh, Chamoli and Uttar Kashi on the 20th February. The magnitude of the task can be gauged by a few facts and figures. The total electorate in these five States this time will be 10,15,93,314 as against 9,65,66,616 on the last occasion— an increase of more than 50 lakhs. The electorate in Nagaland is the electorate in the two districts of Mokokchung and Kohima. Forty members of the Nagaland Legislative Assemly will be chosen by this electorate from the 40 assembly constituencies and the remaining 12 members of that Assembly allotted to the district of Tuensang will be chosen by the 35 members of the Regional Council for Tuensang. The total number of assembly constituencies in these five States is 1,167; Uttar Pradesh—425, Bihar—318, West Bengal— 280, Punjab—104 and Nagaland—40. These are all single—member constituencies. In Uttar Pradesh, West Bengal and Punjab the number of contesting candidates shows a little decline: Uttar Pradesh—2,871 as against 3,014 in 1967, West Bengal—1,019 as against 1,058 in 1967 and Punjab—472 as against 602 in 1967. In Bihar and Nagaland the number of contesting candidates is larger this time; Bihar—2,150 as against 2,025 in 1967 and Nagaland—144 as against 73 in 1964. In 1964 there were as many as 14 uncontested returns in Nagaland but this time there is none. In the other four States of West Bengal, Bihar, Uttar Pradesh and Punjab also there is no uncontested return. The total number of polling stations in these five States will be 1,10,554 as against 1,01,221 on the last occasion, thus recording an increase of more than 9,000. This increase is due to two main factors, namely, an increase in^he number

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16 of electors as just now pointed out and the reduction of the maximum distance from an elector's residence to his polling station from 3 miles to 2 miles. At each polling station, the polling personnel will consist of four persons, namely, one presiding officer and at least three polling officers; in a few cases the number of polling officers will be four instead of three. Thus the total number of polling personnel including reserves will be about 4,50,000. Democracy as a political ideal represents certain noble principles and certain high moral and spiritual values, such as those, laid down in the Preamble to the Constitution of India, namely, JUSTICE, LIBERTY, EQUALITY and FRATERNITY. But in practical terms as a form of government in action, the most obvious sign of democracy in any community is the vote. The very first practical step to translate into reality the noble principles and high values which democracy represents is the conferment of the right to vote, on the citizens in accordance with the rule of "one man, one vote and no more than one vote." Therefore, unless the vote, the right to vote, is conferred upon every citizen, I mean every adult citizen, democracy as a practical political creed remains incomplete, defective and unfulfilled. It is for this reason that the framers of our Constitution took a bold step when by article 326 of the Constitution they introduced adult suffrage as the basis of the system of government in this country. By their past performance the People of India have amply proved that they can no more be taken for granted. The question therefore naturally arises, what is the vote. The vote in a democracy is not merely putting in secret on the date of poll a mark on a ballot paper or where, as in Nagaland, the balloting system prevails, inserting in secret on the date of poll a ballot paper into the ballot box, in favour of a candidate; the vote in a democracy is and in any case should be, an expression of an opinion on any issue of public policy formed by the voter by listening to or participating in free discussions on various issues of public

policy relating to the governance of the State. On the same issues of public policy different views and opinions may be held by different political parties and candidates and by means of public discussions the voter is enabled to form his opinion on any such issue. This opinion he translates into practice by casting his vote in secret on the polling day. Vote in a democracy is thus not a mere mechanical thing. It is an expression of opinion, right or wrong, wise or foolish, following upon free public discussions between those of opposing views and opinions. This is why more than 130 years ago, the noted French publicist, Alexis de Tocqueville said, the actual voting in a democracy is clearly less important than the discussion which precedes the vote; for this discussion defines policy, illuminates the situation and the forces available for dealing with it and tends to make all citizens more willing to live in peace with those who disagree with them. Therefore, freedom of thought and discussion forms the very basis of elections in a democracy. But this freedom of thought, expression and discussion may be interfered with in a variety of ways, by bribing the electorate, by exercising undue influence over them, by using force, violence, threat or intimidation in public meetings and on the polling day, or by arousing their passions and prejudices by an appeal to their narrow caste, communal, tribal or religious sentiments or by making false and baseless allegations against the private and personal character and conduct of a candidate and by other corrupt and immoral means and methods. Those who indulge in these nefarious and sordid activities and corrupt practices for their selfish ends are veritable enemies of democracy. Edmund Burke adopting the language of Lord Coke, in relation to Sir Walter Raleigh, described Warren Hastings as a "spider of hell". I leave it to you, my fellow citizens, to consider and decide whether the same epithet may not be applicable to those who try to debase, corrupt and demoralise the electorate and thereby undermine the very foundation of democracy and bring about the total degradation of the entire community. Free, fair and pure election becomes, under the circumstances, well nigh impossible. A heavy responsibility therefore, lies upon the citizens, the electors, the political parties and the

18 candidates. Unless all these agencies are determined to make elections peaceful, free, pure and fair, even the best efforts of the Government and the Election Commission and the most comprehensive provisions of the law cannot achieve much. It may be mentioned here that in the United Kingdom during the last 58 years, since 1911, there has not been a single election petition on the ground of corrupt practices which have been completely eliminated. / *" Friends, all steps have been taken, all arrangements have been made and the stage has been set, for a free, fair and pure election. Elaborate instructions and directions have been issued to all election officers to behave in the performance of their election duties in the most impartial, non-partisan and neutral manner without fear or favour. For this purpose I undertook extensive tours of each of these five States and met across the table all District Magistrates, returning and assistant returning officers and other election officers too. I have warned them that if any lapse happens on the part of any election official, then, he will be visited with the direst consequences. I had also the privilege of meeting the leaders and representatives of all political parties and placed before them a short code of conduct for observance. At this supreme hour of trial I therefore appeal in all humility and with all the earnestness and emphasis I command—I appeal in the name of the People of India—to all citizens, all electors, all political parties and all candidates to help maintain and uphold an atmosphere of peace, purity and freedom wherein no violence, threat or intimidation in any shape or form will be practised either in election meetings or on the day of the poll. The voter himself is to rise up to the occasion- He must not allow himself to be cowed down by violence, intimidation or threat—those forces of evil, darkness and ignorance. He must not be tempted by illegal offer of money or other illegal gratification. He must not allow himself to be pressurised by undue influence. He must not be guided by narrow sentiments of caste, community, religion or tribe. He must not use ony free convevance on the dav cf the poll. Let him stand fearless with his head high and exercise his voting right according to his

19 own free choice and decision. If he fails and falters, the future will be dark and bleak and we shall be unfit for the freedom achieved after a long-drawn hard struggle. A famous British statesman of the eighteenth century, St. John, Viscount Bolingbroke uttred a note of caution and warning which we should do well to bear in mind at this hour. He said,— "A wise and brave people will neither be cozened or bullied out of their liberty, but a wise and brave people may cease to be such: they may degenerate. A free people may be sometimes betrayed; but no people will betray themselves and sacrifice their liberty unless they fall into a state of universal corruption vice and baseness." May Bharat Bhagya Vidhata, the Dispenser of India's destiny, the Supreme Dispenser of the destiny of mankind, nations and individuals crown our efforts for a free, fair and pure election with success so that India, this ancient land of our dream—this land which is replete with the memories of the past extending over thousands and thousands of years— memories of fulfilment and failure, of progress and regress and of prosperity and poverty—may be made safe for democracy, that supreme unifying principle of mankind, thereby ushering in an era of peace, fraternity, progress, prosperity and happiness. JAI HIND" OTHER INNOVATIONS There is a number of other innovations relating to details in the conduct of elections as mentioned below:— (1) The maximum distance between a polling station and a voter's residence was reduced to two miles. In many cases it was not more than one mile. This no doubt required an increase in the number of polling stations as well as an increase in the number of presiding and polling officers, but the additional cost (which was not much) involved in this process was more than offset by the beneficial results. Because of this reduction in distance, use of vehicles for carrying voters was definitely on a lower scale. In a bye-election in May

20

1969 I personally visited a number of polling stations in Uttar Pradesh from morning till the evening with the representatives of the political parties by whom candidates were set up and we could not find in the rural areas a single motor taxi or other motor vehicle carrying voters to the polling stations although the roads were very good and the number of polling stations we visited was between 30 and 40. Encouraged by the results, the Commission has taken a further decision in this regard in consultation with the Chief Electoral Officers of the States and Union territories. The decision is that in all future elections the maximum distance between a voter's residence and a polling station should be two kilometers (1£ miles) and not two miles. This will, it is expected, further reduce the use of vehicles in elections. As long ago as in 1861, John Stuart Mill observed in his 'Representative Government' as follows:— "The polling places should be so numerous as to be within easy reach of every voter; and no expenses of conveyance at the cost of the candidate, should be tolerated under any pretext." (Chapter X—'Mode of Voting'). (2) Another innovation which was tried on a large scale with t)he utmost success was that the presiding officer of every polling station should sign on the back of every ballot paper before it was issued to the voter. Formerly, complaints used to be received in the Commission that after the close of the poll and before counting sometimes spurious ballot papers were inserted into the ballot boxes while they were in the custody of the presiding officers or of the returning officers. After the introduction of this innovation such complaint has been eliminated practically entirely. To ensure that there remains no signed ballot paper unused after the close of the poll, strict directions have been given to the presiding officers that they should sign at a time only fifty to one hundred ballot papers according as the number of voters standing in the queue in the polling station requires so that there may not be left over any signed ballot paper which has not been used at the poll. (3) By a direction the presiding officers were required to shuffle the ballot papers at intervals of about every two hours during the polling period so that the serial numbers of the ballot papers would

21 be completely changed as a result of such shuffling. Because of theadoption of this procedure it is no longer possible for any polling agent present at a polling station to connect any ballot paper to any particular voter. The identity of voters in this way has been rendered almost impossible. (4) Elaborate instructions were given to the returning officers as to scrutiny of nomination papers and counting and recount of votes. This was- done by written instructions and directions and also by meeting them across the table in batches in the various States. I sometimes alone or with the Deputy Election Commissioner or the Secretaries visited all these seven States and discussed with them the problems that generally arise at the time of scrutiny and at the time of counting. It was impressed upon the returning officers that if at the time of scrutiny there was any doubt as to the validity or otherwise of a nomination paper, then the benefit of the doubt should invariably be given to the candidate concerned and the nomination paper should not be rejected in such a case. They were told that this was because improper rejection of a nomination paper was much more serious than improper acceptance of one. Under section 100 of the Representation of the People Act, 1951, the moment it is proved that a nomination paper was improperly rejected, then without proof of any other fact, the High Court trying the election petition is bound to declare the election void. But in the case of an improper acceptance, the case is not so stringent because where the allegation is that a nomination paper has bten improperly accepted, then besides proing this improper acceptance as a fact, another thing also has got to be proved, namely, that the result of the election has been materially affected by such improper acceptance. I had long meetings with all the returning officers of Haryana, Punjab, Uttar Pradesh, Bihar, West Bengal, Nagaland and Pondicherry. One effect of this was that the number of rejections of nomination papers Was very much less this time, (5) Detailed instructions were given to the returning officers about counting and recount of votes. They were specifically told as follows:— "Your duty is to count accurately the votes and you have therefore always the right to order your staff to recount the votes. [See R. vs. Bangor (1886) 18 Q.B.D. 354]. But the

22

right of a candidate to demand a recount under rule 63 (2) does not mean that recount can be granted for mere asking. It has been held that the party demanding recount has to make out a prima facie case that the return was not accurate and recount is necessary in the interests of justice. [See Subba Rao vs. K. B. Reddy A.I.R. 1967 A.P. 155 at p. 176. See also Stapney's case (1886) 40/M&H 34. See also the Tanjore case (1921) Hammond's Election cases 671 at page 675.] It would seem to be reasonable to allow a request for a recount in the case of a candidate about to lose his deposit where the number of votes polled for him is close to the minimum required to save his deposit. It would be unreasonable to demand a second recount if the first recount showed only minor variations from the first count and at the same time showed a very substantial majority in favour of one candidate. On the contrary it would be reasonable to demand further recounts where the voting is close and where previous recounts have shown differing results. In the United Kingdom, in the 1966 elections, as many as seven recounts were allowed at Town Hall Peterborough on the 1st April, 1966. On the first recount the Labour majority over the nearest (Conservative) rival was 163. On the second recount this majority in favour of the Labour candidate was reduced to two. On the third recount there was a majority of 2 in favour of the Conservative candidate. On the fourth recount the Conservative majority was by 6. On the fifth recount the Labour candidate gained majority by 1. On the sixth recount the Conservative candidate gained majority by 2. On the seventh recount the Conservative candidate had majority by 3. The result at the seventh recount was reluctantly accepted by the Labour candidate. But you would be justified in refusing a further recount when two or three recounts show the same result even though the difference between the contesting candidates may be very ; small.

23

You should, however, ensure that on the completion of counting, but not re-counting, and before you sign the result sheet, the candidates and the election agents present are given a reasonable, opportunity to exercise their right to ask for a recount." JUDGMENT OF THE SUPREME COURT IN PASHUPATI NATH SINGH Vs. HARIHAR PRASAD SINGH. The candidates were also advised to be very careful in the matter of filling in the forms of nomination papers. The forms of nomination papers are simple but it is found in practice that even then a good number of candidates make mistakes in filling the forms. Candidates were reminded of their duty to make and subscribe the oath or solemn affirmation as required by article 173 (in case of candidates for election to a Legislature of a State). A recent judgment of the Supreme Court has created a difficulty for candidates in this respect. In the case of Pashupati Nath Singh vs. Harihar Prasad Singh (1968) 2 SCR 812—AIR 1968 SC 1064, the Supreme Court has placed two limitations in the matter of making and subscribing the oath or solemn affirmation. In the first place, the Court ihas held that the words "having been nominated" in the form of the oath or affirmation in the Third Schedule to the Constitution of India clearly show that the oath or affirmation cannot be taken or made by a candidate before he has been nominated as a candidate. That means according to this finding of the Court that having regard to the relevant provisions contained in sections 30, 31, 32 and 33 of the Representation of the People Act, 1951 the oath or solemn affirmation can be made and subscribed by a candidate only after his nomination paper has been delivered under section 33 to the returning officer. In the second place, the Court has held that the expression "on the date fixed for scrutiny" in section 36(2) (a) of the Representation of the People Act, 1951 means "on the whole of the day on which the scrutiny of nomination has to take place". In other words, the qualificatior according to this finding of the Court must exist at the earlier moment on the day of scrutiny. This means that the oath or solemn affirmation cannot be made by a candidate at any time on the date of scrutiny even before the returning officer takes up nomination papers for such scrutiny.

24

These two restrictions put by the Supreme Court may be a source of great inconvenience to candidates. Suppose a candidate for unavoidable reasons files his nomination paper on the last date for making nominations. In such a case unless he makes and subscribes the oath or affirmation as required by the Constitution on that very day, he is debarred from doing so on the next day because the next day under the law is the date for scrutiny of nomination papers. To get over this difficulty caused by the aforesaid judgment of the Supreme Court it is proposed that the law should 'be suitably amended. In view of this difficulty the returning officers were particularly reminded about their responsibility in the matter. They were specifically directed to remind the candidates or their proposers when they appeared before them to deliver the nomination papers about the constitutional obligation to make and subscribe the oath or affirmation of allegiance to the Constitution of India and to caution them to do so immediately after the filing of the nomination papers in any case before the commencement of the date for scrutiny of nominations. Because of all such precautions, there were few rejections of nomination papers during mid-term elections. TIME-TABLE FOR ELECTIONS The time-tables for the elections in these seven States are mentioned below. In Haryana, at first it was decided to fake the poll on a single day but because of the threatened strike of the government employees it was decided to spread the poll on two days so that, if necessary, the poll could be taken even without the assistance of the government employees as presiding and polling officers. In West Bengal, it was decided with the consent of the political parties with the exception of one [the Revolutionary Communist Party of India (Tagore)] to (hold the elections in November, 1968. But suddenly in the first week of October, a huge and devastating flood unprecedented in human memory occurred in North Bengal in which a large number of persons, men, women "and children, lost their lives, and because of this devastating flood it was decided not to hold the elections in November, 1968 but to hold the elections in February, 1969 along with the elections in Punjab, Uttar Pradesh and Bihar. The notifications calling the elections under section 15 of the Representation of the People Act, 1951 and the time-table notifications under

25 section 30 of that Act were issued in the various States as shown below: II

I

NotificatTime-table Notifications issued under ion issued Section 30 under Section 15 Last date Date for Date of Date/Dates for filing «crutiny withdraof poll norninawal tions

States

Haryana .

.

Punjab . Uttar Pradesh . Bihar

.

West Bengal . Nagaland Pondicherry

.

10-4-1968 17-4-1968 18-4-1968 20-4-1968 12th & 14th May, 1968 9th Feb., 1-1-1969 8-1-1969 9-1-1969 n-i-1969 1969 1-1-1969 8-1-1969 9-1-1969 11-1-1969 5th, 7th, 9th & 20th Feb., 1969. 9th Feb., 1-1-1969 8-1-1969 9-1-1969 n-1-1969 1969 1-1-1969 8-1-1969 9-1-1969 11-1-1969 9th Feb., 1969 1-1-1969 8-1-1969 9-1-1969 n-1-1969 6th, 8th & 10th Feb., 1969 3-2-1969 10-2-1969 11-2-1969 13-2 1969 9th March, 1969

POLLING So far as the polling was concerned, because of the reduction of maximum distance from 3 miles to 2 miles and also because of the increase in the electorate since after the 1967—General Elections from 101,114,756 to 106,479,426, the number of polling stations in each of the seven States had to be increased. The increase in the number of polling stations in these States is shown in the table below:— No. of polling stations in 1967

Name of State

Haryana Punjab . . . Uttar Pradesh Bihar . . . West Bengal . Nagaland (in 1964) I'ondicherry (in 1964)

.

4.741 6,866 42»369

.

29,213 22,650 324 213

No. of polling stations in the midterm geneSal elections in 1968-69 4,900 7,400 47.125 31.504 34.191 330 332

26 INTIMIDATION AMD COERCION AT ELECTION The polling was by and large peaceful in all the seven States. From Punjab, West Bengal, Nagaland and Pondicherry hardly any complaint was received about any disturbance on the polling day or at any polling station. A few stray complaints of intimidation and coercion were received from a few polling stations in Haryana but a comparatively large number of complaints about intimidation and coercion were received from Bihar and Uttar Pradesh, especially western Uttar Pradesh. From Bihar reports of open violence in or near polling stations were also received in a number of cases. While it may be difficult to prove the truth or otherwise of these complaints according to the strict rules of evidence, the possibility of intimidation, coercion and undue influence being exercised by the powerful and economically better off sections of the community over the weaker and poorer sections cannot be altogether ruled out especially in areas where the more powerful and economically better off sections outnumber the weaker sections. The impression of such possibility was gained by me during my personal visit to about 80 polling stations on the 5th and 7th February, 1969 in some of the districts of Uttar Pradesh, namely, Meerut, Muzaffarnagar, Bulandshahr, Aligarh and Etah and of about 15/20 polling stations in the district of Rohtak in Haryana on the 14th May, 1968. Thcs impression was also gained by one of the Deputy Election Commissioners, Shri P. I. Jacob, who was present on the day of poll namely the 9th February, 1969 in Bihar. The probable causes of such large scale intimidation, coercion and undue influence are mainly social and economic. Sometimes personal factors of individual candidates also count. Casteism with all its attendant evils still prevails on a large scale in many parts of India. If caste-ridden communities are economically well off and outnumber the weaker sections, then they can successfully exercise intimidation and coercion upon the members of the weaker and poorer sections of the community because if they vote against the candidate supported by the stronger and economically better off communities, then members of the weaker and poorer sections may perhaps be boycotted economically and that will mean their hunger, starvation, disease and ultimate ruination. The Harijans and weaker and backward sections

27 of the community cannot under the circumstances dare go against the wishes of the more powerful, economically better off and more numerous caste-ridden sections of the electorate. Over and above this, if a candidate belonging to the strong and economically better off sections is a man of stature and wields influence over the local population, then it becomes very difficult for any candidate supported by the weaker sections to get elected. Therefore, if this evil of intimidation, coercion and undue influence on a large scale is to be successfully fought and eliminated, then it has to be met squarely and with courage at the political, economic, social, administrative and' also legal levels. For that, the first condition requisite is that the gravity of the evil should be genuinely recognised by everybody, by every right-thinking person and by every political party so that the leaders and representatives of all political parties and groups, irrespective of 'party or group considerations, may recognise it as an evil to be avoided at all costs and sit together and find out the ways and means, economic, political, social, administrative and legal whereby the evils of casteism and the resultant corrupt and evil practices and criminal offences of intimidation and coercion may be uprooted. Unless this is done, simply by making elaborate police arrangements on the day of the poll it may not be possible to touch the fringe of the evil. Thus, because of adequate police arrangements made on the days of the poll, namely, the 5th, 7th and 9th February in Uttar Pradesh, except only in one case, there was no adournment of the poll by the presiding officer concerned under section 57 or section 58 of the Representation of the People Act, 1951 on account of violence or breach of the peace or of the apprehended violence or apprehended breach of the peace. In the whole State of Uttar Pradesh, there was only one case of adjournment of the poll by the presiding officer of polling station No. 49—Saraut Pachhayn in 347—Aliganj assembly constituency in the district of Etah where the presiding officer adjourned the poll under section 57 because of clash between two groups of Ahirs and Thakurs just outside the polling stations. In two other polling stations Nos. 20 and 21 in 35Thakurdwara assembly constituency in the district of Moradabad, the poll was declared void under section 58 of the Representation of the People Act, 1951 necessitating a fresh poll at these two polling stations because through error old electoral rolls were supplied to the presiding officers instead of the new rolls. Therefore, fresh poll in these twf polling stations had nothing to do with violence or intimi-

2$ (dation at or near polling sttions. Thus though conditions on the day of poll at near the polling stations in Uttar Pradesh were by and large orderly and peaceful because of adequate police arrangements which were made, still the possibility of intimidation or coercion on a large scale could not be altogether ruled out. This possibility was strengthened by a large number of complaints received in the Commission during the mid-term elections in Uttar Pradesh and by complaints made to me verbally by several persons during my visits to about 80 polling stations in Western Uttar Pradesh as already mentioned. In view however of the peaceful conditions prevalent at the polling stations in Uttar Pradesh, we can legitimately conclude that if there had been practised any intimidation or coercion on a large scale, it had been practised not at or in the vicinity of polling stations on the day of poll, but by warning the voters belonging to the weaker sections of the community on days previous to the day of poll about serious consequences which would follow if they took courage to go to the polling stations to cast their votes. We should not forget that mere police and mere law are only very imperfect agencies and instruments of social control although they are absolutely indispensable. No civilised society has been without police and without law in one form or another. But no civilised society can at the same time progress and thrive only with police and law. I may in this connection cite the case of Great Britain. There even after the enactment of the draconian Corrupt and Illegal Practices Act of 1883 not only bribery and treating but the pressure and undue influence exerted by the landlords were definitely there. Even the Dorset election petition of 1911 showed that the landlord influences had not been entirely eliminated. But the desire to wipe out the corrupt practices and the tribe of electioneering parasites ultimately became the common goal of the political leaders transcendenting party differences. The major credit for the elimination of the corrupt practices from British elections since 1911 must go to the members of the House of Commons. As is stated ?by a recent writer, Cornelius O'Leary— "When all is said, however, it was the members of the House of Commons who from first to last set the moral tone, unprompted by outside pressure groups. At the cost of personal sacrifice to some of its members, Parliament managed within one generation to sweep away traditions

29 that were centuries old and were regarded by many as wellnigh ineradicable. It is an achievement of which any legislature might well be proud. —(The Elimination of Corrupt Practices in British Elections 1868—1911 p. 233)" Therefore, an all out effort is necessary by our political leaders and the representatives of all political parties and all others concerned if they sincerely desire our elections to be free, fair and pure. Every attempt should be made to create a strong and healthy public opinion also against casteism and the evils of casteism in the shape of intimidation, coercion and undue pressure. If everybody and every party is genuine and sincere in his or its efforts, then I think it is possible to create such public opinion and eliminate this evil of large-scale intimidation and coercion resulting from casteism. To fight this evil the Election Commission has already made a few experiments in the system of mobile polling stations and it has proved to be quite successful. In the next place, in the same village where casteism is strong, one or more polling stations may have to be set up in the locality or localities where the Harijans and other weaker sections of the community dwell. Further, the Representation of the People Act 1951 should also be suitably amended on the lines indicated hereafter. In the State of Bihar sometimes open violence is resorted to in or near polling stations. In the mid-term election there were 25 cases of adjourned poll or fresh poll in Bihar under sections 57 and 58 of the Representation of the People Act, 1951 because of violence resorted to by turbulent mobs at or near the polling stations. To meet the challenge of such open violence, the law should also be suitably amended. ELECTION EXPENDITURE AND CORRUPTION Some mention here should be made about election expenditure also. Views are expressed by many that candidates with big purses more often than not spend much more money in elections than the maximum amount permitted under the law and this puts the candidates with moderate means at a great disadvantage. It is stated that false returns of election expenses are filed to keep the amount shown in the return within the maximum limits set by the law. Allegations

30 are made that huge amounts are spent for bribing the voters majority of whom are poor and for using motor vehicles for free conveyance of voters to and from polling stations on the day of poll in flagrant violation of the law and for other illegal purposes. The influence, the corrupt influence, of money in politics cannot be denied or ignored. Many years ago Viscount Bryce devoted one full chapter—Chapter LXIX on "The Money Power in Politics" in his magnumopus "Modern Democracies". At the beginning of that Chapter, Bryce observed as follows:— "So long as private property exists, there will be rich men ready to corrupt, and other men, rich as well as poor, ready to be corrupted, for 'the love of money is the roof of all evil'. This has been so under all forms of government alike. The House of Commons in the days when Walpole, looking round its benches, observed, "All these men have their price." was no worse than were most of the Jacobin leaders among the French revolutionaries Democracy has no more persistent or insidious foe than the money power, to which it may say, as Dante said when he reached in his journey through hell the dwelling of the God of Riches, 'Here we found Wealth, the, great enemy.' That enemy is formidable because he works secretly, by persuasion or by deceit, rather than by force, and so takes men unawares. He is a danger to good government everywhere " According to Bryce "Corruption" may be taken to include those modes of employing money to attain private ends by political means which are criminal or at least illegal, because they induce persons charged with a public duty to transgress that duty and misuse the functions assigned to them Bryce mentions four classes of persons owing a duty to the public who may be led astray, viz., (a) Electors, (b) Members of a Legislature, (c) Administrative Officials, (d) Judicial Officials. We are mainly concerned here with corruption of the electors. Bribery of voters is a practice from which few countries have been exempt:

31 but today it is practically non-existent in the United Kingdom, in Australia, in New Zealand, in Switzerland, in France and other countries. The recommendations of the Election Commission for the amendment of the law to control expenditure will be detailed hereafter. But as pointed out already,, mere law is not enough. Again to quote Bryce, "the two safeguards on which democracy must rely are, law and opinion". Therefore, in addition to the proposals for amending the law, public opinion also must have to be aroused and awakened. Opinion forms in public life that atmosphere which— "

we call Tone and on whose purity the honour and worth of public life depend. Opinion is sometimes strangely lenient, with a standard purely conventional. The England of a century ago smiled at the candidate who gave a bribe, but despised the elector who took it. The habit was an old one, but so was the habit of duelling, so was the habit of intoxication, neither condemned by the code of custom Money will always have power, because the rich man has something to give which others are glad to receive, so Power cannot be dissevered from wealth so long as wealth exists. All that democracy can do is to watch its action with ceaseless attention, restraining its predatory habits, respecting its possessor only so far as he devotes it to purposes beneficial to the community, and regarding as 'undesirable citizens' those who use it to gain something from the public for their own benefit." :

[See Viscount Bryce—"Modern Democracies" Vol. II (Indian Edition 1962) pages 534-535.] Attention may be drawn also to the observations of Chagla, C.J. (as he then was) in Jayantilal vs. Tata Iron and Steel Co. [AIR (1958) Bombay 155L The recommendations of the Election Commission relating to election expenditure and return of election expenditure and free conveyance of voters in motor vehicles and other corrupt practices, if accepted by the Government and Parliament, will, it is hoped, go a long way in curbing illegal use of money in election.

32

ELECTION PETITIONS This short narrative will not 'be complete unless a brief reference is made to the election petitions which were filed after the mid-term general elections of 1968-69. The following table will show the number of petitions filed in each State and the number of petitions already disposed of by the High Courts and the number of appeals disposed of by and pending in the Supreme Court:— TABLE Number of Petitions filed and disposed of after 1967 General Elections y o States

Haryana Punjab 3- U. P. . 4- Bihar 5. W.Bengal . 6. Nagaland (1964) • 7. Pondicherry (1964) I.

2.

•£


o

Number of Petitions filec; and disposed of after 1968-69 mid-term general elections M

5;

6

E

<*> °

« .5 "29, a

a

-gO

a

.e -gO .S

»

i dl.s 3 1 |.s if I |.s I " 8 * E I I Q" I S 3" I I S" • 15 15 .. .. . 16 16 • 45 34 11 . 21 20 1 . 8 8 ..

7 5 4 9

7 5 4 9

.. 13 13 .. 14 14 .. 39 30 . . 13 9

1

1

..

II

2

1

5

4

••

4

1

..

I

6

1

1

9 4 9 2

1

1

••

..

..

From the above Table it will appear that there is a slight decline in the number of election petitions except in West Bengal. The Commission hopes that the number of election petitions will gradually if not rapidly come down in future elections. It may be mentioned here that the amendment of the election law towards the end of 1966 whereby election petitions are now tried by High Courts with appeals on both law and facts to the Supreme Court against the decisions of the High Courts has proved beneficial in several respects. In the first place, by and large election petitions are now disposed of more quickly than before and in the second place, because the petitions are now decided by the superior courts of the country, there is a marked improvement in the quality of the election law in so far as it is based upon judicial decisions and judgments. HC—High Court. SC—Supreme Court.

MJD-TERM PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTIONS A brief reference should now be made to the mid-term Presidential and Vice-Presidential elections. Dr. Zakir Husain, the third President of India, passed away suddenly on the 3rd May, 1969. Under article 65(1) of the Constitution, the Vice-President, Shri V. V, Giri assumed office to act as President. But as under article 62(2) of the Constitution, an election to fill a vacancy in the office of the President occurring by reason of his death, resignation, removal, or otherwise is required to be held in any case within six months from the date of the occurrence of the vacancy, preliminary steps for holding the election were immediately started. In the first place, all the Chief Electoral Officers of the States were requested to urgently send to the Commission up-to-date corrected lists of elected members of the Legislative Assemblies of the States because under article 54, the electoral college for the elections of the President consists of the elected members of both Houses of Parliament and the elected members of the Legislative Assemblies of the States. Immediate steps were also taken to fill in as many existing vacancies in the Houses of Parliament as well as in the State Legislative Assemblies as possible so that the maximum number of elected Members of Parliament and of the State Legislative Assemblies could participate in the Presidential election. The ballot boxes for the Presidential election were duly repaired and repainted and kept ready for despatch at the appropriate time to the respective State capitals where polling stations were set up to facilitate voting by the members of the electoral college. According to the practice which has grown up, the Secretary of the Lok Sabha and the Secretary of the Rajya Sabha are appointed returning officers at the Presidential and Vice-Presidential elections by turn. As in the Presidential election of 1967 when Dr. Zakir Husain was elected, the Secretary of the Rajya Sabha was appointed returning officer by the Election Commission, this time accordingly the Secretary of the Lok Sabha was appointed returning officer for the Presidential election. In accordance with the usual practice, one Deputy Secretary of the Lok Sabha and the Secretaries of the State Legislative Assemblies were appointed as the Assistant Returning Officers! to assist the returning officer in the discharge of his functions. On the 20th July, 1969, a vacancy occurred in the office of the Vice-President also because the acting President, Shri V. V. Giri.

34

resigned as Vice-President and also as acting President. Preparations for the Vice-Presidential election were therefore taken up in hand immediately thereafter. The Vice-President is also elected by the members of an electoral college. But the electoral college consists only of the members of both Houses of Parliament under section 66(1) of the Constitution. In the Presidential election, the notification setting out the timetable of election under section 4 of the Presidential and Vice-Presidential Elections Act, 1952 was issued on the 14th July, 1969. According to that notification, (a) the last date for making nominations was the 24th July, 1969, (b) the date for scrutiny of nominations was the 26th July, 1969, (c) the last date for withdrawal of candidatures was the 29th July, 1969 and (d) the date appointed for taking the poll was the 16th August, 1969. In all 24 persons filed their nomination papers. On scrutiny, the nomination papers of 9 candidates were rejected. Ultimately, the total number of candidates who remained in the field was 15. The ballot boxes were despatched to the various State capitals quite in time. In a number of cases, they were despatched under proper escort by air, in other cases by railway. The ballot papers for the elected members of both Houses of Parliament were of green colour and printed in the Government of India Press at New Delhi. The ballot papers for the elected members of the legislative Assemblies of the States were of pink colour. They were printed in the respective State capitals except the ballot papers for elected members for the Legislative Assemblies of the Hindi speaking States, namely, Bihar, Uttar Pradesh, Haryana, Rajasthan and Madhya Pradesh, and also for the elected members of the Jammu and Kashmir Legislative Assembly and the Nagaland Legislative Assembly. The ballot papers for elected members of these seven States were printed at the Government of India Press, New Delhi. An innovation was introduced this time to ensure strict secrecy of the poll. The serial numbers on the back of the ballot papers were covered with coloured slips of paper pasted at the four corners. This, however, could not be done in the case of the elected members of the U.P. Legislative Assembly as the delivery of the telegram containing the direction of the Election Commission was unduly delayed and was not received in time.

33 Another precaution was adopted in the Presidential election as in the case of Assembly elections. That was the shuffling of the ballot papers three or four times during the entire polling period so that it became difficult for the representatives of the candidates present at the time of the poll to subsequently identify the votes cast by the members. This time the Presidential election was a keenly contested one but among the 15 contesting candidates the main contest was confined to three candidates, namely, Shri V. V. Giri, Shri N. Sanjiva Reddy and Shri C. D. Deshmukh. The poll concluded peacefully not only in the Parliament House in New Delhi but in all the State capitals. This time a departure was made from the hitherto prevalent practice because in suitable cases even elected members of the State Legislative Assemblies were allowed to cast their votes at the polling place in the Parliament House in New Delhi. Formerly, this was not so. At previous Presidential elections the group of electors who were entitled to vote at the polling place at Parliament House in New Delhi were only the elected members of the Houses of Parliament. Any such member was also permitted to vote at a State capital provided he informed the Commission in time and obtained a special permit from the Commission for producing the same before the Assistant Returning Officer at the State capital concerned to establish his identity. This time, this procedure was very much simplified. The elected members of Parliament were informed by individual letters that they would be entitled to vote at a State capital if they would like to do so after sending an intimation to that effect to the Election Commission. No further action on their part was required for this purpose and no special permit was either issued to them. The other innovation which was introduced related to the grant of special permit to the elected members of the State Legislative Assemblies to cast their votes in suitable cases at the polling place in Parliament House in New Delhi instead of at the State capital at which he was entitled to vote. Formerly, the elected members of the State Legislative Assemblies were not permitted to cast their votes in New Delhi. This new innovation was availed of by at least three elected members of three different legislative assemblies. One was Shri E. M. S. Namboodiripad, the then Chief Minister of Kerala, another was Shri S. Nijalingappa, President of the Indian National Congress and the third was Shri Jasdish Singh, an elected member of Madhya Pradesh Legislative Assembly. 31 Members of Parliament exercised their

36 option to cast their votes at the State capitals after sending the necessary intimation to the Election Commission. The poll was over on the 16th August, 1969 and the 20th August, 1969 was fixed for counting the votes at New Demi. Thus there was a gap of four days between the date of poll and the date of counting. For this reason there has been some amount of criticism of the Election Commission but the Commission thinks that the criticism was uninformed and therefore unjustified. Criticism is always welcome provided it is based upon materials and correct information. The reasons why this gap was given were several. In the first place, there was a number of postal ballot papers for elected members of the Legislative Assembly especially of Andhra Pradesh who were under preventive detention and lodged in several jails in the State of Andhra Pradesh in Secundarabad, in Chanchalguda, in Warangal and in Rajahmundri. The Commission wanted to play for safety because Rajahmundri and Warangal being outlying stations, it naturally took 2/3 days for the postal ballot papers to reach New Delhi by insured registered post. Then, ballot papers had to come from the distant States of Nagaland and Assam. The Election Commission was in constant touch with the meteorological authorities; and being the month of August, the weather conditions in the eastern regions, that is, in Nagaland and Assam were at that time extremely inclement and unfavourable. The planes were delayed. Ultimately the ballot boxes had to be carried from Gauhati by the army courier plane under special escorts. Here a point should be mentioned. It was represented to the Commission that the representatives of the candidates should be allowed to travel in the same plane from the various State* capitals in which the ballot boxes were being carried. The Election Commission readily granted those representations so that there might not be any doubt or suspicion in the mind of any candidate or his representatives or supporters as to manipulation of the ballot papers contained in the sealed ballot boxes which were being brought to New Delhi under special escort (the respective assistant returning officers). The Commission got into touch with the Civil Aviation authorities and obtained from them the permission for the escort (the assistant returning officers) to keep the sealed ballot box by his side closely near his seat in the plane. This request of the Commission was immediately granted by the Civil Aviation authorities.

37

Because of the time-gap between the date of poll and the date of counting another criticism was levelled against the Commission. But that also was totally unjustified. The criticism was that the ballot papers on which votes had been recorded in the State capitals instead of being brought to New Delhi for counting should have been counted at the State capitals themselves. But those who levelled this charge forgot that the election of the President is held in accordance with the system of proportional representation by means of the single transferable vote. In such a system, if no decisive result can be obtained on the conclusion of the counting of the first preferences— as no decisive result was actually obtained in this Presidential election —then recourse had to be had to the counting of the second and subsequent preferences as was actually done in the present case. And if the ballot papers were counted in 16 or 17 State capitals, then, at least for the counting of the second and subsequent preferences all the ballot papers would have to be collected at any one place and that would have meant a much longer delay. It is for these reasons that even on previous occasions when each of the Presidential elections was held in the month of May when the weather conditions in all parts of India were by and large favourable and good, a gap of 3 or 4 days had been given between the date of poll and the date of counting. Thus the following Table shows the dates of poll as well as the dates of counting at the previous Presidential elections:— TABLE

1952 1957 1962 1967

2-5-1952

6-5-1953

6-5-1957

IO-5-I957

7-5-1962

11-5-1962

6-5-1967

9-5-1967

This is the first occasion on which the result could be declared in the Presidental election only after the second counting. A number of election petitions is now pending before the Supreme Court of India whereby the election of President has been challenged.

38

The votes obtained by the different candidates at the 1969 Presidential election at the first counting are given in the table below:— TABLE Votes obtained at the first count ing

Name of candidates 1. Shxi Bhagmal

.

2. Shri Krishna Kumar Chatterjee

Nil

3. Shri C. D . Deshmukh

.

.

.

4. Shri V. V. Giri

.

.

.

.

5. Shrimati Gurcharan Kaur

.

.

.

.

.

.

.

.

.

112,769

.

.

.

.

401,515

.

.

.

.

940

6. Ch. Hari R a m

125

7. Shri Santosh Singh Kachhwaha 8. S h r i K h u b i R a m >

Nil

.

.

.

"

.

.

.

.

.

.

.

Nii 94

9. Pandit Babulal M a g

576

10. Shri Rajabhoj Pandurang Nathuji

831

n . ShriNeelamSanjivaReddy

3I3»S48

12. S h r i C h a n d r a d a t t S e n a n i

5,814

13. Shri Sharma Manovihari Anirudh 14. Doctor Ramdular Tripathi Chakor . 15. Shri Ramanlal Purushottam Vyas Total

125 .

.

.

.

.

Nil Nil 836.337

None of the candidates secured the requisite quota (418,169 votes) in the first count. Candidate after candidate was excluded as none got the quota with the result that at the and only two candidates, namely, Shri V. V. Giri and Shri N. Sanjiva Reddy remained in the field. Of them, Shri V. V. Giri secured 420,077 votes (more than the quota by 1,908 votes) and Shri N. Sanjiva Reddy secured 405,427 votes (less than the quota by 12,742 votes). Accordingly, Shri V. V. Giri was declared elected by the returning officer on the 20th August, 1969 and the newly elected President assumed office by making and subscribing the oath on the 24th August, 1969.

39 The Vice-Presidential election was a simpler affair because th« electoral college, as pointed out already, consists only of the Members 'of tooth Houses of Parliament. The Secretary of the Rajya Sabha was appointed as the returning officer for the Vice-Presidential election and a Deputy Secretary of the Rajya Sabha was appointed as the assistant returning officer. Two ballot boxes were supplied to the returning officer but actually only one was used. la the Vice-Presidential Election also there were as many as six candidates, Shri G. S. Pathak, Shri H. V. Kamath, Shri B. P. Mahaseth, Smt. Manohara Nirmala Holkar, Shri S. Nagappa and Shri Sivashanmugham (Jaganathan Pillai). The programme for election was as follows:— (1) Issue of notification under section 4 of the Presidential and Vice-Presidential Elections Act, 1952—31st July, 1969. (2) Last date for making nominations—9th August, 1969. (3) Date for scrutiny of nominations—11th August, 1969. (4) Last date for withdrawal of candidature—14th August, 1969. (5) Date of poll—30th August, 1969. As there were six candidates in the field, the poll was accordingly held on the 30th August, 1969. Immediately on the conclusion of the poll, counting was commenced and the result was declared on that very day 'on the conclusion of the counting of the first preferences. Shri G. S. Pathak who got 400 first preference votes was declared duly elected. An election petition was filed in the Supreme Court challenging the election of Shri G. S. Pathak but the petition has already been dismissed by the Supreme Court. The Commission does not like to make at this stage any recommendation for the amendment of the Presidential and Vice-Presidential Elections Act, 1952 in view of the pending election petitions challenging the election of the President. The, necessary recommendations for the amendment of this Act will be sent to the Government after disposal of the election petitions. RECOMMENDATIONS FOR THE AMENDMENT OF THE ELECTION LAW In conclusion, in the light of the experience gained, the following principal changes in the electoral law are recommended for consideration of our Government and our Parliament:

40 PRINCIPAL CHANGES RECOMMENDED IN THE REPRESENTATION O F T H E P E O P L E A C T , 1950. Recommendation No. 1 Definition of "qualifying date" should be changed.—At present there is only one qualifying date, namely the 1st day of January of the year in which the electoral roll is prepared or revised. This means that a citizen of India who is not less than 21 years of age on the 1st of January of the year in which the electoral roll for a constituency is prepared or revised is entitled to be registered in that electoral roll. The requirement as to qualifying date is a constitutional requirement directly following from article 326 of the, Constitution which provides for universal adult suffrage. Under that article every 'citizen of India who is not less than 21 years of age on such date as may be fixed in that behalf by or under any law is, subject to certain conditions mentioned in that article, entitled to be registered as a voter in the electoral roll. This date is called in our election law as the qualifying date following the British practice. Now the qualifying date as at present defined, namely, the 1st of January of the year in which the electoral roll is prepared or revised may cause real hardship and genuine grievances on the part of those citizens who have completed the age of 21 years shortly after the 1st day of January but before the holding of any election or even before the final publication of the electoral roll but who cannot exercise their franchise in that election because they were less than 21 years of age, may be by a few days, on the 1st of January. Suppose a citizen completes the age of 21 years on the 3rd of January of the particular year in which the roll is prepared or revised. He cannot be registered as a voter nor can his name be included in the electoral roll as a Voter not only during the period of the whole year but also till the next revision of the roll is taken up. Thus he is deprived of his franchise though he might have been more than 21 years of age at any Warticular point of time. This lacuna in our law has been felt for a long time and several Members of Parliament raised this pioint not only on the floor of the Houses but also in meetings of Joint and Select Committees. It is therefore proposed to amend the definition of "qualifying date". Instead of one date, namely, the 1st of January, as many as four qualifying dates in relation to the preparation or revision of an elec-

41 toral roll, namely, the 1st day of January, the 1st day or April, the 1st day of July, and the 1st day of October should be provided. Thus if the electoral roll is finally published on the completion of its preparation or revision, say in the month of November, then a citizen who has completed the age of 21 years not only on the 1st day of January, or the 1st day of April, or the 1st day of July but also on the 1st day of October will be entitled to be registered as a voter in the electoral roll. So far as inclusion of a name as a voter in the electoral roll after the final publication of the roll in accordance with present section 23 of the 1950-Act is concerned, the qualifying date in relation to such inclusion will mean the date on which an application is made by such person for the inclusion of his name in the electoral roll, or where such inclusion is made by the electoral registration officer on his own motion, the qualifying date shall be the date on which the order for such inclusion is made. If this amendment is accepted, then practically every adult citizen will get an opportunity either to have himself registered as a voter during the preparation or revision stage or to have his name included in the electoral roll as a voter after the final publication of the electoral roll. As the singular includes the plural under the General Clauses Act, there cannot be any objection to provide for a number of qualifying dates in relation to the, preparation or revision of an electoral roll or to the inclusion of names therein. Recommendation No- 2. Postal ballot facilities should be extended to officers and seamen of the Indian Merchant Navy.—Representation has been received from the National Shipping Board and the Maritime Union of India that voting facilities should be extended to officers and seamen of the Indian Merchant Navy. The total number of suoh officers and seamen will be about 30,000. Such a large number of Indian citizens should not be deprived of their franchise and hence it is proposed that section 20 of the 1950-Act should be suitably amended

42 Recommendation No. 3 Electoral rolls should be kept in a state of constant and perpetual revision.—At present, an electoral roll after it has been finally published on preparation or revision continues to be in force till a new roll is prepared or revised before a bye-election or a general election or till a new roll is prepared or revised under the direction of the Election Commission [vide section 21(2) of the Representation of the People Act, 1950]. Till such preparation or revision, the electoral roll prepared with reference to the 1st of January of one year may continue to be in force for a number of years with the result that many persons who complete the age of 21 years in the meantime do not get an opportunity to have their names included in the electoral roll. The existing system has got another serious difficulty. At 'present the law provides by section 21 that unless the Election Commission by order otherwise directs, an electoral roll shall be prepared or revised before each general election or before each bye-election in a constituency. There is no provision for annual preparation or annual revision of electoral rolls. Quite often this causes avoidable delay in holding a bye-election and also a general election. It is a well known principle of representative government that no seat should remain vacant for an unduly long period of time. It is also well known that there should be a Parliament or a State Legislature in existence at every point of time. This is a constitutional obligatory requirement. But up till now the preparation or revision of the electoral rolls before a general election or even a bye-election takes a lot of time and intensive revision may take much more time than six months or even a year. Even a summary revision which should be avoided in normal circumstances cannot be finished in less than 3 or 4 months. But there may be occasions that even a general election should be held within as short a time as possible. But in our country because the electoral rolls are not maintained up-to-date by a constant revision, it is not possible to hold a general election or even a bye-election within a short time. In the United Kingdom the total period of time required for completing an election is only 17 days (excluding Sundays and other public holidays) after the issue of the Royal Proclamation dissolving the existing Parliament and summoning the new one. By the same Royal Procla-

43

(nation the existing Parliament is dissolved and the new Parlianieai is summoned to meet. By rule 1 of the Parliamentary Elections Rules made by Parliament itself and contained in the Second Schedule to the U.K. Representation of the People Act, 1949, the last day for delivery of nomination papers in a general election for constituting the new Parliament is the eighth day after the date of the Proclamation summoning the new Parliament and the date, of poll is the ninth day after the last day for delivery of nomination papers. Thus the entire process of election including polling is to be finished within 17 days from the date of the issue of the Royal Proclamation. Of course as pointed out already, in computing this period of 17 days, Sundays, Good Fridays, Christmas holidays, bank holidays etc. are excluded. In a vast country like, India this may not be practicable but if the proposals now made are accepted, then it will definitely be possible to hold a general election within a period of about 45 days from the date of dissolution of the House of the People or of a State Legislative Assembly and a bye-election within a 'period of about 35 days from the date when the casual vacancy occurs. Accordingly, it is recommended that an electoral roll shall not only be prepared and revised but shall also be maintained always up-to-date. Existing sections 22 and 23 of the Representation of the People Act, 1950 relating to correction of entries and inclusion of names should also be drastically changed so that this power of correction of entries in electoral rolls including deletion of entries therefrom and the power of inclusion of names in the electoral rolls may be exercised by the electoral registration officer even on his own motion and if necessary, in suitable cases, even after the last date for making nominations. Recommendation No. 4 Fees on application for correction of entries under section 22 and inclusion of names under section 23 as also fees on appeals against orders made under these sections should be done away with.—If this recommendation is accepted, then the result will be that no fee, not even one single paisa, will be necessary for making any application for correction of any entry or inclusion of any name

44

in an electoral roll nor any fee will be necessary if any appeal is preferred against the order
45 Government, he is disqualified for membership of Parliament and if a person enters into any such contract with the Government of a State, he becomes disqualified for membership of Legislature of that State. It is considered that for ensuring purity of elections and independence of members, a contract entered into with any Government will disqualify a persbn for membership of both Parliament and the State Legislature. This amendment, if accepted, will bring the law in this respect on the same lines with the law dealing with disqualifications arising out of office of profit under the Government. Recommendation

No. 8

Election Commission's power to remove disqualifications for corrupt practice should be discontinued.—The present position is that election petitions are filed before and tried by the High Court and an appeal on questions of both law and fact lies to the Supreme Court from the decision of the High Court. As election matters are now dealt with by the superior courts of the land, it seems no longer necessary that the Election Commission should retain the power to remove any disqualification engendered by the commission of any corru'pt practice. Recommendation

No. 9

Officers of local authorities should not be appointed as returning officers.—A returning officer must be a permanent government officer so that he may have some measure of independence in the matter of conduct of elections. An officer of a local authority is not expected to have as much independence as a permanent government officer. For this purpose section 21 of the Representation of the People Act, 1951 should be suitably amended. Recommendation

No. 10

Transfer of returning officers etc., should be stopped while an election is in prospect.—A new provision should be inserted after section 24 of the Representation of the People Act, 1951 for banning the transfer of district election officers and returning officers while an election is in prospect.

46 Recommendation

No. 11

Section 25 providing for polling stations should be substantially amended.—This section deals with setting up of polling stations for constituencies. Very often complaints are received from political parties and candidates that the district election officer does not consult the political parties before preparing the list of polling stations or even where they are consulted, does not take into account the suggestions made by them. The setting up of polling stations is a very important matter in the 'process of elections. Maximum agreement of the parties and candidates should be 'obtained in preparing the list of polling stations. It is quite conceivable that the setting up of polling stations can be so manipulated as to benefit some parties or some candidates to the detriment of other parties and other candidates. Moreover, every attempt should be made to reduce the distance of 'polling stations from the place of residence of a voter. It is of the utmost importance that polling stations should be within the easy reach of every voter. Elaborate provisions should be made for the guidance of the district election officer in the matter of setting up of polling stations including mobile polling stations.

Recommendation

No. 12

The scope of section 31 should be widened to provide for 'some additional information pr the convenience of candidates.—Section 31 at present provides that the public notice :of election should specify the place at which nomination papers are to be delivered. It is felt that the public notice of the intended election should also specify the date or dates on which and the time and place at which forms of nomination papers should be bbtained and the dates on which and time during which the nomination papers may be delivered to the returning officer. Such amendment is expected to be beneficial to the candidates. Recommendation

No. 13

Section 32 should be amended to clarify as to when a person is1 nominated as a candidate.—At present there is nothing in our election law which clearly shows when a person is nominated as a candidate. Two views are possible. According to one, a person

47 is nominated as a candidate as Soon as the nomination paper completed in the prescribed form is signed both by the proposer nominating that person as such candidate and also by that person as assenting to the nomination. According to the other view, a person is nominated as a candidate only after the nomination paper com'pleted in the prescribed form and signed by both the proposer and the candidate is delivered to the returning officer in accordance with section 33. A clarification of this point by an amendment of the law has become specially necessary in view of a recent decision of the Supreme Court in the case bf Fashupati Nath Singh v. Harihar Prasad Singh [(1968) 2 SCR 812]. In that case, the Supreme Court, while considering the question of the time for taking the oath or affirmation which under article 84(a) or article 173 (a) of the Constitution can be made and subscribed, made some observations which may throw sbme doubt as to the exact meaning of the words "having been nominated" occurring in the relevant forms of oath given in Part VII of the Third Schedule to the Constitution. At page 817 of the Re'p'ort, the Supreme Court observed:— "The words "having been nominated" in this form cleariy show that the oath or affirmation cannot be taken or made •by a candidate before he has been nominated as a candidate. Further, it is clear that none of the sections from section 30 to section 36 require that this oath should accompany the nomination paper. No reference has been made to the form of oath in section 33 or section 35, although in section 33 it is provided that in certain cases the nomination paper should be accompanied by a declaration or by a certificate issued by the Election Commission. In this case it is common ground that no oath or affirmation was attached to the nomination paper or was filed before the date fixed for the scrutiny." From the above observations, the view may be taken that a candidate is nominated only after the nomination paper has been presented to the returning officer in accordance with section 33 and not before and therefore an oath or affirmation under article 84(a) or article 173(a) can be taken only after filing the nomination paper with the returning officer. This may cause, in actual practice, hardship to candidates. Suppose a candidate filed his nomination paper with the returning officer on the last date for making nominations

48 shortly before 3 P.M. In that case, very little time is left in hi£hand for making the, oath or affirmation because according to the very same Supreme Court judgment, an oath or affirmation cannot be made and subscribed at any time on the day of scrutiny which is the next following day. The Supreme Court judgment of course does not rule out altogether the other view that a candidate is nominated as soon as his nomination p'apcr is signed by the proposer and the candidate himself. But as pointed out above, the doubt persists. It is therefore considered necessary to remove this doubt by providing specifically in section 32 itself that a person is nominated asa candidate for election to fill a seat as soon as a nomination paper completed in the prescribed form is signed both by the proposer nominating that person as such candidate and also by that person as assenting to the nomination. The effect of this amendment will be that after his nomination, the candidate may make and subscribe his oath before the authorised officer and file an authenticated copy of the oath or affirmation with the returning officer along with the nomination paper itself. Section 32 should also be amended to provide that a person nominated as a candidate as aforesaid must be qualified at the time of the delivery of the nomination paper under section 33 to bechosen to fill the seat in respect of which he is nominated. This will mean that the candidate will have to make and subscribe his oath or affirmation before the delivery of the nomination paper under section 33. Recommendation

No. 14

Section 33 should be amended in several respects,—In the first place, complaints have been received from a number of returning officers that candidates or their proposers sometimes insist on the acceptance of nomination papers filed after 3 P.M. or before 11 A.M. on any of the dates on which a nomination paper may be filed. It often happens that they bring nomination papers to the returning officer at 4 or 5 P.M. or even later and then insist that those papers should be taken as filed within time on the next day. Then again, nomination papers are sometimes delivered by post or by modes other than the one laid down in section 33(1). All these are not only irregular and illegal but also affect the very basis of a fair and'

iree election. All these irregularities and illegalities should be stopped by a suitable amendment of this section. In the second place, provision should be made that no person shall sign as proposer a nomination paper or papers by or on behalf of more than one candidate at the same election and if he does SO, his signature shall be inoperative on every nomination paper other than the nomination paper or papers of the candidate for whom the nomination paper or one of the nomination papers was first delivered. The principle underlying this new provision is that a candidate must be elected at least by one elector of the constituency. It is on this principle that a candidate is declared elected even when there is no contest because such a candidate has been elected at least by one •elector of the constituency, namely, the proposer. Now if the same •elector is allowed to become a proposer for different candidates at the same election, that will mean in the eye of law that he is taking part in election of a number of contesting candidates which is not permissible in our election law especially in single-member constituencies. In this connection, the case of Ramchandar Singh vs. State of Punjab (AIR 1968 Punjab, 178) may be cited. In the third place, it should be provided that if a person before filing the nomination paper under sub-section (1) of section 33 has made and subscribed the oath or affirmation as required by article 84(a) or article 173(a) etc., then the nomination paper shall be accompanied by a certificate from the person before whom the oath or affirmation has been made and subscribed and also a declaration to that effect shall be made in the nomination paper by the candidate. The form of nomination paper should be amended accordingly. The next amendment proposed in section 33 should make it absolutely clear that under no circumstances more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for election in the same constituency. It has been brought to the notice of the Commission that sometimes more than four nomination papers are presented by or on behalf of a candidate and then when the first four nomination papers are found to be liable to rejection on scrutiny, the candidate or his proposer insists that the fifth or the sixth nomination paper which may be a valid one should be taken into account. This defeats the very object of the law. No nomination paper beyond the first four should be taken into account by the returning officer.

50 The last amendment recommended in section 33 is that no person shall be nominated as a candidate for election in more than two constituencies of the same class. It has been found by experience that the same person sometimes stands as a candidate from 3, 4 or 5 parliamentary or assembly constituencies at the same time. If such a person is elected from a number of these constituencies, then, in view of the prohibition of multiple membership by the Constitution as well as the Representation of the People Act, 1951 such person can retain only one such seat. This necessitates bye-elections immediately after a general election, involving unnecessary expenditure out of public revenues. It also causes avoidable inconvenience and exasperation to the voters because the voters resent being summoned to the polling station at short intervals. Recommendation

No. 15

The amount of deposit under section 34 should be doubled.— The object of this recommendation is to put a stop to persons standing as candidates who do not take to elections seriously. Recommendation No. 16 Amendment of section 35.—Section 35 of the 1951-Act should be so amended as to require that the returning officer shall state in the certificate on the nomination paper also whether the required oath or affirmation has been made and subscribed. This amendment will be to the advantage not only of the candidates but also of the returning officers. Recommendation No. 17 Amendment of section 52.—The present law relating to death of candidates and countermand of poll contain some defects and loopholes. It is recommended that section 52 should be suitably amended for this purpose. One of the principal objects of countermanding a poll on the death of a candidate is to afford adequate opportunity to a political party to set up a new candidate in the case of the death of its original candidate. But present section 52 is defective and not clear in this respect. It is accordingly recommended lhat in the following cases, that is to say,— (a) if a candidate dies at any time after 11 A.M. on the last date for making nominations but on scrutiny of nominations under section 36 his nomination is found valid, or

51 (b) if a candidate whose nomination has been found valid on scrutiny under section 36 and who has not withdrawn his candidature under section 37 dies at any time after the expiry of the period within which candidature may be withdrawn under section 37 but before the declaration of the result of the election, and in either case, if a report of the death of the candidate is received at any time before the declaration of such result, the returning officer shall, upon being satisfied about the fact, date and time of the death of the candidate, by order, countermand the poll and report the fact to the Election Commission and also to the appropriate authority and all proceedings with reference to the election shall be commenced anew in all respects as if for a new election. It should also be provided that no order for countermanding a polling should be made except after the scrutiny of all the nominations including the nomination of the deceased candidate. The reason for this is that if the nomination paper of the deceased candidate is rejected on scrutiny, then that candidate even if alive would not have got any opportunity of being elected and that therefore the political party by whom such candidate might have been set up would not in such a case suffer any inconvenience. For the same reason, there should be no countermanding of the polling in the case of the death of a candidate where the candidate died after he had withdrawn his candidature in accordance with section 37. Recommendation

No. 18

Substitution of new section for existing section 58 to combat open violence and intimidation and coercion on a large scale.—Alt present there is no provision for fresh poll in cases where ballot papers used or intended to be used at a polling station are unlawfully taken out of the custody of the presiding officer or the returning officer or accidentally or intentionally destroyed or lost or damaged or tampered with. The present provision provides only for the unlawful taking away etc. of used ballot boxes. It has been reported to the Commission from some States that persons armed with fire-arms and other lethal weapons sometimes raid a polling station and forcibly snatch away the unused ballot papers from the

52

presiding officer- In such cases, there is no provision for a fresh poll. It is recommended that the section should be so amended as to make it possible to direct a fresh poll in such cases also. Then, complaints are sometimes received that because of the prevalence of coercion, intimidation and impersonation on a large scale at any polling station, the members of the weaker sections of the community are prevented from exercising their franchise. In such a case also there is no provision at present for fresh poll at such polling station. If elections are to be free and fair, it is very necessary that in such cases also the Election Commission should have power to order fresh poll. Suitable provisions should be made for this purpose. Recommendation No. 19 Amendment of section 62.—It has been reported to the Commission that sometimes small urchins of 10 or 11 years of age appear before the presiding officer at a polling station and insist on casting their votes because their names find a place in the electoral roll. In the absence of any specific legal provision in this respect, the presiding officer finds it well nigh impossible to stop such urchins from casting their votes even though there is genuine doubt that they are very much below the voting age. It is considered that some express provisions should be made in this behalf. Accordingly it is recommended that section 62 should be suitably amended to provide that if an elector about whom the presiding officer is satisfied beyond reasonable doubt from the appearance of such elector and other facts and circumstances readily available to him that such elector is less than 21 years of age, insists on casting his vote on the ground that his name is included in the electoral roll, the presiding officer shall— (a) after warning him that he will be guilty of an offence if he is proved to be less than 21 years of age, and (b) after taking in the presence of two witnesses a signed written statement from him to the effect that he is not less than 21 years of age, issue a ballot paper to him, but no such ballot paper should be issued to such an elector if he refuses to sign the written statement.

53 Recommendation No. 20 Amendment of section 64 to provide for recount also.—At present there is no specific provision in the Act with respect to recount of votes. The provision as to recount is contained in rule 63 of the Conduct of Elections Rules, 1961. It is recommended that the substantive provisions as to recount should be included in the Act itself and matters of detail and procedural mattexs should be provided for in the rules. Recommendation No. 21 Amendment of section 66 to remove some existing lacunae.— Under section 64A which was inserted by the Representation of the People (Amendment) Act, 1966, the Election Commission can take action at, the stage of counting only if a report is received from the returning officer. But that section cannot apply to cases in which the returning officer's own actions or the actions of the polling or counting staff working under the returning officer are improper. The Election Commission before the amendment of 1966 had no power to intervene in such cases. To remove this lacuna a small amendment was made in section 66 to the effect that the power of the returning officer to forthwith declare the result of the election on the completion of the counting shall be subject to any direction which may be issued by the Election Commission to the contrary. But though this small amendment was made in section 66 by the amending Act of 1966, the amendment being a very short one does not go far enough. The section even after its amendment does not specifically spell out what can be done after the counting and the declaration of the result on the completion of such counting have been withheld for the time being. For any follow up action tinder the amended section 66, the Commission is therefore to rely upon its inherent constitutional power given by article 324 of the Constitution. It is therefore recommended that a new sub-section should be inserted in section 66 to spell out as to exactly what can be done by the Commission when the declaration of the result on the conclusion of counting has been withheld under its directions. In order that any candidate may not approach the Commission for invoking the provisions of section 66, some conditions should also be provided in

54 the law itself. One such condition is that no request for the withholding of the declaration of a result be entertained from a candidate if the margin of difference in the valid votes polled at the original count by the winning candidate and the candidate next below him is 2 per cent or more of ail the total votes polled at the election and counted as valid votes at the original count, and secondly, unless the candidate by or on whose behalf the request for withholding the declaration of the result is made, deposits or causes to be deposited with the returning officer a sum of one thousand rupees which shall not be refunded in any case. With these checks, section 66 will be of real use in genuine cases. These provisions are more or less on the lines of the recommendations of the Study Team appointed by the Administrative Reforms Commission under the chairmanship of Shri M. C. Setalvad. Recommendation No. 22 Complete overhaul of provisions relating to election expenses.— The entire existing provisions relating to election expenditure should be thoroughly recast with a view to making the provisions really effective. At present complaints are quite often heard and also voiced in Parliament and the State Legislatures, in the press and elsewhere also that the present provisions relating to election expenses arc worse than useless and may even be dispensed with. Simple omission of the provisions, in the opinion of the Commission, will be of hardly any avail. Then there will be no limit of election expenditure except the sky with the result that men of moderate means, however able and eminent they may be, may be altogether eliminated from contesting any election to Lok Sabha or a State Legislative Assembly. In no country in the world where representative democracy, whether of the Parliamentary type or of the Presidential type, prevails, the provisions as to election expenses have been entirely dispensed with. At the same time no country has been able to solve all problems relating to legal and illegal election expenditure. As the world-renowned jurist, Prof. Julius Stone observes in his book "Social Dimensions of Law and Justice (1966) at p. 318— "The problems of licit and illicit election expenses are unending."

55 Therefore, on the assumption that Parliament will not agree to dispense altogether with the provisions as to election expenses, elaborate provisions should as far as practicable be made in the Representation of the People Act, 1951 in place of the existing laconic sections 76, 77 and 78. First of all, the provisions as to election expenses will apply as at present only to elections to the House of the People and the Legislative Assembly of a State. In the next place, definitions of election expenses expenses should be inserted.

and personal

At present expenses incurred in connection with an election are confined to a particular period, that is, the period between the issue of the writ notification whereby an election is notified and called and the date of the declaration of the result of the election. Expenses which may be incurred outside this period are not to be taken into account. This is very bad and unsatisfactory. Many years ago Lord M'Laren observed in the Elgin case (5 O'M & H. 1)—• "Without in any way making use of one's knowledge of the discussions which arose in Parliament upon the wording of section 8 we may at least take notice of this fact, that the House of Commons in framing the section, which was intended to limit the expenditure at election have refrained from giving any definition of what is meant by the 'conduct and management of an election', or from fixing say time at which expenditure under this head shall be held to begin. It would have been very simple on the one hand to have used words which would have limited the scope of the section to expenses incurred subsequent to the dissolution of Parliament, or in the case of a casual election, subsequent to the issue of the writ. One objection to such a limitation would be, as everyone must see, that it would have entirely defeated the object of the promoters of the section, because it would just have led to all the expenses being arranged before the issue of the writ, and perhaps paid before that time, in order to reap the benefit of an expenditure in excess of the maximum prescribed by the statute."

56 The Election Commision amplified these observations of Lord M'Laren at page 187 of Volume I of its Report on the Second •General Elections. Therefore in the proposed new provisions there should be no such time-limit as in existing section 77. In the fourth place, by a new provision unauthorised expenses should be prohibited, It should be provided that no expenses can be incurred with a view to promoting or procuring the election of a candidate by any person other than the candidate or his election agent or any person authorised in writing by the candidate or his election agent or by any club, association, society, organisation or body of persons whether incorporated or not. To this provision, an exception should be made however in relation to a political party which sets up a candidate or candidates at an election. It should "be provided that such political party may with a view to promoting or procuring the election of any candidates set up by it incur or authorise any expenditure for holding any public meeting etc., or issuing advertisement, notice, circulars etc., or otherwise presenting to the electors, matters relating to principles, policies, programmes, achievements of the political party or the candidates' views and the extent or nature of their backing or the public conduct or public activities of the candidates. But in doing so, care must be taken that the personal character or personal conduct of any other candidate is not in any way touched or disparaged. In the fiith place, it should be provided by a new section that any contract whereby any election expenses are incurred shall not be enforceable against a candidate unless made by the candidate himself or his election agent or any other person authorised in writing in this behalf by the candidate or his election agent. But the nonenforceability of any such contract will not relieve the candidate from the consequences of any corrupt practice committed by his "agent" as defined in clause (1) of Explanation to section 123. In the sixth place, by the proposed new section it should be provided that the total amount of election expenses which may be incurred or authorised by or on behalf of a candidate shall not exceed the maximum amount which may be prescribed by rules made in this behalf. This is also the existing provision contained in sub-section (3) of present section 77 and the maximum amount has been prescribed by rule 90 of the Conduct of Elections Rules, 1961.

57 But it should also be provided that certain amounts which may be incurred or authorised by or on behalf of a candidate shall not be included within the said maximum amount. Thus the amount not exceeding 250 rupees in the case of an election to a Legislative Assembly or 500 rupees in the case of an election to the House of the People which a candidate may be required to pay to a political party according to the rules of the party for being accepted as a candidate should not be included within the permissible maximum amount. Similarly, any amount required to be deposited by a candidate under section 34 and the amount of the candidate's personal expenditure not exceeding 250 rupees in the case of an election to a Legislative Assembly or 500 rupees in the case of an election to the House of the People should not be included in counting the permissible maximum amount. It should also be laid down that where a poll is countermanded on the death of a candidate in accordance with section 52, the permissible maximum amount shall be increased by a certain specified percentage. Similar provision should be made where a poll is adjourned for any reason after the last date for withdrawal of candidatures. In the seventh place, eliborate provisions should be made as to return of election expenses and the lodging of such return. At present there is no provision in the law regarding the matters which should be shown in a return of election expenses. The painful experience of the Commission in majority of the cases has been that the return of election expenses which is lodged with the district election officer is hardly any return at all. It does not give any idea as to the nature and type of expenses incurred or authorised in an election by or on behalf of a candidate. In no country where there exist provisions relating to the filing of return of election expenses, the candidate has been given such a free hand with the result that the return (it is called at present account of election expenses) which is filed with the district election officer (or a returning officer in a Union territory) can hardly be regarded as a return at all. Hence the new provision should clearly lay down the principle matters which should be shown in a return. Matters of detail may be prescribed by the rules. Tt should also be provided that the return shall be signed by both the contesting candidate and also his election agent, if any, and shall be-

58 accompanied by bills and vouchers relating to such bills and also by declarations in the prescribed form by the candidate or his election agent, if any, and such declarations must be made on oath or solemn affirmation before a stipendiary presidency magistrate or a stipendiary magistrate of the first class. It is expected that in view of these stringent provisions, candidates will be deterred from making false statements in returns of election expenses. Lastly, an innovation is proposed to the effect that every political party should be required to file a true return of election expenses in the prescribed form containing detailed statements of a number of items specified in the section itself. Here the return will have to be signed for and on behalf of the political party by its secretary or other responsible officer by whatever name called and countersigned by its president or chairman, if any, by whatever name called and should be accompanied by a declaration in the prescribed form by such secretary or other responsible officer and the declaration shall be made on oath or solemn affirmation before a stipendiary presidency magistrate or a stipendiary magistrate of the first class. Thus if provisions relating to election expenses are totally recast as aforesaid and are accepted by Parliament, then, it is hoped, it will go a long way in controlling the evils which, it is complained, arise from expenses incurred during elections and matters connected therewith. Recommendation

No. 23

Amendment of section 100—Grounds for declaring elections to be void.—Section 100 of the 1951-Act which deals with the grounds for declaring elections to be void requires material changes in certain respects. In sub-section (1) of section 100, two new grounds should be added. The Commission strongly feels that the addition of these two new grounds is absolutely necessary if we are to make elections in our country free and fair and if we want to eliminate bribery, undue influence and mass intimidation and coercion from our elections. The first new ground should be that if the High Court is of the opinion that the election has not been a free election by reason that a corrupt practice or bribery and undue influence has extensively prevailed, the High Court shall declare the election to be void. The second nsw ground should be that if the High Court is of the

59 opinion that the election has not been a free election by reason that coercion or intimidation has been exercised or resorted to by any particular community, group or section or by any member or members of any particular community, group or section on the members of any community, group or section to vote or not to vote in any particular way or for any particular candidate, or not to vote at all, then also the High Court shall declare the election to be void. A definition of 'coercion and intimidation' should also be added. The Commission feels that unless these recommendations are accepted by Parliament, election in our country will not be free from bribery, undue influence or intimidation and therefore will not be free and fair election. Recommendation No. 24 Amendment of section 123 relating to corrupt practices.—Section 123 of the 1951-Act should be suitably amended. In the first place, a doubt arose as to the exact meaning and connotation of the expression "national emblem" which has been used in clause (3) of section 123. An inclusive definition of "national emblem" should be given. The expression "national emblem" should be defined to include— (a) the emblem of the Republic or Union of India, or of the Government of India or the pictorial representation thereof; (b) the pictorial representation of Ashoka Chakra as used in the Indian national flag or in the official seal or emblem of the Government of India or of any department of the Government of India; (c) the pictorial representation of Rashtrapati Bhavan, Parliament House or Supreme Court building. In the second place— existing clause (5) which deals with the corrupt practice of hiring etc., of vehicles etc., for free conveyance of voters should be recast with wider scope. In the next place, three new corrupt practices should be introduced. All these three new corrupt practices relate to election expenditure. The first of these should make the incurring of unauthorised expenses a corrupt practice. The second and third corrupt

60 practices consist in the making of false r&turn of election expenses by the candidates. At present, the making of a false return is neither covered by section 10A of the 1951-Act nor is it a corrupt practice

under section 123. If these two corrupt practices are adopted then that will certainly go a long way in cleansing our electoral behaviour in relation to election expenses. Lastly, clause (7) of section 123 should be amended by including in the prohibited category of persons, teachers of government schools. It is the experience of the Commission that candidates at elections sometimes take help and assistance of these teachers on a large scale. This is a bad trend and should be stopped. Recommendation No. 25 Coercion and intimidation of voters at election should be an electoral offence.—For this purpose a new section 125A may be inserted after section 125. Recommendation No. 26 Substitution of a number of sections for section 126.—A number of sections should be substituted for existing section 126 of the 1951-Act. Present section 126 as very much limited in scope. It (has come to the notice of the Commission that the section may I rendered nugatory in a number of ways. It is therefore considered that all loopholes should be plugged and accordingly it is recommended that section 126 should be so amended as to provide that noperson shall— (a) convene, hold, attend, join or address any public meeting or procession of any kind whatever, or (b) display to the public, or arrange the display to the public of, any electoral matter by means of cinematograph, television or other similar apparatus, or (c) propagate any election matter to the public by holding, or arranging the holding of, any musical concert or any theatrical performance or any other entertainment of amusement with a view to attracting the members of the public thereto,

61 in any polling area during the period of 48 hours ending with the houf fixed for the conclusion of the poll for any election in that polling area. Any contravention of the above provisions should be made punishable with imprisonment for a term which may extend to two years or with fine or with both with the result that the offence will be a cognizable one and the police would be able to arrest without warrant. . . • .. :: MM The expression "election matters" should be defined to mean any matter intended or calculated to influence or affect the result of an election. In the second place, it has come to the notice of the Election Commission that when polling is actually going on, members belonging to a stronger community loiter in large numbers in the open compound or place in front of a polling station with the object of keeping a watch upon the persons who are standing in the queue awaiting their turn to vote. This sort of activity instils fear in the minds of voters belonging to the weaker sections of the community and is a very bad form of intimidation. Such objectionable acts must be stopped by inserting a new section 126A which should prohibit loitering in or near polling stations. In order that these new provisions may be really effective, the offence should be made cognizable so that the police may arrest the persons so loitering without warrant, if necessary. In the third place, by a new section 126B, display of certain election posters, pamphlets etc., on buildings, vehicles, hoarding or place or the writing or depicting of any election matter on any street, road, footpath, building etc., should be prohibited and made an electoral offence punishable with imprisonment for a term which may extend to six months or with fine or with both. Recommendation No. 27 Amendment of section 121 relating to disturbance of election meetings.—At present even if disturbance takes place in an election meeting, the police hardly can do anything to stop such disturbance or prevent the continuance of such disturbance because under subsection (3) of the section, the police can intervene in the matter and

take some action only if requested by the chairman of the meeting. Tihis is a most unsatisfactory state of things because for obvious reasons it is hardly practicable for the chairman of a meeting to request the police to take action. The police may 'be standing at a distance from the seat of the chairman, or the chairman for fear of future molestation may not have the courage to request the police even when there may be some policemen near at hand, or the disturbance may be so sudden and may be so serious and violent from the very beginning that the chairman of the meeting may not even get an opportunity to request the police to take suitable action. The result is that this section has, for all practical purposes, remained a dead letter. Moreover the punishment provided is also not deterrent. The maximum punishment is only 250 rupees and there is no provision as to imprisonment. It should therefore be provided that an offence under this section should be a cognizable one so that the police may arrest without warrant if any disturbance takes place in an election meeting. A further obligation should 'be laid upon police to take all such steps and use all such force as may be reasonably necessary for keeping order at an election meeting and also for ensuring the smooth conduct of such meeting. It is further proposed that the offence should be punishable with imprisonment for a term which may extend to six months or with fine or with both. With these proposed amendments this section is expected to be really effective in stopping disturbances in election meetings. Recommendation No. 28 Amendment of section 130.—Section 130 of the 1951-Act should be amended to prohibit a new kind of canvassing in or near polling stations. Quite often, supporters of candidates at or near the polling stations are found wearing badges, emblems etc., bearing the names of the candidates or the pictorial representation of the candidates. This is definitely tantamount to canvassing and must be stopped at or near the polling station. Recommendation No. 29 Amendment of the law to make the provisions relating to the free conveyance of voters in vehicles more stringent.—For existing section 133 of the 1951-Act which provides for punishment for illegal

63 hiring or procuring of conveyance at elections, a number of new sections dealing with the same subject should be substituted so as to make the provisions relative to the conveyance of voters in vehicles as exhaustive as possible so that this practice may be rooted out for good from our elections. In the first place, it should be provided that the hiring or procuring of any vehicle etc., by or on behalf of a candidate for the free conveyance of any elector to and from any polling station, or the use of any vehicle etc., by or on behalf of a candidate for the free conveyance of any elector to or from any polling station, should be a cognizable offence punishable with imprisonment for a term which may extend to six months and with fine and that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, the minimum imprisonment shall be three months and minimum fine shall be two hundred fifty rupees. It should then be provided that where any person has been convicted for an -offence as aforesaid, then in the absence of adequate reasons to the contrary to be mentioned in the judgment of the Court, the vehicle in respect of which the offence has been committed should be forfeited to the Government. These three provisions, namely, making the offence cognizable, provision for minimum punishment and provision for forfeiture of the vehicle would go a long way in putting a stop to this practice. Provisions of this section, however, should not apply to the hiring or procuring of any vehicle by a candidate or his election agent for the free conveyance of the candidate himself or his election agent or any other agent or the members of the candidate's family, or the use of any vehicle etc., for the conveyance of the candidate himself, or his election agent or any other agent or the members of the candidate's family or the use by a candidate of his own vehicle. • In the second place) the law should be amended to provide that the use of a vehicle etc., on the polling day in a polling area except ttnder a written permit granted by the district election officer or the returning officer or an assistant returning officer, should be a cognizable offence. No such permit however shall be necessary after the close of the poll. ,,rtj(?(». the third place, p'ower should be given to the magistrate or to the police or to any other officer especially empowered by the Elec-

64 tion Commission in this behalf to stop any vehicle etc., for the purpose of ascertaining whether any contravention of Ihe above suggested provisions is being committed. It should also be provided that where on a polling day before the close of the poll any vehicle etc., in respect of which a written permit has not been obtained as aforesaid, is found proceeding in the direction of a polling station with one or more persons in addition to the driver of the vehicle, then the presumption shall be, in the absence of the proof to the contrary, that the vehicle etc.. is being used for the free conveyance of electors to the polling station by or on behalf of a candidate. In the fourth place, it should be provided that where any offence under any of the aforesaid provisions has been committed, then in the absence of special or adequate reasons to the contrary to be mentioned in the judgment of the Court, the Court shall also order that the licence or certificate of the driver of the vehicle be cancelled and that no fresh licence or certificate shall be granted to the driver during the period of five years from the date of the order. If all these provisions are adopted and enforced, then the corrupt practice and the offence of free conveyance of voters etc., will come to an end in elections of this country. h Amendment of section 134A.—At present a government employee is liable to punishment under section 134A if he acts as an election agent or a polling agen! or a counting agent of a candidate, but there is no provision for punishing a government employee if he canvasses for votes for any candidate or addresses any election meeting or indulges in any other propaganda or campaign at an election. Tt has come to the notice of the Commission that sometimes government servants take part in these activities also. It is very necessarv that such activities by government employees should be stopped and thev can be stopped only if these activities are made offences punishable with imprisonment and fine. Recommendation No. 31 Going armed to or near polling stations should be prohibited.— Experience has been that in some parts of the country, on a polling

65 day, people go to or near the polling station armed with offensive and letha] weapons to terrorise people including voters. This is a serious matter at the time of election and every step should be taken to stop it. Hence a new section 134B should be inserted after section 134A to prohibit persons from going to or near polling stations armed with weapons. Recommendation No. tr32 Amtendment of section 135.—Ballot papers are sometimes taken away or sought to be taken away from polling station not only fraudulently but also by force and violence. To guard against this, section 135 should be amended suitably. Recommendation

No. 33

Insertion of new sections after section 135.—At least three new sections should be inserted after section 135 of the 1951-Act. The object of the first new section should be to compel the employers to allow their employees leave of absence without penalty or reduction of pay for a reasonable period of not less than three hours to enable them to vote at an election. If an employer does not do so, he shyyuttould be punishable with fine which may extend to fifty rupees. Similarly, if an employee under the pretence that he intends to vote but without the bonafide intention to do so, obtains leave of absence, the employee also should be punishable with fine which may extend to fifty rupees. This section should not however apply to a voter whose absence from duty may cause danger or substantial loss in respect of the employment in which he is engaged. By the proposed second new section sale or distribution etc., of intoxicating spirituous or fermented liquors or strong drinks at any hotel, eating-house, tavern or any other eating place, public or private, on any polling day within the polling area, or 24 hours preceding the polling day, should be prohibited. This offence should be made punishable with imprisonment for a term which may extend to three months or with fine which may extend to one thousand rupees or with both. By the proposed third new section any person below the age of 21 years should be punishable if he votes at any election even if his name is included in the electoral roll.

66

The above are the principal recommendations for the amendment of our election law. Some of them may appear to be drastic but to root out a deep rooted malady a drastic remedy is sometimes very necessary. If adopted by Parliament with whatever modifications and safeguards it may consider necessary, they will not only widen and strengthen the base of our elections but, if vigorously executed and enforced, also ensure freedom, fairness and purity in elections which are the legal machinery through which the People of India have been invited by the Constitution to govern themselves, in so far as law can ensure such freedom, fairness and purity in electionsBut, as Viscount Bryce observed in "The American Commonwealth" (1924 Edition) Vol. II at pages 152-153,— "It is always dificult to estimate the exact value of laws which propose to effect by mechanical methods reforms which in themselves are largely moral. This much, however, may be said, that while in all countries there is a proportion (varying from age to age and country to country) of good men who will act honourably whatever the law, and similarly a proportion of bad men who will try to break or . evade the best laws, there is also a. considerable number of men standing between these, two classes, whose tendency to evil is not too, strong to be repressed by. law, and . in whom a moral sense is sufficiently present to be capable of stimulation and education by a good law. Although it is true that you cannot make men moral by a statute, you can arm good citizens with weapons which improve their chances in the unceasing conflict with the various forms in which political dishonesty appears. The value of weapons, however, depends upon the energy of those who use them." CONCLUSION: THREE MAJOR ILLS AND THEIR REMEDIES From the above short survey we can safely conclude that there are three major ills which are affecting and corroding our electoral system and therefore the very foundations of democracy. They are— • . . . (1) corrupt practices in elections,

67 (2) defections by legislators, and (3) multiplicity of political parties. But on that account we need not lose hope in the success of parliamentary democracy in this country. A period of twenty years for the growth and development of parliamentary democracy on a firm basis in the life of a big and great nation like India with a teeming population and a wide superficial variety and diversity is nothing but negligible. There must be some defects and shortcomings at the beginning of every venture. As the Bhagavadgita says— "All beginnings are indeed covered with blemishes just as fire is covered by smoke. (Ch. 18 v. 48). In the march of history through the labyrinth of time we have seen much more serious obstacles on the path of democracy. We have seen a long-drawn civil war extending over a 'period of seven years between a despotic king (Charles 1) and a democratic Parliament (democratic by the standard of those times) and the ultimate victory of Parliament and democracy- Again we have seen a federal democratic republican Union which was made "more perfect" (by the Philadelphia Convention of 1787—89) having been rent as under almost in the, middle by a grim and fierce civil war extending over a period of four years and involving the loss of thousands and thousands of lives and the restoration of the federal Union and the final triumph of democracy under the clarion call of its leader (Abraham Lincoln)— " that we here highly resolve that these dead shall not have died in vain; that this nation under God shall have a new birth of freedom; and that government of the people, by the people, for the 'people, shall not perish from the earth." (From Abraham Lincoln's Gettysburg speech on the 19th November, 1863.) We should exert ourselves to the utmost for eradicating these three major ills and try to devise ways and means for doing so. The following remedies are accordingly suggested:—

68 (1) Legal remedy: amendment of the election law.—This has already been discussed in detail but the amendment of law by itself is not enough unless supplemented by other remedies. (2) Educational remedy.—A second remedy is therefore suggested. It may be called the educational remedy and it consists in the education of the electorate about their rights and duties in relation to elections. A countrywide drive should be launched for this purpose so that the. voters residing in more than five lakhs of villages and thousands of towns and cities of India may become conscious about their franchise and may exercise the same according to their free judgment and choice. If through posters, placards, newspaper advertisements, advertisements on public 'Service vehicles (buses), radio broadcasts, television, cinematograph films and every other available means of mass communication this campaign can be brought home to each one of the three hundred million electors of India then that will surely go a long way in making our elections fair and free- The Election Commission is now chalking out a programme of wide publicity for education of the, electorate in consultation with the Audio Visual Publicity Organisation of the Union Ministry of Information and Broadcasting and the State Chief Electoral Officers. (3) Democratic and moral remedy.—It consists in the unswerving adoption of the democratic method in elections. The democratic method is the method of free discussion and debate, "the grand dialectic of debate". Adoption of physical force and violence is totally and entirely alien to democratic method. It is opposed to the fundamental principles of democracy and democratic elections, namely, liberty and equality. Those who do not hesitate to apply physical force and violence to others for victory in elections will not surely the same to be applied by others to them. Thus they adopt a double standard, one for themselves and another for othersThis is opposed to all legal and moral norms. Prof. Paul Vinogradoff, Corpus Professor of Jurisprudence in Oxford University (1903—26) in his book, "Commonsense in Law", said— "No amount of selfish desire can conceal from my reason that what is objectionable to me is objectionable to my neighbours, that it is as bad to kill or rob as to be killed

69 or robbed. There is a story that a savage on being asked what was the difference between right and wrong, answered, I t is right when I take my neighbour's wife, but it is wrong when he takes mine.' No doubt rules which we hold sacred when we ourselves are concerned are often infrigned by us; but those who violate such rules become conscious of an antagonism between their reason, which condemns the act and their passions which prompted it." Thus physical force and violence in democratic election contradicts itself because it is unreasonable and is based solely upon passion and intense desire for self-aggrandisement. Therefore unless every candidate and every political party make a firm resolve not to resort to force or violence or to encourage or incite others to resort to force or violence for securing victory in elections, it will be very difficult to ensure free, pure and fair elections in spite of the earnest efforts of the election machinery. (4) Teleological Remedy.—The last remedy in the absence of a better term may be called the teleological remedy because it consists in generating a sense of purpose and direction in the electorate. And here a heavy responsibility lies upon our leaders. The need for leaders of men, "true, just, humane and valiant"—"bhutakrlt" (worldfashioner) as the Atharva Veda calls them, is insatiable. Unless they give proper lead and direction to our teeming electorate, no law, no Constitution, no Parliament is of much avail. Carlyle said about such leaders— "Get him for a leader and all is got; fail to get him, though you had constitutions plentifully as blackberries and a Parliament in every village, there is nothing yet got." I am again quoting from Bryce in his "Modern Democracies", Vol. II, page 53^ "Those who conduct the affairs of a nation ought to be held to a standard of honour in some points higher and more delicate than any which law can set. Tone can decline as it declined at Rome but it can also rise as it rose among English politicians in the days of Chatham-".

70 Therefore the tone and standard of our electoral and public morality can definitely be raised by a proper guidance and direction which may be given by our leaders. Because if they follow a high standard, the generality of men will naturally be inclined tj follow that standard. As the Bhagavadgita says— "For whatever a great man does, that very thing other men also do, whatever standard he sets up, the generality of men follow the same.

(Ch. 3 v. 21). S. P. SEN-VARMA Chief Election Commissioner of India. NEW DELHI;

Dated the 25th February, 1970.

GMGIPNO—SI—19 E Commi—JC 5995—8-4-70—2,500