1 SPEECH BY SHRI NAVIN B.CHAWLA AS ELECTION COMMISSIONER OF INDIA ON THE OCCASION OF THE INTERNATIONAL SEMINAR ON MEDIA AND ELECTIONS AT MEXICO, October, 17-19, 2005 India s constitutional and electoral democracy is nearly 55 years old. The people of India, the voters and the political parties, all have played their respective roles in a significant manner in strengthening of democratic roots in the country over these five decades and more. Among the institutions which have played major roles in making Indian democracy a role model for the developing nations, are the Election Commission of India and the national media. Before I deal in some detail on the roles played by the Election Commission of India and the national media in the electoral process of the country, I would like to flag a very recent development initiated by the Union Government towards the further empowering of its people. The Government of India with the approval of the Indian Parliament has recently enacted the Right to Information Act and established the institution of the Information Commission of India under this Act. The Information Commission is aimed to enforcing the rights of citizens to demand and access information on various matters relating to Government, its functioning and decision making. This measure will help in increasing transparency in the functioning of the Government and its institutions on the one hand, and empowering our citizens. This is a step in the direction of making Indian democracy more participative. It goes without saying that free and fair elections form the bedrock of democracy everywhere. And to ensure that elections in India are free and fair,
2 2 where all political parties and candidates have a level playing field and the voters can vote in secrecy without fear and according to their free will, the Constitution makers have entrusted the task of conducting elections to Parliament, the Legislature of every State and to the Offices of President and Vice-President of India, to the Election Commission of India. The elections to local bodies are, however, the responsibility State Election Commissions of the States concerned. The Election Commission of India can, justifiably, take pride in having discharged its constitutional duty and obligation of conducting free and fair elections in the country, which has earned for India a commendable reputation in the international community as one of the most stable democracies in the world. Elections are conducted according to the constitutional provisions, supplemented by laws made by Parliament. The major laws are the Presidential and Vice-Presidential Elections Act, 1952, which deals with all aspects of conduct of elections to the highest elective offices in India, including settlement of all doubts and disputes relating thereto; the Representation of the People Act, 1950 which mainly deals with the preparation and revision of electoral rolls for Parliamentary and Assembly elections; and the Representation of the People Act, 1951, which deals, in detail, with all aspects of conduct of elections to Parliament and State Legislatures and post election disputes. The Supreme Court of India has held that where the enacted laws are silent or make insufficient provision to deal with a given situation in the conduct of elections, the Election Commission has the residuary powers under the Constitution to act in an appropriate manner.
3 3 The Constitution envisages the Election Commission of India as a permanent Constitutional Body. Originally, the Commission had only a Chief Election Commissioner. From 1 st October, 1993, on a continuous basis, the Election Commission became a three-member body, comprising the Chief Election Commissioner and two Election Commissioners. All the three Election Commissioners have an equal say in the decision making of the Commission. The Commission, from time to time, delegates some of its executive functions to its officers in its Secretariat. The Commission assisted by a separate Secretariat at New Delhi, consisting of about 300 officials, in a hierarchical set up. At the State level, the election work is supervised, subject to overall superintendence, direction and control of the Commission, by the Chief Electoral Officer of the State, who is appointed by the Commission by selection from amongst senior civil servants proposed by the concerned State Governments. He is, in most of the States, a full time officer and has a team of supporting staff at the State level. The gigantic task force for conducting a country-wide general election consists of nearly four million polling personnel and nearly nine million civil and para-military police forces. The register of electors, namely, the Electoral Rolls, contain nearly 700 million electors of which approximately 60% vote during a general election. Nearly 700,000 polling booths are set up all over the country to facilitate these voters to exercise their franchise. The whole exercise for a country-wide general election cost the equivalent of about US$ 280 million.
4 4 In the performance of its functions, the Election Commission is insulated under the Constitution from executive interference. It is the Commission which decides the election schedules for the conduct of elections, whether general elections or bye-elections. Again, it is the Commission, which decides on the location of polling stations, throughout the length and breadth of the country, assignment of voters to these polling stations, location of counting centres, arrangements to be made in and around polling stations and counting centres and all allied matters. Under the Constitution, the Commission also has advisory jurisdiction in the matter of post-election disqualification of sitting members of Parliament and State legislatures. Further, the cases of persons found guilty of corrupt practices at elections, which are decided by the Supreme Court and High Courts, are also referred to the Commission for its opinion on the question as to whether such persons shall be disqualified for contesting future elections and, if so, for what period. The opinion of the Commission in all such matters is binding under the Constitution and law, on the President or, as the case may be, the Governor to whom such opinion is tendered. The Commission also has the power to disqualify a candidate, who has failed to lodge an account of his election expenses, within the time and in the manner prescribed by law. The Commission has also the power of removing, or reducing the period of, such disqualification, as also other disqualifications under the law.
5 5 Judicial review being an important ingredient of the rule of law to which our country is wedded, the decisions of the Commission are also judicially reviewable by the High Courts and the Supreme Court of India on appropriate petitions. But, by a constitutional provision namely, Article 329 (b) of the Constitution, once the actual process of elections has started, it cannot be questioned in a court of law. Once the polls are completed and results declared, any result can be reviewed, but only through the process of an election petition, filed before the High Court of the State concerned, in respect of elections to Parliament and State Legislatures. In respect of elections for the Offices of the President and Vice-President of India, such petitions can only be filed before the Supreme Court of India. The democratic system in India is based on the principle of universal adult suffrage; that is to say, any citizen of India over the age of 18 years on a prescribed qualifying date (i.e., the first January of the year in which the electoral roll is prepared or revised) is entitled to get himself enrolled as a voter for an election to Lok Sabha or Vidhan Sabha (before 1989, the age limit was 21 years). The right to vote is irrespective of religion, gender, creed or caste. Those who are of unsound mind, and people convicted of certain criminal and electoral offences and corrupt practices at elections, are not allowed to vote. Elections for the lower house of Parliament (Lok Sabha) and every State Legislative Assembly have to normally take place every five years, unless called earlier. The President can dissolve Lok Sabha and call a general election before
6 6 five years term expires, if the government can no longer command the confidence of the House, and if there is no alternative government to take over. The Governor of a State can do the same in the case of the State Assemblies. In a country as huge and diverse as India, finding a suitable period when elections can be held throughout the country is not simple. The Election Commission, which decides the schedule for elections, has to take such diverse but important factors into account such as the weather during winter, constituencies may be snow-bound, and during the monsoon rains, access to remote areas restricted; the agricultural cycle, so that the planting or harvesting of crops is not disrupted; exam schedules, as school buildings are often used as polling stations, and teachers usually employed as election officials, and indeed religious festivals as well as public holidays. On top of this, there are the logistical difficulties that go with the holding of an election mobilisation and movement of civil and para-military police forces, printing and distribution of hundreds of millions of ballot papers, sending out ballot boxes, procurement, checking and movement of Electronic Voting Machines where these are to be used, setting up polling booths, appointing millions of officials to conduct polls and counting and overseeing the elections. During the election campaign, the political parties and contesting candidates are expected to abide by a Model Code of Conduct evolved by the Election Commission on the basis of a consensus among political parties. The Model Code is a unique document and regarded by many democratic countries across the world as singular contribution by the Election Commission of India to
7 7 the cause of free and fair elections. It prescribes guidelines for the ruling parties, both at the Centre and in the States, to ensure that a level playing field is maintained and that no cause is given for any complaint that the ruling party has misused its official position for the purposes of its election campaign. It also lays down guidelines as to how the political parties and candidates should conduct themselves during the election campaign. It is intended to maintain the election campaign on healthy lines, avoid clashes and conflicts between political parties or their supporters and to ensure peace and order during the campaign period and thereafter, until the results are declared. Over the years, the Election Commission has been actively enforcing the Model Code of Conduct and ensuring its strict observance by the ruling parties, at the Centre and in the States, so as to provide a level playing field, for all parties and candidates in the electoral fray. Apart from the scale and complexity of the operation in any Indian election, there is also the question of ensuring fairness, sometimes under trying conditions. The Commission has on occasion had to use every provision of the law to try with calm firmness, to ensure a level playing field, for all political parties. The Code of Conduct, put together by the parties themselves, has been of considerable help. One objective test of fairness is the fact that often enough at every election, the Indian voters have overthrown major political parties, and leaders and heads of governments. Another one is the acceptance of every election result by all parties, whether they win or lose. No Indian political party
8 8 has even shown lack of faith in the Election Commission. But, this mutual confidence is not easy to achieve. It can only be obtained by frequent dialogue between the parties and the Commission, and the Commission s ability to listen carefully and dispassionately to the views and worries of all those who are involved in the political process. The Commission holds regular meetings with recognised political parties to discuss all issues. On an individual basis also a cordial dialogue is maintained. The commitment of the Election Commission of India to uphold the democratic values and to ensure that people get an opportunity to exercise their franchise irrespective of their geographical locations or numerical strength was recently demonstrated during my recent visit to one of the most remote Assembly Constituencies in the country, namely, Zanskar in the State of Jammu and Kashmir. Here a bye-election was held on of the 70 assembly segments in this remote part of North India, there were villages with as few electors as 10, 15 and 25 individuals. Their villages were not accessible by road. Teams had earlier to walk for days altogether to reach these villages with election materials. The Election Commission of India, not mindful of the cost involved, pressed helicopters into service to reach its polling personnel and materials to these locations and set up polling stations to enable these electors to exercise their franchise close to their homes even though their numbers were tiny. This proves the point that democracy is priceless and no cost is too high to uphold its values and basic principles.
9 9 The Commission s power, and ability to execute faithfully the directions of the Constitution, depends not so much on legal powers, but the faith and support of the Indian people. The role that the media plays in elections hardly needs any stress. The electoral management bodies do undertake programmes to educate voters about their rights and duties in the democratic process. It is, however, the media that provides valuable information to the voting public and citizens with regard to the electoral process. With their wide reach both through the print and electronic media, it is the media which by their intensive and extensive coverage of the electoral campaigns of political parties and candidates inform the electorate about the manifestoes, programmes and policies of parties and contestants. Even the functioning of the Government during the run up to the elections and also during the actual process of polling and counting comes under their scrutiny and helps to provide a level playing field for the political parties in the electoral fray. Media reports also provide valuable inputs to the electoral management bodies with respect to the events taking place in the field and the nature of electoral campaigns. The Election Commission of India studies these media reports both during election period as well as during non-election period continuously and closely to get the feel of the field situation and to initiate corrective actions wherever it feels they are required. In India, there has been a quantum growth of media, the electronic media certainly, and the print media as well, particularly during the last decade. With such large scale proliferation of media, its converge of the electoral process has
10 10 also assumed greater significance, both for the Election Commission of India and also for the general public and the electors in particular. The Election Commission, on its part, is also encouraging the media to have as much access and wide coverage of the electoral process as possible with a view to bringing in transparency in the electoral process and also highlighting the irregularities, if being committed in some corners where the Commission s official machinery might not be able to reach, for corrective action. It authorizes media personnel by issuing special permits to them to go even into the polling stations and counting centres to watch the proceedings taking place there, with due regard, however, to the secrecy of voting. The Commission also sets up special media centres at all counting centres where the votes are counted. Apart from this, a separate Media Coordination Unit has been set up in the Commission s Secretariat to assist media in obtaining election-related information. Periodic press conferences are held during non-election period and regular press briefings, almost on daily basis, are conducted during the election period so that there is proper dissemination of the information flowing from the Commission which also assists the Commission in getting educated in the process about the developments in the field. In order to ensure a healthy coverage of the electoral activities and campaigns, detailed guidelines in the nature of code of conduct have been issued by the Commission, which the media is advised to observe for maintaining a peaceful and friendly atmosphere during elections. One of the issues which is agitating the minds of the political parties and also of the Election Commission about the media coverage is the issue of opinion
11 11 polls and exit polls, conducted by the media and the dissemination of their results. Opinions are divided. One view is that the Press has the right to inform the people as to what others feel about certain political parties and candidates in the election fray as part of their freedom of speech and expression and right to information. The opposing view is that such dissemination of results of opinion and exit polls can and does influence the voters when they are in the mental process of making up their minds, to vote or not to vote for a certain political party or a candidate. This issue assumes greater significance in the case of a country like India where, for various constraints, polls cannot take place throughout the country or a State on a single day in the case of a General Election, have necessarily to be spread, sometimes over several phases. The results of exit polls conducted by the media in one phase and disseminated before the conduct of the subsequent phase may have a bandwagon effect on the mind of the electorate going to the polls in the subsequent phase. Recent experiences have shown that, in many cases, the likely outcomes of such exercises and the projected results on the basis of such opinion and exit polls conducted by the media using different methodologies and varying sample sizes have been quite off the mark, and have given a distorted picture. The Press Council of India has issued certain guidelines to be observed by the media while conducting such opinion and exit polls and dissemination of results thereof. The Election Commission of India, too, issued in the past certain guidelines prohibiting the dissemination of results of exit polls till the polling in all the phases at a general election was over, but later on withdrew this, as the constitutionality and legality of those guidelines was called in question before the Supreme Court
12 12 of India. Several political parties are again raising this issue advocating the promulgation of such ban. The Commission has left it to Parliament to debate the issue to consider all its aspects, and to find an appropriate solution.