EDITORIAL

EC Overreaches Itself In Bihar

AN enterprising journalist has coined the term seshanitis to describe the disease that has currently seized the Election Commission with regard to the ongoing assembly elections in Bihar. In its over-zealousness to ensure free and fair elections (which in fact are the constitutional mandate of the Election Commission), the EC is overreaching itself in many respects. The Indian people have vested in the Election Commission the authority to take measures to ensure free and fair elections. But the same mandate also calls upon the Election Commission to be an unbiased and faithful “third umpire.”   With regard to the ongoing election process in Bihar, however, there have been instances which are very disturbing and which cast doubts on the Election Commission’s exercise of this mandate.

The EC has directed the states and union territories to delete those names from electoral rolls against whom non-bailable warrants had been pending for more than six months. This will lead to the disenfranchisement of tens of thousands of people --- 23,000 in Bihar alone. The EC has not merely overreached itself by issuing such a direction but also encroached upon the jurisdiction of other constitutional authorities. Section 19 of the Representation of the People Act 1951 (RPA) says a person is registered on the electoral rolls for being an “ordinarily resident in a constituency.” The EC’s ‘justification’ that an individual is not an ordinarily resident at the given address if he/she is absconding from law for six months and a non-bailable warrant could not be executed, is seriously flawed. 

For one thing, non-bailable warrants are issued routinely in many states, often as an abuse of authority. Further, it is an established fact that the non-execution of such warrants is often due to police apathy in tracing the concerned person. Moreover, for various reasons, a person may not be even aware of a warrant against him when such are issued in pursuit of vendetta.  The EC’s move, therefore, amounts to making sweeping assumptions about the residency status of people, leading to the disenfranchisement of many.

Ostensibly, the EC has taken such a step to check the growing criminalisation of politics. But this is no way to go about it. We have had instances in the past where a number of people contested elections successfully while being in jail. In 1965, communist stalwarts imprisoned under the Defence of India Rules successfully contested elections in Kerala.  The issuance of a non-bailable warrant cannot be a presumption for establishing guilt and thereby barring people from contesting elections.     Sections 8 and 10(a) of the RPA 1951 have laid down the various grounds on which a person can be disqualified from contesting elections. The EC’s order is clearly violative of this. 

Interestingly, the European Court of Human Rights recently ruled that people serving a sentence in prison cannot be denied their right to vote. The court ruled that a prison term curtails liberty but not the basic rights. It further ruled that from the standpoint of contemporary rule of law, the denial of the right to vote amounts to a double punishment. It emphasised that while the right to vote is not absolute, imposition of restrictions on the right must be in pursuit of a legitimate aim. The presumption must be in favour of including, not excluding, people from the democratic process. What our EC has done is precisely the opposite --- in letter as well as in spirit.

Further, with respect to the ongoing elections in Bihar, the EC has been found wanting as a neutral and a fair umpire. It is completely unbecoming of an officer in-charge of the electoral process to openly speak to the media, while the electoral process is on, stating that the elections in Bihar are worse than conducting elections in Jammu & Kashmir. Apart from impropriety, such a statement smacks of very strong biases that are untenable and not in tune with the EC’s mandate. For the remaining two phases of elections in Bihar, the EC must urgently rid itself of its baseless prejudices and biases.  Its conduct must encourage fearless participation of a larger number of people in the electoral process. Its conduct cannot be to terrorise the electorate and, thus, intimidate them from exercising their franchise. In the interest of strengthening India’s democratic foundations and enhancing the credibility of the democratic institutions, we hope the EC will seriously review its conduct and pronouncements and take necessary corrective actions.