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Secrecy of casting vote is necessary: Supreme Court

  • Category
    Polity & Governance
  • Published
    26th Jul, 2021

In a recent Judgment, the Supreme Court observed that any attempt of ‘booth capturing and/or bogus voting’ should be dealt with iron hands as such activity ultimately affects the ‘rule of law and democracy’.

Context

In a recent Judgment, the Supreme Court observed that any attempt of ‘booth capturing and/or bogus voting’ should be dealt with iron hands as such activity ultimately affects the ‘rule of law and democracy’.

Background

  • SC gave the judgment while upholding the conviction of eight persons involved in rioting and causing injuries with firearms outside a polling station in what is now Jharkhand ahead of the 1989 Lok Sabha elections.
    • The eight have been found guilty of beating a Bharatiya Janata Party worker after he refused to hand over voter slips to them. 
    • They also fired and caused injuries to bystanders.
  • In this case, the accused are convicted for the offences under Section 323 and 147 IPC and are sentenced to undergo six months simple imprisonment.

Analysis

Key-points highlighted by the SC

The Bench

The bench comprised Justices DY Chandrachud and MR Shah.

  • Election is a mechanism that represents the will of the people and democracy and free election have been said to be part of the basic structure of the Constitution.
  • The freedom of voting is a part of the freedom of expression and secrecy of casting vote is necessary for strengthening democracy.
  • The essence of the electoral system should be to ensure freedom of voters to exercise their free choice.
  • Nobody can be permitted to dilute the right to a free and fair election.

The 2013 judgment in Peoples Union of Civil Liberties case held that freedom of voting is a part of the fundamental right of freedom of expression.

Booth capturing 

  • In the context of Indian Election, according former CEC S.P. Sen Kumar, booth capturing rigging refers to:
    “When people speak about rigging during the electoral process, that generally means that a corrupt practice has been committed in a constituency in a systematic and pre planned manner with the aid and consent of the ruling party, either acting individually or aided by the Election Commission itself. Rigging is used in the used in the press by the politicians.”
    Booth capturing exists in various forms. 
  • Bogus voting, the most common form is more widespread in urban areas; in rural areas familiarity instills fear of being caught red handed in the act. 
    • The outlook of allowing agents of the candidates at polling booths is to keep an eye on bogus voting and it is nearly impossible to identify voters in elections held in urban areas.

Case Study

  • In Nagaland, for example, voting by school students is a frequent occurrence during elections.
    • Teachers are the instigators and they enrol all their students as voters and register their votes on the polling day. 
    • This is a major reason behind Nagaland`s massive electorate which stands at 75% against the national average of just over 50%.
  •  Double enrolment is also very frequent during elections in India. People having their residence in rural areas but their place of work in urban areas register themselves in both the places. 

Case Study

  • Printing unsanctioned ballot papers and using them in elections amounts to Rigging. Such a contention was raised during the 1983 Jammu and Kashmir Assembly polls.
  • Snatching ballot boxes in transit is a common instance in Northern states of India despite the presence of the government officials and the agents of the candidates.

How Elections are conducted in India?

  • With a ‘Federal Government’, the Republic of India held elections to choose officials at local, state and federal levels in this country. 
  • Lok Sabha (Secret Ballot): The Lok Sabha members are chosen through general elections that take place every 5 years. 
    • Voting takes place through secret ballotfor the Lok Sabha and State assemblies. It is most important and prerequisite to the public to express their will freely and fairly. 
  • Rajya Sabha (Open Ballot): The Rajya Sabha members, on the other hand, are chosen by all the elected members of the state legislative assemblies and Union Territory Electoral College through the open ballot system.
  • Conducting authority: The Election Commission of India conducts the elections. 
  • Method: Elections are held by Universal adult franchise. 
    • Who is a citizen of India and not less than 18 years of age can register as a voter in the electoral roll of India. 
    • There is no discrimination on the ground of religion, race, caste, sex or any of them.
  • In India multiparty system is functioning.
  • Elections are determined by the relative majority of valid votes polled.

Election Commission of India

  • Election Commission of India is a Constitutional Body created under Article 324 of the Constitution of India. 
  • It was set up on 25th January 1950. 
  • Election Commission of India conducts elections to the offices of President & Vice President of India, both Houses of Parliament (Lok Sabha &Rajya Sabha), State Legislative Assemblies, and State Legislative Councils.
  • The election machinery is headed by Chief Electoral Officer at the State/UT level, and by District Election Officer at the District level. 
  • The President appoints the Chief Election Commissioner and Election Commissioners. They have a tenure of six-year, or up to the age of 65 years, whichever is earlier. 
    • They enjoy the same status as the judges of the Supreme Court of India. The Chief Election Commissioner can be removed from office only through impeachment by Parliament.
    • Election Commissioners including the Chief Election Commissioner have equal say in the decision making of the Commission.


What hinder the process of fair elections?

  • Corrupt practices related to elections (bribery)
  • Undue influence (use of physical force and booth capturing)
  • Inciting hatred and violence amongst people of different communities
  • Criminalization of politics
  • Influencing public officials
  • Defection politics
  • Demanding votes on the basis of religion and caste
  • Misuse of Election Machinery

Important initiatives for free and fair elections

Various initiatives have been taken by the Parliament by amending the laws for a free and fair election in India.  There have been many changes made from time to time on our electoral system, but there were no significant and substantial reforms brought about. The reforms are as follows:

  • Reports of Dinesh Goswami Committee on Electoral Reforms (1990)
  • Indrajit Gupta Committee on State Funding of Elections (1998)
  • Law Commission’s Report on Reform of the Electoral Laws (1999)
  • NCRWC (National Commission to Review the Working of the Constitution) 

Constitutional provisions

  • The Constitution of India promises free and fair elections to the citizens of the country.
    • It empowers the Election Commission to superintend, control and direct the elections in India.
  • Part XV of the Constitution of lays down the ‘right to vote’ promised to the citizens and other provisions related to elections in India.
  • In response to that, the Parliament enacted the Representation of the People Act, 1950 and the Representation of the People Act, 1951 to regulate the conduct of elections.

 What measures are required?

  • Effective implementation: Initiatives go in vain without implementation. Thus, there is an urgent need for effective implementation of the existing laws and measures. 
  • Strong SC’s intervention:The Supreme Court should take all necessary steps to strengthen democracy in the country. The legislature and executive have been complaining about the Supreme Court’s intervention on their domain, but it becomes imperative in such kind of unwanted situation. 
  • Electoral reforms: The long-pending electoral reforms need to be addressed related to stopping the blatant abuse of money power, raising the ceiling on election expenditure for political parties, ensuring a level playing field, and making paid news a criminal and electoral offense.

Final thoughts

Nations which are ‘democratically elected’ postulate free and impartial elections and India being a colossal democracy demands such process.

The free and fair Election process is a foundation of a healthy democracy. The Democratic future of India depends upon healthy political environment, and to protect it free and fair election process is inevitable. 

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