It is quite appalling to observe the state of things in India. From the arbitrary and disproportionate measures taken against students, youth, lawyers, journalists, civil society and any other segment of society who are anything but a threat to the nation being branded as disrupters of the peace or other unsettling terms hurled at them by these sycophants to the fascist dispensation to the active involvement of non-state actors in support of the same power structures mercilessly attacking and assaulting the highly aware citizens of India who ask nothing more than the lawful implementation of their franchise they had won long back and whose entitlement should not have been stripped away anytime, this prolonged and dangerous situation has been subsisting for over a week, becoming the front page exclusive yet failed to be acknowledged by a vast majority of Indians who are sipping a cup of coffee every morning without knowledge of this very poor state of things.
A protest always has
a legitimate rationale. When allegations of the organizations at Jantar Mantar
being colour revolutions are thrown around, we can call it nothing short of the
phrase “propaganda”. Even where Section 163 is imposed, even when reasonable
restrictions exist, the law is clear even when not codified: even the abuse of
reasonable restrictions may qualify as the colourable exercise of power, of
indirectly doing what the law does not allow to do.
When Delhi has erupted
with people from all walks of life coming together as one in line with its
long-standing history of resistance as our freedom struggle demonstrates, their
demonization by our fellow ignorant citizens can be described only as
bootlicking. Let us take up their arguments and dismantle them one by one for
let us defeat ignorance with reason.
There are two primary
issues to deal with: the special intensive revision (SIR) exercise and the credibility
of the Chief Election Commissioner (CEC). The SIR has been a process initiated
in various states. It happened in my hometown as well. Due to the very nature
of the government in power, legitimate criticism arises. Why does the ECI
suddenly order a special drive to include deleted names? How come 9 million
voters were disenfranchised right before the West Bengal elections and had to have
their appeals to the Appellate Tribunal stagnated when it would actually take
years and by then the state elections would have been over and the entire
process would have become a fait accompli? Why are Form 7 objections
filed mostly against Muslim voters (oh, don’t you go into Islamophobia to
justify this…) Furthermore, this particular point has to be made when those who
have the privilege to procure documents as their proof of identity accuse any form
of criticism against the SIR as politically motivated when deaths and “illegal
immigrants” are deleted from the rolls. To them, we must ask, how can the ECI
determine citizenship? Even if it did, how can you expect more than a billion
people in India who possess no means physically or digitally largely due to the
failures of the state any access to any proof of citizenship, be it any of the
eleven documents specified by the ECI? This becomes significant in our
discussion later on.
Section 21(3) of
the Representation of People’s Act, 1950 is the legal basis for the ECI to
conduct special revisions: “…the
Election Commission may at any time, for reasons to be recorded, direct a
special revision of the electoral roll for any constituency or part of a
constituency in such manner as it may think fit.” The Registration of Electors
Rules, 1960 also lays down subsidiary rules for the same but they are more or
less within the ambit of discussion over this piece of legislation. The
authority to authorize the ECI with such powers derives from an act of
legislature which is well within the power of the Parliament to do so under
Article 327 of the Constitution which can be exercised only subject to the
provisions of the Constitution-very relevant when Article 324 says the power of
preparation of electoral rolls are vested with the ECI. When there is legal
authority, it appears it is only the manner of conduction of the whole exercise
itself that becomes questionable, especially when it is done in a hurried way
right before state elections commence and those who have already been subject
to the 2003 revision being mandated with high evidentiary thresholds (compounded
by the earlier fact that socially or economically disadvantaged communities
would not have any material opportunity to prove their citizenship as aforementioned)
as opposed to new voters. Clearly, where the SIR is allowed only to be
undertaken in a single or part of a constituency, the acts of the ECI might
seem misplaced. But here’s the catch.
The
Supreme Court did adjudicate on the SIR process when the exercise undertaken in
Bihar was challenged in Association for Democratic Reforms v. Union of India
(2026). The challenge was made on the basis of Article 327 and Section 21(3)—that
ECI cannot act where there is an occupied field due to parliamentary
legislation—but the other contention remains strong, as the Court itself
recognized that the repository of power to prepare electoral rolls lay with the
ECI as per Article 324 as CJI Surya Kant penned down—statutory authority does
not eclipse the foundational constitutional authority vested in the ECI. On an
abstract notion of the working of independence of the ECI, it is legally sound and
allowable (here, our question itself is regarding the independence of election
authorities as such and the procedural regularity of the entire exercise itself)
thereby expanding the powers of the ECI itself. No doubt, they are a
constitutional body. Given the nature of Section 21(3) being a non-obstante
clause, it may grant flexible powers to the ECI for the conduction of special
revisions beyond the confines of any one constituency.
The
law sounds to be in favour of the ECI. Yet, questions remain unanswered. Two
points are to be noted here: Firstly, the challenge was not made to the conduction
of what may be called as an SIR itself, it was the manner in which it was being
executed prior to the elections in Bihar. Further, the apex court continued to
recognize the conflict existing between Articles 324 and 327—as the text itself
goes: “The Commission cannot act in defiance of an express statutory
prohibition. Conversely, parliamentary legislation cannot be deployed to
extinguish the Commission’s overriding constitutional mandate. This delicate
constitutional equilibrium was authoritatively elucidated by the Constitution
Bench in In Re: Special Reference No. 1 of 2002 (Gujarat Assembly Election
Matter), (2002) 8 SCC 237…” With this proposition, one comes to the
conclusion: how on earth has parliamentary legislation been deployed to
extinguish the ECI’s overriding mandate when it was the manner of conduct of
SIR was being challenged, not the power of conducting SIR itself?! This is the
first loophole.
Legally
speaking, issues are unresolved. At some points of times, it may not be enough
to be a legal scholar, one has to be political as well. This can never be
construed as surrender to the so-called legal supremacy of the other side—law has
to bow to the philosophy of the masses who entered into this social contract.
Their lived realities are as much a concern to us. But here’s where it gets
interesting. The problem is the independence of election bodies itself! This is
the second loophole.
The
interesting part is that Lal Babu Hussein v. Electoral Registration Officer
was also a two-judge Bench decision of the Supreme Court, as much as the SIR verdict,
pertaining to a case where there was an application to the ERO for inclusion as
part of the electoral roll. It’s highly relevant to this regard—prior inclusion
in the rolls warrant evidence, and moreover, a directive by the ECI to not
recognize certain documentary evidence was struck down. The police cannot
demand a specific document for citizenship (nor can the ECI by derivation from
this precedent), the citizen is free to produce the document he or she
possesses. I do not for a moment think that people higher up in the strata of
society would be able to understand the nature of this because they are
accustomed to have the luxury of readily available documents when the majority
of the masses has been able to acquire any such privilege. The law is clear—disenfranchisement
cannot be the objective of the SIR, only inclusion of names. This is only
empowerment of citizens’ right to vote as contained in Section 62 of the RPA
(which is long due to be recognized a fundamental right!). Where ‘logical
discrepancies’ due to spelling errors, high evidentiary standards compounded by
the speedy exercise undertaken without any reasonable opportunity of being
heard (a principle of natural justice no less being violated by the sad
functioning of the websites and no reason being recorded in contravention of statutory
provisions themselves!), linkage to the 2003 SIR are being the conditions
arbitrarily set down for inclusion in the rolls, and such and such, the common
man has nothing left but to succumb to the pressures of the process. Is the SIR
process indeed being performed in a mala fide way?
That’s
where Gyanesh Kumar comes in. Appointed immediately post the resignation of the
previous CEC, his deadening silence to the protest remains persuasive enough to
establish the compromise of the independence of the ECI. Here’s the truth bomb,
the appointment of the Election Commission of India since the inception of the
Constitution has always been done by the executive. Boo-hoo, the election body
has not been drafted well as the layman might think. The legal vacuum persists
because unless and until Parliament legislated on the matter, this had been the
convention. The appointment process under Article 324(2) was challenged in Anoop
Baranwal v. Union of India where the Supreme Court for the time being said
a selection committee consisting of the Prime Minister, the Leader of Opposition,
and the CJI can recommend names. The practice was soon unfollowed by virtue of
it being a temporary measure propounded by the Supreme Court, which after all
cannot legislate. The new norm? The CJI being replaced with a Cabinet Minister
with ruling party interest outweighing that of the opposition in the selection
committee according to the Chief Election Commissioner and Other Election
Commissioners (Appointment, Conditions of Service and Term of Office) Act,
2023. How can one trust this process especially when the Election Commissioners
under Section 16 are imbued with legal immunities against both civil and
criminal proceedings? Immunity therefore has become an instrument for excluding
judicial review. The Indian Express expose may not be admissible in a
court of law but the very fact that the two other Election Commissioners have
on record objected to unilateral acts itself questions whether the decisions
made were proper in the first place!
When
an independent body itself has been manipulating elections (as studies of civil
society, newspapers reveal, the judiciary is not active enough to act in
protection of the constitutional rights of the people of India, what can they
do but to come out and demand the resignation of the CEC who is not only
unaccountable but non-responsive? You might be starkly surprised that although
there are legal contentions on any side, it is unreasonable for the state to
unleash violence upon peaceful protestors with disproportionate force as seen
in Delhi. How can public order be preserved with the cancellation of all daily
activities, collaboration with the likes of the Sangh? It is un undeclared
emergency, we cannot mince our words. What is outrageous is that loquacious bootlickers
resorting to not the language of legal defence but politically motivated and
hate speech that is consumed with Islamophobia, the branding of the citizens of
India (CJP, SFI, AISA, any other opposition party and civil society for that
matter!) as anti-nationals, or foreign agents funded by China or Pakistan. It’s
not only condemnable and rubbish but a huge disgrace on their part! Where our
social contractarian Constitution demands accountability, all they can do is
question the opposition. Where there is testimony as to vote fraud and theft
and accountability is lacking, it is imperative to understand that the ruling
dispensation is sustained only by the likes of them. When they cannot legally
nor politically give a reasoned response, it illustrates acknowledge by the
right-wing that their political motives of establishing a religious
supremacist, caste-ist, and racist regime supersedes the interests of the
people. We must not bat an eye whether they are hurt by strong criticism, it is
our fundamental right!
I
want to end this by quoting The Solution by Bertolt Brecht that
questions authoritarianism and makes an ironic suggestion that to emerge victorious
amidst popular conscience, the government may as well as dissolve the people
and elect another(!):
After the uprising of the 17th
June
The Secretary of the Writers’ Union
Had leaflets distributed in the Stalinallee
Stating that the people
Had forfeited the confidence of the government
And could win it back only
By redoubled efforts. Would it not be easier
In that case for the government
To dissolve the people
And elect another?
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