By Dr. G.V. RAO
Covid has unleashed greater and most effective means of utilising communication technologies, practically removing all human interaction. The age-old adage “Necessity is the mother of invention” couldn’t have been better at display. Challenging problems require extraordinary solutions. Nelson Mandela, one of the greatest icons of the struggle for establishment of a democratic form of governance, once famously remarked: “An educated, enlightened and informed population is one of the surest ways of promoting the health of a democracy.”
The fundamental basis of an effective democracy is the enlightenment, effective interaction and active participation of the voter populace in order that the right choice for the political leader or outfit is made. Hence, any development that disseminates information to the voter directly of the concerned issues, during elections is a welcome step for democracy.
In this context, when a petitioner approached the Uttarakhand High Court for postponement of elections, the Court’s order on January 5, 2022, is laudable. It directed the Election Commission of India to consider a “virtual mode” of campaigning along with the online method of voting.
Given past experience, large public meetings attract hundreds of thousands of people. This is detrimental to health standards and promotes the spread of the pandemic. Two things come to the fore and deserve focus—virtual campaigning (read webcasting) and online voting.
The Dinesh Goswami (former law minister) Committee on Electoral Reforms of 1990 was the first to discuss state funding of elections, which led to the discussion of virtual campaigning through TV and radio as there were no internet technologies then. Today, when we speak of virtual campaigning, it would include the electronic media, internet and social media, which are available in the form of online and mobile technologies.
Subsequently, as part of a debate on electoral reforms in 1998 with regard to the subject, “The Indrajit Gupta Committee Report on State Funding of Elections” placed before Parliament, a proposal for each political party to get airtime on national TV free of charge in order to propagate its programmes and policies. This would help reduce their financial burden in terms for propagating their political philosophy and agenda for the elections. A novel idea, sufficient for that purpose at that time.
The state funding of elections was also considered in the report of the “National Commission to Review the Working of the Constitution 2002”. This was reiterated in the 255th Law Commission Report of March 2015. The Indrajit Gupta Committee had recommended that the state “extend the scheme of equitable time sharing through the Prasar Bharti Corporation, namely the present governing body of the Govt. owned broadcasting channels, Doordarshan and All India Radio”.
In the 170th Law Commission Report of May 1999, it was noted that KK Venugopal, Senior Advocate (the present Attorney General), had suggested and recommended that the practice prevalent in England where free radio and television time was made available by BBC and independent television and radio broadcasting companies be adopted in India as well. Here the cable and TV networks were also suggested to be part of this proposal for free broadcasting services.
The pandemic could be a harbinger of much-needed electoral reforms, where strong emphasis has been placed on the misuse of money and muscle power. The time has come for making use of advanced tools of technological development not only to remove the fear of the pandemic spreading but also for removing the evils of money and muscle power. This can be done by ensuring the use of online social media, mobiles, radio and television to propagate political agendas. Thereby reducing the reliance on huge financial expenditure required for mass gatherings.
The Union legislature, having considered these aspects, had come up with an amendment to the Representation of People Act (RPA) – 1951 which inserted Section – 39A. This was added by an amendment to the RPA in 2003 and has been in force from September 24, 2003.
Section 39A states: “Allocation of equitable sharing of time. — (1) Notwithstanding anything contained in any other law for the time being in force, the Election Commission shall, on the basis of the past performance of a recognized political party, during elections, allocate equitable sharing of time on the cable television network and other electronic media in such manner as may be prescribed to display or propagate any election matter or to address public in connection with an election. (2) The allocation of equitable sharing of time under sub-section (1), in respect of an election, shall be made after the publication of list of contesting candidates under Section 38 for the election and shall be valid till forty-eight hours before the hour fixed for poll for such election. (3) The allocation of equitable sharing of time under sub-section (1) shall be binding on all political parties concerned. (4) The Election Commission may, for the purpose of this Section, make code of conduct for cable operators and electronic media and the cable operators and every person managing or responsible for the management of the electronic media shall abide by such code of conduct.”
For the purposes of this Section, (a) “electronic media” includes radio and any other broadcasting media notified by the government in the official gazette; (b) “cable television network” and “cable operator” have the meanings respectively assigned to them under the cable Television Networks (Regulation) Act, 1995 (7 of 1995).
Subsequently, the conduct of election rules of 1961 also stood amended and part VIIA with Sections 85A to 85D was incorporated as a new chapter which dealt with and is titled as “Contributions report, equitable sharing of time on electronic media and material to be supplied to recognized political parties”.
The Election Commission being a constitutional body under Chapter XV of the Constitution and having come into existence under Article 324, is governed by its provisions and the powers and functions are further elaborated till Article-329. Here, the Election Commission plays a very crucial role in the functioning of our democracy and providing directions and guidance to political parties to compete for political power by means of free and fair procedures providing a level playing field to all.
The Election Commission has the constitutional duty of preserving democratic, moral and ethical values among political parties and their candidates so that the core and essence of ‘public service’ remains the bedrock of the political parties and their candidates, aspiring to occupy public office. The Election Commission in the performance of its constitutional duties and functions is aided by the Representation of Peoples Act of 1950-51 as amended till 2011. The Election Commission has powers of “…superintendence, direction and control…over the conduct of elections…” in India, and as such can direct political parties to adhere to the law and rules enacted or amended by Parliament from time to time in the performance of its duties.
The higher judiciary, when petitioned, also seeks to direct the EC to perform its duties in accordance with law if it acts otherwise. Numerous judgments of the apex court have laid the foundation for amendments to the law and have provided guidance and direction to the constitutional body and legislatures to create the necessary framework arising out of newer developments from the time the original law was enacted.
In 2010, the RPA was amended to give NRIs a voting right. Then an amendment was introduced in 2017 which was passed by the Union Legislature and received presidential assent. Further amendments were brought to the Conduct of Election Rules in 2019 and 2020, thereby providing for ‘proxy voting’ through postal ballot for absentee voters. Law Minister Ravi Shankar Prasad had stated: “…. In view of the above difficulty faced by the overseas electors, the Government has considered the feasibility of facilitating external mode of voting i.e., voting by proxy, whereby such electors can exercise their franchise from their place of residence abroad. It is, accordingly, proposed to amend section 60 of the RPA, 1951 to enable the overseas electors to appoint a proxy to cast the vote in an election on their behalf, subject to certain conditions to be laid down in the Conduct of Election Rules, 1961. This would considerably mitigate the difficulties presently faced by overseas electors in exercising their franchise.”
Today, the Election Commission has enlarged the category of absentee voters and provided an opportunity to a large number of people to vote from remote locations or places far away from their constituency. There are six categories who can avail of the postal ballot or proxy voting—service voters, special voters, wives of service voters and special voters, voters on election duty, notified voters and voters subjected to preventive detention. Postal voting is a type of voting whereby Electronically Transmitted Postal Ballot Papers are sent through email and the filled in ballot paper after casting the vote is sent back through post.
Interestingly, way back in 2013, a petition was filed in the Supreme Court by a group of NRIs in the UK stating that more than eight million NRIs who are eligible to vote were residing overseas and they should be permitted to do online voting or through postal ballot. The Supreme Court issued notice to the Union of India and the Election Commission, and the said matter is perhaps pending.
In the present scenario, the way forward is to consider the suggestion of the High Court of Uttarakhand to take up “online voting” more seriously than ever before. Not only would the social distancing requirement be met, but it would save tremendous expense and energy that is spent to ensure that casting of the ballot is done by large sections of society. Furthermore, this would attract large numbers from the intelligentsia and enlightened sections of society who despite their busy lives would find it so much easier to do so from the comforts of their homes and offices. Needless to say, the physical form of voting should always be available for those who desire to participate in that fashion.
In recent times, online voting has been accepted for GBM and AGM voting in large corporations and public corporate entities. Even many premier institutions have successfully adopted online voting. During the pandemic, the India International Centre and Supreme Court Bar Association have successfully conducted their elections in recent times.
Finally, a word about the safety and security of online voting. Firstly, it would be only available for those who opt for it with security parameters on the lines of internet banking/digital wallet payments. It is pertinent to mention here, that India is now ranked No 1 in the world of digital financial transactions and has posted 25.4 billion transactions in 2020, higher than China and the US.
When the country can provide a highly secure, online payment and banking architecture with respect to its citizens’ money and finance, surely online voting can also be provided. Being the world’s leading tech leader too, there’s hardly any worry. Voting rights are as precious to a citizen as his money and hence, hardly anything can go wrong.
—The writer is Senior Advocate, Supreme Court of India