Relevance : GS Paper II
Introduction
It is the citizen’s right to vote through which the democratic legitimacy is periodically renewed and the foundations of the republic remain stable. But it is not simply the act of voting that is enough: rather, voting must take place as part of a free and fair election. And for that, there must exist a number of institutional factors and conditions, all of which, taken together, culminate in that final act of the voter casting her ballot.
The Supreme Court’s efforts towards free and fair elections
- The Supreme Court, in many judgments over the years, has set out the enabling conditions that guarantee that voting remains a meaningful activity.
- These include, for example,
- the citizen’s right not to be arbitrarily denied the vote (the court has, therefore, held that voting is a fundamental freedom guaranteed under Article 19(1)(a) of the Constitution);
- the right to know (thus, requiring compulsory declaration of certain information by candidates); and
- the right to a secret ballot (that has prompted the court to order the inclusion of a NOTA, or None of the Above option).
Need of an Independent Judiciary
- Like with any other competitive process, the ground rules that constitute the framework of the competition must be enforced by an impartial umpire. It is here that the role of an independent judiciary is crucial.
- While the primary role of the courts is to protect the fundamental rights of individuals against the state, another — equally critical — task of courts is to ensure that the ground rules of electoral competition, which are necessary to ensure free and fair elections, are maintained.
- For obvious reasons, this is not a task that can be left to political actors, and can, in essence, only be performed by the judiciary. This, therefore, is an arena where courts have to be even more vigilant than usual, because what is at stake is the foundational legitimacy of democracy itself.
Gap between Judicial Rhetoric and Enforcement
- In the above context, the recent conduct of Indian courts reveals an unfortunate gap between judicial rhetoric and actual enforcement.
- First, the right to know: this much-vaunted principle, which has repeatedly been accorded pride of place by the Supreme Court, was flagrantly violated when the government introduced the electoral bond scheme early last year. The electoral bond scheme denies to voters the knowledge of who funds the people who ask for their vote.
- Second, the secret ballot. Political parties are now able to determine voting outcomes at the level of individual booths. This destroys the very concept of the secret ballot, and makes threats like the ones Ms. Maneka Gandhi recently delivered extremely capable of distorting the electoral process. However, when in 2018 a case was filed before the Supreme Court asking for the use of totaliser machines in elections — that would restore the secrecy of the ballot — the court dismissed it without even according it a hearing.
- Third, the freedom to vote itself. This election season has seen multiple complaints from voters who have found their names deleted from electoral rolls, without intimation or a chance to be heard. Last year, a case was filed before the High Court, asking that the EC be required to reveal the source code of the algorithm it was using, and open it up for auditing but the High Court has failed to decide the petition.
- And lastly, public faith in the electoral process: in mid-March, Opposition parties filed a petition before the Supreme Court that would have settled, once and for all, any qualms about the use of electronic voting machines (EVMs). The court is yet to even decide upon the petition.
Conclusion
On multiple occasions, the Supreme Court has waxed eloquent about the glories of Indian democracy, the importance of free and fair elections, and the supreme sanctity of the vote. The rhetoric is beautiful, but without enforcement, the judiciary remains, in the words of Mathew Arnold, “an ineffectual angel beating in the void its luminous wings in vain.”
