TRAUMA IN DRAMA : Voting a Challenging Task?

TRAUMA IN DRAMA : Voting a Challenging Task? True, the Election Commission of India is a Constitutional body with independence or a greater freedom to perform its functions- to conduct the elections and its superintendence. But nowhere it means that the Election Commission of India is independent from the Constitution of India. For that reason, no constituent body can act in a way as it is outside the purview of the Constitution and its articles. It cannot be interpreted outside the premises of the historical background, the emotional and socio-political considerations beset in the reasons and objectives that forms the intent of any act. Therefore, strict compliance with the intent of the article should be reflected in the executive and administrative orders . If the regulatory part is in congruence with the intent of the act, even the Judiciary will find it difficult to interpret differently for the understanding and widening the scope and extent of the laws and procedures and its correctness. This ensures that the articles of the constitution are not to be stretched out to give effects to such regulations and strictures that amounts to public injury. otherwise, the autonomous functioning, self-regulatory and quasi-judicial powers of the constitutional bodies would become questionable. On Such a course of eventuality, if the Council of Ministers fail to take cognizance and do not initiate due corrective procedures, the Judiciary will have to step in to address the public injury, fears and apprehensions created by that constitutional body. That is where the Election Commission of India seems to have landed today. The law is silent on the source and database for the ECI to prepare electoral rolls. Can ECI ask citizens to furnish any documents to prove their status as a voter? How should the electoral rolls be prepared? After the 73rd and 74th amendments to the Constitution and following the Registration of Birth and Death Act 1969 were made mandatory by the Supreme Court in 2006, there cannot be any questions on the nationality and place of Birth of people in India. The officialdom of the country is known for creating cumbersome procedures and jaw breaking hardships and ways to take away peace of mind of the people. How can the citizens be categorized for documentation under three categories born before 1987 (37years +), born between 1987 and 2004( 35 to 18 Years and below 2004 (?). These are procedures to be taken up with data from the Birth and death registration details of the local bodies for the revalidation and updating of electoral rolls from 1974. The states with illegal migrants have their NRCs. The Country has 134 crore Aadhaar Card holders. Why should there be a separate enumeration and procedures like SIR? The country could hardly do anything with the Illegal Migrants. There are several ways of and procedures to exclude them from the voters list. But in a community cohesive NO GO zones and pockets, the Government machinery has always become helpless. Fifth Column will sneak out of the boroughs. Due to various reasons, the Political parties and the media persons are divided over the question of illegal migrants from neighboring countries who have become naturalized by lateral and fraudulent means. Insensibility and moral turpitude, and dishonesty of some Local administrators have led to demographic destabilization. The illegal voters in certain constituencies have reached such numbers to decide the fate of the elections. From 1970-‘71 the illegal migration had become unabated. Though the 1971 order of the GoI directed to repatriate all refugees, it didn't happen so. Chittagong Hills Treaty of 1997 did not become effective to create a conducive environment for some communities to return. Demarcation of Boundaries of East Pakistan, Indo Burma Boundary agreement and unmarked Mc Mohan line with Tibet raises questions on the population dynamics of the country. The case of Lisu or Yobin and the Zo people have reached matters beyond political measures. India has more than 30 lac Nepali, nearly 30,000 Bhutanese, 1.7 lakh Sri Lankans, nearly 9 lacs or more Pakistanis, 2-3 crore or more Bangladeshis, nearly 40,000 or more Rohingyas, In the past 15 years nearly 25 Iranians have been granted nationality. Kishan Ganj, Bihar border district with Bangladesh has an Iranian settlement of nearly 1000 people of Iranian descent settled during the British Period. Somewhere references were seen on nearly 2000 Turkish migrants living in certain parts of India. New Delhi has over 20,000 Afghan refugees. Chakma Hajong settlement issue remains a burning question in Arunachal pradesh. More than one lac Tibetan refugees reside in Assam, Himachal Pradesh and Karnataka- a vulnerable demographic stratification, that governments have failed to take any serious note. But it cannot be taken as a cause or reason for the Election Commission of India to treat the people of the country as a subservient class to keep on filing applications. If the census of India is taken into consideration , in 2029 elections 18 crore new voters will be added to the electorate. Decadal population growth if taken into consideration, the total electorate in India by then has to be nearly 90 crores. Under the Powers of Superintendence and control of elections Can the ECI decide on who can Vote in this country and select an electorate by its own regulations? What is the limit of the Powers that the Election Commission can exercise? Can ECI decide on the nationality of Indian Citizens and create criteria to recognize them as voters? The constitution stipulates adult suffrage of citizens of the Country. Election Commission of India takes entry in the constitution of India through Part XV Elections, from the articles 324 to 329. The construction of Article 324 is quite different from that of the Judiciary of the country established through Part V and VI , articles 124 to 147. The difference in the construction between Article 324 and 124 is a sharp and striking contrast to understand the constitutional status and the extent of autonomy and exercise of freedom of these two constitutional Organs. Article 124 brings into force the Institution of Judiciary by way of creating the Supreme Court of India. Whereas article 324 defines the purposes and duties that are given as – “The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections…. …. held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).” The difference between the commission known as the Election Commission of India and the judiciary can be drawn from the formative manner of the article 124, which is the Establishment and Constitution of Supreme Court :- “There shall be a Supreme Court of India consisting of a Chief Justice of India…”. whereas article 324 enlists the functional objectives and purposes vested in a Commission held under this Constitution viz.,-Superintendence, direction and control of elections Basic difference is that the Article 124 of the Constitution establishes a Supreme Court and Chief Justice of India whereas Article 324 did not direct legislation by way of its construction like the 124. Instead, it lays down the required functions for the creation of a Commission to conduct the election. Subsequent to delegated purposes and functions set forth by clause (1) of the Article 324, Clause (2) brings in the structuring and order of precedence in the Commission- The “Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time…”. Another Constitutional Executive created through article 148 (1) is the Comptroller and Auditor General of India, is in a straight manner , – “There shall be a Comptroller and Auditor-General of India …” The statutory Provision that falls under Article 124, 148, and 324 cannot be read in the same spirit and for the same reason also as that of Article 316 , the Chairman of the UPSC. Appointment of UPSC Chairman follows the constitutional requirement under Article 316. The status and position of the three Constitutional Heads can be made clear from order of precedence of India, The Chief Election Commissioner has been positioned between UPSC Chairman and Comptroller and Auditor General of India in 9A of the list immediately below the Judges of the Supreme Court placed in 9. Operations of the three primary commissions by respective articles CJI (124) , CAG (128) UPSC Chairman ( 316) and CEC(324) are as the vital organs of the constitution. Further, the Union Public Service is placed in the Union List 70 , Elections and Election Commission in 72, Audit of Accounts in 76, matters pertaining to Judiciary 77 to 79 of the Union List. Among these, only the Judiciary falls in subjects enumerated under the Directive Principles of State Policy, in the article 50 of the Constitution : Article 50: “ The State shall take steps to separate Judiciary from the executive in the Public Service of the State”. The same directive does not fall in place for the CEC, Chairman UPSC and CAG The term ‘Superintendence’ appears firstly in the constitution in article 227 (1) “Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction”. A general reading of the article 227(1) is suggestive that the Superintendence confers powers that relate to administrative functions and taking corrective action. For the ECI, such a power is equipped with rules of the Representation of the Peoples Act, 1951 that authorises to issue Identity Cards for voters in compliance with other provisions to prevent fraudulent voting. However, the provision of article 326 is very clear as is a direction to the election commission –“ every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.” Representation of Peoples Act 62. Right to vote.—(1) “No person who is not, and except as expressly provided by this Act, every person who is, for the time being, entered in the electoral roll of any constituency shall be entitled to vote in that constituency.” The Constitutional Provisions and the Representation of Peoples Act 1951 provides powers to the election commission to issue Voter Identity Cards and preparation and / revision of electoral rolls. However, the same powers cannot be extended to the scope beyond the contentions of article 326 “ under any law made by the appropriate Legislature”. Unless a separate legislation is made through an act of Parliament, the Election Commission of India cannot be expected to have powers to decide on the citizenship and eligibility conditions beyond the prescribed norms established by the Constitution. The ECI can continue to act in the given premises and cannot prepare an electoral roll by ordering citizens to file their submissions proving their birth or nationality. ECI can undertake such a process through appropriate administrative systems- Local Self Governments. Urban Local bodies which have the registers of Birth and deaths under its jurisdiction. Election Commission can access the data from local bodies and cross verify them with Aadhar data and previous electoral rolls. No person can be prohibited from voting if they do not have voter ID cards. India has 10 to 12 Identity cards issued by various agencies starting from Passports, Adhar Card, Post office Passbooks or Post Office ID Card. Rural Employment Guarantee cards. Driving licence, Pension Document, Discharge Card of Armed Forces, Service ID Cards of Armed Forces, State and Central Government employees, Public Sectors , Public Ltd companies, MLAs, MLCs, Local Body members, MPs, Disability ID cards issued by Government and PAN card among others. Voter Information Slip with QR Code would be a measure to avert electoral frauds. EVMs can be integrated with Biometric verification details of Aadhar Data. Those who do not appear in the electoral rolls also can cast their votes, if the biometric verification and recognition measures are employed. Matters became stretched across to proof of citizenship. Electronically file data, then wait for the Electoral Roll Revision Officer to the house. Why should people bear so much harassment? It is where article 327, the Power of Parliament to make provision with respect to elections to Legislatures comes to the fore which has a conditional clause “ Subject to Provisions in the Constitution”. It brings preparation of electoral Subjects to the provisions of the Constitution, a direction for the parliament to make laws for the election commission to comply with. There cannot be any questions on citizenship and other rights , principles and duties laid for the citizens in the Constitution. As the article stipulates : “Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses” Implications would have been different if article 327 was worded like “ subject to provisions in the article 324 or so” , the parliament would have limitations in making rules for preparation of electoral rolls, as ECI would have enjoyed wider powers to structure such a law as it would think deem fit to serve its purposes. Without saying, the Special Intensive Revision demanded a parliamentary law. If SIR was meant to include eligible voters, exclusion of voters needed a larger framework of law and Procedures. Can such a new protocol be introduced in deciding the eligibility of Voters of a constituency voluntarily by the ECI? Does section 21 (3) of the RPA 1950 delegate powers to ECI to adopt a new procedure or to modify or alter an existing procedure? RPA Section 21 (3) “Notwithstanding anything contained in sub-section (2), 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:” Here, ‘as it may think fit ‘ is a discretionary power and authority to do so, within the frameworks , through adoption or modification of the existing provision, without creating a legal infringement on any count to the persons or subjects falling under such acts. It means it cannot be an arbitrary action that can lead to public discontent and distrust and cannot be a reason to deprecate the whole process. The ECI, would be bound to address the objections, doubts and questions arising out of the actions taken by way of ‘it thought to be fit’. The Election Commission is a Constitutional body to execute a public function of conducting elections, wherein, the eligible citizens exercise their right to represent themselves in the Legislatures. A Voter casts a vote to elect a representative in lieu of oneself to represent in the legislature. The nonobstante clause in RPA Section 21 Subsection (3) gives an overriding effect on Subsection (2). Can it be taken as a source of power to enforce the Specially revised electoral list as the ECI may desire to do so. The provision has to be read together with the rider inserted in the same sub clause that restricts the direct enforcement of the new electoral rolls revised under the special provision, i.e.,” Provided that subject to the other provisions of this Act” . The electoral roll revised under SIR, even if with any modifications of the existing modalities or by a new one, the new list attracts all remedial measures of correction, cross verification, claims and removing any inconsistencies incurred during the procedure. If the Public has any concerns or any objections, the overriding direction of the subsection (3) “ the electoral roll for the constituency, as in force at the time of the issue of any such direction, shall continue to be in force until the completion of the special revision so directed.”. The ECI can exercise its powers under the clause, but enforcement is subject to procedures and remedial measures as in the RPA Act . If a voter is removed from the list, citing any reason, the question of existence of the person as a citizen becomes questionable, for, no citizen, unless under the prescribed laws, cannot be exempted from the statutory right to vote. Duplication of names does not essentially mean impersonation. Quite a few identical names are possible in the same constituency and from the same case, clan or tribe. Enough methods are available to rectify and demarcate such identities. Many a million lived in this country and died with no identity and records established by the state. They remain only through the short term memories of the communities or the kith and kin. All these developments point to the lack of a systematic procedure in data compilations in the records of government agencies, from that of the Local Bodies to the Census Authority. Even after Seven decades the Government establishments have no integrated mechanism of data verifications, sharing and documentation? Are they working for the good and welfare of the Public or for their own comfort, convenience and ease of life? All these leads to extraordinary powers to the public servants. Have our Babus become more anti people than the Britishers? Why do our heads of institutions become Cynically Powerful to disturb the life and peace of our own people?