India has to learn not only from its own experience but also from the experience of others like for example postal balloting and how we can liberalise it since there is an increasing demand for it for various reasons, says Sampath.
American voters will have to see out at least another night of anxiety, if not more, before they discover who will take the oath of office on 20 January, 2021 to occupy the Oval Office. With Democrat Joe Biden winning Michigan and Wisconsin, the path back to 1600 Pennsylvania Avenue for President Donald Trump is getting harder than before despite his tweet on Wednesday announcing “A big WIN!”. So much so that the Republican camp is now leaving no stone unturned in its quest for ways through the legal alleys of various states and by turning Twitter into a virtual battlefield to halt the Democratic march towards the next presidency.
Along with the Americans, as the world is glued to this real-life fight for US presidency, not in any degree less exciting than any Netflix political thriller, it is the brinkmanship of Trump that is putting every democratic edifice in the world’s oldest democracy from its judiciary to its electoral process to test. Whether his unusual ways will be kryptonite to him will be known in hours or days if not weeks.
With the electoral process, the very oxygen for a thriving democracy now jarred by countless controversies in the US, former chief election commissioner VS Sampath, who oversaw the Lok Sabha election in 2014, in a chat with Firstpost, analysed how India staves off these challenges and what India can learn from the tumultuous US experience.
Edited excerpts follow:
The row over postal ballots in the US has reached such a point that it might soon land up in the country’s Supreme Court. Is the weight of the postal ballots being diminished here? What are your thoughts on that?
That is what the president has said, that he’s going to approach the Supreme Court. But then it is not clear on what aspect he is going to approach the Supreme Court. Basically, it is not as if the postal ballot is introduced for the first time in the US. It was there in the past. It was there in the last election also. (In the) last (US presidential) election (in 2016) also, 24 percent of the votes polled were through postal ballots. The postal ballot is there in a number of countries.
Today actually because of the pandemic more and more countries are liberalising the postal ballot so that people need not expose themselves to disease. So we really do not know on what grounds he wants to approach the Supreme Court. The basic fact remains that postal ballot is also a ballot.
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It has the same sanctity as the ballot which you cast when you go to a polling station. You cannot draw a distinction between a postal ballot and a personal ballot. That is the point which one must understand because the postal ballot is also accepted in law. Because it is accepted in law, this postal ballot facility is extended to some voters.
For the first time, we seem to be coming across such a situation in the US because an incumbent president himself is not accepting a thing like postal balloting which is again is done as per the laws of their own states.
Actually in this whole episode as you have seen like in the US the one aspect which comes out particularly glaring is when a category of people are allowed the facility of postal balloting. When they exercise their votes, somebody is saying ‘No, no! Those votes should not be counted’. Now at this point of time saying that you will go to the Supreme Court against that, that is what is something which has to be noted. Because that violates the spirit and sanctity of an individual vote. Every vote is sacred.
Anyone or anything which mitigates against the sanctity or the validity of that one vote has to be resisted because it is against the very spirit of democracy. You know that one vote can make a difference in electing the state representative to Congress, that one vote indirectly can even affect the election of the president of whichever country be it the US or any other country. So a vote is a vote. It is very sacred. Its sanctity has to be respected by everyone. You cannot bluntly dismiss this one vote or a few votes or a category of votes. That is the point one should keep in mind.
In terms of the electoral process how far do you think the judiciary should be kept away from it?
The thing is like for example if you take a country like India, in our Constitution itself the role of the judiciary is limited when it comes to the electoral process. So the judiciary comes into the picture in India only after the results are declared and only when they have the election petition they can approach the judiciary. But ordinarily, it has been followed by our courts not to interfere when the election process is on.
Generally, you invoke the jurisdiction of judiciary etc. only at the post-election stage, not during the conduct of the election unless there are very compelling situations. So there (in the US) as we could see through the media, so far they have not declared any result. Only when they declare some results, if there is anything wrong with regard to the procedure followed by the election authorities in conducting the election then you know one can say you can approach the judiciary. There (in the US) it appears to be premature at this stage.
But then the difference between India and several other countries and particularly with the US is that in India, the role of the Election Commission and the role of the election laws are all clearly defined in the Constitution itself including limiting the role of judiciary only to post-election, post-verdict, post results. So it depends on the law of the country.
Due to the controversies that we saw during the run-up to the polls and now even in the counting of votes, it seems that the US which prescribes democracy to other nations and happens to be the oldest democracy is struggling to preserve its own democracy. In these circumstances what kind of messaging is going to the other countries of the world from the US?
Certainly, it is not going to be a very ennobling one, particularly when the result (counting of votes is going through such controversies). In any election, there is an election authority. Whatever your rules and regulations may say, whatever your government orders may say, there is one election authority who conducts the election. It is that election authority who has to declare the result.
No candidate however highly placed he may be, can declare that he has got elected. This is only for the authority who is conducting the election to declare who has won in the election. That is a basic test for conducting the election. There I would say, what has happened, what we are seeing in the US through the media is at variance (with democratic norms).
Since you brought in the Indian aspect earlier I would like to hear from you a comparative analysis between the electoral process of India and the US. Does the US need a similar body like the Election Commission of India?
You see now as far as elections in India are conducted from national level up to polling station level, the Election Commission of India is responsible for the conduct of the election. Even at the polling station level how the electoral roll should be maintained, how the election personnel should be seated in the polling station, who should be taken as election personnel, what role for the representatives of the political party, polling hours, ballot paper or electronic voting machine, everything is under the guidance, guidelines, rules and regulations prescribed by the Election Commission which is not the case in the US.
As you know in the US there is no central election commission like we have the Election Commission of India to oversee the conduct of elections. They have got one federal election commission which mainly takes care of funding for the elections. They are basically an expenditure control commission. They are not the election conducting commission. In the US, the election is conducted by state authorities or district authorities, whom you call county authorities, where you don’t have distinct machinery for the conduct of the election like we have in India.
Next, even at the polling station level, mostly the people who conduct the election at polling stations, they are volunteers whereas in India these are all done by government employees who are subject to the administrative control, disciplinary control of the Election Commission. That makes all the difference because there is uniformity in the entire country with regard to the conduct of the election. Whereas in the US, that kind of uniformity will not be there because each state, each local authority follow their own rules and regulations.
In the US, the conduct of the elections is left to the states. The governments at the state level, the governments at the county level conduct the elections. Sometimes even the counties will have their own rules and regulations regarding the conduct of the election. So that is how this kind of thing is happening.
Should there be something similar in the US like the Model Code of Conduct that we have in India?
That’s actually a very good question. In our country since we are a more nascent democracy when compared to a country like the US or UK but still from day one, the framers of our Constitution as well as the election authorities, the successive election commissions, realised the dangers from the party in power or the people who are in power exercising or yielding undue influence during the election.
So when it comes to elections what is important is if you see one of the guiding principles of our Model Code of Conduct is to maintain a level playing field. For example, there could be no difference between Mr Trump and Mr Biden in whatever one may do. That is what our Model Code of Conduct seeks to ensure apart from certain regulations.
Whatever you are finding there (in the US) today you will find if somebody goes into our Model Code of Conduct you will get answers for every one of these things in our model code. Not only that, even in our rules and regulations when it comes to the postal balloting, who should we extend the postal ballot? Our law is very clear, rules are very clear, the Election Commission guidelines are very clear.
Next thing is about what are the regulations governing the exercise of the postal ballot to see that they are not misused. Like for example in India, you will never come across a situation of misuse of postal ballot or serious allegations about the use of the ballot paper because all these are governed by the restrictions given by the central election authority.
It has evolved over a period of time which, in fact, has evolved mostly in consultation with political parties because when we evolve any new procedure [sic], we hold discussions with political parties, take all their views and then we put them in practice. All these things save, perhaps even very advanced democracies can learn from a country like India.
From what we are witnessing in the US, are there any lessons for India?
This is also a very good question because no one can claim to be all-knowing. We have to learn not only from our experience but we have to learn from the experience of others also like for example postal balloting. There is a demand in India also to liberalise postal balloting of course for various reasons. Like there are people who are not able to be present in the constituency on the day of the poll. They are likely to be away from the constituency. Or a situation like the present pandemic where we have got these people particularly older people, senior citizens. They can’t stand in a queue jointly along with others and expose themselves to the infection.
Naturally, there is a need for providing this facility more and more — more than what is provided in our rules and regulations. But while doing that we have to be careful, we have to check whether adequate safeguards are prescribed.
Because elections even there you must have noticed what Biden was saying that he will wait till the last vote is counted. What does it mean? Every vote matters particularly in countries like India where there is an instance in Rajasthan when an election was decided by a margin of just one vote. With that one vote the person who was the state party president he lost his chance of becoming the chief minister.
So virtually with just one vote, the person lost the chance of becoming the chief minister. So every vote is sacred. When the vote is sacred it is the responsibility of everyone not only the Election Commission to see that the sanctity of the vote is maintained.
What should be the role of citizens in this kind of circumstance when at least a section of them is in a state of helplessness because of the state of affairs in the top echelons in a democratic setup?
Certainly not. You should see the media in the US. Cutting across all party lines, the entire media has risen as one person. Simply because he (Donald Trump) is the president of the United States, perhaps the most powerful person in the whole world, I don’t think the media is buffering to him.
There (in the US) you have a very vibrant public opinion which is represented by the media. Within minutes the media has come out saying this is not what is to be done, this is not what is expected of him (Donald Trump), he cannot declare a result when the election authorities have not declared a result. So that is a nation of vibrant public opinion.
Nobody is scared of authority. Nobody is unduly worried about the stature of the person. They have the courage to call a spade a spade whoever it may be, whoever is the authority that is something which has to be learned by the entire world actually. That’s what I would like to mention. So far people have been following a very mature outlook where mostly media and public opinion (in the US) have been keeping a watch on the conduct of the election so that there is no problem.
Naturally, media is not something which has come down from heaven. Media only represent people. Media represents only public opinion. That is what is important in the picture finally.
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