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YS Quraishi: "Electoral bonds are not a matter for the Supreme Court to handle right now" How is this in the public interest, if not this?


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    In this Idea Exchange, former Chief Election Commissioner of India, SY Quraishi, spoke on the government’s new bill to downgrade the election commissioners’ status, need for transparency in political funding and the credibility of the EVMs. This conversation was moderated by Assistant Editor Damini Nath.

    Damini Nath: After your retirement in 2012 you’d said that you became a self-appointed spokesperson of the Election Commission (EC) and felt the need to defend it. After the 2019 election, you found it difficult. Going into the 2024 elections, where do you see its credibility?

    I defended the EC on everything when the criticism came up. My dilemma was that if I made a critical comment, people might say, ‘Look, just yesterday he was the CEC himself and he’s now commenting. What an undignified man’. If I called everything they did as wonderful then I’d appear stupid. Therefore, I used to couch it in clever language, saying that whenever I hear any criticism of the EC, it hurt me as if somebody was hitting me in my face. But the fact is that there were questions raised. Why were there no questions in our time? Or in N. Gopalaswami’s time? Questions have been raised in the past. People used to say that we should demand contempt of court powers. In fact, I wrote one article opposing it. You have a right to attack us and you should attack us all the time. It’s also a question of individual style. The incumbent is a bold and steely man. So things will be different. Some are weaker and spineless, and some tow to the powers that be. That doesn’t mean the institution has been affected. These are passing temporary phases.

    Damini Nath: Are there any instances where you felt that the EC could have asserted the authority that it already has to ensure free and fair elections?

    Article 324 is a reservoir of powers. In a historic judgment, the Supreme Court had said that all that power is actually available. Before the introduction of the EVMs, we had ballot papers. We’d take 10 ballot boxes randomly, put them into a drum, roll the drum, make bundles of 50 each, and count so that nobody would know which village or polling booth has voted for which party because there used to be revengeful and vindictive action. After the introduction of the EVMs, there is a secrecy of voting available to the individual but it has to be available to the constituency, the booth too. We have heard instances of a minister saying, “You didn’t vote for me. I will see how you will get water for five years.”

    ‘The Supreme Court has no time for electoral bonds issue. If this isn’t in public interest, what is?’

    Festive offer

    We wrote to the government and asked our two companies to develop what is called a totaliser. Just as you get the ballot papers from 10 boxes, we started connecting 10 machines, totalling them, and jumbling them. We made the mistake of asking the government and for 20 years we have been chasing them. Finally, a Parliament committee sat in judgment and said that it isn’t in the national interest. Now who will ask them what is national interest and why this is not in national interest?

    We could have used Article 324. Nobody would have dared to challenge it. We did not. The Constitution gives the basic framework in Article 324. Under that, the Representation of the People Act was passed in 1950 followed by another in 1951, both of which give details. So wherever the law is made, there our hands are tied. But where the law is silent, we have all the power. The Supreme Court actually blasted us: “If a situation develops where you have to make a decision, you will not pray to God, please guide me on how to do this. The power is with you and you have to exercise it independently.” Equipped with that, if we’re still looking over our shoulder, and we’re looking around for guidance from here and there, that’s wrong.

    ‘The Supreme Court has no time for electoral bonds issue. If this isn’t in public interest, what is?’

    Damini Nath: Recently, a bill has been brought by the government to change the way the election commissioners are appointed — one of the root causes of issues with the EC that you’ve identified. You and some former CECs wrote to the government on this. What compelled you to do so?

    Several of my predecessors and I have been writing to the government that we should be appointed, not by the government of the day but through a collegium. After all, our entire judiciary is appointed by a collegium. You can keep it aside because it’s a different collegium. But there is a collegium for the Central Vigilance Commission (CVC) and the Central Information Commission (CIC) and they are not even constitutional bodies; they are statutory bodies. There is the collegium for the Director of the CBI. He’s not even a statutory body but the head of the department, like the Director of Agriculture, except for the nature of the job. Which is why the Supreme Court says that this institution should be neutral and look neutral. The most sensitive institution politically and for the nation, the EC, is appointed by the government of the day. Once appointed, you cannot be removed, except through the impeachment process, which is for the Supreme Court judges. So, obviously, there is an equivalence in the minds of the Constitution framers. So to disturb that equation is something which is undesirable. Because the issue is live and our request is pending with the government, I’d rather not comment on it (the former CEC’s letter to the PM). In the proposed bill, there were some positive things. The only thing on which we were concerned was that it was being downgraded from Supreme Court judge to a Cabinet Secretary. A Supreme Court judge is a constitutional authority. The Cabinet Secretary, however high a civil servant, is a bureaucrat. So you want us to be reduced to a babu? Half the commissions in the world have judges. When they come and deal with us, we speak from a position of higher authority. But suddenly, they downgrade us to save a few thousand rupees? We are trying to be a vishwaguru in the world for all other things but in elections, we already are.

    Liz Mathew: Recently, the ED told the Supreme Court that there will be a case against the Aam Aadmi Party. So what happens to the party?

    This issue is still developing. But prima facie, my view is that the law of the land is the presumption of innocence. And the 233 MPs, who have criminal cases pending against them in Parliament, when we say they should be debarred, what do they tell us? Presumption of innocence. The same law of the presumption of innocence should apply to a party. It will be a mistake if the EC treats them as guilty only on the basis of an allegation and accusation.

    ‘The Supreme Court has no time for electoral bonds issue. If this isn’t in public interest, what is?’ Former Chief Election Commissioner SY Quraishi

    Liz Mathew: Going by what is happening around us, we won’t be surprised that they are found guilty. What happens in that case?

    I don’t know what will happen because we haven’t come across such a case. If some serious cases of corruption (come along), we will see whether it is a violation of an oath, which is signed by every party when it registers. Under the oath, they are to be loyal to the Constitution, not disobey the orders of the EC, and not violate the moral code of conduct

    Liz Mathew: Credibility is the most important factor when it comes to the EC. What do you think when the CEC talks of the so-called alleged revdis. At the same time, the same CEC is not talking about electoral bonds. Will it affect the credibility of the EC?

    These are two different issues. My revdi is your welfare scheme. If I do it, it is a welfare scheme and you call it revdi, and if you do it, then it’s other way around. Even if political parties promise you the moon, legally, it cannot be faulted. The Supreme Court also did not say it is a corrupt practice. But they ordered the EC to call all the political parties and make guidelines. It was definitely a perfunctory kind of passing the buck and the EC also went through this exercise. They called the political parties and got a banging from them. They said that how dare you question us? If I have to promise something to my voters, how else will I promise? Which law is it violating? So the EC came out with some guidelines, which advise them to be careful.

    Actually, there is a lot of good in freebies. NT Rama Rao was the first one to announce them — a kg of rice for one rupee. Free rations have made sure that there are no starvation deaths. Another way is to create a prosperous developed country and wait 200 years for that. Nitish Kumar has provided female students with bicycles. The enrollment increased and the dropout rate declined. Now, is it a bad freebie? It’s a very good development measure.

    ‘The Supreme Court has no time for electoral bonds issue. If this isn’t in public interest, what is?’ Former Chief Election Commissioner SY Quraishi in conversation with Assistant Editor Damini Nath (Express photo by Abhinav Saha)

    Liz Mathew: But the CEC is not talking about electoral bonds.

    When electoral bonds were announced, the EC wrote a very strongly worded letter to the government. For two to three years in the Supreme Court the EC’s been opposing them. But suddenly they find electoral bonds as a good thing. I was hearing the budget speech when Arun Jaitley was in Parliament. He said that without transparency of political funding, free and fair elections are not possible. This was music to my ears because that is exactly what we have been saying. His next sentence: for the last 70 years we have failed to achieve that. What is the third sentence that you expect? That he was going to introduce transparency. It was just the opposite of all that. Whatever transparency that existed was destroyed. What was the level of transparency? Every transaction and donation of more than Rs 20,000 was reported to the EC, which made it public. Now no one would know who gave a party Rs 20 crore or Rs 200. The reason given: donor wants secrecy. Why? Because he wants to hide quid pro quo — the licences and the contracts, which he will get in return, and the loans which he will take and run away to London or Antigua or wherever. So these are the return favours, which is why he wants to keep it a secret. But his wanting it as a secret cannot be a consideration, it is about what the people want. Corruption in elections has become the root cause of all corruption in the country. The corruption is because of the spending power — companies are giving crores of rupees. What for? And Supreme Court has no time for this kind of public interest issue. If this is not a public interest issue, what is? But now that it is coming before the court, hopefully, they will clinch it and to the satisfaction of the nation.

    ‘The Supreme Court has no time for electoral bonds issue. If this isn’t in public interest, what is?’ Former Chief Election Commissioner SY Quraishi

    Liz Mathew: With this one nation-one election theory, what would happen to the role of the EC?

    Once in five years will mean that we will have more time to play golf. After one election, if there is no election for five years, there will be nothing to do. This will be best for us. But our convenience cannot be the consideration. The benefits are that the voter is the same, the polling station is the same, the people who conduct the elections — the district administration — and the security apparatus are the same. Therefore, it is logical that instead of pressing one button, you can press buttons in one go and rest for five years. The reason given is that political workers don’t get time to do their work. Apart from elections, what other important things do the political workers have? The Centre for Media Studies in the last election (2019) estimated Rs 60,000 crore being spent on elections. We can bring it down from Rs 60,000 crore to Rs 6,000 crore. Just put a cap on party spending. Now this disturbs the level-playing field.

    According to the Model Code of Conduct, no new scheme will be ordered, no new transfer will be made. Why is it that these bright ideas come to the government’s mind four years 11 months after they have been in power? Then they say, what a nalayak EC. A new scheme can be allowed with the prior permission of the EC. Once, in my time, the government of the day wanted to reduce the petrol price. Normally a petrol price reduction would mean that many votes would suddenly go there. There must be a gap of two months. We don’t think like babus or clerks. We are thinking individuals. In the broader national interest, we allowed it. The time has come that we should have a single-phase election. The kind of hate, rumor, fake news, and nonsense that is spread over two-and-a-half months endangers the safety of citizens. One phase election is the best election.

    Nishant Shekhar: In the women’s reservation, panchayat elections get ignored. If a seat is reserved for women and a local leader doesn’t stand for election, he gets his wife to stand for it. How can this be addressed?

    In the beginning, it may happen that a husband gets disqualified because the seat got reserved; so he gets his wife to take it. But within a week, she’ll start giving him dictation. Slowly, over many elections, women will come into their own. Rabri Devi came from the kitchen and became the CM. With bureaucratic assistance she ruled a big state. If this problem is happening here and there, why should other women be denied? This is one of the factors that bring us down in the democracy index, that we don’t give importance to women. In Muslim countries, where women are considered backward, in Bangladesh, Pakistan, Maldives, they have 20 to 30 percent reservation.

    Vikas Pathak: There was a demand from many political parties that within the women’s reservation bill, there should be an OBC quota.

    OBC reservation is a different issue. It should happen separately. If we apply this for SC and ST, that 50 seats are reserved for ST and of them, 33 candidates would be women, no issue. OBC reservation is a good case and should be examined. If for SC or ST, you take out one-third and give it to women; similarly for OBC. If you mix issues, it dilutes the focus.

    Ritika Chopra: Is the Model Code of Conduct still an effective document?

    I still think it is very effective. It is one of the unique features of an election worldwide because it is not a law. It is a voluntary code of conduct by a political party for good behaviour. A lot of people criticise the EC and say that it’s toothless and spineless, and only gives warnings. Once, Parkash Singh Badal told our CEO Kusumjit Sidhu that you’re acting very independent because of the EC. Once you come back to our cadre, I’ll see to you. With model code violation, he threatened the election staff. I wrote a stiff letter to Mr Badal. The same day he wrote a profuse apology. Politician images get dented. It shakes people that a model code notice came and that they were found guilty. Thirdly, our plenary power. I’m happy I didn’t use it in my time. But subsequently, in this regime, some CECs use 324 and if you violate the model code, you can’t campaign for three days. These are top leaders. If you debar them from going for three to four days, it’s a major punishment.

    Jatin Anand: The credibility of EVMs is challenged almost on a regular basis. What is needed to ensure that the people of this country trust the EVMs?

    I’ve always defended the EVMs and I’ll do it today. The result of Karnataka, West Bengal, Himachal Pradesh, and Punjab, is where BJP lost — what more proof does one need that the EVM is dependable? Therefore, I defend the EVMs totally. We improved the EVM through VVPAT, which is the Voter Verifiable Paper Audit Trail. In 2009, it was the BJP that was opposing the EVM. They wrote a book called Democracy in Danger by GVL Narasimha Rao who was rewarded and became an MP. Mr Advani wrote the foreword. But we proved them wrong. We threw an open challenge — try and manipulate it.

    Jatin Anand: What do you think is the feasibility of voting rights for NRIs?

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    Many people say they should have no right to vote. They’re not paying any taxes here. Secondly, internet voting should be allowed. Now we are an IT superpower, it’s child’s play for us, but we will not do it for totally non-technical reasons. Suppose Internet voting was allowed, I’d enter your house with a pistol and force you to vote for someone. Or I give you Rs 5,000, I’ll vote for everyone. We can’t guard your integrity at home. The election can’t get looted. EVM is one of the best systems. But improvements are necessary.

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