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Union Minister Maneka Gandhi ’s open threat to the voters has let the cat out of the bag. What she was essentially spelling out was that once the results are out and it informs her of the community and area who voted for her, she would then specifically focus her attention on the basis of the vote share she has got. Though, the Election Commission (EC) has promptly responded by reprimanding Maneka Gandhi by restricting her from campaigning for 48 hours, however, it won’t change the basic fact that post-election the ‘secret voting’ would no longer be a secret, revealing the voting preferences of a particular community and area.  Election Commission is well aware of the fact that in the present system of counting of votes a “secret ballot” is a myth. This has serious implications for an absolutely unequal and disadvantaged marginalized communities. Pre and post-election, the vote share of each community and the religious minority would be dissected constituency wise not only by the political parties but by the media as well. It is obvious that there is a mechanism to know vote share at the micro level that makes a macro level analysis possible. Media’s analysis only help amplifies what already exists on the ground and has been reiterated by Maneka Gandhi. In this highly polarized election, this may critically result in backlash on the community. In such a situation, how can a voter freely exercise his/her voting preference freely? The “secret ballot” system is the foundation of our electoral system, and once that has been compromised, in any manner and to any extent, then elections can no longer be called free and fair.

Before we elaborate more on the issue let us see what Maneka Gandhi and another Minister of Gujarat has said.

While in the first incident Maneka Gandhi warned her Muslim voters that it is basically a “saudebaji”; if they don’t vote for her, then they shouldn’t be expecting her to work for them. (https://www.youtube.com/watch?v=lzmlHVMYwEQ). In another video, she is seen warning her voters that she classifies villages starting from “A to D” on the basis of the votes  pooled in her favor:  The villages who have polled her  80% votes would get “A” category and top priority in sanctioning the developmental work;  the village  with 60% vote share would be given “B” category and  next in the priority list;  the one with 50% would get “C” category; and the last with 30% “D” will get no work.  (https://www.youtube.com/watch?v=pzZ_Nhu7mSg).

Kuwarji Bawaliya, a Water Supply Minister of Gujarat Government, on being confronted by women about water scarcity in the village replied them that as their village has pooled him just 55% votes in the last election, they are accordingly getting half the supply.

(https://www.news18.com/news/politics/why-didnt-you-vote-for-me-gujarat-minister-asks-women-telling-him-about-water-woes-2101639.html)

The election commission conducts the counting of votes by collating the data from different electronic voting machines and the final result is computed booth level wise into the Form 20. For example, one can see for themselves in the attached Form 20 of a particular assembly segment of Harda in Madhya Pradesh. (http://ceomadhyapradesh.nic.in/VS%202008/135.pdf). From ECI’s   website, anyone can access Form 20 of any Assembly or Parliamentary Constituency. https://eci.gov.in/statistical-report/link-to-form-20/.

A village is broken into the cluster of 1000 voters for each polling booth. Out of these on an average 200 to 700 votes are pooled. In the village, influential castes do not fear open declaration of their support to a particular political party and can count their caste votes quite accurately.  So, after doing all this arithmetic they know how voters of other castes and religious community have voted. Moreover, villages have ghettoed living on caste line; even our towns, cities, and metros are no different. The final result in “Form 20” can clearly indicate as to how that particular booth of X, Y or Z community/village/area has voted. As a result, the attention of the winning candidates gets skewed while sanctioning development schemes and other benefits.

My own experience suggests that the biggest victims of this were voters of marginalized communities; Schedule Cast, Schedule Tribes and Minority Community. Their harassment comes in the form of  denial of daily wage jobs by the landlords; denial of loans /money by moneylenders; persecution by way of implications in false cases so on and so forth. (https://pudr.org/unkept-promises-struggle-forests-land-and-wages-harda)

This issue was there even in paper ballot system of voting. But to deal with that in 1993 amendment to the Election Conduct Rule 1961 (ECR 1961) was introduced by way of section 59A.  Under the provision, the counting of the vote in a particular assembly could have been undertaken by mixing of votes polled in the entire assembly constituency which then provided protection to electoral from intimidation and victimization after results.

The section 59A Of election conduct rule 1961  [ Counting  of votes in specified  constituencies].—”Where the Election Commission apprehends victimization of electors in any constituency and it is of the opinion that it   is absolutely necessary that the ballot papers taken out of all boxes used in that constituency should be mixed before counting, it by notification in the Official Gazette, specify such constituency….”.

The protection provided by the introduction of 59A has been compromised in the EVM system of voting. The counting of votes in EVM is regulated by the provisions of rule 66A of the Conduct of Elections Rules, 1961 as inserted by the Conduct of Elections (Amendment) Rules, 1992. As per the rule 56C (2) (c) of the election rules, the final result sheet is to be prepared in Form 20 wherein the number of valid votes polled in each polling booth and also the number of votes secured by each candidate in the particular polling booth has to be entered.

Based on our past experience, before the counting of votes in the 2013 assembly general election in Madhya Pradesh, we raised the issue with the ECI. The commission informed us that: “The Commission is seized of the matter and has already proposed to the Government for amending the law for using a device called the “Totalizer” developed by the EVM manufacturing companies in which votes cast in different EVMs can be totaled so that polling station wise results will not be known.  The proposal is pending with the Govt. of India.”

(https://drive.google.com/file/d/1ud3w_EuDSIJ8TmPcTI0bA-rG9Lcbfj-Q/view?usp=sharing )

The fact was also highlighted by the Law Commission of India in its report “Election Reforms” submitted in March 2015. The report mentioned that ((on page 201 and 202) :  “In 2008, the ECI vide letter dated 21.11.2008 to the Secretary, Ministry of Law and Justice, recommended amending the Election Rules to provide for the use of a totalizer for the counting of votes recorded in EVMs at elections. As per the ECI’s suggestion, the results of votes polled in a group of 14 EVMs (hence, in 14 polling stations) would be calculated and announced together, in a change from the current practice of counting votes by each polling station.” The report further shared the fact that “The underlying rationale behind the ECI’s proposal was that the current system revealed the voting trends in each polling station, thus leaving the voters in that vicinity open to harassment, intimidation, and post-election victimization”. (http://lawcommissionofindia.nic.in/reports/report255.pdf)

I had filed a PIL on the issue in the supreme court but it was dismissed.  https://www.sci.gov.in/jonew/courtnic/rop/2014/32702/rop_235362.pdf

There are two other PILs pending at the Supreme Court o; the first one was filed by Yogesh Gupta and another one by BJP leader from Delhi, Ashwini Kumar Upadhyay. In these PILs, on 12th  January 2018, the ECI has agreed to the suggestion : ” It is submitted by the learned counsel appearing for the Election Commission that the secrecy of the ballot, privacy of the individual and further the right of the people staying in a particular locality should not be exposed, and any kind of prejudice or discrimination because of the voting pattern should be avoided. Therefore, there is a need for considering the aspect of the introduction of totalizer”. (https://www.livelaw.in/cluster-counting-votes-sc-decide-introduction-totaliser-feb-12/).

But in its counter affidavit filed in February 2018, the Union Government has opposed the use of a totalizer machine for counting of votes. https://www.outlookindia.com/website/story/no-need-of-totaliser-machines-at-this-juncture-for-counting-of-votes-centre-tell/309381.

In November 2018, the matter again came for haring but the apex court has declined to hear the matter urgently. https://www.indiatvnews.com/elections/lok-sabha-elections-2019-supreme-court-declines-urgent-hearing-on-pil-seeking-use-of-totaliser-for-counting-votes-in-polls-487035

This disclosure of voter preferences  compromises  the provisions of Free and Fair Election, which  is the sole essence of democracy as also the voter’s freedom of expression which is based on the basic feature of the Constitution and the subject matter of the fundamental right enshrined  under Article 19(1) (a) – freedom of expression and, Article 14- equality before the law in the  Indian Constitution:

In this highly polarized time, the secrecy of the vote must be maintained at all cost. But, with the political parties raising doubts over EVMs, it is highly unlikely that The Supreme Court can easily decide on the use of totalizer. But, till then banning political leaders alone won’t help, the news channels and print media must be barred from analyzing the vote share on the basis of the caste and religion.

Anurag Modi is an activist working in the Tribal area of MP &National Executive Member of Samajwadi Jan Parishad


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