Elections in the U.S. and India

AS ONE goes through the days of the escalating high voltage drama of the United States Presidential elections involving the candidates, their advisers, Federal and State judiciary, famous lawyers, election officers, country boards, unhappy voters and a bemused world, it is tempting to make comparisons with another country which has for 50 years stubbornly held on to its democracy, and to see how the major features and themes involved in the U.S. would be played out in India.

Some distinctions - India does not follow the presidential system; it is a parliamentary democracy, and its voters cast their ballots for political parties represented by their candidates for the 540-member House of the People. The leader of the party in the majority becomes the Prime Minister, the nation's executive head. Second, India has a national Election Commission, a body created by the Constitution which protects the Commissioners from removal. The Commission is a permanent body and manages the election process all over the country. Members of political parties do not have a role in the conduct and certification of elections. Civil servants are barred by law from political affiliation; if drafted for election duty, they are under the control of the Commission. Accustomed to this rigid separation between the election authority and politicians, Indians are bemused to find Republicans and Democrats virtually running the main levers of the system, as exemplified in Florida, and would think it a recipe for partisanship and conflict. Third, in an Indian election the process and its components are standardised; there would be no question of having a differently designed ballot paper. As for the machine v human debate, the latest in the Gore/Bush series, a near universal use in India of paper, eye and hand for the vote and count is slowly being replaced by electronic apparatus. The wisdom of this may now have to be reviewed.

Political maturity

If we take into account India's vast population exercising universal franchise, its far-flung areas, remote villages, multiple parties and candidates, one must concede that its Election Commission has done a pretty good job in handling the five-yearly general elections and a few mid-term ones. However, the major credit-takers are India's voters, most of who are poor and barely literate. Time and again, they have shown that they take their democracy seriously, vote in large numbers, and possess a remarkable degree of political maturity and discernment evidenced by frequent rejection of the corrupt, inept and breakers of election promises. By contrast, the relatively low turnout in the U.S. comes as a surprise. Another interesting aspect is that in India it is the poorer lot who display the most interest and have the highest turnouts in elections. On the negative side in India is increasing violence, booth capturing, and corruption and voter impersonation. The United States seems to be relatively free of this. One other point about an Electoral College. It would never work in India. At times of crucial legislative votes, Indian political parties in some States not known for best constitutional practices have ferreted key legislators and kept them in captivity, to be produced at the eleventh hour for voting. Absent a rigid rule that members of the Electoral College have no business to change their voting mandate, there will be blandishments and tempting offers ensuring high grade multi-generation prosperity for floor-crossing.

India's media has always played a strong role in its elections. Newspapers, especially in the local languages, extensively cover political and electoral news and stories. Till not so long ago, television existed in the lone presence of Doordarshan, a network wholly owned, controlled and supportive of the government in power. Since everyone knew that, no attention was paid to it. However, with increasing privatisation there are several networks, including some international ones, and these turn out fairly slick programmes forecasting trends and covering elections. They haven't so far taken it upon themselves to blur the difference between the results of the count and their predictions. Hopefully, they will learn a lesson from the dreadful muddle the U.S. newscasters landed themselves in on the night of November 7.

The Indian Election Commission frowns upon exit polls, taking the view that this may influence voters going to vote at a later time or day. This seems quite reasonable; a few more hours to get the actual results should not matter so much, especially in a country whose concept of time easily stretches to take in millenniums, and occasionally borders eternity.

However, it is in the process of resolving the conflicts over ballot validity that we would see dramatic differences between the two democracies. In India, the national Election Commission would decide such disputes. It has shown little hesitation in ordering recounts, and less frequently, repeat polls, when the facts reveal distortion of the electoral process. And if it does not, anyone familiar with India's robust public interest law and litigation would bet that within hours of the problem surfacing, a petition would be filed in the country's Supreme Court. Issues involving breach of fundamental rights and constitutional protection can be brought directly to the Supreme Court. Few matters can be as important as the election of the nation's government, and it is a fair assumption that the Court would exercise its discretion to take on board the case and proceed to hear it. That would set the scenario for an interesting reversal of Finley Peter Dunne's quip that ``the Constitution follows the flag; and the Supreme Court follows the election returns.''

Basic structure

While it is hazardous to predict what a Court may decide, some indications arise from the consistent view taken by India's senior Justices that in matters of public importance, form and procedure must yield to substance and justice; the more important the issue, the greater force for this maxim. The Court has fashioned the doctrine of the basic structure of the Constitution, and held that it is immune even from constitutional amendment. Free and fair elections, the Court has said, is an important part of this basic structure. Given such law, the Court would have little difficulty in holding that where the facts reveal a substantial failure of the electoral process, corrective action is called for, especially when the issue in controversy would have a decisive bearing on the final outcome of the national poll. Relevant in this connection is a maxim of elections - that the ballot paper should be designed to facilitate easy and uncomplicated marking of the candidate of the voter's choice. A defectively designed ballot paper combined with complaints of confusion from a sizable number of voters could well lead to an inference of a flawed process requiring remedial action. The test to be applied is not whether a clever voter can understand the ballot paper; rather it is whether a not so clever citizen can misunderstand it. Other significant instances of voter intent not being counted, due to pre or post ballot bungling by officialdom, would further nudge the judicial mind towards relief and remedy.

Verdict

The presence of someone like Ms. Kathleen Harris, with obvious overtones of partisanship, being in a crucial determinative position would have disturbed the Court. As an aside, while oral evidence is rare in the Supreme Court, it is not unknown; and it would have been interesting to see Ms. Harris being cross- examined by Mr. Boise, who is reputed to have given Mr. Bill Gates a harrowing time in the box. Of particular interest would be Ms. Harris' understanding of the use of discretion; one of her statements setting out her position of non-intervention and making mention of an act of God seemed to indicate that unless the Almighty personally intervened for Mr. Gore, she was not going to budge. By comparison, to the credit of Governor Bush (the Florida one), there is hardly any allegation that he would influence the result. In an Indian setting, much would have been made of the fact that the Government of Florida is the brother of the Republican candidate.

The early intervention in the controversy of the country's Supreme Court has some advantages. It ensures an early result and avoids protracted litigation, ruinous to candidates and country. It brings a verdict and solution from the one institution that commands great respect and credibility. Issues and times such as these desperately need public men and women who will be, and be seen to be, free from partisan considerations; who can rise to the task of matching fact and principle and national interest and finding a solution with these guides alone. It is a sad and sobering comment on a democracy when it cannot easily find such men or women in its political and public spheres. Perforce it must turn to a Court, for at least the framework of that institution is designed to obtain and exhibit these qualities.

SRIRAM PANCHU

(The writer is a Senior Advocate and

currently a Visiting Scholar at New York University's School of Law.)

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