The Impracticality of Jan Chaukidar

We bring you a guest post from Shambo Nandy, a recent graduate of the West Bengal National University of Juridical Sciences who now works with Raju Ramachandran, a leading Supreme Court counsel. 
The judgment of the Supreme Court in Chief Election Commissioner v Jan Chaukidar has been criticised by many. While some have condemned it as being open to severe misuse, others have assailed the correctness of the order. While these fears are warranted, I feel that the judgment in its current form suffers from another vice, viz. impracticality. The judgment says that a person who is confined in a prison or in the lawful custody of the police, loses the right to vote, and is disqualified from contesting elections. In other words, since he is not a voter he cannot stand for elections, being disqualified under s. 62(5) of the Representation of People Act, 1951. Consequently, even undertrials (who are in the lawful custody of the police) will now be debarred from standing for elections. The judgment is problematic as it gives rise to several possibilities all of which is riddled with its own share of problems and this makes it impractical to implement. 
As we know, before any election the Election Commission notifies not only the dates on which elections will be held and the results declared, but it also lists the dates by which nominations will be accepted and withdrawn. Usually there is a 2-4 days gap between the last date for submitting nomination papers and the date for the withdrawal of candidatures. After this date, the elections are invariably conducted within a month’s time. 
Now for example, let us say that a candidate has submitted his nomination papers. It has been scrutinized and the date of withdrawal of candidatures is also over. Subsequently, the Election Commission has also published his name in the list of candidates from that particular constituency. It has also published the ballot papers and the Electronic Voting Machines have been readied. In doing all of these, substantial time and effort has been spent and elections are only a week away. At this stage, what happens if a candidate is arrested? Will his name still be struck off from the list of candidates? If yes, then will it be done at the risk of countermanding elections (as is done if a candidate dies during this stage)? 
Normally, when the police receive a cognizable complaint, it does not arrest a person without conducting a preliminary investigation. However, in certain cases the police make an immediate arrest; a complaint under s. 498A of IPC is one such instance where arrests are immediately made. The same holds true for other cases where complaints involve allegations of grave offences and some evidence or eye witness exists. Hence, in all such cases where arrests are immediately made, what happens to the fate of the candidate? Can his name be struck off when his name has already been published amongst the list of candidates and election is just a few days away? Is it possible that the candidate can remain among the list of candidates, but all the votes obtained by him will be declared to be invalid? 
The Patna High Court in its judgment in 2004 had stated that the name of the candidate should be struck off forthwith and in such cases the Election Commission can “decide what action to take, even if it be countermanding the elections wherever such persons have participated as candidates.’’ However, if this suggestion of the High Court is accepted by the Election Commission (since the Supreme Court has not added anything new), then that would entail sufficient wastage of time and monetary resources. Moreover, in many situations countermanding elections will lead to unnecessary delay in the formation of the government. These are not alarmist apprehensions; there are several instances at present to point out that these fears may well turn out to be true in the recent future. For example, the ruling coalitions in both the states of Kerala and Uttarakhand have a wafer-thin majority. In a future election in Kerala, if election to a particular seat has to be countermanded because of the Jan Chaukidar judgment, and if both the coalitions muster up 70 seats each (total number of seats being 141), then we will face a hung assembly for some time. Normal government activities which involve expenditure will be held up till the result of that one seat comes out. Such a long time gap may also see a spurt in dirty horse trading activities as we have previously seen in Bihar and Jharkhand. While the example is only of Kerala, such a situation can arise in many other states which have lesser seats in their legislative assemblies. 
Another problematic area which would arise if elections are countermanded would be if the candidate in lawful custody gets bail the day after the Election Commission notifies countermanding of election to that seat. The candidate can contest again from that seat and countermanding elections in such a case will be farcical. Countermanding elections, in effect, will be a boon for lawyers as during elections there will be an exponential increase in bail matters. 
The other option is also not devoid of criticism. If the Election Commission adopts it, i.e. of declaring the candidate’s votes as invalid, then the real winner will not be the true representative of the people. India follows the ‘first past the post system.’ Often a candidate gets elected because there is a division of votes between the other parties. There is enough criticism as to how a candidate getting as low as thirty per cent of the total number of votes gets elected. Hence, declaring a candidate’s votes as invalid will further complicate the situation as the votes obtained by him could have been split between the first two candidates and a different winner could have arisen. To illustrate, let us take into account a scenario where the difference in votes obtained between the first two candidates is 3000 and the candidate who is in lawful custody gets 5000 votes. Now, these 5000 invalid votes could have gone to either of the first two candidates (with some votes going to the other candidates in the fray) and there is a possibility that the person coming second could have been the winner. This possibility will always arise in cases where the total number of votes obtained by the candidate in lawful custody is more than the victory margin of the winning candidate. 
This confusion could have been easily put to rest if the Supreme Court had given a more reasoned judgment in stead of just saying that “we do not find any infirmity in the findings of the High Court.” Surely, it did not spend too much time analyzing the practical problems that this judgment would create. If it had, then the Court could have easily avoided a lot of confusion by proposing a realistic solution which would fulfil the intention of the court if in case situations such as those mentioned in the preceding paragraphs arose. 
Unlike the Supreme Court, the Patna High Court cannot be faulted for not giving a reasoned judgment. Unfortunately, it was not properly assisted by the counsels appearing for either the Election Commission, or the Central and State Governments. In fact, the court puts it on record that the Advocate General “kept away from the Court” when he was issued notice. It sadly notes that no “responsible report” was left with the Registrar General of the High Court on whether criminals or persons in the lawful custody of the police have entered the arena of elections. 
The Supreme Court could have agreed with the High Court’s decision but at the same time should have been more articulate in its reasoning. This is reasonable to expect in cases such as this, where fundamental matters relating to the functioning of our democratic system are decided. Since brevity is not a characteristic feature of court judgments, one can only wonder as to why the Supreme Court made this an aberration. This hurried judgment is also a reflection of the Supreme Court’s paucity of time in writing judgments. 
On the point of questions of law, like the Supreme Court, the Patna High Court too has made the same mistake that Anup Surendranath has pointed out on this blog – that of conflating the denial of voting rights under s. 62(5) of the 1951 Act and the disqualification of being on an electoral roll under s. 16(1)(c) of the 1950 Act. Probably, if the parties to the case had seriously contested the case offering an “in depth analysis” of their own to the High Court, this mistake would have come to the fore and we would have been spared a wrong and impractical judgment. Similarly, the Supreme Court ought to have heard the Union of India and other interested parties such as political groups who will be directly affected by this judgment. A lackadaisical attitude amongst all the parties is majorly responsible for this. 
Since the Patna High Court has left it open to the Election Commission on the course of action, it will be interesting to see its response as and when it is confronted with such a situation.
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