Former Chief Election Commissioner SY Quraishi calls for ‘sweeping reforms’  to counter the degeneration of Indian Democracy. In an exclusive interview to The Malabar Journal Mr. Quraishi identified the following three areas for reforms: ‘electoral reforms, reforms in the television and digital media world, and reforms in our political culture’. The author of the recently published India’s Experiments with Democracy: The Life of a Nation Through its Elections elaborates his ideas of reforms, electoral bonds, one nation one election and many other important issues linked to electoral politics in a conversation with KP Sethunath.      

1: You have identified secularism, civil liberty and compassion as indispensable features of a vibrant democracy. Unfortunately, elections in India often turn out to be the occasion for the negation of these indispensable features. What is the way to address this dichotomy? The matter assumes importance in the background of the mainstream political parties becoming the main culprits in negating the very basic principles of democracy. What are your suggestions to overcome the situation?

A. To begin with, I believe we must not look at elections in isolation as it is part of the broader cultural and democratic framework that is in place, and what happens in the electoral realm is symptomatic of the larger trends that are being entrenched within our increasingly degenerating democracy. To counter this, we must work on bringing sweeping reforms in three areas: electoral reforms, reforms in the television and digital media world, and reforms in our political culture.

I have argued for a long about the range of electoral reforms necessary: to increase the autonomy and credibility of the ECI, to counter money power, to strengthen inner-party democracy, to enable decriminalization and to bring about accountability and transparency in the way ECI works. Moreover, we need strong and courageous election commissioners who will not be afraid of keeping the executive in check using the powers bestowed upon them by the Constitution and the Model Code.

We need to bring in reforms in the media network: stronger laws to check hate speech and misuse of data, to counter disinformation, to ensure citizen’s privacy rights, to enable freedom of speech. The excessive agenda-driven corporate control of the media network is obstructive to the functioning of democracy. In the political culture, we must bring about reforms to enable greater representation of women, leaders from minority communities, and oppressed castes and tribes. Over the decades we have been able to make some significant improvements, but democracy is hard work. So, we must always stay vigilant and strive to sustain and expand democracy, before it is hollowed out.
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2: The Great March of Democracy: Seven Decades of India’s Elections, the volume edited by you in 2018 have the opening essay by political theorist Bhiku Parekh called The Dialectic of Elections. In that he pointed out three essential components of democracy; elections, public deliberation and protest and mentioned that the last two named, lost much of their zest and flair in India. Election is the only thriving component left behind. But Mr. Parekh is lamenting that elections have become “vehicles of coming to power”. Is it true to say that the erosion of secularism, civil liberties and compassion is directly linked to the problem of elections becoming only vehicles for coming to power?

A. I think I agree with certain aspects of Dr Parekh’s analysis. The three essential components he has pointed out are spot-on, although I would qualify further to say that very often protest itself becomes a form of public deliberation. In this matter, I am more optimistic than Dr Parekh. Indians are highly resilient people whose lives simply cannot function, even on a day-to-day, practical basis, without the existence of diversity and pluralism. We cannot merely wish away this existing diversity, however powerful the anti-secular forces may seem. And we must remember that we are a nation founded on revolutionary protests, an anti-colonial struggle that was of global import. More recently, the anti-CAA/NRC protests, the farmer protests, and protests in various states against rising prices and unemployment have proved to be very successful. So, there is still a lot to be hopeful about.

As far as elections are concerned, there are obvious problems, and I think first and foremost, we just need to get our basics right. Better implementation of Model Code of Conduct, powerful commissioners to check executive excesses, and curbing money power. I must mention here that we must do away with electoral bonds, it only exacerbates the problems we already have, and creates further new ones. But having said all this, elections are more than “vehicles of coming to power”. People have come out in greater numbers to express their voting rights, and women especially. Parties have been periodically voted out of power. There is better electoral technology in place to utilize than ever before. Free and fair elections are arguably the most important aspect of a democracy, and we must remember that they are vehicles not only for people to come to power, but also to lose power. It is this system of accountability that makes it powerful.

3: ‘One Nation One Election’ is one of the hot topics of political discourses in the country. In your book you have dealt with the subject by highlighting the merits and demerits of the proposal. Apart from the practical difficulties, do you think that craving for such an idea is a reflection of the increasing trend of centralization of power in the country and dilution of whatever little remains of the federal principles.

A. I would agree. ONOE poses a fundamental danger to our federal structure. The issues and priorities of the states and the centre can never simply be clubbed together. Moreover, it is good that there are multiple and separate elections, because the politicians and the parties are always kept in check and are made accountable frequently. It is like a powerful feedback mechanism. And as for the argument about the reduction of costs that the ONOE system enables and so on, I have two things to say: Firstly, the level of expenditure on elections is not so abysmally unbearable that we need a massive systematic overhaul, and the difference ONOE makes in any case is quite minimal. Secondly, spending on elections is not a bad thing. It is the most fundamental aspect of an effective democracy. And moreover, we must also look at who ONOE finally benefits. I think it serves the wily priorities of the politicians better than it does the hopes and needs of people. Lastly, if electoral and political financing is what needs to be perfected-- and I agree that it requires several long-ranging reforms--there are better, more targeted solutions in place, and ONOE may not be able to address those issues as well as these other electoral reforms I have long argued for.

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4: This brings to me what Justice Fali S Nariman said during the release of India’s Experiments with Democracy. Justice Nariman pointed out that Indian elections are increasingly attaining the character of presidential form. Do you agree with such a formulation? If so, what are the reasons for such a change? What is your comment?

A. We are increasingly seeing the prime minister and other BJP functionaries campaigning for various Assembly elections, not in the name of state leaders, but in the name of PM Modi. The push for simultaneous elections, “double-engine sarkar”, and the kind of personality cult that is being built around the prime minister all indicate the force of this idea slowly taking shape, at the very least, say ideologically. In any case, the debate around the need or otherwise of the presidential system for India is not new.

One of the early demands of the Jana Sangh, the earlier avatar of the BJP, was that a western-style parliamentary democracy didn’t suit India. The Atal Bihari Vajpayee-led NDA government set up a national commission in 2000, under retired chief justice of India M N Venkatachaliah, “to review the working of the Constitution”. The then Union Home Minister L K Advani and Law Minister Ram Jethmalani thought a presidential government was more suited for India. After criticism, including from then President K R Narayanan, the commission didn’t broach the subject directly. The Vajpayee government shelved the report.

Likewise, in mid-1984, with Indira Gandhi-led Congress holding a comfortable majority in the Lok Sabha and consolidating its position in the Rajya Sabha, then Union Minister Vasant Sathe and the party’s legal cell tried initiating a national debate on the issue barely eight months before the general elections. Sathe said the presidential form of government could cleanse the nation of political and economic corruption. Opposition leader Charan Singh said Indira Gandhi’s concept of a presidential form of government is a naked form of dictatorship. At this time, Mr. Vajpayee was totally against the idea too, saying he would fight tooth and nail against such a policy.

In many ways, we are currently subject to similar anxieties and aspirations. To my mind, the Westminster-style parliamentary system works best for India. Presidential system will have more disadvantages than advantages for us. Of course, we need to further enhance the current system and introduce correctives and so on, but that does not mean we must do away with it.

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5: EVM is an issue you have dealt with in great detail in your book. And you have unequivocally supported the adoption of such a technology. You have placed your confidence on the institutional vigour of the Election Commission to ensure tamper proof EVMs. Despite the elaborate procedure in handling EVMs by the EC there is a lingering doubt about the efficacy of the system in view of the high political stakes linked to the elections. Also, the increasing acrimony linked to the polls. What are your suggestions for a foolproof EVM in such a situation?

A. EVMs have made India a proud global leader in elections. After incorporating VVPATs, the system is now foolproof. After the expert panel report in 2019, the ECI’s initiatives in this regard stand vindicated. There are 4 tiers of security: firstly, technical safeguards, only two public sector undertakings, BEL and ECIL, who make defence equipment, produce it in a way which makes them hack-free. Secondly, foolproof protective custody at all stages of transportation with several checks and so on, and it is fully videographed. Thirdly, an independent technical advisory committee from the top IITs oversee the entire process. Fourthly, there has been judicial scrutiny done to validate the entire process both at the Supreme Court and in several high courts. I think EVMs can make India a pioneer in electoral technology and we must ensure to keep it foolproof at all levels.

6: You have mentioned the “evils of communalism, casteism and corruption” peaking during the elections. One of the positives you found in One Nation One Election is that less frequency of polls may help in keeping the frequency of such evils also on a lower scale. Do you think that EC would be able to put an effective mechanism to eliminate such evils from the electoral arena with more effective safeguards and guardrails?

A. Election time certainly is when all of these various issues become foregrounded most powerfully. And as I have discussed in my earlier responses, in order to counteract these things, there are already powerful systems in place that are in fact endowed by the Constitution. Powerful commissioners, more stringent implementation of the MCC, penalizing those that delve in hate speech and disinformation using the many laws that are in place for precisely that purpose, and so on. But in the final analysis, I think it boils down to things like political will, moral courage and civic morality. Now, to inculcate these things, our entire social and political culture, even in times when there are no elections, must have these principles made sacrosanct, and they must be practised.

7: Money power is the hallmark of elections in India. Fund raising by political parties is linked directly or indirectly to corruption and cronyism. The trend is not limited to India alone. Even the so-called advanced democracies in the West are also under the mercy of funders. Maybe they are more sophisticated compared with the Third World. What is your view on the subject? Do you think that government funding based on the votes polled by a political party offers a solution?

A. Money power is a very significant issue and there are lists of electoral finance reforms that have to be carried out. Prescribe a ceiling for political parties’ expenditure, as has been done for electoral candidates. Consider state funding of political parties (not elections) with independent audit, and a complete ban on private donations. Set up an independent national election fund where all tax-free donations could be made. Enforce internal democracy and transparency in the working of the political parties and bring them under RTI. Accept the Election Commission proposal to legally empower it to cancel elections where credible evidence of abuse of money is found. Empower the Election Commission to de-register those political parties that haven’t contested any election for ten years and have yet benefited from tax exemptions. Make paid news an electoral offense with two years’ imprisonment, by declaring it a ‘corrupt practice’ (Section 100 of the Representation of the People Act) and ‘undue influence’ (Sec 123(2)).  

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8: The electoral bond scheme introduced in the country has made the funding process more opaque than transparent, say critics. What is your view on the subject?

A. I count myself as one among its many critics. It was disturbing to hear the argument of the SG that citizens have no right to know the donors/recipients' identities. This statement would behove a banana republic, not the world’s largest democracy aspiring to be Vishwaguru. Crucially, in the past, both the Reserve Bank of India (RBI) and the Election Commission of India (ECI) voiced strong objections to the electoral bonds scheme in accordance with their respective mandates. The ECI, in a letter to the Ministry of Law and Justice, warned that electoral bonds, coupled with preceding legislative changes, could facilitate large-scale illegal donations and the proliferation of shell companies to channel black money into the political system via these bearer bonds.

Also, the donors seeking anonymity in and of itself does not merit the introduction of such a sweeping scheme as this. We cannot have private corporate interests decide the needs of the public. We need to ask who this anonymity is benefiting. Priorities and needs of private and corporate donors cannot cull away the public’s right to information, at least, not in a democracy, that is.

9: Linking Aadhar ID with electrical ID is another contentious subject. You are not convinced about the efficacy of such linkages. Could you please elaborate on it?

A. There are multiple issues with this idea, both on the basis of practicalities and principles. Firstly, linking the electoral roll with Aadhaar information could lead to personal information getting leaked. This could lead to targeted electoral campaigns and even disenfranchisement of groups of voters. What was mentioned as proof of this having already happened was the tracking of lakhs of voters in Andhra Pradesh and Telangana in 2019, and even the actual deletion of 55 lakh voters from the electoral rolls. Secondly, the scope for voter fraud remains, even with the use of Aadhaar. In 2020, the Unique Identification Authority of India (UIDAI) had admitted that it had had to cancel 40,000 fake Aadhaar cards. Thirdly, and most importantly, Justice B.N. Srikrishna, who was the chairman of the committee which drafted the original Personal Data Protection bill, has said that voter ID-Aadhaar linking could allow the government to profile voters. Precedent for this exists in Latin America where authoritarian regimes have misused this and disenfranchised entire communities. This possibility can put India at a risk, given the large number of marginalized communities present here. And finally, the government has said that the linking can be voluntary, in view of the SC judgement. But how can the voluntary consent of 90 crore voters be taken? And if people deny assent, we will not have a clean roll, defeating the whole purpose of the exercise.

10: The invasion of social media is a major concern in connection with the electoral choices. The Cambridge Analytica episode is a chilling reminder of the dangerous potential of social media in shaping political preference by using fake or fictitious issues. The advent of generative AI with its capacity for deep fakes is expected to accelerate such practices more vigorously. What is your view on such threat perceptions? What are the institutional safeguards to handle such factors? 

A. So far, in measures that can only be termed pseudo regulatory, the Election Commission has developed a set of ‘Voluntary Code of Ethics’ for the General Elections prior to the Lok Sabha 2019 elections. Furthermore, a ‘Voluntary Code of Ethics’ has been developed to ensure free, fair and ethical use of social media platforms and to maintain the integrity of the electoral process.

In addition to this, there is also what is called a “Media Certification and Monitoring Committee”. This committee clears political advertisements before being telecast on television channels and cable networks by any registered political party or by any group or organisation/association or by any contesting candidate during elections.

Apart from these external bodies, there are many laws and provisions that regulate the social media troll pages, such as the Information Technology Act 2000 (Amendment 2015), Indian Penal Code, 1860 etc. there are many provisions in the IPC for the offences relating to cybercrimes and abuse by the troll pages, which are: Section 295A (Intentionally insulting religion or belief), Section 153A (promoting enmity between people), Section 499 (Defamation), Section 505 (Statements conducing to public mischief), 506 (criminal intimidation), and Section 124A (Sedition), among others.
Against the enormous presence of social media, these above measures prove to be an evidently weak and ineffective regulatory apparatus. Instead of these dispersed scatterings of ever-amending legal provisions and contingent external bodies with pseudo-powers, we need a coherent, well-established, all-encompassing body of regulations for legal governance and administration of these newly emerging digital infrastructures.

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11: You have described anti-defection law as a good intention becoming a bad law. Some escape accountability while others face disqualification. Shashi Tharoor says it reduces every MP into cipher. What are the possible solutions to correct the situation? 

A. On the one hand, by enslaving the legislator to party whips, the law severely restricts their freedom, for which, in fact, it was unsuccessfully challenged in the Supreme Court in 1992 for violating the basic structures of the constitution such as free speech. On the other hand, it has been severely unsuccessful in preventing crossovers and defections, which was its main motive.

Thus, I believe that for addressing the first issue, the scope of the binding whip should be restricted to a vote of confidence, as the Dinesh Goswami Committee also suggested. To address the second issue, the disqualification period from re-contesting chairmanships and ministries has to be extended to at least six years. This extension can ensure that the defectors are not allowed to enter the elections for at least one election cycle. Of course, the MLAs can still be bought off from the ruling dispensation to reduce it to a minority, to simply sit at home for six years.

Given the utter ineffectiveness of the anti-defection law, coupled with the supremely creative manoeuvring of the concerned parties, legislators, and speakers; the very foundation of parliamentary democracy is perturbed and with it the abiding question of whether the Tenth Schedule is practically meaningless. Therefore, it may be time to acknowledge that, beyond the institutional and constitutional fixes, we need to make a popular assertion of an ethical politics that causes the public to shun such political plotting.