Provide for putting off polls amid pandemic
There is little doubt that the attention of the political class will, over the coming months, increasingly become focused on the 2022 Assembly elections, particularly to that of Uttar Pradesh. The five-year term of five Assemblies is scheduled to expire in the first half of next year.
Hence, unless extraordinary developments occur and if it follows convention, the Election Commission of India (ECI) will, in all likelihood, hold them together by moving the UP elections forward. It will, therefore, have to commence election preparations by late autumn or early winter. The UP poll will have substantial stakes for not only the BJP, the regional UP parties and the Congress but also for the national scene. International observers, too, will seek to draw conclusions about the possible political direction from the poll outcome in UP.
The ECI came in for considerable criticism, including from courts, regarding its failure of the observance of Covid protocols during the March-April Assembly elections. While it is a question of debate if the ECI was right in taking objection to some of the more intemperate remarks of the judges, it is beyond question that all parties and politicians broke Covid protocols, which they themselves were earlier urging the people to observe. The ECI, too, did not take the action it needed to take to ensure that all political leaders and parties adhered to these protocols. Certainly, the mere issuance of comprehensive guidelines and thereafter advisories proved insufficient.
The second Covid wave is abating. The government has assured that by the year-end, a large number of Indians will be inoculated. At the same time, there are apprehensions of a third wave. What can be reasonably stated is that the state elections will have to be held at a time the pandemic would not have passed into history. It is, therefore, vital for the ECI to think through the precautions that it will have to take to ensure that all concerned, including political parties, officials and voters, adhere to Covid-appropriate behaviour.
To do so, it must not rely on the existing guidelines or their marginal amendments. It must consult with the political parties and officialdom to evolve, if possible, a binding consensus. For this purpose, if required, it may also suggest changes in the law which the political class must seriously consider. It must also consult with the official medical fraternity, especially its sections charged with Covid management. But it must go beyond this even if it has never done so earlier. It must discuss with social scientists and communications experts on effective ways of spreading the message of the need on the part of the electorate to conform to Covid-appropriate behaviour, specifically during the entire election process.
The country’s Covid experience also points to another requirement which will need consideration after the pandemic is over. It cannot occur in these contentious and polarised times when the government’s Covid management will itself be an issue in the elections. This relates to the possibility of a situation in a future pandemic when it may be virtually impossible to hold Assembly or Lok Sabha elections without risking the great spread of infections.
This is not far-fetched. For, what if the country had experienced the second Covid wave in April-May 2014 or 2019 instead of in these months in 2021? Would it have been possible to conduct the elections in large parts of the country amidst the havoc caused by the second wave? The ECI would have then had to rely on interpretations of the existing constitutional provisions relating to its mandate in departing from convention to deal with an unanticipated and emergency situation. It has done so on an earlier occasion in another context, but that became controversial, forcing the executive to seek the Supreme Court’s opinion. It is prudent to anticipate situations and provide constitutional structures for the ECI to act without attracting controversy.
The Constitution prescribes that the term of the Lok Sabha and a state Assembly can be extended for a period of up to a year if an emergency has been invoked because of external aggression or armed rebellion or financial reasons. There is no need to go so far as to proclaim an emergency on account of a pandemic, for the laws already available provide sufficient powers to the Central and state governments to handle such situations. Besides, health emergencies would not warrant the curtailment of fundamental rights, including those relating to moving the courts. However, as pandemics may make holding elections risky to the citizens’ health and life, amendments to extend the terms of Parliament and the Assemblies need to be considered.
Naturally, an extension of the term of Parliament/Assemblies cannot be taken lightly. Every means will have to be first explored to hold elections on time. Technological advances may also provide solutions, though the application of technology will have to take the aspects of the extent of its access and, hence, equity into account. But despite all this, if unbiased and independent scientific advice says that in order to save lives it is essential to postpone elections, there would be no alternative but to do so.
The Constitution should have specific provisions for the postponement of elections in case the needs of national health arising out of pandemics or epidemics demand that. That is a lesson which should be drawn from this pandemic experience.
Scholars and some global institutions are turning their attention to issues relating to the postponement of elections as well as their quality arising out of humanitarian concerns, including pandemics. Hitherto, the focus of scholarship largely has been on how to ensure free and fair electoral exercises instead of situations requiring their postponement. The International Institute for Democracy and Electoral Assistance, an intergovernmental organisation, of which India is a founder-member, has followed the impact of the pandemic on elections worldwide. Many countries held national and sub-national elections while a large number postponed them.
In a thoughtful article in the Election Law Journal, Toby S James and Sead Alihodzic examine issues relating to holding elections in emergency situations, including natural disasters and epidemics. They consider steps that can be taken to uphold their fairness during such situations and also note, “There is an obvious humanitarian case for delaying the conduct of elections where it may bring about immediate threats to human life and security.”
Societies and polities have to learn from experience. They cannot take the view that no constitutional provisions need to be made for events that seldom occur. In this case, it is being said that such a pandemic was not seen in a hundred years. That is no reason for not thinking imaginatively for situations that may confront us with the next pandemic, whenever that may strike us, hopefully only in the remote future.
