As Maharashtra struggled to tackle the COVID-19 pandemic , its people were staring at a unique problem. The deadlock between the Governor of Maharashtra and Chief Minister Uddhav Thackeray looked like it would continue for long and cost Mr. Thackeray the post of Chief Minister. But thanks to the intervention of the Prime Minister and the prompt action of the Election Commission of India (EC), the impending constitutional crisis has blown over in Maharashtra.
Averting a political crisis
Mr. Thackeray, who took oath as Chief Minister on November 28, 2019, has to become a member of the legislature within six months, which ends on May 27. This would not have been a problem for him had the elections, scheduled to be held on March 26, not been postponed indefinitely due to the pandemic, by the EC, which used its powers under Article 324 of the Constitution, along with Section 153 of the Representation of the People Act, 1951. A double application of Article 164 (4) to extend this period for another six months was out of the question as the Supreme Court, in S.R. Chaudhuri v. State of Punjab and Ors (August 17, 2001), had declared that it would tantamount to a subversion of the principle of representative government.
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Consequently, the Chief Minister was left to take the nomination route. In pursuance of this, the Cabinet, headed by Deputy Chief Minister Ajit Pawar, submitted a proposal to the Governor to nominate Mr. Thackeray to the Legislative Council. Article 171(3)(e) coupled with Article 171(5) empowers the Governor to nominate an individual with “special knowledge or practical experience”. The Governor, however, put the proposal in limbo for over a fortnight.
Given this situation, political analysts speculated whether Mr. Thackeray would knock on the door of the Supreme Court or follow the route Lalu Prasad took in Bihar in 1997 after being forced to resign following conviction in a criminal case. Instead of seeing the end of his political career, he brought his wife Rabri Devi to replace him as Chief Minister. Analysts wondered if Mr. Thackeray would similarly hand over the reins of power to his son, an MLA.
However, better sense prevailed and the political leadership managed to avert a major crisis. The Prime Minister’s intervention and the EC’s prompt action averted the political impasse — polls to nine legislative council seats in Maharashtra will now be held on May 21.
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By deciding to hold elections during a pandemic, the EC has taken up a big responsibility. Though only the 288 members of the Vidhan Sabha will be voting in this election, the EC will have to ensure strict implementation of the Health Ministry’s guidelines. Knowing the EC’s capabilities and years of experience, this will be a cakewalk. South Korea just conducted its national election with 44 million voters in the midst of the pandemic. It is a good source of inspiration for the EC.
But a bigger cause for concern for the EC are the upcoming Assembly elections for Bihar (which must be concluded by November 29, 2020), West Bengal (May 30, 2021), Assam (May 31, 2021), Kerala (June 1, 2021), Tamil Nadu (May 24, 2021) and Puducherry (June 8, 2021). Unlike the Rajya Sabha/Legislative Council elections which can be postponed indefinitely, the EC can postpone elections to the Lok Sabha and State Legislative Assemblies for a period of only six months, the constitutionally defined limit between two sessions of the House/Assembly (Article 85(1) and Article 174(1) of the Constitution, respectively).
For a further period of extension, the ball is in the executive’s court, which will be faced with two possibilities. The first is proviso to Article 172(1) whereby during a state of Emergency, an election can be postponed for one year in addition to a period of six months after Emergency is lifted. The rider, however, is that a state of Emergency can be declared only if there is a threat to the security and sovereignty of the nation, not if there is an epidemic or a pandemic. The second option is to declare President’s rule in the State, enabled by Article 356(1) of the Constitution. But its limits have been repeatedly defined by the Supreme Court.
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Lessons from South Korea
Some experts say that the COVID-19 pandemic could last for two years. Deferring elections for such a long time would be against the spirit of democracy and federalism, which are the basic components of the Constitution. As a result, holding elections seems to be the only way out. It is noteworthy that India will not be the only country to hold elections during this pandemic. According to the International Institute for Democracy and Electoral Assistance, nine countries have already held national elections and referendums during this public health crisis. Among them is South Korea, which, under strict guidelines, managed to pull off a near-perfect national election recording the highest voter turnout of 66.2% in 28 years.
The EC could take into account the measures that South Korea took to prepare a foolproof plan. South Korea disinfected polling centres, and mandated that voters practise physical distancing, wear gloves and masks and use hand sanitiser. Voters had their temperatures checked on arrival at the booths. Those who had a temperature above 99.5 degrees Fahrenheit were sent to booths in secluded areas. The interests of infected voters and the interests of those suspected of having the virus were not ignored: COVID-19-positive voters were allowed to mail their ballots, while self-quarantined voters were allowed to vote after 6 p.m.
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Unarguably, the population of States like Bihar (9.9 crore) is huge compared to South Korea’s population (5.16 crore). The EC could adopt targeted measures for older voters who are more vulnerable to COVID-19. Options like proxy voting under a well-established legal framework, postal voting, and mobile ballot boxes can be explored. The EC has a difficult task of sticking to its goal of ‘No Voter Left Behind’ while also ensuring that the elections do not turn into a public health nightmare.
The COVID-19 pandemic is a big threat to the established world order. It is quickly transforming fragile and vulnerable democracies into autocracies in the name of public safety. How India, a large and well-established democracy, responds to this crisis is the biggest challenge before it.
S.Y. Quraishi is former Chief Election Commissioner of India and the author of An Undocumented Wonder —The Making of the Great Indian Election
