By Sherry Rehman
The bedrock of the democratic process is premised on a fair and free election by which the will of the people is ascertained through a nation-wide poll. If a democratic state cannot administer a transparent election under which there is a basic consensus by all stakeholders, then it fails in its first duty to the people it seeks to hold sovereign. In the history of Pakistan’s chequered experience with democracy, only the epochal 1971 election has been held as free and fair. In India, however, the democratic process has taken a different trajectory, which has allowed its institutions to slowly develop their independence and credibility by strengthening each other. In this entire process of evolution over 57 years, Indian democracy has relied on its courts, its Election Commission and its military to play by the rules as established by its Constitution .Politicians and political parties have proved to be the weakest link in the democratic chain in the Indian system, interspersed in recent times with an alarming number of criminal, incompetent, fundamentalist or corrupt elements. Yet at no stage has the democratic experience been challenged either by the military, or by disbelievers in the value of democracy. Are their laws any better intrinsically, or have they applied existing laws, and improved on old ones? The answer to that question lies in all three of the above.
With reference directly to the Electoral Process, it would be profitable for us to compare our own model with the Indian template.
In the Indian Constitution, there is a whole chapter on the Election Commission by Ambedkar, which ascribes a high value to the process and institutions involved in the Indian democratic apparatus. Article 324 is in fact, invoked by almost every officer of the commission like a mantra even in the most casual conversation. In Pakistan too an entire section, from Articles 213 to 226, is dedicated entirely to the holding of free and fair elections but despite some laws actually being better in theory, the failure of the EC in Pakistan lies in the absence of their enforcement more than anything else. There are many similarities in the actual laws, but key differences emerge in the actual implementation of these laws.
The actual composition of the EC in India is different from that of Pakistan. In the latter we have five members of the EC, all of whom are required by the law [ Article 213 d] to be either serving judges of the Supreme Court, or be qualified to be appointed to the SC from the High Court, one from each province for a term of three years. In India, there is great emphasis on the idea that judges must not be appointed members of the EC, as it is administrative work, and are taken from the civil service for the period of their service, which is six years. There are only three members of the EC in Delhi as it is felt that decision-making by consensus is all-important.
By Article 329 of the Indian Constitution, the courts are barred from interfering in the work of the election commission, and election petitions in the hundreds are entertained by the EC. In Pakistan too Election Tribunals are appointed by the EC, but they hold little credibility as they are not known to overturn questionable results.
The manner in which elections are manipulated in some countries in the world is by a process known as pre-poll rigging. This is when the party in power uses state resources and government agencies to abuse the advantages of incumbency, as was recorded by large swathes of the print media, election observers and human rights groups in Pakistan in 2002. Although restrictions clearly exist on the use of government machinery and campaign funds, these laws are known more for their transgression rather than their observance. In India too candidates spend way more than the state allows them to, and the criminalisation of politics is a big issue that has not been satisfactorily resolved by their EC, but in recent years strict regulations on government mis-use of state resources have been applied by the EC. Although a great deal of the strength of the EC is located squarely in the hands of one radical CEC, T.N.Seshan, and subsequently M.S.Gill and J.M.Lyngdo, who began to apply existing rules stringently by calling sitting governments to account, the first real challenge to incumbent-abuse from the Commission came in the 1970s. After the Nehruvian consensus broke in Indian politics and the All India Congress began to be seen as a party that could be challenged, Indira Gandhi’s second election campaign was challenged by a petition which found its way to the superior courts. She was rebuked for using her staff officer during the election campaign, then declared an Emergency and suspended fundamental rights. But from then onwards, the support from the courts to the Election Commission increasingly strengthened the institution. In Pakistan much of the superior judiciary has become victim of PCO oaths and delivered Doctrine of Necessity judgements that allowed the democratic process to be subverted by military coups. In India, increasing electronic media vigilance has contributed immensely to the transparency of the electoral process. It is no small coincidence that the Indian EC became more powerful during the 90s when private television channels began to proliferate and were allowed to report the news as they saw it, with the result that one independent institution strengthened another.
The Indian model code of conduct, agreed to by all parties in 1968, was actually implemented in 1991 as a major instrument of ensuring free elections. Essentially, the Code of Conduct is designed to bring the party in power to the level of the opposition. Through the EC and its observers this moral compass ensures that the sitting government does not get an undue advantage over its political rivals. While in Pakistan, political rivals are kept out of the mainstream by the military, in India the EC is now powerful enough to ban transfers and postings once the election date has been announced. .
Unlike in Pakistan, the EC in India appoints three election observers in each Lok Sabha constituency, so at one time there are often 1500 observers all over the country. These observers are taken from the civil service, and appointed in areas non-contiguous to their place of employ or domicile to avoid a convergence of interests. They serve as the eyes and ears of the Commission, and have now become empowered to check all kinds of election abuses in their localities, no matter how highly placed the candidate may be. The only observers allowed in a Pakistani election are external monitors or Human Rights observers, who naturally have no authority or remit to affect the results in any situation.
The mechanism by which fifty percent of opposition voters are disenfranchised in Pakistan is the mis-use of electoral rolls. These lists of eligible voters is often found to be completely mis-matched to the ones used at the polling booths, with the result that parties and their voters are helpless on polling day when their lists don’t tally with the ones purchased by them earlier from the Election Commission, and all the voters whose names are missing from the rolls inside the polling booths simply cannot vote. The Pakistan EC claims that it has computerized 72 million voters, but the reality is completely different, as stated by the HRCP and EU Election Observers. In India, the electoral rolls are actually revised every year at the beginning of each year, either through a revision or intensive exercise. As it stands the electoral rolls of various states are already on websites and can be changed as requested by the political parties even up to one day before the last day of nominations. The most important confidence-building measure that the Indian EC has undertaken in building its credibility as a public-service institution is the act of providing electoral rolls in hard copy as well as CD form to each registered political party and their candidates free of cost before every election. In Pakistan these lists still have to be purchased from the state. If the government were to model its revisions on the Indian framework, it would go a long way in meeting the requirements of a modern, impartial election commission.
Again, unlike in Pakistan, the Election Commission of India has actually taken steps to curb bogus voting by starting to issue Elector’s Photo ID Cards [EPICs] since August 1993. This eliminates the massive fake ID card issue which plagues ballot boxes in every undocumented economy in the world. Photo identification on electoral roll has the leveling effect of introducing instant transparency into the process. Since in India the state bears the expense of providing its citizens with both the ID card and the EPIC, voter registration is considerably higher than in Pakistan, where the rising ranks of the poor, particularly in remote rural areas, have little or no access to voting unless their candidate registers them.
The third most revolutionary change the Indian EC has introduced successfully is the use of the Electronic Voting Machine [ EVM].This eliminates the ballot box and ballot paper, eliminating one more step in the electoral process where rigging or ballot-stuffing can take place. The failure rate of the machine is one per cent, it is a stand-alone machine operating on cheap batteries and is manufactured in India at the cost of ten thousand rupees, fitted out with an imported burnt chip. The control unit is kept with the presiding officer, while the balloting unit is kept in the polling compartment at the time of the process. Each EVM can record up to 3600 votes at any one time, while the seal on the machine is only broken to count the votes in the presence of all the polling agents and presiding officer after it has been taken away to the district EC. The machine is easy to use even for the most illiterate voter as it carries symbols and names of all candidates to resemble a traditional ballot paper. The exercise initially required staff and voter training, but it is now universally acclaimed across the country as the most efficient and non-contested form of balloting. In 2001, as former CEC Gill explained, when the EVM was challenged by the Tamil Nadu Chief Minister as unreliable, its fate hung in the balance, but was sealed when the last protestor withdrew her objection after winning the elections, because of the EVMs instead of despite them. It has been a singular achievement of the EC that the last General Election in India  was conducted entirely electronically and the EC was able to announce the result for 389 million voters by 2 pm the next day after polling. If the Pakistan EC wants to rid itself of the kind of counting controversies that take place in every election, particularly the recent Tharparkar bye-poll, where there were supposedly an unprecedented 154,000 votes polled in the most arid zone of the country, it may want to consider introducing the same EVMs at home.
Since the location of a polling station is critical to a candidate in terms of where she or he can bus the voters, or find it suddenly moved to an area of low support, several controversies and inequities can arise out of the placement of these stations. In Pakistan for instance, thousands of voters are routinely disenfranchised in scores of constituencies where their polling station is arbitrarily moved, or even made to disappear as was reported from many areas of Sindh in Election 2002. To counter this trend by government parties that seek to interfere in the location and placement of polling stations, the Indian EC decided to become extremely vigilant about any such attempts, since the early 1990s. Now no polling station can be moved once the EC has fixed its location, and if it is at all moved the Commission immediately calls for a re-poll in that area. The current Chief Election Commissioner, T. Krishnamurty disclosed that in order to build in predictability for the candidates as well as voters, most polling stations have not been moved since 1994. Where the EC considers it necessary to add or move stations, or if a candidate complains about the location of a station, then all parties will be consulted at district level in order to either relocate the polling station or to order a re-poll.
Because of its growing prestige, both at home and abroad the UN has actually signed an MOU with the Indian Election Commission to assist in holding elections in Afghanistan and Iraq. Can civil society in Pakistan wake up to its role in pressuring government to start taking itself more seriously? The mainstream political parties too need to start working on a code of conduct that will apply to all stakeholders in an election process. They will need the support of the judiciary in upholding this resolve, and the co-operation of the international community in understanding that little can be gained if the military in Pakistan is not re-assigned its job of guarding the boundaries of the country which need not be as porous to terrorism as is the case. If security agencies continue to run a parallel electoral process in any country, there can be no movement forward for political parties to reinvent themselves, nor for civil society to become more vigilant.