Daily Current Affairs – 17th March, 2017DEVENDRA VISHWAKARMA
Goa’s conundrum and options
Indian constitution is an ideal document. It doesn’t specify many clear provisions but leaves it to healthy precedents that can develop over time. Governor’s office being an important constitutional office has much discretion. It has been a matter of debate since long time.
The legal challenge of the Congress in the Supreme Court against the BJP’s claim to form the government in Goa brings to fore a vacuum in the Constitution.
- In the case of a hung legislature, is the Governor bound to follow the constitutional convention to call upon the single largest party to form the government and prove its majority in the House?
- Or, as the court endorsed on Wednesday, can a political rival cobble together a post-poll alliance to form a majority that overcomes the single largest party and form the government?
The Manohar Parrikar government came to power on a first-come-first-appointed basis despite the fact that the BJP came second in the Assembly elections.
- The Governor did not consult the single largest party, the Congress, before giving Mr. Parrikar the green signal.
- The SC, in turn, said the Congress did wrong by not staking its claim to form the government.
- It had shown no proof to the Governor that it had the requisite numbers to prove a majority in the House.
The debacle exposes the fact that there are no specific guidelines in the Constitution on who the Governor should invite to form a government in a State where rival parties with narrow majorities engage in a face-off.
Constitutional Conventions and Precedents:
The constitutional convention of inviting the single largest party in the case of a fractured mandate has been outlined by the Sarkaria Commission recommendations, which were affirmed by a Constitution Bench of the SC in Rameshwar Prasad v Union of India in 2005.
- The Commission report specifically dealt with the situation where no single party obtained absolute majority.
- It provided the order of preference the Governor should follow in selecting a Chief Minister in such a fluid situation:
- An alliance of parties that was formed prior to the elections.
- The single largest party staking a claim to form the government with the support of others, including independents.
- A post-electoral coalition of parties, with all the partners in the coalition joining the government.
- A post-electoral alliance of parties, with some of the parties in the alliance forming a government and the remaining parties, including independents, supporting the government from outside.
- It is clear that the leader of the party which has an absolute majority in the Assembly should be called upon by the Governor to form a government.
- However, if there is a fractured mandate, then the Commission recommends an elaborate step-by-step approach and has further emphasised that the Governor should select a leader who, in his/her judgement, is most likely to command a majority in the Assembly.
Sarkaria Commission and the following verdicts of Supreme Court had ample directions to handle cases with special circumstances as such. However each time political play and circumstances give differing orientations. The idea should be to establish a stable and formidable government.
Connecting the dots:
- Critically analyse the misuse of governor’s discretionary powers even though Sarkaria Commission’s recommendations have clear guidelines.
Credibility of EVMs- intact or tampered with?
- In 1977, the Election Commission of India first mooted the idea of introduction of EVMs.
- The reason was to overcome certain problems associated with use of ballot papers and taking advantage of development of technology so that voters cast their votes correctly and removing the possibilities of invalid votes totally.
- In 1988, Representation of the People Act, 1951 was amended and a new section 61A was inserted empowering the Commission to use voting machines. It came into effect in 1989.
- Central Government appointed the Electoral Reforms Committee in January, 1990 consisting of representative of several recognized National and State Parties. A further technical committee was formed to evaluate EVMs.
- The expert committee concluded that EVMs were a secure system and should be brought into use from 1990 itself.
- Since 2000, EVMs have been used in 107 General Elections to State Legislative Assemblies and 3 General Elections to Lok Sabha held in 2004, 2009 & 2014.
EVMs are tamper proof
- A combination of safeguards- Software and technical, administrative, independent technical watchdog oversight, and judicial scrutiny- ensures machines are safe.
- The task of making the machines has been given exclusively to two central public sector undertakings, BEL (Defence PSU) and ECIL (Atomic energy PSUs), which are entrusted with developing high security defence equipment.
- The software used is burnt into a one-time programmable/masked chip, so that it cannot be altered or tampered with.
- The machines are not networked either by wire or by wireless with any other machine or system, thus removing possibility of data corruption by hacking.
- The software development team is separate from the production team.
- Samples of EVMs from production batches are regularly checked by the quality assurance group which is an independent group within BEL and ECIL.
- fool-proof protective custody at all stages — from storing the machines in the strong room (the warehouse) to moving them to the polling stations, through three levels of checks and three mock polls.
- Political party representatives are always present to witness and certify the entire process. Videography of entire process is done to make it proof-worthy.
- A mock poll is also conducted on day of poll in presence of candidates or their authorised agents to demonstrate that the EVM is working properly. Any defective machine is immediately replaced and the poll begins.
- After poll, EVMs are taken under heavy armed escort to the strong room and party agents are encouraged to follow the movement and put their seals on the locks of the strong room and keep 24×7 vigil.
- An independent Technical Advisory Committee of five professors of top IITs is present.
- ECI does not take a single technology decision without their scrutiny and approval.
- The issue of possible tampering of EVM has been raised before various High Courts since 2001.
- It includes- Madras High Court-2001, Delhi High Court-2004, Karnataka High Court- 2004, Kerala High Court-2002 and Bombay High Court (Nagpur Bench)-2004
- All the above High Courts have gone into all aspects of the technological soundness and the administrative measures involved in the use of EVMs at elections in India and held that the EVMs in India are credible, reliable and totally tamperproof.
- The Karnataka High Court went to the extent of commenting that “this (ECI-EVM) invention is undoubtedly a great achievement in the electronic and computer technology and a national pride”.
- Even the SC appreciated the tamper-roof EVMs and pressed on introducing VVPAT.
Comparison with EVMs of other countries
ECI-EVM and EVMs used by foreign countries said to be misplaced and ‘misguided’ by ECI
- Most of the systems used in other countries are Computer based with internet connectivity. Hence, these could be vulnerable to hacking. Whereas ECI-EVM is a fully standalone machine without being part of any network and with no provision for any input.
- The software in the ECI-EVM chip is one time programmable (OTP) and burnt into the chip at the time of manufacture. Nothing can be written on the chip after manufacture. Thus the ECI-EVMs are fundamentally different from the voting machines.
Comparing with countries discarding EVMs
- Germany and the Netherlands banned EVMs for lack of transparency.
- Italy felt e-voting results could be fudged.
- In the US, California and many other states have banned EVMs without a paper trail.
- However, the size of the electorate at all these places is a fraction of the size in India — and the time, energy and expenses of going the same way here are not comparable.
To make it more fool-proof:
- The allegations on ECI-EVMs have time and again been initiated and debated. Every political party has questioned the EVMs at one point or another. When they win, all is well and if not, criticising EVMs is the easiest way out.
- In 2009, ECI in an extraordinary step, invited the sceptics to demonstrate the alleged fallibility of EVMs. The outcome was that none of the persons could demonstrate any tamperability of the ECI-EVM.
- This time the stake holders involved should instead ask the court to seal the machines about which suspicions were raised. These EVMs can be checked in the presence of the political parties and issue can be sorted.
- Increase use of VVPAT which cross checks election results with vote slips.
Voter Verifiable Paper Audit Trail (VVPAT)
- In 2010, ECI in consultation with political parties, considered to explore use of Voter Verifiable Paper Audit Trail (VVPAT) with a view to enhance transparency.
- In VVPAT, a paper slip is generated bearing name and symbol of the candidate along with recording of vote in Control Unit. This paper is then deposited in the ballot box. So, every voter can see whether her vote has been registered correctly.
- In case of any dispute, paper slip could be counted to verify the result being shown on the EVM.
- It was approved by ECI in 2013.
- In June 2014, ECI proposed to implement VVPAT at every polling station in the next General Election to Lok Sabha due in 2019. Even SC has permitted the ECI to implement VVPATs in phase manner with funds sanction from government.
- In Goa elections in 2017, VVPAT was employed in all 40 LACs.