For citizens of India who still care about preserving constitutional democracy, it was a reassuring moment when four senior-most judges of the highest court in the land confided publicly their fear that democracy was “in peril”. Their reference was to the coercive and unlawful attempts to influence the all-important independence of the judicial branch of the state.

It is this principled anguish of the highest court that then encourages the citizen to ask a related question. Is it not the case that the most fundamental premise – indeed, the most significant part of the “basic features” of the Constitution – on which constitutional democracy rests is that there shall be “free and fair” elections to all legislative structures of the state?

Can it be argued that the independence of the judiciary can stand by itself in a situation where such elections come under severe cloud, rendering, potentially, the mandate of the dubiously elected executive branch fraudulent and null?

Further, can it be anybody’s case that the fairness of the electoral process is a concern only for the authorities entrusted with conducting such polls and not for the voter? Or that procedural and other logistical inconveniences take precedence over the constitutional injunction of “free and fair” polls? Or, that speedily rendered poll results override the “fairness” of those results?

Given the proven and publicly demonstrated anguish of the highest court with respect to “democracy in peril”, we may assume that the lordships will share the burden of the interrogatives recorded here.

That being assumed on sound constitutional principles, the citizen is then rather askance at the less than acute consideration that the persistent doubts that have been raised about the capacity of the EVMs to deliver “free and fair” electoral verdicts.

It is no secret anymore that many instances of the suspiciously tainted malfunction of these machines have come to the fore. Most recently, for instance, it was no less a man than an ex-DGP who made public complaint of how the result of his franchise did not match with his electoral choice. In many cases, more ballots have been found within the machine than existed in a particular booth. Many have complained that regardless of what button they pressed, the vote went to the ruling party candidate.

It is to counter these sorts of experiences that the authorities agreed, on persistent persuasion, to introduce the mechanism of the VVPAT. Having introduced that mechanism to validate votes cast, does it not seem strange and wholly without reason that there is such intransigent reluctance on the part of the Election Commission to make full use of the VVPATs to ensure that no voter is left with the least doubt as to the veracity of the constitutional-electoral choice he/she may have made.

And, regrettably, the reluctance of the Supreme Court to acknowledge the issue involved, namely the satisfaction of the “basic feature” of the constitution that there be “free and fair” exercise of voter choice, and most crucially, a fair and faultless computation of the results of that exercise, leaving no one in doubt that the government they have got is the government they voted for.

The court has to date conceded that the paper trail of a maximum of five EVMs per assembly segment may be verified to see if these match the votes cast. May we ask what is the reasoned basis for this arbitrary figure? May we ask what is to be done should any of the five VVPATs show a mismatch? Can it just be assumed that all the rest would be free of trouble? May we ask why so much money has been expended on the VVPATs if they are not to be put to full use? May we ask whether it matters more that the declaration of results not be delayed or that the results that are declared are “fair”? May we ask in what way is a bogus electoral result less heinously fatal to democracy than any attempt to interfere in the independence of the judiciary?

At a time when the matter is again likely to come up for consideration before the court, may we entreat it to take on hand the full and potentially system debilitating aspects of the matter that clearly agitates good citizens across the board? Could it prevent the realm from descending into a good and proper banana republic?

Badri Raina taught at Delhi University.

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