ELIMINATING ALL DOUBTS IN THE ELECTORAL PROCESS

Even if it entails a little delay in the results, a fair poll procedure should be preferred to an opaque process in which the voter isn't fully sure how her vote is counted

- Kapil sibal

HE right to vote is a statutory one. However, in the absence of any disqualification, either under the Constitution or the Representation of the People Act, 1951, a citizen has the right to vote. Under Article 324 of the Constitution, the Election Commission, pursuant to a notification issued by it declaring the schedule for the election, is charged with the responsibility of superintending and controlling the preparation of the electoral rolls and the conduct of elections. It is the sole repository of such power and its exercise.

When interpreting Article 324 of the Constitution, the Supreme Court has held that "free and fair elections" is part of the basic structure of the Constitution. What is 'free' and what is 'fair' is to be decided upon by the Election Commission. Yet, the methodology it adopts in conducting elections is subject to judicial review. In other words, if a procedure is adopted that makes the election suspect, courts can always opine on whether the process adopted was free and fair.

The very foundation of our democratic edifice is based on a free and fair election. While interpreting the word free, the Election Commission must ensure that a voter casts his or her vote free from any undue influence. That is why votes cast pursuant to undue influence as prescribed by the Act of 1951 would subject the candidate to a charge of corrupt practice. Bribing candidates or voters in the course of the election as well as other statutory prohibitions would render the election of the candidate void. The losing candidate can file a petition to that end.