People Versus Power

Irrefutable medical evidence and past experience have established beyond doubt that electoral processes which entail participation of large crowds and close physical contact of millions of people in campaign rallies are Covid super spreaders. The horrific consequences of recent elections during the second wave in which many lives were lost to the virus are before us. Scientific evidence suggests that the ability of virus to infect is not entirely "a property of that virus or its virulence alone" but of "how the virus and human society interact…". Empirical studies have confirmed that 8% of the infected people are responsible for 60-80% of secondary cases of Covid. The highly transmissible Omicron variant is expected to peak in the coming 4-8 weeks, leading to a sharp increase in the spread of disease. According to some reports, the country's current R-naught (RO) value suggests a transmissibility rate of 1.22. Several districts of the country have already reported more than 10% positivity rate. The highest national daily new Covid-19 infections since the abatement of second wave at 27,553 have been reported as on January 3. The Union Health Minister has cautioned that in the 3^rd corona wave, we can expect "3-4 times the surge in covid-19 cases in comparison to their earlier peaks". These are clear pointers to a grave national medical emergency in the offing. In these testing times, difficult choices have to be made.

The necessity of time bound elections, an integral component of political democracy seems clearly to conflict with a higher constitutional imperative of securing the health and life of citizens. This is particularly so because as a matter of practical reality, it is virtually impossible during elections to prevent the spread of virus through effective enforcement of the requisite Covid protocols. Critical choices are never easy but often necessary. It is argued that deferring of elections could cause a set back to the democratic process enabling ruling dispensations to enjoy power beyond their mandated tenure, which is seen as a kind of "coup d'etat" by unpopular Governments. But we also know that elections at various levels were temporarily deferred in 31 countries as on July 2020 on account of Covid. In the case of India, it is argued that postponement of elections is beyond the remit of the Election Commission, which can only be done through a constitutional amendment necessitating the broadest political national consensus that does not exist. This raises the question about constitutional resilience in subserving national goals and responding to an unprecedented situation to validate the promise of a "living Constitution" that must address national concerns in these defining times. The provision of constitutional amendment has been repeatedly used to address urgent national concerns. It should thus be possible to amend the Constitution to add "grave national medical emergency" as a ground for temporary extension of the tenure of State Assemblies by the Parliament or Election Commission. Political morality demands that we learn from experience and shun mistaken choices at the altar of political expediency and ambition.

Recent restrictions in response to the Covid situation including night and weekend curfews in certain states alongside other local restrictions are clearly incompatible with the holding of Assembly elections in the prevailing situation. The utter irrationality of lockdowns on the one hand and permission for electoral activities on the other mocks the intelligence of the people and interrogates the motives of our leaders. The nation is entitled to ask whether, given the exceptional circumstances and grave danger to the health of lakhs of citizens, is it too much to expect the Supreme Court to take suo moto cognizance of the situation. The Court has exercised its "nudge" function in lesser situations in the past to summon the national mood in favor of a temporary deferment of elections. Faced with a choice that entails the health and lives of the people, we cannot truly contend that a mere postponement of elections for a few weeks or months in response to a grave medical emergency is a heavy price to pay for the well being of the people or that it would perilously endanger our democracy.

On the contrary, a flawed electoral exercise would interrogate our credentials as a credible democracy. Electors are expected and indeed entitled to cast their franchise in an atmosphere free from fear of disease and unrestricted by disability. It is inconceivable in the prevailing circumstances that the critical pre-requisites of free and fair elections can be guaranteed by the Government/Election Commission. These include, full and effective opportunities of deliberations, equality of participation, quality of election management, equality of contestation and a necessary environment for enforcement of rules including the necessary medical protocols. With barely a few days left for the electoral process to be set in motion, there is no mechanism to purposively enforce the requisite health protocols.

The challenge for our democratic institutions is to find the right balance between means and ends. While the people have a right to know how the Election Commission and the Supreme Court intend to reconcile the requirement of free and fair elections with the citizens' fundamental right to health and life, the national Government, as custodian of the people's power must tell the nation why it baulks at asserting the prime constitutional value – the right to life.

In these defining moments that demand "a different order of public life and political practice", the timing of the elections can and ought to be subordinated to the centrality of human well-being as the core democratic value. Harold J. Laski in his seminal book 'A Grammar of Politics' has reminded us that "no theory of the state is ever intelligible save in the context of its time". Given the compelling challenge of our times, it is incumbent upon us to harness the national will in aid of the larger constitutional goals, particularly the fundamental right to life. This is especially important in an age defined by a reluctant deference to any established value. Our ability as a nation to navigate the critical tradeoffs inherent in the situation will be a test of political leadership and define the boundaries of a rational democracy.

The author is a former Union Law Minister

Views expressed are personal