How Constitutional Is Maharashtra’s Ballot Paper Proposal?

Maharashtra’s legislative proposal is not to replace the EVMs with ballots, instead to allow the voters to choose.

Former Maharashtra Legislative Assembly Speaker Nana Patole’s statement about a legislative proposal to include ballot paper as an optional voting system during the local body and state Assembly elections has rekindled questions about transparency in EVM elections.

There are two primary concerns regarding the legislative proposal. While the first is related to the constitutionality of the proposal, the second is about the purpose that it serves.

A legislation may have some immediate purpose related to its political contexts. The important question is whether it has the potential to transcend such immediate contexts and serve a larger constitutional purpose.

A Larger Constitutional Purpose

It is the 2013 Supreme Court judgment that defines the larger constitutional purpose which an EVM election law ought to attain. The judgment, which introduces the VVPAT system, states that “...The paper trail is an indispensable requirement of free and fair elections.

The confidence of the voters in the EVMs can be achieved only with the introduction of the paper trail. With intent to have the fullest transparency in the system and to restore the confidence of the voters, it is necessary to set up EVMs with the VVPAT system because vote is nothing but an act of expression, which has immense importance in the democratic system.”

The SC categorically affirms that the central constitutional issue is not  ‘hackability’ of  EVMs, but of  transparency. The issue with EVM elections is not whether the votes are rightly registered in the machine or not, but whether voters will be able to determine and verify that their votes have been rightly registered.

However, the verified VVPAT votes are reduced to a statistical means of auditing the reliability of the EVM and consequently, the VVPAT slips, except for a minuscule set, which are chosen as sample to determine the accuracy of the recording of votes in EVMs, are not counted. This means that the import of the SC judgment that upheld the electors’ right to cast their vote in a transparent verifiable system is lost on us.

It is in this context that the Maharashtra legislative proposal assumes significance.

While asking the Assembly to consider a legislation that gives voters a choice of paper ballot, the Speaker reiterates that the issue is about protecting a fundamental right.

The electors’ right to cast vote in a transparent and verifiable system is part and parcel of the fundamental right to freedom of expression, as voting is the most fundamental political expression.

However, the unprecedented legislative proposal is received with widespread scepticism, citing its unconstitutionality, as under the Article 327, that the Parliament is the constitutionally competent authority to pass acts related to the state assembly elections.

The state’s constitutional authority under Article 243 K (4), to legislate on the matters related to local body election, is indisputable. However, same is not the case with the matters concerning state assembly elections. The Maharashtra government has invoked the Article 328 to argue for the constitutionality of the proposed legislation.

However, as per the Article, states can act on the subject of state election only if there are no Parliament Acts related to that subject. As there are acts Parliament passed acts related to the subject ballot paper and electronic voting machine, it appears that the state cannot unlock the special power stipulated under the Article.

While the Representation of the People Act, 1951, mandates ballot paper as a method of voting, the 1989 Amendment to the Act created a provision for voting machines, too.

The Ingenuity of the Proposed Legislation

As there are Parliament passed acts on the issue of the methods of voting, state governments cannot invoke Article 328 to legislate on the topic. Moreover, state governments are forbidden under the Article 251 to pass a bill that is inconsistent to the law made by the Parliament.

At first glance, the Maharashtra government's proposal to allow the voters to choose  a method of voting that they consider as reliable or transparent cannot take off as it could be inconsistent to the Parliament acts. In addition, apparently, the state lacks the constitutional authority to legislate as there exists a central legislation on the same issue.

Here lies the ingenuity of the proposed legislation. If the Maharashtra government were to introduce a legislation that replaces the EVM-based voting, it would have been outrightly unconstitutional because of the existence of the 1989 Amendment.

However, Maharashtra’s legislative proposal is not to replace the EVMs with ballots. Instead, it is to allow the voters to choose between the EVM and ballot paper.

The re-introduction of the ballot voting system as part of the voter's right to choose, changes everything about the constitutionality of the proposed legislation.

None of the Parliament passed acts ever forbade the use of ballot papers. The 1989 Amendment to the representation act introduces “voting machines” only as an additional option for the casting of votes along with ballots.

So both the EVM and ballot paper voting are constitutionally valid voting systems and the Election Commission can adopt any of them in any of the elections if they choose to do so. The Parliament has allowed the election commission to choose any of the voting methods with the regard to the circumstances, but it never asserts that the right to choose between the methods of voting is the sole discretion of the Election Commission (The 1989 Amendment, Section 61A).

It means, giving the voters the right to choose between the voting methods is consistent with the Parliament acts. Giving voters right to choose may make the election commission’s authority to choose the voting method redundant. However, the choice between the voting methods is not the Election commission’s prerogative; it’s just that the commission is permitted to choose if there is a necessity.

Irrespective of being consistent or not, the major constitutional concern is whether the topic of the state legislative proposal has been addressed by any of the Parliament-passed election laws.

None of the Parliament passed acts has ever addressed the subject of Maharashtra's legislative proposal. However, it appears on the contrary because we are unclear about what is the subject matter of Maharashtra's proposal.

The legislative proposal is not about voting methods as it neither introduces a new method nor eliminates or modifies the existing voting methods. It is about the voters' right to choose between the existing methods of casting the votes. The issue of whether the voters have the right to choose from the constitutionally valid voting methods has never been raised in the political arena, let alone the Parliament acting on it.

Not only that the state’s proposal is constitutional but it is also in accordance with the highest tradition of the Apex court that reaffirms the people’s right for transparent method of voting.

What Is the Proposal Essentially About?

Maharashtra’s proposal is essentially about protecting fundamental rights.

Conventionally acting as checks and balances of other constitutional institutions or of the executive is the role assigned to the High Courts or the Supreme Court, though the Constitution never limits it to the courts.

The Constitution envisages a system where each of the constitutional institutions acts as checks and balances of each other. While the authority to order the other institutions to correct or withdraw their unconstitutional actions is limited to the court, other constitutional institutions like states and Unions can act by using legislative and executive powers to undo the effects of unconstitutional actions of other institutions.

That’s what the Maharashtra’s legislative proposal is all about and it could have a far reaching impact on our conception of checks and balances of our system.

(Philose Koshy is a visiting faculty member at IISER ((Philosophy), Department of Humanities and Social Science, Mohali. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)