‘Preventive action’ taken by the police during polls is questionable as similar steps are hardly ever taken even in periods of communal violence

Swift, unrelenting and decisive use of force — this seems to be the Election Commission’s weapon for the successful conduct of elections. Most elections in recent times have been peaceful with high voter turnout. The just-concluded Maharashtra Assembly election recorded a high turnout of nearly 64 per cent, while Haryana saw a turnout of 73 per cent. This has taken attention away from the inbuilt use of force that the EC routinely relies upon.

To ensure that elections are free and fair, the EC does not merely deploy Central and State police forces around the polling date; it relies continuously on the police and the rest of the law and order machinery that exists at the district level. From the date of the announcement of elections to their conclusion, the latter, along with the appointed observers — particularly police observers — remain its disciplining agencies.

Taking ‘preventive measures’

The EC regularly instructs police stations in each constituency to initiate “preventive measures” and take action against those who were involved in electoral offences in the past and what is more important, against “habitual offenders” and “anti-social elements.” It asks for “weekly reports” on the progress made in this regard, listing the cases registered, non-bailable warrants (NBWs) obtained and executed, and NBWs still pending.

This year, according to data on the EC website, during the 2014 general election a staggering number of people (2,50,892) were identified as “possible intimidators” and action was taken against 2,18,227 of them. What must weigh even more heavily on our democratic conscience is that 4,28,368 NBWs were executed since the announcement of elections, and 3,02,537 NBWs are still pending. Even though a sizeable number of NBWs were pending when the elections were announced, 3,20,563 NBWs were received after the announcement of elections. The data shows that the number of NBWs executed, particularly when compared to the number still pending, was high in Uttar Pradesh, Jharkhand, Bihar and Maharashtra. By comparison, the number was low in Chhattisgarh, and there were still a number of NBWs pending there. Surprisingly the number of NBWs pending, compared to the rate of those executed, was high in Odisha and Rajasthan. The difference in the rate of executions of NBWs is surely indicative of the influence of contexts and this compels us to think more critically of this exercise of identifying “possible” intimidators and offenders.

It is not known precisely how these offenders are identified; nor is there information about those against whom action is taken. Since there are a significant number of individuals against whom NBWs are still pending, just who is able to avoid the long arm of the law should be known. The nature of action taken against different kinds of offenders is also not currently available to us. But what is clear is that there is a high degree of reliance on force by the EC.

In normal day-to-day functioning, the police and district administration are rarely able to win the trust of the people. Yet, during the period of elections, this very same administrative machinery is taken to be neutral and fair. Looking at the high number of NBWs executed, one wonders how the EC is able to transform this machinery into a high-performing asset. Unless it is believed that there are external interventions that prevent the law and order machinery from working effectively, it needs to be considered whether there is indeed an interest in obtaining and executing NBWs during this time, and rounding up certain persons or groups as possible intimidators.

In the general course of law it is assumed that a person cannot be charged merely on the basis of past behaviour or perception of possible threat. Preventive action is permitted at times (though there are many who question this category itself), but only under extraordinary circumstances — when the territorial integrity of the state in under threat. Yet, during the period of elections, the EC instructs the police to take preventive measures. The question that we need to ask is — is the period of election an extraordinary moment? Should this be treated as a moment of exception when personal liberty can be restricted so readily, particularly when similar actions are hardly ever taken even in periods of communal violence where the lives of citizens are often at stake?

The nature and extent of preventive actions taken seems even starker when the response of the EC on some violations of the Model Code of Conduct, including incidents of hate speech, is considered. In the Lok Sabha election for instance, the EC lifted the ban on Amit Shah on his personal assurance that he will be “more careful about what he says while campaigning” and that he will “keep in mind the remarks of [the] EC.” Our institutions are so frequently guilty of treating economic and political elite differently that we have to be doubly cautious and vigilant when it comes to the actions of institutions that are working well.

Under the microscope

It is because the EC is doing such a good job and is among the few institutions that have the trust of the people and the political parties that its actions have to be placed under the microscope. The EC must be applauded for putting out this law and order-related information to the public. Were it not for this gesture, we would not realise that our discussion on criminality is rather limited.

Invariably the media and the concerned citizens groups focus on candidates and the criminal charges against them. This time around there has been some discussion on the flow of cash, liquor and drugs during the elections, as the EC informed us that they had seized about 300 crore rupees in cash, 16 million litres of liquor and 17,000 kilograms of drugs. We now need to add to that debate the issue of the extensive use of force as a preventive measure during the constitutive democratic moment. If elections rely so heavily on the use of force and preventive action, then governments will continue to find justifications for similar actions, and power and coercion will remain the order of the day.

(Gurpreet Mahajan is Professor, Centre for Political Studies, Jawaharlal Nehru University.)