Elections in a Pandemic

In the context of the COVID-19 pandemic, the “legal exceptionalism” of election time must be examined to see the constraints that the pandemic places on the Election Commission of India, as well as the “special” responsibilities that it must discharge to ensure that procedural certainties are commensurate with a public health emergency. This article argues that the focus on the pandemic must not take our attention away from the larger concerns around the conduct of the commission and its implications for trust in the institution and electoral integrity.

On 12 March 2020, the director general of the World Health Organization (WHO) announced that COVID-19 was a pandemic calling for a collective “containment strategy” to prepare the healthcare system for alleviating the impact of the virus. The overwhelming need to “protect” the people from the virus, it was hoped, would not be “disruptive”—even when it demanded “behavioural” changes on the part of the people and policy decisions that would challenge all governments. The “pandemic effect” installed a different order of public life and political practice, as states acquired “necessary” powers to put people under various degrees and states of containment, including total and partial lockdowns for extended periods. A nationwide lockdown was announced in India on 25 March 2020 and lifted incrementally from 1 June 2020, while restrictions pertaining to COVID-19-appropriate behaviour continued to be in place.

The pandemic also deferred deliberative processes within the political apparatus of the state and its institutional edifice. While Parliament sessions were truncated, reducing its oversight over the executive, the policing functions of the state increased exponentially. The invocation of emergency powers through the Epidemic Diseases Act, 1897 and the National Disaster Management Act (DMA), 2005, enhanced the powers of the Ministry of Home Affairs (MHA) over both public order and public health. With the devolvement of extraordinary powers, the MHA has become overdeveloped in the governmental apparatus. One component of the political process which has not, however, been deferred is the electoral process. Indeed, while the pandemic put a break on “normal” life and politics, the electoral process continued almost seamlessly. In this article, we bring the conduct of elections under the pandemic to scrutiny by addressing two questions: (i) how far was the Election Commission of India (ECI) able to discharge its “normal” responsibility of conducting elections under Article 324 of the Constitution, and (ii) how “efficiently” was the ECI able to ensure adherence to public health protocols to make the electoral process commensurate with the public health emergency measures. We argue that the “erosion” of the ECI as a constitutional body had set in earlier. The resignation of Election Commissioner Ashok Lavasa in August 2020 was one such moment. Lavasa had dissented against the ECI’s decisions on the violation of the Model Code of Conduct (MCC) by top leaders of the Bharatiya Janata Party (BJP) in the 2019 Lok Sabha elections. Debates over the conduct of the ECI erupted again in the course of the West Bengal assembly elections in March–April 2021. While examining the procedures put in place by the ECI over the past one year for elections held under the pandemic, the article argues that the limited focus on the pandemic must not take attention away from the larger concerns around the conduct of the ECI and its implications for trust in the institution and electoral integrity.