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Election Commission 'virtual extension' of PM Office amidst Apex Court indifference

By MG Devasahayam*

The report of the V-Dem (Varieties of Democracy) Institute at the University of Gothenburg in Sweden for 2023 refers to India as “one of the worst autocratisers in the last 10 years” and places India in the bottom 40-50 per cent of the countries of the world on its Liberal Democracy Index. India was ranked 97, even below Nigeria. India also ranked 108 on the Electoral Democracy Index and 123 on the Egalitarian Component Index.
In 2021, the V-Dem Institute classified India as an ‘electoral autocracy’ while in the same year, Freedom House, the Washington based non-profit, listed India as “partly free.” Meanwhile, in the same year, the Institute for Democracy and Electoral Assistance classified India as a backsliding democracy and a “major decliner” in its ‘Global State of Democracy’ report.
The world has come to regard “election” and “democracy” as synonymous and India’s track record of timely elections has provided legitimacy to its democratic polity and to the politicians who have emerged in positions of power within it. This has also resulted in considerable prestige being bestowed on the Election Commission of India (ECI). The harsh reality, however, is that India’s electoral system and the ECI are basking in past glory. Its present integrity and performance belie such a favourable assessment.
ECI is an autonomous constitutional body. In fact, the Constituent Assembly wanted the electoral process to be independent and affirmed that in the interests of the integrity and freedom of elections to legislative bodies, it was of the utmost importance that the ECI should be free from any kind of interference from the executive of the day. This was the genesis of Article 324 of the Constitution on the basis of which the ECI was set up with the mandate to discharge the onerous responsibility of conducting elections in a free and fair manner.
Of late, the ECI has failed to measure up to its constitutional obligations as independent observers have noted. On 2 July 2019, soon after the general elections held that year, several former senior civil servants belonging to the Constitutional Conduct Group (CCG) and armed forces veterans, academics and journalists, wrote a strongly worded letter to ECI saying:
“The 2019 General Elections appear to have been one of the least free and fair elections that the country has had in the past three decades or so…. In these General Elections an impression has gathered ground that our democratic process is being subverted and undermined by the very constitutional authority empowered to safeguard its sanctity. It was rare in the past for any serious doubts to be raised about the impartiality, integrity and competence of the ECI. Unfortunately, the same cannot be said about the present ECI and the way it has conducted the General Elections-2019.”
It went on to state:
“Our Election Commission used to be the envy of the entire world, including developed countries, for its ability to conduct free and fair elections despite the huge logistical challenges and the hundreds of millions of voters. It is indeed saddening to witness the process of the demise of that. If it continues, it is bound to strike at the very heart of that founding document the people of India proudly gave themselves–the Constitution of India–and the democratic ethos that is the very basis of the Indian Republic…”
The ECI did not even bother to acknowledge this letter. A Citizens Commission on Elections (CCE) set up in March, 2020 headed by Justice Madan B Lokur, a former Supreme Court judge, took up six themes that had a direct bearing on the fairness of India’s elections:
i. Integrity and inclusiveness of the Electoral Rolls to ensure that no voter is left out.
ii. EVM/VVPATs and their compliance with Democracy Principles and End-to-End verifiability.
iii. Criminalization of electoral politics and the role of money power including electoral bonds.
iv. Scheduling and processes of elections and compliance of Model Code of Conduct.
v. Role of media including social media, fake news and their impact on level playing field.
vi. Autonomy of ECI and it’s functioning before, during and after Elections.
The reports were submitted in two Volumes in January and March 2021 respectively (click here and here)
In the nearly 75 years of India’s electoral history, this was for the first time that such critical scrutiny was extended to the process and integrity of Indian elections. On all the mandated themes studied, India’s electoral system and the functioning of ECI emerged in poor light, casting a shadow on the very credibility of electoral democracy in the country.
Yet the ECI continued to maintain that the electoral system is infallible. In reiterating this, it is clearly taking advantage of the ignorance exhibited by the Indian and international media which continue to shower praise on India’s electoral system because of their own failure to analyze it in any depth.
Four years later, on 19 August 2023, the CCG again wrote to the ECI giving specific suggestions:
“We have had written and conducted face to face meetings with the ECI over the past five years. Our communications with the ECI have focused on specific electoral areas calling for remedial action relating to the abuse of money and muscle power, the misuse of print and electronic media, the egregious violations of the Model Code of Conduct by the blatant resort to slanderous and hateful speech, the defects in the process of registration of voters and the opacity as regards the recording and counting of votes during the actual election process…. As former colleagues of yours, we note with regret that you have not deemed it necessary to interact with us to discuss our suggestions.”
Over the years, the infirmities and failures of the country’s electoral system have been highlighted, not just by the CCG and CEE, but by political parties, scholars and independent journalists. Among them were the following:
❖ EVM/VVPAT voting/counting does not comply with the essential ‘Democracy Principles’--that each voter should be able to verify that her vote is cast-as-intended, recorded-as-cast and counted-as-recorded. Though all EVMs are equipped with a VVPAT (Voter-Verifiable Paper Trail) device, they have been reduced to mere ‘bioscopes’ that display to the voter a tiny ‘paper slip’ for seven seconds which then vanishes and is not counted. The conclusion was unmistakable. Because of the absence of end-to-end verifiability, the present EVM/VVPAT system does not serve to make the casting of the vote verifiable and is therefore unfit for democratic elections.
❖ Article 324(1) of the Constitution of India vests with the ECI “the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President”. Under the earlier Paper Ballot system, the ECI had ‘control’ over the entire conduct of election, but under the EVM system this oversight has been completely eroded. Therefore, elections conducted under the present EVM system could also be deemed unconstitutional.
❖ There have been several arbitrary deletions and erasure of names in the Electoral Rolls of voters, especially of those belonging to minority communities and disadvantaged groups. This calls into question the integrity of the electoral rolls based on which elections are conducted. Controversies over arbitrary deletions and additions to the electoral rolls continue to surface in media reports and by word of mouth.
❖ The ECI has actively facilitated the passage of Election Laws (Amendment) Bill which seeks to link voter ID with the Aadhaar card. This measure will almost certainly open electoral rolls to manipulation by vested interests, including ruling parties. Although framed as a ‘voluntary’ move, reports have surfaced of ECI officials coercing voters to undertake such linkage. Simultaneously, there has been large scale ‘deactivisation’ of Aadhaar cards leading to the apprehension that the disenfranchisement of genuine voters and inclusion of bogus voters could also be taking place.
If world’s most populous democracy is allowed to become worst autocratiser, what would be its global impact on democratic values?
❖ Electoral funding in the country constitutes the integrity of democracy in multiple ways. The Electoral Bonds Scheme, introduced by the present government in 2017, turned out to be a big scandal since it was believed to have facilitated special interest groups, corporate lobbyists and foreign entities to acquire a stake in the electoral process to the benefit of the ruling party. This scheme has been recently struck down by the Supreme Court as unconstitutional. Controversies also rage over the manner raids are conducted by the government’s security agencies on those seen as inimical to the government and ruling party. This has also become a form of extortion that could enable the ruling party to amass funds for its electoral purposes.
❖ Serious breaches in the implementation of Model Code of Conduct (MCC) and Media Code of Ethics have had several negative impacts, including contributing to communal and divisive actions that distort and vitiate the voting process. The implementation of the MCC has inevitably been slanted in favour of the ruling party and the prime minister. Mainstream media – both print and electronic – have become propaganda vehicles for the ruling party and their reportage and commentary are slanted heavily in favour of the ruling party. Pro-establishment social media, particularly the ruling party’s Information Technology cell, have been mobilized to purvey disinformation on a mass scale.
❖ The ruling party has been mobilizing Enforcement Agencies like the Central Bureau of Investigation, Enforcement Directorate and Income Tax Department to intimidate civil society activists, human rights defenders and the political opposition. In a recent instance, the bank accounts of the Indian National Congress, the principal opposition party, was frozen by the Income Tax Department, which threw its affairs into chaos.

Conclusion

Over 9,000 voters have submitted signed a Memorandum to ECI to remedy the serious ills of EVMs, Electoral Rolls and Electoral funding. On electronic voting the demand is specific: “EVM/VVPAT voting does not comply with the essential ‘Democracy Principles’ -- that each voter should be able to verify that her vote is cast-as-intended, recorded-as-cast and counted-as-recorded. Although the ECI has arranged for all EVMs to be equipped with a VVPAT-device, the “Voter-Verifiable Paper Trail” has been reduced to the level of a ‘bioscope’ which shows up as a tiny ‘paper slip’ for seven seconds and then vanishes. It is not counted.
The VVPAT system should therefore be re-calibrated to be fully voter-verifiable. A voter should be able to get the VVPAT slip in her hand and cast it in a chip-free ballot box for the vote to be valid. These VVPAT slips should also be fully counted for all constituencies before the results are declared. For this purpose, VVPAT slips should be larger in size and must be printed in such a manner that they can be preserved for a minimum of five years.”
The INDIA bloc of opposition parties, at its meeting on 18 December, 2023, adopted a resolution on similar lines: 
“INDIA parties reiterate that there are many doubts on the integrity of the functioning of the EVMs. These have been raised by many experts and professionals as well. There is widespread demand for a return to the ballot paper system… INDIA parties would be ‘happy’ if there was a return to voting through ballot paper… If ECI has any reservations, it is possible and desirable to have a hybrid ballot paper-EVM system for the 2024 Lok Sabha elections… It suggested that instead of the VVPAT slip falling in the box, it should be handed over to the voter who shall then place it in a separate ballot box after having verified his or her choice. 100% counting of VVPAT slips should then be done.” 
The concern is that the ECI refusal to engage with the issue goes as far as refusal to acknowledge letters, complaints, representations, memorandums and even statutory applications and appeals under the Right to Information Act. This leads to the growing surmise that the ECI is becoming increasingly subservient to the government of the day and is losing its independence and autonomy. 
The passage of the Chief Election Commissioner and other Election Commissioners Appointment Act, 2023, has only provided further evidence of this trajectory. Instead of ensuring its neutrality and independence in order to hold free and fair elections, the ECI is being made more beholden to Executive than to the people of India. This law could have the effect of making the ECI a virtual extension of Prime Minister’s Office. 
Another disturbing aspect is that the Supreme Court of India appears to be indifferent to the cause of free and fair elections. Although it has belatedly struck down the Electoral Bond scheme after allowing the ruling establishment to amass over six years huge funds through this unconstitutional means, it has so far failed to scrutinize two aspects that are even more crucial to the conduct of free and fair elections: EVM voting/counting and Electoral Rolls. On the latter the court provided a weak ruling that served no purpose; on the former it has consistently refused to hear the matter and give a verdict despite comprehensively drafted writ petitions and repeated pleadings. 
There is clear and present danger to India’s Electoral Democracy which is already in deep turmoil, leading to public protests as people all over India take to the streets to demand free and fair elections and a return to paper ballots. The INDIA bloc of opposition parties has also joined the protests which are being suppressed by the government and blacked-out by the media although many on social media, including independent broadcasters on YouTube, have taken up the cause. These developments taken together indicate that elections in this country are increasingly coming under public scrutiny with grave doubts being openly expressed over their credibility. 
Today, General Election 2024 is upon us, the notification for which likely to be issued in the coming weeks. The Prime Minister of the country, facing 10 years of intense anti-incumbency, has proclaimed both within and outside Parliament that his party will win a two-thirds majority in a House of 543 seats – a claim that in itself casts aspersion on the integrity of the electoral process. 
The question before us is this: if the world’s largest and most populous democracy is allowed to become the “worst autocratiser”, what would be the impact on democratic values, both within India and the world? That is the billion-voter question that must be asked and answered here and now. 
--- 
*Coordinator, Citizens Commission on Elections

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