On November 17, 2022, while hearing a petition for the setting up of an Independent Body to choose Election Commissioners, Justice K.M. Joseph of the Supreme Court made a significant observation:
“The Election Commission of India (ECI) is perhaps the envy of the world. Perhaps one institution which has come in for a lot of compliments, largely due to the reforms of T.N. Seshan. He had succeeded in putting in place a lot of rules to reduce human discretion to the minimum. By doing this, he eliminated fear. That is, the Election Commissioners just had to follow the rules and did not have to bother about coming under pressure from any political party.”
The judge also remarked that while an election commissioner may be proficient, competent, completely honest and armed with an outstanding record of service, they may also have personal political leanings which show themselves while in office – not very complimentary to the present set of Election Commissioners!
Seshan did not put in place any rules because rule-making or -changing would require government approval. Instead, he had resorted to the innovation of issuing instructions and directions, (which later became ‘Rules’) taking advantage of his plenipotentiary powers further fortified by the far-reaching Supreme Court judgment in Mohinder Singh Gill versus Chief Election Commissioner (1978. 2 SCR-272):
“When Parliament or any State Legislature made valid law relating to, or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions, but where such law is silent, Article 324 (of the Constitution) is a reservoir of power to act for the avowed purpose of not divorced from, pushing forward a free and fair election with expedition…”
Through this route. Seshan introduced ID cards, deputed Observers for elections and brought them under the control of the ECI, and adopted new counting methodology by mixing votes. And he effectively implemented all these by adopting tough posture with the governments and recalcitrant officials.
He even countermanded elections in five constituencies in Bihar and Uttar Pradesh citing mass rigging. This sent shivers down the spines of political parties and candidates who had violated the principles of ethical voting while contesting elections. In some cases, he even threatened cancellation of elections if ethical principles were not adhered to. In short, Seshan put the ‘fear of man’ in the minds of those who did not have the fear of God.
But Seshan’s is a three-decade-old story which took place from December 12, 1990 to December 11, 1996. Since then, much water has flown down all rivers and canals. Today is a total far cry from that time, and a very different ball game.
Take the example of one-instance counting of votes before declaring election results – the most critical aspect of the electoral process. With the introduction of Voter Verifiable Paper Trail (VVPAT) in all Electronic Voting Machines (EVMs), there are now two votes – one recorded in the EVM memory and one printed by the VVPAT.
Rule 56D(4)(b) of the Conduct of Election (Amendment) Rules, 2013 says that in the event of a dispute, it is the VVPAT slip which will be considered as the real vote under Section 61A of the Representation of the People Act, 1951 and not the electronic memory in the EVM. Despite this Rule, the ECI is consistently refusing to count VVPAT slips and keep on counting only the EVM memory, which is not the real vote.
What is distressing and intriguing is that ECI has been defending its indefensible action by filing a false affidavit in the Supreme Court. This is the extent of decay that has set in.
This brazenness prompted 64 former senior civil servants belonging to the Constitutional Conduct Group (CCG) and 83 armed forces veterans, academics and journalists to write a strongly-worded letter to the ECI on July 2, 2019. The letter read:
“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 the past, despite the efforts of criminal elements, musclemen, and unscrupulous politicians, the persons who graced the ECI did their best to ensure that elections were conducted as freely and fairly as possible. In these General Elections, however, 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 of 2019. So blatant have been the acts of omission and commission by the ECI that even former Elections Commissioners and CECs have been compelled, albeit reluctantly, to question the decisions of their successors in office.”
It is worthwhile to note that most of the civil servants who signed this letter had, during their service, conducted, supervised, monitored and observed elections to Parliament and state legislatures. Pointing out that viewed in totality, the mandate of 2019 has been thrown into serious doubt, the letter ends with a poignant and disturbing note:
“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…”
ECI did not even acknowledge this letter, let alone respond to the critical issues raised.
This deliberate inaction of the ECI led to the formation of a Citizens Commission on Elections (CCE) in March 2020 jointly by the CCG and People-First, which came out with reports in two Volumes (2021). Chairman of the CCE, former Supreme Court Justice Madan B. Lokur and vice-chairman Wajahat Habibullah, former Chief Information Commissioner along with eminent judges, technocrats, academicians and journalists were part of the Commission.
The Commission took up six themes that have direct bearing on the integrity and fairness of election and examined them in great detail through research and depositions from experts and domain specialists. The themes are:
- Integrity and inclusiveness of the Electoral Rolls to ensure that no voter is left out.
- Electronic Voting/Counting [EVM/VVPATs] and their compliance with Democracy Principles and standards of End-to-End verifiability.
- Criminalisation of electoral politics and the role of money power, including electoral bonds, in seriously compromising integrity of elections.
- Scheduling and processes of elections and compliance of Model Code of Conduct.
- Role of media including social media, fake news and how they adversely influence level playing field.
- Autonomy of ECI and its functioning before, during and after Elections.
On all these, India’s electoral system and the functioning of ECI were shown in poor light, thereby seriously questioning the very credibility of India’s electoral democracy. Yet the ECI, like the proverbial ostrich, has its head deep inside heaps of sand, touting India’s election system as infallible and the “eighth wonder of the world”.
Former CEC S.Y. Quraishi is an ardent disciple of Seshan and had done some good work during his time. Writing in 2013, he identified seven pillars on which the edifice of the ECI is solidly built:
- The Constitution of India;
- Acts and rules made thereunder;
- Judicial support;
- The Model Code of Conduct (MCC) formulated by political parties;
- The bureaucracy that conducts the mammoth exercise;
- The media that acts as the eyes and ears of the EC; and
- The trust of the people of India.
Among all these, the Constitution [Article 324] is the strongest pillar because it gives the ECI control of elections to Parliament and state legislatures. But due to its mad pursuit of machine voting/counting and the linkage of Aadhar Cards with Voter IDs, the ECI is fast losing this control which could pass on to tech companies manufacturing the machines and the UIDAI, which owns Aadhar.
Some pillars like the judiciary and media are propping up the ECI largely because of its past glory and not its present performance. And though the people of India may be going through the motions of voting due to pecuniary and other considerations, their trust in the ECI is receding fast and no amount of ‘past glory’ can sustain this most vital pillar.
It is time ECI realised that “We, the People” have given our mandate of conducting free and fair elections to this constitutional body and for this purpose, bestowed it with prestige as well as plenipotentiary and legal powers. It is incumbent on this exalted institution to deliver the mandate instead of standing on the cleft stick of ‘past glory’.
M.G. Devasahayam is a former Army and IAS officer and coordinator of Citizen’s Commission on Elections.