On May 17, 2021, the Association for Democratic Reforms (ADR) in public interest had filed a writ petition under Article 32 of the Constitution challenging the constitutional validity of the mode of appointment of the chief election commissioner and election commissioners by the Government of India.

It was held that this procedure of appointment of CEC and ECs by the executive without any consultation or concurrence of other entities was violative of Article 14 (equality before law) and Article 324(2) which mandates Parliament to make a just, fair and reasonable law for appointment of members of the Election Commission of India (ECI)

A Big Electoral Reform

This was on the lines of the recommendations of the Law Commission’s 255th Report of March 2015, the Second Administrative Reforms Commission in its fourth Report of January 2007, the Dinesh Goswami Committee Report of May 1990, and Justice Tarkunde Committee Report of 1975.

The landmark judgment of March 2 by a five-member Constitution bench of Supreme Court has ruled that the selection of members of the ECI would be done by a Committee comprising the Prime Minister, the Leader of Opposition or in his/her absence, leader of the largest opposition party in the Parliament, and the Chief Justice of India. This system will be in vogue till the Parliament makes a law in this regard.

Why this change in the selection procedure was necessary is borne out by the way certain decisions were taken by the ECI over the last few years and the manner in which members were appointed by the Government. Successive Governments since the 1950s have failed to enact a law and the appointment of the CEC and ECs was done solely by the Executive. This was incompatible with Article 324(2) and hence arbitrary. Recommendations of various committees as mentioned above were studiously ignored by all Governments.

Perception Matters

Democracy is a facet of the basic structure of the Constitution and in order to ensure free and fair elections and to maintain healthy democracy in our country, the ECI should be insulated from political and or Executive interference. The ECI is not only responsible for conducting free and fair elections but it also renders a quasi-judicial function when disputes arise between various political parties including the ruling party in government and other parties.

Hence the perception amongst the voters, political parties and others about the Election commission must be that it is non-partisan, impartial, independent, insulated from interference by the Executive, and is a fair constitutional body. This perception had unfortunately taken a beating over the last few years.

In March 2021, the Citizens Committee on Elections (CCE) chaired by retired SC judge Madan Lokur examined the 2019 general elections and gave the following observations:

1. ECI deliberately delayed the announcement of elections to enable the inauguration blitz of a slew of projects (157) scheduled between February 8 and March 9.
2. It was the longest election in the country’s history.
3. There was lack of consistency by the ECI in enforcing the Model Code of Conduct and a perception of ECI treating the ruling party with kid gloves thus disturbing the level playing field.
4. The Election Commissioner who dissented and stood his ground was eased out from the ECI.
5. Another disturbing phenomena was the abuse/ misuse of armed forces for election propaganda. This caused anger among the veterans and they wrote to the President but received no response.

When Executive Discretion Ends

The SC judgment will satisfy the ECI too as over the last many years various CECs have been demanding security of tenure. As per the Constitution, the tenure should be 6 years and retirement at 65 years. However if we examine the tenure duration of last few CECs since Dr Nasim Zaidi, the tenures have been: Zaidi 4 years 10 months, Joti 2 years 8 months, Rawat 3 years 3 months, Arora 3 years 7 months, and Sushil Chandra 3 years 3 months. For security of tenure now the same rules are applicable for the Election Commissioners as for the CEC.

The SC also questioned the Government about the lightning speed at which Arun Goel was appointed EC after he sought voluntary retirement, which was accepted, file cleared and he was appointed EC, all in 24 hours. All this happened while the Supreme Court was hearing the case and since the retirement of Sushil Chandra in May 2022, one post of EC had been lying vacant for 5-6 months.

Though criticism of the ECI by political parties may still continue, they will lose their moral authority as they too will have a say in the appointment of the ECs in future. Whether the new selection procedure will improve the functioning of the ECI remains to be seen as ultimately it depends on the integrity of the person occupying the chair. However it is hoped that with the new process of appointment coming into force, the perception about the ECI will change for the better.

The article was originally published on “MoneyControl.com“.

This article is written by Maj Gen Anil Verma (Retd), Head of ADR.

The article was originally published in The Hindu.

The group’s feeling is that “the right to vote is being taken away from the citizen and given to the EVM machine.” Following the 2019Parliamentary election, several CSOs highlighted discrepancies in 347 seats between the number of votes cast and the number of votes counted, raising concerns that millions of votes were missed or miscounted. In six seats, the discrepancy in votes was higher than the winning margin. But no clarification was received from the ECI, and the matter is now pending in the Supreme Court in a PIL. Hence, the public demand to “count every vote and make every vote count.”

With the introduction of the Voter Verifiable Paper Audit Trail (VVPAT) in all 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 case of a dispute, the VVPAT slip will be the real vote as per Section 61A of the Representation of People Act, 1951, and not the electronic memory in the EVM. Despite this rule, critics point out that ECI has been refusing to count 100% of VVPAT slips and keeps on counting only the EVM memory, which is not the real vote. They allege that ECI is defending its action and has filed a false affidavit in the Supreme Court.

The group recognises that purely EVM-based voting and counting does not comply with ‘Democracy Principles’ which require that each voter be able to verify that his or her vote is “cast as intended, recorded as cast, and counted as recorded.” A panel of national and international experts testified before the Citizens Commission on Elections (CCE), which is chaired by former Supreme Court Justice Madan B Lokur. Experts sought clarification on seventeen critical points on EVM voting and counting. Still, there has been no acknowledgement, let alone any response, from the ECI.

The group is therefore making the following recommendations: EVMs cannot be assumed to be tamper-proof. A voter should be able to approve a VVPAT printout before the vote is finally cast. The security of the VVPAT slips and the EVM machines after polling and before counting and auditing must be ensured in a verifiable manner. The audit should be based on manual counting of all the VVPAT slips to improve voter confidence.

Money Power
The problem of free and fair elections would not be solved merely by counting the VVPATs instead of the EVMs. The group feels that the “fast-rising economic oligarchy in the country, threatening India as a welfare state, is the direct fallout of this extreme criminal and money power in elections, which is the fountainhead of all corruption in the country.” It compromises the integrity of democracy in multiple ways: it creates barriers for ordinary citizens to enter politics; excludes honest candidates and parties; leads to corruption and big money controlling the policy-making power of the state, leading to “wasteful, inefficient, and anti-democratic directions and exacerbation of polarisation.”

The government, using the Money Bill route to bypass Rajya Sabha, introduced electoral bonds, which have increased the opaqueness of elections and the role of big money in electoral politics. Corporate loans are being wiped off in return for corporate funding of the party in power. As is evident in the happenings in several states, money is being used to alter the electoral mandate given by people by engineering resignations and defections of MLAs. As a result, the group demands that the Electoral Bonds Scheme be terminated in its current form immediately. Details of donations to political parties, including amounts and names of donors, should be in the public domain.

Media Misuse
The group accuses ECI of not taking action on the many media violations in the past elections, despite several guidelines and codes. ECI failed to curb fake news online; procrastination, silence, and inaction characterised ECI’s responses, even to serious violations of the Model Code of Conduct and media code.
The aim of the group’s campaign is to involve civil society groups in Karnataka before the elections to create voter awareness on the dangers being faced by the nation’s democracy through the 3Ms of machine, money, and media; check the accuracy of electoral rolls; prepare citizens’ manifestos that make the above demands on political parties; enhance people’s ability to vote in an informed way by disseminating information about candidates’ backgrounds; understand the ways in which social and other media are creating polarisation through hate-filled texts, posts, and tweets; and demand that the ECI take swift and exemplary action against offenders; such efforts will be the only way to ensure free and fair elections and stem the steep anti-democratic slide the country is currently undergoing.
(The writer of this article, Kathyayini Chamaraj, is the State Coordinator of Karnataka Election Watch (ADR) and an Executive Trustee of CIVIC-Bangalore.)

This article was originally published in Deccan Herald.

On Thursday, the Supreme Court reserved its judgement on a batch of petitions challenging the appointment process of election commissioners, the officers who comprise the Election Commission – the body responsible for conducting national and state elections.

Scroll.in spoke to Jagdeep Chhokar, co-founder of the non-governmental organisation Association for Democratic Reforms and one of the petitioners in the case, about why he filed the petition and what he hopes to achieve.

Edited excerpts from the interview below.

What are the problems in how the election commissioners are appointed today? Does the process have any checks and balances?

According to Article 324(2) of the Constitution, they are appointed by the president subject to any law made by the parliament in this regard.

Then there are other articles in the Constitution that say that the president will work under the advice and guidance of the cabinet. So effectively, what it means is that the cabinet appoints the election commissioners.

And there are no checks and balances. The prime minister sends a recommendation to the president on behalf of the cabinet, and then the president appoints. The Union government has the entire discretion.

The other issue is that when the chief election commissioner’s term gets over, there is always a mystery about who will be made the chief election commissioner.

In general, so far, it has always by and large happened that the senior of the two election commissioners gets appointed as the chief election commissioner. But there is always this speculation about who will be made the chief election commissioner.

The other problem is that while the chief election commissioner cannot be removed from his position unless there is a process of impeachment like that of a Supreme Court judge, the other two election commissioners can be removed from their positions merely on the recommendation of the chief election commissioner.

So that is another problem. Because if the two election commissioners have this thing in their mind that the chief election commissioner can recommend my removal, then perhaps they would find it difficult to take a position against the chief election commissioner.

What’s the relief that you want from the court in this particular case?

In this case, we want that the selection of the election commissioner should be done by a collegium consisting of the prime minister, the leader of the Opposition and the chief justice of India.

The second is that election commissioners should be given the same constitutional protection as the chief election commissioner.

And the third is that it should be laid down, specifically, that the senior-most election commissioner will become the chief election commissioner.

These are the things that we have proposed. There would be many more that we will learn over time.

Have there been any controversies in the past regarding the appointment of election commissioners?

There is a checkered history [regarding election commissioners]. Earlier, the election commission used to be a single-member commission. There used to be only one chief election commissioner. Then somewhere down the line, during the time TN Seshan was the chief election commissioner, he was doing a lot of things that the government did not approve of. So to put a check on his power, so to say, the government [in 1989], through the President, created the post of two more election commissioners.

Now the Election Commission was a three-member commission and the decision will be made by the majority, hoping that these two will check the powers [of the third commissioner].

Then, about three or four years ago, there was one election commissioner who dissented from a decision by the other two. And this happened on some issues which had something to do with allegations of violation of the Model Code of Conduct by the prime minister and the home minister.

So then there were reports that this particular election commissioner, his past was being searched with a fine toothcomb. And there were apparently some kind of raids or intimidation of his wife and his son and so on. So this went on for a while, and then it was reported that this gentleman has been appointed as a vice president in a multilateral body. So he resigned from the election commissionership.

Usually, who are the people who are appointed election commissioners?

All retired bureaucrats, by and large, Indian Administrative Service officers. There are very few exceptions, but they are all also bureaucrats from other central services.

Are there any appointments that raise a suspicion about them being close to the Union government?

A lot of them. I would not like to name anyone. But this is all circumstantial evidence. There could be people from a particular state cadre, who might have a preponderance [towards the government]. And then somebody who has worked with some senior-level politician in the past very closely.

These kinds of things often happen.

One of the reasons why these things are brought up is because how these appointments are made is not known to anybody. So out of the blue, you have an announcement that so and so has been made election commissioner.

For example, this appointment that was made a few days ago – the post had been vacant for something like six months. And the hearing in the court started and an application was filed that there is a vacancy that should not be filled until the case is decided.

And the very next day, a serving Indian Administrative Service officer who was the secretary to the government of India took voluntary retirement from service. He was given voluntary retirement, and the next day he was appointed as an election commissioner.

It could be a sheer coincidence, but when things happen, sometimes it defies that it is a coincidence. So that creates doubts. Actually, a lot of it is a lack of transparency.

If there was a process of selecting election commissioners that was transparent, such doubts will not be raised.

What instances have been there recently where there have been allegations of the election commission acting in a way that distorts free elections?

So there are mysterious things that happen and when not reasonable explanations are coming forth, then one wonders what is going on. Electronic voting machines are found in strange places. There are constituencies where a large number of voters are not found on their voters’ list.

Some people do insinuate that people of particular categories are found to be missing from the electoral rolls. The Election Commission has to answer for it.

Then, there are violations of the Model Code of Conduct. Somebody makes a speech that can be considered to be seeking votes on religious grounds. And that is ignored. Whereas another member of another party says something similar in a slightly different context and that person is given a notice.

So similar kinds of infractions by people of different parties being treated seemingly differently.

Take, for example, on November 7, the Finance Ministry issued a notification that in a year when there is an Assembly election, an additional window of 15 days for the sale of electoral bonds will be available.

But elections are still happening in Himachal Pradesh and Gujarat, and the Model Code of Conduct is in force. And the Model Code of Conduct says that the government cannot introduce any new policy which may have a bearing on the result of the election without taking permission from the Election Commission of India.

So this announcement is a violation of the Model Code of Conduct. And people have written to the Election Commission and there has been no response.

There is also the thing about the announcement of dates. For example, even this time, for Gujarat and Himachal Pradesh elections, the dates when the result will be declared were announced. And dates of polling for Himachal Pradesh were announced, but the dates of polling for Gujarat were not announced.

So some people have felt that this is not the right thing to do and perhaps leeway was being given to a particular political party to do some announcements before the dates of polling are announced. So these kinds of things keep happening, and they create misgivings about the impartial role that the Election Commission should be playing.

Sometimes in a small state, elections are held in seven phases and [other times], in a similar sized state, it is held in one phase. There are rumors that this is being done so that particular people can campaign in every phase, and so on.

A similar process exists for the appointment of the Central Bureau of Investigation director. But still, there have been allegations of unfairness about these appointments also. So will this panel help with bringing fairness to the appointment of election commissioners or will it only be slightly better than the current position?

It will be significantly better. If you recall, in the appointment of the CBI director a year ago, the then chief justice did not agree with what was being proposed and then names were changed.

See, the process is finally managed by three or four people. But if each of them is true to their jobs, then they will do what they think is the best for the country as a whole.

And then if one of them finds that the other two are in collusion, then it would be that person’s responsibility to bring it out in the public domain.

Allegations also exist for state election commissions. For instance, like in West Bengal, there were allegations that the Panchayat polls were influenced in favor of the state’s ruling party. What do you think about the reforms in state election commissions?

State election commissions are a totally different ballgame.

Because there is only one state election commissioner in most places, and the appointment is done by the governor at the recommendation of the state government. And in most places, these are retired officers who are not direct recruits to the Indian Administrative Service but who have been departmentally promoted to the Indian Administrative Services.

So they are sort of supposed to be more malleable than the direct entry Indian Administrative Service officers. And are perhaps amenable to greater pressure than the central Election Commission.

So that is a very different activity. Our petition does not cover the state Election Commissions.

The article was originally published on Scroll.in.

Promises fly thick and fast during election time. Political parties seek to outdo one another in getting the attention of voters. In the heat of the moment, mostly anything goes and voters are none the wiser about how some of those promises will be fulfilled — for instance, where will the money come for that scheme or subsidy.

Can this runaway situation be reined in? Is it possible to make parties and political leaders more accountable even as election promises are being drummed up rather than later when they have failed to deliver on fanciful ideas? Does an answer to the pernicious culture of freebies lie in stricter rules at election time?

The Election Commission of India has proposed that parties spell out their promises in a form that will go along with their manifestoes. The financial implications of every promise, the commission contends, will then be known so that there is a level playing field during elections. No one will be able to promise the moon and get away with it, as often happens now.

The idea was floated by the commission on October 4 in a letter to parties and laid open to discussion, but it has met with protests that the commission is exceeding its mandate, which is to hold free and fair elections, and instead getting into how governments run.

If the commission’s proposal goes through, parties would have to spell out before an election what a promise is going to cost and how this expense will be met. They will have to state whether it will be through rationalizing expenditure, non-tax revenue, additional taxes or loans. To this end, the commission has further suggested that chief secretaries of states provide the budget estimate (BE) and revised estimate (RE) to show what funds are available.

Knowledgeable and impartial activists who have for long been demanding transparency in the running of political parties are baffled by the commission’s proposal. They don’t think it can be seriously implemented. In fact, they fear that such rules will curtail democracy rather than enrich it.

Jagdeep Chhokar of the Association for Democratic Reforms (ADR), which has been campaigning for cleaner elections and accountable parties, says: “I see this with scepticism. Many things in the commission’s letter are less than clear. The entire scheme aseems to be unimplementable and an exercise in showing a lot is being done. My apprehension is that on the ground nothing may happen.”

Chhokar points out the commission had earlier shied away from taking up the issue of freebies, saying it would be an “overreach of powers.” It told the Supreme Court on March 2 that the giving of freebies was a matter of policy, to be decided by the party concerned, and that it was for voters to judge whether the freebies were economically viable or not.

Chhokar quotes the commission as saying in court: “… offering any mass distribution of freebies either before or after the election” was a “policy decision of the party concerned and whether such policies are financially liable or it has an adverse effect on the economic health of the state, is a question that has to be considered and decided by the voters of the state.”

The commission said it could not regulate “such policies” which “may be taken by the winning party when they form the government. Such an action without enabling provisions in the law will be an overreach of powers.”

Chhokar wonders what has changed between March and October for the commission to now say that it “cannot overlook the undesirable impact of some of the promises/offers on the conduct of free and fair elections in maintaining a level playing field for all parties and candidates.”

Chhokar argues the electoral bonds would be a better issue for the commission to take up if what it is concerned about is providing a level playing field. At present, parties don’t need to disclose from whom they have received political donations by way of bonds, it is only the amounts that are known. The matter is in court.

“Now, the promises made by political parties in their manifestoes are of great concern, but, according to the Election Commission, something like electoral bonds does not distort the political field at all. There are many other specifics in this letter I can point to. But, let me add, between March 2 and October 4 there was a significant event. On July 16, the prime minister talked about what is called the ‘revdi culture’ of the country. I don’t know if there is any correlation in these three days,” elaborates Chhokar.

“But for the Election Commission to change its view from March 2 to October 4 without giving any justification for this change is surprising, to say the least, and trying to provide a level playing field only on the basis of what has been said in election manifestoes and not something as glaring as the electoral bonds raises weighty issues. Weighty is the Supreme Court’s word, not mine,” he says.

The issue of unsustainable freebies underlines the much larger question of distinguishing between party and government. The responsibility for executive actions devolves on the government, which when it comes into office has wide responsibilities to those who voted for it or didn’t.

“So, the government that is formed as a result of the elections, is not the party which contested the election and this distinction has got blurred very, very badly. Everyone seems to assume the government is the party and the party is the government. There should be a difference between party and government,” explains Chhokar.

Promises also aren’t only made in manifestoes, Chhokar points out. They are made in speeches during election time and before election time. He refers to a judgment mentioned in the Election Commission’s October 4 letter — S. SubramaniamBalaji versus the state of Tamil Nadu and others on July 5, 2013. In this, the Supreme Court says, strictly speaking, the Election Commission will not have the authority to regulate any act which is done before the announcement of the date of elections.

“This is a fundamental mistake we seem to make — that elections happen only from the date of the announcement of the election till the date of counting of votes. Election is not a process confined to those two to three weeks. Election is a process that goes on 24/7 around the year,” says Chhokar.

“Aren’t the advertisements one sees in national newspapers by governments in one state or the other in the country related to elections?” he asks. “Elections may be two years away but every action that a political party takes has an impact on the election. To assume that the Election Commission should act only after the announcement of the date, is a fallacy.”

Chhokar says holding of political parties accountable is long overdue. But it can’t be restricted to the promises they make at election time. Political parties should be made accountable under the law, which they aren’t at present.

“I have specific instances where so-called leading political parties have got together to amend the law so that the prosecution of parties is avoided. They have come on record saying otherwise there would have been no choice but to prosecute parties. Why shouldn’t political parties be prosecuted if they violate the law? So political parties must be held accountable for all their actions,” he says.

Chhokar’s big fear is that there is an attempt to reduce the electoral exercise to a mechanical process. He worries about talk of reducing the expenditure on elections. So also the Election Commission’s suggestion of BE and RE figures within which promises can be made. “What we are being told is that within this limited area you can do whatever you like and then there will be elections. That is not how a representative democracy works. People choose their representatives and political parties have to represent them,” he says. “Somebody has found it very useful to use this term ‘revdi culture’. And, therefore, the whole country is getting behind it. To me there appears to be a systematic attempt to undermine the entire electoral process,” he cautions.

The article was originally published on Civil Society Online.

चुनाव का एलान होते ही नेताओं का दलबदल शुरू हो गया है। नेताओं के इस दलबदल में सबसे ज्यादा ठगा महसूस करता है मतदाता। ऐसा इसलिए भी होता है कि हमारी चुनावी व्यवस्था में मतदाताओं से पूछकर उम्मीदवार उतारने की कोई प्रक्रिया ही नहीं है। राजनीतिक पार्टियां किसी को भी कहीं से खड़ा कर देती हैं और मतदाताओं को उन्हीं में से चुनना होता है। उम्मीदवार का फैसला जमीन पर नहीं बल्कि पार्टियों के हाईकमान से होता है। जनता की इसमें कोई भूमिका नहीं होती। इसीलिए पार्टी बदलते समय भी नेताओं को जनता के प्रति कोई जवाबदेही नहीं अनुभव होती है।

कई साल पहले कांग्रेस ने हैदराबाद के एक नेता को मुरादाबाद में उतार दिया। स्थानीय कांग्रेसियों ने इसका विरोध किया और प्रचार करने से मना कर दिया। उन दिनों सौ रुपए रोजाना लेकर पोस्टर आदि लगाए जाते थे और प्रचार का काम किया जाता था। उस उम्मीदवार ने उन्हें तीन सौ रुपये रोजाना देने का आफर दिया। सभी मान गए। प्रचार शुरू हो गया। इसलिए पैसे के दबाव में स्थानीय कार्यकर्ता भी विरोध से कतराते हैं।

1935 में बंबई (अब मुंबई) में सहकारिता के लिए काम कर रहे वैकुंठ भाई मेहता को लोगों ने चुनाव में उतरने को कहा लेकिन वह नहीं माने। उन्होंने महात्मा गांधी को पत्र लिखकर पूछा कि क्या करना चाहिए। महात्मा गांधी ने उन्हें जवाबी पत्र में कहा कि लोग कह रहे हैं तो आपको जरूर लड़ना चाहिए, लेकिन आप किसी से वोट मांगने नहीं जाओगे और कोई पैसा खर्च नहीं करोगे। वैकुंठ भाई मेहता ने ऐसा ही किया। वे भारी मतों से चुनाव जीत गए।

ऐसा नहीं है कि लोगों से जुड़ा व्यक्ति चुनाव नहीं जीत सकता है। लेकिन राजनीतिक दलों ने पैसे को इतना महत्व दे दिया है कि अब केवल पैसे वाले या आपराधिक पृष्ठभूमि वाले ही आगे आ रहे हैं। आंकड़े बताते हैं कि 50 प्रतिशत से ज्यादा सीटों पर आपराधिक पृष्ठभूमि वाले उम्मीदवार हैं। राजनीतिक दल भी अब कुछ धनाढ्य सात-आठ परिवारों की बपौती बन गई हैं। ऐसे में मतदाता लाचार होकर रह जाता है।

एक समस्या यह भी है कि चुने गए लोग भी अक्सर पार्टी हाईकमान के हाथ की कठपुतली ही होकर रह जाते हैं। दलबदल विरोधी कानून लाया गया था कि विधायकों, सांसदों की खरीद-फरोख्त न हो सके। हालांकि अब देखने में आता है कि आधी पार्टी ही टूटकर दूसरे में मिल जाती है। जब तक राजनीतिक दलों की कोई जवाबदेही तय नहीं होगी, तब तक इसका कोई हल निकलता नहीं दिख रहा है।

यह लेख मूल रूप से दैनिक जागरण द्वारा प्रकाशित है.

There are two fallacies in this formulation. One, ballot boxes are not of any use unless citizens, actually cast their votes into the ballot boxes. The other fallacy is about the people elected by those ballot boxes. What type of people are they? Data shows the number of MPs in the Lok Sabha with criminal cases against them has been growing. The Association for Democratic Reforms (ADR) collected this data from the self-sworn affidavits of candidates contesting elections to the Lok Sabha in compliance with decisions of the Supreme Court of India in 2002 and 2003.

Readers can judge the quality of “the people who are elected by those ballot boxes” from this table:

So, what’s new, you might ask? Till the year 2004, voters had no way of knowing what “type” of people they were casting their votes for in the “ballot boxes”. This was because of a specific provision in law that permitted a sitting legislator, convicted in a criminal case, to continue to be in that position and contest further elections, whereas a  common citizen was barred from contesting elections for six years if convicted in a criminal case. But we are getting ahead of our story.

HOW IT ALL BEGAN

Around 1998-99, there were a lot of media reports about people with pending criminal cases against them contesting elections and getting elected. Around the same time, in May 1999, the Law Commission of India submitted its 170th report,  Reforms of the Electoral Laws. In a comprehensive review of all the electoral laws one of the recommendations of the commission was:

“In the interest of transparency, we have also suggested provisions making it obligatory upon every candidate to declare the assets possessed by him or her or by his/her spouse and dependent relations and the particulars regarding criminal cases pending against him/her, in the nomination paper itself.”

A group of public-spirited persons decided to file a Public Interest Litigation (PIL) in the Delhi High Court in December 1999, requesting the implementation of the above recommendation. The Delhi High Court, in a decision on November 2, 2000, upheld the petition and directed the Election Commission of India (ECI) to collect and make the necessary information available to voters.

The Union of India  (UoI) filed an appeal in the Supreme Court against the Delhi High Court’s decision. Several political parties became interveners in the case, in support of the stand of the UoI, opposing the Delhi High Court decision.

The Supreme Court  gave its judgement on May 2, 2002, upholding the High Court judgement, and directed the ECI to get  information on a sworn affidavit from each candidate seeking election to Parliament or the state legislature, as a necessary part of his nomination paper, on the criminal, financial and educational antecedents of the candidate.

The ECI’s implementation of these directions made the entire political establishment very unhappy.  In an all-party meeting on July 7, 2002, it was unanimously decided that the Supreme Court’s decision and the consequent order of the ECI would not be allowed to be implemented, and the Representation of the People Act, 1951 (RP Act), would be amended, in that very session of Parliament if necessary, to nullify the Supreme Court’s decision and the ECI order.

A bill to amend the RP Act was accordingly prepared but it could not be introduced in Parliament as the Lok Sabha was adjourned sine die.  The government then decided to issue an ordinance.

Given that the draft of the ordinance seemed to be prima facie unconstitutional, about 30 civil society representatives met the President and cautioned him about it. When the ordinance was sent to the President, he “returned” it. The Cabinet, however, sent it to the President again and he had to sign it following established convention. The Supreme Court’s decision of May 2, 2002, thus stood nullified.

The struggle did not end here. Three PILs were filed in the Supreme Court challenging the amendment of the RP Act. All three petitioners were civil society organisations: Association for Democratic Reforms, People’s Union for Civil Rights and Lok Satta.

The Supreme Court gave its judgment on March 13, 2003, holding that the amendment of the RP Act was unconstitutional and null and void. It restored the Supreme Court judgment of May 2, 2002, saying it had “attained finality” and that there shall be no appeal against that judgment.

This effort, from 1999 to 2003, is what enabled voters/citizens to know what type of people were “elected by those ballot boxes” and laws made by whom are the “quintessence of democracy”.

THE AFTERMATH

Yet the number of tainted MPs in Lok Sabha has consistently risen over the last four general elections! So, what impact has all this effort had?  On the face of it, the proportion of people with criminal cases pending against them in the Lok Sabha has increased. But if one goes into some details of the electoral process, it is revealed that most of the reasons for this increase can be found in the laws made by the people who are elected by those ballot boxes!

Further, the root of all these mysterious outcomes lies in an institution called “political parties”. What political parties in India are, and what they should be, is best described in the following paragraph of the 170th Report of the Law Commission of India:

“If democracy and accountability constitute the core of our constitutional system, the same concepts must also apply to and bind the political parties which are integral to parliamentary democracy.  It is the political parties that form the government, man the Parliament and run the governance of the country.  It is, therefore, necessary to introduce internal democracy, financial transparency and accountability in the working of the political parties.  A political party which does not respect democratic principles in its internal working cannot be expected to respect those principles in the governance of the country.  It cannot be a dictatorship internally and democratic in its functioning outside.”

The National Commission to Review the Working of the Constitution (NCRWC) chaired by the former Chief Justice of India, Justice M.N. Venkatachaliah, in its report submitted on March 31, 2002, said:

“The Commission recommends that there should be a comprehensive legislation (may be named as the Political Parties [Registration and Regulation] Act), regulating the registration and functioning of political parties or alliances of parties in India.”

These recommendations were made in 1999 and in 2002, but it seems “the people who are elected by those ballot boxes” have not had the time or inclination to implement them.

SEVERAL INITIATIVES 

On the other hand civil society activists, or shall we call them ‘Fourth Generation Warriors’, have been trying to get exactly the same done.

The ADR requested a committee chaired by Justice M.N. Venkatachaliah, to draft a bill to regulate the functioning of political parties. This committee drafted what it called the Political Parties (Registration and Regulation of Affairs, etc.) Bill, 2011. This draft bill has been shared with all the major political parties but none has shown any inclination of taking it up.

In addition, several initiatives have been made by civil society groups to cleanse the electoral and political systems.  Some representative examples are listed below:

• In June 2013, the Central Information Commission (CIC), in response to an application by ADR and S.C. Agrawal, declared in a unanimous, full bench decision, that the six national parties — the BJP, INC, BSP, CPI, CPI(M) and NCP — are public authorities under the Right to Information (RTI) Act, 2005. All six parties refused to comply with the CIC’s order. In May 2015, the same petitioners filed a petition in the Supreme Court to implement the CIC’s order. The petition is still pending in the Supreme Court.
• In July 2013, the Supreme Court set aside clause 8(4) of the RP Act on petitions filed by Lily Thomas, a public-spirited Supreme Court lawyer, and Lok Prahari, a civil society group in Lucknow. As a result, sitting MPs and MLAs were barred from holding office on being convicted in a Court of Law.
• In September 2013, the Supreme Court ruled, in a PIL filed by the People’s Union for Civil Rights, that the right to register a “none of the above (NOTA)” vote in elections should apply and ordered the ECI to provide such a button in the Electronic Voting Machines (EVMs).
• Again, in September 2013, on a PIL filed by Resurgence India, another civil society group, the Supreme Court ruled that no columns or boxes should be left blank in affidavits filed as an essential part of the nomination papers, in terms of its judgment in the 2003 ADR case.
• In March 2014, the Delhi High Court in its judgement in a PIL filed by ADR, held that the BJP and the Congress were both guilty of accepting funds in violation of the Foreign Contribution (Regulation) Act, 1976 (FCRA 1976), and directed the Ministry of Home Affairs and the ECI that appropriate action under FCRA 1976 be taken against them within six months of the judgment. Both the parties first filed appeals in the Supreme Court and then withdrew them. In the meantime, the government amended the FCRA twice, once with retrospective effect, eight years after the Act being amended had ceased to exist! The matter is still sub judice.
• In September 2017, ADR and Common Cause, another civil society group, filed a PIL in the Supreme Court challenging the constitutional validity of the Electoral Bonds scheme introduced by the government, enabling anonymous donations to political parties, in any amount, by anyone (including Indian and foreign companies with branch offices in India).

In an interim order on April 12, 2019, the Supreme Court said that “the rival contentions give rise to weighty issues which have a tremendous bearing on the sanctity of the electoral process in the country. Such weighty issues would   require an in-depth hearing…”. But the learned judges of the Supreme Court have not had time to hear the petition till now, while elections continue to be held and unaccounted money keeps flowing.

The third highest functionary in the security establishment of the country seems to have a lot on his hands in dealing with Fourth Generation Warriors!

The article was originally published on Civil Society.

The issue of linking India’s voters’ list with the Aadhaar database is in news again with the surreptitious passage of The Election Laws (Amendment) Bill, 2021 in Parliament recently. The fact that it was passed hurriedly with hardly any discussion is enough to raise suspicion. But there is more to it, and part of that is contained in the history of this idea.

That history began March 3, 2015: The Election Commission of India (ECI) launched “a comprehensive programme” — the National Electoral Roll Purification and Authentication Programme (NERPAP) — “with the prime objective of bringing a totally error-free and authenticated electoral roll”.

One of the stated objectives of the NERPAP was linking EPIC (Electoral Photo Identity Card) data with the Unique Identification Authority of India’s (UIDAI) Aadhaar data with the laudable objective of authenticating the EPIC data.

The ECI took up this programme with a lot of enthusiasm. By August 2015, when the Supreme Court ordered a ban on this linking, 320 million voters had already been linked to their Aadhaar IDs.

The ECI apparently believed (and seems to still do) that such a linkage would enhance the credibility of electoral rolls. Given that the reliability of Aadhaar itself has been (and still is) under cloud, it is hard to understand the ECI’s faith in it.

Doubts over the efficacy and intent of the NERPAP drive, ostensibly to create “a totally error-free and authenticated electoral roll”, resurfaced in early 2018: Missing voters were discovered in some states, starting with Karnataka where the names of some 6.6 million voters of a total 50 million had gone missing. More than 1.5 million names were reportedly restored after the Election Commission ran a verification drive.

This is why there is a very serious apprehension that the linking of electoral roll data with Aadhaar may result in the disenfranchisement of legitimate voters.

The usual remedy that is touted officially — that anyone who thinks her / his name has been inappropriately removed from the elector roll, can always approach the ECI for reinstatement of the name — does not carry much weight for a simple reason: Not everyone whose name was, or is, deleted due to infirmities in the Aadhaar ecosystem, which are by now well-known, will or can approach the ECI for re-enrolment.

Given that deprived sections of society are usually the worst hit by such exclusion, many won’t have the wherewithal to even approach the ECI. This apprehension of disenfranchisement acquires sinister undertones if some of these deletions are systematic bids to deprive specific groups of their voting rights, as has been mentioned as a possibility.

There is more in the history of this attempted linkage. Two former chief election commissioners (CEC) have been quoted as saying, on conditions of anonymity, that the UIDAI had lobbied long and hard to link voter IDs and Aadhaar as a way to legitimise the controversial biometric ID project.

“They said we should integrate Aadhaar with electoral rolls to eliminate duplicates; the Commission held the view that we should hold off until we fully understand the implications,” said one of these former CECs.

Finally, the EC seems to have succumbed in February 2015 when HS Brahma was CEC, and the exercise was launched in March 2015.

The Supreme Court in its August 2015 interim order restricted the use of Aadhaar to the Public Distribution System (PDS), and the distribution of liquefied petroleum gas and kerosene, thus putting a stop to the ECI’s much-touted scheme. In its final order in September 2018, the apex court held privacy a fundamental right and said linking of Aadhaar with voters’ ID data could not be done unless there is a specific law subject to certain conditions such as a specific interest of the state, and the test of proportionality is satisfied.

This is why the ECI wrote to the Union law secretary in August 2019, proposing amendments to the Representation of People Act (RP Act) and the Aadhaar Act to empower it to collect and use Aadhaar data for “cleaning” voters’ lists as a “back-end exercise”.

To create a semblance of following the Supreme Court judgment, and to create a paper trail to prove the same, the Union law ministry wrote a pro-forma letter to the ECI asking it to explain how it had ensured that the Supreme Court’s order is not violated.

However, the ECI and the Law Ministry need to remember that the court said: “We will also make it clear that the Aadhaar card scheme is purely voluntary and it cannot be made mandatory …” (emphasis added). The court also added: “No deserving person will be denied service for failure of authentication.”

Therefore, if, in the implementation of the amended RP Act, even one eligible voter is prevented from casting her / his vote, the ECI will risk the possible consequence of violating a specific direction of the highest court of the land.

Then there is also a fundamental conceptual inconsistency in combining these two databases. Aadhaar — as has often been pointed out even by government authorities — was designed as, and is, a proof of identity; if stretched further, it’s a proof of residence. On the other hand, the registration of a person as a voter is a proof of citizenship which confers on the holder the right to vote.

Claiming that combining these two will improve the accuracy of one, particularly when the other one is also not error-free, is something quite strange.

There are also two practical considerations which go against this proposal. One is the difficulty or at least uncertainty of matching one’s finger prints or iris impression. This is a common experience which this writer has personally faced several times.

Imagine an illiterate voter at a remote village being asked by the polling officer to show her Aadhaar and to verify finger prints or iris; she then is told these do not match, thus she is not allowed to vote.

It is not difficult to replicate the scenario in slums and some other groups which can be easily identified and differentiated — remember “systematic bids to deprive specific groups of their voting rights”?

The other is a common sight in cities where one sees auto-rickshaws with stickers proclaiming ‘Get Aadhaar Made in 5 Minutes”. Doesn’t it speak volumes of the accuracy and reliability of Aadhaar? And there are still people who believe that such a scheme can verify, authenticate, de-duplicate, and purify the electoral rolls!

Correcting the electoral rolls is one of the most important tasks that the ECI is mandated to do. The only way it can be done in a society such as India is the hard way, by actually going from door to door. The ECI’s quest for quick fixes and technical solutions such as the Aadhaar ecosystem are likely to do more harm than good.

Another possibility is that the ECI is under pressure to do this, not an end in itself, but as a preparatory step to pave the way for other ambitions of the government of the day such as simultaneous elections or one-nation-one-election, which was discussed for almost three years with no acceptable consensus.

In sum, linking the electoral roll data with the Aadhaar data set is not a good idea and should not be done.

The article was originally published in Down To Earth.

Prof Chhokar speaks to Sanjukta Basu, from National Herald, on the struggle for free and fair elections.

The Election Commission says linking of the electoral roll with Aadhaar data base will help clean up electoral rolls. Will it really result in error-free electoral rolls?

Aadhaar and voter ID cards are conceptually two different things, one is a proof of identity and residence while the other is a proof of citizenship. They should not be linked for several reasons. Firstly, the Supreme Court verdict is clear that Aadhaar can only be used for government services and benefits and no other purpose. Voting is not a benefit; it is a fundamental right. Therefore, this move is clearly against Supreme Court’s judgment.

Secondly, in 2015 the Election Commission of India (ECI) launched the NERPAP (National Electoral Rolls Purification & Authentication Programme) and started linking Aadhaar and voter ID. But the move was soon suspended by the Supreme Court. But by then around 55 lakh people in Andhra Pradesh and Telangana were disenfranchised due to various technical problems in the linking process.

My wife and I both personally experienced some of these problems when our finger-prints did not match. They had to clean the fingers, followed by cleaning the machine; it was a terrible hassle. The AADHAR database itself is full of discrepancies and needs correction. So, to make that the basis of voting is deeply flawed.

Is the apprehension that such linkage can be manipulated or misused by political parties genuine?

Definitely. It has the potential of selective disenfranchisement of various groups based on any criteria. The risk is genuine no matter which party is in power. As of now, whoever can access the data may potentially misuse it. Let me also add, this itself is not the end, it is one of the means towards a larger, more worrying objective which includes one nation one election, one electoral roll for all elections and so on.

What steps should the Election Commission take to clean up the electoral rolls? How much have they succeeded till now?

ECI is trying a quick and technical solution to a very serious problem. The cleaning up of electoral rolls is nobody else’s job but ECI’s and it can only be done by going to door to door and putting in real blood and sweat, that is what EC is mandated to do.

What are some of the important recommendations related to electoral reforms made by the EC, Law Commission and ADR, which have not been accepted as yet by the Government?

It is a long and sad saga. Reforms, criminalization of politics, role of money in politics have been talked about for 50-60 years but no government ever wanted to actually do anything about it. The existing system benefits all governments across party lines and they have found ways to play around the system and are scared of any change.

There have been around 60-100 proposals sent to the government in the last decade or so. In 2004, a list of 22 proposals was sent to the then Prime Minister. In 2016, then Chief Election Commissioner sent about 62 recommendations. These have been piling up but the government of the day cherry picks the recommendations it thinks is convenient, as they have done with the Aadhaar linking.

To name some of the important ones, firstly to democratize political parties by enacting a legislation. We often say “India has a vibrant democracy” but if the political parties, the pillars of democracy, do not function in a democratic way, how would they build a vibrant democracy? Every party has a high command, a core group or a supremo who takes decisions. ADR had requested Justice Venkatachaliah to draft a law in this regard which was done 10 years ago. We took it to all political parties but nobody was interested.

Secondly, financial aspects of the political parties should be transparent. How much money they get, where do they get it from, via what process and how is the money spent – these information should be available to voters. Without financial transparency we will never know who is controlling the elections. Donations to political parties are not charity, it is a quid-pro-quo arrangement, rather it is an investment.

Supposedly, the parties are already bound by RTI Act but none of them comply. In 2013, the Central Information Commission said that the six national political parties are public authorities under the RTI Act but they have refused to accept it and the matter is in the Supreme Court in which Union of India has argued against it.

Thirdly, the issue of criminals in politics. In 2004, when we did the National Election Watch for the first time, we found that 25% of the Lok Sabha members had pending criminal cases. That figure went up to 30% in 2009, 35% in 2014 and 43% in 2019. Some of these cases are of serious nature like murder and rape. In any other country this is absolutely unthinkable. Foreign counterparts often ask us, “Is this true? How can a person with a criminal case sit in Parliament?”

ADR wrote letters to Presidents of all political parties requesting them to not give party tickets to those with pending criminal cases. To no avail. Then, when they got elected, we again wrote to the Presidents requesting them to not make them ministers, again to no avail. We do not even receive an acknowledgement of the letters we write.

The presence of criminals in politics is tied to the use of money in politics which comes from criminal activities. It has been suggested by the Election Commission and ADR many times that a person who has a case registered against them at anytime before one year of the election, which is punishable with one year or more of imprisonment, and in which charges have been framed by a Court of law should not be allowed to contest election. It has not been implemented and this matter too is pending in the Supreme Court.

The Election Commission also wanted to use ‘Totalisers’. But the Government turned it down saying it needed to learn booth level voting patterns for better governance. Was it a valid ground?

Totalisers are very useful but again governments across party lines have been dragging their feet on it because if it is used, the parties will not be able to identify the booths where they receive fewer votes. They identify the booths and harass and intimidate people if they do not get their votes. Totalisers were in use before the EVMs came when the ballot papers of several booths used to be mixed up.

VVPAT units were connected to the EVMs in 2019 following Supreme Court’s directions. How useful have they been? And why cannot they be counted to match the EVM tally since we have already invested in buying and storing the machines and in any case use paper?

The interface between the Voter, EVM and VVPAT is not clear. When you press the button on the EVM, it sends a message to the VVPAT which shows a slip that shows whom you have voted for. But whether the information that goes from VVPAT to the counter unit is authenticated or not has not been clearly established.

The VVPAT manufacturing companies are also hiring a lot of private engineers/ personnel on contract which is not a comforting fact. In 2019 elections there were instances of the data being changed without any explanation; in some cases, the number of votes polled and counted were different which raised doubts. The process of counting has to be transparent. There should be complete tallying but it is not happening.

The appointment of the EC and CEC also requires reform. At present they are appointed by the government of the day without consulting anybody. They may even appoint somebody who has not been an EC as the Chief Election Commissioner. Even though traditionally the senior most EC is appointed the CEC, tradition is not law. The appointments should be mandated by law and only then will the ECs gain confidence to function independently. The ECs must have better constitutional protection and secure tenures, the same as the CEC. These should change and there should be a collegium for appointments and tenures etc.

Your name recently came up in the Pegasus snooping, your response? Were you surprised? Worried?

My response was why are they wasting money by snooping on me; my phone is open and available. All ADR information is in public domain and there is nothing confidential.

The interview was originally published in National Herald.