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.

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.

After a gap of six years, the dubious linkage between voters IDs with Aadhaar numbers is back in the news.

It was reported on June 8 that the chief election commissioner had written to the Union law minister requesting the minister to expedite a long list of proposals for electoral reforms. Linking of voter ID information with the Aadhaar database of the UIDAI was one of the prominent proposals.

The Election Commission of India (ECI) taking up this proposal once again was a surprise. It is not a new proposal. The first attempt was made in March 2015 when the Election Commission of India (ECI) launched “a comprehensive programme”, called 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 objectives of the NERPAP was to link and authenticate the EPIC (Electoral Photo Identity Card) data with the UIDAI’s Aadhaar data.

This had to be stopped because on August 11, 2015, the Supreme Court passed an interim order prohibiting Aadhaar from being used for “any purpose” other than the state-facilitated distribution of food grain and cooking fuel such as kerosene and LPG. The ECI decided to stop the drive by its order of August 13, 2015.

Despite the immediate suspension, the damage had already been done: “(N)early 55 lakh voters … were left out of the electoral process due to the linkage of electoral photo identity card (EPIC) and Aadhaar taken up by the Election Commission in 2015.”

Possible reason(s) for ECI’s keenness

To understand the keenness of the ECI to re-introduce this, we have to go into some history.

Former chief election commissioner H.S. Brahma is reported to have said that the work on this initiative started in 2012. Two former chief election commissioners (CECs) have been quoted as saying, on the condition 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 while they agreed in principle to 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.

One of the CECs also said that linkage of voter cards with Aadhaar numbers was agreed to during a meeting with Nandan Nilekani but nothing of significance was done till H.S. Brahma took over as CEC on January 16, 2015 (his tenure lasted till April 18, 2015). It has also been reported that Brahma “made it a priority to push through the seeding process”.

The ECI, the UIDAI and the government have been quite vociferous and aggressive in defending, and promoting, the proposed linkage. They have given four broad reasons in support of the linkage:

1. improving the accuracy of the electoral rolls, by weeding out duplication and misrepresentation in electoral rolls;
2. assistance in the ECI’s plans to implement advanced mechanisms such as electronic and internet-based voting;
3. giving ‘remote’ voting rights to domestic migrants; and
4. to facilitate proxy voting which may require Aadhaar backing for voter verification.

The government has already passed an amendment in the Lok Sabha to allow NRIs to participate in elections via proxies.

All four of the above reasons are doubtful and debatable, with a lot of ifs and buts.

So far as “improving the accuracy of the electoral rolls, by weeding out duplication and misrepresentation in electoral rolls” is concerned, given that the reliability of Aadhaar itself is under a cloud, it is hard to understand the ECI’s faith in it.

Doubts over the efficacy and intent of the NERPAP drive resurfaced in early 2018 with the discovery of missing voters in some states, starting with Karnataka, where some 6.6 million voter names, of a total of 50 million, had gone missing. Also, NERPAP data sheets were found “lying around” in several locations because at least some of the personnel tasked with collecting the data had continued to do so for quite some time after the August 2015 Supreme Court ban kicked in. This was because follow-up instructions from the ECI took time to reach the ground level. Even after the data-collection drive had finally stopped, in the absence of clear instructions on how to store and/or dispose of data sheets, they were apparently put away quite haphazardly, by the ground personnel. This only served to further underline doubts over how the linking exercise might have led to the deletion of voter names.

Despite the ECI’s enquiries and reassurances, there is a fairly widespread impression that the attempted linking of electoral roll data with Aadhaar may have resulted in the disenfranchisement of legitimate voters. It has also been suggested that some of these deletions are systematic bids to deprive specific groups of their voting rights.

Not everyone whose name was 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 do so.

There have also been reports that the ECI has been cagey about revealing information on the linking process and what transpired between the rollout in March 2015 and the Supreme Court ban in August the same year. In response to RTI applications, it cited “non-availability of information in ‘physical form’ in the ‘records of the Commission’”. This kind of deflectionary legalese does not inspire trust and credibility.

Despite all the rhetoric, the ECI’s plans “to implement advanced mechanisms such as electronic and internet-based voting”, remain a flight of fancy. There are those who continue to express doubts over Electronic Voting Machines (EVMs) and Voter Verifiable Paper Audit Trail (VVPAT) machines.

While there has been a lot of talk about “giving ‘remote’ voting rights to domestic migrants” particularly in the wake of the humongous migrants’ crisis in the wake of the COVID-19 lockdown, the ECI and the government have paid scant attention to migrants within India — let’s call them MRIs, Migrant Resident Indians — whereas they seem to bending over backwards to accommodate the wishes of the well-heeled NRIs.

In addition, the proposed linkage has serious legal and constitutional issues. It will violate the judgment of the Supreme Court of India in Justice K.S. Puttaswamy (retd.) & Anr. v. Union Of India, popularly called the Aadhaar judgment.

The problems faced by lay people in trying to use Aadhaar are widely known. Fingerprints and even the iris not matching are widespread. Also, the assumption that linking the Aadhaar database with the voter ID/EPIC database will enhance the authenticity of the voter ID data, is on extremely slippery ground given widespread data quality issues in the Aadhaar database. On the contrary, this might even dilute the sanctity of records in the voter ID database. Data quality issues in the Aadhaar database – a result of inadequate enrolment practices and lack of effective correction mechanisms – have been extensively documented. The UIDAI has itself admitted so before various courts, and multiple courts have refused to accept Aadhaar as proof of birth or identification. This actually has the potential of increasing voter fraud.

And finally, one can do no better than quote Justice B.N. Srikrishna (retired), who chaired the expert committee that drafted India’s Personal Data Protection Bill. He described the Election Commission’s request for a law to link electoral rolls with Aadhaar as “the most dangerous situation” on August 24, 2019.

The real reason why the ECI has “approached” the law ministry is to bypass the Supreme Court judgment. This is why “While approving the ECI’s proposal, the Union Law Ministry headed by Ravi Shankar Prasad has categorically asked the ECI to enumerate the measures that the poll watchdog is adopting to safeguard data from being hijacked, intercepted and stolen, as per the report”.

The report goes on to say, “In its reply, the ECI had sent the list of safeguard measures to the Union Law Ministry in December. The ECI mentioned that these measures are for both application and infrastructure levels. The ECI has also mentioned that the Aadhaar ecosystem is not entered into by the electoral roll database.”

Further, to remove any remaining doubts, and thereby letting the cat out of the bag, the ministry clarified, “Responding to the ECI’s letter of request, the Union Law Ministry stated in September that the ECI’s rationale would ‘pass the benchmark test laid down by the Hon Supreme Court for collecting Aadhaar details for purposes other than getting benefits of state-sponsored schemes.’”

It is sad that an apparently legally elected government should resort to such poorly disguised legal subterfuges to circumvent the directions of the highest court in the land. This is a proposal that should be dropped once and for all.

The article was originally published on The Wire.

He has worked for electoral reforms through the judicial system by filing Public Interest Litigations in the higher judiciary to get relevant laws improved, and on the ground by providing information to voters about the background of candidates contesting elections so that they can make informed choices while voting.

Before founding the ADR, Chhokar — who has a PhD from Louisiana State University, USA — was a  professor of Management and Organisational Behaviour at the Indian Institute of Management, Ahmedabad. In an interview with RAKESH KUMAR, he shared his thoughts on a variety of issues roiling the country.

“Indian politicians start their legislative careers with a lie — the false spending returns they submit? – Atal Bihari Vajpayee”

Achchhe din (Good days) are here for at least one category of persons in India: Those who contest elections and have pots of money. This good news is derived from a press note issued by the Election Commission of India (ECI) October 21, 2020.

For the record, the press note informs whoever may be interested that the ECI has constituted a two-member committee “to examine the issues concerning expenditure limit for a candidate in view of increase in number of electors and rise in Cost Inflation Index and other factors.”

Why should this be cause for celebration by those who contest elections, and have pots of money? The response to this question requires us to go into some legislative provisions (in simple words, ‘laws’) and some other regulations.

The root of the issue is found in Section 77 (3) of a ‘law’, The Representation of the People Act, 1951 (RP Act). This section reads, “The total of the said expenditure shall not exceed such amount as may be prescribed.”

‘Laws’, most of the time, cannot be implemented as they are; they need to be operationalised by ‘Rules’ made under a particular ‘law’ by the Government of India. The RP Act was operationalised through The Conduct of Election Rules, 1966.

Rule 90 of the Conduct of Election Rules, ‘Maximum election expenses’ stipulates:

The total of the expenditure … which is incurred or authorized in connection with an election in a State or Union territory … shall not exceed … (an amount given in the accompanying Table).

These limits are specified separately for every state and Union territory and separately for Parliament and state Assemblies.

Since the power to amend the ‘rules’ rests with the Union government (and NOT with the ECI), all that the ECI does is to recommend to the Centre from time to time that the existing limit be increased to a higher amount that the ECI recommends. The central government usually approves the recommendations of the ECI.

This happens almost in every election. For example, the limit of election expenditure at the time of 2009 general elections was Rs 25 lakh for a Parliamentary constituency and Rs 10 lakh for an Assembly constituency in the bigger states.

These limits were subsequently increased and, till recently, were Rs 70 lakh for Lok Sabha and Rs 28 lakhs for state Assembly elections.

As recently as October 20, 2020, the Narendra Modi government has increased both these limits by 10 per cent, making the Lok Sabha limit as Rs 77 lakh and state election expenditure limit Rs 30.6 lakh.

Ostensibly, it is to replace such ad hoc or random increases (because there has never been a decrease in the limits so far) that the ECI has set up the committee. The ‘terms of reference’ of the Committee are:

1. To assess the change in number of electors across the states / Union territories and its bearing on expenditure
2. To assess the change in Cost Inflation Index and its bearing on the pattern of expenditure incurred by the candidates in recent elections
3. To seek views / inputs of political parties and other stakeholders
4. To examine other factors which may have bearings on expenditure
5. To examine any other related issue

To bring in a kind of a logical basis for fixing election expenditure limits is, on the face of it, a laudable exercise. But then why is it that the title of this piece has the word ‘charade’ in it? Let’s see.

Why ‘charade’

To unravel this, we need to understand what purpose are the limits supposed to achieve, and what do they actually achieve.

The ostensible purpose, though not explicitly stated, seems to be to minimise or normalise the impact of money, or big money, on the electoral process. To use a cliché, it is to provide a ‘level playing field’, or at least as level a playing field as possible.

This is so that persons who have humongous amounts of money to spend on elections, do not end up cornering all the seats, and those who have less money do have a more or less equal chance of getting elected.

To achieve this, every candidate contesting elections to Parliament and a state Assembly is required, under Section 77 (1) of the RP Act to:

keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.

Further, Section 78(1) of the same Act, requires:

Every contesting candidate at an election (to) … lodge with the District Election Officer … an account of his election expenses … within thirty days from the date of (declaration of the result of the election).

This is required to be submitted as a sworn affidavit. As mentioned above, “The total of the said expenditure shall not exceed such amount as may be prescribed.”

If the actual expenditure of any of the elected persons exceeds the permissible limit, that election can be set aside.

The reality

To do a reality check on these election expenditure affidavits, Association for Democratic Reforms (ADR) — a civil society group working on electoral and political reforms — analysed the affidavits of 5,743 candidates after the 2009 Lok Sabha elections.

This analysis showed that only four candidates declared expenditure above the then limit of Rs 16 lakh. Thirty candidates had declared that they had spent between 90 and 95 per cent of the limit.

The remaining (5,743-4-30=) 5,719 or 99.58 per cent said they had spent between 45 and 55 per cent of the limit.

Then there is other relevant information. On June 27, 2013, one of the prominent leaders of one of the leading political parties, who became a central minister after the 2014 Lok Sabha election, said in a public meeting that he had spent Rs 8 crores on his 2009 Lok Sabha election.

It is worth recalling that the limit for expenditure for Lok Sabha in 2009 was Rs 25 lakhs. The same person had declared in his sworn affidavit that his actual election expenditure was Rs 19.63 lakh.

With 99.58 per cent of the candidates saying that they had spent 45-55 per cent of the limit, there is a widespread clamour, almost at every election, that the ceiling on expenditure is too low and it should be increased.

A former chief election commissioner, when shown this data, said based on this data, the limit should be decreased and not increased.

To what extent has the election expenditure limit been successful in providing a ‘level playing field’ can be seen from the fact that while the 2004 Lok Sabha had 153 (30 per cent) of MPs who were crorepatis, the number in the 2009 Lok Sabha as 315 (58 per cent).

The 2014 Lok Sabha saw this number go up to 443 (82 per cent). The figure in the 2019 Lok Sabha is 479 (88 per cent).

It should be evident from the above that the limits on election expenditure by candidates does not serve any purpose at all.

Then there is the elephant in the room: There is no limit on the expenditure that political parties can incur during elections!

The only ways to control expenditure on elections and to provide a ‘level-playing field’ to rich and poor candidates alike are to (a) make political parties democratic in their internal functioning and (b) make their finances transparent, by law. How these two will achieve these objectives is another story.

The article was originally published on Down to Earth.

A total of 1698 political parties are registered with the Election Commission of India, out of which only 464 parties contested the Lok Sabha 2014 elections. So, the important question is ‘why are there so many parties registered with the ECI when three-fourth of them do not even participate in elections, the basic purpose of a political party?’

All eyes are focussed on those political parties which have emerged winners in the recently concluded Lok Sabha elections. But what about hundreds of those political parties which stay registered with the Election Commission of India (ECI) but rarely contest? How many such parties exist and what do they do after getting registered?

According to the ECI notifications¹, as of 17^th April, 2014, there were a total of 1698 political parties registered with the Commission, out of which only 464 parties contested the Lok Sabha 2014 elections. A major chunk of 1,645 or about 97% of registered political parties are unrecognised parties (newly formed parties, those which have not secured enough percentage of votes to become a state party or those which have never contested). It is interesting to note that out of the 1,645 registered unrecognised parties, only 419² or 25% contested in the Lok Sabha elections, 2014.

To focus on a smaller number, about 52 parties got newly registered after the ECI announced the date of Lok Sabha elections (5^th March, 2014). But only 15 or 29% of these brand new parties contested in elections!

The scenario was not very different during the Lok Sabha elections in 2009. Out of 1,000 unrecognised parties³, only 322 or 32% contested⁴ in the General elections.

So, the important question is ‘why are there so many parties registered with the ECI when three-fourth of them do not participate in the democratic process of the country?’

Political parties are completely exempted from paying Income Tax as long as they file their Income Tax returns to the IT Department and submit details of donations received above Rs 20,000 to the ECI, annually⁵. Even if the parties declare that they have not received any amount above Rs 20,000 from a single donor, they would still enjoy tax exemption. So, political parties that do not contest in elections can continue to collect donations and enjoy tax exemption.

A case study:

In 2013, Association for Democratic Reforms (ADR) had obtained a copy of the communication between the ECI and the Central Bureau of Direct Taxes (CBDT) dated 3^rd March, 2006, via an RTI application, regarding scrutiny of contributions reports of two unrecognised parties as their reports indicated “gross misuse of provisions of tax exemption”.

ECI had, in 2007, held meetings with the CBDT regarding enquiry in the case of contribution reports submitted by a few unrecognised parties which were suspicious. Rashtriya Vikas Party, an unrecognised political party, during the Financial Year 2005-06, had declared cash donations amounting to Rs 40 lakhs and a firm had shown contribution of Rs 2 crores in 3 transactions and was hence taken up for scrutiny by the CBDT. The party was told to produce books of accounts and other documents to enable to Assessing Officer (AO) to deduce its income. As the party failed to produce these books stating they have been lost during transportation, CBDT disallowed tax exemption and initiated penalty under IT Act for concealment of income. Also, the jurisdictional AO reported that probability went against the firm having made Rs 40 lakhs of cash donation to the said party.

In the second case, Parmarth Party (currently named Matra Bhakt Party) had declared contributions amounting to Rs 96.43 lakhs for FY 2003-04 and Rs 47.28 for FY 2004-05. The donations report was forwarded to the CBDT to verify the genuineness of the donations. Though the donations were reported to have come from donors assessed to tax, the party’s political activities were surveyed under section 133A of the IT Act. There was no evidence of any political activity being carried out, observed. It was also seen that the contributions to Parmarth Party were being utilized towards investment in shares, loans and advances, jewellery etc. it was also noticed from bank statements that loans and advances were given to trading and business concerns. As no books of accounts or documents were made available despite multiple visits to the party’s office premises, further enquiries into the genuineness of the claims were initiated by the CBDT.

According to the above mentioned communication, the ECI had “time and again written to Hon’ble Prime Minister and the Law Ministry for empowering the Commission in matters regulating the registration and de-registration of political parties and the need of amendment in the law connected therewith but no action has been taken in this regard so far”.

Fate of parties not contesting for more than 6 years:

In 1999, the ECI had issued notices to more than 200 political parties which were registered till 1995 but failed to contest in any elections. Notices to those parties which were returned undelivered parties or parties which failed to respond to these notices were deleted from the list of registered parties, which added up to 150 parties. The same exercise was repeated in 2008 for 220 parties registered till 2000 but failed to contest in elections between 1999 and 2004. Due to lack of man power, the exercise could not be completed by the ECI.

The exercise should continue to weed out any political parties which do not contest in any election for more than 5 years and also as a means to strengthen the registration process.

Conclusion:

From the above case studies, it can be concluded that a number of political parties are being formed as legal entities to ostensibly receive voluntary contribution and evade taxes but not contest in elections. More importantly, Sections 29B and 29C of RPA and the Income Tax Act do not place any condition regarding contesting of election for collecting donations. Thus the above mentioned laws are prone to gross misuse. There is a dire need to look into the proposals of the ECI regarding regulation of registration of political parties so that such blatant misuse of law by those entities which were created to form laws, does not continue.

References:

1. http://eci.nic.in/eci_main1/PolPar/ListofPolParties.aspx
2. http://eci.nic.in/eci_main1/GE2014/ge.html
3. http://eci.nic.in/eci_main/ElectoralLaws/OrdersNotifications/symbols170309.pdf
4. http://eci.nic.in/eci_main/archiveofge2009/Stats/VOLI/02_ListOfPoliticalPartiesParticipated.pdf
5. http://lawmin.nic.in/legislative/election/volume%201/representation%20of%20the%20people%20act,%201951.pdf