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.

The announcement of the schedule for elections for five state assemblies was a much anticipated event. What attracted attention of some observers was the inclusion of requirements for disclosure of criminal antecedents by candidate and political parties who sponsor them. A tweet by someone with over 8,500 followers is representative:

“Candidates with criminal antecedents will have to publish their crime records in newspapers etc. 3 times before the poll: CEC

Also, political parties will have to give a list of candidates with criminal antecedents in home page of their websites. Also, reasons of their selection.”

This appears at pages 21 to 24 of the 92-page press note issued by the Election Commission of India (ECI) and is numbered as items 21 and 22. As the press note correctly mentions, this is in compliance of three judgements/orders of the Supreme Court on February 16, 2018, September 25, 2018 and August 10, 2021. These cases were filed in 2011, 2015 and 2018.

The origins

This long and continuing saga started with the filing of a PIL by the Association for Democratic Reforms (ADR) in the Delhi high court in 1999, requesting that candidates contesting elections to parliament and state assemblies who have criminal cases pending against them be required to disclose these while filing their nomination papers. The high court, in a judgement given on November 2, 2000, accepted the request and ordered that all candidates contesting MP and MLA elections will be required to file a sworn affidavit as a necessary part of their nomination papers, declaring criminal cases pending against them.

The high court’s decision seemed unacceptable to the government of the day, so the Union of India filed a Special Leave Petition (SLP) against the high court’s judgment in the Supreme Court. Several political parties became interveners to the case in support the government, claiming that it was a legislative matter and the judiciary has no jurisdiction to interfere in the matter. The Supreme Court in its judgment delivered on May 2, 2002 upheld the high court judgment, saying:

“Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest.”

Even this was not acceptable to the political establishment. An all-party meeting was held in which it was decided that the high court and Supreme Court judgments will not be allowed to be implemented and the Representation of the People Act (RP Act) will be amended, in that very session of parliament, for this purpose. A draft Bill for this was prepared but could not be introduced in the parliament because of disruptions and then an adjournment due to what came to be known as the petrol pump scam. The cabinet then decided to promulgate an ordinance to achieve the same purpose. The ordinance was sent to the president for signature, but the president returned the ordinance without signing it. The cabinet then sent it to the president again, exactly in the same form, and following the established convention, the president had to sign it. The RP Act, thus, stood amended and the Supreme Court judgment was rendered ineffective.

Three PILs were filed in the Supreme Court challenging the constitutional validity of the amendment of the RP Act. The Supreme Court, in a landmark judgment delivered on March 13, 2003, declared that the amendment of the RP Act “does not pass the test of constitutionality” and “has resulted in the violation of guarantee under Article 19(1)(a)”. Article 19(1)(a) is the Fundamental Right “to freedom of speech and expression”.

This is how criminal antecedents of candidates contesting elections to parliament and state assemblies came to be known to voters.

How it evolved further

The next stage in this saga began in 2011, when a civil society organisation called Public Interest Foundation filed another PIL in the Supreme Court seeking decriminalisation of politics and requesting the Supreme Court to “(a) lay down appropriate guidelines/ framework to ensure that those charged with serious criminal offences are unable to enter the political arena by contesting elections; and (b) lay down a time frame of six months during which trial of such persons are concluded in a time bound manner;” among some other requests.

The Supreme Court issued an order on March 10, 2014, directing that cases against MPs and MLAs be tried “as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s)”.

In the meanwhile, a PIL filed in 2005 came to be decided on August 27, 2014. The case was Manoj Narula vs Union Of India. It was filed “assailing the appointment of some of the original respondents as Ministers to the Council of Ministers of Union of India despite their involvement in serious and heinous crimes”. Originally, the PIL was heard by a three-judge bench headed by the then chief justice, and on March 24, 2006, it was decided that “Having regard to the magnitude of the problem and its vital importance, it is but proper that the petition is heard by a Bench of five Judges.”

Thus, it is the five-judge bench that gave the judgment in August 2014. The majority judgment of three judges left it “to the wisdom of the Prime Minister”, while saying that the prime minister “can always be legitimately expected (to) consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council of Ministers”, and also adding that it “is the constitutional expectation from the Prime Minister”.

There were two other separate but concurring judgments in which one of the judges considered it “…the prophetic duty of this Court to remind the key duty holders about their role in working the Constitution,” and the advice given was that “the Prime Minister and the Chief Minister of the State, …will be well advised to consider avoiding any person in the Council of Ministers, against whom charges have been framed by a criminal court in respect of offences involving moral turpitude and also offences specifically referred to in Chapter III of The Representation of the People Act, 1951”.

Now, to the current situation

Then came an important judgment on September 25, 2018, again in a Public Interest Foundation case. There are two important features of this judgment. One, despite overwhelming evidence, the court shied away from saying that candidates who had criminal cases pending against them for some specified heinous offences be barred from contesting elections, subject to some safeguards, and two, this was the judgment that put the system on the path of candidates and political parties advertising pending criminal cases. Both these issues have been commented on in detail in The Wire on September 25, 2018, and on October 12, 2018.

To reiterate, it was pointed out, especially in the piece on October 12, 2018, that (a) the directions requiring candidates and parties putting out advertisements in newspaper disclosing pending criminal case were not likely to be of much help, and (b) the only way to reduce, if not eliminate, criminals getting into legislatures was to bar such people from contesting elections, which the Court declined to do citing jurisdictional issues. In the process it ignored its own ruling of 2002 wherein it said:

“Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to sub-serve public interest.”

While stopping short of doing what actually requires to be done, the judgment seems to have a lot faith in its own wishes and desires. Following are just two samples of its expectations:

“117. These directions ought to be implemented in true spirit and right earnestness in a bid to strengthen the democratic set-up. There may be certain gaps or lacunae in a law or legislative enactment which can definitely be addressed by the legislature if it is backed by the proper intent, strong resolve and determined will of right-thinking minds to ameliorate the situation. It must also be borne in mind that the law cannot always be found fault with for the lack of its stringent implementation by the concerned authorities. Therefore, it is the solemn responsibility of all concerned to enforce the law as well as the directions laid down by this Court from time to time in order to infuse the culture of purity in politics and in democracy and foster and nurture an informed citizenry, for ultimately it is the citizenry which decides the fate and course of politics in a nation and thereby ensures that ―”we shall be governed no better than we deserve”, and thus, complete information about the criminal antecedents of the candidates forms the bedrock of wise decision-making and informed choice by the citizenry. Be it clearly stated that informed choice is the cornerstone to have a pure and strong democracy” (Emphases added).

“118. We have issued the aforesaid directions with immense anguish, for the Election Commission cannot deny a candidate to contest on the symbol of a party. A time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation. It is true that false cases are foisted on prospective candidates, but the same can be addressed by the Parliament through appropriate legislation. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism. The country feels agonized when money and muscle power become the supreme power. Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay” (Emphases added).

After expressing all its hopes and aspirations, the judgement ends on a pious note:

“We are sure, the law-making wing of the democracy of this country will take it upon itself to cure the malignancy. We say so as such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it; the sooner the better, before it becomes fatal to democracy. Thus, we part.”

Reality unfolds

The denouement of all the pious hopes started on November 27, 2018, when a contempt petition was filed by one Rambabu Singh Thakur against the then chief election commissioner and several others raising “grave issues regarding the criminalisation of politics in India” and bringing to the attention of the court “a disregard of the directions of a Constitution Bench of this Court in” the judgment on September 25, 2018.

The judgment in this case was announced on February 13, 2020, wherein the court noted that “the political parties offer no explanation as to why candidates with pending criminal cases are selected as candidates in the first place” and issued detailed directions on the way (a) political parties, giving tickets to candidates with criminal cases pending against them, should give reasons for giving tickets to such persons; (b) how parties should publish these explanations in the mass media, including social media; and most importantly, (c) ) “the reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls.”

Where are we now?

It fell to a public-spirited advocate practising in Delhi but originally hailing from Nalanda district of Bihar to take this activity forward. Brajesh Singh filed a contempt petition on November 6, 2020, also against the then chief election commissioner and several others, bringing “to the notice of this Court the flouting of its directions given vide Order dated 13.02.2020”. The contempt petition was based on state assembly elections held in October/November 2020. The judgement of this petition came on August 10, 2021. It is quite amazing to see that the court took another significant step forward but refrained from dealing with the issue properly, for which there is only one way, as we shall see a little later.

First the step forward. The court held eight political parties guilty of contempt of court and fined six of those parties Rs 1 lakh each, and the remaining two Rs 5 lakh each. The cause of the contempt was that the parties had given (a) tickets to persons who had criminal cases pending against them, and (b) flimsy and non-convincing reasons for giving tickets to such persons. Parties fined Rs 1 lakh each were Janata Dal United, Rashtriya Janta Dal, Lok Janshakti Party, Indian National Congress, Bharatiya Janata Party, and the Communist Party of India. Parties fined Rs 5 lakh each were the Communist Party of India (Marxist) and the Nationalist Congress Party.

While fining political parties must be commended, it is worth reflecting on whether the amounts of money levied as fine would (a) have any adverse financial impact on the parties, and (b) the amounts will work as deterrents enough to encourage parties not to indulge in such blatant defiance of the orders of the highest court in the land.

Practicability

While we do commend the court for the act of levying fines on political parties, the practicability of the implementation of the directions of the court, and more importantly, monitoring the implementation, must be given very serious thought. The judgment itself refers to it, almost in passing, when it says that “Arguments have been advanced before us with regard to the practicability of implementation of the direction contained in paragraph 4.4” (Para 30).

Some of the factors that make satisfactory monitoring, even on the part of the Election Commission, extremely difficult, if not impossible, are also described in the piece published in The Wire on October 12, 2018 which has been referred to earlier.

Avoiding the obvious

The following excerpts from the judgment deserve careful reading:

“The nation continues to wait, and is losing patience. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government” (Para 17).

“The Constitution Bench therefore observes that though criminalisation in politics is a bitter manifest truth, which is a termite in the citadel of democracy, the Court cannot make law.” (Para 50).

“In paragraph 107, the Constitution Bench recommends that Parliament bring out a strong law whereby it is mandatory for the political parties to revoke membership of persons against whom charges are framed in heinous and grievous offences and not to set-up such persons in elections.” (Para 51).

“No one can deny that the menace of criminalisation in the Indian political system is growing day by day. Also, no one can deny that for maintaining purity of political system, persons with criminal antecedents and who are involved in criminalisation of political system should not be permitted to be the law-makers” (Para 71).

“This Court, time and again, has appealed to the law-makers of the Country to rise to the occasion and take steps for bringing out necessary amendments so that the involvement of persons with criminal antecedents in polity is prohibited. All these appeals have fallen on the deaf ears. The political parties refuse to wake up from deep slumber” (Para 72).

The reader would recall that very similar sentiments were expressed by the court in its judgment of September 25, 2018, mentioned above, including some pious hopes.

The above statements need to be read with or contrasted with the following:

“… The Constitution Bench after elaborately considering the said issue, held that issuing such a direction would amount to entering into the legislative arena and as such, such a direction could not be issued. In our view, in the teeth of the observations made by the Constitution Bench in paragraph 96, though some suggestions made by Shri Viswanathan are laudable, it will not be possible for us to accede to them” (Para 53).

“The only question is, whether this Court can do so by issuing directions which do not have foundation in the statutory provisions” (Para 71).

“However, in view of the constitutional scheme of separation of powers, though we desire that something urgently requires to be done in the matter, our hands are tied and we cannot transgress into the area reserved for the legislative arm of the State. We can only appeal to the conscience of the law-makers and hope that they will wake up soon and carry out a major surgery for weeding out the malignancy of criminalisation in politics” (Para 72).

At the risk of crossing a Lakshman Rekha, it must be said that it is beyond comprehension that a court which can be so sagacious and perceptive as to write that “The political parties refuse to wake up from deep slumber”, is not able to discern that it, itself, seems to be in deep slumber by repeatedly ignoring a settled principle in law “filling in the gap or vacuum in legislation” which has been very well elaborated in a judgment of this very court, of May 2, 2002.

The last word

Finally, to come back to the announcement of the Election Commission of India that we started with. All that the announcement does is to follow exactly what several judgments of the Supreme Court have ordered. It must, however, be noted that all the judgments referred to (a) do not seem to be on a firm footing as far as implementation is concerned; (b) will be very difficult, if not impossible, to implement; and (c) in the light of (a) and (b), do not, and cannot, achieve the objective of at least reducing, if not completely eliminating the adverse impact of criminality on the political and electoral systems in the country.

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.

राजनीति के अपराधीकरण की पृष्ठभूमि को जानने के लिए बैलेट पेपर के जमाने में जाना होगा. तब बहुत से उम्मीदवार मतदाताओं को डराने-धमकाने के लिए बाहुबलियों का इस्तेमाल करते थे. बाहुबली लोगों को डराने-धमकाने के साथ ही मतदान केंद्र पर लोगों से जबरन किसी खास उम्मीदवार के पक्ष में मत भी डलवाया करते थे. पोलिंग बूथ के स्टाफ को भी ये डराकर रखते थे.

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.

ताकतवर ही सबसे भ्रष्ट …!

हमारे यहां सबसे शक्तिशाली समूह राजनीतिज्ञों का है। भ्रष्टाचार जैसी बीमारी को दूर करने का काम केवल राजनैतिक इच्छाशक्ति से ही हो सकता है। लेकिन सवाल यह है कि आखिर हमारा राजनीतिक सिस्टम इसमें पहल क्यों नहीं करता? इसका जवाब इन आंकड़ों में है : हमारे यहां दागी सांसदों की संख्या जहां 2004 में 43 प्रतिशत थी, वहीं यह 2019 में बढ़कर 43 फीसदी हो गई। इनमें भी सबसे ज्यादा संख्या सत्ताधारी पार्टी में है। हाल ही में बिहार में हुए चुनाव में दागी विधायकों की संख्या में 10 फीसदी की बढ़ोतरी हुई है। 2015 में जहां चुने हुए विधायकों में से 58 फीसदी पर आपराधिक मामले दर्ज थे, वहीं 2020 में यह संख्या बढ़कर 68 फीसदी हो गई। हमारे जनप्रतिनिधियों के दागी होने का मतलब यही है कि जब उनका दामन साफ नहीं होगा तो वे भ्रष्टाचार को दूर करने का प्रयास क्यों करेंगे, क्योंकि व्यवस्था में भ्रष्टाचार ही इन्हें अपने कारनामों को ढंकने मंे मदद करता है।

तो नागरिक क्या कर सकते हैं?

“ग्लोबल करप्शन बैरोमीटर’ रिपोर्ट कहती हैं कि हमारे यहां 46 फीसदी लोगों ने अपने संपर्कों के जरिए अपने काम करवाए। इनमें से अधिकांश काम छोटे-बड़े नेताओं के जरिए ही करवाए जाते हैं। अगर ये नेता मदद नहीं करते तो उस काम के लिए उन्हें रिश्वत देनी पड़ती। यानी यहां लोगों को यह समझने की जरूरत है कि राजनीतिज्ञ इतने शक्तिशाली हैं कि अगर वे चाहें तो वे पूरे सिस्टम को बदल सकते हैं। अब यह आम नागरिकों की जिम्मेदारी है कि वे नेता ही ऐसे चुनेें जिनकी ईमानदारी और निष्ठा तमाम सवालों से परे हो। अगर राजनीति ईमानदार होगी तो नौकरशाही को अपने आप ईमानदार होना होगा। शीर्ष नौकरशाह जब ईमानदार होंगे तो निचले स्तर पर कार्य करने वाले कर्मचारी भ्रष्टाचार करने का साहस नहीं कर पाएंगे। जब नेता ईमानदार होगा, अफसर ईमानदार होंगे, कर्मचारी ईमानदार होंगे तो आम लोगों में भी वे लोग जो अपने गलत काम भी पैसे देकर या जुगाड़ से करवा लेते हैं, उनके लिए यह सबकुछ इतना आसान नहीं रह जाएगा।

लेकिन यह होगा कैसे?

जनता ईमानदार नेता चुनें, यह कहना आसान है, लेकिन करना मुश्किल। इसके लिए हमें कुछ बुनियादी बदलाव करने होंगे। इलेक्टोरल बॉड्स को बंद करके राजनीतिक दलों को होने वाली फंडिंग में पारदर्शिता लानी होगी। आपराधिक रिकॉर्ड वाले लागों को चुनाव का टिकट देने पर रोक लगानी होगी और किसी दागी को टिकट देने पर संबंधित राजनीतिक दल के मुखिया को जिम्मेदार ठहराना होगा। इसके लिए सिविल सोसाइटी का दबाव बनाना होगा और जब भी जरूरत हो, कोर्ट का दरवाजा खटखटाने से भी नहीं पीछे नहीं रहना होगा। इसके लिए मीडिया को भी अहम भूमिका निभानी होगी।

कहां है समस्या?

- कुछ साल पहले एक जाने-माने राजनेता ने कहा था कि चुनावी फंडिंग ही भ्रष्टाचार की सबसे बड़ी गंगोत्री है। इससे निबटने के लिए सरकार इलेक्टोरल बॉन्ड्स लेकर आई, लेकिन इसने तो चुनावी फंडिंग को और भी अस्पष्ट और अपारदर्शी बना दिया है। दरअसल, हमारे राजनीतिज्ञ राजनीतिक फंडिंग में पारदर्शिता बिल्कुल नहीं चाहते। यह बात कुछ कारपोरेट्स हाउसेस को भी रास आती है, क्योंकि इससे वे बड़ी आसानी से राजनीतिक दलों को पैसा दे देते हैं और चुनावों के बाद सरकार से बेजा फायदा उठाते हैं।

- भ्रष्टाचार से निबटने के लिए हमें प्रभावी सीबीआई, सीवीसी और एंटी करप्शन ब्यूरो चाहिए। लेकिन इन सभी विभागों का मूल संगठन यानी पुलिस के बारे में आम धारणा यही है कि यह सबसे भ्रष्ट विभाग है। इसलिए हम पुलिस से और प्रकारांतर में इन तमाम संगठनों से यह उम्मीद नहीं कर सकते कि ये भ्रष्टाचार को मिटाने में कारगर रहेंगे, जब तक कि इनके पीछे राजनीतिक इच्छाशक्ति नहीं होगी।

- सरकारी सेवकों को भी जवाबदेह नहीं बनाया गया है। सरकारी शिक्षक स्कूल नहीं जाते हैं या जाते हैं तो पढ़ाते नहीं। डॉक्टर सरकारी हास्पिटल या प्राथमिक स्वास्थ्य केंद्र नहीं जाते। अस्पतालों में दवाइयां नहीं मिलती। सड़के, जलापूर्ति, बिजली और अन्य बुनियादी सुविधाओं की स्थिति अक्सर खराब मिलती है। और दुर्भाग्य से किसी को भी खराब काम करने या जिम्मेदारी न निभाने पर नौकरी से नहीं निकाला जाता। समस्या यह है कि अच्छा काम करने वाले को पुरस्कार भी नहीं मिलता। तो अच्छा काम करने की प्रेरणा भी नहीं मिलती।

केरल और बिहार के सबक …

एक रिपोर्ट के अनुसर केरल में केवल 10 फीसदी नागरिकों को अपने काम करवाने के लिए रिश्वत देनी पड़ी, जबकि बिहार में 75 फीसदी लोगों को। आखिर ऐसा क्यों है, इसको लेकर तो व्यापक अध्ययन की जरूरत है, लेकिन इसमें कहीं न कहीं शिक्षा और साक्षरता का योगदान तो नजर आता ही है। केरल भारत का सबसे साक्षर प्रदेश है, जबकि बिहार का नाम साक्षरता के मामले में नीचे से शीर्ष के राज्यों में शुमार होता है।

Originally published in Dainik Bhaskar.

“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.