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

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

A Big Electoral Reform

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

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

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

Perception Matters

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

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

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

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

When Executive Discretion Ends

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

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

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

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

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

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.

How would you like to play a game in which one of the players can change the rules at will? If you point out it is not a fair game, the answer comes, ‘but the playing field is level!’ This is not altogether an imaginary situation about Indian elections, indeed as made clear by a press release dated December 30, 2021, which said that the State Bank of India (SBI) had been authorised to issue and encash electoral bonds from January 1 to 10, 2022. Elections are round the corner in five states and preparations for the next General Election are already underway.

Electoral bonds were first announced by the then Finance Minister (FM) in his budget speech on February 1, 2017, as an innovation to bring “transparency in electoral funding”. The same afternoon, the FM, in a media interaction, said, “These bonds will be bearer in character to keep the donor anonymous.” The scheme was notified on January 2, 2018. Since then, ‘anonymous’ funding and a ‘transparent’ election process has continued to co-exist peacefully in this land of democracy.

The chronicle of the crime was foretold in full public view, almost like that famous Gabriel Garcia Marquez novel. The only difference, it was not magic reality, a la Marquez, but Indian electoral reality.

The government decided to issue electoral bonds as part of a ‘Money Bill’. This was unconstitutional as electoral bonds are not covered by the definition of a ‘Money Bill’ given in the Constitution.

The Reserve Bank of India (RBI), the sole authority to issue currency (bill of exchange, promissory note or engagement for the payment of money payable to bearer on demand) under Section 31 of the RBI Act, advised against the electoral bond scheme for “encouraging money laundering”.

The RBI was approached four days before the announcement of electoral bonds, “requesting early comments”, not agreement. And, the RBI’s views were overruled by the Finance Ministry saying, “RBI has not understood the proposed mechanism of… for the purpose of keeping the identity of the donor secret…”, and that “We may go ahead… because… the Finance Bill was already printed.” Convincing argument?

The Election Commission of India (ECI), when asked for its reaction to the proposed scheme, responded that “it will have a serious impact on transparency aspect of political finance/funding of political parties… This is a retrograde step as far as transparency of donations is concerned.” It further clarified that this would “lead to increased use of black money for political funding through shell companies” as “this opens up the possibility of shell companies being set up solely for the purpose of making donations to political parties with no other business of consequence having disbursable profits.”

And yet, after a series of meetings, a Secretary in the Finance Ministry recorded on file that “it is my understanding that the (Election) Commission was reasonably satisfied about the electoral bonds being a fair and more transparent system of political donations” although there is nothing on record to show that the claim was true. On the contrary, the ECI filed an affidavit in the Supreme Court in March 2019 saying that electoral bonds, in their current form, should be scrapped.

What is instead on record, however, is a question asked by a member of the Rajya Sabha, Mohammad Nadimul Haque, in the Winter Session of Parliament: “Had the Election Commission of India raised concerns about electoral bonds?” The Minister of State for Finance, P Radhakrishnan, flatly replied that the government had not received “any concerns from the Election Commission on the issue of electoral bearer bonds”.

As notified, the funding window was to be opened only four times a year, ten-day window each time but “an additional period of 30 days (could be allowed) in the year of General Elections to the House of People.” Despite this clear stipulation of “General Election to the House of People”, the Prime Minister’s Office ordered that the scheme be opened for state assembly elections, breaking a rule that it had made itself, soon to be followed by another rule broken by the Finance Ministry when it ordered the SBI to encash bonds worth Rs 10 crore, which had already expired crossing the 15-day validity period.

The anonymity of the donor of electoral bond was protected in so far as the SBI is the only bank authorised to sell electoral bonds and that it will collect “Know Your Customer” (KYC) particulars of the buyers of electoral bonds, but not share this information with anyone unless demanded by a court order.

“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.

2014 के लोक सभा चुनाव में एडीआर द्वारा उम्मीदवारों के हलफनामों के विश्लेषण के अध्ययन से यह ज्ञात हुआ कि 113 सांसदों की संपत्ति में सौ गुणा, 26 सांसदों की संपत्ति में पांच सौ गुणा वृद्धि हुई है। इनमें 113 सांसदों ने अपना पेशा बतौर समाज सेवा, राजनीति एवं सामाजिक कार्य बताया था। आश्रितों में आठ की पत्नियां गृहिणी थी, लेकिन उनकी संपत्ति करोड़ों में थी। जाहिर है ये सभी आय के स्रोत नहीं हो सकते है। बिहार इलेक्शन वॉच के अध्ययन का भी हवाला दिया जा सकता है कि पिछले विधानसभा में निर्वाचित विधायकों की संपत्ति से उनके आश्रितों की संपत्ति पचास प्रतिशत से अधिक थी। 2015 के विधानसभा में यह भी देखने को मिला कि 43 विधानसभा सदस्यों की पत्नियों की संपत्ति में पचास प्रतिशत से अधिक की वृद्धि देखी गयी। एक विधायक की संपत्ति दो लाख थी वही उनके आश्रित एक करोड़ के स्वामी थे। यानी आश्रितों की संपत्ति में 97.87 प्रतिशत की वृद्धि देखी गई। इस क्रम में 43 ऐसे माननीय है जिनकी संपत्ति अपने आश्रितों से भी कम है यानी समाज सेवा के नाम पर राजनीति कर रहे विधानसभा सदस्यों को अपने आश्रितों पर ही निर्भर रहना पड़ता है। याचिका कर्ता का यह कहना है कि अब जनता को अपने प्रतिनिधियों को पकड़ना आसान हो जाएगा कि उनकी संपत्ति पिछले कुछ सालों में कितनी बढ़ गई है और उसके आय के जायज स्रोत क्या है ? मतदाताओं को यह जानने का अधिकार है कि आखिर इनकी संपत्ति दिन – दूनी रात चौगुनी कैसे बढ़ रही है। अदालत के आदेश के तहत उम्मीदवारों को न सिर्फ अपनी आय के स्रोत बताने होंगे बल्कि अपनी पत्नी, बेटा, बहु, बेटी दामाद की आय के साथ उनके स्रोत की भी घोषणा करनी होगी।  सर्वविदित है कि बेहिसाब संपत्ति की घोषणा करने के साथ ही यह गोपनीय रहा करता था कि उनकी बेहिसाब संपत्ति का आखिर स्रोत क्या है ? गौर करने वाली बात है कि कमोबेश चुनावों में सभी उम्मीदवारों के द्वारा समाज सेवा या राजनीति को बतौर पेशा बताया जाता है। आखिर राजनीति या समाज सेवा कोई पेशा नहीं होता तो फिर उनकी अकूत संपत्ति का राज आमलोगों को समझ में नहीं आ पाता है ? किसी भी सांसद या विधायक के आय से अधिक संपत्ति माफिया राज को रास्ता माना जाता है। जिसका असर राजनेताओं के भ्रष्टाचार पर पड़ता है।

ऐसा देखा जा रहा है कि अपने परिजनों के नाम पर ऐसे राजनेता कई पीढ़ियों के लिए बेहिसाब संपत्ति बना लेते है वही दूसरी ओर गरीब जनता की सेहत में सालों कोई परिवर्तन नहीं आ पाता। इन माननीयों की संपत्ति और आय के अंर्तसंबन्धों को समझने के लिए 2015 बिहार विधानसभा चुनाव में 160 ऐसे उम्मीदवारों की आय का विश्लेषण किया गया जिनकी 2010 में संपत्ति 84.41 लाख थी, लेकिन 2015 में उनकी संपत्ति में औसतन 199 प्रतिशत वृद्धि देखी गयी यानि औसतन 2.57 लाख। इन पांच सालों में 1.71 करोड़ वृद्धि हुई। इनमें पांच ऐसे नाम है जिनकी संपत्ति 553 प्रतिशत, 480 प्रतिशत, 354 प्रतिशत, 279 प्रतिशत और 210 प्रतिशत तक वृद्धि देखी गयी। विधानसभा के साथ लोकसभा, राज्य सभा एवं प्रदेश के सर्वोच्च पदों पर आसीन राजनेताओं की स्थिति कमोबेश समान ही देखी गयी है।

मूल रूप से प्रभात खबर में प्रकाशित!

The exponential rise of Facebook itself, which grew from 40 million to 160 million users in the US in those four years, was crucial to the success of the 2012 election. Of course, television was more important, but the use of Facebook data in electoral campaigns was fast catching up. That was eight years ago. Today, social media-based campaigns are on par, if not surging ahead, in terms of efficacy in comparison to television. Today, Facebook also owns WhatsApp and Instagram, making it the single largest repository of user data owned in the private sector.

After the 2016 elections, the role of Facebook came under increasing scrutiny. Was it biasing electoral outcomes? President Trump has accused it of creating prejudice, which the company has denied. Its co-founder Mark Zuckerberg has said that his company offers a platform to all people to voice their ideas. It does not censor free speech.

It is a platform for civic engagement between voters and candidates. It remains non-partisan. It claims to remain a politically agnostic tool. But Facebook faced severe criticism that it allowed Russian-funded advertisements, with fake information, to influence voters.

In fact, increasingly, its role in catering to politically well-funded campaigns has been in the spotlight. Does this information get transparently disclosed? Does the company take care of removing fake information or misinformation? Actually, as per Bloomberg reports, since 2011 Facebook has been asking the US Federal Election Commission to exempt it from disclosing revenue from political ads. This would put it in a more exclusive situation as compared to television and broadcast media.

In general, the company will push back any government request about user data, to maintain users’ privacy, unless it is legally warranted. But then, its close work with political party campaigns means its employees get close to what can be called electioneering. Facebook helps elected officials connect to citizens, through live streaming, participative interactions and, in that process, helps governance. But its proximity to governments, combined with its enormous reach, power and data make it a formidable force in electoral democracies.

Added to all this, the phenomenon of hate speech, organised harassment and trolling. There are enough instances when bigotry and hate speech have been spread through social media. There have been cases of lynching and violence which arose out of messages circulating on social media. It is a company like Facebook (which also owns WhatsApp) which decides what is trolling or harassment and what is protected free speech. It has to draw the thin line between hate speech and free speech. But the company is not the judiciary, nor is it subject to broadcast licensing. So, what if it tilts, even unwittingly, to one side? Aer all, the incumbent candidates and governments can be lucrative ad buyers, and could potentially influence Facebook’s internal policing decisions. It does employ sophisticated Artificial Intelligence tools to detect fake news or hate speech, but that still may not be good enough.

India has the world’s largest number of Facebook and WhatsApp, and possibly Instagram, users as well. In China, these are banned. The reach, influence and potential power of social media can only be imagined. Prime Minister Modi has the largest number of followers on a variety of social media platforms, including Facebook. He has leveraged the medium to a great extent, and established direct connections with citizens in a way which is a break from the olden days or radio or television. The implication for electoral politics is obvious.

A few years ago, the Chief Election Commissioner of India said that in earlier days, the EC had to worry about the influence of two “M”s. These were money and muscle power. But increasingly there is a third “M” which is “media”. By which he meant the menace of paid news, fake news, misinformation and disinformation. He was mostly referring to print and electronic media, which are all licensed businesses. The EC’s job is to ensure free and fair election without the undue influence of money, muscle and media power. But to this third M, we have to include social media. The recent revelation in a Wall Street Journal article on the role of Facebook in India’s electoral politics, and in being uneven in its treatment of curbing hate speech or trolling, to help a particular political party, raises many questions. How should we regulate this immense power?

Even in the domain outside electoral politics, the CEOs of the big four, i.e. Facebook, Google, Amazon and Apple were recently summoned to Washington to appear before a Congressional hearing. This was to grill them about their growing clout in stifling competition in the marketplace. There is a demand that some anti-trust, i.e. anti-monopoly, measures be introduced to curb their power.

Similarly, in the domain of elections, too, messaging, networking and microblogging social media platforms have to be regulated to curb misuse and also partisanship. This is a huge challenge for the Election Commission. Luckily, there is evidence that voters themselves, are becoming sceptical of fake news and paid news. Ultimately, an enlightened citizenry, or voters who invest time and effort in educating themselves, and don’t remain passive consumers of social media content, are the best protection and guarantee of a free and fair election.

The article was originally published on Deccan Herald.

Image Credit: Reuters

After this prototype had been tested by the ECI to its satisfaction, it was demonstrated to representatives of various political parties on August 5, 1980. Following a broad consensus, EVMs were first used in the North Paravur Assembly Constituency in Kerala in May 1982 in 50 out of 85 polling stations.

In the result, announced on May 20, 1982, the winner was declared to have secured 30,450 votes and the runner-up 30,327 votes. The difference between the two was only 123 votes. Of the 30,450 votes that the winner got, 11,268 were cast manually, “according to the conventional method provided in the Conduct of Election Rules, 1961”, using ballot papers and ballot boxes, and 19,182 votes were cast through EVMs. The runner-up challenged the result in court and the case finally landed up in the Supreme Court.

The challenge was based on the argument that the Conduct of Election Rules, 1961, specifically mentioned that “ballot papers” will be used in “voting by ballot”, and describes the “Form of ballot paper” as “Every ballot paper shall have a counterfoil attached thereto, and the said ballot paper and the counterfoil shall be in such form, and the particulars therein shall be in such language or languages, as the Election Commission may direct,” and didn’t mention any other kind of voting. Therefore, voting by mechanical process, such as EVMs, was not permissible. The Supreme Court “set aside the election of the respondent with respect to the 50 polling stations where the voting machines were used” and directed “a repoll to be held in these 50 polling stations”.

Subsequently, the Representation of the People Act, 1951, was amended by Parliament in December 1988, empowering the ECI to use voting machines. A general consensus was finally reached in 1998, and EVMs were used in 25 legislative assembly constituencies across the three states of Madhya Pradesh, Rajasthan and Delhi. This restricted usage was gradually expanded till the final frontier was crossed in 2004 when more than 100,000 EVMs were used in all 543 parliamentary constituencies in the country in the general election to the 2004 Lok Sabha.

EVMs have been embroiled in some controversy or the other almost since their introduction. The first really serious objection came up in 2009 when LK Advani expressed doubts on the credibility and reliability of EVMs and demanded a return to paper ballots. The ECI countered these views saying that it was “absolutely satisfied that EVMs couldn’t be manipulated” and that a technical committee headed by former IIT Madras director P.V. Indiresan had been set up to ensure this. The Indiresan Committee subsequently certified that the machines were fully reliable.

In 2010, GVL Narasimha Rao wrote a book titled, Democracy At Risk! Can We Trust Our Electronic Voting Machines? Despite continued criticism from diverse quarters, one fact stood out: every political party criticized EVMs when it lost an election but the same party seemed quite satisfied when it won. This was confirmed in a series of assembly elections when different parties won or lost in various states. Criticism continued, and so did the use of EVMs.

In 2010, at an all-party meeting held in the ECI, a proposal to introduce a Voter Verifiable Paper Audit Trail (VVPAT) for further transparency and verifiability in the poll process came up. The Technical Expert Committee on EVMs, appointed by the ECI, in consultation with the manufacturers of EVMs, ECIL, Hyderabad and Bharat Electronics Ltd (BEL), Bengaluru, political parties and members of civil society, oversaw the development of a prototype in 2011. A large number of trials and field tests were done followed by changes in the design, and a second version of the VVPAT prototype was made. It was again subjected to rigorous tests and the Technical Expert Committee recommended use of this version of VVPATs on February 19, 2013.

The Conduct of Election Rules, 1961, were amended on August 14, 2013, enabling the Commission to use VVPATs with EVMs. VVPATs were used with EVMs for the first time in a by-election in 51-Noksen (ST) assembly constituency in Nagaland. Thereafter, VVPATs have been used progressively in various elections.

Doubts continue to be expressed about both and VVPATs. As far as the EVMs are concerned, it can be said with a fair degree of confidence that they can certainly malfunction, like any mechanical-electrical equipment, but the possibility of their being manipulated seems very farfetched. The VVPATs are, however, another affair.

Just before the 2019 Lok Sabha elections, 21 Opposition parties petitioned the Supreme Court that at least 50 percent of VVPAT slips or 125 polling booths in each constituency be counted for verification, instead of one EVM as the ECI was planning to do. The Supreme Court increased the number to five instead of one.

During the 2019 Lok Sabha elections, held in seven phases from April 11 to May 19, 2019, the ECI launched a new initiative in the form of a new application called the “My Voter Turnout App” (later replaced with “Voter Turnout App”) which “is used to display real-time voter turnout details of each Assembly Constituency/Parliamentary Constituency including the number of men, women and third gender”. As the election progressed through various phases, the data displayed by the app, for constituencies in which the polling process was over, seemed to change from one day to the next. In addition, serious discrepancies were found between the number of votes polled and the number of votes counted.

When this was brought to the attention of the ECI, it issued a clarification via a press note on June 1, 2019, saying inter alia:

“Also, Index Card in use since last over five decades, is prepared by the Returning Officer to furnish the voting data (including postal ballot data), polled and counted, after the declaration of the result, which becomes the final authenticated data for all purposes including analysis and research… For General Elections 2019, Commission has already directed all the Returning Officers on 26 March 2019 to send the Index Cards within 15 days of the declaration of the Result.”

“In earlier elections, it used to take months to collect such authenticated election data from all the ROs. Even in 2014, it took between two to three months after the declaration of results to collect and collate such data in authenticated form. Due to the innovative IT initiatives taken by the Commission this time, the final data on votes counted has been made available within a few days of the declaration of results.”

A simple reading of the above excerpts shows clearly that “the final authenticated data for all purposes including analysis and research,” is prepared and is available only “after the declaration of the Result.” It seems very strange, actually defies imagination, that the result is declared before the authenticated data is available!

Since satisfactory explanations were not available, these issues are now in the Supreme Court. It is hoped that the Court will be able to get these resolved so that people’s confidence in the electoral process is ensured.

This article was originally published on Civil Society Online.

The Supreme Court this week came down heavily on criminalisation of politics. It asked political parties to explain why they need to give tickets to people with criminal backgrounds. The court also asked them to publicise widely, through websites and social media, the impressive “résumé” of these criminal elements. Let the voters know. The judges also asked whether winnability alone counts in ticket giving, and should parties not be doing something to clean the polity. The latest order is actually a reiteration of a similar one passed in 2018, asking parties to give wide publicity to criminally tainted candidates through newspapers. Alas, the top court stopped short of disqualifying tainted candidates. There is no law in the land that prevents criminally charged persons from standing for elections. In the absence of such a law, which seems unlikely to be passed by Parliament, the court could step in, and put a disqualification criteria.

The right to stand for elections is not a fundamental right. So if we put some restriction on who can and cannot stand, it is not like we are suppressing their freedom of speech or right to livelihood. All we have is a 1951law on who is qualified to stand for elections to Parliament and assemblies. That law states a minimum age requirement, and that you must not be convicted of certain crimes (typically those that attract minimum two years of jail). But since our judicial system works slowly, and a conviction in a lower court can be appealed in a higher court, and the process can continue ad infinitum, technically you are innocent until proven guilty by the highest authority. So this law is not able to prevent any criminally tainted person from standing for elections. The unfortunate trend is that in the past two decades the number of criminally tainted elected lawmakers has increased. In 2004, 24 per cent of MPs had pending criminal cases. This went up to 30 per cent in 2009, to 34 in 2014 and is now a whopping 43 per cent in the current Lok Sabha. The upward trend is seen in many assemblies as well. The stats are dismal and depressing.

But there is a predictable howl from politicians. They say most of these cases are frivolous or false charges. And that the ruling party often resorts to filing cases against leaders of the opposition. And the cycle continues with tit for tat. It is as if we have widespread practice of the politics of vendetta. If that is so, then it is the parties themselves that can put a stop to it. Moreover, if indeed a person is innocent and reeling under false charges, then he or she can clear their name in the court of law, get acquitted and then stand for election. Just wait till your name gets cleared. Maybe institute a fast track court for such cases. Surely a nation of more than a billion people should be able to find a few thousand clean, untainted candidates? But there seems to be no progress on this front, as criminalisation just keeps getting worse. In fact in nearly 40 per cent of the constituencies, there are three or more tainted candidates. So voters have no choice but to vote for a criminal candidate. That’s why we need an activist Supreme Court that can introduce a disqualification clause. At least those charged with heinous crimes such as murder, rape, kidnap and dacoity should be prohibited. Some states like Rajasthan tried to disqualify candidates who did not have some minimum education. This was for municipal and panchayat elections. Some states already disqualify you for a sarpanch post if you have more than two kids. These conditions are much more anti-democratic than disqualifying on the basis of criminal record.

While we wait for voters to reject criminally tainted candidates (i.e. the demand side pressure), let us also pass laws to disqualify at least those who have very serious charges against them (i.e. supply side pressure). Only then can we make progress on cleansing politics. Otherwise, our record will keep getting murky (the latest Delhi state election outcome is no exception), and our standing as a robust and vibrant democracy will keep getting embarrassing.

The article was originally published on Mumbai Mirror.

The code allows the social media platforms to implement policies and processes which assure access to information on electoral matters which are appropriate while keeping in mind the principle of freedom of expression.¹

With the increasing flow of fake news, paid news and hate speech to elevate the political propaganda, it becomes paramount to monitor political activities on social media. Following are a few measures taken by ECI and some social media giants:

• ECI made it mandatory for all the candidates contesting in 2019 elections to mention their social media handles in their affidavit. They also made it compulsory for all political social media advertisements to pre-certify from the Media Certification and Monitoring Committees (MCMCs) in place at the district and state levels.

• Facebook partnered with third-parties for fact-check and made their Ad Library public which displays all active and inactive ads around social issues, elections and politics to bring ad transparency. Similar ad library measure has been also opted by Twitter and Google.

• Google went one step ahead and hosted training sessions for Indian journalists on online verification and fact-checking, journalist digital safety and security, YouTube for elections coverage and data visualization for elections.

• Now, Twitter only allows political campaigning ads to run via promoted tweets and in-stream video ads. To run political ads, the political advertiser has to obtain Twitter Certification.²

• In a white paper called Stopping Abuse released by WhatsApp in early 2019, the company revealed that they deleted around 2 million accounts to tackle fake news. ³ These accounts have bulk or automated behaviour which means they send high volumes of messages. WhatsApp also launched CheckPoint Tipline which allows its users to submit suspicious content to know its authenticity. In 2 months of CheckPoint’s launch, it received about 75,000 authentication requests from the users.⁴

• ECI together with social media platforms have developed a notification mechanism. The electoral body notifies about the violation under Section 126 of the Representation of the People Act, and on other matters. Post which, an action is taken on such violations within three hours.

• During General Elections 2019, Twitter deleted around 220 tweets by May, Facebook deleted about 702 pages, accounts and groups (as reported on 01 April 2019).⁵ About 60 Facebook political advertisement posts were found during the silent period.⁶ These contents were taken down on the grounds of violation of Code of Ethics, communal hate, junk news and bypassing anti-spam.⁷

With this as the background, we land up with some important questions like how far we have reached with the above-listed regulation strategies. Are the implemented strategies enough to tackle the spread of fake news, hate speech and paid news for a country like India? Are voters even aware about the above-listed regulation strategies? How gravely have social media platforms affected General Elections 2019? Did the impact of social media decrease in this General Elections in comparison to General Elections 2014?

References:

1. https://www.thehindu.com/elections/lok-sabha-2019/social-media-platforms-present-voluntary-code-of-ethics/article26593315.ece
2. https://www.medianama.com/2019/03/223-election-commission-platforms-india-take-down-content/
3. https://www.medianama.com/2019/02/223-whatsapp-deleted-2-million-accounts/
4. https://www.firstpost.com/tech/news-analysis/whatsapps-tipline-feature-has-received-over-75000-authentication-requests-report-6692761.html
5. https://newsroom.fb.com/news/2019/04/cib-and-spam-from-india-pakistan/
6. https://economictimes.indiatimes.com/news/elections/lok-sabha/india/facebook-removes-574-posts-twitter-deletes-49-accounts-during-first-three-phases/articleshow/69034967.cms
7. Accountability Report by Internet Freedom Foundation