Once a constitutional safeguard, the ECI now risks enabling the erosion of India’s democratic norms through partisanship and opacity.
The Election Commission of India (ECI) was set up on January 25, 1950, one day before the country became a Republic. So, historically, the ECI predates the Republic of India, which is an important factoid that many of us do not know.
The poll body was set up under Article 324 of the Constitution, which states that there shall be an Election Commission, which will be responsible for conducting elections to both houses of Parliament, the State Assemblies, and elections to the offices of President and Vice President.
Article 324 vests the Election Commission with plenary powers to do whatever is required for conducting elections. However, the ECI’s powers are circumscribed by two kinds of checks. The first is laws made by Parliament—the Representation of the People Act, 1951; the Conduct of Election Rules, 1961, etc. The second is judgements passed by the Supreme Court. In between these two boundaries, the Commission has vast powers and complete freedom of action.
Now, Article 324 states that the Election Commission shall consist of a Chief Election Commissioner (CEC) and such number of other Election Commissioners (ECs), if any, as the President may from time to time fix. Initially, there used to be only the CECs and no ECs.
Sukumar Sen was the first CEC. Under him, the Commission did path-breaking work. In the first election, which happened in 1951-52, the literacy levels in India were very low. The majority of the people could not read the names of either the political parties or the candidates. The ECI came up with the innovative idea of assigning symbols to political parties and candidates.
Facilitating democracy
One of the basic duties of the ECI is to assist and facilitate voters to exercise their right to vote. It has come up with innovations to make it easier for people to vote. We have all heard stories about polling booths being set up in remote areas, sometimes for only one voter.
In the early years after Independence, there was one dominant political party: the Congress. Electoral competition was not very intense. Therefore, the ECI’s role was not under much scrutiny. Gradually, as electoral competition became more intense, the work of the ECI came into sharper focus. It was during this period that T. N. Seshan came to be appointed as the CEC. He took some drastic steps to make the electoral process more robust and transparent. Some of these steps were not liked by the government of that time. The result was that the government appointed two other Election Commissioners to check the unbridled authority being exercised by Seshan.
So, from a single-member Commission, the ECI became a three-member Commission. This transition was not smooth, though. First, the two Election Commissioners were removed, and it became a one-member Commission again. This was followed by litigation and washing of dirty linen in public. Finally, once again, the ECI had two more Commissioners besides the CEC.
Since then, the ECI has been a three-member Commission. The CEC is supposed to be first amongst equals, because all three have the same powers, although the CEC enjoys a higher level of Constitutional protection compared to the ECs.
Shifts in behaviour
We have had some good CECs and ECs. Some were not so good. But by and large, most of them were non-partisan. Over time, somewhere around 2018, the general behaviour of the ECI seemed to change. It became unresponsive to suggestions, ideas, and queries.
There was a series of appointments to the ECI which did not seem to be above board. One began to get the impression that the system was being manipulated. Then, in August 2020, Ashok Lavasa resigned as Election Commissioner after having dissented from some of the Commission’s decisions. That incident made it clear that all was not right in the Commission.
During the Lok Sabha election of 2019, the ECI’s behaviour in terms of sharing information with regard to the counting of votes became very opaque. During the counting of votes, the Commission used to release, on its website, figures of votes counted and votes cast. There were, however, discrepancies in the number of votes polled and the votes counted. This was brought to the notice of the ECI. However, they stopped putting that data online.
The ECI issued a press note in which they tried to convey that they were doing a good job. That press note had one very odd sentence. It stated that the confirmed, authenticated results would be available a couple of weeks after the declaration of the results. That is when we first filed our petition against the ECI with regard to the 2019 election. We did not say there was anything wrong with the result. We requested that the process of counting and declaring the result be made more robust and transparent. As a part of that petition, we also said that Form 17C (which contains the number of eligible voters in a polling station and the total number of votes recorded per EVM, etc) should be made available to the people at large, and it should be put on the ECI website. That case is still going on.
In the run-up to the Lok Sabha election in 2024, we went to the court again with a plea that—since the election was coming up—the case should be decided soon. But nothing happened. After the 2024 election, we found in the data put out by the ECI that the number of votes polled and the number of votes counted in the EVMs did not match in 538 constituencies. That is, it matched only in five constituencies. The Commission has to this day not given any clear explanation for this.
The Commission has implemented the Model Code of Conduct selectively. For some parties and candidates, it has been more lenient than for others. The Commission did not act against leaders of the ruling party for invoking the armed forces in their election speeches in the Lok Sabha election of 2019. There have also been problems in the declaration of the dates of elections. Several such things happened, which showed inconsistency of behaviour on part of the ECI. Whenever it was pointed out to them, they did not respond.
Over time, we felt this may have to do with the appointment of the CEC and the ECs. Article 324(2) states that the CEC will be appointed by the President of India following a law to be made by Parliament. But Parliament had never made this law, and successive governments kept appointing ECs. We filed a case in the Supreme Court regarding the process of appointing CECs and ECs. A five-judge Constitution bench headed by Justice K. M. Joseph passed a very comprehensive judgement in March 2023, in which it spent almost 200 pages to explain why the CEC and the ECs should not be dependent on any other authority in the country, including the government.
The court gave two directions. One was that Parliament should make a law as required by the Constitution as soon as possible. The second direction was that till the law is made, the appointment of CEC and ECs should be made by the President based on the recommendation given by a committee consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India (CJI).
Within a few months of the judgement being passed, Parliament made a law which ignored the spirit of the judgement. According to the law, the committee would consist of the Prime Minister, the Leader of the Opposition and, instead of the CJI, another Minister to be nominated by the Prime Minister. This brought the situation back to square one as the government, by a majority of two to one, would make these appointments.
Interestingly, while that case was being heard, an Election Commissioner was appointed. The Supreme Court called for the file pertaining to the appointment. They said they were mystified that the appointment was made at lightning speed, within 24 hours. But the government was unfazed. We have challenged this law in the Supreme Court, saying it is unconstitutional. Our petition is yet to be heard.
In the Lok Sabha election in 2024, and then in the State elections in Maharashtra and Haryana, many irregularities were noticed. A lot of discussion has taken place on this, and the issues have been raised with the ECI. People have approached the Supreme Court, which has consistently taken the view that since the ECI is a Constitutional authority, we should take what it says on face value. The evidence on the ground, however, shows that the EC’s handbooks say one thing and altogether something else happens on the ground.
Over time, dissatisfaction with the inconsistent behaviour of the ECI seems to have snowballed. It came to a head when, on June 24, the Commission announced it would undertake a Special Intensive Revision (SIR) of the electoral roll in Bihar, which is problematic for so many reasons. More than 65 lakh people have been excluded from the draft electoral roll. In the middle of floods, a vast majority of Bihar’s voters have been forced to procure documents to prove they are Indian citizens.
More recently, Congress leader Rahul Gandhi came up with the revelation that in one Assembly constituency in Bengaluru, various irregularities happened during the electoral roll preparation and then during voting in the 2024 Lok Sabha election. All this seems to be culminating in a kind of groundswell of mistrust in the ECI. The poll body’s integrity and neutrality are under a cloud.
This is a worrying and sad development because the electoral process is at the very heart of a democracy. If the electoral process is not trusted by the people, then there is a grave risk of people losing faith in democracy. If the citizenry of India becomes disillusioned with democracy, that would be a very grave blow to democracy, not only in India but also worldwide. Therefore, it is imperative that the entire electoral system—from the appointment of CEC and ECs down to the last detail of what happens on the ground—is re-examined in great depth and set right.
Now, the question arises, who will do this? Sadly, the general approach and attitude of our political parties is also very suspect. All political parties seem to be interested in their narrow, partisan self-interest. Part of the reason is that the parties are not internally democratic. This is a fatal flaw in our democracy. Parties may claim to be democratic, but it is known to all that no party is truly democratic in its internal functioning. The rubber hits the road when it comes to the choice of candidates for contesting elections. This process is totally at the whims and fancies of the leaders of these parties, some of whom are called the high command or supremo.
Therefore, our political parties are structurally and philosophically not believers in democracy, because if they were, they would be democratic themselves. So, when they contest for the national election or State elections, they are trying to find every possible way to get elected without worrying about democratic norms and principles. And the ECI has, over the years, not done anything in this regard. This is a very basic defect in our democracy, which needs to be corrected. One hopes that this is corrected because if political parties become truly democratic from their base upwards, democracy in the country will automatically get corrected.
The article was originally published in The Frontline.