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Election Commission’s Partisanship Does Not Inspire Confidence About Counting Day

The ECI is taking cover behind “one of the laziest judgments” of the Supreme Court and is indulging in concealment that could seriously impact the integrity of the 2024 election outcome. 
The Election Commissioners. In the background are BJP leaders.

As India’s electoral process draws to a close, there is some public apprehension over the infallibility of the electoral system. Doubts have arisen both because of the ruling party’s attempts to skew the playing field using money power and executive action, the length of the election process – 80 days, starting from 16 March, 2024 – and the way the Election Commission of India (ECI) has been functioning.

My colleague Avay Shukla puts it in a succinct manner: 

“In one of the laziest judgments delivered in recent times (End-to-End verifiability of EVM voting/counting), the Hon’ble judges premised their order on a complete faith in the Election Commission and its impartiality. How wrong they were is being proved on a daily basis. For the present Election Commission is the most deplorable, partisan and incompetent one we have had since 1947. It is as transparent as a block of granite, as communicative as a Trappist monk with a vow of silence, and as straight as a corkscrew. It takes no action on hate speeches, allows a communal video to be shown for four days before taking it down just hours before polling, it is petrified of even taking the Prime Minister’s name, let alone calling him out for persistent anti-Muslim baiting, its “notices” are targeted mainly at the Opposition parties, it changes, without any explanation, the practice of revealing polling numbers instead of just percentages: it takes days to reveal even this information in the age of “digital India”! … The credibility of this Commission has hit rock bottom but it continues to dig deeper every day. All of us knew this, but apparently the Hon’ble judges did not…. I fear the nation may pay a huge price for this indefensible misjudgment of the Commission’s character and intentions. The real mischief will happen on counting day.”

In his 2023 paper, “Democratic Backsliding in the World’s Largest Democracy” the 2019 general election, scholar Sabyasachi Das, formerly of Ashoka University, says that electoral manipulation can take place at the stage of voter registration (registration manipulation) or at the time of voting or counting (turnout manipulation). 

At the time of voter registration, manipulation is done in the form of targeted deletion of names of voters who are unlikely to vote for the incumbent party. At the time of voting, polling officers can strategically discriminate against registered voters who are likely to vote against the Bharatiya Janata Party (BJP). Manipulation can take place at the time of counting of votes due to confusion created by variations in voter turnout data and percentages as well as weak or prejudiced monitoring by counting observers appointed by the ECI who are from the state civil service, as opposed to the Indian Administrative Service (IAS), especially those coming from BJP-ruled states who are pliable.

Also read: ‘No Legal Mandate to Release Voter Turnout Data from Form 17C’: EC to Supreme Court

Das’s paper concludes thus

“The paper documents irregularities in India’s 2019 general election data by showing that the incumbent party won a disproportionate share of close elections, especially in states ruled by the party…  I examine two leading explanations of the patterns – namely, the party’s superior campaigning strategy and electoral manipulation. I find evidence consistent with manipulation, while it is not supportive of the campaigning hypothesis….  BJP wins in closely contested PCs varies from 9-18. Nonetheless, electoral fraud even in a single constituency would imply that such manipulations by incumbent parties are possible. In view of the exceptional integrity of India’s electoral institution in its past, the paper presents a worrying development with potentially far-reaching consequences for the world’s largest democracy.”

Das was ousted by Ashoka University but in the ongoing election, his findings are becoming truer and electoral manipulation is being pursued in a systematic manner. Let us see how.

Registration manipulation: There have been innumerable cases in this category. The root cause for this is Rule 18 of the Registration of Electors Rules, 1960, which allows for deletion of voter data without notice or an opportunity to be heard by the affected citizen. Since this rule was being widely misused, I along with two of my colleagues filed a writ petition in the Supreme Court requesting that this rule be declared unconstitutional. But taking note of the ECI’s submission that voters are to be duly intimated before deleting their names from the electoral rolls, the Supreme Court in August 2023 disposed of the petition without any ruling. 

Also read: Why Election Commission Not Giving Absolute Voter Numbers Matters

Based on a mere letter issued by the ECI in 2013, the Supreme Court allowed an unconstitutional rule which violates the fundamental right of citizens to remain on the statute book. Sadly, who bothers about ‘letters’ when laws and rules are being flouted with impunity? So, taking advantage of the court ruling, ‘registration manipulation’ was rampant in the run up to the 2024 election. 

Turnout manipulation: In this election, voting and counting manipulation has been facilitated by the Supreme Court judgment in the EVM case reposing blanket faith in the ECI:

“ECI maintains that the EVMs have been a huge success in ensuring free, fair and transparent elections across the nation in all elections. They restrict human intervention, checkmate electoral fraud and malpractices like stuffing and smudging of votes, and deter the errors and mischiefs faced in manual counting of ballot papers… In our considered opinion, the EVMs are simple, secure and user-friendly. The voters, candidates and their representatives, and the officials of the ECI are aware of the nitty-gritty of the EVM system. They also check and ensure righteousness and integrity. Moreover, the incorporation of the VVPAT system fortifies the principle of vote verifiability, thereby enhancing the overall accountability of the electoral process.”

Through this judgment, pronounced by Justices Sanjay Khanna and Dipankar Dutta, the ECI has ensured that the election is nothing but a ritual and not an exercise in which the citizen who is sovereign gets to transfer her sovereignty to the candidate of her choice through a system that complies with the essential ‘democracy principles’ of end-to-end verifiability which stipulate that each voter should have the knowledge and capacity to verify that her vote is cast-as-intended, recorded-as-cast and counted-as-recorded. Since there is no cross-verifiability, the counting of votes is opaque and could be manipulated by pliant election officials and observers.

Also read: Tamil Nadu’s PTR Asks Why Booth-wise Voter Data Not Published By EC When It Was Norm Till 2019?

Capping it all is (i) the ECI’s refusal to reveal the absolute number of votes polled in each constituency and (ii) the unusual surge in voter percentage between the ‘provisional’ and ‘final’ tally, the variation of which averages more than one lakh per constituency in Tamil Nadu. The ECI also knows fully well that most of the candidates, particularly of the Opposition, do not have access to Form 17C which is given to their polling agents because they are unable to put up agents in all booths in their constituencies

“One constituency has roughly 2,000-2,200 booths… A polling agent has to be present at a booth at approximately 5.30 a.m. on the day of voting when a dry run is conducted to check the functioning of EVMs and tally the serial numbers on them. Then actual polling begins at 7 a.m. and continues till approximately 6 p.m. after which the agent is handed over a copy of the Form 17 C… Thus, a candidate needs at least two agents in each booth… These agents are each given an allowance of around Rs 1,000 to 1,200 each for their meals and transport, concur most ground workers.” 

This works out to around Rs 50 lakhs on polling day itself, which is out of reach for almost all candidates except that of the ruling party. In the event, the ECI’s unusual move to not publicly release data in real time appears deliberate. Nothing else explains the commission’s behaviour in the Supreme Court where the matter has reached. 

The ECI is taking cover behind “one of the laziest judgments” of the Supreme Court in an unrelated case and is indulging in concealment and falsehood that could seriously impact the integrity of the outcome of the 2024 election. 

M.G. Devasahayam is coordinator, Citizens Commission on Elections.

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