For once if the word ‘pyrrhic’ had any meaning, it is in the recently concluded general election to India’s Parliament. Some are celebrating the ‘victory,’ some the ‘defeat’ and many are licking the ‘wounds’ of both. In the process, hardly any attention is being given to the conduct of the most incompetent and unfair election in history and its outcome, which saw serious and severe violations of laws, codes and Supreme Court judgments.
Former Chief Information Commissioner Wajahat Habibullah puts it mildly when he wrote: “In “Electoral Democracy: An enquiry into the Fairness and Integrity of Elections in India,” a retired group of civil servants researched with the assistance of experts at home, including the IITs, and abroad, broaching the possibility of the electoral process in India being compromised. The nature of elections in Delhi, Odisha and Madhya Pradesh, and even in some parts of Uttar Pradesh make these elections worthy of review.”
Illustration: Pariplab Chakraborty
To start with, Section 59 of the Representation of People’s Act, 1951 (RPA) which mandates the conduct of elections through ballot paper has been violated with impunity. This is what the provision says: “Manner of voting at elections:- At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed and, save as expressly provided by this Act, no votes shall be received by proxy.”
This was followed by non-compliance of Section 61A which provides for voting machines at elections subject to conditions: “Notwithstanding anything contained in this Act or the rules made thereunder, the giving and recording of votes by voting machines in such manner as may be prescribed, may be adopted in such constituency or constituencies as the Election Commission may, having regard to the circumstances of each case, specify.”
It is to be noted that while Section 59 uses the word “shall”, Section 61A says only “may” making the legislative intention clear–conduct of elections in India should be with ballot paper and EVM may be an option if that was not possible.
Therefore, as per administrative protocol, Election Commission of India (ECI) is required to issue a constituency-wise ‘notification’ explaining the circumstances under which elections could not be conducted with ballot papers and electronic voting machines (EVM) would be used for the purpose.
No such notifications were issued by the ECI either before or after the announcement of election schedule on 16 March, 2024. This makes the election ab initio illegal.
Next comes the ECI’s total inaction on the violation of (a) the Model Code of Conduct, (b) Sections 123(3) and (3A), 125 of the RPA, and Section 153A of the Indian Penal Code by Prime Minister Narendra Modi.
At an election rally in Rajasthan’s Banswara on April 21, 2024 Modi claimed the Congress manifesto had promised to seize and redistribute private wealth of Indians among “infiltrators” and “those who have more children”–a dog whistle reference to India’s Muslims.
In the same speech, the prime minister claimed that the Congress would snatch away the mangalsutras worn by married Hindu women in its bid to distribute wealth among Muslims. Nearly 20,000 individuals had collectively penned letters to the ECI, urging action against the PM for these devastating comments made against Muslims.
But there was not even a wimp from the ECI on this and other similar ‘poisonous arrows.’ Emboldened by this, Prime Minister went on making more inflammatory statements that clearly violated the MCC and RPA.
In fact, Chief Election Commissioner (CEC) Rajiv Kumar gave a self-incriminating explanation to this impotent inaction when he said that the Election Commission had deliberated over poll code violations during the 2024 general elections at length and had decided to not admonish two top leaders each from the Bharatiya Janata Party and the Indian National Congress–Narendra Modi and Amit Shah of the BJP and Rahul Gandhi and Priyanka Gandhi Vadra of the INC.
“We deliberately decided–this is such a huge nation-that the top two people in both the parties we did not touch. Both party presidents we touched equally. Why did we leave two this side and two that side? The persons in position in this huge country also have responsibility. We reminded them of their responsibility,” Kumar had said.
This is clear discrimination and constitutional violation by the CEC.
As rightly observed in this piece, “Part III of the Constitution of India is titled Fundamental Rights. It says, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 14 of this part of the Constitution, titled “Equality before law”, reads as follows: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” It is the provisions of Article 14 that the Election Commission prima facie appears to have violated.”
This is a very serious matter.
Now, let’s come to the ECI’s wanton defiance of Supreme Court orders. In its judgment dated 8.10.2013 in Subramanian Swamy v. Election Commission of India, (2013) 10 SCC 500, Supreme Court had clearly laid out the purpose of introducing the Voter Verifiable Paper Audit Trail (VVPAT) along with EVMs.
“From the materials placed by both the sides, we are satisfied that the “paper trail” is an indispensable requirement of free and fair elections. The confidence of the voters in the EVMs can be achieved only with the introduction of the “paper trail.” EVMs with VVPAT system ensure the accuracy of the voting system. With an intent to have fullest transparency in the system and to restore the confidence of the voters, it is necessary to set up EVMs with VVPAT system because vote is nothing but an act of expression which has immense importance in democratic system,” the judgment had said.
Apex Court’s purpose was to make the EVM voting/counting to comply with the essential ‘Democracy Principles’ of End-to-End (E2E) verifiability i.e. voter should be able to verify that her vote is cast-as-intended, recorded-as-cast and counted-as-recorded.
This ipso facto meant that EVM should be used for voting and all the printed slips in the VVPAT machine should be counted before declaring results. Pursuant to the 8.10.2013 order and other directives, ECI arranged for all EVMs to be accompanied with VVPAT for the 2019 general elections. Without counting of VVPAT slips in a significant percentage of polling stations in each assembly constituency, the objectives of verifiability and transparency in the democratic process would remain unrealised.
But, in defiance of this basic principle, vide its letter dated 13.02.2018 ECI directed state chief electoral officers to mandatorily verify VVPAT paper slips in only one randomly selected polling station in each assembly constituency.
This being around 0.5% sample size which is pathetically low, defeated the very object of installing VVPATs in all EVMs which tantamount to non-implementation of Supreme Court Order. But ironically Supreme Court endorsed this gross violation when a Bench comprising of Justice Ranjan Gogoi and Sanjay Khanna passed this order on 08-04-2019: “…….our considered view is that the number of EVMs that would now be subjected to verification so far as VVPAT paper trail is concerned would be 5 per Assembly Constituency or Assembly Segments in a Parliamentary Constituency instead of what is provided by Guideline No. 16.6, namely, one machine per Assembly Constituency or Assembly Segment in a Parliamentary Constituency…..”
SC had just increased the sample size from a microscopic 0.5% to miniscule 2 % whereas the demand was for a reasonable 30% to 50% based on sound statistical principles. E2E verifiability had thus been intentionally denied, a typical case of ‘fence eating the crops.’
In its report titled “Is the Indian EVM and VVPAT System Fit for Democratic Elections?” released in January, 2021 and submitted to ECI, Citizens Commission on Election (CCE) had said that EVM system does not provide provable guarantees against hacking, tampering and spurious vote injections and the VVPAT system as practiced does not allow the voter to verify the slip before the vote is cast and the absence of E2E verification would lead to voting and counting manipulation and had suggested remedial measures.
ECI did not bother to respond.
Therefore, in August-September 2023 civil society submitted a memorandum to ECI signed by about 10,000 voters making a specific demand: “The VVPAT system should be re-calibrated to be fully voter-verifiable. A voter should be able to get the VVPAT slip in her hand and cast it in a chip-free ballot box for the vote to be valid. These VVPAT slips should be fully counted first for all constituencies before the results are declared.”
ECI did not even acknowledge this Memorandum.
The matter therefore went before the Supreme Court in W.P (C) No. 184 of 2024 wherein the above demand was rejected thus fully facilitating the ECI to trash its own order in Swamy case.
ECI had nefariously succeeded in effectively blocking the E2E verifiability thereby paving the way for voting and counting manipulation on a selective and secretive basis. And CEC Rajiv Kumar was celebrating this defeat of “essential democracy principles”! This is the reason why despite the results for the Lok Sabha 2024 elections being out, the controversy around the election process persists.
The 2024 Lok Sabha elections data shows discrepancies in almost all PCs. A close look at EC data from 543 PCs shows that except for a few PCs like Daman & Diu, Lakshadweep and Attingal in Kerala, the number of EVM votes counted differs from that of EVM votes polled. In more than 140 PCs, the number of EVM votes counted surpassed the number of EVM votes polled.
ECI is unable to give any satisfactory response to this apparent fraud. Is something rotten in the halls of Nirvachan Sadan?
And there is more. In the same judgment delivered on 26.04.2024 Supreme Court opened two windows for verification through these directions:
“76. (a) On completion of the symbol loading process in the VVPATs undertaken on or after 01.05.2024, the symbol loading units shall be sealed and secured in a container. The candidates or their representatives shall sign the seal. The sealed containers, containing the symbol loading units, shall be kept in the strong room along with the EVMs at least for a period of 45 days post the declaration of results. They shall be opened, examined and dealt with as in the case of EVMs,” said the Supreme Court judgment.
(b) The burnt memory/microcontroller in 5% of the EVMs, that is, the control unit, ballot unit and the VVPAT, per assembly constituency/assembly segment of a parliamentary constituency shall be checked and verified by the team of engineers from the manufacturers of the EVMs, post the announcement of the results, for any tampering or modification, on a written request made by candidates who are at SI.No.2 or Sl.No.3, behind the highest polled candidate…. The actual cost or expenses for the said verification will be notified by the ECI, and the candidate making the said request will pay for such expenses. The expenses will be refunded, in case the EVM is found to be tampered,” the Supreme Court judgment added.
Both these directions were not carried out in letter and spirit by the ECI and direction (b) was sabotaged and wilfully disobeyed. Whereas Administrative SOP for the ‘burnt memory/microcontroller’ was issued on June 1, 2024–just three days before the date of counting and announcement of results charging a hefty fee of Rs. 40,000 plus 18% GST per EVM–no Technical SOP to make it operative as mentioned in Para 7 was issued till June 11, 2024 thereby effectively preventing candidates from availing of this window provided by the Supreme Court. The suspicion is that ECI did this to prevent detection of possible spurious injection of votes to steal the mandate in favour of a particular party.
These and other egregious errors and wanton violations coupled with total blocking of E2E verifiability leads one to believe that General Election-2024 has been conducted with lies clothed in truth. Things have come to such a pass that post the Lok Sabha elections, a substantive criminal complaint has emerged, filed by Advocate Mehmood Pracha, which alleges extensive manipulation and misconduct in the election process.
The complaint seeks immediate registration of cases under Section 129 of the Representation of the People’s Act, 1951, Section 65/66/66F of the Information Technology Act, 2000 and Section 171F/409/417/466/120B/201/34 Indian Penal Code and investigation into the roles of all involved, including ECI officials, BEL and ECIL engineers, and BJP office bearers.
If allowed to go on in the present pace, electoral democracy will perish in the world’s most populous country where in live one-sixth of humanity. Can this be countenanced?
M.G. Devasahayam is coordinator, Citizens Commission on Elections.
Read all of The Wire’s reporting on and analysis of the 2024 election results here.
