The Election Commission Seems to Be Ignorant of Its Own Rules

The Election Commission’s petulant response to the findings of a deep-dive investigation into the Mahadevpura assembly constituency by the Congress seems to have only bolstered the findings made public by Rahul Gandhi.

Those findings, based on an intensive study and verification of the electoral roll, revealed 1,00,250 questionable persons in the voters’ list. The Election Commission through the Karnataka Chief Election Officer immediately responded, asking Gandhi to file an affidavit and sign and submit a declaration or oath under Rule 20(3)(b) of the Registration of Electors Rules, 1960.

The absurdity of the Election Commission’s response

However, Rule 20(3)(b) only applies when there is an ongoing inquiry into a voter’s name being added or deleted. It has no application to an instance like the current one where the published roll has been shown to have multiple fictitious and false additions.

Anybody familiar with the way elections have been conducted in India would know that election rules are repeatedly communicated and taught to officers through ongoing training programmes. With the Karnataka CEO – and now the Maharashtra CEO adding a similar request – making such an absurd demand, it seems clear that the constitutional body is more concerned with brushing the issue under the carpet rather than fixing the badly marred election process.

The Representation of People Act, 1950 states as follows:

“22. Correction of entries in electoral rolls.—If the electoral registration officer for a constituency, on application made to him or on his own motion, is satisfied after such inquiry as he thinks fit, that any entry in the electoral roll of the constituency—

(a) is erroneous or defective in any particular,

(b) should be transposed to another place in the roll on the ground that the person concerned has changed his place of ordinary residence within the constituency, or

(c) should be deleted on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll,

the electoral registration officer shall, subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, amend, transpose or delete the entry 4[after proper verification of facts in such manner as may be prescribed:” (Emphasis supplied)

A plain reading shows that the EC and its officers need no complaint to start their inquiries and process to fix the electoral roll. The statute clearly says that such corrections ought to happen on application or ‘on his own motion’. The EC’s demand for an affidavit, anyway unsupported by law, is like a police officer declining to register a case regarding a shooting that happened in their presence unless somebody else first comes and makes them act. This is absurd. Beyond absurdity, it is a negation of the principles of administrative and constitutional responsibility.

The processes of the Election Commission

The Election Commission in a circular issued in 2022 titled ‘Special Summary Revision of Photo Electoral Rolls w.r.t. 01.01.2023 as the qualifying date - Programme – regarding' gave detailed instructions to verify multiple election photo ID cards. Pre-revision activities were to be done before the special summary revision of the photo electoral rolls in 2023. The same circular goes on to issue instructions to its personnel to carry out sweeps of the electoral rolls both on the basis of the election photo identification card numbers as well as photographs.

If the same was done then, there ought to have been no question of many of the repeated and duplicated entries in the electoral roll. The EC has to answer why it is not seeking to enforce its own instructions and asking the right questions of its own officers. It is clear that the Demographically Similar Entries are to be checked through software while the Photo Similar Entries are to be locally checked through the app and then are to be verified in the field. Another circular issued by the Election Commission way back in 2013, clarifies this.

If the Election Commission had this technology since 2013, there is no excuse for not weeding out these multiple ‘duplicates’, regardless of the fact that they were in different states. In any case, there is no excuse for not weeding out the duplicates in the same constituency and even in adjoining booths. The circular from 2013 mentions the methodology and the software to be utilised for this purpose. This creates a high degree of suspicion, to the point of confirmation, that officers of the EC were not carrying out their assigned roles at all. The EC has to answer on this aspect as well.

The role of the Booth Level Officer

The above mentioned circular clearly mentions the role of field verification which is to be done by the Booth Level Officer. As per the Handbook for Booth Level Officers, 2011 their responsibilities, amongst others, include:

“· House to house visit and checking of overlapping, migration, transfer/shifting

• • Identification of shifted/dead/non-existing electors
  • Checking inclusion and exclusion errors”

The system of electoral registration was meant to be comprehensive. Set up in the 1950s in a country where democracy was nascent and fueled by the constitutional idealism that permeated the Nehruvian ideology of that time, it is meant to reach to every door so that no deserving voter gets left behind and no undeserving voter is added to the roll. Interestingly, the EC’s 2013 circular seems more concerned about avoiding wrongful deletions than about fake or false additions to the list. It is clear that as an organised problem, the issue of fake, false and/or duplicitous votes started sometime after 2013.

The same Handbook for BLOs also mentions detailed instructions for the issuance of Electoral Photo Identity Cards (EPICs), especially for voters who have shifted to another state.. As such any new EPIC is to be allotted only after physical verification.

The role of the Booth Level Officer and their function of field verification is reiterated in this handbook again and again. They are to maintain a Booth Level Register and are primarily tasked with ensuring the integrity of the roll for their booth.

The Electoral Registration Officers Handbook, 2012 also says clearly that “In an election year, the data on voters registered on the rolls but found absent during field verification (after draft publication) should be collected and action taken under Rule 21A of RER 1960. Information should be provided to the Commission.” There is no getting away from field verification.

The 2011 Booth Level Officers Handbook is publicly available on the websites of the Election Commission and those of various State Chief Election Officers. When these regulations and handbooks, which have been repeated across many manuals, circulars and handbooks since, make it clear that de-duplication of the rolls and sanitising the rolls is a continuous and primary process of the EC and the State Chief Election Officers, trying to blame the informants of massive illegalities in the election roll is disingenuous at best and criminal at worst.

Institutional integrity

Apart from the issue of the electoral rolls and how they affected the election, which is paramount, there has to be criminal investigation of what is probably a large number of people who participated in this fraud. If up to a lakh voters are under doubt, that probably means the submission of one lakh forged documents. It also means these documents were approved by certain officers. It ought to be fairly straightforward to figure out the modalities of this operation through an investigation by the local police. No one, not any candidate, any political party or organisation can or should have any problems with such an investigation. In fact, this ought to be the unanimous demand.

Institutional integrity is paramount. It has to be, as that is the edifice on which the rule of law rests. The EC has so far failed to inspire confidence through its response. Technicalities like applications, time limits for election petitions or formats of complaints are absolutely immaterial in this situation. Ideally it should have been the response of the Union government, if not the Election Commission, to launch such an investigation. However, being faced with the most partisan government ever in the history of this country, not much hope can be placed there. The law has to take its course and sooner rather than later, it will no matter what trite technicalities are cited by the powers that be.

Sarim Naved is a Delhi based lawyer.

This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been updated and republished here. To subscribe to The India Cable, click here.

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