The Wire Staff 
New Delhi: Retired civil servant E.A.S. Sarma, who was secretary to the government of India has written to the Election Commission with ten questions.
The letter, addressed to, Chief Election Commissioner Rajiv Kumar, and Election Commissioners Gyanesh Kumar and Sukhbir Singh Sandhu expresses disappointment at the way the EC has ignored Sarma’s earlier letters. In them, Sarma had raised questions on the poll body’s impartiality, independence and effectiveness as a an authority expected to fulfil its mandate under Article 324 of the constitution – to conduct elections in a free and fair manner.
He notes that his latest missive is a “last-minute effort to wake up the conscience of each one of you and to remind you that you should feel answerable and accountable to the public at large” on its charge to fulfil the above mandate.
He adds that the Commission does not seem to be “aware, or not inclined to admit” of its enormous authority under Article 324 to direct both the Centre and the states to take appropriate action in any matter in the line of ensuring that elections are conducted fairly.
He says that perhaps the Commission is “far too diffident, reluctant and unwilling to exercise such an authority, either due to sheer ineffectiveness on its part or out of submissiveness to the political executive, meekly assuming that “the king can do no wrong”.”
Sarma then poses 10 questions to the EC, which are being presented below with some light edits for style.
1. In my correspondence, I pointed out specific instances of the star campaigners of political parties, particularly the BJP, especially Prime Minister Narendra Modi and Union home minister Amit Shah, blatantly invoking religion for votes, making divisive statements, promoting hatred, on which the Commission had either not acted at all, or unduly delayed action, or deliberately refrained from taking decisive action, knowing well that such statements violated the MCC, amounted to committing a “corrupt practice” under Sections 123 and 125 of the Representation of People Act , and amounted to committing penal offences under the Indian Penal Code or Bharatiya Nyay Samhita.
By its inaction and delayed but meek ineffective responses, the Commission merely contributed to encouraging those very same campaigners to continue repeating such objectionable statements.
Is not the Commission conscious of the fact that such statements made by those occupying senior, responsible public offices, not only lead to long-term adverse impacts on the integrity of elections and on democracy but also hurt the harmony of the society? Has not the Commission, through its inaction, become a party to such an unfortunate state of affairs?
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2. Has not the Commission let down its predecessors who guaranteed prompt action on all such MCC violations in Para 2.2.2 of its own Manual of MCC, Document 21 issued in March 2019? Perhaps, the Commission is not even aware of the contents of that Manual!
3. The apex court has held the infamous, non-transparent Electoral Bonds Scheme (EBS) to be unconstitutional. Is not the Commission aware of how several political parties in power at the Centre and in the States, especially the BJP in power at the Centre, may have collected huge amounts of corporate donations through EBS through extortion and intimidation, and by offering unhealthy quid pro quos that have hurt the public interest?
Why has the Commission not exercised its authority to freeze the EBS amounts collected by the BJP and others to prevent the same being used in electioneering? By its inaction, has not the Commission either deliberately or otherwise permitted electioneering to be tainted on that account?
4. Is not the Commission aware that the BJP-led NDA government has planted its nominees as directors of the BEL and the ECIL, the two Central Public Sector Enterprises entrusted with the manufacture and supply of the EVMs, and similarly planted its nominee on the board of the SBI, entrusted with the operation of the EBS? Why has the Commission not directed the NDA government to recall those nominees? Has not its inaction cast an indirect shadow on the trust in EVMs?
5. The Commission has been obstinately defending and deifying the EVM system, ignoring the legal infirmity implicit in the “black box” of an EVM system that deprives the voter the right to know that the vote cast has gone to the right candidate. Why has the Commission closed its eyes and ears to the views expressed by other competent technical experts on the specific segments of the EVM-VVPAT system which are amenable to manipulation?
Instead, the Commission continued to depend exclusively on the technical advice provided by its four-member TEC. What efforts has the Commission made to subject those segments, especially, the ‘Symbol Uploading Module’ in location-specific VVPAT machines to independent technical audit in the presence of all political parties?
6. Is not the Commission aware that all the four members of the TEC are also co-owners with BEL of a patent taken for the EVM-VVPAT system? Does it not imply conflict of interest that cast a shadow on TEC’s independence as a technical advisory body? Is not the Commission aware that the BJP-led Gujarat government co-opted at least one member of the TEC as a director on two bodies sponsored by it and that the same member has been co-opted as a director on the board of a national stock exchange in the constitution of which the BJP-led NDA government may have a say? What efforts were made by the Commission to address such a brazen conflict of interest for restoring the eroded public trust in the efficacy of the EVM system?
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7. Knowing well that there are gaping technical gaps in the efficacy of the EVMs, should not the Commission have agreed to order a 100% cross-verification of the EVM vote-count with regards to the VVPAT ballot count? Has the Commission robbed itself of an excellent opportunity to restore its own credibility and the credibility of the EVM system by obstinately resisting such cross verification, knowing well that the apex court would not have objected to such corrective action had the Commission expressed its own willingness? Even at this belated hour, would the Commission invoke its authority, in the interest of eliciting public trust, to order 100% cross verification, at least in respect of all such constituencies in which the winning margin falls below 10%?
8. Keeping in view the proven vulnerability of certain segments of the EVM system to possible manipulation (e.g absence of a technical arrangement for “pairing” the VVPAT and the Control Unit, absence of geo-tagging of the EVM system etc.), has the Commission made arrangements for maintaining whatever logs maintained at different stages of elections and whatever video recordings made for further verification by political parties?
9. There have been instances of agents of political parties openly canvassing for their candidates within the polling booth by displaying pamphlets etc. One such instance of a BJP agent displaying the party candidate’s pamphlets within a polling booth in Delhi was reported, not by the polling personnel but by a third party. Has the Commission ordered repolling in all such booths? Since the Commission has incurred expenses on providing video recording in all booths at the cost of the public exchequer, has it made arrangements to store all such video recordings and make the same available in the public domain?
10. The Commission has had no hesitation in exercising oversight on state agencies, especially their investigating agencies during the timeframe when the MCC was in force. Why has the Commission not exercised a similar oversight on central investigating agencies (Enforcement Directorate/Central Bureau of Investigation/Income Tax authorities), especially in view of the widespread public concern that the BJP-led NDA government is misusing those agencies to gain political advantage?
Failure to provide answers would only accentuate public concerns about the Commission’s role, Sarma stresses.
He also criticises the EC’s unusual move targeting opposition leaders. “This assumes relevance in the context of the unusual response of the Commission to a letter internally issued by one of the INDIA alliance leaders to other members of that group, when the Commission self-righteously cautioned that leader, that he should not “attempt to push a biased narrative under the guise of seeking clarifications”, ignoring the fact that the Commission exists for the people and all the parties representing them, not for acquiescing in the narrative of the ruling party.