On March 16, while commenting on the recently-scrapped electoral bond scheme, an anonymous and controversial political funding scheme introduced by India’s ruling Bharatiya Janata Party (BJP) government, Chief Election Commissioner Rajeev Kumar said that the Election Commission of India (ECI) had always favored transparency, but mechanisms to protect “donor’s privacy” should also be considered to ensure they are not “harassed.”
“The country has to now also ask and find solutions through an institutional mechanism where the donor’s privacy is also considered,” Kumar said.
His comments sounded strange, as the top court had already pointed out in its February 15 judgment that such a mechanism for ensuring donor privacy already existed — parties are not required to declare the identity of donors who give less than 20,000 Indian rupees (approximately $240.50).
The court had clarified that those donating below 20,000 rupees shall continue to enjoy the right to informational privacy on political affiliation but, beyond that limit, the question of monetary influence on policies is larger and the issue becomes “public” rather than “private.” The electoral bonds scheme allowed even donors of larger sums to remain anonymous.
“The right to information of the voter includes the right to information on financial contributions to a political party,” the Supreme Court held, adding that the influence of money in electoral politics and governmental decisions could not be overlooked.
In this context, Kumar’s stance on the privacy debate was unmissable. He was effectively batting for the privacy of those donating beyond the 20,000-rupee limit, echoing the government’s stance that the Supreme Court had rejected.
The chief election commissioner’s comments came on the same day that Home Minister Amit Shah said that “instead of completely scrapping the electoral bonds, it should have been improved.”
March 16 was also the day when the ECI announced the schedule for India’s 18th parliamentary election, which will be held in seven phases from April 19 to June 1. The results will be declared on June 4.
Prime Minister Narendra Modi is running for his third straight term, while the opposition parties have formed the Indian National Developmental Inclusive Alliance, or the INDIA bloc, which is larger than the opposition alliance (United Progressive Alliance, or the UPA) of the 2019 parliamentary elections.
The ECI’s March 16 press meet happened following high drama. One post was lying vacant in the three-member ECI. Then on March 9, one of the commissioners, Arun Goel, resigned without citing any reason. The Modi government acted swiftly. Within five days, it filled up the two vacancies in the ECI, a move that might undergo scrutiny by the apex court.
For over six years now, the credibility of the ECI has taken a beating, as opposition parties and civil society personalities have often accused the body of showing biases in favor of Modi’s BJP. Complaints against Modi or other top leaders of the BJP lodged by opposition parties with the ECI were not acted upon with the same promptness and seriousness as the commission showed while acting on complaints lodged by the ruling party.
Recently, two opposition parties in the state of Maharashtra, the Nationalist Congress Party and the Shiv Sena, suffered splits. Rebel factions of both parties aligned with the BJP and claimed the name and symbol of the original party for their faction. In both cases, the ECI’s verdict went in favor of the breakaway factions.
The ECI’s decisions have been challenged in court.
“It worries me that the Election Commission has come into public criticism,” former Chief Election Commissioner S.Y. Quraishi told the news portal The Wire.
The impression of a “compromised” poll panel is evident. The ECI’s “independence has been severely eroded” since Modi became India’s prime minister, alleged Jairam Ramesh, a general secretary and communication-in-charge of the Congress, India’s main opposition party, on March 13.
Alleging that the BJP’s “filthy tricks” were “destroying institutions like ECI,” Trinamool Congress parliamentarian Derek O’Brien has called for a “Supreme Court-monitored” election.
Several of India’s neighbors have faced challenges with elections conducted by politically biased election commissions. In Bangladesh, the lack of trust in the election commission was so deep that several opposition parties, including the Bangladesh Nationalist Party, boycotted the January 2024 parliamentary election. In Pakistan, former Prime Minister Imran Khan, the founder-chief of the opposition Pakistan Tehreek-e-Insaf, had repeatedly called for the resignation of the chief election commissioner in the run-up to the February general elections.
Things were different in previous decades.
Between 1975 and 1977, the Congress government under Prime Minister Indira Gandhi imposed emergency rule in India. Fundamental rights were suspended and opposition leaders were jailed. In the election that followed in March 1977, the Congress was defeated. Despite Gandhi’s suspension of democracy during the emergency, the ECI was able to hold a free and fair election. It had not been reduced to a politically biased body.
This has changed over the past decade.
In recent years, multiple global democracy watchdogs have flagged India’s “democratic backslide,” designating it as “Partly Free” and as an “electoral autocracy.” The Sweden-based V-DEM described India in its recent report as “one of the worst autocratizers.”
“The current ECI seems to love giving lectures, just like PM Modi,” said Udayan Bandyopadhyay, a political scientist at Bangabasi College in Kolkata.
According to him, during Modi’s rule, as India has been “reduced from a parliamentary democracy to a majoritarian democracy,” most pillars of the democratic system – the executive, the judiciary, and the media – have come under the influence of the ruling party.
“While the judiciary sometimes shows its spine and a handful of media houses are fighting a tough battle to retain independence, the executive has nearly surrendered. Given that the ECI is part of the executive, the election commission’s role has become questionable in many respects,” Bandyopadhyay told The Diplomat. “It has failed to dispel the apprehensions of the government’s critics.”
Congress’s Ramesh highlighted in January and March how the ECI had repeatedly refused to address the opposition’s concerns regarding the potential of electoral manipulation by tampering with the electronic voting machines (EMVs).
The INDIA bloc wants 100 percent counting of voter-verifiable paper audit trail (VVPAT) slips by matching them with the count on the EMVs. According to Ramesh, they never got the ECI’s appointment to discuss the matter.
Currently, VVPAT slips from only five randomly selected polling stations in each Assembly segment are verified. The process allows the voter to check if the vote went to the same candidate that he voted for on the EVM.
In 2019, a mismatch was pointed out in VVPAT and EVM vote counts in many parliamentary seats.
This year, many fear that the body that will conduct the upcoming elections will be politically biased in favor of the ruling party, as two of the ECI commissioners have been picked by the Modi government and the third by the president at the prime minister’s recommendation.
“The election commission has a critical job – to be a fair referee between different parties during elections. But at present, the strongest player – the ruling party – appoints the referee. This is obviously a conflict of interest,” Shoaib Daniyal, political editor at the Scroll news portal, told The Diplomat.
In India, the convention for appointed election commissioners was that the president would appoint them on the prime minister’s recommendations. In March 2023, the Supreme Court had directed the president of India to appoint election commissioners on the advice of a three-member committee comprising the prime minister, the leader of the opposition in the Lok Sabha, the lower house of parliament, and the chief justice of India.
However, in December 2023, the government passed a new law that entrusted the selection process to a three-member committee comprising the prime minister, another union minister, and the leader of the opposition. Amid protests by opposition parties, as many as 97 opposition MPs were suspended for the remainder of the winter session on the charge of “misconduct.”
While the legislation has been challenged in the apex court, the government told the court on March 20 that the court-prescribed mechanism was a “stopgap”one, meant to serve till Parliament passed a new law.
“Where the Constitution itself specifically vests Parliament with the power to decide upon the appointments of the election commissioner and the Parliament exercises this power, no question of legislative overruling can arise,” the government said.
The Supreme Court on Thursday refused to order any immediate stay on the new appointments of the two election commissioners. While the case will continue to be heard, how the ECI now responds to complaints by the ruling coalition and the opposition party is likely to determine not only the reputation of this crucial pillar of Indian democracy but also the fate of the world’s biggest electorate.