It’s not who is named but how s/he is chosen that we must focus on

Outgoing chief election commissioner (CEC) Rajiv Kumar, who completed his term on 18 February, is unlikely to be missed. A colleague described him as a bureaucrat who preferred to keep his head down and stay on the right side of the government. An intriguing description for one of the most controversial CECs in recent years.

Kumar will be remembered for presiding over what is arguably the weakest election commission in recent memory. His loyalty to the ruling party, his refusal to address concerns over the Opposition not being given a fair playing field, and his failure to act on blatant violations of the model code of conduct (MCC), misuse of electoral bonds and foreign contributions will be hard to forget.

When election commissioner Anoop Chandra Pandey’s term ended on 15 February 2024, the government showed no urgency in filling the vacancy. However, Arun Goel’s sudden and inexplicable resignation on 10 March forced the government’s hand. On 14 March, the day before the dates for the Lok Sabha elections were announced, the government quickly appointed two retired bureaucrats, Gyanesh Kumar and Sukhbir Singh Sandhu, as election commissioners. Though both belong to the 1988 batch of the IAS, Kumar became the CEC by virtue of seniority, 11 months after his appointment as an election commissioner.

The decline of the election commission of India (ECI) — once a symbol of impartiality and public trust — has been deeply disappointing. Jagdeep Chhokar, founder of the Association for Democratic Reforms (ADR), notes, “We have worked with the election commission for 25 years, but its responsiveness has changed dramatically in the last five or six years. Our objections and queries now go unanswered. I have personally raised concerns, yet received no response.”

The ECI’s bias towards the ruling party in recent times is no secret, but it has plumbed new depths during and since the last Lok Sabha elections.

In the 2019 general elections, then election commissioner Ashok Lavasa, after investigating complaints during the campaign, pushed for action against Prime Minister Narendra Modi and his lieutenant Amit Shah for violating the MCC. Chief election commissioner Sunil Arora strongly opposed this. Ultimately, Lavasa had to quit.

During Rajiv Kumar’s tenure, allegations of electoral fraud became so frequent that the credibility of election results came into question. Investigations by ADR revealed dubious discrepancies between the number of votes cast and votes counted, but the election commission brushed them aside as minor technical or human errors.

The model code of conduct became a joke, and its selective invocation a giveaway of the ECI’s predisposition. When BJP leaders made communally coloured remarks to inflame and incite, when PM Modi himself made provocative statements like “Aapke mangalsutra le jayenge...”, “Aapki bhains le jayenge...” (they will take away your mangalsutras, they will take away your cattle), the ECI looked the other way.

The Opposition protested and filed complaints, which fell on deaf ears. Instead of reprimanding the prime minister, the ECI ignored its own rules and served notices to the BJP president instead.

Reports surfaced on the manipulation of voter lists — including both fraudulent additions and deletions — which swung outcomes in favour of the BJP. A Newslaundry investigation uncovered the suspicious deletion and addition of voters in constituencies where the BJP won by narrow margins.

During the Maharashtra assembly elections, it was found that 3.9 million new names had been added to the voter list in just five months — between the Lok Sabha elections and the state elections — whereas only 3.2 million had been added over the preceding five years.

There were instances of hundreds of voters registered with the same address. Similar discoveries surfaced during the Delhi assembly elections, targeting Dalit and minority voters perceived to be anti-BJP.

Parakala Prabhakar, author and public intellectual, compared historical data and found that the difference between the closing voter turnout and the final count had never been more than one or two per cent. In Maharashtra, this difference was as high as seven per cent, and in Haryana, 12 per cent or more. This discrepancy was not observed in Jharkhand and Uttar Pradesh, where the BJP suffered defeats, but was evident in Maharashtra and Haryana, where the BJP won.

Chhokar also noted that the ECI stopped providing absolute voting numbers and now only releases percentages. This lack of transparency raises serious concerns, as percentages alone do not provide a full picture of voter turnout or potential discrepancies.

The ECI has also been notorious for rescheduling elections. The dates for the Haryana assembly elections were altered, departing from the previous practice of holding them alongside Maharashtra and Jharkhand. The Delhi assembly election date (5 February) was strategically set just after the Union Budget (1 February), which featured some income-tax relief for voters, effectively turning it into a pre-poll carrot — and did the electorate bite?

A 2019 CSDS-Lokniti survey found that 51 per cent of those polled trusted the ECI; by 2024, that number had plummeted to 28 per cent!

It is naïve to hope that the ECI will suddenly grow a spine and mend its ways under new CEC Gyanesh Kumar. It is naïve because that supposedly autonomous institution, which citizens/ voters expect will preside impartially over the conduct of elections, has been captured by the ruling party. Like practically all other institutions designed to be counterpoising influences against overreach by any arm of the state.

It is naïve because the very mechanism for the appointment of election commissioners is now designed to favour the ruling party. What are the chances that a three-member selection panel (consisting of PM Modi, Union home minister Amit Shah and Leader of the Opposition Rahul Gandhi), a 2:1 overruling majority for the ruling party, will chose a neutral referee?

Under the circumstances, LoP Rahul Gandhi did the best he could when they met to name the new CEC — make public his dissent, articulating the reasons why we cannot expect any better from the ECI till we fix this architecture. Gandhi says in his note: ‘The most fundamental aspect of an independent election commission free from executive interference is the process of choosing the election commissioners and the chief election commissioner. In a judgement on 2 March 2023, a Constitution bench of the Hon’ble Supreme Court ordered that the appointment of the CEC and election commissioners should be undertaken by a committee [consisting] of the Hon. Prime Minister, Hon. Leader of Opposition and Hon. Chief Justice of India.’

In the judgement Rahul Gandhi is referring to in his dissent note, Justice K.M. Joseph writes: ‘A person who is in a state of obligation or feels indebted to one who appointed him fails the nation. Such a person cannot have a place in the conduct of elections, which forms the foundation of democracy... An election commissioner should be one who holds the scale evenly in the stormiest of times by not being servile to the powerful…’

What are the chances the new CEC, appointed by the same compromised ecosystem, will play an impartial referee of our elections? As that singer-poet-balladeer-philosopher Bob Dylan famously said: ‘…the answer, my friend, is blowin’ in the wind.’