The fantasy of ‘free and fair’ elections

Can a political party in a functioning democracy be allowed to disburse Rs 40,000 crore of taxpayers’ money before and during an election? The elections in Bihar this month, and in Madhya Pradesh and Maharashtra earlier, have demonstrated that ruling parties can certainly get away with it.

That is, if institutions designed to prevent abuse of power by ruling political parties will let them or are, in fact, complicit. In a storied past first-time voters might not even remember, the Election Commission of India (ECI) had earned for itself a global reputation as a guardian of free and fair elections. That could have been in a lost civilisation, though, if you measure how far we have come from those days.

Should the ECI in all fairness have allowed the use of public money just ahead of elections? Was it not abundantly clear that the idea was to influence the electoral outcome? Did it not matter that there was no prior budgeting, no deliberation in the legislative Assembly, for this supposedly ‘ongoing’ scheme? Is it not obvious that only a party in power, with access to the state exchequer, can misuse public funds in this manner? And does that not violate the ‘free and fair’ principle that must underpin the conduct of elections in a functioning democracy?

Did the Rs 10,000 cash transfer in Bihar not violate the Election Commission’s own Model Code of Conduct (MCC)? “I am disgusted with this Election Commission,” said a former bureaucrat with a long association with the ECI.

Where did the bankrupt Bihar government find the money? Did it perhaps borrow or receive the amount as a special grant from the Union government? In either case, this would amount to a corrupt practice in any functioning democracy. That emphasis is also a story, possibly for another day, but we must still evaluate our elections in their pretend framework.

Speaking to National Herald, former chief election commissioner O.P. Rawat agreed the cash transfer was egregious and shocking. “While parties in power take advantage of the loophole in the MCC, which exempts ‘ongoing’ schemes from the bar on ‘new’ schemes and announcements, the Commission must review and modify the MCC to plug the loophole,” he said. Rawat favours a complete ban on new schemes and projects in election years.

If the ECI had cared to look up its own record, it would have found that on several occasions, it did actually stop ongoing schemes during the election. In Tamil Nadu, the Commission had halted the disbursement of cash to farmers in lieu of free electricity. It had also halted the distribution of colour TV sets to poor families in the same state in 2011, though this too was an ‘ongoing’ scheme.

Even more shockingly in the case of Bihar, the beneficiaries of the cash transfer — the 1.8 lakh Jeevika Didis made famous by this transfer — were put on election duty on polling days! How could the ECI ignore the conflict of interest in deploying as ‘volunteers’ direct beneficiaries of government largesse?

The ECI didn’t even see a problem in declaring the fact of their deployment in a post-poll press note. In the words of CPI-ML (Liberation) general-secretary Dipankar Bhattacharya: “To make sure that the [cash] disbursement actually resulted in votes and the electoral harvest was properly reaped.”

The current ECI’s cosy relationship with the ruling party is an open secret. When the Opposition raises doubts about the conduct of elections, when it exposes wrongdoing — as it has, repeatedly, about the voter rolls and the SIR (special intensive revision) exercise — it is not the ECI that first clarifies, denies or rebuts but the BJP. Isn’t that odd?

The late T.N. Seshan had famously said that as CEC, he was “part of the government but not under the government”, that he reported to both the president and the prime minister but was “not a subordinate”.

Under current CEC Gyanesh Kumar, who has a known history of riding the coat-tails of the current Union home minister (bhakts, you can go ask Grok to confirm this), the ECI calls to mind a certain music label — remember HMV?

Instead of keeping the arm’s length that the office demands, the current CEC/ ECI has, at every turn, bent over to accommodate the ruling party and been hostile to the Opposition. It is possibly naïve to even expect that it can be equipoised when, under the current dispensation, it is effectively a government department.

Election commissioners are currently appointed by a committee of three, consisting of the prime minister and a minister that he nominates from the Union cabinet plus the Leader of the Opposition. In other words, by a 2:1 majority for the ruling party. What are the chances that this ECI will be scrupulously fair?

Take the SIR in Bihar. No open consultations were held with political parties before the abrupt announcement on 23 June. Why did the SIR have to be announced in such a tearing hurry? If there were deliberations within the ECI, no such detail is available in the public domain — no file notings nor minutes of meetings. Who took the sudden decision and why?

If the electoral rolls of January 2025, prepared after routine summary revisions, were so desperately flawed, what does it say about the Lok Sabha mandate of 2024?

The ECI had taken eight months to run a somewhat similar exercise in Bihar in 2003 — without requiring that enumeration forms be filled or any documents submitted. This time, the Commission wanted to conclude the whole exercise in three months — and it apparently couldn’t wait because the rolls had to be purged of ghuspaithiyas (illegal migrants).

It dropped 65 lakh voters in the draft rolls (69 lakh by the time it had concluded the SIR) after a hairy one-month exercise that sent legitimate voters on a wild goose chase for documents they didn’t possess. And how many ghuspaithiyas did the ECI find? Not one!

At the end of this exercise, many voters declared ‘dead’ turned up in the Supreme Court to offer proof they were still around. Other ‘dead’ voters turned up to meet Rahul Gandhi, a few showed up at his press conference and complained that names of 178 legit voters in their village had been deleted. The ECI couldn’t be bothered to offer a reason or even an excuse for the exclusion.

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On 2 June 1949, while discussing the draft constitution (specifically draft Article 289, which later became Article 324 of the Constitution of India, dealing with the Election Commission), Dr B.R. Ambedkar had sought to allay doubts expressed in the House that securing the tenure of the election commissioners was not enough to guarantee their independence.

‘It has been said that if you make the tenure of the Election Commissioner fixed and secure, that is not enough, because you may have a fool or a knave or a person who is likely to be under the thumb of the Executive…

‘An ordinary civil servant, no matter how high he may be, has no constitutional protection for his tenure. He may be removed at any time by the Executive; consequently he is completely under the thumb of the Executive. But the Election Commissioner is in a different position. His tenure is fixed and secure. He cannot be removed except by the method prescribed for the removal of a Judge of the Supreme Court. Consequently, the possibility of the Executive influencing him in the discharge of his duties is very remote.’

Clearly, Ambedkar did not foresee the day when election commissioners would come to be appointed by the Executive. The Election Commission itself, while avoiding comments on the process of appointing the CEC and other commissioners, has made recommendations in the past to protect its independence, but key proposals like a permanent cadre and an independent secretariat have been ignored by successive governments.

Recommendations made by the Dinesh Goswami Committee in 1990, the National Commission on the Working of the Constitution, headed by former Chief Justice of India Justice M.N. Venkatachaliah, in 2002, the second Administrative Reforms Commission in 2007, the Law Commission report in 2015 have been largely ignored.

The 255th report of the Law Commission in 2015 had recommended that a collegium consisting of the CJI, the Lok Sabha speaker, the leader of the Opposition in the Lok Sabha, the Rajya Sabha chairman and the prime minister finalise the appointment of election commissioners.

In 2023, a five-judge constitution bench of the Supreme Court, headed by Justice K.M. Joseph, directed the government to constitute a collegium including the prime minister, the CJI and the LoP in the Lok Sabha to make these appointments till Parliament passed a law to constitute an independent Election Commission.

Instead, in a travesty of the spirit of this judgement, the government rammed through legislation conferring complete control of these appointments to the prime minister.

When the 2023 Act was challenged in January 2024 (Jaya Thakur v. Union of India), the Supreme Court refused to stay the Act though the matter is still sub-judice before a Constitution bench.

Trinamool Congress MP Mahua Moitra filed another petition in 2025 challenging the 2023 Act. As many as 142 MPs, she said in her petition, were denied the opportunity to discuss the provisions of the Bill and to vote on it. When the Bill was passed, 97 Opposition members in the Lok Sabha and 45 in the Rajya Sabha couldn’t participate because they had been suspended for alleged misconduct in the 2023 winter session.

Will the Supreme Court of India perhaps take note? We live in hope.