New Delhi: Election commissioner Arun Goel’s resignation, weeks before the Lok Sabha elections are due with no clear reasons communicated, has once again cast a cloud on the transparency and functioning of the Election Commission of India.
With Goel’s resignation, the three-member Election Commission is down to just one member – chief election commissioner Rajiv Kumar. Earlier in February, election commissioner Anup Pandey retired from office but is yet to be replaced. According to reports, Prime Minister Narendra Modi will chair a meeting to appoint the two election commissioners later this week.
The poll body, an autonomous one, is a pivotal part of the India democracy story, as it is entrusted with conducting elections to the Lok Sabha, Rajya Sabha and state assemblies, and the offices of the president and vice-president in the country.
Crucially, it is also in charge of ensuring that political parties adhere to the Model Code of Conduct in appealing for votes that prohibits the use of religion, hate speech, caste or communal feelings, corrupt practices, and also bars the party in power (whether at Centre or state) from using government machinery for election purposes.
Earlier this month, the V-Dem (or Varieties of Democracy) report stated that India dropped down to an electoral autocracy in 2018 and remained in this category till the end of 2023. More worryingly, under its clean elections index, the report said that India was among 18 countries in which the indicator for free and fairness of elections deteriorated substantially and significantly.
Here are five reasons why the independence, transparency and functioning of the Election Commission has come under scrutiny in the last five years:
1. Electoral bonds
The role of the Election Commission has come under the scanner in the wake of the Supreme Court declaring anonymous electoral bonds as “unconstitutional” last month.
On Monday, the apex court dismissed the plea by the State Bank of India (SBI) for an extension in complying with the court’s earlier directive on providing details related to electoral bonds.
The court also asked the Election Commission “to compile the information and publish the information on their website no later than by 5 PM on March 15, 2024.”
After initially refusing to comment, three days after the Supreme Court’s order last month, chief election commissioner Rajiv Kumar said that the commission will follow the court’s directions.
However, the Election Commission’s changing stance on electoral bonds has raised eyebrows.
Prior to the scheme being introduced in 2018, the Election Commission had written to the Ministry of Law warning against electoral bonds and said that it would help political parties hide illegal donations from foreign sources and might even “lead to increased use of black money for political funding through shell companies”.
In 2021, the EC suddenly changed its position and opposed a plea in the Supreme Court for a stay on the release of the fresh set of electoral bonds from April 1, 2021 for the assembly elections which were scheduled that year in West Bengal, Kerala, Tamil Nadu, Assam and Puducherry.
Of the total number of electoral bonds worth Rs 12,008 crore sold between 2017-2018 and 2022-2023, the BJP has received nearly 55% or Rs 6,564 crore.
2. EVMs and VVPATs
The Election Commission’s use of Voter Verifiable Paper Audit Trail (VVPAT) tallies and Electronic Voting Machines (EVMs) has come under question since the poll body started its country-wide use for the first time during the 2019 Lok Sabha elections.
Since the 2019 Lok Sabha elections, all EVMs are covered by VVPATs. A VVPAT lets a voter see a paper slip printed in the VVPAT for a period of seven seconds, displaying the name and the symbol of the selected candidate. It then drops into a sealed drop box of the VVPAT. According to Supreme Court guidelines, the Election Commission verifies VVPAT slips in five randomly selected polling stations in each assembly constituency.
In July, a parliamentary panel said that the Union government was yet to provide a reply for the last four years after it promised parliament that it would obtain information from the Election Commission about possible discrepancies between the EVMs and VVPATs during the 2019 elections.
In April, election watchdog Association for Democratic Reforms (ADR) filed a petition in the Supreme Court seeking the counting of all VVPATs in the 2023 assembly elections.
The PIL said that a “paper trail” is an indispensable requirement of free and fair elections and that the ECI should be directed to count all VVPAT slips.
In September, the Election Commission in an affidavit said to the court that 100% verification of EVMs was “regressive” and would imply going back to paper ballots. Crucially it also said there was no “fundamental right” of the voters to verify through VVPATS that their votes had been “recorded as cast” and “counted as recorded”.
In November, the apex court orally observed that enhancing the scale of EVM data cross-checking against VVPAT records would increase the election commission’s work without any “big advantage”, reported LiveLaw.
Opposition parties have also raised questions on the use of EVMs and urged the Election Commission to intervene.
3. Arun Goel’s appointment
Goel’s resignation has raised serious questions, but his appointment too was not free of controversy.
In November 2022, the Supreme Court had questioned the “tearing hurry” in which Goel was appointed as election commissioner.
Goel, a Punjab cadre IAS officer, was appointed as election commissioner on November 19, 2022 – just a day after he resigned from the Indian Administrative Service.
The apex court said the 1985-batch IAS officer got voluntary retirement from service (VRS) in just a single day, his file was cleared by the Union law ministry overnight, a panel of four names was put up before the prime minister and Goel’s name got the nod from the president within 24 hours.
In August 2023, however, the Supreme Court dismissed a PIL challenging his appointment.
Goel was in line to be the next CEC after incumbent Rajiv Kumar demits office in February 2025.
4. New law to appoint EC and CEC
The new officials who will be appointed after Goel and Panday’s departures will be the first under the new law passed by parliament during the winter session of 2023.
In December, parliament passed the controversial Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 that provides for the appointment, salary and removal of the chief election commissioner (CEC) and election commissioners (ECs), in the absence of the opposition.
Under the terms of the new legislation, the government-dominated selection committee will fill vacant slots on the commission from candidates short-listed by a search committee headed by the Union cabinet secretary.
The Bill was first introduced during the monsoon session in August and came months after a constitution bench of the Supreme Court ruled in March that election commissioners should be appointed by the president based on advice from a committee comprising the prime minister, the leader of opposition (LOP) in the Lok Sabha and the chief justice of India (CJI).
The new legislation states that the CEC and the ECs (the number of ECs will be determined periodically by the president) will be appointed by the president based on the recommendations of a selection committee.
The committee consists of the prime minister, a cabinet minister and the LOP in the Lok Sabha (or the leader of the single largest opposition party).
The legislation has raised questions about overriding executive control over the poll body.
5. Ashok Lavasa’s dissent
In August 2020, election commissioner Ashok Lavasa resigned just months short of becoming the chief election commissioner in April 2021.
His resignation came a year after he became the only member of the three-member election commission to rule that Modi had violated the Model Code of Conduct while campaigning for the 2019 general election. His demand that dissent notes should be recorded in the commission’s orders on model code violations was rejected with a majority vote.
The Wire had reported that just weeks after his dissent, Lavasa’s personal mobile number was placed on the list of numbers found on a leaked database of likely targets of Pegasus spyware.
Later in 2019, Lavasa’s wife, son and sister were placed under the scanner of various investigative agencies.
Even though he was in line to head the poll body, Lavasa opted to quit the Election Commission in 2020 and join the Asian Development Bank as vice-president, where he currently works.
Writing in The Indian Express in December 2019, mere months prior to his resignation, Lavasa said there was a “price for honesty”.
“There is a price for honesty as for everything else in life. Being prepared to pay that price, directly or by way of collateral damage, is part of the honest act,” he wrote.
India’s democratic record, a rare one in the Global South, is premised on a seamless transfer of power. Since 1952 and 17 general elections, the world’s largest, have been also been seen as among the freest and fairest in the region. There have never been doubts about the election monitoring body. Recent events, including the sudden and unexplained departure of Goel, so close to an impending election, cast an ominous shadow on its credibility.