To
Shri Rajiv Kumar
Chief Election Commissioner
Shri Gyanesh Kumar
Election Commissioner
Dr Sukhbir Singh Sandhu
Election Commissioner
Dear Dr Sukhbir Singh Sandhu, S/Shri Gyanesh Kumar/ Rajiv Kumar,
I refer to my last two letters of 23rd and 27th May, 2024 expressing my anguish and disappointment at the way the Commission had conducted elections so far, raising questions on its impartiality, independence and effectiveness as an authority expected to fulfil its mandate under Article 324 of the Constitution to conduct elections in a free and fair manner.
In addition, lest you should ignore the concerns expressed by me earlier on a range of different aspects of the ongoing elections, I refer to the series of my letters addressed to you, which can be accessed in the public domain at the following web links:
As a concerned citizen, ever hopeful that the Commission for a change would discharge its functions for once without fear or favour, let me say that the way the Commission has conducted elections till date fails to inspire public confidence and trust in its political neutrality and effectiveness.
I write this letter by way of 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 your commitment to the mandate of Article 324, not to any one particular political party, especially the BJP that heads the political executive.
The Commission does not seem to be aware, or not inclined to admit, that it has 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 in a free and fair manner. 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.”
Against this background, I raise the following questions for you to answer, in the interest of ensuring transparency in your functioning:
In my correspondence, I pointed out specific instances of the star campaigners of political parties, particularly the BJP, especially Prime Minister Modi and Home Minister 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 & 125 of the Representation of People Act, and amounted to committing penal offences under the IPC/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?
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!
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?
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 CPSEs 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?
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 4-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?
Is not the Commission aware that all 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?
Knowing well that there are gaping technical gaps in the efficacy of the EVMs, should not the Commission have agreed to order a 100 per cent cross-verification of the EVM vote-count w.r.t 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%?
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?
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 for 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 them available in the public domain?
The Commission has had no hesitation in exercising oversight on State agencies, especially their investigating agencies, during the timeframe when the MCC is in force. Why has not the Commission exercised a similar oversight on Central investigating agencies (ED/ CBI/ 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?
I demand that the Commission provide satisfactory answers for each of these questions to the public at large, promptly, openly and unhesitatingly, as otherwise, I am afraid such questions remaining unanswered would further erode the trust that the people repose in the Commission. Failure to provide answers would only accentuate public concerns about the Commission’s role.
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.
With specific reference to a series of petitions filed by civil society bodies and individuals before the apex court and some High Courts on their concerns about the fairness and transparency of the ongoing elections, the Commission was reported to have said:
There is an attempt to create an atmosphere of doubt. One day, we will definitely tell everybody about it that what is the play here, what is being done, why these doubts are birthed; we will do an exposé about it one day. We will tell everyone how people are misled this way, how because of this we end up thinking that this affects our voting. Doubts are created in people’s minds where they question if the rules, the voting lists are correct or not, if they have increased the number of voters.
It ironic that the Commission should choose to treat concerns expressed on behalf of the people at large as rumour-mongering and vexatious and launch an ugly tirade against all those who express such concerns but, at the same time, discretely opt in favour of not acting against slanderous, divisive toxic hate speeches delivered by senior star campaigners of the BJP. Such statements emanating from the Commission reflect poorly on its own credibility and effectiveness, reflect on its insensitiveness to public concerns and reluctance to uphold transparency.
The Commission should know that it is NGOs like the Association for Democratic Reforms (ADR) and others who filed PILs before the apex court in the past and were instrumental in securing landmark judgements from the apex court on mandating contesting candidates to make a public disclosure of their antecedents, mandating political parties to make a public disclosure of their sources of income and expenses, and securing more recently a far-reaching judgement on the illegality of the EBS. By making oblique, unfounded accusations against such NGOs would only weaken the strength of the Commission itself and erode the transparency of the electoral process.
While demanding straight answers to the questions posed by me above, I request you to ponder over the following cautionary words of Dr B R Ambedkar in his landmark speech to the Constituent Assembly on November 25th, 1949:
However good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot
Should not each one of you introspect on these words?
In conclusion, I refer to Gandhiji’s famous statement on instances of injustice:
To forgive and accept injustice is cowardice.
Cowardice in individuals is bad enough but cowardice in the case of those that occupy high public offices spells disaster and harm for the society.
I am circulating this letter widely as the questions I have raised in this letter are of importance for the ongoing electoral process, for the public to discuss and debate the extent to which the electoral process has remained free and fair, and the role played by the Election Commission itself with reference to its Constitutional mandate.
Yours sincerely,
E A S Sarma
-30-
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