The Wire
M.G. Devasahayam

India’s electoral process goes through several stages – notification, nomination, campaigning, polling, transportation, storage, counting, and declaration of results. Notification is done by the EC and candidates do the campaigning. And it is the ROs who carry out the rest.

In the Indian electoral system, the Election Commission of India (ECI) is responsible for the “superintendence, direction and control” of the elections to Parliament and state assemblies while it is the Returning Officer (RO) in each constituency who is the actual pivot in conducting free and fair elections.

The ROs are statutory authorities; Section 24 of the Representation of Peoples Act-1951 lays down: “General duty of the returning officer — It shall be the general duty of the returning officer at any election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by this Act and rules or orders made thereunder.” 

Almost all ROs are district collectors/magistrates who are members of the Indian Administrative Service (IAS). All of them on entry into service take this solemn oath: “I do swear/solemnly affirm that I will be faithful and bear true allegiance to India and to the Constitution of India by law established, that I will uphold the sovereignty and integrity of India and that I will carry out the duties of my office loyally, honestly and with impartiality.”

A series of Supreme Court judgments has established that ‘free and fair election’ is the essence of a democracy and is a basic structure of the Constitution. Therefore, conducting such elections is the greatest litmus test of an IAS officer in upholding this oath.  

Why has the matter of invoking the oath come up now?

Around 47 years ago, I was the RO of an important constituency in North India during the 1977 general elections, which were held in a tense atmosphere after the national emergency when Prime Minister Indira Gandhi was ruling the roost.

The core issue in the polls was democracy versus autocracy and people had to make the choice. For this, the election had to be absolutely free and fair and it was the job of the ECI to ensure that. T. Swaminathan as the chief election commissioner (CEC), heading the single-member commission, rose to the occasion and ensured this.

The ROs stood by their oath and the people gave their mandate without fear or favour with nearly two-third of the electorate voting democracy back. Swaminathan was a member of the Indian Civil Service (ICS), the precursor to the IAS. As ‘sentinel of democracy’ he is the role model for election commissioners, not T.N. Seshan or anybody else who held elections only during normal times.

The core issue in 2024 elections is almost the same and tension is as much if not more. But the multi-member EC, as of now, has given no indication of ensuring free and fair election.

In an article titled ‘A new low, no longer an umpire: Political scientists decry Election Commission’, The Wire wrote:

“The Election Commission (EC) has been strongly decried by senior political scientists. A primary function of the EC has been to infuse confidence in the objectivity and fairness of India’s electoral process. But the EC has been in the news for over a year now over questions about its autonomy and impartial functioning. From the way appointments have been made, in contravention of the Supreme Court guidelines from May 2, 2023, to the sudden and unexplained exit of the former Election Commissioner Arun Goel, days before the announcement of the poll schedule, to its muted response to questions about electoral bonds, now deemed unconstitutional. Most recently, the EC has been questioned over the inordinately long poll schedule, postponing the polls in Anantnag, then abandoning its practice of sharing data on actual votes polled rather soon after polls closed in each phase, as well as meeting the media each time. The EC’s silence over hate and misinformation-laden speeches of the Prime Minister have also attracted comment.” 

There are other serious flaws as well in the functioning of the EC and these are of serious concern. As is known, India’s electoral process goes through several stages – notification, nomination, campaigning, polling, transportation, storage, counting and declaration of results. Notification is done by the EC and candidates do the campaigning. And it is the ROs who carry out the rest. Of these the most critical are the last two which finally bring out the mandate of the people. And this critical activity has come under serious suspicion because while the EC is willing to take weeks and months to go through the different processes it is in a tearing hurry to do the counting and declaring results all in a few hours.

With this in view, the commission has been stubbornly refusing to count VVPAT slips, which is the real vote, and is not willing to cross-verify with electronic voting by adopting an appropriate statistical model. To avoid this essential ‘democracy principle,’ the EC has gone to the extent of filing false affidavits in the Supreme Court concealing facts about the design and functioning of the EVM/VVPAT system and the time needed for cross verification. In the event counting and declaration of results could be subject to manipulation and vote stealing.

The EC is also resorting to chaos in the publication of voter turnover data and percentage. As per the Association for Democratic Reforms (ADR), which has filed an application in the Supreme Court seeking to direct the EC to publish the absolute numbers of votes polled immediately:

“The data as published by the ECI in its press release dated April 30, 2024 shows a sharp increase (by about 5-6%) as compared to the initial percentages announced by ECI as of 7 PM on the day of polling. It is submitted that the inordinate delay in the release of final voter turnout data, coupled with the unusually high revision (of over 5%) in the ECI’s press note of April 30, 2024, and the absence of disaggregated constituency and polling station figures in absolute numbers, has raised concerns and public suspicion regarding the correctness of the said data.” 

When Congress president Mallikarjun Kharge pointed this out in an inter-party communication and questioned whether data is being ‘doctored’, the EC came down heavily and reprimanded him:

“Utterances from the president of a national political party attacking the very credibility of the electoral steps and processes can have a negative impact on voter participation and can be seen as a means to deter an elector from exercising their franchise and/or demoralising the huge number of election staff and machinery which is mainly drawn from the respective State Governments.”

The EC also went on to say that Kharge’s allegations bordered on “vitiating the constitutionally mandated work of ECI” but did not bother to address any of the issues raised. 

A media collective led by the Press Club of India (PCI) retorted and urged the EC to release all the data on a phase of polling no longer than one day after voting ends. They said they were “dismayed” that the EC hadn’t held a press conference on the general elections yet though three phases were already complete despite the earlier practice of holding a press conference after voting in each phase. One wonders what the EC is afraid of. According to the media collective, the EC not releasing the information has “led to apprehension in the minds of people about the fairness of the elections.” 

But instead of sorting out the issue, the EC is taunting political parties and candidates to gather the data by accessing “voter turnout app” and compiling the massive number of Form 17C made available in the polling booths which is over 1.2 million. This will certainly lead to several errors and mismatches that could cause chaos on the counting day and in declaration of results.

As it is, the EC refuses to explain the EVM vote-count mismatch in 370+ seats in the 2019 parliamentary elections:

“Mismatch in votes polled & counted in EVMs in multiple Parliamentary constituencies in LS Election 2019… The Quint has deep-dived into two sets of data shared by the Election Commission of India (EC); first, the voter turnout/votes polled data on the Electronic Voting Machines (EVMs) and second, the votes counted data on EVMs in the Lok Sabha Elections 2019. We have found serious discrepancies in the two sets of data in 373 constituencies which went to polls in the first four phases of the election.”

Incidentally, the writ petition in the matter filed by ADR in the Supreme Court about five years ago is still pending. So much for the EC doing its “constitutionally mandated work and the apex court diktat that every citizen should have blind trust in the institutions. 

As we have seen, counting is being rushed through by the EC without any rhyme or reason. This along with chaos and confusion in critical voter turnout data could lead to corruption in counting resulting in the stealing of people’s mandate. In this context, a quote attributed to Russia’s ruthless dictator Joseph Stalin is worth mentioning: “It is enough that the people know there was an election. The people who cast the votes decide nothing. The people who count the votes decide everything.” 

This is true of autocracies. But India is still a democracy and votes here would be counted by 543 returning officers who have taken oath of allegiance to the Constitution which is the bedrock of Indian democracy. They hold the key for the conduct of free and fair election, counting and declaration of results and I am sanguine they will stand by their oath, be true to ‘people’s mandate’ and uphold world’s largest democracy. 

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