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 letters addressed to you on several instances of prima facie violation of the Model Code of Conduct (MCC) committed by Prime Minister Modi at electoral rallies. My letters are accessible at

https://thewire.in/government/is-election-commission-afraid-to-act-on-my-mcc-complaint-against-modi-former-bureaucrat-asks

https://countercurrents.org/2024/04/pms-speech-in-connection-with-surya-tilak-at-ayodhya-mandir-does-it-violate-the-model-code-of-conduct/

I find that the Election Commission has failed to act on my letters, thus choosing to remain a mute spectator to such serious MCC violations, which has encouraged several other star campaigners of BJP to do likewise, making a mockery of the Commission’s role and the idea of free and fair elections.

The latest instance of the BJP using a religious symbol to appeal to voters has been reported at https://thewire.in/politics/bjp-makes-direct-appeal-to-religion-silence-period-ahead-of-polling

May I remind the Commission of the implications of Section 123(3) of the Representation of the People Act, which describes a candidate or a party appealing to vote on religious grounds as committing a “corrupt practice” as follows?

“Section 123(3): The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate“

I feel anguished at the way the three of you occupying the office of a Constitutional authority under Article 324 should ignore my letters and the implications of the Representation of the People Act, suggesting that you have chosen to remain subservient to the ruling party, becoming a spectator, or even a party to BJP openly using religion to appeal to voters.

I hope that this letter will generate a wide public discussion on the role of the Commission and the divisive politics that seem to dictate the 2024 elections like never before.

May I once again, at the cost of repetition, remind you that you have been chosen by the government to occupy such a high office post-retirement, not available to most of your colleagues, and, if you, instead of fulfilling the mandate of Article 324 to function as a politically neutral body, choose to function as an authority afraid of the political executive, you will be committing a breach of that mandate and a breach of of public trust?

Please remember, you three Election Commissioners are accountable to the people, not the political executive that has chosen you.

Yours sincerely,

E A S Sarma

Former Secretary to the Government of India

Visakhapatnam

Courtesy: CounterView

The post Has the Election Commission chosen to become a willing party to BJP using religion for votes in violation of the MCC and Section 123 of the Representation of the People Act? appeared first on SabrangIndia.

The Open letter made public on December 25, 2023 may be read here:

To
Shri Rajiv Gauba
Cabinet Secretary
Govt of India

Dear Shri Gauba,

I refer to the news report which revealed that the Aadhar data relating to 815 million citizens had been leaked, with the data put on sale in the dark web. This implies that the Aadhar data of 57% of the population of India is on sale. One is not sure whether the data relating to the rest of the population are also leaked! 

This is far too serious a matter for it to be treated lightly and it calls for nothing less than an independent judicial enquiry, for the following reasons:

1. It is the government that has been obstinately insisting on Aadhar card linkage for every conceivable part of the citizen’s life, including bank accounts, medical insurance, Covid testing/ vaccination, voter’s identity, passports and whatnot, without putting in place a commensurate fool-proof security system to pre-empt hacking and leakage of the personal information of the citizens.
2. I had earlier written to the Election Commission of India (ECI) that in many States, the number of Aadhar cards exceeded the population and a sharp spike in the number of Aadhar cards had been observed in some sensitive States, giving room for the proliferation of fake Aadhar cards. My letter dated 29-4-2023 (https://countercurrents.org/2023/04/proliferation-of-fake-aadhaar-cards-a-threat-to-integrity-of-2024-elections/) refers. Already, in several States, there have been instances of single households having hundreds of voter identity cards, about which the Commission is fully aware. Are some political parties involved in manipulating the electoral rolls to their advantage by misusing the above-cited Aadhar data? This can play havoc with the integrity of elections during general elections of 2024.
3. Had the government conducted the 2021 Census on time, there would have been a basis for cross-checking the State-wise Aadhar card numbers as a macro verification instrument. It is the Centre, citing the COVID epidemic, that insisted on deferring the 2021 Census, conveniently forgetting that even when the Spanish Flu paralysed India around 1918-19, the then government with little resources, preferred to conduct the 1921 Census, given its importance as an important statistical necessity. Should not the government own responsibility for deferring the Census count and depriving the country of an authentic population count?
4. By resorting to unduly excessive use of Article 282 of the Constitution to escalate the multiplicity of Centrally Sponsored schemes (CSSs) to a mind-boggling number of 314 involving Rs 4.76 lakh crores of public money, largely transferred directly to the beneficiaries’ bank accounts linked to their Aadhar Cards, the large-scale existence of fake Aadhar cards would have led to large numbers of fake Jandhan bank accounts, resulting in public funds going to wrong beneficiaries. I have brought this to the notice of the Finance Ministry without eliciting any response (https://countercurrents.org/2023/07/length-of-the-last-mile-how-well-the-welfare-schemes-fare-in-the-last-mile/). Who are the beneficiaries of the mis-directed public funds?
5. The sale of Aadhar data through the dark web, as reported, has enabled hackers to obtain mobile numbers linked to those Aadhar cards and misuse them in myriad ways, including hacking bank accounts, harassing people through such fake mobile numbers and so on. For no fault of theirs, the citizens find themselves subject to investigation by the police and other agencies. I have brought instances of this kind to the attention of TRAI, RBI, and UAIDA without much response. 

Since individual regulatory authorities seem to be treating this matter somewhat casually, leaving unwary citizens in the lurch and since the consequences of the Aadhar breach can create all-round chaos and lawlessness, the Centre is under an obligation to institute an independent enquiry by members of the higher judiciary so that the citizens may repose trust in its credibility.

Kindly treat this as urgent as the 2024 elections are not far away and large-scale hacking of bank accounts etc. is already taking place, which the government cannot afford to ignore.

Regards,

Yours sincerely,

E A S Sarma
Former Secretary to the Government of India
Visakhapatnam

Related:

MHA authorises Registrar General to authenticate Aadhar for birth and death registration

Centralising record of deaths and births: Centre’s play at a future NRC?

Census is not a priority for the Union government

Identifying fake Aadhaar, a plot to bring in CAA-NRC?

The post Widespread leak of citizens’ Aadhar data- urgent call for an independent judicial enquiry to protect citizens from harassment appeared first on SabrangIndia.

Respected Chief Minister,

At the recent Niti Ayog meeting, the Prime Minister (PM) is reported to have said that “India’s federal structure and cooperative federalism emerged as a model for the world during Covid crisis” (https://www.hindustantimes.com/india-news/indias-federal-structure-became-role-model-covid-19-pm-modi-niti-aayog-meeting-101659873302169.html).

While the sentiment underlying the statement is commendable, it is important that it is translated into tangible action in all respects.

In the past, I had addressed you through a series of letters about the areas in which the Centre took unilateral decisions without consulting the States, despite the fact that such decisions had the effect of impinging on the States’ economy and their governance, and the necessity that the States should come together on a common platform to take up such matters collectively, so as to persuade the Centre to respect the lakshman rekha of federalism.

You are aware of how the Centre, without consulting the major stakeholders, namely, the States and the farming community, had rushed into enacting three contentious farm legislations and proposed a Bill to amend the Electricity Act of 2003, which would have hurt the farmers’ interests, as also the finances of the State power utilities and the interests of the electricity consumers. The Centre had to revoke those laws eventually, when the farmers across several States protested vehemently. At that time, the Centre had assured the States and the farmers that it would hold prior consultations with them before acting on those legislative measures in the future.

In my last letter dated 23-7-2022 addressed to you (thttps://countercurrents.org/2022/07/letter-to-the-state-chief-ministers-come-together-on-electricity-and-msp/), I expressed my apprehension that the Centre could renege on its assurance to the States and re-introduce the electricity Bill in the ensuing monsoon session of the Parliament, in which case, some of the regressive provisions of that Bill would become a reality, including the entry of profiteering private companies in remunerative distribution segments, mandatory absorption of expensive renewable energy, dis-continuance of cross-subsidisation etc., imposing heavy costs on the State utilities, resulting in higher electricity tariffs, which in turn would hurt the interests of the consumers, especially the farmers, the small business enterprises and the low-income households.

As expected, the Centre has since tabled the Bill to amend the Electricity Act, 2003, without consulting the States, the farmers associations, the other consumer groups, the utility employees and so on. Surprisingly, the Centre has also come up with a second Bill, proposing amendments to the Electricity Conservation Act of 2001, which also incorporates several regressive provisions that impose a heavy cost burden on the State power utilities. Apparently, the provocation for this is the commitment that the PM had given at the 26th UN Climate Change Conference of the Parties at Glasgow in October-November, 2021 (COP26), which have forced the government to mandate overly ambitious targets to be achieved by India for transiting from coal-based electricity to renewables, mostly solar photo-electric (PV) energy.

So far, India’s efforts in promoting solar PV electricity have their focus on large centralised solar generation plants, predominantly owned and controlled by private corporate entities, based on long-term Power Purchase Agreements (PPAs). Such plants operate at low capacity utilisation levels as they depend critically on solar radiation available on cloud-free days. They appropriate large tracts of land. Transmission of electricity from the centralised solar plants to the consumers involves significant technical losses.

While the unit costs of PV electricity have been on decline due to technological improvements, the long-term PPAs with the solar plant promoters do not permit such improvements to be factored in and the corresponding tariff benefit passed on to the consumers. While several States had made attempts to renegotiate the PPAs for the benefit of the consumers, the Bill that amends the 2003 Electricity Act has a provision to tie the hands of the States in that respect, as if to benefit the private promoters of the solar plants.

It is doubtful as to how long the present trend of declining unit PV costs would continue, as there is a near monopoly in the hands of a few overseas companies on the basic raw materials used in solar PV panels and one cannot rule out the possibility of the unit costs showing an upward trend in the near future. Such monopolies could also create uncertainties in the supply line for solar PV manufacture.

Also, large scale dependence of the electricity supply system on solar energy, as is being planned by the Centre, will pose problems for grid stability, as being witnessed in Australia and a few other countries. It is coal-based electricity generation in India that has so far facilitated grid stability.

The Bill amending the 2003 Act has provisions that mandate compulsory absorption of solar and other renewable forms of energy by the State utilities, irrespective of the costs, which implies that a State power utility would be precluded from drawing less expensive forms of energy, merely to comply with such an externally imposed mandate, to the cost of their own finances and to the detriment of the consumers’ interests.

As if this is not enough trouble for the State utilities, the Bill also imposes constraints on them, in terms of payment security verification by the load despatch centres, coming in the way of the merit-order despatch system administered by the latter, though the financial problems faced by the State power utilities are partly contributed by Central agencies and the Centre seems to ignore that fact conveniently.

For example, during last year and more recently during the current year, when acute coal shortages arose as a result of Centre’s mismanagement of domestic coal supplies, the Centre had conveniently passed on the blame to the States, forcing them to import coal at exorbitant prices, a measure seen by many as a ploy to grant undue benefits to domestic private business houses who supply coal from their overseas mines. The Centre is yet to compensate the States for the additional costs on imports.

The second Bill, which seeks to amend the Electricity Conservation Act of 2001, to some extent, reinforces the mandatory requirement that the State power utilities should absorb electricity supplied from renewable sources but it also lays down a tight time scale for escalating the minimum threshold levels for such mandatory drawal of renewable energy, presumably in line with the goals committed by the PM at Glasgow. What should cause concern to the States is that the Centre should impose such a regressive mandate without caring to analyse the cost implications of it and how it would cripple the finances of the already debt-burdened State utilities. The resultant tariff escalation would hurt the electricity consumers in the States and would also have adverse implications for the economy of the States.

It is not the Centre, but the States that stand accountable to the consumers in their respective areas.

There are other provisions of the two electricity Bills which are equally regressive and the States may get them examined in detail. Some of us could provide inputs, if needed.

Had the Centre held consultations with the States well in advance of the Glasgow conference on the technological and financial implications of the use of renewable energy, the mechanisms that should exist in place for the State utilities and the consumers to be compensated for the additional costs, if any, and the ways and means of the Centre helping the States in making a smooth transition to renewable energy, the Centre would have been able to evolve a domestic consensus on the basis of which it could have made implementable commitments at the UN COP26.

After all, the term “cooperative federalism” referred by the PM at the recent Niti Ayog meeting represents such consensus building in consultation with the States.

In principle, it is unacceptable that, in a federal set up like ours, the Centre should unilaterally take decisions that weaken the hands of the States in the matter of governance, impose schemes that may not fit into the State’s own development priorities and cast statutory obligations that impose costs on the States. The two Bills now tabled in the Parliament, one to amend the 2003 Electricity Act and the second to amend the 2001 Electricity Conservation Act amount to such an imposition. Had the Centre been more sensitive to the spirit of federalism, it would have prepared analytical papers on the technical and the financial implications of the proposed legislative measures and circulated them in advance to the States for eliciting their views.

Against the above background, I would once again appeal to you to bring this up collectively on behalf of a “Federal Front” to persuade the Centre not to overstep the lakshman rekha of federalism and hold meaningful prior consultations with the States and the other stakeholders, before proceeding further on these two Bills.

In the federal scheme of governance provided in the Constitution, the subjects to be dealt with by the Centre exclusively, those by the States exclusively and those concurrently by the Centre and the States stand well defined. In principle, the States which are nearer the people in terms of governance and, therefore, better placed to understand their needs, should have a greater say in decision making in matters that concern the people. In the recent times, in the name of several Central and Centrally Sponsored Schemes (CSSs), the Centre has been intruding into the domain of the States and resorting to direct transfer of cash assistance to the beneficiaries through the banking system, bypassing the States and the local bodies. During the last few years, there has also been a shift away from capacity building assistance under the CSSs towards direct cash assistance, which tends to push the beneficiaries into dependence on Centre’s munificince rather than being empowered to be self-reliant. These are disturbing trends that need to be discouraged.

I earnestly hope that you will take up such issues collectively in the coming days.

Regards,

Yours sincerely,

E A S Sarma

Visakhapatnam

Former Secretary to Government of India

Courtesy: https://countercurrents.org

The post Two Electricity Bills tabled in the Parliament without consulting the States – Letter to the Chief Ministers of States appeared first on SabrangIndia.

Sarma has been a stringent critique of some of the policies of the Modi regime, sharply criticising even the manner in which the FCRA was amended (without debate) to allow political parties access to funds. The Modi regime’s crackdown on human rights organisations etc over the issue of FCRA has been widely condemned, including by the United Nations. The letter has also been copied to union finance minister, Arun Jaitley.
 
The text of the Open letter may be read here:
 
To,
Hon Prime Minister,
Shri Narendra Modi,
 
I refer to my letter dated March 21, 2018 (copy included below) on the questionable manner in which your government had gone to the extreme extent of amending Foreign Contributions Regulation Act (FCRA) retrospectively to pave the way for political parties such as BJP and INC to receive donations from foreign companies. In other words, your government had no hesitation whatsoever in going out of the way to clear legislative hurdles so as to enable you to open the floodgates to foreign donations to fund your electioneering activity.
 
What surprises me is that, in the same breath, your government should deny Kerala government to accept foreign donations, not for political purposes, but for providing relief to millions of those who are reeling under the recent flood deluge. I understand that UAE has offered around Rs 700 crores to Kerala by way of relief but, as reported, your government has raised objections to allowing Kerala government accepting that offer.
 
You yourself perhaps visited UAE in February this year and signed several MOUs including one on immigrant Indian workers in that country. I am sure you have seen how Kerala immigrants are employed in large numbers by various UAE agencies in different walks of life, contributing their might to that country’s development. That was the reason why UAE has offered aid to Kerala.
 
If political parties are empowered through legislative instruments to seek and receive donations from foreign agencies. would it be appropriate for your government to raise objections to Kerala receiving aid from UAE merely for providing relief to its flood victims?
 
There cannot be double standards in foreign donations being received, one for political parties and another for State governments facing the onslaught of natural calamities.
 
I hope you will ponder over what I have stated above and allow as much of relief as possible to reach Kerala on time, from whatever source it comes. This is a time when technicalities should be relegated to the background and humanity pushed to the front.
 
Regards,
 
Yours sincerely,
 
E A S Sarma
Former Secretary to GOI
August 22, 2018
 
Text of March 2018 Letter to PM and FM may be read here:
 
To
Shri Narendra D Modi
Prime Minister
Shri Arun Jaitley
Union Fiance Minister
 
Dear Shri Modi and Shri Jaitley,
I write this letter in anguish, in continuation of my earlier letter dated 3-2-2018, on NDA government’s ill advised but persistent move to amend Foreign Contribution Regulation Act (FCRA), 1976 retrospectively, merely to escape the penal provisions of that Act with specific reference to the violations committed by BJP and the other political parties who accepted donations from foreign multi-national companies (MNCs) illegally.
 
What I feared has since become a harsh reality, when the Finance Bill, 2018, along with its egregious and highly objectionable provision to amend 1976 FCRA, was hurriedly got enacted in the Parliament a few days ago, without any semblance of a discussion and a debate. The most distressing aspect of it is that FCRA 1976 had already lapsed in 2010, when UPA introduced a successor legislation in the avatar of FCRA 2010. To revive a dead law only to amend it represents the height of innovative legal jugglery!
 
One can understand a law being amended retrospecively to safeguard the national interest, or to ensure national security, or to protect the disadvantaged sections of the society. A law being altered, to efface the statutory sins committed by the political parties in the past and allow them to fill their coffers with the bounty provided by the foreign MNCs in the future, is not only unethical but also having far reaching adverse implications for the integrity of India’s democracy and preservation of the security of the nation. Soon, I would not be surprised if the elections in India are orchestrated by foreign MNCs with their money power and the national policies are dictated by them to suit their interests. Perhaps, it has already started happening.
 
I had earlier pointed out how some mining companies, involved in under-invoicing of the indigenously extracted iron ore exported outside the country, are reported to be holding illicit foreign accounts and apparently round-tripping funds from those accounts to their subsidies in India and providing donations to political parties who in turn have been allowing those very same companies to violate the law of the land and commit serious human rights violations. The successive Finance Acts during the last three years have unabashedly “legalised” this dubious cycle of sleeze and corruption. You should read Justice Shah Committee’s report on illegal iron ore mining in Goa to appreciate wht I have said. I have filed a formal complaint before the Central investigation agencies to investigate this but I am not sure whether they will ever be allowed to act.
 
While India’s Finance Ministry is busy amending FCRA to enable the political parties to receive bounties from foreign MNCs so that those political parties may splurge funds on extravagent electioneering that makes a mockery of the ideals of Dr B R Ambedkar and the other elders who gave us a unique Constitution, Finance Minsitries in the other countries, who are accountable to the public in their respective countries, have been watching the conduct of those very same MNCs and avoiding any financial transactions with them, lest their voters should question their motives. I enclose here an extract from the website of the Norwegian Sovereign Wealth Fund managed by that country’s Finance Ministry which has made the following observation.
 
“On the 13th of September 2013, the Ministry of Finance received a recommendation from the Council of Ethics to exclude the company Sesa Sterlite from the GPFG. The recommendation builds on an earlier recommendation to exclude the company Vedanta Resources Ltd. (Vedanta ) and two of its subsidiaries, which operate in India. The Ministry followed the Council’s recommendation to exclude Vedanta and its two subsidiaries in 2007…………………..Sesa Sterlite is a newly established subsidiary of Vedanta. The Council’s assessment is that the relevant operations in India, which are currently run through the company Sesa Sterlite, present an unacceptable risk of environmental damage and serious violations of human rights. The Council has regularly updated its assessment of Vedanta and the basis for exclusion is still considered to be present. The Ministry of Finance, in accordance with the Council’s recommendation, has decided to exclude Sesa Sterlite from the Fund’s investment universe, as well as to maintain the exclusion of Vedanta.”
 
You may recall that the order dated 28-2-2014 pronounced by Hon’ble Delhi High Court in WP (C) No 131/2013, in which I was a petitioner, referred to this very same group of companies and the FCRA violations committed by them.
 
NDA government’s FCRA amendments have the effect of regularising the violations committed in the past and legalising foreign bounties in the future. I request you to ponder over what you have done vis-a-vis how the Norwegian Sovereign Wealth Fund manager, namely, the Norwegian Finance Ministry has dealt with the very same MNC. The Norwegians must be wondering at the intricacies of our democracy!
 
Apart from the morality and the ethics underlying the damage you have wrought on FCRA, do you consider what you have done to be legally permissible? It may not be.
 
I have enclosed here a copy of a judgement pronounced by Hon’ble Supreme Court on 15-3-2018 in Civil Appeal No 5793/2008 (State Of Karnataka vs Karnataka Pawn Brokers Assn. . on) in which the apex court has made the following observation.
 
“On analysis of the aforesaid judgments it can be said that the Legislature has the power to enact validating laws including the power to amend laws with retrospective effect. However, this can be done to remove causes of invalidity. When such a law is passed the Legislature basically corrects the errors which have been pointed out in a judicial pronouncement. Resultantly, it amends the law, by removing the mistakes committed in the earlier legislation, the effect of which is to remove the basis and foundation of the judgment. If this is done, the same does not amount to statutory
overruling……However, the Legislature cannot set at naught the judgments which have been pronounced by amending the law not for the of making corrections or removing anomalies but to bring in new provisions which did not exist earlier. The Legislature may have the power to remove the basis or foundation of the judicial pronouncement but the Legislature cannot overturn or set aside the judgment,that too retrospectively by introducing a new provision. The legislature is bound by the mandamus issued by the Court. A judicial pronouncement is always binding unless the very fundamentals on which it is based are altered and the decision could not have been given in the altered circumstances. The Legislature cannot, by way of introducing an amendment, overturn a judicial pronouncement and declare it to be wrong or a nullity. What the Legislature can do is to amend the provisions of the statute to remove the basis of the judgment”
 
Apparently, the decisions to amend FCRAs of 1976 and 2010 ware not based on a sound legal premise. Perhaps, your government was in too much of a haste to wait, pause and look into the ethics and the legality of the decisions. Perhaps, the sole objective of these decisions was to somehow obliterate the past statutory violations and create scope for receiving foreign contributions through the subsudiaries of the MNCs.
 
Latest studies have shown that BJP has been the largest recepient of such donations, which corroborates what I have said. Political donations are not given by private companies out of their love for democracy. They know where they can seek policy tweaks to furher their own interests.
 
I request you to consider carefully what I have stated in the previous paragraphs and the earlier correspondence and, for the sake of electoral ethics and morality, immediately revoke all amendments to FCRA and the corresponding amendments to the Companies Act, failing which I will no other alternative than to seek judicial intervention.
 
I am sure that both of you, being fully committed to maintaining the integrity of the electoral system and safeguarding the national interest, will revisit these amendments and revoke them to uphold the democratic processes.
 
I am circulating this letter widely among all political parties and the public at large in order to generate a comprehensive debate on the issues I have raised.
 
Regards,
 
Yours sincerely,
 
E A S Sarma
Former Secretary to GOI
 
March 21, 2018
 
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