Dated: 08-12-2023

Dear Sirs,

As you are well aware elections have become synonymous with democracy and should be conducted in such a manner so as to reflect the will and mandate of the electorate. There should be absolute faith in the electoral process and public trust in the authority conducting the elections. Unfortunately, it is not so now.

Attached herewith is the Memorandum (Text) signed electronically so far by over 6500 voters and the list of signatories. More are signing.  In addition, over 10,000 citizens have signed the Memorandum physically which is being sent separately. This has been done with our limited resources clearly indicating the huge trust-deficit that exists on the conduct of free and fair elections by the Election Commission. We are sending this by email because of late ECI has sealed itself and is not accessible to ordinary citizens like us who constitute the Indian democratic republic.

Please see the Memorandum the contents of which is self-explanatory. Link: https://www.change.org/p/ecisveep-eci-must-implement-its-constitutional-mandate-to-conduct-free-and-fair-election. Here are our demands which can substantially enhance the integrity and fairness of elections in India. These are pragmatic, well within the jurisdiction of ECI and doable within a short time. Please see that these are complied with immediately, well before the General Election to Parliament due in 2024.

1. Ensure the integrity of voting and counting

• The VVPAT system should be re-calibrated to be fully voter-verifiable. A voter should be able to get the VVPAT slip in her hand and cast it in a chip-free ballot box for the vote to be valid. These VVPAT slips should be fully counted first for all constituencies before the results are declared. For this purpose, VVPAT slips should be larger in size and must be printed in such a manner that they can be preserved for a minimum of five years.
• Subsequently, if need be, the results of the counting of VVPAT slips should be cross verified with the electronic tallies of the EVMs for every constituency before the results are declared. In case of any mismatch, the counting of the VVPAT slips should be treated as the final result as also laid down in Rule 56(d)(4)(b) of The Conduct of the Election (Amendment) Rules, 2013. Forms 17A (Register of electors) and Forms 17C (Account of votes recorded) must be tallied and be publicly disclosed at the end of polling on the polling day itself. Forms 17A and 17C should also be tallied with the manual count of VVPAT slips before the declaration of results.

2.  Ensure the integrity of Electoral Rolls

i    To prevent arbitrary deletions, the ECI must ensure that prior notice is issued to every voter whose name is proposed to be deleted. This has also been directed by the Supreme Court in its recent judgment dated 4-8-2023 in which it was stated “No deletion should be done without following due process of law as contained in the R P Act, 1950 and the Registration of Electors Rules, 1960. In all cases a notice must be issued to the elector and must be duly served on him”. This is critical to ensure that no voter is left behind.

ii   The ECI should immediately implement a transparent and public system of Social Audit of Electoral Rolls. Voter’s lists must be publicly displayed in the most accessible manner and also made available on the ECI website in a searchable database. Citizens should be empowered to check their own information as well as that of bogus names and duplicates in their area.

3.  Rein-in Money Power

The ECI must strongly advocate for transparency in political party funding and ensure that money-power does not sway elections and their outcome. It must oppose electoral bonds that provide for unlimited anonymous funding of political parties.

We urge upon the ECI to immediately act on the suggestions above, lest India gets counted among the countries holding bogus elections at “regular intervals in an organised manner” but sans integrity and fairness.

This email along with attachments is being copied to the political parties and media with the hope that they will take it forward and save India’s democracy from diminishing and decaying.

Yours Truly

M G Devasahayam

Coordinator, Citizens Commission on Elections (CCE)

Link to CCE Reports Volume I and II: CCE Report – Reclaim the Republic

The post Memorandum to ECI to implement its constitutional mandate and conduct free and fair election appeared first on SabrangIndia.

The Supreme Court upheld in its judgement dated March 2, 2023 the independence of the Election Commission of India while taking a stand that the Executive cannot exclusively appoint Commissioners. While commenting on the need for independence of the Commission, the bench of Justices KM Joseph, Aniruddha Bose, Hrishikesh Roy, CT Ravikumar and Ajay Rastogi referred to a plethora of precedents which supported this contention raised by the petitioners.

While a lot has been said by the court to uphold the independence of the Election Commision, there are some, what we would like to call, golden words, that have been spoken in this very reasoned judgement. Here are a few extracts from the judgment that deserve to be highlighted and remembered by us for a long time to come:

The cardinal importance of a fiercely independent, honest, competent and fair Election Commission must be tested on the anvil of the rule of law as also the grand mandate of equality.(Para 165)

An Election Commission which does not ensure free and fair poll as per the rules of the game, guarantees the breakdown of the foundation of the rule of law. (Para 165)

Inequality in the matter of treatment of political parties who are otherwise similarly circumstanced unquestionably breaches the mandate of Article 14. (Para 165)

Any action or omission by the Election Commission in holding the poll which treats political parties with an uneven hand, and what is more, in an unfair or arbitrary manner would be anathema to the mandate of Article 14, and therefore, cause its breach. (Para 165)

“An essential component of a constitutional democracy is its ability to give and secure for its citizenry a representative form of government, elected freely and fairly, and comprising of a polity whose members are men and women of high integrity and morality. This could be said to be the hallmark of any free and fair democracy.” [Para 28-Public Interest Foundation and others v. Union of India and others (2019) 3 SCC 224]

A person, who is weak kneed before the powers that be, cannot be appointed as an Election Commissioner. A person, who is in a state of obligation or feels indebted to the one who appointed him, fails the nation and can have no place in the conduct of elections, forming the very foundation of the democracy. (Para 186)

Criminalisation of politics, a huge surge in the influence of money power, the role of certain sections of the media where they appear to have forgotten their invaluable role and have turned unashamedly partisan, call for the unavoidable and unpostponable filling up of the vacuum. (Para 223)

The impact of ‘big money’ and its power to influence elections, the influence of certain sections of media, makes it also absolutely imperative that the appointment of the Election Commission, which has been declared by this Court to be the guardian of the citizenry and its Fundamental Rights, becomes a matter, which cannot be postponed further. (Para 225)

We have already elaborated and found that core values of the Constitution, including democracy, and Rule of Law, are being undermined. (Para 226)

The court declared that the Election Commissioners must not be chosen by the Executive exclusively and not without any objective yardstick. The court also refers to the Model Code of Conduct and the Symbols Order to infer that since the Commission is expected to act in the face of defiance, and possess a powerful weapon, “the exclusive power to appoint with the Executive, hardly helps.” (Para 172). Citing precedents, the court has also pointed out that the Election Commission has plenary powers and could exercise the same to ensure free and fair elections.

Referring to Constituent Assembly debates, the court has concluded that usage of the words ‘subject to any law to be made by Parliament’ under Article 324 of the Constitution meant that the Election Commission members cannot be exclusively appointed by the Executive.

The Founding Fathers clearly contemplated a law by Parliament and did not intend the executive exclusively calling the shots in the matter of appointments to the Election Commission, (Para 219)

The court held that the absence of such a law creates a void or vacuum. The court, pointing to the intention of political parties that never contemplated a law concerning appointment of Election Commissioners, said,

There is a crucially vital link between the independence of the Election Commission and the pursuit of power, its consolidation and perpetuation. (Para 221)

As long as the party that is voted into power is concerned, there is, not unnaturally, a near insatiable quest to continue in the saddle. A pliable Election Commission, an unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be, perhaps offers the surest gateway to acquisition and retention of power. (Para 222)

While the court said it cannot issue a writ of mandamus to the legislature to legislate, it also said,

In the unique nature of the provision, we are concerned with and the devastating effect of continuing to leave appointments in sole hands of the Executive on fundamental values, as also the Fundamental Rights, we are of the considered view that the time is ripe for the Court to lay down norms. (Para 227)

The court opined that the appointment by the Executive of Election Commissioners was “to be a mere transient or stop gap arrangement and it was to be replaced by a law made by the Parliament” (Para 227).

The court viewed this to be a clear and inevitable conclusion of Article 324.

The court thus deemed it appropriate that:

The appointment of the Chief Election Commissioner and the Election Commissioners, shall be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha, and in case no leader of Opposition is available, the leader of the largest opposition Party in the Lok Sabha in terms of numerical strength, and the Chief Justice of India. (Para 230)

We make it clear that this will be subject to any law to be made by Parliament. (Para 231)

The complete judgement may be read here:

Related:

Independence of elections was envisaged as fundamental right by Constitution makers

Academic excellence cannot be a substitute for freedom from bias of political affiliation: SC in ECI judgment

Election Commissioner to be appointed on advise of PM, leader of opposition and CJI: SC

How Independent is India’s Election Commission?

Appointment of Election Commissioner under SC scrutiny: The story so far

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