The most unfair elections in history

Serious irregularities have surfaced in the conduct of the recently concluded Lok Sabha elections even after the results were declared on 4 June. This was arguably the most unfair and incompetently run election in India’s history. It saw serious violations of the law, the Supreme Court’s directions and the Model Code of Conduct—and yet, inexplicably, not much attention has been paid to these irregularities. A review is in order.

Section 59 of the Representation of People’s Act, 1951 (RPA) mandates the conduct of elections through ballot paper. This is what the provision says: ‘At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed and, save as expressly provided by this Act, no votes shall be received by proxy.’

Section 61A of the RPA provides for voting machines at elections, but subject to conditions: ‘…the giving and recording of votes by voting machines in such manner as may be prescribed, may be adopted in such constituency or constituencies as the Election Commission may, having regard to the circumstances of each case, specify,’ it reads.

Note: While Section 59 uses the word shall, Section 61A says only may, which makes the legislative intention clear—conduct of elections in India should be with ballot papers and the EVM may be an option if that was not possible.

Therefore, the Election Commission of India (ECI) is required to issue a constituency-wise ‘notification’ explaining the circumstances under which elections could not be conducted with ballot papers.

No such notifications were issued by the ECI either before or after the announcement of the election schedule on 16 March 2024. This makes the election ab initio illegal.

No code of conduct

The ECI’s total inaction on the violation of a) the Model Code of Conduct, b) Sections 123(3) and (3A), 125 of the RPA, and Section 153A of the Indian Penal Code by Prime Minister Narendra Modi.

At an election rally in Rajasthan’s Banswara on 21 April 2024, Modi claimed the Congress manifesto had promised to seize and redistribute private wealth of Indians among “infiltrators” and “those who have more children”—a dog whistle reference to India’s Muslims.

In the same speech, the prime minister claimed that the Congress would snatch away the mangalsutras worn by married Hindu women in its bid to distribute wealth among Muslims. Nearly 20,000 individuals had collectively written to the ECI urging action against the PM.

But there was not even a whimper from the ECI on this and other ‘poisonous arrows.’ Emboldened by this, Prime Minister went on making more inflammatory statements that clearly violated the MCC and RPA.

Discrimination by ECI? 

The Chief Election Commissioner (CEC) Rajiv Kumar claimed that the ECI had decided to not admonish Narendra Modi and Amit Shah of the BJP and Rahul Gandhi and Priyanka Gandhi Vadra of the INC.

“We deliberately decided … that the top two people in both the parties we did not touch. Both party presidents we touched equally … The persons in position in this huge country also have responsibility. We reminded them of their responsibility,” Kumar had said. This amounted to discrimination by the CEC.

Article 14 of the Constitution, titled ‘Equality before law’, reads as follows: ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India’. It is the provisions of Article 14 that the Election Commission prima facie appears to have violated.

ECI’s defiance of SC orders. In its judgment of 8 October 2013, the Supreme Court had clearly laid out the purpose of introducing the Voter Verifiable Paper Audit Trail (VVPAT)—to make the EVM voting/ counting comply with the essential ‘democracy principles’ of end-to-end (E2E) verifiability, i.e. the voter should be able to verify that her vote is cast as intended, recorded as cast and counted as recorded.

This ipso facto means that printed slips in the VVPAT machines should be counted before declaring results. Without counting of VVPAT slips in a significant percentage of polling stations in each assembly constituency, the objectives of verifiability and transparency remain unrealised.

But the ECI, vide its letter dated 13 February 2018,  directed state chief electoral officers to mandatorily verify VVPAT paper slips in only one randomly selected polling station in each assembly constituency. This being around 0.5 per cent of the sample size, defeated the very object of installing VVPATs in all EVMs, and is tantamount to non-implementation of the Supreme Court’s order.

Ironically the Supreme Court endorsed this gross violation when a bench consisting of Justice Ranjan Gogoi and Justice Sanjay Khanna passed this order on 08 April 2019: “… our considered view is that the number of EVMs that would now be subjected to verification so far as VVPAT paper trail is concerned would be 5 per assembly constituency or assembly segments in a parliamentary constituency…”

E2E verifiability was thus intentionally denied.

E2E verifiability blocked 

The Citizens Commission on Elections (CCE) in its report titled “Is the Indian EVM and VVPAT system fit for democratic elections?” had said in January 2021 that the EVM system did not provide provable guarantees against hacking, tampering and spurious vote injections and the VVPAT system as practised did not allow the voter to verify the slip before her vote is cast. The absence of E2E verification would lead to voting and counting manipulation, the report stated, while suggesting remedial measures.

In August–September 2023, civil society groups submitted a memorandum to ECI signed by about 10,000 voters making a specific demand: ‘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 counted first for all constituencies before the results are declared.’ ECI did not even acknowledge this memorandum.

The matter therefore went before the Supreme Court in W.P (C) No. 184 of 2024 wherein the above demand was rejected. The ECI had succeeded in effectively blocking E2E verifiability, thereby paving the way for voting and counting manipulation on a selective and secretive basis.

Counting more votes than polled? 

The 2024 Lok Sabha elections data shows discrepancies in almost all PCs. A close look at EC data from 543 PCs shows that except for a few PCs like Daman & Diu, Lakshadweep and Attingal in Kerala, the number of EVM votes counted differs from that of EVM votes polled. In more than 140 PCs, the number of EVM votes counted surpassed the number of EVM votes polled. The ECI is unable to give any satisfactory response to this apparent fraud.

ECI’s delayed SOP 

In a judgment delivered on 26 April 2024, the Supreme Court opened two windows for verification through these directions:

(a) On completion of the symbol loading process in the VVPATs undertaken on or after 01.05.2024, the symbol loading units shall be sealed and secured in a container. The candidates or their representatives shall sign the seal. The sealed containers, containing the symbol loading units, shall be kept in the strong room along with the EVMs at least for a period of 45 days post the declaration of results. They shall be opened, examined and dealt with as in the case of EVMs’; 

(b) The burnt memory/ microcontroller in 5 per cent of the EVMs, that is, the control unit, ballot unit and the VVPAT, per assembly constituency/ assembly segment of a parliamentary constituency shall be checked and verified by the team of engineers from the manufacturers of the EVMs, post the announcement of the results, for any tampering or modification, on a written request made by candidates who are at Sl. No. 2 or Sl. No. 3, behind the highest polled candidate….

The actual cost or expenses for the said verification will be notified by the ECI, and the candidate making the said request will pay for such expenses. The expenses will be refunded, in case the EVM is found to be tampered,’ the Supreme Court judgment added.

Whereas Administrative SOP for the ‘burnt memory/ microcontroller’ was issued on 1 June 2024—just three days before the date of counting and announcement of results charging a hefty fee of Rs. 40,000 plus 18 per cent GST per EVM—no technical SOP to make it operative as mentioned in para 7 was issued till 11 June 2024 thereby effectively preventing candidates from availing of this window provided by the Supreme Court.

(M.G. Devasahayam is coordinator, Citizens Commission on Elections. A longer version of this piece was first published in The Wire)

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