Election Commission’s rant against Kharge breaks many standards

The EC’s defensive response to the Congress leader’s letter fails to restore confidence in the electoral body’s credibility and independence.

Mallikarjun Kharge addressing an election meeting in Vijayawada. | Photo Credit: G.N. RAO

The Election Commission of India (ECI) has issued a jerky rebuttal to the doubts raised by Congress president Mallikarjun Kharge about the inordinate delay in releasing polling data. Kharge expressed his concerns in a letter written to his alliance partners and it was not addressed to the EC. The EC’s rebuttal did not address the actual concerns raised by the leader of the Congress party, but was instead a lengthy denunciation.

Kharge’s letter has a context, and its contents are clearly aimed at restoring faith in the democratic process and removing unnecessary anxiety among citizens. In the letter to his alliance partners, Kharge has raised some nagging questions that are on the minds of everyone about the method adopted by the EC in releasing data, which was not only opaque but also had an element of obfuscation. Instead of giving the exact number of votes polled, the EC gave only the percentage of votes polled.

Kharge asked whether the delay in releasing the number of voters was an attempt to doctor the results. He expressed concern over the EC releasing turnout figures for phase one and phase two after 11 days and four days, respectively. He raised concerns over the turnout figures increasing by 5.5 percentage points and 5.74 percentage points in the first and second phases, respectively, from what was estimated on polling day and on April 30, when the EC issued a press release giving the final figures. His letter was posted in full on the social media platform X on May 6.

An election officer marks a voter’s finger with indelible ink in Guwahati | Photo Credit: RITU RAJ KONWAR

The letter, written by one of the senior most politicians in the country, is based on the method of releasing voting data followed by the EC in the earlier elections. Never has there been such an inordinate delay as has happened in the first two phases of the 2024 Lok Sabha election. Instead of addressing the legitimate concerns raised by an important political figure, who has served for a long period in both the State legislature and the national Parliament, the EC has issued an intemperate note claiming, ironically, that it is Kharge’s letter that undermines the electoral process, while failing to answer any of his pointed questions.

The EC’s response asks Kharge to “exercise caution and refrain in making such statements”. It further says that “utterances from the President of 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”. 

Lack of trust

It is evident that the constitutionally mandated body of the ECI has failed to understand two important aspects of a functioning democracy: establishing trust in the institutions and the separation of powers among the different institutions. The lack of trust that has now ensued flows from the way the laws were amended at the fag-end of the Narendra Modi government’s second term. It is vital to recollect what the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Office and Terms of Office) Act says. How is the new mechanism different from the one spelled out by the Supreme Court?

The new Act undermines the Supreme Court’s directive to ensure transparency and trust in the election process. The Supreme Court’s directive, exercising its powers under Article 142 (to issue directions for doing ‘complete justice’ in any matter), was that the CEC and ECs shall be appointed by a committee consisting of the Prime Minister, the CJI, and the Leader of the Opposition or the largest opposition party in the Lok Sabha. Under the new Act, however, the CEC and EC are appointed by the President on the recommendation of a selection committee that now consists of the Prime Minister, the Leader of Opposition in the Lok Sabha, and a Union Cabinet Minister to be nominated by the Prime Minister.

The replacement of the CJI by a Minister from the Union Cabinet has shifted the power of appointment towards the executive, thereby virtually negating the idea of separation of powers. The present EC is the product of the new law, which has empowered the Executive and removed the CJI from the selection process. One expected that the newly constituted EC would, over time, work to dispel the doubts and anxieties generated by the new law and restore trust and credibility in the institution.

An appendix of the executive

Even as there was much noise on the “one nation, one election” plan, the EC came up with an election schedule that was extended beyond all reasonable limits to 44 days. It is important to remember that this is the second longest election the country has witnessed since the very first one after Independence. Sukumar Sen, the first Chief Election Commissioner of India, took four months to complete the first general election in 1951-52 because he had to create a full electoral voting list under the republican constitution that gave voting rights to everyone under its universal suffrage commitment. Can the learned EC members explain what happened in the last 10 years that would justify extending the election process to 44 days in the peak of the Indian summer?

Legal scholar Gautam Bhatia has explained how the judiciary has become an appendix of the executive. In his article in The Hindu, “The fear of executive courts”, he argued that India urgently needs the return of a thriving legal culture that uncompromisingly calls out political posturing. He contended that “only a principled consistency in requiring that judges must always give reasons for their judgment can halt the transformation of the constitutional court into an executive court”. What Bhatia said about the courts applies to the EC as well. It should address the legitimate concerns being raised and not resort to blanket statements that are a series of ad hominem comments.

India deserves a more responsive Election Commission to address the grave democratic deficiencies we are confronting today. The lack of maturity in the EC’s criticism was pointed out by the senior Congress leader P. Chidambaram. He asked: “When RBI, C&AG, Finance Commission and other bodies can be criticised, why does the ECI think it should not be criticised?” It may work well for the EC to do what it is supposed to do—conduct a free and fair election—and refrain from being an extension of the executive.

A.S. Panneerselvan is Fellow, Roja Muthiah Research Library, Taramani, Chennai.