Expert Speak India Matters
Published on Aug 15, 2022 Updated 4 Days ago
While the Constitution provides the ECI with a sturdy framework within which to operate, this same edifice has become a handicap to the organisation at times.
Safeguarding democracy: The Election Commission of India @75

This piece is part of the series,  India @75: Assessing Key Institutions of Indian Democracy.


While commentators fret about the state of Indian democracy as the country commemorates its 75th anniversary, there’s one thing most observers agree India has gotten right: Elections. This upbeat assessment is due in no small measure to the professional conduct of the Election Commission of India (ECI), arguably one of the world’s most powerful apex elections agencies.

Background

Article 324 of the Constitution established the ECI, granting it broad powers of “superintendence, direction, and control” of elections. While some members of the Constituent Assembly expressed concerns about centralising the oversight of elections in a single federal agency, ultimately the drafters felt that only a strong central authority could enforce uniformity in the country’s elections and avoid the pitfalls of local capture.

General elections are conducted by hundreds of thousands of government employees assigned to election duty at the state level.

The ECI was originally headed by a single Chief Election Commissioner (CEC) with a small permanent support staff. In 1993, the P. V. Narasimha Rao government appointed two additional Election Commissioners, making it the three-member body it remains today. The body’s compact design, however, is deceiving, as the agency dramatically expands its ranks during election time. General elections are conducted by hundreds of thousands of government employees assigned to election duty at the state level. While most of these officials are not permanent ECI employees, the agency possesses a total command of this network during elections.

Beyond its generous constitutional remit, the ECI’s actions are guided by two principal pieces of legislation: The Representation of the People Acts (RPAs) of 1950 and 1951. The 1950 Act guides the preparation and revision of electoral rolls, drawing of electoral boundaries, and eligibility criteria of voters. The 1951 Act, in turn, covers the conduct of elections including election administration, eligibility of candidates, regulation of parties, and campaign processes.

Challenges confronted

Almost from the outset, the ECI was presented with a torrent of complex challenges. To create ballot papers for a largely illiterate population, it assigned visual election symbols to individual political parties. It was also given the Herculean task of ensuring that Indians, regardless of caste, creed, or class, would be registered on the voter rolls and given an equal opportunity to cast their ballot on election day. Rather than placing the burden of registration on voters, the ECI flipped the script, shouldering the burden of voter inclusion. To guarantee a level playing field between the ruling party and the opposition, it promoted and then enforced the Model Code of Conduct (MCC)—an inter-party, non-binding agreement enumerating the norms of appropriate conduct for political parties during campaigns, elections, and governance.

While the Constitution and subsequent guiding legislation provide the ECI with a sturdy framework within which to operate, this same edifice has also become a handicap to the organisation at times.As the party system fragmented and the costs of elections rose in the 1960s and 1970s, the ECI was confronted with two significant threats to electoral integrity: Money and serious criminality or “muscle” in Indian parlance. With intensifying political competition, a growing population, rising voter expectations of campaign handouts, and an explosion in the number of elections with the advent of Panchayati Raj in the early 1990s, elections became a lucrative affair.

While the Constitution and subsequent guiding legislation provide the ECI with a sturdy framework within which to operate, this same edifice has also become a handicap to the organisation at times.

While it dedicated a growing share of its resources to auditing and scrutinising campaign expenditures, the ECI’s powers to reverse the tide of election spending were constrained. In recent years, spending has only crested further. The advent of electoral bonds, the loosening of prohibitions on foreign funding, and the elimination of caps on corporate giving—all changes implemented in the last five years—have created a political funding regime that the ECI simply cannot contain.

Exorbitant costs of elections have also helped fuel the consolidation of a nexus between crime and politics. According to data collected by the ECI and analysed by the non-profit Association for Democratic Reforms (ADR), 24 percent of Lok Sabha Members of Parliament (MPs) elected in 2004 declared a criminal case at the time of election. Twelve percent disclosed a serious case that would warrant at least two years of jail time if convicted. With each successive national election, those numbers have steadily risen. In 2019, 43 percent of newly elected members of Parliament faced pending criminal cases, while 26 percent faced serious cases.

A similar trend is visible when it comes to candidates’ wealth. In 2004, 30 percent of MPs were classified as crorepatis. Fifteen years later, a record 88 percent of incoming parliamentarians were self-declared crorepatis (the average assets of winning candidates in 2019 was on the order of INR. 21 crores). Statistical evidence suggests that muscle is valued, at least in part, because of the money that comes with it.

The ECI’s capacity to confront money and serious criminality are contingent on the ability and willingness of Parliament to take legislative steps that place strict limits on both. Parliament, comprised of politicians who profit from the status quo, has been unsurprisingly disinterested in such reform. On funding, if anything, it has become even more tolerant.

The courts, on the other hand, have largely been allies in the ECI’s fight for transparency and probity in elections. In 2003, the Supreme Court sided with the ECI and mandated that all candidates for state and national elections disclose their criminal antecedents, financial asset, liabilities, and educational qualifications at the time of their nomination. While the disclosure of these biographical details has not materially impacted the criminality of Parliament, it has fostered some degree of public awareness of the scale of the problem. On the matter of barring candidates facing serious criminal cases from contesting elections, the courts have been more circumspect, deferring to the bedrock principle of the presumption of innocence for those in the dock.

However, the ECI’s challenges are not all externally imposed. Since the Bharatiya Janata Party (BJP) came to power in 2014, the agency’s ability to uphold electoral norms by dictating the timing of elections, enforcing MCC, and countermanding elections vitiated by irregularities has noticeably weakened. Indeed, all “referee institutions” which prospered in the coalition era between 1989 and 2014 have struggled in a new system dominated by a single political hegemon.

Congress dominance in the early decades of the republic left little space for independent institutions to flourish. It was neither in the interest of Congress to place checks on its own power, nor in the interest of referee institutions to confront a popular political executive with demonstrated staying power. As the Congress’ grip on power waned and coalition governance flourished in the early 1990s, referee institutions like the ECI enjoyed space to exert their authority without fear of confrontation or interference.

The ECI has minimised or even ignored blatant violations of the MCC by the ruling party, leading one election commissioner to publicly question his colleagues in the middle of the 2019 election.

With a return to single-party dominance in 2014, the willingness of the ECI to defer to the executive branch is striking.<1> On matters of election timetabling, the agency has delayed the announcement of elections, allowing the ruling party more time to announce big-ticket welfare schemes. Moreover, the ECI has minimised or even ignored blatant violations of the MCC by the ruling party, leading one election commissioner to publicly question his colleagues in the middle of the 2019 election. While initially opposed to the advent of electoral bonds, the ECI later flip-flopped on the issue, allowing its imprimatur to be given to the opaque scheme

In the final tally, one’s assessment of the ECI is coloured by the baseline expectation one sets. Relative to many of India’s peers, who have struggled with incompetent or compromised elections bodies, India appears to be doing considerably better. Indeed, comparing the ECI to India’s own state election commissions (state-level organs which administer rural and urban local body elections) shows just how impressive its performance has been. In several cases, state commissions have betrayed signs of the local capture which the founders were right to protect the ECI against.

However, since the benchmark is set so high, disappointments are expressed more vociferously. In 2021, Parliament authorised the ECI to link voter rolls with individual Aadhaar identification numbers. Conceptually, the logic is compelling: Linking the Aadhaar database with electoral rolls can enable efficient identity confirmation, reducing duplicate registration and fraud. In practice, however, the ECI’s experimentation with using technology to “cleanse” electoral rolls has disenfranchised lakhs of Indians. While the gender gap in voter participation has been eliminated, thanks in part to ECI efforts, women are still systematically under-represented on voter rolls, relative to men. Finally, though empowered to register political parties, the ECI has no authority to deregister parties that violate established norms.

In relative terms, electoral life in India has thrived compared to that of its post-colonial peers. However, fresh investment and continued vigilance are warranted to ensure it stays that way.

The views expressed above belong to the author(s). ORF research and analyses now available on Telegram! Click here to access our curated content — blogs, longforms and interviews.

Contributors

E. Sridharan

E. Sridharan

E. Sridharan is the Academic Director and Chief Executive of the University of Pennsylvania Institute for the Advanced Study of India (UPIASI) in New Delhi. ...

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Milan Vaishnav

Milan Vaishnav

Milan Vaishnav is Senior Fellow and Director of the South Asia Program at the Carnegie Endowment for International Peace in Washington D.C. His research interest ...

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