ECI Lapses: Gyanesh Kumar Must Answer and Not Hide Behind Govt Defence

India's democracy is under threat. This is an emergency situation and demands emergency measures. No time to rest.

Doubts had been raised by various political parties and civil society well before the Chief Election Commissioner (CEC) Gyanesh Kumar took charge as the ECI chief.

(Illustration: Aroop Mishra/The Quint)

The recent Indian Express report on the Election Commission of India (ECI)'s functioning has exposed the reality we always knew, but pretended not to know. Well before the Chief Election Commissioner (CEC) Gyanesh Kumar took charge as the ECI chief, serious doubts were raised by various political parties and civil society.

The way communal statements by the ruling dispensations were ignored during elections, and Opposition leaders were penalised without proper scrutiny, cast suspicion on the ECI. It was openly argued that the election body was no longer an institution of credibility—and was not functioning with the independence and integrity constitutionally mandated.

No wonder that in every Centre for the Study of Developing Societies (CSDS) survey, people‘s trust in the ECI declined consistently. It was undeniable that a level-playing field, the moral harbinger of an independent institution, was not provided to the Opposition, and with the appointment of Gyanesh Kumar, even the pretension of independence was gone. Every appeal and petition by the Opposition leaders was thrown in the dustbin with great scorn and contempt.

The Special Intensive Revision (SIR) was the last straw that belied the citizen's last hope, too.

An Ill-Timed, Ill-Percieved SIR

An initiative of such gigantic proportions was brought in without any proper homework. What the need was for such an exercise was never spelled out. Neither the Opposition was taken in confidence, nor were their prayers heard.

The matter was immediately challenged in the top court. Unfortunately, the court also did not act swiftly. The issue is still lingering—and no finality has been reached on the matter. Instead of dousing the fire, it created more confusion.

If the court had visualised the seriousness of the issue, the situation would not have reached the point where, in West Bengal, the names of those 27 lakhs who have been deleted will take another 12 years to be cleared—whether the names deleted from the electoral rolls were genuine or not.

Now the situation has come to this pass that in Delhi, the capital of the country, the who’s who of Indian politics, bureaucracy, and society have found their names in the category of logical discrepancies—and the sword of deletion of their names is hanging over their heads. 

Imagine Delhi Chief Minister Rekha Gupta and thrice-Chief Minister Arvind Kejriwal's names are missing from the voter list. Even LK Advani, who served the country as the home minister and deputy prime minister, is in the list of logical discrepancies. If Delhi had been West Bengal, they all would have been denied the right to vote during the Assembly election.

The Supreme Court should have intervened in the West Bengal matter. But one of the judges jokingly said, as if the entire matter was a joke, that if one is not allowed to vote, then it’s not a big deal; one can always vote next time. Nothing could be more ridiculous than this.

If this logic is stretched a little more, then the Supreme Court can say, if elections are not held this time, then nothing to worry about, it will be held after five years. Here, my intention is not to cast aspersions on the intent of the judges. It is to say that the seriousness this issue deserves was not taken into account by the top court. If it had, the matter would not have reached this point.

Right to Vote is Sacrosanct to Democracy

The right to vote is the most sacrosanct right that defines democracy. No other system of governance gives its citizens the right to choose their rulers. It is only given in democracy, and if a citizen is unable to exercise their genuine right to vote, then, in my opinion, it is blasphemous; there should be no pardon for this.

Imagine 93 percent of voters’ names have been found genuine by the tribunal, and they could not vote in the recently held Assembly election in West Bengal. Is it not a violation of democracy itself? Why should no action be taken against all those responsible for this? Still, lakhs of genuine voters are struggling to get their names back in the voter list.

It is in this context that the Express report is more tragic and painful. It is heartening to see that two Election Commissioners objected to every decision taken by the CEC, thereby undermining democracy. But what is tragic is that they did not bring the dictatorship of Gyanesh Kumar to the public's attention. Or both the gentlemen did not resign in protest. If they had done this earlier, the country would have been served better, and democracy would have survived to a large extent. 

I can understand their dilemma. They might have been fearful of what happened to the earlier Election Commissioner Ashok Lavasa, who was hounded out of the election body simply because he wanted his dissent note to be added in the ECI's judgment.

His wife and family members were subjected to income tax raids, and finally, Lavasa had to resign and join the Asian Development Bank.

But then, if one is holding a constitutional post, then one should also have the courage and forbearance to carry the burden of the post; otherwise, one should not accept such posts. That way, Sukhbir Singh Sandhu and Vivek Joshi have together let the country down and helped undermine democracy. The issues they have raised clearly indicate that a deliberate attempt was made to design the system so that the voter list could be manipulated by a single individual.

Both gentlemen asked a simple question: why was the Directorate-General for Digital Services (DG-IT), Seema Khanna, in the ECI given the power to tinker with the centralised voter list when the legally authorised persons were the Electoral Registration Officer (ERO) in every Assembly?

According to the People’s Representation Act 1950 and Registration of Electors Rules 1960, the ERO is the right person to add or delete any name from the voter list, not the person in charge of IT in the ECI.

This was a blatant violation of the law, and the CEC should explain whether he ordered that, and if it is proved right, he should be impeached. 

CEC Must be Independently Investigated

Form 6 is also a legal document, and without the authorisation of the parliament, not a comma can be changed, but the CEC took the liberty of changing the form. It was again a violation of the law. Both Sandhu and Joshi called the changes made in Form 6 illegal.

The CEC cannot say that he did not know the law; if so, he had no business holding the post, and if he was doing so deliberately, he should be taken to task. He should be asked at whose behest he was doing so.

If he were doing a favour for someone, he would be liable to a criminal investigation, and if he were pressured or blackmailed for the same, he should reveal the name of the person or organisation.

Let’s not fall for the law, aka the CEC and Other ECs Act 2023, which gives him immunity for the action he has taken as the CEC. The law is very clear that the CEC has legal immunity for his or her actions only when he or she is lawfully discharging his or her duties. No immunity is provided for an illegal act. 

Whether the CEC has acted according to law can only be proved if a proper and impartial investigation is conducted by a committee of persons of unimpeachable integrity. As an interested party, the government has no business meddling in the affair.

The Supreme Court should take up the matter on its own and constitute a committee of eminent lawyers or judges with great integrity. The committee should give its report within a month so that the clouds of suspicion that have been hovering for long—and which have thickened with the Express report—get cleared, and people’s faith in democracy can be restored. 

The Indian electoral system has many flaws, and serious questions have been raised in the past, too, but this is the first time that volatile accusations have been made about the ECI manipulating the entire electoral system to benefit the ruling dispensation.

If these allegations are not subjected to rigorous enquiry and doubts continue, then democracy is doomed.

India, whose democracy has been a source of envy even for more advanced Western democracies, is under serious threat. This is an emergency situation and demands emergency measures.

There is no time to rest. 

(Ashutosh is co-founder of SatyaHindi and a former member of AAP. This is an opinion piece. All views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)