Sanjeev Ahluwalia | EC Dysfunctional Or Fit For A Fractured Polity?

The Election Commission of India — a foundational constitutional body (Article 324) serves three primary functions. It is the apex body which oversees the maintenance of the electoral roll (list of registered voters), manages the elections for state legislatures, Parliament, the vice-president and the President of India, and registers political parties.

Executive authority is vested in a triumvirate — the chief election commissioner and two election commissioners, all of whom are appointed by the President acting on the advice of a committee comprising the Prime Minister, another Union minister and the Leader of the Opposition. Being “smart” bureaucrats, one would expect a CEC not to rely on just his elevated status to push through a decision not acceptable to the other two commissioners. But that is exactly what seems to have transpired. Who then is responsible for the ECI’s inept screening technology, which disenfranchised 130 million voters, with an excessively high rate of false positives, in the small number of decided appeals?

Curiously, the two aggrieved commissioners never approached the President of India for redressal. This reflects a lack of trust in grievance handling mechanisms within the ECI. Alternatively, it might reflect the absence of a spirit of habitual independence from government, within the ECI. Per the ECI September 26 Press note, they approached the Cabinet secretary about ECI staff ignoring them. Was this a government servant’s instinct to approach the head of their previous service — someone they could trust? Ideally commission decisions should be unanimous. In the event of a divide a simple majority of two vs one is legally sufficient to settle the matter. Since the CEC chairs the Commission, the administrative responsibility to discipline staff vests principally with him.

Disciplining ECI staff, irrespective of where they come from, is for the Commission to accomplish, including by cutting short their deputation and returning them to their parent cadre. Has the ECI become effectively comatose because of a possible irreversible fracture and loss of trust within the Commission? What then are the prospects for its functionality?

To whom is the ECI accountable? It is accountable to the government which appointed them and to Parliament whose approval is needed to impeach and remove any of the three commissioners as prescribed for Supreme Court judges because commissioners enjoy similar privileges. Impeachment by Parliament needs a simple majority in the Lok Sabha and the Rajya Sabha and two-thirds of the MPs present and voting in both Houses.

Who appoints the Commission? Appointment of the commissioners is by a three-person committee comprising the Union government represented by the Prime Minister and a Union minister and Parliament by the Leader of the Opposition. This puts government in the driver’s seat for appointments. Adding the CJI to this committee would be fitting and in the interests of transparency. Asymmetry between the process of appointment and removal is also intentional to ensure some Parliamentary protection from executive pressure, for the Commission.

Two primary flaws are clear. First, the appointments process relies overly on Union government largesse. Though the appointed commissioners have the rank of a Supreme Court judge, even the Chief Justice of India is not a member of the selection committee.

Second, populating the Commission with retired bureaucrats is no longer a bulwark against politicisation of the Commission. The civil service is no longer bound by immutable, informal codes. Heterogeneity, whilst valuable for efficiency and inclusion in the civil service, comes at the cost of the earlier unity of purpose within a closed, entitled community.

A rule for efficient institutional functioning is that form, functions, powers and finance must be aligned to ensure that executive responsibility is narrowly defined and accountability is enforceable, in a functioning democracy — holding timely and fair elections, ensuring that the voter lists correctly records all eligible voters and registering political parties. Two changes can help enhance effectiveness.

First, remove the institutional link between the ECI and government and house it within Parliament. The task of appointing ECI commissioners should be done by an empowered joint parliamentary committee for elections (EJPCE) reflecting the proportional representation of all parties in Parliament. Based on their recommendation, the Prime Minister would endorse the appointment to the President of India for approval.

Second, as suggested in a private member’s bill tabled in the Rajya Sabha in 2023, to give the same level of independence as the Comptroller and Auditor General the expenses of the ECI could be charged to the Consolidated Fund of India.

Third, in the state legislatures, empowered committees for elections — cloned from the ECI pattern — could select the chief electoral officer of each state and subordinate district and block level formations, which are empowered to maintain voter lists. Since state level election bodies discharge a dual role, serving both ECI requirements and independently conduct elections to urban and rural local government bodies, they could be advance funded from the Consolidated Fund of India, with state governments paying back the share of expenses for local government elections.

Fourth, the ECI’s staff could include a mix of experts from state governments (elections to state legislatures are managed by the ECI), Union government and direct appointment as necessary, to be decided by the EJPCE. The key idea is to professionalise political institutions, make than self-governing with some vertical, professional integration and develop a common institutional culture across Union and state level election bodies.

What is the core problem at ECI? First, non-transparency in functioning which lends credence to allegations of “back door” management. Second, the race to use algo screening of the voter list is a cautionary tale. Digital agents run wild unless carefully trained. The existing programming is clearly unsound. Who is responsible needs to be established and made officially known.

There is also a cost to be paid as compensation to those wrongly excluded. The value of a vote lost unfairly can be accounted as the per capita expenditure of Union and state governments over five years, which every voting citizen indirectly manages. This amounts to about Rs 580. Assuming 50 per cent of 130 million exclusions are wrong, the potential national liability is Rs 3,770 crore (Rs 37.7 billion). This is more than the ECI’s annual budget.

Alternatively, ECI could lead physical verification of all algo exclusions, restore the wrongly excluded and deliver the voter card to these citizens at their home, with a written apology, to undo the harm done to its credibility as an efficient, inclusion-oriented, national institution.

Sanjeev Ahluwalia is distinguished fellow Chintan Research Foundation and was previously in the IAS and the World Bank.