LONG READ: CHEQUES AND IMBALANCES: THE TAMING OF THE ELECTION COMMISSION OF INDIA
Eram Agha
ON THE EVENING of 22 March, there was unusual activity at the Election Commission of India’s headquarters, on Delhi’s Ashoka Road. At about 5 pm, various representatives of opposition parties had started trickling onto the premises. A team of television reporters was already in place. Various leaders of the Indian National Development Inclusive Alliance arrived, including Abhishek Manu Singhvi of the Congress, Derek O’Brien of the All India Trinamool Congress, P Wilson of the Dravida Munnetra Kazhagam and Sitaram Yechury of the Communist Party of India (Marxist).
They had gathered together to protest a startling development: the arrest of Delhi’s chief minister, Arvind Kejriwal, by the Directorate of Enforcement. This marked the first time in independent India that a sitting chief minister had been arrested. (Hemant Soren, the former chief minister of Jharkhand, resigned on the day he was taken into custody, on 31 January.) Kejriwal’s incarceration sent shockwaves across the political landscape, not least because it happened five days after polling dates had been announced for the upcoming general election.
On 21 March, the Delhi Chief Minister Arvind Kejriwal was arrested by the Enforcement Directorate in connection with Delhi’s 2021 excise policy, which was scrapped the following year. The arrest marked the first time in independent India a sitting chief minister has been detained.
The arrest was in connection with Delhi’s 2021 excise policy, which offered contracts for liquor shops to private players before being scrapped the following year. While the Enforcement Directorate alleged a Rs 600 crore scam, involving kickbacks to the ruling Aam Aadmi Party, it did not disclose specifics of the money trail. The ED had already arrested top AAP leaders, such as Manish Sisodia and Sanjay Singh in 2023, and the Bharat Rashtra Samithi leader K Kavitha just days earlier. On the same day as Kejriwal’s arrest, the Central Bureau of Investigation registered a first-information report against the AITC’s Mahua Moitra, for allegedly receiving bribes in exchange for raising questions in parliament, and the income tax department served a notice to the Congress in relation to its returns for 1994–95. Consequently, party leaders alleged that income tax officials began freezing the Congress’s bank accounts, and recovering dues and penalties.
Wilson told me that the Narendra Modi government was “waging a war,” using the ED, the CBI and the tax authorities, on the eve of the general election. “So where is the level playing field?” he said. “What is the necessity of arresting a chief minister during model code of conduct period? What you could not do all along, that you will do now?” In June 2023, this magazine published a cover story detailing how the government has used the ED to go after the opposition. The agency has been deployed to try and topple democratically elected governments, by coercing legislators to switch parties. In the last few months, however, all the investigative agencies have been on overdrive, conducting raids and arrests of leaders of various parties.
Opposition leaders from across the political spectrum criticised Kejriwal’s arrest. The chief minister of West Bengal, Mamata Banerjee, called it a “blatant assault on democracy.” The Sharad Pawar faction of the Nationalist Congress Party said that the move was symptomatic of a “strong dictatorial streak within the ruling party” and that “such blatant attempts to suppress and intimidate political opponents” was “unethical and contrary to the principles of democracy.” The gathering at the ECI’s office was a plea for intervention, with the opposition urging the commission to uphold its constitutional mandate and ensure a level playing field for all parties.
The meeting with the election commissioners lasted about an hour. When I asked Javed Ali Khan, a Rajya Sabha member from the Samajwadi Party, what transpired in the meeting, he said that the commissioners “don’t say anything. They say, ‘We will come to you after considering your points and make a decision.’ It is a routine process.”
Singhvi—flanked by O’Brien, Yechury, and the Congress functionaries KC Venugopal and Gurdeep Singh Sappal—addressed the media about the meeting. All the parties represented had been “harassed, raided, arrested,” he said, but there were no cases against members of the ruling Bharatiya Janata Party. “Why? Are all the virtues in this pocket, and all the vices on this side?” The Modi government’s use of official agencies to attack the opposition stands out as even more brazen and hypocritical, given the serious allegations against the BJP over the contributions it received through electoral bonds. These financial instruments have raised concerns about transparency and accountability in political funding.
“The Election Commission should not merely be a decorative organisation,” Singhvi said. The opposition leaders submitted a memorandum to the ECI, detailing a series of incidents that, they claimed, proved the politically motivated misuse of agencies. “These actions form a part of the Union Government’s clear strategy to obstruct the level playing field for political parties,” the memorandum said. It argued that the attempts to disqualify, suspend, and expel opposition MPs were part of a “deliberate and sinister pattern,” aimed at gaining an unfair advantage in the election.
Amid these high-octane political tensions, the ECI’s role is vital. News reports have suggested that the commission was considering issuing an advisory, or sending a “strong communication,” to the union government. The opposition, however, has demanded more decisive action, such as wresting control of central agencies from the government while the model code of conduct is in effect, to ensure free and fair elections. Wilson said that the ECI should act during the general election as it does in the states, where it takes over law and order during assembly elections. But, going by how the ECI has acted over the past decade, strong measures are unlikely.
As the controversy unfolds, the political landscape is in disarray. The actions of the Modi government and the ECI’s response have already had far-reaching implications for the future of Indian democracy. The opposition’s stand at the commission’s headquarters was not just a protest against the arrest of a chief minister—it was a last-ditch attempt to preserve democratic values and the sanctity of the electoral process.
The ECI itself has been recently reconstituted, with two new of three election commissioners, who have been handpicked by the government, thanks to an appointment system that gives it unfair control. Nevertheless, the commissioners’ response to these developments would be a test of the institution’s commitment to its constitutional responsibilities and to the integrity of India’s electoral democracy.
THE ECI IS THE REGULATORY body that oversees elections in the country. It is tasked with ensuring that the electoral process is free and fair, preventing overreach by the ruling party and its misuse of state machinery, as well as enforcing the model code of conduct. The commission was created by the Constitution, and it eventually took the form of a multi-member body with three election commissioners. Seen as standing above politics, as a result of its constitutional authority, the ECI, for much of the history of independent India, has been seen as a trustworthy institution and widely commended for successfully conducting 17 general elections and hundreds of assembly elections.
Elections are messy and, for a large and chaotic country like India, have required an evolving regulatory framework. There have been frequent calls for electoral reforms that would strengthen the independence of the institution and commit it to greater transparency and accountability. Former chief election commissioners such as SY Quraishi have argued for making the ECI fully independent and to give it more disciplinary powers over political parties. Under the Representation of the People Act, 1951, the ECI is the registering authority for political parties, but it does not have the power to deregister or disband political parties. Several Supreme Court judgments have referred to the commission as exemplifying the basic structure of the Constitution and have encouraged the institution to act with more resolve and independence. The autonomy of the ECI from the government of the day, no matter the system of appointment, is an important constitutional principle.
A series of committees over the years have detailed the pitfalls of attempts by political actors to manipulate the electoral process. The Dinesh Goswami committee on electoral reforms noted some of these in 1990, including the “role of money and muscle powers at elections deflecting seriously the well accepted democratic values and ethos and corrupting the process; rapid criminalization of politics greatly encouraging evils of booth capturing, rigging, violence, etc.; misuse of official machinery, i.e official media and ministerial.”
More recently, in 2015, the Law Commission reiterated these problems, including “regulation of the conduct of political parties; adjudication of election disputes and enhancement of punishment for electoral offences,” and “issues pertaining to the role of electronic and print media.” The report noted that it had received minimal engagement from political parties during the process of consultation. Far from moving towards reforms that would strengthen its integrity, the ECI’s independence and reputation of neutrality has taken a serious beating.
Since the Modi government came to power, in 2014, it has gamed nearly every institution and enforced policies that evade transparency, suit its agenda or give it advantage. Several surveys examining democratic indicators have pointed out a sharp decline in India’s democracy ratings. Earlier this year, the Sweden-based V-Dem Institute, which monitors democratic freedoms globally, called India “one of the worst autocratizers”—diminishing its ratings even more from 2018, when it had downgraded India’s status to an “electoral autocracy.” The institute highlighted freedom of expression, free and fair elections, and freedom of association as the three components of democracy most adversely affected in countries undergoing autocratisation. In India, corporations, the mainstream media and investigative agencies have all submitted to the government’s dictatorial control and played a part in India’s democratic backsliding.
The kind of money power that entered politics through the electoral-bonds scheme has been tremendous and, as is amply clear now, wildly skewed in favour of the BJP. The scheme, introduced in 2017, in which companies and individuals could secretly buy financial instruments from the State Bank of India and donate to political parties, has reoriented the basic principle of equal representation in voting—“one person, one vote”—by prioritising corporate and political interests over citizens’ rights.
The official narrative behind the scheme was bringing transparency to political funding, but it did precisely the opposite. It allowed big corporations to donate to political parties, without any record of it being made public until the Supreme Court recently declared the scheme unconstitutional. My conversations with former election officials and the top bureaucrat responsible for enforcing the electoral-bonds scheme revealed that most people in the ECI, the Reserve Bank of India and various departments of the finance ministry were deeply uncomfortable with the scheme and had repeatedly raised their concerns. But it was weaseled in regardless, with no individual or body able to put up sufficient guardrails.
According to the ECI website, the BJP received Rs 6,060 crore between April 2019 and February 2024—nearly fifty percent of the total contributions made through electoral bonds—confirming that it was easily the biggest beneficiary of the scheme by orders of magnitude. Of the BJP’s total declared income, 54 percent came through electoral bonds. The Law Commission, in its 2015 report, had argued that it is “an undeniable fact that financial superiority translates into electoral advantage, and so richer candidates and parties have a greater chance of winning elections.” Financial superiority, coupled with the vindictive use of investigative agencies along with a propagandist media ecosystem, is a whole other beast. Nearly thirty companies facing probes by these agencies gave money through electoral bonds to the BJP, a huge chunk of which was donated after raids.
Over the past decade, the ECI has been criticised for allowing the BJP to escape scrutiny, even as the party hollowed out practically every democratic institution in the country. Two elections will have been conducted while the Modi government has been in power, and, in both, the ECI has been a little more than a bystander to its excesses. It has permitted the government to target the opposition and use financial resources to its advantage, while restricting the spending capabilities of other parties, and in many instances looked away as various BJP leaders openly violated the model code of conduct. On the other hand, it has acted hastily when it comes to other political parties, such as when it pushed for the disqualification of 20 AAP legislators. It has set campaigning dates, and departed from convention, in instances that have suited the BJP. It has consistently dismissed reports and complaints about electronic voting machines and demands for measures to ensure fairness and transparency. This has contributed to a precipitous decline in public trust in the electoral system. And, more worryingly, it has severely compromised democracy by failing to be the watchdog it needed to be.
Several former chief election commissioners spoke to me about the deteriorating standards they have noticed over the past years. VS Sampath, the CEC during the 2014 general election, recalled how the commission was empowered to take strict action against offending parties. “Because of the stiff contest, the campaign was quite contentious, and political parties were quite active, and, during the peak campaign period, different political parties sought time almost every day to make representations,” he said. “As EC, our focus was to ensure free and fair elections. We were never daunted by the stature of personalities and initiated action as required. Hate speech was becoming an important issue during the elections. We felt the usual practice of issue of notices and imposing punishment, like censure, insufficient to contain the menace. We invoked the special powers of the commission under Article 324 and started banning public speeches of star campaigners of different political parties whom we found indulging in repeat hate speeches.”
SY Quraishi, meanwhile, was clear that things for the ECI went downhill from 2019. “Initially, I hesitated to comment on the Election Commission of India’s operations and declined many inquiries,” he told me. “However, it became increasingly embarrassing to evade commenting. It was during the 2019 general election when I said the credibility of ECI coming into question pains me.” After Quraishi spoke about this publicly, the ECI press unit issued a statement questioning his credentials. “I was informed that the ECI was conducting research to assess how many chief election commissioners acted on complaints regarding model code of conduct violations, and how many individuals faced repercussions,” he said. “I am still waiting to see the findings of this research.”
Under the Modi government, the ECI has asked for electoral reforms that shield it from scrutiny and accountability, such as enforcing contempt rules, similar to the judiciary. Two election commissioners have resigned under the Modi government—unprecedented in the history of independent India. The appointment of the commissioners itself remains under executive control but is far more partisan than it has ever been. A look at the background of the current appointees—and the hurried manner of their appointment, which makes a mockery of due process—suggests that there may be little they can do to oppose their political masters. “Though government always got their own choice as CECs and ECs, they followed the culture of self-control,” Jawhar Sircar, a retired bureaucrat who is now a Rajya Sabha member from the AITC, told me. “That culture is totally gone.” Those now in power, such as Modi, he said, are “unschooled in these nuances and clinically autocratic.”
WHEN THE IDEA OF electoral bonds was first floated, the ECI was alarmed. The scheme had been snuck into the finance bill by the finance minister at the time, Arun Jaitley—the driving force behind the scheme. Because it was introduced through money bills, the government’s Lok Sabha majority was enough to push it through without much debate. The scheme made amendments to the Income Tax Act, the Representation of People Act and the Companies Act.
On 26 May 2017, the ECI wrote a three-page letter to the law ministry, raising concerns about how the scheme would have a “serious impact on Transparency aspect of political finance/funding of political parties.” The amendments ensured that political parties would no longer have to report their contributions and that companies would not have to declare their specific contributions in their account statements, as long as it was included in a total amount. They also removed the limit of companies being able to donate only 7.5 percent of their average net profits over the past three financial years. “This opens up the possibility of shell companies being set up for the sole purpose of making donations to political parties, with no other business of consequence having disbursable profits,” the letter stated.
OP Rawat, who was one of the election commissioners at the time, saw the dangers of such a scheme clearly. The ECI, he told me, “wrote to the ministry that this is going to decrease transparency in campaign finance. In fact, it will make it opaque. All these issues were raised, and then Finance Secretary SC Garg came to EC.” Subhash Chandra Garg had joined the department of economic affairs in July 2017, and it would eventually become his job to roll out the scheme. “At that time, the department of economic affairs had not moved the proposal,” he told me, “because it had some changes in Income Tax Act and had changes in RBI Act, which economic affairs had to deal with.” Garg said that, when the scheme was announced, in February, he, too, was unconvinced. “The first impression I got about the dubious nature of electoral bonds was when I was in the US working as India’s executive director in the World Bank,” he said. “On the face of it, it seemed to be a cosy arrangement, where the ruling party might get funds from corporations, et cetera, so that was superficial. I won’t say I was convinced or had a deeper impression that this is something very bad, but it seemed on the face of it that this seems to be a dubious device.”
When he returned to India, in July 2017, there was a great bustle around the matter. “It was the first big issue to be taken care of,” he said. “The finance minister spoke at length. Then Finance Secretary Ashok Lavasa mentioned it to me, ‘This is to be done.’ Nripendra Mishra”—Modi’s principal secretary at the time—“spoke about the work needed to attend to it. So, I went into familiarising myself.”
Garg found that there was dissent in almost every department. “My own division, the budget division, was handling this at that time, and was not convinced,” he said. Neither the ECI nor the RBI were comfortable with the scheme, which concerned him. “The joint secretary, who had processed it, was also not comfortable. So he had put up some proposals, making changes and coming out with a diluted version. I realised this is what the situation is.”
But, soon enough, thanks to Jaitley, Garg would have his worries allayed. Jaitley described to him “the entire politics, economics and the real fact of life for him.” Because he had been treasurer of the BJP for many years, Garg said, he knew “how bad the situation was in those days.” Almost every contribution used to come to political parties through cash, much of which was not officially accounted for in the accounts of the various parties.
“He described to me [the] sort of irregularities which the companies were forced to do,” Garg said. Corporations, he added, “were forced to convert their legal incomes into unlawful cash by overbilling, under billing, siphoning off or creating shell companies’ structures and all, and that is how the contributions from companies came to them.” The argument that convinced him “was that there is a legal challenge in the system. The companies made a contribution by declaring it in their accounts, which was required at that time. You needed to tell to which parties you made contributions, or make contributions to trusts who would then make disclosures.” Garg saw pragmatism in legitimising a system of secrecy in the electoral bond scheme because of Jaitley’s argument that “given the Indian situation, companies are not interested in telling who they made a contribution to.”
Soon, it was Garg who started convincing others. “We needed to address the constitutional bodies,” he said. Accordingly he convened a meeting with the ECI and the RBI. “RBI was represented by either deputy governor or executive director and ECI was represented by director general,” Garg added. “Members of ECI don’t come—they have a high stature, so they are not supposed to come—but their official hand did come.” In Garg’s estimate, the ECI director general realised after the meeting that the scheme would be better than the cash system, but he conveyed that the commissioners, particularly Rawat, were not convinced. “Alright, we will deal with them,” Garg recalled telling the director general. I reached out to Vijay Kumar Pandey, the director general of the ECI, but received no response. The RBI representative did not comment.
With the inputs he received, Garg went back to Jaitley with a proposal on how to go about enforcing the scheme. Jaitley gave him the go ahead, instructing him to go to the ECI and explain the scheme. “That is when I went and met all three—AK Jyoti, OP Rawat and Sunil Arora,” Garg told me. The three commissioners were at different stages of agreement: “OP Rawat reluctantly, Arora wholeheartedly—he is an administrator, he was the last one to join, he had no objection at all. Jyoti had one or two objections.”
Garg had no problem convincing Arora, suggesting that he had come into the role, in September 2017, already primed to accept the scheme. He portrayed Arora as a balancing voice. “I think the people who nominated him must have already discussed with him,” Garg said. “He must have been convinced.”
Arora had been embroiled in controversy during the infamous Radia tapes scandal—leaked recordings of the corporate lobbyist Niira Radia talking to several high-profile journalists and politicians. It did not deter his rise for too long. After Modi came to power, Nripendra Misra called Arora and asked him to take over as secretary in the skill development ministry within two days. Arora soon became secretary of information and broadcasting, during Jaitley’s tenure as minister, and then served as an advisor at the public broadcaster Prasar Bharti. “He was not considered by many to be a normal straight officer, and his cosy hobnobbing with a very controversial corporate go-between like Niira Radia did not go down well,” Sircar, a former Prasar Bharti CEO, told me. “The 2019 elections were critical to this PM and the regime, and everything was possible. And they needed somebody like that, who earned a sad name for partiality.”
In 2022, after leaving the ECI, Arora attended an event organised by the Akhil Bharatiya Vidyarthi Parishad—the student wing of the Rashtriya Swayamsevak Sangh—where he hit out at the former CECs who had complained about the 2019 general election not having been entirely free or fair. When I sent Arora a questionnaire, he replied that he had demitted office three years ago “and cannot be expected to recall/recapitulate specific incidents etc. You may kindly address ur queries to the ECI.” The ECI did not respond to a list of questions sent to them.
Jyoti was appointed election commissioner in 2015 and took over as CEC two years later. He had been chief secretary of Gujarat, between 2009 and 2013, when Modi was chief minister. Garg said that Jyoti did not offer much resistance to the electoral-bonds scheme. “Arre bhai, why are you restricting it to only registered parties with one-percent vote?” Garg recalled him asking. “I said, if we don’t do it and allow fly-by-night companies, they would use it for black money devices. Jyoti said ‘dekh lena’”—figure it out. Jyoti did not respond to my questions.
Rawat took over as CEC from Jyoti in 2018—becoming the first bureaucrat from the Madhya Pradesh cadre to hold the post. He had served in several government roles throughout his career, including principal secretary to the chief minister. He was the one Garg found himself struggling to turn around. “Even in that meeting, Rawat was not convinced,” Garg told me. “But I made all arguments to address his concerns, and he did not have a response, because his concerns were not very genuine. These were more superficial. At the end of the day, the EC was convinced.”
Rawat told me that Garg’s pitch was not convincing. “EC was not satisfied,” he said. “But they assured me that, ‘See the working of the scheme and, if your objections last longer, then we can discuss again.’ But I left by then, so I don’t know whether the discussion took place or not.” But, as long as he was there, Rawat said, there was resistance within the ECI. “We pursued it, but the government replied that it was too early to raise concerns. ‘Please wait for the scheme to be formulated. If it does not meet these requirements, raise those at that time.’”
The scheme was notified by the finance ministry on 2 January 2018. The State Bank of India was the bank authorised to issue or encash bonds, and to maintain the details of every donor. For everybody else, theoretically, the donor identity was meant to be confidential, unless a court asked for it or if a case was registered by an investigative agency. The floodgates opened for large-scale political funding, and it all happened in secrecy. There was no way to detect corruption and quid pro quo arrangements. Nor was there a way to level the playing field in terms of money power between candidates and parties.
“Information came by way of returns that so much money came by EBs as filed by parties,” Rawat said, but no one knew who bought the bonds. Garg had told Rawat that the scheme would take care of anonymous donations by bringing in a system where there would be more record-keeping. “So all those issues were getting covered by EB because KYC details are available with the bank,” Rawat recalled Garg telling him. “Everything is white, because it is paid by cheque and not by cash. Only thing is it won’t be available for public domain. Even the government [is] debarred from any access. Only thing is that an ulterior, surreptitious arrangement might result in some information going to them, otherwise it was only SBI knowing.”
Lavasa, who was an election commissioner from 2018 to 2020, told me that, officially, most of the commission remained against the scheme, even once it came into force. “Till I was there, the ECI’s stand was always against the scheme,” he said. “Why it changed, I don’t know.”
In reality, the electoral-bonds scheme clearly allowed loopholes and several levels of deal-making out of sight of any investigative body or the public. When I asked Garg about how electoral bonds might enable loss-making companies to donate, potentially through shell companies, and create expectations of receiving favours in return, he gave me a long-winded answer. “Here, we need to delve into the reality of realm of the business,” he said. “Why does anyone give donations? That is the question you must be asking.” He did not think that the donations were made out of love for the country or for democracy, or out of charity. “They are hardcore businesses. If their business interest is served, they would be happy to give either illegally or either through electoral bonds or other form. The business interest of a loss-making company or a profit-making company is not different. If we are competing for a contract—pardon my being abrasive—if you are competing, and companies know at the end of this you may have to give some donation, I will ask you a question. Why should loss-making parties be deprived of the ability to offer that?”
Garg said that there were a hundred reasons why businesses needed to deal with the government. “It is a fact of life that, many times, they have to pay up. In fact, my argument would be: it is better to pay up in the form of EB rather than pay in cash or illegal form. EB is recorded that goes to the party. The cash paid remains unaccounted for. The company at least gets satisfaction that it is paying for legitimate sources. Shareholders can ask you questions about why they are spending on EBs or why you are giving, the board can. So, in the real world of business, EBs are a better way of making political contributions.”
Meanwhile, the ECI’s public position on electoral bonds underwent a shift. During a 2021 hearing on their constitutionality in the Supreme Court, the commission’s counsel, Rakesh Dwivedi, said that the ECI supported the scheme. “Without electoral bonds, we will go back to the earlier cash system, which was unaccounted,” he said. “Bonds are one step forward, as all transactions are through banking channels.” One of the litigants in the matter told me, on condition of anonymity, that Dwivedi was asked about the letter written by the ECI to the law ministry and whether its concerns had been assuaged. The ECI’s legal team, the litigant said, “did not answer or sidestepped the questions. They are not serious about the EBs. They were not policing effectively the mechanism of EBs.”
The Supreme Court had, in 2019 and 2023, made it incumbent on political parties to share details of electoral-bonds transactions with the ECI, which in turn had to share the data with the Supreme Court in sealed boxes. Although smaller parties shared details, bigger parties, including the BJP, the Congress and the AITC, did not. The BJP cited “donor anonymity” as a reason for not sharing details. The ECI did little to exert its own power and the rules laid out in Supreme Court judgments. To petitions challenging the opacity of the scheme, the union government declared that a citizen did not have the right to know the source of political funding. “Firstly, there can be no general right to know anything and everything without being subjected to reasonable restrictions,” R Venkataramani, the attorney general, told the court, in October 2023. “Secondly, the right to know as necessary for expression can be for specific ends or purposes and not otherwise.”
In a landmark judgment, on 15 February, the Supreme Court struck down the scheme as “unconstitutional and manifestly arbitrary.” The bench declared that the amendments made by the union government to the Representation of People Act, the Companies Act and the Income Tax Act infringed the right to information about political funding, benefited corporations over citizens and allowed ample room for quid pro quo arrangements.
The Supreme Court ordered the SBI to disclose, by 6 March, all data on bonds sold between April 2019 and February 2024. The ECI was directed to make the data public a week later. The SBI dithered, asking for an extension that would mean the details were disclosed only after the general election. It argued that the disclosure would be too time-consuming, since the information was not located in one place, and that the lists of donors and parties were maintained “in two different silos.”
This was in complete contradiction to an affidavit that the union government had filed in 2019, stating that information about the bonds was recorded and available whenever needed. The petitioners pointed out that the SBI had over a quarter million employees, with operations in 36 countries. “It is hard to believe,” they said, “that the SBI is not able to gather information which the SBI has itself recorded.” The court put its foot down and dismissed the SBI’s plea. The bank eventually put out the data, but in two separate lists.
The disclosure opened a Pandora’s Box. A bunch of small independent media outlets were immediately on the case, matching data and unearthing patterns related to the government’s system of doling out sops and punishments. Nileena MS and Swetha Kadiyala’s story in this month’s issue details several cases that establish quid pro quo.
A striking example is Aurobindo Pharma, a major pharmaceutical manufacturer that relies heavily on exports for revenue and is also involved in the liquor business. Between April 2021 and November 2023, it bought electoral bonds worth Rs 52 crore, with a significant portion going to the BJP. P Sarath Chandra Reddy, a director at the company, was arrested in the Delhi liquor policy case on 10 November 2022. Five days later, the company donated Rs 5 crore to the BJP. By June 2023, Reddy turned approver in the case. In November, the company made a further donation of Rs 25 crore to the BJP. Kejriwal, who has been arrested in the same case, has pointed to this as evidence of a quid pro quo arrangement.
According to Garg, the Supreme Court judgment seems too idealist. I asked him about the verdict’s emphasis on a citizen’s “right to know” being a fundamental right. “That’s a different debate—no quarrel with that—but many times good intentions are not good business,” he told me. “Good intentions can simply kill a pragmatic, transparent way of making political contributions.”
With the evidence that has come to light, it is hard for the Modi government, even with its lapdog media spinning for it, to brush various scams under the carpet. The economist, Parakala Prabhakar who is the husband of the union finance minister, Nirmala Sitharaman, told the media that the scheme “is not only the biggest scam in India but is the biggest scam in the world.” He even went as far as to say that, as a result of the disclosures, “this government will be severely punished by the electorate.”
SOON AFTER THE AAP swept the 2015 assembly election in Delhi, trouble began brewing. The party had appointed 21 legislators as parliamentary secretaries—meant to assist ministers in parliamentary work, and often holding the rank of minister of state. The constitutionality of the position has often come under challenge in several high courts, for leading to an oversized cabinet. Political conflict ensued between the AAP and the Congress and the BJP, who called for the disqualification of the legislators. The issue was contentious, but the alacrity and high-handedness with which the ECI acted in the matter surprised many.
On 21 January 2018, a Sunday, the president of India, Ram Nath Kovind, accepted the ECI’s recommendation to disqualify 20 legislators for holding “offices of profit”—a concept that aims to prevent conflicts of interest. The ECI’s opinion had been rendered just two days earlier. The speed with which this happened left even people familiar with the ECI’s working stunned. “The ECI order was passed on a Friday night, the president was waiting and the law ministry was alerted that, Saturday night, notification would be issued,” a former senior ECI official told me, on the condition of anonymity.
What was further confounding was that the order had the signature of Sunil Arora, who had taken charge as commissioner in September 2017 and not been part of any of the ECI’s proceedings on the matter. This was in violation of the principle that the person who hears the case gets to decide the verdict. The order was also signed by OP Rawat and AK Jyoti, the CEC at the time. Although Rawat had recused himself from the case, he later rejoined it. “According to the perception of AAP, I am a favourite of a particular political party, so I thought of recusing myself so now justice would not only be done but also be visible,” he told me. “The then CEC asked me to join as Dr [Nasim] Zaidi had retired, and no one was appointed for some time. There was no alternative, and the first date of hearing all the MLAs facing proceedings came to know of the change and why it came about.” But the legislators said that they had no knowledge of him re-joining the case.
“Sunil Arora must have had the file made,” the former senior ECI official told me. “Someone said to me, ‘Jyoti is retiring on 23 January 2018 and he has committed [that,] before leaving, he will disqualify them.’ This was outlandish for me, because AAP MLAs had not been given a hearing, but I was proven wrong.” The official said that the same person told him, “You don’t know what’s happening, president se baat ho chuki hai, jis din se opinion jayegi, us din president sign kar dega”—The president has been talked to and will sign the opinion the day it is delivered to him. Questions sent to Kovind were not answered.
“Everything was happening with such speed that it reeked of political vendetta,” Praveen Kumar, one of the disqualified legislators, told me. “ECI was working at the behest of BJP, it appeared.” Kumar noted that Kovind had approved the disqualification within a day, during a weekend, even as other files gathered dust in his office for months. “ECI disqualified us without any hearing.”
The AAP legislators challenged the order in the Delhi High Court. It became the first time that a quasi-judicial body like the ECI had to defend its stand in court. The court quashed the disqualifications and said that there had been a “violation of statutory rights and principles of natural justice,” since the ECI had not allowed the petitioners to make their case.
“For two months, we were disqualified,” Kumar said. “It was a critical period, and that very time, BJP was offering us to join BJP. They wanted MLAs disqualified and elections announced.”
The ECI had also sent a similar notice to disqualify Ram Niwas Goel, the speaker of the Delhi assembly. In November 2016, Goel found his name in another list of legislators accused of holding an office of profit. He issued a statement that hit out at the ECI.
May I ask as to what is the compulsion under which ECI is resorting to such illegality repeatedly? Is the Election Commission under any obligation or pressure to proceed against certain MLAs irrespective of all the legal infirmities in the so-called petitions? … Is it under directions to harass the hapless Elected Representatives? If yes, is it under directions to perpetuate such harassment across the Country irrespective of party affiliations? I am saddened to observe that this harassment is confined to Members of the House that I am presiding over. And the party affiliation of the victims is too very well known.
Goel pointed out that a case had been made on the basis of a flimsy complaint and that a preliminary enquiry had not taken place before the notice had been sent. The ECI, he said, was choosing to “repeat the same blunder” it had committed against the AAP legislators. “Today, I am compelled to ask a few questions to ECI,” he wrote. “Are you truly independent? Your actions suggest you are not.”
The ECI’s increasingly partisan stands would become more evident in the run up to the 2019 general election. “This election was overwhelmed by the overarching influence of money power, hate speech, communalization of politics, abuse of social media and the unconstitutional conduct of politicians openly flouting the Model Code of Conduct,” Quraishi wrote in his book India’s Experiment with Democracy. “And whom do we find in the dock? Not the defaulting politicians but the Election Commission!”
In April that year, Mohammed Mohsin, a bureaucrat who was an observer in Odisha during the election, was suspended for trying to inspect the helicopter used by the prime minister. The ECI suspended him on the grounds that people who came under the Special Protection Group—the highest tier of security cover—were exempt from such checking. This created a controversy. Quraishi compared his own experience, from when he was CEC, to this reaction. During the 2010 assembly election in Bihar, “we were tested on our stringent expenditure control guidelines, including conducting raids on all possible places where illegal money could be hiding,” he told me. “We did not spare even VIPs’ aircraft and apprehended the cars of high-ranking police officials suspected of carrying illegal funds. This put fear of EC in the minds of top politicians so much so that once Lalu Prasad Yadav himself pleaded that his helicopter be checked, lest there be suspicions.” He added that Modi “should have used this opportunity to showcase the strength of our institution by allowing the inspection to proceed, thus demonstrating to the world, ‘Look at how robust our institutions are, even the Prime Minister is subject to scrutiny.’ Instead, the observer was suspended, which sent a wrong message.”
The ECI let the BJP get away with multiple violations of the model code of conduct. Just before the election, NaMo TV, a channel broadcasting Modi’s speeches, was launched and aired for free by several direct-to-home operators. The code of conduct specifies that advertising “at the cost of public exchequer in the newspapers and other media and the misuse of official mass media during the election period for partisan coverage of political news and publicity regarding achievements with a view to furthering the prospects of the party in power shall be scrupulously avoided.” After campaigning was over, NaMo TV went off the air.
Just before the election in 2019, NaMo TV, a channel broadcasting Modi’s speeches, was launched and aired for free by several direct-to-home operators. This was in open violation of election rules. Prime Minister Narendra Modi introduced the channel on his Twitter account.
After the Balakot airstrikes, on 26 February 2019, Modi openly used the armed forces as part of the BJP campaign. “Can your first vote be dedicated to the brave soldiers who conducted an air strike at Balakot in Pakistan?” he said at a rally in Maharashtra. Politicising the armed forces is forbidden under the model code. The transparency activist and retired naval commander Lokesh Batra filed a complaint with the ECI, on 10 April. He attached a photograph of a BJP hoarding in Mumbai, featuring the image of Modi with the message “Dushman ke ghar main ghuskar, aatankiyo par prahar”—Attacking terrorists by entering their home. The ECI responded saying that this was not a violation. Batra received similar responses to various other right-to-information requests, including one inquiring into the electoral-bonds data. He told me that the way the ECI’s public information officers responded to RTI queries suggested that “they don’t know the RTI Act, or they pretended to not know it.”
The ECI also received a series of complaints about speeches by Modi and Amit Shah, the BJP president at the time, but delayed looking into them until the Supreme Court ordered it to do so before 6 May. The ECI gave a clean chit to the two on all complaints. Ashok Lavasa was the only commissioner who disagreed with this decision. He asked for his dissent note to be made public, but the ECI did not let it come to light—a departure from the convention of recording the minority view in a multi-member panel. The India Today Group filed an RTI request about the note, as well as the opinions of the other commissioners—Sunil Arora and Sushil Chandra—but the ECI refused, arguing that doing so would endanger the commissioners and that the “source of information or support is given in confidence for law enforcement or security purposes.” Following this, Lavasa began recusing himself from ECI meetings related to the MCC. He was soon hounded by investigative agencies. Even though he was in the running to become the CEC, he resigned from the commission in August 2020, becoming the first official to ever do so.
A group of sixty former bureaucrats, including the former national security advisor Shiv Shankar Menon, the former Planning Commission secretary NC Saxena and the former director general of the Gujarat Police PGJ Namboothiri, wrote to the president, drawing attention to the “weak-kneed conduct of the ECI, which has reduced the credibility of this constitutional body to an all-time low.” They said that there had been “misuse, abuse and blatant disregard” and criticised “the ECI’s pusillanimity in coming down with a heavy hand on these violations.”
The ECI has also tended to assign polling dates that somehow turn out to be convenient for the BJP. One glaring example of this was in 2017, when the commission decided to decouple the assembly elections in Gujarat and Himachal Pradesh—a departure from the usual convention of the two states going to polls together. Gujarat had seen recent floods, and a delay would allow the BJP government to campaign for longer. Journalists immediately called up SK Mendiratta, the ECI’s legal advisor, to find out the reason for this, but they were told that even he was unaware about this development. Mendiratta had been kept out of the proceedings and did not even have access to the relevant files.
VS Sampath, the former CEC, told me that, while scheduling elections, the commission usually follows precedents “and will not deviate except for very weighty reasons, under compelling circumstances. Deviating from the past practices of clubbing without citing cogent reasons exposes the commission to needless suspicions and is avoidable.” In 2022, the ECI again declared that Gujarat and Himachal Pradesh would go to polls separately, this time citing its 2017 decision as precedent.
The ECI stated that the Gujarat election was delayed because of flood relief. But various news reports confirmed that the relief operations had ended weeks earlier. The Gujarat dates were announced on 25 October 2017—almost two weeks after dates were announced for Himachal Pradesh—and Modi announced several sops for farmers, youth, women, Patidars and traders over the next few days. The results for the election of the two states were announced on the same day, 18 December, even though they went to polls on different dates.
Questions have been raised about the reliability, security and integrity of electronic voting machines. Some political parties and activists have frequently raised allegations of tampering with EVMs to manipulate results. They argue that EVMs can be hacked or manipulated, leading to concerns about the fairness of elections. One of the major demands in the EVM controversy is the introduction of Voter Verifiable Paper Audit Trail machines. VVPAT machines provide a paper trail that allows voters to verify that their vote has been cast correctly. This adds an extra layer of transparency and accountability to the voting process.
After the 2019 general election, an RTI request by The Quint revealed that the ECI discarded VVPAT slips four months after the results. According to election rules, the slips are to be kept for at least a year. The Association for Democratic Reforms has filed a petition for counting all VVPAT slips, which the ECI has resisted. It has been reported that 38,156 VVPATs were randomly checked in previous general and assembly elections. The ECI stated that there were no instances found of votes intended for one candidate being transferred to another. However, the commission acknowledged that discrepancies in counts, if any, were attributable to human error, such as failing to delete mock-poll votes from the control unit of the EVM or the VVPAT machine.
Bharat Electronics Limited, one of the state-run companies that manufacture EVMs, has four BJP office-bearers on its board of directors. On 26 January 2024, the former bureaucrat EAS Sarma wrote to the ECI, urging it to order the relevant authorities to revoke the directorship of the BJP officials in the company. Despite their membership of the board having been brought to the ECI’s notice over a year earlier, Sarma wrote, “the Commission has chosen to remain a party to such a brazen conflict of interest, knowing well that it would erode the credibility of the presently deployed EVM machines and the credibility of the Commission itself.”
The BJP has also opposed the use of totalisers in EVM machines, meant to prevent voter intimidation by mixing ballots to conceal voting trends. “In our case, booths usually represent clusters of voters of different caste groups, religious groups, regional groups, et cetera,” Sarma told me. “As returning officers in the bygone days, we were required to mix ballots from different booths in the presence of the agents of political parties and then count them. That is the only way to safeguard the booth-wise secrecy. Political parties may threaten such groups if they come to know of the booth wise voting pattern. With an EVM, the only way to technically ‘mix’ the electronic votes is by using totalisers in conjunction with EVMs.” This amounted to a violation of the Representation of the People Act, he said. “Political parties that adopt a ‘divide and rule’ approach would be happy if they know the booth-wise voting pattern. They may therefore resist the use of totalisers.”
BJP leaders such as Ravi Shankar Prasad, Rajnath Singh and Nitin Gadkari formed a committee to evaluate the totaliser scheme and rejected it. “The final proposal from the law ministry was against using the totaliser,” a former CEC told me. “They cited booth management as the reason. BJP operates at the booth level, and, with the totaliser, all votes would be mixed, eliminating the ability to identify committed voters and provide incentives based on voting patterns.” This is another instance of how the BJP has use for secrecy only when it can derive clear political benefits, such as in the electoral-bonds scheme.
ARUN GOEL, A BUREAUCRAT FROM the Punjab cadre, was set to retire as secretary in the ministry of heavy industries in December 2022. On 18 November, he applied for voluntary retirement on personal grounds. On the same day, his application was forwarded to the government, which put out a notification accepting his resignation. Typically, Goel’s departure should have been preceded by a notice period, but this was waived. The next day, Modi and the president, Draupadi Murmu, elevated him to the position of election commissioner.
The speed with which Goel was appointed to the ECI was astonishing, especially given that the Supreme Court had begun hearings on the appointments process the previous day. Goel’s hurried elevation prompted a petition from ADR for being “arbitrary and violative of institutional integrity and independence” of the ECI. The petitioners argued that the selection procedure appeared to be a “foregone conclusion” and that Goel must have had “extraordinarily remarkable foresight” to request voluntary retirement when he did. “The government must have felt that there are petitions being heard and they must be uncertain of what would be the decision of the court,” a former CEC told me.
During the hearing, the union government provided a short note on how Goel came to be appointed, while declaring that the process was “highly confidential.” A vacancy for the post had been announced on 15 May 2022, following which the department of personnel and training sent a list of candidates to the law ministry, who made a shortlist. However, no criteria were laid out for selecting a particular name. The government said that the same process had been followed for appointing Anoop Chandra Pandey and Rajiv Kumar as election commissioners as well.
In March 2023, the Supreme Court empowered the prime minister, the leader of the opposition and the chief justice of India to appoint the commissioners, until parliament enacted a law on the appointments process. In the judgment, KM Joseph explained why the process could not be left in government control.
A person who is weak-kneed before the powers that be cannot be appointed as an Election Commissioner. A person who is in a state of obligation or feels indebted to one who appointed him, fails the nation. Such a person cannot have a place in the conduct of elections which forms the foundation of democracy … An Election Commissioner should be one who holds the scale evenly in the stormiest of times by not being servile to the powerful and by coming to the rescue of the weak and the wronged. This would qualify as true independence.
The judgment made clear that it was not about Goel’s qualifications per se but the independence of the institution. It noted that “academic excellence which members of the civil service may possess cannot be a substitute for values such as independence and freedom from bias from political affiliation.”
The judgment set in motion a place to reform the appointment of commissioners. But, when parliament passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, it blatantly ignored the spirit of the judgment and constituted an appointing committee that replaced the CJI with a union minister—ensuring that the government retained a majority.
“It is certainly an improvement over the erstwhile system, where the law minister moved the file and was approved by the PM and went to the president for approval of appointment,” Sampath told me. “Of course, the ideal thing would be to take an unimpeachably neutral person like [the] chief justice of India as a member, as it is not so easy to overrule the CJI in case objections are raised by him, and the very fact that CJI is a member will ensure patently untenable proposals are not brought before the committee. The basic fact is that, in any selection, government choice will have a dominant role, though a selection committee with transparent process will reduce the arbitrariness in a significant measure.”
Meanwhile, the Supreme Court dismissed the ADR’s petition challenging Goel’s appointment, in August 2023. The two-judge bench argued that the appointment had already been made when the court delivered its judgment. But, in March this year, amid speculation over the new legislation, Goel suddenly resigned. This cut short his term by more than three years—he was due to retire in 2027. He became the second person to resign as commissioner, after Lavasa.
“To me it is a big mystery,” Jagdeep Chhokar, a founder of the ADR and a petitioner in the case challenging Goel’s appointment, told me. “The way he was appointed, it appeared that he is someone the government is very keen to appoint, and that he would stay as long as the government. His resignation is a surprise.”
With Goel gone, there was speculation about whether it would now be a one-person commission, with Rajiv Kumar as CEC. But soon, a process for replacing Goel and Anup Chandra Pandey—who had retired in February—was underway, purportedly under the guidelines set by the new act.
Adhir Ranjan Chowdhury, the leader of the opposition in the Lok Sabha, stated that a list of 212 names was initially shared with him. Then, ten minutes before the selection meeting began on 14 March, he was given a shortlist of six candidates. The two that were ultimately selected were Gyanesh Kumar and Sukhbir Singh Sandhu. “The whole selection was a farce,” Prashant Bhushan, who filed a petition to stay their appointments, told me. “The government had predetermined which two people were to be selected.”
Just weeks before the 2024 Lok Sabha elections, Gyanesh Kumar and Sukhbir Singh Sandhu were appointed election commissioners in a hurried selection process in March. ANI
Kumar, a bureaucrat from the Kerala cadre, is known for his closeness to Amit Shah. He has played an important role in some of the Modi government’s key policy moves. When the government abrogated Article 370 of the Constitution, in August 2019, Kumar was heading the home ministry’s division for Jammu and Kashmir. He was part of the decision to devolve the former state into two union territories. In 2020, when the government set up the Ram Janmabhoomi Teertha Kshetra, the trust meant to construct the Ram temple at Ayodhya, he oversaw all matters related to the dispute and arbitration in courts. In this magazine’s January 2024 cover story, staff reporter Sagar explains how the RJTK allowed a group of intermediaries—many of whom are connected to the BJP—to make windfall gains while acquiring additional land for the temple complex. Kumar’s final assignment was the post of secretary in the cooperation ministry, which is also headed by Shah.
Sandhu, from the Uttarakhand cadre, was the chairperson of the National Highways Authority of India, between 2019 and 2021, during which he distinguished himself to the minister, Nitin Gadkari. When the BJP’s Pushkar Singh Dhami took charge as chief minister of Uttarakhand, Sandhu was appointed chief secretary in the state government. He worked on the government’s controversial uniform civil code, a key electoral promise of the Modi government.
In essence, the two men who have been chosen by a government-controlled panel have worked closely with BJP governments. “These are the inevitable consequences of human institutions,” the former CEC TS Krishnamurthy told me. Quraishi said that the “neutrality of the incumbents is inherent in the constitutional scheme.” An election commissioner “has to resign from the government and is expected to keep an arm’s-length distance,” he said. “That’s why the Constitution provides that, once appointed, the government cannot remove him except like a judge of the Supreme Court—by impeachment. This protection is essential for keeping the incumbents safe from executive pressure. It is essential not only to be neutral but also to appear neutral.”
But the CEC is the only member of the three-person committee who has protection from arbitrary removal. The other two commissioners may be removed at will. According to many government officials and former ECI officials, this is part of the problem. “In the commission, the CEC has undue weight over the other two,” Jawhar Sircar told me. “They are not equal in the removal process. CECs have an overwhelming presence, and we need to take a relook at the laws concerning the removal of the two election commissioners on the advice of the CEC.” In India’s Experiment with Democracy, Quraishi makes a case for extending the same protection to the other two commissioners, since two neutral commissioners would be able to “control a defiant CEC.”
But not a lot of people have hope. Bhushan argued that the ECI’s independence “has radically changed during the Modi regime.” All the commissioners appointed by this government, he said, were, barring one or two exceptions, “yes men of the government. Earlier, this was not so. Earlier, a lot of the ECs were appointed as reasonably independent people. And they also asserted themselves, ever since Seshan’s time.” TN Seshan, who served as CEC between 1990 and 1996, is widely recognised for reforming and improving the electoral process, and even taking on the establishment.
“This appointment process is done and dusted now,” Sircar said. “They have made two appointments. There are no appointments in the offing. One of the ECs is senior by half an inch and will become CEC. It will all go the same way.”
The ECI announced election dates on 16 March 2024. Since then, it has issued show-cause notices to various leaders, including from the Congress and the BJP, for speech-related violations of the model code of conduct. It has warned political parties to maintain decorum in public campaigning and conveyed stern action against direct or indirect violations.
EAS Sarma has written to the ECI about Modi’s violations of the model code. Sarma mentioned a speech made by Modi in Tamil Nadu, in which he said that the opposition alliance had “openly announced that it wants to destroy the shakti that the Hindu religion has faith in. Everyone in Tamil Nadu knows what shakti means in the Hindu religion.” Modi added that the INDIA leaders “repeatedly and deliberately insult the Hindu religion.” According to Sarma, these statements violated the model code of conduct. He urged the ECI to take action against Modi, if the report he cited was found true. The AITC called out Modi for breaking the model code of conduct by promising to return to the people of Bengal Rs 3,000 crore confiscated by the ED in its various raids in the state.
In the meantime, the ECI has taken no action based on the revelations of the electoral-bonds scheme. Nor has it intervened on the matter of Kejriwal’s arrest, or on the use of agencies to serve the BJP’s purpose. There are just weeks left before the country goes to the polls. The ECI’s actions before the election will determine how independent it can truly act, despite government control of its officers. But there is little hope among those who have been watching the body’s actions closely. “We have just a veneer of democracy left in this country,” Bhushan said.
Eram Agha is a reporting fellow at The Caravan.
https://caravanmagazine.in/government/taming-election-commission has pictures. Please consider subscribing to and supporting Caravan.