Crisis of credibility? A look at the EC's decisions that have harmed its image

Polling for the Delhi Assembly election ended at 6 pm on Saturday. But the final voter turnout, a basic election statistic, was kept a mystery for over 24 hours by the Election Commission.

Chief Minister Arvind Kejriwal, having waited 22 hours for the final turnout figure to be released, took to Twitter to describe the delay as “absolutely shocking”.

Fellow AAP leaders also questioned the Election Commission. Sanjay Singh, who anchored the party’s campaign, alleged at a press meet on Sunday afternoon that “such a delay was seen for the first time in the country’s 70-year history”. “Even in elections in big states and to the Lok Sabha, the turnout figure comes out within hours. But Delhi has only 70 seats,” he added. “Something is fishy, some game is being played secretly.”

Deputy Chief Minister Manish Sisodia raised similar concerns. Criticising the silence of the Election Committee, he wrote on Twitter, “BJP leaders are giving out polling statistics while the EC has failed to do so even after 24 hours.” He questioned the poll body, “Are you waiting to get the final polling figure from the BJP office?”

AAP leaders’ scepticism centred around the alleged possibility of the tampering of Electronic Voting Machines. Kejriwal, in fact, held a meeting at his home Saturday night to discuss the security of EVMs. Sanjay Singh, who attended the meeting, later told the mediapersons about two suspicious incidents of tempering in Babarpur and Vishwas Nagar.

Finally, at 7 pm on Sunday, Delhi’s Chief Electoral Officer Ranbir Singh informed the media that the final turnout was 62.59 percent, lower than the 67.47 percent recorded in the 2015 Assembly election.

The commission denied the allegations levelled by AAP leaders. Asserting that they hadn’t been late in releasing the final figures, Ranbir Singh cited the need for scrutiny and accuracy in such an exercise. “Returning officers were busy throughout the night. Thereafter, scrutiny was done, followed by constituency-wise data entry. In data entry, it is important to maintain accuracy,” he said.

On AAP’s apprehensions about EVM tampering, he said the machines in question were those in reserve, and that the matter had been satisfactorily resolved in presence of representatives of all parties on Sunday afternoon.

This controversy was of a pattern. Over the last few years, the Election Commission has frequently made decisions that have raised questions, harming its reputation as a neutral arbiter of elections.Indeed, the poll body was caught in rough waters at the start of the Delhi campaign.

Around two weeks before the commission declared the election schedule, BJP’s Delhi chief, Manoj Tiwari, seemed to reveal the polling date in an interview to News18 India on December 27. “Whether he’s influential or not will be known on February 8,” Tiwari had said in response to a question. Asked if he was revealing the polling date, he replied that he was just predicting. “Last time, the polls were held on February 7. This time it could be held on February 8 or February 14.”

When the commission, on January 6, announced that the Delhi would vote on February 8, its impartiality was immediately questioned. Several opposition leaders accused the poll body of working under the influence of the BJP.

Here are the other major episodes in the past few years when serious questions were raised about the Election Commission’s fairness and functioning.

Ashok Lavasa’s dissent notes

At the peak of the 2019 parliamentary election campaign, a rupture emerged in the Election Commission when one of the three Election Commissioners, Ashok Lavasa, dissented with three decisions of the poll body’s clearing Prime Minister Narendra Modi for violating the election code.

The three contentious decisions involved remarks made by the prime minister at campaign rallies. One complaint said Modi had sought to engender a communal divide by claiming that Rahul Gandhi of the Congress was contesting from Kerala’s Wayanad because it was “a seat where the majority is in minority”, a reference to its majority Muslim population. The other complaints claimed he had used India’s armed forces for political gain by urging people to dedicate their votes to those who had carried out the Balakot strike and, at another time, by asserting that “new India gave a befitting reply to Pakistan”.

Then, Lavasa dissented on a clean chit handed out to then BJP chief Amit Shah. A complaint had been made against Shah for likening the Wayanad constituency with Pakistan. But Lavasa’s two colleagues did not deem it a violation of the Model Code of Conduct. After May 4, he recused himself from meetings related to the model code saying his presence had become “irrelevant and meaningless” as his dissent was not being recorded.

While the body was empowered to make decisions on the basis of majority – that is, one commissioner’s dissent wouldn’t invalidate a decision agreed upon by the other two – what followed the election raised eyebrows. Lavasa, who is set to be the Chief Election Commissioner in 2021, and his family members have become subjects of investigations by the Income Tax department and the Enforcement Directorate.

Responding to what he saw as harassment, Lavasa wrote in the Indian Express on December 28: “There is a price for honesty as for everything else in life. Being prepared to pay that price, directly or by way of collateral damage, is part of the honest act. The price depends on who bears the brunt of honest action.”

Mystery of NaMo TV

On March 26 last year, at the peak of the election campaign, a mysterious channel appeared on TV. Called NaMo TV – NaMo is a popular way of referring to Modi by his followers – it was aired for free by all major DTH operators. It vanished as soon as the election was over.

The TV channel’s content – interviews of Modi and other leaders, rallies, films promoting government schemes – prompted the opposition to call it a “propaganda machine”. When the issue was brought before the Election Commission, it sought clarification from the Ministry of Information and Broadcasting. The ministry replied that it was not a registered channel, so it didn’t require permission to air. It was an advertisement-based platform whose expenses were borne by the BJP.

It was only after the Congress complained that the channel was disturbing the level playing field that the poll body directed the Delhi Chief Electoral Officer to submit a report on the matter. While the CEO approved the logo of NaMo TV, which the BJP said was a part of the NaMo app it owned, he did not “certify” the content as it contained old speeches of Modi.

Rahul Gandhi, reacting to a series of such issues during the election, lashed out at the poll body at the end of the campaign.

Curtailing of campaign period in Bengal

In the middle of the 2019 election, the poll body on May 15 decided to cut short by 20 hours the campaigning period in nine constituencies of Bengal. They would go to the polls in the last phase of the election on May 19.

The poll body claimed these were the state’s nine “most violence struck” constituencies. It cited violence as the main reason for reducing the time for campaigning. The violence had been sparked by the vandalism of a Vidyasagar statue during an Amit Shah rally in Kolkata. To justify this decision, the commission invoked Article 324 of the constitution which vests in it the “superintendence, direction and control of elections”.

That the ban didn’t affect Modi’s campaigning schedule in the state – he addressed two rallies just before the 10 pm deadline – enraged opposition leaders.

Mamata Banerjee of the Trinamool Congress and leaders of the Congress and the communist parties accused the poll body of intentionally leaving open that window for Modi. Banerjee called the ban an “unprecedented, unconstitutional and unethical gift” to Narendra Modi by the Election Commission.

Assembly elections in five states, 2019

Election schedules for Rajasthan, Chattisgarh, Telangana, Mizoram, and Madhya Pradesh were to be announced at 12.30 pm on October 6. At the last moment, however, the Election Commission pushed it to 3 pm.

As soon as the election is announced, the Model Code of Conduct comes into effect, laying down certain guidelines to be followed by all parties and leaders during the election. The change in timing, alleged the Congress party, was done to facilitate Modi address a rally at 1 pm that same day.

Chief Election Commissioner OP Rawat vaguely responded that the delay was due to some “official work”. But the Congress wasn’t satisfied. “The EC’s explanation for the delay is preposterous. Prime minister Narendra Modi is guilty of pressuring the EC to delay its press conference as he was scheduled to address a rally. The EC was made to wait for Modi's rally,” Congress leader Randeep Singh Surjewala had said.

Karnataka Assembly election, May 2018

In “predicting” the polling date for Delhi, Manoj Tiwari appeared to have taken the cue from his party colleague Amit Malviya. Back in 2018, Malviya, head of the BJP’s IT Cell, had pulled off a similar stunt ahead of the Karnataka Assembly election.

On March 27, minutes before the polling dates were announced, Malviya had tweeted out the schedule, to everyone’s surprise. The dates, as later announced by the Election Commission, were May 15 for polling and May 18 for counting. Malviya had got the polling date right, startling the journalists present at the poll body’s press meet to announce the schedule.

Many of them interrogated Rawat as to how Malviya could have known the date beforehand. “It will be investigated. Be assured that actions legally and administratively befitting will be taken,” he said. Rawat added that “certain things may have leaked”, for which the commission “will take appropriate action”.

Ahmed Patel’s Rajya Sabha election, August 2017

Ahmad Patel defeated the BJP’s Balvantsinh Rajput by securing the required 44 votes as against his rival’s 38. But the result was the subject of controversy.

Rajput alleged that the votes of two rebel Congress MLAs – Raghavji Patel and Bholabhai Gohel – had been wrongly invalidated by the poll body. He also demanded that the votes of two other Congress MLAs, Shailesh Patel and Mitesh Garasiya, be cancelled.

Challenging Patel’s victory on these grounds, Rajput filed a petition in the Gujarat High Court. He accused Patel of winning through “bribery” and "undue influence".

The Congress, meanwhile, had filed a complaint that its two rebel MLAs had shown their votes to the BJP’s representatives before putting them in the ballot box.

The MLAs had voted for Rajput. But since legislators are not allowed to show their ballots to anyone except the authorised polling agent of their own party, their votes were held invalid. Patel was declared the winner.

The case, however, continues in the Gujarat High Court. According to the latest report available online, Patel was questioned on June 21, 2019.