Is India an ‘electoral democracy’?

India's elections are neither free nor fair, and therefore India cannot really be called an "electoral democracy." It is but natural that international agencies and watchdogs describe India as a part-free nation with its democratic process "on a path of steep decline" that could turn the country into an "electoral autocracy."

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AS U.S. President Joe Biden hosted the 'Summit for Democracy' on December 9 and 10 last year, the uninvited China staked its claim as the "world's largest democracy", a title India has taken for granted for long. As proof, a white paper put out by the Chinese government stated this: "In 2016 and 2017, more than 900 million voters participated in elections to people's congresses at the township and county-levels—the world's largest direct elections." Of course, everyone knows that China is a single-party autocracy.

The number of voters in India during the 2019 Parliament election was almost the same, but participation was less at 67.47 per cent of the total electorate.

Addressing the summit, Prime Minister Narendra Modi said: "I am proud to represent the world's largest democracy at this Summit. The democratic spirit is integral to our civilization ethos." Adding that the structural feature of multi-party election is an important instrument of India's democracy, he offered to share its expertise in holding free and fair elections. Pray, are India's elections 'free and fair'?

India gained independence and moved from alien Monarchy to domestic Democracy on the midnight of August 14/15, 1947 with these historic words spoken by India's first Prime Minister, Jawaharlal Nehru, in the Constituent Assembly: "… At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom…We shall never allow that torch of freedom to be blown out, however high the wind or stormy the tempest."

Freedom, that came in the wake of democracy, was to give opportunity to the common man, to the peasants and workers of India; to fight and end poverty, ignorance and disease; to build up a prosperous, progressive nation; to create social, economic and political institutions which will ensure justice and fullness of life to every man and woman, and a place in the sun.

As is universally known, the words "election" and "democracy" have become synonymous. As of now, the only way to choose our representatives to govern ourselves is through the electoral process. Article 21(3) of the Universal Declaration of Human Rights, 1948 states as much: "The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures."

Commencing from January 2020, a due diligence into the genuineness of India's elections and its voting procedures was made by the Citizens' Commission on Elections, headed by former Supreme Court judge Justice Madan Lokur, of which the writer is the Co-ordinator. Six themes that had a direct bearing on the integrity and fairness of the Parliamentary election of 2019 were identified and studied in detail, including research and depositions from experts, and published in the form of a report in March last year. The key findings – theme-wise – are summarised below:

Also read: Election Commission of India: The Making and Unmaking of Its 'Reputation'

Electoral rolls

• Significant exclusion has been noticed of vulnerable and disadvantaged groups: circular migrants; urban homeless persons; trans-people; women (especially single women, widowed, and divorced women); sex workers; highly stigmatised caste groups (manual scavengers); adivasis (including particularly vulnerable tribal groups and de-notified tribes); Muslims (and even Christians in some constituencies); persons with disabilities; persons with mental illnesses; old people without care.
• There is no doubt that many names do not figure in the electoral rolls, whether through mischief or oversight: minority communities, the homeless and the disadvantaged, the aged, among others, are particularly those left out. It is obvious that the electoral rolls registration machinery has been found wanting in carrying out a door- to-door enrolment campaign.
• Two categories of voters have a problem casting their votes at the polling station: (a) migrant labourers located at places away from their place of residence; and (b) those who, because of age, disability, illness, and so on, are not able to travel to the polling station.
• Recent amendment to the law and the Election Commission of India's ('ECI') action to link voter ID with Aadhar is a very dangerous proposition. It could lead to massive data leak, fraud and theft that can severely endanger India's democracy.

Also read: Supreme Court asks Election Commission to clarify status of persons not on the NRC but on the electoral rolls

Electronic voting (EVM/VVPATs) and its compliance with democracy principles

• Electronic Voting Machine ('EVM') voting does not comply with the essential requirements of 'democracy principles', that is, each voter having the direct knowledge and capacity to verify that their vote is cast-as-intended, recorded-as-cast and counted-as-recorded.
• It also does not provide provable guarantees against hacking, tampering and spurious vote injections. That an EVM has not yet been detected to have been hacked provides no guarantee that it cannot be hacked. Thus, elections must be conducted assuming that the EVMs may possibly be tampered with.
• Though voter verifiable paper audit trail ('VVPAT') is installed in every EVM, not even one paper slip is counted and matched to verify/audit the votes polled and votes counted before making the results public. This has exposed elections to serious fraud.
• Design and implementation of ECI-EVMs as well as the results of both software and hardware verification are neither public nor open to full, independent review. The VVPAT system does not allow the voter to verify the slip before the vote is cast.
• Due to absence of end-to-end verifiability, the present EVM system is not verifiable, and therefore is unfit for democratic elections.
• There must be stringent pre-audit of the electronic vote count before the results are declared. The audit may, in some cases, depending on the margin of victory, require a full manual counting of VVPAT slips.
• The electronic voting system should be re-designed to be software and hardware independent in order to be verifiable or auditable.
• Decision-making processes in the ECI were not logical, rigorous and principled during the 2019 parliamentary elections. It is essential for elections using electronic means to adhere to standard democratic principles. Only then can elections be free and fair, engendering confidence in election outcomes and democratic process. This is not so now.

Also read: Supreme Court seeks reply from Election Commission on plea questioning why unauthorised persons are handling EVMs

Criminal and money power, and electoral bonds

• The problem is enormous. The proportion of candidates with criminal background among the winning candidates presents a very grim picture. Members of Parliament ('MPs') with serious criminal cases against them constituted 14 per cent of all MPs in 2009, 21 per cent of MPs in 2014 and 29 per cent in 2019.
• If we look at the absolute number of MPs with declared criminal cases, the number stood at 162 in 2009, and increased to 185 in 2014 and 233 in 2019. Those with serious declared criminal offences increased from 76 in 2009 to 112 in 2014 and to 159 in 2019, and the trend is rising.
• Money-power in elections is the fountainhead of all corruption in the country. It compromises the integrity of democracy in multiple ways: it raises the entry barriers to politics; excludes honest candidates and parties; leads to corruption and big money controlling the state; distortion of policy-making in wasteful, inefficient, and anti-democratic directions; exacerbation of polarization.
• Despite opposition from ECI and the Reserve Bank of India, the Union Government, using the Money Bill route to bypass Rajya Sabha, introduced electoral bonds in Indian elections with the Finance Act, 2017. This increased opaqueness and consolidated the role of big money in electoral politics, giving a huge advantage to the ruling party and destroying the level playing field.
• The fast-rising economic oligarchy in the country, threatening India as a welfare State, is the direct fallout of this extreme criminal and money power in elections.

Also read: Electoral bonds and removal of cap on corporate funding will have serious impact on transparency in funding of political parties, Election Commission tells the Supreme Court [Read Affidavit]

Model Code of Conduct

• The ECI deliberately delayed the announcement of the 2019 Parliamentary elections to enable the Prime Minister ('PM') to complete the inauguration blitz of a slew of projects (157 of them) that he had scheduled between February 8 and March 9, 2019.
• It was the longest election in the country's history, and its scheduling gave room for suspicion that it had openly and unabashedly favoured the ruling party.
• Some of the major controversies relating to the Model Code of Conduction ('MCC') pertain to (a) lack of consistency by the ECI in enforcing the MCC, (b) the ECI treating the ruling party with kid gloves, and (c) the ECI not using its powers under Article 324 (Superintendence, direction and control of elections to be vested in an Election Commission) of the Constitution.
• The Election Commissioner who dissented and stood his ground had to resign from the ECI, therefore being denied the opportunity to become Chief Election Commissioner.
• The raison d'être of the MCC was to provide a level-playing field to all contesting political parties. Dealing with the ruling party with kid gloves negates the very reason for the existence of MCC.
• One of the most disturbing phenomena in the 2019 election was the abuse/misuse of the Armed Forces for election purposes by the party in power. The propaganda went to the extent of calling the Indian Army 'Modi's Sena' (Modi's army), causing anger among Veterans. This forced a large number of veterans to write to the President of India that received no response.

Also read: Supreme Court to examine the scope of Election Commission's powers to deal with violation of Model Code and hate speeches by politicians

Media, fake news, etc.

• India's mediascape has undergone a major transformation with the exponential growth in the use of the internet across the world and also in India.
• A very substantial section of the mainstream and mass media in the country has become excessively supportive of the ruling Bharatiya Janta Party.
• Despite guidelines and codes, the ECI did not take note of the many media violations – particularly by the ruling party.
• The most blatant violation was the opening of a new channel called Namo TV, which continuously telecast speeches and events about the PM. Namo TV did not have permission from the Union Information and Broadcasting Ministry to go on air, and did not comply with the regulations necessary to start a new channel.
• ECI failed to curb fake news online before and during the 2019 elections.
• Procrastination, silence and inaction characterized the ECI's responses even to serious violations of MCC, media code and guidelines by the ruling party!

Also read: Election Commission bars NaMo TV from airing "political content" immediately

ECI – functioning and autonomy

The ECI has plenipotentiary powers drawn from Article 324 of the Constitution to conduct free and fair election. In addition, Supreme Court has ruled: "…[W]hen Parliament or any State Legislature made valid law relating to, or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions, but where such law is silent, Article 324 is a reservoir of power to act for the avowed purpose of pushing forward a free and fair election with expedition."

But the ECI is just not using these powers, because Election Commissioners are the appointees of the government of the day and not through an independent process of collegium. The case of one dissenting Election Commissioner, who was side-lined and then eased out has caused irretrievable damage to ECI's independence and integrity!

This compromises the autonomy of the ECI and creates doubts about the neutrality of the Chief Election Commissioner and the Election Commissioners, and consequently, the neutrality of the Commission itself. This poses serious danger to the fairness and integrity of not only the elections, but democracy itself.

Also read: Chief Election Commissioner and two Election Commissioners attending meeting convened by PMO proves Ambedkar's fear that poll body might come under "thumb of the Executive"

The sum and substance of the findings is that India's elections are neither free nor fair, and therefore India cannot really be called an "electoral democracy." No wonder, therefore, that India's governance is on the dangerous path described by American political scientists Steven Levitsky and Daniel Ziblatt in their seminal work 'How Democracies Die' (2018):

"How do elected authoritarians shatter the democratic institutions that are supposed to constrain them? Some do it in one fell swoop. But more often the assault on democracy begins slowly. For many citizens, it may at first, be imperceptible. After all, elections continue to be held. Opposition politicians still sit in congress (parliament). Independent newspapers still circulate. The erosion of democracy takes place piecemeal, often in baby steps. Each individual step seems minor—none appears to truly threaten democracy. In fact, government moves to subvert democracy frequently enjoy a veneer of legality: They are approved by parliament or ruled constitutional by the supreme court. Many of them are adopted under the guise of pursuing some legitimate—even laudable—public objective, such as combating corruption, "cleaning up" elections, improving the quality of democracy, or enhancing national security."

It is but natural that international agencies and watchdogs describe India as a part-free nation with its democratic process "on a path of steep decline" that could turn the country into an "electoral autocracy." This happening as we celebrate the Platinum Jubilee of India's independence is an unmitigated tragedy.