BIHAR IS GEARING UP for the State Assembly elections to be held in November 2025. The Election Commission of India’s (‘ECI’) move to revise the voter list at the eleventh hour raises serious concerns about the accessibility of participation in the upcoming polls for the ordinary person in Bihar. Many arguments have been advanced about the real purpose behind this exercise and the political interests served in the garb of ensuring the “integrity of the electoral roll” and the “conduct of free and fair elections”.
At a more profound level, the ECI’s move reveals an utter disregard for due process and natural justice, stemming from an obliteration of its role as a fourth branch institution. The unavoidable consequence of wrongful disenfranchisement of persons without any legal redress and resultant effacement of the democratic process in the state is implicit.
Due process and natural justice concerns
It is imperative that state action be prescribed by law, pursue a legitimate aim, and be proportionate to the aim sought to be achieved. Failure to adhere to these standards risks infringement of rights through undue restrictions. In the garb of ensuring “integrity of the electoral roll” and the “conduct of free and fair elections,” the SIR inadvertently pursues illegitimate political interests. Further, it imposes a disproportionate burden on the proposed voters to demonstrate that they deserve to be on the electoral rolls, or take a chance of being disenfranchised.
The basis on which proposed voters will (or will not) be able to secure a place on the electoral rolls is unclear, as there is no policy underlining the decision-making powers of the ECI. There is complete disarray coupled with an indecisive ECI, changing the entire process every now and then. What is most unsettling is that there is no appeal mechanism to address the concerns of those whose application forms are rejected for whatever reason. Additionally, there is no guarantee that reasons will be given for any such rejection. It is not reasonable to expect the aggrieved persons to approach a court of law to avail remedies for wrongful disenfranchisement within a short timeline. The obvious corollary to this situation is risking disenfranchisement of numerous citizens, without a real remedy. If subsequently it is found that the rejection ought to be reversed, depriving such persons of the right to vote in the upcoming election would cause stark injustice. In the absence of an adequate remedy, the risk remains unjustified.
ECI’s role as a Fourth Branch institution
The tripartite separation of powers in India ensures a self-enforcing mechanism for a democratic polity. Nevertheless, certain norms cannot be self-enforced, but play a key role in guaranteeing stability in governance structures and commitment to democratic values. These cannot be achieved by competition alone, and are best taken care of by specialised institutions, known for their independence from the other three branches. The importance of ECI to prevent partisan interference with the administration of elections and to ensure the realisation of the right to vote is well established. The ECI’s constitutional design is not enough to protect its independence from other political branches. The current appointment process, contrary to what was followed earlier, gives a 2:1 veto to the ruling party to appoint the members of the ECI, completely sidelining the Leader of Opposition, making the ECI susceptible to capture by partisan interest groups.
Even the constitutional status of the ECI has not helped in preventing the other branches of the government from impeding its functioning by filling it up with partisan appointees. The failure of the Constitution to spell out the details regarding the appointment process has made way for the Legislature to fill the gaps with partisan rules regarding the appointment of members of the ECI. As per Article 324, the authority to nominate members to the ECI is held by the President, who makes this decision based on the “aid and advice” of the Prime Minister and Cabinet. This essentially means that the Prime Minister has the authority to directly nominate individuals to the ECI. This flaw in constitutional design has allowed the ECI to be captured during the appointment procedure itself.
This weakness is made worse by the President's power to nominate extra members. If the government of the day disapproves of the Chief Election Commissioner's approach, they have the power to appoint pliant Commissioners to the ECI. This is precisely how the ECI went from being a single-member body from 1950 to a three-member body in 1990. Once the institution has been captured at the stage of appointment itself, there is very little hope that it will discharge its functions in a non-partisan manner throughout the conduct of elections.
The ECI’s lack of accountability
Further, the ECI lacks both operational accountability as well as structural accountability. The extra-legal means employed by the ECI to regulate political actors make it extremely powerful and consequential for the democratic process. There is little doubt over the importance of the functions it carries out and the powers it possesses. Moreover, in the absence of any external oversight of the measures carried out by the ECI and the protections it has been afforded under the Constitution, there has been a huge trade-off with respect to its accountability. The wide administrative discretion afforded to the ECI makes it opportune for partisan groups to capture the institution, especially in the context of its compromised independence. Furthermore, the ECI’s actions are not subject to any form of external review, nor are there any requirements of disclosure, making it an opaque institution in itself. In addition to this, the Indian Supreme Court’s interpretation of the powers of the ECI, as a co-equal branch of the government, sometimes even overriding the parliamentary powers, poses a dilemma of operational accountability. Lastly, achieving accountability through the Courts is not always the best option, as it remains a reactive measure in the absence of direct forms of accountability through civil society organisations, making the situation even more precarious.
The decline in integrity in election conduct is one of the most pressing problems plaguing Indian democracy. It is important to ensure that elections are not merely a smokescreen for autocratic leaders to accumulate power with virtually no possibility of losing the electoral office. The role of an ECI as a guarantor of free and fair elections cannot be underscored enough. As a key component in the actualisation of the right to vote of every citizen, the ECI is key in ensuring that democracy, in India, lives.