The Election Commission and the Grand Illusion of Rule of Law

The ruling structure has an interest in preserving a system which works 1 out of 10 times; the veneer of accountability brings a false sense of relief to those who repose trust in institutions.

Last week, a large number of workers and students travelling to cast their votes in Silchar and Karimganj- Lok Sabha seats in Assam- were affected when around 16 trains of the route suddenly stood cancelled. Most of these travellers could not reach in time to cast their vote. Another day saw the DIG of Police, Moradabad accidentally forwarding a WhatsApp text to a group of mediapersons, which ‘requested’ the officer to deploy police force at ‘muslim’ polling booths to reduce their vote percentage. Both these instances escaped notice of the Election Commission of India (ECI).

What I am trying to point out is that contrary to popular imagination, one need not rig elections by hacking EVMs; with servile institutions and their pliant office-bearers, the ruling dispensation can influence election outcomes by simply gaming the system.

Modi Government and the ECI: A brief history

In March 2023, a constitution bench of the Supreme Court had, amongst other things, underlined the importance of ‘purity’ of the electoral process:

165. The cardinal importance of a fiercely independent, honest, competent and fair Election Commission must be tested on the anvil of the rule of law as also the grand mandate of equality…An Election Commission which does not ensure free and fair poll as per the rules of the game, guarantees the breakdown of the foundation of the rule of law…In the wide spectrum of powers, if the Election Commission exercises them unfairly or illegally as much as he refuses to exercise power when such exercise becomes a duty it has a telling and chilling effect on the fortunes of the political parties…Therefore, any action or omission by the Election Commission in holding the poll which treats political parties with an uneven hand, and what is more, in an unfair or arbitrary manner would be anathema to the mandate of Article 14, and therefore, cause its breach…

A series of events within a span of one year has quite meticulously undone this call for fairness in the electoral process. In December 2023, the Parliament enacted a new law which authorised a Central-government dominated panel led by the Prime Minister to appoint the Chief Election Commissioner and other election commissioners. In February 2024, the Supreme Court struck down the Centre’s electoral bonds scheme and re-emphasised the importance of a transparent and fair electoral process.

Ahead of the 2024 Lok Sabha elections, this PM led panel appointed two former IAS officers as election commissioners. The sole opposition representative in the panel alleged procedural bias in the selection process. Yet, when a member of the Opposition approached the Supreme Court challenging the appointment, the Court refused to intervene as it would ‘disturb the 18th General Election for the Lok Sabha.’ Despite noting that there was a shortcoming in the selection process, the Court found that in view of the timelines for the upcoming Lok Sabha elections, it was not appropriate to pass any interim order, as it would lead to chaos and virtual constitutional breakdown. There is no constitutional logic to this reasoning, for expediency does not cure procedural irregularities, more so where grave issues of independence of institutions are at stake. Since then, the ECI has proved in ways more than one that in its eyes, the ruling party is more equal than the opposition.

The issues plaguing the incumbent ECI, however, are not restricted to what happened in Surat or Indore or the its inability to act against the BJP: most recently, psephologists have expressed concerns regarding the delay in publishing final turnout figures and non-disclosure of the actual number of voters and votes polled for each constituency. In the interest of transparency and to ensure that there is no discrepancy between votes polled and votes counted, such aggregate data is required to be disclosed by the ECI.

The illusion of accountability

Almost everything about the conduct of the ECI- as it occupies centerstage in the midst of the present general elections- indicates that it has shed all pretence of neutrality. Yet, the opposition parties keep going to it with complaints and grievances; citizens on X and in YouTube comments keep demanding action against the PM’s brazen anti-Muslim rhetoric and recurrent speeches filled with communal overtures and misinformation.

There is merit, then, in asking a couple of fundamental questions: Why do we still put trust in a body which, by all measures, is showing symptoms of decay? What explains this continued faith in an institution which has consistently failed to stand up to the ruling party? It is International Workers’ Day, and therefore a good occasion to quote from Perry Anderson’s review of ‘Against the Law: Labour Protests in China’s Rustbelt and Sunbelt’, a 2007 book by Ching Kwan Lee which deals with the ‘fate of urban labour’ in China:

…Dereliction in the rustbelt, super-exploitation in the sunbelt: the treatment of labour is pitiless in either zone.

How do workers react to it? In a system where they have no freedom of industrial or political organisation, and the social contract that once gave them a modest security and dignity in exchange for subordination has been jettisoned, the law – however authoritarian – becomes the only resource to which they can appeal. Any direct action risking police repression, protests typically find their way to the courts, in the hope that blatant violations of legality by employers or local officials will find some redress there – and in the belief that the central government, if it knew its laws were being broken, would take action to see them enforced. Such popular faith in the good intentions of the Party leadership might be seen as a Chinese version of the traditional Russian belief in the tsar as ‘Little Father’, unaware of the misdeeds of his bureaucrats and landlords. The central authorities naturally foster the illusion that they are not responsible for illegalities lower down, giving them leeway to step in with last minute concessions when protests look like getting out of hand.

In fact, as Lee makes clear, the law can only function as an effective system of control and mystification if the courts do not invariably act as rubber stamps for criminality or oppression. In general, that is just how they do behave. But in a minority of cases, labour disputes are decided – more often partially than wholly – in favour of workers, keeping alive the belief that the law remains a protection even where it is being brazenly flouted by those with state power behind them. In ways reminiscent of the 18th-century England depicted by Thompson in Whigs and Hunters, notions of ‘the rule of law’ become a battleground, in which the anger of those below seeks to wrest verdicts from the cynicism of those on high, as the only potential weapons of the weak to hand…

One would find that the aforesaid rings true for the ECI as well. In all places, everywhere, the ruling dispensation has an interest in preserving the notion that its institutions are functional; this helps maintain the perception that the ‘system works’, that the order, on the whole, is efficacious. Take, for instance, this example from Birbhum, West Bengal: Last week, the ECI cancelled the nomination of the BJP candidate for technical faults in his documents. The proponents of the ruling party wasted no time in using this incident to dismiss all legitimate questions regarding the independence of the ECI; this, per them, was proof enough that the commission is independent. In response to complaints filed against Modi’s vitriol in Rajasthan, the ECI sent notices to the respective presidents of the BJP and the Indian National Congress, seeking comments regarding alleged violation of the Model Code of Conduct. When the BJP chief chose to ignore the notice and echoed the divisive rhetoric employed by the Prime Minister, the ECI had nothing to say.

The hallmark of a rules-based order is accountability: violation of a rule comes with consequences; more importantly, the authority entrusted with the responsibility of enforcement has to ensure that the offending party suffers those consequences. The ECI may indulge in zestful gymnastics to demonstrate its effectiveness but even its biggest apologist cannot meet the claim that the ECI can make the Prime Minister accountable for his repeated violation of the Model Code of Conduct. Hapless citizens who have everything at stake but no real power in this apparent dance of democracy can only watch and gasp in despair.