The Election Commission of India has for long been the guarantor of free and fair elections, its sole aim being to organise, schedule and conduct the world’s largest and most complex elections. Zoya Hasan outlines how increasing control by the Executive is impacting its capacity to fulfil its task.
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The Election Commission of India (ECI) is a cornerstone of Indian democracy, responsible for conducting free and fair elections, a permanent institution established under Article 324 of the Constitution of India. It provides for the appointment of members of the ECI, and secures the tenure and conditions of service of the Chief Election Commissioner (CEC) and Election Commissioners (ECs). The Constitution gives the ECI the power of direction, superintendence and control of the conduct of elections including the crucial task of preparing electoral rolls for all national and local elections. As such, it hasthe most critical role in the entire electoral process; Justice V. R. Krishna Iyer, a pioneer of judicial activism, described the ECI as the ‘super-authority’.
The ECI is responsible for ensuring a level playing field for all political parties and candidates during state level and national elections and, over the decades, it has been able to ensure this in large measure. Its legal and procedural commitments to free and fair elections have been admired and respected worldwide, and its reputation for fairness has been crucial for preserving the integrity of democratic processes in India’s elections. However, as one of the world’s most powerful institutions for the conduct of elections, there have recently been growing doubts about its independence from the Executive.
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In 2014, the Bharatiya Janata Party (BJP) became the first political party to win a parliamentary majority at the national level after a gap of 25 years of coalition governments. This heralded the return of a strong Executive and changed the political system dramatically. Successive victories in 2019 and 2024 (the latter in coalition) have further strengthened the Executive, and reshaped relationships between the government and autonomous institutions like the ECI.
Some decisions taken by the ECI lately have dented its image of independence and impartiality. A number of inconsistent actions in the 2019 elections were noticeable; and there were several instances in the 2024 parliamentary elections as well. For instance, questions have been asked about the scheduling of elections which seem to favour the ruling party. Elections to states that had gone to the polls collectively in the past were held separately — in 2017, Assembly elections in Himachal Pradesh and Gujarat were held on separate dates. The delay allowed the Gujarat state government to speedily roll out new welfare schemes before the Model Code of Conduct (MCC) for elections came into effect (MCC is a set of guidelines established by the ECI to regulate the behaviour of political parties and candidates during elections).
Likewise, the schedule of Assembly elections in Jammu & Kashmir and Haryana was announced on 16 August 2024, but ECI delayed the announcement of polls for Maharashtra (ostensibly due to security concerns), which was expected to benefit the ruling alliance in the state. Even more curiously, parliamentary elections in Maharashtra were held in five phases and Assembly elections (in the same year) were held in just one phase, though both were catering to the same electorate.
The ECI’s handling of electoral disputes recently has also been under a cloud. In several instances, it has been accused of delaying or dismissing complaints against the ruling party while acting swiftly against Opposition parties, creating a perception that the ECI is biased towards the ruling party.
Violations of the MCC have also not been dealt with effectively or impartially. The MCC begins with: ‘No party or candidate shall include [sic] in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.’ (Para I.1). The ECI had made it clear that candidates were expected to avoid mentioning the Armed Forces in their campaigns in an attempt to derive political mileage. Nonetheless, during the 2019 national election campaign, Prime Minister Narendra Modi appealed to first-time voters to bear in mind the ‘sacrifice’ of the Armed Forces personnel (the recent air strikes in Balakot in Pakistan) while casting their votes, a violation of the ECI’s appeal.
Likewise, appeals to religious and caste sentiments should attract firm action from the ECI but it has latterly not taken any action to stop this either. Prime Minister Modi’s speech at Wardha during the 2019 election campaign mocked Congress leader Rahul Gandhi for contesting from Wayanad in Kerala because it was a minority-dominated constituency. Home Minister Amit Shah’s speech in Nagpur on 9 April 2019 likened Wayanad to Pakistan. Complaints were filed against them for making communal comments but the ECI gave both leaders a clean chit. It was only after petitioners asked the Supreme Court to direct the ECI to adjudicate the complaint that it took a 2–1 decision to declare the charges against the Prime Minister invalid despite objections from one of the ECs regarding violation of its own guidelines. He was outvoted; his dissent was not recorded.
Communal rhetoric was even more rampant in the 2024 parliamentary elections. The Prime Minister alluded to Muslims as infiltrators and ‘those who have many children’. The ECI received numerous complaints from political parties, candidates and citizens regarding these speeches. Yet, no one was penalised; in fact, the ECI failed to even issue a notice to the Prime Minister for these remarks, instead calling for restraint from star campaigners. Responding to a query at the end of the election, the CEC clarified that the ECI ‘deliberately decided’ to ‘not touch’ the top two leaders in each party.
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While the MCC is an instrument for promoting free and fair elections, in fact the ECI has not been able to implement its own decrees often because the penalties for violating the MCC are minimal, which can make them ineffective in deterring misconduct. Alongside, the MCC has been enforced selectively, with some parties or candidates being treated more leniently than others. In short, the implementation of the MCC is done with little external deliberation, transparency or accountability. As one legal scholar notes, ‘the trouble is not so much the agency’s widening ambit so much as with the character of the agency’s functions’.
There are questions about the ECI’s own conduct as well. Opposition parties have complained about faulty electoral rolls, Electoral Voting Machines (EVMs) and voter turnout data. Doubts have been raised over failures to declare figures of the votes polled at the end of the polls (instead of giving the exact number of votes polled, only the percentage of votes polled was given). Data showed a sharp increase (about 5 to 6 per cent) as compared to the initial percentages announced on the day of polling (increasing from 60 per cent to 66.14 per cent). In 140 parliamentary seats, more EVM votes were counted than polled in the national elections in 2024, the same happening later in the Haryana and Maharashtra assembly elections.
The Association for Democratic Reforms (ADR) asked the ECI to explain the discrepancy between votes polled through EVM and the votes counted by EVMs (excluding postal ballots), and later petitioned the Supreme Court for the same. However, the ECI has not provided a satisfactory or convincing response to these complaints, and has refused to entertain any suggestion of electoral manipulation.
Another important area of concern is the ECI’s failure to effectively regulate campaign finance, allowing wealthy donors to influence electoral outcomes. This has led to serious concerns about the integrity of the electoral process.
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The process of appointment of ECs is the most critical issue in ensuring the robustness of the institution. Article 324 (referred above): ‘the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.’
A Constitution Bench judgment in September 2023 decreed that appointments to the ECI should be made by a three-member Committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha (LoP) and the Chief Justice of India (CJI). This was to remain in force till a law was enacted by Parliament to finalise the process. In response, the current government enacted the Chief Election Commissioners (Appointments, Conditions of Service and Terms of Office) Act 2023 (in December 2023) which replaced the CJI’s position with a Cabinet Minister to be nominated by the Prime Minister, thus giving the Prime Minister’s ruling party a clear majority in the three-member committee, and effective control of the appointment of CECs and ECs.
Far from shielding it from Executive influence, the new law has given rise to further misgivings about its independence. ‘These infirmities make this law constitutionally unsustainable because the provision relating to the composition of the committee is arbitrary and does not have a rational basis. Further, by creating a majority in favour of the government-supported candidate, it does not allow a fair and objective assessment of the merit of other similarly placed candidates’. The control over ECs handpicked by the ruling party weighs heavily in favour of the incumbent government and, unsurprisingly, curtails its ability to act independently.
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Majoritarian politics generally has affected the independence of institutions, which cannot exert their authority without fear of confronting a dominant and ideologically loaded political force. There is little pushback against majoritarian pressure which has across-the-board effects on the independence of institutions, especially on the sanctity of the electoral process.
The ECI was, until recently, a robust body which had done a commendable job in conducting the largest elections in the world under very complex conditions, commanding global respect over the decades. Its diminished autonomy is at least partly due to the new political equilibrium in which a multi-party system has given way to one-party dominance under the BJP, and their sustained attempts to neutralise institutions through Executive control of appointments and resources.
Over the last 10 years, the ECI has gradually succumbed to pressure from the ruling party, creating a perception of being partisan. This has upended the level playing field it was mandated to ensure by the Constitution, instead leading to distortions in electoral politics, raising concerns about its independence, impartiality and effectiveness. Without Executive self-restraint, an ethical respect for fairness or harder institutional firewalls, the ECI’s credibility remains under threat.
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