Letter to President of India: Non-transparency of funding through Electoral Bonds, appointment of political nominees on the Boards of SBI, BEL, ECIL and violating norms of appointment of Election Commissioners vitiates integrity of elections

To
Smt. Droupadi Murmu

Hon’ble President of India

Respected Rashtrapati Ji,

I wish to place before you certain distressing facts revolving around a well-orchestrated strategy of the ruling political party at the Centre that tend to vitiate the integrity of the electoral process, tilting the level-playing ground in favour of the political party in power at the Centre. 

Openly infringing the norms of transparency and objectivity stipulated by the Supreme Court, the ruling political party has introduced a legislation that reduces the Election Commission of India (ECI) to the status of a body subordinate to the political executive. By planting BJP’s representatives in the Boards of Bharat Electronics Ltd (BEL) and Electronics Corporation of India Ltd (ECIL) which manufacture and supply Electronic Voting Machine (EVM) systems and are privy to the source code embedded in the EVM systems, the political executive has ensured that BEL’s and ECIL’s affairs are managed subject to BJP’s oversight. Despite experts’ pointing out that there are segments in the EVM systems that lend themselves to manipulation, the Commission has chosen to ignore those concerns, perhaps reluctant to go against the political executive’s views. To give itself an undue advantage in receiving private corporate donations, the ruling political executive has introduced multiple statutory amendments to allow the corporates to give unlimited donations, allow even foreign agencies to give political donations and ensure total anonymity of donors by introducing a highly contentious Electoral Bonds Scheme (EBS) operated by the State Bank of India (SBI). To ensure that the SBI functions subject to oversight by the BJP, the political executive has additionally planted at least one representative of the BJP on SBI’s Board. 

When the Supreme Court held the EBS to be violative of the Constitution and directed the SBI to make a public disclosure forthwith of the details of the EBS including the details of the donors and sources of funding, instead of allowing the SBI to comply with the apex court’s stipulation, the political executive has evidently pressured the SBI to delay the disclosure till the end of June by which time the elections will be over.

Let me explain these facts in more detail, referring to the correspondence that I have had on the subject, with no response from the concerned authorities:

1.  The apex court of India held categorically that the existing procedure of selection of candidates to be appointed as Election Commissioners is not transparent and objective. The court asked the government to enact a law that provides for a selection committee with the Chief Justice as a member and bring in other changes to ensure that the ECI is adequately empowered to function as an independent authority under Article 324 of the Constitution. Instead of complying with that advice, evidently to keep the Commission under its thumb, the present government at the Centre deviated from those norms by getting a legislation hurriedly passed by the Parliament to enable the ruling political party at the Centre to have total control over the Commission. My letter of 7th November, 2023 addressed to your office refers (https://countercurrents.org/2023/11/appointment-of-chief-information-commissioner-prima-facie-violation-of-section-123-of-the-rti-act/)
2. I addressed the Election Commission of India (ECI) on the 1st February, 2024 pointing out that there are at least four clearly identifiable segments of the Electronic Voting Machine (EVM) system in which there is scope for manipulation, based on a comprehensive technical analysis made by a number of experts. I therefore suggested (i) that the configuration of the EVM system be changed to ensure that the electronic vote cast by a voter gets directly registered in the VVPAT to generate a paper trail, without having to go through the control unit, (ii) that those four segments be brought under the oversight of all political parties to allow them to detect manipulation, if any, and (iii) that a 100% count of the paper trail of electronically cast votes be ordered to enhance the public trust in the electoral process (https://thewire.in/government/take-expert-opinion-on-evms-safety-implement-safeguards-e-a-s-sarma-to-election-commission). The ECI has not so far acted on my suggestions. When a senior delegation of opposition party representatives wanted to call on the ECI on that subject, for reasons best known to it, the Commission refused to meet them. This shows that the Commission is unable to function in a transparent manner, free itself from the shackles of executive control, raising doubts about its ability to discharge the responsibilities envisaged in Article 324 for conducting elections in a free and fair manner.
3. Two premier CPSEs, namely, Bharat Electronics Ltd (BEL) and Electronics Corporation of India Ltd (ECIL), are entrusted with the responsibility of manufacturing EVMs and supplying them to the ECI. They are privy to the confidential source code of the chips embedded in the EVMs. The ECI is unwilling to subject the same to an independent technical audit to enhance the public trust despite a demand for the same by political parties and the civil society. Meanwhile, it came to light that the BJP which is in power at the Centre has appointed its party representatives as “independent directors” of BEL and ECIL suggesting that those appointments were deliberate meant to involve the party directly in managing the afairs of the two CPSEs. In my letter of 26th of January, 2024 addressed to the ECI (https://countercurrents.org/2023/03/election-commission-of-india-must-question-the-presence-political-nominees-on-bels-and-ecils-boards/), I brought this fact to the notice of the ECI seeking its intervention to free the two CPSEs from political interference but the Commission, hesitant to displease the political executive, has chosen not to act on my suggestion, despite the fact that such political interference in the functioning of the two CPSEs vitiates the perceived sanctity of electronic voting and dilutes the public trust in the electoral process
4. Despite public protests, the ruling political executive at the Centre introduced far reaching amendments, some regressively retrospective, to the Companies Act, the Foreign Contributions (Regulation) Act etc. to (i) relax the upper limits to private company donations to political parties, (ii) allow political donations from even foreign sources to fill the coffers of the political parties and (iii) introduce total opacity in electoral funding by private companies and agencies through a contentious Electoral Bonds scheme, which the apex court has recently held to be illegal. These amendments benefitted the ruling political party far more than the other political parties, as the former is in a position to grant quid pro quos to private companies and even possibly intimidate them. Such corporate donations have not only upset the level-playing ground against the parties in opposition but also placed the ordinary voters and individual candidates contesting elections without such financial support at a disadvantage. Moreover, foreign political donations hurt the national interest. The large amount of funding received by the ruling party at the Centre has thus given an undue advantage to it vis-a-vis the other political parties, adversely affecting the fairness of the electoral process. My article accessible at (https://thewire.in/politics/fcra-reviving-lapsed-law-amending-retrospectively-trumps-ethical-legal-barriers) indicates the details of some of the regressive legislative amendments referred above. In addition, my letters dated 2nd March 2024 and 6th March, 2024 addressed to the ECI also refer (accessible at https://countercurrents.org/2024/03/the-eci-should-not-only-freeze-all-amounts-received-by-political-parties-through-the-electoral-bonds-scheme-but-also-force-the-sbi-to-disclose-the-details-immediately-failing-which-the-commission-sho/)
5. While holding the Electoral Bonds Scheme to be Constitutionally invalid, the apex court has directed the State Bank of India (SBI) to make a complete disclosure of the details of the Bonds issued, the details of the donors and the sources of funding immediately to the Election Commission. Meanwhile, it is reported that there are large amounts received by and lying with some political parties, especially the BJP, through Electoral Bonds, which they are likely to use in the ensuing elections, though according to the apex court, such donations are illegal. The ruling party at the Centre being the largest beneficiary of the scheme continues to be at an advantage compared to the other political parties, which in itself vitiates the sanctity of the electoral process. In my two letters cited (accessible at https://countercurrents.org/2024/03/the-eci-should-not-only-freeze-all-amounts-received-by-political-parties-through-the-electoral-bonds-scheme-but-also-force-the-sbi-to-disclose-the-details-immediately-failing-which-the-commission-sho/), I appealed to the ECI to freeze all such amounts so as to ensure that a level-playing ground is maintained among the different political parties. Till date, the ECI has not acted on my letters, suggesting once again its inability and unwillingness to displease the ruling political party.
6. It has since been reported that the SBI has expressed its inability to make a public disclosure of the details of the Electoral Bonds it has issued within the tight time frame stipulated by the apex court and requested the court to grant it extension of time till the end of June this year. Considering that the SBI boasts about the extent to which it has digitised its databases, it is nothing but a ploy on the part of the SBI to please the political executive and delay the disclosure. It indirectly implies that the SBI would not make the disclosure till the ensuing elections are over, a situation that has raised serious concerns about the motives underlying the request and the possibility of the ruling political party indirectly pressuring the SBI not to make a clean disclosure of the details of Electoral Bonds, for reasons best known to it. In my two letters cited, I requested the Commission to invoke its authority under Article 324 of the Constitution to (i) force the SBI to make the necessary disclosure immediately, if necessary, by imposing an exemplary deterrent penalty on it and (ii) to make a public announcement that the Commission would not initiate work on the ensuing elections till the SBI makes such a disclosure. To the best of my knowledge, the Commission is yet to act on this, leading one to infer that the line of distinction between the Commission as an independent Constitutional authority and the political executive is fast disappearing.
7. It is significant that the ruling political executive is exercising control over the functioning of the SBI through the Directors nominated by it on SBI’s Board. While many of those nominees are under the direct administrative control of the political executive, at least one of the nominee Directors is a member of the BJP itself, a fact that blurs the distinction between the BJP as a political party and the senior management team of the SBI. This clearly shows that the BJP through the ruling political executive at the Centre has unabashedly made sure that every CPSE that is related in one way or the other with the conduct of elections remains under its oversight, a situation that should cause worry to all those interested in upholding the democratic values of our Constitution and the need to keep the electoral process above politics.
8. Many of the CPSEs referred above are listed in the national stock exchanges and they are subject to Clause 49 of the Listing Agreement prescribed by the SEBI. According to the Listing requirement, each one of those CPSEs should have a minimum number of “independent” directors. A person nominated by the government, according to SEBI’s definition of the term, cannot be deemed to be an “independent” Director. The representatives of the BJP nominated by the political executive as Directors on the Boards of the above cited listed CPSEs cannot therefore be deemed to be independent directors. In other words, all such CPSEs stand in violation of the relevant SEBI regulation, rendering the functioning of the Boards of those CPSEs and the decisions taken by them prima facie illegal. Though I have brought this to the notice of the authorities in the Ministry of Corporate Affairs which has the obligation to regulate companies under the Companies Act read with the relevant SEBI regulation, the latter has chosen not to act, evidently under pressure from the political executive. My letter of February 6 2024 refers (https://countercurrents.org/2024/02/some-independent-directors-of-electronic-voting-machine-manufacturers-bel-are-related-to-bjp/)

The points raised above need to be viewed together to appreciate the fact that the political party in power at the Centre has spread its control far and wide, deliberately as a part of a well-orchestrated strategy, to disempower the ECI, obfuscate the issue of technically established flaws in the EVM system so as to ensure that those flaws continue to taint the electoral system to its own advantage, plant its nominees on the Boards of BEL and ECIL which manufacture and supply the EVMs and which hold the source code embedded in the EVM chips, render election funding opaque and tilt it totally to give itself a defining advantage over other political parties, run counter to the direction issued by the apex court to SBI to make an immediate public disclosure of the details of the Electoral Bonds and plant a BJP representative on SBI’s Board to involve the party in managing SBI’s affairs. 

These are matters on which anyone interested in protecting the democratic character of our Constitution should feel deeply concerned and act quickly to do everything towards upholding the Constitution and the integrity of the electoral process.

Rashtrapatiji, considering that the political executive has not hesitated to ignore the wise and prudent advice/ directions given by the Supreme Court time and again, in order to maintain itself in power at the Centre and in the States in several ways as indicated above, I appeal to you to intervene urgently by making a reference to the Supreme Court for advice/action under Article 143 on 

(i) whether the Supreme Court should make a suo moto intervention to secure compliance with its own orders cited above, and 

(ii) the lines on which the high office of the President of India can act, to protect the Constitution and the democratic character of it

Respectfully,

E A S Sarma

Former Secretary to the Government of India