Open Letter to President of India: Take Control of Election Commission and other Regulatory Bodies

election commission of india

To


Smt. Droupadi Murmu

Hon’ble President of India


Respected Rashtrapati Ji,

Kindly refer to my letter of April 6th, 2024 in which I had suggested for your consideration the following four immediate measures to ensure that not a sigle rupee of the tainted, illegal Electoral Bonds money is allowed to be used by the BJP and other political parties to ensure a level-playing ground for political parties in the ensuing Lok Sabha elections:

  1. Order the ECI to freeze all unspent electoral bonds money lying with the BJP and other political parties so that it may not find its way into electioneering to upset the level playing ground among political parties in the ensuing elections
  2. Institute a judicial commission with senior sitting judges of the Supreme Court to enquire into the way the electoral bonds scheme had been misused on several fronts including possible deployment of Central investigating/ enforcement agencies for intimidating private businesses and extorting donations, extending undue regulatory protection to errant companies, endangering human lives and hurting the public interest. The judicial commission may, if necessary, recommend measures to reverse undue benefits given to private businesses, to suggest penal action against senior public functionaries, political parties, and others for acts of malfeasance associated with the electoral bonds scheme; the desirability of banning corporate donations altogether, in view of their toxic impact on our democracy
  3. Order all Central investigating/ enforcement agencies to function under the oversight of that judicial commission, pending such an enquiry, so as to prevent their mis-deployment by the political executive
  4. Considering that the ECI’s independence itself stands compromised, direct the ECI to function under the direct oversight of your office so that it may fulfill its mandate under Article 324 to conduct elections in a free and fair manner

I am afraid that institutional silence and inaction have allowed the political executive at the Centre to deploy the Electoral Bond-related money in electioneering to the disadvantage of other political parties, allowed it exercise an undue sway over all Central investigating and enforcement agencies to prompt them to file cases against BJP’s rivals and physically detain them to paralyse their electioneering activity, thus crippling the democratic processes that lie at the heart of our Constitution. The Chief Ministers of two States ruled by the opposition are in jail, their Ministers also being put in jail one after the other and perhaps a case is being made out by NDA’s political executive to clamp President’s rule in those States on the ostensible ground that their administration has come to a standstill.

It has become a rule more than an exception of senior-most leaders of the Central political executive making unsubstantiated accusations of corruption against leaders of opposition parties and condoning their corruption, as soon as they join the BJP, making a mockery of the very idea of probity in governance. The public perception today is that the party having more money than others can do anything including buying democracy itself. 

On the other hand, the Election Commission of India (ECI) which has a reservoir of authority under Article 324 to conduct elections in a free and fair manner, perhaps overawed by the senior leadership of the NDA government, has refrained from fulfilling its Constitutional obligation. 

For example, I requested the ECI to act on a prima facie violation of the Model Code of Conduct (MCC) by the Prime Minister in Tamil Nadu and, to my anguish, the ECI had evidently not even cared to issue a notice to him, leading one to the inevitable conclusion that the Commission considers itself a subordinate wing of the NDA government, which the framers of Article 324 would never have visualised (https://thewire.in/government/is-election-commission-afraid-to-act-on-my-mcc-complaint-against-modi-former-bureaucrat-asks). As a result of the Commission’s overt reluctance to act against MCC violations by the highest in the political executive, it has become a rule more than an exception for several BJP leaders openly flouting the MCC with their divisive statements to gain an undue political mileage.

An Election Commission that considers itself subservient to the political executive cannot conduct elections in an apolitical manner.

While successive governments at the Centre have often planted their political agents as Governors of States, it is ironic that the situation should assume such a serious proportion today that the role of the Governors of some States should ultimately come under judicial scrutiny, when some Governors in their overzealousness to please their political masters, have chosen to delay giving consent to Bills, policy initiatives, approved by the State Cabinet, thus opening yet another front to paralysing governance in the States.

The so-called scams on the basis of which the Chief Ministers of two opposition-ruled States have been jailed and humiliated are perhaps far less toxic compared to the far more shameful Electoral Bonds scam, deliberately designed and implemented by the highest in the NDA government, a scheme that is inherently opaque except to the ruling political executive, Constitutionally invalid, allowing the ruling political executive to intimidate private companies and extort donations, offer quid pro quos in return for slowing down investigations against them, far worse, quid pro quos that resulted in regressive amendments to forest and minerals regulations and a host of other laws, regulations and procedures that have allowed big businesses to profiteer at the cost of the people, particularly tribals whose Constitutional rights have been compromised.

I had brought to your attention a detailed article I authored on Electoral Bonds (https://countercurrents.org/2024/04/the-sordid-story-of-the-unholy-bond-blood-money-ransom-or-outright-bribe/) which indicated how quid pro quos possibly linked to Electoral Bond donations resulted in condoning companies that endangered the lives of the people in India and elsewhere, allowed a contracting company to imperil the lives of more than 40 unsuspecting workers by its lapses, without the company having to face prosecution and even allowed donations to flow to the ruling political party through shell companies, both domestic and overseas, allowed to flourish with the help of a legislative gap deliberately permitted to persist by the NDA government. 

It is ironic that the so-called “excise scam” on the basis of which the Central investigating agencies, possibly blessed by the Central leadership, are trying to bring Delhi administration to a standstill, has a link to Electoral Bond donation given to the ruling political party itself, and those involved in the so-called scam even being supported by it to contest in the ensuing elections, casting doubts about the motives underlying the arrests of political leaders.
While the UPA government paid a heavy price for its ignominous involvement in “coalgate” and “spectrum” scams, the NDA government has had its involvement too in the sale of both coal blocks and 5G spectrum on which I have requested for an independent investigation (https://countercurrents.org/2022/08/5g-spectrum-is-it-a-distress-sale-cag-may-look-at-it-carefully-2/ &  

https://countercurrents.org/2023/03/cag-report-no-20-16-on-e-auction-of-coal-mines-public-interest-concerns/?swcfpc=1). In addition, there have been serious allegations against an artificial coal crisis caused by the NDA government that allowed private businesses to supply coal from their overseas coal mines at astronomical prices to State power companies at the cost of the consumers, on which I had similarly asked the authorities to institute an independent investigation (https://countercurrents.org/2023/10/allegations-of-over-invoicing-of-imported-coal-by-the-adani-group-and-others-and-its-adverse-impact-on-electricity-consumers-interests-call-for-an-independent-judicial-enquiry/). All these scams have far more serious public interest implications compared to the so-called scams of Delhi and Jharkhand. NDA’s response to my letters has been one of deliberate silence and total inaction. The Central investigation agencies seem to be far too preoccupied with filing cases against BJP’s rivals to be able to pay attention to cases far more toxic from the nation’s point of view.

With almost all institutions brought to near-total submission, with almost every regulatory authority rendered subservient to the political executive, with investigating and enforcing agencies being weaponized against the opposition and with the Election Commission refusing to invoke its authority against the political executive when required, one perhaps has to hold a magnifying glass to detect the last strands of democracy left untouched by the political executive today. One can only hope that those few institutions which still carry a semblance of independence will survive long enough to resuscitate the failing democracy in India.

The situation that prevails today is unprecedented, perhaps comparable or even worse than the Emergency days of 1975-77 and it calls for extraordinary measures to correct it. It is doubtful if a single agency or a Constitutional authority can correct the situation on its own. It calls for special steps to render institutions like the ECI to be totally insulated from threats and interference by the political executive to be able to safeguard democracy. It calls for Central investigating and enforcing agencies to be shielded from control by the political executive. It calls for an environment that encourages regulatory bodies to stand up and assert their statutory authority. It calls for decisive steps to prevent the political executive from violating the spirit of federalism and eroding the authority of the States. More important than all is the necessity of protecting the basic structure of the Constitution from being tampered with.

In addition to the specific four measures proposed in my last letter, as referred above, particularly the setting up of a judicial commission to enquire into the Electoral Bonds scam, it is high time that your office, in consultation with the Supreme Court, intervenes urgently to take under your direct oversight the functioning of the Election Commission and shield all other Constitutional and regulatory institutions from the purview of the political executive, at least, till the ensuing Parliament and State Assembly elections are over. Such a measure, in my view, is urgently required to safeguard our democracy.

Respected Rashtrapati Ji, I appeal to you to act urgently, decisively and effectively.

Respectfully,

E A S Sarma

Former Secretary to the Government of India

Visakhapatnam

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