An appeal from an anguished citizen to the conscience of each of the Election Commissioners to discharge their responsibilities under Article 324

Election Commissioners
Chief Election Commissioner Rajiv Kumar with Election Commissioners Sukhbir Singh Sandhu and Gyanesh Kumar during the press conference announcing the dates for the Lok Sabha polls (ANI)

To
Shri Rajiv Kumar
Chief Election Commissioner

Shri Gyanesh Kumar

Election Commissioner

Dr Sukhbir Singh Sandhu 

Election Commissioner

Dear Dr Sukhbir Singh Sandhu, S/Shri Gyanesh Kumar/ Rajiv Kumar,

It was Gandhiji who said, “There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts” 

Anguished at the continuing inaction on your part to act against the ruling political executive violating the Model Code of Conduct (MCC) and infringing the law of the land, I therefore wish to appeal to each one of you to invoke your conscience and listen to its advice on your role under Article 324 of the Constitution and what you should do to fulfill it.

Let me remind you that your mandate under Article 324 of the Constitution to ensure that elections are conducted in a free and fair manner gives you ample authority, as confirmed by the apex court time and again, to fulfill that mandate, provided you are aware of it and willing to invoke it. So have those higher institutions that oversee your functioning to make sure that you discharge that responsibility without fail. Not to have authority is bad enough, but when you have the necessary authority that you are either unwilling to exercise or afraid to invoke, it is worse.

In this connection, I invite your attention to the series of appeals I made to you in the past, many of which are readily accessible in the public domain at the following weblinks on which you have failed to respond in a meaningful manner:

https://countercurrents.org/2024/05/election-commissions-inaction-encouraging-star-campaigners-of-bjp-giving-hate-speeches-that-hurt-the-integrity-of-the-society-commission-should-act-urgently

https://countercurrents.org/2024/05/inaction-on-the-part-of-the-commission-adversely-impacts-not-only-the-ensuing-elections-but-also-affects-the-future-of-our-

democracy/https://countercurrents.org/2024/05/election-commissions-silence-inaction-delay-in-response-encouraging-political-parties-star-campaigners-to-violate-the-mcc-and-representation-of-people-act-to-the-detriment-of-social-cohesion

https://countercurrents.org/2024/04/yet-another-prima-facie-violation-of-the-model-code-of-conduct-mcc-by-prime-minister-modi-inaction-by-the-commission-encouraging-star-campaigners-to-defy-the-mcc

https://countercurrents.org/2023/05/prima-facie-violation-of-the-model-code-of-conduct-mcc-by-shri-amit-shah-the-union-home-minister-in-karnataka/?swcfpc=1

https://countercurrents.org/2024/04/does-the-eci-have-one-set-of-model-code-of-conduct-requirements-for-senior-bjp-star-campaigners-and-another-set-for-others

https://countercurrents.org/2024/04/has-the-election-commission-chosen-to-become-a-willing-party-to-bjp-using-religion-for-votes-in-violation-of-the-mcc-and-section-123-of-the-representation-of-the-people-act

https://thewire.in/government/take-expert-opinion-on-evms-safety-implement-safeguards-e-a-s-sarma-to-election-commission

https://countercurrents.org/2024/04/prima-facie-violation-of-the-mcc-by-prime-minister-modi-at-a-recent-rbi-function

https://countercurrents.org/2024/03/shri-modis-statement-invoking-religious-sentiments-in-tamil-nadu-prima-facie-violating-the-model-code-of-conduct-why-is-the-commission-hesitant-to-act

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 am sure that the political executive that has appointed you to occupy the high office of the Election Commission has not done so for you to be subservient to it. The political parties repose trust in you on the premise that you will act impartially. The public repose trust in you as it is they that constitute the most important group of stakeholders in elections that determine their future. The higher institutions that exercise oversight on your functioning seem to believe implicitly, rightly so, that you are bound by the letter and spirit of Article 324 and would faithfully comply with the same. Has each one of you tried to ask yourself whether you have come up to the expectations of those stakeholders/ institutions and fulfill their trust? It is for each one of you to debate this question internally, by addressing your own conscience, rather than looking for others’ endorsement or otherwise.
Let me list out the concerns I have raised again and again, on which you have chosen not to act;

  1. Some political parties, especially the BJP, have at their disposal thousands of crores of rupees of money derived through the infamous, illegal Electoral Bonds Scheme (EBS), largey obtained through distortion and quid pro quos. Had you cared for maintaining the integrity of the electoral process, you would have directed those parties not to deploy that tainted money in electioneering. For reasons best known to you, you have chosen not to act on it.
  2. The whole range of the electoral process is riddled with elements of conflict of interest, with the BJP-led NDA government trying to influence it at every stage. It has planted the Boards of BEL and ECIL, the two CPSEs in charge of manufacture and supply of EVMs, with BJP’s representatives. It has planted the Board of SBI, the PSU bank entrusted with the operation of the EBS with yet another BJP representative. The members of the Technical Expert Committee (TEC) on whose advice you crucially rely for convincing the public about the make-believe efficacy of EVMs are co-owners of BEL’s patent for the EVM-VVPAT system. The BJP-led governments at the Centre and in Gujarat have showered political patronage on at least one member of the TEC, raising questions about the credibility of the TEC itself. Nothing prevented the Commission from waking up and neutralising such a glaring conflict of interest in critical segments that could impact the elections directly and indirectly. Many political parties and concerned citizens have raised concerns about the infallibility of the EVM technology and had you cared to address those concerns in a non-partisan manner, you could have elicited independent expert advice, recognised the legal and technical lacunae inherent in the use of EVMs and agreed to 100% verification of the EVM count with VVPAT count. Your stubborn resistance has raised more questions than answers. 
  3. You have selectively chosen not to question several hate speeches and other statements that prima facie violated the MCC, many of them reported to have been made by the star campaigners of BJP, especially by such responsible persons as the Prime Minister and the Home Minister, knowing well that such statements not only violate the sanctity of the MCC and the fact that those making such statements would have committed acts that amount to a corrupt practice in terms of Sections 123/ 125 of the Representation of People Act (RPA) and infringed the penal provisions of the IPC/ Bharatiya Nyay Samhita. Hate speeches, made to win votes by star campaigners for dividing the society on the basis of religion and creed, tend to hurt the integrity of the society and damage democracy in the long run. Every such instance that you chose to ignore has encouraged those very same persons to repeat making such statements again and again, tainting the sanctity of the electoral process, giving one the impression that the Commission has wantonly allowed those star campaigners to belittle the Commission’s existence and its role envisaged under Article 324. By being selectively inactive, have you unwittingly let down the people of our nation whose trust is far more important for you than anything else? By being ineffective, would you not have left an ugly imprint on the electoral process, for the people to remember for a long time to come?

I am afraid that the Commission, with its reservoir of authority implicitly available under Article 324, either out of its unwillingness to act, or out of a feeling of subservience to the ruling political executive, or being carried away by an undue assumption that the high and mighty in the ruling political party can do no wrong, has failed to act as it should have, on any one of the above concerns, though, I am sure that it knows that failure to do so has upset the level-playing field in elections in favour of the ruling political party at the cost of others. I feel surprised and distressed that the Commission should choose the path of least resistance in not securing compliance of the ruling party with the law of the land. Without casting any asperasion on the commitment of each one of you to the intent and mandate of Article 324, I wish to cite the cautionary observations made by Dr B R Ambedkar, while he presented the draft of the Constitution to the Constituent Assembly on November 25, 1949, which assume relevance today:

in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship…………….however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot

The concerns expressed by me in this letter arise from a sense of disappointment at your continuing inaction, tempered by a feeling of hope that your conscience will at least belatedly prompt you to do otherwise. 

Gandhiji said, “To forgive and accept injustice is cowardice“. When individuals and institutions fail to raise their voice against patent injustice and allow it to continue, would it not amount to gross cowardice on their part?

Some parties win elections, while others lose. It should not mean that a party is licensed to win elections at the cost of societal harmony and at the expense of democracy itself. Those parties that indulge in divisive politics and those institutions that facilitate it cause irreparable damage to the society.

Yours sincerely,

E A S Sarma

Former Secretary to the Government of India

Visakhapatnam

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