06/05/2019 12:37 AM IST | Updated 06/05/2019 3:06 AM IST

Kapil Sibal Interview: Crisis Of Faith In The Election Commission Like Never Before

The former law minister says the Election Commission is going easy on Prime Minister Narendra Modi.

Hindustan Times via Getty Images

NEW DELHI — In an unprecedented move, last month, 66 retired bureaucrats wrote a letter to President Ram Nath Kovind questioning the “independence” of the Election Commission (EC), a three-member Constitutional body charged with conducting free and fair elections in India.

The EC, these bureaucrats said, has been “weak-kneed” in responding to alleged violations of the Model Code of Conduct (MCC), including Prime Minister Narendra Modi’s televised speech after India conducted an anti-satellite test, Uttar Pradesh Chief Minister Yogi Adityanath describing the Indian Army as “Modi ki sena,” and the launch of NaMo TV  after the MCC was enforced.

While Adityanath was barred from campaigning for three days for saying that “Bajrang Bali” was with the Bharatiya Janata Party (BJP) and “Ali” was with the Opposition parties — and cautioned about his ‘Modi ki sena’ remark — the EC has decided that Modi’s remarks about Congress “insulting” Hindus, and its president Rahul Gandhi running from a constituency where the “majority is in minority,” does not violate the MCC. 

The EC has also given BJP president Amit Shah a clean chit for referring to the Indian Air Force as “his (Modi’s) Air Force.” 

In an interview with HuffPost India, Supreme Court lawyer and Congress Party leader Kapil Sibal said that the EC was suffering from a crisis of credibility like never before.

The Rajya Sabha lawmaker and former Union Minister, who has moved the Supreme Court for greater transparency in the counting of votes, also questioned  EC’s recent submissions in matters related to the Electronic Voting Machines (EVMs) and the Voter Verifiable Paper Audit Trail (VVPAT).

Has there been a crisis of faith in the EC before this?

No, never. It’s unfortunate but that’s the way it is. We had people like (James Michael) Lyngdoh (2001-2004) and (T.N.) Seshan (1990-1996), who stood up. The Election Commission is functioning in a manner that raises a lot of questions. They must not only act in a fair manner, but seen to be acting in a fair manner. That’s not what’s happened. They have fallen far short of that constitutional premise and that constitutional duty reflected in Article 324 of the Constitution. Their actions have fallen far short of how people expect an election to be conducted. Only men of high standards and unimpeachable integrity, willing to stand up to any form of pollution in the election process, only that can save democracy. 

(Article 324 — Superintendence, direction and control of elections to be vested in an Election Commission...).

How do you mean?

I’m deeply disappointed. I don’t think the EC has functioned... The EC’s direction that you can’t use our martyrs as part of your political discourse, he (Modi) has violated that time and again and the EC has said there are no violations.

What else is of concern?

The very structure of the election. You have Gujarat in one go, but in Bihar — five seats in one phase, six seats in another phase, four or five seats in another phase — it makes no sense. It’s all tailor-made, unfortunately.

For the BJP?

It’s tailor-made. I don’t know for whom, but it doesn’t make sense. There is no logic to it. The same way in West Bengal, six phases.

Their actions have fallen far short of how people expect an election to be conducted.

You have railed against the use of EVMs in Indian elections. Why?

My opposition to this is ideological. Any voting pattern must be completely transparent. There are two elements to voting — casting a vote in favour of a person or a party. In the Indian context, against a symbol. A person knows that he has voted for a particular person with the symbol, but he is completely unaware of the counting after that.

The second element of the vote is that his vote must be counted towards the person for whom he voted. The second element is not transparent because the counting is done by the machine, and he is unrelated to that.

When you have a ballot box, you cast your vote and the counting agent takes the ballot out, unfolds it, sees for whom that vote was cast, and then puts it in a bundle which represents the votes for that person. Everything is transparent. The second element in the machine is non-transparent because the counting is done by the machine.

It seems counter-intuitive to go from a voting machine back to ballot paper.

Only 18 countries in the world use machines. The rest of the world doesn’t use it. There must be some rationale for not using a machine. All of Europe doesn’t use it. Not all of America uses it in a Presidential election. You must make sure that the entire voting process has no element of suspicion. That’s the fundamental and ideological basis of my objection. It has nothing to do with whether the machine is tampered or not tampered with.

The second problem we have is that every time there are complaints that a machine has been tampered with, the complaint is that I pressed a button and the vote went to the BJP. Now, the law of probability tells us that this can’t happen every time. That is also a matter of concern. 

Editor’s note — At present, 20 countries use some form of electronic voting. 

Opposition parties have contended that votes in malfunctioning EVMS have gone to the BJP. These claims have not been proved.

However, in one case from Zilla Parishad election held in Buldhana, Lonar in 2017, a Right to Information (RTI) query revealed that “every time the voter pressed a symbol of the coconut, allotted to a candidate (independent), the LED lamp of the BJP’s Lotus used to flash.”

It was L.K. Advani and the BJP that opposed the use of EVMs in 2009. 

My opposition to EVMs is not because I’m a Congressman. As a citizen of this country, I want to make sure that my vote is counted towards the person I voted for. 

Congress won three state Assembly elections, last year. 

I’m still opposed to it. We should go back to either counting all the VVPATs or 50%, and if you see a variation between the actual vote and the VVPAT, then the whole thing should be counted on VVPAT.

The BJP won by a huge majority in 2014.

Again, you are talking about outcomes. My opposition has nothing to do with outcomes. It has to do with being assured that the electoral process is clean. That’s all. It has nothing do with anybody’s victory or defeat. 

How has the EC responded to these concerns?

The EC’s response is that these machines cannot be tampered. That’s an absolute statement that I cannot agree with. Any machine in the world can be tampered. If centrifuges in Iran can be tampered while sitting in the United States, anything can be done. But I have no proof that the machine is tampered.

You represented 21 political parties that are demanding verification of 50% of VVAPT votes.  

So, when I say count 50% of the VVPATs in every Assembly section in every booth, the Election Commission tells the Supreme Court that it will take an additional five or six days for the result to come out. That means if the results are to come out on May 23 through a machine, then the results will come on May 27, and therefore it is unacceptable. This means that convenience is more important than assurance. I would rather vote for assurance than convenience. I would rather wait for four to five days to make sure that the result is untainted instead of saying that I take the risk of the result being tainted because I cannot wait for four or five days. That logic of the Election Commission is flawed.

(The Supreme Court has ordered the EC to increase VVPAT verification from one EVM to five in every Assembly segment).

I would rather vote for assurance than convenience.

Will it take an additional five to six days?

I don’t accept the proposition that it will take four to five days. In a ballot, it is a big ballot paper. You have to unfold it, look at who the person has voted for, and stick it in a bundle. This doesn’t happen in a VVPAT.

In a VVPAT, there is a slip that come out, which you can see for seven seconds, and that goes into a bag. The person you have voted for is in the bag. You don’t have to unfold anything. If that would finish in 25 to 36 hours then why would they say five to six days?

Do we have to know the results five days after the final polling day?

Time is never of the essence. Assurance that the electoral verdict is untainted is of the essence. They have spent thousands of crores putting in VVPATS and yet they don’t want the assurance of an untainted verdict — I don’t understand it.  A clean electoral verdict is the foundation of a democracy.

Have there been issues with the EVMs in this election?

Several machines have not functioned properly. There have been delays. People have gone back because they can’t wait for three to four hours. People get tired in the sun and the heat. In Andhra (Pradesh), for example, counting went on till four in the morning.

The allegation made in Andhra is that in some machines, the VVPAT slip is shown only for three seconds (instead of seven seconds) and so the programming is different. That is also a matter of suspicion. Why should the process be subject to any suspicion?

(The counting in Andhra Pradesh went on till one in the morning due to EVM glitches. Voters were stuck in the queue for seven hours). 

Why not count all the VVPATs?

If you count at least 50%, you’ll know there is a variation between the actual counting and the VVPAT. You’ll know whether there has been any bungling or not.

Is there any issue other than time given by the ECC?

Time. And they said that we’ll have to make extra overseeing arrangements. We’ll need many more hands to monitor this process is what they are saying. 

Would it need more hands than for counting ballot papers?

I don’t think so. Probably less. 

This six days was a figure that was put forward by the Indian Statistical Institute (ISI). 

We have a problem with that as well. They said this is a study of the Indian Statistical Institute. When we filed an RTI application, the ISI told us that there is no such study that we have sent. Apparently, the person who is the head of the Delhi chapter of the ISI, he was asked. He nominated a couple of people and they gave a study to the Election Commission. It was not a formal study of the ISI. We have also got other experts who say that the basis of this report has been given by the head of the Delhi chapter of the ISI. That’s controversial.

The Supreme Court has backed the EC.

They have accepted what they have said. We are disappointed. The courts should also makes sure that the process is without any possibility of it being tampered.

A clean electoral verdict is the foundation of a democracy.

Will it help if people can complain? There is a clause that says a person can be jailed if the complaint cannot be verified. This stops people from complaining.

How will that help? If somebody does for example complain and it does turn out that something went wrong, they will change the machine. How will it help my fundamental objection? They will get another machine.

You mean the erroneous vote can’t be reversed?

No, even if you can, how does that help? The issue is not about that one person’s vote. It is about the process. 

What about EVMs being a safeguard against booth capture?

With technology, there is no question of booth capturing. All you have to do is make a video. Even a mobile phone can record everything. There can be no booth capture.

How do you see the Congress faring in this election?

I think in the first four phases of the election, the Congress is on the upswing and the BJP is down. 

How can you say that? 

We are getting feedback from our people. Look, it’s too complex for me to say why a person votes for a particular party or a particular candidate in a particular election. Having said that — the decisions of this government in the past five years — both with respect to demonetization as well as GST — have actually destroyed the lives of millions of people. The farming community, the trading community, the NGO sector and the small businesses. And the economy is not growing fast enough to cater to jobs for people coming out of Class 12 and colleges. The crisis in the farming sector, massive unemployment, destruction of people’s lives because of economic policies and knee-jerk economic decisions taken by the prime minister, that’s all led to a sense of desperation among a certain section of society.

And still, the BJP could land 220-230 seats and then cobble together another 30 to 40 seats.

I very much doubt it. They have no presence in states like Tamil Nadu, Kerala, Telangana and Andhra Pradesh. I doubt if they can make any significant inroads into West Bengal or Orissa. Of the 25 seats in the northeast, I don’t think they are going to do very well. They cannot get 200 seats. They had 25 out of 25 in Rajasthan, 26 out of 26 in Gujarat, 42 out of 48 in Maharashtra, and 73 out of 80 in Uttar Pradesh. That’s the kind of majority they had (in 2014). This is going to be reduced by a minimum of half. There is no way that they can reach that figure.

There is apprehension about a coalition government being a hodge-podge.

It’s not a question of hodge-podge. All coalition governments have performed much better than governments which had absolute majority. Look at the history of India. The decision to liberalize the economy was taken by a minority government. The dream budget was passed in 1997 by a minority government. The entire revolution in the highway sector, the Indo-US Nuclear Deal, the revolution of the telecom sector, the opening up of the airways, all happened in minority governments. Right to Education, Right to Information, MNREGA (Mahatma Gandhi National Rural Employment Gurantee Act), all happened in minority governments. The most epochal decisions have taken place in minority governments. 

The most epochal decisions have taken place in minority governments.

What about BJP gaining from the Balakot strike and Masood Azhar being declared a terrorist by the United Nations Security Council (UNSC).

The feedback that we are getting is that it is not making the kind of difference that would allow him (Modi) to be back in government.  

Mr. Modi has reduced the status of the (Prime Minister’s) office with the kinds of things he has been saying. He says that Masood Azhar has been declared a terrorist by the UNSC, but we did that with Hafiz Saeed after the 2008 attack on Mumbai, but Pakistan continued with its terrorist activities. This is not going to stop terrorism. And we never said — look, what a great thing we’ve done that Hafiz Saeed has been declared a terrorist. Mr. (David Coleman) Headley was sent to prison for 35 years. We never went to the polls and said.... This is America and the international community putting pressure on China that they should not be a stumbling block on the way to him being declared a terrorist. That’s all that has happened. That’s not a poll issue.