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The constitutional demand at the heart of voter fraud allegations | The Leaflet

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The constitutional demand at the heart of voter fraud allegations

The voter fraud allegations have thrown open an undeniable crack in our constitutional framework - the failure to constitutionally protect the independence of the ECI from Parliament and the Government. And increasingly, the fault lines have become difficult to ignore.

Vasudev Devadasan

Published on: 15 August 2025, 05:41 am

The constitutional demand at the heart of voter fraud allegations

THIS WEEK, THE LEADER OF THE OPPOSITION made serious allegations of voter fraud in an assembly constituency in Bangalore. This post does not analyse these allegations but rather focuses on the constitutional demands the present moment raises. First, it briefly discusses how the veracity of the allegations may be evaluated, before highlighting the larger problem the allegations raise – namely, the independence of the Election Commission of India (‘ECI’).

Evaluating the veracity of voter fraud allegations

The traditional Indian response to politically explosive allegations is to appoint an independent committee, typically headed by a retired Judge, to produce a report. However, I would argue that the nature of the allegations made here does not call for such a move. All the necessary information needed to prove or disprove the allegations is in the ECI’s own data. This means establishing the veracity of the LoP’s allegations neither requires expansive evidence gathering (like unearthing claims of sexual violence in Manipur) nor collating expert testimony (like the Pegasus spyware allegations did). This is a job that can be carried out by newsrooms across the country, and even arguably anybody with access to the data and a spreadsheet. Allowing the claims to be publicly investigated also avoids the problem whereby once an issue is sent to a committee, it is taken off the political agenda.

This should give pause for those seeking to involve the Supreme Court. Given the unverified allegations present here, the Court is likely to follow the same template and appoint a committee. However, the Court’s committees can be even more perverse than Parliament’s. For example, the report of the Court’s Committee to investigate allegations concerning the use of the Pegasus spyware against opposition politicians and journalists was never released to the public. Additionally, the Court’s refusal to scrutinise the conduct of the ECI over the Special Intensive Revision in Bihar and its refusal to hear a challenge to the law giving the Government the power to unilaterally appoint Election Commissioners (discussed below) points to an unconscionably weak interest in protecting electoral integrity.

However, the LoP’s allegations must be taken in even more recent historical context. In 2023, the Government passed the ‘Chief Election Commissioner And Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act which gave the Union Government the power to appoint Election Commissioners. Under the 2023 Act, Commissioners are appointed by the Prime Minister, a Union Cabinet Member, and the LoP, giving the Government a 2:1 majority and the de facto power to make unilateral appointments. This flew in the face of the logic of a 2023 Supreme Court judgement, which had provided an appointment process involving the Prime Minister, LoP, and the Chief Justice of India. In December 2024, the Government, on the ECI’s advice, amended the Conduct of Election Rules, 1961 to restrict public access to CCTV footage of polling booths. In June 2025, the ECI directed that CCTV footage of polling booths be destroyed within 45 days. The ECI stated that this information could be used to spread ‘misleading narratives’ about voter fraud. This is in stark contrast to the ECI’s previous position where all information was available for scrutiny and the Commission relied on its stature to negate frivolous allegations (which, as noted above, are hardly new). All these moves were before the recent Special Intensive Revision in Bihar, the legality of which is yet to be settled, but the untimeliness and administrative arbitrariness of the move are visible to all. As a result, the ECI’s reputation, largely due to its own conduct, is not what it once was.

Addressing the constitutional problem

The ECI’s recent actions have been those of a body that is either not independent or not competent, or both. Thus, the demands stemming from the recent actions of the ECI ought to be clear: we need a new ECI, with greater independence, more institutional safeguards, and one that commands the confidence of all political parties and the public. Currently, Article 324(2) of the Constitution provides that the ECI shall be appointed in accordance with a law made by Parliament, and the 2023 CEC Appointment Act is the law currently governing appointments. To say that the law inadequately secures the ECI’s independence would be a gross understatement. A new, more robust ECI would require a substantial re-working of not just the 2023 CEC Appointing Act but arguably the entirety of Part XV of the Constitution concerning Elections. For example, new safeguards should also be adapted for State Electoral Commissions. The good news is that there is a wealth of expert literature and experience on constitutional and institutional design on how to design independent ‘fourth-branch’ guarantor institutions. The bad news is that this is an exercise that will take time, and indeed should take time as different approaches are evaluated in detail. However, in the meantime, India needs to continue having elections.

One solution could be the appointment of an interim ECI confirmed by two-thirds of both houses of Parliament.