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Lack of transparency on such issues as voting machine software has cast doubt on the reliability of election results in Indian states

Josef Stalin has been quoted as saying, “It’s not the people who vote that count, it’s the people who count the votes.” In Stalin’s Russia, this was the common norm and also the reason behind his massive success as a politician.

Fair elections in those days were a luxury enjoyed only by Western democracy, as much of the world had just come out of colonization and some were still part of it. The idea of fundamental rights and rule-based order with institutional autonomy as well as smooth transition of power was a complex concept for these new societies, which had a history of bloody power transfers.

Western critics had similar apprehensions about India as it was taking baby steps toward democracy in the mid-1950s. A country with diverse languages, religions, castes and creeds, it was viewed with skepticism as to whether it would be able to survive as a democracy. Citing the recent Partition of erstwhile British India, Western liberal pundits predicted more partition of Indian states. These doubts prevailed until India held its first parliamentary election in 1952.

Over the next four decades, India not only proved those critics wrong but also made a mark at the international level by becoming the world’s largest democracy, with institutional credibility, freedom of the press, and protection of civil rights.

Certainly, there were also some dark moments, such as when Indira Gandhi didn’t honor the commitments under the constitution and declared the Emergency in the mid-1970s, citing the reason as internal and external threats to the country.

India has come a long way since then. At the dawn of the 21st century, India‘s vibrant democracy with a multiparty system, a large young population, and a growing economy put the country into the global spotlight.

But what’s important about this democracy is a young demographic, which is its strength but also a cause of weakness. Despite constituting a large part of the electorate, the younger generation lacks experience of those black days of democracy. Much of this segment is not aware that in a democracy, the people’s responsibility doesn’t end with voting but starts from there.  

As well, the optimistic vision of liberals that the Internet and digital access would empower democracy and usher in a new era of freedom has not been realized. Instead, we find ourselves in a dramatically different set of circumstances; the digital era is not shaped by openness, but rather by manipulation.

So the idea of suspension of democracy through draconian laws and emergency measures has become naive in the 21st century. In our new democratic systems, such a situation can be created through a softer and invisible replay of previous experiences through a systematic collapse of the pillars of democracy, rather than military action or a coup as in the past.

Subverting the pillars of democracy mainly takes three forms: influencing the umpire’s decision (constitutional body), sidelining of players, and weakening or rewriting the rules of the game.

Russia under President Vladimir Putin, Peru under Alberto Fujimori, and Hungary under Viktor Orban are some of the best examples of this in recent times. One new entrant to this list is India under Narendra Modi. The autonomy of essential institutions has witnessed a steady decline due to the cult personality culture of India’s prime minister. There are several incidents where Indian institutional credibility has been questioned openly.

The death of India’s credible institutions

One of the key pillars of any democracy is the judiciary. It’s the one that provides a reality check to power. But lately, the behavior of this institution is protecting government interests rather than the public interest, which should be its prime objective.

In the last six years, the court has ceased to confront the government on many controversial decisions such as the electoral bonds case, the Citizenship Amendment Act, demonetization, the migrant crisis, and so on. None of its decisions have come as a reality check to power.

In a few days, the attorney general will proceed with a contempt-of-court case against a comedian who questions the chief justice of India. In 2018, for the first time in history, four judges of the Supreme Court had to organize a press conference to share their grievances against the chief justice. Cases having far-reaching consequences for the nation and judiciary were selectively assigned to benches of preference without any rational basis.

This clearly shows the house is not in order. We are also aware of the strength Indian media have shown toward the government in the last few years. India’s rank of 142 out of 180 on the world Press Freedom Index is a small testimony. The consistent drop on a year-on-year basis in press freedom depicts the harsh reality of the arrest of a journalist who dares to question the status quo.

But a more recent blow came to the credibility of the Election Commission in the Bihar Assembly election held in late October and early November, where there were reports of massive rigging and allegations of poll fraud.

The Election Commission is an autonomous constitutional authority responsible for administering the election process in India at national and state elections. In Bihar, there were serious charges made against the EC by the opposition. The opposition made a list of 119 candidates who won after the completion of counting and the returning officer congratulated them for their victory. But when they went to take their certificates, officers told them they had lost the election.

But before we go into details, let’s look at the backdrop of the issue to get a clear picture. We all have seen the failure of the Indian government in dealing with the migrant crisis during the Covid-19 outbreak.

Amid the horrific scenes of millions of migrant workers trying to reach their respective states on foot, the majority of them were from Bihar. More than 3 million migrant workers returned to Bihar.

It was the first state to hold a legislative assembly election after the outbreak. The election was held in the last week of October to the first week of November in three phases. This was significant for both the opposition and the ruling party, as the result would be treated as a mandate on the performance of Modi and the coalition government in Bihar on the pandemic, which has failed to live up to expectations, as the economy is in tatters and unemployment has reached new heights.

There was a wave in favor of young opposition leader Tejshawi Yadav. Hundreds of thousands of people came to his rallies held across Bihar, especially youth and migrant workers, who were looking for a change in leadership. Meanwhile his counterpart, incumbent Chief Minister Nitish Kumar was booed in almost every successive rally.

But when the result came out it was not only surprising for all the political pundits who were predicting the opposition would win under Tejashawi Yadav but for the rest of the Indian masses. It defies logic, as there were some serious inconsistencies, which cannot be ignored.

If the people of Bihar were openly opposing Nitish, then why would they vote for his coalition partner the Bharatiya Janata Party (BJP), which would again make him the chief minister? More than a dozen opposition members of the legislative assembly lost re-election by margins of tens or a hundred votes; one lost by 13 votes. This rarely happens in a state election, and never in Bihar.

The ruling party retained power with just 0.03% more votes than the opposition. All the political pundits were predicting the opposition would win, as there was a wave for the opposition leader on the ground. Few people were coming to the ruling party’s rallies. But the BJP has hailed the Modi Magic and silent voters for its win. But the real question is on the handling of affairs by the EC and the EVMs (electronic voting machines).

The secret behind Modi’s success

In recent years, all accusations against the EC and EVMs were shrugged off as baseless allegations. But mishandling of the Bihar election has put a serious question mark on the EC’s credibility. It puts it into the spotlight as to whether it was acting neutrally.

A closer analysis of how the EC functions will help us determine the reality of its tall claims of credibility, which has deteriorated over time. An electoral system that was once highly transparent, supporting public scrutiny and ease of understanding its functions and policies has undergone an “enclosure of transparency.”

Voting system software is one of the most opaque aspects of electronic voting, as it is quite technical, complex, and generally unavailable for inspection. Access to source codes supports independent technical evaluation of voting systems that, in turn, facilitates oversight and accountability of software.

Most developed countries put source-code audit reports of their electronic voting systems in the public domain so that transparency is maintained. But the Indian electronic voting system is highly opaque, as much of the information is not disclosed in the public domain apart from that it is made by government institutions. But it doesn’t give a guarantee that source code is fully transparent until there is an independent audit review by a third party.

Regarding this, a plea was filed in the Supreme Court stating that not conducting a software review of EVMs, VVPATs (voter verifiable paper audit trails), and ETSs (EVM tracking systems) in an election “infringes” on citizens’ freedom of expression and affects democratic rights.

The petitioner claimed that “if the source code of all these devices were to be subverted in concert, then the process of randomization process would no longer maintain its randomness, rather it will become deterministic and systematic.” This would make it possible to achieve a predetermined outcome of the election.

Despite such a strong argument, on February 24, the Supreme Court disposed of the petition and asked the petitioner to approach the EC, and if the poll body did not order an audit of its EVM source code by an independent auditor, then the petitioner would be at liberty to approach the court again after three weeks. 

But to date, the EC has not taken any action over this, which raises a serious question on its neutrality.

What’s the point of hiding from the Indian people? More so, Article 19 (1) (a) of the Constitution of India provides a guarantee to every Indian of the right to freedom of expression.

But what is interesting is that the EC violates this right with its Rule 49MA, which gives it the power to prosecute a voter for making a false complaint of malfunction of an EVM or VVPAT. This means that if the voter claims a mismatch in an EVM result but fails to prove the mismatch, then a poll official can initiate action under Section 177 of the Indian Penal Code for giving a “false submission,” which may invite six months in jail or a fine of 1,000 rupees (US$13.50) or both.

So it’s like intimidation and against the very fundamentals of democracy. Until such important issues are addressed, the credibility of the Election Commission will remain in question and the fairness of Indian elections will remain under suspicion.

Transparency and accountability are the signs of a healthy democracy, but currently, both are missing from the world’s largest democracy. Until there is transparency in the counting of votes, those who vote don’t matter.

Ravi Kant is a financial writer with a deep passion for technology and economics, and also covers international politics and cyber security. He has wide experience in the financial world and some of his analysis has been published in leading magazines such as Mogul News and The Indian Economist.

This article was originally published on Asia Times.
Views in this article are author’s own and do not necessarily reflect CGS policy.