Election Commission: The Credibility Question

That legitimacy has taken visible dents. The worry is not about one election cycle, one constituency, or one political party. It is about patterns: appointments that appear executive-tilted, opaque data practices around electoral rolls, truncated retention of polling-day evidence, and a defensive institutional reflex when faced with granular, falsifiable allegations. Each of these may be explained individually. Together, they risk softening the constitutional idea of an impartial referee into the image of a guarded bureaucracy.

The country, in its history of electioneering witnessed an extra ordinary situation in the last week. The leader of opposition ,Mr Rahul Gandhi, challenged EC, with issues, namely, the duplicate EPIC entries, constituency-wise surges that appear statistically odd, refusal of machine-readable rolls, and 45 day purge of CCTV/webcast footage etc., forcing the ECI to answer. When confronted with specific, checkable allegations about the integrity of the franchise, does the Commission open the file or close ranks? The first response from the institution “to file an affidavit” sounded less like the confidence of a constitutional sentinel and more like a procedural gambit.

Such ducking reactions on the part of EC raises some disturbing questions about ECI's constitutional place and the doctrine that built it; the structural erosion and judicial silences that have followed; the present flashpoint and what it reveals; and why this moment matters for India's constitutional democracy.

Commission's Constitutional Place and the Doctrinal Frame That Built It

The ECI's modern identity was chiselled by the Supreme Court across a line of cases that both empowered and bounded it.

Beginning with Mohinder Singh Gill v Chief Election Commissioner (1978), which confronted with an extraordinary situation, violence and countermanding- the Court anointed Article 324 with plenary power: where statute is silent and the electoral process is at risk, the Commission may act to keep the poll free and fair. The judgment reads as a manifesto for institutional courage; the ECI is not merely a clerk of statutes, but a constitutional sentinel authorised to improvise procedures when the text runs out and fairness demands action.

But plenary is not plenipotent. In A.C. Jose v Sivan Pillai (1984), when the ECI used electronic voting machines without an enabling law, the Court said no. Where Parliament has spoken through the Representation of the People Acts and the Conduct of Elections Rules, the Commission cannot override the law in the name of Article 324; it may supplement, never supplant. The two cases, read together, give us the frame: a Commission with the room to move inside legality, not above it.

Layered onto that frame is a second doctrinal branch: transparency as a constitutional condition of elections. In Union of India v Association for Democratic Reforms (2002), followed by PUCL v Union of India (2003), the Court constitutionalised the right to know candidates' criminal, financial and educational details under Article 19(1)(a). In People's Union for Civil Liberties v Union of India (2013), it added NOTA to protect the secrecy and autonomy of a negative vote. In Subramanian Swamy v Election Commission of India (2013), it nudged in VVPAT, verifiability as the companion of speed. And in February 2024, a five-judge bench struck down Électoral Bonds, holding that opaque political finance violated voters' right to information: a thundering reminder that democracy corrodes in the dark.

A third branch is institutional independence. The ECI's architecture was left to convention for decades, with appointments effectively controlled by the executive of the day. This meant the referee of the electoral game could be chosen by one of the teams playing it, a structure at odds with the basic idea of fair competition. In Anoop Baranwal v Union of India (2023), a Constitution Bench led by Justice K.M. Joseph held that, until Parliament legislates, appointments to the ECI must be routed through a committee of the Prime Minister, the Leader of the Opposition and the Chief Justice of India. The Court's insistence was structural: insulation of the referee from one-party capture is a constitutional condition of electoral legitimacy, not a matter of administrative convenience.

The point was not symbolism. It was insulation: if the referee is chosen solely by one team, the perception of neutrality cannot survive.

These strands, all orthodox, all mainstream, translate into a simple constitutional expectation: the Commission must look independent, sound transparent, and act as if verification aids it rather than threatens it. That is the baseline against which the present moment must be read.

Appointments and the perception problem

Parliament's response to Anoop Baranwal was swift: the Chief Election Commissioner and Other Election Commissioners Act, 2023 replaced the Chief Justice with a Union Cabinet Minister nominated by the Prime Minister. Petitioners (e.g., Jaya Thakur v Union of India) argued that this defeats the judgment's purpose by re-concentrating appointment power in the executive. The Supreme Court declined to stay the law before the 2024 Lok Sabha polls; hearings have stretched through 2025; meanwhile, appointments under the new regime proceeded, including the CEC's assumption of office in February 2025.

No court has yet invalidated this framework. But a lawyer need not be coy about the optics: two of three votes on the selection committee are now of executive. Even if impeccable professionals are chosen, the appearance of neutrality, the oxygen of institutional legitimacy has been undermined. The Court's interim architecture (with the CJI) would have projected distance; the statute projects proximity. For a referee, proximity to one team even if lawful can be fatal to credibility.

Judicial deference and its cost

On verification, the Court has a mixed record. In N Chandrababu Naidu v Union of India 2019, when opposition parties sought 50% VVPAT cross-checks, the Court lowered the threshold to a random audit from one to five EVMs per Assembly segment- not enough. In Association for Democratic Reforms v Election Commission of India (2024), pleas for a 100% VVPAT tally and a return to paper ballots were also rejected, with the Court emphasising ECI's domain expertise and the absence of systemic proof of tampering. In money and information (Electoral Bonds), the Court spoke loudly for openness; in technology and audits, it chose measured restraint. The message to the ECI has been consistent: we trust you, please don't make us regret it.

Evidence retention and the memory hole

In Jairam Rajesh Vs Union Of India (2025), while a petition sought preservation of polling-day videos, the ECI adopted a 45-day retention policy for CCTV/webcast footage. The stated reasons, privacy, the risk of maliciously edited clips, resource constraints are not frivolous. But the constitutional effect is stark: the evidentiary trail for retrospective audit is shortened to the point of near uselessness. Imagine a close contest, suspicion of late-hour surges, and the need for booth-wise visual corroboration two months later. If the tapes are gone by design, the audit is dead by design. This is not how a referee convinces sceptics that nothing untoward happened after stumps.

Why videos make retention policy outcome determinative: This is not hypothetical. Polling-day videos repeatedly become decisive evidence. In Uttar Pradesh (May 2024), a viral clip appearing to show a teenager casting multiple votes led to arrest and a recommended re-poll; the CEO publicly confirmed departmental action against the polling party. In Faridabad (2019), a polling agent caught on camera attempting to influence voters was arrested and the booth faced enhanced scrutiny/re-poll. Where repolls in Manipur (April 2024) followed violence and damage to machines, video materials and on-ground visuals were key triggers. In each instance, what survives in the archive determines what survives in law, which is exactly why a 45-day deletion cycle is a constitutional misfit.

Electoral rolls and the digital moat

The Commission fulfils the letter of disclosure by publishing electoral rolls. The contention is about format and function. Parties and researchers repeatedly report receiving scanned PDF's or re-compressed image files; some state CEO sites have been periodically inaccessible; and soft, machine-readable data is often refused. Legally, the ECI can say: the rules require publication and a claims/objections window; we comply. Constitutionally, ADR/PUCL logic suggests more: information that enables public verification. If the right to know includes who funds parties to avoid captured democracy, it reasonably includes usable access to electoral rolls to avoid programmed democracy. Hard copies and image-locks are, in effect, digital moats.

All of this is the structural backdrop against which the present controversy exploded.

The Present Flashpoint: A Stress Test, Not a Political Brief

Rahul Gandhi's 7 August 2025 presentation should be treated, constitutionally, as a stress test for the ECI. The question is not whether he is right on every number. It is whether the institutional reflex was the one a neutral referee would have.

The allegations- falsifiable, specific, and civic in nature

The claims were not of the rhetorical, everybody knows variety. They were data-type allegations: more than 1,00,000 suspect entries allegedly added in Mahadevapura (Karnataka), EPIC-based duplicates across constituencies and states, unexplained surges in Maharashtra between 2019 and 2024, booth-level CCTV/webcast footage missing or withheld, and a refusal to provide machine-readable electoral rolls. A citizen armed with EPIC numbers can test duplicate entries; a statistician can probe surges; CCTV/webcast clips can corroborate or debunk late-hour turnout spikes. These are not matters best left to oratory; they are checkable. And the field record shows that such granular, video-backed allegations are not rare outliers. Besides the Uttar Pradesh case (May 2024) of a voter allegedly casting multiple votes, there have been machine-handling lapses serious enough to trigger repolls and suspensions- for example, Assam (April 2021) when an EVM was found in a vehicle linked to a candidate, leading the ECI to suspend four officials and order re-polling at the station concerned; similar disciplinary action followed private-vehicle transport of EVMs in Himachal Pradesh (Nov 2022). The pattern is clear: video and chain-of-custody evidence can make or break accountability, if it is preserved.

The ECI's first response- procedure before substance

The initial institutional response, file a sworn affidavit naming names, is not unlawful; regulators often insist on papered complaints to filter noise. But context matters. When allegations are granular and verifiable, the Commission's constitutional instinct should be open a Suo-motu inquiry, invite particulars, publish methods, and report back. By demanding an affidavit before engaging, the ECI inadvertently communicated that it polices critics more readily than it audits itself. That is not how guardians sound.

The 45-day rule- evidence and the appearance of evasion

Allegations about late-hour voting spikes turn on what the cameras saw. If the Commission's rulebook anticipates destruction before most serious audits even begin, it invites the charge of institutional spoliation even when none is intended. The better path, even if resource-intensive, is to retain for a period matched to litigation realities (election petitions, writs) with controlled access to protect privacy. In election law, audit trails are policy. Short trails mean short accountability.

A constitutional referee earns trust by showing its work. The Commission should publish a consolidated, phase-wise “Action Taken Docket” after every major election: (i) list of all viral-video and booth-level malpractice complaints received; (ii) whether FIRs were registered and by whom; (iii) disciplinary measures against polling personnel; (iv) re-polls ordered (with reasons); (v) VVPAT mismatch statistics, if any; and (vi) clear evidence-retention timelines with controlled access protocols to protect privacy. This is not a novel legal invention; it simply extends the Commission's own Model Code of Conduct enforcement reporting practice from campaign conduct to polling-day integrity, aligning with the Supreme Court's ADR and PUCL transparency logic.

The soft copy refusal- lawful minimalism, constitutional shortfall

The ECI's position that the law compels only publication, not machine-readable publication, may survive a literalist challenge. It struggles, however, against the spirit of ADR/PUCL, which tied voters' right to information directly to the vitality of free and fair elections. The practical effect of refusing structured data is to price public verification out of the reach of citizens and smaller parties. Those with resources and proximity can reconstruct; those without cannot. That is not a level field; it is an information asymmetry baked into process.

None of the above assumes that Gandhi's claims are proven. They may not be, in whole or part. The point is different: a constitutional umpire confronted by falsifiable allegations ought to embrace falsification. Invite it. Enable it. Survive it. Rebut it with workings, logs, and methods, not with posture. That is how neutrality earns belief.

Bihar's SIR, and the meaning of due process without disclosure

The 2025 Special Intensive Revision in Bihar condensed fears into a single number: lakhs of names missing from the draft roll compared to earlier baselines. The Commission told the Supreme Court it would not delete any eligible voter without notice, hearing, and a reasoned order, and that appeals exist. That is due process, and it matters. But when petitioners asked for a public list of those proposed to be deleted (with stated reasons) to enable independent audit, the Commission said the law does not require such publication.

This is the old contest between minimum legalism and maximum legitimacy. The letter of the Registration of Electors Rules may not compel proactive publication of deletions. The spirit of ADR/PUCL and the logic of democratic oversight recommend it, especially when the number is so large. When a constitutional authority keeps the door of information half-open by design, it is unsurprising that people imagine what lies behind it.

Judicial silences that became part of the story

No one credibly suggests that the Supreme Court has abandoned elections to their fate. It introduced VVPAT; it constitutionalised voter information; it dismantled opaque party finance. But on design choices that build or break trust, how much audit is enough; how long to retain evidence; how to structure appointments, the Court has often preferred deference to design. That choice may be doctrinally defensible- courts do not run elections but it leaves a vacuum. In that vacuum, public trust relies almost entirely on the Commission's self-presentation. When that presentation is closed, defensive, and minimal, trust thins.

And democracies do not break in spectacular fashion; they thin out. When the referee's neutrality is unpersuasive, losers see conspiracy, and winners see mandate without restraint. Legitimacy collapses at the margins first: delayed acceptance of results, normalisation of allegations, deepening of echo-chambers, the corrosion of the “common factual space” in which constitutional politics must live.

This is why the Commission's current choices matter beyond any one election:

• Appointments: A design that looks executive-heavy may be constitutionally valid yet institutionally unwise. For a referee, perception is part of power.

• Evidence retention: A 45-day memory tells citizens that the institution plans to forget before society has learned. In election law, long memory is a virtue.

• Data formats: Hard copies and scanned images in 2025 are signals, not accidents. They signal a preference for formal compliance over functional audit.

• Reflex under pressure: “File an affidavit” may be legally proper. It is constitutionally small, especially when the allegations are falsifiable and the public square is anxious.

A final word about politics. Rahul Gandhi's role here is that of catalyst, not client. The Commission's duty runs to the Constitution and the people, not to or against any politician. In a healthy system, a detailed, public, data-type allegation by an opposition leader would trigger the Commission's most transparent posture: help us check; here is what we store; here is how we select; here is who we deleted and why; here is the independent audit we welcome. That posture would have disarmed the controversy. The opposite posture, prove it first has enlarged it.

The Constitution does not entitle citizens to a world without error. It entitles them to a world where errors can be seen, corrected, and prevented by institutions that wear accountability as armour, not as a burden. The ECI's greatness in the 1990s and 2000s came from that ethic. It can come again. But it will not come from press notes or the comfort of minimum legal defences. It will come, as it always has, from evident neutrality, default transparency, and a long audit trail that reassures the most skeptical among us.

Until then, the question is not whether one speech is right, or whether one petition will succeed. The question is whether India can afford an election referee that asks for deference while rationing verifiability. A republic this large, this loud, and this proud deserves institutions whose first instinct, when challenged, is not to stand behind procedure, but to step into the light.

Sahil Hussain Choudhury is a final year LL.M candidate in Jamia Hamdard, HILSR.  Sayed Salim Ahmed is an Advocate based in Guwahati, Assam.Views are personal.