Letter to ECI on Bihar Elections sent on October 9, 2020

Dear Shri Arora ji,

This is to recall that we had written to you regarding certain proposals on the holding of assembly by-polls and the assembly elections in Bihar on August 17, 2020. However, we did not receive any response on our concerns. Subsequently, along with the announcement for the conduct of assembly elections for Bihar, the Commission had issued a detailed note of information and directions on September 25.

In addition to the pending questions are those arising from this note. Three issues need to be flagged which, in our opinion, are absolutely imperative for the holding of free and fair polls in Bihar.

The first issue concerns the question of funding, particularly in the light of the electoral bond scheme.  You are aware, as much as we are, that the EC earlier had told the SC that electoral bonds will signal “serious repercussions on the transparency aspect of political funding of political parties”, pointing out that since the donations made through electoral bonds have been taken out of the compulsory reporting norms thorough changes made in the Finance Act of 2017 and subsequent changes made in the Income Tax Act as well as the Representation of People Act.

“In a situation where contributions received through electoral bonds are not reported, on perusal of contribution report of political parties, it cannot be ascertained whether the political party has taken any donation in violation of section 29 B of the Representation of People Act, 1951, which prohibits the political parties from taking donations from government companies and foreign sources,” the ECI’s affidavit had asserted.

Expressing further disapproval, the affidavit stated that the amendments virtually derailed ECI guidelines of August 29, 2014, requiring political parties to file reports on contributions received, their audited annual accounts and election expenditure statements.

The Finance Act of 2017 had amended various laws, including the Representation of the People (RP) Act of 1951, the Income Tax Act and the Companies Act. Commenting further, on changes made in the Finance Act of 2016, the EC affidavit made out that it ushers in changes in the Foreign Contribution (Regulation) Act of 2010 which would allow donations to be received from foreign companies that have majority stake in Indian companies; “This is a change from the existing law which barred donations from all foreign sources as defined under the Foreign Contribution Regulation Act. This would allow unchecked foreign funding of political parties in India which could lead to Indian policies being influenced by foreign companies”.

Since the matter is now pending with the Hon’ble Supreme Court, the question is, how the Election Commission will discharge the mandate of Article 324 in ensuring a free and fair poll in Bihar and a level playing field.  The guidelines issued on September 25 do not throw any light on this vital question.

The second issue concerns an effective mechanism to ensure a level playing field on mass media and social media.  The experience in recent times clearly shows that BJP, armed with its enormous money power, enjoys a disproportionate advantage over all other political parties.

Consider the following developments. On the eve of the 2019 general election, the then BJP President, Amit Shah had publicly stated that the party, with its network of 32 lakh Whatsapp groups, can make any message, true or false, viral within hours. Add to this, the finding of International fact check websites that overwhelming majority of fake news is generated in India.  And now on the eve of the Bihar elections, the Party has kicked off a virtual election campaign by putting up 72,000 LED TV monitors for Shah’s speech. After holding 60 virtual rallies, the BJP has claimed that its election campaign efforts would involve 9500 IT Cell heads who will coordinate 72,000 Whatsapp groups, one for each polling booth, of which 50,000 have been formed in the last two months.

The amount of expenditure that would be involved to put together such manpower for a technology driven system is simply mind boggling. Even with figures for corporate contributions available in the public domain before the anonymous funding through electoral bonds came into vogue, it was clear that the gap between BJP and all other parties added together in securing corporate poll funding has widened manifold. Obviously, the anonymous corporate funds without any upper ceiling, will certainly be the death knell for electoral democracy.

The issue of use of social media by political parties has assumed new significance in the light of the exposure on BJP’s involvement in the spread of misogyny and hate on social media.  The report in The Wall Street Journal has opened the floodgate of more factual details about how Facebook and Twitter have been complicit in turning a blind eye to BJP’s divisive campaign on the strength of its substantial investment through advertisement in the social media platform along with its associates. This is in addition to its use of Whatsapp messages to build a narrative based on fake news. 

Finally, the third issue concerns the functioning of the EVMs in the real situation of polling.  Media exposures have now established that contrary to Supreme Court direction, the safeguard regime for eliminating the possibility of a foul play, the VVPAT has been used, not for ensuring transparency but to introduce a new element of uncertainty.  The randomization of the EVMs in the pre-VVPAT days ensured the integrity of the machines in the absence of any internal changes to the machine. Without availability specific information of candidate and symbols, the EVM was far more secure. The VVPAT has brought change in the situation.  In the 2019 election, it was noticed that instead of the EVM, the vote recording being done after receiving the signal from the balloting unit was going into the VVPAT. The sequence was altered.  It is the message which is going to the VVPAT directly from the balloting unit which, in turn, goes into the EVMs.  Since the VVPAT is exposed to external changes with constituency and candidate/symbol specific information, manipulation in the final EVM recording becomes that much more possible. 

In 2019, it was also noticed that private contractors were employing technical personnel without proper security clearance for inserting this input into the VVPAT.  This exposes the entire system to compromises and, in turn, manipulation.  Therefore, the Election Commission must ensure that this sequence of the three units must be done in a manner that the information recorded in the EVMs goes into the VVPAT and not the other way around.  The sequence should be: from balloting unit to EVM and then to VVPAT.  The voter will then know how the vote has been registered.  This is a must for creating the reassurance that all loopholes in the system of voting is plugged. 

We hope that these three concerns will be addressed by the Election Commission of India and appropriate official directions issued. Such appropriate direction must be available to all the political parties which are in the election process in the upcoming elections to the Bihar Assembly. 

Thanking you in anticipation,

                   With regards,

Yours sincerely


Sitaram Yechury