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.
The allegations of voter fraud, even if proven to a significant or unquestionable degree, are also unlikely to have a legal remedy. An election outcome can only be questioned through an election petition, and under Section 81 of the Representation of the People Act, 1951, such a petition must be filed within forty-five days of the outcome. This begs the question: if the allegations are true, what ought to be the demands here?
The larger constitutional problem
Claims of election manipulation are not uncommon in Indian political rhetoric, but they have rarely been substantiated with data, and the ECI has acquired a strong reputation for independence built on decades of robust electoral administration. The ECI has often stood alongside the Supreme Court to nudge political reform, such as disclosures of assets and criminal antecedents. As recently as 2017, the ECI opposed the electoral bond scheme, which was eventually struck down by the Supreme Court.
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.
This brings us back to what the demands of the present moment ought to be. One solution could be the appointment of an interim ECI confirmed by two-thirds of both houses of Parliament. This could be done if Parliament passed a law amending the 2023 CEC Appointment Act and providing for an ECI appointed for a six-year term, who must be confirmed by two-thirds of both houses of Parliament. This would not be a long-term solution as the law could be amended by a simple majority in the future, especially as political pressure wanes, but an ECI confirmed by a two-thirds majority in Parliament would have legitimacy to conduct upcoming elections till a larger constitutional overhaul is agreed. This would also require the removal of the current ECI, which is tricky as the Chief Election Commissioner must either resign or be impeached on grounds of proven misconduct or incapacity (Articles 324(5) read with 124(4)). However, if two-thirds of Parliament can agree on replacement candidates of unquestionable integrity, this should act as a constructive impeachment, which ought to compel resignation. If Parliament is forced to impeach, there may be a petition in the Supreme Court on what constitutes proven misconduct or incapacity, but if the Court’s recent track record is anything to go by, this will not be an insurmountable hurdle.
Conclusion
Immediate and longer-term fixes to the ECI’s independence are the needs of the day. The ECI’s recent conduct and the LoP’s allegations highlight a long-standing vacuum in the Indian Constitution – the failure to constitutionally protect the independence of the ECI from Parliament and the Government. For decades, this gap has been papered over through constitutional statesmanship, mutual respect, and fiercely independent Election Commissioners. However, the cracks in the constitutional scheme are on full display today and in need of solutions. Legitimate elections and the peaceful handover of power are central to not just constitutional stability but our shared social imaginary as free citizens with the power to shape our nation’s future and hold those in power to account. India has witnessed periods of undemocratic rule and those scars run deep. Restoring the public faith in the integrity of elections is essential to avoid another such episode.